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[Letterhead of Covington & Burling]
Exhibit 5.1
November 30, 2000
Calpine Corporation
50 West San Fernando Street
San Jose, CA 95113
Ladies and Gentlemen:
We are acting as counsel to Calpine Corporation, a Delaware corporation
(the "Company"), in connection with the shelf registration by the Company of the
Company's common stock, par value $.001 (the "Common Securities"), preferred
stock, par value $.001 (the "Preferred Securities") and unsecured debt (the
"Debt Securities"), pursuant to a Registration Statement on Form S-3
(Registration No. 333-48274) initially filed with the Securities and Exchange
Commission (the "Commission") on October 19, 2000, and amended on December 1,
2000 (such Registration Statement, as amended or supplemented, is herein
referred to as the "Registration Statement"). The Debt Securities are to be
issued pursuant to an indenture (the "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.
We have reviewed such corporate records, certificates and other
documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion, including (i) the corporate and
organizational documents of the Company, (ii) minutes and records of the
corporate proceedings of the Company with respect to the registration and
proposed issuance of the above-referenced securities and (iii) the Registration
Statement and the exhibits thereto. We have assumed that each of the parties
(other than the Company) has duly authorized, executed and delivered the
documents to which it is a party.
We have relied as to certain matters on information obtained from public
officials, officers of the Company, and other sources believed by us to be
responsible.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
(1) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
(2) When, as and if: (i) the Registration Statement shall have become
effective pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), (ii) the appropriate corporate action has been
taken by the Company to authorize the issuance of the Common
Securities and fix or otherwise determine the consideration to be
received for such Common Securities, (iii) any legally
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required consents, approvals, authorizations and other orders of
the Commission and other regulatory authorities are obtained, (iv)
such Common Securities with terms so fixed shall have been duly
issued and delivered by the Company against payment therefor in
accordance with such corporate action, and (v) certificates
evidencing shares of the Common Securities have been duly executed
by the duly authorized officers of the Company and duly registered
and countersigned in accordance with applicable law, then, upon
the happening of such events, such Common Securities will be
validly issued, fully paid and nonassessable.
(3) When, as and if: (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii)
appropriate corporate action has been taken by the Company to
authorize the issuance of Preferred Securities, to fix the terms
thereof and the consideration to be received therefor and to
authorize the execution and filing of Certificate of Designations
relating thereto with the Secretary of State of the State of
Delaware, (iii) such Certificate of Designations shall have been
executed by duly authorized officers of the Company and so filed
by the Company, all in accordance with the laws of the State of
Delaware, (iv) any legally required consents, approvals,
authorizations and other orders of the Commission and any other
regulatory authorities are obtained, (v) such Preferred Securities
with terms so fixed shall have been duly issued and delivered by
the Company against payment therefor in accordance with such
corporate action, and (vi) certificates evidencing shares of
Preferred Securities have been duly executed by the duly
authorized officers of the Company and duly registered and
countersigned in accordance with applicable law, then, upon the
happening of such events, such Preferred Securities will be
validly issued, fully paid and nonassessable.
(4) When, as and if: (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii)
the appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Indenture
and the terms of any series of Debt Securities, and the
consideration to be received therefor (iii) such series of Debt
Securities shall have been issued in the form and containing the
terms described in the Registration Statement, the Indenture and
such corporate action, (iv) any legally required consents,
approvals, authorizations and other orders of the Commission and
any other regulatory authorities are obtained, and (v) such series
of Debt Securities have been duly authenticated by the Trustee,
then, upon the happening of such events, such series of Debt
Securities, when issued, will be valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms.
The foregoing opinion is subject to the qualifications that we express no
opinion as to (i) waivers of defenses or statutory or constitutional rights or
waivers of unmatured claims or rights, (ii) rights to indemnification,
contribution or exculpation to the extent that they purport to indemnify any
party against, or release or limit any party's liability for, its own breach or
failure to comply with statutory obligations, or to the extent such provisions
are contrary to public policy, or (iii) rights to collection or liquidated
damages or penalties on overdue or defaulted obligations.
We are members of the bar of the State of New York. We do not purport to
be experts in, and do not express any opinion on, any laws other than the law of
the State of New York, the Delaware General Corporation Law and the Federal law
of the United States of America.
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We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under the heading "Legal
Matters" in the Prospectus contained in the Registration Statement. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ COVINGTON & BURLING
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Covington & Burling
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