exv4w23w39



 





Exhibit 4.23.39




EXECUTION VERSION




OMNIBUS AMENDMENT TO OPERATIVE DOCUMENTS

AND AGREEMENT – SOUTH POINT




     OMNIBUS AMENDMENT TO OPERATIVE DOCUMENTS AND AGREEMENT – SOUTH POINT (this “Amendment”) dated
as of July 13, 2006, is made by and among (i) SOUTH POINT ENERGY CENTER, LLC, a Delaware limited
liability company (together with its successors and permitted assigns, the “Facility Lessee”), (ii)
CALPINE CORPORATION, a Delaware corporation, (iii) SOUTH POINT HOLDINGS, LLC, a Delaware limited
liability company, as Pledgor under each of the Pledge Agreements (as defined below)(together with
its permitted successors and assigns, the “Pledgor”), (iv) SOUTH POINT OL-1, LLC, a Delaware
limited liability company, (v) SOUTH POINT OL-2, LLC, a Delaware limited liability company, (vi)
SOUTH POINT OL-3, LLC, a Delaware limited liability company, (vii) SOUTH POINT OL-4, LLC, a
Delaware limited liability company (each of the parties described in items (iv) through (vii) above
being an “Owner Lessor” and, collectively, the “Owner Lessors”), (viii) SBR OP-1, LLC, a Delaware
limited liability company, (ix) SBR OP-2, LLC, a Delaware limited liability company, (x) SBR OP-3,
LLC, a Delaware limited liability company, (xi) SBR OP-4, LLC, a Delaware limited liability company
(each of the parties described in items (viii) through (xi) above being together with its
successors and permitted assigns, an “Owner Participant” and, collectively, the “Owner
Participants”), (xii) U.S. BANK NATIONAL ASSOCIATION (as successor to STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION), a national banking association organized and
existing under the laws of the United States, not in its individual capacity, except as expressly
provided herein, but solely as trustee under each of the Collateral Trust Indentures (herein in its
capacity as trustee under each of the Collateral Trust Indentures, together with its successors and
permitted assigns, an “Indenture Trustee”, and herein in its individual capacity called “US Bank”),
(xiii) WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, not in its individual capacity except as
expressly provided herein, but solely as independent manager under each of the LLC Agreements
(herein in its capacity as independent manager under each of the LLC Agreements, together with its
successors and permitted assigns, called the “Lessor Manager” and, collectively, the “Lessor
Managers”, and herein in its individual capacity, together with its successors and permitted
assigns, called the “Trust Company”), (xiv) U.S. BANK NATIONAL ASSOCIATION (as successor to STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION), a national banking association
organized and existing under the laws of the United States, not in its individual capacity, except
as expressly provided herein, but solely as trustee under the Pass Through Trust Agreements (herein
in its capacity as trustee under such Pass Through Trust Agreements, together with its successors
and permitted assigns, the “Pass Through Trustee”, and herein in its individual capacity called
“US Bank”), and (xv) BRSP, LLC, a Delaware limited liability company, as Noteholder.



     WHEREAS, certain of the parties hereto and certain other persons have entered into a series of
transactions in connection with the sale-leaseback financing of a 530 MW gas-fired combined cycle
power plant located near Bullhead City, Arizona (collectively, the “South Point Transactions”),



 









 





     WHEREAS, in connection with the South Point Transactions, certain of the parties hereto and
other persons have entered into the agreements and other documents listed on Schedule A 
hereto (the “South Point Transaction Documents”);



     WHEREAS, in connection with the South Point Transactions, certain of the parties hereto
entered into certain additional documents listed on Schedule B hereto (the “South Point
Collateral Enhancement Documents”), including certain Pledge and Security Agreements (the “Pledge
Agreements”) as described therein;



     WHEREAS, the parties hereto now desire to amend certain of the South Point Transaction
Documents and South Point Collateral Enhancement Documents and to enter into certain other
agreements pursuant to the terms and conditions of this Amendment;



     NOW, THEREFORE, the parties hereto hereby agree as follows:




Section 1. Definitions. Except as otherwise defined or modified in this Agreement, all
capitalized terms shall have the meanings ascribed to them in Appendix A to each
of the Participation Agreements (the “Participation Agreements”) listed on Schedule
A hereto.




Section 2. South Point Transaction Document Amendments. The parties hereto agree, subject
to (and effective upon) the satisfaction of the conditions precedent specified in Section
6 below, to amend certain provisions of the Operative Documents as follows:




	2.01	 	Amendments to Participation Agreements.






	 	(a)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in the following Sections to each of the Participation Agreements are hereby
deleted: Sections 2.3(b), 5.8, 5.9(a) and (b), 5.11, 5.20, 5.21, 5.27, 6.7, 7.1(a)(i),
7.1(d), 7.9, 13.1 (except for clause (b)(vi) thereof) and 13.2.
	 
	 	(b)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in the following Sections to each of the Participation Agreements are hereby
deleted and replaced with “Noteholder” or “Noteholders” respectively: Sections 5.2(b)
and 11.1(v).
	 
	 	(c)	 	The words “any Noteholder,” are hereby added into clauses (iii) and (iv) of
Section 5.25, and to Section 13.1(b)(iv), in each case after the words “the Indenture
Trustee,”.
	 
	 	(d)	 	Each and every reference to the “Pass Through Company” in Section 11.1(v) of
the Participation Agreements is hereby deleted.
	 
	 	(e)	 	Each and every reference to the “Certificateholder” or “Certificateholders” in
the following Sections to each of the Participation Agreements are hereby deleted:
Sections 5.2(b), 5.8, 5.20(a), 6.7 and 13.1(b)(vii).




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	 	(f)	 	Section 6.4 is hereby deleted in its entirety and replaced with the following:
	 
	 	 	 	“Transfer of the Owner Lessor’s Interest. Other than as permitted by the
Operative Documents, each of the Lessor Manager and the Owner Lessor covenants that
it will not assign, pledge, sell, lease, convey or otherwise transfer any of its
then existing right, title or interest in and to the Owner Lessor’s Interest, the
Lessor Estate or the other Operative Documents; provided, however, that if the Owner
Lessor acquires the Lessor Notes outstanding immediately prior to the Settlement
Agreement Effective Date pursuant to Section 4.4(e) of the Collateral Trust
Indenture, it is expressly understood and agreed that nothing in this Section 6.4
shall in any way limit the right of the Owner Lessor to assign, pledge, sell, lease,
convey or otherwise transfer any of its then existing right, title or interest as
Noteholder in and to such Lessor Notes or any right or interest under the Collateral
Trust Indenture accruing or benefiting the holder of any such Lessor Note so
acquired, the right of the Members (as defined in the LLC Agreement) of the Owner
Lessor to direct the Lessor Manager to do the same on behalf of the Owner Lessor, or
the obligation of the Lessor Manager to act as so directed in connection therewith;
provided, further, that nothing herein shall preclude the Owner Lessor from
performing the transactions contemplated under Section 1.3 of the Settlement
Agreement.”
	 
	 	(g)	 	Section 6.6 is hereby deleted in its entirety and replaced with the following:
	 
	 	 	 	“Limitation on Indebtedness and Actions. Each of the Lessor Manager and the
Owner Lessor covenants that it will not incur any Indebtedness nor enter into any
business or activity except as required or expressly permitted by any Operative
Document (it being expressly understood and agreed that nothing in this Section 6.6
shall in any way preclude or limit the Owner Lessor from (x) acquiring, selling,
conveying or otherwise transferring all or any portion of its right, title or
interest as Noteholder in and to any Lessor Note outstanding immediately prior to
the Settlement Agreement Effective Date which is acquired pursuant to Section 4.4(e)
of the Collateral Trust Indenture or any right or interest under the Collateral
Trust Indenture accruing or benefiting the holder of any such Lessor Note so
acquired, the Members (as defined in the LLC Agreement) of the Owner Lessor from
directing the Lessor Manager to do the same on behalf of the Owner Lessor, or the
obligation of the Lessor Manager to act as so directed in connection therewith), (y)
issuing any Settlement Agreement Additional Lessor Notes as contemplated under
Section 2.12 of the Collateral Trust Indenture, or (z) taking any actions expressly
contemplated under Sections 1.3, 1.6.b, and 1.8 of the Settlement Agreement.”
	 
	 	(h)	 	Section 7.7 is hereby amended by adding the following sentence to the end of
the Section:
	 
	 	 	 	“Notwithstanding the foregoing provisions of this Section 7.7, it is expressly
understood and agreed that nothing in this Section 7.7 shall preclude the Owner
Participant from (x) guaranteeing any obligations of any Affiliate of the Owner




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	 	 	 	Participant in connection with any financing of the acquisition by the Owner Lessor
of (1) the Lessor Notes outstanding immediately prior to the Settlement Agreement
Effective Date pursuant to Section 4.4(e) of the Collateral Trust Indenture and (2)
the Settlement Agreement Additional Notes or in connection with any refinancing or
replacement of such financing and/or (y) granting security for any financing
described in (x) above so long as such security does not create an Owner
Participant’s Lien (it being expressly understood and agreed that notwithstanding
the foreoging, any foreclosure on or transfer or other conveyance of any Member
Interest shall be subject to the requirements of Section 7 hereof and the Tax
Indemnity Agreement).”






