EXHIBIT 4.3.4
THIRD SUPPLEMENTAL INDENTURE
Dated as of April 26, 2004
Between
CALPINE CORPORATION,
AS ISSUER
and
THE BANK OF NEW YORK,
AS TRUSTEE
Supplementing the Indenture
Dated as of March 31, 1998
and
Amended as of July 24, 1998 and July 31, 2000
THIRD SUPPLEMENTAL INDENTURE, dated as of April 26, 2004 (the "Supplemental
Indenture"), between Calpine Corporation, a Delaware corporation (the
"Company"), and The Bank of New York, as Trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as of March
31, 1998, as supplemented by the First Supplemental Indenture, dated as of July
24, 1998, and the Second Supplemental Indenture, dated as of July 31, 2000 (as
so supplemented, the "Indenture"), to the Trustee to provide for the issuance of
$400,000,000 of the Company's 7-7/8% Senior Notes due 2008;
WHEREAS the Holders (as defined in the Indenture) of a majority in
principal amount outstanding of such Senior Notes have approved certain
amendments proposed by the Company to certain provisions of the Indenture, and
the Company desires to supplement and amend the Indenture accordingly as
contemplated by Section 8.2 thereof; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement of the Company and the Trustee in accordance with its terms and a
valid amendment and supplement to the Indenture, have been done.
NOW THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, the Company and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires
(a) capitalized terms used herein that are not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect
interpretation.
ARTICLE II
AMENDMENTS TO INDENTURE
Section 2.1 Amendments.
(a) The following definitions are added in the appropriate alphabetical
order to Section 1.1 of the Indenture:
"Designated Assets" means all geothermal energy assets (including any
related extraction processing or similar equipment and geothermal power
plants)
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and all natural gas assets (including any related extraction, processing or
similar equipment, other than natural gas power plants) owned by the
Company or any of its Restricted Subsidiaries from time to time, including
the equity interests of any Restricted Subsidiary owning any Designated
Assets, but excluding (i) any geothermal energy assets that are both
unproven and undeveloped and (ii) contracts for the purchase or sale of
natural gas and natural gas supplied under such contracts.
"Fair Market Value" means the value that would be paid by a willing
buyer to a willing seller in a transaction not involving distress or
necessity of either party, determined in good faith by the Board of
Directors (unless otherwise provided in this Indenture).
"Material Designated Assets" means Designated Assets having a Fair
Market Value in the aggregate in excess of $50,000,000.
(b) The definition of "Preferred Stock" in Section 1.1 is amended to read
in its entirety as follows:
"Preferred Stock", as applied to the Capital Stock of any corporation
or other Person, means the Capital Stock of any class (however designated)
which is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation or other Person, over shares of Capital
stock of any other class of such corporation or other Person.
(c) Section 3.3(b) is amended by inserting the following immediately after
the word "and" at the end of clause (iv):
(v) the payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Restricted
Subsidiary of the Company to the holders of any class or series of such
Restricted Subsidiary's Capital Stock on a pro rata basis.
(d) Section 3.4(b) is amended by (i) deleting the word "and" at the end of
clause (ix), (ii) deleting the period (".") at the end of clause (x) and
replacing it with a semicolon (";"), (iii) inserting the word "and" immediately
after the semicolon at the end of clause (x); and (iv) inserting the following
immediately after such word "and":
(xi) the issuance of Preferred Stock by a Restricted Subsidiary of the
Company (other than a Restricted Subsidiary that owns, directly or
indirectly, any Material Designated Assets), the net proceeds of which are
applied to finance the exploration, drilling, development, construction or
purchase of or by, or repairs or improvements or additions to, property or
assets of the Company or any Restricted Subsidiary.
