EXHIBIT 10.1.8.2
AMENDMENT NO.1 TO THE
SECOND AMENDMENT PLEDGE AGREEMENT (MEMBERSHIP INTERESTS)
THIS AMENDMENT NO.1, dated as of November 18, 2003 (this
"Amendment"), to the Second Amendment Pledge Agreement (Membership Interests),
dated as of July 16, 2003, (as the same may be amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"), made by Calpine
Corporation, a Delaware corporation (the "Company"), in favor of The Bank of New
York, as Collateral Trustee (together with any successor(s) thereto in such
capacity, the "Collateral Trustee") for the benefit of the Secured Parties.
WITNESSETH:
WHEREAS, the Company may, from time to time, eliminate and
restructure its Subsidiaries in connection with ordinary course corporate
reorganization, provided that the assets held by any such subsidiaries are
transferred to the Company or otherwise remain a part of the Collateral, subject
to the terms and conditions of the Secured Debt Documents;
WHEREAS, the pledge of the equity interests of South Point
Energy Center LLC was released and the pledge of the equity interests of Calpine
Auburndale Holdings, LLC was created in connection with certain restructurings
by the Company; and
WHEREAS, the Company now wishes to amend the Pledge Agreement
in certain respects, as hereinafter provided.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Amendment, including in its preamble and
recitals, have the respective meanings assigned to such terms in the Collateral
Trust Agreement dated as of July 16, 2003, among the Company, Xxxxxxxx Minerals
(USA), Inc., JOQ Canada, Inc., Xxxxxxxx Canada Holdings, LLC, The Bank of Nova
Scotia, as Agent under the Credit Agreement, Wilmington Trust Company, as
Trustee under the 2007 Indenture, the 2010 Indenture and the 2013 Indenture,
Xxxxxxx Xxxxx Credit Partners L.P., as Administrative Agent under the Term Loan
Agreement, and the Collateral Trustee.
2. Amendment to Attachment 1 to the Pledge Agreement.
Attachment 1 to the Pledge Agreement is hereby amended as follows:
(a) deleting therefrom South Point Energy Center LLC as a
Pledged Interest Issuer; and
(b) adding therein Calpine Auburndale Holdings, LLC as a
Pledged Interest Issuer.
The fully amended and restated Attachment 1 is attached
hereto.
3. Representations and Warranties. The Company hereby
represents and warrants to the Collateral Trustee that (a) this Amendment has
been duly authorized, executed and delivered by the Company and constitutes its
valid and legally binding obligation, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and (b) the
execution and delivery of this Amendment (i) does not require any consent,
approval, authorization or order of, or filing with, any governmental agency or
body or any court, except such as have been obtained or made and are in full
force and effect as of the date hereof and (ii) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Company or any order of any governmental agency or body, or breach or
conflict with any material agreement to which the Company is a party or by which
the Company is bound.
4. Effectiveness. This Amendment shall become effective upon
fulfillment of the following conditions precedent: (a) receipt by the Collateral
Trustee of the duly executed signature page of this Amendment signed on behalf
of the Company and (b) receipt by the Collateral Trustee of an Officer's
Certificate and an Opinion of Company Counsel, dated the date hereof, in
accordance with section 7.1 of the Collateral Trust Agreement. This Amendment
may be executed in counterparts and all of the said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
5. Continuing Effect of the Pledge Agreement. Except as
expressly set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Secured Parties, the Collateral Trustee or the Company under the
Pledge Agreement and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Pledge Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect. Nothing herein shall be deemed to
entitle the Company to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Pledge Agreement in similar or different
circumstances. This Amendment shall apply and be effective only with respect to
the provisions of the Pledge Agreement specifically referred to herein. After
this Amendment becomes effective in accordance with Section 4 hereof, any
reference to the Pledge Agreement shall mean the Pledge Agreement as amended and
modified hereby.
6. Applicable Law. This Amendment and the right and
obligations of the parties hereunder shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York
without regard to conflict of laws principles thereof.
7. Headings. Headings herein are include herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
CALPINE CORPORATION
By: XXX X. XXXXXX
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS COLLATERAL
TRUSTEE
By: XXXXXXX XXXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
ATTACHMENT 1
TO
AMENDMENT NO.1 TO THE
SECOND AMENDMENT PLEDGE AGREEMENT
(MEMBERSHIP INTEREST)
PLEDGED MEMBERSHIP INTERESTS
% OF
MEMBERSHIP
INTEREST
PLEDGED INTEREST ISSUER: PLEDGED
--------------------------------------- ----------
Calpine Natural Gas Holdings, LLC 100%
Calpine Marketing, LLC 100%
Anacapa Land Company LLC 100%
Calpine Pittsburgh, LLC 100%
CPN Blue Spruce Holdings, LLC 100%
Calpine Calistoga Holdings, LLC 100%
Chippokes Energy Center, LLC 100%
Palmetto Energy Center, LLC 100%
Blue Heron Energy Center, LLC 100%
Calpine Sonoran Pipeline, LLC 100%
Los Esteros Critical Energy Center, LLC 100%
Calpine Natural Gas GP, LLC 100%
Calpine Auburndale Holdings, LLC 100%
