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EXHIBIT 1.2
4,600,000 HIGH TIDES(SM)
Calpine Capital Trust
[___]% Convertible Preferred Securities
Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)(sm)
(Liquidation Preference $50 per HIGH TIDES)
Guaranteed to the Extent Set Forth in the
Preferred Securities Guarantee Agreement
by, and convertible into
Common Stock of,
Calpine Corporation
UNDERWRITING AGREEMENT
October [___], 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
ING BARINGS LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Calpine Capital Trust, a statutory business trust
formed under the laws of the State of Delaware (the "TRUST"), and Calpine
Corporation, a Delaware Corporation, as sponsor of the Trust and as guarantor
(the "COMPANY"), propose that the Trust issue and sell 4,000,000 [___]%
Convertible Preferred Securities Remarketable Term Income Deferrable Equity
Securities (HIGH TIDES)(sm) (the "FIRM SECURITIES") and also propose that the
Trust issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 600,000 additional HIGH TIDES ("OPTIONAL SECURITIES")
as set forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES". The Offered Securities represent
undivided beneficial interests in the assets of the Trust, guaranteed by the
Company as to the payment of distributions, and as to payments on liquidation or
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redemption, to the extent set forth in a guarantee agreement (the "GUARANTEE")
between the Company and The Bank of New York, as trustee (the "GUARANTEE
TRUSTEE"). The proceeds of the sale by the Trust of the Offered Securities and
its common securities in an aggregate liquidation amount equal to at least 3% of
the total capital of the Trust (the "COMMON SECURITIES") are to be invested in
the Convertible Subordinated Debentures due 2029 (the "DEBENTURES") of the
Company, to be issued pursuant to an Indenture (the "INDENTURE") between the
Company and The Bank of New York, as trustee (the "PROPERTY TRUSTEE"). The
Offered Securities are convertible into Debentures, which are convertible into
shares of common stock, par value $.001 per share, of the Company ("COMPANY
COMMON STOCK"). The Company and the Trust agree with the several Underwriters
named in Schedule A hereto (the "UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Trust. Each
of the Trust and the Company jointly and severally represents and warrants to,
and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-87427) relating to the
Offered Securities and the shares of Company common stock ("UNDERLYING SHARES")
into which the Offered Securities are convertible, including a form of
prospectus, has been filed with the Securities and Exchange Commission
("COMMISSION") and either (i) has been declared effective under the Securities
Act of 1933 ("ACT") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, either (i) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating
to the Offered Securities and the Underlying Securities into which the Offered
Securities are convertible may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective
upon filing pursuant to such Rule and the Offered Securities and such Underlying
Shares all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration statement
or (ii) such an additional registration statement is proposed to be filed with
the Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities and such
Underlying Shares will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration statement.
If the Company does not propose to amend the initial registration statement or
if an additional registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (i) if the Company and
the Trust have advised the Representatives that they do not propose to amend
such registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c), or
(ii) if the Company or the Trust have advised the Representatives that they
propose to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has not
been filed prior to the execution and delivery of this Agreement but the Company
and the Trust have advised the Representatives that they propose to file one,
"EFFECTIVE TIME" with respect to such additional registration statement means
the date and time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b).
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"EFFECTIVE DATE" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein, including all
information contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial
Registration Statement and the Additional Registration Statement are herein
referred to collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) on the Effective
Date of the Initial Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act, the Trust Indenture
Act of 1939 ("TRUST INDENTURE ACT") and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and
(iii) on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, and on
each Closing Date (as hereinafter defined) each Registration Statement and the
Prospectus will conform, in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to the
Company and the Trust by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
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(c) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business Trust Act
(the "TRUST ACT") with the power and authority to own property and conduct its
business as described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement and as
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Amended and Restated
Declaration of Trust (the "DECLARATION") among the Company, the Bank of New
York, as Delaware trustee (the "DELAWARE TRUSTEE"), the Bank of New York, as
Property trustee (the "PROPERTY TRUSTEE"), the administrative trustees named
therein (the "ADMINISTRATIVE TRUSTEES" and, collectively with the Delaware
Trustee and the Property Trustee, the "ISSUER TRUSTEES") and the holders from
time to time, of the Offered Securities and the Common Securities, the
Remarketing Agreement (the "REMARKETING AGREEMENT") among the Company, the
Trust, The Bank of New York, as Tender Agent, and Credit Suisse First Boston
Corporation, as Remarketing Agent, and the agreements and instruments
contemplated by the Declaration, the Remarketing Agreement and the Prospectus;
the Trust has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration, the Remarketing
Agreement and described in the Prospectus; and the Trust is not a party to or
subject to any action, suit or proceeding of any nature.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification.
