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EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 10, 1997
between
CALPINE CORPORATION,
AS ISSUER
and
THE BANK OF NEW YORK
AS TRUSTEE
Supplementing the Indenture
Dated as of July 8, 1997
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FIRST SUPPLEMENTAL INDENTURE, dated as of September 10, 1997 (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 July 8, 1997 (the "Indenture"), to the Trustee to provide for the issuance
of $200,000,000 of the Company's 8:% Senior Notes due 2007 (the "Initial
Securities");
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to supplement and amend the Indenture to issue $75,000,000 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 I.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) capitalized terms used herein that are not otherwise
defined herein shall have the meaning assigned to such terms in the Indenture;
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(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do
not affect interpretation;
(e) "Offering" means the offering and sale of the Initial
Securities and the offering and sale of Additional Securities.
(f) "Registration Rights Agreement" means the
Registration Rights Agreement dated as of July 1, 1997 and the Registration
Rights Agreement dated as of September 5, 1997.
ARTICLE II
AMENDMENTS TO THE INDENTURE
Section II.1 Issuance of Additional Securities.
The Indenture is amended to provide for the issuance of
additional 8 3/4% Senior Notes due 2007 of the Company in an aggregate principal
amount of $75,000,000.
Section II.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 III.1 Form and Dating.
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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 III.2 Execution and Authentication.
The Trustee shall authenticate (i) Additional Securities for
original issue in an aggregate principal amount of $75,000,000 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.
Section III.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 III.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 III.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
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Supplemental Indenture shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section III.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 III.7 Effectiveness.
This First Supplemental Indenture shall be effective and binding
when executed by the Company and the Trustee.
Section III.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.
Section III.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: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Chairman, President and CEO
By: /s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
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EXHIBIT A
CALPINE CORPORATION
8 3/4% Senior Note Due 2007
No. S-1 $75,000,000
CUSIP: 000000XX0
ISIN: US131347AE66
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of Seventy Five Million Dollars on
July 15, 2007.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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.
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By: _________________________ Dated: ______________________
Authorized Signature
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(Form of Reverse of Initial Security)
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Calpine Corporation
8 3/4% Senior Note Due 2007
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 8 3/4% per annum (subject to adjustment as
provided below). The Company will pay interest semiannually on January 15 and
July 15 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 July 8, 1997. 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 January 4, 1998, in
accordance with the terms of a Registration Rights Agreement dated September 5,
1997 by and between the Company and Credit Suisse First Boston Corporation (the
"Additional Securities Registration Rights Agreement") interest due per annum on
the Securities shall be permanently increased by one-half of one percent,
commencing as of January 5, 1998. 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.
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, Xxxxxxxxx xx xx-xxxxxxxxx.
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0. Indenture. The Company issued the Securities under an
Indenture dated as of July 8, 1997, as supplemented by the First Supplemental
Indenture dated as of September 10, 1997 (together the "Indenture") between the
Company and the Trustee. The Securities are unsecured general obligations of
the Company limited to $275,000,000 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. Optional Redemption. Except as set forth in the following para
graph, the Company may not redeem the Securities prior to July 15, 2002. On and
after such date, the Company may redeem the Securities at any time as a whole,
or from time to time in part, at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the redemption date,
if redeemed during the 12-month period beginning July 15,
Year %
---- --
2002 . . . . . . . . . . 104.3750%
2003 . . . . . . . . . . 102.1875%
2004 and thereafter . . 100.000%
The Company may redeem up to $26,250,000 principal amount of
Securities with the proceeds of one or more Public Equity Offerings following
which there is a Public Market, if at least $48,750,000 principal amount remains
outstanding after each such redemption, in whole or from time to time in part,
at a price (expressed as a percentage of principal amount), plus accrued
interest to the redemption date, of 108.75% if redeemed at any time prior to
July 15, 2000.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at the address set forth for such Holder on
the register referred to in Section 2.3 of the Indenture. Unless the Company
shall default in payment of the redemption price plus accrued interest, on and
after the redemption date interest ceases to accrue on such Securities or
portions of them called for redemption. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000.
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0. 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 selected for redemption (except, in the case
of a Security to be redeemed in part, the portion thereof not to be redeemed) or
any Securities for a period of 15 days before a selection of Securities to be
redeemed, or 15 days before an interest payment date.
8. 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.
9. 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
redemption or maturity, as the case may be.
10. Persons Deemed Owners. The registered Holder of a Security
may be treated as its owner for all purposes, except that interest (other than
defaulted inter est) will be paid to the person that was the registered Holder
on the relevant record date for such payment of interest.
