exv10w2w6w5



 






Exhibit 10.2.6.5




AMENDMENT NO. 4 UNDER

CREDIT AND GUARANTEE AGREEMENT




     THIS AMENDMENT NO. 4 UNDER CREDIT AND GUARANTEE AGREEMENT (this “Amendment”) is made
as of the 15th day of March, 2006, by and among CALPINE CONSTRUCTION FINANCE COMPANY, L.P., a
Delaware limited partnership (the “Company”), CALPINE HERMISTON, LLC, a Delaware limited
liability company (“Calpine LLC”), CPN HERMISTON, LLC, a Delaware limited liability company
(“CPN LLC”), and HERMISTON POWER PARTNERSHIP, an Oregon general partnership (the
“Hermiston Partnership” and, together with Calpine LLC and CPN LLC, the
“Guarantors”), the lenders party hereto (the “Lenders”), and GOLDMAN SACHS CREDIT
PARTNERS L.P., as administrative agent (together with its successors in such capacity, the
“Administrative Agent”).



RECITALS




     WHEREAS, the Company, the Guarantors, the Lenders and the Administrative Agent entered into a
Credit and Guarantee Agreement, dated as of August 14, 2003 (as amended on September 12, 2003, on
January 13, 2004 and on March 5, 2004, and as may be further amended from time to time, the
“Credit Agreement”), pursuant to which the Company borrowed, on a non-recourse basis as
described in the Credit Agreement, $385,000,000 in aggregate principal amount of First Priority
Senior Secured Institutional Term Loans due 2009 (the “Term Loans”);



     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., 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, the Company (1) has asked that the Lenders waive certain specified Defaults and
Events of Default under the Credit Agreement related to the Proceeding (the “Waiver”) and
(2) has proposed to amend certain Sections of the Credit Agreement as provided herein (the
“Proposed Amendments”); and



     WHEREAS, the Company, the Guarantors, the Lenders and the Administrative Agent now wish to
amend the Credit Agreement in certain respects, as hereinafter provided.



AGREEMENT




     NOW THEREFORE, in consideration of the premises and the mutual agreements set forth, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:



     1. Definitions. Unless otherwise defined herein, capitalized terms used herein that
are not otherwise defined herein shall have the respective meanings assigned to such terms in the
Credit Agreement.



 









 





     2. Amendments. Section 7.01 (Events of Default) of the Credit Agreement is hereby
amended as follows:



          a. by deleting the “and” at the end of paragraph (i) of such Section;




          b. by inserting the words “except as set forth in paragraph (k) below,” at the beginning of
paragraph (i) of such Section;




          c. by deleting the period and adding “; and” at the end of paragraph (j) of such Section; and




          d. by adding the following new paragraph (k) after paragraph (j) of such Section:





“(k) Calpine Energy Services, L.P. shall file a motion, pursuant to Section 365(a)
of the United States Bankruptcy Code, to reject the Index Based Gas Sale and Power
Purchase Agreement dated as of August 14, 2003, as amended, in its Chapter 11
bankruptcy case, which is jointly administered under In re Calpine Corporation, et
al., Case No. 05-60200 (BRL) in the United States Bankruptcy Court for the Southern
District of New York.”



     3. Representations and Warranties. The Company and each Guarantor hereby represents
and warrants to each Lender and the Administrative Agent that (a) this Amendment has been duly
authorized, executed and delivered by the Company 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
general applicability relating to or affecting creditors’ rights and to general equity principles;
and (b) the execution and delivery of this Amendment (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 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 or Guarantor, as
applicable, is a party or by which the Company or Guarantor, as applicable, is bound.



     4. Conditions. The effectiveness of Section 2 of this Amendment is subject to
the satisfaction of the following conditions precedent (unless specifically waived in writing by
the Requisite Lenders):



          a. the Company and the Guarantors named as signatories hereto and the Requisite Lenders shall
have executed and delivered to the Administrative Agent their respective counterparts of this
Amendment;




          b. an amendment set forth in a Supplemental Indenture under the Indenture (in form and
substance reasonably acceptable to the Administrative Agent) agreed to by the Holders of Notes
shall have become effective concurrently with this Amendment; and




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          c. the Waiver shall have become effective concurrently with this Amendment.




     5. Continuing Effect of the Credit Agreement. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Company or
the Guarantors under the Credit Agreement and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement, 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 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 Credit Agreement in similar or different
circumstances. This Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein. After this Amendment becomes effective in
accordance with Section 4 hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended and modified hereby.



     6. Applicable Law. This Amendment 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.



     7. Counterparts. This Amendment 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 Amendment by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.



     8. Headings. Headings herein are include herein for convenience of reference only and
shall not constitute a part hereof for any other purpose or be given any substantive effect.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their respective officers thereunto duly authorized as of the date first written above.



	 	 	 	 	 	 	 
	 	 	CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CALPINE HERMISTON, LLC
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CPN HERMISTON, LLC
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	HERMISTON POWER PARTNERSHIP
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent, Sole Lead Arranger,

Syndication Agent and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Stephen King	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Stephen King	 	 
	 

	 	 	 	Title: Authorized Signatory