	 	(i)	 	Section 9.1(a) is hereby amended by inserting the words “, each Noteholder,” in
the fifth line thereof before the words “each Certificateholder”. In addition, each
and every reference to the “Additional Certificates” in Section 9 to each of the
Participation Agreements are hereby deleted.
	 
	 	(j)	 	Notwithstanding any provision to the contrary contained in this Amendment or in
the Operative Documents, the indemnity obligations of Facility Lessee under Section 9.1
of each of the Participation Agreement which are owed to any Certificateholder, the
Pass Through Company in its individual capacity, the Pass Through Trustees, and their
respective Affiliates, successors, assigns, agents, directors, officers and employees
shall be limited solely to any and all Claims to the extent relating to the period
prior to the PTT Indemnity Limitation Date (as defined in the next sentence), and such
obligations (as amended by this paragraph (j)) shall survive after the effective date
of this Amendment; provided however, that this provision shall have no effect with
respect to Sections 5.25 and 13.1(b)(iv) of the Participation Agreement and Section 7.1
of the Facility Lease. The “PTT Indemnity Limitation Date” shall mean the
earlier of (x) the date thirty (30) days after the “Special Distribution Date” (as
defined in the Pass Through Trust Agreements) in respect of the proceeds of the
purchase by the Owner Lessor pursuant to Section 4.4(e) of the Collateral Trust
Indenture of the Lessor Notes and (y) the date that is ninety (90) days after the
Settlement Agreement Effective Date.
	 
	 	(k)	 	Section 9.1(b) is hereby amended by adding the following sentence to the end
thereof:
	 
	 	 	 	“Notwithstanding any provision of any Operative Document, in no event shall South
Point or the Guarantor be obligated to pay or reimburse any CIT Party (as defined in
the Settlement Agreement) for any amount paid or payable to any Certificateholder or
any of their respective Affiliates in connection with or as an inducement to provide
any direction or instruction to the Pass Through Trustee to execute and deliver this
Amendment or any similar amendment to the Broad River Operative Documents.”
	 
	 	(l)	 	Section 9.2(a) is hereby amended by inserting the words “each Noteholder,” in
the fourth line thereof after the words “the Indenture Trustee,”.




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	 	(m)	 	Notwithstanding any provision to the contrary contained in this Amendment or
the Operative Documents, the indemnity obligations of Facility Lessee under Section 9.2
of each of the Participation Agreement which are owed to any Certificateholder, the
Pass Through Company in its individual capacity, the Pass Through Trustees, and their
respective Affiliates, successors, assigns, agents, directors, officers and employees
shall be limited solely to any and all Taxes to the extent relating to the period prior
to the PTT Indemnity Limitation Date (as defined in paragraph (j) above), and such
obligations (as amended by this paragraph (l)) shall survive after the effective date
of this Amendment.
	 
	 	(n)	 	Section 11.1(xii) of each Participation Agreement is hereby deleted in its
entirety and is replaced by the following:
	 
	 	 	 	“(xii) the Facility Lessee shall pay to the Owner Participant a fee of $100,000 for
each such financing other than the first financing; and”
	 
	 	(o)	 	The words “any Noteholder,” are hereby added into Section 13.1(b)(iv) after the
words “the Indenture Trustee,”.
	 
	 	(p)	 	Section 14.4 of each Participation Agreement is hereby deleted in its entirety
and replaced with the following:
	 
	 	 	 	“14.4 Amendments and Waivers. No term, covenant, agreement or condition of
this Agreement may be terminated, amended or compliance therewith waived (either
generally or in a particular instance, retroactively or prospectively) except by an
instrument or instruments in writing executed by each party hereto; provided,
however, that the consent from, or the execution of a written instrument by, the
Pass Through Trustees and the Pass Through Company will not be required for any
termination, amendment or waiver entered into after the effective date of the
Omnibus Amendment unless any such termination, amendment or waiver is with respect
any rights of the Pass Through Trustees, the Pass Through Company or any
Certificateholder which expressly survive after the effective date of the Omnibus
Amendment and would adversely affect any of the rights of the Pass Through Trustees,
the Pass Through Company or any Certificateholder thereunder.”
	 
	 	(q)	 	Section 14.13(d) of each Participation Agreement is hereby amended as follows:
the final sentence of Section 15.13(d) beginning with the phrase “In connection with
any such discretionary acts . . .” is hereby deleted in its entirety.
	 
	 	(r)	 	Section 14.21 of each Participation Agreement is hereby amended by restating
clause (f) thereof in its entirety to read as follows:






“(f) as may be disclosed to any transferee or proposed transferee of the
Receiving Party or to any financier or prospective financier of such
transferee or proposed transferee or to any party to a CIT Financing
Agreement (as defined in the Settlement Agreement); provided, however,



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that, prior to any such disclosure, any such transferee, proposed transferee,
financier or proposed financier, as the case may be, shall have agreed in
writing to be bound by the terms of this Section 14.21 and shall have
provided the Guarantor evidence that the Guarantor has been made an express
third-party beneficiary of such agreement to be bound by the terms of this
Section 14.21; or”




	 	(s)	 	Section 14.23 of each Participation Agreement is hereby deleted in its entirety
and replaced with the following:
	 
	 	 	 	“14.23 Amendments, Etc. No Operative Document nor any of the terms thereof
(including the terms of this Section 15.23) may be terminated, amended,
supplemented, waived or modified, except by an instrument in writing (a) signed in
the case of a waiver, by the party against which enforcement of such waiver is
sought, and no such waiver shall become effective unless signed copies thereof shall
have been delivered to each such party or (b) in the case of termination,
amendments, supplements or modifications, consented to by all parties hereto;
provided, however, that the consent of the Facility Lessee is not required in the
case of amendments to any Operative Document to which the Facility Lessee is not a
party and which would not increase or accelerate the Facility Lessee’s or the
Guarantor’s obligations under any of the Operative Documents nor impair the Facility
Lessee’s or the Guarantor’s rights under any of the Operative Documents; provided
further that the consent from, or the execution of a written instrument by, the Pass
Through Trustees and the Pass Through Company will not be required for any
termination, amendment or waiver entered into after the effective date of the
Omnibus Amendment unless any such termination, amendment or waiver is with respect
any rights of the Pass Through Trustees, the Pass Through Company or any
Certificateholder which expressly survive after the effective date of the Omnibus
Amendment and would adversely affect any of the rights of the Pass Through Trustees,
the Pass Through Company or any Certificateholder thereunder. Notwithstanding the
foregoing, Section 5.6 of the Collateral Trust Indenture shall not be amended
without the Guarantor’s consent.”
	 
	 	(t)	 	A new Section 15.25 is hereby added to the Participation Agreement as follows:
	 
	 	 	 	“15.25 Settlement Agreement Implementation. The Owner Lessor, Owner
Participant, Facility Lessee, Calpine and BRSP, LLC, a Delaware limited liability
company, as Noteholder, acknowledge receipt of the Settlement Agreement and agree to
comply with and implement the provisions thereof, including Sections 1.3(c), 1.3(d)
and 1.6 thereof.”
	 
	 	(u)	 	If and to the extent (i) the “Effective Date’ under the Settlement Agreement
shall have occurred, (ii) Calpine and/or its Affiliates shall have paid in full (1) all
past due Basic Rent under the Broad River and South Point Facility Leases due and owing
as of May 30, 2006 together with (2) interest thereon at the Overdue Rate
through (and including) the date of cure, and (3) the reasonable fees and expenses
of the parties to the Overall Transactions, in each case in accordance with and as




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	 	 	 	contemplated by that certain Order (I) Authorizing and Approving the Settlement
Agreement between the Calpine Parties and the CIT Parties Regarding (A) Amendments
to Contracts and Leases Related to Broad River and South Pont Facilities; (B)
Assumption of Such Contracts and Leases, as Amended; (C) Assignment of Broad River
Power Purchase Agreements; (II) Granting Shortened Notice for a Hearing on the Same;
and (III) Granting Other Related Relief, dated June 27, 2006, and in the case of the
preceding clause (ii)(3), the Second Amended Final Order Authorizing Use of Cash
Collateral and Granting Adequate Protection [Docket No. 881], dated February 24,
2006, and (iii) the Settlement Agreement Additional Notes under the Collateral Trust
Indentures for each of Broad River and South Point shall have been issued by each
Owner Lessor in the Settlement Agreement Additional Lessor Notes Principal Amount
under such Collateral Trust Indenture, then notwithstanding anything to the contrary
contained in Section 9.1 of the Participation Agreement or in any other Operative
Document neither the Owner Lessors nor the Owner Participants will assert against or
seek from any Lessee any Supplemental Rent under Section 9.1 of the Participation
Agreements in respect of any amounts paid by the Owner Lessor or any of its
Affiliates in order to cure the May 30, 2006 payment defaults under the Lessor
Notes.






	2.02	 	Amendments Appendix A to Participation Agreements. Appendix A to each of the
Participation Agreements shall be amended as follows:






	 	(a)	 	The term “Amendment Date Bankruptcy Case” is hereby added as follows:
	 
	 	 	 	“Amendment Date Bankruptcy Case” shall mean those certain jointly administered cases
under chapter 11 of title 11 of the United States Code pending on the date of the
Amendment in the United States Bankruptcy Court for the Southern District of New
York under the name In re Calpine Corp., et. al., No. 05-60200 (BRL)
(Jointly Administered).”
	 
