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EXHIBIT 1.3
CALPINE CANADA ENERGY FINANCE II ULC
% Senior Notes due 20-
Fully and Unconditionally Guaranteed By
CALPINE CORPORATION
UNDERWRITING AGREEMENT
, 2001
Dear Sirs:
1. Introductory. Calpine Canada Energy Finance II ULC, a Nova Scotia
unlimited liability company (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell $ principal amount of its % Notes
due 20-- (the "SECURITIES"), which will be fully and unconditionally guaranteed
(the "GUARANTEES") by Calpine Corporation, a Delaware corporation (the
"PARENT"). The Securities will be issued under an indenture, dated as of , 2001
(the "INDENTURE"), between the Company and Wilmington Trust Company as Trustee.
The Guarantee will be issued under a Guarantee Agreement, dated as of , 2001
(the "Guarantee Agreement") made by the Parent. The Company hereby agrees with
the several underwriters named in Schedule A hereto (the "UNDERWRITERS") as
follows:
2. Representations and Warranties of the Company. Each of the Company
and the Parent represents and warrants to, and agrees with, the several
Underwriters that:
(1) A registration statement (No. 333- ), including a form of
prospectus, relating to the debt and equity securities of the Parent, the
Guarantees of the Parent, and the debt securities of the Company to be issued
from time to time (the "REGISTERED SECURITIES") has been filed with the
Securities and Exchange Commission (the "COMMISSION"), such registration
statement, as it may have been amended prior to the date of this Agreement, has
become and has been declared effective under the Securities Act of 1933 (the
"SECURITIES ACT") on , 2001. Such registration statement, as amended at the
time of this Agreement, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the
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prospectus included in such Registration Statement, as supplemented by a
prospectus supplement to reflect the terms of the Securities and terms of
offering thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act, including
all material incorporated by reference therein, is hereinafter referred to as
the "PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act. No stop order suspending the
effectiveness of the Registration Statement is in effect and no proceedings for
such purpose are pending before or threatened by the Commission.
(2) On the effective date of the Registration Statement relating
to the Registered Securities, such Registration Statement conformed in all
respects to the requirements of the Securities 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 material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and on the date of this
Agreement, the Registration Statement and Prospectus will conform in all
respects to the requirements of the Securities Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will 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,
except that the foregoing does not apply to statements in or omissions from any
of such documents based upon written information furnished to the Company or the
Parent by any Underwriter through the Representative (as defined below), if any,
specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(3) The Company is an unlimited liability company duly organized
and validly subsisting under the laws of the Province of Nova Scotia 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.
(4) The Parent 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 Parent 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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(5) Each Subsidiary (x) other than the Company and (y) other than
those Subsidiaries specified in clause (z) 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 (z) 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 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 has been duly authorized and validly issued and
is fully paid and nonassessable; except as set forth on Schedule B to this
Agreement, the capital stock of each Subsidiary owned by the Parent, directly or
through Subsidiaries, is owned free from liens, encumbrances and defects; and
the Parent is not a general partner in any partnership. For purposes of this
agreement, "SUBSIDIARY" means, as applied to the Parent, 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 the Parent and/or one or more subsidiaries of the
Parent, other than the Company. 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).
(6) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Securities have been duly
authorized, and when the Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), the Indenture will have been
duly executed and delivered and will conform to the description thereof
contained in the Prospectus, such Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description thereof
contained in the Prospectus and the Indenture constitutes, and such Securities
will constitute, valid and legally binding obligations of the Company,
enforceable in accordance with their 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.
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(7) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company or the Parent and
any person that would give rise to a valid claim against any of the Company, the
Parent or any Underwriter for a brokerage commission, finder's fee or other like
payment.
(8) Except as set forth on Schedule B to this Agreement, there
are no contracts, agreements or understandings between the Company, the Parent
and any person granting such person the right to require the Company or the
Parent to file a registration statement under the Securities Act with respect to
any securities of the Company or the Parent owned or to be owned by such person
or to require the Company or the Parent 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 or the Parent under the Securities Act.
(9) 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 and sale of the Securities by the Company or the issuance of
the Guarantees by the Parent, except such as have been obtained and made under
the Securities Act, the Trust Indenture Act and such as may be required under
state securities laws.
