Exhibit 10.21
EXECUTION COPY
FIRST AMENDMENT ASSIGNMENT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT ASSIGNMENT AND SECURITY AGREEMENT (this
"Assignment Agreement"), dated as of July 16, 2003, made by CALPINE CORPORATION,
a Delaware corporation (the "Company"), in favor of THE BANK OF NEW YORK, as
Collateral Trustee (together with any successors thereto in such capacity, the
"Collateral Trustee") for each of the Secured Parties.
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 Assigned 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 Subsidiaries of the Company named therein 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
Assignment Agreement, 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 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;
WHEREAS, it is a condition precedent to the obligations 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 obligations of the purchasers to purchase each of the 2007 Notes, the 2010
Notes and the 2013 Notes, that the Company shall have executed and delivered
this Assignment Agreement to the Collateral Trustee for the benefit of the
Secured Parties; and
WHEREAS, this Assignment Agreement amends and restates in its
entirety the Assignment and Security Agreement dated as of March 8, 2002 made by
the Company in favor of The Bank of Nova Scotia, as agent;
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:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Assignment Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Assigned Agreement" is defined in Section 2.1.
"Assigned Collateral" is defined in Section 2.1.
"Assignment Agreement" is defined in the preamble.
"Calpine Gilroy" means Calpine Gilroy Cogen L.P., a Delaware limited
partnership.
"Collateral Trust Agreement" is defined in the recitals.
"Collateral Trustee" is defined in the preamble.
"Company" is defined in the preamble.
"Secured Parity Lien Parties" means any Person who is holding a Parity
Lien Obligation (including any Parity Debt Representative), at any time.
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"Secured Priority Lien Parties" means any Person who is holding a
Priority Lien Obligation (including any Priority Lien Agent), at any time.
"Secured Parties" means any Person who is holding a Secured Obligation
(including any Secured Debt Representative), at any time.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of Delaware.
SECTION 1.2. Collateral Trust Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms used in this
Assignment Agreement, including its preamble and recitals, have the meanings
provided in the Collateral Trust Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein
or the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Assignment Agreement, including its preamble and
recitals, with such meanings.
ARTICLE II
ASSIGNMENT, ETC.
SECTION 2.1. Assignment. The Company hereby (i) collaterally
assigns to the Collateral Trustee for its benefit and the benefit of the Secured
Priority Lien Parties, and hereby grants to the Collateral Trustee for its
benefit and the benefit of the Secured Priority Lien Parties a first priority
security interest in, all of the Company's right, title and interest, whether
now existing or hereafter arising or acquired, in and to the following (the
"Assigned Collateral") and (ii) collaterally assigns to the Collateral Trustee
for its benefit and the benefit of the Secured Parity Lien Parties, and hereby
grants to the Collateral Trustee for its benefit and the benefit of the Secured
Parity Lien Parties a second priority security interest in, all of the Assigned
Collateral: Purchase Agreement, between Calpine Corporation and Calpine Gilroy
Cogen L.P., a Delaware limited partnership, dated as of March 8, 2002, as it may
be amended or otherwise modified from time to time (as so amended or modified,
the "Assigned Agreement"), including, without limitation,
(a) all rights of the Company to receive moneys due and
to become due under or pursuant to the Assigned Agreement,
(b) all rights of the Company to receive proceeds of any
insurance, indemnity, warranty, guaranty or collateral security with
respect to the Assigned Agreement,
(c) all claims of the Company for damages arising out of
or for breach of or default under the Assigned Agreement,
(d) the right of the Company to terminate the Assigned
Agreement, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder, and
(e) to the extent not included in the foregoing, all
proceeds of any and all of the foregoing collateral.
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SECTION 2.2. Security for Obligations; Separate Liens. This
Assignment Agreement and the security interests and Liens granted and created
herein secures the payment and 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 loans 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 Assignment
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 2.3. Continuing Assignment and Security Interest;
Transfer of Notes. This Assignment Agreement shall create a continuing security
interest in the Assigned Collateral and, subject to Section 4.1 of the
Collateral Trust Agreement and the other Secured Debt Documents, shall
(a) remain in full force and effect until payment in full
of all Secured Obligations and the termination or expiration of all
commitments to extend credit under all Credit Facilities, the
Indebtedness under which constitutes Priority Lien Debt,
(b) be binding upon the Company, its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of the
Collateral Trustee hereunder, to the benefit of the Collateral Trustee
and each other Secured Party.
