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EXHIBIT 1.2
CALPINE CANADA ENERGY FINANCE ULC
% Senior Notes due 2008
Fully and Unconditionally Guaranteed By
CALPINE CORPORATION
UNDERWRITING AGREEMENT
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, 2001
Credit Suisse First Boston Corporation,
As Representative of the Several Underwriters,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Calpine Canada Energy Finance 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 2008 (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:
(a) 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 April , 2001. Such registration statement, as amended at
the time of this Agreement, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the 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.
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(b) 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.
(c) 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.
(d) 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 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 (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
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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).
(f) 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 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Parent.
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(l) 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.
(m) 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").
(n) 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.
(o) 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.
(p) 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 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.
(q) 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 its 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.
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(r) 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.
(s) 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.
(t) 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.
(u) 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.
(v) 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).
(w) 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.
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(x) The Parent is subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
(y) 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 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 Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of Calpine Canada Energy Finance ULC at the office of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00
A.M., (New York time), on , 2001 , 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 "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:
(a) 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 CSFBC, subparagraph (5)) not later than the second
business day following the execution and delivery of this Agreement.
(b) The Company and the Parent will advise CSFBC promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will afford CSFBC a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company and the Parent will also advise CSFBC
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
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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 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 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 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.
(d) 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 latest 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.
(e) 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 CSFBC
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.
(f) 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 CSFBC 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.
(g) During the period of five years after the date this Agreement,
the Parent will furnish to CSFBC 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
CSFBC 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 CSFBC may reasonably request.
(h) 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.
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(i) 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
CSFBC 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.
(j) For a period of 30 days after the date hereof, neither the
Company nor the Parent will, and the Parent will not permit the 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
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 CSFBC.
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:
(a) 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:
(i) 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;
(ii) 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 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 the Registration Statement do not each comply as to form
in all material respects with the applicable accounting requirements
under the Securities Act;
(B) 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
(C) 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 clause (B) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iii) 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 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.
(b) 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.
(c) 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 CSFBC,
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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 CSFBC, 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.
(d) 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:
(i) 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;
(ii) (A) The Indenture has been duly qualified under the Trust
Indenture Act, (B) the Securities and the Indenture 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 delivered on the Closing Date 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;
(iii) (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;
(iv) 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
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pursuant to any other registration statement filed by the Company or the
Parent under the Securities Act;
(v) 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 not be an
"investment company" within the meaning of the Investment Company Act of
1940;
(vi) 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;
(vii) 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 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 its
obligations under this Agreement;
(viii) The execution, delivery and performance of the Indenture,
this Agreement, the Guarantees 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);
(ix) 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 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,
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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
(x) 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.
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.
(e) The Representative shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel for the Parent and the
Company, to the effect that:
(i) 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;
(ii) (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 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;
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(iii) 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;
(iv) 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 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;
(v) 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;
(vi) 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
(vii) 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 (viii)
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.
(f) 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:
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(i) 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 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;
(ii) 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;
(iii) The contracts and agreements of the Company, the
Parent 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.
(iv) To such counsel's knowledge, each of the Company and
the Parent (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 condition (financial or other), business, properties or
results of operations of the Company and the Parent; and
(v) To such counsel's knowledge, based on the conduct of
each of the Company's and the Parent's business as described in the
Prospectus, 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
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("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 Company 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 ▇.▇.▇.▇▇. 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.
(g) 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.
(h) The Representative shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal financial
or accounting 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.
(i) 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 request. CSFBC 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,
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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 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.
(b) 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 .
(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
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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 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
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.
(e) 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, CSFBC
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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 CSFBC, 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 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 Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Investment Banking Department-Transactions Advisory Group, 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.
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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.
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
one of the counterparts 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 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
CREDIT SUISSE FIRST BOSTON CORPORATION
By:.....................................
Name:
Title:
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