exv4w13w6



 






Exhibit 4.13.6




WAIVER AGREEMENT




Dated as of March 15, 2006




among




CALPINE CONSTRUCTION FINANCE COMPANY, L.P.




CCFC FINANCE CORP.




THE GUARANTORS NAMED HEREIN




and




WILMINGTON TRUST FSB,




as Trustee




Relating to the Indenture

Dated as of August 14, 2003

and

Amended as of September 18, 2003, January 14, 2004 and March 5, 2004





 









 








          WAIVER AGREEMENT UNDER INDENTURE, dated as of March 15, 2006 (the “Waiver Agreement”),
among Calpine Construction Finance Company, L.P., a Delaware limited partnership (the “Company”),
CCFC Finance Corp., a Delaware corporation (“Finance Corp.”), the Guarantors and Wilmington
Trust FSB, as trustee (the “Trustee”).




          WHEREAS, the Company, Finance Corp., the Guarantors and the Trustee have executed that certain
Indenture, dated as of August 14, 2003, as supplemented by that certain Supplemental Indenture,
dated as of September 18, 2003, and as further supplemented by that certain Second Supplemental
Indenture, dated as of January 14, 2004, and as further supplemented by that certain Third
Supplemental Indenture, dated as of March 5, 2004 (as supplemented, the “Indenture”), in
connection with the co-issuance by the Company and Finance Corp. of certain Second Priority Senior
Secured Floating Rate Notes due 2011 (the “Notes”);




          WHEREAS, on December 20, 2005, Calpine Corporation (“Calpine”) and certain of its
controlled subsidiaries, including, among others, Calpine Operating Services Company, Inc. and
Calpine Energy Services, L.P. (“CES”), filed a voluntary proceeding for relief under
Chapter 11 of the United States Bankruptcy Code with the United States Bankruptcy Court for the
Southern District of New York (the “Proceeding”);




          WHEREAS, as permitted under the Indenture, the Company used net proceeds of approximately
$212.0 million to prepay for gas under the Index Based Gas Sale and Power Purchase Agreement dated
as of August 14, 2003, as amended (the “PPA”);




          WHEREAS, ordinarily under the PPA, the cost of gas consumed by the Company’s facilities is
offset against the cost of power generated by the facilities, with CES paying the Company only the
net amount due; however due to the prepayment, CES was obligated for a period of time to pay full
cost for the power under the PPA, without offset;




          WHEREAS, certain defaults, including CES payment defaults relating to periods prior to
December 20, 2005, have occurred under the PPA, which is a Major Project Document, as the result of
the filing of the Proceeding, and such defaults, in turn, constitute Defaults which have become
Events of Default (the “Proceeding-Related Defaults”);




          WHEREAS, CES failed to pay to the Company under the PPA approximately $24.4 million due on
January 25, 2006 (the “January PPA Payment”) and approximately $61.8 million due on
February 27, 2006 (the “February PPA Payment”), both of which relate to periods following
the filing of the Proceeding;




          WHEREAS, the failure by CES to timely make each of the January PPA Payment and the February
PPA Payment constitutes a Default, and such Defaults have not as of the date hereof become Events
of Default (the “PPA Payment Defaults,” and together with the Proceeding-Related Defaults,
the “Specified Defaults”);




          WHEREAS, pursuant to a consent solicitation commenced as of February 22, 2006 and amended and
restated as of March 10, 2006 (the “Solicitation”), the Company and Finance Corp. have requested
that the Holders consent to a waiver of the Specified Defaults (the “Waiver”), which will
also have the effect of permitting the Company to distribute Excess Cash




 









 







Flow to the direct and indirect holders of its Equity Interests in accordance with Section
4.07 of the Indenture;




          WHEREAS, pursuant to Section 6.04 and 9.02 of the Indenture, the Holders of at least a
majority in aggregate principal amount of the Notes have consented to the Waiver; and




          WHEREAS, the Company and Finance Corp. have directed the Trustee to execute and deliver this
Waiver Agreement in accordance with the terms of the Indenture.




          NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained,
the Company, Finance Corp., the Guarantors and the Trustee agree as follows:




ARTICLE I

DEFINITIONS




          Section 1.1 Definition of Terms.




          Unless the context otherwise requires, capitalized terms used herein that are not otherwise
defined herein shall have the meaning assigned to such terms in the Indenture.




ARTICLE II

WAIVER OF SPECIFIED DEFAULTS




          Section 2.1 Waiver.




          (a) Upon the satisfaction of the conditions set forth in Section 2.4 of this Waiver Agreement,
the Holders, pursuant to Section 6.04 of the Indenture, hereby waive application of Section
6.01(11) of the Indenture solely to the extent applicable to any Specified Default, such Waiver
being effective on the first date that all of the conditions set forth in Section 2.4 of this
Waiver Agreement shall have been satisfied (the “Waiver Effective Date”).
(b) Except for the Waiver expressly set forth above in subsection (a), the Holders reserve each
and every right and remedy they may have under the Indenture and under applicable law with respect
to any Default or Event of Default.




