EXHIBIT 4.3
$400,000,000
CE GENERATION LLC
$400,000,000 7.416% Senior Secured Bonds Due December 15, 2018
PURCHASE AGREEMENT
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February 24, 1999
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. CE Generation LLC, a Delaware limited liability company
("CE Generation"), proposes, subject to the terms and conditions stated herein,
to issue and sell to Credit Suisse First Boston Corporation ("CSFB") and Xxxxxx
Brothers Inc., as initial purchasers (the "Purchasers"), U.S.$400,000,000
principal amount of its 7.416% Senior Secured Bonds Due December 15, 2018 (the
"Securities"), to be issued under an Indenture dated as of March 2, 1999 (the
"Indenture"), by and between CE Generation and Chase Manhattan Bank and Trust
Company, as trustee (the "Trustee"). Capitalized terms used herein without being
defined herein shall have the meanings ascribed to such terms in the Indenture,
a form of which is attached hereto as Appendix A. CE Generation hereby agrees
with the Purchasers as follows:
2. Representations and Warranties of CE Generation. CE Generation represents
and warrants to, and agrees with, the Purchasers that:
(a) CE Generation has prepared a preliminary offering circular dated
February 18, 1999 (as it may be amended or supplemented, the "Preliminary
Offering Circular") and a final offering circular dated February 24, 1999 (as it
may be amended or supplemented, the "Final Offering Circular") relating to the
Securities. Copies of the Preliminary Offering Circular and the Final Offering
Circular have been delivered by CE Generation to the Purchasers. The Preliminary
Offering Circular was on the date thereof accurate in all material respects and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading; and the Final Offering Circular is as of its date (and any
amendment or supplement thereto will be as of its date) accurate in all material
respects and does not (and will not) contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that CE Generation makes no representation or warranty as
to information contained in or omitted from the Preliminary Offering Circular or
the Final Offering Circular in reliance upon and in conformity with written
information furnished to CE Generation by any Purchaser through CSFB
specifically for inclusion therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof.
(b) CE Generation has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, and is duly qualified to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which its ownership or
lease of property or in which the conduct of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on CE Generation and the other Transaction Parties (as defined
below), taken as a whole. CE Generation has all necessary power and authority to
own or lease its properties and to conduct the business in which it is engaged
as described in the Final Offering Circular. All of the outstanding membership
interests in CE Generation are owned by CalEnergy Company, Inc. ("CalEnergy"),
free and clear of any claim, Lien, encumbrance or agreement, except as
contemplated by the Operative Documents. CE Generation owns, directly or
indirectly, all of the outstanding capital stock of each of the Assignors, free
and clear of any claim, Lien, encumbrance or agreement, except as contemplated
by the Operative Documents.
(c) Each of CE Generation and each Assignor (each such Person, a
"Transaction Party") has all power and authority necessary to execute and
deliver the documents listed on Schedule II hereto (the "Operative Documents")
to which it is a party and perform its obligations thereunder; each of the
Operative Documents to which any Transaction Party is a party has been or on the
Closing Date (as hereinafter defined) will have been duly authorized, executed
and delivered by such party or parties thereto and constitutes the legal, valid
and binding obligation of such party or parties, subject to the qualification
that the enforceability of such party's or parties' obligations thereunder may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity and except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or principles of
public policy; the execution, delivery and performance by each Transaction Party
of each of the Operative Documents to which it is a party and its compliance
with the provisions thereof will not breach or (except as contemplated by the
Operative Documents) result in the creation or imposition of any
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lien, charge or encumbrance upon any asset which is material to CE Generation
and the other Transaction Parties, taken as a whole (a "Material Asset"),
pursuant to the terms of, or constitute a breach of, or default under, the
certificate of formation or operating agreement of CE Generation or the
corporate charter or bylaws of the other Transaction Parties or any agreement,
indenture (including, without limitation, the Indenture) or other instrument to
which any of the Transaction Parties is a party or by which any of the
Transaction Parties is bound (in each case which is material to CE Generation
and the other Transaction Parties, taken as a whole) or to which any Material
Asset is subject, or any law, order, rule, regulation, judgment or decree of any
court or governmental agency having jurisdiction over the Transaction Parties or
any Material Asset of the Transaction Parties; and, except as completed on or
prior to the Closing Date (as hereinafter defined) or as required by applicable
state securities laws, no consent, authorization or order of, or filing or
registration by any Transaction Party with, any court, governmental agency or
third party is required in connection with the execution, delivery and
performance of each of the Operative Documents to which any Transaction Party is
a party.