(e) Each Subsidiary of the Company (x) other than those
Subsidiaries specified in clause (y) of this subparagraph has been duly
incorporated and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; or (y) that is not a corporation is a limited partnership, a limited
liability company or business trust, has been duly formed and is validly
existing as a limited partnership, a limited liability company or a business
trust, as the case may be, in good standing under the laws of the jurisdiction
of its formation, and has full power and authority to own its properties and
conduct its business as described in the Prospectus; each Subsidiary of the
Company is duly qualified to do business as a foreign corporation, limited
partnership limited liability company or business trust, as the case may be, in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each Subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable; except
as set forth on Schedule B hereto, the capital stock of each Subsidiary owned by
the Company, directly or through Subsidiaries, is owned free from liens,
encumbrances and defects; and the Company is not a general partner in any
partnership. For purposes of this agreement, "SUBSIDIARY" means, as applied to
any person, any corporation, limited or general partnership, trust, association
or other business entity of which an aggregate of at least 50% of the
outstanding Voting Shares or an equivalent controlling interest herein, of such
person is, at any time, directly or indirectly, owned by such person and/or one
or more subsidiaries of such person, including with respect to the Company, the
Trust. For purposes of the definition of "Subsidiary", "VOTING SHARES," means
with respect to any corporation, the capital stock having the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
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(f) The Offered Securities have been duly authorized by the
Trust, and when the Offered Securities have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined below), such
Offered Securities will have been validly issued, fully paid and nonassessable
preferred undivided beneficial interests in the assets of the Trust and will
conform to the description thereof contained in the Prospectus; the issuance of
the Offered Securities is not subject to preemptive or other similar rights; the
Offered Securities will have the rights set forth in the Declaration, and the
Offered Securities when issued and delivered against payment therefor as
provided herein will be, and the Declaration, when duly executed and delivered,
will be, valid and binding obligations of the Trust.
(g) The Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued and
fully paid undivided beneficial interests in the assets of the Trust and will
conform to the description thereof contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or other similar rights; and
all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(h) The Guarantee, the Debentures, the Declaration, the
Indenture, the Remarketing Agreement, the Common Securities Purchase Agreement
between the Trust and the Company (the "COMMON SECURITIES PURCHASE AGREEMENT")
and the Common Securities Guarantee Agreement by the Company for the benefit of
the holders of the Common Securities (the "COMMON SECURITIES GUARANTEE
AGREEMENT", and collectively with the Guarantee, the Debentures, the
Declaration, the Indenture, the Remarketing Agreement and the Common Securities
Purchase Agreement, the "COMPANY AGREEMENTS") have each been duly authorized and
when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of the Declaration, by the
Issuer Trustees, in the case of the Indenture, by the Debenture Trustee, in the
case of the [Common Securities Purchase Agreement], by the Trust and, in the
case of the Debentures, when validly issued by the Company and validly
authenticated and delivered by the Debenture Trustee and paid for by the Trust,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; the Debentures are entitled to the benefits of the Indenture;
and the Company Agreements will conform in all material respects to the
descriptions thereof in the Prospectus.
