THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of May 9, 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 and that certain
Second Amendment to Second Amended and Restated Credit Agreement, dated as of
March 8, 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,
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) Clause (a) of Section 8.2.2 of the Credit Agreement is hereby amended
by adding the following clause immediately prior to the end thereof:
"and any Indebtedness evidenced by promissory notes pledged pursuant to the
Note Pledge Agreement (as such term is defined in the 2002 Credit
Agreement)."
(b) Clause (a) of Section 8.2.3 of the Credit Agreement is hereby amended
by adding the following proviso immediately prior to the end thereof:
"; provided, however, that all proceeds from any Incremental Dedicated
Assets (as such term is defined in the 2002 Credit Agreement) shall be
applied as more particularly set forth in the 2002 Credit Agreement."
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, Required Lenders and
Calpine Gilroy; 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 BEFORE A JURY.
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: 50 W. San Fernando St.
San Jose, CA 95113
Attention: Vice President - Finance
Telecopier: 408-995-0505