(d) No Transaction Party is in violation of its certificate of
formation or operating agreement, or its certificate of incorporation or bylaws,
as the case may be. Except as described in the Final Offering Circular, none of
the Transaction Parties, any Intermediate Holding Company, any Project Company
or any Project Holding Company (any such Person, a "Subject Company") (i) is in
default, and no event has occurred which, with notice or lapse of time or both,
would constitute a default by any Subject Company, in the due performance and
observance of any material term, representation, covenant or condition contained
in any lease, license, indenture, mortgage, deed of trust, note, bank loan or
other evidence of indebtedness or any other agreement, understanding or
instrument to which such Subject Company is a party or by which such Subject
Company or any asset of such Subject Company is bound, which default would have
a material adverse effect on the financial condition, business or results of
operations of CE Generation and the other Transaction Parties, taken as a whole,
or (ii) is in violation of any applicable law, ordinance, governmental rule or
regulation or court decree to which it may be subject, which violation would
have a material adverse effect on the financial condition, business or results
of operations of any Subject Company, which would in turn be reasonably likely
to have a material adverse effect on the financial condition, business or
results of operations of CE Generation and the other Transaction Parties, taken
as a whole.
(e) Except as described in or contemplated by the Final Offering
Circular, each Subject Company (i) has properly obtained each license, permit,
certificate, franchise or other governmental authorization necessary to the
ownership of its property or to the conduct of its business as described in the
Final Offering Circular, and (ii) is in compliance with all terms and conditions
of each such license, permit, certificate, franchise or other governmental
authorization, except (x) in either case where the failure to
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do so could not have a material adverse effect on the financial condition,
business or results of operations of CE Generation and the other Transaction
Parties, taken as a whole, (y) permits, consents and approvals that may be
required for future drilling or operating activities which are ordinarily deemed
to be ministerial in nature and which are anticipated to be obtained in the
ordinary course and (z) permits, consents and approvals for developmental or
construction activities which have not yet been obtained but which have been or
will be applied for in the course of development or construction and which are
anticipated to be obtained in the ordinary course.
(f) Except as described in or contemplated by the Final Offering
Circular, the Subject Companies hold good and valid title to, or valid and
enforceable leasehold or contractual interests in, all items of real and
personal property which are material to the business of CE Generation and the
other Transaction Parties, taken as a whole, free and clear of all liens,
encumbrances and claims which would materially interfere with the conduct of the
business of CE Generation and the other Transaction Parties, taken as a whole,
as described in the Final Offering Circular. Each Subject Company is presently
conducting its business as described in the Final Offering Circular and in
compliance with all applicable laws, rules and regulations, except where the
failure to do so could not have a material adverse effect on the financial
condition, business or results of operations of CE Generation or the other
Transaction Parties, taken as a whole.
(g) Xxxxxxxx & Touche LLP, whose report appears in the Final Offering
Circular, is and was, during the period covered by such report, independent with
respect to CE Generation within the meaning of the Securities Exchange Act of
1934, as amended, and the applicable rules and regulations thereunder (the
"Exchange Act").
(h) The Securities have been validly authorized and, when executed by
the proper officers of CE Generation (assuming the due authorization, execution
and delivery thereof by the Trustee) and delivered by CE Generation, will
constitute the legal, valid and binding obligation of CE Generation entitled to
the benefits of the Indenture, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity. The summary descriptions
contained in the Final Offering Circular of the Securities, the Indenture and
the other Operative Documents conform in all material respects to these
documents.
(i) The execution and delivery of each of the Security Documents to
which the any Transaction Party is a party or will be a party on the Closing
Date (as hereinafter defined) is or will be effective to create in favor of the
Collateral Agent for the benefit of the Secured Parties, as security for the
payment and performance of the obligations secured thereby, a valid and
enforceable security interest in the Collateral covered or purported to be
covered thereby. Upon filing of the UCC-1 financing statements
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naming the Transaction Parties as debtors and the Collateral Agent as secured
party (the "Financing Statements"), such security interests granted by the
Transaction Parties will have the priority purported to be created by such
Security Documents. The Financing Statements on the Closing Date (as hereinafter
defined) will be in appropriate form for filing (including the description of
the Collateral set forth therein) in each office and in each jurisdiction where
required to create and perfect the lien and security interest described above.
(j) The Transaction Parties will own all of the Collateral on the
Closing Date (as hereinafter defined), free and clear of any Liens other than
Permitted Liens and Permitted Assignor Liens, as the case may be.
(k) Except as described in the Final Offering Circular, there is no
litigation or proceeding pending before or by any court or governmental agency,
authority or body or any arbitrator, or, to the knowledge of CE Generation,
threatened, to which any Subject Company is a party or of which any Material
Asset of any Subject Company is the subject, including, without limitation, any
audit by the Internal Revenue Service of the federal income tax returns of such
Subject Company, which, if an adverse decision were reached, would be likely to
have a material adverse effect on (x) the financial condition, business or
results of operations of CE Generation and the other Transaction Parties, taken
as a whole, or (y) the ability of CE Generation or any other Transaction Party
to perform in any material respect its material obligations under the
Transaction Documents to which it is a party.
(l) The financial statements (including the related notes) included on
pages F-1 through F-18 in the Final Offering Circular present fairly the
financial condition, results of operations and changes in financial position of
the entities purported to be shown thereby, at the dates and for the periods
indicated, and, except as otherwise described in the Final Offering Circular,
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, and the
capitalization of CE Generation, as set forth in the column labeled "Actual"
under the caption "CAPITALIZATION" in the Final Offering Circular, is accurately
described as of the date presented therein.
