EXHIBIT 10.2.5
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of March 8, 2002 (herein called this "Amendment"), is entered into by
and among CALPINE CORPORATION, a Delaware corporation (herein called the
"Company"), the various financial institutions listed on the signature page
hereof (the "Lenders") and THE BANK OF NOVA SCOTIA, as administrative agent for
the Lenders (herein, in such capacity, called the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Agent have heretofore entered
into a certain Second Amended and Restated Credit Agreement, dated as of May
23, 2000, as amended by that certain First Amendment and Waiver to Second
Amended and Restated Credit Agreement, dated as of April 19, 2001 (herein
called the "Credit Agreement"); and
WHEREAS, the Company, the Lenders and the Agent now desire to amend the
Credit Agreement in certain respects, as hereinafter provided,
WHEREAS, the Company has requested that the Lenders waive certain
provisions of the Loan Documents, and subject to the terms and provisions
hereinafter set forth, the Lenders have agreed to do so;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Company, the Lenders and the Agent hereby agree as
follows:
SECTION 1. The Credit Agreement is hereby amended as follows:
(a) There shall be added to Section 1.1 of the Credit Agreement in
appropriate alphabetical sequence the following new definitions:
"2002 Credit Agreement" means that certain Credit Agreement dated as
of March 8, 2002 among, inter alia, the Borrower and Scotiabank and
Citicorp, as joint administrative agents, as the same may be amended from
time to time.
"Calpine Holdings" means Calpine CCFC Holdings, Inc., a Wholly Owned
Subsidiary of the Borrower.
"Canadian Gas Reserves" means the gas reserves of the Borrower's
Canadian Subsidiaries.
"CCEC" means Calpine Canada Energy Ltd., a Nova Scotia limited
liability company.
"CCEF" means Calpine Canada Energy Finance ULC, a Nova Scotia
unlimited liability company, and an indirect Wholly Owned Subsidiary of
QCH.
"CCFCI" means Calpine Construction Finance Company, LP a Delaware
limited partnership and an indirect, Wholly Owned Subsidiary of the
Borrower.
"CNGC" means Calpine Natural Gas Company LP, a Delaware limited
partnership, the 99% limited partner of which is CNGH and the 1% general
partner of which is CNGGP.
"CNGGP" means Calpine Natural Gas GP, Inc., a Delaware corporation
and a direct, Wholly Owned Subsidiary of the Borrower.
"CNGH" means Calpine Natural Gas Holdings, Inc., a Delaware
corporation and a direct, Wholly Owned Subsidiary of the Borrower.
"Dedicated Assets" means, collectively, the Domestic Gas Reserves,
the Canadian Gas Reserves, all property owned by Calpine Holdings and any
of is Subsidiaries, all property owned by CCEC and any of its Subsidiaries
(other than Calpine Canada Power Holdings Ltd. and its Subsidiaries), the
final 25% of the Borrower's indirect equity ownership interest in the
holding company which owns the ▇▇▇▇▇▇▇ Energy Centre, the Island Energy
Centre and the Calgary Energy Centre, the property subject to the Pledge
Agreements, the Deeds of Trust, the Assignment Agreement and all other
property and interests pledged as collateral security for the Obligations.
The Dedicated Assets shall be ratably available to secure the Obligations
under this Agreement and the 2002 Credit Agreement.
"Dedicated Subsidiary" means CCEC and each of its Subsidiaries,
Calpine Holdings (and any successor thereto) and each of its Subsidiaries,
CNGGP and each of its Subsidiaries and CNGH and each of its Subsidiaries.
"Deed of Trust" means each mortgage, deed of trust, or other real
property collateral security instrument, executed and delivered pursuant
to the 2002 Credit Agreement, as amended, supplemented, restated or
otherwise modified from time to time.
"Domestic Gas Reserves" means the gas reserves of the Borrower and
its Subsidiaries located in the United States.
"Guarantors" means, collectively, QM, JOQ and QCH and any other
Subsidiary of the Borrower that executes a joinder to the Guaranty and
becomes a party thereto.
"Guaranty" means the guaranty executed and delivered by the
Guarantors pursuant to the 2002 Credit Agreement.
"Hazardous Materials Indemnity" means that certain Hazardous
Materials Indemnity executed and delivered by the Borrower pursuant to the
2002 Credit Agreement, as amended, supplemented, restated or otherwise
modified from time to time.
"JOQ" means JOQ Canada, Inc., a Delaware corporation and indirect,
Wholly Owned Subsidiary of CNGH.
