Omnibus Amendment to Operative Documents and Agreement – Broad River (July 13, 2006)
This agreement, dated July 13, 2006, is between Broad River Energy LLC, Calpine Corporation, Broad River Holdings, various Broad River and SBR entities, U.S. Bank National Association, Wells Fargo Bank Northwest, and BRSP, LLC. It amends several existing agreements related to the sale-leaseback financing of an 850 MW power plant in South Carolina. The amendment updates references, modifies transfer restrictions, and clarifies roles among the parties, subject to certain conditions. The changes are effective once specified conditions are met.
2.01 | Amendments to Participation Agreements. | ||
(a) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in the following Sections to each of the Participation Agreements are hereby deleted: Sections 2.3(b), 5.8, 5.9(a) and (b), 5.11, 5.20, 5.21, 5.27, 6.7, 7.1(a)(i), 7.1(d), 7.9, 13.1 (except for clause (b)(vi) thereof), 13.2 and 14(b). | ||
(b) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in the following Sections to each of the Participation Agreements are hereby deleted and replaced with Noteholder or Noteholders respectively: Sections 5.2(b) and 11.1(v). | ||
(c) | The words any Noteholder, are hereby added into clauses (iii) and (iv) of Section 5.25, and to Section 13.1(b)(iv), in each case after the words the Indenture Trustee,. | ||
(d) | Each and every reference to the Pass Through Company in Section 11.1(v) of the Participation Agreements is hereby deleted. | ||
(e) | Each and every reference to the Certificateholder or Certificateholders in the following Sections to each of the Participation Agreements are hereby deleted: Sections 5.2(b), 5.8, 5.20(a), 6.7 and 13.1(b)(vii). | ||
(f) | Section 6.4 is hereby deleted in its entirety and replaced with the following: |
2
Transfer of the Owner Lessors Interest. Other than as permitted by the Operative Documents, each of the Lessor Manager and the Owner Lessor covenants that it will not assign, pledge, sell, lease, convey or otherwise transfer any of its then existing right, title or interest in and to the Owner Lessors Interest, the Lessor Estate or the other Operative Documents; provided, however, that if the Owner Lessor acquires the Lessor Notes outstanding immediately prior to the Settlement Agreement Effective Date pursuant to Section 4.4(e) of the Collateral Trust Indenture, it is expressly understood and agreed that nothing in this Section 6.4 shall in any way limit the right of the Owner Lessor to assign, pledge, sell, lease, convey or otherwise transfer any of its then existing right, title or interest as Noteholder in and to such Lessor Notes or any right or interest under the Collateral Trust Indenture accruing or benefiting the holder of any such Lessor Note so acquired, the right of the Members (as defined in the LLC Agreement) of the Owner Lessor to direct the Lessor Manager to do the same on behalf of the Owner Lessor, or the obligation of the Lessor Manager to act as so directed in connection therewith; provided, further, that nothing herein shall preclude the Owner Lessor from performing the transactions contemplated under Section 1.3 of the Settlement Agreement. | |||
(g) | Section 6.6 is hereby deleted in its entirety and replaced with the following: | ||
Limitation on Indebtedness and Actions. Each of the Lessor Manager and the Owner Lessor covenants that it will not incur any Indebtedness nor enter into any business or activity except as required or expressly permitted by any Operative Document (it being expressly understood and agreed that nothing in this Section 6.6 shall in any way preclude or limit the Owner Lessor from (x) acquiring, selling, conveying or otherwise transferring all or any portion of its right, title or interest as Noteholder in and to any Lessor Note outstanding immediately prior to the Settlement Agreement Effective Date which is acquired pursuant to Section 4.4(e) of the Collateral Trust Indenture or any right or interest under the Collateral Trust Indenture accruing or benefiting the holder of any such Lessor Note so acquired, the Members (as defined in the LLC Agreement) of the Owner Lessor from directing the Lessor Manager to do the same on behalf of the Owner Lessor, or the obligation of the Lessor Manager to act as so directed in connection therewith), (y) issuing any Settlement Agreement Additional Lessor Notes as contemplated under Section 2.12 of the Collateral Trust Indenture or (z) taking any actions expressly contemplated under Sections 1.3, 1.6.b, and 1.8 of the Settlement Agreement. | |||
(h) | Section 7.7 is hereby amended by adding the following sentence to the end of the Section: | ||
Notwithstanding the foregoing provisions of this Section 7.7, it is expressly understood and agreed that nothing in this Section 7.7 shall preclude the Owner Participant from (x) guaranteeing any obligations of any Affiliate of the Owner Participant in connection with any financing of the acquisition by the Owner Lessor of (1) the Lessor Notes outstanding immediately prior to the Settlement |
3
Agreement Effective Date pursuant to Section 4.4(e) of the Collateral Trust Indenture and (2) the Settlement Agreement Additional Notes or in connection with any refinancing or replacement of such financing and/or (y) granting security for any financing described in (x) above so long as such security does not create an Owner Participants Lien (it being expressly understood and agreed that notwithstanding the foreoging, any foreclosure on or transfer or other conveyance of any Member Interest shall be subject to the requirements of Section 7 hereof and the Tax Indemnity Agreement). |
(i) | Section 9.1(a) is hereby amended by inserting the words , each Noteholder, in the fifth line thereof before the words each Certificateholder. In addition, each and every reference to the Additional Certificates in Section 9 to each of the Participation Agreements are hereby deleted. | ||