(m) Except as disclosed in the Final Offering Circular, since the date
of the latest audited financial statements included in the Final Offering
Circular there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the financial condition,
business or results of operations of CE Generation and the other Transaction
Parties, taken as a whole.
(n) The factual information provided by CE Generation to Xxxxx Xxxxxx,
Inc. (the "Power Generation Projects Independent Engineer" and the "Geothermal
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Projects Independent Engineer"), X.X. Xxxx, Inc. (the "Natural Gas Projects
Independent Engineer"), Xxxxxxx Energy Services, Inc. (the "Power Market
Consultant") and GeothermEx, Inc. (the "Geothermal Resource Consultant") in the
preparation of their reports set forth at Appendices B, C, D, E and F to the
Final Offering Circular (which factual information is referenced in such report)
was provided in good faith; provided that the foregoing does not imply or
express any representation or warranty by CE Generation as to the accuracy of
the projections or conclusions contained in such report and does not constitute
any obligation to update such reports.
(o) No labor problem or disturbance exists with respect to Persons
employed in connection with the Projects, or is threatened which might
reasonably be expected to have a material adverse effect on the financial
condition, business or results of operations of CE Generation and the other
Transaction Parties, taken as a whole.
(p) Neither CE Generation nor any of its Affiliates nor (assuming the
accuracy of the representations of the Purchasers set forth herein) any Person
acting on their behalf has made offers or sales of securities under
circumstances that would require the registration of the Securities under the
Securities Act of 1933, as amended (the "Securities Act").
(q) The Securities meet the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(r) CE Generation is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), nor is it a closed-end investment company
required to be registered, but not registered, thereunder; and CE Generation is
not and, after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final Offering Circular,
will not be, an "investment company" as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Securities are listed on any
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 ("Exchange Act") or quoted in a U.S. automated inter-dealer
quotation system.
(t) Assuming the accuracy of the representations of the Purchasers
herein, the offer and sale of the Securities in the manner contemplated by this
Agreement will be exempt from the registration requirements of the Securities
Act by reason of Section 4(2) thereof, Rule 144A thereunder and Regulation S
thereunder; and it is not necessary to
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qualify an indenture in respect of the Securities under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
(u) Assuming the accuracy of the representations of the Purchasers
herein, neither CE Generation nor any of its Affiliates, nor any Person acting
on their behalf (i) has, within the six-month period prior to the date hereof,
offered or sold in the United States or to any U.S. Person (as such terms are
defined in Regulation S under the Securities Act) the Securities or any security
of the same class or series as the Securities or (ii) has offered or will offer
or sell the Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of
any directed selling efforts within the meaning of Rule 902(b) of Regulation S.
Assuming the accuracy of the representations of the Purchasers herein, CE
Generation and any Person acting on its behalf have complied and will comply
with the offering restrictions requirement of Regulation S.
(v) The proceeds to CE Generation from the offering of the Securities
will not be used to purchase or carry any security, except as contemplated in
the Final Offering Circular.
(w) Each of the Projects is either (i) a "Qualifying Facility," as such
term is defined pursuant to the Public Utility Regulatory Policies Act of 1978,
as amended, and the regulations promulgated thereunder, or (ii) an "Eligible
Facility" that is owned by an "Exempt Wholesale Generator," as such terms are
defined pursuant to the Public Utility Holding Company Act of 1935, as amended.
Neither CE Generation nor any other Subject Company will, solely as a result of
the participation by the parties separately or as group in the transactions
contemplated by the Transaction Documents and the ownership, use or operation of
the Projects, be subject to regulation by any Governmental Authority as a
"public utility," an "electric utility," an "electric utility holding company,"
a "public utility holding company," a "holding company," or an "electrical
corporation" or a subsidiary or Affiliate of any of the foregoing under any
Applicable Law (including, without limitation, rules and regulations of the
Public Utility Holding Company Act of 1935 (other than Section 9(a)(2) thereof),
the Federal Power Act of 1920 and the Public Utility Regulatory Policies Act of
1978, each as amended).
(x) CE Generation is not a "party in interest" or a "disqualified
person" (within the meaning of Section 4975 of the Internal Revenue Code of
1986, as amended) with respect to any "employee benefit plan" (within the
meaning of Section 3(3) of the ERISA).
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(y) The proceeds from the sale of Securities will be utilized by CE
Generation as described under the section of the Final Offering Circular titled
"Use of Proceeds."
3 Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, CE Generation agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from CE Generation, at a purchase price of 99.125% of the principal amount of
the Securities, plus accrued interest from March 2, 1999 to the Closing Date (as
hereinafter defined), the respective principal amounts of the Securities set
forth opposite the names of the Purchasers on Schedule I.
CE Generation 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 Final Offering Circular. Payment for the Securities shall be made by the
Purchasers in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to CSFB by CE
Generation drawn to the order of CE Generation at the office of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00
a.m. (New York time), on March 2, 1999, or at such other time not later than
seven (7) full business days thereafter as CSFB and CE Generation 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
above offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at least twenty-four
(24) hours prior to the Closing Date.