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"Pledge Agreements" means the pledge agreements executed and delivered
pursuant to the 2002 Credit Agreement, as such agreements may be amended,
supplemented, restated or otherwise modified from time to time, which
will cover all equity interests in Calpine Holdings, CNGGP and CNGH held
by the Borrower and all of the equity interests of QCH in CCEC and such
portion of the equity interests of QM and JOQ in CCEC sufficient to
pledge to the Agent an aggregate amount of 65% of the total equity
interests of CCEC.
"QCH" means ▇▇▇▇▇▇▇▇ Canada Holdings, LLC, a Delaware limited
liability company and indirect, Wholly Owned Subsidiary of CNGH.
"QM" means ▇▇▇▇▇▇▇▇ Minerals (USA), Inc., a Delaware corporation and
indirect, Wholly Owned Subsidiary of CNGH.
"Restricted Subsidiary" has the meaning given in the Senior Note
Indentures.
"Zero-Coupon Debentures" means the outstanding Zero-Coupon Convertible
Debentures due 2021 issued by the Borrower pursuant to that certain
Indenture dated as of April 30, 2001 between the Borrower and Wilmington
Trust Company as trustee.
(b) The definition of the term "Applicable Margin" in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Applicable Margin" means, in the case of any Base Rate Loan or LIBO
Rate Loan, a rate per annum determined by reference to the Borrower's
Credit Rating as follows:
Borrower's Applicable Base Applicable LIBO Commitment
Credit Rating Rate Margin Rate Margin Fee Rate
------------- ----------- ----------- --------
▇▇▇▇▇ ▇ 0.50% 1.50% 0.500%
▇▇▇▇▇ ▇ 0.75% 1.75% 0.500%
▇▇▇▇▇ ▇ 1.00% 2.00% 0.500%
▇▇▇▇▇ ▇ 1.25% 2.25% 0.500%
▇▇▇▇▇ ▇ 1.75% 2.75% 0.500%
The applicable Level for the Borrower shall be determined by reference to
the definition of the term "Borrower's Credit Rating." Notwithstanding the
foregoing, from March 11, 2002 through the earlier of (i) the date the Loans
have received a rating from S&P or Moody's (ii) or September 8, 2002 the
Borrower's credit rating shall be deemed to be Level 3.
(c) The definition of the term "Borrower's Credit Rating" in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"Borrower's Credit Rating" means, at any time that the Loans shall
have been rated by Standard & Poor's Ratings Group ("S&P") or ▇▇▇▇▇'▇
Investor Service, Inc. ("Moody's"), a level determined in accordance with
the following standards: the
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Borrower's Credit Rating shall be "Level 1" if the Loans have (a) an S&P
Loan Rating of BBB or better or (b) a Moody's Loan Rating of Baa2 or
better. The Borrower's Credit Rating shall be "Level 2" if the Loans do not
meet the standards for a "Level 1" rating set forth above and have (a) an
S&P Loan Rating of BBB- or better or (b) a Moody's Loan Rating of Baa3 or
better. The Borrower's Credit Rating shall be "Level 3" if the Loans do not
meet the standards for a "Level 1" or "Level 2" rating set forth above and
have (a) an S&P Loan Rating of BB+ or better or (b) a Moody's Loan Rating
of Ba1 or better. The Borrower's Credit Rating shall be "Level 4" if the
Loans do not meet the standards for a "Level 1", "Level 2" or "Level 3"
rating set forth above and have (a) an S&P Loan Rating of BB or better or
(b) a Moody's Loan Rating of Ba2 or better. If the Loans do not meet the
standards for "Level 1", "Level 2", "Level 3" or "Level 4" set forth above
or fail to have either an S&P Loan Rating or a Moody's Loan Rating, then
the Borrower's Credit Rating shall be "Level 5". Notwithstanding the
foregoing, if the Borrower's S&P Loan Rating and Moody's Loan Rating shall
differ by two or more Levels, the applicable Level shall be one level
numerically higher than the numerically lower of such Levels. As used
herein, "S&P Loan Rating" means the senior secured debt rating given to the
Loans from time to time by S&P and "Moody's Loan Rating" means the senior
secured debt rating given to the Loans from time to time by Moody's. In the
event the Loans have an S&P Loan Rating or a Moody's Loan Rating but not
both, the Borrower's Credit Rating shall be determined on the basis of the
single rating that is available without reference to the other rating. At
all times after September 8, 2002 when the Loans shall not have a rating
from S&P or Moody's, the Borrower's Credit Rating shall be "Level 5.