(j) | Notwithstanding any provision to the contrary contained in this Amendment or in the Operative Documents, the indemnity obligations of Facility Lessee under Section 9.1 of each of the Participation Agreement which are owed to any Certificateholder, the Pass Through Company in its individual capacity, the Pass Through Trustees, and their respective Affiliates, successors, assigns, agents, directors, officers and employees shall be limited solely to any and all Claims to the extent relating to the period prior to the PTT Indemnity Limitation Date (as defined in the next sentence), and such obligations (as amended by this paragraph (j)) shall survive after the effective date of this Amendment; provided however, that this provision shall have no effect with respect to Sections 5.25 and 13.1(b)(iv) of the Participation Agreement and Section 7.1 of the Facility Lease. The PTT Indemnity Limitation Date shall mean the earlier of (x) the date thirty (30) days after the Special Distribution Date (as defined in the Pass Through Trust Agreements) in respect of the proceeds of the purchase by the Owner Lessor pursuant to Section 4.4(e) of the Collateral Trust Indenture of the Lessor Notes and (y) the date that is ninety (90) days after the Settlement Agreement Effective Date. | ||
(k) | Section 9.1(b) is hereby amended by adding the following sentence to the end thereof: | ||
Notwithstanding any provision of any Operative Document, in no event shall Broad River or the Guarantor be obligated to pay or reimburse any CIT Party (as defined in the Settlement Agreement) for any amount paid or payable to any Certificateholder or any of their respective Affiliates in connection with or as an inducement to provide any direction or instruction to the Pass Through Trustee to execute and deliver this Amendment or any similar amendment to the South Point Operative Documents. | |||
(l) | Section 9.2(a) is hereby amended by inserting the words each Noteholder, in the fourth line thereof after the words the Indenture Trustee,. |
4
(m) | Notwithstanding any provision to the contrary contained in this Amendment or the Operative Documents, the indemnity obligations of Facility Lessee under Section 9.2 of each of the Participation Agreement which are owed to any Certificateholder, the Pass Through Company in its individual capacity, the Pass Through Trustees, and their respective Affiliates, successors, assigns, agents, directors, officers and employees shall be limited solely to any and all Taxes to the extent relating to the period prior to the PTT Indemnity Limitation Date (as defined in paragraph (j) above), and such obligations (as amended by this paragraph (l)) shall survive after the effective date of this Amendment. | ||
(n) | Section 11.1(xii) of each Participation Agreement is hereby deleted in its entirety and is replaced by the following: | ||
(xii) the Facility Lessee shall pay to the Owner Participant a fee of $100,000 for each such financing other than the first financing; and | |||
(o) | The words any Noteholder, are hereby added into Section 13.1(b)(iv) after the words the Indenture Trustee,. | ||
(p) | Section 15.4 of each Participation Agreement is hereby deleted in its entirety and replaced with the following: | ||
15.4 Amendments and Waivers. No term, covenant, agreement or condition of this Agreement may be terminated, amended or compliance therewith waived (either generally or in a particular instance, retroactively or prospectively) except by an instrument or instruments in writing executed by each party hereto; provided, however, that the consent from, or the execution of a written instrument by, the Pass Through Trustees and the Pass Through Company will not be required for any termination, amendment or waiver entered into after the effective date of the Omnibus Amendment unless any such termination, amendment or waiver is with respect to any rights of the Pass Through Trustees, the Pass Through Company or any Certificateholder which expressly survive after the effective date of the Omnibus Amendment and would adversely affect any of the rights of the Pass Through Trustees, the Pass Through Company or any Certificateholder thereunder. | |||
(q) | Section 15.13(d) of each Participation Agreement is hereby amended as follows: the final sentence of Section 15.13(d) beginning with the phrase In connection with any such discretionary acts . . . is hereby deleted in its entirety. | ||
(r) | Section 15.21 of each Participation Agreement is hereby amended by restating clause (f) thereof in its entirety to read as follows: |
5
(s) | Section 15.23 of each Participation Agreement is hereby deleted in its entirety and replaced with the following: | ||
15.23 Amendments, Etc. No Operative Document nor any of the terms thereof (including the terms of this Section 15.23) may be terminated, amended, supplemented, waived or modified, except by an instrument in writing (a) signed in the case of a waiver, by the party against which enforcement of such waiver is sought, and no such waiver shall become effective unless signed copies thereof shall have been delivered to each such party or (b) in the case of termination, amendments, supplements or modifications, consented to by all parties hereto; provided, however, that the consent of the Facility Lessee is not required in the case of amendments to any Operative Document to which the Facility Lessee is not a party and which would not increase or accelerate the Facility Lessees or the Guarantors obligations under any of the Operative Documents nor impair the Facility Lessees or the Guarantors rights under any of the Operative Documents; provided further that the consent from, or the execution of a written instrument by, the Pass Through Trustees and the Pass Through Company will not be required for any termination, amendment or waiver entered into after the effective date of the Omnibus Amendment unless any such termination, amendment or waiver is with respect any rights of the Pass Through Trustees, the Pass Through Company or any Certificateholder which expressly survive after the effective date of the Omnibus Amendment and would adversely affect any of the rights of the Pass Through Trustees, the Pass Through Company or any Certificateholder thereunder. Notwithstanding the foregoing, Section 5.6 of the Collateral Trust Indenture shall not be amended without the Guarantors consent. | |||
