Exhibit 10.19
EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
made by
CALPINE CORPORATION,
QUINTANA MINERALS (USA), INC.,
JOQ CANADA, INC.
and
QUINTANA CANADA HOLDINGS LLC
in favor of
THE BANK OF NEW YORK,
as Collateral Trustee
Dated as of July 16, 2003
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS................................................................................... 2
1.1 Definitions..................................................................................... 2
1.2 Other Definitional Provisions................................................................... 4
SECTION 2. GUARANTEE....................................................................................... 4
2.1 Guarantee....................................................................................... 4
2.2 Right of Contribution........................................................................... 5
2.3 No Subrogation.................................................................................. 5
2.4 Amendments, etc. with respect to the Secured Obligations........................................ 5
2.5 Guarantee Absolute and Unconditional............................................................ 6
2.6 Reinstatement................................................................................... 6
2.7 Payments........................................................................................ 7
SECTION 3. GRANT OF SECURITY INTEREST...................................................................... 7
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................................................. 8
4.1 Title; No Other Liens........................................................................... 8
4.2 Perfected First Priority Liens.................................................................. 8
4.3 Jurisdiction of Organization; Chief Executive Office............................................ 9
4.4 Inventory and Equipment......................................................................... 9
4.5 Farm Products................................................................................... 9
4.6 [Intentionally Omitted]......................................................................... 9
4.7 Receivables..................................................................................... 9
4.8 Intellectual Property........................................................................... 9
SECTION 5. COVENANTS....................................................................................... 9
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper.............................. 9
5.2 Maintenance of Insurance........................................................................ 9
5.3 Maintenance of Perfected Security Interest; Further Documentation.............................. 10
5.4 Changes in Locations, Name, etc................................................................ 10
5.5 [Intentionally Omitted]........................................................................ 10
SECTION 6. REMEDIAL PROVISIONS............................................................................ 10
6.1 Proceeds to be Turned Over To Collateral Trustee............................................... 10
6.2 Application of Proceeds........................................................................ 11
6.3 Code and Other Remedies........................................................................ 11
6.4 Deficiency..................................................................................... 11
SECTION 7. THE COLLATERAL TRUSTEE......................................................................... 11
7.1 Duty of Collateral Trustee..................................................................... 11
7.2 Execution of Financing Statements.............................................................. 12
7.3 Authority of Collateral Trustee................................................................ 12
SECTION 8. MISCELLANEOUS.................................................................................. 12
8.1 Amendments in Writing.......................................................................... 12
8.2 Notices........................................................................................ 12
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................ 12
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8.4 Enforcement Expenses; Indemnification.......................................................... 13
8.5 Successors and Assigns......................................................................... 13
8.6 Set-Off........................................................................................ 13
8.7 Counterparts................................................................................... 14
8.8 Severability................................................................................... 14
8.9 Section Headings............................................................................... 14
8.10 Integration.................................................................................... 14
8.11 GOVERNING LAW.................................................................................. 14
8.12 Submission To Jurisdiction; Waivers............................................................ 14
8.13 Acknowledgements............................................................................... 15
8.14 Additional Grantors............................................................................ 15
8.15 Releases; Termination.......................................................................... 15
8.16 WAIVER OF JURY TRIAL........................................................................... 15
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Perfection Matters
Schedule 3 Jurisdictions of Organization and Chief Executive Offices
Schedule 4A Oil and Gas Inventory and Equipment Locations
Schedule 4B Other Inventory and Equipment Locations
Schedule 5 Intellectual Property
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of July 16, 2003,
made by Calpine Corporation (the "Company") and each of the signatories hereto
(together with the Company and any other entity that may become a party hereto
as provided herein, the "Grantors"), in favor of The Bank of New York, as
Collateral Trustee (in such capacity, the "Collateral Trustee") for the benefit
of the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, the Company intends to enter into an Amended and