(i) When the Offered Securities are delivered and paid for
pursuant to this Agreement on each Closing Date, such Offered Securities will be
exchangeable for Debentures which will be convertible into the Underlying Shares
of the Company in accordance with their terms and the terms of the Declaration;
the Underlying Shares initially issuable upon conversion of such Offered
Securities have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly issued, fully
paid and nonassessable; the outstanding shares of Company Common Stock and the
Underlying Shares conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights with
respect to the Offered Securities, the Debentures or the Underlying Shares.
(j) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Trust or the Company and any
person that would give rise to a valid claim
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against the Trust, the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering.
(k) Except as set forth on Schedule B hereto, there are no
contracts, agreements or understandings between the Trust or the Company and any
person granting such person the right to require the Trust or the Company to
file a registration statement under the Act with respect to any securities of
the Trust or the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(l) The Underlying Shares will be approved for listing on The
New York Stock Exchange prior to the Closing Date subject to official notice of
issuance.
(m) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the Company
Agreements in connection with the issuance and sale of the Offered Securities by
the Trust, the distribution of the Debentures pursuant to or upon liquidation of
the Trust, the conversion of the Debentures into the Underlying Shares, the
issuance by the Company of the Debentures and the Guarantee or the purchase of
the Debentures by the Trust, except such as have been obtained and made under
the Act and Trust Indenture Act and such as may be required under state
securities laws.
(n) The execution, delivery and performance of this Agreement
and the Company Agreements by the Trust and the Company, as applicable, the
issuance and sale of the Offered Securities by the Trust and the Debentures by
the Company and compliance with the terms and provisions of each of the
foregoing by the Trust and the Company, as applicable, the distribution of the
Debentures pursuant to or upon dissolution or liquidation of the Trust; the
purchase of the Debentures by the Trust the conversion of Debentures into common
stock of the Company and the consummation by the Company and Trust of the
transactions contemplated herein and therein will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company, the Trust
or any Subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company, the Trust or any such Subsidiary is a party or
by which the Company, the Trust or any such Subsidiary is bound or to which any
of the properties of the Company, the Trust or any such Subsidiary is subject,
or the organizational documents of the Company, the Trust or any such
Subsidiary, and the Trust has full power and authority to authorize, issue and
sell the Offered Securities, and the Company has full corporate power and
authority to authorize and issue the Debentures and the Guarantee, as
contemplated by this Agreement.
(o) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust.
(p) Except as disclosed in the Prospectus, Company and its
Subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its Subsidiaries hold any leased
real or personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof by them.
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(q) Except as disclosed in the Prospectus, the Trust will on the
Closing Date have good and valid title to all the Debentures, free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by the Trust.
(r) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the aggregate have
a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
a whole ("MATERIAL ADVERSE EFFECT").
(s) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company or the Trust, is imminent
that might have a Material Adverse Effect.
(t) The Company and its Subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its Subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, neither the Company
nor any of its Subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to such a
claim.
(v) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties that, if determined adversely
to the Company or any of its Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company or the Trust to perform their respective
obligations under, or contemplated by, this Agreement, the Company Agreements,
or which are otherwise material in the context of the sale of the Offered
Securities or the Debentures; and no such actions, suits or proceedings are
threatened or, to the knowledge of the Company or the Trust, contemplated.
(w) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and , except as
otherwise disclosed
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in the Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied
on a consistent basis; the schedules included in each Registration Statement
present fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements included in
each Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(x) The statistical and market-related data (other than
market-related data and statistical data provided by the Company) included in
the Registrations Statements and Prospectus are based on or derived from sources
which the Company believes to be reliable and accurate, it being understood,
however, that the Company has conducted no independent investigation of the
accuracy thereof.
(y) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
a whole, and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(z) The Trust and the Company are not and, after giving effect
to the offering, the sale of the Offered Securities and the Debentures, and the
application of the proceeds thereof as described in the Prospectus, and the
consummation of the transactions contemplated by the Company Agreements, will
not be an "INVESTMENT COMPANY" as defined in the Investment Company Act of 1940.