Changes in the Borrower's Credit Rating shall take effect (i) in the case
of Applicable LIBO Rate Margin for LIBO Rate Loans, at the beginning of the
following Interest Period, and (ii) otherwise, as of the date of public
announcement by either S&P or Moody's.
(d) The definition of the term "Change in Control" in Section 1.1
of the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 30% or more of the outstanding shares
of voting stock of the Borrower and/or (ii) any "Change of Control" under
(and as defined in) any Senior Note Indentures in which such defined term
appears.
(e) The definition of the term "Guaranteed Preferred Securities"
in Section 1.1 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
"Guaranteed Preferred Securities" means the preferred securities
issued by one of the Trusts, from time to time, including, without
limitation the $276,000,000 of principal amount of such securities issued
in October, 1999, the $300,000,000 of principal amount of such securities
issued in January, 2000, the $60,000,000 of principal amount of such
securities issued in February, 2000, and the $517,500,000 of principal
amount of such securities issued in August, 2000.
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(f) The definition of the term "Issuer" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Issuer" means Scotiabank, or any Affiliate, unit of agency thereof,
any other Lender acceptable to the Borrower and the Agent, and any
successor to any of the foregoing Persons.
For purposes hereof, each reference to the term "Issuer" appearing in
the Credit Agreement shall be deemed amended to refer to (i) one of, (ii) any
of, (iii) certain of or (iv) all of, Scotiabank or such other Lenders, as the
context may require.
(g) The definition of the term "Senior Note Indentures" in Section
1.1 of the Credit Agreement is hereby amended by inserting the following clause
immediately prior to the end thereof:
"and any other indentures relating to outstanding Senior Notes."
(h) The definition of the term "Senior Notes" in Section 1.1 of the
Credit Agreement is hereby amended by inserting the following clause immediately
prior to the end thereof:
"and any similar senior notes issued by the Borrower after the Effective
Date but on or before January 1, 2002."
(i) The definition of the term "Trust" in Section 1.1 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Trust" means Calpine Capital Trust, Calpine Capital Trust II and
Calpine Capital Trust III, each a Delaware business trust.
(j) There shall be added to the Credit Agreement new subsections
(c), (d) and (e) to Section 2.2 of the Credit Agreement reading in their
entirety as follows:
(c) There shall be a mandatory reduction of the Commitments
hereunder and the commitments under the 2002 Credit Agreement by an amount
equal to one hundred percent (100%) of Net Available Cash from any Asset
Sale of any Dedicated Asset; provided, however, that the Borrower may, at
its discretion retain (and as a consequence of such retention, there shall
be excluded from any such mandatory reduction) up to an aggregate of
$75,000,000 of such Net Available Cash so long as such Net Available Cash
is applied by the Borrower in accordance with Section 8.2.10(b) hereof.
(d) Any reduction of the Commitments and commitments described in
clause (c) shall be effective on the first Business Day following the
Borrower's receipt of any related Net Available Cash. All such amounts
shall first be applied to the ratable reduction of the Commitments and the
commitments under the 2002 Credit Agreement. To that end, such amounts
shall first be applied to ratably prepay the Loans and loans under the 2002
Credit Agreement, and the corresponding cancellation of the Commitment
Amount and the commitments under the 2002 Credit Agreement by the
respective
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amount of such prepayments (or if no Revolving Loans or loans under the
2002 Credit Agreement are outstanding to the reduction of any unused
portion of the Revolving Commitment and such commitments), and finally to
the ratable cash collateralization of any Letters of Credit and letters of
credit under the 2002 Credit Agreement.
(e) To the extent that the Commitment Amount is at any time less
than the aggregate Stated Amount of outstanding Letters of Credit then in
effect, then the Borrower must deposit with the Agent cash collateral in
accordance with Section 4.7 hereof.
(k) Section 3.1 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of subsection (c) thereof, (ii) deleting the
period at the end of subsection (d) thereof and replacing it with "a
semicolon", and (iii) adding new subsections (e) and (f) thereafter reading in
their entirety as follows:
(e) shall, if a Default shall have occurred and be continuing on
any date that the Borrower gives notice of the purchase, redemption or
prepayment of the Zero Coupon Debentures in cash, or if an Event of
Default shall have occurred and be continuing on any date that the
Borrower purchases, redeems or prepays the Zero Coupon Debentures, make a
mandatory prepayment in an amount equal to the outstanding principal
amount of all Loans then outstanding and deposit with the Agent, cash
collateral in an amount equal to the outstanding Letters of Credit; and
(f) shall, if any non-cash proceeds from any Asset Sale of any
Dedicated Assets shall be received by a Subsidiary that is not directly or
indirectly owned by a Dedicated Subsidiary, thereupon make a mandatory
prepayment and corresponding reduction in Commitments pursuant to Section
2.2.2 in an amount equal to the market value of such proceeds, as
reasonably determined by the Agent.
