EXHIBIT 4.11
DECLARATION OF TRUST
OF
CALPINE CAPITAL TRUST V
THIS DECLARATION OF TRUST, dated as of January 10, 2002 (this
"Declaration of Trust"), is made by and among Calpine Corporation, a Delaware
corporation, as depositor (the "Depositor"), Wilmington Trust Company, a
Delaware banking corporation ("Wilmington Trust"), as Delaware trustee (the
"Delaware Trustee"), Wilmington Trust, as property trustee (the "Property
Trustee"), and Xxx X. Xxxxxx, as administrative trustee (the "Administrative
Trustee" and, together with the Delaware Trustee and the Property Trustee, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Calpine Capital Trust V"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount in
trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
(as defined below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the trust preferred securities of the Trust
(the "Preferred Securities") and the trust common securities of the Trust
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor, as the sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and file with the Securities and Exchange
Commission (the "Commission") and to execute, in each case on behalf of the
Trust, (a) the Registration Statement on Form S-3 or other appropriate form (the
"1933 Act Registration Statement"), including the prospectus and the exhibits
included therein, any pre-effective or post-effective amendments thereto and any
registration statements filed subsequent thereto under Rule 462(b) promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), relating to the
registration under the 1933 Act of the Preferred Securities and certain other
securities, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Preferred Securities required to be filed pursuant to the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
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Securities under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and such other documents, forms or filings as may be required by the 1933
Act, the 1934 Act, or the Trust Indenture Act of 1939, as amended, in each case
relating to the Preferred Securities; (ii) to prepare and file with the New York
Stock Exchange or other exchange (each, an "Exchange") or the National
Association of Securities Dealers ("NASD") and execute on behalf of the Trust a
listing application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market; (iii) to prepare, file and execute on behalf
of the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as the Depositor, on behalf of the Trust, may deem necessary or desirable to
register, or establish the exemption from registration of, the Preferred
Securities under the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities; and (v) to negotiate the terms
of, and execute, deliver and perform on behalf of the Trust, one or more
underwriting agreements with one or more underwriters, purchase agreements,
dealer manager agreements, escrow agreements and other documents and agreements,
in each case relating to the offering of the Preferred Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable. In the event
that any filing referred to in clauses (i), (ii) and (iii) above is required by
the rules and regulations of the Commission, any Exchange, the NASD or state
securities or "Blue Sky" laws, to be executed on behalf of the Trust by one or
more of the Trustees, any of the Trustees, in their capacity as trustees of the
Trust, are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, any Exchange,
the NASD or state securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be three (3) and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty (30) days' prior notice to the Depositor provided,
however, such notice shall not be required if it is waived by the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the
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extent that such Expenses arise out of or are imposed upon or asserted at any
time against such Indemnified Persons with respect to the performance of this
Declaration of Trust, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided, however, that the Depositor shall
not be required to indemnify any Indemnified Person for any Expenses which are a
result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
CALPINE CORPORATION,
as Depositor
By: /s/ XXX X. XXXXXX
----------------------------
Name:
---------------------------
Title:
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WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: XXXXX X. XXXXXX
---------------------------
Title: VICE PRESIDENT
-------------------------
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: XXXXX X. XXXXXX
---------------------------
Title: VICE PRESIDENT
-------------------------
/s/ XXX X. XXXXXX
--------------------------------
XXX X. XXXXXX,
as Administrative Trustee
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