Restated Credit Agreement dated as of July 16, 2003 (as amended, modified,
renewed, restated or replaced from time to time, the "Credit Agreement") among,
inter alia, the Company, the Lenders referred to therein and The Bank of Nova
Scotia, as Administrative Agent (the "Credit Agreement Agent"), relating to a
$500,000,000 senior secured credit facility to be made available in the form of
revolving loans and term loans, including letters of credit to be issued
thereunder;
WHEREAS, the Company intends to (a) issue $500,000,000 in
aggregate principal amount of Second Priority Senior Secured Floating Rate Notes
due 2007 (the "2007 Notes") pursuant to the Indenture dated as of July 16, 2003
(the "2007 Indenture") between the Company and Wilmington Trust Company, as
Trustee (together with its successors in such capacity, the "2007 Trustee"), (b)
issue $1,150,000,000 in aggregate principal amount of 8.50%% Second Priority
Senior Secured Notes due 2010 (the "2010 Notes") pursuant to the Indenture dated
as of July 16, 2003 (the "2010 Indenture") between the Company and Wilmington
Trust Company, as Trustee (together with its successors in such capacity, the
"2010 Trustee"), (c) issue $900,000,000 in aggregate principal amount of 8.75%
Second Priority Senior Secured Notes due 2013 (the "2013 Notes") pursuant to the
Indenture dated as of July 16, 2003 (the "2013 Indenture") between the Company
and Wilmington Trust Company, as Trustee (together with its successors in such
capacity, the "2013 Trustee"), and (d) borrow $750,000,000 in Term Loans (the
"Term Loans") pursuant to a Term Loan Agreement dated as of July 16, 2003 (the
"Term Loan Agreement") between the Company and Goldman Sachs Credit Partners
L.P., as Administrative Agent (together with its successors in such capacity,
the "Term Loan Administrative Agent");
WHEREAS, the Company intends to secure its Secured
Obligations, including its obligations under the Credit Agreement and any future
Priority Lien Debt, on a priority basis, and, subject to such priority, its
obligations under the 2007 Notes, 2010 Notes, 2013 Notes and Term Loans and any
future Parity Lien Debt equally and ratably, with security interests in, among
other things, all present and future Collateral (as defined below);
WHEREAS, the Company has entered into a Collateral Trust
Agreement dated as of July 16, 2003 (the "Collateral Trust Agreement") among,
inter alia, the Company, the other Grantors and the Collateral Trustee which
sets forth the terms on which the Company has appointed the Collateral Trustee
as trustee for the present and future holders of the Secured Obligations to
receive, hold, maintain, administer, enforce and distribute the Existing
Security Documents and all other Security Documents, including this Agreement
and the guarantees granted hereunder, at any time delivered to the Collateral
Trustee and all interests, rights, powers and remedies of the Collateral Trustee
thereunder and the proceeds thereof;
WHEREAS, the Company is a member of an affiliated group of
companies that includes each other Grantor;
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WHEREAS, the proceeds of the extensions of credit under each
of the Credit Agreement and the Term Loan Agreement, and the proceeds of the
offering of each of the 2007 Notes, the 2010 Notes and the 2013 Notes, will be
used in part to enable the Company to make valuable transfers to one or more of
the other Grantors in connection with the operation of their respective
businesses;
WHEREAS, the Company and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under each of the Credit
Agreement and the Term Loan Agreement and the offering of each of the 2007
Notes, 2010 Notes and 2013 Notes; and
WHEREAS, it is a condition precedent to the obligation of the
lenders to make their respective extensions of credit to the Company under each
of the Credit Agreement and the Term Loan Agreement, and condition precedent to
the obligation of the purchasers to purchase each of the 2007 Notes, the 2010
Notes and the 2013 Notes, that the Grantors shall have executed and delivered
this Agreement to the Collateral Trustee for the benefit of the Secured Parties;
NOW, THEREFORE, in consideration of the premises contained
herein and for good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1 DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Collateral Trust Agreement and used herein shall have the
meanings given to them in the Collateral Trust Agreement, and the following
terms are used herein as defined in the New York UCC: Accounts, Certificated
Security, Chattel Paper, Commercial Tort Claims, Documents, Equipment, Farm
Products, General Intangibles, Instruments, Inventory, Letter-of-Credit Rights
and Supporting Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Collateral Trustee as provided in Section 6.1.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 5), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming the Company
as licensor or licensee (including, without limitation, those listed in Schedule
5), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
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"Deposit Account": as defined in the Uniform Commercial Code
of any applicable jurisdiction and, in any event, including, without limitation,
any demand, time, savings, passbook or like account maintained with a depositary
institution.
"Guarantor Pledge Agreement": the First Amendment Pledge
Agreement dated as of July 16, 2003 among each of the Guarantors and the
Collateral Trustee.
"Guarantors": the collective reference to each Grantor other
than the Company.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Investment Property": the collective reference to all
"investment property" as such term is defined in Section 9-102(a)(49) of the New
York UCC.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Panda Note" means the note of Panda Energy International,
Inc. due December 2003 held by the Company.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule 5, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in Schedule 5, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to the Company of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 5.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the New York UCC and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Secured Parity Lien Parties": any Person who is holding a
Parity Lien Obligation (including any Parity Debt Representative), at any time.
"Secured Parties": any Person who is holding a Secured
Obligation (including any Secured Debt Representative), at any time.