(10) The execution, delivery and performance of the Indenture,
this Agreement and the Guarantee Agreement, the issuance and sale of the
Securities and the Guarantees and compliance with the terms and provisions
thereof, the issuance of the Guarantees and the consummation by the Parent and
the Company 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
Parent, the Company or any Subsidiary or any of their properties, or any
agreement or instrument to which the Parent, the Company or any such Subsidiary
is a party or by which the Company, the Parent or any such Subsidiary is bound
or to which any of the properties of the Company, the Parent or any such
Subsidiary is subject, or the charter, by-laws, memorandum of association,
articles of association or other organizational document of the Company, the
Parent or any such Subsidiary, and each of the Company and the Parent has full
power and authority to authorize, issue and sell the Securities or the
Guarantees, as the case may be, as contemplated by this Agreement.
(11) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Parent.
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(12) Except as disclosed in the Prospectus, the Company, the
Parent and the Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by each of 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, the Parent and the
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.
(13) The Company, the Parent and the 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, the Parent or any of the 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
Parent, the Company and the Subsidiaries taken as a whole ("MATERIAL ADVERSE
EFFECT").
(14) No labor dispute with the employees of the Company, the
Parent or any Subsidiary exists or, to the knowledge of the Company and the
Parent, is imminent that might have a Material Adverse Effect.
(15) Each of the Company, the Parent and the 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, the Parent or any
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
(16) Except as disclosed in the Prospectus, neither the Company,
the Parent nor any of the 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
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would individually or in the aggregate have a Material Adverse Effect; and
neither the Company nor the Parent is aware of any pending investigation which
might lead to such a claim.
(17) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, the Parent or
any of the Subsidiaries or any of their respective properties that, if
determined adversely to the Company, the Parent or any of the 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 Parent to
perform their respective obligations under, or as contemplated by, this
Agreement, or which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened or, to the
knowledge of the Company or the Parent, contemplated.
(18) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of the Parent
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 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; and the assumptions used in preparing the
pro forma financial statements included in the 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.
(19) The statistical and market-related data (other than
market-related data and statistical data provided by the Company or the Parent)
included in the Registration Statement and Prospectus are based on or derived
from sources which the Company and the Parent believe to be reliable and
accurate, it being understood, however, that neither the Company nor the Parent
has conducted any independent investigation of the accuracy thereof.
(20) 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, the Parent 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 or the Parent on any class of its capital stock.
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(21) Neither the Company or the Parent is, nor after giving
effect to the offering, the sale of the Securities, and the application of the
proceeds thereof as described in the Prospectus, will be an "INVESTMENT COMPANY"
as defined in the Investment Company Act of 1940.
(22) Neither the Company, the Parent nor any of the Subsidiaries
is (i) a "holding company" or a "subsidiary" of a holding company or a "public
utility company" under Section 2(a) of the Public Utility Holding Company Act of
1935 ("PUHCA") (except that certain Subsidiaries that are EWGs (as defined
herein) or QFs (as defined herein) and Cogeneration Corporation of America are
subsidiaries of a holding company), (ii) subject to regulation under the Federal
Power Act, as amended ("FPA"), other than as a power marketer or an "exempt
wholesale generator" ("EWG") that is a "public utility" under the FPA or as a
"qualifying facility" ("QF") under the Public Utility Regulatory Policies Act of
1978, as amended (16 U.S.C. ss. 796 et seq.) ("PURPA"), as contemplated by 18
C.F.R. ss.292.601(c) or (iii) with respect to each of the power generation
projects in which the Company or its Subsidiaries has an interest that is a QF,
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. ss.292.602(c).
(23) Each of the power generation projects in which the Company,
the Parent or the Subsidiaries has an interest (the "PROJECTS") which is subject
to the requirements under PURPA 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.
(24) The Parent is subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
(25) The Guarantee Agreement and each Guarantee issued thereunder
has been duly and validly authorized and, upon its execution and delivery by the
Parent, will be a valid and binding agreement of the Parent, enforceable in
accordance with its 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.
