exv4w21w2



 







Exhibit 4.21.2




CONSENT, ACKNOWLEDGMENT AND AMENDMENT TO

OPERATING AGREEMENT OF CCFC PREFERRED HOLDINGS, LLC




          CONSENT, ACKNOWLEDGMENT AND AMENDMENT (this “Consent Agreement”) is entered into as of
March ___, 2006 by and among Calpine CCFC Holdings, Inc., in its capacity as Common Member (the
“Common Member”), and the other parties hereto in their capacities as Redeemable Preferred
Members (the “Preferred Members”), in each case under and as defined in the Second Amended
and Restated Limited Liability Company Operating Agreement, dated as of October 14, 2005 (the
“Operating Agreement”) of CCFC Preferred Holdings, LLC (the “Company”).
Capitalized terms used but not otherwise defined in this Consent Agreement have the meanings given
to them in the Operating Agreement or the Standstill Agreement dated as of February 24, 2006 (the
“Standstill Agreement”) among the Common Member and the Preferred Members party thereto.




          In connection with and in furtherance of the Operating Agreement and the Standstill Agreement,
the parties hereto hereby agree as follows:




          1. The Preferred Members hereby acknowledge and agree that the Waiver Agreement under the
Credit and Guarantee Agreement and the Waiver Agreement under the Indenture in the forms attached
hereto as Exhibit A and Exhibit B, respectively, constitute irrevocable and unconditional waivers
of the Specified Defaults in form and substance reasonably satisfactory to the Preferred Members in
satisfaction of Sections 2(a)(i) and 3(i) of the Standstill Agreement.




          2. Pursuant to Section 6.5(a)(i) of the Operating Agreement, the Preferred Members hereby
Consent to the execution and delivery by CCFC of Amendment No. 4 to the Credit Agreement and the
Fourth Supplemental Indenture in the forms attached hereto as Exhibit C and Exhibit D,
respectively.




          3. The Common Member hereby confirms that any material amendment, modification or replacement
of the Index Based Gas Sale and Power Purchase Agreement, as anticipated by Section 3 of the Waiver
Agreement under the Credit Guarantee Agreement and Section 2.2 of the Waiver Agreement under the
Indenture, shall require the Consent of a Majority-in-Interest of the Redeemable Preferred Shares
in accordance with Section 6.4(l) of the Operating Agreement.




          4. The Common Member hereby agrees that (a) a Majority In Interest of the Redeemable Preferred
Shares shall have the right by written notice to the Common Member at any time and from time to
time to appoint an Independent Director to replace the Independent Director of the Company
designated by them pursuant to Section 6.2(c) of the Operating Agreement and/or this Section 4 and
such appointment shall be effective immediately upon the satisfaction of the conditions specified
in clause (b) of this Section 4, and (b) on or before the thirtieth (30th) day after the
date of such notice, the Common Member shall (i) deliver to such nominee and a Majority In Interest
of the Redeemable Preferred Shares evidence that such replacement Independent Director has become
an additional insured under the directors and officers insurance policy available to the outside
directors of Calpine Corporation, (ii) maintain




 









 




such insurance for such Independent Director during his or her entire term of service as such,
and (iii) cause the Company to agree to pay such replacement Independent Director a fee during such
replacement Independent Director’s term as a Director in an amount deemed appropriate in the sole
discretion of such Majority In Interest of the Redeemable Preferred Shares but not to exceed
$50,000 per annum. Each such replacement Independent Director shall be an express third party
beneficiary of the obligations of the Common Member hereunder.




          5. The Common Member and the Preferred Members hereby agree that the failure by the Common
Member to comply with its obligations under Section 4 of this Consent Agreement shall be an event
which, upon the delivery of the requisite notice, constitutes a “Voting Rights Trigger Event” under
the Operating Agreement.




          Except to the extent set forth herein, the Common Member acknowledges and agrees that nothing
contained herein shall by implication or otherwise, constitute a waiver of or consent to any other
Defaults, Events of Default, Voting Rights Trigger Events or other defaults under the Operating
Agreement (including, without limitation, any failure by the Company to make payment when due of
the Redeemable Preferred Dividend due on August 26, 2006) or limit, impair or otherwise affect the
rights and remedies of the Preferred Members under the Operating Agreement, which shall remain in
full force and effect, and the Preferred Members hereby reserve all such rights and remedies.
Except as expressly provided herein, this Consent Agreement shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Preferred
Members or the Common Member under the Operating Agreement and the Standstill Agreement, each of
which shall remain unchanged and in full force and effect.




          This Consent Agreement may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same instrument.




          The Common Member represents and warrants to each of the Preferred Members that, as of the
date hereof: (a) the Common Member has the requisite power and authority to enter into this Consent
Agreement, and perform all the terms and conditions hereof to be performed by it, without the
express authorization of the Bankruptcy Court in the matter of In re Calpine Corporation, et. al.,
Case No. 05-60200, (b) the execution, delivery and performance of this Consent Agreement has been
duly authorized by all requisite action of the Common Member under its organizational documents,
and (c) this Consent Agreement has been duly and validly authorized, executed and delivered by the
Common Member, and constitutes the legal, valid and binding instrument of the Common Member,
enforceable against it in accordance with its terms.




          This Consent Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware. This Consent Agreement and the Standstill Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




-2-









 





          IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.




	 	 	 	 	 
	 	CALPINE CCFC HOLDINGS, INC.

 	 
	 	By:  	/s/
Zamir Rauf 	 
	 	 	Name:  	Zamir Rauf 	 
	 	 	Title:  	Senior Vice President 	 
	 



[signature pages of Preferred Members follow]





 









 





Preferred Member Signature

Page to Consent Agreement




Name of Preferred Member: ______________________________




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title: