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EXHIBIT 4.6
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 24, 1998
between
CALPINE CORPORATION,
AS ISSUER
and
THE BANK OF NEW YORK
AS TRUSTEE
Supplementing the Indenture
Dated as of March 31, 1998
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FIRST SUPPLEMENTAL INDENTURE, dated as of July 24, 1998 (the
"First 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 (the "Indenture"), to the Trustee to provide for the
issuance of $300,000,000 of the Company's 7-7/8 % Senior Notes due 2008 (the
"Initial Securities");
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to supplement and amend the Indenture to issue $100,000,000 additional
securities (the "Additional Securities" and, together with the Initial
Securities, the "Securities") of the Company as contemplated by Section 8.1(h)
of the Indenture;
WHEREAS, all things necessary to make this First 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 meaning assigned to such terms in the Indenture;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience of reference only and do
not affect interpretation;
(d) "Offering" means the offering and sale of the Initial
Securities and the offering and sale of Additional Securities.
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(e) "Additional Securities Registration Rights Agreement"
means the Registration Rights Agreement dated as of July 21, 1998.
ARTICLE II
AMENDMENTS TO THE INDENTURE
Section 2.1 Issuance of Additional Securities.
The Indenture is amended to provide for the issuance of
additional 7-7/8% Senior Notes due 2008 of the Company in an aggregate principal
amount of $100,000,000.
Section 2.2 Effectiveness.
The amendment set forth in Section 2.1 shall not be effective as
to any Security outstanding prior to the date hereof.
ARTICLE III
MISCELLANEOUS
Section 3.1 Form and Dating.
The Additional Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A annexed hereto,
which is part of this First Supplemental Indenture.
The terms and provisions contained in the forms of Additional
Securities annexed hereto as Exhibit A and Exhibit B shall constitute, and are
expressly made, a part of this First Supplemental Indenture.
Section 3.2 Execution and Authentication.
The Trustee shall authenticate (i) Additional Securities for
original issue in an aggregate principal amount of $100,000,000 and (ii)
Exchange Securities for issue only in exchange pursuant to the Additional
Securities Registration Rights Agreement, for a like principal amount of
Additional Securities, in each case, upon a written order of the Company signed
by two Officers.
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Section 3.3 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
Section 3.4 Governing Law.
This First Supplemental Indenture shall be deemed to be a
contract 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.
Section 3.5 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this First Supplemental Indenture but
this First Supplemental Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 3.6 Counterparts.
This First 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 3.7 Effectiveness.
This First Supplemental Indenture shall be effective and binding
when executed by the Company and the Trustee.
Section 3.8 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
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Section 3.9 Performance by Trustee.
The Trustee, for itself and its successors accepts the Trust of
the Indenture as amended by this First Supplemental Indenture and agrees to
perform the First 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 First
Supplemental Indenture to be duly executed as of the day and year first above
written.
CALPINE CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By:_____________________________
Name:
Title:
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EXHIBIT A
================================================================================
(Form of Face of Initial Security)
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8
OF THE INDENTURE (AS DEFINED BELOW).]*
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
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* This legend should only be added if the Security is issued as a Global Note.
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AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AS IN EFFECT
WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES AT THE TIME OF TRANSFER OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREIN RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTIONS," "UNITED STATES" AND "U.S.
PERSONS" HAVE THE MEANINGS
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GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
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CALPINE CORPORATION
7-7/8% SENIOR NOTE DUE 2008
No. S-1 $______________
CUSIP:
ISIN:
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of ______________ Dollars on April
1, 2008.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date:
CALPINE CORPORATION
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
The Bank of New York, as
Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
By: _________________________ Dated: ______________________
Authorized Signature
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(Form of Reverse of Initial Security)
CALPINE CORPORATION
7-7/8% SENIOR NOTE DUE 2008
(1) Interest. Calpine Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture referred to
below, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at 7-7/8% per annum (subject to adjustment as
provided below). The Company will pay interest semiannually on April 1 and
October 1 of each year. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from March 31, 1998. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
If an exchange offer registered under the Securities Act (as
defined in the Indenture) is not consummated, or a registration statement under
the Securities Act with respect to resales of the Securities is not declared
effective by the SEC (as defined in the Indenture), by September 26, 1998, in
accordance with the terms of a Registration Rights Agreement dated July 21, 1998
by and between the Company and Xxxxxx Xxxxxxx & Co. Incorporated (the
"Additional Securities Registration Rights Agreement"), the annual interest rate
due on the Securities shall be increased by one-half of one percent, commencing
as of September 27, 1998 (the 181st calendar day following the initial sale of
the Securities), until the exchange offer is consummated or the shelf
registration statement is declared effective. The holder of this Security is
entitled to the benefits of such Additional Securities Registration Rights
Agreement.
