Exhibit 4.22.7
EXECUTION COPY
PARTICIPATION AGREEMENT (BR-1)
Dated as of October 18, 2001
among
BROAD RIVER ENERGY LLC, as Facility Lessee,
BROAD RIVER OL-1, LLC, as Owner Lessor,
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its individual
capacity, except as expressly provided herein, but solely as Lessor Manager,
CALPINE CORPORATION, as Guarantor,
SBR OP-1, LLC, as Owner Participant,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
not in its individual capacity, except
as expressly provided herein, but solely
as Indenture Trustee, and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
not in its individual capacity, except
as expressly provided herein, but solely
as Pass Through Trustees
BROAD RIVER PROJECT
===============================================================================
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TABLE OF CONTENTS
PAGE
SECTION 1.DEFINITIONS;INTERPRETATION OF THIS PARTICIPATION AGREEMENT ..................................................... 3
SECTION 2.PARTICIPATION; CLOSING DATE; TRANSACTION COSTS ................................................................. 3
Section 2.1 Agreements to Participate ............................................................................. 3
Section 2.2 Closing Date; Procedure for Participation. ............................................................ 4
Section 2.3 Transaction Costs. .................................................................................... 6
SECTION 3. REPRESENTATIONS AND WARRANTIES ................................................................................ 6
Section 3.1 Representations and Warranties of the Facility Lessee ................................................. 6
Section 3.2 Representations and Warranties of the Owner Lessor .................................................... 17
Section 3.3 Representations and Warranties of the Lessor Manager and the Trust Company ............................ 18
Section 3.4 Representations and Warranties of the Owner Participant ............................................... 20
Section 3.5 Representations and Warranties of Indenture Trustee and the Lease Indenture Company ................... 22
Section 3.6 Representations, Warranties and Covenants of the Pass Through Trustees and the Pass Through
Company .............................................................................................. 24
SECTION 4. CLOSING CONDITIONS ............................................................................................ 25
Section 4.1 Completion of the Facility ............................................................................ 27
Section 4.2 Operative Documents ................................................................................... 27
Section 4.3 Certificates and the Lessor Notes ..................................................................... 27
Section 4.4 Equity Investment ..................................................................................... 27
Section 4.5 Organizational Documents .............................................................................. 27
Section 4.6 Representations and Warranties ........................................................................ 27
Section 4.7 Defaults, Events of Default, Events of Loss ........................................................... 27
Section 4.8 Regulatory Approvals .................................................................................. 27
Section 4.9 Consents .............................................................................................. 28
Section 4.10 Governmental Actions .................................................................................. 29
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TABLE OF CONTENTS (continued)
PAGE
Section 4.11 Insurance ............................................................................................. 29
Section 4.12 Ratings ............................................................................................... 29
Section 4.13 Environmental Report .................................................................................. 29
Section 4.14 Surveys ............................................................................................... 29
Section 4.15 Appraisal; Condition of the Facility .................................................................. 29
Section 4.16 Letter from the Appraiser ............................................................................. 29
Section 4.17 Other Reports ......................................................................................... 30
Section 4.18 Opinion with Respect to Certain Tax Aspects ........................................................... 30
Section 4.19 Opinions of Counsel ................................................................................... 30
Section 4.20 Recordings and Filings ................................................................................ 30
Section 4.21 Conditions to Closing ................................................................................. 30
Section 4.22 Taxes ................................................................................................. 30
Section 4.23 No Changes in Applicable Law .......................................................................... 31
Section 4.24 Registered Agent for the Facility Lessee and the Owner Lessor ......................................... 31
Section 4.25 Operating Lease Treatment ............................................................................. 31
Section 4.26 Rent Adjustments ...................................................................................... 31
Section 4.27 Title Insurance ....................................................................................... 31
Section 4.28 Parent Guaranty ....................................................................................... 31
Section 4.29 Letter as to Number of Offerees ....................................................................... 31
Section 4.30 Lien Search ........................................................................................... 32
Section 4.31 Litigation ............................................................................................ 32
Section 4.32 No Material Adverse Change ............................................................................ 32
Section 4.33 Private Placement Number .............................................................................. 32
Section 4.34 Proceedings and Documents ............................................................................. 32
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TABLE OF CONTENTS (continued)
PAGE
Section 4.35 No Proposed Tax Law Change ............................................................................ 32
Section 4.36 Payment of Fees and Expenses .......................................................................... 32
Section 4.37 Corrective Ordinance .................................................................................. 32
SECTION 5.COVENANTS OF FACILITY LESSEE AND GUARANTOR ..................................................................... 33
Section 5.1 Maintenance of Existence .............................................................................. 33
Section 5.2 Merger, Consolidation, Sale of Substantially All Assets ............................................... 33
Section 5.3 Guaranty and Contingent Obligations ................................................................... 33
Section 5.4 Assignment of Rights .................................................................................. 34
Section 5.5 Lessor Manager Fees ................................................................................... 34
Section 5.6 Conduct of Business, Properties, Etc. ................................................................. 34
Section 5.7 Obligations ........................................................................................... 34
Section 5.8 Books, Records, Access ................................................................................ 34
Section 5.9 Other Information. .................................................................................... 35
Section 5.10 Warranty of Title to Facility Site. ................................................................... 35
Section 5.11 ERISA ................................................................................................. 36
Section 5.12 Certain Contracts and Agreements ...................................................................... 36
Section 5.13 Certain Costs ......................................................................................... 36
Section 5.14 Limitations on Liens .................................................................................. 37
Section 5.15 Investments ........................................................................................... 37
Section 5.16 Intentionally Deleted ................................................................................. 37
Section 5.17 Regulations ........................................................................................... 37
Section 5.18 Partnerships .......................................................................................... 37
Section 5.19 Dissolution ........................................................................................... 37
Section 5.20 Termination of Operative Documents; Delegation of Authority. .......................................... 37
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TABLE OF CONTENTS (continued)
PAGE
Section 5.21 Name and Location ..................................................................................... 39
Section 5.22 Use of Facility Site .................................................................................. 39
Section 5.23 Abandonment of Facility ............................................................................... 39
Section 5.24 Taxes, Other Government Charges and Utility Charges ................................................... 39
Section 5.25 Compliance with Laws, Instruments, Etc. ............................................................... 39
Section 5.26 PUHCA ................................................................................................. 40
Section 5.27 Further Assurances .................................................................................... 40
Section 5.28 No Subsidiaries ....................................................................................... 41
Section 5.29 Permitted Business .................................................................................... 41
Section 5.30 Support Arrangements .................................................................................. 41
Section 5.31 Insurance ............................................................................................. 41
Section 5.32 Tax Status ............................................................................................ 41
Section 5.33 Transmission Assets. .................................................................................. 42
SECTION 6.COVENANTSOF THE OWNER LESSOR, THE TRUST COMPANY AND THE LESSOR MANAGER ......................................... 42
Section 6.1 Compliance with the LLC Agreement ..................................................................... 42
Section 6.2 Owner Lessor's Liens .................................................................................. 43
Section 6.3 Amendments to Operative Documents ..................................................................... 43
Section 6.4 Transfer of the Owner Lessor's Interest ............................................................... 43
Section 6.5 Owner Lessor; Lessor Estate ........................................................................... 43
Section 6.6 Limitation on Indebtedness and Actions ................................................................ 43
Section 6.7 Change of Location .................................................................................... 43
Section 6.8 Bankruptcy of Owner Lessor. ........................................................................... 43
SECTION 7. COVENANTS OF THE OWNER PARTICIPANT ............................................................................ 44
Section 7.1 Restrictions on Transfer of Member Interest. .......................................................... 44
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TABLE OF CONTENTS (continued)
PAGE
Section 7.2 Owner Participant's Liens ............................................................................. 46
Section 7.3 Amendments or Revocation of LLC Agreement ............................................................. 46
Section 7.4 Bankruptcy Filings .................................................................................... 46
Section 7.5 Instructions .......................................................................................... 47
Section 7.6 Right of First Refusal ................................................................................ 47
Section 7.7 Prohibition on Fundamental Changes .................................................................... 47
Section 7.8 Appointment of Successor Lessor Manager ............................................................... 49
Section 7.9 Cooperation ........................................................................................... 49
SECTION 8. COVENANTS OF THE INDENTURE TRUSTEE AND THE PASS THROUGH TRUSTEES .............................................. 49
Section 8.1 Indenture Trustee's Liens ............................................................................. 49
Section 8.2 Pass Through Trustees' Covenant Not to Transfer Lessor Notes .......................................... 50
SECTION 9.INDEMNIFICATION ................................................................................................ 50
Section 9.1 General Indemnity. .................................................................................... 50
Section 9.2 General Tax Indemnity. ................................................................................ 57
SECTION 10. FACILITY LESSEE'S RIGHT OF QUIET ENJOYMENT ................................................................... 66
SECTION 11. SUPPLEMENTAL FINANCING IMPROVEMENTS; OPTIONAL REFINANCINGS ................................................... 66
Section 11.1 Financing Improvements ................................................................................ 66
Section 11.2 Optional Refinancing of Lease Debt .................................................................... 68
Section 11.3 Cooperation ........................................................................................... 69
SECTION 12 CERTAIN ADJUSTMENTS TO PERIODIC RENT, TERMINATION VALUE AND OTHER AMOUNTS ..................................... 69
SECTION 13TRANSFER OF THE FACILITY LESSEE OWNERSHIP; SPECIAL LESSEE TRANSFERS ............................................ 70
Section 13.1 Transfer of the Facility Lessee Ownership. ............................................................ 70
Section 13.2 Special Facility Lessee Transfers ..................................................................... 72
SECTION 14. OWNER LESSOR'S EXERCISE OF PURCHASE OPTIONS .................................................................. 73
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TABLE OF CONTENTS (continued)
PAGE
SECTION 15. MISCELLANEOUS ................................................................................................ 75
Section 15.1 Consents; Cooperation ................................................................................. 75
Section 15.2 Successor Owner Lessor ................................................................................ 75
Section 15.3 Bankruptcy of Lessor Estate ........................................................................... 75
Section 15.4 Amendments and Waivers ................................................................................ 75
Section 15.5 Notices ............................................................................................... 75
Section 15.6 Survival .............................................................................................. 80
Section 15.7 Successors and Assigns ................................................................................ 80
Section 15.8 Business Day .......................................................................................... 80
Section 15.9 Governing Law ......................................................................................... 80
Section 15.10 Severability .......................................................................................... 80
Section 15.11 Counterparts .......................................................................................... 80
Section 15.12 Headings and Table of Contents ........................................................................ 81
Section 15.13 Limitation of Libi1ility .............................................................................. 81
Section 15.14 Consent to Jurisdiction; Waiver of Trial by Jury; Process Agent. ...................................... 82
Section 15.15 Further Assurances .................................................................................... 83
Section 15.16 Effectiveness ......................................................................................... 83
Section 15.17 Measuring Life ........................................................................................ 83
Section 15.18 No Partnership, Etc. .................................................................................. 83
Section 15.19 Entire Agreement ...................................................................................... 83
Section 15.20 Public Utility Regulation ............................................................................. 84
Section 15.21 Confidentiality of Information ........................................................................ 84
Section 15.22 Reliance .............................................................................................. 85
Section 15.23 Amendments, Etc. ...................................................................................... 85
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TABLE OF CONTENTS (continued)
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vii
APPENDICES:
Appendix A Definitions and Rules of Interpretation
SCHEDULES:
Schedule 1-A Equity Investment
Schedule 1-B Indenture Trustee's Account
Schedule 1-C Owner Participant's Account
Schedule 2 Pricing Assumptions
Schedule 3.1(h) Post-FILOT Lease Recordings, Filings and Notifications
Schedule 3.1(m) Environmental Matters - Hazardous Substances
Schedule 4.20 Recording and Filings
Schedule 5.31 Maintenance of Insurance
EXHIBITS:
Exhibit A Description of Facility
Exhibit B Form of Assignment Agreement (BR-1)
Exhibit C Form of Facility Lease Agreement
Exhibit D Form of Facility Site Lease
Exhibit E Intentionally Omitted
Exhibit F Form of Pass Through Trust Agreement
Exhibit G Form of OP Parent Guaranty
Exhibit H Form of Calpine Guaranty
Exhibit I Form of Collateral Trust Indenture
Exhibit J Form of OP Assignment and Assumption Agreement
Exhibit K List of Competitors
Exhibit L Form of Guarantor Assignment and Assumption Agreement
Exhibit M Form of Springing Facility Site Lease
Exhibit N Form of Springing Facility Site Sublease
Exhibit O Forms of Consents
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PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT, dated as of October 18, 2001 (as
amended, supplemented or otherwise modified from time to time, in
accordance with the provisions hereof, this "Participation Agreement" or
this "Agreement"), among (i) BROAD RIVER ENERGY LLC (herein, together with
its successors and permitted assigns, called the "Facility Lessee"), a
limited liability company organized under the laws of the State of
Delaware, (ii) CALPINE CORPORATION, a Delaware corporation, as Guarantor
(together with its successors and permitted assigns, the "Guarantor")
under the Calpine Guaranty (BR-1), (the "Calpine Guaranty"), (iii) BROAD
RIVER OL-1, LLC, a Delaware limited liability company (the "Owner
Lessor"), (iv) SBR OP-1, LLC, a Delaware limited liability company
(herein, together with its successors and permitted assigns, called the
"Owner Participant"), (v) STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, not in its
individual capacity, except as expressly provided herein, but solely as
trustee under the Collateral Trust Indenture (herein in its capacity as
trustee under the Collateral Trust Indenture, together with its successors
and permitted assigns, called the "Indenture Trustee", and herein in its
individual capacity, together with its successors and permitted assigns,
called the "Lease Indenture Company"), (vi) STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States,
not in its individual capacity, except as expressly provided herein, but
solely as trustee under each of the Pass Through Trust Agreements (herein
in its capacity as trustee under the Pass Through Trust Agreements, the
"Pass Through Trustees", and herein in its individual capacity, together
with its successors and permitted assigns, the "Pass Through Company"),
and (vii) ▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United
States, not in its individual capacity except as expressly provided
herein, but solely as independent manager under the LLC Agreement (herein
in its capacity as independent manager under the LLC Agreement, together
with its successors and permitted assigns, called the "Lessor Manager",
and herein in its individual capacity, together with its successors and
permitted assigns, called the "Trust Company").
WITNESSETH:
WHEREAS, in March, 2000, the County and the Facility Lessee
entered into a fee-in-lieu of taxes transaction, pursuant to which the Facility
Lessee conveyed to the County, and the County leased back to the Facility
Lessee, pursuant to the FILOT Lease, a 850 MW gas-fired simple cycle merchant
power plant located near Gaffney, South Carolina, owned by the County and more
fully described in Exhibit A hereto ("Facility");
WHEREAS, Facility Lessee desires to assign and transfer to the
Owner Lessor the Undivided Interest and the Ground Interest pursuant to the
Assignment Agreement;
WHEREAS, the Owner Participant desires to cause the Owner
Lessor to acquire and accept such assignment and transfer of the Undivided
Interest and the Ground Interest from the Facility Lessee pursuant to the
Assignment Agreement, and to lease the Undivided Interest (excluding the
Facility Purchase Option) and the Ground Interest (excluding the Land Purchase
Option) to the Facility Lessee pursuant to the Facility Lease and the Facility
Site Lease, respectively;
WHEREAS, the Facility Lessee desires to sublease the Undivided
Interest (excluding the Facility Purchase Option) and lease the Ground Interest
(excluding the Land Purchase Option) from the Owner Lessor pursuant to the
Facility Lease and the Facility Site Lease, respectively;
WHEREAS, on the Closing Date, the Facility Lessee has executed
(i) a Springing Facility Site Lease (pursuant to which, upon the Post-FILOT
Lease Conversion Date, the Springing Facility Site Lease shall become effective
and the Facility Lessee shall lease the Ground Interest to the Owner Lessor
pursuant thereto) and (ii) a Springing Facility Site Sublease (pursuant to
which, upon the Post-FILOT Lease Conversion Date, the Springing Facility Site
Sublease shall become effective and the Owner Lessor shall sublease the Ground
Interest back to the Facility Lessee pursuant thereto);
WHEREAS, the Owner Participant has entered into the LLC
Agreement, pursuant to which the Owner Participant has authorized the Owner
Lessor to, among other things and subject to the terms and conditions thereof
and hereof, issue the Lessor Notes and sell such Lessor Notes to the relevant
Pass Through Trust, acquire and accept such assignment and transfer of the
Undivided Interest and the Ground Interest from Facility Lessee pursuant to the
Assignment Agreement, and lease the Undivided Interest (excluding the Land
Purchase Option) and the Ground Interest (excluding the Facility Purchase
Option) to the Facility Lessee pursuant to the Facility Lease and the Facility
Site Lease, respectively;
WHEREAS, in order to provide a portion of the Assumption Price
payable by the Owner Lessor in respect of its acquisition of the Undivided
Interest pursuant to the Assignment Agreement, the Owner Participant is willing
to make an investment in the Owner Lessor in an amount equal to the Equity
Investment, all in the manner and subject to the conditions set forth herein;
WHEREAS, on the Closing Date, the Owner Lessor intends to sell the Lessor
Notes to the relevant Pass Through Trust and to grant to the Indenture Trustee
liens and security interests in the Indenture Estate to secure its obligations
thereunder;
WHEREAS, concurrently with the execution and delivery of this
Participation Agreement, each Pass Through Trustee has entered into a Pass
Through Trust Agreement, pursuant to which such Pass Through Trustee has been
directed to use the Proceeds to purchase the Lessor Notes from the Owner Lessor
on the Closing Date;
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WHEREAS, concurrently with the execution and delivery of this
Participation Agreement, the Facility Lessee has entered into the Certificate
Purchase Agreement with the Initial Purchasers and the Pass Through Trusts
pursuant to which the Initial Purchasers will purchase the Certificates on the
Closing Date from the Pass Through Trusts;
WHEREAS, concurrently with the execution and delivery of this
Participation Agreement, the OP Guarantor has executed and delivered the OP
Parent Guaranty pursuant to which the OP Guarantor guarantees the payment and
performance obligations of the Owner Participant under the Operative Documents;
WHEREAS, pursuant to the Calpine Guaranty, Calpine has guaranteed
all of the obligations of the Facility Lessee under the Participation Agreement
and as of the Closing Date shall guarantee all of the obligations of the
Facility Lessee under the other Operative Documents to which the Facility
Lessee is a party; and
WHEREAS, the parties hereto desire to consummate the transactions
contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
DEFINITIONS; INTERPRETATION OF THIS PARTICIPATION AGREEMENT
The capitalized terms used in this Participation Agreement, including
the foregoing recitals, and not otherwise defined herein shall have the
respective meanings specified in Appendix A hereto. The rules of interpretation
set forth in Appendix A shall apply to terms used in this Participation
Agreement and specifically defined herein.
PARTICIPATION; CLOSING DATE; TRANSACTION COSTS
Agreements to Participate. Subject to the terms and conditions of this
Agreement, and in reliance on the agreements, representations and warranties
made herein, the parties agree to participate in the transactions described in
this Section 2.1 on the Closing Date as follows:
the Owner Participant agrees to provide funds in an amount sufficient to (i)
fund the Equity Investment and (ii) pay the Transaction Costs which the
Owner Lessor is responsible to pay pursuant to Section 2.3(a) hereof
(collectively, the "Owner Participant's Commitment");
the Facility Lessee shall assign and transfer the Undivided Interest and the
Ground Interest to the Owner Lessor on the terms and conditions set forth
in the Assignment Agreement and the Owner Lessor agrees to acquire and
accept such assignment and transfer of the Undivided Interest and the
Ground Interest from Facility Lessee, and each agrees to execute and
deliver the Assignment Agreement;
the Owner Lessor agrees to lease the Undivided Interest (except the Facility
Purchase Option) and the Ground Interest (except the Land Purchase Option)
to the Facility Lessee on the terms and conditions set forth in the
Facility Lease and Facility Site Lease; the Facility
3
Lessee agrees to lease the Undivided Interest (except the Facility Purchase
Option) and the corresponding Ground Interest (except the Land Purchase
Option) from the Owner Lessor, and each agrees to execute and deliver the
respective Facility Lease and the Facility Site Lease;
the Indenture Trustee agrees to act as the trustee under and enter into the
Collateral Trust Indenture pursuant to which the Lessor Notes will be
issued;
the Pass Through Trustees agree to use the Proceeds from the sale of the
Certificates by the Pass Through Trusts to purchase the Lessor Notes from
the Owner Lessor;
the Owner Lessor agrees to sell to the relevant Pass Through Trusts the
applicable Lessor Notes and to grant to the Indenture Trustee, for the
benefit of the Pass Through Trustees, certain liens and security interests
in the Indenture Estate to secure its obligations thereunder;
the OP Guarantor will guarantee the performance and payment obligations of the
Owner Participant under the Operative Documents and the FILOT Lease
pursuant to the OP Parent Guaranty;
the Owner Lessor agrees to use the funds received from the Owner Participant
and the Pass Through Trusts pursuant to clause (a)(i) and (e),
respectively, of this Section 2.1 on the Closing Date to pay the Purchase
Price;
the Owner Participant and the Facility Lessee agree to enter into the Tax
Indemnity Agreement;
effective upon the occurrence of the Post-FILOT Lease Conversion Date, the
Facility Lessee agrees to lease the Ground Interest to the Owner Lessor on
the terms and conditions set forth in the Springing Facility Site Lease and
the Owner Lessor agrees to sublease the Ground Interest back to the
Facility Lessee on the terms and conditions set forth in the Springing
Facility Site Sublease;
the Owner Lessor agrees to exercise the Purchase Options pursuant to, and to
the extent provided in, Section 14.1 hereof; and
the parties agree to enter into the agreements referred to above and the other
Operative Documents, and to cause each Affiliate thereof that is not a
party hereto but is a party to an Operative Document to enter into such
Operative Document, as the case may be (in each case, if attached as an
Exhibit hereto, in substantially the form attached hereto).
Closing Date; Procedure for Participation.
Closing Date. The closing of the transactions contemplated hereby (the
"Closing") shall take place after 10:00 a.m., New York City time, on the
Scheduled Closing Date or such other date as the parties hereto shall
mutually agree (the "Closing Date"), at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP or at such other place as the parties hereto shall mutually agree.
Procedures for Funding. Unless the Closing Date shall have been postponed
pursuant to Section 2.2(c), subject to the terms and conditions of this
Participation Agreement, the Owner
4
Participant shall make the Owner Participant's Commitment available not
later than 10:00 a.m., New York City time, on the Scheduled Closing Date,
by transferring or delivering such amount, in funds immediately available
on such Scheduled Closing Date, to the Owner Lessor in New York, New York.
Postponement of the Closing. The Scheduled Closing Date may be postponed from
time to time for any reason if the Facility Lessee gives the Owner
Participant, the Owner Lessor, the Indenture Trustee and the Pass Through
Trustees a facsimile or telephonic (confirmed in writing) notice of such
postponement and notice of the date to which the Closing has been
postponed, such notice of postponement to be received by each party no
later than noon, New York City time, on the Scheduled Closing Date. If,
prior to receipt of a postponement notice under this Section 2.2(c), the
Owner Participant shall have provided funds in accordance with Section
2.2(b), such funds shall be returned to the Owner Participant, as soon as
reasonably practicable but in no event later than the Business Day
following the date of such notice, unless the Owner Participant shall
have otherwise directed. All funds made available pursuant to Section
2.2(b) will be held by the Owner Lessor in trust for the Owner
Participant and shall not be part of the Indenture Estate or the Lessor
Estate, shall be invested by the Owner Lessor in accordance with clause
(d) below and such funds shall remain the sole property of the Owner
Participant unless and until released by the Owner Participant and made
available to the Owner Lessor and applied to pay the Purchase Price or
Transaction Costs or returned to the Owner Participant, as provided in
this Agreement.
Investment of Funds. If, on the Scheduled Closing Date, the Owner Participant
has made the Owner Participant's Commitment available to the Owner Lessor
in accordance with Section 2.2(b), the Closing does not occur on such
date and the Owner Lessor is unable to return such funds to the Owner
Participant on such date, the Owner Lessor shall, subject to Section
2.2(c) above, use reasonable efforts to invest such funds from time to
time at the written direction of Calpine, and at Calpine's sole expense
and risk, in Permitted Investments until such funds can be returned to
the Owner Participant. If, on the Scheduled Closing Date, the Owner
Participant has made the Owner Participant's Commitment available to the
Owner Lessor in accordance with Section 2.2(b), the Closing does not
occur on such date and the Owner Lessor has not returned such funds to
the Owner Participant on or before 1:00 p.m., New York City time, on such
date, then Calpine shall reimburse the Owner Participant for loss of the
use of such funds at the Applicable Rate for each day, from and including
the day that such funds were made available to the Owner Lessor by the
Owner Participant to, but excluding the earlier of (i) the day that such
funds have been returned to the Owner Participant pursuant to Section
2.2(c) (funds received by the Owner Participant after 1:00 p.m., New York
City time, of any day shall be deemed to be returned on the next
succeeding Business Day) and (ii) the Closing Date. Subject to payment
for the account of the Owner Participant of any reimbursement for loss of
use of funds due to it at the Applicable Rate, any net gain realized on
the investment of such funds (including interest) shall be paid to
Calpine by the Owner Lessor on the earlier of (i) the date such funds are
returned to the Owner Participant pursuant to Section 2.2(c) and (ii) the
Closing Date. The Owner Lessor shall not be liable for any interest on or
loss resulting from such investments and, if such funds are made
available to the Owner Lessor and utilized to pay the Purchase Price or
Transaction Costs on the Closing Date, Calpine shall reimburse the Owner
Lessor for any net loss realized on the investment of such funds. If such
funds are not so utilized, Calpine shall, in
5
addition to its obligation to reimburse the Owner Participant for loss of
use as provided above, reimburse the Owner Participant on the date such
funds are returned to the Owner Participant for any net loss realized on
the investment of such funds. In order to obtain funds for payment of the
Purchase Price or Transaction Costs or to return funds made available to
the Owner Lessor by the Owner Participant, the Owner Lessor is authorized
to sell any investments or obligations purchased as aforesaid.
Expiration of Commitments. The obligation of the Owner Participant to make its
Equity Investment shall expire at 5:00 p.m., New York City time, on
December 31, 2001. If the Closing Date has not occurred on or before
December 31, 2001 the Transaction Parties shall have no obligation to
consummate the transactions contemplated under this Agreement and, except
as provided in Sections 2.3, 9.1 and 9.2, all obligations of the
Transaction Parties shall cease and terminate.
Transaction Costs.
If the transactions contemplated by this Agreement are consummated, all
Transaction Costs up to an amount equal to US$1,500,000, which shall be
substantiated or otherwise supported in reasonable detail (provided that
legal bills may be redacted to preserve attorney-client privilege), shall
be paid within 10 days after the Closing Date by the Owner Lessor (with
funds provided by the Owner Participant), assuming all invoices have been
approved by Calpine and received by the Owner Lessor by 7 days after the
Closing Date. All other Transaction Costs, fees, costs and expenses
incurred by the Facility Lessee, the Owner Lessor and the Owner
Participant shall be paid by Calpine. If the Overall Transaction is not
consummated for any reason (including as a result of the Facility Lessee
terminating this Agreement pursuant to Section 12(a)), then Calpine shall
bear all Transaction Costs; provided, however, that Calpine shall not be
obligated to pay Transaction Costs incurred by the Owner Participant if
the Overall Transaction is not consummated on the basis of the provisions
of this Agreement due to a failure of the Owner Participant to satisfy
any condition to the Closing required to be satisfied by the Owner
Participant.
Following the Closing Date, the Facility Lessee will be responsible for, and
will pay as Supplemental Rent on an After-Tax Basis to the Owner
Participant, the annual administration fees, if any, and expenses
(including reasonable and documented fees and expenses of its outside
counsel) of the Lessor Manager, the Indenture Trustee (as such and in its
individual capacity) and the Pass Through Trustees.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the Facility Lessee. The Facility Lessee
represents and warrants that as of the date of execution and delivery hereof
and as of the Closing Date:
Due Incorporation, etc. The Facility Lessee is a limited liability company duly
organized, validly existing, and in good standing under the laws of the
State of Delaware. The Facility Lessee is duly licensed or qualified and
in good standing in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary, and the Facility Lessee has the power and authority to (x) own
or hold under lease the
6
property it purports to own or hold under lease, (y) carry on its
business as now being conducted and as presently proposed to be conducted
and (z) take all actions as may be necessary to consummate the
transactions contemplated hereunder and under the other Operative
Documents to which each is a party. The Facility Lessee is an indirect
wholly-owned subsidiary of Calpine.
Authorization; Enforceability, etc. This Agreement and each of the other
Operative Documents to which the Facility Lessee is or will be a party
have been, or when executed and delivered will be, duly authorized,
executed and delivered by all necessary action by the Facility Lessee,
and, assuming the due authorization, execution and delivery by each other
party thereto, this Agreement constitutes and, when executed and
delivered, the other Operative Documents to which the Facility Lessee is
or will be a party will constitute the legal, valid and binding
obligations of the Facility Lessee, enforceable against the Facility
Lessee, in accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors
generally and by general principles of equity.
1. Non-Contravention. (1) The execution, delivery and performance by
the Facility Lessee of this Agreement and each of the other
Operative Documents to which it is or will be a party, the
consummation by the Facility Lessee of the transactions
contemplated hereby and thereby, and compliance by the Facility
Lessee with the terms and provisions hereof and thereof, do not
and will not (i) contravene any Applicable Law binding on the
Facility Lessee or its property, or its organizational
documents, (ii) constitute a default by the Facility Lessee
under, or result in the creation of any Lien upon the property
of the Facility Lessee (other than pursuant to any Operative
Document) under any indenture, mortgage or other material
contract, agreement or instrument to which the Facility Lessee
is a party or by which the Facility Lessee or any of its
property is bound, (iii) contravene any Organic Document of the
Facility Lessee or (iv) require the consent or approval of any
Person which has not already been obtained, in each case with
respect to clauses (i), (ii) and (iv) above, which would
reasonably be expected to have a Material Adverse Effect.
(2) Neither the assignment and transfer of the Undivided Interest and the
Ground Interest by Facility Lessee to the Owner Lessor, nor the grant by the
Owner Lessor to the Indenture Trustee of the Liens and security interests in
the Undivided Interest, the Ground Interest and the applicable Operative
Documents executed in connection therewith to secure its obligations thereunder
does or will constitute a default by the Facility Lessee or the Owner Lessors
under the Ownership and Operation Agreement.
Government Actions. The Facility Lessee has all Permits with or from any
Governmental Entity or under any Applicable Law required (x) for the due
execution, delivery or performance by the Facility Lessee of this
Agreement, and the other Operative Documents to which the Facility Lessee
is or will be a party or (y) without regard to any other transactions or
other actions of the Owner Participant, the Owner Lessor or any Affiliate
of any of them or any assignee or transferee of any of the Owner
Participant, the Owner Lessor (or any Affiliate of
7
any transferee or assignee) and assuming that none of the Owner
Participant, the Owner Lessor or any Affiliate of any of them or any
assignee or transferee of any of the Owner Participant (or any Affiliate
of any such transferee or assignee) is an "electric utility" or a "public
utility" or a "public utility holding company" or any similar entity
subject to public utility regulation under any Applicable Law immediately
prior to the Closing, with respect to the participation by the Owner
Participant, the Owner Lessor in the Overall Transaction, other than (i)
any Permit where the failure to obtain or maintain such Permit would not
be reasonably likely to result in a Material Adverse Effect, (ii) the
FERC Orders, (iii) as may be required under Applicable Law providing for
the supervision or regulation of the Owner Participant, the Owner Lessor
or any Affiliate of any of them as a result of investing, lending or
other commercial activity in which the Owner Participant, the Owner
Lessor or any Affiliate of any of them is or may be engaged other than
the transactions contemplated hereby or by any of the other Operative
Documents, (iv) as may be required under existing Applicable Laws to be
obtained, given, accomplished or renewed at any time, or from time to
time, in each case, after the Closing Date and which the Facility Lessee
has no reason to believe will not be timely obtained and the lack of
which would not reasonably be expected to have a Material Adverse Effect
or involve any danger of criminal or material civil liability being
incurred by the Owner Participant, the Owner Lessor, the Indenture
Trustee or the Pass Through Trustees, (v) in connection with any
modification to or rebuilding or replacement of the Facility or any
portion thereof that may occur in the future, (vi) as may be required in
connection with any refinancing of the Lessor Notes or the Certificates
or the issuance of Additional Lessor Notes or Additional Certificates,
(vii) as may be required in consequence of any transfer of the Member
Interest or any transfer of the Undivided Interest or the Owner Lessor's
Interest, or any part thereof by the Owner Lessor or the exercise by any
such party of dispossessory remedies under the Operative Documents or any
relinquishment of the use or operation of the Facility by the Facility
Lessee, (viii) appropriate filing and recording to perfect the Lien of
the Collateral Trust Indenture, if required, and the ownership and
leasehold interests conveyed pursuant to this Agreement, or (ix) as may
be required under any Applicable Law enacted or adopted after the date
hereof.
Litigation. There is no pending or, to the Actual Knowledge of the Facility
Lessee, threatened, action, suit, investigation or proceeding against the
Facility Lessee or any other Calpine Party before any Governmental Entity
which (i) questions the validity of the Operative Documents and the FILOT
Lease or the ability of the Facility Lessee or such other Calpine Party
to perform its obligations under the Operative Documents and the FILOT
Lease to which the Facility Lessee or such other Calpine Party is or will
be a party or (ii) if determined adversely to it, could reasonably be
expected to have a Material Adverse Effect or otherwise materially
adversely affect the Undivided Interest leased by the Facility Lessee.
No Defaults. Neither the Facility Lessee nor any other Calpine Party is in
default, and no condition exists that with notice or lapse of time or
both would constitute a default, under any mortgage, indenture or other
contract, agreement or instrument to which the Facility Lessee or such
other Calpine Party is a party or by which the Facility Lessee or such
other Calpine Party or its property is bound in any such case where any
such default, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
8
Location of Chief Executive Office and Principal Place of Business, etc. (1)
The chief executive office and principal place of business of the
Facility Lessee and the office where the Facility Lessee keeps its
company records concerning the Facility, the Undivided Interest, the
Ground Interest, the Facility Site and the Operative Documents is located
at: c/o Calpine Corporation, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇.
(2) The Facility is located on the Facility Site.
(3) The condition of the Facility is substantially identical to the
condition it was in when inspected by the Appraiser in connection with the
Closing Appraisal.
Leasehold Interest; Liens. (1) On and before the Closing Date, the Facility
Lessee has (i) good and valid leasehold interest to the Facility, free
and clear of all Liens other than Permitted Closing Date Liens, and (ii)
good and valid leasehold interest to the Facility Site free and clear of
all Liens other than Permitted Closing Date Liens.
(2) Upon execution and delivery of the Operative Documents (other than
the Springing Operative Documents), and recording or filing (as appropriate) of
the instruments and documents referred to in Part I of Schedule 4.20 in
accordance with Section 4.20, (A) good and valid leasehold interest to the
Undivided Interest will be duly, validly and effectively conveyed and
transferred to the Owner Lessor free and clear of all Liens other than
Permitted Closing Date Liens, and (B) good and valid leasehold interest in the
Ground Interest will be duly, validly and effectively granted to the Owner
Lessor upon the terms and conditions in the corresponding Facility Site Lease,
free and clear of all Liens other than Permitted Closing Date Liens.
(3) Upon the closing of the conveyance of the Land and the Facility
(in each case to the extent of the Owner Lessor's Percentage interest therein)
on the Post-FILOT Lease Conversion Date and recording or filing (as
appropriate) of the instruments and documents referred to in Schedule 3.1(h)
hereto (A) good and valid fee title to the Facility (to the extent of the Owner
Lessor's Percentage interest therein) will be duly, validly and effectively
conveyed and transferred to the Owner Lessor free and clear of all Liens other
than Permitted Liens, and (B) good and valid leasehold interest in the Land (to
the extent of the Owner Lessor's Percentage) will be duly, validly and
effectively granted to the Owner Lessor upon the terms and conditions in the
corresponding Springing Facility Site Lease, free and clear of all Liens other
than Permitted Liens. Upon any other conveyance of the Facility and/or the Land
(to the extent of the Owner Lessor's Percentage) by the County to the Owner
Lessor or its designee upon the Owner Lessor's exercise of the Facility
Purchase Option and/or the Land Purchase Option, as the case may be, good and
valid fee title ownership thereof will be duly, validly and effectively vested
in the Owner Lessor, free and clear of all Liens other than Permitted Liens.
(4) When duly authorized, executed and delivered by each of the
parties thereto, the Collateral Trust Indenture will create a valid and, when
the filings and recordings to be made pursuant to Section 4.20 have been made,
first priority perfected Lien in favor of the Indenture Trustee in the
Indenture Estate and no filing, recording, registration or notice with, or
payment of any fees to, any federal or state Governmental Entity will be
necessary to establish or, except for such filings and recordings as will be
made pursuant to Section 4.20, to perfect, or
9
give record notice of, the Lien in favor of the Indenture Trustee in the
Indenture Estate to the extent such Lien may be perfected by filings or
recordings.
(5) None of the Permitted Encumbrances will, on and after the
Closing, interfere with the use, operation or possession of the Facility (as
contemplated by the Operative Documents and the FILOT Lease) or the use of or
the exercise by the Owner Lessor of its rights under Assignment Agreement or
the Facility Site Lease or the Facility Lease, in a manner which could
reasonably be expected to have a Material Adverse Effect.
Regulation U, etc. No Calpine Party is engaged principally, or as one of its
principal activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock (as defined in Regulations T, U or
X of the Federal Reserve Board), and no part of the proceeds of Lessor
Notes or the Equity Investment will be used by any Calpine Party,
directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or
carrying or trading in any securities under such circumstances as to
involve such Person in a violation of Regulation X of said Board (12 CFR
224) or to involve any broker or dealer in a violation of Regulation T of
said Board (12 CFR 220).
Holding Company Act. The Facility Lessee is not an "electric utility company,"
a "holding company", a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" within the meaning of the Holding
Company Act, and the execution, delivery and performance of the Operative
Documents to which the Facility Lessee is or will be a party and the
performance of the FILOT Lease will not subject the Facility Lessee to
such regulation under the Holding Company Act and do not violate any
provision of the Holding Company Act or any rule or regulation thereunder.
Investment Company Act. The Facility Lessee is not an "investment company" or a
company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940.
Securities Act. Neither the Facility Lessee nor anyone authorized by it has
directly or indirectly offered or sold any interest in the Member
Interest, the Lessor Notes or the Certificates or any part thereof, or in
any similar security or lease, or in any security or lease the offering
of which for the purposes of the Securities Act would be deemed to be
part of the same offering as the offering of the Member Interest, the
Lessor Notes or the Certificates or any part thereof or solicited any
offer to acquire any of the same, in any such case, in violation of the
registration requirements of Section 5 of the Securities Act.
Environmental Matters. Except as set forth in Schedule 3.1(m):
(1) The Facility Lessee has not received and does not have Actual
Knowledge of any written notice, letter, citation, order, warning, complaint,
inquiry, claim or demand from any Governmental Entity or any other Person that:
(i) there has been a Release, or there is a threat of Release, of Hazardous
Substances in, on, under or from the Facility or the Facility Site; (ii) the
Facility Lessee or any other Calpine Party is or is asserted to be liable, in
whole or in part, for the costs of cleaning up, remedying or responding at any
location (including any location at
10
which any Hazardous Substances have been generated, stored, treated or disposed
by or on behalf of the Facility Lessee or such other Calpine Party) to a
Release or threatened Release of any Hazardous Substance generated, used or
stored at or Released in, on, under or from the Facility or the Facility Site;
(iii) the Facility or the Facility Site is subject to a Lien in favor of any
Governmental Entity in response to a Release or threatened Release of Hazardous
Substances or (iv) the Facility or the Facility Site is or is asserted to be in
violation of or not in compliance with any Environmental Law, in any case with
respect to clauses (ii), (iii) or (iv), which could reasonably be expected to
have a Material Adverse Effect;
(2) The Facility Lessee and the other Calpine Parties are in
compliance with and have complied with all Environmental Laws, except to the
extent that failure to so comply could not reasonably be expected to have a
Material Adverse Effect; and
(3) To the Facility Lessee's Actual Knowledge, there is not and has
not been any Environmental Condition (A) at, on, under or from the Facility or
the Facility Site, or (B) at, on, under or from any other location resulting
from or arising in connection with the operation by any Person of the Facility
or the Facility Site, that in each case could reasonably be expected to have a
Material Adverse Effect or involve any danger of (i) foreclosure, sale,
forfeiture or loss of, or imposition of a material lien on, such Facility or
the Facility Site, (ii) the impairment of the ownership (or leasehold or
easement interest in), use, operation or, maintenance of the Facility or
Facility Site in any material respect, or (iii) any criminal or material civil
liability being incurred by the Owner Participant, the Owner Lessor, the Lessor
Manager, the Indenture Trustee or the Pass Through Trustees.
(4) All environmental permits necessary to own, operate, lease or
maintain the Facility and the Facility Site in accordance with the Operative
Documents and the FILOT Lease and the Ownership and Operation Agreement and
Environmental Laws have been obtained on behalf of the Owner Lessor or by the
Facility Lessee and they are final, in proper form, and in full force and
effect, with all appeal periods expired, and the Facility Lessee is in
compliance with the provisions of all such permits, except where the failure to
obtain, maintain the effectiveness of, or comply with such permits would not
reasonably be expected to have a Material Adverse Effect or involve any danger
of (i) foreclosure, sale, forfeiture or loss of, or imposition of a material
lien on, the Facility or the Facility Site, (ii) the impairment of the
ownership (or leasehold or easement interest in), use, operation or maintenance
of the Facility or the Facility Site in any material respect, or (iii) any
criminal or material civil liability being incurred by the Owner Participant,
the Owner Lessor, the Indenture Trustee, the Lessor Manager, the Pass Through
Trustees or the Certificateholders.
Operation and Use. Assuming the Facility will continue to be operated
substantially as operated as of the Closing Date, the rights and
interests to be possessed on the Closing Date by the Facility Lessee with
respect to the Undivided Interest and the Ground Interest and based upon
the Facility Lessee's reasonable expectations and on Applicable Law in
effect on and as of the Closing Date, the rights and interests made
available to the Owner Lessor pursuant to the Operative Documents and the
FILOT Lease and the rights contemplated by the Facility Lease to be made
available under such Operative Documents and the FILOT Lease, permit on a
commercially practicable basis during the Facility Lease Term and the
period following the expiration or termination of the Facility Lease
Term, as applicable, until the end of the
11
Facility's useful life as set forth in the Closing Appraisal, (i) the
location, occupation, interconnection, maintenance and repair of each
Facility, (ii) the use, operation and possession of the Facility, (iii)
as of the Closing Date, the use, operation, possession, maintenance,
replacement, renewal and repair of all Improvements required to be made
to the Facility, (iv) adequate ingress to and egress from the Facility in
connection with the ownership, use, operation, possession, maintenance or
repair of the Facility and (v) the transmission of electricity from the
Facility substantially in the manner currently transmitted as of the
Closing Date.