3. Purchase, Sale and Delivery of Securities and Guarantees. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Underwriters, and the
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Underwriters agree, severally and not jointly, to purchase from the Company
(and, with respect to the Guarantees, from the Parent), at a purchase price of %
of the principal amount thereof, the respective principal amounts of Securities
(and the accompanying Guarantees) set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Securities in the form of one or more permanent global securities in definitive
form (the "GLOBAL SECURITIES") deposited with the 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 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 [Underwriter] drawn to the order of Calpine
Canada Energy Finance II ULC at the office of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 1330 Avenue
of the Americas, New York, New York at 10:00 A.M., (New York time), on 2001, or
at such other time not later than seven full business days thereafter as
[Underwriter] and the Parent determine, such time being herein referred to as
the "CLOSING DATE", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Securities. The Global Securities will
be made available for checking at the office of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at least 24
hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities and the accompanying Guarantees for
sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company and the Parent. The Company
and the Parent agree with the several Underwriters that they will furnish to
counsel to the Underwriters one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with the
offering of the Securities:
(1) The Company and the Parent will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and if consented to by [Underwriter], subparagraph (5)) not later
than the second business day following the execution and delivery of this
Agreement.
(2) The Company and the Parent will advise [Underwriter]
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus and will afford [Underwriter] a reasonable opportunity to comment
on any such proposed amendment or supplement; and the Company and the Parent
will also advise
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[Underwriter] promptly of the effectiveness of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings in
respect of a Registration Statement or of any part thereof 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.
(3) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities 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 in order 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 Securities Act, the Company and the Parent will promptly
notify [Underwriter] 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 [Underwriter]'s consent to, nor the Underwriters' delivery to offerees
or investors of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
(4) As soon as practicable, but not later than 16 months,
after the date of this Agreement the Parent will make generally available to the
holders of the Securities and the accompanying Guarantees an earnings statement
covering a period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement relating to the Registered
Securities; (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of this
Agreement; and (iii) the date of the Company's most recent Annual Report on Form
10-K filed with the Commission prior to date of this Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(5) The Company and the Parent will furnish to the
Representative copies of the Registration Statement (three of which will be
signed and will include all exhibits), any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as [Underwriter]
requests, so long as a prospectus relating to the Securities is required to be
delivered under the Securities Act in connection with sales by any Underwriter
or dealer. The Prospectus shall be so furnished on or prior to 3:00 P.M., New
York time, on the business day following the execution of this Agreement. All
other documents shall be so furnished as soon as available. The Company and the
Parent will pay the expenses of printing and distributing to the Underwriters
all such documents.
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(6) The Company and the Parent will arrange for the
qualification of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as [Underwriter]
designates and will continue such qualifications in effect so long as required
for the distribution, provided that neither the Company nor the Parent will be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such state.
(7) During the period of five years after the date this
Agreement, the Parent will furnish to [Underwriter] 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; the Parent will
furnish to [Underwriter] and, upon request, to each of the other Underwriters
(i) as soon as available, a copy of each report and any definitive proxy
statement of the Parent filed with the Commission under the Exchange Act or
mailed to stockholders, and (ii) from time to time, such other information
concerning the Company or the Parent as [Underwriter] may reasonably request.
(8) During the period of two years after the Closing Date,
neither the Company nor the Parent will be or become an "investment company" as
defined in the Investment Company Act of 1940.
(9) The Company and the Parent will pay all expenses
incident to the performance of their obligations under this Agreement, for any
filing fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Securities for sale and any
determination of their eligibility for investment, under the laws of such
jurisdictions as [Underwriter] designates and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating of
the 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 Securities and
related securities, for any travel expenses of the Company's or the Parent's
officers and employees and any other expenses of the Company or the Parent in
connection with attending or hosting meetings with prospective purchasers of the
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Prospectus to the Underwriters. The Company and
the Parent will reimburse the Underwriters for all travel expenses of the
Underwriters and any other expenses of the Underwriters in connection with
attending or hosting meetings with prospective purchasers of the Securities.
(10) For a period of days after the date hereof, neither the
Company nor the Parent will, and the Parent will not permit the Subsidiaries to,
offer, sell,
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contract to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Securities Act
relating to (A) any United States dollar-denominated debt securities issued or
guaranteed by the either of the Company or the Parent and having a maturity of
more than one year from date of issue (provided, that this subsection (A) shall
in no event apply to any debt securities convertible into equity securities of
either of Parent or Company), or (B) any other securities which are convertible
into, or exchangeable or exercisable for, any of (A), or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, without
the prior written consent of [Underwriter].