	 	(b)	 	Upon Calpine Corporation’s and Facility Lessee’s emergence, as debtors and
debtors in possession, from the Amendment Date Bankruptcy Case, the term “Calpine
Guaranty” shall be replaced in its entirety by the following:
	 
	 	 	 	“Calpine Guaranty” shall mean the Amended and Restated Calpine Guaranty and Payment
Agreement, among Calpine, Owner Lessor and Owner Participant, in substantially the
form attached as Exhibit C-1 to the Settlement Agreement.”
	 
	 	(c)	 	The term “Certificate Purchase Agreement” is hereby deleted and all references
to the Certificate Purchase Agreement in each and all of the Operative Documents are
hereby deleted.
	 
	 	(d)	 	The terms “Certificate Purchase Agreement” and “Pass Through Trust Agreement”
are hereby deleted from the definition of the term “Operative
Documents” and all references to the Certificate Purchase Agreement and the 




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	 	 	 	Pass Through Trust Agreement as an “Operative Document” in each and all of the Operative
Documents are hereby deleted.






	 	(e)	 	The term “Lessor Estate” is hereby replaced in its entirety with the following:
	 
	 	 	 	“Lessor Estate” shall mean all the estate, right, title and interest of the Owner
Lessor in, to and under the Undivided Interest, the Ground Interest and the
Operative Documents (other than in (x) its right, title and interest as Noteholder
in the Lessor Notes acquired pursuant to Section 4.4(e) of the Collateral Trust
Indenture and (y) any right or interest under the Collateral Trust Indenture
accruing or benefiting the holder of a Lessor Note so acquired), including all funds
advanced to the Owner Lessor by the Owner Participant, all installments and other
payments of Periodic Rent, Supplemental Rent or Termination Value under the Facility
Lease, condemnation awards, purchase price, sale proceeds, insurance proceeds and
all other proceeds, rights and interests of any kind for or with respect to the
estate, right, title and interest of the Owner Lessor in, to and under the Undivided
Interest, the Ground Interest and the Operative Documents (other than in (x) the
Lessor Notes acquired pursuant to Section 4.4(e) of the Collateral Trust Indenture
and (y) any right or interest under the Collateral Trust Indenture accruing or
benefiting the holder of a Lessor Note so acquired) and the Ground Lease and any of
the foregoing, but shall not include Excepted Payments and the proceeds of the sale
of the Settlement Agreement Additional Lessor Notes.”
	 
	 	(f)	 	The term “Lessor Note(s)” is hereby replaced in its entirety with the
following:
	 
	 	 	 	“Lessor Note(s)” shall mean, individually or collectively as the context may
require, the Initial Lessor Notes, Additional Lessor Notes and Settlement Agreement
Additional Lessor Notes, each issued pursuant to the Collateral Trust Indenture.”
	 
	 	(g)	 	The term “Make-Whole Amount” is hereby replaced in its entirety with the
following:
	 
	 	 	 	“Make-Whole Amount” shall mean, with respect to any Lessor Note subject to
redemption pursuant to the Lease Indenture, an amount not less than zero and is
equal to the greater of (x) the lesser of 5% of the outstanding principal amount
being redeemed for such Lessor Note or the Discounted Present Value calculated for
such Lessor Note, and (y) the cost to unwind, terminate and settle any interest rate
hedge in place with respect to the indebtedness evidenced by such Lessor Note;
provided, however, that in no event shall the Make-Whole Amount with respect to any
Lessor Note be greater than the Make-Whole Amount (as such term is defined in
Annex A to the Participation Agreement in existence on the date that the
Settlement Agreement has been executed and delivered by the parties thereto) which
would otherwise be payable pursuant to a refinancing of the Lessor Notes assuming
that such Make-Whole Amount was calculated on the same date and for
an identical prepayment of principal as the actual refinancing of the Lessor Notes.





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	 	 	 	For purposes of this definition, the “Discounted Present Value” of any Lessor Note
subject to redemption pursuant to the Lease Indenture shall be equal to the
discounted present value, as of the date of redemption, of all principal and
interest payments scheduled to become due in respect of such Lessor Note, after the
date of such redemption calculated using a discount rate equal to the sum of (i) the
yield to maturity on the U.S. Treasury security having an average life equal to the
remaining average life of such Lessor Note and trading in the secondary market at
the price closest to par and (ii) 50 basis points; provided, however, that if there
is no U.S. Treasury security having an average life equal to the remaining average
life of such Lessor Note, such discount rate shall be calculated using a yield to
maturity interpolated or extrapolated on a straight-line basis (rounding to the
nearest calendar month, if necessary) from the yields to maturity for two U.S.
Treasury securities having average lives most closely corresponding to the remaining
life of such Lessor Note and trading in the secondary market at the price closest to
par.






	 	(h)	 	The term “Omnibus Amendment” is hereby added as follows:
	 
	 	 	 	“Omnibus Amendment” shall mean that certain Omnibus Amendment to Operative Documents
and Agreement – South Point, dated as of July 13, 2006, among, inter alia, the
Facility Lessee, Calpine, the Owner Lessor, the Owner Participant, the Indenture
Trustee, the Lessor Manager and the Pass Through Trustee.”
	 
	 	(i)	 	The term “Owner Participant’s Lien(s)” is hereby amended by adding the
following sentence to the end of the existing definition:
	 
	 	 	 	“Notwithstanding the foregoing or anything to the contrary contained in any
Operative Document, “Owner Participant’s Lien(s)” shall not include (x) any Lien on
the Member Interest or on any other assets, property or rights of the Owner
Participant granted in connection with any financing of the Owner Lessor’s
acquisition of any Lessor Notes pursuant to Section 4.4(e) of the Collateral Trust
Indenture or any refinancing or replacement of such financing so long as the Liens
so granted do not include the Lessor Estate, the Facility Site, or any part of any
thereof or any interest therein, and (y) any interest of the Owner Participant in
the proceeds of the sale by the Owner Lessor of the Settlement Agreement Additional
Lessor Notes.”
	 
	 	(j)	 	The term “Pledge Agreement” is hereby added as follows:
	 
	 	 	 	“Pledge Agreement” shall mean that certain Pledge and Security Agreement, dated as
of September 30, 2003, by and among South Point Holdings, LLC, Calpine, South Point
and the Owner Lessor.”
	 
	 	(k)	 	The term “RockGen Calpine Guaranties” is hereby deleted from the definition of
the term “Other Calpine Guaranties” and all references to the “Other Calpine
Guaranties” in each and all of the Operative Documents will be deemed to mean




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	 	 	 	only
the Other South Point Calpine Guaranties and the Broad River Calpine
Guaranties.
	 
	 	(l)	 	The term “RockGen Facility Leases” is hereby deleted from the definition of the
term “Other Facility Leases” and all references to the “Other Facility Leases” in each
and all of the Operative Documents will be deemed to mean only the Other South Point
Facility Leases and the Broad River Facility Leases.
	 
	 	(m)	 	The term “RockGen Owner Lessors” is hereby deleted from the definition of the
term “Other Owner Lessors” and all references to the “Other Owner Lessors” in each and
all of the Operative Documents will be deemed to mean only the Other South Point Owner
Lessors and the Broad River Owner Lessors.
	 
	 	(n)	 	The term “RockGen” is hereby deleted and all references to RockGen in each and
all of the Operative Documents are hereby deleted.
	 
	 	(o)	 	The term “RockGen Bills of Sale” is hereby deleted and all references to the
RockGen Bills of Sale in each and all of the Operative Documents are hereby deleted.
	 
	 	(p)	 	The term “RockGen Calpine Guaranties” is hereby deleted and all references to
the RockGen Calpine Guaranties in each and all of the Operative Documents are hereby
deleted.
	 
	 	(q)	 	The term “RockGen Collateral Trust Indentures” is hereby deleted and all
references to the RockGen Collateral Trust Indentures in each and all of the Operative
Documents are hereby deleted.
	 
	 	(r)	 	The term “RockGen Facility Leases” is hereby deleted and all references to the
RockGen Facility Leases in each and all of the Operative Documents are hereby deleted.
	 
	 	(s)	 	The term “RockGen Facility Lessee” is hereby deleted and all references to the
RockGen Facility Lessee in each and all of the Operative Documents are hereby deleted.
	 
	 	(t)	 	The term “RockGen Facility Site” is hereby deleted and all references to the
RockGen Facility Site in each and all of the Operative Documents are hereby deleted.
	 
	 	(u)	 	The term “RockGen Facility Site Leases” is hereby deleted and all references to
the RockGen Facility Site Leases in each and all of the Operative Documents are hereby
deleted.
	 
	 	(v)	 	The term “RockGen Ground Interests” is hereby deleted and all references to the
RockGen Ground Interests in each and all of the Operative Documents are hereby deleted.




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	 	(w)	 	The term “RockGen Indenture Trustees” is hereby deleted and all references to
the RockGen Indenture Trustees in each and all of the Operative Documents are hereby
deleted.
	 