          Section 2.2  Distributions. The Holders, the Company, Finance Corp. and the
Guarantors acknowledge (a) that within two Business Days of the Waiver Effective Date (i) an
amount not to exceed $16.0 million may be distributed out of Excess Cash Flow on account of the
Company’s Equity Interests (to enable CCFC Preferred Holdings, LLC, the indirect parent of the
Company, to pay a semi-annual dividend to the holders of its redeemable preferred shares) in
accordance with Section 4.07 of the Indenture, and (ii) notwithstanding the Company’s right under
Section 4.07 of the Indenture (after giving effect to this Waiver Agreement) to distribute
additional Excess Cash Flow on account of the Company’s Equity Interests, in addition to the amount
referred to in (i) above, the Company shall not so distribute more than $2.0 million in the
aggregate in Excess Cash Flow on such date and such distributed amount shall be primarily for the
purpose of reimbursement of legal expenses incurred by the holders of the Company’s Equity
Interests and otherwise for administrative fees related to the issuance of the redeemable preferred
shares of CCFC Preferred Holdings, LLC, (b) that prior to August 26, 2006, the Company shall




2









 







not make any distribution, dividend or other payment to or on account of the Company’s Equity
Interests and (c) that in the event that, by August 26, 2006, the PPA shall not have been assumed
pursuant to Section 365 of the Bankruptcy Code (as defined below) in the Proceeding, or amended or
replaced in accordance with the terms of the Indenture, including, without limitation, with the
consent of Holders of at least a majority in aggregate principal amount of the Notes, then
notwithstanding the Company’s right, if any, under Section 4.07 of the Indenture to distribute
Excess Cash Flow on account of the Company’s Equity Interests on such date, the Company shall not
so distribute Excess Cash Flow in an amount exceeding the lesser of (x) the sum of (i) the amount
sufficient to enable CCFC Preferred Holdings, LLC to pay the semi-annual dividend to the holders of
its redeemable preferred shares due on such date, and (ii) up to $2.5 million for the purpose of
paying expenses of CCFC Preferred Holdings, LLC, and (y) an amount that would result in the Company
retaining at least $25.0 million in cash or cash equivalents on hand immediately following such
distribution.




          Section 2.3  Agreement to File Proof of Claim and Motion for Administrative Expense.
Following the Waiver Effective Date, the Company shall timely file a proof of claim against CES in
the Proceeding for the amounts owed to the Company by CES under the PPA. To the extent that any
amounts remain due and owing by CES under the PPA for post-petition goods or services, the Company
shall file in the Proceeding a motion seeking allowance of such amounts as administrative expenses
under 11 U.S.C. §503(b) or shall obtain the entry of a Stipulation and Agreed Order providing for
the allowance of such amounts as administrative expenses under 11 U.S.C. §503(b).




          Section 2.4  Conditions. The effectiveness of Section 2.1(a) of this Waiver Agreement
is subject to the satisfaction of the following conditions precedent:




          (a) Holders of at least a majority in aggregate principal amount of the Notes shall have
consented to this Waiver, and the Company, Finance Corp., and the Guarantors named as signatories
hereto and the Trustee shall have executed and delivered their respective counterparts of this
Waiver Agreement;




          (b) the Company shall have paid current principal and interest (at the rate set forth in
Section 1 of the Notes) required under the Notes on the February 27, 2006 payment date prior to the
payment of any other amounts due on such payment date, including amounts due pursuant to Section
2.2 of this Waiver Agreement; provided, that the Company shall be permitted to make, concurrently
with the payments of current principal and interest on the Notes, payments of current principal and
interest on the Term Loans under the Term Loan Agreement;




          (c) the Company shall have paid to the Trustee, in cash or other immediately available funds,
reimbursement of all outstanding fees and expenses of the Trustee owing under Section 7.07 of the
Indenture as well as all other fees owing to the Trustee arising under this Waiver Agreement, the
Indenture or any other agreement; and




          (d) a waiver agreement (in form and substance reasonably acceptable to the Trustee) with the
Lenders under (and as defined in) the Term Loan Agreement shall have been negotiated and shall
become effective concurrently with this Waiver Agreement, provided, that any conditions to
effectiveness or consideration made available to such Lenders for such




3









 







agreement shall be made available to the Holders as conditions to effectiveness of, or as
consideration for, this Waiver Agreement;




          (e) the amendment to the Indenture set forth in the Fourth Supplemental Indenture, dated
concurrently herewith, among the Company, Finance Corp., the Guarantors and the Trustee attached as
Exhibit I hereto shall become effective concurrently with this Agreement;




          (f) an amendment of the Credit Agreement in the form attached as Exhibit II hereto shall
become effective concurrently with this Agreement;




          (g) the Company shall have paid the Consent Payment to each Consenting Holder (as such terms
are defined in the Solicitation); and




          (h) the conditions specified in the Indenture which are applicable to this Waiver Agreement
shall have been satisfied.




