exv4w13w5



 






Exhibit 4.13.5




FOURTH SUPPLEMENTAL INDENTURE




Dated as of March 15, 2006




among




CALPINE CONSTRUCTION FINANCE COMPANY, L.P.




CCFC FINANCE CORP.




THE GUARANTORS NAMED HEREIN




and




WILMINGTON TRUST FSB,




as Trustee




Supplementing the Indenture

Dated as of August 14, 2003

and

Amended as of September 18, 2003,

January 14, 2004 and March 5, 2004





 









 







FOURTH SUPPLEMENTAL INDENTURE, dated as of March 15, 2006 (the “Fourth Supplemental Indenture”),
among Calpine Construction Finance Company, L.P., a Delaware limited partnership (the “Company”),
CCFC Finance Corp., a Delaware corporation (“Finance Corp.”), the Guarantors and Wilmington Trust
FSB, as trustee (the “Trustee”).




          WHEREAS, the Company, Finance Corp., the Guarantors and the Trustee have executed that certain
Indenture, dated as of August 14, 2003, as supplemented by that certain Supplemental Indenture,
dated as of September 18, 2003, and as further supplemented by that certain Second Supplemental
Indenture, dated as of January 14, 2004, and as further supplemented by that certain Third
Supplemental Indenture, dated as of March 5, 2004 (as supplemented or amended, 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, on December 20, 2005, Calpine Corporation (“Calpine”) and certain of its
controlled subsidiaries, including, among others, Calpine Operating Services Company, Inc. and
Calpine Energy Services, L.P., filed a voluntary proceeding for relief under Chapter 11 of the
United States Bankruptcy Code with the United States Bankruptcy Court for the Southern District of
New York (the “Proceeding”);




          WHEREAS, pursuant to a consent solicitation commenced as of February 22, 2006 (the “Consent
Solicitation”), the Company and Finance Corp. have (1) requested that the Holders consent to a
waiver of certain specified Defaults and Events of Default under the Indenture related to the
Proceeding (the “Waiver”) and (2) proposed to supplement and amend certain Sections of the
Indenture as provided herein (the “Proposed Amendments”);




          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 the Waiver and, pursuant to
Section 9.02 of the Indenture, the Holders of at least a majority in aggregate principal amount of
the Notes have consented to the Proposed Amendments; and




          WHEREAS, the Company and Finance Corp. have directed the Trustee to execute and deliver this
Fourth Supplemental Indenture and a Waiver Agreement, dated concurrently herewith, setting forth
the Waiver, in accordance with the terms of the Indenture.




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




ARTICLE I

DEFINITIONS




          Section 1.1 Definition of Terms.




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




 









 








ARTICLE II

AMENDMENTS TO THE INDENTURE




          Section 2.1 Amendments. Section 6.01 (Events of Default) of the Indenture is hereby
amended as follows:




          (a) by deleting the “and” at the end of paragraph (10) of such Section;




          (b) by inserting the words “except as set forth in paragraph (12) below,” at the beginning of
paragraph (11) of such Section;




          (c) by deleting the period and adding “; and” at the end of paragraph (11) of such Section;
and




          (d) by adding the following new paragraph (12) after paragraph (11) of such Section:





“(12) Calpine Energy Services, L.P. shall file a motion, pursuant to Section 365(a)
of the United States Bankruptcy Code, to reject the Index Based Gas Sale and Power
Purchase Agreement dated as of August 14, 2003, as amended, in its Chapter 11
bankruptcy case, which is jointly administered under In re Calpine Corporation, et
al., Case No. 05-60200 (BRL) in the United States Bankruptcy Court for the Southern
District of New York.”



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




          (a) the Company, Finance Corp. and the Guarantors named as signatories hereto and the Trustee
shall have executed and delivered their respective counterparts of this Fourth Supplemental
Indenture;




          (b) an amendment agreed to by the Lenders under (and as defined in) the Term Loan Agreement
shall have become effective concurrently with this Fourth Supplemental Indenture;




          (c) The Waiver shall have become effective concurrently with this Fourth Supplemental
Indenture; and




          (d) the conditions specified in the Indenture which are applicable to this Fourth Supplemental
Indenture 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 Fourth Supplemental Indenture
has been duly authorized, executed and delivered by the Company, Finance Corp. or the 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 general applicability relating to or affecting creditors’ rights and
to general equity principles, and (b) the execution and




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delivery of this Fourth Supplemental Indenture (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, Finance Corp. or the 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 the Guarantor, as applicable, is a party or by which the Company, Finance
Corp. or the Guarantor, as applicable, is bound.




ARTICLE III




ARTICLE IV

MISCELLANEOUS




          Section 4.1 Interpretation.




          Upon execution and delivery of this Fourth Supplemental Indenture, and subject to Section 2.2,
the Indenture shall be modified and amended in accordance with this Fourth Supplemental Indenture,
and all the terms and conditions of both shall be read together as though they constitute one
instrument, except that, in case of conflict, the provisions of this Fourth Supplemental Indenture
will control. The Indenture, as modified and amended by this Fourth Supplemental Indenture, is
hereby ratified and confirmed in all respects and shall bind every holder of Notes. In case of
conflict between the terms and conditions contained in the Notes and those contained in the
Indenture, as modified and amended by this Fourth Supplemental Indenture, the provisions of the
Indenture, as modified and amended by this Fourth Supplemental Indenture, shall control.




          Section 4.2 The Trustee.




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




          Section 4.3 Certain Duties and Responsibilities of the Trustee.




          In entering into this Fourth Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting the liability or
affording protection to the Trustee, whether or not elsewhere herein so provided.




          Section 4.4 Counterparts.




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




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          Section 4.5 Applicable Law.




          This Fourth Supplemental Indenture and the rights 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 Fourth Supplemental Indenture 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: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CCFC FINANCE CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

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

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

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

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	HERMISTON POWER PARTNERSHIP, as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 	 	By: Calpine Hermiston, LLC, its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Zamir Rauf	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Zamir Rauf	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST FSB, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Donald G. MacKelcan	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Donald G. MacKelcan	 	 
	 

	 	 	 	Title: Senior Vice President