EXHIBIT 10.2.2.4
AMENDMENT NO. 3 UNDER
CREDIT AND GUARANTEE AGREEMENT
THIS AMENDMENT NO. 3 UNDER CREDIT AND GUARANTEE AGREEMENT
(this "Amendment") is made as of the 5th day of March, 2004, by and among
CALPINE CONSTRUCTION FINANCE COMPANY, L.P., a Delaware limited partnership (the
"Company"), CALPINE HERMISTON, LLC, a Delaware limited liability company
("Calpine LLC"), CPN HERMISTON, LLC, a Delaware limited liability company ("CPN
LLC"), and HERMISTON POWER PARTNERSHIP, an Oregon general partnership (the
"Hermiston Partnership" and, together with Calpine LLC and CPN LLC, the
"Guarantors"), the lenders party hereto (the "Lenders"), and GOLDMAN SACHS
CREDIT PARTNERS L.P., as administrative agent (together with its successors in
such capacity, the "Administrative Agent") and as sole lead arranger, sole
bookrunner and syndication agent (in such capacity, the "Sole Lead Arranger").
RECITALS
WHEREAS, the Company, the Guarantors, the Lenders, the
Administrative Agent and the Sole Lead Arranger entered into a Credit and
Guarantee Agreement, dated as of August 14, 2003 (as amended on September 12,
2003 and on January 13, 2004, and as may be further amended from time to time,
the "Credit Agreement"), pursuant to which the Company borrowed, on a
non-recourse basis as described in the Credit Agreement, $385,000,000 in
aggregate principal amount of First Priority Senior Secured Institutional Term
Loans due 2009 (the "Term Loans");
WHEREAS, the Company, the Guarantors, the Lenders and the
Administrative Agent now wish to amend the Credit 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, capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings assigned to such terms in the Credit Agreement.
2. Amendments. (a) Section 5.07 (Incurrence of Indebtedness
and Issuance of Preferred Equity) of the Agreement is hereby amended, as
follows:
(i) by deleting the "and" at the end of clause (x) of
subsection (b) of such Section;
(ii) by deleting the period and adding "; and" at the end
of clause (xi) of subsection (b) of such Section;
(iii) by adding the following new clause (xii) to the end
of subsection (b) of such Section:
"(xii) the incurrence by the Company of Indebtedness
under the Calpine Credit Agreement as of the date of
its execution and delivery by the parties thereto";
(b) Section 5.09 (Transactions with Affiliates) of the
Agreement is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (xii) of
subsection (b) of such Section;
(ii) changing the number of the old clause (xiii) of
subsection (b) of such Section from (xiii) to (xiv);
(iii) by adding the following new clause (xiii) to
subsection (b) of such Section:
"(xiii) transactions contemplated under the Affiliate
Purchase Agreement, the Calpine Credit Agreement and
the Calpine Pledge Agreement; and";
(c) Section 5.17 (Additional Subsidiaries) of the
Agreement is hereby amended to insert a new subsection (c) at the end of such
Section, as follows:
"(c) Notwithstanding anything to the
contrary in this Section 5.17, (i) the Acquisition
Companies and the Brazos Subsidiaries shall not be
required to comply with the provisions of the first
paragraph of this Section 5.17 and (ii) the Company
shall not be required to comply with the provisions
of the first paragraph of this Section 5.17 with
respect to the Acquisition Companies and the Brazos
Subsidiaries; provided that (x) the Acquisition
Companies and the Brazos Subsidiaries shall become
Guarantors if, in the good faith determination of the
Company, the limitations imposed by the debt
instruments of Calpine Corporation and its
Subsidiaries on the ability of the Acquisition
Companies and the Brazos Subsidiaries to become
Guarantors are no longer applicable, (y) all of the
Equity Interests in each of the Acquisition
Companies, other than such Equity Interests pledged
to Calpine Corporation pursuant to the Calpine Pledge
Agreement, shall be required to become part of the
Collateral within 30 days of the date of acquisition
of such Acquisition Companies by the Company, and (z)
100% of the Equity Interests in each of the
Acquisition Companies shall be required to become
part of the Collateral (in accordance with the terms
and provisions of the Pledge and Security Agreement)
promptly following the termination of the Calpine
Pledge Agreement in accordance with its terms."
-2-
3. Amendments to Defined Terms. The Lenders acknowledge and
agree that (i) the terms "Acquisition Companies," "Affiliate Purchase
Agreement," "Calpine Credit Agreement" and "Calpine Pledge Agreement" as used in
the Credit Agreement have the meanings provided in the Third Supplemental
Indenture, dated as of March 5, 2004 (the "Third Supplemental Indenture"), to
the Indenture, a copy of which Third Supplemental Indenture is attached as
Appendix A hereto, and (ii) the terms "Excess Cash Flow," "Excluded Assets" and
"Permitted Liens" as used in the Credit Agreement have the meanings provided in
the Indenture, including as amended by the Third Supplemental Indenture.
4. Current Lenders. The Administrative Agent agrees and
acknowledges that Appendix B hereto correctly identifies, as of the date this
Amendment becomes effective in accordance with Section 5 hereof, all of the
Lenders and the aggregate outstanding Term Loans held by each Lender.
5. Representations and Warranties. The Company and each
Guarantor hereby represents and warrants to each Lender and the Administrative
Agent that (a) this Amendment has been duly authorized, executed and delivered
by the Company or Guarantor, as applicable, 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 generally applicability relating to or affecting
creditors' rights and to general equity principles; (b) no Default or Event of
Default has occurred and is continuing under the Credit Agreement; and (c) 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 Guarantor, as applicable, or any order of any governmental agency
or body, or breach or conflict with any material agreement to which the Company
or Guarantor, as applicable, is a party or by which the Company or Guarantor, as
applicable, is bound.
6. Effectiveness. Subject to the immediately succeeding
sentence, this Amendment shall become effective upon receipt by the
Administrative Agent of duly executed counterparts of this Amendment signed on
behalf of the Company, the Guarantors and the Requisite Lenders. The operative
effect of this Amendment is conditioned upon the occurrence of the consummation
of the transactions contemplated by the Purchase Agreement, dated as of February
18, 2004, between Calpine Brazos Valley Energy Center GP, LLC and Calpine Brazos
Valley Energy Center LP, LLC, as purchasers, and Brazos Valley Special Purpose
GP Limited Partnership and Brazos Valley Special Purpose LP Limited Partnership,
as sellers.
7. Continuing Effect of the Credit 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 Lenders, the Administrative Agent, the Company or the Guarantors
under the Credit Agreement and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit 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 or the Guarantors to a consent to, or a waiver,
amendment, modification or other change of, any of the terms,
-3-
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. After this Amendment becomes effective in
accordance with Section 5 hereof, any reference to the Credit Agreement shall
mean the Credit Agreement as amended and modified hereby.
8. 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.
9. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. The delivery of an executed signature of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
10. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-4-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
By: /s/ ERIC N. PRYOR
--------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CALPINE HERMISTON, LLC
By: /s/ ERIC N. PRYOR
--------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CPN HERMISTON, LLC
By: /s/ ERIC N. PRYOR
--------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
HERMISTON POWER PARTNERSHIP
By: /s/ ERIC N. PRYOR
--------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Sole Lead
Arranger, Syndication Agent and a Lender
By: /s/ STEVE HICKEY
--------------------------------------
Name: Steve Hickey
Title:
CYPRESS POINT FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
--------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
CITADEL HILL 2000 LTD
as a Lender
By: /s/ S. LOCKHART
--------------------------------------
Name: S. Lockhart
Title: Authorized Signatory
MEDTRONIC INC. - RETIREMENT PLAN
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
NEW JERSEY TRANSIT
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
THE NORTHERN CALIFORNIA NEWSPAPER
GUILD RETIREMENT PLAN
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
THE SEEING EYE, INC.
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
ADVENTIST HEALTH SYSTEM
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
STATE UNIVERSITIES RETIREMENT
SYSTEM OF ILLINOIS
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
METROPOLITAN WEST TOTAL RETURN FUND
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
METROPOLITAN WEST HIGH YIELD BOND FUND
as a Lender
By: /s/ DAVID LIPPMAN
--------------------------------------
Name: David Lippman
Title: Managing Director
CITADEL CREDIT TRADING LTD.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ LEVOYD E. ROBINSON, CFA
--------------------------------------
Name: Levoyd E. Robinson, CFA
Title: Managing Director
CITADEL EQUITY FUND, LTD.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ LEVOYD E. ROBINSON, CFA
--------------------------------------
Name: Levoyd E. Robinson, CFA
Title: Managing Director
STONEHILL INSTITUTIONAL PARTNERS, L.P.
as a Lender
By: /s/ WAYNE TEETSEL
--------------------------------------
Name: Wayne Teetsel
Title: General Partner
STONEHILL OFFSHORE PARTNERS, LLC
as a Lender
By: Stonehill Advisors LLC
By: /s/ WAYNE TEETSEL
--------------------------------------
Name: Wayne Teetsel
Title: Managing Member
SATELLITE SENIOR INCOME FUND II, LLC
as a Lender
By: Satellite Asset Management, L.P.,
its Manager
By: /s/ DAVID FORD
--------------------------------------
Name: David Ford
Title: Principal
SATELLITE SENIOR INCOME FUND, LLC
as a Lender
By: Satellite Asset Management, L.P.,
its Manager
By: /s/ DAVID FORD
--------------------------------------
Name: David Ford
Title: Principal
PERRY PRINCIPALS INVESTMENTS, L.L.C.
as a Lender
By: /s/ NATHANIEL J. KLIPPER
--------------------------------------
Name: Nathaniel J. Klipper
Title: Managing Director
ATRIUM CDO
as a Lender
By: /s/ ANDREW H. MARSHAK
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
FIRST DOMINION FUNDING II
as a Lender
By: /s/ ANDREW H. MARSHAK
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
CSAM FUNDING I
as a Lender
By: /s/ ANDREW H. MARSHAK
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
CSAM FUNDING II
as a Lender
By: /s/ ANDREW H. MARSHAK
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
CSAM FUNDING III
as a Lender
By: /s/ ANDREW H. MARSHAK
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
OPPENHEIMER SENIOR FLOATING RATE FUND
as a Lender
By: /s/ LISA CHAFFEE
--------------------------------------
Name: Lisa Chaffee
Title: Manager
HARBOURVIEW CLO IV, LTD.
as a Lender
By: /s/ LISA CHAFFEE
--------------------------------------
Name: Lisa Chaffee
Title: Manager
HARBOURVIEW CLO V, LTD.
as a Lender
By: /s/ LISA CHAFFEE
--------------------------------------
Name: Lisa Chaffee
Title: Manager
HBK MASTER FUND L.P.
as a Lender
By: HBK Investments L.P.
Investment Advisor
By: /s/ DAVID C.HALEY
--------------------------------------
Name: David C. Haley
Title: Authorized Signatory
MANCHESTER SECURITIES CORP
as a Lender
By: /s/ ELLIOT GREENBERG
--------------------------------------
Name: Elliot Greenberg
Title: Vice President
LONGHORN CDO II, LTD.
By: Merrill Lynch Investment Managers, L.P.
as Investment Advisor
By: /s/ JAIMIN PATEL
--------------------------------------
Name: Jaimin Patel
Title: Authorized Signatory
LONGHORN CDO III, LTD.
By: Merrill Lynch Investment Managers, L.P.
as Investment Advisor
By: /s/ JAIMIN PATEL
--------------------------------------
Name: Jaimin Patel
Title: Authorized Signatory
SEMINOLE FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
--------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
COLONIAL FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
--------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
FOOTHILL INCOME TRUST, L.P.
as a Lender
By: FIT GP, LLC its general partner
By: /s/ DENNIS R. ASCHER
--------------------------------------
Name: Dennis Ascher
Title: Managing Member
APPENDIX A
TO AMENDMENT NO. 3 UNDER
CREDIT AND GUARANTEE AGREEMENT
THIRD SUPPLEMENTAL INDENTURE
See attached.
THIRD SUPPLEMENTAL INDENTURE
Dated as of March 5, 2004
among
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
CCFC FINANCE CORP.
THE GUARANTORS NAMED HEREIN
and
WILMINGTON TRUST FSB,
as Trustee
Supplementing the Indenture
Dated as of August 14, 2003
and
Amended as of September 18, 2003 and January 14, 2004
THIRD SUPPLEMENTAL INDENTURE, dated as of March 5, 2004 (the
"Third Supplemental Indenture"), among Calpine Construction Finance Company,
L.P., a Delaware limited partnership (the "Company"), CCFC Finance Corp., a
Delaware corporation ("Finance Corp."), the Guarantors and Wilmington Trust FSB,
as trustee (the "Trustee").