(aa) Neither the Company nor any of its Subsidiaries is (i)
subject to regulation as a "HOLDING COMPANY" or a "SUBSIDIARY COMPANY" of a
holding company or a "PUBLIC UTILITY COMPANY" under Section 2(a) of the Public
Utility Holding Company Act of 1935 ("PUHCA"), (ii) subject to regulation under
the Federal Power Act, as amended ("FPA"), other than as contemplated by 18
C.F.R. Section 292.601(c) or (iii) subject to any state law or regulation with
respect to rates or the financial or organizational regulation of electric
utilities, other than as contemplated by 18 C.F.R. Section 292.602(c).
(bb) Each of the power generation projects in which the Company
or its Subsidiaries has an interest (the "PROJECTS") which is subject to the
requirements under the Public Utility Regulatory Policies Act of 1978, as
amended (16 U.S.C. Section 796, et seq.), and the regulations of the Federal
Energy Regulatory Commission ("FERC") promulgated thereunder, as amended from
time to time, necessary to be a "QUALIFYING COGENERATION FACILITY" and/or a
"QUALIFYING SMALL POWER PRODUCTION FACILITY" meets such requirements.
(cc) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
(dd) The Company and its Subsidiaries have implemented a program
to analyze and address the risk that the computer hardware and software used by
them may be unable to recognize and properly execute date sensitive functions
involving certain dates prior to and any dates after December 31, 1999 (the
"YEAR 2000 PROBLEM"), and reasonably believes based on its assessment to date
that such risk will be remedied on a timely basis without material expense and
will not have a Material Adverse Effect; and the
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Company has inquired of its material vendors and suppliers as to their
preparedness for the Year 2000 Problem and has disclosed in the Registration
Statement any issues that might reasonably be expected to have a Material
Adverse Effect. The Company is in compliance with the Commission Release No.
33-7609 related to Year 2000 compliance, as amended to date.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Trust and the Company agree
that the Trust shall sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Trust, at a purchase price of
$50 per Offered Security plus accumulated distributions from [ ] to the First
Closing Date (as hereinafter defined), the respective number of Firm Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Trust will deliver against payment of the purchase price the Firm
Securities in the form of one or more permanent global Securities in definitive
form (the "FORM GLOBAL SECURITIES") deposited with the Property Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Firm Securities shall
be made by the Underwriters in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to Credit Suisse
First Boston Corporation ("CSFBC") drawn to the order of Calpine Corporation at
the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, at 9:00 A.M., (New York time), on, or at such other time
not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE",
against delivery to the Trustee as custodian for DTC of the Firm Global
Securities representing all of the Firm Securities. The Firm Global Securities
will be made available for checking at the above office of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per liquidation amount of Offered Securities (including any
accumulated distributions thereon to the related Optional Closing Date) to be
paid for the Firm Securities. The Trust and the Company agree that the Trust
shall sell to the Underwriters the number of Optional Securities specified in
such notice and the Underwriters agree, severally and not jointly, to purchase
such Optional Securities. Such Optional Securities shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Trust and the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than five full business days after written notice
of election to purchase Optional
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Securities is given. The Company will deliver against payment of the purchase
price the Optional Securities being purchased on each Optional Closing Date in
the form of one or more permanent global securities in definitive form (each, an
"OPTIONAL GLOBAL SECURITY") deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co., as nominee for DTC. Payment for such
Optional Securities shall be made by the Underwriters in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of Calpine Corporation at the office of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP., against delivery to the Property
Trustee as custodian for DTC of the Optional Global Securities representing all
of the Optional Securities being purchased on such Optional Closing Date.
As compensation for the Underwriters' commitments, the Company will
pay to CSFBC the sum of $[___] per Offered Security times the total number of
Offered Securities purchased by the Underwriters on each Closing Date as
commissions for the sale of the Offered Securities under this Agreement. Such
payment will be made on each Closing Date with respect to the Offered Securities
purchased on such Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Trust and the Company. Each of the Trust
and the Company, jointly and severally, agrees with the several Underwriters
that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Trust and the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by
CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement or
(B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company and the Trust will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement
and an additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company and the Trust will file
the additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with Rule
462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later date as
shall have been consented to by CSFBC.
