exv4w13w8



 





Exhibit 4.13.8




Execution Copy




AMENDMENT TO WAIVER AGREEMENT




Dated as of August 4, 2006




among




CALPINE CONSTRUCTION FINANCE COMPANY, L.P.




CCFC FINANCE CORP.




THE GUARANTORS NAMED HEREIN




and




WILMINGTON TRUST FSB,




as Trustee




Relating to the Indenture

Dated as of August 14, 2003

and

Amended as of September 18, 2003, January 14, 2004, March 5, 2004 and March 15, 2006




 









 





          AMENDMENT TO WAIVER AGREEMENT UNDER INDENTURE, dated as of August 4, 2006
(“Amendment”), among Calpine Construction Finance Company, L.P., a Delaware limited
partnership (the “Company”), CCFC Finance Corp., a Delaware corporation (“Finance
Corp.”), the Guarantors and Wilmington Trust FSB, as trustee (the “Trustee”).




          WHEREAS, the Company, Finance Corp., the Guarantors and the Trustee have executed that certain
Indenture, dated as of August 14, 2003, as supplemented by that certain Supplemental Indenture,
dated as of September 18, 2003, as further supplemented by that certain Second Supplemental
Indenture, dated as of January 14, 2004, as further supplemented by that certain Third Supplemental
Indenture, dated as of March 5, 2004, and as further supplemented by that certain Fourth
Supplemental Indenture, dated as of March 15, 2006 (as supplemented, the “Indenture”), in
connection with the co-issuance by the Company and Finance Corp. of certain Second Priority Senior
Secured Floating Rate Notes due 2011 (the “Notes”);




          WHEREAS, the Company, Finance Corp., the Guarantors and the Trustee executed that certain
Waiver Agreement under Indenture dated as of June 9, 2006 (the “Waiver Agreement”) pursuant
to which the Holders waived the Specified Defaults (as defined therein);




          WHEREAS, pursuant to a consent solicitation commenced as of August 1, 2006 (the “Consent
Solicitation”), the Company and Finance Corp. proposed this Amendment;




          WHEREAS, pursuant to Sections 6.04 and 9.02 of the Indenture, the Holders of at least a
majority in aggregate principal amount of the Notes have consented to this Amendment; and




          WHEREAS, the Company and Finance Corp. have directed the Trustee to execute and deliver this
Amendment, in accordance with the terms of the Indenture.




          NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein
contained, the Company, Finance Corp., the Guarantors and the Trustee agree as follows:




ARTICLE I

DEFINITIONS




          Section 1.1 Definition of Terms. Unless the context otherwise requires, capitalized
terms used herein that are not otherwise defined herein shall have the meaning assigned to such
terms in the Indenture.




ARTICLE II

AMENDMENT




          Section 2.1 Amendment. Section 2.4 of the Waiver Agreement is hereby amended to
substitute “August 11, 2006” in place of “August 4, 2006” in clause (i) thereof.




          Section 2.2 Conditions. The effectiveness of Section 2.1 of this Amendment is
subject to the satisfaction of the following conditions precedent:




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          (a) Holders of at least a majority in aggregate principal amount of the Notes shall have
consented to this Amendment, and the Company, Finance Corp., and the Guarantors named as
signatories hereto and the Trustee shall have executed and delivered their respective counterparts
of this Amendment;




          (b) the Company shall have paid in cash or other immediately available funds (i) reimbursement
of all outstanding fees and expenses of the Trustee owing under the Indenture as well as other fees
owing to the Trustee arising in connection with the solicitation of consents from the Holders to
this Amendment and (ii) payment of the fees and expenses of the financial advisors and counsel to
the Holders incurred through June 30, 2006;




          (c) an amendment to waiver agreement (in form and substance reasonably acceptable to the
Trustee) with the Lenders under (and as defined in) the Term Loan Agreement shall have been
negotiated and shall become effective concurrently with this Amendment, provided that, any
conditions to effectiveness or consideration made available to such Lenders for such agreement
shall be made available to the Holders as conditions to effectiveness of, or as consideration for,
this Amendment; and




          (d) the conditions specified in the Indenture which are applicable to this Amendment shall
have been satisfied.




          Section 2.3 Representations and Warranties. The Company, Finance Corp. and each
Guarantor hereby represents and warrants to the Trustee that (a) this Amendment has been duly
authorized, executed and delivered by the Company , Finance Corp. or Guarantor, as applicable, and
constitutes its valid and legally binding obligation, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of generally applicability relating to or affecting creditors’ rights and to general
equity principles; (b) the execution and delivery of this Amendment (i) does not require any
consent, approval, authorization or order of, or filing with, any governmental agency or body or
any court, except such as have been obtained or made and are in full force and effect as of the
date hereof and (ii) will not violate any applicable law or regulation or the charter, by laws or
other organizational documents of the Company or Guarantor, as applicable, or any order of any
governmental agency or body, or breach or conflict with any material agreement to which the
Company, Finance Corp. or Guarantor, as applicable, is a party or by which the Company, Finance
Corp. or Guarantor, as applicable, is bound; and (c) no Default or Event of Default under the
Indenture exists and is continuing.




ARTICLE III

MISCELLANEOUS




          Section 3.1 Interpretation. This Amendment shall become effective on the first date
that all of the conditions specified in Section 2.2 shall have been satisfied (the “Effective
Date)” and shall bind every Holder. After the Effective Date, the Waiver Agreement shall be
modified and amended in accordance with this Amendment, and all the terms and conditions of both
shall be read together as though they constitute one instrument, except that, in case of conflict,
the provisions of this Amendment will control. The Waiver Agreement, as modified by this
Amendment, is hereby ratified and confirmed in all respects and shall bind every Holder.




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          Section 3.2 The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Amendment or for or in respect
of the recitals contained herein, all of which are made solely by the Company and Finance Corp.




          Section 3.3 Certain Duties and Responsibilities of the Trustee. In entering into this
Amendment, the Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability or affording protection to the Trustee, whether
or not elsewhere herein so provided.




          Section 3.4 Continuing Effect of the Waiver Agreement and Indenture. Except as
expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the Holders, the Trustee,
the Company, Finance Corp. or the Guarantors under the Waiver Agreement or the Indenture and shall
not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Waiver Agreement or the Indenture, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing herein shall be
deemed to entitle the Company, Finance Corp. or the Guarantors to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Waiver Agreement or the Indenture in similar or different
circumstances. This Amendment shall apply and be effective only with respect to the provision of
the Waiver Agreement specifically referred to herein. After the Effective Date, any reference to
the Waiver Agreement shall mean the Waiver Agreement as amended and modified hereby.




          Section 3.5 Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument. The delivery of an
executed signature of this Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.




          Section 3.6 Applicable Law. This Amendment and the right and obligations of the
parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the
laws of the State of New York.




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	 	CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Zamir Rauf
	 

	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	CCFC FINANCE CORP.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Zamir Rauf
	 

	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	CALPINE HERMISTON, LLC, as a Guarantor
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Zamir Rauf
	 

	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	CPN HERMISTON, LLC, as a Guarantor
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Zamir Rauf
	 

	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	HERMISTON POWER PARTNERSHIP, as a Guarantor
	 
	 	 	 	 
	 

	 	By:
	 	Calpine Hermiston, LLC, its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Zamir Rauf
	 

	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	WILMINGTON TRUST FSB, as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Emmett R. Harmon
	 

	 	 	 	 
	 

	 	 	 	Name: Emmett R. Harmon
	 

	 	 	 	Title: Authorized Signer