exv4w23w40



 





Exhibit 4.23.40




EXECUTION VERSION




OMNIBUS AMENDMENT TO OPERATIVE DOCUMENTS



AND AGREEMENT – BROAD RIVER




     OMNIBUS AMENDMENT TO OPERATIVE DOCUMENTS AND AGREEMENT – BROAD RIVER (this “Amendment”) dated
as of July 13, 2006, is made by and among (i) BROAD RIVER ENERGY LLC, a Delaware limited liability
company (together with its successors and permitted assigns, the “Facility Lessee”), (ii) CALPINE
CORPORATION, a Delaware corporation, (iii) BROAD RIVER 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) BROAD RIVER OL-1, LLC, a Delaware limited
liability company, (v) BROAD RIVER OL-2, LLC, a Delaware limited liability company, (vi) BROAD
RIVER OL-3, LLC, a Delaware limited liability company, (vii) BROAD RIVER 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 850 MW gas-fired simple cycle
power plant located near Gaffney, South Carolina (collectively, the “Broad River Transactions”),



 









 








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



     WHEREAS, in connection with the Broad River Transactions, certain of the parties hereto
entered into certain additional documents listed on Schedule B hereto (the “Broad River
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 Broad River Transaction
Documents and Broad River 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. Broad River 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), 13.2 and 14(b).
	 
	 	(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).
	 
	 	(f)	 	Section 6.4 is hereby deleted in its entirety and replaced with the following:





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	 	 	 	“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
Participant in connection with any financing of the acquisition by the Owner
Lessor of (1) the Lessor Notes outstanding immediately prior to the Settlement




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	 	 	 	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 Broad
River 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 South Point 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 15.4 of each Participation Agreement is hereby deleted in its entirety
and replaced with the following:
	 
	 	 	 	“15.4 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
to 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 15.13(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 15.21 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 15.21 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 15.21; or”




	 	(s)	 	Section 15.23 of each Participation Agreement is hereby deleted in its entirety
and replaced with the following:
	 
	 	 	 	“15.23 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 15.24 is hereby added to the Participation Agreement as follows:
	 
	 	 	 	“15.24 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)	 	The Term “Broad River PPAs” is hereby added as follows:
	 
	 	 	 	“Broad River PPAs” shall mean (i) a Power Purchase Agreement, dated as of December
31, 1998, between Carolina Power and Light Company and Broad River, as amended,
restated, modified or otherwise supplemented from time to time in accordance with
the terms thereof; and (ii) a Power Purchase Agreement, dated as of July 7, 2000,
between Carolina Power and Light Company and Broad River, as amended, restated,
modified or otherwise supplemented from time to time in accordance with the terms
thereof.”
	 
	 	(c)	 	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:




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	 	 	 	“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.”
	 
	 	(d)	 	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.
	 
	 	(e)	 	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 Pass Through Trust Agreement
as an “Operative Document” in each and all of the Operative Documents are hereby
deleted.
	 
	 	(f)	 	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 FILOT 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.”
	 
	 	(g)	 	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.”
	 
	 	(h)	 	The term “Omnibus Amendment” is hereby added as follows:
	 
	 	 	 	“Omnibus Amendment” shall mean that certain Omnibus Amendment to Operative Documents
and Agreement – Broad River, dated as of July 13, 2006, among, inter alia, the
Facility Lessee, Calpine, the Owner Lessor, the Owner




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	 	 	 	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 Broad River Holdings, LLC, Calpine, Broad River
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 only the
Other Broad River Calpine Guaranties and the South Point 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 Broad River
Facility Leases and the South Point 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 Broad River Owner
Lessors and the South Point 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.




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	 	(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.
	 
	 	(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.




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	 	(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:
	 
	 	 	 	“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).




11









 












	 	(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 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:




12









 












	 	(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 (including the Facility Purchase Option), the Owner
Lessor’s interest in any Components; the Owner Lessor’s interest in any
Improvements; the Ground Interest (including the Land Purchase Option); 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 FILOT 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 FILOT Lease
(including, without limitation, the option to purchase set forth in Section 10.02 of
the FILOT Lease); the FILOT Lease, the Pledge Agreement, the Broad River PPAs
(including, to the extent contemplated in Section 1.3 of the Settlement Agreement,
any security interest granted to the Owner Lessor thereunder) and each other
Operative Document to which the Owner Lessor is a party other than the Tax Indemnity
Agreement, the Tri-Party 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 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.