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
on the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Parent herein, to the accuracy of
the statements of officers of the Company and the Parent made pursuant to the
provisions hereof, to the performance by the Company and the Parent of their
obligations hereunder and to the following additional conditions precedent:
(1) The Representative shall have received a letter, dated
the date of delivery thereof (which shall be on the date of this Agreement), of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming that they are independent public accountants
within the meaning of the Securities Act and the applicable published Rules and
Regulations and stating to the effect that:
(1) in their opinion the financial statements and
schedules examined by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations;
(2) 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 Statement and in the Exchange Act Reports;
(3) on the basis of the review referred to in clause
(ii) above, a reading of the unaudited pro forma financial statements,
selected consolidated financial data and ratio of earnings to fixed charges
included in or incorporated by reference in the Registration Statement and
inquiries of officials of the Parent who have responsibility for financial
and accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
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(A) the unaudited pro forma financial, selected consolidated
financial data and ratio of earnings to fixed charges statements
included in or incorporated by reference in the Registration Statement
do not each comply as to form in all material respects with the
applicable accounting requirements under the Securities Act and the
related published Rules and Regulations or any material modifications
should be made to the unaudited financial statements included in the
Registration Statement and in the Exchange Act Reports for them to be
in conformity with generally accepted accounting principles;
(B) the unaudited consolidated net revenue, net operating
income and summary of earnings, net income and net income per share
amounts for the quarter ended , 2001, included in or incorporated by
reference in the Registration Statement 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 Parent 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 Exchange Act Reports; or
(D) for the period from the closing date of the latest
income statement included in the Parent's Annual Report on Form 10-K
most recently filed with the Commission and all subsequent reports
(the "Exchange Act Reports") which have been filed by the Parent with
the Commission or sent to stockholders pursuant to the Securities
Exchange Act of 1934 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 (C) or (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(4) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the Parent
and the Subsidiaries subject to the internal controls of the Parent's
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
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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.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(2) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company, the Parent or
any Underwriter, shall be contemplated by the Commission.
(3) 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 Parent, the Company and the
Subsidiaries taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including [Underwriter], 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 Securities; (ii) any downgrading in
the rating of any debt securities of the Company or the Parent by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company or the Parent (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 Parent 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 [Underwriter],
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 Securities.
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(4) The Representative shall have received an opinion with
respect to matters of United Sates law only, dated the Closing Date, of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Parent and the Company (with respect to
certain non-Canadian matters), to the effect that:
(1) The Parent is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(2) (A) The Indenture has been duly qualified under the
Trust Indenture Act, (B) the Indenture and the Securities delivered on the
Closing Date each conform to the respective descriptions thereof contained
in the Prospectus; (C) assuming due execution and delivery by the Company,
the Indenture constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms; and (D) assuming the Securities
have been duly and validly authorized and executed by the Company, the
Securities constitute the valid and binding obligations of the Company,
enforceable in accordance with their respective terms; subject, in the case
of clauses (C) and (D), to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(3) (A) The Guarantee Agreement and each Guarantee
issued thereunder has been duly authorized, executed and delivered by the
Parent and constitute the valid and binding obligations of the Parent,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; and (B) the Guarantees conform to the
description thereof contained in the Prospectus;
(4) Except as set forth on Schedule B to this
Agreement, there are no contracts, agreements or understandings known to
such counsel between the Company, the Parent and any person granting such
person the right to require the Company or the Parent to file a
registration statement under the Securities Act with respect to any
securities of the Company or the Parent owned or to be owned by such person
or to require the Company or the Parent 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 or the Parent under the Securities Act;
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(5) Neither the Company or the Parent is, nor after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, will be
an "investment company" within the meaning of the Investment Company Act of
1940;
(6) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation by the Company or the Parent of the transactions
contemplated by this Agreement in connection with the issuance or sale of
the Securities by the Company and the issuance of the Guarantees by the
Parent, except such as have been obtained and made under the Securities
Act, the Trust Indenture Act and the respective rules and regulations
promulgated under the foregoing, and except for any of the foregoing as may
be required under State securities or blue sky laws and the rules and
regulations promulgated thereunder;
(7) Except as set forth in the Prospectus, to such
counsel's knowledge, there are no pending or threatened actions, suits or
proceedings against or affecting the Company, the Parent, any of the
Subsidiaries or any of their respective properties that, if determined
adversely to the Company, the Parent or any of the 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 Parent to
perform its obligations under this Agreement;
(8) The execution, delivery and performance of the
Indenture, this Agreement, the Guarantee Agreement and each Guarantee and