Tax Returns. The Facility Lessee and each other Calpine Party has filed all
federal, state and local income tax returns which are required to be
filed by it and has paid all Taxes shown to be due and payable on such
returns or pursuant to any assessment received by it (other than Taxes
and assessments the payment of which is being contested in good faith by
such Person and with respect to which appropriate accounting reserves
have to the extent required by GAAP been set aside) and neither the
Facility Lessee nor any other Calpine Party has any Actual Knowledge of
any actual or proposed assessment in connection therewith which, either
in any case or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
Jurisdiction. In accordance with Section 15.14 hereof, the Facility Lessee has
validly submitted to the jurisdiction of the Supreme Court of the State
of New York, New York County and the United States District Court for the
Southern District of New York.
Applicable Law. The Facility Lessee is in compliance with all Applicable Law,
including all applicable zoning, use and building codes, laws,
regulations and ordinances relating to the operations, maintenance, use,
lease or ownership of the Facility and the Facility Site, except where
the noncompliance would not reasonably be expected to have a Material
Adverse Effect or involve any danger of (i) foreclosure, sale, forfeiture
or loss of, or imposition of a material lien on, the Facility or the
Facility Site, (ii) the impairment of the ownership (or leasehold or
easement interest in), use, operation or maintenance of the Facility or
the Facility Site in any material respect, or (iii) any criminal or
material civil liability being incurred by the Owner Participant, the
Owner Lessor, the Lessor Manager, the Indenture Trustee or the Pass
Through Trustees, including subjecting the Owner Participant or the Owner
Lessor to regulation as a public utility under Applicable Law. None of
the Calpine Parties is in default of any judgments, orders or decrees of
any Governmental Entity relating to such Facility or the Facility Site.
ERISA. Assuming the accuracy of the representations of the other parties hereto
and the Certificateholders in the Certificates, the execution and delivery
of the Operative Documents and the issuance and sale of the Lessor Notes
under the Collateral Trust Indenture and the Certificates under the Pass
Through Trust Agreements will be exempt from, or will not involve any
transaction which is subject to, the prohibitions of either Section 406 of
ERISA or Section 4975 of the Code and will not involve any transaction in
connection with which a penalty could be imposed under Section 502(i) of
ERISA or a tax could be imposed pursuant to Section 4975 of the Code.
12
Insurance. All insurance required to be obtained pursuant to Schedule 5.31 is
in full force and effect.
No Default; No Event of Loss; Burdensome Buyout. No Lease Default or Lease
Event of Default, exists or will exist upon execution and delivery of the
Operative Documents. No Event of Loss exists or will exist upon the
execution and delivery of the Operative Documents. To the Actual Knowledge
of the Facility Lessee, no Burdensome Buyout Event has occurred or will
occur upon the execution and delivery of the Operative Documents and the
Facility Lessee does not have Actual Knowledge of any event that could
reasonably be expected to result in a Burdensome Buyout Event.
Special Assessments. There is no action pending or, to the Facility Lessee's
Actual Knowledge, threatened by a Governmental Entity or other Person to
specially assess the Facility or the Facility Site for any public
improvements constructed or to be constructed which would reasonably be
expected to have a Material Adverse Effect.
Utility Services. The Facility and the Facility Site have available all services
of public utilities necessary for use and operation of the Facility as
currently being used and as contemplated by the applicable Operative
Documents and the FILOT Lease, except where the failure to have any such
services or public utilities available would not result in a material
adverse effect with respect to the Facility.
Eminent Domain. There is no action pending with respect to, or threatened by a
Governmental Entity or other Person to initiate, a Requisition of any of
the Undivided Interest, the Facility, the Ground Interest or the Facility
Site, which would reasonably be expected to have a Material Adverse
Effect.
Permitted Liens. There are no violations or proceedings or actions pending or
threatened, with respect to any easements, reciprocal easement agreements,
declarations, development agreements or recorded restrictions or covenants
relating to the Facility or the Facility Site, which would reasonably be
expected to have a Material Adverse Effect.
Access; Egress. Access to and egress from the Facility and the Facility Site is
available and provided by public streets and/or private roads fully
accessible by the Facility Lessee. To the Facility Lessee's Actual
Knowledge, there are no plans of any Governmental Entity to change the
highway or road system in the vicinity of the Facility or the Facility
Site, or to restrict or change access from any such highway or road to the
Facility or the Facility Site, in either case, in any manner which would
reasonably be expected to have a Material Adverse Effect.
Notices. To the Facility Lessee's Actual Knowledge, (i) there are no
outstanding written notices from any Governmental Entity of any violation
of, or that the Facility or Facility Site is not in compliance with, any
and all Applicable Laws relating to the Facility and Facility Site or the
ownership, use, occupancy and operation thereof and (ii) there are no
outstanding written notices that any repairs or work or capital
improvements are required to be done at or with respect to the Facility or
Facility Site by any Governmental Entity or by any insurance company which
currently issues any insurance to the Facility Lessee or by any board of
fire
13
underwriters or other body exercising similar functions, except, in
either case with respect to (i) or (ii) above, where such violation,
noncompliance or repairs could not reasonably be expected to have a
Material Adverse Effect.
Business. The Facility Lessee has not conducted any business other than the
acquisition, construction, development, ownership, operation, maintenance,
leasing and financing of the Facility and Facility Site and activities
incidental thereto.
Intellectual Property. To the Actual Knowledge of the Facility Lessee, the
Facility Lessee has the right to use all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights which are
necessary for the operation of its business as presently conducted and to
transfer all such rights to the Owner Lessor subsequent to termination of
the Facility Lease, except to the extent failure to possess such rights
would not reasonably be likely to result in a Material Adverse Effect.
Land Not in Flood Zone. No portion of the Facility or the Facility Site
includes improved real property that is located in an area that has been
identified by the Director of the Federal Emergency Management Agency as
an area having special flood hazards and in which flood insurance has been
made available under the National Flood Insurance Act of 1968, as amended.
No Fraudulent Conveyances. The Facility Lessee is consummating the transactions
contemplated hereby in good faith and without any intent to defraud
creditors of the Facility Lessee or subsequent purchasers. The execution
and delivery of the Operative Documents to which the Facility Lessee is a
party will not render the Facility Lessee insolvent under GAAP or leave
the Facility Lessee with assets whose present fair valuation of assets is
less than the present fair valuation of the Facility Lessee's debts. As
used in this Section 3.1(dd), "debts" includes any and all liabilities,
whether matured or unmatured, liquidated or unliquidated, absolute, fixed
or contingent, and whether or not such liabilities are required under
GAAP to be shown on the Facility Lessee's balance sheet. The execution
and delivery of the Operative Documents to which the Facility Lessee is a
party will not leave it with property remaining in its hands which would
constitute unreasonably small assets or capital, and the Facility Lessee
has and, after giving effect to such transactions will have, an adequate
amount of assets and capital to engage in its business now and in the
future, based on the actual and anticipated needs for capital of the
businesses anticipated to be conducted by the Facility Lessee, and based
upon the other information described herein. After giving effect to the
transactions contemplated under the Operative Documents, the Facility
Lessee will be able to pay all of its debts and liabilities, including
unrecorded contingent liabilities, as they mature, the Facility Lessee
will have positive cash flow after paying all of its scheduled and
anticipated debt as it matures, and the Facility Lessee will realize
sufficient monies from current assets in the ordinary and usual course of
business to pay recurring current debt, short-term debt and long-term
debt as such debts mature.
No Additional Fees. Except for the fees referred to in clause (xiv) and (xv)
of the definition of Transaction Costs, the Facility Lessee has not paid
or become obligated to pay any fee or commission to any broker, finder or
intermediary for or on account of arranging the financing of the
transactions contemplated by the Operative Documents.
14
Status under Certain Statutes. Neither the Facility Lessee, the Owner
Participant, the Owner Lessor, the Lessor Manager, the Indenture Trustee,
the Pass Through Trustees nor any Certificateholder solely as a result of
execution, delivery and performance and the consummation of the
transactions contemplated by the Operative Documents and the performance
of the FILOT Lease shall be or become (i) subject to regulation as a
"public utility company," "holding company," an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company" within the
meaning of PUHCA or (ii) a "public utility" (except that the Facility
Lessee will be a public utility subject to the Federal Power Act with
authority to sell wholesale electricity at market-based rates and with
waivers of regulations customarily granted to a public utility that sells
wholesale power at market-based rates), a "transmitting utility," or an
"electric utility" within the meaning of the Federal Power Act, (iii)
subject to state regulation of rates or organizational requirements for
electric utilities.
Material Omission. Neither the Offering Circular (including any preliminary
offering circular approved by the Facility Lessee for distribution) nor
the written information furnished to the Owner Lessor, the Owner
Participant, the Lessor Manager, the Indenture Trustee and the Pass
Through Trustees by or on behalf of the Facility Lessee or any of its
Affiliates in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading;
provided, that no representation or warranty is made with regard to (i)
any projections or other forward-looking statements provided by or on
behalf of the Facility Lessee, or (ii) the descriptions of the Operative
Documents or the tax consequences to beneficial owners of Certificates;
provided, further, each of the Transaction Parties acknowledge and agree
that (i) Calpine has heretofore provided to the Appraiser, solely in order
to assist the Appraiser in connection with the preparation of the
appraisal to be delivered by the Appraiser to certain of the Transaction
Parties at the Closing, certain (1) general market information, (2)
information about the South Carolina energy markets and (3) information
passed along from other Persons and (ii) that the Facility Lessee makes no
representation or warranty whatsoever with respect to the information
described in clause (i) above except to the extent expressly set forth in
Section 4(b) of the Tax Indemnity Agreement.
Exempt Wholesale Generator. The Facility Lessee is an "exempt wholesale
generator" under PUHCA. The Facility is interconnected with the high
voltage network operated by Duke Electric Transmission, a division of Duke
Energy Corporation, and has access to transmission services and ancillary
services sufficient to sell the net generating capacity of the Facility at
wholesale, and the Facility Lessee has the authority to sell wholesale
electric power from the net generating capacity of such generating Facility
at market-based rates.
FERC Orders. The Facility Lessee has duly filed with FERC the filings
referenced in Section 4.8 and, except with respect to the FERC Owner
Lessor EWG Orders and the FERC Order referenced in clause (v) of the
definition of "FERC Orders" set forth in Appendix A hereto, received from
FERC the orders referenced therein.
Fully Taxable. As of the Closing Date, each Person owning an Ownership Interest
(i) is fully taxable at the highest federal tax rate and (ii) expects to
be fully taxable at the highest federal tax rate throughout the Facility
Lease Term; for the avoidance of doubt, this representation is
15
not intended to be construed as nor shall it be deemed to be a guaranty as
to any such Person's future taxation.
Commencement of Commercial Operations and Compliance. To the knowledge of the
Facility Lessee, the Facility has commenced commercial operations and
currently is capable of producing at least 850 MW of capacity and complies
in all material respects with the other specifications set forth in the
purchase and construction contracts for the Facility.
FILOT Lease. The FILOT Lease is in full force and effect and neither the
Facility Lease nor, to the Actual Knowledge of the Facility Lessee, the
County is in default thereunder; all of the rights, title and interest of
the Facility Lessee, in, to and under the FILOT Lease assigned pursuant to
the Assignment Agreement have been transferred free and clear of any and
all Liens other than Permitted Liens. Prior to the execution and delivery
of the Assignment Agreement by the Facility Lessee, the FILOT Lease was
enforceable against the Facility Lessee in accordance with its respective
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity; the
execution, delivery and performance of the FILOT Lease by the Facility
Lessee (i) did not and does not contravene any Applicable Law binding on
the Facility Lessee or its property, (ii) does not constitute a default by
the Facility Lessee under, or result in the creation of any Lien upon the
property of the Facility Lessee (other than pursuant to any Operative
Document) under any indenture, mortgage or other material contract,
agreement or instrument to which the Facility Lessee is a party or by
which the Facility Lessee or any of its property is bound, (iii) does not
contravene any Organic Document of the Facility Lessee, (iv) does not
require the consent or approval of any Person which has not already been
obtained, in each case with respect to clauses (i), (ii) and (iv) above,
which would reasonably be expected to have a Material Adverse Effect, or
(v) does not create a Lien on the FILOT Lease; the Facility Lessee has all
Permits with or from any Governmental Entity or under Applicable Law
required for the performance of the FILOT Lease by the Owner Lessor or the
Facility Lessee, other than (i) any Permit where the failure to obtain or
maintain such Permit would not be reasonably likely to result in a
Material Adverse Effect, (ii) the FERC Orders, (iii) as may be required
under Applicable Law providing for the supervision or regulation of the
Owner Participant, the Owner Lessor or any Affiliate of any of them as a
result of investing, lending or other commercial activity in which the
Owner Participant, the Owner Lessor or any Affiliate of any of them is or
may be engaged other than the transactions contemplated hereby or by
performance of the FILOT Lease upon and after the assignment thereof to
the Owner Lessor pursuant to the Assignment Agreement, (iv) as may be
required under existing Applicable Laws to be obtained, given,
accomplished or renewed at any time, or from time to time, in each case,
after the Closing Date and which the Facility Lessee has no reason to
believe will not be timely obtained and the lack of which would not
reasonably be expected to have a Material Adverse Effect or involve any
danger of criminal or material civil liability being incurred by the Owner
Participant, the Owner Lessor, the Indenture Trustee or the Pass Through
Trustees, (v) in connection with any modification to or rebuilding or
replacement of the Facility or any portion thereof that may occur in the
future, (vi) as may be required in connection with any refinancing of the
Lessor Notes or the Certificates or the issuance of Additional Lessor
Notes or Additional Certificates, (vii) as may be required in consequence
of any transfer of the Member Interest or any transfer of the Undivided
Interest or the Owner
16
Lessor's Interest, or any part thereof by the Owner Lessor or the exercise
by any such party of dispossessory remedies under the Operative Documents
or any relinquishment of the use or operation of the Facility by the
Facility Lessee, (viii) appropriate filing and recording to perfect the
Lien of the Collateral Trust Indenture, if required, and the ownership and
leasehold interests conveyed pursuant to this Agreement, or (ix) as may be
required under any Applicable Law enacted or adopted after the date hereof.
B. Representations and Warranties of the Owner Lessor. The Owner
Lessor represents and warrants that as of the date of execution and delivery
hereof and as of the Closing Date:
Due Organization. The Owner Lessor is a duly organized and validly existing
limited liability company under the laws of the State of Delaware of which
the Owner Participant is the sole member, and has the power and authority
to enter into and perform its obligations under this Agreement and each of
the other Operative Documents to which it is a party.
Due Authorization, Enforceability; etc. (1) (i) This Agreement and each of the
other Operative Documents (other than the Lessor Notes) to which the Owner
Lessor is or will be a party has been or when executed and delivered will
be duly authorized, executed and delivered by the Owner Lessor, and (ii)
assuming the due authorization, execution and delivery of this Agreement
by each party hereto other than the Owner Lessor, this Agreement
constitutes and when executed and delivered each of the other Operative
Documents (other than the Lessor Notes) to which it is or will be a party
will be the legal, valid and binding obligations of the Owner Lessor,
enforceable against the Owner Lessor in accordance with its terms, except
as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
(2) Upon the execution of the Lessor Notes by the Owner Lessor
in accordance with the Collateral Trust Indenture and delivery of such Lessor
Notes against payment therefor, the Lessor Notes will constitute legal, valid
and binding obligations of the Owner Lessor, enforceable against the Owner
Lessor in accordance with their terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general principles of
equity.
Non-Contravention. The execution and delivery by the Owner Lessor of this
Agreement and the other Operative Documents to which it is or will be a
party, the consummation by the Owner Lessor of the transactions
contemplated hereby and thereby, and the compliance by the Owner Lessor
with the terms and provisions hereof and thereof, do not and will not
contravene any Applicable Law of the United States of America or the State
of Delaware, or the LLC Agreement or the Owner Lessor's other
organizational documents or contravene the provisions of, or constitute a
default by the Owner Lessor under any indenture, mortgage or other
material contract, agreement or instrument to which the Owner Lessor is a
party or by which the Owner Lessor or its property is bound, or in the
creation of any Owner Lessor's Lien; provided, however, that no
representation is made with respect to the right, power or authority of
the Owner Lessor to act as operator of the Facility following a Lease
Event of Default or the expiration or termination of the Facility Lease.
17
Governmental Actions. Assuming the representations and warranties of the
Facility Lessee contained in paragraphs (j), (k), (l), (m), (q), (z), (ff)
and (hh) of Section 3.1 are true, no authorization or approval or other
action by, and no notice to or filing or registration with, any
Governmental Entity is required for the due execution, delivery or
performance by the Owner Lessor, as the case may be, of the LLC Agreement,
the Collateral Trust Indenture, the Lessor Notes, this Agreement or the
other Operative Documents to which the Owner Lessor is or will be a party,
other than any such authorization or approval or other action or notice or
filing as has been duly obtained, taken or given.
Litigation. There is no pending or, to the Actual Knowledge of the Owner
Lessor, threatened, action, suit, investigation or proceeding against the
Owner Lessor before any Governmental Entity which (i) questions the
validity of the Operative Documents or the FILOT Lease or the ability of
the Owner Lessor to perform its obligations under the FILOT Lease or the
Operative Documents to which it is or will be a party or (ii) if
determined adversely to it, could reasonably be expected to materially
adversely affect the ability of the Owner Lessor to perform its
obligations under this Agreement or any other Operative Document to which
it is or will be a party or would materially adversely affect the
Facility, the Facility Site or any interest therein or part thereof or the
Lien of the Indenture Trustee on the Indenture Estate.
Liens. The Owner Lessor's right, title and interest in and to the Lessor
Estate is free of all Owner Lessor's Liens.
Location of Registered Office; Location of Corporate Records. The registered
office of the Owner Lessor is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and the Owner Lessor will keep its corporate records concerning the
Facility, the Facility Site, the Operative Documents and the South Point
Ground Lease with the Lessor Manager, at the Lessor Manager's address set
forth in Section 15.5 hereof.
Securities Act. Neither the Owner Lessor nor anyone authorized by it has
directly or indirectly offered or sold any interest in the Member
Interest, the Lessor Notes or the Certificates or any part thereof, or in
any similar security or lease, the offering of which for the purposes of
the Securities Act would be deemed to be part of the same offering as the
offering of the Member Interest, the Lessor Notes or the Certificates or
any part thereof or solicited any offer to acquire any of the same in
violation of the registration requirements of Section 5 of the Securities
Act.
C. Representations and Warranties of the Lessor Manager and the
Trust Company. The Trust Company (only with respect to representations and
warranties expressly relating to the Trust Company) and the Lessor Manager
hereby severally represent and warrant that as of the date of execution and
delivery hereof and as of the Closing Date:
Due Organization. The Trust Company is national banking association duly
organized and validly existing and in good standing under the laws of the
United States has the corporate power and authority, as Lessor Manager
and/or in its individual capacity to the extent expressly provided herein
or in the LLC Agreement, to enter into and perform its obligations under
the LLC Agreement, this Agreement and each of the other Operative
Documents to which it is a party.
18
Due Authorization, Enforceability; etc. (1) (i) The LLC Agreement has been duly
authorized, executed and delivered by the Trust Company, and (ii) assuming
the due authorization, execution and delivery of the LLC Agreement by the
Owner Participant, the LLC Agreement constitutes the legal, valid and
binding obligation of the Trust Company, enforceable against it in its
individual capacity or as Lessor Manager, as the case may be, in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, arrangement, moratorium
or other laws relating to or affecting the rights of creditors generally
and by general principals of equity.
(2) Execution. This Agreement and each of the other Operative
Documents to which the Trust Company or the Lessor Manager is or will be a
party has been or when executed and delivered will be duly authorized, executed
and delivered by the Trust Company or the Lessor Manager, and (ii) assuming the
due authorization, execution and delivery of this Agreement by each party
hereto other than the Trust Company or the Lessor Manager, this Agreement
constitutes and when executed and delivered each of the other Operative
Documents to which it is or will be a party will be the legal, valid and
binding obligations of the Lessor Manager and, to the extent expressly provided
herein, the Trust Company, as the case may be, enforceable against the Lessor
Manager and, to the extent expressly provided herein, the Trust Company, in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of equity.
Non-Contravention. The execution and delivery by the Trust Company, in its
individual capacity or as Lessor Manager, as the case may be, of the LLC
Agreement, this Agreement and the other Operative Documents to which it is
or will be a party, the consummation by the Trust Company, in its
individual capacity or as Lessor Manager, as the case may be, of the
transactions contemplated hereby and thereby, and the compliance by the
Trust Company, in its individual capacity or as Lessor Manager, as the
case may be, with the terms and provisions hereof and thereof, do not and
will not contravene any Applicable Law of the State of Utah governing the
Trust Company or any United States federal law governing the banking or
trust powers of the Trust Company, or the LLC Agreement or its
organizational documents or bylaws or contravene the provisions of, or
constitute a default by the Trust Company under any indenture, mortgage or
other material contract, agreement or instrument to which the Trust
Company is a party or by which the Trust Company or its property is bound,
or in the creation of any Owner Lessor's Lien; provided, however, that no
representation is made with respect to the right, power or authority of
the Trust Company or the Lessor Manager to act as operator of the Facility
following a Lease Event of Default.
Governmental Actions. Assuming the representations and warranties of the
Facility Lessee contained in paragraphs (j), (k), (l), (m), (q), (z), (ff)
and (hh) of Section 3.1 are true, no authorization or approval or other
action by, and no notice to or filing or registration with, any
Governmental Entity is required for the due execution, delivery or
performance by the Trust Company or the Lessor Manager, as the case may
be, of the LLC Agreement, this Agreement or the other Operative Documents
to which the Trust Company or the Lessor Manager is or will be a party,
other than any such authorization or approval or other action or notice or
filing as has been duly obtained, taken or given.
19
Litigation. There is no pending or, to the Actual Knowledge of the Trust
Company, threatened, action, suit, investigation or proceeding against the
Trust Company either in its individual capacity or as Lessor Manager, as
the case may be, before any Governmental Entity which (i) questions the
validity of the Operative Documents or the ability of the Owner Lessor to
perform its obligations under the Operative Documents to which it is or
will be a party or (ii) if determined adversely to it, could reasonably be
expected to materially adversely affect the ability of the Trust Company
either in its individual capacity or as Lessor Manager, as the case may
be, to perform its obligations under the LLC Agreement, this Agreement or
any other Operative Document to which it is or will be a party or would
materially adversely affect the Facility, the Facility Site or any
interest therein or part thereof or the Lien of the Indenture Trustee on
the Indenture Estate.
Liens. The Lessor Estate is free of any Owner Lessor's Liens attributable to the
Trust Company, in its individual capacity, or the Lessor Manager.
Securities Act. Neither the Trust Company, the Lessor Manager nor anyone
authorized by either of such Persons has directly or indirectly offered or
sold any interest in the Member Interest, the Lessor Notes or the
Certificates or any part thereof, or in any similar security or lease, the
offering of which, for the purposes of the Securities Act, would be deemed
to be part of the same offering as the offering of the Member Interest,
the Lessor Notes or the Certificates or any part thereof or solicited any
offer to acquire any of the same in violation of the registration of
Section 5 of the Securities Act.
Representations and Warranties of the Owner Participant. The Owner Participant
represents and warrants that as of the date of execution and delivery hereof and
as of the Closing Date:
Due Organization. The Owner Participant is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the power and authority to enter into and
perform its obligations under this Agreement, the LLC Agreement and the
Tax Indemnity Agreement. The Owner Participant is a direct wholly owned
subsidiary of Newcourt Capital USA Inc.
Due Authorization, Enforceability; etc. This Agreement, the LLC Agreement and
the Tax Indemnity Agreement have been or when executed and delivered will
be duly authorized, executed and delivered by the Owner Participant and
assuming the due authorization, execution and delivery by each other party
thereto, this Agreement, the LLC Agreement, the Tax Indemnity Agreement
and any other Operative Document to which the Owner Participant is or will
be a party constitute or when executed and delivered will constitute the
legal, valid and binding obligations of the Owner Participant, enforceable
against the Owner Participant in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
Non-Contravention. The execution and delivery by the Owner Participant of this
Agreement, the LLC Agreement, the Tax Indemnity Agreement and any other
Operative Document to which the Owner Participant is or will be a party,
the consummation by the Owner Participant of the transactions contemplated
hereby and thereby, and the compliance by the Owner Participant
20
with the terms and provisions hereof and thereof, do not and will not
contravene any Applicable Law binding on the Owner Participant, or its
organizational documents, or contravene the provisions of, or constitute a
default under any indenture, mortgage or other material contract,
agreement or instrument to which the Owner Participant is a party or by
which the Owner Participant or its property is bound or result in the
creation of any Owner Participant's Lien (other than any Lien created
under any Operative Document) upon the Lessor Estate, the Facility Site or
any interest therein or part thereof (it being understood that no
representation or warranty is being made as to (i) any Applicable Laws
relating to the particular nature of the Facility or the Facility Site or
(ii) other than its representations set forth in Section 3.4(g), ERISA or
Section 4975 of the Code).
Governmental Action. Assuming the representations and warranties of the
Facility Lessee contained in paragraphs (j), (k), (l), (m), (q), (z), (ff)
and (hh) of Section 3.1 are true, no authorization or approval or other
action by, and no notice to or filing or registration with, any
Governmental Entity is required for the due execution, delivery or
performance by the Owner Participant of this Agreement, the LLC Agreement,
the Tax Indemnity Agreement or any other Operative Document to which the
Owner Participant is or will be a party, other than any authorization or
approval or other action or notice or filing as has been duly obtained,
taken or given (it being understood that no representation or warranty is
being made as to any Applicable Laws relating to the Facility or the
Facility Site), and other than, with respect to the Post-FILOT Lease
Conversion Date, the conveyances and other matters referred to in the
definition thereof.
Litigation. There is no pending or, to the Actual Knowledge of the Owner
Participant, threatened, action, suit, investigation or proceeding against
the Owner Participant before any Governmental Entity which (i) questions
the validity of the Operative Documents or the ability of the Owner
Participant to perform its obligations under the Operative Documents to
which it is or will be a party or (ii) if determined adversely to it,
could reasonably be expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under the LLC Agreement,
this Agreement or any other Operative Document to which it is or will be a
party or would materially adversely affect the Facility, the Facility Site
or any interest therein or part thereof or the Lien of the Indenture
Trustee on the Indenture Estate.
Liens. The Lessor Estate is free of any Owner Participant's Liens.
ERISA. No part of the funds to be used by the Owner Participant to make its
investment pursuant to this Agreement, directly or indirectly, constitutes
or is deemed to constitute assets (within the meaning of ERISA and any
applicable rules, regulations and court decisions thereunder) of any
"employee benefit plan" (as defined in Section 3(3) of ERISA) that is
subject to ERISA, of any Transaction Party and ERISA Affiliate thereof.
Acquisition for Investment. The Owner Participant is purchasing the Member
Interest to be acquired by it for its own account with no present
intention of distributing such Member Interest or any part thereof in any
manner which would require registration under or would violate the
Securities Act, but without prejudice, however, to the right of the Owner
21
Participant at all times to sell or otherwise dispose of all or any part
of such Member Interest under an exemption from registration available
under such Act.
Securities Act. Neither the Owner Participant nor anyone authorized by it has
directly or indirectly offered or sold any interest in the Member
Interest, the Lessor Notes or the Certificates or any part thereof, or in
any similar security or lease, or in any security or lease the offering of
which for the purposes of the Securities Act would be deemed to be part of
the same offering as the offering of the Member Interest, the Lessor Notes
or the Certificates or any part thereof or solicited any offer to acquire
any of the same in violation of the registration requirements of Section 5
of the Securities Act.
Holding Company Act and Federal Power Act. Immediately prior to executing this
Agreement, the Owner Participant is not an "electric utility", "electric
utility company", "public utility", "public-utility company", "holding
company" or a "subsidiary company" or "affiliate" of any of the foregoing,
under the Federal Power Act or the Holding Company Act.
Investment Company Act. The Owner Participant is not an "investment company" or
a company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940.
Regulatory Event of Loss. The Owner Participant is not aware of any fact or
circumstance that would constitute a Regulatory Event of Loss.
Representations and Warranties of Indenture Trustee and the Lease Indenture
Company. The Lease Indenture Company and the Indenture Trustee hereby severally
represent and warrant that as of the date of execution and delivery hereof and
as of the Closing Date:
Due Organization. The Lease Indenture Company is a national banking
association duly organized, validly existing and in good standing under
the laws of the United States, has the corporate power and authority, as
Indenture Trustee and/or in its individual capacity to the extent
expressly provided herein or in the Collateral Trust Indenture, to enter
into and perform its obligations under the Collateral Trust Indenture,
this Agreement and each of the other Operative Documents to which it is or
will be a party.
Due Authorization, Enforceability; etc. (1) (i) This Agreement has been duly
authorized, executed and delivered by the Indenture Trustee and the Lease
Indenture Company, and (ii) assuming the due authorization, execution and
delivery of this Agreement by each party hereto other than the Indenture
Trustee and the Lease Indenture Company, this Agreement constitutes a
legal, valid and binding obligation of the Lease Indenture Company and the
Indenture Trustee, enforceable against the Lease Indenture Company or the
Indenture Trustee, as the case may be, in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
(2) (i) Each of the other Operative Documents to which the Indenture
Trustee is or will be a party has been or when executed and delivered will be
duly authorized, executed and delivered by the Indenture Trustee, and (ii)
assuming the due authorization, execution and delivery of each of the other
Operative Documents by each party thereto other than the Indenture
22
Trustee, each of the other Operative Documents to which the Indenture Trustee
is or will be a party constitutes or when executed and delivered will be a
legal, valid and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the rights of creditors generally and by
general principles of equity.
Non-Contravention. The execution and delivery by the Lease Indenture Company,
in its individual capacity or as Indenture Trustee, as the case may be, of
this Agreement and the other Operative Documents to which it is or will be
a party, the consummation by the Lease Indenture Company, in its
individual capacity or as Indenture Trustee, as the case may be, of the
transactions contemplated hereby and thereby, and the compliance by the
Lease Indenture Company, in its individual capacity or as Indenture
Trustee, as the case may be, with the terms and provisions hereof and
thereof, do not and will not contravene any Applicable Law of the State of
Connecticut or the United States of America governing the Lease Indenture
Company or the banking or trust powers of the Lease Indenture Company, or
its articles of association or by-laws, or contravene the provisions of,
or constitute a default by the Lease Indenture Company under or pursuant
to any indenture, mortgage or other material contract, agreement or
instrument to which the Lease Indenture Company is a party or by which the
Lease Indenture Company or its property is bound, or result in the
creation of any Lien attributable to the Lease Indenture Company upon the
Indenture Estate, the Facility Site or any interest therein or any part
thereof (other than the Lien of the Collateral Trust Indenture), which
would materially adversely affect the ability of the Lease Indenture
Company, in its individual capacity or as Indenture Trustee, as the case
may be, to perform its obligations under this Agreement or the other
Operative Documents to which it is or will be a party or would materially
adversely affect the Facility, the Facility Site or any interest therein
or part thereof or the security interest of the Indenture Trustee in the
Indenture Estate; provided, however, that no representation or warranty is
made with respect to the right, power or authority of the Lease Indenture
Company or the Indenture Trustee to act as operator of the Facility
following a Lease Event of Default.
Governmental Action. Assuming the representations and warranties of the
Facility Lessee contained in paragraphs (j), (k), (l), (m), (q), (z), (ff)
and (hh) of Section 3.1 are true, no authorization or approval or other
action by, and no notice to or filing or registration with, any
Governmental Entity of the State of Delaware or of the United State of
America governing its banking or trust powers is required for the due
execution, delivery or performance by the Lease Indenture Company or the
Indenture Trustee, as the case may be, of this Agreement or the other
Operative Documents to which the Indenture Trustee is or will be a party,
other than any such authorization or approval or other action or notice or
filing as has been duly obtained, taken or given.
Litigation. There is no pending or, to the Actual Knowledge of the Lease
Indenture Company, threatened, action, suit, investigation or proceeding
against the Lease Indenture Company before any Governmental Entity which
(i) questions the validity of the Operative Documents or the ability of
the Lease Indenture Company or the Indenture Trustee to perform its
obligations under the Operative Documents to which it is or will be a
party or (ii) if determined adversely to it, could reasonably be expected
to materially adversely affect the
23
ability of the Lease Indenture Company to perform its obligations under
this Agreement or any other Operative Document to which it is or will be a
party or could reasonably be expected to materially adversely affect the
Facility, the Facility Site or any interest therein or part thereof or the
Lien of the Indenture Trustee on the Indenture Estate.
D. Representations, Warranties and Covenants of the Pass Through
Trustees and the Pass Through Company. The Pass Through Company and the Pass
Through Trustees hereby severally represent and warrant that as of the date of
execution and delivery hereof and as of the Closing Date:
Due Organization. The Pass Through Company is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States, has the corporate power and authority, as Pass Through
Trustee and/or in its individual capacity to the extent expressly provided
herein or in the Pass Through Trust Agreements, to enter into and perform
its obligations under the Pass Through Trust Agreements, this Agreement
and each of the other Operative Documents to which it is or will be a
party.
Due Authorization, Enforceability; etc.
(A) This Agreement has been duly authorized, executed and delivered by the
Pass Through Trustees and the Pass Through Company and (B) assuming the
due authorization, execution and delivery of this Agreement by each party
hereto other than each Pass Through Trustee and the Pass Through Company,
as the case may be, this Agreement constitutes a legal, valid and binding
obligation of the Pass Through Company and each Pass Through Trustee,
enforceable against the Pass Through Company or each Pass Through Trustee,
as the case may be, in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, arrangement, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles of
equity.
(A) Each of the other Operative Documents to which the Pass Through Company or
any Pass Through Trustee is or will be a party has been or when executed
and delivered will be duly authorized, executed and delivered by the Pass
Through Company or such Pass Through Trustee, as the case may be, and (B)
assuming the due authorization, execution and delivery of each of the other
Operative Documents by each party thereto other than the Pass Through
Company or such Pass Through Trustee, as the case may be, each of the
other Operative Documents to which the Pass Through Company or any Pass
Through Trustee is or will be a party constitutes or when executed and
delivered will constitute a legal, valid and binding obligation of the
Pass Through Company or such Pass Through Trustee, enforceable against the
Pass Through Company or such Pass Through Trustee, as the case may be, in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
arrangement, moratorium or other laws relating to or affecting the rights
of creditors generally and by general principles of equity.
Non-Contravention. The execution and delivery by the Pass Through Company, in
its individual capacity or as Pass Through Trustee, as the case may be, of
this Agreement and the other Operative Documents to which it is or will be
a party, the consummation by the Pass Through Company, in its individual
capacity or as Pass Through Trustee, as the case may be,
24
of the transactions contemplated hereby and thereby, and the compliance by
the Pass Through Company, in its individual capacity or as Pass Through
Trustee, as the case may be, with the terms and provisions hereof and
thereof, do not and will not contravene any Applicable Law of the United
States of America or the State of Connecticut governing the Pass Through
Company or the banking or trust powers of the Pass Through Company, or its
organizational documents or by-laws, or contravene the provisions of, or
constitute a default by the Pass Through Company under, or result in the
creation of any Lien attributable to the Pass Through Company upon the
Certificates or any indenture, mortgage or other material contract,
agreement or instrument to which the Pass Through Company is a party or by
which the Pass Through Company or its property is bound which would
materially adversely affect the ability of the Pass Through Company, in
its individual capacity or as Pass Through Trustee, as the case may be, to
perform its obligations under this Agreement or the other Operative
Documents to which it is a party or would materially adversely affect the
Facility, the Facility Site or any interest therein or part thereof or the
security interest of any Pass Through Trustee in the Indenture Estate;
provided, however, that no representation is made with respect to the
right, power or authority of the Pass Through Company or any Pass Through
Trustee to act as operator of the Facility following a Lease Event of
Default.
Governmental Action. Assuming the representations and warranties of the
Facility Lessee contained in paragraphs (j), (k), (l), (m), (q), (z), (ff)
and (hh) of Section 3.1 are true, no authorization or approval or other
action by, and no notice to or filing or registration with, any
Governmental Entity governing its banking or trust powers is required for
the due execution, delivery or performance by the Pass Through Company or
any Pass Through Trustee, as the case may be, of this Agreement or the
other Operative Documents to which such Pass Through Trustee is or will be
a party, other than any such authorization or approval or other action or
notice or filing as has been duly obtained, taken or given.
Litigation. There is no pending or, to the knowledge of the Pass Through
Company, threatened action, suit, investigation or proceeding against the
Pass Through Company either in its individual capacity or as Pass Through
Trustee, before any Governmental Entity which, if determined adversely to
it, would materially adversely affect the ability of the Pass Through
Company, in its individual capacity or as Pass Through Trustee, as the
case may be, to perform its obligations under this Agreement or the other
Operative Documents to which it is a party or would materially adversely
affect the Facility, the Facility Site or any interest therein or part
thereof or the security interest of any Pass Through Trustee in the
Indenture Estate or which questions the validity or enforceability of any
Operative Document to which the Pass Through Company or any Pass Through
Trustee is a party.
CLOSING CONDITIONS
The obligations of the Owner Participant, the Owner Lessor, the
Lessor Manager, the Lease Indenture Company, the Indenture Trustee, the Pass
Through Company, the Pass Through Trustees, the Guarantor and the Facility
Lessee to consummate the transactions contemplated hereby on the Closing Date
shall be subject to the following conditions, except that the obligations of
any Person shall not be subject to such Person's own performance or compliance,
and each of the Transaction Parties (other than the Certificateholders) shall
provide
25
such proof of satisfaction of these conditions as any other Transaction
Party shall reasonably request.
26
Completion of the Facility. The Facility shall have commenced commercial
operations and shall currently be capable of producing at least 850 MW of
capacity and shall comply in all material respects with the other
specifications set forth in the purchase and construction contracts for the
Facility.
Operative Documents. On or before the Closing Date, each of the Operative
Documents to be delivered at or before the Closing (as well as any other
agreements, certificates and other documents relating to the Overall
Transaction to be delivered at Closing (including, without limitation, the
Offering Circular)) shall have been duly authorized, executed and delivered by
the parties thereto (if attached as an Exhibit hereto, in substantially the
form attached as such Exhibit or if not so attached, in form and substance
satisfactory to each Transaction Party), shall each be in full force and
effect, and executed counterparts of each shall have been delivered to each of
the parties hereto (other than the Tax Indemnity Agreement, which shall only be
delivered to the parties thereto).
Certificates and the Lessor Notes. Each of the conditions precedent contained
in the Certificate Purchase Agreement shall have been satisfied or waived by
the Initial Purchasers and such Initial Purchasers shall have purchased the
Certificates pursuant to and in accordance with, the terms of the Certificate
Purchase Agreement and the Proceeds shall have been provided to the Owner
Lessor through the purchase by the Pass Through Trustees of the applicable
Lessor Notes.
Equity Investment. The Owner Participant shall have made or caused to be made
the Equity Investment available to the Owner Lessor at the place and in the
manner contemplated by Section 2.
Organizational Documents. Each of the Transaction Parties shall have received
certified copies of the organizational documents of each of the other parties
hereto and resolutions of the board of directors of each such other corporate
party duly authorizing the transaction and such documents and such evidence as
each party may reasonably request in order to establish the authority of each
such other party to consummate the transactions contemplated by this Agreement,
the taking of all corporate and other proceedings in connection therewith and
compliance with the conditions herein or therein set forth and the incumbency
of all officers signing any of the Operative Documents. Each of the foregoing
documents shall be reasonably satisfactory to each recipient thereof.
E. Representations and Warranties. The representations and warranties
of each party hereto set forth in Section 3 shall be true and correct on and
as of the Closing Date with the same effect as though made on and as of the
Closing Date.
Defaults, Events of Default, Events of Loss. No Lease Event of Default, Lease
Indenture Event of Default, Event of Loss or Burdensome Buyout Event or event
that with the passage of time or giving of notice or both would constitute a
Lease Event of Default, Lease Indenture Event of Default, Event of Loss or
Burdensome Buyout Event shall have occurred and be continuing.
Regulatory Approvals. Except with respect to the FERC Owner Lessor EWG Orders
status and the FERC Order referenced in clause (v) of the definition of "FERC
Orders" set forth in Appendix A hereto, the Owner Participant and the Pass
Through Trustees shall have received evidence of receipt of the FERC Orders.
27
F. Consents.
(a) All permits, licenses, approvals and consents (including
management, credit and other internal approvals of the Transaction Parties, but
excluding the Third Party Consents referred to in (b) below) necessary to
consummate the Overall Transaction and to own and operate the Facility as
currently operated shall have been duly obtained and shall be in full force and
effect and in the form and substance satisfactory to each of the Transaction
Parties.
(b) Each Third Party Consent shall have been obtained and shall be in
full force and effect substantially in the form attached hereto as Exhibit O
which is applicable to the relevant third party granting such consent; provided
that if any Third Party Consent is not substantially in the form attached
hereto as Exhibit O, an authorized officer of Calpine shall provide a
certificate to the Owner Lessor, the Indenture Trustee and the Pass Through
Trustee certifying that any differences between the form of such consent
attached hereto and the executed version are not materially adverse to any of
the Indenture Trustee, the Pass Through Trustee, the Noteholders, the
Certificateholders or the Owner Lessor.
28
Governmental Actions. All actions, if any, required to have been taken by any
Governmental Entity on or prior to the Closing Date in connection with the
transactions contemplated by any Operative Document, including, without
limitation, the FERC Orders, shall have been taken and, except with respect to
the determination by FERC of EWG status and the FERC Order referenced in clause
(v) of the definition of "FERC Orders" set forth in Appendix A hereto, all
Applicable Permits required to be in effect on the Closing Date in connection
with the consummation of the transactions contemplated by the Operative
Documents shall have been issued and shall be in full force and effect; and all
such Applicable Permits shall be final, in full force and effect on the Closing
Date.
Insurance. Insurance (including all related endorsements) complying with the
requirements of Schedule 5.31 shall be in full force and effect and all
premiums thereon shall be current. The Owner Participant, the Manager, the
Lessor Manager, the Indenture Trustee and the Pass Through Trustees shall have
received a certificate or certificates (or binders, if certificates are not
then available) dated the Closing Date of Summit Global Partners Insurance
Services or an independent insurance broker or carrier reasonably satisfactory
to such Persons stating that such insurance complies with the requirements of
Schedule 5.31, is in full force and effect and all premiums then due and
payable in connection therewith have been paid.