WHEREAS, the Company, Finance Corp., the Guarantors and the
Trustee have executed that certain Indenture, dated as of August 14, 2003, as
supplemented by that certain Supplemental Indenture, dated as of September 18,
2003, and as further supplemented by that certain Second Supplemental Indenture,
dated as of January 14, 2004 (as supplemented, the "Indenture"), in connection
with the co-issuance by the Company and Finance Corp. of certain Second Priority
Senior Secured Floating Rate Notes due 2011 (the "Notes");
WHEREAS, pursuant to a Consent Solicitation dated as of
February 20, 2004 (the "Consent Solicitation"), the Company and Finance Corp.
have proposed to supplement and amend certain Sections of the Indenture as
provided herein (the "Proposed Amendments");
WHEREAS, pursuant to Section 9.02 of the Indenture, the
Holders of at least a majority in aggregate principal amount of the Notes have
consented to the Proposed Amendments; and
WHEREAS, the Company and Finance Corp. have directed the
Trustee to execute and deliver this Third Supplemental Indenture in accordance
with the terms of the Indenture;
NOW THEREFORE, for and in consideration of the premises and
mutual covenants herein contained, the Company, Finance Corp., the Guarantors
and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires, capitalized terms used
herein that are not otherwise defined herein shall have the meaning assigned to
such terms in the Indenture.
ARTICLE II
AMENDMENTS TO THE INDENTURE
Section 2.1 Amendments. (a) Section 1.01 (Definitions) of the
Indenture is hereby amended to insert the following new definitions in
alphabetical order in such Section:
"Acquisition Companies" means each of Calpine Brazos Valley
Energy Center GP, LLC, a Delaware limited liability company,
and Calpine Brazos Valley Energy Center LP, LLC, a Delaware
limited liability company.
"Affiliate Purchase Agreement" means that certain Purchase
Agreement, dated as of February 18, 2004, by and between the
Company and Calpine Power Corporation, a Delaware corporation.
"Brazos Subsidiaries" means each of Brazos Valley Energy LP, a
Delaware limited partnership, and Brazos Valley Technology LP,
a Delaware limited partnership.
"Calpine Pledge Agreement" means that certain Pledge Agreement
by and between Calpine Corporation and the Company related to
the pledge by the Company to Calpine of certain Equity
Interests in the Acquisition Subsidiaries.
"Calpine Credit Agreement" means that certain Credit Agreement
by and between Calpine Corporation and the Company, relating
to Indebtedness incurred by the Company to complete the
acquisition, indirectly through the acquisition of the
Acquisition Subsidiaries, of the Brazos Subsidiaries,
including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith,
as amended, modified, renewed, restated or replaced, in whole
or in part, from time to time.
(b) The definition of "Excess Cash Flow" in Section 1.01
(Definitions) of the Indenture is hereby amended by inserting the phrase "other
than Fixed Charges relating to the Calpine Credit Agreement," immediately
following "for such period," at the end of clause (2)(C) of such definition.
(c) The definition of "Excluded Assets" in Section 1.01
(Definitions) of the Indenture is hereby amended, as follows:
(i) by deleting the word "and" at the end of clause (4)
under such definition;
(ii) by deleting the period and adding "; and" at the end
of clause (5) of such definition; and
(iii) by adding the following new clause (6) to the end of
such definition:
(6) (A) that portion of the Capital Stock of each of
the Acquisition Companies pledged by the Company to
Calpine Corporation in accordance with the terms and
provisions of the Calpine Pledge Agreement, until
such time as all amounts outstanding under the
Calpine Credit Agreement have been paid in full and
the Calpine Pledge Agreement has been terminated, (B)
the Equity Interests of the Brazos Subsidiaries and
(C) the real and personal property (i) of the
Acquisition Companies, (ii) of the Brazos
Subsidiaries and (iii) constituting the Brazos Valley
electric generating facility located in Thompsons,
Texas.
2
(d) The definition of "Permitted Liens" in Section 1.01
(Definitions) of the Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (13) of
such definition;
(ii) by deleting the period and adding "; and" at the end
of clause (14) of such definition;
(iii) by adding the following new clause (15) to the end of
such definition:
(15) the pledge by the Company of the Capital
Stock of each of the Acquisition Companies to Calpine
Corporation in accordance with the terms and
provisions of the Calpine Pledge Agreement.