(t) | A new Section 15.24 is hereby added to the Participation Agreement as follows: | ||
15.24 Settlement Agreement Implementation. The Owner Lessor, Owner Participant, Facility Lessee, Calpine and BRSP, LLC, a Delaware limited liability company, as Noteholder, acknowledge receipt of the Settlement Agreement and agree to comply with and implement the provisions thereof, including Sections 1.3(c), 1.3(d) and 1.6 thereof. | |||
(u) | If and to the extent (i) the Effective Date under the Settlement Agreement shall have occurred, (ii) Calpine and/or its Affiliates shall have paid in full (1) all past due Basic Rent under the Broad River and South Point Facility Leases due and owing as of May 30, 2006 together with (2) interest thereon at the Overdue Rate through (and including) the date of cure, and (3) the reasonable fees and expenses of the parties to the Overall Transactions, in each case in accordance with and as |
6
contemplated by that certain Order (I) Authorizing and Approving the Settlement Agreement between the Calpine Parties and the CIT Parties Regarding (A) Amendments to Contracts and Leases Related to Broad River and South Pont Facilities; (B) Assumption of Such Contracts and Leases, as Amended; (C) Assignment of Broad River Power Purchase Agreements; (II) Granting Shortened Notice for a Hearing on the Same; and (III) Granting Other Related Relief, dated June 27, 2006, and in the case of the preceding clause (ii)(3), the Second Amended Final Order Authorizing Use of Cash Collateral and Granting Adequate Protection [Docket No. 881], dated February 24, 2006, and (iii) the Settlement Agreement Additional Notes under the Collateral Trust Indentures for each of Broad River and South Point shall have been issued by each Owner Lessor in the Settlement Agreement Additional Lessor Notes Principal Amount under such Collateral Trust Indenture, then notwithstanding anything to the contrary contained in Section 9.1 of the Participation Agreement or in any other Operative Document neither the Owner Lessors nor the Owner Participants will assert against or seek from any Lessee any Supplemental Rent under Section 9.1 of the Participation Agreements in respect of any amounts paid by the Owner Lessor or any of its Affiliates in order to cure the May 30, 2006 payment defaults under the Lessor Notes. |
2.02 | Amendments Appendix A to Participation Agreements. Appendix A to each of the Participation Agreements shall be amended as follows: | ||
(a) | The term Amendment Date Bankruptcy Case is hereby added as follows: | ||
Amendment Date Bankruptcy Case shall mean those certain jointly administered cases under chapter 11 of title 11 of the United States Code pending on the date of the Amendment in the United States Bankruptcy Court for the Southern District of New York under the name In re Calpine Corp., et. al., No. 05-60200 (BRL) (Jointly Administered). | |||
(b) | The Term Broad River PPAs is hereby added as follows: | ||
Broad River PPAs shall mean (i) a Power Purchase Agreement, dated as of December 31, 1998, between Carolina Power and Light Company and Broad River, as amended, restated, modified or otherwise supplemented from time to time in accordance with the terms thereof; and (ii) a Power Purchase Agreement, dated as of July 7, 2000, between Carolina Power and Light Company and Broad River, as amended, restated, modified or otherwise supplemented from time to time in accordance with the terms thereof. | |||
(c) | Upon Calpine Corporations and Facility Lessees emergence, as debtors and debtors in possession, from the Amendment Date Bankruptcy Case, the term Calpine Guaranty shall be replaced in its entirety by the following: |
7
Calpine Guaranty shall mean the Amended and Restated Calpine Guaranty and Payment Agreement, among Calpine, Owner Lessor and Owner Participant, in substantially the form attached as Exhibit C-1 to the Settlement Agreement. | |||
(d) | The term Certificate Purchase Agreement is hereby deleted and all references to the Certificate Purchase Agreement in each and all of the Operative Documents are hereby deleted. | ||
(e) | The terms Certificate Purchase Agreement and Pass Through Trust Agreement are hereby deleted from the definition of the term Operative Documents and all references to the Certificate Purchase Agreement and the Pass Through Trust Agreement as an Operative Document in each and all of the Operative Documents are hereby deleted. | ||
(f) | The term Lessor Estate is hereby replaced in its entirety with the following: | ||
Lessor Estate shall mean all the estate, right, title and interest of the Owner Lessor in, to and under the Undivided Interest, the Ground Interest and the Operative Documents (other than in (x) its right, title and interest as Noteholder in the Lessor Notes acquired pursuant to Section 4.4(e) of the Collateral Trust Indenture and (y) any right or interest under the Collateral Trust Indenture accruing or benefiting the holder of a Lessor Note so acquired), including all funds advanced to the Owner Lessor by the Owner Participant, all installments and other payments of Periodic Rent, Supplemental Rent or Termination Value under the Facility Lease, condemnation awards, purchase price, sale proceeds, insurance proceeds and all other proceeds, rights and interests of any kind for or with respect to the estate, right, title and interest of the Owner Lessor in, to and under the Undivided Interest, the Ground Interest and the Operative Documents (other than in (x) the Lessor Notes acquired pursuant to Section 4.4(e) of the Collateral Trust Indenture and (y) any right or interest under the Collateral Trust Indenture accruing or benefiting the holder of a Lessor Note so acquired) and the FILOT Lease and any of the foregoing, but shall not include Excepted Payments and the proceeds of the sale of the Settlement Agreement Additional Lessor Notes. | |||
(g) | The term Lessor Note(s) is hereby replaced in its entirety with the following: | ||
Lessor Note(s) shall mean, individually or collectively as the context may require, the Initial Lessor Notes, Additional Lessor Notes and Settlement Agreement Additional Lessor Notes, each issued pursuant to the Collateral Trust Indenture. | |||