(l) The following sentence shall be added immediately prior to the
end of Section 3.1:
Notwithstanding any provision of Sections 2.2 or 3.1 to the contrary,
after the occurrence and during the continuance of an Event of Default,
all optional and mandatory payments under Section 3.1 shall be applied
first to pay any fees and expenses then due and owing hereunder and under
the 2002 Credit Agreement, second to the pro rata payment of accrued and
unpaid interest on all Loans hereunder and under the 2002 Credit Agreement
and third as set forth in Section 2.2.
(m) Section 4.7 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 4.7. Cash Collateral. Upon the occurrence and during the
continuation of any Event of Default described in Section 9.1.9 or upon
notice to the Borrower after the occurrence and during the continuation of
any other Event of Default, at the election of the Agent acting on
instructions from the Required Lenders, or the occurrence of the
Commitment Termination Date, an amount equal to that portion of Letter of
Credit Outstanding attributable to outstanding and undrawn Letters of
Credit
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shall be deemed to have been paid or disbursed by the Issuers under the
Letters of Credit (notwithstanding that such amount may not in fact have
been paid or disbursed), and, upon notification by the Issuers to the
Agent and the Borrower of its obligations under this Section, the Borrower
shall be immediately obligated to reimburse the Agent the amount deemed to
have been so paid or disbursed by the Issuers. Any amounts so received by
the Agent from the Borrower pursuant to this Section shall be held as
collateral security for the repayment of the Borrower's obligations in
connection with the Letters of Credit. At any time when such Letters of
Credit shall terminate and all Obligations of the Borrower to the Issuers
are either terminated or paid or reimbursed to the Issuers in full, the
Obligations of the Borrower under this Section shall also terminate
(subject, however, to reinstatement in the event any payment in respect of
such Letters of Credit is recovered in any manner from any Issuer), and
the Agent will return to the Borrower the aggregate amount deposited by
the Borrower with the Issuers and not theretofore applied by the Issuers
to any Reimbursement Obligation.
At such time when all Events of Default shall have been cured or
waived, the Agent shall return to the Borrower all amounts then on deposit
with it pursuant to this Section. All amounts on deposit pursuant to this
Section shall, until their application to any Reimbursement Obligation or
their return to the Borrower, as the case may be, bear interest at the
daily average Federal Funds Rate from time to time in effect (net of the
costs of any reserve requirements, in respect of amounts on deposit
pursuant to this Section, pursuant to F.R.S. Board Regulation D), which
interest shall be held by the Agent as additional collateral security for
the repayment of the Borrower's Obligations in connection with the Letters
of Credit issued by the Issuers."
(n) Section 6.1.6 of the Credit Agreement is hereby amended by
replacing the date "December 31, 1999" with the date "December 31, 2000".
(o) Clause (b) of Section 7.8 of the Credit Agreement is hereby
amended by deleting the reference to "Section 8.2.10" and replacing it with
"Section 8.2.9".
(p) Clause (e) of Section 8.2.2 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(e) Indebtedness of one or more Subsidiaries of the Borrower
incurred solely to finance the development, construction or purchase of,
or repairs, expansions, enhancements, improvements or additions to, the
assets of such Subsidiaries so long as (i) the principal amount of any
such Indebtedness (x) for development of existing gas reserves does not
exceed an aggregate of $50,000,000 for any such existing reserves or (y)
for expansions, enhancements, improvements or additions to an existing
asset which has already achieved commercial operation does not exceed an
aggregate of $60,000,000 for any single financing or series of related
financings for such asset (exclusive of up to $250,000,000 of Indebtedness
for the expansion of the energy center at Zion, Illinois) and (ii)
recourse for any such Indebtedness is limited solely (A) to the asset or
assets being financed, (B) to such Subsidiaries themselves, where the
asset or assets being financed constitute all or substantially all of the
assets of such Subsidiaries (each, a "Special
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Purpose Subsidiary"), and/or (C) to the stock or other ownership interests
in such Special Purpose Subsidiaries;
(q) Section 8.2.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of subsection (k) thereof, (ii) inserting a
new subsection (l) reading in its entirety as follows:
"(l) Indebtedness under the 2002 Credit Agreement; and"
(iii) changing the old subsection (l) to subsection (m) and (iv) changing the
reference in the new subsection (m) from "clause (l)" to "clause (m)".