Ratings. The Certificates shall have been rated at least Ba1 by ▇▇▇▇▇'▇ and BB+
by S&P.
Environmental Report. The Owner Participant, the Manager, the Indenture Trustee
and the Pass Through Trustees shall have received copies of the Environmental
Reports which shall be in form and substance satisfactory to such parties. The
Facility Lessee shall cause the Environmental Consultant to deliver at the same
time a reliance letter addressed to the Owner Lessor, the Manager and the Owner
Participant allowing them to rely on such reports as if addressed to each of
them.
Surveys. The Owner Participant shall have a copy of the Survey (which Survey
shall be certified to the Owner Lessor and the Title Company) in form and
substance satisfactory to the Owner Participant.
Appraisal; Condition of the Facility. The Owner Participant shall have received
the Closing Appraisal prepared by the Appraiser addressed and delivered only to
the Owner Participant and in form and substance satisfactory to the Owner
Participant, together with a letter of the Appraiser certifying that its
conclusions set forth in the Closing Appraisal are true and correct as of the
Closing Date. The Indenture Trustee, the Pass Through Trustees and the Initial
Purchasers shall have received a copy of the verification of value, useful life
and estimated residual value prepared by the Appraiser in connection with the
appraisal of assets subject to the Facility Lease, each of which will be
reasonably satisfactory to the recipient.
G. Letter from the Appraiser. Each of the Owner Lessor and the Manager
shall have received a satisfactory letter of the Appraiser setting forth the
conclusions of the Closing Appraisal as to the fair market value and remaining
economic useful life of the Facility as of the Closing Date and the methodology
of determination thereof.
29
Other Reports. The Owner Participant, the Indenture Trustee and the Pass
Through Trustees shall have received copies of the reports of the Engineering
Consultant, the Insurance Consultant, and the Power Market Consultant, which
reports shall be dated as of the Closing Date and shall otherwise each be in
form and substance reasonably satisfactory to the recipients.
Opinion with Respect to Certain Tax Aspects. The Owner Participant shall have
received the opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP addressed
and delivered only to the Owner Participant as to certain tax matters and in
form and substance satisfactory to the Owner Participant.
Opinions of Counsel. Each of the relevant Transaction Parties shall have
received an opinion or opinions, dated the Closing Date, of (a) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., in-house counsel to the Facility Lessee and Guarantor (which
opinion shall include, without limitation, a favorable opinion with respect to
the transfer by Facility Lessee of its interest in the Undivided Interest and
the Ground Interest to the Owner Lessor), (b) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special
counsel to the Facility Lessee and Guarantor, (c) ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
special regulatory counsel to the Facility Lessee, (d) ▇▇▇▇▇▇ Law Firm, P.A.,
South Carolina counsel to the Facility Lessee, (e) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.,
in-house counsel to the Equity Investor, (f) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to
the Owner Participant and to the Owner Lessor, (g) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to
the Lease Indenture Company and the Indenture Trustee, (h) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
counsel to the Pass Though Trustees and the Pass Through Company, and (i) ▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, in-house counsel to the Lessor Manager, in each case in form
and substance reasonably satisfactory to each Transaction Party. Each such
Person expressly consents to the rendering by its counsel of the opinion
referred to in this Section 4.19 and acknowledges that such opinion shall be
deemed to be rendered at the request and upon the instructions of such Person,
each of whom has consulted with and has been advised by its counsel as to the
consequences of such request, instructions and consent. Furthermore, each such
counsel shall, to the extent requested, permit the Rating Agencies and the
Initial Purchasers to rely on their opinion as if such opinion were addressed
to such parties.
H. Recordings and Filings. All filings and recordings listed on Schedule
4.20 hereto shall have been duly made and all filing, recordation, transfer and
other fees payable in connection therewith shall have been paid; and the filing
of all precautionary financing statements under the Uniform Commercial Code of
South Carolina and Delaware and any other documents as may be reasonably
requested by counsel to the Owner Participant, the Indenture Trustee or the
Pass Through Trustees to perfect (i) the Owner Lessor's Interest, or any part
thereof or interest therein and (ii) and the Lien of the Indenture Trustee on
the Indenture Estate.
Conditions to Closing. All conditions required to have been satisfied by on or
before the Closing Date under the Operative Documents and the FILOT Lease shall
have been satisfied or waived and the Owner Participant shall be satisfied that
the Facility shall be in the condition described in the Closing Appraisal.
Taxes. All Taxes, if any, due and payable on or before the Closing Date in
connection with the execution, delivery, recording and filing of this Agreement
or any other Operative Document, or any document or instrument contemplated
thereby shall have been duly paid in full.
30
No Changes in Applicable Law. No change shall have occurred in Applicable Law
or the interpretation thereof by any competent court or other Governmental
Entity that would make it illegal for the Owner Participant, the Owner Lessor,
the Lessor Manager, the Indenture Trustee, the Pass Through Trustees or the
Facility Lessee, to participate in any of the transactions contemplated by the
Operative Documents or the Owner Lessor to participate in any of the
transactions contemplated by the FILOT Lease or would materially adversely
affect the Facility or the Facility Site. On the Closing Date, each
Certificateholder's purchase of Lessor Notes shall (i) be permitted by the laws
and regulations of each jurisdiction to which such Certificateholder is
subject, (ii) not violate any Applicable Law (including Regulation U, T or X of
the Board of Governors of the Federal Reserve System) and (iii) not subject any
Certificateholder to any tax, penalty or liability under or pursuant to any
Applicable Law, which Applicable Law was not in effect on the date hereof. If
requested by any Certificateholder, such Certificateholder shall have received
an Officer's Certificate of the Owner Lessor, in form and substance
satisfactory to such Certificateholder, certifying as to such matters of fact
as such Certificateholder may reasonably specify to enable such
Certificateholder to determine whether such purchase is so permitted.
Registered Agent for the Facility Lessee and the Owner Lessor. National
Registered Agents, Inc. shall have been appointed by the Facility Lessee, and
CT Corporation System shall have been appointed by the Owner Lessor, each as
registered agent for service of process in the State of New York as provided in
the Operative Documents and each of National Registered Agents, Inc. and CT
Corporation System shall have accepted such appointments.
Operating Lease Treatment. The present value of Basic Rent payable during the
Basic Lease Term under the Facility Lease (taking into account any rent
adjustment through or contemplated on the Closing Date), together with all rent
payable under the related Facility Site Lease, discounted at the Discount Rate,
shall satisfy the 90 percent test for operating lease classification under FASB
13. The Facility Lessee shall have received confirmation from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP that the Facility Lease will be treated as an operating lease under FASB 13
and FASB 98 for the purposes of GAAP.
Rent Adjustments. The aggregate of all rent adjustments made on or before, or
contemplated to be made on, the Closing Date (other than adjustments to reflect
a change in Transaction Costs or the actual interest rates on the Certificates)
shall not cause either (i) the pre-tax net present value of Basic Rent
discounted at 6% to increase by more than 100 basis points or (ii) the total
Basic Rent to increase by more than 2%.
Title Insurance. The Title Policy shall have been delivered to the Owner
Participant, the Owner Lessor, the Indenture Trustee, as the case may be, with
copies to the Pass Through Trustees.
Parent Guaranty. The OP Guarantor shall have executed and delivered to the
other Transaction Parties an OP Parent Guaranty in the form of Exhibit G hereto.
Letter as to Number of Offerees. (i) The Owner Participant and the
Certificateholders shall have received a certification from the Facility Lessee
as to the number of offerees by it of the Lessor Estate and (ii) the Facility
Lessee shall have received certification from the Newcourt Capital Securities,
Inc. as to the number of offerees by it of the Lessor Estate and (iii) the
Facility Lessee
31
shall have received certification from CSFB as to the number of offerees by it
of the Lessor Estate.
I. Lien Search. The Owner Participant (with a copy to the Indenture
Trustee) shall have received Lien searches with respect to the Facility Lessee
in form and substance satisfactory to the Owner Participant.
Litigation. There shall be no actions, investigations, suits or proceedings
pending or threatened against the Facility Lessee and/or the Calpine Parties or
their properties before any court or Governmental Entity which, individually or
in the aggregate, would, if adversely determined, be reasonably likely to have
a Material Adverse Effect (including, but not limited to, the Facility Lessee,
the Owner Participant, the Owner Lessor or the Certificateholders being subject
to or not exempted from regulation as a "public utility company" or a "holding
company" under PUHCA or under state laws and regulations respecting the rates
or the financial and organizational regulation of electric utilities), nor
shall any order, judgment or decree have been issued or proposed by any
Governmental Entity at the time of the Closing Date, to set aside, restrain,
enjoin or prevent the consummation of the Operative Documents or the FILOT
Lease or any of the Transactions contemplated by any of the Operative Documents.
No Material Adverse Change. The annual reports, information, documents and
other reports referred to in Section 3.2(a) of the Calpine Guaranty shall have
been received by the Owner Participant, and there shall have been no material
adverse change in the financial condition, business assets or operation of
Calpine and its Consolidated Subsidiaries since the date of such annual
reports, information, documents and other reports.
Private Placement Number. A private placement number issued by S&P's CUSIP
Service bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
the Certificates.
Proceedings and Documents. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory to
the Facility Lessee, the Owner Participant and the Initial Purchasers and their
respective special counsel, and such parties and their respective special
counsel shall have received all such information and counterpart originals or
certified or other copies of such documents and certificates as each such party
or its special counsel may reasonably request in connection with the matters
contemplated hereby and by the other Operative Documents.
No Proposed Tax Law Change. There has been no Proposed Tax Law Change for which
an adjustment has not been made pursuant to Section 12 of this Agreement.
J. Payment of Fees and Expenses. Without limiting the provisions of
Section 2.3, all Transaction Costs invoiced at least 3 Business Days prior to
Closing to the Owner Participant with a copy to the Facility Lessee shall be
paid promptly after the Closing Date (but no later than October 29, 2001).
K. Corrective Ordinance. The Facility Lessee shall have received a copy
of the Corrective Ordinance.
32
COVENANTS OF FACILITY LESSEE AND GUARANTOR
The Facility Lessee and the Guarantor, to the extent provided below,
covenant as follows;
Maintenance of Existence. Except as permitted by Section 5.2, the Facility
Lessee, at its own cost and expense, will at all times do or cause to be done
all things necessary to preserve and keep in full force and effect both its
legal existence and its qualification to do business in any state in which the
conduct of its business or the ownership or leasing of assets used in its
business requires such qualification and where the failure to be so qualified
would reasonably be expected to have a Material Adverse Effect.
Merger, Consolidation, Sale of Substantially All Assets. The Facility Lessee
covenants and agrees as follows:
The Facility Lessee will not consolidate or merge with or into any other
Person, or sell, assign, convey, lease, transfer or otherwise dispose of,
all or substantially all of its properties or assets to any Person or
Persons in one or a series of transactions, unless (i) immediately after
giving effect to any such transaction or transactions, either (A) Calpine
would own, directly or indirectly, at least a majority of the Ownership
Interest of each succeeding or surviving entity, the Calpine Guaranty
remains in full force and effect (without a transferee of Calpine's
obligations thereunder having succeeded thereto in accordance with Section
8.4(b) thereof) and Calpine shall have reaffirmed in writing its
obligations under the Calpine Guaranty and the other Operative Documents
to which Calpine is a party in a manner reasonably satisfactory to the
Owner Participant and the Owner Lessor or (B) Calpine's obligations under
the Calpine Guaranty have been succeeded to in accordance with Section
8.4(b) of the Calpine Guaranty, the transferee of Calpine shall own,
directly or indirectly, at least a majority of the Ownership Interest of
each succeeding or surviving entity and the Calpine Guaranty shall remain
in full force and effect, (ii) immediately after giving effect to such
transaction, the requirements set forth in Section 13.1(b)(i) through (vi)
of this Agreement (with appropriate conforming changes to take into
account the nature of the transactions referred to hereunder) have been
satisfied in connection with such transfer, and (iii) each succeeding or
surviving entity shall be organized under the laws of the United States,
any state thereof or the District of Columbia.
Upon the consummation of such transaction described in Section 5.2(a), the
resulting, surviving or succeeding entity, if other than the Facility
Lessee, shall succeed to, and be substituted for, and may exercise every
right and power and shall perform every obligation of, the Facility Lessee
under this Participation Agreement and each other Operative Document to
which the Facility Lessee was a party immediately prior to such
transaction, with the same effect as if such entity had been named herein
and therein. The Facility Lessee will pay the costs and expenses
(including reasonable attorneys' fees and expenses) of the Owner
Participant, the Owner Lessor, the Lessor Manager, the Indenture Trustee,
the Pass Through Trustees and the Certificateholders in connection with
any transaction contemplated by this Section 5.2.
Guaranty and Contingent Obligations. The Facility Lessee will not create,
incur, assume or suffer to exist any Indebtedness (including without limitation
any guaranty or other contingent
33
obligations) except (i) by reason of endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of the
Facility Lessee's business, (ii) indemnities in respect of unfiled mechanics'
liens and other liens permitted by clause (d) of the definition of "Permitted
Liens", (iii) contingent obligations set forth in, or incurred in connection
with, or indemnities set forth in, the Operative Documents and the FILOT Lease,
(iv) unsecured indemnities provided, and other unsecured contingent obligations
incurred by the Facility Lessee in connection with either (x) easements
relating to its applicable interest in the Facility or the Facility Site or (y)
any contract, agreement or other document or instrument relating to the Broad
River project which is entered into in the ordinary course of the Facility
Lessee's business, (v) customary indemnities in favor of the title insurers
providing the title policies covering the Facility Site or any portion thereof
or any easement or appurtenant right relating thereto in respect of claims by
the holder of mechanics' liens, (vi) the indemnities referred to in Section 9.1
and 9.2 of the Participation Agreement or pursuant to the Tax Indemnity
Agreement and (vii) unsecured Indebtedness incurred in accordance with Section
11.1 or 11.2 hereof.
Assignment of Rights. The Facility Lessee shall not assign any of its rights or
obligations except as permitted by the Operative Documents and the FILOT Lease.
Lessor Manager Fees. The Facility Lessee and Calpine shall pay the fees, costs
and expenses of the Lessor Manager (including the reasonable compensation and
expenses of its counsel), as set forth in a letter agreement approved by the
Facility Lessee arising out of the Owner Lessor's and the Owner Participant's
discharge of their duties under or in connection with the Operative Documents
and the FILOT Lease, as in effect on the Closing Date.
Conduct of Business, Properties, Etc. Except as otherwise expressly permitted
under this Agreement, the Facility Lessee shall (a) perform and comply with all
of its contractual obligations under the Operative Documents to which it is a
party and all other material agreements and contracts by which it is bound,
unless (other than in connection with the Operative Documents) such
noncompliance would not cause a Material Adverse Effect, and (b) engage only in
the business contemplated by the Operative Documents to which it is a party.
Obligations. The Facility Lessee shall pay all of its obligations, howsoever
arising, as and when due and payable except such as may be contested in good
faith or as to which a bona fide dispute may exist; provided, that (i) adequate
reserves consistent with GAAP requirements are maintained for such contested or
disputed obligations or (ii) the Facility Lessee otherwise establishes and
maintains adequate security arrangements for the payment of such contested or
disputed obligations which are reasonably acceptable to the Owner Participant.
L. Books, Records, Access. The Facility Lessee shall maintain or cause
to be maintained adequate books, accounts and records with respect to itself,
the Facility and Facility Site and prepare all financial statements required
hereunder in accordance with GAAP and in compliance with the regulations of any
Governmental Entity having jurisdiction thereof, and permit employees, agents
and representatives of the Owner Lessor, the Owner Participant, and, so long as
the Lien of the Collateral Trust Indenture shall have not been terminated or
discharged, the Indenture Trustee, the Pass Through Trustees and the
Certificateholders, and such parties' independent consultants, at all
reasonable times during normal business hours and upon reasonable prior notice
and at no risk or (except during the existence of a Lease Default or
34
Lease Event of Default) expense to the Facility Lessee to inspect, the Facility
and Facility Site, to examine or audit all of or any of the Facility Lessee's
books, accounts and records and make copies and memoranda thereof and, together
with such consultants, to observe the operation, maintenance and repair of the
Facility; provided, however, any such inspection shall be conducted in
accordance with Section 12 of the Facility Lease.
Other Information.
1. The Facility Lessee shall furnish, or shall cause to be
furnished to, the Owner Lessor, the Owner Participant and, so
long as the Lien of the Collateral Trust Indenture has not been
terminated or discharged, the Indenture Trustee and the Pass
Through Trustees, and their respective authorized
representatives from time to time such information as such
party shall reasonably request concerning the Facility and
Facility Site including information concerning the condition,
operation, maintenance and use of the Facility and Facility Site
and such other financial or operating information as it shall
reasonably request and which is routinely made available to
creditors of the Facility Lessee, to the extent it possesses
such information; provided that, the Facility Lessee reserves
the right not to provide any information that is not otherwise
publicly available to any transferee Owner Participant (or its
Owner Lessor) if it reasonably believes in its good faith
judgment that such transferee Owner Participant or any Affiliate
thereof is a competitor or is an Affiliate of a competitor of
the Facility Lessee or its Affiliates in the competitive power
market, unless, before receiving any such information, such
transferee Owner Participant shall have put in place (to the
reasonable satisfaction of the Facility Lessee) appropriate
confidentiality arrangements. To the extent such information
consists of information contained in records kept by the
Facility Lessee or any Affiliate, such information shall be
furnished without cost to the recipient.
(b) The Facility Lessee will advise the Owner Participant, the
Owner Lessor, the OP Guarantor, the Pass Through Trustees and the Indenture
Trustee promptly in writing of the occurrence of any Significant Lease Default,
Lease Event of Default or Lease Indenture Event of Default (to the extent the
Facility Lessee has Actual Knowledge of any such Lease Indenture Event of
Default) and, as soon as practicable thereafter, will provide a description
thereof and a statement as to the actions, if any, the Facility Lessee proposes
to take with respect thereto.
M. Warranty of Title to Facility Site.
1. On and after the Post-FILOT Lease Conversion Date, the Facility
Lessee shall maintain good and valid fee, title to, or easement
or other surface rights in, as applicable, the Facility Site,
subject only to Permitted Liens.
2. The Facility Lessee shall maintain good and valid title to all
of its other properties and assets (other than properties and
assets disposed of in the
35
ordinary course of business, including any sale, transfer or
other disposition of any obsolete, surplus or worn out
equipment, parts, supplies or other materials or assets to
the extent permitted by the Operative Documents), subject
only to Permitted Liens.
ERISA. The Facility Lessee shall not establish, maintain or contribute to, any
Plan. If any Plan is established, maintained or contributed to by either the
Facility Lessee or any ERISA Affiliate, or if the Facility Lessee or any ERISA
Affiliate becomes obligated to contribute to any Plan, (a) with respect to each
such Plan, the Facility Lessee or such ERISA Affiliate (i) shall have at all
times fulfilled in all material respects their obligations under the minimum
funding standards of ERISA and the Code, (ii) shall not allow any such Plan to
have an Unfunded Current Liability, (iii) shall, with respect to each Plan (and
each related trust, if any) which is intended to be qualified under Sections
401(a) and 501(a) of the Code, obtain a determination letter from the Internal
Revenue Service to the effect that such Plan (and trust, if any) meets the
requirements of Sections 401(a) and 501(a) of the Code, and (iv) shall at all
times be in compliance in all material respects with applicable provisions of
ERISA and the Code, and (b) within fifteen (15) days after (i) the occurrence
of any reportable event (as defined in Section 4043(c) of ERISA) with respect
to any Plan, (ii) the complete or partial withdrawal by the Facility Lessee or
any ERISA Affiliate from any Multiemployer Plan, (iii) to the extent the
Facility Lessee or any ERISA Affiliate is notified that any Multiemployer Plan
has entered reorganization status, has become insolvent, or has terminated (or
any Multiemployer Plan notifies the Facility Lessee or any ERISA Affiliate of
its intent to terminate) under Section 4041A of ERISA, (iv) the institution of
any action to terminate a Plan in a distress termination under Section 4041(c)
of ERISA, or (v) in the case of the breach of any other covenant contained in
this Section 5.11, the Facility Lessee shall report such occurrence or breach
to the Indenture Trustee, the Pass Through Trustees, the Owner Lessor and the
Owner Participant and furnish such information as such Persons may reasonably
request with respect thereto.
Certain Contracts and Agreements. Without the consent of the Owner Participant,
the Facility Lessee agrees that, except as required by the Operative Documents
or the FILOT Lease, it will not enter into or become bound by any contract or
agreement providing for the sale of energy produced from the Facility, or the
purchase of services to be performed at, for or in connection with, the
Facility or any other contract or agreement relating to the Facility that (i)
has a term that extends beyond the Basic Lease Term or the scheduled expiration
of any Renewal Lease Term then in effect or elected by the Facility Lessee,
unless such contract or agreement may be terminated by the Facility Lessee
without material costs or obligation prior to the Basic Lease Term or the
scheduled expiration of such Renewal Lease Term, as the case may be or (ii)
results in any lien, encumbrance, restriction or agreement relating to the
Facility which extends beyond the expiration of the Facility Lease Term or
which binds the Facility or the owner of the Facility beyond the expiration of
the Facility Lease Term; provided that nothing in this Section 5.12 shall
prevent the Operator from entering agreements to operate the Facility in
accordance with the Operative Documents and the FILOT Lease.
Certain Costs. The Facility Lessee agrees to pay to the Owner Lessor as
Supplemental Rent (i) overdue interest with respect to the Lessor Notes issued
under the Collateral Trust Indenture if the same is due and payable because of
the occurrence of a Lease Indenture Event of Default which is attributable to a
Lease Event of Default and (ii) an amount equal to any Make-Whole
36
Amount which has become due and payable with respect to the Lessor Notes under
the Collateral Trust Indenture.
Limitations on Liens. The Facility Lessee shall not, directly or indirectly,
create, assume or permit to exist any Lien, securing a charge or obligation on
the Facility, the Facility Site or on any of its other properties real or
personal, whether now owned or hereafter acquired, except Permitted Liens.
N. Investments. The Facility Lessee shall not make or permit to remain
outstanding any advances, loans or extensions of credit to, or purchase or own
any stock, bonds, notes, debentures or other securities of any Person, except
Permitted Investments.
O. Intentionally Deleted.
Regulations. The Facility Lessee shall not, directly or indirectly, apply the
proceeds of the sale of Lessor Notes or any other revenues to the purchasing or
carrying of any margin stock within the meaning of Regulations T, U or X of the
Federal Reserve Board, or any regulations, interpretations or rulings
thereunder.
Partnerships. The Facility Lessee shall not become a general or limited
partner in any partnership or a joint venturer in any joint venture.
Dissolution. The Facility Lessee shall not liquidate or dissolve, except
pursuant to transactions permitted under Section 5.2.
Termination of Operative Documents; Delegation of Authority.
1. The Facility Lessee shall not without the prior written consent
of the Owner Participant and, except as otherwise provided in
Section 8 of the Collateral Trust Indenture and so long as the
Lien of the Collateral Trust Indenture has not been terminated
or discharged, the Indenture Trustee, (x) cause or consent to or
(y) acquiesce in any amendment, modification, extension,
termination, variance or waiver of timely compliance with any
terms or conditions of any Operative Document. In addition, the
Facility Lessee shall not enter into or acquiesce in any
amendment, modification, extension, termination, variance or
waiver of timely compliance with any terms or provisions of the
FILOT Lease without the consent of the Owner Participant if the
same would (i) subject in all cases to the provisions of clause
(iii) below, during the Facility Lease Term, have a material
adverse effect on the Owner Participant or the Owner Lessor
(including, without limitation, any material decrease in their
respective rights or any material increase in their respective
obligations or any material increase in the liability exposure
of the Owner Lessor or the Owner Participant, it being agreed
that (x) in determining whether any such material adverse effect
has occurred, the fact of the Facility Lessee's obligations
under the Operative Documents (including paragraph (b) below)
and of Calpine under the Calpine Guaranty shall be taken into
account and (y) any increase in rent or any other amount payable
by the Owner Lessor or the
37
Owner Participant under the FILOT Lease that is also reflected
to the same extent under the Facility Site Lease and does not
remain in effect after the expiration of the then existing Basic
Lease Term or any Renewal Term with respect to which the
Facility Lessee shall have irrevocably exercised its renewal
option shall not constitute or cause or be deemed to constitute
or cause such a material adverse effect), (ii) during the period
after the expiration or termination of the Facility Lease Term,
have any adverse effect whatsoever on the Owner Participant or
the Owner Lessor (including, without limitation, any increase in
their respective obligations or decrease in their respective
rights) or (iii) whether during or after the Facility Lease
Term, result in any change to the length of the term of the
FILOT Lease or in any option to renew the Facility Lease Term.
The Facility Lessee will furnish the Owner Participant with a
copy of the executed version thereof promptly after the
execution thereof. Notwithstanding anything to the contrary
contained in the foregoing, the Facility Lessee shall not have
any right to take any action otherwise permitted pursuant to
this Section 5.20 if a Significant Lease Default or Lease Event
of Default shall have occurred and be continuing. So long as
the Lien of the Collateral Trust Indenture has not been
discharged, the Facility Lessee shall not take any action
pursuant to or in accordance with the foregoing provisions of
this Section 5.20, if such action would (i) have a material
adverse effect on the Indenture Trustee, the Pass Through
Trustees, the Noteholders or the Certificateholders including,
without limitation, a material adverse effect on such Person's
rights and remedies under the Operative Documents (it being
agreed that (x) in determining whether any such material adverse
effect has occurred, the fact of the Facility Lessee's
obligations under the Operative Documents (including paragraph
(b) below) and Calpine's obligations under the Calpine Guaranty
shall be taken into account and (y) any increase in rent or any
other amount payable by the Owner Lessor or the Owner
Participant under the FILOT Lease that is also reflected to the
same extent under the Facility Site Lease ) shall not constitute
or cause such a material adverse effect) or (ii) result in the
release of or loss of the first priority, perfected Lien
(subject to Permitted Liens) on all or any material portion of
the Owner Lessor's interest in the Facility or the Facility
Site, except as otherwise permitted by the Operative Documents.
2. During the Facility Lease Term (i) the Facility Lessee shall,
at its own expense, on behalf of the Owner Lessor, duly fulfill
and comply with all obligations on the part of the Owner Lessor
under or in connection with the FILOT Lease (or any extension or
renewal thereof) at the time performance of such obligations is
required under the FILOT Lease and (ii) in connection with the
foregoing obligation of the Facility Lessee set forth in clause
(i), subject to clause (a) above, the Facility Lessee shall have
and be entitled to exercise all rights and benefits (including
the right to enter into any amendment, modification, extension,
termination, variance, waiver, notice or consent or any action
with respect thereto,
38
subject to the terms and conditions of the Operative Documents)
of the Owner Lessor under the FILOT Lease.
Name and Location. The Facility Lessee shall not change its name or the
location of its chief executive office or place of business without notice to
the Owner Lessor, the Lessor Manager, the Indenture Trustee, the Pass Through
Trustees and the Owner Participant at least thirty (30) days prior to such
change.
Use of Facility Site. The Facility Lessee shall not use, or permit to be used,
the Facility Site for any purpose other than for the operation and maintenance
of the Facility, except as otherwise required or permitted under the Operative
Documents and/or the FILOT Lease.
Abandonment of Facility. The Facility Lessee shall not voluntarily abandon the
operation, maintenance or repair the Facility, except as otherwise permitted by
the Operative Documents.
Taxes, Other Government Charges and Utility Charges. The Facility Lessee shall
pay, or cause to be paid, as and when due and prior to delinquency, all taxes,
assessments and governmental charges of any kind that may at any time be
lawfully assessed or levied against or with respect to the Facility Lessee, its
interests in the Facility Site and Facility, all utility and other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Facility or the Facility Site, and all assessments and charges lawfully made by
any Governmental Entity for public improvements that may be secured by a Lien
on any part of the Facility; provided, that the Facility Lessee may contest in
good faith any such taxes, assessments and other charges and, in such event,
may permit the taxes, assessments or other charges so contested to remain
unpaid during any period, including appeals, when the Facility Lessee is in
good faith contesting the same, so long as (a) adequate reserves consistent
with GAAP requirements (or other security arrangements reasonably satisfactory
to the Indenture Trustee and the Owner Participant) are established and
maintained in an amount sufficient to pay any such taxes, assessments or other
charges, accrued interest thereon and potential penalties or other costs
relating thereto, or other adequate provision for the payment thereof shall
have been made, and (b) any tax, assessment or other charge determined to be
due, together with any interest or penalties thereon, is immediately paid after
resolution of such contest.
Compliance with Laws, Instruments, Etc. At its expense, the Facility Lessee
shall promptly (a) comply or cause compliance with all Applicable Laws,
including those relating to pollution control, environmental protection, equal
employment opportunity plans, Plans and employee safety, with respect to
itself, the Facility or Facility Site, whether or not compliance therewith
shall require structural changes in the Facility or any part thereof or require
major changes in operational practices or interfere with the use and enjoyment
of the Facility or any part thereof, and (b) procure, maintain and comply, or
cause to be procured, maintained and complied with, all Applicable Permits,
except in the case of clause (a) and (b) above (1) as may be contested in
accordance with Section 7 or 8 of the Facility Lease and (2) the Facility
Lessee may, in good faith and by appropriate proceedings, diligently contest
the validity or application of any such Applicable Laws in any reasonable
manner which does not involve any danger of (i) foreclosure, sale, forfeiture
or loss of, or imposition of a material Lien on the Facility, (ii) impair the
use, operation or maintenance of the Facility in any material respect, (iii)
any criminal liability being incurred by the Owner Participant, the Owner
Lessor, the Lessor Manager, the Indenture Trustee,
39
the Lease Indenture Company, the Pass Through Trustees, the Pass Through
Company or any Certificateholder, (iv) the Owner Participant, the Owner Lessor,
the Lessor Manager, the Indenture Trustee, the Lease Indenture Company, the
Pass Through Trustees, the Pass Through Company or any Certificateholder being
subjected to any unindemnified civil liability or of the Owner Participant or
the Owner Lessor being subject to regulation as a public utility under
Applicable Law, or (v) any Material Adverse Effect.
PUHCA. The Facility Lessee shall not take any action or fail to take any action
within its control that would subject the Owner Lessor, the Lessor Manager, the
Owner Participant, the Indenture Trustee or the Pass Through Trustees to
regulation under PUHCA.
Further Assurances. The Facility Lessee, at its own cost, expense and
liability, will cause to be promptly and duly taken, executed, acknowledged and
delivered all such further acts, documents and assurances as may be necessary
in order to carry out the intent and purposes of this Participation Agreement
and the other Operative Documents, and the transactions contemplated hereby and
thereby. The Facility Lessee, at its own cost, expense and liability, will
cause such financing statements and fixture filings (and continuation
statements with respect thereto) as may be necessary and such other documents
as the Owner Participant, the Owner Lessor and, so long as the Lien of the
Collateral Trust Indenture shall not have been terminated or discharged, the
Indenture Trustee and the Pass Through Trustees shall reasonably request to be
recorded or filed at such places and times in such manner, and will take all
such other actions or cause such actions to be taken, as may be necessary in
order to establish, preserve, protect and perfect the right, title and interest
of the Owner Lessor in and to the Undivided Interest, the Ground Interest, any
Component or any portion of any thereof or any interest therein and the first
priority Lien intended to be created by the Collateral Trust Indenture therein.
The Facility Lessee shall promptly from time to time furnish to the Owner
Participant, the Owner Lessor or, so long as the Lien of the Collateral Trust
Indenture shall not have been terminated or discharged, the Indenture Trustee
or the Pass Through Trustees such information with respect to the Facility or
the Facility Site or the transactions contemplated by the Operative Documents
to which the Facility Lessee is a party and the performance of the FILOT Lease
as may be required to enable the Owner Participant, the Owner Lessor or, so
long as the Lien of the Collateral Trust Indenture shall not have been
terminated or discharged, the Indenture Trustee or the Pass Through Trustees,
as the case may be, to timely file with any Governmental Entity any reports and
obtain any licenses or permits required to be filed or obtained by the Owner
Lessor under any Operative Document or the FILOT Lease, the Owner Participant
as the owner of the Member Interest or the Indenture Trustee. The Facility
Lessee will preserve, protect, defend and enforce, or cause to be preserved,
protected, defended and enforced, the rights of itself, the Owner Lessor and
the Owner Participant under each and every Operative Document to which it is a
party (including by assignment and assumption of the rights thereunder),
including using commercially reasonable efforts to prosecute suits to enforce
any such rights and, at the request of Indenture Trustee, so long as the Lien
of the Collateral Trust Indenture has not been discharged or terminated (and
thereafter at the request of the Owner Participant), permit the Indenture
Trustee and the Owner Participant, at their respective cost and expense, to
participate in such capacity as it may choose in any such suit, any defense
thereof or in the preparation therefor; provided, however, that upon the
occurrence and during the continuance of any Lease Event of Default, if the
Indenture Trustee or the Owner Participant request that certain actions be
taken and the Facility Lessee fails to take the requested action, or to cause
the requested action to be taken within (5) Business
40
Days, the Indenture Trustee, so long as the Lien of the Collateral Trust
Indenture has not been discharged or terminated, and the Owner Lessor may, at
the Facility Lessee's reasonable expense, enforce, in its own name, or the
Facility Lessee's name, such rights of the Facility Lessee.
No Subsidiaries. The Facility Lessee shall not create or suffer to exist any
Subsidiaries.
Permitted Business. The Facility Lessee shall not engage in any business or
activities other than the lease, operation, maintenance and marketing and sale
of the output, fuel or other products from, or relating or incidental to, the
Facility leased by the Facility Lessee. Notwithstanding any of the foregoing
the Facility Lessee may not change the nature of its business.
P. Support Arrangements. The Facility Lessee agrees that, to the extent
that the rights described in Section 3.1(n) which have already been made
available to the Owner Lessor prior to the expiration or termination of the
Facility Lease Term, and any rights assigned pursuant to the last sentence of
this Section 5.30, are insufficient to permit on a commercially practicable
basis during the period following the expiration or termination of the Facility
Lease Term, until the end of the Facility's useful life as set forth in the
Closing Appraisal, (i) the location, occupation, interconnection (including
with respect to electricity, steam, gas and water), maintenance and repair of
the Facility, (ii) the use, operation and possession of the Facility, (iii) the
use, operation, possession, maintenance, replacement, renewal and repair of all
Improvements then required to be made to the Facility, (iv) adequate ingress to
and egress from the Facility in connection with the ownership, use, maintenance
or operation of the Facility, (v) adequate transmission of electricity from the
Facility to enable such Person to deliver the net electrical and steam output
of the Facility on a commercially reasonable basis and (vi) the interest of the
Owner Lessor (or any successor) in the Undivided Interest or the Ground
Interest, the Facility Lessee will cause Calpine to provide, and Calpine will
provide, the Owner Lessor with any additional services relating to the Owner
Lessor's Interest and operation of the Facility substantially in the same
manner as operated as of the Closing Date (to the extent Calpine or any
Affiliate thereof then owns or controls the physical assets and/or contractual
rights necessary to provide such services (or can enter into contracts on a
commercially reasonable basis for such ownership, control or other rights) and
remains in the business of providing such services) necessary to permit the
Owner Lessor to use the Facility as described in (i) through (vi) above. Such
arrangements will provide for fair market value compensation to Calpine
(payable periodically on no more frequently than a monthly and no less
frequently than on a quarterly basis) and will terminate upon the later of the
expiration or termination of the FILOT Lease or the Springing Facility Site
Lease, or earlier at the option of the Owner Lessor. The Facility Lessee shall
also, subject to obtaining any required third party consents, assign to the
Owner Lessor upon termination of the Facility Lease any support or similar
agreements to the extent relating to the Facility it has with third parties.
Q. Insurance. The Facility Lessee shall comply with the covenants set
forth in Schedule 5.31.
R. Tax Status. The Facility Lessee and each Person owning an Ownership
Interest therein will not voluntarily take any action to cause the Facility
Lessee to be subject to taxation as a separate entity for federal income tax
purposes.
41
S. Transmission Assets.
1. If and to the extent that on the Closing Date the FERC Order
referred to in clause (v) of the definition thereof has not been
obtained with respect to the jurisdictional facilities referred
to therein (which facilities are identified in Exhibit A as
Transmission Assets (the "Transmission Assets")), the Owner
Participant shall, upon 5 days prior written notice to the
Facility Lessee, and subject to the grant of the aforesaid
order, cause the Owner Lessor to acquire an undivided interest
equal to the Owner Lessor's Percentage in the Facility Lessee's
right, title and interest in the Transmission Assets, for a
price equal to $1.00. Upon payment by the Owner Lessor of such
amount, the Facility Lessee shall execute and deliver such
documentation as is reasonably requested by the Owner Lessor to
transfer such undivided interest in the Facility Lessee's right,
title and interest in the Transmission Assets to the Owner
Lessor. Upon such transfer such Undivided Interest shall be and
shall be deemed to be an integral part of the Undivided Interest
(to the extent constituting a portion of the Facility) and the
Ground Interest (to the extent constituting a portion of the
leasehold interest in the Facility Site) for all purposes of the
Operative Documents without the necessity of amending or
supplementing any Operative Document, subject nevertheless to
Section 14.15 hereof.
2. Without limiting Section 10 hereof or Section 4.2 of the
Facility Lease, the Facility Lessee agrees that from and after
the Closing Date and until the earlier to occur of (A) the
transfer referred to in clause (a) above and (B) the termination
of the Facility Lease, the Facility Lessee shall make available
to the Owner Lessor, for no additional compensation, such rights
in the Transmission Assets solely to the extent as shall be
necessary so that the representation in Section 3.1(n) will be
correct to the same extent as if such transfer had occurred on
the Closing Date.
II. COVENANTS OF THE OWNER LESSOR, THE TRUST COMPANY AND THE LESSOR MANAGER
Compliance with the LLC Agreement. Each of the Owner Lessor, the Trust Company
and the Lessor Manager hereby severally covenants and agrees that during the
Facility Lease Term it will:
comply with all of the terms of the LLC Agreement applicable to it; and
1. not amend, supplement, or otherwise modify Section 9.1, 9.3,
13.1 or clause (i) of Section 13.2 of the LLC Agreement without
the prior written consent of the Facility Lessee so long as no
Significant Lease Default or Lease Event of Default has occurred
and is continuing and the Indenture Trustee so long as the Lien
of the Collateral Trust Indenture has not been terminated or
discharged.
42
Owner Lessor's Liens. The Owner Lessor, the Trust Company and the Lessor
Manager each covenants severally and as to itself only that it will not
directly or indirectly create, incur, assume or suffer to exist any Owner
Lessor's Lien attributable to it and will promptly notify the Facility Lessee,
the Owner Participant and the Indenture Trustee of the imposition of any such
Lien of which it has Actual Knowledge and shall promptly, at its own expense,
take such action as may be necessary to duly discharge such Owner Lessor's Lien
attributable to it.
Amendments to Operative Documents. The Lessor Manager, the Trust Company and
the Owner Lessor each covenants severally and as to itself only that it will
not unless such action is expressly permitted by the Operative Documents (a)
through its own action terminate any Operative Document to which it is a party,
(b) amend, supplement, waive or modify (or consent to any such amendment,
supplement, waiver or modification) such Operative Documents or the FILOT Lease
in any manner or (c) except as provided in Section 11 hereof or Section 2.10 or
Section 5.6 of the Collateral Trust Indenture, take any action to prepay or
refund the Lessor Notes or amend any of the payment terms of the Lessor Notes
without, in each case, the prior written consent of the Facility Lessee so long
as no Significant Lease Default or Lease Event of Default shall have occurred
and be continuing and, in the case of clause (a) or (b), the Indenture Trustee
so long as the Lien of the Collateral Trust Indenture has not been terminated
or discharged.
Transfer of the Owner Lessor's 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 Lessor's
Interest, the Lessor Estate or the other Operative Documents.
Owner Lessor; Lessor Estate. Each of the Trust Company, the Lessor Manager and
the Owner Lessor covenants that it will not voluntarily take any action to
subject the Owner Lessor or the Lessor Estate to the provisions of any
applicable bankruptcy, insolvency or similar law (as now or hereafter in
effect).
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.
Change of Location. The Owner Lessor shall provide the Owner Participant, the
Indenture Trustee, the Certificateholders, the Pass Through Trustees and the
Facility Lessee 30 days' written notice of any relocation of the Owner Lessor's
chief executive office or the place where documents and records relating to the
Owner Lessor or the Lessor Estate are kept from the location set forth in
Section 3.2(g) and of any change in its name.
B. Bankruptcy of Owner Lessor.
Each of the Trust Company, the Lessor Manager and the Owner Lessor
hereby agrees severally and as to itself only that it shall not voluntarily
take any action that shall, or cause any action to be taken that is intended
to, submit the Owner Lessor, as debtor, to any proceeding under any Applicable
Law involving bankruptcy, insolvency, reorganization or other laws affecting
the rights of creditors generally unless a Lease Event of Default or a
Significant
43
Lease Default shall have occurred and be continuing (in which case, if the Lien
of the Collateral Trust Indenture shall not have been discharged, the Trust
Company or the Owner Lessor shall not take any such action unless the Indenture
Trustee shall have given its prior written consent to such action in its sole
discretion.
COVENANTS OF THE OWNER PARTICIPANT
Restrictions on Transfer of Member Interest.
The Owner Participant covenants and agrees that it shall not during the
Facility Lease Term assign, convey or transfer any of its right, title or
interest in the Member Interest without the prior written consent of the
Facility Lessee and, so long as the Lien of the Collateral Trust Indenture
has not been terminated or discharged, without the prior written consent
of the Indenture Trustee; provided, however, that the Owner Participant
may, subject to Section 7.6, assign, convey or transfer all or any part of
its interest in the Member Interest without such consent to a Person (the
"Transferee") which shall assume the duties and obligations of the Owner
Participant under the Operative Documents with respect to the interest
being transferred pursuant to an OP Assignment and Assumption Agreement
substantially in the form of Exhibit J hereto, if each of the following
conditions shall have been satisfied on or prior to such transfer:
the Facility Lessee, the Indenture Trustee and the Pass Through Trustees shall
have received an opinion(s) of counsel (including an opinion with respect
to a guaranty pursuant to clause (iii) of this Section 7.1, if
applicable), which opinion(s) and counsel are reasonably satisfactory to
each such recipient and consistent in scope to the opinions delivered on
behalf of the Owner Participant at the Closing, including that all
regulatory approvals required in connection with such transfer or
necessary to assume the Owner Participant's obligations under the
Operative Documents shall have been obtained and that the proposed
transfer of the Member Interest will not require registration under the
Securities Act;
the Transferee shall be a "United States person" within the meaning of Section
7701(a)(30) of the Code;
the Transferee shall be either (A) an Affiliate of the transferor Owner
Participant which does not otherwise qualify under clause (B) below (but
in any event, such Affiliate shall not be a Competitor of Calpine);
provided that all of the payment and performance obligations of the
Transferee with respect to the interest being transferred under the
Operative Documents shall be guaranteed by the transferor Owner
Participant, or a Person then providing a guaranty of the transferor Owner
Participant's obligations hereunder, pursuant to an OP Parent Guaranty or
(B) a Person which meets, or the payment and performance obligations of
which with respect to the interest being transferred under the Operative
Documents are guaranteed (pursuant to a OP Parent Guaranty) by a Person
(the transferor Owner Participant or such other guarantor, the "Transferee
Guarantor") which meets, the following criteria: (1) the tangible net
worth of the Transferee or Transferee Guarantor, is at least equal to $75
million calculated in accordance with GAAP; and (2) unless waived in
writing by the Facility Lessee prior to such transfer, such Transferee is
not a Competitor of Calpine or in material litigation
44
against the Facility Lessee or any Affiliate of the Facility Lessee
without the consent of the Facility Lessee; and
upon consummation of such transfer, there shall not be more than four (4) Owner
Participants for the Overall Transaction; provided that any related Owner
Participants that shall have the same decision maker and vote their
interest together as a single vote shall count as one for purposes of this
clause (iv).