11. 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 incon sistency, 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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00. 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.
13. 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.
14. 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.
15. Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
16. 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 and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in
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any notice of redemption 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.)
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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.
MANNER OF TRANSFER (Check one)
Transfer to Calpine Corporation [ ]
Transfer to Qualified Institutional Buyer [ ]
Transfer outside the United States in
compliance with Rule 904 under
the Securities Act of 1993 [ ]
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: $
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*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
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(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).(1)
----------------------
(1) This legend should only be added if the Security is issued as a Global Note.
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CALPINE CORPORATION
8 3/4% SENIOR NOTE DUE 2007
No.____________________ $75,000,000
CUSIP: 000000XX0
ISIN US 131347AE66
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of Seventy Five Million Dollars on
July 15, 2007.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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.
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By: _________________________ Dated: ____________________
Authorized Signature
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(Form of Back of Exchange Security)
CALPINE CORPORATION
8 3/4% SENIOR NOTE DUE 2007
(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 8 3/4(2) per annum. The Company will pay
interest semiannually on January 15 and July 15 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 July 8, 1997. 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.
--------
(2) 9 1/4% if the exchange offer is not consummated before January 5, 1998.
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(4) Indenture. The Company issued the Securities under an
Indenture dated as of July 8, 1997, as supplemented by the First Supplemental
Indenture dated as of September 10, 1997 (the "Indenture"), between the Company
and the Trustee. The Securities are unsecured general obligations of the
Company limited to $275,000,000 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) Optional Redemption. Except as set forth in the following
paragraph, the Company may not redeem the Securities prior to July 15, 2002. On
and after such date, the Company may redeem the Securities at any time as a
whole, or from time to time in part, at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning July 15,
Year %
---- --
2002 . . . . . . . . . . 104.3750%
2003 . . . . . . . . . . 102.1875%
2004, and thereafter . . 100.00%
The Company may redeem up to $26,250,000 principal amount of
Securities with the proceeds of one or more Public Equity Offerings if at least
$48,750,000 principal amount remains outstanding after each such redemption in
whole or from time to time in part, at a price (expressed as a percentage of
principal amount), plus accrued interest to the redemption date, of 108.75% if
redeemed at any time prior to July 15, 2000.
(6) Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at the address set forth for such Holder on
the register referred to in Section 2.3 of the Indenture. Unless the Company
shall default in payment of the redemption price plus accrued interest, on and
after the redemption date interest ceases to accrue on such Securities or
portions of them called for redemption. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000.
(7) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The
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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 selected for redemption (except, in the case of a Security to be
redeemed in part, the portion thereof not to be redeemed) or any Securities for
a period of 15 days before a selection of Securities to be redeemed, or 15 days
before an interest payment date.
(8) 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.
(9) 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
redemption or maturity, as the case may be.
(10) 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.
(11) 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.
(12) 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
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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.
(13) 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.
(14) 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.
(15) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(16) 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 and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
B-7
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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-8
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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.
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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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-9
25
*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.
B-10
26
EXHIBIT C
Form of Certificate to be Delivered
In Connection with Transfer
Pursuant to Rule 000X
Xxx Xxxx xx Xxx Xxxx, as Depositary
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: Calpine Corporation (the "Company")
8 3/4% Senior Notes due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with a transaction meeting the requirements of
Rule 144A under the Securities Act of 1933, as amended (the "Act"). We hereby
certify that we are and the transferee is a "qualified institutional buyer" (as
defined in Rule 144A under the Act) and that we are acting for our own account
or for the account of one or more qualified institutional buyers, and,
accordingly, we agree (or if we were acting for the account of one or more
qualified institutional buyers, each such qualified institutional buyer has
confirmed to us that it agrees) that we or the transferee will not offer, sell,
pledge or otherwise transfer the Notes except (A) to a Person who we reasonably
believe (or the transferee and anyone acting on its behalf reasonably believes)
is a qualified institutional buyer in a transaction meeting the requirements of
Rule 144A, or (B) pursuant to the exemption from registration under the Act
provided by Rule 144 (if available), in each case in accordance with any
applicable securities laws of the states of the United States.
If we are a broker-dealer, we further certify that we are acting
for the account of our customer and that our customer has confirmed the accuracy
of the representations contained herein that are applicable to it (including the
representations with respect to beneficial ownership).
This certificate and the statements contained herein are made for
the benefit of the Company and the Initial Purchasers. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
C-1
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By:
--------------------------------
Name:
Title:
C-2
28
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------, ----
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Re: Calpine Corporation (the "Company")
8 3/4% Senior Notes Due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
D-1
29
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Authorized Signature
D-2