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"Secured Priority Lien Parties": any Person who is holding a
Priority Lien Obligation (including any Priority Lien Agent), at any time.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 5, and (ii) the right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to the Company of any right to use any Trademark,
including, without limitation, any of the foregoing referred to in Schedule 5.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to the Company, shall refer to the
Company's Collateral or the relevant part thereof.
SECTION 2 GUARANTEE
2.1 Guarantee. (a) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Collateral Trustee, for the
benefit of the Secured Parties and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Company when due (whether at the stated maturity, by acceleration or otherwise)
of the Secured Obligations.
(b) Anything herein or in any other Secured Debt Document to the
contrary notwithstanding, (i) the recourse of the Collateral Trustee or the
Secured Parties against each Guarantor hereunder and under the other Secured
Debt Documents shall be limited solely to such Guarantor's ownership interests
in CCEC pledged to the Collateral Trustee, for the benefit of the Secured
Parties, pursuant to the Guarantor Pledge Agreement and (ii) the maximum
liability of each Guarantor hereunder and under the other Secured Debt Documents
shall in no event exceed the amount which can be guaranteed by such Guarantor
under applicable federal and state laws relating to the insolvency of debtors
(after giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Secured Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Collateral Trustee or any Secured Party
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Secured Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2
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shall have been satisfied by payment in full and all commitments to extend
credit under all Credit Facilities the Indebtedness under which constitutes
Priority Lien Debt shall have been terminated or expired.
(e) No payment made by the Company, any of the Guarantors, any
other guarantor or any other Person or received or collected by the Collateral
Trustee or any Secured Party from the Company, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Secured Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any Guarantor hereunder
which shall, notwithstanding any such payment (other than any payment made by
such Guarantor in respect of the Secured Obligations or any payment received or
collected from such Guarantor in respect of the Secured Obligations), remain
liable for the Secured Obligations up to the maximum liability of such Guarantor
hereunder until the Secured Obligations are paid in full and all commitments to
extend credit under all Credit Facilities the Indebtedness under which
constitutes Priority Lien Debt shall have been terminated or expired.
2.2 Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Collateral Trustee and the Secured Parties, and each
Guarantor shall remain liable to the Collateral Trustee and the Secured Parties
for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Collateral Trustee or any Secured Party, no Guarantor shall be entitled to
be subrogated to any of the rights of the Collateral Trustee or any Secured
Party against the Company or any other Guarantor or any collateral security or
guarantee or right of offset held by the Collateral Trustee or any Secured Party
for the payment of the Secured Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other
Guarantor in respect of payments made by such Guarantor hereunder, until all
amounts owing to the Collateral Trustee and the Secured Parties by the Company
on account of the Secured Obligations are paid in full and all commitments to
extend credit under all Credit Facilities the Indebtedness under which
constitutes Priority Lien Debt shall have been terminated or expired. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Secured Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the Collateral Trustee
and the Secured Parties, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the
Collateral Trustee in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Collateral Trustee, if required), to be applied against
the Secured Obligations, whether matured or unmatured, in such order as the
Collateral Trustee may determine, subject to the terms and provisions of the
Collateral Trust Agreement.
2.4 Amendments, etc. with respect to the Secured Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Secured
Obligations made by the Collateral Trustee or any Secured Party may be rescinded
by the Collateral Trustee or such Secured Party and any of the Secured
Obligations continued, and the Secured Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by
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the Collateral Trustee or any Secured Party, and any of the Secured Debt
Documents may be amended, modified, supplemented or terminated, in whole or in
part, as the requisite parties thereto deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Collateral Trustee or any Secured Party for the payment of the Secured
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Collateral Trustee nor any Secured Party shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Secured Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Secured Obligations and notice of or proof of reliance by the Collateral Trustee
or any Secured Party upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Secured
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Company and any of the Guarantors, on the one hand, and the Collateral Trustee
and the Secured Parties, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Section 2. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Company or any of the Guarantors with respect to the Secured Obligations. Each
Guarantor understands and agrees that the guarantee contained in this Section 2
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of any of the
Secured Debt Documents, any of the Secured Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Collateral Trustee or any Secured Party,
(b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the Company
or any other Person against the Collateral Trustee or any Secured Party, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Secured
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Collateral Trustee or any Secured Party may, but shall be under no obligation
to, make a similar demand on or otherwise pursue such rights and remedies as it
may have against the Company, any other Guarantor or any other Person or against
any collateral security or guarantee for the Secured Obligations or any right of
offset with respect thereto, and any failure by the Collateral Trustee or any
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Company, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Company, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Collateral Trustee or
any Secured Party against any Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Secured Obligations is rescinded or
must otherwise be restored or returned by the Collateral Trustee or any Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Company or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
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2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Collateral Trustee without set-off or counterclaim
in Dollars at an office of the Collateral Trustee in the City of New York.