Notwithstanding the foregoing, any Securities sold to Institutional
Accredited Investors (as hereinafter defined) pursuant to Section 4(c) shall be
issued in definitive, fully registered form and shall bear the legend relating
thereto set forth under "TRANSFER RESTRICTIONS" in the Final Offering Circular,
but shall be paid for in the same manner as any Securities to be purchased by
the Purchasers hereunder and to be offered and sold by it in reliance on Rule
144A under the Securities Act.
4 Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to CE Generation
that it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
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(b) Each Purchaser severally acknowledges that the Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. Persons except
in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Securities, and will
offer and sell the Securities only in accordance with Rule 903 under the
Securities Act or Rule 144A under the Securities Act ("Rule 144A") or to a
limited number of Institutional Accredited Investors in accordance with clause
(c) of this Section 4. Accordingly, neither such Purchaser nor its Affiliates,
nor any Persons acting on its or their behalf, have engaged or will engage in
any directed selling efforts with respect to the Securities, and such Purchaser,
its Affiliates and all Persons acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S and Rule
144A.
(c) Each Purchaser may offer and sell Securities in definitive, fully
registered form to a limited number of institutions, each of which is reasonably
believed by such Purchaser to be an "accredited investor" within the meaning of
Rule 501(a)(1), (2) or (3) under the Securities Act or an entity in which all of
the equity owners are accredited investors within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act (each an "Institutional Accredited
Investor"); provided that each such Institutional Accredited Investor executes
and delivers to such Purchaser and CE Generation, prior to the consummation of
any sale of Securities to such Institutional Accredited Investor, a Purchaser's
Letter in substantially the form attached to the Final Offering Circular as
Annex G (a "Purchaser's Letter").
(d) Each Purchaser severally agrees that neither it nor any of its
Affiliates has entered into or will enter into any contractual arrangement with
respect to the distribution of the Securities except for any such arrangements
with the prior written consent of CE Generation.
(e) Each Purchaser severally agrees that neither it nor any of its
Affiliates has offered or sold the Securities or will offer or sell the
Securities in the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising. Each Purchaser
severally agrees, with respect to resales made in reliance on Rule 144A of any
of the Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect that the
resale of such Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
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(f) Each Purchaser severally represents and agrees that (i) it has not
offered or sold and prior to the date six (6) months after the date of issue of
the Securities will not offer or sell any Securities to Persons in the United
Kingdom except to Persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on, and will only issue or pass on, in the United Kingdom
any document received by it in connection with the issue of the Securities to a
Person who is of the kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a Person to
whom such document may otherwise lawfully be issued or passed on.
5 Certain Agreements of CE Generation. CE Generation agrees with the several
Purchasers that:
(a) CE Generation will advise CSFB promptly of any proposal to amend or
supplement the Final Offering Circular and will not effect such amendment or
supplementation without CSFB's consent. If at any time prior to the completion
of the resale of the Securities by the Purchasers any event occurs as a result
of which the Final Offering Circular 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, CE Generation promptly
will notify CSFB of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission. Neither
CSFB's consent to, nor the Purchasers' 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.
(b) CE Generation will furnish to CSFB copies of the Preliminary
Offering Circular, the Final Offering Circular and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as CSFB reasonably requests, and CE Generation will furnish to CSFB
on the date hereof three (3) copies of the Final Offering Circular signed by a
duly authorized officer of CE Generation. At any time when CE Generation is not
subject to Section 13 or 15(d) of the Exchange Act, CE Generation will promptly
furnish or cause to be furnished to the Purchasers and, upon request of holders
and prospective purchasers of the Securities, to such holders and prospective
purchasers, copies of the information required to be
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delivered to holders and prospective purchasers of the Securities pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such
holders of the Securities. CE Generation will pay the expenses of printing and
distributing to the Purchasers and such holders and prospective purchasers all
such documents.
(c) CE Generation will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under the
Applicable Laws of such jurisdictions in the United States and Canada as CSFB
designates and will continue such qualifications in effect so long as required
for the resale of the Securities by the Purchasers; provided that CE Generation
will not be required to qualify as a foreign corporation or to file a general
consent to service of process in any such jurisdiction.
(d) During the period of five (5) years hereafter, CE Generation will
furnish to the Purchasers, as soon as available after the end of each fiscal
year, a copy of its annual audited consolidated financial statements.
(e) During the period of two (2) years after the Closing Date, CE
Generation will, upon request, furnish to the Purchasers and any holder or
beneficial owner of Securities a copy of the restrictions on transfer applicable
to the Securities.
(f) During the period of two (2) years after the Closing Date, CE
Generation will not, and will not permit any of their Affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that have
been reacquired by any of them.
(g) During the period of two (2) years after the Closing Date, CE
Generation will not be or become an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act.