(h) | The term Omnibus Amendment is hereby added as follows: | ||
Omnibus Amendment shall mean that certain Omnibus Amendment to Operative Documents and Agreement Broad River, dated as of July 13, 2006, among, inter alia, the Facility Lessee, Calpine, the Owner Lessor, the Owner |
8
Participant, the Indenture Trustee, the Lessor Manager and the Pass Through Trustee. |
(i) | The term Owner Participants Lien(s) is hereby amended by adding the following sentence to the end of the existing definition: | ||
Notwithstanding the foregoing or anything to the contrary contained in any Operative Document, Owner Participants Lien(s) shall not include (x) any Lien on the Member Interest or on any other assets, property or rights of the Owner Participant granted in connection with any financing of the Owner Lessors acquisition of any Lessor Notes pursuant to Section 4.4(e) of the Collateral Trust Indenture or any refinancing or replacement of such financing so long as the Liens so granted do not include the Lessor Estate, the Facility Site, or any part of any thereof or any interest therein, and (y) any interest of the Owner Participant in the proceeds of the sale by the Owner Lessor of the Settlement Agreement Additional Lessor Notes. | |||
(j) | The term Pledge Agreement is hereby added as follows: | ||
Pledge Agreement shall mean that certain Pledge and Security Agreement, dated as of September 30, 2003, by and among Broad River Holdings, LLC, Calpine, Broad River and the Owner Lessor. | |||
(k) | The term RockGen Calpine Guaranties is hereby deleted from the definition of the term Other Calpine Guaranties and all references to the Other Calpine Guaranties in each and all of the Operative Documents will be deemed to mean only the Other Broad River Calpine Guaranties and the South Point Calpine Guaranties. | ||
(l) | The term RockGen Facility Leases is hereby deleted from the definition of the term Other Facility Leases and all references to the Other Facility Leases in each and all of the Operative Documents will be deemed to mean only the Other Broad River Facility Leases and the South Point Facility Leases. | ||
(m) | The term RockGen Owner Lessors is hereby deleted from the definition of the term Other Owner Lessors and all references to the Other Owner Lessors in each and all of the Operative Documents will be deemed to mean only the Other Broad River Owner Lessors and the South Point Owner Lessors. | ||
(n) | The term RockGen is hereby deleted and all references to RockGen in each and all of the Operative Documents are hereby deleted. | ||
(o) | The term RockGen Bills of Sale is hereby deleted and all references to the RockGen Bills of Sale in each and all of the Operative Documents are hereby deleted. |
9
(p) | The term RockGen Calpine Guaranties is hereby deleted and all references to the RockGen Calpine Guaranties in each and all of the Operative Documents are hereby deleted. | ||
(q) | The term RockGen Collateral Trust Indentures is hereby deleted and all references to the RockGen Collateral Trust Indentures in each and all of the Operative Documents are hereby deleted. | ||
(r) | The term RockGen Facility Leases is hereby deleted and all references to the RockGen Facility Leases in each and all of the Operative Documents are hereby deleted. | ||
(s) | The term RockGen Facility Lessee is hereby deleted and all references to the RockGen Facility Lessee in each and all of the Operative Documents are hereby deleted. | ||
(t) | The term RockGen Facility Site is hereby deleted and all references to the RockGen Facility Site in each and all of the Operative Documents are hereby deleted. | ||
(u) | The term RockGen Facility Site Leases is hereby deleted and all references to the RockGen Facility Site Leases in each and all of the Operative Documents are hereby deleted. | ||
(v) | The term RockGen Ground Interests is hereby deleted and all references to the RockGen Ground Interests in each and all of the Operative Documents are hereby deleted. | ||
(w) | The term RockGen Indenture Trustees is hereby deleted and all references to the RockGen Indenture Trustees in each and all of the Operative Documents are hereby deleted. | ||
(x) | The term RockGen Lease Transactions is hereby deleted and all references to the RockGen Lease Transactions in each and all of the Operative Documents are hereby deleted. | ||
(y) | The term RockGen Lessor Managers is hereby deleted and all references to the RockGen Lessor Managers in each and all of the Operative Documents are hereby deleted. | ||
(z) | The term RockGen Owner Lessors is hereby deleted and all references to the RockGen Owner Lessors in each and all of the Operative Documents are hereby deleted. | ||
(aa) | The term RockGen Owner Participants is hereby deleted and all references to the RockGen Owner Participants in each and all of the Operative Documents are hereby deleted. |
10
(bb) | The term RockGen Operative Documents is hereby deleted and all references to the RockGen Operative Documents in each and all of the Operative Documents are hereby deleted. | ||
(cc) | The term RockGen Overall Transaction is hereby deleted and all references to the RockGen Overall Transaction in each and all of the Operative Documents are hereby deleted. | ||
(dd) | The term RockGen Participation Agreements is hereby deleted and all references to the RockGen Participation Agreements in each and all of the Operative Documents are hereby deleted. | ||
(ee) | The term RockGen Undivided Interests is hereby deleted and all references to the RockGen Undivided Interests in each and all of the Operative Documents are hereby deleted. | ||
(ff) | The term Settlement Agreement is hereby added as follows: | ||
Settlement Agreement shall mean that certain Settlement Agreement, dated as of June 14, 2006, among, inter alia, Calpine, certain of controlled subsidiaries of Calpine (including the Facility Lessee), CIT Credit Group USA Inc., and the Owner Lessor, as amended by that certain Clarification and Amendment Letter dated as of June 26, 2006 and as may be further amended from time to time. | |||
(gg) | The term Settlement Agreement Additional Lessor Notes is hereby added as follows: | ||