(2) Method of Payment. The Company will pay interest on the
Securities (except Defaulted Interest) to the persons who are registered Holders
of Securities at the close of business on the record date next preceding the
interest payment date even though Securities are canceled after the record date
and on or before the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
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(3) Paying Agent, Registrar. Initially, The Bank of New York, a
New York banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar or co-registrar.
(4) Indenture. The Company issued the Securities under an
Indenture dated as of March 31, 1998, as supplemented by the First Supplemental
Indenture dated as of July 24, 1998 (together, the "Indenture") between the
Company and the Trustee. The Securities are unsecured general obligations of the
Company limited to $400,000,000 in aggregate principal amount. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the "TIA"). Capitalized terms used herein but not defined herein
are used as defined in the Indenture. The Securities are subject to all such
terms, and Securityholders are referred to the Indenture and the TIA for a
statement of such terms.
(5) Redemption. The Company may not redeem the Securities prior
to maturity.
(6) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security 15 days before an interest payment date.
(7) Put Provisions. Upon a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to repurchase
all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
(8) Defeasance. Subject to certain conditions, the Company at any
time may terminate some or all of its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money and/or U.S. Government
Obligations for the payment of principal and interest on the Securities to
maturity.
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(9) Persons Deemed Owners. The registered Holder of a Security
may be treated as its owner for all purposes, except that interest (other than
Defaulted Interest) will be paid to the person that was the registered Holder on
the relevant record date for such payment of interest.
(10) Amendments and Waivers. Subject to certain exceptions, (i)
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of a majority in principal amount of the Securities; and (ii) any
existing default may be waived with the consent of the Holders of a majority in
principal amount of the Securities. Without the consent of any Securityholder,
the Indenture or the Securities may be amended or supplemented to cure any
ambiguity, omission, defect or inconsistency, to provide for assumption of
Company obligations to Securityholders or to provide for uncertificated
Securities in addition to or in place of certificated Securities, to provide for
guarantees with respect to, or security for, the Securities, or to comply with
the TIA or to add additional covenants or surrender Company rights, or to make
any change that does not adversely affect the rights of any Securityholder.
(11) Remedies. If an Event of Default occurs and is continuing,
the Trustee or Holders of at least 25% in principal amount of the Securities may
declare all the Securities to be due and payable immediately. Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require an indemnity before it enforces the Indenture
or the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
(12) Trustee Dealings with Company. Subject to the provisions of
the TIA, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee. The Trustee will initially be The Bank of
New York.
(13) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each
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Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
(14) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(15) Abbreviations. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE, WHICH HAS IN IT THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: SECRETARY, CALPINE
CORPORATION, 00 XXXX XXX XXXXXXXX XXXXXX, XXX XXXX, XXXXXXXXXX 00000.
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================================================================================
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Dated:_________ Signed:______________________________
______________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
MANNER OF TRANSFER (Check one)
Transfer to Calpine Corporation [ ]
Transfer to Qualified Institutional Buyer [ ]
Transfer to Institutional Accredited Investor [ ]
Transfer outside the United States in
compliance with Rule 904 under
the Securities Act of 1933 [ ]
================================================================================
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Security purchased by the Company
pursuant to Section 3.8 or 3.12 of the Indenture, check this box: [ ]
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If you wish to elect to have only part of this Security purchased by the
Company pursuant to Section 3.8 or 3.12 of the Indenture, state the amount: $
*As set forth in the Indenture, any purchase pursuant to Section 3.12 is
subject to proration in the event the offer is oversubscribed.
