EXHIBIT 4.5
SUPPLEMENTAL INDENTURE
Dated as of September 18, 2003
Between
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
AND
CCFC FINANCE CORP.
AND THE GUARANTORS NAMED HEREIN
WILMINGTON TRUST FSB
Trustee
Supplementing the Indenture
Dated as of August 14, 2003
SUPPLEMENTAL INDENTURE, dated as of September 18, 2003 (the
"Supplemental Indenture"), between 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. and the Guarantors executed and
delivered the Indenture dated as of August 14, 2003 (the "Indenture") to the
Trustee in connection with the co-issuance by the Company and Finance Corp. of
$365,000,000 Second Priority Senior Secured Floating Rate Notes due 2011 (the
"Notes");
WHEREAS, the Holders of at least a majority in aggregate principal
amount of the Notes have approved such amendment proposed by the Company
pursuant to Section 9.02 of the Indenture, the parties hereto desire to
supplement and amend Section 4.07 of the Indenture as provided herein; and
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 4.07 (Restricted Payments) of the Indenture is hereby amended
to insert the following as the last sentence of such section:
"Notwithstanding the foregoing, the Company may distribute
to the direct or indirect holders of the Company's Equity
Interests in their capacity as such the net proceeds from
any issuance of Indebtedness incurred pursuant to clause (3)
of Section 4.09 hereof (other than Permitted Refinancing
Indebtedness incurred pursuant to such clause (3) to refund,
refinance or replace any Indebtedness previously incurred
pursuant to such clause (3))."
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ARTICLE III
MISCELLANEOUS
Section 3.1 Interpretation.
Upon execution and delivery of this Supplemental Indenture, the
Indenture shall be modified and amended in accordance with this 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 Supplemental Indenture will control. The Indenture, as
modified and amended by this 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 Supplemental
Indenture, the provisions of the Indenture, as modified and amended by this
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 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 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 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 Supplemental
Indenture by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
Section 3.5 Applicable Law.
This 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
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: Vice President
CCFC FINANCE CORP.
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
CALPINE HERMISTON, LLC
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
CPN HERMISTON, LLC
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
HERMISTON POWER PARTNERSHIP
By: Calpine Hermiston, LLC
its General Partner
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
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WILMINGTON TRUST FSB,
as Trustee
By: /s/ JAMES J. MCGINLEY
---------------------------------------
Name: James J. McGinley
Title: Vice President
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