Without limiting the foregoing clause (c), any Secured Party may assign or
otherwise transfer (in whole or in part) any right or obligation under the
Secured Debt Documents to any other Person or entity, and such other Person or
entity shall thereupon become vested with all the rights and benefits in respect
thereof granted to such Secured Party under any Secured Debt Document (including
this Assignment Agreement) or otherwise, subject, however, to any contrary
provisions in such assignment or transfer, and to the applicable provisions of
each of the Secured Debt Documents. Upon the payment in full and discharge of
all Secured Obligations that are then outstanding, due and payable and the
termination or expiration of all commitments to extend credit under all Credit
Facilities, the Indebtedness under which constitutes Priority Lien Debt, the
security interest granted herein shall terminate and all rights to the Assigned
Collateral shall revert to the Company. Upon any such termination or any release
of the Lien provided for hereunder in accordance with the Secured Debt
Documents, the Collateral Trustee will, at the
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Company's sole expense, execute and deliver to the Company such documents as the
Company shall reasonably request to evidence such termination or release.
SECTION 2.4. Company Remains Liable. Anything herein to the
contrary notwithstanding
(a) the Company shall remain liable under the contracts
and agreements included in the Assigned Collateral to the extent set
forth therein, and shall perform all of its duties and obligations
under such contracts and agreements to the same extent as if this
Assignment Agreement had not been executed,
(b) the exercise by the Collateral Trustee of any of its
rights hereunder shall not release the Company from any of its duties
or obligations under any such contracts or agreements included in the
Assigned Collateral, and
(c) neither the Collateral Trustee nor any other Secured
Party shall have any obligation or liability under any such contracts
or agreements included in the Assigned Collateral by reason of this
Assignment Agreement or by the exercise by the Collateral Trustee of
its rights hereunder or under any other Secured Debt Document, nor
shall the Collateral Trustee or any other Secured Party be obligated to
perform any of the obligations or duties of the Company thereunder or
to take any action to collect or enforce any claim for payment assigned
hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Company
represents and warrants unto the Collateral Trustee and each Secured Party as
set forth in this Article.
SECTION 3.1.1. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by the Company of this Assignment Agreement,
is within the Company's powers, has been duly authorized by all necessary
corporate action, and does not
(a) contravene the Company's certificate of incorporation
or bylaws;
(b) contravene any contractual restriction (including,
without limitation, the Assigned Agreement), law or governmental
regulation or court decree or order binding on or affecting the
Company; or
(c) except for the Lien created hereunder, result in, or
require the creation or imposition of, any Lien on any of the Company's
properties.
SECTION 3.1.2. Validity of Assigned Agreement. The Assigned
Agreement, a true and complete copy of which has been furnished to the
Collateral Trustee, has been duly authorized, executed and delivered by the
parties thereto, has not been amended or otherwise modified and is in full force
and effect and is binding upon and enforceable against the parties thereto in
accordance with its terms. The Company has fully performed all of its
obligations under the
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Assigned Agreement and, to the best of the Company's knowledge, Calpine Gilroy
has no defense, setoff or counterclaim arising under the Assigned Agreement.
There exists no default under the Assigned Agreement by the Company and, to the
best of the Company's knowledge, by Calpine Gilroy.
SECTION 3.1.3. Location of Assigned Collateral, etc. The place of
business and chief executive office of the Company and the office where the
Company keeps its records concerning the Assigned Collateral is the address
specified for the Company on the signature page hereto. The Company has no trade
name. The Company has not been known by any legal name different from the one
set forth on the signature page hereto, nor has the Company been the subject of
any merger or other corporate reorganization. None of the Assigned Collateral is
evidenced by a promissory note or other instrument.
SECTION 3.1.4. Ownership, No Liens, etc. The Company owns the
Assigned Collateral free and clear of any Lien, security interest, charge or
encumbrance except for the security interest created by this Assignment
Agreement. No effective financing statement or other instrument similar in
effect covering all or any part of the Assigned Collateral is on file in any
recording office, except such as may have been filed in favor of the Collateral
Trustee relating to this Assignment Agreement.
SECTION 3.1.5. Validity, etc. This Assignment Agreement creates a
valid and, upon filing of a proper financing statement with the Delaware
Secretary of State, first priority or second priority, as the case may be,
security interest in the Assigned Collateral, securing the payment of the
Secured Obligations, subject in each case to the provisions of Section 3.4 of
the Collateral Trust Agreement, and, upon the filing of such financing
statement, all filings and other actions necessary or desirable to perfect and
protect such security interest will have been duly taken.