(h) CE Generation will pay all expenses incidental to the performance
of their obligations under this Agreement, the Indenture and the other Financing
Documents, including, without limitation (i) the fees and expenses of the
Trustee and its professional advisers, and (ii) all expenses in connection with
the execution, issue, authentication, packaging and initial delivery of the
Securities, the preparation and printing of this Agreement, the Securities, the
Indenture, the Preliminary Offering Circular, the Final Offering Circular and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Securities. CE Generation will also
pay or reimburse the Purchasers (to the extent incurred by them) for any
expenses actually and reasonably incurred by the Purchasers in connection with
the purchase and sale of the Securities, including, without limitation, all
out-of-pocket expenses incurred by the Purchasers (such as, but not limited to,
travel, hotel, telephone and telecopy charges), all
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fees and disbursements of counsel to the Purchasers, expenses related to
qualification of the Securities for sale under the laws of such jurisdictions in
the United States and Canada as CSFB designates and the printing of memoranda
relating thereto, up to $1,000 ("blue sky fees"), fees charged by investment
rating agencies for the rating of the Securities ("rating agency fees"), all
travel expenses of the Purchasers' and CE Generation's officers and employees
and any other expenses of the Purchasers and CE Generation in connection with
attending or hosting meetings with prospective purchasers of the Securities from
the Purchasers and for expenses incurred in distributing Preliminary Offering
Circulars and Final Offering Circulars (including any amendments and supplements
thereto) to the Purchasers and prospective purchasers of the Securities from the
Purchasers; provided that such fees and expenses (other than rating agency fees,
blue sky fees and fees and disbursements of counsel to the Purchasers) are
estimated to be approximately $175,000 and will be subject to audit and
verification by CE Generation that such fees and expenses were reasonably
incurred in connection with the issuance and offering of the Securities.
(i) In connection with the offering, until the earlier of (x) one
hundred eighty (180) days following the Closing Date and (y) the date CSFB shall
have notified CE Generation of the completion of the resale of the Securities,
neither CE Generation nor any of its Affiliates has or will, either alone or
with one or more other Persons, bid for or purchase for any account in which it
or any of its Affiliates has a beneficial interest any Securities or attempt to
induce any Person to purchase any Securities; and neither CE Generation nor any
of its Affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Securities.
(j) CE Generation will not, until thirty (30) days following the
Closing Date, without the prior written consent of CSFB, pursuant to Rule 144A,
Regulation S or an offering registered under the Securities Act, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed by CE Generation
(other than the Securities).
6 Conditions of the Obligations of the Purchaser. The obligations of the
Purchasers to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties made by CE Generation herein, to
the accuracy of the statements of officers of CE Generation pursuant to the
provisions hereof, to the performance by CE Generation of its obligations
hereunder and to the following additional conditions precedent:
(a) The Purchase shall have received a letter, dated the date of this
Agreement, of Deloitte & Touche LLP in form and substance reasonably
satisfactory to CSFB concerning the financial information with respect to CE
Generation set forth in the Final Offering Circular.
12
(b) 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 or affecting the financial condition, business or results
of operations of CE Generation and the other Transaction Parties, taken as a
whole, which, in the reasonable judgment of the Purchasers, materially impairs
the investment quality of the Securities or is material and adverse and makes it
impractical or inadvisable to proceed with the offering of the Securities; (ii)
any downgrading in the rating of any debt securities of CE Generation by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act) or any public announcement that such
organization has under surveillance or review its rating of any debt securities
of CE Generation (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 CalEnergy on any exchange or in the over the counter market; (iv)
any banking moratorium declared by U.S. federal or New York state authorities;
or (v) any outbreak or escalation of hostilities in which the United States is
involved, any declaration of war by the Congress of the United States or any
other change in the financial markets or substantial national calamity or
emergency if, in the judgment of the Purchasers, the effect of any such
outbreak, escalation, declaration, change, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Securities.
(c) (i) The representations and warranties of each of CE Generation and
the other Transaction Parties contained herein and in each other Operative
Document to which CE Generation or any of the other Transaction Parties is party
shall be true and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the
Closing Date, (ii) each of CE Generation and the other Transaction Parties shall
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder or thereunder at or prior to the Closing Date,
and (iii) subsequent to the respective dates of the most recent financial
statements in the Final Offering Circular, there shall have been no material
adverse change in the financial position or results of operation of CE
Generation and the other Transaction Parties, taken as a whole, each of the
matters set forth in clauses (i) through (iii) immediately above as evidenced by
an Officer's Certificate of CE Generation, dated the Closing Date.
(d) On or prior to the Closing Date, each of the Operative Documents
shall have been fully executed and delivered in a manner reasonably satisfactory
to the Purchasers by each of the parties thereto and no provision thereof shall
have been amended, waived or otherwise modified. As of the Closing Date, each of
the Operative
13
Documents shall be in full force and effect and all conditions precedent to any
parties' obligations thereunder shall have been satisfied.