(b) The Trust and the Company will advise CSFBC promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the Prospectus and
will not effect such amendment or supplementation without CSFBC's consent; and
the Trust and the Company will also advise CSFBC promptly of the effectiveness
of each Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
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of a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Trust and the Company will promptly notify CSFBC of such event
and will promptly prepare and file with the Commission, at their own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement [((1)] of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other documents shall be so furnished as soon as available. The
Trust and the Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Trust and the Company will arrange for the qualification
of the Offered Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as required
for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as CSFBC may reasonably
request.
------------
(1) Number to include one copy for each Representative and one copy for
counsel for the Underwriters.
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(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing fees and
other expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities and related securities
for sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Offered Securities, for the filing fee
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. of the Offered Securities and related securities, for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not, and will not permit
its Subsidiaries to, offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration statement
under the Act (other than a registration statement on Form S-8) relating to any
additional shares of (A) any preferred securities, any preferred stock or any
other securities of the trust (other than the Offered Securities or the Common
Securities), (B) any preferred stock or any other security of Calpine that is
substantially similar to the Offered Securities, (C) any shares of common stock
of Calpine other than shares of common stock issuable upon conversion of the
Offered Securities and/or the Debentures or (D) any other securities which are
convertible into, or exchangeable or exercisable for, any of (A) through (D), or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC except (i)
grants of employee stock options pursuant to the terms of a plan in effect on
the date hereof, (ii) issuances of Company Common Stock pursuant to the exercise
of such options, (iii) the exercise of any other employee stock options
outstanding on the date hereof or (iv) the issuance and sale of Company Common
Stock pursuant to an Underwriting Agreement, dated as of the date hereof,
between the Company, CSFBC and the other underwriters party thereto.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Trust and the Company herein, to the accuracy of
the statements of officers of the Trust and the Company made pursuant to the
provisions hereof, to the performance by the Trust and the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration Statements
comply as to form
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in all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii)on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated net sales, net operating
income and summary of earnings, net income and net income per
share amounts for the 3-month periods ended September 30, 1999
and 1998 included in the Prospectus, if any, do not agree with
the amounts set forth in the unaudited consolidated financial
statements for those same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest balance sheet included
in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
revenues, or net operating income or in the total or per share
amounts of consolidated net income or in the ratio of earnings
to fixed charges and preferred stock dividends combined, except
in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
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(iv) on the basis of their review of the unaudited pro
forma financial statements, selected consolidated financial data and ratio
of earnings to fixed charges included in the Registration Statement and
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that the unaudited pro
forma financial, selected consolidated financial data and ratio of
earnings to fixed charges statements included in the Registration
Statement do not each comply as to form in all material respects with the
applicable accounting requirements under the Act; and
(v) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the Company
and its Subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall mean
the Initial Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
All financial statements and schedules(2) included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), from ▇▇▇▇ ▇▇▇▇▇ LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that they
have compared specified dollar amounts (or percentages derived from such dollar
amounts) and other financial information contained in the Registration
Statements (in each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting records of
the Company or its Subsidiaries subject to the internal controls of the
Company's or such Subsidiaries' accounting systems or are derived directly from
such records by analysis or computation) with the results obtained from
-------------
(2) If no schedules included in material incorporated by reference, delete
"and schedules".
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inquiries, a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
(c) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by CSFBC.