13









 












	 	 	 	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 $55,200,000 (in the case of series A) or
$151,500,000 (in the case of series B), as applicable, a 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




14









 






	 	 	 	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:




“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



15









 






(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).
	 
	 	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 from CCFC
pursuant to the Assignment Agreement, 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




16









 






	 	 	 	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.”
	 
	 	(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


17









 






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 Broad River Transaction Documents and the Broad River 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):





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



18









 







(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 Broad River),
CIT Credit Group USA Inc., and the Broad River 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 Broad River Transaction Documents and the Broad River
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, 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.




19









 







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.




	 	 	 	 	 	 	 
	 	 	BROAD RIVER ENERGY 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 Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BROAD RIVER HOLDINGS, LLC,	 	 
	 	 	as Pledgor under each of the Pledge Agreements
	 
	 	 	 	 	 	 
	 

	 	by:
	 	   /s/ Zamir Rauf
 

Name: Zamir Rauf
	 	 
	 

	 	 	 	Title: Authorized Agent	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BROAD RIVER OL-1, LLC,	 	 
	 	 	as Owner Lessor and as Noteholder	 	 
	 
	 	 	 	 	 	 
	 	 	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	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BROAD RIVER OL-2, LLC,	 	 
	 	 	as Owner Lessor and as Noteholder	 	 
	 
	 	 	 	 	 	 
	 	 	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	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BROAD RIVER OL-3, LLC,	 	 
	 	 	as Owner Lessor and as Noteholder	 	 
	 
	 	 	 	 	 	 
	 	 	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	 	 






 









 







	 	 	 	 	 	 	 
	 	 	BROAD RIVER OL-4, LLC,	 	 
	 	 	as Owner Lessor and as Noteholder	 	 
	 
	 	 	 	 	 	 
	 	 	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.	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BRSP, LLC,	 	 
	 	 	as Noteholder	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	   /s/ Harold J. Schroeder
 

Name: Harold J. Schroeder
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK NORTHWEST,	 	 
	 	 	   NATIONAL ASSOCIATION,	 	 
	 	 	as Lessor Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	by:
	 	   /s/ Robert L. Reynolds
 

Name: Robert L. Reynolds
	 	 
	 

	 	 	 	Title: Vice President	 	 







 









 








Schedule A




Broad River Transaction Documents




	 	 	 	 	 	 	 
	 

	 	 	1.	 	 	Participation Agreement (BR-1)
	 
	 

	 	 	2.	 	 	Participation Agreement (BR-2)
	 
	 

	 	 	3.	 	 	Participation Agreement (BR-3)
	 
	 

	 	 	4.	 	 	Participation Agreement (BR-4)
	 
	 

	 	 	5.	 	 	Assignment Agreement (BR-1)
	 
	 

	 	 	6.	 	 	Assignment Agreement (BR-2)
	 
	 

	 	 	7.	 	 	Assignment Agreement (BR-3)
	 
	 

	 	 	8.	 	 	Assignment Agreement (BR-4)
	 
	 

	 	 	9.	 	 	Facility Lease (BR-1)
	 
	 

	 	 	10.	 	 	Facility Lease (BR-2)
	 
	 

	 	 	11.	 	 	Facility Lease (BR-3)
	 
	 

	 	 	12.	 	 	Facility Lease (BR-4)
	 
	 

	 	 	13.	 	 	Facility Site Lease (BR-1)
	 
	 

	 	 	14.	 	 	Facility Site Lease (BR-2)
	 
	 

	 	 	15.	 	 	Facility Site Lease (BR-3)
	 
	 

	 	 	16.	 	 	Facility Site Lease (BR-4)
	 
	 

	 	 	17.	 	 	Springing Facility Site Lease (BR-1)
	 
	 

	 	 	18.	 	 	Springing Facility Site Lease (BR-2)
	 
	 

	 	 	19.	 	 	Springing Facility Site Lease (BR-3)
	 
	 

	 	 	20.	 	 	Springing Facility Site Lease (BR-4)
	 
	 

	 	 	21.	 	 	Springing Facility Site Sublease (BR-1)
	 
	 

	 	 	22.	 	 	Springing Facility Site Sublease (BR-2)
	 
	 

	 	 	23.	 	 	Springing Facility Site Sublease (BR-3)
	 
	 

	 	 	24.	 	 	Springing Facility Site Sublease (BR-4)
	 
	 