(e) On the Closing Date, CE Generation shall have delivered to the
Trustee evidence reasonably satisfactory to the Purchasers that any irrevocable
letter of credit anticipated to be required in order to fund the Debt Service
Reserve Account up to the Debt Service Reserve Requirement has been obtained and
is in existence on the Closing Date or other arrangements with respect to such
obligations acceptable to the Purchasers shall have been made.
(f) UCC-1 Financing Statements shall have been delivered for filing,
recordation and/or registration in each office and in each jurisdiction where
required to create and perfect a valid and enforceable security interest in the
Collateral covered or purported to be covered by the Security Documents, with
the priority purported to be granted thereby. All taxes and recording and filing
fees required to be paid with respect to the execution, recording or filing of
such UCC-1 Financing Statements shall have been paid or provided for. All
Collateral shall be subject to no Liens other than Permitted Liens or Permitted
Assignor Liens.
(g) On or prior to the Closing Date, each of the Project Documents, in
the forms as previously delivered to the Purchasers or their counsel and as they
exist as executed versions as of the date of this Agreement or in such forms as
shall be reasonably satisfactory in form and substance to the Purchasers and
their counsel shall have been executed and delivered. As of the Closing Date,
each of the Project Documents shall be in full force and effect, no default
shall have occurred thereunder, all conditions precedent thereunder shall be
satisfied and there shall not have occurred any event of force majeure
thereunder as of the Closing Date.
(h) The Purchasers shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP that meets the requirements of subsection (a)
above, except that the specified date referred to in such subsection will be a
date not more than three (3) days prior to the Closing Date for the purposes of
this subsection (i).
(i) The Power Generation Independent Engineer shall have consented to
the references to it in the Final Offering Circular and the use of the Power
Generation Independent Engineer's Report (as defined in the Final Offering
Circular) prepared by the Power Generation Independent Engineer and contained in
Appendix B to the Final Offering Circular; and since the date of the Power
Generation Independent Engineer's Report, no event affecting the Power
Generation Independent Engineer's Report or the matters referred to therein
shall have occurred (A) which shall make untrue or incorrect in any material
respect, as of the Closing Date, any information or statement contained in the
Power Generation Independent Engineer's Report or in the Final Offering Circular
14
relating to matters referred to in the Power Generation Independent Engineer's
Report, or (B) which shall not be reflected in the Final Offering Circular but
should be reflected therein in order to make the statements and information
contained in the Power Generation Independent Engineer's Report, or in the Final
Offering Circular relating to matters referred to in the Power Generation
Independent Engineer's Report, in light of the circumstances under which they
were made, not misleading, as evidenced by a certificate reasonably satisfactory
to the Purchasers of an authorized officer of the Power Generation Independent
Engineer, dated the Closing Date.
(j) The Natural Gas Independent Engineer shall have consented to the
references to it in the Final Offering Circular and the use of the Natural Gas
Independent Engineer's Report (as defined in the Final Offering Circular)
prepared by the Natural Gas Independent Engineer and contained in Appendix C to
the Final Offering Circular; and since the date of the Natural Gas Independent
Engineer's Report, no event affecting the Natural Gas Independent Engineer's
Report or the matters referred to therein shall have occurred (A) which shall
make untrue or incorrect in any material respect, as of the Closing Date, any
information or statement contained in the Natural Gas Independent Engineer's
Report or in the Final Offering Circular relating to matters referred to in the
Natural Gas Independent Engineer's Report, or (B) which shall not be reflected
in the Final Offering Circular but should be reflected therein in order to make
the statements and information contained in the Natural Gas Independent
Engineer's Report, or in the Final Offering Circular relating to matters
referred to in the Natural Gas Independent Engineer's Report, in light of the
circumstances under which they were made, not misleading, as evidenced by a
certificate reasonably satisfactory to the Purchasers of an authorized officer
of the Natural Gas Independent Engineer, dated the Closing Date.
(k) The Geothermal Projects Independent Engineer shall have consented
to the references to it in the Final Offering Circular and the use of the
Geothermal Projects Independent Engineer's Report (as defined in the Final
Offering Circular) prepared by the Geothermal Projects Independent Engineer and
contained in Appendix D to the Final Offering Circular; and since the date of
the Geothermal Projects Independent Engineer's Report, no event affecting the
Geothermal Projects Independent Engineer's Report or the matters referred to
therein shall have occurred (A) which shall make untrue or incorrect in any
material respect, as of the Closing Date, any information or statement contained
in the Geothermal Projects Independent Engineer's Report or in the Final
Offering Circular relating to matters referred to in the Geothermal Projects
Independent Engineer's Report, or (B) which shall not be reflected in the Final
Offering Circular but should be reflected therein in order to make the
statements and information contained in the Geothermal Projects Independent
Engineer's Report, or in the Final Offering Circular relating to matters
referred to in the Geothermal Projects Independent Engineer's Report, in light
of the circumstances under which they were made, not misleading, as evidenced
15
by a certificate reasonably satisfactory to the Purchasers of an authorized
officer of the Geothermal Projects Independent Engineer, dated the Closing Date.