SECTION 3 GRANT OF SECURITY INTEREST
The Company hereby (i) assigns and transfers to the Collateral
Trustee, and hereby grants to the Collateral Trustee, for the benefit of the
Secured Priority Lien Parties, a first priority security interest in, all of the
following property now owned or at any time hereafter acquired by the Company or
in which the Company now has or at any time in the future may acquire any right,
title or interest, except the Excluded Assets (collectively, the "Collateral"),
as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Priority Lien Obligations and (ii) assigns and transfers to the Collateral
Trustee, and hereby grants to the Collateral Trustee, for the benefit of the
Secured Parity Lien Parties, a second priority security interest in, all of the
Collateral, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Parity Lien Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Deposit Accounts;
(e) all Documents;
(f) all Equipment;
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) all Letter-of-Credit Rights;
(m) all other property not otherwise described above;
(n) all books and records pertaining to the Collateral; and
(o) to the extent not otherwise included, all Proceeds, Supporting
Obligations and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing;
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provided, however, that notwithstanding any of the other
provisions set forth in this Section 3, this Agreement shall not, at any time,
constitute a grant of a security interest in any property that is, at such time,
an Excluded Asset.
In addition, notwithstanding any other provision set forth in
this Agreement, to the extent that any other Security Document to which the
Collateral Trustee is a party grants a security interest in any of the
Collateral and a security interest in such Collateral is also granted in this
Agreement and the provisions of such other Security Document are inconsistent
with the provisions of this Agreement with respect to such Collateral, the
provisions of such other Security Document shall control.
This Agreement and the security interests and Liens granted
and created herein secures the payment an performance of all Secured Obligations
of the Company now or hereafter, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations, interest
(including any interest accruing at the then applicable rate provided in any
applicable Secured Debt Document after the maturity of the Indebtedness
thereunder and reimbursement obligations therein and interest accruing at the
then applicable rate provided in any applicable Secured Debt Document after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
fees, premiums, penalties, indemnifications, expenses or otherwise, and
including all amounts that constitute part of the Secured Obligations and would
be owed by the Company but for the fact that they are unenforceable or not
allowed due to a pending Bankruptcy Case or Insolvency Proceeding. Without
limiting the generality of the foregoing, it is the intent of the parties that
(i) the Liens securing the Parity Lien Obligations are subject and subordinate
to the Liens securing the Priority Lien Obligations up to the Priority Lien Cap
and (ii) this Agreement creates two separate and distinct Liens: the first Lien
securing the payment and performance of the Priority Lien Obligations and the
second Lien securing the payment and performance of the Parity Lien Obligations.
SECTION 4 REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Collateral
Trustee and each Secured Party that:
4.1 Title; No Other Liens. Except for the security interest
granted to the Collateral Trustee for the benefit of the Secured Parties
pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Secured Debt Documents, the Company owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Collateral Trustee, for the benefit of the Secured
Parties, pursuant to this Agreement or as are permitted by each of the Secured
Debt Documents. For the avoidance of doubt, it is understood and agreed that the
Company may, as part of its business, grant licenses to third parties to use
Intellectual Property owned or developed by the Company. For purposes of this
Agreement and the other Secured Debt Documents, such licensing activity shall
not constitute a "Lien" on such Intellectual Property. Each of the Collateral
Trustee and each Secured Party understands that any such licenses may be
exclusive to the applicable licensees, and such exclusivity provisions may limit
the ability of the Collateral Trustee to utilize, sell, lease or transfer the
related Intellectual Property or otherwise realize value from such Intellectual
Property pursuant hereto.
4.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Collateral Trustee in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral
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in favor of the Collateral Trustee, for the benefit of the Secured Parties, as
collateral security for the Secured Obligations, enforceable in accordance with
the terms hereof against all creditors of the Company and any Persons purporting
to purchase any Collateral from the Company and (b) are prior to all other Liens
on the Collateral in existence on the date hereof except for unrecorded Liens
permitted by the Secured Debt Documents which have priority over the Liens on
the Collateral by operation of law.
4.3 Jurisdiction of Organization; Chief Executive Office. On the
date hereof, the Company's jurisdiction of organization, identification number
from the jurisdiction of organization (if any), and the location of the
Company's chief executive office or sole place of business or principal
residence, as the case may be, are specified on Schedule 3. The Company has
furnished to the Collateral Agent a certified charter, certificate of
incorporation or other organization document and long-form good standing
certificate as of a date which is recent to the date hereof.