	 	 	25.	 	 	Pass Through Trust Agreement A
	 
	 

	 	 	26.	 	 	Pass Through Trust Agreement B
	 
	 

	 	 	27.	 	 	Tax Indemnity Agreement (BR-1)
	 
	 

	 	 	28.	 	 	Tax Indemnity Agreement (BR-2)
	 
	 

	 	 	29.	 	 	Tax Indemnity Agreement (BR-3)
	 
	 

	 	 	30.	 	 	Tax Indemnity Agreement (BR-4)
	 
	 

	 	 	31.	 	 	Tri-Party Agreement
	 
	 

	 	 	32.	 	 	Certificate Purchase Agreement
	 
	 

	 	 	33.	 	 	Ownership and Operation Agreement
	 
	 

	 	 	34.	 	 	Collateral Trust Indenture (BR-1)
	 
	 

	 	 	35.	 	 	Collateral Trust Indenture (BR-2)
	 
	 

	 	 	36.	 	 	Collateral Trust Indenture (BR-3)
	 
	 

	 	 	37.	 	 	Collateral Trust Indenture (BR-4)
	 
	 

	 	 	38.	 	 	Lessor Notes
	 
	 

	 	 	39.	 	 	Certificates
	 
	 

	 	 	40.	 	 	Calpine Guaranty (BR-1)
	 
	 

	 	 	41.	 	 	Calpine Guaranty (BR-2)
	 
	 

	 	 	42.	 	 	Calpine Guaranty (BR-3)
	 
	 

	 	 	43.	 	 	Calpine Guaranty (BR-4)
	 
	 

	 	 	44.	 	 	OP Parent Guaranty (BR-1)
	 
	 

	 	 	45.	 	 	OP Parent Guaranty (BR-2)
	 
	 

	 	 	46.	 	 	OP Parent Guaranty (BR-3)
	 
	 

	 	 	47.	 	 	OP Parent Guaranty (BR-4)






 









 





Schedule B




Broad River 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 (BR-1), dated September 30, 2003, among Broad River
Holdings, LLC, Calpine, Broad River and Broad River OL-1, LLC
	 
	 	5.	 	Pledge and Security Agreement (BR-2), dated September 30, 2003, among Broad River
Holdings, LLC, Calpine, Broad River and Broad River OL-2, LLC
	 
	 	6.	 	Pledge and Security Agreement (BR-3), dated September 30, 2003, among Broad River
Holdings, LLC, Calpine, Broad River and Broad River OL-3, LLC
	 
	 	7.	 	Pledge and Security Agreement (BR-4), dated September 30, 2003, among Broad River
Holdings, LLC, Calpine, Broad River and Broad River OL-4, LLC
	 
	 	8.	 	Supplemental Indenture (BR-1), dated September 30, 2003, Broad River OL-1, LLC and
U.S. Bank National Association
	 
	 	9.	 	Supplemental Indenture (BR-2), dated September 30, 2003, Broad River OL-2, LLC and
U.S. Bank National Association
	 
	 	10.	 	Supplemental Indenture (BR-3), dated September 30, 2003, Broad River OL-3, LLC and
U.S. Bank National Association
	 
	 	11.	 	Supplemental Indenture (BR-4), dated September 30, 2003, Broad River OL-4, LLC and
U.S. Bank National Association





B-1-1









 





Schedule C




FORM
OF BROAD RIVER SETTLEMENT AGREEMENT ADDITIONAL 
LESSOR NOTES
SERIES [A][B]




BROAD RIVER OL-[_], LLC

NONRECOURSE PROMISSORY NOTE (BROAD RIVER-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




$[_____]




     BROAD RIVER 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 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



B-1-2









 







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 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



B-1-3









 







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) 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



B-1-4









 







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 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



B-1-5









 







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.



	 	 	 	 	 	 	 
	 	 	BROAD RIVER 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
	 	 	12.50000000	%
	May 30, 2007
	 	 	13.76811594	%
	November 30, 2007
	 	 	14.67391304	%
	May 30, 2008
	 	 	16.12318841	%
	November 30, 2008
	 	 	17.02898551	%
	May 30, 2009
	 	 	18.29710145	%
	November 30, 2009
	 	 	7.60869565	%
	 
	 	 	 	 
	 
	 	 	 	 
	Total
	 	 	100.00000000	%
	 
	 	 	 	 







Omnibus Amendment to

Operative Documents and Agreement — Broad River
 

 









 










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