If the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
one enterprise which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
or preferred stock of the Company or the Trust (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇ Phleger & ▇▇▇▇▇▇▇▇ LLP , counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
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(ii) (A) The Indenture has been duly authorized,
executed and delivered and has been duly qualified under the Trust
Indenture Act; (B) the Offered Securities and the Debentures delivered on
such Closing Date and the Guarantee have been duly authorized, executed,
authenticated, issued and delivered and conform to the description thereof
contained in the Prospectus; (C) the Indenture, the Debentures delivered
on such Closing Date and the Guarantee constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, and (D) assuming the due authorization, execution and
authentication of the Declaration and the Offered Securities, the
Declaration and the Offered Securities constitute valid and legally
binding obligations of the Trust enforceable in accordance with their
terms, subject, in the case of clauses (C) and (D), to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(iii) The Offered Securities delivered on such
Closing Date have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained in the
Prospectus;
(iv) The Offered Securities delivered on such
Closing Date are exchangeable for Debentures which will be convertible
into the Underlying Shares of the Company in accordance with the
Declaration and the Indenture; the Underlying Shares initially issuable
upon conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding Underlying Shares have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Offered Securities, the
Debentures or the Underlying Shares;
(v) Except as set forth on Schedule B hereto, there
are no contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act;
(vi) The Trust and the Company are not and, after
giving effect to the offering and sale of the Offered Securities and the
Debentures and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(vii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Trust or the Debentures by the Company,
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except such as have been obtained and made under the Act, the Trust
Indenture Act and such as may be required under state securities laws;
(viii) The execution, delivery and performance of this
Agreement, the Declaration, the Indenture, the Guarantee, the Common
Securities Purchase Agreement and the Remarketing Agreement, and the
issuance and sale of the Offered Securities, the Debentures and the
Guarantee and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over the
Company or any Subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such Subsidiary is
a party or by which the Company or any such Subsidiary is bound or to
which any of the properties of the Company or any such Subsidiary is
subject, or the charter, by-laws or other governing document of the
Company or any such Subsidiary, and the Trust has full power and authority
to authorize, issue and sell the Offered Securities, and the Company has
full power and authority to authorize, issue and sell the Debentures, each
as contemplated by this Agreement;
(ix) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such opinion,
the Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein or was included in the Initial
Registration Statement or the Additional Registration Statement (as the
case may be), and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations; such counsel
have no reason to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment
or supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
conform in all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus and the statements in the
Registration Statement and the Prospectus under the caption "The
Remarketing," "The Remarketing Agent," "Description of HIGH TIDES,"
"Description of Convertible Subordinated Debentures," "Description of the
Guarantee," and "Description of Capital Stock," insofar as such statements
constitute summaries of the legal matters, documents and governmental
proceedings referred to therein, fairly summarize and the descriptions in
the Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; and such counsel
do not know of any legal or
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governmental proceedings required to be described in a Registration
Statement or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the Registration
Statements or the Prospectus; and
(x) This Agreement has been duly authorized, executed
and delivered by the Company.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, General Counsel of the Company, to the
effect that:
(i) Each Subsidiary of the Company (x) other than the
Trust and those Subsidiaries specified in clause (y) of this Section
6(f)(i) has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation,
and has corporate power and authority to own its property and to conduct
its business as described in the Prospectus or (y) that is not a
corporation is a limited partnership or a limited liability company, has
been duly formed and is validly existing as a limited partnership or a
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its formation, and has full power and
authority to own its property and to conduct its business as described in
the Prospectus; and, in either case, is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole; and the Company is not a
general partner in any partnership;
(ii) The Company and each of its Subsidiaries possess
adequate certificates, authorities, licenses or permits issued by
appropriate governmental agencies or bodies necessary to conduct the
business as now operated by them as described in the Prospectuses and such
counsel is not aware of the receipt of any notice of proceedings relating
to the revocation or modification of any such certificate, authority,
license or permit that, if determined adversely to the Company or any of
its Subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
(iii) The contracts and agreements of the Company and
its Subsidiaries and affiliates described in the Prospectus under
"Business - Description of Facilities" conform in all material respects to
the descriptions thereof contained in the Prospectus, and the statements
in the Prospectus under the captions "Management", "Certain
Transactions""Business - Project Development and Acquisitions", "Business
- Legal Proceedings" and "Business - Governmental Regulation", insofar as
such statements constitute summaries of the legal matters, documents and
governmental proceedings referred to therein fairly summarize and present
the information required to be shown;
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(iv) Such counsel is of the opinion that the Company
and each Subsidiary of the Company (i) is in compliance with any and all
applicable environmental laws, (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to
conduct its business and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with environmental laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the Company; and
(v) To such counsel's knowledge, neither the Company
nor any of its Subsidiaries is (i) subject to regulation as a "HOLDING
COMPANY" or a "SUBSIDIARY COMPANY" of a holding company or an "AFFILIATE"
of a Subsidiary or holding company or a "PUBLIC UTILITY COMPANY" under
Section 2(a) of PUHCA, (ii) subject to regulation under the FPA, other
than as contemplated by 18 C.F.R. Section 292.601(c) or (iii) subject to
any state law or regulation with respect to the rates or the financial or
organizational regulation of electric utilities, other than as
contemplated by 18 C.F.R. Section 292.602(c).
