FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of November 26, 2012, among each of South Point Holdings, LLC, South Point Energy Center, LLC, Broad River Energy LLC, South Point OL-1, LLC, South Point OL‑2, LLC, South Point OL-3, LLC, South Point OL-4, LLC, Broad River OL-1, LLC, Broad River OL-2, LLC, Broad River OL-3, LLC and Broad River OL-4, LLC (collectively, the “Guaranteeing Subsidiaries”), each a subsidiary of Calpine Corporation, a Delaware corporation (the “Company”), the Company, each of the guarantors party to the Indenture (as defined below) (the “Existing Guarantors”) and Wilmington Trust Company, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the guarantors party thereto have heretofore executed and delivered to the Trustee an indenture, dated as of October 22, 2010 (as supplemented by the First Supplemental Indenture dated as of April 26, 2011, the Second Supplemental Indenture dated as of July 22, 2011, and the Third Supplemental Indenture dated as of August 20, 2012, the “Indenture”), providing for the issuance of 7.50% Senior Secured Notes due 2021 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which each of the Guaranteeing Subsidiaries shall agree to guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Fourth Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the Guaranteeing Subsidiaries hereby agrees to become subject to the Guarantee and Collateral Agreement pursuant to Section 4.13 of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of any of the Guaranteeing Subsidiaries, as such, shall have any liability for any obligations of the Company, any of the Existing Guarantors or any of the Guaranteeing Subsidiaries under the Notes, any Note Guarantees, the Indenture or this Fourth Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FOURTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Fourth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by each of the Guaranteeing Subsidiaries, the Company and the Existing Guarantors.
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IN WITNESS HEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed and attested, all as of the date first above written.
BROAD RIVER OL-1, LLC
SOUTH POINT OL-1, LLC
By: SBR OP-1, LLC,
as sole member of Broad River OL-1, LLC and South Point OL-1, LLC
By: Calpine BRSP, LLC,
as sole member of SBR OP-1, LLC
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
BROAD RIVER OL-2, LLC
SOUTH POINT OL-2, LLC
By: SBR OP-2, LLC,
as sole member of Broad River OL-2, LLC and South Point OL-2, LLC
By: Calpine BRSP, LLC,
as sole member of SBR OP-2, LLC
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
BROAD RIVER OL-3, LLC
SOUTH POINT OL-3, LLC
By: SBR OP-3, LLC,
as sole member of Broad River OL-3, LLC and South Point OL-3, LLC
By: Calpine BRSP, LLC,
as sole member of SBR OP-3, LLC
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
BROAD RIVER OL-4, LLC
SOUTH POINT OL-4, LLC
By: SBR OP-4, LLC,
as sole member of Broad River OL-4, LLC and South Point OL-4, LLC
By: Calpine BRSP, LLC,
as sole member of SBR OP-4, LLC
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
SOUTH POINT HOLDINGS, LLC
SOUTH POINT ENERGY CENTER, LLC
BROAD RIVER ENERGY LLC
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
ON BEHALF OF THE EXISTING GUARANTORS LISTED ON SCHEDULE I
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
ON BEHALF OF THE EXISTING GUARANTORS LISTED ON SCHEDULE II
By: /s/ Andre Walker _
Name: Andre Walker
Title: Vice President
ON BEHALF OF THE EXISTING GUARANTORS LISTED ON SCHEDULE III
By:/s/ W. Thaddeus Miller __
Name: W. Thaddeus Miller
Title: Corporate Secretary and Chief Legal
Officer
ON BEHALF OF THE EXISTING GUARANTORS LISTED ON SCHEDULE IV
By:/s/ Todd Thornton __
Name: Todd Thornton
Title: Vice President
ON BEHALF OF CALPINE CORPORATION AND THE EXISTING GUARANTORS LISTED ON SCHEDULE V
By: /s/ Zamir Rauf __
Name: Zamir Rauf
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Prital Patel _
Authorized Signatory
SCHEDULE I
|
|
| Name of Guarantor |
| Calpine Energy Services GP, LLC |
| Calpine Energy Services LP, LLC |
SCHEDULE II
|
|
| Name of Guarantor |
| Calpine Construction Management Company, Inc. |
| Calpine Mid-Atlantic Operating, LLC |
| Calpine Operating Services Company, Inc. |
| Calpine Power Services, Inc. |