Notwithstanding the foregoing, the restrictions set forth in
this Section 7.1 shall not inure to the benefit of the Facility Lessee if such
transfer occurs during the continuance of a Significant Lease Default or Lease
Event of Default.
For purposes of determining whether a Transferee is a "Competitor" of Calpine,
Calpine shall provide to the transferor Owner Participant on or prior to
the Closing Date a list of entities which Calpine reasonably believes in
its good faith judgment are competitors of Calpine or any of its
Affiliates, in the business in which Calpine or any of its Affiliates is
engaged as of the Closing Date, which list shall be attached to this
Agreement as Exhibit K. Any such Person on such list shall be deemed to be
a "Competitor" for purposes of Section 7.1(a). The initial list of
Competitors may be modified or supplemented (in a manner consistent with
the first sentence of this clause (b)), from time to time, but no later
than five (5) Business Days after the Facility Lessee receives each notice
from the Owner Participant of its intent to transfer its interest and, in
addition, no more than once in any calendar year plus each time the
Facility Lessee receives such notice of transfer from the Owner
Participant, and such list as modified shall govern for the purposes of
this Section 7.1(b).
The Facility Lessee shall not be responsible for any adverse tax consequence
to the Owner Lessor or the Owner Participant resulting from any transfer
pursuant to this Section 7.1 and the Pricing Assumptions shall not be
changed as a result of any such transfer.
The Owner Participant shall give the Owner Lessor, the Indenture Trustee and
the Facility Lessee ten (10) Business Days' prior written notice of such
transfer, specifying the name and address of any proposed Transferee and
such additional information as shall be necessary to determine whether the
proposed transfer satisfies the requirements of this Section 7.1. If
requested by the Owner Participant or the Indenture Trustee, the Facility
Lessee will acknowledge qualifying transfers. All reasonable fees,
expenses and charges of the Indenture Trustee, the Pass Through Trustees,
and the Facility Lessee (including reasonable attorneys' fees and expenses
in connection with any such transfer or proposed transfer), including any
of the foregoing relating to any amendments to the Operative Documents
required in connection therewith, shall be paid on an After-Tax Basis by
the Owner Lessor, without any right of indemnification from the Facility
Lessee or any other Person; provided, however, that the Owner Participant
shall have no obligation to pay fees, expenses or charges of the Facility
Lessee as a result of any transfer while a Significant Lease Default or a
Lease Event of Default is continuing, in which case the Facility Lessee
shall be obligated to pay such costs.
Upon any such transfer in compliance with this Section 7.1, (i) such Transferee
shall (x) be deemed the "Owner Participant" for all purposes, and (y)
enjoy the rights and privileges and
45
perform the obligations of the Owner Participant hereunder and under each
of the OP Assignment and Assumption Agreement, the Calpine Guaranty and
each other Operative Document to which such Owner Participant is a party,
and each reference in this Agreement, the Calpine Guaranty and each other
Operative Document to the "Owner Participant" shall thereafter be deemed
to include such Transferee for all purposes and (ii) the transferor Owner
Participant and the OP Guarantor, if any, of such transferor Owner
Participant's obligations shall be released from all obligations hereunder
and under each other Operative Document to which such transferor or OP
Guarantor is a party or by which such transferor Owner Participant or OP
Guarantor is bound to the extent such obligations are expressly assumed by
a Transferee meeting the requirements of this Section 7.1; provided,
however, that in no event shall any such transfer waive or release the
transferor or its OP Guarantor from any liability accruing or existing in
respect of any period occurring on or prior to or occurring simultaneously
with such transfer.
The transfer restrictions set forth in this Section 7.1 (other than the
requirement that the Owner Participant and the Transferee enter into an OP
Assignment and Assumption Agreement) shall also apply to any transfer of
the equity ownership interests of an Owner Participant which has as its
sole (or substantially equivalent to sole) business activity its
participation in the transactions contemplated by the Operative Documents.
In the case of such a transfer of equity ownership interests which
satisfies such restrictions of this Section 7.1, the Owner Participant's
obligations under the Operative Documents shall continue, but the Owner
Participant shall, except in the case of a transfer to a transferee
described in clause (a)(iii)(A) above, procure a new OP Parent Guaranty
from a guarantor meeting the requirements of clause (a)(iii)(B) above.
Owner Participant's Liens. The Owner Participant covenants that it will not
directly or indirectly create, incur, assume or suffer to exist any Owner
Participant's Lien and the Owner Participant shall promptly notify the Facility
Lessee and the Indenture Trustee of the imposition or existence of any such
Lien of which the Owner Participant has Actual Knowledge and shall promptly, at
its own expense, take such action as may be necessary to duly discharge such
Owner Participant's Lien.
Amendments or Revocation of LLC Agreement. Notwithstanding anything to the
contrary contained in the LLC Agreement, the Owner Participant covenants that
during the Facility Lease Term it will not (a) amend, supplement, or otherwise
modify Section 9.1, 9.3, 13.1 or clause (i) of 13.2 of the LLC Agreement
without the prior written consent of the Facility Lessee so long as no
Significant Lease Default or Lease Event of Default has occurred and is
continuing, and without the prior written consent of the Indenture Trustee so
long as the Lien of the Collateral Trust Indenture has not been terminated or
discharged, or (b) revoke, or otherwise waive compliance with or terminate the
LLC Agreement without the prior written consent of the Facility Lessee so long
as no Significant Lease Default or Lease Event of Default has occurred and is
continuing, and the Indenture Trustee so long as the Lien of the Collateral
Trust Indenture has not been terminated or discharged.
Bankruptcy Filings. The Owner Participant agrees that it will not file a
petition, or join in the filing of a petition, seeking reorganization,
arrangement, adjustment or composition of, or in
46
respect of, the Owner Lessor under the Bankruptcy Code, or any other
applicable federal or state law or the law of the District of Columbia.
Instructions. The Owner Participant agrees that it will not instruct the Owner
Lessor to take any action prohibited by this Agreement or any other Operative
Document.
Right of First Refusal. In the event the Owner Participant desires to sell,
lease, convey or otherwise transfer its Member Interest or cause the Owner
Lessor to sell all or substantially all of the Owner Lessor's Interest at any
time during the three (3) year period commencing on the termination or
expiration of the Facility Lease (except in the event that a Lease Event of
Default shall have existed at such time of termination or expiration), any such
sale or other transfer shall be subject to the Facility Lessee's right of first
refusal on the terms and conditions set forth in this Section 7.6. The Owner
Participant shall give the Facility Lessee prompt written notice of all bona
fide offers that have been received from any other Person to purchase or
acquire its interest of the Owner Lessor's Interest or the Member Interest of
the Owner Participant, and which offers it wishes to accept, together with a
full and complete statement of the price and all of the terms, conditions and
provisions contained in such offers. The Facility Lessee shall thereafter have
the right within a period of 45 days from and after the receipt by them of such
notice (the "Notice Period") to notify the Owner Participant of its intent to
exercise its right of first refusal. If the Facility Lessee elects to exercise
the right provided in the preceding sentence, it will within 60 days of such
notice (the "Agreement Period") execute a contract on the same terms and
conditions as the offer giving rise to such right. If the Facility Lessee does
not give such notice to the Owner Participant within the 45 day period or
execute such a contract within 60 days of such notice, the Owner Participant
will be free to proceed under the terms and conditions set forth in its notice
to the Facility Lessee, unless the failure to execute the contract within 60
days is attributable to acts or omissions of the Owner Participant. In the
event that such terms are revised in any way that changes the agreement for
sale, lease, conveyance or transfer such that the terms of the sale are less
favorable to the Owner Participant (it being understood and agreed that any
reduction in the price or a change in the terms of payment thereof in a manner
beneficial to the potential purchaser shall be deemed to be less favorable to
the Owner Participant), the Owner Participant shall again comply with the
notice and right of first refusal provisions of this Section prior to entering
into such revised agreement; provided that, for such revised offer, the Notice
Period shall be 10 Business Days from the date of such new notice, and the
Agreement Period shall not exceed 45 days from the date of the Facility
Lessee's notice accepting such new terms.
Notwithstanding the foregoing, if, concurrently with the Owner
Participant's offer to sell its Member Interest pursuant to this Section 7.6,
it or one of its Affiliates offers to sell any interest in an owner lessor who
has entered into any Other Broad River Facility Lease, then the Facility Lessee
shall exercise its purchase rights under this Section 7.6 only if, concurrently
therewith, it exercises its purchase rights under Section 7.6 of each such
Other Broad River Facility Lease.
C. Prohibition on Fundamental Changes. If the Owner Participant is an
entity which has as its sole (or substantially equivalent to sole) business
activity, the participation in the transactions contemplated by the Operative
Documents, the Owner Participant shall not change
47
its form of organization and shall not enter into or engage in any business
other than as contemplated by the Operative Documents and the activities
related thereto.
48
D. Appointment of Successor Lessor Manager. Notwithstanding any other
provision of this Agreement, a successor Lessor Manager shall not be appointed
by the Owner Participant without the consent of the Facility Lessee and, so
long as the Lien of the Collateral Trust Indenture has not been terminated or
discharged and the Indenture Trustee unless such successor Lessor Manager (a)
meets the requirements of the LLC Agreement, (b) has a combined capital and
surplus of at least $150 million, and (c) the Facility Lessee and, so long as
Lien of the Collateral Trust Indenture has not been terminated or discharged,
the Indenture Trustee, shall have received at the expense of Facility Lessee on
an After-Tax Basis: (i) an opinion or opinions of counsel, such counsel and
such opinion to be reasonably acceptable to such parties, to the effect that no
regulatory consents or approvals are required, or (ii) such other documentation
reasonably satisfactory to the Facility Lessee or the Indenture Trustee as the
case may be.
E. Cooperation. The Owner Lessor agrees, and each of the Owner
Participant and the Lessor Manager agrees to cause the Owner Lessor to, at the
request of the Facility Lessee and at the sole cost and expense of the Facility
Lessee on an After-Tax Basis, take such actions as may be necessary for the
Owner Lessor to take as the holder of the leasehold interest in the Facility
for purposes of obtaining the valid and effective issue, transfer or amendment,
as the case may be, of all Governmental Approvals to the extent the same are
required for the use, ownership, operation or maintenance of the Facility, the
Facility Site, the Undivided Interest, the Ground Interest or any Component by
the Facility Lessee or any permitted assignee of the Facility Lessee in the
manner contemplated by the Operative Documents, except to the extent the same
involves any (i) material risk of foreclosure, sale, forfeiture or loss of, or
imposition of a Lien (other than a Permitted Lien) on, the Facility, the
Undivided Interest or the Facility Site or the impairment of the use, operation
or maintenance of the Facility or the Facility Site in any material respect,
(ii) the risk of criminal liability being incurred by the Owner Lessor, the
Owner Participant, the Equity Investor or the OP Guarantor, or (so long as the
Lessor Notes are outstanding and the Lien of the Lease Indenture has not been
discharged) the Indenture Trustee or the Pass Through Trustee or any of their
respective Affiliates or (iii) material risk of any material adverse effect on
the interests of the Owner Lessor, the Owner Participant, the Equity Investor
or the OP Guarantor, or (so long as the Lessor Notes are outstanding and the
Lien of the Collateral Trust Indenture has not been discharged) the Indenture
Trustee or the Pass Through Trustee or any of their respective Affiliates
(including, without limitation, subjecting any such Person to regulation as a
public utility under any applicable law. The Facility Lessee shall pay on an
After-Tax Basis all reasonable costs and expenses (including, without
limitation, the reasonable fees and expenses of counsel) of the Owner Lessor
and each other Person party to an Operative Document incurred in connection
with any such action. It is understood and agreed that, with respect to the
action requested of it, and taken by it, under this Section 7.9, the Owner
Lessor, the Owner Participant and the Lessor Manager shall make no
representation or warranty as to, and shall have no responsibility for, the
effectiveness of such action to accomplish or promote the objective intended by
the Person making such request.
COVENANTS OF THE INDENTURE TRUSTEE AND THE PASS THROUGH TRUSTEES
Indenture Trustee's Liens. Neither the Lease Indenture Company, nor the
Indenture Trustee will directly or indirectly create, incur, assume or suffer
to exist any Indenture Trustee's Lien attributable to it and arising out of
events or conditions not related to its rights in the Indenture Estate or the
administration thereof, and will promptly notify the Owner Participant, the
Lessor
49
Manager, the Owner Lessor and the Facility Lessee of the imposition of any such
Lien of which it has Actual Knowledge and shall promptly (and in any event
within 30 days of obtaining Actual Knowledge of such Lien), at its own expense,
take such action as may be necessary to duly discharge such Indenture Trustee's
Lien.
Pass Through Trustees' Covenant Not to Transfer Lessor Notes. The Pass Through
Trustees agree that it will not transfer any Lessor Note (or any part thereof)
to any entity (except to a successor Pass Through Trustee appointed pursuant to
the terms of the Pass through Trust Agreement) until it receives from such
entity a certification which makes a representation and warranty as of the date
of such transfer that no part of the funds to be used by it for the purchase
and holding of such Lessor Note (or any part thereof) constitutes assets of any
Plan or that such purchase and holding will be covered by a prohibited
transaction class exemption issued by the U.S. Department of Labor.
INDEMNIFICATION
General Indemnity.
Claims Indemnified. Subject to the exclusions stated in paragraph (b) below,
the Facility Lessee agrees to indemnify, protect, defend and hold
harmless, and do hereby indemnify the Owner Participant, the Owner Lessor,
the Trust Company, in its individual capacity, the Lessor Manager, the
Lease Indenture Company in its individual capacity, the Indenture Trustee,
each Certificateholder, the Pass Through Company in its individual
capacity, the Pass Through Trustees, and their respective Affiliates,
successors, assigns, agents, directors, officers and employees (each an
"Indemnitee") against any and all Claims (whether or not any of the
transactions contemplated by the Operative Documents are consummated)
imposed on, incurred or suffered by or asserted against any Indemnitee in
any way relating to or resulting from or arising out of or attributable to:
the construction, financing, refinancing, acquisition, operation, rebuilding,
warranty, ownership, possession, maintenance, repair, lease, condition,
alteration, modification, restoration, refurbishing, return, purchase,
sale or other disposition, insuring, sublease, or other use or non-use of
the Undivided Interest, the Ground Interest, the Facility, the Facility
Site or any Component or any portion of any thereof or any interest
therein;
the conduct of the business or affairs of the Facility Lessee or Calpine and
any other business or affairs conducted at the Facility or the Facility
Site;
the manufacture, design, purchase, acceptance, rejection, delivery or
condition of, or improvement to, the Facility, the Facility Site or any
Component, or any portion of any thereof or any interest therein;
the Facility Lease, the Facility Site Lease, or any other Operative Document,
the execution or delivery thereof or the performance, enforcement,
attempted enforcement or amendment of any terms thereof, or the
transactions contemplated thereby or resulting therefrom;
50
any Environmental Condition at, related to or caused by the Facility or the
Facility Site or any Component, or any portion thereof, including, for the
avoidance of doubt, any such Environmental Condition existing prior to the
Closing Date;
the offer, issuance, sale, acquisition or delivery of the Lessor Notes, the
Certificates, any Additional Lessor Notes, any Additional Certificates or
any refinancing thereof;
the reasonable and documented costs and expenses of the Transaction Parties in
connection with amendments or supplements to the Operative Documents and
the FILOT Lease requested by the Facility Lessee, or resulting from the
actions of the Facility Lessee or in connection with any Lease Default or
Lease Event of Default;
the imposition of any Lien other than with respect to a particular Indemnitee
(or a Related Party), an Owner Lessor's Lien, an Owner Participant's Lien
or Indenture Trustee's Lien attributable to such Indemnitee;
any violation by, or liability relating to, the Facility Lessee or any other
Calpine Party, the Facility or the Facility Site, of, or under, any
Applicable Law, whether now or hereafter in effect (including
Environmental Laws), or any action of any Governmental Entity or other
Person taken with respect to the Facility, the Facility Site, the
Operative Documents, the FILOT Lease or the interests of the Owner
Participant, the Owner Lessor, the Indenture Trustee or the Pass Through
Trustees, or under the Operative Documents or the FILOT Lease or the
presence, use, storage, release, threatened release, transportation,
arrangement for transportation, treatment, arrangement for treatment,
manufacture, disposal or arrangement for disposal of any Hazardous
Substance in, at, under or from the Facility or the Facility Site,
including, for the avoidance of doubt, any of the foregoing existing or
occurring prior to the Closing Date;
the non-performance or breach by the Facility Lessee, any Calpine Party or the
County of any obligation contained in this Agreement or any other
Operative Document or the FILOT Lease or the falsity or inaccuracy of any
representation, warranty or obligation of any such Person contained in
this Agreement or any other Operative Document or the FILOT Lease;
the continuing fees (if any) and expenses of the Owner Lessor and the Lessor
Manager (including the reasonable compensation and expenses of their
respective counsel) arising out of the Owner Lessor's discharge of its
duties under or in connection with the Operative Documents or the FILOT
Lease (other than the Facility Lease, the Facility Site Lease, the FILOT
Lease and the Springing Facility Site Lease);
the continuing fees (if any) and expenses of the Lease Indenture Company, the
Indenture Trustee, the Pass Through Company, the Pass Through Trustees,
(including the reasonable compensation and expenses of their respective
counsel, accountants and other professional persons) arising out of the
discharge of their respective duties as provided in the Operative
Documents or the FILOT Lease; or
any Applicable Permits including any obligations imposed by FERC in connection
with the Facility or the Facility Site.
51
Claims Excluded. Any Claim, to the extent relating to or resulting from or
arising out of or attributable to any of the following, is excluded from
the Facility Lessee's obligations to indemnify, defend, protect and hold
harmless any Indemnitee under this Section 9.1:
(A) acts, omissions or events with respect to the Facility first occurring
after the later of (x) expiration or early termination of the Facility
Lease and, where required by the Facility Lease, surrender to the Owner
Lessor or its successor of its interest in the Facility and the Facility
Site in compliance with the provisions of the Facility Lease and the
Facility Site Lease, respectively, and (y) if the Owner Lessor exercises
its option set forth in Article VI of the Springing Facility Site Lease,
the performance by the Facility Lessee of all obligations required to be
performed by it thereunder or (B), if the Closing Date does not occur,
acts, omission or events occurring after the date set forth in Section
2.2(e);
with respect to a particular Indemnitee and Related Parties, any offer, sale,
assignment, transfer or other disposition (voluntary or involuntary) by or
on behalf of (A) in the case of the Owner Participant, the Owner
Participant of its Member Interest or with respect to any Related Party,
its direct or indirect interest in the Owner Participant, (B) in the case
of the Owner Lessor, and if such action is taken at the written direction
of the Owner Participant, the Owner Participant, and Related Parties, the
Owner Lessor of all or any of the Owner Lessor's Interest, (C) the
Indenture Trustee of all or any of its interest in the Lessor Notes,
unless, in any such case referred to in this paragraph (ii), such transfer
is required by the terms of the Operative Documents or occurs during the
continuance of a Lease Event of Default; (provided that this paragraph
(ii) shall not serve to cap the indemnity to be received by a transferee
Indemnitee for a Claim (other than a Claim relating solely to or arising
solely out of any offer, transfer, sale, assignment or other disposition
of any such rights or interests) based on what the relevant transferor
Indemnitee would have received had no such transfer occurred);
with respect to any Indemnitee, any Claim attributable to (i) the gross
negligence or willful misconduct of such Indemnitee or a Related Party
except to the extent such gross negligence or willful misconduct is
attributable to any breach by the Facility Lessee (or any of them) or any
other Calpine Party of any covenant, representation or warranty contained
in any Operative Document or the FILOT Lease or (ii) any violation of
Applicable Law by any such Person except to the extent attributable to a
violation of Applicable Law by the Facility Lessee or any other Calpine
Party or to any breach by the Facility Lessee or such other Calpine Party
of any covenant, representation or warranty contained in any Operative
Document or the FILOT Lease;
a) as to any Indemnitee, any Claim to the extent attributable
to the noncompliance of such Indemnitee or a Related
Party, with any of the terms of, or any misrepresentation
or breach of warranty by such Indemnitee or Related Party
contained in any Operative Document made by such
Indemnitee or Related Party or any breach by such
Indemnitee or a Related Party of any covenant contained in
any Operative Document or any breach by such Indemnitee or
a Related Party of any covenant contained in any Operative
Document made by such Indemnitee or Related Party
52
except to the extent attributable to any breach by the
Facility Lessee or any other Calpine Party of any
covenant, representation or warranty contained in any
Operative Document;
any Claim constituting or arising from an Owner Lessor's Lien;
with respect to the Indenture Trustee and the Lease Indenture Company, any
Claim constituting or arising from a Indenture Trustee's Lien;
with respect to the Owner Participant, any claim constituting or arising from
an Owner Participant's Lien;
any Claim that is a Tax, or is a cost of contesting a Tax whether or not the
Facility Lessee is required to indemnify therefor pursuant to Section 9.2
hereof or under the Tax Indemnity Agreement;
any failure on the part of the Lessor Manager to distribute in accordance with
the LLC Agreement any amounts received by it under the Operative Documents
and distributable by it thereunder;
a Claim arising out of an Indenture Default or Lease Indenture Event of
Default that is not also (or attributable to) a Lease Default or Lease
Event of Default;
with respect to a particular Indemnitee and Related Party, any obligation or
liability expressly assumed in any Operative Document by the Indemnitee
seeking indemnification;
any Claim that constitutes scheduled principal and/or interest on the Lessor
Notes, Additional Lessor Notes, or the corresponding payments under the
Certificates or any Additional Certificates; and
any Claim relating to the payment of any amount which constitutes Transaction
Costs which the Owner Participant is obligated to pay pursuant to Section
2.3(a) hereof or any other amount to the extent such Indemnitee or a
Related Party has expressly agreed in any Operative Document to pay such
amount without express right of reimbursement;
provided that the terms "omission," "gross negligence" and "willful
misconduct," when applied with respect to the Owner Lessor, the Owner
Participant, the Indenture Trustee, the Pass Through Trustees or any Affiliate
of any thereof, shall not include any liability imputed as a matter of law to
such Indemnitee solely by reason of any such entity's interest in the Facility
or the Facility Site or such Indemnitee's failure to act in respect of matters
which are or were the obligation of the Facility Lessee under this Agreement or
any other Operative Document. Nothing herein shall be deemed to constitute a
guaranty of any useful life or any present or future residual value of the
Facility or a guaranty that any amount of any Secured Indebtedness will be paid.
Insured Claims. Subject to the provisions of paragraph (e) of this Section 9.1,
in the case of any Claim indemnified by the Facility Lessee hereunder
which is covered by a policy of insurance maintained by the Facility
Lessee, each Indemnitee agrees, unless it and each other
53
Indemnitee shall waive its rights to indemnification (for itself and each
Related Party thereto) in a manner reasonably acceptable to the Facility
Lessee, to cooperate, at the sole cost and expense of the Facility Lessee,
with insurers in exercise of their rights to investigate, defend or
compromise such Claim.
After-Tax Basis. The Facility Lessee agrees that any payment or indemnity
pursuant to this Section 9.1 in respect of any Claim shall be made on an
After-Tax Basis to the Indemnitees.
Claims Procedure. Each Indemnitee shall promptly after such Indemnitee shall
have Actual Knowledge thereof notify the Facility Lessee of any Claim as
to which indemnification is sought; provided, that the failure so to
notify the Facility Lessee shall not reduce or affect the Facility
Lessee's liability which it may have to such Indemnitee under this Section
9.1, and no payment hereunder by the Facility Lessee to an Indemnitee
shall be deemed to constitute a waiver or release of any right or remedy
that the Facility Lessee may have against any such Indemnitee for actual
damages resulting directly from the failure or delay of such Indemnitee to
give the Facility Lessee such notice. Subject to the foregoing, any amount
payable to any Indemnitee pursuant to this Section 9.1 shall be paid
within thirty (30) days after receipt of such written demand therefor from
such Indemnitee, accompanied by a certificate of such Indemnitee stating
in reasonable detail the basis for the indemnification thereby sought and
(if such Indemnitee is not a party hereto) an agreement to be bound by the
terms hereof as if such Indemnitee were such a party. The foregoing shall
not, however, constitute an obligation to disclose confidential
information of any kind without the execution of an appropriate
confidentiality agreement. Promptly after the Facility Lessee receives
notification of such Claim accompanied by a written statement describing
in reasonable detail the Claims which are the subject of and basis for
such indemnity and the computation of the amount so payable, the Facility
Lessee shall, without affecting its obligations hereunder, notify such
Indemnitee whether it intends to pay, object to, compromise or defend any
matter involving the asserted liability of such Indemnitee. The Facility
Lessee shall have the right to investigate and so long as no Significant
Lease Default or Lease Event of Default shall have occurred and be
continuing, the Facility Lessee shall have the right in its sole
discretion, to defend or compromise any Claim for which indemnification is
sought under this Section 9.1 which the Facility Lessee acknowledges is
subject to indemnification hereunder; provided that no such defense or
compromise shall involve any danger of (i) foreclosure, sale, forfeiture
or loss of, or imposition of a Lien on any part of the Facility, the
Undivided Interest, the Ground Interest, the Facility Site, the Lessor
Estate or the Indenture Estate or the impairment of the Facility or the
Facility Site, in any material respect or (ii) any criminal liability
being incurred or any material adverse effect on such Indemnitee;
provided, further, that no Claim shall be compromised by the Facility
Lessee on a basis that admits any criminal violation or gross negligence
or willful misconduct on the part of such Indemnitee without the express
written consent of such Indemnitee; and provided, further, that to the
extent that other Claims unrelated to the transactions contemplated by the
Operative Documents and the FILOT Lease (giving effect to its assignment
to the Owner Lessor pursuant to the Assignment Agreement) are part of the
same proceeding involving such Claim, the Facility Lessee may assume
responsibility for the contest or compromise of such Claim only if the
same may be and is severed from such other Claims (and each Indemnitee
agrees to use reasonable efforts to obtain such a severance). In the event
that in the course of the investigation or defense of a claim, the
Facility Lessee shall in good faith reasonably
54
determine that it is not liable for indemnification with respect thereto
under this Section 9.1, it may give notice to the applicable Indemnitee of
such fact; and, in such case, any acknowledgment, theretofore made by the
Facility Lessee of liability with respect to such claim under this Section
9.1 shall be deemed revoked, and the Facility Lessee may thereupon cease
to defend such claim; provided that (i) the Facility Lessee shall have
given the Indemnitee reasonable prior notice of its intention to renounce
such acknowledgment, (ii) the Facility Lessee's conduct regarding the
defense of such claim or any decision to withdraw from such defense shall
not prejudice or have prejudiced the Indemnitee's ability to contest such
claim (taking into account, among other things, the timing of the Facility
Lessee's withdrawal and the theory or theories upon which the Facility
Lessee shall have based its defense), and (iii) the Facility Lessee shall
have given such Indemnitee all materials, documents and records relating
to its defense of such claim as such Indemnitee shall have reasonably
requested in connection with the assumption by such Indemnitee of the
defense of such claim at the cost and expense of the Facility Lessee. In
the event that the Facility Lessee shall cease to defend any claim
pursuant to the preceding sentence, the Facility Lessee shall indemnify
each Indemnitee, without regard to any exclusion that might otherwise
apply hereunder, to the extent that the actions of the Facility Lessee in
defending such claim or the manner or time of the Facility Lessee's
election to withdraw from the defense of such claim shall have caused such
Indemnitee to incur any loss, cost, liability or expense which such
Indemnitee would not have incurred had the Facility Lessee not ceased to
defend such claim in such manner or such time. If the Facility Lessee
elects, subject to the foregoing, to compromise or defend any such
asserted liability, it may do so at its own expense and by counsel
selected by it. Upon the Facility Lessee's election to compromise or
defend such asserted liability and prompt notification to such Indemnitee
of its intent to do so, such Indemnitee shall cooperate at the Facility
Lessee's expense with all reasonable requests of the Facility Lessee in
connection therewith and will provide the Facility Lessee with all
information not within the control of the Facility Lessee as is reasonably
available to such Indemnitee which the Facility Lessee may reasonably
request; provided, however, that such Indemnitee shall not, unless
otherwise required by Applicable Law, be obligated to disclose to the
Facility Lessee or any other Person, or permit the Facility Lessee or any
other Person to examine (i) any income tax returns of the Owner
Participant or (ii) any confidential information or pricing information
not generally accessible by the public possessed by the Owner Participant
(and, in the event that any such information is made available, the
Facility Lessee shall treat such information as confidential and shall
take all actions reasonably requested by such Indemnitee for purposes of
obtaining a stipulation from all parties to the related proceeding
providing for the confidential treatment of such information from all such
parties). Where the Facility Lessee, or the insurers under a policy of
insurance maintained by the Facility Lessee undertakes the defense of such
Indemnitee with respect to a Claim (with counsel reasonably satisfactory
to such Indemnitee and without reservation of rights against such
Indemnitee), no additional legal fees or expenses of such Indemnitee in
connection with the defense of such Claim shall be indemnified hereunder
unless such fees or expenses were incurred at the request of the Facility
Lessee or such insurers. Notwithstanding the foregoing, an Indemnitee may
participate at its own expense in any judicial proceeding controlled by
the Facility Lessee pursuant to the preceding provisions, but only to the
extent that such party's participation does not in the reasonable opinion
of counsel to the Facility Lessee interfere with such control or defense
of such claim; provided, however, that such
55
party's participation does not constitute a waiver of the indemnification
provided in this Section 9.1; provided, further, that if and to the extent
that (i) such Indemnitee is advised by counsel that an actual or potential
conflict of interest exists where it is advisable for such Indemnitee to
be represented by separate counsel or (ii) there is a risk that such
Indemnitee may be subject to criminal liability and such Indemnitee
informs the Facility Lessee that such Indemnitee desires to be represented
by separate counsel, such Indemnitee shall have the right to control its
own defense of such Claim and the reasonable fees and expenses of such
defense (including, without limitation, the reasonable fees and expenses
of such separate counsel) shall be borne by the Facility Lessee. So long
as no Lease Event of Default described in clause (a), (b), (g) or (h) of
Section 16 of the Facility Lease has occurred and be continuing, no
Indemnitee shall enter into any settlement or other compromise with
respect to any Claim without the prior written consent of the Facility
Lessee unless (i) the Indemnitee waives its rights to indemnification
hereunder or (ii) the Facility Lessee has not acknowledged their indemnity
obligation with respect thereto and there is a significant risk that a
default judgment will be entered against such Indemnitee. Nothing
contained in this Section 9.1(e) shall be deemed to require an Indemnitee
to contest any Claim or to assume responsibility for or control of any
judicial proceeding with respect thereto.
Subrogation. To the extent that a Claim indemnified by the Facility Lessee
under this Section 9.1 is in fact paid in full by the Facility Lessee or
an insurer under an insurance policy maintained by the Facility Lessee (so
long as no Lease Event of Default shall have occurred and be continuing),
such insurer shall be subrogated to the rights and remedies of the
Indemnitee on whose behalf such Claim was paid to the extent of such
payment (other than rights of such Indemnitee under insurance policies
maintained at its own expense) with respect to the transaction or event
giving rise to such Claim. Should an Indemnitee receive any refund, in
whole or in part, with respect to any Claim paid by the Facility Lessee
hereunder, it shall promptly pay over to the Facility Lessee the lesser of
(i) the amount refunded reduced by the amount of any Tax incurred by
reason of the receipt or accrual of such refund and increased by the
amount of any Tax (but not in excess of the amount of such reduction)
saved as a result of such payment or (ii) the amount the Facility Lessee
or any of their insurers has paid in respect of such Claim; provided that,
so long as a Significant Lease Default or Lease Event of Default shall
have occurred and is continuing such amount may be held by the Owner
Lessor as security for the Facility Lessee's obligations under the
Facility Lease, the other Operative Documents and the FILOT Lease.
Minimize Claims. The Owner Participant, the Owner Lessor, and each of the other
Transaction Parties will use their respective reasonable and diligent
efforts to minimize Claims indemnifiable by the Facility Lessee under this
Section 9.1, including by complying with reasonable requests by the
Facility Lessee to do or to refrain from doing any act if such compliance
is, in the good faith opinion of the Owner Participant, the Owner Lessor,
or such other Transaction Party, as the case may be, of a purely
ministerial nature or otherwise has no unindemnified adverse impact on the
Owner Participant, the Owner Lessor, or such Transaction Party, as the
case may be, or any Affiliate of any thereof or on the business or
operations of any of the foregoing.
56
General Tax Indemnity.
Indemnity. Except as provided in paragraph (b), the Facility Lessee agrees to
indemnify each of the Owner Participant, the Owner Lessor, any OP
Guarantor, the Trust Company in its individual capacity, the Lessor
Manager, the Lease Indenture Company in its individual capacity, the
Indenture Trustee, the Pass Through Company in its individual capacity,
the Pass Through Trustees, each Certificateholder and their respective
successors and assigns, the past and present partners or members of or
holders of the ownership interests in, as the case may be, the Owner
Participant (each of the foregoing, together with any Affiliate thereof, a
"Tax Indemnitee") for, to hold each Tax Indemnitee harmless from and to
defend each Tax Indemnitee against all Taxes that are imposed upon or with
respect to or borne by or asserted against any Tax Indemnitee, the
Facility, the Undivided Interest, the Facility Site, the Ground Interest,
or any portion or Component thereof or any interest therein, or upon any
Operative Document or interest therein, or in any way arising out of, in
connection with or relating to, any of the following:
the acceptance, rejection, delivery, construction, financing, refinancing,
acquisition, operation, warranty, ownership, possession, maintenance,
repair, lease, condition, alteration, modification, restoration,
refurbishing, rebuilding, return, transport, assembly, repossession,
servicing, dismantling, abandonment, retirement, decommissioning,
preparation, installation, storage, replacement, purchase, sale or other
disposition, insuring, sublease, or other use or non-use of, the
imposition of any lien (or incurrence of any liability to refund or pay
over any amount as a result of any lien) on, the Facility, the Undivided
Interest, the Ground Interest, the Facility Site or any portion or
Component thereof or any interest therein;
the Facility, the Facility Site, the Undivided Interest, the Ground Interest,
any portion thereof or Component or interest therein, the applicability of
the Facility Lease to the Facility or the Undivided Interest, or the
conduct of the business or affairs of the Facility Lessee or Calpine, the
Facility or the Facility Site;
the manufacture, design, purchase, acceptance, rejection, delivery,
non-delivery, redelivery or condition of, or improvement to, the Facility,
the Facility Site or any portion or Component thereof, or any interest
therein;
the Facility Lease, or any other Operative Document, the execution or delivery
thereof, any other documents contemplated thereby or the performance,
enforcement or amendment of any terms thereof;
the payment or receipt of Periodic Rent and Supplemental Rent or any other
payment, receipt or earning under the Facility Lease, the Facility Site
Lease or the Springing Facility Site Sublease or arising from the
Facility, the Undivided Interest, the Ground Interest, the Facility Site
or any portion or Component thereof or any interest therein;
any other amount paid or payable pursuant to the Operative Documents or the
FILOT Lease;
the conveyance of title to the Undivided Interest; or
57
otherwise relating to the transactions contemplated by the Operative Documents
or the performance of the FILOT Lease.
Notwithstanding anything herein to the contrary and without regard to
paragraph (b) hereof, the Facility Lessee will indemnify the Owner Participant
and the Owner Lessor on an After-Tax Basis for any Taxes collected by way of
withholding (and any interest, penalties or additions to tax associated
therewith) (or for the failure to withhold taxes) imposed on the Lessor Notes
or the Additional Lessor Notes or any other payments to each Certificateholder
or the Indenture Trustee (each a "Certificateholder Indemnitee"), including any
penalties, interest, or additions to tax applicable in connection therewith;
provided, however, that if the Facility Lessee is required, for any reason, to
indemnify the Owner Participant or the Owner Lessor with respect to any failure
to withhold such tax, and the withholding tax would otherwise be an Excluded
Tax under Section 9.2(b) without regard to the first sentence of this
paragraph, then the Certificateholder Indemnitee with respect to which such
withholding was not made will pay the amount of tax not withheld to the
relevant taxing authority if such taxes remain unpaid or will reimburse the
Facility Lessee for the amount of tax not withheld, but paid to such taxing
authority, on demand, plus interest at (a) the Lease Debt Rate during the
period commencing on the date the Facility Lessee shall have made the indemnity
payment to such taxing authority and ending the earlier of the date of
repayment by such Tax Indemnitee and five Business Days after the date the
Facility Lessee demands reimbursement thereof pursuant to this sentence, and
(b) the Overdue Rate for the period thereafter to the date the Facility Lessee
actually receives such payment.
Excluded Taxes. The indemnity provided for in paragraph (a) above shall not
extend to any of the following Taxes (the "Excluded Taxes"):
Taxes imposed by the United States federal government or any state or local
government, any political subdivision of any of the foregoing, imposed on,
based on or measured by gross or net income, receipts, capital gain,
capital or net worth, or conduct of business (other than, in each case,
Taxes that are or are in the nature of sales, use, rental, license, value
added (to the extent value added taxes are not imposed in clear and direct
substitution for income taxes) or property taxes) ("Income Taxes"),
including any such Taxes collected by way of withholding, minimum or
alternative minimum taxes, and franchise taxes; provided that this
exclusion (i) shall not affect any express requirement that payments be
made on an "after-tax" basis;
Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that
are attributable to any act, event or omission by such Tax Indemnitee that
occurs after expiration or other termination of the Facility Lease and
surrender of the Undivided Interest to the Owner Lessor or its successors
(or in the case of a Certificateholder Indemnitee, Taxes imposed for any
period after the repayment of the Lease Debt) in accordance with the
Facility Lease, (as opposed to any act, event or omission occurring prior
to or simultaneous with such expiration, termination or surrender (or, in
the case of a Certificateholder Indemnitee, such repayment)), provided
that this exclusion shall not apply so long as a Lease Event of Default
shall have occurred and be continuing;
58
Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence
or willful misconduct of such Tax Indemnitee, unless such negligence or
misconduct is imputed to such Tax Indemnitee solely as a result of its
participation in the transactions contemplated by the Operative Documents
and the FILOT Lease (giving effect to its assignment to the Owner Lessor
pursuant to the Assignment Agreement) and not as a result of any action or
inaction by such Tax Indemnitee;
Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee
of any of its representations, warranties or covenants under any Operative
Document except to the extent attributable to any breach by the Facility
Lessee or any other Calpine Party of any covenant, representation or
warranty contained in any Operative Document;
Taxes(A) that are attributable to any voluntary direct or indirect assignment,
sale, transfer or other voluntary disposition or an involuntary direct or
indirect transfer or disposition arising out of or caused by a bankruptcy
or similar proceeding for relief of debtors in which such Tax Indemnitee
is a debtor or a foreclosure by a creditor of (1) in the case of the Owner
Lessor or the Owner Participant, the Owner Participant of all or part of
its Member Interest or Undivided Interest, (2) in the case of the Owner
Lessor or the Owner Participant, the Owner Lessor of all or part of its
interest in the Facility or the Facility Site (other than to a successor
Lessor Manager), or (3) in the case of the Indenture Trustee, the
Indenture Trustee of any interest in the Lease Debt or the Indenture
Estate, or (4) in the case of the Owner Lessor or the Owner Participant
any direct or indirect interest in the Owner Lessor or the Owner
Participant, including by reason of an election made pursuant to Section
338 of the Code, in each case to the extent imposed by reason of any
transfer described in this clause (v)(A), or (B) to the extent that, under
law in effect on the date of the transfer such Taxes exceed the amount of
Taxes that would be indemnified hereunder had there been no such
assignment, sale, transfer or other voluntary disposition, unless such
transfer or disposition occurs during the continuance of a Lease Event of
Default or is otherwise pursuant to the Facility Lessee's exercise of its
rights under the Operative Documents; provided that this exclusion shall
not apply with respect to any initial syndication of interests in the
Owner Participant accomplished prior to December 29, 2001;
Taxes imposed on a Tax Indemnitee that would not have been imposed but for the
creation or existence of any Owner Lessor's Lien or Owner Participant's
Lien attributable to such Tax Indemnitee;
Taxes that are included as a part of the cost of the Facility;
Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on
or measured by the fees or other compensation received by the Lessor
Manager or Indenture Trustee for acting in their respective capacities.