the issuance and sale of the Securities and compliance with the terms and
provisions thereof will not (A) violate any statute, rule, regulation or
order of which such counsel is aware of any U.S. governmental agency or
body or any court having jurisdiction over the Parent or any Subsidiary
(other than the Company) or any of their respective properties, (B) to such
counsel's knowledge, breach the provisions of, or cause a default under,
any agreement or instrument to which the Parent or such Subsidiary (other
than the Company) is a party or by which the Parent or any Subsidiary is
bound or to which any of the properties of the Parent or any such
Subsidiary is subject, or (C) violate any provision of the charter, by-laws
or any other constitutive document of the Parent or any Subsidiary (other
than the Company);
(9) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such opinion,
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein,
and, to the best of the
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knowledge of such counsel, no stop order suspending the effectiveness of
the 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 Securities Act, and the registration statement
relating to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of this
Agreement, 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 Securities Act, the Trust Indenture Act and the
Rules and Regulations; such counsel, while not passing upon and not
assuming responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, any amendment thereto
or the Prospectus except to the extent specifically set forth in this
paragraph (ix), does not believe that any part of the Registration
Statement or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein not misleading
or that any part of the Prospectus, as of the date of this Agreement or as
of the Closing Date, or any amendment or supplement thereto, as of its date
or as of the Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; the statements in the Registration Statement and the Prospectus
under the captions "Description of the Debt Securities," "Description of
Senior Notes and Guarantees," "Certain United States Federal Income Tax
Consequences," "Certain Income Tax Consequences", and "Description of
Capital Stock," insofar as such statements constitute summaries of the
laws, regulations, legal matters, agreements or other legal documents
referred to therein, are accurate in all material respects and fairly
summarize the matters referred to therein; and such counsel do not know of
any legal or governmental proceedings required to be described in the
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 the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion or
belief as to the financial statements or other financial or statistical
data derived therefrom contained in the Registration Statements or the
Prospectus; and
(10) This Agreement has been duly authorized, executed
and delivered by the Parent, and, insofar as execution and delivery are
matters governed by New York law, duly executed and delivered by the
Company.
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For the purposes of this subsection (d) only, the term "Subsidiary"
shall have the meaning given to the term "significant subsidiary" in Rule
1-02(w) of Regulation S-X under the Securities Act.
(5) The Representative shall have received an opinion, dated
the Closing Date, of , Canadian counsel for the Parent and the Company, to the
effect that:
(1) The Company is an unlimited liability company duly
organized and validly existing and in good standing under the laws of the
province of Nova Scotia and has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus;
(2) (A) The Indenture has been duly authorized,
executed and delivered by the Company, (B) the Indenture and the
obligations of the parties thereunder are not contrary to and do not
violate any applicable laws of the province of Nova Scotia or the federal
laws of Canada; (C) the Indenture delivered on the Closing Date
constitutes the valid and binding obligation of the Company; (D) the
Securities delivered on the Closing Date constitute the valid and binding
obligations of the Company, enforceable in accordance with their respective
terms; (E) the Securities and the obligations of the Company thereunder are
not contrary to and do not violate any applicable laws of the province of
Nova Scotia or the federal laws of Canada; (F) the Securities have been
duly authorized, executed and delivered by the Company; and (G) the
Securities delivered on the Closing Date conform to the descriptions
thereof contained in the Prospectus subject, in the case of clauses (C) and
(D), to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(3) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court, in each case in
the province of Nova Scotia or in Canada, is required for the consummation
by the Company of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Securities by the Company;
(4) The execution, delivery and performance of the
Indenture, this Agreement, and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not (A) violate any
statute, rule, regulation or order of which such counsel is aware of any
governmental agency or body or any court having jurisdiction over the
Company or any of its properties, (B) to such counsel's knowledge, breach
the provisions of, or cause a default under, any
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agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties of the Company is
subject, or (C) violate any provision of the memorandum of association,
articles of association, charter, by-laws or any other constitutive
document of the Company;
(5) The statements in the Registration Statement and
the Prospectus under the caption "Certain Canadian Federal Income Tax
Considerations", insofar as such statements constitute summaries of the
laws, regulations, legal matters, agreements or other legal documents
referred to therein, are accurate in all material respects and fairly
summarize the matters referred to therein;
(6) This Agreement has been duly authorized, executed
and delivered by the Company, and this Agreement and the obligations of the
Company hereunder, are not contrary to and do not violate any applicable
laws of the province of Nova Scotia or the federal laws of Canada; and
(7) The Company's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the courts
of Nova Scotia and the Canadian federal courts; the agreement of the
Company that this Agreement shall be governed by and construed in
accordance with the laws of the State of New York and would be upheld by a
Nova Scotian or Canadian federal court; and a final and conclusive judgment
for a sum certain, in personam obtained in a New York court of competent
jurisdiction which is not void or voidable under New York law arising out
of or in relation to the obligations of the Company under this Agreement,
would be enforceable against the Company in the courts of Nova Scotia and
the Canadian federal courts. The opinion described in this paragraph (vii)
may be given subject to limitations and qualifications regarding public
policy, rules of evidence, principal in equity and the inherent
jurisdiction of the Nova Scotia and Canadian federal courts.