Settlement Agreement Additional Lessor Notes shall have the meaning set forth in Section 2.12(a) of the Collateral Trust Indenture. | |||
(hh) | The term Settlement Agreement Effective Date is hereby added as follows: | ||
Settlement Agreement Effective Date shall mean the Effective Date described in Section 2.2 of the Settlement Agreement. | |||
2.03 | Amendments to Facility Leases. Each of the Facility Leases shall be amended as follows: | ||
(a) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in the following Sections to each of the Facility Leases are hereby deleted: Sections 3.4, 5.3, 9, 10.1, 10.3 (except for the last paragraph of paragraph (e) thereof), 12, 13.1(a), 13.2(a), 14.1, 16(b), 16(d) and 16(j). | ||
(b) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in the following Sections to each of the Facility Leases are hereby deleted and replaced with Noteholder or Noteholders respectively: Sections 8.1, 10.2, 10.3(e) (only with respect to the last paragraph thereof), 13.3, 14.3, 14.4, 17.1 and 19(i). |
11
(c) | The words any Noteholder, are hereby added into clauses (3) and (4) of Section 7.1 in each case after the words the Indenture Trustee,. | ||
(d) | Each and every reference to the Pass Through Company in the following Sections to each of the Facility Leases are hereby deleted: Sections 3.4(b), 8.1, 10.2(a), 10.3, 13.3, 14.3, 14.4, 17.1, and 19(i). | ||
(e) | Each and every reference to the Certificateholder or Certificateholders in the following Sections to each of the Facility Leases are hereby deleted: Sections 8.1, 10.2(c) and 13.4. | ||
(f) | Section 16(g) of each Facility Lease is hereby deleted in its entirety and replaced with the following: |
(g) | except for the Amendment Date Bankruptcy Case (other than any conversion of the Amendment Date Bankruptcy Case into a Chapter 7 proceeding), the Facility Lessee or Calpine shall (i) commence a voluntary case or other proceeding seeking relief under Title 11 of the Bankruptcy Code or liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or apply for or consent to the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (ii) consent to, or fail to controvert in a timely manner, any such relief or the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) file an answer admitting the material allegations of a petition filed against it in any such proceeding, or (iv) make a general assignment for the benefit of creditors; |
(g) | Section 16(h) of each Facility Lease is hereby deleted in its entirety and replaced with the following: |
(h) | except for the Amendment Date Bankruptcy Case (other than any conversion of the Amendment Date Bankruptcy Case into a Chapter 7 proceeding), an involuntary case or other proceeding shall be commenced against the Facility Lessee or Calpine seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of such Person; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; |
2.04 | Amendments to Collateral Trust Indenture. Each of the Collateral Trust Indentures shall be amended as follows: |
12
(a) | Clause (1) of the Granting Clause is hereby deleted in its entirety and replaced with the following which shall constitute the grant of a first priority security interest in, and mortgage lien on, the property described for all purposes of this Collateral Trust Indenture: | ||
(1) the Undivided Interest (including the Facility Purchase Option), the Owner Lessors interest in any Components; the Owner Lessors interest in any Improvements; the Ground Interest (including the Land Purchase Option); the Facility Lease and all payments of any kind by the Facility Lessee thereunder (including Rent); any rights of the Owner Lessor as assignee of the Facility Lessee under the Facility Lease; the Facility Site Lease and all payments of any kind by the Facility Lessee thereunder; the Assignment Agreement (and all rights with respect to the FILOT Lease conveyed thereby); the Owner Lessors interest in all tangible property located on or at or attached to the Facility Site as to which an interest in such tangible property arises under applicable real estate law (fixtures); the Calpine Guaranty, the Ownership and Operation Agreement and all and any interest in any property now or hereafter granted to the Owner Lessor pursuant to any provision of the Facility Lease or the FILOT Lease (including, without limitation, the option to purchase set forth in Section 10.02 of the FILOT Lease); the FILOT Lease, the Pledge Agreement, the Broad River PPAs (including, to the extent contemplated in Section 1.3 of the Settlement Agreement, any security interest granted to the Owner Lessor thereunder) and each other Operative Document to which the Owner Lessor is a party other than the Tax Indemnity Agreement, the Tri-Party Agreement, the LLC Agreement, any Lessor Notes which the Owner Lessor may acquire pursuant to Section 4.4(e) of this Indenture and any right or interest under this Indenture accruing or benefiting the holder of a Lessor Note acquired by the Owner Lessor pursuant to Section 4.4(e) of this Indenture (the Undivided Interest, the Owner Lessors interest in any Components, the Owner Lessors interest in any fixtures, Improvements and the Ground Interest are collectively referred to as the Property Interest and the documents specifically referred to above in this paragraph (1) are collectively referred to as the Assigned Documents), including, without limitation, (x) all rights of the Owner Lessor to receive any payments or other amounts or, subject to Section 5.6 hereof, to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, waiver or approval or to make any demand or to take any other action under or in respect of any such document, to accept surrender or redelivery of the Property Interest or any part thereof, as well as all the rights, powers and remedies on the part of the Owner Lessor, whether acting under any such document or by statute or at law or in equity or otherwise, arising out of any Lease Default or Lease Event of Default and (y) any right to restitution from the Facility Lessee, any sublessee or any other person in respect of any determination of invalidity of any such document; | |||