	 	(x)	 	The term “RockGen Lease Transactions” is hereby deleted and all references to
the RockGen Lease Transactions in each and all of the Operative Documents are hereby
deleted.
	 
	 	(y)	 	The term “RockGen Lessor Managers” is hereby deleted and all references to the
RockGen Lessor Managers in each and all of the Operative Documents are hereby deleted.
	 
	 	(z)	 	The term “RockGen Owner Lessors” is hereby deleted and all references to the
RockGen Owner Lessors in each and all of the Operative Documents are hereby deleted.
	 
	 	(aa)	 	The term “RockGen Owner Participants” is hereby deleted and all references to
the RockGen Owner Participants in each and all of the Operative Documents are hereby
deleted.
	 
	 	(bb)	 	The term “RockGen Operative Documents” is hereby deleted and all references to
the RockGen Operative Documents in each and all of the Operative Documents are hereby
deleted.
	 
	 	(cc)	 	The term “RockGen Overall Transaction” is hereby deleted and all references to
the RockGen Overall Transaction in each and all of the Operative Documents are hereby
deleted.
	 
	 	(dd)	 	The term “RockGen Participation Agreements” is hereby deleted and all
references to the RockGen Participation Agreements in each and all of the Operative
Documents are hereby deleted.
	 
	 	(ee)	 	The term “RockGen Undivided Interests” is hereby deleted and all references to
the RockGen Undivided Interests in each and all of the Operative Documents are hereby
deleted.
	 
	 	(ff)	 	The term “Settlement Agreement” is hereby added as follows:
	 
	 	 	 	“Settlement Agreement” shall mean that certain Settlement Agreement, dated as of
June 14, 2006, among, inter alia, Calpine, certain of controlled subsidiaries of
Calpine (including the Facility Lessee), CIT Credit Group USA Inc., and the Owner
Lessor, as amended by that certain Clarification and Amendment Letter dated as of
June 26, 2006 and as may be further amended from time to time.”
	 
	 	(gg)	 	The term “Settlement Agreement Additional Lessor Notes” is hereby added as
follows:




11









 












	 	 	 	“Settlement Agreement Additional Lessor Notes” shall have the meaning set forth in
Section 2.12(a) of the Collateral Trust Indenture.”
	 
	 	(hh)	 	The term “Settlement Agreement Effective Date” is hereby added as follows:
	 
	 	 	 	“Settlement Agreement Effective Date” shall mean the “Effective Date” described in
Section 2.2 of the Settlement Agreement.”






	2.03	 	Amendments to Facility Leases. Each of the Facility Leases shall be amended
as follows:






	 	(a)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in the following Sections to each of the Facility Leases are hereby deleted:
Sections 3.4, 5.3, 9, 10.1, 10.3 (except for the last paragraph of paragraph (e)
thereof), 12, 13.1(a), 13.2(a), 14.1, 16(b), 16(d) and 16(j).
	 
	 	(b)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in the following Sections to each of the Facility Leases are hereby deleted
and replaced with “Noteholder” or “Noteholders” respectively: Sections 8.1, 10.2,
10.3(e) (only with respect to the last paragraph thereof), 13.3, 14.3, 14.4, 17.1 and
19(i).
	 
	 	(c)	 	The words “any Noteholder,” are hereby added into clauses (3) and (4) of
Section 7.1 in each case after the words “the Indenture Trustee,”.
	 
	 	(d)	 	Each and every reference to the “Pass Through Company” in the following
Sections to each of the Facility Leases are hereby deleted: Sections 3.4(b), 8.1,
10.2(a), 10.3, 13.3, 14.3, 14.4, 17.1, and 19(i).
	 
	 	(e)	 	Each and every reference to the “Certificateholder” or “Certificateholders” in
the following Sections to each of the Facility Leases are hereby deleted: Sections
8.1, 10.2(c) and 13.4.
	 
	 	(f)	 	Section 16(g) of each Facility Lease is hereby deleted in its entirety and
replaced with the following:






	 	“(g) 	 	 except for the Amendment Date Bankruptcy Case (other than any
conversion of the Amendment Date Bankruptcy Case into a Chapter 7 proceeding),
the Facility Lessee or Calpine shall (i) commence a voluntary case or other
proceeding seeking relief under Title 11 of the Bankruptcy Code or liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect, or
apply for or consent to the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or (ii) consent to, or fail to controvert in a timely manner, any
such relief or the appointment of or taking possession by any such official in
any voluntary case or other proceeding commenced against it, or (iii) file an
answer admitting the material allegations of a




12









 






	 	 	 	petition filed against it in any such proceeding, or (iv) make a general
assignment for the benefit of creditors;”






	 	(g)	 	Section 16(h) of each Facility Lease is hereby deleted in its entirety and
replaced with the following:






	 	“(h) 	 	 except for the Amendment Date Bankruptcy Case (other than any
conversion of the Amendment Date Bankruptcy Case into a Chapter 7 proceeding),
an involuntary case or other proceeding shall be commenced against the Facility
Lessee or Calpine seeking (i) liquidation, reorganization or other relief with
respect to it or its debts under Title 11 of the Bankruptcy Code or any
bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii)
the appointment of a trustee, receiver, liquidator, custodian or other similar
official with respect to it or any substantial part of its property or (iii)
the winding-up or liquidation of such Person; and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60
days;”






	2.04	 	Amendments to Collateral Trust Indenture. Each of the Collateral Trust
Indentures shall be amended as follows:






	 	(a)	 	Clause (1) of the Granting Clause is hereby deleted in its entirety and
replaced with the following which shall constitute the grant of a first priority
security interest in, and mortgage lien on, the property described for all purposes of
this Collateral Trust Indenture:
	 
	 	 	 	“(1) the Undivided Interest, the Owner Lessor’s interest in any Components; the
Owner Lessor’s interest in any Improvements; the Ground Interest; the Facility
Lease and all payments of any kind by the Facility Lessee thereunder (including
Rent); any rights of the Owner Lessor as assignee of the Facility Lessee under the
Facility Lease; the Facility Site Lease and all payments of any kind by the
Facility Lessee thereunder; the Assignment Agreement (and all rights with respect to
the Ground Lease conveyed thereby); the Owner Lessor’s interest in all tangible
property located on or at or attached to the Facility Site as to which an interest
in such tangible property arises under applicable real estate law
(“fixtures”); the Calpine Guaranty, the Ownership and Operation Agreement
and all and any interest in any property now or hereafter granted to the Owner
Lessor pursuant to any provision of the Facility Lease or the Ground Lease; the
Ground Lease, the Pledge Agreement and each other Operative Document to which the
Owner Lessor is a party other than the Tax Indemnity Agreement, the LLC Agreement,
any Lessor Notes which the Owner Lessor may acquire pursuant to Section 4.4(e) of
this Indenture and any right or interest under this Indenture accruing or benefiting
the holder of a Lessor Note acquired by the Owner Lessor pursuant to Section 4.4(e)
of this Indenture (the Undivided Interest, the Owner Lessor’s interest in any
Components, the Owner Lessor’s interest in any fixtures, Improvements and the Ground
Interest are collectively referred to as the “Property Interest” and the
documents specifically referred to above in this paragraph (1) are




13









 






	 	 	 	collectively referred to as the “Assigned Documents”), including, without
limitation, (x) all rights of the Owner Lessor to receive any payments or other
amounts or, subject to Section 5.6 hereof, to exercise any election or option or to
make any decision or determination or to give or receive any notice, consent, waiver
or approval or to make any demand or to take any other action under or in respect of
any such document, to accept surrender or redelivery of the Property Interest or any
part thereof, as well as all the rights, powers and remedies on the part of the
Owner Lessor, whether acting under any such document or by statute or at law or in
equity or otherwise, arising out of any Lease Default or Lease Event of Default and
(y) any right to restitution from the Facility Lessee, any sublessee or any other
person in respect of any determination of invalidity of any such document;”






	 	(b)	 	The phrase “or any Certificateholder” in each and every instance where it
appears in Section 2.10(b) is hereby deleted.
	 
	 	 	 	Section 2.10(b)(iii) is hereby deleted in its entirety.
	 
	 	(c)	 	Section 2.10(f) is hereby amended as follows: the final clause of first
sentence of the first paragraph of Section 2.10(f) which reads “; provided, that no
notice shall be required so long as the Pass Through Trustee and the Indenture Trustee
are the same entity” is hereby deleted.
	 