With respect to the Owner Participant, Taxes for which the Facility Lessee is
obligated to indemnify the Owner Participant under the Tax Indemnity
Agreement (or which are expressly excluded from indemnification
thereunder);
59
Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder
Indemnitee) resulting from the Owner Lessor not being treated as a grantor
trust or other conduit entity for federal, state or local income tax
purposes, but only to the extent such Taxes exceed Taxes indemnified
hereunder that otherwise would have been imposed and are otherwise
indemnifiable;
Taxes imposed on a Tax Indemnitee that are attributable to the failure of such
Tax Indemnitee to comply with certification, information, documentation,
reporting or other similar requirements concerning the nationality,
residence, identity or connection with the jurisdiction imposing such
Taxes; provided that the foregoing exclusion shall only apply if such
compliance is required by statute or regulation of the jurisdiction
imposing such Taxes as a precondition to relief or exemption from or
reduction in such Taxes, such Tax Indemnitee is eligible to comply with
such requirement, the Facility Lessee shall have given such Tax Indemnitee
timely written notice of such requirement and the Tax Indemnitee shall
have determined in good faith that compliance with any such requirement
shall not result in any identified non-immaterial adverse effect to its
interests or to those of its Affiliates;
Taxes consisting of interest, penalties, additions to tax or fines resulting
from a failure of such Tax Indemnitee to properly and timely file returns
as required by a taxing authority unless such failure is attributable to
the Facility Lessee not providing information that it is expressly
required to provide under the Operative Documents;
Taxes imposed on any Tax Indemnitee resulting from an amendment, modification,
supplement to or waiver of any provision of, any Operative Document which
amendment, modification, supplement or waiver was not requested by or
consented to by the Facility Lessee, and as to which the Facility Lessee
is not a party and the Tax Indemnitee (or, in the case of the Owner
Participant, the Owner Lessor if acting at the express direction of the
Owner Participant or any Related Party) is a party, provided that this
exclusion shall not apply if such amendment, modification, supplement or
waiver (A) was required by applicable law or the Operative Documents, (B)
may be necessary or appropriate to, and is in conformity with, any
amendment to any Operative Document requested by the Facility Lessee in
writing, or (C) was expressly consented to by a Calpine Party in writing;
Taxes imposed as a result of, or in connection with, any "prohibited
transaction," within the meaning of Section 4975 of the Code, Section 406
of ERISA or any comparable laws of any Governmental Entity, engaged in by
any Tax Indemnitee (which for this purpose shall include any ERISA
Affiliate thereof) resulting from the breach by such Tax Indemnitee of any
of its representations or warranties contained in Section 3.4(g) or
Section 8.2 of the Participation Agreement;
Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee
if such Tax Indemnitee were a United States Person; and
Taxes imposed that would not have been imposed on a Tax Indemnitee but for the
activities in the taxing jurisdiction of such Tax Indemnitee or any
Affiliate thereof unrelated to the transactions contemplated by the
Operative Documents other than Taxes that are or are in the
60
nature of sales, use, rental or license taxes or value added taxes (except
to the extent value added taxes are imposed in clear and direct
substitution for income taxes) or property taxes.
Payment. Notwithstanding anything to the contrary herein and without regard to
paragraph (b) hereof, any payment by the Facility Lessee pursuant to this
Section 9.2 shall be increased by amounts necessary to ensure that all
such payments are made on an After-Tax Basis. Each payment required to be
made by the Facility Lessee to a Tax Indemnitee pursuant to this Section
9.2 shall be paid either (i) when due directly to the applicable taxing
authority by the Facility Lessee if it is permitted to do so, or (ii)
where direct payment is not permitted, and with respect to gross up
amounts, in immediately available funds to such Tax Indemnitee by the
later of (A) 10 days following the Facility Lessee's receipt of the Tax
Indemnitee's written demand for the payment pursuant to clause (g)(i)
below (which demand shall be accompanied by a written statement of the Tax
Indemnitee describing in reasonable detail the Taxes for which the Tax
Indemnitee is demanding payment and the computation of such Taxes), (B)
subject to paragraph (g) below, in the case of amounts which are being
contested pursuant to such paragraph (g), at the time and in accordance
with a final determination of such contest or (C) in the case of any
indemnity demand for which the Facility Lessee has requested review and
determination pursuant to paragraph (d) below, the completion of such
review and determination; provided, however, in no event later than the
date which is one Business Day prior to the date on which such Taxes are
required to be paid to the applicable taxing authority. Any amount payable
to the Facility Lessee pursuant to paragraph (e) or (f) below shall be
paid promptly after the Tax Indemnitee realizes a Tax Benefit giving rise
to a payment under paragraph (e) or receives a refund or credit giving
rise to a payment under paragraph (f), as the case may be, and shall be
accompanied by a statement of the Tax Indemnitee computing in reasonable
detail the amount of such payment. Upon the final determination of any
contest pursuant to paragraph (g) below in respect of any Taxes for which
the Facility Lessee has made a Tax Advance, the amount of the Facility
Lessee's obligation under paragraph (a) above shall be determined as if
such Tax Advance had not been made. Any obligation of the Facility Lessee
under this Section 9.2 and the Tax Indemnitee's obligation to repay the
Tax Advance will be satisfied first by set off against each other, and any
difference owing by either party will be paid within 10 days of such final
determination.
Independent Examination. Within 10 days after the Facility Lessee receives any
computation from the Tax Indemnitee, the Facility Lessee may request in
writing that an independent public accounting firm selected by the Tax
Indemnitee and reasonably acceptable to the Facility Lessee review and
determine on a confidential basis the amount of any indemnity payment by
the Facility Lessee to the Tax Indemnitee pursuant to this Section 9.2 or
any payment by a Tax Indemnitee to the Facility Lessee pursuant to
paragraph (e) or (f) below. The Tax Indemnitee shall cooperate with such
accounting firm and supply it with all information reasonably necessary
for the accounting firm to conduct such review and determination (but not
tax returns and books); provided that such accounting firm shall agree in
writing in a manner reasonably satisfactory to the Tax Indemnitee to
maintain the confidentiality of such information. The parties hereto agree
that the independent public accounting firm's sole responsibility shall be
to verify the computation of any payment pursuant to this Section 9.2 and
that matters of interpretation of this Participation Agreement or any
other Operative Document or the FILOT Lease are not within the scope of
the
61
independent accountant's responsibility. The fees and disbursements of
such accounting firm will be paid by the Facility Lessee; provided that
such fees and disbursements will be paid by the Tax Indemnitee if the
verification results in an adjustment in the Facility Lessee's favor of 5
percent or more of the indemnity payment or payments computed by the Tax
Indemnitee.
Tax Benefit. If, as the result of any Taxes paid or indemnified against by the
Facility Lessee under this Section 9.2, the aggregate Taxes actually paid
by the Tax Indemnitee for any taxable year and not subject to
indemnification pursuant to this Section 9.2 are less (whether by reason
of a deduction, credit, allocation or apportionment of income or
otherwise) than the amount of such Taxes that otherwise would have been
payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such
Tax Benefit was not taken into account in determining the amount of
indemnification payable by the Facility Lessee under paragraph (a) or (c)
above and provided no Significant Lease Default or Lease Event of Default
shall have occurred and be continuing (in which event the payment provided
under this Section 9.2(e) shall be deferred until the Significant Lease
Default or Lease Event of Default has been cured), such Tax Indemnitee
shall pay to the Facility Lessee the lesser of (A) (y) the amount of such
Tax Benefit, plus (z) an amount equal to any United States federal, state
or local income tax benefit resulting to the Tax Indemnitee from the
payment under clause (y) above and this clause (z) (determined using the
same assumptions as set forth in the second sentence under the definition
of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to
this Section 9.2 giving rise to such Tax Benefit; provided, however, that
any excess of (A) over (B) shall be carried forward and reduce the
Facility Lessee's obligations to make subsequent payments to such Tax
Indemnitee pursuant to this Section 9.2. If it is subsequently determined
that the Tax Indemnitee was not entitled to such Tax Benefit, the portion
of such Tax Benefit that is required to be repaid or recaptured will be
treated as Taxes for which the Facility Lessee must indemnify the Tax
Indemnitee pursuant to this Section 9.2 without regard to paragraph (b)
hereof.
Notwithstanding anything to the contrary herein, each
Certificateholder Indemnitee shall determine the allocation of any tax
benefits, savings, credit, deduction or allocation in its sole good faith
discretion and each position to be taken on its tax return shall be in its sole
control and it shall not be required to disclose any tax return or related
documentation to any Person.
Refund. If a Tax Indemnitee obtains a refund or credit of all or part of any
Taxes paid, reimbursed or advanced by the Facility Lessee pursuant to
this Section 9.2, the Tax Indemnitee promptly shall pay to the Facility
Lessee (x) the amount of such refund or credit (net of any Tax payable by
the Tax Indemnitee as a result of the receipt or accrual of such refund or
credit) plus (y) an amount equal to any United States federal, state or
local income tax benefit realized by such Tax Indemnitee by reason of such
payment to the Facility Lessee (determined using the same assumptions as
set forth in the second sentence under the definition of After-Tax Basis);
provided that (A) if at the time such payment is due to the Facility
Lessee a Significant Lease Default or Lease Event of Default shall have
occurred and be continuing, such amount shall not be payable until such
Significant Lease Default or Lease Event of Default has been cured, and
(B) the amount payable to the Facility Lessee pursuant to this sentence
shall not exceed the amount of the indemnity payment in respect of such
refunded or credited Taxes that was made by the Facility Lessee. Any
excess of (x) and
62
(y) over (B) in this Section 9.2(f) shall be carried forward and reduce
the Facility Lessee's obligations to make subsequent payments to such Tax
Indemnitee pursuant to this Section 9.2. If it is subsequently determined
that the Tax Indemnitee was not entitled to such refund or credit, the
portion of such refund or credit that is required to be repaid or
recaptured will be treated as Taxes for which the Facility Lessee must
indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard
to paragraph (b) hereof. If, in connection with a refund or credit of all
or part of any Taxes paid, reimbursed or advanced by the Facility Lessee
pursuant to this Section 9.2, a Tax Indemnitee receives an amount
representing interest on such refund or credit, the Tax Indemnitee
promptly shall pay to the Facility Lessee (1) the amount of such interest
that shall be fairly attributable to such Taxes paid, reimbursed or
advanced by the Facility Lessee prior to the receipt of such refund or
credit (net of Taxes payable in respect of the receipt or accrual of such
interest) and (2) any Tax savings resulting from payments made by the Tax
Indemnitee under (1) and (2).
Contest.
Notice of Contest. If a written claim for payment is made by any taxing
authority against a Tax Indemnitee for any Taxes with respect to which
the Facility Lessee may be liable for indemnity hereunder (a "Tax Claim"),
such Tax Indemnitee shall give the Facility Lessee written notice of such
Tax Claim promptly after its receipt, and shall furnish the Facility
Lessee with copies of such Tax Claim and all other writings received from
the taxing authority to the extent relating to such claim; provided that
failure to so notify the Facility Lessee shall not relieve the Facility
Lessee of any obligation to indemnify the Tax Indemnitee hereunder except
to the extent that such failure effectively precludes the ability to
conduct a contest hereunder (and without limiting any damage claim or
remedy the Facility Lessee may otherwise have for such failure).
Control of Contest. Subject to subsection (g)(iii) below, the Facility Lessee
will be entitled to contest (acting through counsel selected by the
Facility Lessee and reasonably satisfactory to the Tax Indemnitee), and
control the contest of, any Tax Claim if (A) such Tax Claim may be pursued
in the name of the Facility Lessee and may be segregated procedurally from
tax claims for which the Facility Lessee is not obligated to indemnify the
Tax Indemnitee or (B) the Tax Indemnitee requests that the Facility Lessee
control such contest. In the case of all other Tax Claims, the Tax
Indemnitee will contest the Tax Claim if the Facility Lessee shall request
that the Tax be contested (subject to subsection (g)(iii) below), and the
following rules shall apply with respect to such contest:
(1) the Tax Indemnitee will control the contest of such Tax
Claim (acting through counsel selected by the Tax Indemnitee and reasonably
satisfactory to the Facility Lessee) at the Facility Lessee's expense,
(2) the decisions regarding what actions to be taken shall be
made by the Tax Indemnitee in its sole judgment, and
(3) the Tax Indemnitee shall not otherwise settle, compromise
or abandon such contest without the Facility Lessee's prior written consent
except as provided in paragraph (g)(iv) below.
63
In either case, the party conducting such contest shall consult
in good faith with the other party and its designated counsel with respect to
such Tax Claim and shall provide the other party with copies of any reports or
claims (or extracts therefrom) issued by the relevant auditing agents or taxing
authority relating to such Tax Claim.
Conditions of Contest. Notwithstanding the foregoing, no contest with respect
to a Tax Claim will be required or permitted pursuant to this Section 9.2,
and the Facility Lessee shall be required to pay the applicable Taxes
without contest, unless:
(1) within 30 days after written notice by the Tax Indemnitee
to the Facility Lessee of such Tax Claim (or such shorter period, to be
specified by the Tax Indemnitee in such notice, as required for taking action
with respect to such Tax Claim), the Facility Lessee shall request in writing
to the Tax Indemnitee that such Tax Claim be contested,
(2) no Significant Lease Default or Lease Event of Default
has occurred and is continuing, unless the Facility Lessee has provided
security for the indemnity payment and the expenses of contest in a manner
reasonably acceptable to the Tax Indemnitee and the Indenture Trustee, both as
to coverage and credit,
(3) there is no risk of sale, forfeiture or loss of, or the
creation of any Lien on any Facility, the Facility Site, the Undivided
Interest, the Ground Interest, or any portion or Component thereof or any
interest therein as a result of such Tax Claim; provided that this clause (3)
shall not apply if the Facility Lessee posts security satisfactory to the Tax
Indemnitee, both as to coverage and credit, in its sole discretion,
(4) there is no risk of imposition of any criminal penalties
or liabilities,
(5) if such contest involves payment of such Tax, the Facility
Lessee will advance such amount necessary to pay the Tax to the Tax Indemnitee
or its Affiliates on an interest-free basis and with no after-tax cost to such
Tax Indemnitee (a "Tax Advance"),
(6) the Facility Lessee agrees to pay (and pays on demand) and
with no after-tax cost to such Tax Indemnitee or its Affiliates all reasonable
costs, losses and expenses incurred by the Tax Indemnitee in connection with
the contest of such claim (including, without limitation, all reasonable legal,
accounting and investigatory fees and disbursements and penalties, interest and
additions to tax),
(7) the Tax Indemnitee, if it so requests has been provided
at the Facility Lessee's sole expense with an opinion, reasonably acceptable to
such Tax Indemnitee, of independent tax counsel selected by the Tax Indemnitee
and reasonably acceptable to the Facility Lessee to the effect that there is a
Reasonable Basis for contesting such Tax Claim,
(8) in the case of a judicial appeal, the appeal is not to the
U.S. Supreme Court,
(9) if such contest is controlled by the Facility Lessee,
prior to commencement of a judicial action with respect to the contest, the
Facility Lessee shall have admitted in writing its liability to pay an
indemnity pursuant to this Section 9.2 with respect to
64
such Tax, which admission shall be binding on the Facility Lessee unless and to
the extent such contest is determined in a manner that conclusively
demonstrates that the Facility Lessee is not so liable, and
(10) if the subject matter of such claim shall be of a
continuing or recurring nature and shall have previously been decided pursuant
to this paragraph (g), there shall have been a change in law after such
previously decided claim and such Tax Indemnitee receives, at the Facility
Lessee's sole cost, an opinion of counsel selected by such Tax Indemnitee and
reasonably acceptable to the Facility Lessee to the effect that such change is
favorable to the position asserted in the previous contest.
Waiver of Indemnification. Notwithstanding anything to the contrary contained
in this Section 9.2, the Tax Indemnitee at any time may elect to decline
to take any action or any further action with respect to (and the Facility
Lessee shall not be permitted to contest) a Tax Claim and may in its sole
discretion settle or compromise any contest with respect to such Tax Claim
without the Facility Lessee's consent if the Tax Indemnitee:
(1) waives its right to any indemnity payment by the Facility
Lessee pursuant to this Section 9.2 in respect of such Tax Claim (and any
other claim for Taxes with respect to any other taxable year the contest of
which is effectively precluded by the Tax Indemnitee's declination to take
action with respect to the Tax Claim), and
(2) promptly repays to the Facility Lessee any Tax Advance and
any amount paid to such Tax Indemnitee under Section 9.2(a) above in respect
of such Taxes, but not any costs or expenses with respect to any such contest.
Except as provided in the preceding sentence, any such waiver shall
be without prejudice to the rights of the Tax Indemnitee with respect to any
other Tax Claim.
Reports.
If any report, statement or return is required to be filed by a Tax Indemnitee
with respect to any Tax that is subject to indemnification under this
Section 9.2, the Facility Lessee will (1) notify the Tax Indemnitee in
writing of such requirement not later than 30 days prior to the date such
report, statement or return is required to be filed (determined without
regard to extensions) and (2) either (y) unless directed by the Tax
Indemnitee otherwise, if permitted by applicable law, prepare such report,
statement or return for filing by the Facility Lessee in such manner as
will show the leasehold or fee interest, as applicable, of the Owner
Lessor in the Facility for United States federal, state and local income
tax purposes (if applicable), send a copy of such report, statement or
return to the Tax Indemnitee and timely file such report, statement or
return with the appropriate taxing authority, or (z) in all other cases,
prepare and furnish to such Tax Indemnitee not later than 30 days prior to
the date such report, statement or return is required to be filed
(determined without regard to extensions) a proposed form of such report,
statement or return for filing by the Tax Indemnitee; provided that the
only consequence for failure to file after compliance by the Facility
Lessee with the requirements hereof shall be a loss of indemnification
from the Facility Lessee in respect of any Tax to the extent resulting
from such failure.
65
Each of the Tax Indemnitee and the Facility Lessee, as the case may be, will
timely provide the other, at the Facility Lessee's expense, with all
information (other than books or income tax returns that such party
reasonably deems confidential) in its possession that the other party may
reasonably require and request to satisfy its tax filing obligations.
Non-Parties. If a Tax Indemnitee is not a party to this Agreement, the Facility
Lessee may require such Tax Indemnitee to agree in writing, in a form
reasonably acceptable to the Facility Lessee, to the terms of this Section
9.2 prior to making any payment to such Tax Indemnitee under this Section.
Subject to the preceding sentence, the Facility Lessee's obligations under
this Section 9.2 shall inure to the benefit of each and every Tax
Indemnitee without regard to whether such Tax Indemnitee is a party to
this Agreement.
FACILITY LESSEE'S RIGHT OF QUIET ENJOYMENT
Each party to this Agreement acknowledges notice of, and consents in
all respects to, the terms of the Facility Lease and the Facility Site Lease
and expressly, severally and as to its own actions only, agrees that, so long
as no Lease Event of Default has occurred and is continuing, it shall not take
or cause to be taken any action or direct that any action be taken, which is
contrary to or inconsistent with the Facility Lessee's rights under the
Facility Lease, Facility Site Lease and, if applicable, the Springing Facility
Site Sublease, including the right to possession, use and quiet enjoyment of
the Undivided Interest and the Ground Interest.
SUPPLEMENTAL FINANCING IMPROVEMENTS; OPTIONAL REFINANCINGS
Financing Improvements. Upon the request of the Facility Lessee delivered at
least 90 days prior to financing a portion of the cost of any Required or
Non-Severable Improvement, the Owner Lessor and the Indenture Trustee agree to
cooperate with the Facility Lessee to (a) issue Additional Lessor Notes under
the Collateral Trust Indenture to finance such Improvement which will rank pari
passu with the Initial Lessor Notes and/or any Additional Lessor Notes then
outstanding; (b) execute and deliver one or more supplements to the Collateral
Trust Indenture for purpose of subjecting the Owner Lessor's Interest in any
such Improvements to the Liens thereof, and (c) execute and deliver an
amendment to the Facility Lease to reflect the adjustments required by clause
(iv) below; provided, however, that (x) the Owner Participant shall have been
given the opportunity, but shall have no obligation, to provide all or part of
the funds required to finance any such Improvement by making an Additional
Equity Investment in such amount, if any, as it may determine in its sole and
absolute discretion, but the Facility Lessee shall have no obligation to accept
such Additional Equity Investment; and (y) the conditions set forth below and
in Section 2.12 of the Collateral Trust Indenture shall have been satisfied.
The obligation to finance such Improvements through the issuance of Additional
Lessor Notes under Section 2.12 of the Collateral Trust Indenture (any
financing of Improvements through the issuance of such Additional Lessor Notes
under the Collateral Trust Indenture being called a "Supplemental Financing")
is subject to the following additional conditions:
except with respect to Required Improvements, there shall be no more than one
such financing in any calendar year;
66
the Additional Lessor Notes (A) shall have a final maturity no later than the
final maturity of the Lessor Notes issued on the Closing Date and (B) will
be fully repaid out of additional Basic Rent, as adjusted pursuant to the
Facility Lease, during the Facility Lease Term;
the Additional Lessor Notes shall have an average life to maturity equal to
the average life to maturity of the Lessor Notes issued on the Closing
Date;
appropriate increases to Basic Rent and Termination Value (determined without
regard to any tax benefits associated with such Improvements, unless the
Owner Participant is making an Additional Equity Investment) shall be made
to protect the Owner Participant's Net Economic Return; provided that
there shall be no changes to the amortization schedule or interest amounts
and payment dates on the then outstanding Lessor Notes;
the Facility Lessee shall have paid, on an After-Tax Basis, all reasonable
costs and expenses of the Transaction Parties, including the reasonable
fees and expenses of counsel to the Owner Participant, the Owner Lessor,
the Indenture Trustee, the Lease Indenture Company, the Pass Through
Company and the Pass Through Trustees, in each case to the extent incurred
in connection with any financing or refinancing pursuant to this Section
11 whether or not the financing is consummated;
no Significant Lease Default or Lease Event of Default shall have occurred
and be continuing unless the Improvements to be constructed with the
proceeds of the Additional Lessor Notes shall cure such Significant Lease
Default or Lease Event of Default and such Improvements shall be made in
compliance with the Operative Documents and the FILOT Lease;
such Additional Lessor Notes represent an aggregate amount not less than $20
million, nor greater than 100% of the costs of the Improvements being
financed; provided that the aggregate balance of the Lessor Notes for the
Undivided Interest never exceeds 80% of the fair market value (which fair
market value shall be determined by an appraiser selected by the Facility
Lessee and reasonably acceptable to the Owner Participant) of the
Undivided Interest taking into account the fair market value of such
Improvements;
the Owner Participant shall have received a favorable opinion of its tax
counsel satisfactory to such Owner Participant to the effect that such
financing creates no incremental tax risk not indemnified to the Owner
Participant's satisfaction (including additional indebtedness incurred to
finance the Improvements not constituting "qualified nonrecourse
indebtedness" within the meaning of Treasury Regulations Section
1-861-10T(b));
the Owner Participant shall suffer no adverse accounting effects under GAAP as
a result of such financing;
the Facility Lessee shall have made or delivered such representations,
warranties, covenants, opinions or certificates as the Owner Participant,
the Indenture Trustee may reasonably request;
the Facility Lessee or the Guarantor shall have, at such time, a credit rating
of at least Investment Grade from S&P and ▇▇▇▇▇'▇;
67
the Facility Lessee shall pay to (a) the Owner Participant a fee of $100,000
and (b) the Pass Through Trustees for the benefit of the
Certificateholders, to be shared by such Certificateholders on a pro rata
basis, a fee of $100,000 for each such financing, in each case under
clauses (a) and (b) above, other than the first financing; and
Calpine shall have affirmed to the Transaction Parties that the Calpine
Guaranties cover the additional indebtedness contemplated by this Section
11.1.
Notwithstanding the prior provision dealing with the financing
of Improvements through the Facility Lease, the Facility Lessee shall at all
times have the right to fund Improvements to the Facility other than through
the Facility Lease; provided that Required Improvements and non-Severable
Improvements may only be financed other than through the Facility Lease on an
unsecured basis. Notwithstanding any of the foregoing of this Section 11.1,
except for Required Improvements and Improvements relating to pollution
control, no Improvement shall materially decrease the value, residual value,
utility or remaining economic useful life of the Facility immediately prior to
such Improvement or cause the Facility to become limited-use property.
Optional Refinancing of Lease Debt. The Facility Lessee shall have the right,
exercisable at any time on no more than three occasions, to request the Owner
Lessor (and the Owner Lessor shall reasonably consider and not unreasonably
withhold its consent), to refund or refinance the Lease Debt, in whole but not
in part, through the issuance of Additional Lessor Notes; provided that all
conditions to the issuance of such Additional Lessor Notes contained in Section
2.12 of the Collateral Trust Indenture shall have been satisfied and all
applicable Make-Whole Amounts shall have been paid. Any refinancing under this
Section 11.2 shall also be subject to satisfaction of the following additional
conditions:
the Owner Lessor shall be able to issue and sell such debt in an amount
adequate to accomplish such refunding or refinancing;
with respect to the refinancing of the Initial Lessor Notes of a particular
maturity, such Additional Lessor Notes shall have a final maturity no
later than the final maturity date of such Initial Lessor Notes and will
be fully repaid out of Basic Rent during the Facility Lease Term;
appropriate adjustments to Basic Rent and Termination Value shall be made to
preserve the Owner Participant's Net Economic Return; provided that no
adjustments shall be made to the amortization schedule;
no Significant Lease Default or Lease Event of Default shall have occurred and
be continuing;
the Owner Participant shall suffer no adverse accounting effects under GAAP;
the Facility Lessee shall have made or delivered such representations,
warranties, covenants, opinions and certificates as the Owner Participant
may reasonably request, which representations, warranties, covenants and
agreements shall be of no greater scope than those provided by the
Facility Lessee on the Closing Date under the Operative Documents to which
68
it is a party (except to the extent necessitated by differences between
existing Operative Documents and the terms and conditions of the proposed
refinancing);
all documentation in connection with such refinancing shall be reasonably
satisfactory to the Owner Lessor and the Owner Participant;
the Owner Participant shall receive a consent fee of $100,000 in the aggregate
for each refinancing after the first such refinancing;
the Lease Debt as financed constitutes qualified nonrecourse indebtedness
within the meaning of Treasury Regulations Section 1-861-10T(b) and the
Owner Participant shall have received an opinion satisfactory to it to
such effect; and
the Owner Participant shall receive an opinion satisfactory to it that the
refinancing (as opposed to the right to request such refinancing) shall
not result in any incremental tax risk not indemnified to the Owner
Participant's satisfaction.
Calpine shall have affirmed in writing to the Transaction Parties
that the Calpine Guaranty covers the additional indebtedness contemplated by
this Section 11.2.
Cooperation. The Owner Participant will cooperate with and assist the Facility
Lessee in connection with any refinancing and/or assumption of the Lease Debt,
so long as such refinancing and/or assumption of the Lease Debt is in
accordance with the terms of the Operative Documents and the FILOT Lease. The
Owner Participant will execute such agreements and documents as may be
necessary with respect to any such refinancing and will instruct the Owner
Lessor to act accordingly.
CERTAIN ADJUSTMENTS TO PERIODIC RENT, TERMINATION VALUE AND OTHER AMOUNTS
Prior to or on the Closing Date, Periodic Rent, Termination Value, Allocated
Rent, Proportional Rent, Lessor 467 Loan Principal Balance, Lessee 467
Loan Principal Balance, Lessor 467 Loan Interest and Lessee 467 Loan
Interest shall be adjusted, either upward or downward, in accordance with
the Facility Lease:
at the request of the Facility Lessee, and at the Facility Lessee's option,
to re-optimize the Lease Debt to the extent permitted by the Collateral
Trust Indenture; provided such re-optimization shall not result in a
change to average life by more than six (6) months;
at the request of the Facility Lessee or the Owner Participant, to reflect
any changes in the Pricing Assumptions, including without limitation, (x)
the initial interest rate on any of the Lessor Notes which is different
from the applicable interest rate set forth in the Pricing Assumptions,
(y) an increase in the Transaction Costs from the amount assumed in the
Pricing Assumptions, unless the Facility Lessee has elected to pay such
increase, and (z) a Closing Date other than the Scheduled Closing Date;
and
at the request of the Facility Lessee or the Owner Participant to reflect any
enactment, promulgation, release or adoption of, amendment to or change in
the Code, Treasury
69
Regulations, Revenue Rulings or Revenue Procedures ("Tax Law Change")
enacted prior to the Closing;
provided that if any adjustment required by this paragraph (a) would result in
(i) the Facility Lease not qualifying as an operating lease for the Facility
Lessee under FASB 13 or FASB 98, or (ii) the aggregate of all rent adjustments
made on or before, or contemplated to be made on, the Closing Date (other than
adjustments to reflect a change in Transaction Costs or the actual interest
rate of the Certificates) shall cause either (x) the after-tax net present
value of Basic Rent discounted at 6% to increase by more than 100 basis points
or (y) the total Basic Rent to increase by more than 2%, then in either such
case, the Facility Lessee shall not be obligated to close the Overall
Transaction. Any adjustments pursuant to Section 3.4 of the Facility Lease
shall comply with Applicable Law (including any final or proposed Treasury
Regulations issued under Section 467 of the Code) as well as the requirements
of Revenue Procedure 2001-28 and Sections 4.02(5), 4.07(1) and 4.07(2) of
Revenue Procedure 2001-29 in a manner such that amending the Facility Lease
complies with the "safe harbors" under such Treasury Regulations or otherwise
does not cause the Facility Lease to be a "disqualified leaseback or long-term
agreement" within the meaning of Section 467 of the Code and any Treasury
Regulations issued thereunder, in each case, to the extent of such compliance
on the Closing Date.
After the Closing Date, Periodic Rent, Termination Value, Allocated Rent,
Proportional Rent, Lessor 467 Loan Principal Balance, Lessee 467 Loan
Principal Balance, Lessor 467 Loan Interest and Lessee 467 Loan Interest
shall be adjusted at the request of the Facility Lessee or the Owner
Participant in accordance with the terms of the Facility Lease to which it
is a party.
Any adjustment pursuant to this Section 12 shall be calculated (A) to preserve
the Owner Participant's Net Economic Return through the Basic Lease Term
and (B) to the extent consistent with (A) above, to maintain operating
lease treatment for the Facility Lessee; provided, however, that to the
extent consistent with preserving the Owner Participant's Net Economic
Return, all adjustments shall at the option of the Facility Lessee be
calculated to (x) minimize the average annual Basic Rent over the Basic
Lease Term and the Lessor Put Renewal Lease Term for the Facility Lessee's
GAAP accounting purposes and/or (y) minimize the present value to the
Facility Lessee of Basic Rent; and provided, further, that no such
adjustment shall require the Owner Participant to record a loss as of the
date such adjustment is made. Adjustments will be computed by the Owner
Participant based upon the Pricing Assumptions and the Tax Assumptions
originally used to calculate the Periodic Rent, Termination Value,
Allocated Rent, Proportional Rent, Lessor 467 Loan Principal Balance,
Lessee 467 Loan Principal Balance, Lessor 467 Loan Interest and Lessee 467
Loan Interest. Adjustments made pursuant to this Section 12 shall be
subject to verification as provided in Section 3.4 of the Facility Lease.
TRANSFER OF THE FACILITY LESSEE OWNERSHIP; SPECIAL LESSEE TRANSFERS
Transfer of the Facility Lessee Ownership.
The Facility Lessee covenants and agrees that it shall not during the Facility
Lease Term assign the Facility Lease or any other Operative Document, or
any interest therein, without the prior
70
written consent of the Owner Lessor, the Owner Participant and, so long as
the Lien of the Collateral Trust Indenture has not been terminated or
discharged, the Indenture Trustee and the Pass Through Trustees.
Notwithstanding the foregoing, upon satisfaction of the conditions in
paragraph (b) below, the Facility Lessee may assign the Facility Lease or
any other Operative Document to which it is a party, or any interest
therein to any Person, without the consent of the Owner Lessor, the Owner
Participant, the Indenture Trustee or any other Transaction Party.
Assignment under Section 13(a) above by the Facility Lessee shall be permitted
if (A) after giving effect to such assignment or assignments, either (x)
Calpine owns, directly or indirectly, at least a majority of the Ownership
Interest of each assignee (as well as at least a majority of the Ownership
Interest of any non-assigning Facility Lessee), the Calpine Guaranty
remains in full force and effect (without a transferee of Calpine's
obligations thereunder having succeeded thereto in accordance with Section
8.4(b) thereof), and Calpine shall have reaffirmed in writing its
obligations under the Calpine Guaranty or (y) Calpine's obligations under
the Calpine Guaranty has been succeeded to in accordance with Section
8.4(b) thereof, the transferee of Calpine shall own, directly or
indirectly, at least a majority of the Ownership Interest of each assignee
(as well as at least a majority of the Ownership Interest of any
non-assigning Facility Lessee) and the Calpine Guaranty shall remain in
full force and effect and (B) satisfaction of the following conditions:
the transferee shall assume all the obligations of the Facility Lessee under
the Operative Documents, and the first priority Lien of the pledge of the
Collateral as defined in and pursuant to the Facility Lease shall continue
in effect, pursuant to an assignment and assumption agreement in form and
substance satisfactory to the Owner Participant, Owner Lessor and, so long
as the Lien of the Collateral Trust Indenture shall not have been
terminated or discharged, the Indenture Trustee;
the Owner Participant, the Owner Lessor and, so long as the Lien of the
Collateral Trust Indenture shall not have been terminated or discharged,
the Indenture Trustee and the Pass Through Trustees shall have received an
Opinion of Counsel as to such assignment and assumption agreement and the
satisfaction of the requirements and conditions set forth in this Section
13.1(b) (except for clauses (iii) and (vi) hereof);
no Significant Lease Default or Lease Event of Default shall have occurred
and be continuing at the time of or immediately following such transfer;
the transfer shall not subject any of the Facility Lessee, the Owner
Participant, the Owner Lessor, the Lessor Manager, the Indenture Trustee,
the Pass Through Trustees or any Certificateholder to regulation under
PUHCA or state laws and regulations regarding the rate and financial or
organizational regulation of electric utilities in the affected party's
reasonable opinion, nor result in a Regulatory Event of Loss;
the transferee shall be organized under the laws of the United States, any
state thereof or the District of Columbia;
71
b) the Facility Lessee shall have paid, at no after-tax cost
to such parties, all reasonable documented out-of-pocket
expenses (including reasonable attorneys' fees and
expenses) of the Owner Lessor, the Lessor Manager, the
Owner Participant, the Indenture Trustee, the Lease
Indenture Company and the Pass Through Trustees in
connection with such assignment;
c) the Facility Lessee has provided the Indenture Trustee
with (x) an indemnity against the risk that such assignment
will cause a Tax Event to occur to any direct holder of any
Lessor Note and any Certificateholder or (y) an opinion of
counsel to the effect that such assignment will not cause a
Tax Event to occur to any direct holder of any Lessor Note
and any Certificateholder; and
d) the transfer shall not cause the Facility to become
"tax-exempt use property within the meaning of Section 168
(h) of the Code (unless the Facility Lessee shall make a
payment contemporaneously with such transfer that in the
reasonable judgment of the Owner Participant compensates
the Owner Participant for the adverse tax consequences
therefrom).
F. Special Facility Lessee Transfers. Upon the occurrence and during the
continuance of a Special Lessee Transfer Event, the Facility Lessee (or its
designee as provided below) may (a) terminate the Facility Lease in accordance
with its terms, or (b) upon not less than 30 days' written notice to the Owner
Participant, the Indenture Trustee and the Pass Through Trustees, purchase
subject to the limitations set forth in Section 7.1, all of the Member Interest
(any purchase under clause (b) being referred to a the "Special Lessee
Transfer") on the applicable Termination Date at a price equal to the Special
Lessee Transfer Amount determined as of the date of such transfer and keep the
Facility Lease in effect. On the applicable Termination Date, the Facility
Lessee (or its designee) shall pay to the Owner Participant or the OP
Guarantor, the Special Lessee Transfer Amount determined as of such date, plus
all amounts due and payable to the Owner Participant on such date (including
all reasonable and documented costs and expenses of the Owner Participant or
the OP Guarantor and all sales, use, value added and other Taxes covered and
not excluded by Section 9.2 hereof associated with the Special Lessee Transfer
pursuant to this Section 13.2, to the extent such amounts have not otherwise
been reimbursed by the Facility Lessee pursuant to this Section 13.2, it being
understood that any transfer pursuant to this Section 13.2 shall not be
considered a voluntary transfer for purposes of Section 9.2). Concurrently with
the payment of all sums required to be paid pursuant to this Section 13.2 (or
on such later date of transfer of the Member Interest in accordance with clause
(ii) below) (i) the Facility Lessee shall cease to have any liability to the
Owner Participant or the OP Guarantor with respect to the Operative Documents
and the FILOT Lease, except for obligations (including Section 9.1 and 9.2
hereof and the Tax Indemnity Agreement) surviving pursuant to the express terms
of the Operative Documents or which have otherwise accrued but not been paid as
of such date and (ii) the Owner Participant or the OP Guarantor will transfer
(by an appropriate instrument of transfer) the Member Interest to the Facility
Lessee (or its designee); provided, however, that if the Lien of the Collateral
Trust Indenture has not been terminated or discharged, such transfer shall not
be made to the Facility Lessee, but shall be
72
made to the Facility Lessee's designee promptly upon the Facility Lessee's
designation of such designee and such designee will agree not to transfer the
Member Interest to the Facility Lessee until the Lien is terminated or
discharged. At the time of any transfer under this Section 13.2, the Owner
Participant or the OP Guarantor shall represent and warrant as to the absence
of Liens attributable to the Owner Participant on the Member Interest. It is
understood and agreed among the parties hereto that the transaction
contemplated by this Section 13.2 shall not effect a merger of the Facility
Lessee's interest in the Facility and the Facility Site with the Owner Lessor's
Interest. The Facility Lessee will pay, on an After-Tax Basis, all reasonable
and documented transaction costs and expenses of the parties (including
reasonable attorneys' fees and disbursements) in connection with any transfer
pursuant to this Section 13.2. Subsequent to such transfer, the Facility Lessee
and the Owner Lessor may, without the consent of the Indenture Trustee or the
Pass Through Trustees, waive the Regulatory Event of Loss or the Burdensome
Termination Event that gave rise to the Special Lessee Transfer Event and the
Facility Lease shall continue in full force and effect in accordance with its
terms.
OWNER LESSOR'S EXERCISE OF PURCHASE OPTIONS
(a) At any time prior to the expiration or earlier termination
of the FILOT Lease, the Facility Lessee may request (which request shall be in
writing and addressed to the Owner Lessor, the Owner Participant and the
Indenture Trustee) that the Owner Lessor exercise the Purchase Options (if and
to the extent not previously exercised) and direct the County to convey the
Land (to the extent of the Owner Lessor's Percentage interest) to the Facility
Lessee upon the closing of the conveyance of the Project pursuant thereto.
Within 15 Business Days following receipt of such request, the Owner Lessor
shall exercise the Purchase Options (if and to the extent not previously
exercised) and direct the County to convey the Land (to the extent of the Owner
Lessor's Percentage interest) to the Facility Lessee upon the closing of the
conveyance of the Project pursuant thereto, if each of the following conditions
shall have been satisfied:
(1) the conditions specified in the definition of
"Post-FILOT Lease Conversion Date" have been
satisfied;
(2) no Lease Default or Lease Event of Default under
any of Sections 16(g) and 16(h) of the Facility Lease
has occurred and is continuing; and
(3) no Significant Lease Default or Lease Event of
Default shall have occurred and be continuing or
would result from the occurrence of the Post-FILOT
Lease Conversion Date.
Notwithstanding the foregoing, the Facility Lessee shall be entitled
to make the foregoing request of the Owner Lessor and to receive a conveyance
of the Land (to the extent of the Owner Lessor's Percentage interest) only if,
concurrently with such request and receipt, the Facility Lessee also makes such
request of the Other Broad River Owner Lessors and receives their respective
interests in the Land pursuant to the Other Broad River Operative Documents.
(b) If the request of the Facility Lessee referred to in paragraph (a) above
states (and provides information constituting a reasonable basis for such
statement) (A) that the conditions specified
73
in paragraph (a) above have been satisfied or will be (and are capable of
being) timely satisfied, (B) that the FILOT Lease is likely to terminate or
cease to be in full force and effect before the Owner Lessor has exercised the
Purchase Options if such exercise does not occur within a period of time which
shall not be less than ten (10) Business Days from the date of the Owner
Lessor's receipt of such notice, and (C) that such notice is being given
pursuant to this Section 14(b) in anticipation of a possible exercise by the
Facility Lessee of the Purchase Options, then the Owner Lessor (or in lieu
thereof, the Owner Participant) shall respond to such notice within five (5)
Business Days after its receipt of such notice (provided that if the Facility
Lessee or the Owner Lessor shall have Actual Knowledge that a termination of
the FILOT Lease by the County is reasonably likely to occur within a time frame
shorter than the time frame of the foregoing notice provisions, the Person
having such Actual Knowledge will promptly advise the other Person of the
relevant information known to it, and thereafter the parties will proceed with
the notices to each other hereunder as promptly as commercially practicable
using all reasonable efforts). The written notice from the Owner Lessor
referred to above shall be one with which the Owner Lessor (or the Owner
Participant) either shall concur in all material facts asserted by the Facility
Lessee in its notice or shall dispute in good faith one or more of such
material facts and shall set forth the Owner Lessor's (or the Owner
Participant's or Indenture Trustee's) position (and in reasonable detail, the
basis therefor) in respect thereof. If the Owner Lessor (or the Owner
Participant) does not provide such notice in dispute of one or more material
facts so asserted by the Facility Lessee within the time period provided above,
the Facility Lessee shall be entitled, to the extent permitted by Applicable
Law, to exercise the foregoing Purchase Options (if and to the extent not
previously exercised) and direct the County to convey (to the extent of the
Owner Lessor's Percentage interest) the Land to the Facility Lessee and the
Project (other than the Land) to the Owner Lessor. Notwithstanding the
foregoing, the determination whether the conditions set forth in paragraph (a)
above have been or shall be capable of being timely satisfied shall be made by
the Owner Lessor and (if the Lien of the Collateral Trust Indenture has not
been discharged) the Indenture Trustee (without the necessity of obtaining the
consent of any of the Noteholders or the Pass Through Trustees), provided that
either the Owner Lessor, the Owner Participant or the Indenture Trustee has
notified the Facility Lessee of the dispute referred to above.
The Owner Lessor agrees not to exercise the Purchase Options other than as
contemplated above unless (i) there has occurred and is continuing at the time
of its election to exercise the same as contemplated by Section 10.02 of the
FILOT Lease a Lease Event of Default and the Owner Lessor or, if the Lien of
the Collateral Trust Indenture has at the time not been discharged, the
Indenture Trustee has commenced the enforcement of remedies under Section 17 of
the Facility Lease, or (ii) in the judgment of the Owner Participant the FILOT
Lease is likely to terminate or cease to be in full force and effect before the
Owner Lessor has exercised the Purchase Options.
74
III. MISCELLANEOUS
Consents; Cooperation. The Owner Participant covenants and agrees that it shall
not unreasonably withhold its consent to any consent requested of the Owner
Lessor under the terms of the Operative Documents that by its terms is not to
be unreasonably withheld by the Owner Lessor.
Successor Owner Lessor. The parties hereto agree that the transfer or
assignment pursuant to the terms of the LLC Agreement by the Owner Lessor to a
successor Owner Lessor, will not violate the terms of any Operative Document,
the performance of the FILOT Lease or the FILOT Lease (subject to any
applicable consent required by the County).
Bankruptcy of Lessor Estate. If (i) all or any part of the Lessor Estate
becomes the property of a debtor subject to the reorganization provisions of
Title 11 of the United States Code, as amended from time to time, (ii) pursuant
to such reorganization provisions the Owner Participant is required, by reason
of the Owner Participant being held to have recourse liability to the debtor or
the trustee of the debtor directly or indirectly, to make payment on account of
any amount payable as principal or interest on the Lessor Notes, and (iii) the
Indenture Trustee actually receives any Excess Amount, as defined below, which
reflects any payment by the Owner Participant on account of clause (ii) above,
the Indenture Trustee shall promptly refund to the Owner Participant such
Excess Amount (and, to the extent so refunded, such amount owing under the
Lessor Notes shall be reinstated). For purposes of this Section 15.3, "Excess
Amount" means the amount by which such payment exceeds the amount which would
have been received by the Indenture Trustee if the Owner Participant had not
become subject to the recourse liability referred to in clause (ii) above.
