EXHIBIT 10.1.7.2
AMENDMENT NO.1 TO THE
SECOND AMENDMENT PLEDGE AGREEMENT
THIS AMENDMENT NO.1, dated as of November 18, 2003 (this
"Amendment"), to the Second Amendment Pledge Agreement, 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 stock interest of WRMS Engineering,
Inc. was released in connection with certain restructurings by the Company;
WHEREAS, pursuant to Section 4.2 of the Pledge Agreement, the
Company has delivered to the Collateral Trustee a share certificate evidencing
its interest in Calpine Development Holdings, Inc., along with an executed
undated blank stock power; 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, Quintana Minerals
(USA), Inc., JOQ Canada, Inc., Quintana 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,
Goldman Sachs 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 WRMS Engineering, Inc. as a
Pledged Share Issuer; and
(b) adding therein Calpine Development Holdings, Inc.
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.
-2-
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.
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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: ANN B. CURTIS
------------------------------------------
Name: Ann B. Curtis
Title: Executive Vice President
THE BANK OF NEW YORK, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS COLLATERAL
TRUSTEE
By: MICHAEL PITFICK
------------------------------------------
Name: Michael Pitfick
Title: Assistant Vice President
ATTACHMENT 1
TO
AMENDMENT NO.1 TO THE
SECOND AMENDMENT PLEDGE AGREEMENT
PLEDGED SHARES
Common
Stock
----------- % of
Outstanding Pledged
Pledged Share Issuer: Shares Shares
- --------------------------------------------- ----------- -------
CPN Energy Services, GP, Inc. 1000 100%
CPN Energy Services, LP, Inc. 1000 100%
Calpine CCFC II Holdings, Inc. 1000 100%
Calpine Central, Inc. 1000 100%
Calpine Eastern Corporation 1000 100%
Calpine Dighton, Inc. 1000 100%
CPN Auburndale, Inc. [*] 1000 100%
Calpine Auburndale, Inc.[*] 1000 100%
Calpine Gordonsville, Inc. 1000 100%
Calpine Rumford, Inc. 100 100%
Calpine Rumford I, Inc. 1000 100%
Calpine Tiverton, Inc. 100 100%
Calpine Tiverton I, Inc. 100 100%
Calpine Northeast Marketing, Inc. 100 100%
Venture Acquisition Company 1000 100%
Calpine Northbrook Corporation of Maine, Inc. 1000 100%
Androscoggin Energy, Inc. 1000 100%
Calpine Project Holdings, Inc. 1000 100%
Calpine Sumas, Inc. 1000 100%
Northwest Cogeneration, Inc. 1000 100%
Calpine King City, Inc. 1000 100%
Calpine Gilroy 1, Inc. 1000 100%
Calpine Gilroy 2, Inc. 1000 100%
Sutter Dryers, Inc. 1000 100%
Calpine Metcalf EPC, Inc. 1000 100%
Bellingham Cogen, Inc. 1000 100%
GATX/Calpine-Agnews, Inc. 3000 100%
Calpine Agnews, Inc. 1000 100%
Calpine Power Company 1000 100%
Calpine Vapor, Inc. 1000 100%
Modoc Power, Inc. 1000 100%
Santa Rosa Energy Company 1000 100%
Geysers Finance Company 100,000 100%
Calpine Thermal Power, Inc. 1000 100%
Calpine Operations Management Company, Inc. 1000 100%
Calpine Fuels Corporation 1000 100%
CPN Pipeline Company 1000 100%
Calpine Eastern Holdings, Inc. 1000 100%
Calpine c*Power, Inc. 1000 100%
CPN Cascade, Inc. 1000 100%
CPN Telephone Flat, Inc. 1000 100%
Anderson Springs Energy Company 1000 100%
Calpine Sonoma, Inc. 1000 100%
Calpine California Holdings, Inc. 1000 100%
Calpine Development Holdings, Inc. 1000 100%
[*] On August 7, 2003, (i) Calpine Auburndale, Inc. was merged into CPN
Auburndale, Inc. and (ii) CPN Auburndale, Inc. was converted into a
Delaware limited liability company, changing its name to "Calpine
Auburndale Holdings, LLC".