(6) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Senior Vice President and General
Counsel of the Company, to the effect that:
(1) Each Subsidiary (x) other than those Subsidiaries
specified in clause (y) of this Section 7(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, a limited
liability company or a business trust, has been duly
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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 property and to conduct its business as described in
the Prospectus; and, in each 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
condition (financial or other), business, properties or results of
operations of the Parent, the Company and the Subsidiaries taken as a
whole; and neither the Company nor the Parent is a general partner in any
partnership;
(2) Each of the Parent, the Company and the
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 Prospectus
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,
the Parent or any of the 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, the
Parent and the Subsidiaries taken as a whole;
(3) The contracts and agreements of the Parent, the
Company and the Subsidiaries and affiliates incorporated by reference in
the Prospectus (including in the Exchange Act Reports incorporated by
reference in the Prospectus) under the captions "Recent Developments" and
"Business - Description of Facilities" conform in all material respects to
the descriptions thereof contained in the Prospectus (or such Exchange Act
Reports), and the statements under the captions "Executive Officers,
Directors and Key Employees", "Executive Compensation", "Business - Project
Development", "Legal Proceedings" and "Business - Governmental Regulation",
insofar as such statements constitute summaries of the legal matters,
documents and governmental proceedings referred to therein are accurate in
all material respects and fairly summarize and present the information
referred to therein.
(4) To such counsel's knowledge, each of the Parent and
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
20
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 condition
(financial or other), business, properties or results of operations of the
Parent and the Company; and
(5) To such counsel's knowledge, based on the conduct
of each of the Parent's and the Company's business as described in the
Prospectus, neither the Parent, the Company nor any of the Subsidiaries is
(i) a "HOLDING COMPANY" or a "SUBSIDIARY" of a holding company or a "PUBLIC
UTILITY COMPANY" under Section 2(a) of the Public Utility Holding Company
Act of 1935 ("PUHCA") (except that certain Subsidiaries that are EWGs (as
defined herein) or QFs (as defined herein) and Cogeneration Corporation of
America are subsidiaries of a holding company), (ii) subject to regulation
under the Federal Power Act, as amended ("FPA"), other than as a power
marketer or an "exempt wholesale generator" ("EWG") that is a "public
utility" under the FPA or as a "qualifying facility" ("QF") under the
Public Utility Regulatory Policies Act of 1978 ("PURPA") contemplated by 18
C.F.R. ss.292.601(c) or (iii) with respect to each of the power generation
projects in which the Parent or its Subsidiaries has an interest that is
"qualifying facility" under PURPA, 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. ss. 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 the
opinion of such other counsel shall also be addressed to the Underwriters.
(7) The Representative shall have received from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Parent, the validity of the Securities and the Guarantees delivered on the
Closing Date, the Registration Statement, the Prospectus and other related
matters as the Representative 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.
(8) The Representative shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a principal
financial or accounting
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officer of each of the Company and the Parent in which such officers, to the
best of their knowledge after reasonable investigation, shall state that: the
respective representations and warranties of the Company or the Parent, as
applicable, in this Agreement are true and correct; the Company or the Parent,
as applicable, has complied with all agreements and satisfied all respective
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; 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 Parent, the Company and the
Subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(9) The Representative shall have received a letter, dated
such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of
subsection (a) 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 and the Parent will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. [Underwriter] may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement.
7. Indemnification and Contribution. (a) The Company and the
Parent will jointly and severally 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 Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Securities Act or the Exchange 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 preliminary prospectus supplement, 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 in order 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 Company and the Parent
will not be liable in any
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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 Company and the Parent by
any Underwriter through the Representative 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.