          Section 2.5 Commencement of a Case under the Bankruptcy Code; Adequate Protection.
The Company, Finance Corp. and the Guarantors admit, acknowledge, agree and affirm that in the
event a case is commenced by or against any of the Company, Finance Corp. or the Guarantors
pursuant to the Bankruptcy Code, sufficient adequate protection rights for the Trustee and the
Holders in respect of their claims arising from the Obligations under the Indenture (the
“Second Lien Obligations”) shall consist of rights that are, in the reasonable opinion of
the Trustee, not less favorable than (i) replacement liens on the current and future property of
the Borrower and the Guarantors to the same extent, scope and priority as existed before the filing
of a case under the Bankruptcy Code, (ii) priority status under section 507(b) of the Bankruptcy
Code junior only to the rights of the holders of Priority Lien Obligations and to the carve out for
professional fees and United States trustee fees, (iii) accrual of post-petition interest on all
Second Lien Obligations at the Applicable Note Eurodollar Rate set forth in Section (1) of
the Notes (or such higher rate as is sufficient to adequately protect the claims of the Trustee and
the Holders),which interest shall accrue and be capitalized monthly as additional principal due and
owing under the Indenture, and (iv) the monthly and other payment of the fees and expenses of the
Trustee including all fees and expenses of attorneys and financial advisors and including, without
limitation, all fees and expenses provided for in this Agreement and in Section 7.07 of
the Indenture, provided, that in the event that any other holder of a claim is provided adequate
protection rights on terms more favorable than those described in this Section 5, such
terms shall be made available to the Trustee and the Holders.




          Section 2.6 Representations and Warranties. The Company, Finance Corp. and each
Guarantor hereby represents and warrants to the Trustee that (a) this Waiver Agreement has been
duly authorized, executed and delivered by the Company , Finance Corp. or Guarantor, as applicable,
and constitutes its valid and legally binding obligation, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of generally applicability relating to or affecting creditors’ rights and to general
equity principles; (b) the execution and delivery of this Waiver Agreement (i) does not require any
consent, approval, authorization or order of, or filing with, any governmental agency or body or
any court, except such as have been obtained or made and are in full force and effect as of the
date hereof and (ii) will not violate any applicable law or regulation




4









 







or the charter, by laws or other organizational documents of the Company or Guarantor, as
applicable, or any order of any governmental agency or body, or breach or conflict with any
material agreement to which the Company, Finance Corp. or Guarantor, as applicable, is a party or
by which the Company, Finance Corp. or Guarantor, as applicable, is bound; and (c) except for the
Specified Defaults, no Default or Event of Default under the Indenture exists and is continuing.




ARTICLE III

MISCELLANEOUS




          Section 3.1 Interpretation.




          This Waiver Agreement shall become effective on the Waiver Effective Date and shall bind every
Holder. After the Waiver Effective Date, the Indenture shall be modified and amended in accordance
with this Waiver Agreement, and all the terms and conditions of both shall be read together as
though they constitute one instrument, except that, in case of conflict, the provisions of this
Waiver Agreement will control. The Indenture, as modified by this Waiver Agreement, is hereby
ratified and confirmed in all respects and shall bind every Holder. In case of conflict between the
terms and conditions contained in the Notes and those contained in the Indenture, as modified and
amended by this Waiver Agreement, the provisions of the Indenture, as modified and amended by this
Waiver Agreement, shall control.




          Section 3.2 The Trustee.




          The Trustee shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Waiver Agreement or for or in respect of the recitals contained
herein, all of which are made solely by the Company and Finance Corp.




          Section 3.3 Certain Duties and Responsibilities of the Trustee.




          In entering into this Waiver Agreement, the Trustee shall be entitled to the benefit of every
provision of the Indenture relating to the conduct or affecting the liability or affording
protection to the Trustee, whether or not elsewhere herein so provided.




          Section 3.4 Ratification and Release.