Dated:_________ Signed:______________________________
______________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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EXHIBIT B
================================================================================
(Form of Face of Exchange Security)
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8
OF THE INDENTURE (AS DEFINED BELOW).]*
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* This legend should only be added if the Security is issued as a Global Note.
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CALPINE CORPORATION
7-7/8% SENIOR NOTE DUE 2008
No._______________ $______________
CUSIP:
ISIN:
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of ______________ Dollars on April
1, 2008.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date:
CALPINE CORPORATION
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
The Bank of New York, as
Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
By: _________________________ Dated: ____________________
Authorized Signature
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(Form of Back of Exchange Security)
CALPINE CORPORATION
7-7/8% SENIOR NOTE DUE 2008
(1) Interest. Calpine Corporation, a California corporation (such
corporation, and its successors and assigns under the Indenture referred to
below, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at 7-7/8% per annum. The Company will pay
interest semiannually on April 1 and October 1 of each year. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from March 31, 1998. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
(2) Method of Payment. The Company will pay interest on the
Securities (except Defaulted Interest) to the persons who are registered Holders
of Securities at the close of business on the record date next preceding the
interest payment date even though Securities are canceled after the record date
and on or before the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
(3) Paying Agent, Registrar. Initially, The Bank of New York, a
New York banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar or co-registrar.
(4) Indenture. The Company issued the Securities under an
Indenture dated as of March 31, 1998, as supplemented by the First Supplemental
Indenture dated as of July 24, 1998 (together, the "Indenture") between the
Company and the Trustee. The Securities are unsecured general obligations of the
Company limited to $400,000,000 in aggregate principal amount. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa- 77bbbb) (the "TIA"). Capitalized terms used herein but not defined herein
are used as defined in the Indenture. The Securities are subject to all such
terms, and Securityholders are referred to the Indenture and the TIA for a
statement of such terms.
B-3
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(5) Redemption. The Company may not redeem the Securities prior
to maturity.
(6) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security 15 days before an interest payment date.
(7) Put Provisions. Upon a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to repurchase
all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
(8) Defeasance. Subject to certain conditions, the Company at any
time may terminate some or all of its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money and/or U.S. Government
Obligations for the payment of principal and interest on the Securities to
maturity.
(9) Persons Deemed Owners. The registered Holder of a Security
may be treated as its owner for all purposes, except that interest (other than
Defaulted Interest) will be paid to the person that was the registered Holder on
the relevant record date for such payment of interest.
(10) Amendments and Waivers. Subject to certain exceptions, (i)
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of a majority in principal amount of the Securities; and (ii) any
existing default may be waived with the consent of the Holders of a majority in
principal amount of the Securities. Without the consent of any Securityholder,
the Indenture or the Securities may be amended or supplemented to cure any
ambiguity, omission, defect or inconsistency, to provide for assumption of
Company obligations to Securityholders or to provide for uncertificated
Securities in addition to or in place of certificated Securities, to provide for
guarantees with respect to, or security for, the Securities, or to comply with
the TIA or to add additional covenants or surrender Company rights, or to make
any change that does not adversely affect the rights of any Securityholder.
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(11) Remedies. If an Event of Default occurs and is continuing,
the Trustee or Holders of at least 25% in principal amount of the Securities may
declare all the Securities to be due and payable immediately. Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require an indemnity before it enforces the Indenture
or the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
(12) Trustee Dealings with Company. Subject to the provisions of
the TIA, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee. The Trustee will initially be The Bank of
New York.
(13) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
(14) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(15) Abbreviations. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on the
other identification numbers placed thereon.
B-5
22
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE, WHICH HAS IN IT THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: SECRETARY, CALPINE
CORPORATION, 00 XXXX XXX XXXXXXXX XXXXXX, XXX XXXX, XXXXXXXXXX 00000.
B-6
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
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Dated:__________ Signed:____________________________
____________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
================================================================================
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Security purchased by the Company
pursuant to Section 3.8 or 3.12 of the Indenture, check this box: / /
If you wish to elect to have only part of this Security purchased by the
Company pursuant to Section 3.8 or 3.12 of the Indenture, state the amount: $
B-7
24
*As set forth in the Indenture, any purchase pursuant to Section 3.12 is
subject to proration in the event the offer is oversubscribed.
Dated:__________ Signed:____________________________
____________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