	 	(d)	 	Section 2.12(a) is hereby amended by adding the following sentences to the end
of such Section:
	 
	 	 	 	“Notwithstanding anything to the contrary contained herein or in any other
Operative Document, the Owner Lessor shall issue Additional Lessor Notes on the
Settlement Agreement Effective Date in an aggregate principal amount equal to, for
each series of Initial Lessor Notes, the excess of (1) the aggregate principal
amount of the Initial Lessor Notes of such series prepaid and repaid during the
period between May 10, 2006, through (and including) the Settlement Agreement
Effective Date over (2) the aggregate principal amount of the Initial Lessor Notes
of such series which would have been repaid during such period if payments received
by the Indenture Trustee hereunder had been applied in accordance with Section
3.1(b) hereof (such Additional Lessor Notes hereinafter “Settlement Agreement
Additional Lessor Notes” and the aggregate principal amount of such Settlement
Agreement Additional Lessor Notes hereinafter the “Settlement Agreement Additional
Lessor Notes Principal Amount”). If at the time the Indenture Trustee returns the
Lessor Notes purchased by the Owner Lessor pursuant to Section 4.4(e) of the
Indenture to the registered owner thereof following registration of such Lessor
Notes in the Registrar it is determined that the sum of (a) the principal amount of
such Lessor Notes of any series plus (b) the principal amount of Settlement
Agreement Additional Notes of such series issued on the Settlement Agreement
Effective Date exceeds or is less than $57,800,000 (in the case of series A) or
$48,500,000 (in the case of series B), as applicable, a




14









 






	 	 	 	principal amount of Lessor Notes of such series shall be deemed retired in the
amount of such excess or a principal amount of Settlement Agreement Additional Notes
shall be issued in the amount of such deficiency, as the case may be, with
retroactive effect to the Settlement Agreement Effective Date and accrued interest
shall be appropriately adjusted to give effect to the foregoing. Any additional
Settlement Agreement Additional Notes issued as a consequence of the preceding
sentence shall be authenticated by the Indenture Trustee. The Settlement Agreement
Additional Lessor Notes shall be issued and sold to BRSP, LLC (the “Settlement
Agreement Additional Note Purchaser”) and shall be in the form attached as Schedule
C of the Omnibus Amendment with the principal amounts and other information inserted
therein to be approved by Owner Lessor and Broad River. Notwithstanding any
provision of any Operative Document (including Sections 2.12(b), 2.12(c), and
2.12(d) of this Indenture), upon the delivery by the Owner Lessor to the Indenture
Trustee of a written order on the Settlement Agreement Effective Date or any time
thereafter, the Indenture Trustee shall execute and authenticate the Settlement
Agreement Additional Lessor Notes, and upon payment to the Owner Lessor of the
Settlement Agreement Additional Lessor Notes Principal Amount, the Indenture Trustee
shall deliver such Settlement Agreement Additional Lessor Notes to the Settlement
Agreement Additional Note Purchaser. For all purposes of the Operative Documents,
the Settlement Agreement Additional Notes shall be deemed Additional Lessor Notes.”






	 	(e)	 	The phrase “or the Pass Through Trust Agreements” in each and every instance
where it appears in Section 8.2 is hereby deleted.
	 
	 	(f)	 	The phrase “rules or regulations of any exchange or quotation system on which
the Certificates are listed” in clause (h) of Section 8.2 is hereby deleted.






	2.05	 	Amendments to Calpine Guaranty. Each of the Calpine Guaranties shall be
amended as follows:






	 	(a)	 	The term “Certificateholders” in Section 2.1(a)(5)(B) is hereby deleted and
replaced with the term “Noteholders”.
	 
	 	(b)	 	Section 3.2 is hereby amended as follows:






(i) the term “so long as the Certificates remain outstanding” in the second sentence
of Section 3.2(a) is hereby replaced with the phrase “so long as the Lien of the
Collateral Trust Indenture remains outstanding”;




(ii) the phrase “and the Pass Through Trustee” in each and every instance where it
appears in Section 3.2(a) is hereby deleted;




(iii) Section 3.2(c) is hereby amended as follows: the beginning clause of the
second sentence of Section 3.2(c) which provides:



15









 






“Notwithstanding the foregoing provision in this clause (c), the Guarantor
shall, within 120 days after the close of each fiscal year of the Guarantor
in which Certificates are outstanding hereunder, file with the Owner
Participant, and if the Certificates are outstanding during any part of such
fiscal year, the Indenture Trustee and the Pass Through Trustee,”




is hereby replaced with the following:




“Notwithstanding the foregoing provision in this clause (c), the Guarantor
shall, within 120 days after the close of each fiscal year of the Guarantor
in which the Lessor Notes are outstanding hereunder, file with the Owner
Participant, and if the Lessor Notes are outstanding during any part of such
fiscal year, the Indenture Trustee,”




(iv) the phrase “and the Pass Through Trustee” and “or the Pass Through Trustee” in
each and every instance where it appears in Section 3.2(d) are hereby deleted; and




(v) the last paragraph of Section 3.2 beginning with the phrase “So long as the
Indenture Trustee . . .” is hereby deleted in its entirety.




	 	(c)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in Sections 3.3, 3.6, 7.1(d) and 8.4(b)(vii) are hereby deleted.
	 
	 	(d)	 	The phrase “or any Certificateholder” in Section 3.3(iv) is hereby deleted.
	 
	 	(e)	 	Each and every reference to the “Pass Through Trustee” or “Pass Through
Trustees” in Sections 3.3, 3.6(ii) and (iii), 7.1 and 8.4 are hereby deleted.
	 
	 	(f)	 	Notwithstanding any provision to the contrary contained in this Amendment or in
Section 4 of each Calpine Guaranty, the Pass Through Trustees and the Pass Through
Company shall be a Beneficiary under each Calpine Guaranty solely to the extent that
Obligations (as defined in each Calpine Guaranty) owed to such Persons relate to or are
due and payable in respect of the period prior to the PTT Indemnity Limitation Date (as
defined in Section 2.01(j) above).
	 
	 	(g)	 	The phrase “the Certificates (if then outstanding) and” in Section 8.4(b)(v) is
hereby deleted.






	2.06	 	Amendments to OP Parent Guaranties. Each and every reference to the “Pass Through
Trustee” or “Pass Through Trustees” in Section 4 to each of the OP Parent Guaranties are
hereby deleted. In addition, and notwithstanding anything to the contrary contained in this
Amendment or in any OP Parent Guaranty, the Pass Through Trustees shall be a Beneficiaries
under each OP Parent Guaranty solely to the extent that any OP Guarantor Obligations (as
defined in each OP Parent Guaranty) owed to such Pass Through Trustees relate to or are due
and payable in respect of the period prior to the PTT Indemnity Limitation Date (as defined in
Section 2.01(j) above).




16









 












	2.07	 	Amendments to LLC Agreement.











	 	(a)	 	Section 2.5 is hereby deleted in its entirety and replaced with the following:
	 
	 	 	 	“Subject to Section 9.1 hereof, the purposes of the LLC are to receive the Equity
Investment from the Owner Participant, to issue the Lessor Notes pursuant to the
Collateral Trust Indenture, which Lessor Notes shall be secured by the Indenture
Estate, to use all such funds on the Closing Date to acquire and accept an
assignment and transfer of the Undivided Interest and the Ground Interest, to lease
the Undivided Interest and the Ground Interest to the Facility Lessee pursuant to
the Facility Lease and the Facility Site Lease, respectively, to purchase or
otherwise acquire any of the Lessor Notes pursuant to Section 4.4(e) of the
Collateral Trust Indenture, to assign or transfer all or any portion of or interest
in such Lessor Notes to any Person, to issue the Settlement Agreement Additional
Lessor Notes, to take such other actions as may be expressly contemplated under the
Operative Documents and, to the extent not prohibited by the Operative Documents,
the Settlement Agreement, and/or to take such other actions as may be necessary or
appropriate for (or incidental to) any of the foregoing purposes (including, without
limitation, entering into any sale and purchase agreement with any Person with
respect to all or any portion of or interest in the Lessor Notes acquired pursuant
to Section 4.4(e) of the Collateral Trust Indenture and the Settlement Agreement
Additional Lessor Notes), and to otherwise protect and preserve the LLC Assets in
accordance with the terms hereof.”
	 
	 	(b)	 	The second sentence of Section 4.3 is hereby deleted in its entirety and replaced with
the following:
	 
	 	 	 	“Notwithstanding any provision to the contrary contained in this Agreement, the LLC
shall not be required to make a distribution to any Member on account of its
interest in the LLC if such distribution would violate Section 18-607 of the LLC Act
or any other applicable law or any Operative Document; provided, however, that
neither this Section 4.3 nor any other provision of this Agreement or of any
Operative Document shall in any way limit the LLC’s obligation to distribute to the
Members the proceeds from the sale of the Settlement Agreement Additional Lessor
Notes.”
	 
	 	(c)	 	The second sentence of Section 8.3 is hereby deleted in its entirety and replaced with
the following:
	 
	 	 	 	“Notwithstanding anything to the contrary herein contained, however, it is
understood and agreed that (x) all net proceeds received by the Lessor Manager (on
behalf of the LLC) from the sale of the Settlement Agreement Additional Lessor Notes
shall be distributed immediately upon receipt to the Members in proportion to their
Percentage Interests, and (y) the Lessor Manager shall not be obligated to make any
distribution until the funds for such distribution have been received by the Lessor
Manager in cash or other immediately available funds.”




17









 






	 	(d)	 	Sections 9.1(c) and 9.1(d) of the LLC Agreement are each hereby amended by
adding the following sentence at the end of each such Section:
	 
	 	 	 	“Notwithstanding the foregoing or anything to the contrary contained in this
Agreement, nothing in this Agreement shall prevent or preclude the Owner Lessor from
taking any of the following actions (each of which shall be expressly permitted
hereunder): (x) selling any Lessor Notes acquired pursuant to 4.4(e) of any
Collateral Trust Indenture to any Affiliate or issuing any Settlement Agreement
Lessor Notes to any Affiliate, (y) consummating the transactions contemplated in
Section 1.3 of the Settlement Agreement or (z) directing or instructing the
Indenture Trustee to deposit any amounts representing the Equity Portion of Periodic
Rent and/or the Equity Portion of Termination Value directly to any bank account
maintained by (and in the name of) any of its Affiliates.
	 