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(e) Section 3.5(c) is amended to read in its entirety as follows:
(c) Refinancing Indebtedness; provided that the restrictions contained
in the agreements governing such Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;
(f) Section 3.5(d) is amended to read in its entirety:
(d) in the case of clause (iii) above, customary non-assignment
provisions of (A) any leases governing a leasehold interest or (B) any
supply, license or other agreement entered into in the ordinary course of
business of the Company or any Subsidiary;
(g) Section 3.5(f) is amended to read in its entirety:
(f) any encumbrance or restriction imposed pursuant to the terms of
any Indebtedness incurred pursuant to Section 3.4(b)(vii) or any Preferred
Stock issued pursuant to Section 3.4(b)(xi), provided that such encumbrance
or restriction, in the written opinion of the President, Vice Chairman,
Chief Operating Officer or Chief Financial Officer of the Company, (x) is
required in order to obtain such financing or to place such Preferred
Stock, (y) is customary for such financings or placements and (z) applies
only to the assets or revenues of the applicable Restricted Subsidiary;
(h) Section 3.5 is amended by (i) deleting the period (".") at the end of
clause (g) and replacing it with a semicolon (";"), and (ii) inserting the
following immediately after such new semicolon:
(h) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 3.7 herein that limit the right of the
debtor to dispose of the assets subject to such Liens;
(i) provisions limiting or prohibiting the disposition or distribution
of assets or property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of the Board of Directors, which
limitation or prohibition is applicable only to the assets that are subject
of such agreements; or
(j) restrictions on cash or other deposits or net worth imposed by
customers or suppliers under contracts entered into in the ordinary course
of business.
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(i) Section 3.7 is amended by (i) deleting the word "and" at the end of
clause (p), and (ii) inserting the following immediately before the final
proviso in such Section:
(r) Liens not in respect of Indebtedness consisting of the interest of
the lessor under any lease entered into in the ordinary course of business
and not otherwise prohibited by this Indenture; and Liens on shares of
Capital Stock of a Subsidiary that does not own any significant assets
other than a lessee's interest in a Facility or on the Capital Stock of a
Subsidiary whose only significant asset is its direct or indirect interest
in such lessee Subsidiary; and (s) Liens (i) on cash and short-term
investments of Restricted Subsidiaries to secure obligations with respect
to (A) contracts for commercial and trading activities in the ordinary
course of business and contracts (including physical delivery, option
(whether cash or financial), exchange, swap and futures contracts) for the
purchase, transmission, distribution, sale, lease or hedge of any
energy-related commodity or service or (B) interest rate, commodity price,
or currency rate management contracts or derivatives and (ii) encumbering
assets of a Restricted Subsidiary, other than (1) Material Designated
Assets or (2) accounts or receivables, which Liens arise out of contracts
or agreements relating to the generation, distribution or transmission or
sale of energy and/or fuel; provided that all such agreements or contracts
are entered into in the ordinary course of business;
(j) Section 3.17 is deleted in its entirety and the term "[Deleted]" is
inserted in lieu thereof.
ARTICLE III
MISCELLANEOUS
Section 3.1 Notification of Holders.
The Company shall notify the Holders in accordance with Section 8.2 of the
Indenture of the execution of this Supplemental Indenture.
Section 3.2 Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all
respects ratified and confirmed, and this Supplemental Indenture shall be deemed
part of the Indenture in the manner and to the extent herein and therein
provided.
Section 3.3 Governing Law.
This Supplemental Indenture shall be deemed to be a contact made under the
laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
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Section 3.4 Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture shall for any reason by held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Supplemental Indenture but this Supplemental
Indenture shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 3.5 Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 3.6 Effectiveness.
This Supplemental Indenture shall be effective and binding when executed by
the Company and the Trustee.
Section 3.7 Trustee not Responsible for Recitals.
The recitals herein contained are made by the Company and not the Trustee,
and the Trustee assumes no responsibility for correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this Supplemental
Indenture.
Section 3.8 Performance by Trustee.
The Trustee, for itself and its successor accepts the Trust of the
Indenture as amended by this Supplemental Indenture and agrees to perform the
same, but only upon the terms and conditions set forth in the Indenture,
including the terms and provisions defining and limiting the liability and
responsibility of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of day and year first above written.
CALPINE CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
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