EXHIBIT 10.2.8
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of March 12, 2003 (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 (herein
called the "Lenders") and THE BANK OF NOVA SCOTIA, as administrative agent for
the Lenders (herein, in such capacity, called the "Agent").
WITNESSETH:
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, that certain
Second Amendment to Second Amended and Restated Credit Agreement, dated as of
March 8, 2002, that certain Third Amendment to Second Amended and Restated
Credit Agreement, dated as of May 9, 2002 and that certain Fourth Amendment to
Second Amended and Restated Credit Agreement, dated as of September 26, 2002
(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;
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. 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 one
or more 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 or to the assets of CES, (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
Purpose Subsidiary"), and/or (C) to the stock or other direct or indirect
ownership interests in such Special Purpose Subsidiaries;"
SECTION 2. 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 and the Required
Lenders; and
(ii) Such other documents as the Agent shall have reasonably
requested.
SECTION 3. 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 4. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH 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 5. 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 6. 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 7. 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 A JURY.
IN WITNESS WHEREOF, the parties 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: /s/ Michael Thomas
---------------------------------
Name: Michael Thomas
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Title: Senior Vice President
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THE BANK OF NOVA SCOTIA, as Agent and Lender
By: /s/ James R. Trimble
---------------------------------
Name: James R. Trimble
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Title: Managing Director
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BAYERISCHE LANDESBANK
By:
---------------------------------
Name:
-------------------------------
Title:
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By:
---------------------------------
Name:
-------------------------------
Title:
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CIBC INC.
By: /s/ M. Sanjeeve Senanayaka
---------------------------------
Name: M. Sanjeeve Senanayaka
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Title: Executive Director
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CIBC World Markets Corp. As Agent
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By: /s/ James P. Moran
________________________________
Name: James P. Moran
______________________________
Title: Director
_____________________________
By: /s/ Ian W. Nalitt
________________________________
Name: Ian W. Nalitt
______________________________
Title: Associate
_____________________________
BAYERISCHE HYPO-UND VEREINSBANK AG
By: /s/ Paul J. Colatzello
________________________________
Name: Paul J. Colatzello
______________________________
Title: Director
_____________________________
By: /s/ Andrew G. Matthews
________________________________
Name: Andrew G. Matthews
______________________________
Title: Managing Director
_____________________________
ING CAPITAL, LLC
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
TORONTO DOMINION (TEXAS) INC.
By: /s/ Lynn Chasin
________________________________
Name: Lynn Chasin
______________________________
Title: Vice President
_____________________________
UNION BANK OF CALIFORNIA, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
BANK OF AMERICA, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Martin C. Livingston
________________________________
Name: Martin C. Livingston
______________________________
Title: Vice President
_____________________________
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Fred Thurston
________________________________
Name: Fred Thurston
______________________________
Title: Vice President
_____________________________
By: /s/ Gill C. Schor
________________________________
Name: Gill C. Schor
______________________________
Title: Associate
_____________________________
FLEET NATIONAL BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
FORTIS CAPITAL CORP.
By: ________________________________
Name: ______________________________
Title: _____________________________