(l) The Power Market Consultant shall have consented to the references
to it in the Final Offering Circular and the use of the Power Market
Consultant's Report (as defined in the Final Offering Circular) prepared by the
Power Market Consultant and contained in Appendix E to the Final Offering
Circular; and since the date of the Power Market Consultant's Report, no event
affecting the Power Market Consultant's Report or the matters referred to
therein shall have occurred (A) which shall make untrue or incorrect in any
material respect, as of the Closing Date, any information or statement contained
in the Power Market Consultant's Report or in the Final Offering Circular
relating to matters referred to in the Power Market Consultant's Report, or (B)
which shall not be reflected in the Final Offering Circular but should be
reflected therein in order to make the statements and information contained in
the Power Market Consultant's Report, or in the Final Offering Circular relating
to matters referred to in the Power Market Consultant's Report, in light of the
circumstances under which they were made, not misleading, as evidenced by a
certificate reasonably satisfactory to the Purchasers of an authorized officer
of the Power Market Consultant, dated the Closing Date.
(m) The Geothermal Resource Consultant shall have consented to the
references to it in the Final Offering Circular and the use of the Geothermal
Resource Consultant's Report (as defined in the Final Offering Circular)
prepared by the Geothermal Resource Consultant and contained in Appendix F to
the Final Offering Circular; and since the date of the Geothermal Resource
Consultant's Report, no event affecting the Geothermal Resource Consultant's
Report or the matters referred to therein shall have occurred (A) which shall
make untrue or incorrect in any material respect, as of the Closing Date, any
information or statement contained in the Geothermal Resource Consultant's
Report or in the Final Offering Circular relating to matters referred to in the
Geothermal Resource Consultant's Report, or (B) which shall not be reflected in
the Final Offering Circular but should be reflected therein in order to make the
statements and information contained in the Geothermal Resource Consultant's
Report, or in the Final Offering Circular relating to matters referred to in the
Natural Gas Independent Engineer's Report, in light of the circumstances under
which they were made, not misleading, as evidenced by a certificate reasonably
satisfactory to the Purchasers of an authorized officer of the Geothermal
Resource Consultant, dated the Closing Date.
(n) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for CE Generation, containing
opinions customary for transactions of the type described herein and otherwise
in form and substance reasonably satisfactory to the Purchasers.
16
(o) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxx X. XxXxxxxx, Executive Vice President and General Counsel of CE
Generation, containing opinions customary for transactions of the type described
herein and otherwise in form and substance reasonably satisfactory to the
Purchasers.
(p) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxx Xxxxxx & Xxxxxxx, special Nevada counsel for CE Generation,
containing opinions customary for transactions of the type described herein and
otherwise in form and substance reasonably satisfactory to the Purchasers.
(q) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx, LLP, special Texas counsel for CE
Generation, containing opinions customary for transactions of the type described
herein and otherwise in form and substance reasonably satisfactory to the
Purchasers.
(r) The Purchasers shall have received an opinion, dated the Closing
Date, of White & Case LLP, special regulatory counsel for CE Generation,
containing opinions customary for transactions of the type described herein and
otherwise in form and substance reasonably satisfactory to the Purchasers.
(s) The Purchasers shall have received an opinion, dated the Closing
Date, from Xxxxxxx & Xxxxxxx, counsel to the Trustee, the Collateral Agent and
the Depositary Agent, in respect of the enforceability of the Operative
Documents to which the Trustee, the Collateral Agent and the Depositary Agent
are parties and the authentication of the Securities by the Trustee, which
opinion shall be satisfactory in all respects to the Purchasers and their
counsel.
(t) The Purchasers shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Purchasers, such opinion or opinions as the
Purchasers may reasonably request, dated the Closing Date, with respect to the
validity of the Securities, the Final Offering Circular and other matters CSFB
may request, and CE Generation shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(u) The Purchasers shall have received, in form and substance
satisfactory to the Purchasers, copies of such further opinions, certificates,
letters and documents as the Purchasers reasonably request.
7 Indemnification and Contribution.
(a) CE Generation will indemnify and hold harmless each Purchaser, its
partners, directors and officers and each person, if any, who controls such
Purchaser
17
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser 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 breach of any of the representations
and warranties of CE Generation contained herein or any untrue statement or
alleged untrue statement of any material fact contained in the Final Offering
Circular, or any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that CE Generation 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 CE Generation by any Purchaser
through CSFB specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; and provided, further that, with respect to any untrue
statement in or omission from the Preliminary Offering Circular, this indemnity
agreement shall not inure to the benefit of any Purchaser on account of any
loss, claim, damage, liability or action arising from the sale of any Securities
to any Person by such Purchaser, to the extent that such sale was an initial
resale by such Purchaser, and if such Purchaser failed to send or give a copy of
the Final Offering Circular, as the same may be amended or supplemented, to that
Person within the time required by the Securities Act, and the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in the Preliminary Offering Circular was corrected in
the Final Offering Circular and the Final Offering Circular was made available
to such Purchaser prior to the sale of the Securities.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless CE Generation, its partners, directors and officers and each person, if
any, who controls CE Generation within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which CE
Generation 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 the Final Offering Circular,
or any amendment or supplement thereto, or any related preliminary offering
circular, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or
18
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to CE Generation by such Purchaser through CSFB
specifically for use therein, and will reimburse CE Generation for any legal or
other expenses reasonably incurred by CE Generation 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 Purchasers consists of the following information in
the Final Offering Circular: the third paragraph, the fifth paragraph, the
second sentence of the seventh paragraph, the eighth paragraph and the last
paragraph under the caption "PLAN OF DISTRIBUTION."