SECTION 3.1.6. Authorization, Approval, etc. No authorization,
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required either
(a) for the grant by the Company of the security interest
granted hereby or for the execution, delivery and performance of this
Assignment Agreement by the Company, or
(b) for the perfection of or the exercise by the
Collateral Trustee of its rights and remedies hereunder.
SECTION 3.1.7. Compliance with Laws. The Company is in compliance
with the requirements of all applicable laws, rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of the Company or the value of the
Assigned Collateral or the worth of the Assigned Collateral as collateral
security.
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ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Company covenants and agrees
that, so long as any portion of the Secured Obligations shall remain unpaid or
any commitment to extend credit under any Credit Facilities, the Indebtedness
under which constitutes Priority Lien Debt shall have not been permanently
terminated or expired, the Company will, perform the obligations set forth in
this Section.
SECTION 4.1.1. As to Assigned Agreement. The Company, at its
expense, shall or shall cause Calpine Gilroy, as applicable, to:
(a) perform and observe all the terms and provisions of
the Assigned Agreement to be performed or observed by Company or
Calpine Gilroy, maintain the Assigned Agreement in full force and
effect, enforce the Assigned Agreement in accordance with its terms,
and take all such necessary action to such end; and
(b) furnish to the Collateral Trustee promptly upon
receipt thereof copies of all material notices, requests and other
documents received by the Company or Calpine Gilroy under or pursuant
to the Assigned Agreement, and from time to time (i) furnish to the
Collateral Trustee such information and reports regarding the Assigned
Collateral as the Collateral Trustee or any Secured Debt Representative
may reasonably request and (ii) upon request of the Collateral Trustee
or any Secured Debt Representative make to Calpine Gilroy such demands
and requests for information and reports or for action as the Company
is entitled to make under the Assigned Agreement.
SECTION 4.1.2. [Intentionally Omitted.].
SECTION 4.1.3. Further Assurances, etc. The Company agrees that,
from time to time, at the expense of the Company, the Company will and will
cause Calpine Gilroy to promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Collateral Trustee or any Secured Debt Representative may reasonably
request, in order to perfect, preserve and protect any security interest granted
or purported to be granted hereby or to enable the Collateral Trustee to
exercise and enforce its rights and remedies hereunder with respect to any
Assigned Collateral. Without limiting the generality of the foregoing, the
Company will and will cause Calpine Gilroy to
(a) if any Assigned Collateral shall become evidenced by
a promissory note or other instrument, negotiable document or chattel
paper, deliver and pledge to the Collateral Trustee hereunder such
promissory note or instrument, negotiable document or chattel paper
duly indorsed and accompanied by duly executed instruments of transfer
or assignment, all in form and substance reasonably satisfactory to the
Collateral Trustee; and
(b) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Collateral Trustee
or any Secured Debt Representative may reasonably request, in order
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to perfect and preserve the security interests and other rights granted
or purported to be granted to the Collateral Trustee hereby.
With respect to the foregoing and the grant of the security interest hereunder,
the Company hereby authorizes the Collateral Trustee to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Assigned Collateral without the signature of the Company where
permitted by law. A carbon, photographic or other reproduction of this
Assignment Agreement or any financing statement covering the Assigned Collateral
or any part thereof shall be sufficient as a financing statement where permitted
by law.
SECTION 4.1.4. State of Incorporation. The Company agrees to give
the Collateral Trustee and each Secured Debt Representative prior written notice
of any change in its state of incorporation in the state of Delaware. The
Company agrees promptly to provide the Collateral Trustee and each Secured Debt
Representative with certified organizational documents reflecting any change to
such state of incorporation.
ARTICLE V
THE COLLATERAL TRUSTEE
SECTION 5.1. Collateral Trustee Appointed Attorney-in-Fact.
Company hereby irrevocably appoints the Collateral Trustee the Company's
attorney-in-fact, with full authority in the place and stead of the Company and
in the name of the Company or otherwise, from time to time in the Collateral
Trustee's discretion, but only after the occurrence and during the continuance
of an Actionable Default, to take any action (including any action under the
Assigned Agreement that the Company is entitled to take) and to execute any
instrument which the Collateral Trustee may deem necessary or advisable to
accomplish the purposes of this Assignment Agreement, including, without
limitation:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Assigned
Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above;
(c) to file any claims or take any action or institute
any proceedings which the Collateral Trustee may deem necessary or
desirable for the collection thereof or to enforce compliance with the
terms and conditions of the Assigned Agreement; and
(d) to perform the affirmative obligations of the Company
hereunder (including all obligations of the Company pursuant to Section
4.1.1 and Section 4.1.3).