(b) | The phrase or any Certificateholder in each and every instance where it appears in Section 2.10(b) is hereby deleted. |
13
Section 2.10(b)(iii) is hereby deleted in its entirety. | |||
(c) | Section 2.10(f) is hereby amended as follows: the final clause of first sentence of the first paragraph of Section 2.10(f) which reads ; provided, that no notice shall be required so long as the Pass Through Trustee and the Indenture Trustee are the same entity is hereby deleted. | ||
(d) | Section 2.12(a) is hereby amended by adding the following sentences to the end of such Section: | ||
Notwithstanding anything to the contrary contained herein or in any other Operative Document, the Owner Lessor shall issue Additional Lessor Notes on the Settlement Agreement Effective Date in an aggregate principal amount equal to, for each series of Initial Lessor Notes, the excess of (1) the aggregate principal amount of the Initial Lessor Notes of such series prepaid and repaid during the period between May 10, 2006, through (and including) the Settlement Agreement Effective Date over (2) the aggregate principal amount of the Initial Lessor Notes of such series which would have been repaid during such period if payments received by the Indenture Trustee hereunder had been applied in accordance with Section 3.1(b) hereof (such Additional Lessor Notes hereinafter Settlement Agreement Additional Lessor Notes and the aggregate principal amount of such Settlement Agreement Additional Lessor Notes hereinafter the Settlement Agreement Additional Lessor Notes Principal Amount). If at the time the Indenture Trustee returns the Lessor Notes purchased by the Owner Lessor pursuant to Section 4.4(e) of the Indenture to the registered owner thereof following registration of such Lessor Notes in the Registrar it is determined that the sum of (a) the principal amount of such Lessor Notes of any series plus (b) the principal amount of Settlement Agreement Additional Notes of such series issued on the Settlement Agreement Effective Date exceeds or is less than $55,200,000 (in the case of series A) or $151,500,000 (in the case of series B), as applicable, a principal amount of Lessor Notes of such series shall be deemed retired in the amount of such excess or a principal amount of Settlement Agreement Additional Notes shall be issued in the amount of such deficiency, as the case may be, with retroactive effect to the Settlement Agreement Effective Date and accrued interest shall be appropriately adjusted to give effect to the foregoing. Any additional Settlement Agreement Additional Notes issued as a consequence of the preceding sentence shall be authenticated by the Indenture Trustee. The Settlement Agreement Additional Lessor Notes shall be issued and sold to BRSP, LLC (the Settlement Agreement Additional Note Purchaser) and shall be in the form attached as Schedule C of the Omnibus Amendment with the principal amounts and other information inserted therein to be approved by Owner Lessor and Broad River. Notwithstanding any provision of any Operative Document (including Sections 2.12(b), 2.12(c), and 2.12(d) of this Indenture), upon the delivery by the Owner Lessor to the Indenture Trustee of a written order on the Settlement Agreement Effective Date or any time thereafter, the Indenture Trustee shall execute and authenticate the Settlement Agreement Additional Lessor Notes, and |
14
upon payment to the Owner Lessor of the Settlement Agreement Additional Lessor Notes Principal Amount, the Indenture Trustee shall deliver such Settlement Agreement Additional Lessor Notes to the Settlement Agreement Additional Note Purchaser. For all purposes of the Operative Documents, the Settlement Agreement Additional Notes shall be deemed Additional Lessor Notes. |
(e) | The phrase or the Pass Through Trust Agreements in each and every instance where it appears in Section 8.2 is hereby deleted. | ||
(f) | The phrase rules or regulations of any exchange or quotation system on which the Certificates are listed in clause (h) of Section 8.2 is hereby deleted. | ||
2.05 | Amendments to Calpine Guaranty. Each of the Calpine Guaranties shall be amended as follows: | ||
(a) | The term Certificateholders in Section 2.1(a)(5)(B) is hereby deleted and replaced with the term Noteholders. | ||
(b) | Section 3.2 is hereby amended as follows: |
15
(c) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in Sections 3.3, 3.6, 7.1(d) and 8.4(b)(vii) are hereby deleted. | ||
(d) | The phrase or any Certificateholder in Section 3.3(iv) is hereby deleted. | ||
(e) | Each and every reference to the Pass Through Trustee or Pass Through Trustees in Sections 3.3, 3.6(ii) and (iii), 7.1 and 8.4 are hereby deleted. | ||
(f) | Notwithstanding any provision to the contrary contained in this Amendment or in Section 4 of each Calpine Guaranty, the Pass Through Trustees and the Pass Through Company shall be a Beneficiary under each Calpine Guaranty solely to the extent that Obligations (as defined in each Calpine Guaranty) owed to such Persons relate to or are due and payable in respect of the period prior to the PTT Indemnity Limitation Date (as defined in Section 2.01(j) above). | ||
(g) | The phrase the Certificates (if then outstanding) and in Section 8.4(b)(v) is hereby deleted. | ||
2.06 | Amendments to OP Parent Guaranties. Each and every reference to the Pass Through Trustee or Pass Through Trustees in Section 4 to each of the OP Parent Guaranties are hereby deleted. In addition, and notwithstanding anything to the contrary contained in this Amendment or in any OP Parent Guaranty, the Pass Through Trustees shall be a Beneficiaries under each OP Parent Guaranty solely to the extent that any OP Guarantor Obligations (as defined in each OP Parent Guaranty) owed to such Pass Through Trustees relate to or are due and payable in respect of the period prior to the PTT Indemnity Limitation Date (as defined in Section 2.01(j) above). | ||
2.07 | Amendments to LLC Agreement. | ||
(a) | Section 2.5 is hereby deleted in its entirety and replaced with the following: | ||