	 	Section 3. Settlement Agreement Additional Lessor Notes. The parties acknowledge and
agree to the issuance of the Settlement Agreement Additional Lessor Notes, as provided for
in Section 2.12(a) of the Collateral Trust Indenture (as amended by this Amendment), which
Settlement Agreement Additional Lessor Notes shall be issued substantially in the form
attached hereto as Schedule C. The parties additionally acknowledge and agree that,
notwithstanding anything to the contrary contained in any Operative Documents or in any
other agreement or undertaking relating to the Overall Transactions, nothing shall limit
or preclude (i) the Owner Lessors from distributing the proceeds received from the sale of
the Settlement Agreement Additional Lessor Notes to its Member and (ii) the Owner
Participant from distributing any such proceeds to its Member or to any other Affiliate of
the Owner Lessor.
	 
	 	Section 4. Amendments, Modifications and Waivers of Operative Documents Pursuant to
Settlement Agreement. Each party hereto hereby ratifies and consents to the amendments,
modifications and waivers made to the Operative Documents pursuant to the Settlement
Agreement.
	 
	 	Section 5. Continuing Obligations, Preservation of Rights. The parties acknowledge and
agree that all rights and obligations of the Pass Through Trustees, the Pass Through
Company and any Certificateholder under the Operative Documents for any period prior to
the effective date of this Amendment (or, in the case of any rights under the Operative
Documents referred to in Section 2.01(j), 2.01(l) and 2.05(f) above, for any period prior
to the PTT Indemnity Limitation Date referred to in Section 2.01(j) above) shall survive
and shall be subject to the terms and conditions set forth in such Operative Document as
in effect immediately prior to the effectiveness of this Amendment.
	 
	 	Section 6. Certain Clarifications. Each of the parties to each of the Operative Documents
hereby agree and confirm their mutual understanding regarding the intent and
interpretation of the following clauses of the South Point Transaction Documents and the
South Point Collateral Enhancement Documents (without in any manner, except as expressly
and specifically set forth below, otherwise limiting the applicability of any such clause,
the interpretation thereof or the intent set forth therein):




18









 












	6.01	 	Intercompany Loans/Advances. Section 5.15 of each Participation Agreement applies to
and prohibits any and all extensions of credit, loans, advances or other transfers of funds of
any nature (including any thereof to or for the benefit of the Facility Lessee), it being
expressly acknowledged and agreed that, so long as a Lease Event of Default shall not have
occurred and be continuing, Section 5.15 does not apply to or limit any dividend or other
distribution payable solely on, and in respect of, the membership interests of the Facility
Lessee in the nature of a return on or of such membership interests.
	 
	6.02	 	Security Interest. Section 2(a) of each of the Pledge Agreements is hereby amended
by adding a new sentence to the end of such Section as follows:
	 
	 	 	“Notwithstanding anything to the contrary provided herein, except during such time as a
Lease Event of Default shall have occurred and be continuing, Pledgor shall have all rights
to retain and use free of the security interest created hereunder any and all dividends or
other distributions payable on, and in respect of, the membership interests of the Facility
Lessee in the nature of a return on or of such membership interests (collectively, a
“Dividend”) to the extent any such Dividend is paid or distributed in accordance with the
Operative Documents.”






Section 7. Effectiveness. All amendments and other agreements set forth in Sections 2, 3,
4 and 5 of this Amendment shall become effective on the first day (the “Effective Date”)
that all parties hereto shall have executed this Amendment and all conditions precedent as
set forth in Section 2.1 of that certain Settlement Agreement, dated as of June 14, 2006
(the “Settlement Agreement”), among, inter alia, Calpine, certain of controlled
subsidiaries of Calpine (including South Point), CIT Credit Group USA Inc., and the South
Point Owner Lessors, shall have been satisfied or waived in writing, in whole or in part,
by each of the parties thereto.




Section 8. Amendments; Extensions. Except as expressly provided herein, the terms of this
Amendment may be modified, amended or waived only by an instrument in writing executed by
each of the parties hereto.




Section 9. Continuing Effect. Except as expressly provided, amended or modified herein or
in any of the transactions contemplated hereby, the South Point Transaction Documents and
the South Point Collateral Enhancement Documents shall remain unchanged and in full force
and effect, and all rights, powers and remedies of the parties are hereby expressly
reserved.




Section 10. Representations and Warranties. Each Person executing this Amendment
represents, warrants and covenants that he/she has the full right and authority to enter
into this Amendment on behalf of the party hereto on whose behalf such execution is made,
and has the full right and authority to fully bind said party to the terms and obligations
of this Amendment.




Section 11. Counterparts. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument,



19









 





and
any of the parties hereto may execute this Amendment by signing any
such counterpart.


Section 12. Benefit of Agreement. This Amendment is solely for the benefit of the
signatories hereto (and their respective successors and assigns), and no other Person
(including without limitation any other creditor of or claimant against the Facility
Lessee, the Pledgor or Calpine or any member or shareholder of the Facility Lessee, the
Pledgor or Calpine) shall have any rights under, or because of the existence of, this
Amendment.




Section 13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.




Section 14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE OTHER TRANSACTION DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




Section 15. Further Assurances. Each of the parties hereto shall execute all additional
documents and do all acts not specifically referred to herein which are reasonably
necessary to effectuate the intent of this Amendment.




Section 16. Binding Effect. This Amendment shall be binding upon and shall inure to the
benefit of the parties signatory hereto and their respective legal representatives, heirs,
successors and assigns, including, but not limited to, any successor Noteholder or any
chapter 7 or chapter 11 trustee appointed by the Bankruptcy Court.



[SIGNATURE PAGES FOLLOW]




20









 





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




	 	 	 	 	 	 	 
	 	 	SOUTH POINT ENERGY CENTER, LLC,

as Facility Lessee	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Zamir Rauf
 

Name: Zamir Rauf
	 	 
	 

	 	 	 	Title: Authorized Agent	 	 






 









 





	 	 	 	 	 	 	 
	 	 	CALPINE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Zamir Rauf
 

Name: Zamir Rauf
	 	 
	 

	 	 	 	Title: Senior VP	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SOUTH POINT HOLDINGS, LLC,

as Pledgor under each of the Pledge Agreements	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Zamir Rauf
 

Name: Zamir Rauf
	 	 
	 

	 	 	 	Title: Authorized Agent	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SOUTH POINT OL-1, LLC,	 	 
	 	 	as Owner Lessor	 	 
	 
	 	 	 	 	 	 
	 	 	By: WELLS FARGO BANK NORTHWEST,

NATIONAL ASSOCIATION

not in its individual capacity but solely as

Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SOUTH POINT OL-2, LLC,	 	 
	 	 	as Owner Lessor	 	 
	 
	 	 	 	 	 	 
	 	 	By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION

not in its individual capacity but solely as

Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SOUTH POINT OL-3, LLC,	 	 
	 	 	as Owner Lessor	 	 
	 
	 	 	 	 	 	 
	 	 	By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION

not in its individual capacity but solely as

Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SOUTH POINT OL-4, LLC,	 	 
	 	 	as Owner Lessor	 	 
	 
	 	 	 	 	 	 
	 	 	By: WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION

not in its individual capacity but solely as

Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SBR OP-1 LLC,	 	 
	 	 	as Owner Participant	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds 

Title: Vice President
	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SBR OP-2 LLC,	 	 
	 	 	as Owner Participant	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds

Title: Vice President
	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SBR OP-3 LLC,	 	 
	 	 	as Owner Participant	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SBR OP-4 LLC,	 	 
	 	 	as Owner Participant	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 







	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as Indenture Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Pamela J. Wieder
 

Name: Pamela J. Wieder
	 	 
	 

	 	 	 	Title: V.P.	 	 






 









 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as Pass Through Trustee under each of the Pass
Through Trust Agreements	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Pamela J. Wieder
 

Name: Pamela J. Wieder
	 	 
	 

	 	 	 	Title: V.P.	 	 






