Exhibit 10.2.4
FIRST AMENDMENT AND WAIVER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of April 19, 2001 (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 (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) The definition of the term "Letter of Credit Availability"
in Section 1.1 of the Credit Agreement is hereby amended by deleting
"$200,000,000 (or such greater amount as may be agreed by the Borrower, the
Agent and the Required Lenders from time to time)" and replacing it with
"$400,000,000".
SECTION 2.
(a) Pursuant to Section 3.1.3 of the Assignment Agreement,
Calpine Gilroy represented and warranted that to the best of its knowledge no
default existed under the Assigned Agreement (as defined in the Assignment
Agreement) by PG&E. As the result of its failure to make all payments required
pursuant to Section 5.1.1 of the Assigned Agreement, PG&E is now in default
under the Assigned Agreement. Pursuant to Section 6.2.1(a) of the Credit
Agreement, it is a condition precedent to each Extension of Credit that the
representations and warranties in each Loan Document be true and correct in all
material respects as of the date of such Extension of Credit. The Company has
requested that the Lenders waive the provisions of Section 6.2.1(a) to the
extent that it would require that PG&E not be in default under the Assigned
Agreement. By their execution hereof, the undersigned Lenders hereby waive
compliance with Section 6.2.1 of the Credit Agreement insofar as such Section
would be breached as the result of PG&E's default under Section 5.1.1 of the
Assigned Agreement.
(b) The Company has advised the Agent and the Lenders that one of
its Canadian Subsidiaries (CanSub) will be issuing approximately $1,500,000,000
of public debt. The Company will directly guaranty that Indebtedness (which
guaranty is permitted by Section 8.2.2(f) of the Credit Agreement). The
obligations of CanSub under such Indebtedness will also be secured by a pledge
of another Wholly Owned Subsidiary's rights to sell its capital stock to a third
Wholly Owned Subsidiary of the Company pursuant to a forward purchase agreement
(the "Forward Purchase Agreement"). The purchasing Subsidiary's obligations will
be guaranteed by the Company. The Company has requested that the Lenders waive
the provisions of Section 8.2.3 of the Credit Agreement to the extent that such
Section would prohibit (i) the pledge by CanSub of its rights under the Forward
Purchase Agreement and the related guaranty and (ii) the prior pledge by a
Wholly Owned Subsidiary to another Wholly Owned Subsidiary of its rights under
the Forward Purchase Agreement and the related guaranty. By their execution
hereof, the undersigned Lenders waive compliance with Section 8.2.3 of the
Credit Agreement to the extent that such provision would be breached by CanSub's
or any other Wholly Owned Subsidiary's pledge of such rights and interests.
(c) The Company has requested that the Lenders confirm that the
phrase "contributions to capital or loans or advances" in Section 8.2.5(c) of
the Credit Agreement includes the execution of guarantees and other forms of
Contingent Liabilities to the extent that the occurrence of the obligations
being guaranteed or supported would otherwise be permitted by the Credit
Agreement. By their execution hereof, the undersigned Lenders hereby confirm
that the guaranty by the Company of the obligations of a Subsidiary would not
be prohibited pursuant to Section 8.2.5(c) of the Credit Agreement to the
extent that the guaranty (and the incurrence of any Indebtedness associated
therewith) would otherwise be permitted by the Credit Agreement.
(d) Except as specifically set forth herein, no waiver of any
Default, Event of Default, right or remedy under any of the Loan Documents is
intended by the waivers set forth above and no such waiver is to be implied.
SECTION 3. 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; and
(ii) This Amendment is the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms.
SECTION 4. 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:
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(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 5. 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.
SECTION 6. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL 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 7. 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 8. 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 9. 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:
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CREDIT SUISSE FIRST BOSTON
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:
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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:
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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: 50 W. San Fernando St.
San Jose, CA 95113
Attention: Vice President - Finance
Telecopier: 408-995-0505
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