Subject to Section 9.1 hereof, the purposes of the LLC are to receive the Equity Investment from the Owner Participant, to issue the Lessor Notes pursuant to the Collateral Trust Indenture, which Lessor Notes shall be secured by the Indenture Estate, to use all such funds on the Closing Date to acquire and accept an assignment and transfer of the Undivided Interest and the Ground Interest from CCFC pursuant to the Assignment Agreement, to lease the Undivided Interest and the Ground Interest to the Facility Lessee pursuant to the Facility Lease and the Facility Site Lease, respectively, to purchase or otherwise acquire any of the Lessor Notes pursuant to Section 4.4(e) of the Collateral Trust Indenture, to assign or transfer all or any portion of or interest in such Lessor Notes to any Person, to issue the Settlement Agreement Additional Lessor Notes, to take such other actions as may be expressly contemplated under the Operative Documents and, to the extent not prohibited by the Operative Documents, the Settlement |
16
Agreement, and/or to take such other actions as may be necessary or appropriate for (or incidental to) any of the foregoing purposes (including, without limitation, entering into any sale and purchase agreement with any Person with respect to all or any portion of or interest in the Lessor Notes acquired pursuant to Section 4.4(e) of the Collateral Trust Indenture and the Settlement Agreement Additional Lessor Notes), and to otherwise protect and preserve the LLC Assets in accordance with the terms hereof. |
Notwithstanding any provision to the contrary contained in this Agreement, the LLC shall not be required to make a distribution to any Member on account of its interest in the LLC if such distribution would violate Section 18-607 of the LLC Act or any other applicable law or any Operative Document; provided, however, that neither this Section 4.3 nor any other provision of this Agreement or of any Operative Document shall in any way limit the LLCs obligation to distribute to the Members the proceeds from the sale of the Settlement Agreement Additional Lessor Notes. |
Notwithstanding anything to the contrary herein contained, however, it is understood and agreed that (x) all net proceeds received by the Lessor Manager (on behalf of the LLC) from the sale of the Settlement Agreement Additional Lessor Notes shall be distributed immediately upon receipt to the Members in proportion to their Percentage Interests, and (y) the Lessor Manager shall not be obligated to make any distribution until the funds for such distribution have been received by the Lessor Manager in cash or other immediately available funds. | |||
(d) | Sections 9.1(c) and 9.1(d) of the LLC Agreement are each hereby amended by adding the following sentence at the end of each such Section: | ||
Notwithstanding the foregoing or anything to the contrary contained in this Agreement, nothing in this Agreement shall prevent or preclude the Owner Lessor from taking any of the following actions (each of which shall be expressly permitted hereunder): (x) selling any Lessor Notes acquired pursuant to 4.4(e) of any Collateral Trust Indenture to any Affiliate or issuing any Settlement Agreement Lessor Notes to any Affiliate, (y) consummating the transactions contemplated in Section 1.3 of the Settlement Agreement or (z) directing or instructing the Indenture Trustee to deposit any amounts representing the Equity Portion of Periodic Rent and/or the Equity Portion of Termination Value directly to any bank account maintained by (and in the name of) any of its Affiliates. |
17
18
19
20
BROAD RIVER ENERGY LLC, as Facility Lessee | ||||||
by: | /s/ Zamir Rauf | |||||
Title: Authorized Agent |
CALPINE CORPORATION | ||||||
by: | /s/ Zamir Rauf | |||||
Title: Senior Vice President |
BROAD RIVER HOLDINGS, LLC, | ||||||
as Pledgor under each of the Pledge Agreements | ||||||
by: | /s/ Zamir Rauf | |||||
Title: Authorized Agent |
BROAD RIVER OL-1, LLC, | ||||||
as Owner Lessor and as Noteholder | ||||||
By: WELLS FARGO BANK NORTHWEST, | ||||||
NATIONAL ASSOCIATION | ||||||
not in its individual capacity but solely as Lessor Manager | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
BROAD RIVER OL-2, LLC, | ||||||
as Owner Lessor and as Noteholder | ||||||
By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION | ||||||
not in its individual capacity but solely as Lessor Manager | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
BROAD RIVER OL-3, LLC, | ||||||
as Owner Lessor and as Noteholder | ||||||
By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION | ||||||
not in its individual capacity but solely as Lessor Manager | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
BROAD RIVER OL-4, LLC, | ||||||
as Owner Lessor and as Noteholder | ||||||
By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION | ||||||
not in its individual capacity but solely as Lessor Manager | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
SBR OP-1 LLC, | ||||||
as Owner Participant | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
SBR OP-2 LLC, | ||||||
as Owner Participant | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
SBR OP-3 LLC, | ||||||
as Owner Participant | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
SBR OP-4 LLC, | ||||||
as Owner Participant | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
U.S. BANK NATIONAL ASSOCIATION, | ||||||
as Indenture Trustee | ||||||
by: | /s/ Pamela J. Wieder | |||||
Title: V.P. |
U.S. BANK NATIONAL ASSOCIATION, | ||||||
as Pass Through Trustee under each of the Pass Through Trust Agreements | ||||||
by: | /s/ Pamela J. Wieder | |||||
Title: V.P. |
BRSP, LLC, | ||||||
as Noteholder | ||||||
by: | /s/ Harold J. Schroeder | |||||
Title: Senior Vice President |
WELLS FARGO BANK NORTHWEST, | ||||||
NATIONAL ASSOCIATION, | ||||||
as Lessor Manager | ||||||
by: | /s/ Robert L. Reynolds | |||||
Title: Vice President |
1. | Participation Agreement (BR-1) | |||||
2. | Participation Agreement (BR-2) | |||||
3. | Participation Agreement (BR-3) | |||||
4. | Participation Agreement (BR-4) | |||||
5. | Assignment Agreement (BR-1) | |||||
6. | Assignment Agreement (BR-2) | |||||
7. | Assignment Agreement (BR-3) | |||||
8. | Assignment Agreement (BR-4) | |||||
9. | Facility Lease (BR-1) | |||||
10. | Facility Lease (BR-2) | |||||