(1) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and the Parent and their respective
directors and officers and trustees and each person, if any who controls the
Company or the Parent within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company or the
Parent may become subject, under the Securities Act or the Exchange 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 preliminary prospectus supplement, 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 Company and the Parent by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or the Parent 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 .
(2) 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
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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.
(3) 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 Company and the Parent on the one hand and the Underwriters on the other
from the offering of the 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 Company and the Parent 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
Company and the Parent 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 Company and the Parent bear
to the total underwriting discounts and commissions received by the Underwriters
from the Company and the Parent under this Agreement. 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 Company and the Parent 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 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. No person guilty of fraudulent
23
24
misrepresentation (within the meaning of Section 11(f) of the Securities 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.
(4) The obligations of the Company and the Parent under this
Section shall be in addition to any liability which the Company and the Parent
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
Securities Act or the Exchange 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 or the Parent, to each officer of
the Company or the Parent who has signed a Registration Statement and to each
person, if any, who controls the Company or the Parent within the meaning of the
Securities Act or the Exchange Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under this Agreement and the
aggregate principal amount of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Securities that the Underwriters are obligated to purchase
on such Closing Date, [Underwriter] may make arrangements satisfactory to the
Company and the Parent for the purchase of such Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under this Agreement, to purchase the
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to [Underwriter], the Company and the Parent for the purchase of
such 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 or the Parent, except as provided in
Section 9. 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 Company, the Parent 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
25
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter and the Company, the Parent or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Company and the Parent
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect. If the purchase of
the 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 Company and the Parent will 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 Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered, telegraphed and
confirmed or faxed and confirmed to the Representative, c/o , or, if sent to the
Company or the Parent, will be mailed, delivered, telegraphed and confirmed or
faxed 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,
telegraphed and confirmed or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the Company, the Parent and such Underwriters as are
identified in this Agreement 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 Representative will
act for the several Underwriters in connection with the financing described in
the this Agreement, and any action taken by the Representative 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.
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The Company and the Parent hereby submit 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 the
Terms Agreement (including the provisions of this Agreement) or the transactions
contemplated hereby.
The obligation of the Company in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day following receipt
by such Underwriter of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter hereunder, such Underwriter agrees to
pay to the Company an amount equal to the excess of the dollars so purchased
over the sum originally due to such Underwriter hereunder.
[Signature page follows.]
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If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and the Parent a counterpart hereof, whereupon it will become a binding
agreement between the Company, the Parent and the Underwriters in accordance
with its terms.
Very truly yours,
CALPINE CANADA ENERGY
FINANCE II ULC
By:
--------------------------------------
Name:
Title:
CALPINE CORPORATION
By:
--------------------------------------
Name:
Title:
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of itself and as the Representative
of the several Underwriters
By:
--------------------------------------
Name:
Title:
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SCHEDULE A
% SENIOR NOTES DUE 20-
UNDERWRITER PRINCIPAL AMOUNT
...................................................... $
......................................................
......................................................
......................................................
Total.............................................
$
=============
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SCHEDULE B
I. Subsidiary Liens
The Parent has pledged the capital stock of certain Subsidiaries owned by
the Parent 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 Parent's Common Stock
pursuant to the Stock Purchase Agreement dated as of May 1, 1998 by and between
the Parent and CCNG.
Pursuant to the Stock and Note Purchase Agreement, dated as of June 23,
2000 (the "Stock and Note Purchase Agreement"), by and among the Parent, Wisvest
Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), the ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Trusts (the "Trusts"), ▇▇▇▇▇▇ Energy Corporation and SkyGen Energy
Holdings LLC, the Parent has executed a Stockholder's Rights Agreement, in
substantially the form of Exhibit 5.2 to the Stock and Note Purchase Agreement,
with respect to shares of the Parent's Common Stock to be issued to ▇▇▇▇▇▇ and
the Trusts at the closing under the Stock and Note Purchase Agreement. Pursuant
to such Stockholder Rights Agreement, ▇▇▇▇▇▇ and the Trusts will be granted both
demand and piggyback registration rights with respect to such shares of the
Parent's Common Stock.
Pursuant to the Registration Rights Agreement, dated as of April [ ], 2001
(the "Registration Rights Agreement"), between Parent and WRMS Engineering Inc.
("WRMS") and the shareholders of WRMS, the Parent is obligated to file a
registration statement on Form S-3 with the Securities and Exchange Commission
relating to such shares of Common Stock issued to the WRMS shareholders named
thereon as part of the acquisition by the Parent of WRMS.
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