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EXHIBIT 4.5
AMENDMENT NO. 1
TO THE
DECLARATION Of TRUST
OF
CALPINE CAPITAL TRUST III
This Amendment No. 1 to the Declaration of Trust of Calpine Capital Trust
III (the "Trust"), dated as of July 19, 2000 (this "Amendment"), is made and
entered into among Calpine Corporation, a Delaware corporation, as depositor
(the "Depositor"), and Wilmington Trust Company, a Delaware banking corporation
("WTC"), as trustee, Peter Cartwright, Ann B. Curtis, and Thomas R. Mason, each
an individual, as trustees (collectively, the "Trustees").
WITNESSETH
WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del., C. Section 3801, et seq.
(the "Act") pursuant to (i) the Declaration of Trust of the Trust, dated as of
June 28, 2000 (the "Declaration"), and (ii) the Certificate of Trust of the
Trust, dated June 28, 2000, as filed with the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on June 28, 2000, to be
amended and restated by an Amended and Restated Certificate of Trust of the
Trust; and
WHEREAS, in accordance with Section 3.1 of the Declaration, the Depositor
removed The Bank of New York, a New York banking corporation ("BNY"), and The
Bank of New York (Delaware), a Delaware banking corporation ("BNY(DE)"), as
trustees of the Trust and appointed WTC, as a trustee of the Trust, pursuant to
a Removal and Appointment of Trustees of the Trust, dated as of July 19, 2000;
and
WHEREAS, the Depositor and the Trustees desire to amend the Declaration as
set forth herein pursuant to Section 5.1 of the Declaration.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
I. AMENDMENTS.
A. Section 1.1 of the Declaration is hereby amended by inserting
the following language after the definition of the term
Indenture: "Offering Circular" means the offering circular
relating to the issuance by the Trust of the Preferred
Securities.
B. Section 3.3 of the Declaration is hereby amended by replacing
"Wilmington Trust Company" for "The Bank of New York
(Delaware)."
C. Section 3.4 of the Declaration is hereby amended by replacing
"Wilmington Trust Company" for "The Bank of New York."
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D. Section 2.6 of the Declaration is hereby amended and restated
in its entirety as follows:
SECTION 2.6 Powers of the Trustees.
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however,
that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust
other than the Securities and the issuance of the Securities shall
be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities to:
(i) assist in the preparation of the Offering Circular
and preliminary offering circular, if any, in each case
prepared by the Depositor, in relation to the offering and
sale of the Preferred Securities to qualified institutional
buyers in reliance of Rule 144A under the Securities Act and
to execute and file with the Commission, at such time as
determined by the Depositor a registration statement under the
Securities Act prepared by the Depositor, including any
amendments thereto in relation to the Preferred Securities,
and all other registrations, applications, statements,
certificates, and other instruments;
(ii) execute and file any documents prepared by the
Depositor, or take any acts as determined by the Depositor to
be necessary in order to qualify or register all or part of
the Preferred Securities in any state or foreign jurisdiction
in which the Depositor has determined to qualify or register
such Preferred Securities for sale;
(iii) execute and deliver letters, documents, or
instruments with The Depository Trust Company relating the
Preferred Securities;
(iv) execute and enter into a purchase agreement and a
registration rights agreement and other related agreements
providing for the sale and registration of the Preferred
Securities; and
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(v) execute and file any agreement, certificate or other
document which such Administrative Trustee deems necessary or
appropriate in connection with the issuance and sale of the
Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided,
however, that the Administrative Trustees shall cause legal title to
the Debentures to be held of record in the name of the Property
Trustee for the benefit of the Holders of the Preferred Securities
and the Holders of Common Securities;
(d) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers,
contractors, advisors and consultants and provide for reasonable
compensation for such services;
(e) to incur expenses that are necessary or incidental to
carry out any of the purposes of this Declaration; and
(f) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing.
D. Section 2.9 of the Declaration is hereby amended and
restated in its entirety as follows:
SECTION 2.9 Responsibilities of the Depositor
In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to prepare the Offering Circular and any preliminary
offering circular, and to prepare for filing by the Trust with the
Commission the registration statement pursuant to a registration
rights agreement;
(b) to determine the states and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the
Depositor deems necessary or
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advisable in order to comply with the applicable laws of any such
States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to
PORTAL and to the New York Stock Exchange or any other national
stock exchange or the NASDAQ National Market for listing or
quotation of the Preferred Securities (including at the time of the
Remarketing); and
(d) to negotiate the terms of a purchase agreement, a
registration rights agreement and a remarketing agreement relating
to a remarketing of the Preferred Securities and other related
agreements providing for the sale of the Preferred Securities.
II. MISCELLANEOUS.
A. Successors and Assigns. This Amendment shall be binding upon, and shall
enure to the benefit of, the parties hereto and their respective successors and
assigns.
B. Full Force and Effect. Except to the extent modified hereby, the
Declaration shall remain in full force and effect.
C. Counterparts. This Amendment may be executed in counterparts, all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
D. Governing Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
E. Effectiveness of Amendment. This Amendment shall be effective
immediately upon execution.
F. Capitalized Terms. Capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CALPINE CORPORATION, as depositor
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Property
Trustee
By: /s/ DENISE M. GERAN
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Authorized Signatory
WILMINGTON TRUST COMPANY, as Delaware
Trustee
By: /s/ DENISE M. GERAN
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Authorized Signatory
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CALPINE CORPORATION, as depositor
By: /s/ ANN B. CURTIS
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Name:
Title:
WILMINGTON TRUST COMPANY, as Property
Trustee
By:
-------------------------------------
Authorized Signatory
WILMINGTON TRUST COMPANY, as Delaware
Trustee
By:
-------------------------------------
Authorized Signatory
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/s/ PETER CARTWRIGHT
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Peter Cartwright
Administrative Trustee
/s/ ANN B. CURTIS
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Ann B. Curtis
Administrative Trustee
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Thomas R. Mason
Administrative Trustee
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Peter Cartwright
Administrative Trustee
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Ann B. Curtis
Administrative Trustee
/s/ THOMAS R. MASON
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Thomas R. Mason
Administrative Trustee