(r) Clause (a) of Section 8.2.3 of the Credit Agreement is hereby
amended by inserting the following clause immediately prior to the end thereof:
"and Liens securing payment of the obligations of the Borrower granted
pursuant to the 2002 Credit Agreement, which Liens (including the Lien on
property subject to the Assignment Agreement) shall ratably secure the
Obligations hereunder"
(s) Clause (m) of Section 8.2.3 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
(m) Liens securing Attributable Debt with respect to outstanding
leases entered into pursuant to Sale/Leaseback Transactions so long as,
with respect to Sale/Leaseback Transactions closing after January 1, 2002,
the amount thereof does not exceed 10% of the consolidated tangible assets
of the Borrower and its Subsidiaries; and
(t) Section 8.2.6 of the Credit Agreement is hereby amended by
adding the following proviso immediately prior to the end of subsection (b)(i)
thereof:
"and provided further, that the Borrower may make optional purchases,
redemptions or prepayments of the Zero Coupon Debentures if both before
and after giving effect thereto, no Default shall have occurred and be
continuing; or"
(u) Section 8.2.8 of the Credit Agreement is hereby amended by
deleting the phrase "$10,000,000 in any Fiscal Year or $50,000,000 during the
full term of such arrangements" and replacing it with "$25,00,000 in any Fiscal
Year".
(v) Subsection (b) of Section 8.2.10 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(b) such sale, transfer, lease, contribution or conveyance is not
covered by clause (a) above and (i) the Borrower or its Subsidiary
receives consideration at the time of such sale, transfer, lease,
contribution or conveyance at least equal to the fair market value of
assets being sold, transferred, leased, contributed or conveyed (ii) at
least sixty percent (60%) of the consideration received by the Borrower or
such Subsidiary is in the form of cash or cash equivalents, and (iii) an
amount equal to 100% of Net Available Cash is either reinvested in
Additional Assets within 365 days of such asset sale or
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applied by the Borrower pursuant to Section 2.2 to prepay the Loans and
the loans outstanding under the 2002 Credit Agreement, so long as any Net
Available Cash from Dedicated Assets is applied by the Borrower pursuant
to Section 2.2."
(w) That portion of Section 8.2.13 of the Credit Agreement prior to
subsection (a) thereof is hereby amended and restated in its entirety to read
as follows:
SECTION 8.2.13. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, enter
into any agreement (excluding this Agreement, any other Loan Document and
any agreement governing any Indebtedness permitted either by clauses (a),
(b), (e), (f), (g) and (l) of Section 8.2.2 (and refinancings, extensions
and renewals of such Indebtedness permitted under clause (m) of Section
8.2.2) or any agreements in respect of Sale/Leaseback Transactions
permitted by clause (m) of Section 8.2.3) prohibiting
(x) The second sentence of Section 11.1 of the Credit Agreement is
hereby amended by deleting the reference therein to "Section 6.3" and replacing
it with "Section 10.3."
(y) Subsection (a) of Section 11.11.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(a) with the written consents of the Borrower and the Agent (which
consents shall not be unreasonably withheld and which consent, in the case
of the Borrower, shall be deemed to have been given in the absence of a
written notice delivered by the Borrower to the Agent, on or before the
tenth Business Day after receipt by the Borrower of such Lender's request
for consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) and each Issuer (which consents may be
granted or withheld in their sole unfettered discretion) may at any time
assign and delegate to one or more commercial banks or other financial
institutions, and"
(z) Subsection (b) of Section 11.11.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(b) with notice to the Borrower, the Agent and the Issuers and with
the written consent of the Issuers (which consents may be granted or
withheld in their sole unfettered discretion) and the Borrower (which
consent shall not be unreasonably withheld and which consent shall be
deemed to have been given in the absence of a written notice delivered by
the Borrower to the Agent, on or before the tenth Business Day after
receipt by the Borrower of such Lender's request for consent, stating, in
reasonable detail, the reasons why the Borrower proposes to withhold such
consent) may assign and delegate to any of its Affiliates or to any other
Lender
(aa) Indented clause (ii) following subsection (b) of Section
11.11.1 of the Credit Agreement is hereby amended by adding immediately after
the reference to "accepted by the Agent" the following:
"and the Borrower (such approval not to be unreasonably withheld)"
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SECTION 2. To induce the Lenders and the Agent to enter into this
Amendment, the Company hereby reaffirms, as of the date hereof, its
representations and warranties contained in Article VII of the Credit Agreement
(except to the extent such representations and warranties relate solely to an
earlier date) and additionally represents and warrants as follows:
(i) The execution and delivery of this Amendment, and the
performance by the Company of its obligations hereunder, are within the
Company's corporate powers, have been duly authorized by all necessary
action, have received all necessary governmental approval (if any shall be
required), and do not and will not contravene or conflict with any
provision of law or of the charter or by-laws of the Company or of any
agreement binding upon the Company;
(ii) This Amendment is the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms;
and
(iii) No Default has occurred and is continuing and no Default will
result from the execution and delivery of this Amendment.