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the corporate law of the State of
Delaware, upon opinions of other counsel, who shall be counsel reasonably
satisfactory to counsel for the Underwriters, in which case (i) the opinion of
such other counsel shall also be addressed to the Underwriters and (ii) the
opinion of ▇▇▇▇▇▇▇ Phleger & ▇▇▇▇▇▇▇▇ LLP shall state that in their opinion,
they and the Underwriters are justified in relying on such other counsel's
opinion.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel
to the Trust and the Company, to the effect that:
(i) The Trust has been duly created and is validly
existing as a business trust in good standing under the laws of the State
of Delaware. All filings required under the Business Trust Act with
respect to the creation and valid existence of the Trust as a Delaware
business trust have been made. Under the Business Trust Act and the
Declaration, the Trust has all requisite trust power and authority to own
its property and conduct its business as described in the Prospectus.
(ii) Under the Business Trust Act and the
Declaration, the Trust has requisite trust power and authority to
authorize, issue and sell the Offered Securities and the Common Securities
as contemplated by this Agreement, the Common Securities Purchase
Agreement, the Prospectus and the Declaration and to execute, deliver and
perform its obligations under this Agreement and the Common Securities
Purchase Agreement.
(iii) The Offered Securities have been duly authorized
for issuance by the Declaration and, when issued, executed, authenticated,
delivered and paid for in accordance with the terms of the Declaration and
the terms of this
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Agreement, will be fully paid and, subject to the limitation set forth in
paragraph (iv) below, non-assessable undivided beneficial interests in the
assets of the Trust and will entitle the holders thereof to the benefits
of the Declaration except to the extent that enforcement of the
Declaration may be limited by (a) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, (b) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (c) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution. Under the Declaration and the
Business Trust Act, the issuance of the Offered Securities and the Common
Securities is not subject to preemptive rights.
(iv) Each holder of Offered Securities, in such
capacity, will be entitled to the same limitation of personal liability as
that extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware, provided,
however, we express no opinion with respect to the liability of any holder
of Offered Securities who is, was or may become a named Trustee of the
Trust. We note, however, that the holders of the Offered Securities may be
required to make payment or provide indemnity or security as set forth in
the Declaration.
(v) Under the Declaration and the Business Trust Act,
the execution and delivery by the Trust of this Agreement and the Common
Securities Purchase Agreement, and the performance of its obligations
thereunder, have been duly authorized by all necessary trust action on the
part of the Trust.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of [TO COME], special counsel to the Property Trustee,
Guarantee Trustee and Debenture Trustee, to the effect that:
(i) The Property Trustee, Guarantee Trustee and
Debenture is each a banking corporation duly incorporated and validly
existing under the laws of the State of New York.
(ii) The execution, delivery and performance by the
Property Trustee of the Amended and Restated Declaration of Trust, the
execution, delivery of performance by the Guarantee Trustee of the
Guarantee Agreement and the execution, delivery and performance by the
Debenture Trustee of the Indenture have been duly authorized by all
necessary corporate action on the part of the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively. The Amended and
Restated Declaration of Trust, the Guarantee Agreement and the Indenture
have been duly executed and delivered by the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively, and the
Declaration constitutes the legal, valid and binding obligation of the
Property Trustee, enforceable against the Property Trustee in accordance
with its terms, except as enforcement thereof may be limited by (a)
bankruptcy, insolvency, receivership, liquidation, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies, (b) general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law),
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and (c) considerations of public policy and the effect of applicable law
relating to fiduciary duties.