Nothing contained in this Section 15.3 shall prevent the Indenture Trustee from
enforcing any personal recourse obligations (and retaining the proceeds
thereof) of the Owner Participant as contemplated by this Participation
Agreement (other than referred to in clause (ii)).
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.
Notices. Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein shall be in writing or by a
telecommunications device capable of creating a written record, and any such
notice shall become effective (a) upon personal delivery thereof, including,
without limitation, by overnight mail or courier service, (b) in the case of
notice by United States mail, certified or registered, postage prepaid, return
receipt requested, upon receipt thereof, or (c) in the case of notice by such a
telecommunications device, upon transmission thereof; provided such
transmission is promptly confirmed by either of the methods set forth in
clauses (a) or (b) above, in each case addressed to each party hereto at its
address set forth below or, in the case of any such party hereto, at such other
address as such party may from time to time designate by written notice to the
other parties hereto:
If to the Facility Lessee:
75
Broad River Energy, LLC
c/o Calpine Northbrook Office
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Manager and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Guarantor:
Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Manager and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Lessor, the Trust Company or the Lessor Manager:
c/o Wells Fargo Bank Northwest, National Association
MAC U1254-031
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
If to the Owner Participant:
SBR OP-1, LLC
c/o Wells Fargo Bank Northwest, National Association
MAC U1254-031
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
76
with a copy to:
Newcourt Capital USA Inc.
1211 Avenue of the ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Managing Director
77
If to the Indenture Trustee:
State Street Bank and Trust Company of Connecticut, National
Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
with a copy to:
State Street Bank and Trust Company of California, National
Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
If to the Pass Through Trustees:
State Street Bank and Trust Company of Connecticut, National
Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
with a copy to:
State Street Bank and Trust Company of California, National
Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
If to the Manager:
Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ O'Day
A copy of all notices provided for herein shall be sent by the
party giving such notice to each of the other parties hereto.
In addition,
78
the Facility Lessee shall (unless otherwise
directed by the applicable Rating Agency) provide to each
Rating Agency a copy of any information, report or notice it
gives to the Indenture Trustee hereunder or any other
Operative Documents.
79
Survival. All warranties, representations, indemnities and covenants made by
any party hereto, herein or in any certificate or other instrument delivered by
any such party or on behalf of any such party under this Agreement shall be
considered to have been relied upon by each other party hereto and shall
survive the consummation of the transactions contemplated hereby and in the
other Operative Documents and the FILOT Lease regardless of any investigation
made by any such party or on behalf of any such party. In addition, the
indemnifications by the Facility Lessee under Sections 9.1 and 9.2 of this
Agreement, subject to Sections 9.1(b) and 9.2(b), respectively, the Facility
Site Lease and the Calpine Guaranty, shall expressly survive the expiration or
early termination (in either case, for whatever reason) of the Facility Lease
or the transfer or other disposition of the respective interests of the Owner
Participant, the Owner Lessor, the Lessor Manager, the Lease Indenture Company,
the Indenture Trustee, the Pass Through Trustees and the Certificateholders in,
to and under this Agreement, the Assignment Agreement and the other Operative
Documents and the FILOT Lease. Except as expressly provided above or in Section
22.3 of the Facility Lease, the Tax Indemnity Agreement or as otherwise
expressly provided in the Operative Documents, the representations, warranties,
covenants and agreements of the Transaction Parties under the Operative
Documents shall terminate and be of no further force and effect effective upon
the expiration or earlier termination of the Facility Lease.
Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of, and shall be enforceable by, the parties hereto and their
respective successors and assigns as permitted by and in accordance with the
terms hereof, including each successive holder of the Member Interest of the
Owner Participant permitted under Section 7.1 and each successive transferee or
transferees of Lessor Notes permitted under Section 2.8 of the Collateral Trust
Indenture. Except as expressly provided herein or in the other Operative
Documents, no party hereto may assign its interests herein without the prior
written consent of the other parties hereto.
Business Day. Notwithstanding anything herein or in any other Operative
Document to the contrary, if the date on which any payment is to be made
pursuant to this Agreement or any other Operative Document is not a Business
Day, the payment otherwise payable on such date shall be payable on the next
succeeding Business Day with the same force and effect as if made on such
scheduled date and (provided such payment is made on such succeeding Business
Day) no interest shall accrue on the amount of such payment from and after such
scheduled date to the time of such payment on such next succeeding Business Day.
Governing Law. This Agreement has been delivered in the State of New York and
shall be in all respects governed by and construed in accordance with the laws
of the State of New York including all matters of construction, validity and
performance without giving effect to the conflicts of laws provisions thereof
except New York General Obligations Law Section 5-1401.
Severability. If any provision hereof shall be invalid, illegal or
unenforceable under Applicable Law, the validity, legality and enforceability
of the remaining provisions hereof shall not be affected or impaired thereby.
Counterparts. This Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original but all together only one
agreement.
80
Headings and Table of Contents. The headings of the sections of this Agreement
and the Table of Contents are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Limitation of Liability.
None of the Owner Participant, the Owner Lessor, the Trust Company, the Lessor
Manager, the Indenture Trustee, the Lease Indenture Company, the Pass
Through Trustees, the Pass Through Company or the Certificateholders shall
have any obligation or duty to the Facility Lessee or to others with
respect to the transactions contemplated hereby, except those obligations
or duties expressly set forth in this Agreement and the other Operative
Documents to which such Person is a party, and none of the Owner
Participant, the Owner Lessor, the Indenture Trustee, the Lease Indenture
Company, the Pass Through Trustees, the Pass Through Company or the
Certificateholders shall be liable for performance by any other party
hereto of such other party's obligations or duties hereunder. Without
limitation of the generality of the foregoing, under no circumstances
whatsoever shall the Owner Participant be liable to the Facility Lessee
for any action or inaction on the part of the Owner Lessor in connection
with the transactions contemplated herein, whether or not such action or
inaction is caused by willful misconduct or gross negligence of the Owner
Lessor, unless such action or inaction is at the written direction of the
Owner Participant.
Neither the Facility Lessee nor any other Calpine Party shall have any
obligation or duty to the Owner Participant, the Owner Lessor, the
Indenture Trustee, the Lease Indenture Company, the Pass Through Trustees,
the Pass Through Company, the Certificateholders or to others with respect
to the transactions contemplated hereby, except those obligations or
duties expressly set forth in this Agreement and the other Operative
Documents, and neither the Facility Lessee nor any other Calpine Party
(except Calpine to the extent set forth in the Calpine Guaranty) shall be
liable for performance by any other party hereto of such other party's
obligations or duties hereunder.
The Lease Indenture Company and the Pass Through Company are entering into the
Operative Documents to which it is a party solely as trustees under the
Collateral Trust Indenture and the Pass Through Trust Agreements,
respectively, and not in their individual capacities, except as expressly
provided herein or therein, and in no case whatsoever shall the Lease
Indenture Company and the Pass Through Company be personally liable for,
or for any loss in respect of, any of the statements, representations,
warranties, agreements or obligations of the Owner Lessor hereunder or
under any other Operative Document or the FILOT Lease, as to all of which
the other parties hereto agree to look solely to the Indenture Estate and
the Lessor Estate, respectively; provided, however, that the Lease
Indenture Company and the Pass Through Trust Company shall be liable
hereunder for their own negligence or willful misconduct or for a breach
of their representations, warranties and covenants made in their
individual capacity under any Operative Document.
The right of the Indenture Trustee or the Pass Through Trustees to perform any
discretionary act enumerated herein or in any other Operative Document
(including, without limitation, the right to consent to any action which
requires their consent and the right to waive any provision of, or consent
to any change or amendment to, any of the Operative Documents)
81
shall not be construed as a duty, and neither the Indenture Trustee nor
the Pass Through Trustees shall be liable or answerable for other than its
negligence or willful misconduct in the performance of such acts. In
connection with any such discretionary acts, the Indenture Trustee may in
its sole discretion (but shall not, except as otherwise provided herein or
in the Collateral Trust Indenture or as otherwise required by Applicable
Law, have any obligation to) request the approval or instruction of the
Pass Through Trustees as the holder of the Lessor Notes, and the Pass
Through Trustees may in its sole discretion (but shall not, except as
otherwise provided in the Operative Documents or as otherwise required by
Applicable Law, have any obligation to) request the approval of the
Certificateholders.
The Owner Participant will give the Facility Lessee at least 15 days' prior
notice of any proposed amendment or supplement to the LLC Agreement (other
than an amendment solely effecting a transfer of the Owner Participant's
interest in the Lessor Estate) and deliver true, complete and fully
executed copies to the Facility Lessee of any amendment or supplement to
the LLC Agreement. No amendment or supplement to the LLC Agreement that
would reasonably be expected to materially adversely affect the interests
of the Facility Lessee or the Indenture Trustee shall become effective
without the written consent of the Indenture Trustee and the Facility
Lessee.
Consent to Jurisdiction; Waiver of Trial by Jury; Process Agent.
Each of the parties hereto (i) hereby irrevocably submits to the nonexclusive
jurisdiction of the Supreme Court of the State of New York, New York
County (without prejudice to the right of any party to remove to the
United States District Court for the Southern District of New York) and to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or
other proceeding arising out of this Agreement, the other Operative
Documents, and the FILOT Lease (except as otherwise provided therein), or
the subject matter hereof or thereof or any of the transactions
contemplated hereby or thereby brought by any of the parties hereto or
their successors or assigns; (ii) hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined
in such New York State court, or in such federal court; and (iii) to the
extent permitted by Applicable Law, hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding any claim that it is not personally subject to
the jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement, the other
Operative Documents, or the subject matter hereof or thereof may not be
enforced in or by such court.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES THE RIGHT TO DEMAND A TRIAL BY JURY, IN ANY SUCH SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, THE OTHER
OPERATIVE DOCUMENTS, OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY BROUGHT BY ANY OF THE PARTIES
HERETO OR THEIR SUCCESSORS OR ASSIGNS.
82
By the execution and delivery of this Agreement, the Facility Lessee designate,
appoint and empower National Registered Agents, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the Owner Lessor designates,
appoints and empowers CT Corporation System, with an office at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent to receive for
and on its behalf service of any summons, complaint or other legal process
in any such action, suit or proceeding in the State of New York for so
long as any obligation of the Facility Lessee or the Owner Lessor, as
applicable, shall remain outstanding hereunder or under any of the other
Operative Documents or with respect to the Facility Lessee for so long as
it has any obligations remaining under the FILOT Lease. The Facility
Lessee shall grant an irrevocable power of attorney to CT Corporation
System, in respect of such appointment and shall maintain such power of
attorney in full force and effect for so long as any obligation of the
Facility Lessee shall remain outstanding hereunder or under any of the
Operative Documents.
Further Assurances. Each party hereto will promptly and duly execute and
deliver such further documents to make such further assurances for and take
such further action reasonably requested by any party to whom such first party
is obligated, all as may be reasonably necessary to carry out more effectively
the intent and purpose of this Agreement and the other Operative Documents.
Effectiveness. This Agreement has been dated as of the date first above
written for convenience only. This Agreement shall be effective on the date of
execution and delivery by each of the parties hereto.
Measuring Life. If and to the extent that any of the options, rights and
privileges granted under this Agreement, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule or law relating to
the vesting of interests in property or the suspension of the power of
alienation of property, then it is agreed that notwithstanding any other
provision of this Agreement, such options, rights and privileges, subject to
the respective conditions hereof governing the exercise of such options, rights
and privileges, will be exercisable only during (a) the longer of (i) a period
which will end twenty-one (21) years after the death of the last survivor of
the descendants living on the date of the execution of this Agreement of the
following Presidents of the United States: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Agreement, whichever of (a) and (b) is shorter.
No Partnership, Etc. The parties hereto intend that nothing contained in this
Participation Agreement or any other Operative Document shall be deemed or
construed to create a partnership, joint venture or other co-ownership
arrangement by and among any of them.
Entire Agreement. This Agreement, together with the other applicable Operative
Documents, constitutes the entire agreement of the parties hereto and thereto
with respect to the subject matter hereof and thereof and supersedes all oral
and all prior written agreements and understandings with respect to such
subject matter; provided that, notwithstanding the foregoing,
83
the obligations of Calpine with respect to fees and expenses set forth in the
letter agreement, dated July 24, 2001 between Calpine and CSFB and the letter
agreement dated August 1, 2001 between Calpine and Newcourt Capital Securities,
Inc. shall not be superceded hereby and shall remain in full force and effect.
Public Utility Regulation. the Facility Lessee, the Owner Lessor and the Owner
Participant agree to cooperate and to take reasonable measures to alleviate the
source or consequence of any regulation constituting a Regulatory Event of
Loss, at the cost and expense of the Facility Lessee, so long as there shall be
no adverse consequences to the Owner Lessor or the Owner Participant as the
result of such cooperation or taking of reasonable measures.
Confidentiality of Information. Each of the parties hereto agrees that any
information (x) contained herein or in the other Operative Documents (including
any terms, conditions, agreements, financial projections, and other financial
and operating information contained herein or therein, and the terms of any
insurance policies required or otherwise maintained pursuant hereto), (y)
disclosed or to be disclosed by one such party to another such party (for
purposes of this Section 15.21, each of the parties to this Agreement being
referred to herein as a "Receiving Party") in connection with this Agreement or
any other Operative Document, or (z) otherwise received in connection with this
Agreement or any other Operative Document (or the transactions contemplated
thereby) and designated by the disclosing party in writing as confidential,
shall, in each case, be kept confidential by the Receiving Party and shall not
be used otherwise than in connection with the business of the Parties
contemplated hereunder except:
to the extent such information is generally available to the public prior to
the Receiving Party's receipt thereof, or which becomes public after such
receipt, but through no violation by such Receiving Party of this Section
15.21;
as may be required by Applicable Law or, upon prompt prior written notice to
the affected party, by judicial process;
as may be independently developed by the Receiving Party other than in
connection with the transactions contemplated hereby with respect to the
Facility or the Facility Site;
as may be disclosed to counsel, auditors or accountants to the Receiving Party,
or to the National Association of
Insurance Commissioners;
to the extent used in connection with any litigation to which the Receiving
Party is a party, provided that the other parties hereto shall have been
given prompt prior written notice (to the extent permitted by law) of such
proposed disclosure;
as may be disclosed to any transferee or proposed transferee of the Receiving
Party; provided, however, that, prior to any such disclosure, any such
transferee or proposed transferee, as the case may be, shall have agreed
in writing to be bound by the terms of this Section 15.21; or
as may be necessary or desirable in connection with the enforcement of remedies
by any party to any of the Operative Documents.
84
The foregoing obligation as to confidentiality and non-use shall
survive the termination of this Agreement for a period of five years.
Reliance. Calpine and the Facility Lessee agree that the Transaction Parties
may rely on the Environmental Reports.
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 Lessee's
or the Guarantor's obligations under any of the Operative Documents nor impair
the Facility Lessee's or the Guarantor's rights under any of the Operative
Documents. Notwithstanding the foregoing, Section 5.6 of the Collateral Trust
Indenture shall not be amended without the Guarantor's consent.
85
IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be executed and delivered by their respective
officers thereunto duly authorized.
BROAD RIVER ENERGY LLC,
a Delaware limited liability company
By: ___________________________________
Name:
Title:
Date:
BROAD RIVER OL-1 LLC, a Delaware limited
liability company
By: ▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Lessor Manager
By: ___________________________________
Name:
Title:
Date:
SBR OP-1 LLC, a Delaware limited liability
company
By: ▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Lessor Manager
By: ___________________________________
Name:
Title:
Date:
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity, except as
expressly provided herein, but soly as Lessor
Manager
By: _______________________
Name:
Title:
Date:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION
not in its individual capacity, except to the
extent expressly provided herein, but solely as
Indenture Trustee under the Collateral Trust
Indenture
By: ___________________________________
Name:
Title:
Date:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
not in its individual capacity, except to the
extent expressly provided herein, but solely as
Pass Through Trustees under the Pass Through
Trust Agreement
By: ___________________________________
Name:
Title:
Date:
CALPINE CORPORATION
a Delaware corporation
By: ___________________________________
Name:
Title:
Date:
APPENDIX A - DEFINITIONS AND RULES OF INTERPRETATION
RULES OF INTERPRETATION
In this Appendix A and each Operative Document (as hereinafter
defined), unless otherwise provided herein or therein:
(a) the terms set forth in this Appendix A or in any such Operative
Document shall have the meanings herein provided for and any term used
in an Operative Document and not defined therein or in this Appendix A
but in another Operative Document shall have the meaning herein or
therein provided for in such other Operative Document;
(b) any term defined in this Appendix A by reference to another
document, instrument or agreement shall continue to have the meaning
ascribed thereto whether or not such other document, instrument or
agreement remains in effect;
(c) words importing the singular include the plural and vice versa;
(d) words importing a gender include any gender;
(e) a reference to a part, clause, section, paragraph, article, party,
annex, appendix, exhibit, schedule or other attachment to or in respect
of an Operative Document is a reference to a part, clause, section,
paragraph, or article of, or a party, annex, appendix, exhibit,
schedule or other attachment to, such Operative Document unless, in any
such case, otherwise expressly provided in any such Operative Document;
(f) a reference to any statute, regulation, proclamation, ordinance or
law includes all statutes, regulations, proclamations, ordinances or
laws varying, consolidating or replacing the same from time to time,
and a reference to a statute includes all regulations, policies,
protocols, codes, proclamations and ordinances issued or otherwise
applicable under that statute unless, in any such case, otherwise
expressly provided in any such statute or in such Operative Document;
(g) a definition of or reference to any document, schedule, exhibit,
instrument or agreement includes an amendment or supplement to, or
restatement, replacement, modification or novation of, any such
document, schedule, exhibit, instrument or agreement unless otherwise
specified in such definition or in the context in which such reference
is used;
(h) a reference to a particular section, paragraph or other part of a
particular statute shall be deemed to be a reference to any other
section, paragraph or other part substituted therefor from time to
time;
2
(i) if a capitalized term describes, or shall be defined by reference
to, a document, instrument or agreement that has not as of any
particular date been executed and delivered and such document,
instrument or agreement is attached as an exhibit to the Participation
Agreement (as hereinafter defined), such reference shall be deemed to
be to such form and, following such execution and delivery and subject
to paragraph (g) above, to the document, instrument or agreement as so
executed and delivered;
(j) a reference to any Person (as hereinafter defined) includes such
Person's successors and permitted assigns;
(k) any reference to "days" shall mean calendar days unless "Business
Days" (as hereinafter defined) are expressly specified;
(l) if the date as of which any right, option or election is
exercisable, or the date upon which any amount is due and payable, is
stated to be on a date or day that is not a Business Day, such right,
option or election may be exercised, and such amount shall be deemed
due and payable, on the next succeeding Business Day with the same
effect as if the same was exercised or made on such date or day
(without, in the case of any such payment, the payment or accrual of
any interest or other late payment or charge, provided such payment is
made on such next succeeding Business Day);
(m) any reference to the satisfaction, release and/or discharge of the
Collateral Trust Indenture or the Collateral Documents (each as
hereinafter defined) or the Lien (as hereinafter defined) thereof or
words of similar import shall, whether or not so expressly stated, be
deemed to be a reference to the satisfaction, release and discharge in
full and cancellation of the Lien of the Collateral Trust Indenture or
the Collateral Documents, as the case may be, in accordance with the
express provisions thereof;
(n) words such as "hereunder", "hereto", "hereof" and "herein" and
other words of similar import shall, unless the context requires
otherwise, refer to the whole of the applicable document and not to any
particular article, section, subsection, paragraph or clause thereof;
and
(o) a reference to "including" shall mean including without limiting
the generality of any description preceding such term, and for purposes
hereof and of each Operative Document the rule of ejusdem generis shall
not be applicable to limit a general statement, followed by or
referable to an enumeration of specific matters, to matters similar to
those specifically mentioned.
DEFINED TERMS
"467 LOAN PRINCIPAL BALANCE" shall have the meaning set forth in
Section 3.2(d) of the Facility Lease.
"ACCEPTABLE BANK" shall mean, for the purposes of Section 5.3 of the
Facility Lease, a banking institution, the senior long-term unsecured
debt of which is rated at least A by
3
S&P and by ▇▇▇▇▇'▇, and which maintains an office or corresponding bank
located in New York City.
"ACTUAL KNOWLEDGE" shall mean, with respect to any Transaction Party,
actual knowledge of, or receipt of written notice by, an officer (or
other employee whose responsibilities include the administration of the
Overall Transaction) of such Transaction Party.
"ADDITIONAL CERTIFICATES" shall mean any additional certificates issued
by the Pass Through Trusts in connection with the issuance of
Additional Lessor Notes.
"ADDITIONAL EQUITY INVESTMENT" shall mean the amount, if any, the Owner
Participant shall provide (in its sole and absolute discretion) to
finance all or a portion of the Owner Lessor's Percentage of the cost
of any Required or Non-Severable Improvement financed pursuant to
Section 11.1 of the Participation Agreement.
"ADDITIONAL LESSOR NOTES" shall have the meaning specified in Section
2.12(a) of the Collateral Trust Indenture.
"AFFILIATE" of a particular Person shall mean, at any time, (a) any
Person directly or indirectly controlling, controlled by or under
common control with such particular Person and (b) any Person
beneficially owning or holding, directly or indirectly, 10% or more of
any class of voting or equity interest of such first Person or any
corporation of which such first Person beneficially owns or holds, in
the aggregate, directly or indirectly, 10% or more of any class of
voting or equity interest. For purposes of this definition, "control"
when used with respect to any particular Person shall mean the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled"
have meanings correlative to the foregoing; provided, however, that
under no circumstances shall the Lease Indenture Company be considered
to be an Affiliate of either the Indenture Trustee or any
Certificateholder, nor shall any of the Indenture Trustee or any
Certificateholder be considered to be an Affiliate of the Lease
Indenture Company, nor shall the Lease Indenture Company, the Indenture
Trustee, solely because any Operative Document contemplates that any of
them may request or act at the instruction of any such Person or such
Person's Affiliate.
"AFTER-TAX BASIS" shall mean, in the context of determining the amount
of a payment to be made on such basis, the payment of an amount which,
after reduction by the net increase in Taxes of the recipient (actual
or constructive) of such payment, which net increase shall be
calculated by taking into account any reduction in such Taxes resulting
from any Tax benefits realized or to be realized by the recipient as a
result of such payment, shall be equal to the amount required to be
paid. In calculating the amount payable by reason of this provision,
all income taxes payable and tax benefits realized or to be realized
shall be determined on the assumptions that (i) the recipient shall be
subject to the applicable income taxes at the highest marginal tax
rates then applicable to corporate taxpayers taxed on the same basis as
the recipient that are in effect in the applicable jurisdictions at the
time such amount is received or properly accrued, and
4
(ii) all related tax benefits are utilized at the highest marginal rates
then applicable to corporate taxpayers taxed on the same basis as the
recipient that are then in effect in the applicable jurisdictions.
"AGREEMENT PERIOD" shall have the meaning set forth in Section 7.6 of
the Participation Agreement.
"ALLOCATED RENT" shall have the meaning specified in Section 3.2(b) of
the Facility Lease.
"APPLICABLE LAW" shall mean, without limitation, all applicable laws,
including, without limitation, all Environmental Laws, and treaties,
judgments, decrees, injunctions, writs and orders of any court,
arbitration board or Governmental Entity and rules, regulations,
orders, ordinances, licenses and permits of any Governmental Entity.
"APPLICABLE PERMIT" shall mean any Permit, including any zoning,
environmental protection, pollution, sanitation, FERC, safety, siting
or building Permit, (a) that is necessary at any given time in light of
the stage of development, construction or operation of the Facility or
Facility Site to acquire, operate, maintain, repair, own, lease or use
the Facility, the Undivided Interest (if any), the Ground Interest or
Facility Site as contemplated by the Operative Documents and the FILOT
Lease, to sell electricity therefrom, to enter into any Operative
Document or to consummate any transaction contemplated thereby, or (b)
that is necessary so that none of the Owner Lessor, the Owner
Participant, the Lessor Manager, the Indenture Trustee, the Pass
Through Trustees or any Certificateholder nor any Affiliate of any of
them may be deemed by any Governmental Entity to be subject to
regulation under PUHCA or under any other Applicable Law relating to
electric utilities, generators, wholesalers or retailers, in each case
as a result of the operation of the Facility or the sale of electricity
therefrom.
"APPLICABLE RATE" shall mean the Prime Rate plus 1% per annum.
"APPRAISER" shall mean Deloitte & Touche LLP Valuation Group.
"APPRAISAL PROCEDURE" shall mean (except with respect to the Closing
Appraisal and any appraisal to determine Fair Market Sales Value or
Fair Market Rental Value during any period when a Lease Event of
Default shall have occurred and be continuing), an appraisal conducted
by an appraiser or appraisers in accordance with the following
procedures. Within ten (10) Business Days of written notice from the
initiating party of the commencement of an Appraisal Procedure, the
Owner Participant and the Facility Lessee will each appoint one
Independent Appraiser, which Independent Appraisers shall attempt to
agree upon the Fair Market Sales Value or Fair Market Rental Value that
is the subject of the appraisal. If either the Owner Participant or the
Facility Lessee does not appoint its appraiser within such ten Business
Day period, the determination of the other appraiser shall be
conclusive and binding on the Owner Participant and the Facility
Lessee. If the appraisers appointed by the Owner Participant and the
Facility Lessee are unable to agree upon the value, period, amount or
other determination in question within thirty (30) days, such
appraisers shall jointly appoint a third Independent Appraiser or, if
5
such appraisers do not appoint a third Independent Appraiser, the Owner
Participant and the Facility Lessee shall jointly appoint the third
Independent Appraiser. In such case, the average of the determinations
of the three appraisers shall be conclusive and binding on the Owner
Participant and the Facility Lessee, unless the determination of one
appraiser is disparate from the middle determination by more than twice
the amount by which the third determination is disparate from the
middle determination, in which case the determination of the most
disparate appraiser shall be excluded, and the average of the remaining
two determinations shall be conclusive and binding on the Owner
Participant and the Facility Lessee. Any appraisal determined in
accordance with the foregoing must be delivered within thirty (30) days
after the date on which the last of the appraisers is appointed
pursuant to the process set forth above.
"ASSIGNED DOCUMENTS" shall have the meaning specified in clause (1) of
the Granting Clause of the Collateral Trust Indenture.
"ASSIGNED FILOT DOCUMENTS" with respect to the Facility Site Lease and
the Springing Facility Site Lease, shall have the meaning set forth in
the recitals to the Facility Site Lease and the Springing Facility Site
Lease, respectively.
"ASSIGNMENT AGREEMENT" shall mean the Assignment Agreement (BR-1) dated
as of the Closing Date between the Facility Lessee and the Owner
Lessor, substantially in the form of Exhibit B to the Participation
Agreement duly completed, executed and delivered on the Closing Date
pursuant to which the Owner Lessor will acquire the Undivided Interest
and the Ground Interest from the Facility Lessee.
"ASSUMPTION PRICE" with respect to the Undivided Interest, shall mean
$75,000,000.
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the
rate of interest set forth or implicit in the terms of such lease (or,
if not practicable to determine such rate, the weighted average rate of
interest borne by the Certificates outstanding under the Pass Through
Trust Agreement (calculated, in the event of the issuance of any
original issue discount Lessor Notes, based on the imputed interest
rate with respect thereto)), compounded annually) of the total
obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"AVERAGE LIFE" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing
(i) the sum of the products of (A) the numbers of years from the date
of determination to the dates of each successive scheduled principal
payment of such Indebtedness or scheduled redemption or similar payment
with respect to such Indebtedness or Preferred Stock multiplied by (B)
the amount of such payment by (ii) the sum of all such payments.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code of 1978, as
amended from time to time, 11 U. S.C. [sec] 101 et seq.
6
"BANKRUPTCY LAW" means Title 11 of the United States Code or any
similar Federal or State law for the relief of debtors.
"BASIC LEASE TERM" shall have the meaning specified in Section 3.1 of
the Facility Lease.
"BASIC RENT" shall have the meaning specified in Section 3.2(a) of the
Facility Lease.
"BENEFICIARY" or "BENEFICIARIES" with respect to the Calpine Guaranty,
shall have the meaning set forth in Section 4 thereof.
"BOARD OF DIRECTORS" means the Board of Directors or General Partner,
as applicable, of the Guarantor or the Facility Lessee, as the context
requires, or any authorized committee of either thereof.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Guarantor to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Indenture Trustee.
"BROAD RIVER" shall mean Broad River Energy LLC.
"BURDENSOME BUYOUT EVENT" shall mean the occurrence of any event which
gives the Facility Lessee the right to terminate the Facility Lease
pursuant to Section 13.1 or Section 13.2 thereof.
"BURDENSOME TERMINATION NOTICE" shall mean a notice required in
accordance with Section 13.1 or Section 13.2, as the case may be, of
the Facility Lease upon the exercise of a termination option by the
Facility Lessee.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday, or a
day on which commercial banking institutions are authorized or required
by law, regulation or executive order to be closed in New York, New
York, the city and the state in which the Corporate Trust Office of the
Indenture Trustee is located or the city and state in which the Pass
Through Trustees are located.
"CALPINE" shall mean Calpine Corporation, a Delaware corporation.
"CALPINE DOCUMENTS" shall mean have the meaning set forth in Section
3.1 of the Calpine Guaranty.
"CALPINE GUARANTY" shall mean the Calpine Guaranty and Payment
Agreement (BR-1) dated as of the Closing Date in favor of the
Beneficiaries, substantially in the form of Exhibit H to the
Participation Agreement.
"CALPINE GUARANTY EVENT OF DEFAULT" shall mean any of the "Events of
Default" as specified in Section 7.1 of the Calpine Guaranty.
7
"CALPINE PARTIES" shall mean Calpine, the Facility Lessee, Calpine
Northbrook Services, LLC, and each other Affiliate of Calpine that is
party to any Operative Document.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation or any and all equivalent ownership interests in a Person
(other than a corporation).
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the rental
obligations under any lease of any property (whether real, personal or
mixed) of which the discounted present value of the rental obligations
of such Person as lessee, in conformity with GAAP, is required to be
capitalized on the balance sheet of such Person; the Stated Maturity of
any such lease shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a
penalty.
"CERTIFICATE PURCHASE AGREEMENT" shall mean the Certificate Purchase
Agreement, dated the Closing Date, among the Facility Lessee, Calpine, and the
Initial Purchasers.
"CERTIFICATEHOLDER INDEMNITEE" shall have the meaning set
forth in Section 9.2(a) of the Participation Agreement.
"CERTIFICATEHOLDERS" shall mean each of the holders of
Certificates, and each of such holder's successors and permitted assigns.
"CERTIFICATES" shall mean the 8.400% Pass Through Certificates Series A
and the 9.825% Pass Through Certificates Series B issued on the Closing
Date and any certificates issued in replacement therefor pursuant to
Section 3.3, 3.4 or 3.5 of the Pass Through Trust Agreement.
"CLAIM(S)" individually or collectively as the context may require,
shall mean any liability (including in respect of negligence (whether
passive or active or other torts), strict or absolute liability in tort
or otherwise, warranty, latent or other defects (regardless of whether
or not discoverable), statutory liability, property damage, bodily
injury or death), obligation, loss, settlement, damage, penalty, claim,
action, suit, proceeding (whether civil or criminal), judgment,
penalty, fine and other legal or administrative sanction, judicial or
administrative proceeding, cost, expense or disbursement, including
reasonable legal, investigation and expert fees, expenses and
reasonable related charges, of whatsoever kind and nature.
"CLOSING" shall have the meaning specified in Section 2.2(a) of the
Participation Agreement.
"CLOSING APPRAISAL" shall mean the appraisal, dated as of the Closing
Date, prepared by the Appraiser with respect to the Owner Lessor's
Interest.
8
"CLOSING DATE" shall have the meaning specified in Section 2.2(a) of
the Participation Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor statute.
"COLLATERAL DOCUMENTS" shall mean the Collateral Trust Indenture and
the financing statements.
"COLLATERAL TRUST INDENTURE" shall mean the Indenture of Trust,
Mortgage, Security Agreement and Fixture Filing (BR-1), dated as of the
Closing Date, between the Owner Lessor and the Indenture Trustee, in
substantially the form of Exhibit I to the Participation Agreement.
"COMMENCEMENT DATE" with respect to the Springing Facility Site Lease,
shall have the meaning specified in Section 2.1(a) of the Springing
Facility Site Lease.
"COMPETITOR" shall have the meaning specified in Section 7.1(b) of the
Participation Agreement.
"COMPONENT" shall mean any appliance, part, instrument, appurtenance,
accessory, furnishing, equipment or other property of whatever nature
that may from time to time be incorporated in the Facility, except to
the extent constituting Improvements or spare parts while being held
for future use.
"CONSOLIDATED CURRENT LIABILITIES," as of the date of determination,
means the aggregate amount of consolidated liabilities of the Guarantor
and its consolidated Restricted Subsidiaries which may properly be
classified as current liabilities (including taxes accrued as
estimated), after eliminating (i) all inter-company items between the
Guarantor and its Subsidiaries and (ii) all current maturities of
long-term Indebtedness, all as determined in accordance with GAAP.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any date of
determination, as applied to the Guarantor, the total amount of
Consolidated assets (less accumulated depreciation or amortization,
allowances for doubtful receivables, other applicable reserves and
other properly deductible items) under GAAP which would appear on a
Consolidated balance sheet of the Guarantor and its Subsidiaries,
determined in accordance with GAAP, and after giving effect to purchase
accounting and after deducting therefrom, to the extent otherwise
included, the amounts of: (i) Consolidated Current Liabilities; (ii)
minority interests in consolidated Restricted Subsidiaries held by
Persons other than the Guarantor or a Restricted Subsidiary; (iii)
excess of cost over fair value of assets of businesses acquired, as
determined in good faith by the Board of Directors; (iv) any
revaluation or other write-up in value of assets subsequent to December
31, 1993 as a result of a change in the method of valuation in
accordance with GAAP; (v) unamortized debt discount and expenses and
other unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items; (vi) treasury stock;
and (vii) any cash set apart and held in a sinking or other analogous
fund established for the purpose of redemption or other
9
retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities.
"CONSOLIDATED SUBSIDIARY" shall mean with respect to any Person at any
date any Subsidiary or other entity the accounts of which would be
consolidated in accordance with GAAP with those of such Person in its
consolidated financial statements as of such date.
"CONSOLIDATION" means, with respect to any Person, the consolidation of
accounts of such Person and each of its subsidiaries if and to the
extent the accounts of such Person and such subsidiaries are
consolidated in accordance with GAAP. The term "Consolidated" shall
have a correlative meaning.
"CORPORATE TRUST OFFICE" shall mean, with respect to the Indenture
Trustee, the office of such Person in the city in which at any
particular time its corporate trust business shall be principally
administered.
"CORRECTIVE ORDINANCE" shall mean that certain ordinance
authorizing the Assignment Agreement and adopted by the County on October 1,
2001 pursuant to a public hearing held September 24, 2001.
"COUNTY" shall mean Cherokee County, South Carolina.
"CSFB" shall mean Credit Suisse First Boston.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEBT PORTION OF TERMINATION VALUE" in respect of any determination of
Termination Value or amount determined by reference to the Termination
Value payable pursuant to the Operative Documents, shall mean an amount
equal to the excess of (i) the Termination Value set forth opposite the
Termination Date corresponding to such date of determination on
Schedule 2 of the Facility Lease, and, if such date of determination is
a Rent Payment Date, Periodic Rent due on that date (to the extent
payable in arrears) minus (ii) the sum of (A) the Equity Portion of
Termination Value and (B) if such date of determination is a Rent
Payment Date, the Equity Portion of Periodic Rent due on that date.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, a Calpine Guaranty Event of Default.
"DEPRECIATION DEDUCTION" shall have the meaning specified in Section
1(a) of the Tax Indemnity Agreement.
"DISCOUNT RATE" shall mean the Facility Lessee's incremental borrowing
rate as determined by the Facility Lessee in accordance with FASB 13.
10
"DOLLARS" or the sign "$" shall mean United States dollars or other
lawful currency of the United States.
"ENFORCEMENT NOTICE" shall have the meaning specified in Section 5.1 of
the Collateral Trust Indenture.
"ENGINEERING CONSULTANT" shall mean Stone and ▇▇▇▇▇▇▇ Consultants Inc.
"ENGINEERING REPORT" shall mean, with respect to the Facility, the
Phase 1 and Phase II reports of the Engineering Consultant, dated
October 12, 2001.
"ENVIRONMENTAL CONDITION" shall mean any action, omission, event,
condition or circumstance, including, without limitation, the presence
of any Hazardous Substance, which does or reasonably could (i) require
assessment, investigation, abatement, correction, removal or
remediation, (ii) give rise to any obligation or liability of any
nature (whether civil or criminal, arising under a theory of negligence
or strict liability, or otherwise) under any Environmental Law, (iii)
create or constitute a public or private nuisance or trespass, or (iv)
constitute a violation of or non-compliance with any Environmental Law.
"ENVIRONMENTAL CONSULTANT" shall mean ▇▇▇ ▇. ▇▇▇▇▇▇, Inc.
"ENVIRONMENTAL LAWS" shall mean any international, national, Native
American, provincial, regional, federal, state, municipal or local
laws, ordinances, rules, orders, statutes, decrees, judgments,
injunctions, directives, permits, licenses, approvals, codes,
regulations, common or decisional law (including principles of tort,
negligence, trespass, nuisance, strict liability, contribution and
indemnification) or other requirement of any Governmental Entity
relating to the environment, the safety or health of human beings or
other living organisms, natural resources or toxic, explosive,
corrosive, flammable, infectious, radioactive or other Hazardous
Substances, as each may from time to time be amended, supplemented or
supplanted.
"ENVIRONMENTAL REPORTS" shall mean the Phase 1 Environmental Site
Assessment Report, dated October 10, 2001, prepared by the
Environmental Consultant.
"EQUITY INVESTMENT" shall mean the amount specified with respect
thereto on Schedule 1-A to the Participation Agreement.
"EQUITY INVESTOR" shall mean Newcourt Capital USA Inc.
"EQUITY PORTION OF PERIODIC RENT" shall mean for any Rent Payment Date
the difference between (i) Periodic Rent scheduled to be paid under the
Facility Lease on such Rent Payment Date and (ii) the principal and
interest scheduled to be paid on the Lessor Notes on such Rent Payment
Date.
"EQUITY PORTION OF TERMINATION VALUE" in respect of any
determination of Termination Value or amount determined by reference to
Termination Value payable pursuant to the Operative Documents, shall mean an
amount equal to the excess, if any, of (i) the
11
Termination Value set forth opposite the Termination Date corresponding to
such date of determination on Schedule 2 of the Facility Lease, and, if such
date of determination is a Rent Payment Date, Periodic Rent due on that date
(to the extent payable in arrears) over (ii) the balance, including scheduled
(in accordance with the payment terms of the Lessor Notes) accrued interest, on
the Lessor Notes scheduled (in accordance with the payment terms of the Lessor
Notes) to be outstanding on such date of determination corresponding to the
Facility Lease.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Facility Lessee or a Subsidiary of the
Facility Lessee would be deemed to be a "single employer" (i) within
the meaning of Section 414(b), (c), (m) and/or (o) of the Code or (ii)
as a result of the Facility Lessee or a Subsidiary of the Facility
Lessee being or having been a general partner of such person.
"EVENT OF LOSS" shall mean any of the following events:
(i) the loss of the Facility or use thereof due to destruction
or damage to the Facility that renders repair uneconomic or that
renders the Facility permanently unfit for normal use or which does not
satisfy the preconditions for repair of the Facility set forth in
Section 10 of the Facility Lease; or
(ii) any damage to the Facility that results in an insurance
settlement with respect thereto on the basis of a total loss or an
agreed constructive or a compromised total loss of the Facility; or
(iii) (a) seizure, condemnation, confiscation or taking of, or
requisition (a "Requisition") of title to the Facility by any
Governmental Entity that shall have resulted in loss by the Owner
Lessor, prior to the Post-FILOT Lease Conversion Date, of the Undivided
Interest or the Ground Interest, or, from and after the Post-FILOT
Lease Conversion Date, of title to the Undivided Interest, in each case
following exhaustion of all permitted appeals or an election by the
Facility Lessee in its discretion not to pursue such appeals or rights;
provided that no such contest (or exercise) shall extend beyond the
earlier of the date which is (x) six months after the loss of such
leasehold interest or title, or (y) 48 months prior to the end of the
Basic Lease Term or any Renewal Lease Term then in effect or elected by
the Facility Lessee or (b) Requisition of use of, or leasehold interest
represented by the Undivided Interest or the Ground Interest or, upon
or following the Post-FILOT Lease Conversion Date, title to, the
Undivided Interest or the Ground Interest by any Governmental Entity
that shall have resulted in the loss of possession of the Undivided
Interest or all or any part of the Ground Interest that is required for
the use or operation of the Facility; provided that in any case
involving Requisition of use of the Facility, or all or any part of the
Facility Site that is required for the use or operation, of the
Facility, but not of the Owner Lessor's Undivided Interest or the
Ground Interest or (from and after the Post-FILOT Lease Conversion
Date) the Facility Lessee's title to the Ground Interest, such event
shall be an Event of Loss only if
12
loss of possession continues beyond the Basic Lease Term or any Renewal
Lease Term then in effect or elected by the Facility Lessee; or
(iv) if elected in writing by the Owner Participant, such
election to be made only in circumstances where the termination of the
Facility Lease shall remove the basis of the regulation described
below, subjection of the Owner Participant or the Owner Lessor to any
public utility regulation of any Governmental Entity or law which in
the reasonable opinion of the Owner Participant is burdensome, or the
subjection of the Owner Participant's or the Owner Lessor's interest in
the Facility Lease to any rate of return regulation by any Governmental
Entity, in either case by reason of the participation of the Owner
Lessor, the Owner Participant or the OP Guarantor in the transactions
contemplated by the Operative Documents and the FILOT Lease and not, in
any event, as a result of (a) investments, loans or other business
activities of the Owner Participant or any of its Affiliates in respect
of equipment or facilities similar in nature to the Facility or any
part thereof or in any other electrical, cogeneration or other energy
or utility related equipment or facilities or the general business or
other activities of the Owner Participant or any of its Affiliates or
the nature of any of the properties or assets from time to time owned,
leased, operated, managed or otherwise used or made available for use
by the Owner Participant or any of its Affiliates or (b) a failure of
the Owner Participant to perform routine, administrative or ministerial
actions the performance of which would not subject the Owner
Participant or any of its Affiliates to any material adverse
consequence (in the reasonable opinion of such Owner Participant acting
in good faith); provided that the Facility Lessee and the Owner Lessor
and Owner Participant agree to cooperate and to take reasonable
measures to alleviate the source or consequence of any regulation
constituting an Event of Loss under this paragraph (iv), so long as
there shall be no adverse consequences to the Owner Lessor or Owner
Participant as a result of such cooperation or the taking of reasonable
measures (the events and circumstances described herein this paragraph
(iv), a "Regulatory Event of Loss"); or
(v) if elected by the Owner Participant, in the event that the
FERC Owner Lessor EWG Order shall not have been obtained and become
final within ninety (90) days of the Closing Date, such election to be
conditioned upon receipt of a reasoned legal opinion of nationally
recognized independent counsel (Owner Participant's outside counsel at
Closing to be deemed to meet such qualifications) that any pending
proceeding, if adversely determined, would reasonably be expected to
have a material adverse effect on the Owner Participant or subject the
Owner Participant or the Owner Lessor to regulation as a public utility
company or a holding company under the Holding Company Act;
(vi) if elected by the Owner Participant, in the event that
the FERC Order set forth in clause (v) of the definition of "FERC
Orders" herein shall not have been obtained and become final within
ninety (90) days of the Closing Date, such election to be conditioned
upon receipt of a reasoned legal opinion of nationally recognized
independent counsel (Owner Participant's outside counsel at Closing to
be deemed to meet such qualifications) that any pending proceeding, if
adversely determined, would reasonably be expected to have a material
adverse effect on the Owner Participant or the Owner Lessor; or
13
(vii) the FILOT Lease shall have been cancelled or terminated
or shall otherwise cease to be in full force and effect otherwise than
by reason of (a) an event constituting a Lease Event of Default or (b)
the occurrence of the Post-FILOT Lease Conversion Date.