11. | Facility Lease (BR-3) | |||||
12. | Facility Lease (BR-4) | |||||
13. | Facility Site Lease (BR-1) | |||||
14. | Facility Site Lease (BR-2) | |||||
15. | Facility Site Lease (BR-3) | |||||
16. | Facility Site Lease (BR-4) | |||||
17. | Springing Facility Site Lease (BR-1) | |||||
18. | Springing Facility Site Lease (BR-2) | |||||
19. | Springing Facility Site Lease (BR-3) | |||||
20. | Springing Facility Site Lease (BR-4) | |||||
21. | Springing Facility Site Sublease (BR-1) | |||||
22. | Springing Facility Site Sublease (BR-2) | |||||
23. | Springing Facility Site Sublease (BR-3) | |||||
24. | Springing Facility Site Sublease (BR-4) | |||||
25. | Pass Through Trust Agreement A | |||||
26. | Pass Through Trust Agreement B | |||||
27. | Tax Indemnity Agreement (BR-1) | |||||
28. | Tax Indemnity Agreement (BR-2) | |||||
29. | Tax Indemnity Agreement (BR-3) | |||||
30. | Tax Indemnity Agreement (BR-4) | |||||
31. | Tri-Party Agreement | |||||
32. | Certificate Purchase Agreement | |||||
33. | Ownership and Operation Agreement | |||||
34. | Collateral Trust Indenture (BR-1) | |||||
35. | Collateral Trust Indenture (BR-2) | |||||
36. | Collateral Trust Indenture (BR-3) | |||||
37. | Collateral Trust Indenture (BR-4) | |||||
38. | Lessor Notes | |||||
39. | Certificates | |||||
40. | Calpine Guaranty (BR-1) | |||||
41. | Calpine Guaranty (BR-2) | |||||
42. | Calpine Guaranty (BR-3) | |||||
43. | Calpine Guaranty (BR-4) | |||||
44. | OP Parent Guaranty (BR-1) | |||||
45. | OP Parent Guaranty (BR-2) | |||||
46. | OP Parent Guaranty (BR-3) | |||||
47. | OP Parent Guaranty (BR-4) |
1. | Letter Agreement regarding consent and waiver, dated September 30, 2003, among Calpine, South Point, Broad River, RockGen, U.S. Bank National Association, and each of the Broad River, South Point and RockGen Owner Participants and each of the Broad River, South Point and RockGen Owner Lessors | ||
2. | Letter Agreement, dated as of September 30, 2003, regarding certain waivers by each Facility Lessee of rights under 7.1 of the Participation Agreements, among Calpine, South Point, Broad River, RockGen, and each of the Broad River, South Point and RockGen Owner Participants and each of the Broad River, South Point and RockGen Owner Lessors | ||
3. | Agreement, dated as of September 30, 2003, among Calpine, South Point, Broad River, RockGen, and Newcourt Capital USA Inc. | ||
4. | Pledge and Security Agreement (BR-1), dated September 30, 2003, among Broad River Holdings, LLC, Calpine, Broad River and Broad River OL-1, LLC | ||
5. | Pledge and Security Agreement (BR-2), dated September 30, 2003, among Broad River Holdings, LLC, Calpine, Broad River and Broad River OL-2, LLC | ||
6. | Pledge and Security Agreement (BR-3), dated September 30, 2003, among Broad River Holdings, LLC, Calpine, Broad River and Broad River OL-3, LLC | ||
7. | Pledge and Security Agreement (BR-4), dated September 30, 2003, among Broad River Holdings, LLC, Calpine, Broad River and Broad River OL-4, LLC | ||
8. | Supplemental Indenture (BR-1), dated September 30, 2003, Broad River OL-1, LLC and U.S. Bank National Association | ||
9. | Supplemental Indenture (BR-2), dated September 30, 2003, Broad River OL-2, LLC and U.S. Bank National Association | ||
10. | Supplemental Indenture (BR-3), dated September 30, 2003, Broad River OL-3, LLC and U.S. Bank National Association | ||
11. | Supplemental Indenture (BR-4), dated September 30, 2003, Broad River OL-4, LLC and U.S. Bank National Association |
B-1-1
LESSOR NOTES SERIES [A][B]
NONRECOURSE PROMISSORY NOTE (BROAD RIVER-SETTLEMENT
AGREEMENT ADDITIONAL LESSOR NOTES) DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF MAY 30, [2012] [2019]
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
B-1-2
B-1-3
B-1-4
B-1-5
B-1-6
BROAD RIVER OL-[_], LLC | ||||||
a Delaware limited liability company, | ||||||
By: | Wells Fargo Bank Northwest, National Association, not in its individual capacity but solely as the Lessor Manager | |||||
By: | ||||||
Title: |
U.S. BANK NATIONAL ASSOCIATION, as successor in interest to STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity, but solely as the Indenture Trustee | ||||
Name: | ||||
Title: |
Insert Taxpayer Identification No. | ||
(Please print or typewrite name and address including zip code of assignee) | ||
the within Note and all rights thereunder, hereby irrevocably constituting and appointing | ||
attorney to transfer said Note on the books of the Issuer with full power of substitution in the premises. |
Date: | ||||||
(Signature of Transferor) | ||||||
NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
TO NOTE
Percentage of Principal | ||||
Regular Distribution Date | Amount Payable | |||
November 30, 2006 | 12.50000000 | % | ||
May 30, 2007 | 13.76811594 | % | ||
November 30, 2007 | 14.67391304 | % | ||
May 30, 2008 | 16.12318841 | % | ||
November 30, 2008 | 17.02898551 | % | ||
May 30, 2009 | 18.29710145 | % | ||
November 30, 2009 | 7.60869565 | % | ||
Total | 100.00000000 | % | ||
Operative Documents and Agreement Broad River
Percentage of Principal | ||||
Regular Distribution Date | Amount Payable | |||
November 30, 2006 | 0.00000000 | % | ||
May 30, 2007 | 0.00000000 | % | ||
November 30, 2007 | 0.00000000 | % | ||
May 30, 2008 | 0.00000000 | % | ||
November 30, 2008 | 0.00000000 | % | ||
May 30, 2009 | 0.00000000 | % | ||
November 30, 2009 | 0.00000000 | % | ||
May 30, 2010 | 0.00000000 | % | ||
November 30, 2010 | 0.00000000 | % | ||
May 30, 2011 | 0.00000000 | % | ||
November 30, 2011 | 0.00000000 | % | ||
May 30, 2012 | 0.00000000 | % | ||
November 30, 2012 | 0.00000000 | % | ||
May 30, 2013 | 0.00000000 | % | ||
November 30, 2013 | 0.00000000 | % | ||
May 30, 2014 | 0.00000000 | % | ||
November 30, 2014 | 0.00000000 | % | ||
May 30, 2015 | 0.00000000 | % | ||
November 30, 2015 | 0.00000000 | % | ||
May 30, 2016 | 0.00000000 | % | ||
November 30, 2016 | 0.00000000 | % | ||
May 30, 2017 | 0.00000000 | % | ||
November 30, 2017 | 0.00000000 | % | ||
May 30, 2018 | 0.00000000 | % | ||
November 30, 2018 | 0.00000000 | % | ||
May 30, 2019 | 100.00000000 | % | ||
Total | 100.00000000 | % | ||
Operative Documents and Agreement Broad River