FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of September 26, 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, that certain Second
Amendment to Second Amended and Restated Credit Agreement, dated as of March 8,
2002 and that certain Third Amendment to Second Amended and Restated Credit
Agreement, dated as of May 9, 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; and
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. Subsection (i) of clause (b) of Section 8.2.6 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"(i) make any payment or prepayment of principal of, or make any
payment of interest on, any Senior Notes (as such term is defined in the
2002 Credit Agreement) or any Subordinated Debt on any day other than the
stated date for such payment or prepayment set forth in the documents and
instruments memorializing any Senior Notes or such Subordinated Debt, or
which would violate the subordination provisions of any such Subordinated
Debt; provided, that the Borrower may so pay or prepay all or a portion of
the Senior Notes (as such term is defined in the 2002 Credit Agreement) if
either (A) both before and after giving effect thereto, no Default shall
have occurred or be continuing and there are no Loans outstanding hereunder
or (B) both before and after giving effect thereto, no Default shall have
occurred and be continuing and the aggregate amount of all such prepayments
shall not exceed 50% of aggregate Net Equity Proceeds received by the
Borrower from and after March 8, 2002."
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 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 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: /s/ Michael Thomas
-------------------------------------
Name: Michael Thomas
-----------------------------------
Title: Senior Vice President - Treasury
----------------------------------
THE BANK OF NOVA SCOTIA, as Agent and
Lender
By: /s/ Denis P. O'Meara
------------------------------------
Name: Denis P. O'Meara
-----------------------------------
Title: Managing Director
----------------------------------
BAYERISCHE LANDESBANK
By: /s/ C. Stolarski
-------------------------------------
Name: C. Stolarski
-----------------------------------
Title: V.P.
----------------------------------
By: /s/ C. Wintergerst
-------------------------------------
Name: C. Wintergerst
-----------------------------------
Title: V.P.
----------------------------------
CIBC INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH
By: /s/ James Moran
-------------------------------------
Name: James Moran
-----------------------------------
Title: Director
----------------------------------
By: /s/ Thomas Murray
-------------------------------------
Name: Thomas Murray
-----------------------------------
Title: Directors
----------------------------------
-2-
BAYERISCHE HYPO-UND VEREINSBANK AG
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ING CAPITAL LLC
By: /s/ Erwin Thomet
-------------------------------------
Name: Erwin Thomet
-----------------------------------
Title: Managing Director
----------------------------------
By: /s/ G. Dominick Bellamy, Jr.
-------------------------------------
Name: G. Dominick Bellamy, Jr.
-----------------------------------
Title: Director
----------------------------------
TORONTO DOMINION (TEXAS) INC.
By: /s/ Mark A. Baird
-------------------------------------
Name: Mark A. Baird
-----------------------------------
Title: Vice President
----------------------------------
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Bryan Read
-------------------------------------
Name: Bryan Read
-----------------------------------
Title: Vice President
----------------------------------
BANK OF AMERICA, N.A.
By: /s/ Gabriela Millhorn
-------------------------------------
Name: Gabriela Millhorn
-----------------------------------
Title: Principal
----------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Martin C. Livingston
-------------------------------------
Name: Martin C. Livingston
-----------------------------------
Title: Vice President
----------------------------------
-3-
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:
----------------------------------
-4-