EXHIBIT 4.14.3
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 14, 2004
among
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
CCFC FINANCE CORP.
THE GUARANTORS NAMED HEREIN
and
WILMINGTON TRUST FSB,
as Trustee
Supplementing the Indenture
Dated as of August 14, 2003
and
Amended as of September 18, 2003
SECOND SUPPLEMENTAL INDENTURE, dated as of January 14, 2004 (the
"Second 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 (as supplemented, the "Indenture"), in connection with the co-issuance by
the Company and Finance Corp. of certain Second Priority Senior Secured Floating
Rate Notes due 2011 (the "Notes");
WHEREAS, pursuant to a Consent Solicitation dated as of January 7, 2004
(the "Consent Solicitation"), the Company and Finance Corp. have proposed to
supplement and amend Section 4.10 of the Indenture as provided herein (the
"Proposed Amendment");
WHEREAS, pursuant to Section 9.02 of the Indenture, the Holders of at
least a majority in aggregate principal amount of the Notes have consented to
the Proposed Amendment; and
WHEREAS, the Company and Finance Corp. have directed the Trustee to
execute and deliver this Second Supplemental Indenture in accordance with the
terms of the Indenture;
NOW THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, the Company, Finance Corp., the Guarantors and the
Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires, capitalized terms used herein
that are not otherwise defined herein shall have the meaning assigned to such
terms in the Indenture.
ARTICLE II
AMENDMENTS TO THE INDENTURE
Section 2.1 Amendments.
Section 4.10 (Asset Sales) of the Indenture is hereby amended to insert
the following sentence at the end of the second full paragraph of such section:
Notwithstanding anything herein to the contrary, the Company and
Finance Corp. are authorized to take the following actions:
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(i) to place in an account (the "Lost Pines Proceeds Account")
maintained with the Collateral Agent the Net Proceeds of the sale of
the Company's 50% undivided ownership interest in the Lost Pines
facility (the "Lost Pines Interest"), which Lost Pines Proceeds Account
and the Net Proceeds held therein shall constitute Collateral;
(ii) the Collateral Agent and the Company may execute an escrow and
exchange agreement with respect to the Lost Pines Proceeds Account, in
such form as they may agree, containing customary terms and conditions
intended to assure that the Lost Pines Proceeds Account is a "qualified
escrow account," and the Collateral Agent is acting either as an
"escrow holder" or a "qualified intermediary" with respect thereto, in
each case for purposes of Section 1031 of the Internal Revenue Code of
1986, as amended; provided that nothing in this clause (ii) shall
modify the Company's obligation to maintain valid and perfected
security interest in the Collateral as provided in this Indenture;
(iii) on or before the 181st day (or, if such date is not a Business
Day, the first Business Day thereafter) following the consummation of
the sale of the Lost Pines Interest (the "Latest Replacement Facility
Closing Date"), and subject to obtaining the consent of the Holders of
a majority in aggregate principal amount of the Notes, to use such Net
Proceeds to purchase an additional natural gas-fired combined cycle
power generating facility (the "Replacement Facility");
provided, however, that if the purchase of such Replacement Facility is
not consummated on or before the Latest Replacement Facility Closing
Date (or, if earlier, the Company and Finance Corp. notify the Trustee
in writing that the Company is no longer pursuing the acquisition of a
Replacement Facility), then the Company shall apply the Net Proceeds of
such sale as otherwise provided in this Section 4.10 as if the date of
the sale of the Lost Pines Interest were the first Business Day after
the Latest Replacement Facility Closing Date (or such earlier date as
the Company and Finance Corp. notify the Trustee in writing that the
Company is no longer pursuing the acquisition of a Replacement
Facility).
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ARTICLE III
MISCELLANEOUS
Section 3.1 Interpretation.
Upon execution and delivery of this Second Supplemental Indenture, the
Indenture shall be modified and amended in accordance with this Second
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 Second Supplemental Indenture will control. The
Indenture, as modified and amended by this Second 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
Second Supplemental Indenture, the provisions of the Indenture, as modified and
amended by this Second Supplemental Indenture, shall control.
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 Second Supplemental Indenture or
for or in respect of the recitals contained herein, all of which are made solely
by the Company and Finance Corp.
Section 3.3 Certain Duties and Responsibilities of the Trustee.
In entering into this Second Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 3.4 Counterparts.
This Second 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 Second
Supplemental Indenture by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
Section 3.5 Applicable Law.
This Second Supplemental Indenture and the right and obligations of the
parties hereunder shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York without regard to conflict of
laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CCFC FINANCE CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CALPINE HERMISTON, LLC, as a Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CPN HERMISTON, LLC, as a Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
HERMISTON POWER PARTNERSHIP, as a Guarantor
By: Calpine Hermiston, LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
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WILMINGTON TRUST FSB, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signer
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