The date of occurrence of an Event of Loss described in clauses (i) or
(ii) above shall be the date of the Facility Lessee's notice to the
Owner Lessor, the Owner Participant, the Indenture Trustee and the Pass
Through Trustees pursuant to Section 10.1 of the Facility Lease that it
does not elect to rebuild the Facility pursuant to Section 10.3 of the
Facility Lease but to pay Termination Value and terminate the Facility
Lease pursuant to Section 10.2 thereof, or the date an Event of Loss is
deemed to occur pursuant to the last sentence of Section 10.1 of the
Facility Lease. The date of occurrence of an Event of Loss described in
clause (iii)(a) above shall be the earlier of (A) the date which is six
months following the loss of title, (B) the date upon which the
Facility Lessee shall have concluded all efforts to contest such loss
of title or exercise its rights of eminent domain, and (C) the date
which is 48 months prior to the end of the Basic Lease Term or any
Renewal Lease Term then in effect or elected by the Facility Lessee (if
an event described in clause (iii)(a) shall be continuing at such
time). The date of occurrence of an Event of Loss described in clause
(iii)(b) above shall be the date of requisition of title to the
Facility Site or, in the case of a requisition of use of the Facility
Site, the date which is the scheduled expiration date of the Basic
Lease Term or any Renewal Lease Term then in effect or elected by the
Facility Lessee, as the case may be (if an event described in clause
(iii)(b) shall be continuing at such time). The date of occurrence of
an Event of Loss described in clause (iv) above shall be the date on
which the Facility Lessee receives the Owner Participant's election
made in accordance with such clause (iv) during any period when an
event is continuing which upon election by Owner Participant in
accordance with such clause (iv) would constitute a Regulatory Event of
Loss. The date of occurrence of an Event of Loss described in clause
(v) above shall be the date on which the Facility Lessee receives the
Owner Participant's election made in accordance with such clause (v).
The date of occurrence of an Event of Loss in clause (vi) above shall
be the date on which the Facility Lessee receives the Owner
Participant's election made in accordance with such clause (vi). The
date of occurrence of an Event of Loss in clause (vii) shall be ten
(10) Business Days after the date of such termination, cancellation or
failure to be in full force and effect.
"EXCEPTED PAYMENTS" shall mean and include (i)(A) any right, title or
interest to any indemnity (whether or not constituting Supplemental
Rent and whether or not a Lease Event of Default exists) payable to
either the Owner Lessor, the Lessor Manager, the Trust Company, or the
Owner Participant or to their respective Indemnitees and successors and
permitted assigns (other than the Indenture Trustee) pursuant to
Section 2.3, 9.1, 9.2, 11.1 or 11.2 of the Participation Agreement, and
any payments under any Tax Indemnity Agreement (provided that Excepted
Payments shall not include any Periodic Rent) or (B) any amount payable
by the Facility Lessee to the Owner Lessor or the Owner Participant to
reimburse any such Person for its costs and expenses in exercising its
rights under the Operative Documents or the FILOT Lease, (ii)(A)
insurance proceeds, if any, payable to the Owner Lessor or the Owner
Participant under insurance separately maintained by the Owner Lessor
or the Owner Participant
14
with respect to the Facility as permitted by Section 3(b) of Schedule 5.31
to the Participation Agreement or (B) proceeds of personal injury or
property damage liability insurance maintained under any Operative Document
or the FILOT Lease for the benefit of the Owner Lessor or the Owner
Participant, (iii) any amount payable to the Owner Participant as the
purchase price of the Owner Participant's right and interest in the Member
Interest, (iv) all other fees expressly payable to the Owner Participant
under the Operative Documents, (v) any payments in respect of interest, or
any payments made on an After-Tax Basis, to the extent attributable to
payments referred to in clause (i) through (vi) above; (vii) any amounts
paid to the Owner Lessor as reimbursement for amounts expended pursuant
to Section 20 of the Facility Lease; (viii) proceeds of the items referred
to in clause (i) through (vii) above; and (ix) any rights to demand,
collect, ▇▇▇ for, or otherwise receive and enforce payment of the foregoing
amounts, including under the Calpine Guaranty, but without limiting
clause (v) of this definition above.
"EXCESS AMOUNT" shall have the meaning specified in Section 14.3 of the
Participation Agreement, and, with respect to the Collateral Trust
Indenture, the meaning specified in Section 9.13 thereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCLUDED TAXES" shall have the meaning specified in Section 9.2(b) of
the Participation Agreement.
"EXEMPT WHOLESALE GENERATOR" or "EWG" shall mean an entity which is an
"exempt wholesale generator" as defined in Section 32 of PUHCA.
"FACILITY" shall mean a 850 MW nameplate capacity gas-fired simple
cycle merchant power plant located in Gaffney, South Carolina and more
fully described in Exhibit A to the Participation Agreement. The
Facility does not include the Facility Site.
"FACILITY LEASE" shall mean, the Facility Lease Agreement (BR-1), dated
as of October 18, 2001, between the Owner Lessor and the Facility
Lessee, substantially in the form of Exhibit C to the Participation
Agreement.
"FACILITY LEASE TERM" with respect to the Facility Lease, shall mean
the term of the Facility Lease, including the Basic Lease Term and all
Renewal Lease Terms.
"FACILITY LESSEE" shall have the meaning set forth in the recitals to
the Participation Agreement.
"FACILITY PURCHASE OPTION" shall mean the right of the Owner Lessor,
pursuant to Section 10.02 of the FILOT Lease, to acquire an undivided
fee interest (to the extent of the Owner Lessor's Percentage) in all of
or a portion of the Project, other than the portion thereof
constituting the Land.
"FACILITY SITE" shall have the meaning set forth in the recitals to the
Facility Site Lease.
15
"FACILITY SITE LEASE" shall mean the Facility Site Lease (BR-1), dated
as of October 18, 2001, between Facility Lessee and the Owner Lessor,
substantially in the form of Exhibit D to the Participation Agreement,
pursuant to which Owner Lessor will lease the Ground Interest to the
Facility Lessee.
"FACILITY SITE LESSEE" shall mean, with respect to the Facility Site
Lease, Broad River Energy LLC, and with respect to the Springing
Facility Site Lease, shall mean Owner Lessor.
"FACILITY SITE LESSEE EVENT OF DEFAULT" shall have the meaning set
forth in Section 13.1 of the Facility Site Lease.
"FACILITY SITE LESSOR" shall mean, with respect to the Facility Site
Lease, Owner Lessor, and with respect to the Springing Facility Site
Lease, shall mean Broad River Energy LLC.
"FACILITY SITE RENT" shall have the meaning set forth in Article IV of
the Facility Site Lease and Section 4.1 of the Springing Facility Site
Lease.
"FAIR MARKET RENTAL VALUE" or "FAIR MARKET SALES VALUE" shall mean with
respect to any property or service as of any date, the cash rent or
cash price obtainable in an arm's-length lease, sale or supply,
respectively, between an informed and willing lessee or purchaser under
no compulsion to lease or purchase and an informed and willing lessor
or seller or supplier under no compulsion to lease or sell or supply
the property or service in question, and shall, in the case of the
Undivided Interest or the Owner Lessor's Interest, be determined
(except pursuant to Section 17 of the Facility Lease or as otherwise
provided below or in the Operative Documents) on the basis and
assumption that (i) the conditions contained in Sections 7 and 8 of the
Facility Lease shall have been complied with in all respects, (ii) the
lessee or buyer shall have rights in, or an assignment of, the
Operative Documents to which the Owner Lessor is a party and the FILOT
Lease and the obligations relating thereto, (iii) the Undivided
Interest or the Owner Lessor's Interest, as the case may be, is free
and clear of all Liens (other than Owner Lessor's Liens, Owner
Participant's Liens and Indenture Trustee Liens), (iv) taking into
account the remaining term of the Facility Site Lease, and (v) in the
case the Fair Market Rental Value, taking into account the terms of the
Facility Lease and the other Operative Documents. If the Fair Market
Sales Value of the Owner Lessor's Interest is to be determined during
the continuance of a Lease Event of Default or in connection with the
exercise of remedies by the Owner Lessor pursuant to Section 17 of the
Facility Lease, such value shall be determined by an Independent
Appraiser appointed solely by the Owner Lessor on an "as-is",
"where-is" and "with all faults" basis and shall take into account all
Liens (other than Owner Lessor's Liens, Owner Participant's Liens and
Indenture Trustee Liens); provided, however, in any such case where the
Owner Lessor shall be unable to obtain constructive possession
sufficient to realize the economic benefit of the Owner Lessor's
Interest, Fair Market Sales Value of the Owner Lessor's Interest shall
be deemed equal to $0 (zero). If in any case other than in the
preceding sentence the parties are unable to agree upon a Fair Market
Sales Value of the Owner Lessor's Interest within 30 days after a
request therefor has been made, the Fair Market Sales Value of the
Owner Lessor's
16
Interest shall be determined by appraisal pursuant to the Appraisal
Procedures. Any fair market value determination of a Severable Improvement
shall take into consideration any liens or encumbrances to which the
Severable Improvement being appraised is subject and which are being
assumed by the transferee.
"FACILITY SITE SUBLEASE EVENT OF DEFAULT" shall have the meaning set
forth in Section 13.1 of the Springing Facility Site Sublease.
"FASB 13" shall mean the Statement of the Financial Accounting
Standards Board No. 13, as amended and interpreted from time to time.
"FASB 98" shall mean the Statement of the Financial Accounting
Standards Board No. 98, as amended and interpreted from time to time.
"FEDERAL POWER ACT" or "FPA" shall mean the Federal Power Act, as
amended.
"FERC" shall mean the Federal Energy Regulatory Commission of the
United States or any successor or predecessor agency thereto.
"FERC ORDERS" shall mean any or all of the following of the FERC Orders
required pursuant to Section 4.8 of the Participation Agreement:
(i) a determination by FERC of EWG status of the Facility Lessee
and Owner Lessor and the Owner Participant;
(ii) an approval from FERC for the Facility Lessee to sell
power at market-based rates under Section 205 of the FPA effective on
or before the Closing Date;
(iii) either an approval by FERC of the issuance of securities
and the assumption of obligations necessary to effect the
sale/leaseback pursuant to Section 204 of the Federal Power Act or
blanket authorization to issue securities and assume obligations under
such Section;
(iv) Intentionally Omitted; and
(v) an approval from FERC under Section 203 of the Federal
Power Act for the transfer of jurisidictional facilities in the
sale/leaseback contemplated by the Operative Documents.
"FERC OWNER LESSOR EWG ORDER" shall mean the orders issued by the FERC
determining that the Owner Lessor is an EWG.
"FILOT LEASE" shall mean the Lease Agreement dated March 1, 2000 by and
between the County and Facility Lessee, together with the Inducement
Agreement.
"FINAL DETERMINATION" shall have the meaning specified in Section 9 of
the Tax Indemnity Agreement.
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"FIRST RENEWAL LEASE TERM" with respect to the Facility Lease, shall
have the meaning specified in Section 15.1(a) of the Facility Lease.
"FIRST WINTERGREEN RENEWAL LEASE OPTION" with respect to the Facility
Site Lease, shall have the meaning specified in Section 2.2(a)(i) of
the Springing Facility Site Lease.
"FMV RENEWAL LEASE OPTION" with respect to the Initial Term, shall have
the meaning set forth in Section 2.2(a)(iii) of the Springing Facility
Site Lease.
"FMV RENEWAL LEASE TERM" with respect to the Facility Lease, shall have
the meaning specified in Section 15.2 of the Facility Lease.
"FORECLOSURE TRANSFER" with respect to the Springing Facility Site
Lease, shall have the meaning set forth in Section 19.3 of the
Springing Facility Site Lease.
"GAAP" shall mean generally accepted accounting principles.
"GOVERNMENTAL ACTIONS" shall mean all authorizations, consents,
approvals, waivers, exceptions, variances, filings, permits, orders,
licenses, exemptions and declarations of or with any Governmental
Entity and shall include those citing, environmental and operating
permits and licenses (including the Applicable Permits) that are
required for the use and operation of the Facility, the Undivided
Interest (if any), the Ground Interest and the Facility Site.
"GOVERNMENTAL ENTITY" shall mean and include any international,
national, Native American, provincial, regional, state, municipal or
local government, any political subdivision of any thereof or any
board, commission, department, division, organ, instrumentality, court
or agency of any thereof.
"GROUND INTEREST" shall mean, prior to the Post-FILOT Lease Conversion
Date, the Owner Lessor's 25% undivided leasehold interest in the
Facility Site, and upon and after the Post-FILOT Lease Conversion Date,
the Owner Lessor's 25% undivided leasehold interest in the Facility
Site.
"GUARANTOR" shall mean Calpine Corporation.
"GUARANTOR ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an
assignment and assumption agreement in form and substance substantially
in the form of Exhibit L to the Participation Agreement.
"HAZARDOUS SUBSTANCE" shall mean any pollutant, contaminant, hazardous
substance, hazardous waste, toxic substance, petroleum or
petroleum-derived substance, waste, or additive, asbestos, PCBs,
radioactive material, or other compound, element, material or substance
in any form whatsoever (including products) regulated, restricted or
controlled by or under any Environmental Law.
"HOLDING COMPANY ACT" shall mean the Public Utility Holding Company Act
of 1935, as amended.
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"IMPROVEMENT" shall mean an addition, betterment or enlargement of the
Facility. Improvements shall include any Required Improvements or
Optional Improvements, but do not include Components.
"INCOME TAXES" shall have the meaning set forth in Section 9.2(b)(i) of
the Participation Agreement.
"INCUR" means, as applied to any obligation, to create, incur, issue,
assume, guarantee or in any other manner become liable with respect to,
contingently or otherwise, such obligation, and "Incurred,"
"Incurrence" and "Incurring" shall each have a correlative meaning;
provided, however, that any amendment, modification or waiver of any
provision of any document pursuant to which Indebtedness was previously
Incurred shall not be deemed to be an Incurrence of Indebtedness as
long as (i) such amendment, modification or waiver does not (A)
increase the principal or premium thereof or interest rate thereon, (B)
change to an earlier date the Stated Maturity thereof or the date of
any scheduled or required principal payment thereon or the time or
circumstances under which such Indebtedness may or shall be redeemed,
(C) if such Indebtedness is contractually subordinated in right of
payment to the Obligations, modify or affect, in any manner adverse to
the Beneficiaries, such subordination or (D) if the Guarantor is the
obligor thereon, provide that a Restricted Subsidiary shall be an
obligor and (ii) such Indebtedness would, after giving effect to such
amendment, modification or waiver as if it were an Incurrence, comply
with clause (i) of the first proviso to the definition of "Refinancing
Indebtedness."
"INDEBTEDNESS" of any Person shall mean (i) all indebtedness of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price
of property or services, (iv) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (v) all Lease
Obligations of such Person (including payments of Termination Value and
any other amounts owed pursuant to the Operative Documents), (vi) all
obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (vii) all unconditional
obligations of such Person to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock or other equity interests
of such Person or any warrants, rights or options to acquire such
capital stock or other equity interests, (viii) all net obligations
under "swaps", "caps", "floors", "collars", or other interest rate
hedging contracts or similar arrangements, (ix) all Indebtedness of any
other Person of the type referred to in clauses (i) through (viii),
guaranteed by such Person or for which such Person shall otherwise
(including pursuant to any keepwell, makewell or similar arrangement)
become directly or indirectly liable, and (x) all Indebtedness of the
type referred to in clauses (i) through (ix) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
19
Indebtedness, the amount of such obligation being deemed to be the
lesser of the value of such property or the amount of the obligation so
secured.
"INDEMNITEE" shall have the meaning specified in Section 9.1(a) of the
Participation Agreement.
"INDEMNITOR" shall have the meaning set forth in Section 13.3 of the
Springing Facility Site Lease.
"INDENTURE BANKRUPTCY DEFAULT" shall mean any event or occurrence,
which, with the passage of time or the giving of notice or both, would
become an Lease Indenture Event of Default under Section 4.2(e) or (f)
of the Collateral Trust Indenture.
"INDENTURE DEFAULT" shall mean any event or occurrence, which, with the
passage of time or the giving of notice or both, would become an Lease
Indenture Event of Default.
"INDENTURE ESTATE" shall have the meaning specified in the Granting
Clause of the Collateral Trust Indenture.
"INDENTURE TRUSTEE" shall mean State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity,
except as expressly provided herein, but solely as Indenture Trustee
under the Operative Documents.
"INDENTURE TRUSTEE OFFICE" shall mean the office to be used for notices
to the Indenture Trustee from time to time pursuant to Section 9.5 of
the Collateral Trust Indenture.
"INDENTURE TRUSTEE'S ACCOUNT" shall mean the account specified with
respect thereto on Schedule 1-B to the Participation Agreement or such
other account of the Indenture Trustee, as the Indenture Trustee may
from time to time specify in a notice to the other parties to the
Participation Agreement.
"INDENTURE TRUSTEE'S LIENS" shall mean any Lien on the Lessor Estate,
the Facility, the Facility Site or any part thereof or any interest
therein arising as a result of (i) Taxes against or affecting the Lease
Indenture Company or the Indenture Trustee, or any Affiliate thereof
that are not related to, or that are in violation of, any Operative
Document or the FILOT Lease or the transactions contemplated thereby,
(ii) Claims against or any act or omission of the Lease Indenture
Company or the Indenture Trustee, or Affiliate thereof that is not
related to, or that is in violation of, any of such Person's
representations, warranties, covenants or agreements in an Operative
Document or the transactions contemplated thereby or that is in breach
of any covenant or agreement of the Lease Indenture Company or the
Indenture Trustee specified therein, (iii) Taxes imposed upon the Lease
Indenture Company or the Indenture Trustee, or any Affiliate thereof
that are not indemnified against by the Facility Lessee pursuant to any
Operative Document or (iv) Claims against or affecting the Lease
Indenture Company or the Indenture Trustee, or any Affiliate thereof
arising out of the voluntary or involuntary transfer by the Lease
Indenture Company or the Indenture Trustee of any portion of the
interest of the Lease Indenture Company or the Indenture Trustee in the
Lessor Estate, other than pursuant to the Operative Documents.
20
"INDEPENDENT APPRAISER" shall mean a disinterested, licensed industrial
property appraiser who is a member of the Appraisal Institute having
experience in the business of evaluating facilities similar to the
Facility.
"INDUCEMENT AGREEMENT" shall mean the Inducement Agreement and Millage
Agreement dated June 15, 1999, between the County and the Facility
Lessee.
"INITIAL LESSOR NOTES" shall have the meaning set forth in Section 2.2
of the Collateral Trust Indenture.
"INITIAL PURCHASERS" shall mean CSFB, Banc of America Securities LLC,
Scotia Capital (USA) Inc. and TD Securities (USA) Inc.
"INITIAL SUBLEASE TERM" with respect to the Springing Facility Site
Sublease, shall have the meaning set forth in Section 2.1(a) of the
Springing Facility Site Sublease.
"INITIAL TERM" with respect to the Springing Facility Site Lease, shall
have the meaning specified in Section 2.1(a) of the Springing Facility
Site Lease.
"INSURANCE CONSULTANT" shall mean ▇▇▇▇▇ USA, Inc.
"INVESTMENT BANKER" shall have the meaning set forth in Section 2.10(d)
of the Collateral Trust Indenture.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940.
"INVESTMENT GRADE" with respect to a Rating Agency, shall mean, with
respect to S&P, BBB- or higher, and with respect to ▇▇▇▇▇'▇, Baa3 or
higher, or, if after the Closing Date a different system of ratings is
established, the term shall mean a rating in one of such Rating
Agency's generic rating categories that is comparable to such ratings.
"IRS" shall mean the Internal Revenue Service of the United States
Department of Treasury or any successor agency.
"LAND" shall have the meaning thereof set forth in the FILOT Lease.
"LAND PURCHASE OPTION" shall mean the right of the Owner Lessor,
pursuant to Section 10.02 of the FILOT Lease, to acquire an undivided
fee interest (to the extent of the Owner Lessor's Percentage) in the
Land.
"L/C BANK" shall mean the Acceptable Bank providing a letter of credit
pursuant to Section 5.3 of the Facility Lease.
"LEASE DEBT" shall mean the debt evidenced by the Lessor Notes.
"LEASE DEBT Rate" shall mean the applicable interest rate accruing on
Lessor Notes.
"LEASE DEFAULT" shall mean any event or occurrence, which, with the
passage of time or the giving of notice or both, would become a Lease
Event of Default.
21
"LEASE EVENT OF DEFAULT" with respect to the Facility Lease, shall have
the meaning specified in Section 16 of the Facility Lease.
"LEASE INDENTURE COMPANY" shall mean State Street Bank and Trust
Company of Connecticut, National Association, in its individual
capacity under the Operative Documents.
"LEASE INDENTURE EVENT OF DEFAULT" shall have the meaning set forth in
Section 4.2 of the Collateral Trust Indenture.
"LEASE OBLIGATIONS" shall mean, without duplication, (i) indebtedness
represented by obligations under a lease that is required to be
capitalized for financial reporting purposes, (ii) with respect to
operating leases of electric generating facilities, the termination
value or similar amount payable by the lessee under such lease and
(iii) the principal amount of financial obligations under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction is
considered borrowed money indebtedness of the lessee for tax purposes
but is classified as an operating lease under GAAP.
"LEASEHOLD LIEN" with respect to the Facility Site Lease, shall have
the meaning set forth in Section 15.3 of the Facility Site Lease and
with respect to the Springing Facility Site Lease or Springing Facility
Site Sublease, shall have the meaning set forth in Section 16.4 of the
Springing Facility Site Lease or Section 15.3 of the Springing Facility
Site Sublease.
"LEASEHOLD MORTGAGEE" with respect to the Facility Site Lease, shall
have the meaning set forth in Section 15.3 of the Facility Site Lease
and with respect to the Springing Facility Site Lease or Springing
Facility Site Sublease, shall have the meaning set forth in Section
16.4 of the Springing Facility Site Lease or Section 15.3 of the
Springing Facility Site Sublease.
"LESSEE 467 LOAN INTEREST" with respect to the Facility Lease, shall
have the meaning specified in Section 3.2(d) of the Facility Lease.
"LESSEE 467 LOAN PRINCIPAL BALANCE" with respect to the Facility Lease,
shall have the meaning set forth in Section 3.2(d) of the Facility
Lease.
"LESSOR 467 LOAN INTEREST" with respect to the Facility Lease, shall
have the meaning specified in Section 3.2(d) of the Facility Lease.
"LESSOR 467 LOAN PRINCIPAL BALANCE" with respect to the Facility Lease,
shall have the meaning set forth in Section 3.2(d) of the Facility
Lease.
"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, 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,
22
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 and the FILOT Lease and any of the
foregoing, but shall not include Excepted Payments.
"LESSOR MANAGER" shall mean ▇▇▇▇▇ Fargo Bank Northwest, National
Association not in its individual capacity, but solely as an
independent manager under the LLC Agreement and each other Person that
may from time to time be acting as Independent Manager in accordance
with the provisions of the LLC Agreement.
"LESSOR NOTE(S)" shall mean, individually or collectively as the
context may require, the Initial Lessor Notes and Additional Lessor
Notes, each issued pursuant to the Collateral Trust Indenture.
"LESSOR PUT RENEWAL LEASE TERM" with respect to the Facility Lease,
shall have the meaning specified in Section 15.3 of the Facility Lease.
"LIEN" shall mean any mortgage, security deed, security title, pledge,
lien, charge, encumbrance, lease, and security interest or title
retention arrangement.
"LLC AGREEMENT" shall mean the Amended and Restated Limited Liability
Company Agreement, dated as of October 1, 2001, between the Owner
Participant and the Lessor Manager, pursuant to which the Owner Lessor
shall be governed.
"MAJORITY IN INTEREST OF NOTEHOLDERS" as of any date of determination,
shall mean Noteholders holding in aggregate more than 50% of the total
outstanding principal amount of the Lessor Notes; provided, however,
that any Note held by the Facility Lessee, the Guarantor or any
Affiliate of either such party shall not be considered outstanding for
purposes of this definition.
"MAKE-WHOLE AMOUNT" shall mean, with respect to any Lessor Note subject
to redemption pursuant to the Lease Indenture, an amount equal to the
Discounted Present Value calculated for such Lessor Note being redeemed
less the unpaid principal amount of such Lessor Note; provided that the
Make Whole Amount shall not be less than zero. For purposes of this
definition, the "Discounted Present Value" of any Lessor Note subject
to redemption pursuant to the Lease Indenture shall be equal to the
discounted present value, as of the date of redemption, of all
principal and interest payments scheduled to become due in respect of
such Lessor Note, after the date of such redemption calculated using a
discount rate equal to the sum of (i) the yield to maturity on the U.S.
Treasury security having an average life equal to the remaining average
life of such Lessor Note and trading in the secondary market at the
price closest to par and (ii) 50 basis points; provided, however, that
if there is no U.S. Treasury security having an average life equal to
the remaining average life of such Lessor Note, such discount rate
shall be calculated using a yield to maturity interpolated or
extrapolated on a straight-line basis (rounding to the nearest calendar
month, if necessary) from the yields to maturity for two U.S. Treasury
securities having average lives most closely
23
corresponding to the remaining life of such Lessor Note and trading in the
secondary market at the price closest to par.
"MANAGER" shall mean CSFB.
"MATERIAL ADVERSE CHANGE" and "MATERIAL ADVERSE EFFECT" shall mean a
material adverse effect on (a) the economic prospects, operations,
assets, financial position, results of operation or business of the
Guarantor, including a material adverse effect on (i) the Facility, the
Undivided Interest, the Facility Site or the Ground Interest which
adversely affects the ability of the Guarantor to perform its
obligations under the Operative Documents or (ii) the validity or
enforceability of the Operative Documents, (b) the Indenture Estate or
the Lessor Estate, the security interests in the Lessor Estate, or (c)
with respect to the Owner Participant's (but not the
Certificateholders') interest in the Undivided Interest, the residual
value or remaining useful life of the Facility.
"MEMBER INTEREST" shall mean the interest of the Owner Participant in
the Owner Lessor.
"MEMORANDUM OF FACILITY SITE LEASE" shall mean the Memorandum of
Facility Site Lease (BR-1), dated as of the Closing Date, between the
Owner Lessor, as landlord, and the Facility Lessee, as tenant, and
filed with the Office of the Cherokee County Clerk of Court.
"MEMORANDUM OF LEASE" shall mean the Memorandum of Facility Lease
(BR-1), dated as of the Closing Date, between the Owner Lessor and the
Facility Lessee filed with the Office of the Cherokee County Clerk of
Court.
"MEMORANDUM OF SPRINGING FACILITY SITE LEASE" shall mean the Memorandum
of Springing Facility Site Lease (BR-1), dated as of the Closing Date,
between the Facility Lessee, as landlord, and the Owner Lessor, as
tenant, and filed with the Office of the Cherokee County Clerk of
Court.
"MEMORANDUM OF SPRINGING FACILITY SITE SUBLEASE" shall mean the
Memorandum of Springing Facility Site Sublease (BR-1), dated as of the
Closing Date, between the Owner Lessor, as sublandlord, and the
Facility Lessee, as subtenant, and filed with the Office of the
Cherokee County Clerk of Court.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"MULTIEMPLOYER PLAN" shall mean any Plan that is a multiemployer plan
(as defined in Section 4001(a)(3) of ERISA).
"NOTE REGISTER" shall have the meaning specified in Section 2.8 of the
Collateral Trust Indenture.
"NOTEHOLDER(S)" shall mean any holder of record (as reflected on the
Note Register) from time to time of a Lessor Note outstanding.
24
"NOTICE PERIOD" shall have the meaning set forth in Section 7.6 of the
Participation Agreement.
"OBLIGATIONS" shall have the meaning set forth in Section 2.2 of the
Calpine Guaranty.
"OBSOLESCENCE TERMINATION DATE" shall have the meaning specified in
Section 14.1 of the Facility Lease.
"OFFERING CIRCULAR" shall mean the Offering Circular, dated October 11,
2001, with respect to the Certificates.
"OFFICER" shall mean, solely with respect to the Guarantor, the
Chairman, the President, any Vice President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, the Secretary, any
Assistant Treasurer, any Assistant Secretary or the Controller or
Principal Accounting Officer of the Guarantor.
"OFFICER'S CERTIFICATE" shall mean with respect to any Person, a
certificate signed (i) in the case of a corporation, by the Chairman of
the Board, the President, or a Vice President of such Person or any
Person authorized by or pursuant to the organizational documents, the
by-laws or any resolution of the Board of Directors or Executive
Committee of such Person (whether general or specific) to execute,
deliver and take actions on behalf of such Person in respect of any of
the Operative Documents, (ii) in the case of a partnership, by the
Chairman of the Board of Directors, the President or any Vice
President, the Treasurer or an Assistant Treasurer of a corporate
general partner and (iii) in the case of an Indenture Trustee, a
certificate signed by a Responsible Officer of such Indenture Trustee.
"OFFICIAL RECORDS" shall have the meaning specified in the recitals to
the Facility Site Lease.
"OP ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an assignment and
assumption agreement in form and substance substantially in the form of
Exhibit J to the Participation Agreement.
"OP GUARANTOR" shall mean Newcourt Credit Group USA Inc., or any Person
that shall guaranty the obligations of a Transferor under the Operative
Documents in accordance with Section 7.1 of the Participation
Agreement.
"OP LLC AGREEMENT" shall mean the Amended and Restated Limited
Liability Company Agreement, dated as of October 1, 2001, between
Newcourt Capital USA Inc. and the Lessor Manager, pursuant to which the
Owner Participant shall be governed.
"OP PARENT GUARANTY" shall mean, as applicable, (i) that certain
guaranty of Newcourt Credit Group USA Inc., dated as of the Closing
Date in favor of the Facility Lessee, the Owner Lessor, the Lessor
Manager, the Trust Company, the Indenture Trustee, the Pass Through
Trustees and the Certificateholders, or (ii) any other guaranty
agreement provided by an OP Guarantor in form and substance
substantially in the form of Exhibit G to the Participation Agreement.
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"OPERATIVE DOCUMENTS" shall mean the Participation Agreement, the
Assignment Agreement, the Facility Lease, the Certificates, the
Facility Site Lease, the Springing Facility Site Lease, the Springing
Facility Site Sublease, the Collateral Trust Indenture, the Lessor
Notes, the Pass Through Trust Agreements, the LLC Agreement, the Tax
Indemnity Agreement, the Tri-Party Agreement, the Calpine Guaranty, the
OP Parent Guaranty (if any), the Certificate Purchase Agreement and the
Ownership and Operation Agreement.
"OPERATOR" shall mean Calpine Northbrook Services, LLC or any
replacement Operator appointed pursuant to the Operative Documents.
"OPINION OF COUNSEL" shall mean, with respect to any Calpine Party, a
written opinion (i) from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or any other internal
counsel of Calpine, as to matters contained in such opinions delivered
at Closing, and as to all other matters, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
and/or ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, or any other outside legal counsel
reasonably acceptable to the Owner Participant, (ii) in form and
substance (with respect to qualifications, exception, assumption and
the like) substantially equivalent to the legal opinions delivered at
Closing, with any material modification or supplements thereto to be
reasonably acceptable to the Owner Participant, or in any such other
form as may be reasonably acceptable to the Owner Participant, and
(iii) the scope of which shall cover due authorization, execution,
delivery and enforceability of the applicable agreement(s), and
exemption from regulation, in each case, substantially in the form set
forth in the opinions delivered at Closing with any material
modifications thereto to be reasonably acceptable to the Owner
Participant.
"OPTIONAL IMPROVEMENT" with respect to the Facility Lease, shall have
the meaning specified in Section 8.2 of the Facility Lease.
"ORGANIC DOCUMENT" shall mean, with respect to any Person that is a
corporation, its certificate of incorporation, its by-laws and all
shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of capital stock; with
respect to any Person that is a limited partnership, its certificate of
limited partnership and partnership agreement; with respect to any
Person that is a limited liability company, its certificate of
formation and its limited liability company agreement, in each case, as
from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect from time to time; and with respect to
any Person that is a business trust, its certificate of business trust
and its trust agreement, in each case, as from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect
from time to time.
"OTHER BROAD RIVER ASSIGNMENT AGREEMENTS" shall mean each of the
assignment agreements executed and delivered pursuant to the Other
Broad River Participation Agreements.
"OTHER BROAD RIVER CALPINE GUARANTIES" shall mean the other Calpine
guaranty and payment agreements executed and delivered by Calpine
pursuant to the Other Broad River Participation Agreements.
26
"OTHER BROAD RIVER COLLATERAL TRUST INDENTURES" shall mean each of the
collateral trust indentures executed and delivered pursuant to the
Other Broad River Participation Agreements.
"OTHER BROAD RIVER FACILITY LEASES" shall mean the other Broad River
facility lease agreements, dated as of October 18, 2001, by and between
the Other Broad River Owner Lessors and the Facility Lessee, pursuant
to which the Other Broad River Owner Lessors will lease the Other South
Point Undivided Interests to the Facility Lessee.
"OTHER BROAD RIVER FACILITY SITE LEASES" shall mean the other facility
site leases, dated as of October 18, 2001, by and between the Other
Broad River Owner Lessors and the Facility Lessee pursuant to which the
Other Broad River Owner Lessors will sublease the Other Broad River
Ground Interests to the Facility Lessee.
"OTHER BROAD RIVER GROUND INTERESTS" shall mean the undivided leasehold
interests in the Facility Site not conveyed to the Owner Lessor under
the Facility Site Lease.
"OTHER BROAD RIVER INDENTURE TRUSTEES" shall mean each of the indenture
trustees relating to the Other Broad River Collateral Trust Indentures.
"OTHER BROAD RIVER LEASE TRANSACTIONS" shall mean the transactions
involving the assignment and transfer of the Other Broad River
Undivided Interests and the Other Broad River Ground Interests to the
Other Broad River Owner Lessors, and the lease by the Other Broad River
Owner Lessors of the Other Broad River Undivided Interests and the
Other Broad River Ground Interests to the Facility Lessee on
substantially the same terms and conditions as under, and dated the
same date as, the Overall Transaction.
"OTHER BROAD RIVER LESSOR MANAGERS" shall mean each of the lessor
managers acting on behalf of the Other Broad River Owner Lessors
pursuant to the Other Broad River Operative Documents.
"OTHER BROAD RIVER OWNER LESSORS " shall mean ▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇, ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇, LLC and Broad River OL-4, LLC.
"OTHER BROAD RIVER OWNER PARTICIPANTS" shall mean SBR OP-2, LLC, SBR
OP-3, LLC and SBR OP-4, LLC.
"OTHER BROAD RIVER OPERATIVE DOCUMENTS" shall mean the other "Operative
Documents" for each of the Other Broad River Lease Transactions.
"OTHER BROAD RIVER PARTICIPATION AGREEMENTS" shall mean a collective
reference to each of the other three separate participation agreements
entered into by the Facility Lessee, the applicable Other Broad River
Owner Lessor, the Other Broad River Lessor Manager, Other Broad River
Owner Participant, Other Broad River Indenture Trustee, Pass Through
Trustees and Calpine and designated Participation Agreement (BR-2),
Participation Agreement (BR-3) and Participation Agreement (BR-4), each
dated as of the Closing Date, pursuant to which, among other things,
the Facility Lessee has agreed to (a) assign and transfer to the
applicable Other Broad River Owner Lessors certain
27
undivided leasehold interests in the Facility and the Facility Site,
and (b) lease from the applicable Other Broad River Owner Lessors such
undivided leasehold interest in the Facility and the Facility Site
pursuant to the Other Broad River Facility Leases and the Other Broad
River Facility Site Leases, respectively.
"OTHER BROAD RIVER UNDIVIDED INTERESTS" shall mean the undivided
leasehold interest (or, upon or following the Post-FILOT Lease
Conversion Date, the fee interest) in the Facility not conveyed to the
Owner Lessor under the Assignment Agreement (or, in the case of the fee
interest, pursuant to the transactions contemplated by Article XIV of
the Participation Agreement and the Other Broad River Participation
Agreement).
"OTHER CALPINE GUARANTIES" shall mean collectively, the Other Broad
River Calpine Guaranties, the South Point Calpine Guaranties and the
RockGen Calpine Guaranties.
"OTHER FACILITY LEASES" shall mean collectively, the Other Broad River
Facility Leases, the South Point Facility Leases and the RockGen
Facility Leases.
"OTHER OWNER LESSORS" shall mean collectively, the Other Broad River
Owner Lessors, the South Point Owner Lessors and the RockGen Owner
Lessors.
"OVERALL TRANSACTION" shall mean all of the transactions contemplated
by the Operative Documents and the FILOT Lease (giving effect to its
assignment to the Owner Lessor pursuant to the Assignment Agreement).
"OVERDUE RATE" shall mean a rate per annum equal to the prime
commercial lending rate of the Chase Manhattan Bank (as publicly
announced to be effect from time to time, such rate to be adjusted
automatically, without notice, on the effective date of any change in
such rate) plus 1%.
"OWNER LESSOR" shall mean Broad River OL-1, LLC, a Delaware limited
liability company created for the benefit of the Owner Participant.
"OWNER LESSOR'S ACCOUNT" shall mean ▇▇▇▇▇ Fargo Bank Northwest,
National Association, Salt Lake City, Utah, ABA # ▇▇▇-▇▇▇-▇▇▇, Account:
Corporate Trust Services, Account # 051-▇▇▇▇▇▇▇, Credit to: Broad River
OL-1, LLC.
"OWNER LESSOR'S INTEREST" shall mean the Owner Lessor's right, title
and interest in and to the Undivided Interest and the Ground Interest.
"OWNER LESSOR'S LIEN(S)" individually or collectively as the context
may require, shall mean any Lien on the Lessor Estate, the Facility
Sites, or any part of any thereof or interest therein arising as a
result of (i) Taxes against or affecting the Owner Lessor, the Trust
Company or the Lessor Manager or any Affiliate thereof that are not
related to, or that are in violation of, any Operative Document or the
FILOT Lease (giving effect to its assignment to the Owner Lessor
pursuant to the Assignment Agreement) or the transactions contemplated
thereby, (ii) Claims against or any act or omission of the Owner
Lessor, the Trust Company or the Lessor Manager or Affiliate thereof
that is not related to, or that is in violation of, any Operative
Document or the FILOT Lease (giving
28
effect to its assignment to the Owner Lessor pursuant to the Assignment
Agreement) or the transactions contemplated thereby or that is in breach
of any covenant or agreement of the Owner Lessor, the Trust Company or the
Lessor Manager specified therein, (iii) Taxes imposed upon the Owner
Lessor, the Trust Company or the Lessor Manager or any Affiliate thereof
that are not indemnified against by the Facility Lessee pursuant to any
Operative Document or (iv) Claims against or affecting the Owner Lessor,
the Trust Company or the Lessor Manager or any Affiliate thereof arising
out of the voluntary or involuntary transfer by the Owner Lessor, the
Trust Company or the Lessor Manager of any portion of the interest of the
Owner Lessor in the Owner Lessor's Interest, other than pursuant to the
Operative Documents and the FILOT Lease.
"OWNER LESSOR'S Percentage" shall mean 25%.
"OWNER PARTICIPANT" shall mean SBR OP-1, LLC, a Delaware limited
liability company.
"OWNER PARTICIPANT'S ACCOUNT" shall mean the account maintained by the
Owner Participant at the bank specified with respect thereto on
Schedule 1-C to the Participation Agreement, or such other account of
the Owner Participant, as the Owner Participant may from time to time
specify in a notice to the Indenture Trustee pursuant to Section 9.5 of
the Collateral Trust Indenture.
"OWNER PARTICIPANT'S COMMITMENT" shall mean the Owner Participant's
investment in the Owner Lessor contemplated by Section 2.1(a) of the
Participation Agreement.
"OWNER PARTICIPANT'S LIEN(S)" individually or collectively as the
context may require, shall mean any Lien on the Lessor Estate, the
Facility Sites, or any part of any thereof or interest therein arising
as a result of (i) Claims against or any act or omission of the Owner
Participant that is not related to, or that is in violation of, any
Operative Document or the transactions contemplated thereby or that is
in breach of any covenant or agreement of the Owner Participant set
forth therein, (ii) Taxes against the Owner Participant that are not
indemnified against by the Facility Lessee pursuant to the Operative
Documents or (iii) Claims against or affecting the Owner Participant
arising out of the voluntary or involuntary transfer by the Owner
Participant of any portion of the interest of the Owner Participant in
the Member Interest, other than any transfer (x) pursuant to the
exercise of any of the Facility Lessee's (or any Affiliate thereof)
rights under the Operative Documents or (y) during the continuance of a
Lease Event of Default.
"OWNER PARTICIPANT'S NET ECONOMIC RETURN" shall mean the Owner
Participant's anticipated (i) after-tax yield, calculated according to
the multiple investment sinking fund method of analysis, and (ii)
periodic GAAP income and aggregate after-tax cash flow.