| Thomassen Turbine Systems America, Inc. |
SCHEDULE III
|
|
| Name of Guarantor |
| Anacapa Land Company, LLC |
| Anderson Springs Energy Company |
| Auburndale Peaker Energy Center, LLC |
| Aviation Funding Corp. |
| Baytown Energy Center, LLC |
| Bellingham Cogen, Inc. |
| CalGen Expansion Company, LLC |
| CalGen Finance Corp. |
| CalGen Project Equipment Finance Company Three, LLC |
| Calpine Administrative Services Company, Inc. |
| Calpine Auburndale Holdings, LLC |
| Calpine c*Power, Inc. |
| Calpine CalGen Holdings, Inc. |
| Calpine California Holdings, Inc. |
| Calpine Calistoga Holdings, LLC |
| Calpine CCFC Holdings, Inc. |
| Calpine Central Texas GP, Inc. |
| Calpine Central, Inc. |
| Calpine Central-Texas, Inc. |
| Calpine Cogeneration Corporation |
| Calpine Eastern Corporation |
| Calpine Edinburg, Inc. |
| Calpine Energy Services, L.P. |
| Calpine Fuels Corporation |
| Calpine Generating Company, LLC |
| Calpine Geysers Company, L.P. |
| Calpine Gilroy 1, Inc. |
| Calpine Gilroy 2, Inc. |
| Calpine Global Services Company, Inc. |
| Calpine Hidalgo Energy Center, L.P. |
| Calpine Hidalgo Holdings, Inc. |
|
|
| Name of Guarantor |
| Calpine Hidalgo, Inc. |
| Calpine Jupiter, LLC |
| Calpine Kennedy Operators, Inc. |
| Calpine KIA, Inc. |
| Calpine King City, Inc. |
| Calpine King City, LLC |
| Calpine Leasing Inc. |
| Calpine Long Island, Inc. |
| Calpine Magic Valley Pipeline, Inc. |
| Calpine MVP, Inc. |
| Calpine Newark, LLC |
| Calpine Northbrook Holdings Corporation |
| Calpine Northbrook Investors, LLC |
| Calpine Northbrook Project Holdings, LLC |
| Calpine Oneta Power, LLC |
| Calpine Operations Management Company, Inc. |
| Calpine Power Company |
| Calpine Power, Inc. |
| Calpine Power Management, LLC |
| Calpine PowerAmerica, LLC |
| Calpine PowerAmerica-CA, LLC |
| Calpine PowerAmerica-ME, LLC |
| Calpine Project Holdings, Inc. |
| Calpine Pryor, Inc. |
| Calpine Rumford I, Inc. |
| Calpine Rumford, Inc. |
| Calpine Schuylkill, Inc. |
| Calpine Sonoran Pipeline, LLC |
| Calpine Stony Brook Operators, Inc. |
| Calpine Stony Brook, Inc. |
|
|
| Name of Guarantor |
| Calpine Sumas, Inc. |
| Calpine TCCL Holdings, Inc. |
| Calpine Texas Pipeline GP, Inc. |
| Calpine Texas Pipeline LP, Inc. |
| Calpine Texas Pipeline, L.P. |
| Calpine Tiverton I, Inc. |
| Calpine Tiverton, Inc. |
| Calpine University Power, Inc. |
| Carville Energy LLC |
| CES Marketing IX, LLC |
| CES Marketing V, LLC |
| CES Marketing X, LLC |
| Channel Energy Center, LLC |
| Clear Lake Cogeneration Limited Partnership |
| Columbia Energy LLC |
| Corpus Christi Cogeneration, LLC |
CPN 3rd Turbine, Inc. |
| CPN Acadia, Inc. |
| CPN Cascade, Inc. |
| CPN Clear Lake, Inc. |
| CPN East Fuels, LLC |
| CPN Pipeline Company |
| CPN Pryor Funding Corporation |
| CPN Telephone Flat, Inc. |
| Decatur Energy Center, LLC |
| Delta Energy Center, LLC |
| Fontana Energy Center, LLC |
| Freestone Power Generation, LLC |
| GEC Bethpage Inc. |
| Geysers Power Company, LLC |
| Geysers Power I Company |
|
|
| Name of Guarantor |
| Hillabee Energy Center, LLC |
| Idlewild Fuel Management Corp. |
| JMC Bethpage, Inc. |
| Los Medanos Energy Center LLC |
| Magic Valley Pipeline, L.P. |
| Mobile Energy LLC |
| Modoc Power, Inc. |
| Morgan Energy Center, LLC |
| Northwest Cogeneration, Inc. |
| NTC Five, Inc. |
| Pastoria Energy Center, LLC |
| Pastoria Energy Facility, L.L.C. |
| Pine Bluff Energy, LLC |
| RockGen Energy LLC |
| Rumford Power Associates Limited Partnership |
| Santa Rosa Energy Center, LLC |
| Stony Brook Cogeneration, Inc. |
| Stony Brook Fuel Management Corp. |
| Sutter Dryers, Inc. |
| Texas City Cogeneration, LLC |
| Texas Cogeneration Five, Inc. |
| Texas Cogeneration One Company |
| Thermal Power Company |
| Tiverton Power Associates Limited Partnership |
| Zion Energy LLC |
SCHEDULE IV
|
|
| Name of Guarantor |
| Calpine Bethlehem, LLC |
| Calpine Mid-Atlantic Energy, LLC |
| Calpine Mid-Atlantic Generation, LLC |
| Calpine Mid-Atlantic Marketing, LLC |
| Calpine New Jersey Generation, LLC |
| Calpine Solar, LLC |
| Calpine Vineland Solar, LLC |
| New Development Holdings, LLC |
SCHEDULE V
Name of Guarantor
|
|
| Deer Park Energy Center LLC |
| Deer Park Holdings, LLC |
| Metcalf Energy Center, LLC |
| Metcalf Holdings, LLC |
