Calpine Corp – ‘10-K’ for 12/31/03 – EX-4.14.4

On:  Wednesday, 3/24/04, at 9:50pm ET   ·   As of:  3/25/04   ·   For:  12/31/03   ·   Accession #:  891618-4-798   ·   File #:  1-12079

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Annual Report   —   Form 10-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                       HTML   3.19M 
 2: EX-4.14.3   Instrument Defining the Rights of Security Holders     6     27K 
 3: EX-4.14.4   Instrument Defining the Rights of Security Holders     7     36K 
 4: EX-4.16     Instrument Defining the Rights of Security Holders   104    507K 
 5: EX-4.17.1   Instrument Defining the Rights of Security Holders    98    474K 
 6: EX-4.17.2   Instrument Defining the Rights of Security Holders    17     91K 
 7: EX-4.19     Instrument Defining the Rights of Security Holders   160    719K 
 8: EX-4.20     Instrument Defining the Rights of Security Holders   164    722K 
 9: EX-4.21     Instrument Defining the Rights of Security Holders   181    789K 
10: EX-10.1.1.2  Material Contract                                   188    707K 
17: EX-10.1.10.2  Material Contract                                    4     24K 
11: EX-10.1.2.6  Material Contract                                    20     37K 
12: EX-10.1.2.7  Material Contract                                    17     40K 
13: EX-10.1.2.8  Material Contract                                     2     16K 
14: EX-10.1.2.9  Material Contract                                    23     33K 
18: EX-10.1.25  Material Contract                                     28    115K 
15: EX-10.1.7.2  Material Contract                                     6     25K 
16: EX-10.1.8.2  Material Contract                                     4     22K 
19: EX-10.2.2.3  Material Contract                                    28     38K 
20: EX-10.2.2.4  Material Contract                                    45     71K 
21: EX-10.2.3   Material Contract                                    170    635K 
22: EX-10.2.4   Material Contract                                    171    639K 
23: EX-10.3.1   Material Contract                                     54    147K 
24: EX-10.3.7   Material Contract                                      6     28K 
25: EX-12.1     Statement re: Computation of Ratios                    1     14K 
26: EX-21.1     Subsidiaries of the Registrant                         8     42K 
27: EX-23.1     Consent of Experts or Counsel                          1     13K 
28: EX-23.2     Consent of Experts or Counsel                          1     12K 
29: EX-23.3     Consent of Experts or Counsel                          1     12K 
30: EX-23.4     Consent of Experts or Counsel                          1     11K 
31: EX-31.1     Certification per Sarbanes-Oxley Act (Section 302)     2±    15K 
32: EX-31.2     Certification per Sarbanes-Oxley Act (Section 302)     2±    15K 
33: EX-32.1     Certification per Sarbanes-Oxley Act (Section 906)     1     12K 
34: EX-99.1     Miscellaneous Exhibit                                 15     78K 
35: EX-99.2     Miscellaneous Exhibit                                  1     12K 

EX-4.14.4   —   Instrument Defining the Rights of Security Holders
Exhibit Table of Contents

EX-4.14.4
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                                                                  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

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                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.                  

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              "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/ ERIC N. PRYOR
                                    --------------------------------------------
            Name:  Eric N. Pryor
                    Title: Senior Vice President

    CCFC FINANCE CORP.

        By:  /s/ ERIC N. PRYOR
                                    --------------------------------------------
            Name:  Eric N. Pryor
                    Title: Senior Vice President

                        CALPINE HERMISTON, LLC, as a Guarantor

        By:  /s/ ERIC N. PRYOR
                                    --------------------------------------------
            Name:  Eric N. Pryor
                    Title: Senior Vice President

                    CPN HERMISTON, LLC, as a Guarantor

        By:  /s/ ERIC N. PRYOR
                                    --------------------------------------------
            Name:  Eric N. Pryor
                    Title: Senior Vice President

                             HERMISTON POWER PARTNERSHIP, as a Guarantor

                                 By: Calpine Hermiston, LLC, its General Partner

        By:  /s/ ERIC N. PRYOR
                                    --------------------------------------------
            Name:  Eric N. Pryor
                    Title: Senior Vice President

                  WILMINGTON TRUST FSB, as Trustee

              By:  /s/ W. CHRIS SPONENBERG
                                    --------------------------------------------
                  Name:  W. Chris Sponenberg
                    Title:  Authorized Signatory

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘10-K’ Filing		Date		First		Last			Other Filings
Filed as of:		3/25/04
Filed on:		3/24/04
		3/5/04		1		2
		2/20/04		2					8-K
		2/18/04		3		5			4
		1/14/04		1		2
For Period End:		12/31/03							10-K/A,  11-K,  NT 10-K,  NT 11-K
		9/18/03		1		2
		8/14/03		1		2			10-Q,  8-K
									List all Filings