(e) Section 4.09 (Incurrence of Indebtedness and Issuance
of Preferred Equity) of the Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (10) of
the second paragraph of such Section;
(ii) by deleting the period and adding "; and" at the end
of clause (11) of the second paragraph of such
Section;
(iii) by adding the following new clause (12) to the end of
such definition:
(12) the incurrence by the Company of Indebtedness under
the Calpine Credit Agreement as of the date of its
execution and delivery by the parties thereto;
(f) Section 4.11 (Transactions with Affiliates) of the
Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (12) of
the second paragraph of such Section;
(ii) changing the number of the old clause (13) of the
second paragraph of such Section from (13) to (14);
(iii) by adding the following new clause (13) to the second
paragraph of such Section:
"(13) transactions contemplated under the
Affiliate Purchase Agreement, the Calpine Credit
Agreement and the Calpine Pledge Agreement; and"
3
(g) Section 4.21 (Additional Subsidiaries) of the
Indenture is hereby amended to insert a new third paragraph at the end of such
Section, as follows:
"Notwithstanding anything to the contrary in
this Section 4.21, (i) the Acquisition Companies and
the Brazos Subsidiaries shall not be required to
comply with the provisions of the first paragraph of
this Section 4.21 and (ii) the Company shall not be
required to comply with the provisions of the first
paragraph of this Section 4.21 with respect to the
Acquisition Companies and the Brazos Subsidiaries;
provided that (x) the Acquisition Companies and the
Brazos Subsidiaries shall become Guarantors if, in
the good faith determination of the Company, the
limitations imposed by the debt instruments of
Calpine Corporation and its Subsidiaries on the
ability of the Acquisition Companies and the Brazos
Subsidiaries to become Guarantors are no longer
applicable, (y) all of the Equity Interests in each
of the Acquisition Companies, other than such Equity
Interests pledged to Calpine Corporation pursuant to
the Calpine Pledge Agreement, shall be required to
become part of the Collateral within 30 days of the
date of acquisition of such Acquisition Companies by
the Company, and (z) 100% of the Equity Interests in
each of the Acquisition Companies shall be required
to become part of the Collateral (in accordance with
the terms and provisions of the Pledge and Security
Agreement) promptly following the termination of the
Calpine Pledge Agreement in accordance with its
terms."
ARTICLE III
MISCELLANEOUS
Section 3.1 Condition to Operative Effect. The operative
effect of this Third Supplemental Indenture is conditioned upon the occurrence
of the consummation of the transactions contemplated by the Purchase Agreement,
dated as of February 18, 2004, between Calpine Brazos Valley Energy Center GP,
LLC and Calpine Brazos Valley Energy Center LP, LLC, as purchasers, and Brazos
Valley Special Purpose GP Limited Partnership and Brazos Valley Special Purpose
LP Limited Partnership, as sellers.
Section 3.2 Interpretation.
Upon execution and delivery of this Third Supplemental
Indenture, and subject to Section 3.1, the Indenture shall be modified and
amended in accordance with this Third Supplemental Indenture, and all the terms
and conditions of both shall be read together as though they constitute one
instrument, except that, in case of conflict, the provisions of this Third
Supplemental Indenture will control. The Indenture, as modified and amended by
this Third Supplemental Indenture, is hereby ratified and confirmed in all
respects and shall bind every holder of Notes. In case of conflict between the
terms and conditions contained in the Notes and those contained in the
Indenture, as modified and amended by this Third Supplemental
4
Indenture, the provisions of the Indenture, as modified and amended by this
Third Supplemental Indenture, shall control.
Section 3.3 The Trustee.
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Third Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
are made solely by the Company and Finance Corp.
Section 3.4 Certain Duties and Responsibilities of the
Trustee.
In entering into this Third Supplemental Indenture, the
Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability or affording protection to
the Trustee, whether or not elsewhere herein so provided.
Section 3.5 Counterparts.
This Third Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. The delivery of an executed signature of this Third
Supplemental Indenture by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
Section 3.6 Applicable Law.
This Third Supplemental Indenture 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.
* * *
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
By: /s/ ERIC N. PRYOR
--------------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CCFC FINANCE CORP.
By: /s/ ERIC N. PRYOR
--------------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CALPINE HERMISTON, LLC, as a Guarantor
By: /s/ ERIC N. PRYOR
--------------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CPN HERMISTON, LLC, as a Guarantor
By: /s/ ERIC N. PRYOR
--------------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
HERMISTON POWER PARTNERSHIP, as a Guarantor
By: Calpine Hermiston, LLC, its General Partner
By: /s/ ERIC N. PRYOR
--------------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
WILMINGTON TRUST FSB, as Trustee
By: /s/ W. CHRIS SPONENBERG
--------------------------------------------
Name: W. Chris Sponenberg
Title: Authorized Signatory
APPENDIX B
TO AMENDMENT NO. 3 UNDER
CREDIT AND GUARANTEE AGREEMENT
LENDERS AND TERM LOAN HOLDINGS
See attached.