 









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK NORTHWEST,

  NATIONAL ASSOCIATION,	 	 
	 	 	as Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	BRSP, LLC,	 	 
	 	 	as Noteholder	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	    /s/ Harold J. Schroeder
 

Name: Harold J. Schroeder
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






 









 





Schedule A




South Point Transaction Documents





	 	1.	 	Participation Agreement (SP-1)
	 
	 	2.	 	Participation Agreement (SP-2)
	 
	 	3.	 	Participation Agreement (SP-3)
	 
	 	4.	 	Participation Agreement (SP-4)
	 
	 	5.	 	Assignment Agreement (SP-1)
	 
	 	6.	 	Assignment Agreement (SP-2)
	 
	 	7.	 	Assignment Agreement (SP-3)
	 
	 	8.	 	Assignment Agreement (SP-4)
	 
	 	9.	 	Facility Lease (SP-1)
	 
	 	10.	 	Facility Lease (SP-2)
	 
	 	11.	 	Facility Lease (SP-3)
	 
	 	12.	 	Facility Lease (SP-4)
	 
	 	13.	 	Facility Site Lease (SP-1)
	 
	 	14.	 	Facility Site Lease (SP-2)
	 
	 	15.	 	Facility Site Lease (SP-3)
	 
	 	16.	 	Facility Site Lease (SP-4)
	 
	 	17.	 	Pass Through Trust Agreement A
	 
	 	18.	 	Pass Through Trust Agreement B
	 
	 	19.	 	Tax Indemnity Agreement (SP-1)
	 
	 	20.	 	Tax Indemnity Agreement (SP-2)
	 
	 	21.	 	Tax Indemnity Agreement (SP-3)
	 
	 	22.	 	Tax Indemnity Agreement (SP-4)
	 
	 	23.	 	Certificate Purchase Agreement
	 
	 	24.	 	Ownership and Operation Agreement
	 
	 	25.	 	Collateral Trust Indenture (SP-1)
	 
	 	26.	 	Collateral Trust Indenture (SP-2)
	 
	 	27.	 	Collateral Trust Indenture (SP-3)
	 
	 	28.	 	Collateral Trust Indenture (SP-4)
	 
	 	29.	 	Lessor Notes
	 
	 	30.	 	Certificates
	 
	 	31.	 	Calpine Guaranty (SP-1)
	 
	 	32.	 	Calpine Guaranty (SP-2)
	 
	 	33.	 	Calpine Guaranty (SP-3)
	 
	 	34.	 	Calpine Guaranty (SP-4)
	 
	 	35.	 	OP Parent Guaranty (SP-1)
	 
	 	36.	 	OP Parent Guaranty (SP-2)
	 
	 	37.	 	OP Parent Guaranty (SP-3)
	 
	 	38.	 	OP Parent Guaranty (SP-4)





 









 





Schedule B




South Point Collateral Enhancement Documents





	 	1.	 	Letter Agreement regarding consent and waiver, dated September 30, 2003, among Calpine,
South Point, Broad River, RockGen, U.S. Bank National Association, and each of the Broad
River, South Point and RockGen Owner Participants and each of the Broad River, South Point
and RockGen Owner Lessors
	 
	 	2.	 	Letter Agreement, dated as of September 30, 2003, regarding certain waivers by each
Facility Lessee of rights under 7.1 of the Participation Agreements, among Calpine, South
Point, Broad River, RockGen, and each of the Broad River, South Point and RockGen Owner
Participants and each of the Broad River, South Point and RockGen Owner Lessors
	 
	 	3.	 	Agreement, dated as of September 30, 2003, among Calpine, South Point, Broad River,
RockGen, and Newcourt Capital USA Inc.
	 
	 	4.	 	Pledge and Security Agreement (SP-1), dated September 30, 2003, among South Point
Holdings, LLC, Calpine, South Point and South Point OL-1, LLC
	 
	 	5.	 	Pledge and Security Agreement (SP-2), dated September 30, 2003, among South Point
Holdings, LLC, Calpine, South Point and South Point OL-2, LLC
	 
	 	6.	 	Pledge and Security Agreement (SP-3), dated September 30, 2003, among South Point
Holdings, LLC, Calpine, South Point and South Point OL-3, LLC
	 
	 	7.	 	Pledge and Security Agreement (SP-4), dated September 30, 2003, among South Point
Holdings, LLC, Calpine, South Point and South Point OL-4, LLC
	 
	 	8.	 	Supplemental Indenture (SP-1), dated September 30, 2003, South Point OL-1, LLC and
U.S. Bank National Association
	 
	 	9.	 	Supplemental Indenture (SP-2), dated September 30, 2003, South Point OL-2, LLC and
U.S. Bank National Association
	 
	 	10.	 	Supplemental Indenture (SP-3), dated September 30, 2003, South Point OL-3, LLC
and U.S. Bank National Association
	 
	 	11.	 	Supplemental Indenture (SP-4), dated September 30, 2003, South
Point OL-4, LLC and U.S. Bank National Association




B-1-1









 











Schedule C




FORM OF SOUTH POINT SETTLEMENT AGREEMENT ADDITIONAL

LESSOR NOTES SERIES [A][B]




SOUTH POINT OL-[_], LLC

NONRECOURSE PROMISSORY NOTE (SOUTH POINT-SETTLEMENT

AGREEMENT ADDITIONAL LESSOR NOTES) DUE IN

A SERIES OF INSTALLMENTS OF PRINCIPAL

WITH FINAL PAYMENT DATE

OF MAY 30, [2012] [2019]




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE

SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,

SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT




Issued at: New York, New York




Issue Date: July __, 2006




$[_____]




     SOUTH POINT OL-[_], LLC, a Delaware limited liability company (herein called the “Owner
Lessor”, which term includes any successor person under the Collateral Trust Indenture
hereinafter referred to), hereby promises to pay to BRSP, LLC, or its registered assigns, the
principal sum of $[___], which is due and payable in a series of installments of principal with a
final payment date of May 30, [2012][2019] together with interest at the rate of [8.40 for Series
A][9.825 for Series B]% per annum on the principal remaining unpaid from time to time from and
including the date subsequent to the Issue Date until paid in full. Interest on the outstanding
principal amount under this Note shall be due and payable in arrears semiannually at the rate
specified above, commencing on November 30, 2006, and on each May 30 and November 30 thereafter
until the principal of this Note is paid in full or made available for payment. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.



     The principal of this Note shall be due and payable in installments on each of the
dates set forth on Schedule I hereto. The installment of principal payable on any



B-1-2









 







such date shall be in an aggregate amount equal to the product of the Principal Portion set
forth on Schedule I multiplied by the percentage set forth on Schedule I under the column headed
“Percentage of Principal Amount Payable” for such date unless the Principal Portion has been
prepaid; provided, that the final installment of principal shall be equal to the then unpaid
principal balance of this Note.



     Capitalized terms used in this Note that are not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture of Trust, Mortgage and Security Agreement dated as of
October 18, 2001 (the “Collateral Trust Indenture”), between the Owner Lessor and U.S.
Bank, National Association as successor in interest to State Street Bank and Trust Company of
Connecticut, National Association, as trustee (the “Indenture Trustee”).



     Interest (computed on the basis of a 360-day year of twelve 30-day months) on any overdue
principal and premium, if any, and (to the extent permitted by Applicable Law) any overdue interest
shall be paid, on demand, from the due date thereof at the Overdue Rate for the period during which
any such principal, premium or interest shall be overdue.



     In the event any date on which a payment is due under this Note is not a Business Day, then
payment thereof shall be made on the next succeeding Business Day with the same force and effect as
if made on the date on which such payment was due.



     Except as otherwise specifically provided in the Collateral Trust Indenture and in the
Participation Agreement, all payments of principal, premium, if any, and interest on this Note, and
all payments of any other amounts due hereunder or under the Collateral Trust Indenture shall be
made only from the Indenture Estate, and the Indenture Trustee shall have no obligation for the
payment thereof except to the extent that the Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the terms of Section 3
of the Collateral Trust Indenture. The holder hereof, by its acceptance of this Note, agrees that
it will look solely to the income and proceeds from the Indenture Estate to the extent available
for distribution to the holder hereof, as herein provided, and that, none of the Owner Participant,
the Owner Lessor or the Indenture Trustee is or shall be personally liable to the holder hereof for
any amounts payable under this Note or under the Collateral Trust Indenture, or, except as
expressly provided in the Collateral Trust Indenture or, in the case of the Owner Participant and
the Owner Lessor, the Participation Agreement for any performance to be rendered under the
Collateral



B-1-3









 







Trust Indenture or any Assigned Document or for any liability under the Collateral Trust
Indenture or any Assigned Document.



     The principal of and premium, if any, and interest on this Note shall be paid by the
Indenture Trustee, without any presentment or surrender of this Note, except that, in the case of
the final payment in respect of this Note, this Note shall be surrendered to the Indenture Trustee,
by mailing a check for the amount then due and payable, in New York Clearing House funds, to the
Noteholder, at the last address of the Noteholder appearing on the Note Register, or by whichever
of the following methods specified by notice from the Noteholder to the Indenture Trustee: (a) by
crediting the amount to be distributed to the Noteholder to an account maintained by the Noteholder
with the Indenture Trustee, (b) by making such payment to the Noteholder in immediately available
funds at the Indenture Trustee Office, or (c) by transferring such amount in immediately available
funds for the account of the Noteholder to the banking institution having bank wire transfer
facilities as shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be made (i) as soon as
practicable prior to the close of business on the date the amounts to be distributed by the
Indenture Trustee are actually received by the Indenture Trustee if such amounts are received by
12:00 noon, New York City time, on a Business Day or (ii) on the next succeeding Business Day if
received after such time or if received on any day other than a Business Day. Prior to due
presentment for registration of transfer of this Note, the Owner Lessor and the Indenture Trustee
may deem and treat the Person in whose name this Note is registered on the Note Register as the
absolute owner and holder of this Note for the purpose of receiving payment of all amounts payable
with respect to this Note and for all other purposes, and neither the Owner Lessor nor the
Indenture Trustee shall be affected by any notice to the contrary. All payments made on this Note
in accordance with the provisions of this paragraph shall be valid and effective to satisfy and
discharge the liability on this Note to the extent of the sums so paid and neither the Indenture
Trustee nor the Owner Lessor shall have any liability in respect of such payment.