(iii) The execution, delivery and performance of the
Amended and Restated Declaration of Trust, the Guarantee Agreement and the
Indenture by the Property Trustee, the Guarantee Trustee and the Debenture
Trustee, respectively, do not violate or constitute a breach of the
Articles of Organization or Bylaws of the Property Trustee, the Guarantee
Trustee or the Debenture Trustee, respectively, or the terms of any
indenture or other agreement or instrument actually known to such counsel
and to which the Property Trustee, the Guarantee Trustee or the Debenture
Trustee, respectively, is a party or is bound or any judgment, order or
decree actually known to such counsel to be applicable to the Property
Trustee, the Guarantee Trustee or the Debenture Trustee, respectively, of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Property Trustee, the Guarantee
Trustee or the Debenture Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to any federal or state banking authority is
required for the execution, delivery or performance by the Property
Trustee, the Guarantee Trustee or the Debenture Trustee of the Amended and
Restated Declaration of Trust, the Guarantee Agreement and the Indenture,
respectively.
(i) The Representatives shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(j) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company and an Administrative Trustee of
the Trust in which such officers and trustee, to the best of their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company and the Trust in this Agreement are true and correct;
the Company and the Trust have each complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries taken as a whole or of the Trust except as set
forth in or contemplated by the Prospectus or as described in such certificate.
(k) The Representatives shall have received a letter, dated such
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection
(a) of this Section, except that the
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specified date referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
(l) The Representatives shall have received a letter, dated such
Closing Date, from ▇▇▇▇ ▇▇▇▇▇ LLP which meets the requirements of subsection (b)
of this Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. CSFBC may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Trust and the Company
will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Trust and the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Trust and the Company by
any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each person, if
any who controls the Company within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Trust and the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Trust and the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each
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Underwriter: the concession and reallowance figures appearing in the [ ]
paragraph under the caption "Underwriting" and the information contained in the
[ ] paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Trust and the Company on the one hand and the Underwriters on the other from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Trust and the Company on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Trust and the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust and the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust and the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the [offered] Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
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No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Trust and the Company under this
Section shall be in addition to any liability which the Trust and the Company
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Trust and the Company within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate liquidation amount of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total liquidation amount of
Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate liquidation amount
of Offered Securities with respect to which such default or defaults occur
exceeds 10% of the total liquidation amount of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "UNDERWRITER" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Trust and the Company or their officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Trust and the
Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Trust and the Company shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Trust and the Company and the Underwriters pursuant to
Section 7 shall remain in effect, and if any Offered Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Trust and the Company will
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reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company or the
Trust, will be mailed, delivered or telegraphed and confirmed to it at Calpine
Corporation, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel ; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Trust and the Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
[Signature page follows.]
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
CALPINE CAPITAL TRUST
By:
-------------------------------------
Name:
------------------------------
Title:
------------------------------
CALPINE CORPORATION
By:
-------------------------------------
Name:
------------------------------
Title:
------------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
ING BARINGS LLC
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------------
Title:
------------------------------
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SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation......................... [$ ]
CIBC World Markets Corp. ......................................
ING Barings LLC ...............................................
----------
Total............................ $4,000,000
==========
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SCHEDULE B
I. Subsidiary Liens
The Company has pledged the capital stock of certain Subsidiaries owned by
the Company in connection with the project financings related to such
Subsidiaries.
II. Registration Rights
CCNG Investment, L.P., a Texas limited partnership ("CCNG"), has demand
registration rights with respect to 50,000 shares of the Company's Common
Stock pursuant to the Stock Purchase Agreement dated as of May 1, 1998 by
and between the Company and CCNG.
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