4.4 Inventory and Equipment. On the date hereof, (a) the Inventory
and the Equipment (other than mobile goods) representing natural gas and oil
assets (including any related extraction, processing or similar equipment, but
excluding natural gas power plants), in each case with a fair market value of
$1,000,000 or more, are kept at the locations listed on Schedule 4A and (b) the
Inventory and the Equipment (other than mobile goods and that Inventory and
Equipment described in clause (a) above), in each case with a fair market value
of $1,000,000 or more, are kept at the locations listed on Schedule 4B.
4.5 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.6 [Intentionally Omitted]
4.7 Receivables. (a) No amount payable to the Company under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Collateral Trustee (other than the Panda
Note).
(b) None of the obligors on any Receivables is a Governmental
Authority.
4.8 Intellectual Property. Schedule 5 lists all material
Intellectual Property owned by the Company in its own name on the date hereof.
SECTION 5 COVENANTS
The Company covenants and agrees with the Collateral Trustee
and the Secured Parties that, from and after the date of this Agreement until
the Secured Obligations shall have been paid in full and all commitments to
extend credit under all Credit Facilities the Indebtedness under which
constitutes Priority Lien Debt shall have been terminated or expired:
5.1 Delivery of Instruments, Certificated Securities and Chattel
Paper. If any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any Instrument, Certificated Security or Chattel
Paper, such Instrument, Certificated Security or Chattel Paper shall be
immediately delivered to the Collateral Trustee, duly indorsed in a manner
satisfactory to the Collateral Trustee, to be held as Collateral pursuant to
this Agreement. The Company agrees to promptly (and in any event within 15 days
from the date hereof) deliver the Panda Note to the Collateral Trustee, duly
indorsed in a manner satisfactory to the Collateral Trustee, to be held as
Collateral pursuant to this Agreement.
5.2 Maintenance of Insurance. (a) The Company will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained, with
financially sound and reputable companies, insurance
10
policies insuring the Inventory and Equipment and other properties and business
(including business interruption insurance) of the Company and its Subsidiaries
against loss by fire, explosion, theft and such other casualties and
contingencies and of such types and in such amounts as is customary in the case
of similar businesses.
(b) As promptly as practicable after each year following the date
of this Agreement and beginning with 2004, and in any event prior to February 1
in each such year, the Company will furnish to the Collateral Trustee and each
Secured Debt Representative an Officers' Certificate setting forth the nature
and extent of all insurance maintained by the Company and its Subsidiaries.
5.3 Maintenance of Perfected Security Interest; Further
Documentation. (a) The Company shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.2 and shall defend such security interest against the
claims and demands of all Persons whomsoever, subject to the rights of the
Company under the Secured Debt Documents to dispose of the Collateral and the
Lien release provisions in the Secured Debt Documents.
(b) The Company will promptly and duly execute and deliver, and
have recorded, such further instruments and documents and take such further
actions as necessary for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment Property, Deposit Accounts, Letter-of-Credit
Rights and any other relevant Collateral, taking any actions necessary to enable
the Collateral Trustee to obtain "control" (within the meaning of the applicable
Uniform Commercial Code) with respect thereto.
5.4 Changes in Locations, Name, etc. The Company will not, except
upon 15 days' prior written notice to the Collateral Trustee and each Secured
Debt Representative and delivery to the Collateral Trustee of (a) all additional
executed financing statements and other documents as necessary to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 4 showing any additional
location at which Inventory or Equipment shall be kept:
(i) change its jurisdiction of organization or the location of its
chief executive office or sole place of business or principal residence from
that referred to in Section 4.3; or
(ii) change its name.
5.5 [Intentionally Omitted]
SECTION 6. REMEDIAL PROVISIONS
6.1 Proceeds to be Turned Over To Collateral Trustee. If an
Actionable Default shall occur and be continuing, all Proceeds received by the
Company consisting of cash, checks and other near-cash items shall be held by
the Company in trust for the Collateral Trustee and the Secured Parties,
segregated from other funds of the Company, and shall, forthwith upon receipt by
the Company, be turned over to the Collateral Trustee in the exact form received
by the Company (duly indorsed in blank by the Company or to the Collateral
Trustee, if required). All Proceeds of Collateral received by the Collateral
Trustee hereunder shall be held by the Collateral Trustee in a Collateral
Account maintained under its sole dominion and control or under the sole
dominion and control of the Credit Agreement Agent, acting as agent for the
Collateral Trustee. All Proceeds while held by the Collateral Trustee in a
Collateral Account (or by the Company in trust for the Collateral Trustee and
the Secured Parties) shall continue to be held as
11
collateral security for all the Secured Obligations and shall not constitute
payment thereof until applied as provided in Section 6.2.