The Company hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Collateral Trustee May Perform. If the Company fails
to perform any agreement contained herein, the Collateral Trustee may itself
perform, or cause performance of,
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such agreement, and the expenses of the Collateral Trustee incurred in
connection therewith shall be payable by the Company pursuant to Section 6.2.
SECTION 5.3 Collateral Trustee's Rights and Duties Subject to
Collateral Trust Agreement. Notwithstanding anything to the contrary contained
in this Assignment Agreement, in acting under and by virtue of this Assignment
Agreement, the Collateral Trustee shall be entitled to all of the rights,
privileges and immunities provided to it in the Collateral Trust Agreement, and
the rights and duties of the Collateral Trustee hereunder are subject in all
respects to the terms, conditions and limitations set forth in the Collateral
Trust Agreement (including, without limitation, the provisions of Article 5
thereof), 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 Company with respect to the Collateral Trustee's
exercise of any right or remedy pursuant to this Assignment Agreement or as
otherwise afforded by applicable law.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If an Actionable Default shall have
occurred and be continuing:
(a) The Collateral Trustee may exercise in respect of the
Assigned Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and remedies of
a secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Assigned Collateral) and also may exercise any
and all rights and remedies of the Company under or in connection with
the Assigned Agreement or otherwise in respect of the Assigned
Collateral, including, without limitation, any and all rights of the
Company to demand or otherwise require payment of any amount under, or
performance of any provision of, the Assigned Agreement, in each case
subject to the terms and provisions of the Collateral Trust Agreement;
(b) all payments received by the Company under or in
connection with the Assigned Agreement or otherwise in respect of the
Assigned Collateral shall be received in trust for the benefit of the
Collateral Trustee, shall be segregated from other funds of the Company
and shall be forthwith paid over to the Collateral Trustee in the same
form as so received (with any necessary indorsement); and
(c) all payments made under or in connection with the
Assigned Agreement or otherwise in respect of the Assigned Collateral
and received by the Collateral Trustee may, in the discretion of the
Collateral Trustee, be held by the Collateral Trustee as collateral
for, and/or then or at any time thereafter applied in whole or in part
by the Collateral Trustee in accordance with Section 3.4 of the
Collateral Trust Agreement.
SECTION 6.2. Indemnity and Expenses.
(a) The Company agrees to indemnify the Collateral
Trustee from and against any and all Indemnified Liabilities with
respect to the execution, delivery, performance,
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administration or enforcement of this Assignment Agreement to the
extent provided in Section 7.8 of the Collateral Trust Agreement.
(b) The Company agrees to reimburse the Collateral
Trustee for all costs, fees and expenses relating to this Assignment
Agreement to the extent provided in Section 7.7 of the Collateral Trust
Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Security Document. This Assignment Agreement is a
Security Document executed pursuant to the Collateral Trust Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any
provision of this Assignment Agreement nor consent to any departure by the
Company herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Collateral Trustee in accordance with Section 7.1 of
the Collateral Trust Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 7.3. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telegraphic
communication) and shall be effected in the manner provided for in Section 7.5
of the Collateral Trust Agreement.
SECTION 7.4. Section Captions. Section captions used in this
Assignment Agreement are for convenience of reference only, and shall not affect
the construction of this Assignment Agreement.
SECTION 7.5. Severability. Wherever possible each provision of
this Assignment Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Assignment
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Assignment Agreement.
SECTION 7.6. Governing Law, Entire Agreement, etc. THIS ASSIGNMENT
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Assignment Agreement constitutes the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
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IN WITNESS WHEREOF, the Company has caused this Assignment Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
CALPINE CORPORATION,
a Delaware corporation
By: /s/ Michael Thomas
-------------------------------------
Name: Michael Thomas
Title:
Address: 50 West San Fernando Street
San Jose, CA 95113
Attention: Treasurer
Telecopier: (408) 995-0505
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THE BANK OF NEW YORK, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
COLLATERAL TRUSTEE
By: /s/ Michael Pitfick
-------------------------------------
Name: Michael Pitfick
Title: Assistant Vice President
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