EXHIBIT 4.14.4
THIRD SUPPLEMENTAL INDENTURE
Dated as of March 5, 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 and January 14, 2004
THIRD SUPPLEMENTAL INDENTURE, dated as of March 5, 2004 (the
"Third 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 (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
February 20, 2004 (the "Consent Solicitation"), the Company and Finance Corp.
have proposed to supplement and amend certain Sections of the Indenture as
provided herein (the "Proposed Amendments");
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 Amendments; and
WHEREAS, the Company and Finance Corp. have directed the
Trustee to execute and deliver this Third 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. (a) Section 1.01 (Definitions) of the
Indenture is hereby amended to insert the following new definitions in
alphabetical order in such Section:
"Acquisition Companies" means each of Calpine Brazos Valley
Energy Center GP, LLC, a Delaware limited liability company,
and Calpine Brazos Valley Energy Center LP, LLC, a Delaware
limited liability company.
"Affiliate Purchase Agreement" means that certain Purchase
Agreement, dated as of February 18, 2004, by and between the
Company and Calpine Power Corporation, a Delaware corporation.
"Brazos Subsidiaries" means each of Brazos Valley Energy LP, a
Delaware limited partnership, and Brazos Valley Technology LP,
a Delaware limited partnership.
"Calpine Pledge Agreement" means that certain Pledge Agreement
by and between Calpine Corporation and the Company related to
the pledge by the Company to Calpine of certain Equity
Interests in the Acquisition Subsidiaries.
"Calpine Credit Agreement" means that certain Credit Agreement
by and between Calpine Corporation and the Company, relating
to Indebtedness incurred by the Company to complete the
acquisition, indirectly through the acquisition of the
Acquisition Subsidiaries, of the Brazos Subsidiaries,
including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith,
as amended, modified, renewed, restated or replaced, in whole
or in part, from time to time.
(b) The definition of "Excess Cash Flow" in Section 1.01
(Definitions) of the Indenture is hereby amended by inserting the phrase "other
than Fixed Charges relating to the Calpine Credit Agreement," immediately
following "for such period," at the end of clause (2)(C) of such definition.
(c) The definition of "Excluded Assets" in Section 1.01
(Definitions) of the Indenture is hereby amended, as follows:
(i) by deleting the word "and" at the end of clause (4)
under such definition;
(ii) by deleting the period and adding "; and" at the end
of clause (5) of such definition; and
(iii) by adding the following new clause (6) to the end of
such definition:
(6) (A) that portion of the Capital Stock of each of
the Acquisition Companies pledged by the Company to
Calpine Corporation in accordance with the terms and
provisions of the Calpine Pledge Agreement, until
such time as all amounts outstanding under the
Calpine Credit Agreement have been paid in full and
the Calpine Pledge Agreement has been terminated, (B)
the Equity Interests of the Brazos Subsidiaries and
(C) the real and personal property (i) of the
Acquisition Companies, (ii) of the Brazos
Subsidiaries and (iii) constituting the Brazos Valley
electric generating facility located in Thompsons,
Texas.
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(d) The definition of "Permitted Liens" in Section 1.01
(Definitions) of the Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (13) of
such definition;
(ii) by deleting the period and adding "; and" at the end
of clause (14) of such definition;
(iii) by adding the following new clause (15) to the end of
such definition:
(15) the pledge by the Company of the Capital
Stock of each of the Acquisition Companies to Calpine
Corporation in accordance with the terms and
provisions of the Calpine Pledge Agreement.
(e) Section 4.09 (Incurrence of Indebtedness and Issuance
of Preferred Equity) of the Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (10) of
the second paragraph of such Section;
(ii) by deleting the period and adding "; and" at the end
of clause (11) of the second paragraph of such
Section;
(iii) by adding the following new clause (12) to the end of
such definition:
(12) the incurrence by the Company of Indebtedness under
the Calpine Credit Agreement as of the date of its
execution and delivery by the parties thereto;
(f) Section 4.11 (Transactions with Affiliates) of the
Indenture is hereby amended, as follows:
(i) by deleting the "and" at the end of clause (12) of
the second paragraph of such Section;
(ii) changing the number of the old clause (13) of the
second paragraph of such Section from (13) to (14);
(iii) by adding the following new clause (13) to the second
paragraph of such Section:
"(13) transactions contemplated under the
Affiliate Purchase Agreement, the Calpine Credit
Agreement and the Calpine Pledge Agreement; and"
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(g) Section 4.21 (Additional Subsidiaries) of the
Indenture is hereby amended to insert a new third paragraph at the end of such
Section, as follows:
"Notwithstanding anything to the contrary in
this Section 4.21, (i) the Acquisition Companies and
the Brazos Subsidiaries shall not be required to
comply with the provisions of the first paragraph of
this Section 4.21 and (ii) the Company shall not be
required to comply with the provisions of the first
paragraph of this Section 4.21 with respect to the
Acquisition Companies and the Brazos Subsidiaries;
provided that (x) the Acquisition Companies and the
Brazos Subsidiaries shall become Guarantors if, in
the good faith determination of the Company, the
limitations imposed by the debt instruments of
Calpine Corporation and its Subsidiaries on the
ability of the Acquisition Companies and the Brazos
Subsidiaries to become Guarantors are no longer
applicable, (y) all of the Equity Interests in each
of the Acquisition Companies, other than such Equity
Interests pledged to Calpine Corporation pursuant to
the Calpine Pledge Agreement, shall be required to
become part of the Collateral within 30 days of the
date of acquisition of such Acquisition Companies by
the Company, and (z) 100% of the Equity Interests in
each of the Acquisition Companies shall be required
to become part of the Collateral (in accordance with
the terms and provisions of the Pledge and Security
Agreement) promptly following the termination of the
Calpine Pledge Agreement in accordance with its
terms."
ARTICLE III
MISCELLANEOUS
Section 3.1 Condition to Operative Effect. The operative
effect of this Third Supplemental Indenture is conditioned upon the occurrence
of the consummation of the transactions contemplated by the Purchase Agreement,
dated as of February 18, 2004, between Calpine Brazos Valley Energy Center GP,
LLC and Calpine Brazos Valley Energy Center LP, LLC, as purchasers, and Brazos
Valley Special Purpose GP Limited Partnership and Brazos Valley Special Purpose
LP Limited Partnership, as sellers.
Section 3.2 Interpretation.
Upon execution and delivery of this Third Supplemental
Indenture, and subject to Section 3.1, the Indenture shall be modified and
amended in accordance with this Third 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 Third
Supplemental Indenture will control. The Indenture, as modified and amended by
this Third 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 Third Supplemental
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Indenture, the provisions of the Indenture, as modified and amended by this
Third Supplemental Indenture, shall control.
Section 3.3 The Trustee.
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Third 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 3.4 Certain Duties and Responsibilities of the
Trustee.
In entering into this Third 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 3.5 Counterparts.
This Third 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 Third
Supplemental Indenture by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
Section 3.6 Applicable Law.
This Third 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 Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
By: /s/ XXXX X. XXXXX
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
CCFC FINANCE CORP.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
CALPINE HERMISTON, LLC, as a Guarantor
By: /s/ XXXX X. XXXXX
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
CPN HERMISTON, LLC, as a Guarantor
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
HERMISTON POWER PARTNERSHIP, as a Guarantor
By: Calpine Hermiston, LLC, its General Partner
By: /s/ XXXX X. XXXXX
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
WILMINGTON TRUST FSB, as Trustee
By: /s/ W. XXXXX XXXXXXXXXX
--------------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Authorized Signatory