6.2 Application of Proceeds. If an Actionable Default shall have
occurred and be continuing, the Collateral Trustee may apply all or any part of
Proceeds constituting Collateral, whether or not held in any Collateral Account,
in payment of the Secured Obligations, in each case subject to the terms and
provisions of the Collateral Trust Agreement.
6.3 Code and Other Remedies. If an Actionable Default shall occur
and be continuing, the Collateral Trustee, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the New York UCC or any other applicable law, in each case subject to the
terms and provisions of the Collateral Trust Agreement. Without limiting the
generality of the foregoing, and in each case subject to the terms and
provisions of the Collateral Trust Agreement, the Collateral Trustee, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon the Company or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
the Collateral Trustee or any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Collateral Trustee or any Secured Party shall have the right, but shall not
be obligated to, upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Company, which right or equity is hereby waived and released. The Company
further agrees, at the Collateral Trustee's request, to assemble the Collateral
and make it available to the Collateral Trustee at places which the Collateral
Trustee shall reasonably select, whether at the Company's premises or elsewhere.
The Collateral Trustee shall apply the net proceeds of any action taken by it
pursuant to this Section 6.3 in accordance with the provisions of the Collateral
Trust Agreement. To the extent permitted by applicable law, the Company waives
all claims, damages and demands it may acquire against the Collateral Trustee or
any Secured Party arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
6.4 Deficiency. The Company shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay its Secured Obligations and the fees and disbursements of
any attorneys employed by the Collateral Trustee to collect such deficiency.
SECTION 7. THE COLLATERAL TRUSTEE
7.1 Duty of Collateral Trustee. The Collateral Trustee's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Collateral Trustee
deals with similar property for its own account. Neither the Collateral Trustee,
any Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Company or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the
12
Collateral Trustee and the Secured Parties hereunder are solely to protect the
Collateral Trustee's and the Secured Parties' interests in the Collateral and
shall not impose any duties or obligations upon the Collateral Trustee or any
Secured Party to exercise any such powers. The Collateral Trustee and the
Secured Parties shall be accountable only for amounts that they actually receive
as a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Company for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
Notwithstanding anything to the contrary contained in this
Agreement, the rights, privileges, powers, benefits and immunities of the
Collateral Trustee hereunder are subject to the terms, conditions and
limitations set forth in the Collateral Trust Agreement, reference to which is
made for all purposes; provided, however, that any forbearance by the Collateral
Trustee in exercising any right or remedy available to it under the Collateral
Trust Agreement shall not give rise to a defense on the part of the Grantors
with respect to the Collateral Trustee's exercise of any right or remedy
pursuant to this Agreement or as otherwise afforded by applicable law.
7.2 Execution of Financing Statements. Pursuant to any applicable
law, the Company authorizes the Collateral Trustee to file or record financing
statements and other filing or recording documents or instruments with respect
to the Collateral without the signature of the Company in such form and in such
offices as are necessary to perfect the security interests of the Collateral
Trustee under this Agreement. The Company authorizes the Collateral Trustee to
use the collateral description "all personal property except for Excluded
Assets" in any such financing statements. The Company hereby ratifies and
authorizes the filing by the Collateral Trustee of any financing statement with
respect to the Collateral made prior to the date hereof. The Collateral Trustee
shall be under no obligation to file or record such financings statements or to
make any other filing under the UCC in connection with this Agreement.
7.3 Authority of Collateral Trustee. The Company acknowledges that
the rights and responsibilities of the Collateral Trustee under this Agreement
with respect to any action taken by the Collateral Trustee or the exercise or
non-exercise by the Collateral Trustee of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Collateral Trustee and the Secured
Parties, be governed by the Collateral Trust Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Trustee and the Company, the Collateral Trustee shall
be conclusively presumed to be acting on behalf of the Secured Parties with full
and valid authority so to act or refrain from acting, and the Company shall not
be under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 7.1 of the Collateral Trust Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Collateral Trustee, any Secured Debt Representative or the Company hereunder
shall be effected in the manner provided for in Section 7.5 of the Collateral
Trust Agreement; provided that any such notice, request or demand to or upon any
Guarantor shall be addressed to such Guarantor at its notice address set forth
on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither
the Collateral Trustee nor any Secured Party shall by any act (except by a
written instrument pursuant to Section 8.1), delay,
13
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Actionable Default. No failure to
exercise, nor any delay in exercising, on the part of the Collateral Trustee or
any Secured Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Trustee or
any Secured Party of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which the Collateral Trustee or
such Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) The Guarantors
jointly and severally agree to pay or reimburse the Collateral Trustee for all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Secured Debt Documents to which such
Guarantor is a party, including, without limitation, the fees and disbursements
of counsel (including the allocated fees and expenses of in-house counsel) to
the Collateral Trustee.