     The holder hereof, by its acceptance of this Note, agrees that each payment received by it
hereunder shall be applied in the manner set forth in Section 2.7 of the Collateral Trust
Indenture, which provides that each payment on the Note shall be applied as follows:
first, to the payment of accrued interest (including interest on overdue principal and the
Make Whole Amount, if any, and, to the extent permitted by Applicable Law, overdue interest) on
this Note to the date of such payment; second, to the payment of the principal amount of,
and the Make Whole Amount, if any, on this Note then due (including any overdue installments of
principal)



B-1-4









 







thereunder; and third, to the extent permitted by Section 2.10 of the Collateral Trust
Indenture, the balance, if any, remaining thereafter, to the payment of the principal amount of,
and the Make Whole Amount, if any, on this Note.



     This Note is the Note referred to in the Collateral Trust Indenture as the “Settlement
Agreement Additional Lessor Note”. The Collateral Trust Indenture permits the issuance of
additional notes (“Additional Lessor Notes”), as provided in Section 2.12 of the Collateral
Trust Indenture, and the several Notes may be for varying principal amounts and may have different
maturity dates (not later than the final maturity date of the applicable series of the Initial
Lessor Notes), interest rates, redemption provisions and other terms. The properties of the Owner
Lessor included in the Indenture Estate are pledged or mortgaged to the Indenture Trustee to the
extent provided in the Collateral Trust Indenture as security for the payment of the principal of
and premium, if any, and interest on this Note and all other Notes issued and outstanding from time
to time under the Collateral Trust Indenture.



     Reference is hereby made to the Collateral Trust Indenture for a statement of the rights of
the holder of, and the nature and extent of the security for, this Note and of the rights of, and
the nature and extent of the security for, the holders of the other Notes and of certain rights of
the Owner Lessor and the Owner Participant, as well as for a statement of the terms and conditions
of the trust created by the Collateral Trust Indenture, to all of which terms and conditions the
holder hereof agrees by its acceptance of this Note.



     This Note is subject to redemption, in whole but not in part as provided in the Collateral
Trust Indenture, as follows: (x) in the case of redemptions under the circumstances set forth in
Section 2.10(a) of the Collateral Trust Indenture, at a price equal to the principal amount of this
Note being redeemed together with accrued interest on such principal amount to the Redemption Date,
and (y) in the case of redemptions under the circumstances set forth in Sections 2.10(d) of the
Collateral Trust Indenture, at a price equal to the principal amount of this Note then outstanding
together with accrued interest on such principal amount to the Redemption Date, plus the Make-Whole
Amount, if any; provided, however, that no such redemption shall be made until notice thereof is
given by the Indenture Trustee to the holder hereof as provided in the Collateral Trust Indenture.



     In case either (i) a Regulatory Event of Loss under the Facility Lease shall occur or
(ii) the Facility Lease shall have been terminated pursuant to Section 13.1 or 13.2 thereof where
the Facility Lessee purchases the Undivided Interest from the



B-1-5









 







 Owner Lessor, the obligations of the
Owner Lessor under this Note may, subject to the conditions set forth in Section 2.10(b) of the Collateral Trust Indenture, be assumed in
whole (but not in part) by the Facility Lessee in which case the Owner Lessor shall be released and
discharged from all such obligations. In connection with such an assumption, the holder of this
Note may be required to exchange this Note for a new Note evidencing such assumption.



     In case a Collateral Trust Indenture Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued but unpaid interest thereon
may, subject to certain rights of the Owner Lessor and the Owner Participant contained or referred
to in the Collateral Trust Indenture, be declared or may become due and payable in the manner and
with the effect provided in the Collateral Trust Indenture.



     There shall be maintained at the Indenture Trustee Office a register for the purpose of
registering transfers and exchanges of Notes in the manner provided in the Collateral Trust
Indenture. The transfer of this Note is registrable, as provided in the Collateral Trust
Indenture, upon surrender of this Note for registration of transfer duly accompanied by a written
instrument of transfer duly executed by or on behalf of the registered holder hereof, together with
the amount of any applicable transfer taxes.



     It is expressly understood and agreed by the holder of this Note that (a) this Note is
executed and delivered by Wells Fargo Bank Northwest, National Association, not individually or
personally but solely as the lessor manager (the “Lessor Manager”), of the Owner Lessor, in the
exercise of the powers and authority conferred and vested in it pursuant thereto, (b) each of the
undertakings and agreements in this Note made on the part of the Owner Lessor is made and intended
not as personal undertakings and agreements by the Lessor Manager but is made and intended for the
purpose for binding only the Owner Lessor, (c) nothing contained in this Note shall be construed as
creating any liability on the Lessor Manager individually or personally, to perform any covenant
either expressed or implied contained in this Note, all such liability, if any, being expressly
waived by the holder of this Note or by any Person claiming by, through or under such holder, and
(d) under no circumstances shall the Lessor Manager, be personally liable for the payment of any
indebtedness or expenses of the Owner Lessor or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner Lessor under this
Note.



     This Note shall be governed by the laws of the State of New York.



B-1-6









 





     IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly executed as of the date
hereof.



	 	 	 	 	 	 	 
	 	 	SOUTH POINT OL-[_], LLC

a Delaware limited liability company,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wells Fargo Bank Northwest,
National Association, not in its individual capacity but solely as the Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 









 





     This is the Settlement Agreement Additional Lessor Note referred to in the within-mentioned
Collateral Trust Indenture duly executed as of the date hereof.



	 	 	 	 	 
	 

	 	U.S. BANK NATIONAL ASSOCIATION, as successor in
interest to STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,

not in its individual capacity, but solely as 

the Indenture Trustee	 	 
	 
	 	 	 	 
	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 









 





FORM OF TRANSFER NOTICE




          FOR VALUE RECEIVED the undersigned registered holder hereby sell(s) assign(s) and transfer(s)
unto




	 	 	 
	Insert Taxpayer Identification No.
	 
	 	 
	 	 	 
	 
	 	 
	 	 	 
	(Please print or typewrite name and address including zip code of assignee)
	 
	 	 
	 	 	 
	the within Note and all rights thereunder, hereby irrevocably constituting and appointing
	 
	 	 
	 	 	 
	attorney to transfer said Note on the books of the Issuer with full power of substitution in the
premises.






	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Signature of Transferor)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	NOTE: The signature to this assignment must correspond with
the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any
change whatsoever.






 









 











SCHEDULE I

TO NOTE




Schedule Of Principal Amortization




Series A Settlement Agreement Additional Lessor Note.




Principal Portion: $                    




	 	 	 	 	 
	 	 	Percentage of Principal
	Regular Distribution Date	 	Amount Payable
	November 30, 2006
	 	 	0.00000000	%
	May 30, 2007
	 	 	0.00000000	%
	November 30, 2007
	 	 	0.00000000	%
	May 30, 2008
	 	 	0.00000000	%
	November 30, 2008
	 	 	0.00000000	%
	May 30, 2009
	 	 	0.00000000	%
	November 30, 2009
	 	 	0.00000000	%
	May 30, 2010
	 	 	0.00000000	%
	November 30, 2010
	 	 	0.00000000	%
	May 30, 2011
	 	 	0.00000000	%
	November 30, 2011
	 	 	100.00000000	%
	 
	 	 	 	 
	 
	 	 	 	 
	Total
	 	 	100.00000000	%
	 
	 	 	 	 






 









 





Series B Settlement Agreement Additional Lessor Note.




Principal Portion: $                    




	 	 	 	 	 
	 	 	Percentage of Principal
	Regular Distribution Date	 	Amount Payable
	November 30, 2006
	 	 	0.00000000	%
	May 30, 2007
	 	 	0.00000000	%
	November 30, 2007
	 	 	0.00000000	%
	May 30, 2008
	 	 	0.00000000	%
	November 30, 2008
	 	 	0.00000000	%
	May 30, 2009
	 	 	0.00000000	%
	November 30, 2009
	 	 	0.00000000	%
	May 30, 2010
	 	 	0.00000000	%
	November 30, 2010
	 	 	0.00000000	%
	May 30, 2011
	 	 	0.00000000	%
	November 30, 2011
	 	 	0.00000000	%
	May 30, 2012
	 	 	0.00000000	%
	November 30, 2012
	 	 	0.00000000	%
	May 30, 2013
	 	 	0.00000000	%
	November 30, 2013
	 	 	0.00000000	%
	May 30, 2014
	 	 	0.00000000	%
	November 30, 2014
	 	 	0.00000000	%
	May 30, 2015
	 	 	0.00000000	%
	November 30, 2015
	 	 	0.00000000	%
	May 30, 2016
	 	 	0.00000000	%
	November 30, 2016
	 	 	0.00000000	%
	May 30, 2017
	 	 	0.00000000	%
	November 30, 2017
	 	 	0.00000000	%
	May 30, 2018
	 	 	0.00000000	%
	November 30, 2018
	 	 	0.00000000	%
	May 30, 2019
	 	 	100.00000000	%
	 
	 	 	 	 
	 
	 	 	 	 
	Total
	 	 	100.00000000	%
	 
	 	 	 	 






Omnibus Amendment to

Operative Documents and Agreement — Broad River