          (a) The Company, Finance Corp. and each Guarantor party hereto hereby (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or otherwise, and each grant
of security interests and liens in favor or for the benefit of the Trustee or the Holders, as the
case may be, under each Note Document, (ii) agrees and acknowledges that the liens in favor or for
the benefit of the Trustee and the Holders under each Note Document constitute valid, binding,
enforceable and perfected first priority liens and security interests and are not subject to
avoidance, disallowance or subordination pursuant to Title 11 of the United States Code (the
“Bankruptcy Code”) or applicable non-bankruptcy law (except to the extent they are subject
to the rights of the holders of Priority Lien Obligations), (iii) agrees and acknowledges that the
Second Lien Obligations constitute legal, valid and binding obligations of each of the Borrowers
and Guarantors and that (x) no offsets, defenses or counterclaims to the Second Lien Obligations
exist and (y) no portion of the Second Lien Obligations is subject to




5









 







avoidance, disallowance, reduction or subordination pursuant to Bankruptcy Code or applicable
non-bankruptcy law (except to the extent they are subject to the rights of the holders of Priority
Lien Obligations), (iv) agrees and acknowledges that such ratification and reaffirmation is not a
condition to the continued effectiveness of the Note Documents, and (v) agrees that neither such
ratification and reaffirmation, nor the Trustee’s nor any Holders’ solicitation of such
ratification and reaffirmation, constitutes a course of dealing giving rise to any obligation or
condition requiring a similar or any other ratification or reaffirmation from each party to the
Indenture with respect to any subsequent modifications, consent or waiver with respect to the
Indenture or other Note Documents. The Indenture and each other Note Document is in all respects
hereby ratified and confirmed and, except as set forth in Section 2.1(a) of this Agreement,
neither the execution, delivery nor effectiveness of this Agreement shall operate as a waiver of
any Default or Event of Default (whether or not known to the Trustee or any Holder) or any right,
power or remedy of the Trustee or any Holder of any provision contained in the Indenture or any
other Note Document, whether as a result of any Default or Event of Default or otherwise.




          (b) The Company, Finance Corp. and each Guarantor party hereto hereby acknowledges and
confirms that (i) it does not have any grounds, and hereby agrees not to challenge (or to allege or
to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts
or omissions of the Trustee or any of the Holders occurring prior to the date hereof or facts
otherwise known to it as of the date hereof, the effectiveness, genuineness, validity,
collectibility or enforceability of the Indenture or any of the other Note Documents, the Second
Lien Obligations, the Liens securing the Second Lien Obligations, or any of the terms or conditions
of any Term Loan Document and (ii) it does not possess (and hereby forever waives, remises,
releases, discharges and holds harmless the Holders, the Trustee and their respective affiliates,
stockholders, directors, officers, employees, attorneys, agents and representatives and each of
their respective heirs, executors, administrators, successors and assigns (collectively, the
“Indemnified Parties”) from and against, and agrees not to allege or pursue) any action,
cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition,
or other right of action whatsoever, whether in law, equity or otherwise (which it, all those
claiming by, through or under it, or its successors or assigns, have or may have) against the
Indemnified Parties, or any of them, by reason of, any matter, cause or thing whatsoever, with
respect to events or omissions occurring or arising on or prior to the date hereof and relating to
the Indenture or any of the other Note Documents (including, without limitation, with respect to
the payment, performance, validity or enforceability of the Second Lien Obligations, the Liens
securing the Second Lien Obligations or any or all of the terms or conditions of any Note Document)
or any transaction relating thereto.




          Section 3.5  Continuing Effect of the Indenture. Except as expressly set forth
herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of,
or otherwise affect the rights and remedies of the Holders, the Trustee, the Company, Finance Corp.
or the Guarantors under the Indenture and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the Indenture, all of
which are ratified and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle the Company, Finance Corp. or the Guarantors to a consent
to, or a waiver, amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Indenture in similar or different
circumstances. This Agreement shall apply and be effective only with respect to the




6









 







provisions of the Indenture specifically referred to herein. After the Waiver Effective Date,
any reference to the Indenture shall mean the Indenture as amended and modified hereby.




          Section 3.6 Counterparts.




          This Waiver Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. The delivery of an executed signature of this Waiver
Agreement by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.




          Section 3.7 Applicable Law.




          This Waiver Agreement and the right and obligations of the parties hereunder shall be governed
by, and shall be construed and enforced in accordance with, the laws of the State of New York.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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          IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to be duly executed
as of the day and year first above written.




	 	 	 	 	 	 	 
	 	 	CALPINE CONSTRUCTION FINANCE COMPANY,	 	 
	 

	 	L.P.	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 

Name: Zamir Rauf
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CCFC FINANCE CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CALPINE HERMISTON, LLC, as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CPN HERMISTON, LLC, as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	HERMISTON POWER PARTNERSHIP, as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Calpine Hermiston, LLC, its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST FSB, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Donald G. MacKelcan	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Donald G. MacKelcan	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






 









 






EXHIBIT I




[Form of Fourth Supplemental Indenture]




 









 








EXHIBIT II





[Form of Amendment Under Credit and Guarantee Agreement]