(b) Each Guarantor agrees to pay, and to save the Collateral
Trustee harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Collateral
Trustee harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Company would
be required to do so pursuant to Section 7.7 of the Collateral Trust Agreement.
(d) The maximum liability of each Guarantor under this Section 8.4
shall be limited to such Guarantor's ownership interests in CCEC pledged to the
Collateral Trustee, for the benefit of the Secured Parties, pursuant to the
Guarantor Pledge Agreement. The agreements in this Section 8.4 shall survive
repayment of the Secured Obligations and all other amounts payable under the
Secured Debt Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each Grantor and shall inure to the benefit of the
Collateral Trustee and the Secured Parties and their successors and assigns;
provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Collateral Trustee.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Collateral Trustee at any time and from time to time while an Actionable Default
shall have occurred and be continuing, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Collateral Trustee to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Collateral Trustee may
elect, against and on account of the obligations and liabilities of such Grantor
to the Collateral Trustee hereunder and claims of every nature and description
of the Collateral Trustee against such Grantor, in any currency, whether arising
hereunder or under any other Secured Debt Document or otherwise, as the
Collateral Trustee may elect, whether or not the Collateral Trustee has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Collateral Trustee shall notify such Grantor
promptly of any such set-off and the
14
application made by the Collateral Trustee of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Collateral Trustee under this Section
8.6 are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Collateral Trustee may have.
8.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement, the Collateral Trust Agreement
and the other Secured Debt Documents represent the agreement of the Grantors,
the Collateral Trustee and the Secured Parties with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Collateral Trustee or any Secured Party
relative to subject matter hereof and thereof not expressly set forth or
referred to herein, the Collateral Trust Agreement or in the other Secured Debt
Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Secured Debt Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address of
which the Collateral Trustee shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
15
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Secured Debt Documents to which it
is a party;
(b) neither the Collateral Trustee nor any Secured Party has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Secured Debt Documents, and
the relationship between the Grantors, on the one hand, and the Collateral
Trustee and Secured Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Secured
Debt Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Secured Parties or among the Grantors and the Secured Parties.
8.14 Additional Grantors. Each Subsidiary of the Company that is
required by any Secured Debt Document to become a party to this Agreement shall
become a Grantor for all purposes of this Agreement upon execution and delivery
by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
8.15 Releases; Termination(a) . All or any portion of the
Collateral shall be released from the Liens created hereby, the Guarantee of any
Guarantor under this Agreement shall terminate and this Agreement shall
terminate, in each case as provided in Section 4.1 of the Collateral Trust
Agreement.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER SECURED DEBT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
16
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
CALPINE CORPORATION,
By: /s/ Michael Thomas
--------------------------------
Title:
QUINTANA MINERALS (USA), INC.,
By: /s/ Michael Thomas
--------------------------------
Title:
JOQ CANADA, INC.,
By: /s/ Michael Thomas
--------------------------------
Title:
QUINTANA CANADA HOLDINGS, LLC,
By: /s/ Michael Thomas
--------------------------------
Title:
17
THE BANK OF NEW YORK, as Collateral Trustee,
By: /s/ Michael Pitfick
----------------------------------------
Name: Michael Pitfick
Title: Assistant Vice President
SCHEDULE 1
NOTICE ADDRESSES FOR GUARANTORS
QUINTANA MINERALS (USA), INC.
50 West San Fernando Street
San Jose, CA 95113
QUINTANA CANADA HOLDINGS, LLC
50 West San Fernando Street
San Jose, CA 95113
JOQ CANADA, INC.