"OWNERSHIP AND OPERATION AGREEMENT" shall mean the Ownership and
Operation Agreement, dated as of October 18, 2001, among the Facility
Lessee, the Owner Lessor and the Other Broad River Owner Lessors.
29
"OWNERSHIP INTEREST" shall mean, with respect to the Facility Lessee (or
any assigns of the Facility Lessee), any and all equity interest in the
Facility Lessee (or such assignee of the Facility Lessee) howsoever
designated (whether capital stock, partnership interest, member interest
or any equivalent interest).
"PARTICIPATION AGREEMENT" shall mean the Participation Agreement, dated as
of October 18, 2001, among the Facility Lessee, the Guarantor, the Owner
Lessor, the Owner Participant, ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual capacity, except as expressly provided
therein, but solely as Lessor Manager, State Street Bank and Trust Company
of Connecticut, as Indenture Trustee, and State Street Bank and Trust
Company of Connecticut, as Pass Through Trustees.
"PASS THROUGH COMPANY" shall mean State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity, together
with its successors and permitted assigns.
"PASS THROUGH TRUST AGREEMENT" shall mean one or more, as the context may
require, of (i) the Pass Through Trust Agreement A, dated as of October
18, 2001, and (ii) the Pass Through Trust Agreement B, dated as of October
18, 2001, in each case between the Facility Lessee and a Pass Through
Trustee.
"PASS THROUGH TRUSTEES" shall mean State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, but
solely as Pass Through Trustees under each of the Pass Through Trust
Agreements, and each other Person that may from time to time be acting as
a Pass Through Trustee in accordance with the provisions of a Pass Through
Trust Agreement.
"PASS THROUGH TRUSTS" shall mean the pass through trusts created pursuant
to the Pass Through Trust Agreements.
"PAYING AGENT" shall have the meaning set forth in Section 2.6 of the
Collateral Trust Indenture.
"PERIODIC RENT" with respect to the Facility Lease, shall mean the sum of
Basic Rent and Renewal Rent, if any, as specified in Schedule 1 to the
Facility Lease.
"PERMIT" shall mean any action, approval, certificate, consent, waiver,
exemption, variance, franchise, order, permit, authorization, right or
license of or from, and any filing with a Governmental Entity.
"PERMITTED CLOSING DATE LIENS" shall mean Permitted Liens described in
clause (a), (b), (d), (f), (g), (i), (j), (k), (l), (m), (n) and (o) of
the definition thereof.
"PERMITTED ENCUMBRANCES" shall mean with respect to the Facility Site, all
matters shown as exceptions on Schedule B to each of the Title Policies as
in effect on the Closing Date.
30
"PERMITTED INVESTMENTS" shall mean investments in securities that are: (i)
direct obligations of the United States or any agency thereof; (ii)
obligations fully guaranteed by the United States or any agency thereof;
(iii) certificates of deposit or bankers acceptances issued by commercial
banks (or any of their affiliates) organized under the laws of the United
States or of any political subdivision thereof or under the laws of
Canada, Japan, Switzerland or any country that is a member of the European
Economic Community having a combined capital and surplus of at least $250
million and having long-term unsecured debt securities then rated "A" or
better by S&P or "A2" or better by Moody's (but at the time of investment
not more than $25,000,000 may be invested in such certificates of deposit
from any one bank); (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in
clauses (i) and (ii) above, entered into with any financial institution
meeting the qualifications specified in clause (iii) above; (v) open
market commercial paper of any corporation incorporated or doing business
under the laws of the United States or of any political subdivision
thereof having a rating of at least "A-1" from S&P and "P-1" from Moody's
(but at the time of investment not more than $25,000,000 may be invested
in such commercial paper from any one company); (vi) auction rate
securities or money market preferred stock having one of the two highest
ratings obtainable from either S&P or Moody's (or, if at any time neither
S&P nor ▇▇▇▇▇'▇ is rating such obligations, then from another nationally
recognized rating service acceptable to the Depositary); and (vii)
investments in money market funds or money market mutual funds sponsored
by any securities broker dealer of recognized national standing (or an
affiliate thereof), having an investment policy that requires
substantially all the invested assets of such fund to be invested in
investments described in any one or more of the foregoing clauses having a
rating of "A" or better by S&P or "A2" or better by Moody's.
"PERMITTED LIENS" shall mean (a) the rights and interests of the parties
as provided in the Operative Documents and the FILOT Lease, as well as the
rights of sublessees and/or assignees to the extent set forth in or
expressly permitted pursuant to the Facility Lease or any other Operative
Document, (b) as to the Facility Lessee, Owner Lessor's Liens, Owner
Participant's Liens and Indenture Trustee's Liens, (c) Liens for any tax,
assessment or other governmental charge, either secured by a bond
reasonably acceptable to the Indenture Trustee and the Pass Through
Trustees and, so long as no Lease Indenture Event of Default which is not
a Lease Event of Default exists, the Owner Lessor, or not yet due or being
contested in good faith and by appropriate proceedings, so long as (i)
such proceedings shall not reasonably be expected to give rise to criminal
liability or material civil liability on the part of the Owner Lessor, the
Owner Participant, the Lessor Manager, the Trust Company, the Indenture
Trustee, the Pass Through Trustees or any Certificateholders, and would
not otherwise reasonably be expected to have a Material Adverse Effect, or
(ii) adequate reserves consistent with GAAP requirements have been
established and are maintained, so as to assure such Persons that any
taxes, assessments or other charges determined to be due will be promptly
paid in full when such contest is determined, (d) materialmen's,
mechanics', workers', repairmen's, employees' or other like Liens arising
in the ordinary course of business or in connection with the maintenance
or repair of the Facility, for amounts not yet due or for amounts being
contested in good faith and by appropriate proceedings, so long as (i)
such proceedings shall not reasonably be expected to give rise to criminal
liability or material
31
civil liability on the part of the Owner Lessor, the Owner Participant,
the Lessor Manager, the Trust Company, the Indenture Trustee, the Pass
Through Trustees or any Certificateholders, and would not otherwise
reasonably be expected to have a Material Adverse Effect, and (ii)
adequate reserves consistent with GAAP requirements have been established
and are maintained, so as to ensure that any amounts determined to be due
will be promptly paid in full when such contest is determined, (e) Liens
arising out of judgments or awards, but only so long as an appeal or
proceeding for review is being prosecuted in good faith and so long as (i)
such proceedings shall not reasonably be expected to give rise to criminal
liability or material civil liability on the part of the Owner Lessor, the
Owner Participant, the Lessor Manager, the Trust Company, the Indenture
Trustee, the Pass Through Trustees or any Certificateholders, and would
not otherwise reasonably be expected to have a Material Adverse Effect,
and (ii) adequate reserves consistent with GAAP requirements have been
established and are maintained, so as to ensure that any amounts
determined to be due will be promptly paid in full when such contest is
determined, or are fully covered by insurance, (f) mineral rights the use
and enjoyment of which do not materially interfere with the use and
enjoyment of the Facility, (g) Permitted Encumbrances, (h) Liens, deposits
or pledges to secure statutory obligations or performance of bids,
tenders, contracts (other than for the repayment of borrowed money) or
leases, or for purposes of like general nature in the ordinary course of
its business, (i) existing Liens that have been disclosed to the
Transaction Parties prior to the Closing Date and which are reasonably
acceptable to the Transaction Parties, (j) Liens incident to the ordinary
course of business that are not incurred in connection with the obtaining
of any loan, advance or credit in respect of borrowed money permitted to
be incurred pursuant to the Operative Documents so long as such Liens (x)
do not in the aggregate materially impair the use of the property or
assets of the Facility Lessee or the value of such property or assets for
the purposes of such business and (y) shall not reasonably be expected to
give rise to criminal liability or unindemnified, material civil liability
on the part of the Owner Lessor, the Owner Participant, the Lessor
Manager, the Trust Company, the Indenture Trustee, the Pass Through
Trustees or any Certificateholders, and would not otherwise reasonably be
expected to have a Material Adverse Effect, (k) the interests of the Other
Broad River Owner Lessors and the Other Broad River Indenture Trustees in
the Facility, the Facility Site and the Ownership and Operation Agreement,
(l) the interests of the Facility Lessee, the Other Broad River Owner
Participants, the Other Broad River Owner Lessors, the Other Broad River
Lessor Managers, the Other Broad River Indenture Trustees, and Pass
Through Trustees under any of the Other Broad River Operative Documents,
(m) the Ownership and Operation Agreement, (n) the interest of the
co-owners of the Facility as tenants in common in the Facility and the
rights of such owners under the Ownership and Operation Agreement and (o)
the rights of the County with respect to the Facility and Facility Site.
"PERSON" shall mean any individual, corporation, cooperative, partnership,
joint venture, association, joint-stock company, limited liability
company, other entity, trust, unincorporated organization or government or
any agency or political subdivision thereof or any other entity.
"PLAN" shall mean any pension plan as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an
obligation to contribute of) the
32
Facility Lessee or a Subsidiary of the Facility Lessee or an ERISA
Affiliate, and each such plan for the five year period immediately
following the latest date on which Facility Lessee, or a Subsidiary of
Facility Lessee or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"POST-FILOT LEASE CONVERSION DATE" shall mean the date on which all of the
following events shall have occurred:
(a) the closing of the sale of an undivided fee interest in the Land
(to the extent of the Owner Lessor's Percentage) by the County to the
Facility Lessee upon exercise by the Owner Lessor of the Land Purchase
Option and the designation by the Owner Lessor to the County of the
Facility Lessee (or its designee) as the entity to which an undivided fee
interest in the Land (to such extent) is to be conveyed, pursuant to which
title to the Land (to such extent) vests in the Facility Lessee, and the
termination of the FILOT Lease pursuant to Section 10.02 thereof;
(b) the closing of the sale of an undivided fee interest in the
Facility by the County to the Owner Lessor upon exercise by the Owner
Lessor of the Facility Purchase Option, pursuant to which good and valid
fee title an undivided fee interest to the Facility (to the extent of the
Owner Lessor's Percentage) vests in the Owner Lessor;
(c) the commencement of the full force and effectiveness of the
Springing Facility Site Lease and the Springing Facility Site Sublease;
(d) except for the termination of the FILOT Lease and the Facility
Site Lease, no Operative Document shall cease to be in full force and
effect as a result of the transactions in clauses (a), (b) or (c) above;
(e) receipt by the Owner Lessor, the Owner Participant and (if the
Lien of the Collateral Trust Indenture has not been discharged) the
Indenture Trustee of the following (1) evidence of the obtaining of all
Governmental Approvals and third-party consents which are reasonably
necessary or advisable in connection with the transactions referred to in
clauses (a) through (d) above, (2) evidence satisfactory to the Indenture
Trustee (including without limitation, evidence that all filings and
recordings, if any, necessary under Applicable Law shall have been duly
made and all filing, recordation, transfer and other fees payable in
connection therewith shall have been paid) that the Lien of the Collateral
Trust Indenture on the Indenture Estate shall continue in full force and
effect and with the same priority following the consummation of such
transactions, and (3) appropriate endorsements, reasonably satisfactory to
such Persons, to required property title insurance policies to reflect the
new fee owners of the Land and the other portions of the Project.
(f) the receipt by the Owner Participant and, so long as the Lien
of the Collateral Trust Indenture has not been terminated or discharged,
the Indenture Trustee and the Pass Through Trustees, of opinions of
counsel with respect to the accomplishment of the foregoing matters and
other matters substantially similar to these covered by the opinions of
counsel to the Facility Lessee rendered on the Closing Date,
33
which opinions shall be satisfactory in form and substance to the Owner
Participant and, so long as the Lien of the Collateral Trust Indenture has
not been terminated or discharged, the Indenture Trustee and the Pass
Through Trustees.
"POWER MARKET CONSULTANT" shall mean Pace Energy Global Services, LLC.
"PREFERRED STOCK", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of
such corporation, over shares of Capital Stock of any other class of such
corporation.
"PRICING ASSUMPTIONS" shall mean the "Pricing Assumptions" (attached as
Schedule 2 to the Participation Agreement) for the Facility Lease,.
"PRIME RATE" shall mean the rate of interest publicly announced by
Citibank, N.A. from time to time as its prime rate.
"PROCEEDS" shall mean the proceeds from the sale of the Certificates by
the Pass Through Trust to the Certificateholders on the Closing Date.
"PROJECT" shall have the meaning set forth in the FILOT Lease.
"PROPORTIONAL RENTAL AMOUNT" shall have the meaning set forth in Section
3.2(c) of the Facility Lease.
"PROPOSED TAX LAW CHANGE" shall mean a Tax Law Change (a) that has been
reported out of the Senate Finance Committee of the House Ways and Means
Committee, (b) that has been included in the issuance or amendment of a
proposed Treasury Regulation, (c) that is part of a ▇▇▇▇ that has been
introduced into the House of Representatives or the Senate and which has
been publicly endorsed by the Executive Branch or the Department of
Treasury, or (d) with respect to which a notice of a specific proposed
change in administrative guidance has been issued by the Internal Revenue
Service or the Department of Treasury and which has been published in the
Federal Register.
"PRUDENT INDUSTRY PRACTICE" shall mean, at a particular time, (a) any of
the practices, methods and acts engaged in or approved by a significant
portion of the competitive electric generating industry at such time, or
(b) with respect to any matter to which clause (a) does not apply, any of
the practices, methods and acts which, in the exercise of reasonable
judgment at the time the decision was made, could have been expected to
accomplish the desired result at a reasonable cost consistent with good
business practices, reliability, safety and expedition. "Prudent Industry
Practice" is not intended to be limited to the optimum practice, method or
act to the exclusion of all others, but rather to be a spectrum of
possible practices, methods or acts having due regard for, among other
things, manufacturers' warranties and the requirements of any Governmental
Entity of competent jurisdiction.
"PUHCA" shall mean the Public Utility Holding Company Act of 1935, as
amended.
34
"PURCHASE OPTION" shall mean, collectively, the Facility Purchase Option
and the Land Purchase Option.
"QUALIFYING CASH BIDS" with respect to the Facility Lease, shall have the
meaning specified in Section 13.2 of the Facility Lease.
"RATING AGENCIES" shall mean S&P and ▇▇▇▇▇'▇.
"REASONABLE BASIS" for a position shall exist if tax counsel may properly
advise reporting such position on a tax return in accordance with Formal
Opinion 85-352 issued by the Standing Committee on Ethics and Professional
Responsibility of the American Bar Association (or any successor to such
opinion).
"REBUILDING CLOSING DATE" with respect to the Facility Lease, shall have
the meaning specified in Section 10.3(e) of the Facility Lease.
"RECEIVING PARTY" shall have the meaning set forth in Section 14.21 of the
Participation Agreement.
"REDEMPTION DATE" shall mean, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to the
Collateral Trust Indenture or the respective Note, which date shall be a
Termination Date.
"REFINANCING INDEBTEDNESS" means Indebtedness that refunds, refinances,
replaces, renews, repays or extends (including pursuant to any defeasance
or discharge mechanism) (collectively, "refinances," and "refinanced"
shall have a correlative meaning) any Indebtedness of the Guarantor or a
Restricted Subsidiary existing on the date of the Guaranty or Incurred in
compliance with the Indenture, dated as of August 10, 2000, between the
Guarantor and Wilmington Trust Company, as Trustee (including Indebtedness
of the Guarantor that refinances Indebtedness of any Restricted Subsidiary
and Indebtedness of any Restricted Subsidiary that refinances Indebtedness
of another Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) if the Indebtedness
being refinanced is contractually subordinated in right of payment to the
Obligations, the Refinancing Indebtedness shall be contractually
subordinated in right of payment to such Obligations to at least the same
extent as the Indebtedness being refinanced, (ii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being refinanced or (b) after the Stated Maturity of the
Obligations, (iii) the Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being refinanced and (iv) such
Refinancing Indebtedness is in an aggregate principal amount (or if issued
with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original
issue discount, the aggregate accreted value) then outstanding (plus fees
and expenses, including any premium, swap breakage and defeasance costs)
under the Indebtedness being refinanced; and provided, further, that
Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary of the Guarantor that refinances Indebtedness of the Guarantor
or (y) Indebtedness of the
35
Guarantor or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
"REGISTRAR" shall have the meaning set forth in Section 2.8 of the
Collateral Trust Indenture.
"REGULATORY EVENT OF LOSS" shall have meaning specified in clause (iv) of
the definition of "Event of Loss".
"RELATED PARTY" shall mean, with respect to any Person or its successors
and assigns, an Affiliate of such Person or its successors and assigns and
any director, officer, servant, employee or agent of that Person or any
such Affiliate or their respective successors and assigns; provided that
none of the Trust Company, the Lessor Manager or the Owner Lessor shall be
treated as Related Parties to each other and none of the Trust Company,
the Owner Lessor or the Lessor Manager shall be treated as a Related Party
to any Owner Participant Equity Investor except that, for purposes of
Section 9 of the Participation Agreement, the Owner Lessor will be treated
as a Related Party to an Owner Participant to the extent that the Owner
Lessor acts on the express direction or with the express consent of an
Owner Participant.
"RELEASE" shall mean any release, pumping, pouring, emptying, injecting,
escaping, leaching, migrating, dumping, seepage, spill, flow, leak,
discharge, disposal or emission.
"RENEWAL RENT" with respect to the Facility Lease, shall mean the rent
payable during any Renewal Lease Term, in each case as determined in
accordance with Section 15.4 of the Facility Lease.
"RENEWAL TERM" with respect to the Springing Facility Site Sublease, shall
have the meaning set forth in Section 2.1(b).
"RENEWAL LEASE TERM" with respect to the Facility Lease, shall mean the
First Renewal Lease Term, the Second Renewal Term, any FMV Renewal Lease
Term or the Lessor Put Renewal Term.
"RENEWAL SITE LEASE TERM(S)" individually or collectively as the context
shall require, with respect to the Springing Facility Site Lease, shall
have the meaning set forth in Section 2.2(b) of the Springing Facility
Site Lease.
"RENT" shall mean Basic Rent, Renewal Rent and Supplemental Rent.
"RENT PAYMENT DATE" with respect to the Facility Lease, shall mean,
January 18, 2002, each May 30 and November 30 occurring thereafter
(through and including May 30, 2031) and October 18, 2031.
"RENT PAYMENT PERIOD" with respect to the Facility Lease, shall mean (i)
in the case of the first Rent Payment Period the period commencing on the
Closing Date and ending on January 18, 2002 (ii) in the case of the second
Rent Payment Period, the period commencing on January 19, 2002 and ending
on May 30, 2002 and (iii) in all cases
36
thereafter (except for the last Rent Payment Period which period shall
commence on May 31, 2031 and end on, and include, October 18, 2031, each
six-month period commencing on each Rent Payment Date through and
including the following May 30 or November 30 as the case may be.
"REPLACEMENT COMPONENT" shall have the meaning specified in Section 7.2 of
the Facility Lease.
"REQUIRED IMPROVEMENT" with respect to the Facility Lease, shall have the
meaning specified in Section 8.1 of the Facility Lease.
"REQUISITION" shall have the meaning specified in clause (iii) of the
definition of "Event of Loss".
"RESPONSIBLE OFFICER" shall mean, with respect to any Person, (i) its
Chairman of the Board, its President, any Senior Vice President, the Chief
Financial Officer, any Vice President, the Treasurer or any other
management employee (a) that has the power to take the action in question
and has been authorized, directly or indirectly, by the Board of Directors
or equivalent body of such Person, (b) working under the direct
supervision of such Chairman of the Board, President, Senior Vice
President, Chief Financial Officer, Vice President or Treasurer and (c)
whose responsibilities include the administration of the Overall
Transaction and (ii) with respect to the Pass Through Trustees and the
Indenture Trustee an officer in their respective corporate trust
departments.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Guarantor that is not
designated an Unrestricted Subsidiary by the Board of Directors.
"REVENUES" shall have the meaning specified in clause (2) of the Granting
Clause of the Collateral Trust Indenture.
"ROCKGEN" shall mean RockGen Energy LLC.
"ROCKGEN BILLS OF SALE" shall mean each of the bills of sale executed and
delivered pursuant to the RockGen Participation Agreements.
"ROCKGEN CALPINE GUARANTIES" shall mean the Calpine guaranty and payment
agreements executed and delivered by Calpine pursuant to the RockGen
Participation Agreements.
"ROCKGEN COLLATERAL TRUST INDENTURES" shall mean each of the collateral
trust indentures executed and delivered pursuant to the RockGen
Participation Agreements.
"ROCKGEN FACILITY LEASES" shall mean a collective reference to each of the
four facility lease agreements, dated as of October 18, 2001, by and
between the applicable RockGen Owner Lessor and the RockGen Facility
Lessee, pursuant to which the RockGen Facility Lessee will lease the
applicable RockGen Ground Interests to applicable RockGen Owner Lessor.
37
"ROCKGEN FACILITY LESSEE" shall mean RockGen Energy LLC.
"ROCKGEN FACILITY SITE" shall have the meaning set forth in the recitals
to the RockGen Facility Site Leases.
"ROCKGEN FACILITY SITE LEASES" shall mean a collective reference to each
of the four facility site leases, dated as of October 18, 2001, by and
between the applicable RockGen Owner Lessor and the RockGen Facility
Lessee, pursuant to which RockGen Facility Lessee will lease the
applicable RockGen Ground Interest to the applicable RockGen Owner Lessor.
"ROCKGEN GROUND INTERESTS" shall mean the undivided leasehold interests in
the RockGen Facility Site conveyed to the RockGen Owner Lessors under the
RockGen Facility Site Leases.
"ROCKGEN INDENTURE TRUSTEES" shall mean each of the indenture trustees
relating to the RockGen Collateral Trust Indentures.
"ROCKGEN LESSOR MANAGERS" shall mean each of the lessor managers acting on
behalf of the RockGen Owner Lessors pursuant to the RockGen Operative
Documents.
"ROCKGEN OWNER LESSORS" shall mean RockGen OL-1, LLC RockGen OL-2, LLC,
RockGen OL-3, LLC and RockGen OL-4, LLC.
"ROCKGEN OWNER PARTICIPANTS" shall mean SBR OP-1, LLC, SBR OP-2, LLC, SBR
OP-3, LLC and SBR OP-4, LLC.
"ROCKGEN LEASE TRANSACTIONS" shall mean the transactions involving the
transfer of the RockGen Undivided Interests and the lease of the RockGen
Ground Interests to the RockGen Owner Lessors, and the simultaneous lease
of the RockGen Undivided Interests to the RockGen Facility Lessee and the
simultaneous sublease of the RockGen Ground Interest to the RockGen
Facility Lessee on substantially the same terms and conditions as under,
and dated the same date as, the RockGen Overall Transaction.
"ROCKGEN OPERATIVE DOCUMENTS" shall mean the other "Operative Documents"
for each of the RockGen Lease Transactions.
"ROCKGEN OVERALL TRANSACTION" shall mean all of the transactions
contemplated by the RockGen Operative Documents.
"ROCKGEN PARTICIPATION AGREEMENTS" shall mean a collective reference to
each of the other three separate participation agreements entered into by
the RockGen Facility Lessee, the applicable RockGen Owner Lessor, the
applicable RockGen Lessor Manager, the applicable RockGen Owner
Participant, the applicable RockGen Indenture Trustee, the Pass Through
Trustees and Calpine and designated Participation Agreement (RG-1),
Participation Agreement (RG-2), Participation Agreement (RG-3) and
Participation Agreement (RG-4), each dated as of the Closing Date,
pursuant to which, among other things, the RockGen Facility Lessee has
agreed to (a) sell to the applicable RockGen
38
Owner Lessors certain undivided interests in the RockGen Facility, and (b)
lease from the applicable RockGen Owner Lessors such undivided interest in
the RockGen Facility pursuant to the RockGen Facility Leases.
"ROCKGEN UNDIVIDED INTERESTS" shall mean the undivided ownership interests
in the RockGen Facility conveyed to the RockGen Owner Lessors under the
RockGen Bills of Sale.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to property
now owned or hereafter acquired whereby the Guarantor or a Subsidiary
transfers such property to a Person and leases it back from such Person,
other than leases for a term of not more than 36 months or between the
Guarantor and a Wholly Owned Subsidiary or between Wholly Owned
Subsidiaries.
"SCHEDULED CLOSING DATE" shall mean October 18, 2001.
"SEC" shall mean the Securities and Exchange Commission.
"SECOND RENEWAL LEASE TERM" with respect to the Facility Lease, shall have
the meaning specified in Section 15.1(b) of the Facility Lease.
"SECOND WINTERGREEN RENEWAL LEASE OPTION" with respect to the Sringing
Facility Site Lease, shall have the meaning set forth in Section
2.2(a)(ii) of the Springing Facility Site Lease.
"SECTION 467 INTEREST" with respect to the Facility Lease, shall have the
meaning set forth in Section 3.2(d) of the Facility Lease.
"SECTION 467 LOAN" with respect to the Facility Lease, shall have the
meaning specified in Section 3.2(d) of the Facility Lease.
"SECURED INDEBTEDNESS" shall have the meaning specified in Section 1(b) of
the Collateral Trust Indenture.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SEVERABLE IMPROVEMENT" shall mean any Improvement that is readily
removable without causing material damage to the Facility.
"SIGNIFICANT LEASE DEFAULT" shall mean, with respect to the Facility
Lease, (i) an event that is, or solely with the passage of time or the
giving of notice (or both) would become, a "Lease Event of Default" under
clauses (a), (b), (c), (g), (h) or (k) of Section 16 of the Facility
Lease, (ii) the failure of the Facility Lessee to comply in any material
respect with its obligations under Section 6 of the Facility Lease and
(iii) the occurrence and continuation of a Significant Lease Default under
any Other Broad River Facility Lease.
39
"SIGNIFICANT SUBSIDIARY" means any Subsidiary (other than an Unrestricted
Subsidiary) that would be a "Significant Subsidiary" of the Guarantor
within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.
"SITE LEASE EVENT OF DEFAULT" with respect to the Springing Facility Site
Lease, shall have the meaning set forth in Section 14.1 of the Springing
Facility Site Lease.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
"SOUTH POINT ASSIGNMENT AGREEMENTS" shall mean each of the assignment
agreements executed and delivered pursuant to the South Point
Participation Agreements.
"SOUTH POINT CALPINE GUARANTIES" shall mean the Calpine guaranty and
payment agreements executed and delivered by Calpine pursuant to the South
Point Participation Agreements.
"SOUTH POINT COLLATERAL TRUST INDENTURES" shall mean each of the
collateral trust indentures executed and delivered pursuant to the South
Point Participation Agreements.
"SOUTH POINT FACILITY LEASES" shall mean a collective reference to each of
the four facility lease agreements, dated as of October 18, 2001, by and
between the applicable South Point Owner Lessor and the South Point
Facility Lessee, pursuant to which the applicable South Point Owner Lessor
will lease the applicable South Point Ground Interests to South Point
Facility Lessee.
"SOUTH POINT FACILITY LESSEE" shall mean South Point Energy LLC.
"SOUTH POINT FACILITY SITE" shall have the meaning set forth in the
recitals to the South Point Facility Site Leases.
"SOUTH POINT FACILITY SITE LEASES" shall mean a collective reference to
each of the four facility site leases, dated as of October 18, 2001, by
and between the applicable South Point Owner Lessor and the South Point
Facility Lessee, pursuant to which the applicable South Point Owner Lessor
will lease the applicable South Point Ground Interest to the South Point
Facility Lessee.
"SOUTH POINT GROUND INTERESTS" shall mean the undivided leasehold
interests in the South Point Facility Site conveyed to the South Point
Owner Lessors under the South Point Assignment Agreements.
"SOUTH POINT INDENTURE TRUSTEES" shall mean each of the indenture trustees
relating to the South Point Collateral Trust Indentures.
"SOUTH POINT LEASE TRANSACTIONS" shall mean the transactions involving the
assignment and transfer of the South Point Undivided Interests and the
South Point Ground Interests to the South Point Owner Lessors, and the
simultaneous lease of the South Point Undivided Interests and South Point
Ground Interests to the South Point Facility Lessee
40
on substantially the same terms and conditions as under, and dated the
same date as, the South Point Overall Transaction.
"SOUTH POINT LESSOR MANAGERS" shall mean each of the lessor managers
acting on behalf of the South Point Owner Lessors pursuant to the South
Point Operative Documents.
"SOUTH POINT OPERATIVE DOCUMENTS" shall mean the other "Operative
Documents" for each of the South Point Lease Transactions.
"SOUTH POINT OWNER LESSORS" shall mean ▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇, ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇-▇, ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ OL-3, LLC and South Point OL-4, LLC.
"SOUTH POINT OWNER PARTICIPANTS" shall mean SBR OP-1, LLC, SBR OP-2, LLC,
SBR OP-3, LLC and SBR OP-4, LLC.
"SOUTH POINT OVERALL TRANSACTION" shall mean all of the transactions
contemplated by the Broad River Operative Documents.
"SOUTH POINT PARTICIPATION AGREEMENTS" shall mean a collective reference
to each of the four separate participation agreements entered into by the
South Point Facility Lessee, the applicable South Point Owner Lessor, the
applicable South Point Lessor Manager, the applicable South Point Owner
Participant, the applicable South Point Indenture Trustee, the Pass
Through Trustees and Calpine and designated Participation Agreement
(SP-1), Participation Agreement (SP-2), Participation Agreement (SP-3) and
Participation Agreement (SP-4), each dated as of the Closing Date,
pursuant to which, among other things, the South Point Facility Lessee has
agreed to (a) assign and transfer to the applicable Broad River Owner
Lessors certain undivided leasehold interests in the South Point Facility
and the South Point Facility Site, and (b) lease from the applicable South
Point Owner Lessors such undivided leasehold interest in the South Point
Facility and the South Point Facility Site pursuant to the South Point
Facility Leases and the South Point Facility Site Leases, respectively.
"SOUTH POINT UNDIVIDED INTERESTS" shall mean the undivided leasehold
interests (or upon the Post-FILOT Lease Conversion Date, undivided fee
interests) in the Broad River Facility conveyed to the South Point Owner
Lessors under the South Point Assignment Agreement.
"SPECIAL LESSEE TRANSFER" shall have the meaning specified in Section 13.2
of the Participation Agreement.
"SPECIAL LESSEE TRANSFER AMOUNT" shall mean for any date, the amount
determined as follows (but without duplication):
(a) (i) if the determination shall be a Termination Date, the Termination
Value under the Facility Lease on such date, or (ii) if such date shall
not be a Termination Date, the Termination Value under the Facility Lease
on the immediately succeeding Termination Date; plus
41
(b) (i) any unpaid Basic Rent or Renewal Rent due before the date of
determination plus (ii) if the determination date is a Rent Payment Date,
the Basic Rent or Renewal Rent due on that date (to the extent payable in
arrears); minus
(c) the sum of all outstanding principal, premium, if any, and accrued
interest on the Lessor Notes, if any, on such determination date (in each
case, if such determination date is a Rent Payment Date, before taking
into account any Basic Rent or Renewal Rent due on such determination
date).
"SPECIAL LESSEE TRANSFER EVENT" shall mean the occurrence of (i) a
Regulatory Event of Loss, (ii) a Burdensome Buyout Event under Section
13.1 of the Facility Lease, or (iii) if the Owner Lessor has agreed to
sell and the Facility Lessee has agreed to buy the Undivided Interest, a
Burdensome Buyout Event under Section 13.2 of the Facility Lease.
"SPRINGING FACILITY SITE LEASE" shall mean the Springing Facility Site
Lease (BR-1) dated as of October 18, 2001 by and between the Facility
Lessee and Owner Lessor pursuant to which the Facility Lessee shall lease
the Ground Interest to the Owner Lessor.
"SPRINGING FACILITY SITE SUBLEASE" shall mean the Springing Facility Site
Sublease (BR-1) dated as of October 18, 2001, by and between Owner Lessor
and Facility Lessee pursuant to which the Owner Lessor shall sublease the
Ground Interest back to the Facility Lessee.
"SPRINGING OPERATIVE DOCUMENTS" shall mean, the Springing Facility Site
Lease and the Springing Facility Site Sublease.
"STATED MATURITY" means, with respect to any security, the date specified
in such security as the fixed date on which the principal of such security
is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of
such security at the option of the holder thereof upon the happening of
any contingency).
"SUBSIDIARY" shall mean, with respect to any Person (the "parent"), any
corporation or other entity of which sufficient securities or other
ownership interests having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions are
at the time directly or indirectly owned by such parent.
"SUPPLEMENTAL FINANCING" shall have the meaning specified in Section 11.1
of the Participation Agreement.
"SUPPLEMENTAL RENT" shall mean any and all amounts, liabilities and
obligations (other than Basic Rent and Renewal Rent) which the Facility
Lessee assumes or agrees to pay under the Operative Documents (whether or
not identified as "Supplemental Rent") to the Owner Lessor or any other
Person, including, without limitation, Termination Value.
"Survey" shall mean the ALTA/ACSM As-Built Land Title Survey of
the Facility Site, to be dated July 21, 2001 and revised October 18, 2001,
which inter alia, will show the location of the Facility Site.
42
"TAX" or "TAXES" shall mean all fees (including license, documentation and
registration fees), taxes (including, without limitation, income taxes,
receipts, franchise, rental, turn over sales taxes, use taxes, stamp
taxes, value-added taxes, excise taxes, ad valorem taxes and property
taxes (personal and real, tangible and intangible)), licenses, exports,
duties, recording charges, levies, assessments, withholdings, fees,
assessments and other charges and impositions of any nature, plus all
related interest, penalties, fines and additions to tax, now or hereafter
imposed by any federal, state, local or foreign government or other taxing
authority.
"TAX ADVANCE" shall have the meaning specified in Section 9.2(g)(iii)(5)
of the Participation Agreement.
"TAX ASSUMPTIONS" shall mean the items described in Section 1 of the Tax
Indemnity Agreement.
"TAX BENEFIT" shall have the meaning set forth in Section 9.2(e) of the
Participation Agreement.
"TAX CLAIM" shall have the meaning set forth in Section 9.2(g)(i) of the
Participation Agreement.
"TAX EVENT" shall mean any event or transaction that will be a taxable
transaction to the holders of the Lessor Notes (or any Certificateholder)
or result in an adverse change in the tax characterization of the Pass
Through Trust.
"TAX INDEMNITEE" shall have the meaning set forth in Section 9.2(a) of the
Participation Agreement.
"TAX INDEMNITY AGREEMENT" shall mean the Tax Indemnity Agreement (BR-1),
dated as of the Closing Date, between the Facility Lessee and the Owner
Participant.
"TAX LAW CHANGE" shall have the meaning specified in Section 12(a) of the
Participation Agreement.
"TAX REPRESENTATION" shall mean each of the items described in Section 4
of the Tax Indemnity Agreement.
"TAXES AND ASSESSMENTS" with respect to the Springing Facility Site Lease,
shall have, collectively, the meaning set forth in Section 18.1 of the
Springing Facility Site Lease.
"TERM" with respect to the Facility Site Lease, shall have the meaning set
forth in Section 2.1(a) of the Facility Site Lease.
"TERMINATION DATE" with respect to the Facility Lease, shall mean each of
the monthly dates during the Facility Lease Term identified as a
"Termination Date" on Schedule 2 of the Facility Lease.
43
"TERMINATION PAYMENT DATE" with respect to the Facility Lease, shall have
the meaning specified in Section 10.2(a) of the Facility Lease.
"TERMINATION VALUE" with respect to the Facility Lease and each
Termination Date, shall mean the amount specified on Schedule 2 to the
Facility Lease as the corresponding "Termination Value".
"THIRD PARTY CONSENTS" shall mean each of the following consents, the form
of which is attached hereto as Exhibit O: (a) Consent and Agreement from
Carolina Power and Light Company ("CP&L") with respect to the Power and
Purchase Agreement, dated as of December 31, 1998 (as amended), between
CP&L and the Facility Lessee: (b) Consent and Agreement from CP&L with
respect to the Power Purchase Agreement, dated as of July 7, 2000 (as
amended), between CP&L and the Facility Lessee; and (c) Consent and
Agreement from Duke Electric Transmission, a division of Duke Energy
Corporation ("Duke") with respect to the Interconnection Agreement, dated
as of February 5, 2000 (as amended), between Duke and the Facility Lessee.
"TIA" shall mean the Trust Indenture Act of 1939.
"TITLE COMPANY" shall mean Lawyers Title Insurance Corporation.
"TITLE POLICY" shall mean, the title insurance policy (#FT027141.01214)
dated as of October 18, 2001.
"TRANSACTION COSTS" shall mean the following costs, to the extent
substantiated or otherwise supported in reasonable detail:
(i) the reasonable costs of reproducing and printing the Operative
Documents and the FILOT Lease (giving effect to its assignment to the
Owner Lessor pursuant to the Assignment Agreement) and all costs and fees,
including but not limited to filing and recording fees and recording,
transfer, mortgage, intangible and similar taxes in connection with the
execution, delivery, filing and recording of the Facility Lease, the
Facility Site Lease, and any other Operative Document and any other
document required to be filed or recorded pursuant to the provisions
hereof or of any other Operative Document and the FILOT Lease (giving
effect to its assignment to the Owner Lessor pursuant to the Assignment
Agreement) and any Uniform Commercial Code filing fees in respect of the
perfection of any security interests created by any of the Operative
Documents and the FILOT Lease (giving effect to its assignment to the
Owner Lessor pursuant to the Assignment Agreement) or as otherwise
reasonably required by the Owner Lessor or the Indenture Trustee and
surveyor fees;
(ii) the reasonable fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
to the Owner Participant and the Owner Lessor for their services rendered
in connection with the negotiation, execution and delivery of the
Participation Agreement and the other Operative Documents;
(iii) the reasonable fees and expenses of ▇▇▇▇▇▇ Law Firm, P.A., South
Carolina, counsel to the Facility Leasee;
44
(iv) the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP,
counsel to the Facility Lessee and the Guarantor for their services
rendered in connection with the negotiation, execution and delivery of the
Participation Agreement and other Operative Documents;
(v) the reasonable fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇ & Tremaine LLP,
special regulatory counsel to the Facility Lessee;
(vi) the reasonable fees and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
and ▇▇▇▇ LLP, counsel to the Underwriter, for their services rendered in
connection with the negotiation, execution and delivery of the
Participation Agreement and the other Operative Documents;
(vii) the reasonable fees and expenses for services rendered in
connection with the recording of the Memorandum of Lease, the Memorandum
of Facility Site Lease and the other applicable Operative Documents and
the FILOT Lease;
(viii) the reasonable fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP counsel for
the Indenture Trustee and the Lease Indenture Company and the Pass Through
Company and the Pass Through Trustees, for their services rendered in
connection with the negotiation, execution and delivery of the
Participation Agreement and the other Operative Documents;
(ix) the reasonable fees, expenses and disbursements of the Indenture
Trustee and Pass Through Trustees in connection with the execution and
delivery of the Participation Agreement and the other Operative Documents
to which either one is or will be a party;
(x) the fees and expenses of the Engineering Consultant, for its
services rendered in connection with delivering the Engineering Report
required by Section 4.17 of the Participation Agreement;
(xi) the fees and expenses of the other consultants listed in Section
4.17 of the Participation Agreement, for their respective services
rendered in connection with delivering the reports required by such
Section 4.17;
(xii) the fees and expenses of the Appraiser, for its services rendered
in connection with delivering the Closing Appraisal required by Section
4.15 of the Participation Agreement;
(xiii) the fees and expenses of the Environmental Consultant retained by
the Owner Participant;
(xiv) the debt and equity arrangement fees set forth in the letter
agreement dated July 24, 2001 between CSFB and Calpine, and its reasonable
out-of-pocket costs and expenses payable to the Underwriter;
45
(xv) the reasonable underwriting fees, legal fees, expenses and
disbursement of the Initial Purchasers and any discounts or commissions in
connection with the sale of the Certificates;
(xvi) all reasonable costs and expenses incurred pursuant to the
syndication and/or sale of the debt and equity;
(xvii) the fees and expenses of the Rating Agencies in connection with
the rating of the Certificates;
(xviii) the out-of-pocket expenses of the Owner Participant, Indenture
Trustee and the Pass Through Trustees incurred in connection with the
Overall Transaction including cost of the title insurance and fees and
expenses, if any, related to delivery of any non-consolidation opinions;
(xix) the fees and expenses set forth in the letter agreement dated
August 1, 2001 between Newcourt Capital Securities, Inc. and Calpine.
Notwithstanding the foregoing, Transaction Costs shall not include
internal costs and expenses such as salaries and overhead of whatsoever
kind or nature nor costs incurred by the parties to the Participation
Agreement pursuant to arrangements with third parties for services (other
than those expressly referred to above), such as computer time procurement
(other than out-of-pocket expenses of the Owner Participant), financial
analysis and consulting, advisory services, and costs of a similar nature.
"TRANSACTION PARTY" shall mean, individually or collectively, as the
context shall require, all or any of the parties to the Operative
Documents (including the Lease Indenture Company and the Pass Through
Company).
"TRANSACTIONS" shall mean, collectively, each of the transactions
contemplated under the Participation Agreement and the other Operative
Documents (including the assignment of the FILOT Lease pursuant to the
Assignment Agreement).
"TRANSFEREE" shall mean a transferee of the Owner Participant permitted by
Section 7.1 of the Participation Agreement.
"TRANSFEREE GUARANTOR" shall have the meaning set forth in Section
7.1(a)(iii) of the Participation Agreement.
"TREASURY REGULATIONS" shall mean regulations, including temporary
regulations, promulgated under the Code.
"TRI-PARTY AGREEMENT" shall mean the Tri-Party Agreement, Consent,
Acknowledgement and Notice dated as of October 1, 2001 by and among the
County, the Facility Lessee, the Owner Lessor and the Other Broad River
Owner Lessors.
"TRUST COMPANY" shall mean ▇▇▇▇▇ Fargo Bank Northwest, National
Association.
46
"UNDERWRITER" shall mean CSFB.
"UNDIVIDED INTEREST" shall mean the Owner Lessor's 25% undivided leasehold
interest (or, upon and following the Post-FILOT Lease Conversion Date, the
Owner Lessor's 25% undivided fee interest) in the Facility.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any, by
which the value of the accumulated plan benefits under the Plan determined
on a plan termination basis in accordance with actuarial assumptions at
such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions).
"UNIFORM COMMERCIAL CODE" or "UCC" shall mean the Uniform Commercial Code
as in effect in the applicable jurisdiction.
"UNITED STATES PERSON" shall have the meaning specified in Section
7701(a)(30) of the Code or any successor provision thereto.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board
of Directors in the manner provided by the Indenture, dated as of August
10, 2000, between the Guarantor and Wilmington Trust Company, as Trustee
and (ii) any Subsidiary of an Unrestricted Subsidiary.
"VERIFIER" shall have the meaning specified in Section 3.4(c) of the
Facility Lease.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary (other than an Unrestricted
Subsidiary) all the Capital Stock of which (other than directors'
qualifying shares) is owned by the Guarantor or another Wholly Owned
Subsidiary.
47