EXHIBIT 5.4
[LETTERHEAD OF STEWART MCKELVEY STIRLING SCALES]
Suite 900 Correspondence: Telephone:902.420.3200 CHARLES S. REAGH
Purdy's Wharf Tower One P.O. Box 997 Fax: 902.420.1417 Direct Dial: 902.420.3335
1959 Upper Water Street Halifax, NS halifax@smss.com Direct Fax: 902.496.6173
Halifax, NS Canada B3J 2X2 www.smss.com csr@smss.com
Canada B3J 3N2
File Reference: NS2031-1149
April 4, 2002
CALPINE CORPORATION
CALPINE CANADA ENERGY FINANCE I ULC
CALPINE CANADA ENERGY FINANCE II ULC
Dear Sirs:
RE: CALPINE CORPORATION (THE "COMPANY") -
CALPINE CANADA ENERGY FINANCE ULC ("ENERGY FINANCE")
CALPINE CANADA ENERGY FINANCE II ULC ("ENERGY FINANCE II")
We have acted as special Nova Scotia counsel to Energy Finance and Energy
Finance II in connection with the shelf registration under the Securities Act of
1933, as amended (the "1933 ACT"), pursuant to the Registration Statement on
Form S-3 (File No. 333-76880) initially filed with the Securities and Exchange
Commission on January 17, 2002 and amended on April 4, 2002 (such Registration
Statement, which includes, pursuant to Rule 429(a) under the Securities Act, the
various securities identified on the cover page of Amendment No. 1 and in
Footnote 8 to the Calculation of Registration Fee table therein, as the same may
be amended or supplemented from time to time, is herein referred to as the
"REGISTRATION STATEMENT") with respect to, among other securities, (i) the
Company's common stock, par value $.001 per share, preferred stock, par value
$.001 per share (the "PREFERRED SECURITIES"), unsecured debt securities (the
"DEBT SECURITIES") and depositary shares (the "DEPOSITARY SHARES"), evidenced by
depositary receipts (the "DEPOSITARY RECEIPTS"), each representing a fractional
interest in a share of Preferred Securities; (ii) unsecured debt securities of
Energy Finance (the "ENERGY FINANCE DEBT SECURITIES") fully and unconditionally
guaranteed by the Company, (iii) unsecured debt securities of Energy Finance II
(the "ENERGY FINANCE II DEBT SECURITIES") fully and unconditionally guaranteed
by the Company and (iv) the associated guarantees issued by the Company with
respect to the Energy Finance Debt Securities (the "ENERGY FINANCE GUARANTEES")
and the Energy Finance II Debt Securities (the "ENERGY FINANCE II GUARANTEES"
and, together with the Energy Finance Guarantees, the "GUARANTEES"). The Debt
Securities are to be issued pursuant to an indenture, dated as of August 10,
2000, between the Company and Wilmington Trust Company, as Trustee (the
"TRUSTEE"), which is incorporated by reference as an exhibit to the Registration
Statement. The Energy Finance Debt Securities are to be issued pursuant to an
Amended and Restated Indenture (as so amended and restated, the "ENERGY FINANCE
INDENTURE"), dated as of October 16, 2001, between Energy Finance and the
Trustee, which is incorporated by reference as an exhibit to the Registration
Statement. The Energy Finance II Debt Securities are to be issued pursuant to an
indenture, dated as of October 18, 2001, between Energy Finance II and the
Trustee, as supplemented by the First Supplemental Indenture, dated as of
October 18, 2001, thereto (as so supplemented, (the "ENERGY FINANCE II
INDENTURE" and, together with the Energy Finance Indenture, the "SUBSIDIARY
INDENTURES"), which is incorporated by reference as an exhibit to the
Registration Statement. . The Energy Finance Guarantees are to be issued by the
Company pursuant to a Guarantee Agreement, dated as of April 25, 2001, as
amended by the First Amendment to Guarantee Agreement, dated as of October 16,
2001 between the Company and the Trustee, which is incorporated by reference as
an exhibit to the Registration Statement. The Energy Finance II Guarantees are
to be issued by the Company pursuant to a Guarantee Agreement, dated as of
October 18, 2001, as amended by the First Amendment to Guarantee Agreement,
dated as of October 18, 2001 between the Company and the Trustee, which is
incorporated by reference as an exhibit to the Registration Statement.
We have considered such questions of law and examined such statutes, public and
corporate records, certificates of governmental authorities and officers of
Energy Finance and Energy Finance II, including the corporate and organizational
April 4, 2002
Page 1
documents of Energy Finance and Energy Finance II, minutes and records of the
corporate proceedings of the Energy Finance and Energy Finance II with respect
to the registration and proposed issuance of the above-referenced securities and
the Registration Statement and the exhibits thereto, and other documents and
conducted such other examinations as we have considered necessary or desirable
to enable us to express the opinions hereinafter set forth. In such examination
we have assumed the legal capacity of all individuals, the veracity of the
information contained in the documents, the genuineness of all signatures and
the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified, conformed, facsimile or photostatic copies of original documents.
In stating our opinions, we have also assumed the completeness, truth and
accuracy of all facts set forth in official public records and certificates and
other documents supplied by public officials.
We are solicitors qualified to practice law in the Province of Nova Scotia and
we express no opinion as to any laws or any matters governed by any laws other
than the laws of the Province of Nova Scotia and the federal laws of Canada
applicable therein.
As to various questions of fact material to our opinion, which we have not
verified independently, we have relied upon documents or certificates of
governmental authorities and the Company or its officers. In expressing the
opinion in paragraph (a) with respect to the valid existence of the Energy
Finance and Energy Finance II we have relied exclusively on Certificates of
Status issued under the Companies Act (Nova Scotia) dated on April 4, 2002,
copies of which have been provided to you.
On the basis of the foregoing we are of the opinion that:
(a) Each of Energy Finance and Energy Finance II has been duly incorporated,
is validly existing as an unlimited company in good standing under the
laws of the jurisdiction of its incorporation.
(b) Assuming that (i) each of the Subsidiary Indentures, the Energy Finance
Debt Securities and the Energy Finance II Debt Securities is authorized,
executed and delivered and constitutes an enforceable obligation of Energy
Finance or Energy Finance II, as applicable, under the laws of the State
of New York as provided therein, and (ii) the choice of the laws of the
State of New York to govern the Energy Finance Debt Securities and the
Energy Finance II Debt Securities is bona fide, the choice of the laws of
the State of New York to govern the Energy Finance Debt Securities and the
Energy Finance II Debt Securities will be upheld as a valid choice of law
and, if specifically pleaded and proved, the laws of the State of New York
will be applied by the courts of competent jurisdiction in the Province of
Nova Scotia, except with respect to procedure, which will be governed by
the laws of Nova Scotia; provided that such choice of law is not contrary
to public policy, as that term is understood under Nova Scotia law. Those
lawyers in our firm engaged in the preparation of this opinion have no
knowledge that Nova Scotia public policy would be breached by application
of laws of the State of New York to the Energy Finance Debt Securities and
the Energy Finance II Debt Securities.
Consent is hereby given to the filing, as an exhibit to the Registration
Statement, of this letter. In giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
1933 Act.
Yours truly,
STEWART MCKELVEY STIRLING SCALES