50 West San Fernando Street
San Jose, CA 95113
SCHEDULE 2
PERFECTION MATTERS
A. UCC-1 FINANCING STATEMENTS
UCC-1 FINANCING STATEMENTS AS TRANSMITTING UTILITY
1) Delaware SOS
2) California SOS
3) Arkansas SOS
4) Colorado SOS
5) Mississippi SOS
6) Montana SOS
7) New Mexico SOS
8) Oklahoma County Clerk, OK
9) Texas SOS
10) Wyoming SOS
UCC-1 FINANCING STATEMENT
Delaware SOS
UCC- FIXTURE FILING AGAINST PROJECT FACILITY
Richmond County, GA
UCC-3 ASSIGNMENTS FROM BANK OF NOVA SCOTIA, AS AGENT TO THE BANK OF NEW YORK, AS
COLLATERAL TRUSTEE
- -------------------------------------------------------------------------------------------------------
Delaware Secretary of State 20678940 3/15/2002
- -------------------------------------------------------------------------------------------------------
Delaware Secretary of State 21165863 5/9/2002
- -------------------------------------------------------------------------------------------------------
New Mexico Secretary of State 2002050903023 5/9/2002
- -------------------------------------------------------------------------------------------------------
Garfield County, Colorado Reception #603031 5/8/2002
Book 1353, Page 410
- -------------------------------------------------------------------------------------------------------
Delaware Secretary of State 21165871 5/9/2002
- -------------------------------------------------------------------------------------------------------
Jefferson Parish, LA 26262652 5/7/2002
- -------------------------------------------------------------------------------------------------------
Delaware Secretary of State 21165913 5/9/2002
- -------------------------------------------------------------------------------------------------------
Colusa County, CA 02-2146 5/17/2002
- -------------------------------------------------------------------------------------------------------
Contra Costa County, CA 2002-0170009-00 5/13/2002
- -------------------------------------------------------------------------------------------------------
Fresno County, CA 2002-0085594 5/23/2002
- -------------------------------------------------------------------------------------------------------
Kern County, CA 0202084537 5/24/2002
- -------------------------------------------------------------------------------------------------------
Kings County, CA 0210875 5/20/2002
- -------------------------------------------------------------------------------------------------------
Sacramento County, CA Book 20020507, Page 0614 5/7/2002
- -------------------------------------------------------------------------------------------------------
Solano County, CA 2002-00058870 5/9/2002
- -------------------------------------------------------------------------------------------------------
Sutter County, CA 2002-0009818 5/17/2002
- -------------------------------------------------------------------------------------------------------
Tulare County, CA 2002-0045392 6/14/2002
- -------------------------------------------------------------------------------------------------------
Yolo County, CA 2002-0019211-00 5/7/2002
- -------------------------------------------------------------------------------------------------------
SCHEDULE 3
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE OF THE GRANTORS
Grantor Jurisdiction of Organization Location of Chief Executive Office
------- ---------------------------- ----------------------------------
CALPINE CORPORATION DELAWARE SAN JOSE, CALIFORNIA
QUINTANA MINERALS (USA), INC. DELAWARE SAN JOSE, CALIFORNIA
QUINTANA CANADA HOLDINGS, LLC DELAWARE SAN JOSE, CALIFORNIA
JOQ CANADA, INC. DELAWARE SAN JOSE, CALIFORNIA
SCHEDULE 4A
INVENTORY AND EQUIPMENT LOCATIONS
LOCATIONS OF OIL AND GAS INVENTORY AND EQUIPMENT:
[List of counties from Exhibit A to the Oil and Gas Mortgages]
SCHEDULE 4B
LOCATIONS OF OTHER INVENTORY AND EQUIPMENT:
1. Goldendale Energy Center - Goldendale, Washington.
2. Otay Mesa Energy Center - near San Diego, California.
3. Metcalf Energy Center - near San Jose, California.
4. Santa Rosa Energy Center - Santa Rosa County, Florida.
5. Washington Parish Energy Center - near Bogalusa, Louisiana.
6. Deer Park Energy Center - Deer Park, Texas.
7. Augusta Energy Center - Augusta, Georgia.
SCHEDULE 5
MATERIAL INTELLECTUAL PROPERTY
None.
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 200_, made
by ______________________________ (the "Additional Grantor"), in favor of The
Bank of New York, as collateral trustee (in such capacity, the "Collateral
Trustee") for the Secured Parties. All capitalized terms not defined herein
shall have the meaning ascribed to them in the Collateral Trust Agreement.
W I T N E S S E T H :
WHEREAS, Calpine Corporation (the "Company"), certain of its
Subsidiaries and the Collateral Trustee have entered into a Collateral Trust
Agreement, dated as of July 16, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Collateral Trust Agreement");
WHEREAS, in connection with the Collateral Trust Agreement,
the Company and certain of its Subsidiaries have entered into the Guarantee and
Collateral Agreement, dated as of July 16, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee and Collateral Agreement")
in favor of the Collateral Trustee for the benefit of the Secured Parties;
WHEREAS, an applicable Secured Debt Document requires the
Additional Grantor to become a party to the Guarantee and Collateral Agreement;
and
WHEREAS, the Additional Grantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Guarantee
and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Grantor thereunder. The information set forth
in Annex 1-A hereto is hereby added to the information set forth in the
Schedules to the Guarantee and Collateral Agreement. The Additional Grantor
hereby represents and warrants that each of the representations and warranties
contained in Section 4 of the Guarantee and Collateral Agreement is true and
correct on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
2
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By: _______________________
Name:
Title:
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5