SECTION 3. The effectiveness of this Amendment is conditioned upon receipt
by the Agent of all the following documents, each in form and substance
satisfactory to the Agent:
(i) This Amendment duly executed by the Company, Required Lenders
and Calpine Gilroy; and
(ii) Such other documents as the Agent shall have reasonably
requested.
SECTION 4. This Amendment shall be deemed to be an amendment to the Credit
Agreement, and the Credit Agreement, as amended hereby, is hereby ratified,
approved and confirmed in each and every respect. All references to the Credit
Agreement in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Credit Agreement as amended hereby. It is
understood and agreed that from and after the date of the effectiveness of this
Amendment, the proceeds of any Net Available Cash from any Asset Sale of
Dedicated Asset (including, without limitation, any proceeds realized from the
Assignment Agreement or any Lien granted pursuant to the Assignment Agreement),
will be ratably shared among the Lenders and the lenders party to the 2002
Credit Agreement. By their execution hereof, the parties hereto have agreed to
permit (a) the assignment by Calpine Gilroy of its rights under the contract
that is the subject of the Assignment Agreement to the Borrower and (b) the
pledge by Borrower of all of the rights assigned to it to be pledged as
collateral security with the obligations under this Credit Agreement pursuant
to an Amended and Restated Assignment Agreement and under the 2002 Credit
Agreement on terms and conditions satisfactory to the Agent. Upon the execution
of such documentation, the perfection of the interests thereunder, and with the
receipt of written consent from all Lenders, the Agent may terminate the
Assignment Agreement and such Amended and Restated Assignment Agreement shall
thereupon be deemed to be the Assignment Agreement for all purposes of the
Credit Agreement
SECTION 5. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
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LAWS OF THE STATE OF NEW YORK. All obligations of the Company and rights of the
Lenders and the Agent expressed herein shall be in addition to and not in
limitation of those provided by applicable law. Whenever possible each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Amendment.
SECTION 6. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any party hereto may execute this Amendment by signing one or more counterparts.
SECTION 7. This Amendment shall be binding upon the Company, the Lenders
and the Agent and their respective successors and assigns, and shall inure to
the benefit of the Company, the Lenders and the Agent and the successors and
assigns of the Lenders and the Agent.
SECTION 8. THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AMENDMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AMENDMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CALPINE CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
THE BANK OF NOVA SCOTIA, as Agent and
Lender
By:________________________________________
Name:______________________________________
Title:_____________________________________
BAYERISCHE LANDESBANK
GIROZENTRALE
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
CIBC INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
BAYERISCHE HYPO-UND VEREINSBANK AG
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
ING (U.S.) CAPITAL LLC
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
TORONTO DOMINION (TEXAS) INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
UNION BANK OF CALIFORNIA, N.A.
By:________________________________________
Name:______________________________________
Title:_____________________________________
BANK OF AMERICA, N.A.
By:________________________________________
Name:______________________________________
Title:_____________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:________________________________________
Name:______________________________________
Title:_____________________________________
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
FLEET NATIONAL BANK
By:________________________________________
Name:______________________________________
Title:_____________________________________
FORTIS CAPITAL CORP.
By:________________________________________
Name:______________________________________
Title:_____________________________________
The undersigned has reviewed and approved
the Amendment and confirms that its obligations
under the Assignment Agreement remain in full
force and effect.
CALPINE GILROY COGEN, L.P.,
a Delaware limited partnership
By: Calpine Gilroy 1, Inc.,
a Delaware corporation,
its general partner
By:_____________________________________
Title:
Address: ▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President - Finance
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