(c) Promptly after receipt by an indemnified party under this Section 7
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; provided that the omission so to notify the indemnifying party will not
relieve it 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 reasonably
satisfactory to such indemnified 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 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the indemnified party
shall have the right to employ counsel to represent the indemnified party and
their respective controlling Persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the indemnified
party against the indemnifying party under this Section 7 if the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or, if in the written opinion of
counsel to either the indemnifying party or the indemnified party,
representation of both parties by the same counsel would be inappropriate due to
actual or likely conflicts of interest between them, and in that event the fees
and expenses of one firm of separate counsel (in addition to the fees and
expenses of local counsel) shall be paid by the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), 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.
19
(d) If the indemnification provided for in this Section 7 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
CE Generation on the one hand and the Purchasers 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 CE Generation on the one hand and the Purchasers 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 CE Generation on the one hand
and the Purchasers 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
CE Generation bear to the total discounts and commissions received by the
Purchasers from CE Generation 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 CE Generation, on the one
hand, or the Purchaser, on the other hand, 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), the
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased by it were
resold exceeds the amount of any damages which the Purchasers have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(e The obligations of CE Generation under this Section 7 shall be in
addition to any liability which CE Generation may otherwise have and shall
extend, upon the same terms and conditions, to each Person, if any, who controls
any Purchaser within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchasers under this Section 7 shall be in addition to
any liability which the respective Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director, employee,
agent or shareholder of CE Generation and to each Person, if any, who controls
CE Generation within the meaning of the Securities Act or the Exchange Act.
20
8. Default by Purchasers. If any Purchaser defaults in its obligations to
purchase Securities hereunder and the aggregate principal amount of Securities
that such defaulting Purchaser agreed but failed to purchase does not exceed 10%
of the total principal amount of Securities, the remaining Purchaser may make
arrangements satisfactory to CE Generation for the purchase of such Securities
by other persons, including itself, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchaser shall be obligated to purchase the
Securities that such defaulting Purchaser agreed but failed to purchase. If any
Purchaser so defaults and the aggregate principal amount of Securities with
respect to which such default occurs exceeds 10% of the total principal amount
of Securities and arrangements satisfactory to the remaining Purchaser and CE
Generation 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 the non-defaulting Purchaser or CE Generation, except
as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of CE
Generation or its officers and of the Purchasers 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 Purchaser, CE Generation any of their respective representatives, officers
or directors or any controlling Person, and will survive delivery of and payment
for the Securities. If for any reason the purchase of the Securities by the
Purchaser is not consummated, CE Generation shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 hereof and the
respective obligations of CE Generation and the Purchasers pursuant to Section 7
shall remain in effect; provided that, notwithstanding the foregoing, in such
circumstances CE Generation shall not be obligated to reimburse the Purchasers
for their out-of-pocket expenses (excluding fees and disbursements of counsel
and rating agency fees) in excess of $175,000; and provided, further that if the
purchase of the Securities is not consummated solely because of the occurrence
of an event specified in Section 6(b)(iv), (v) or (vi), then CE Generation shall
have no obligation to reimburse the Purchasers for their out-of-pocket expenses
(including fees and disbursements of counsel), except for rating agency fees.
10. Notices. All communications hereunder will be in writing and, if sent to
any Purchaser will be mailed, delivered or telegraphed and confirmed to CSFB, at
Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Investment Banking Department-Transactions Advisory
Group; or, if sent to CE Generation, will be mailed, delivered or telegraphed
and confirmed to them at 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx,
00000, Attention: General Counsel.
21
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
Persons referred to in Section 7, and no other Person will have any right or
obligation hereunder.
12. Representation of Purchasers. CSFB will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
CSFB will be binding upon all the Purchasers.
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 (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW). CE Generation hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
22
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between CE Generation and the
Purchasers in accordance with its terms.
Very truly yours,
CE GENERATION LLC
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Executive Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
Signature Page to Purchase Agreement
SCHEDULE I
PURCHASERS
Principal Amount
Manager of Securities
Credit Suisse First Boston Corporation $200,000,000
Xxxxxx Brothers Inc. $200,000,000
------------
Total $400,000,000
============
SCHEDULE II
OPERATIVE DOCUMENTS
Indenture
Securities
Purchase Agreement
Registration Rights Agreement
Pledge Agreements
Assignor Security Agreement
CE Generation Security Agreement
Intercreditor Agreement
Depositary Agreement
Irrevocable Instructions
Securities Account Control Agreement
Debt Service Reserve LOC Reimbursement Agreement
