EX-4.12.5 17 f70293ex4-12_5.txt EXHIBIT 4.12.5 1 EXHIBIT 4.12.5 EXECUTION COPY ================================================================================ CALPINE GUARANTY AND PAYMENT AGREEMENT (TIVERTON) Dated as of December 19, 2000 among CALPINE CORPORATION, as Guarantor, and PMCC Calpine New England Investment LLC, as Owner Lessor, PMCC Calpine NEIM LLC, as Owner Participant, STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee, and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity but solely as Pass Through Trustee, as Beneficiaries CALPINE NEW ENGLAND PROJECT ================================================================================ 2 EXHIBITS Exhibit A Equity Portion of Termination Value Exhibit B Debt Portion of Termination Value 1 3 CALPINE GUARANTY AND PAYMENT AGREEMENT (TIVERTON) This CALPINE GUARANTY AND PAYMENT AGREEMENT (TIVERTON), dated as of December 19, 2000 (the "Guaranty"), is entered into by and among Calpine Corporation, a Delaware corporation, as guarantor (the "Guarantor"), PMCC CALPINE NEW ENGLAND INVESTMENT LLC, a Delaware limited liability company, as Owner Lessor, PMCC CALPINE NEIM LLC, a Delaware limited liability company, as Owner Participant, STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity but solely as Pass Through Trustee, and is issued by the Guarantor in favor of the Beneficiaries (as defined in Section 4 below). WITNESSETH: WHEREAS, Tiverton Power Associates Limited Partnership (the "Tiverton Lessee") is an indirect wholly-owned subsidiary of the Guarantor; WHEREAS, the Tiverton Lessee is a party to the Participation Agreement dated as of December 19, 2000 (the "Participation Agreement"), among the Tiverton Lessee, Rumford Power Associates Limited Partnership, PMCC Calpine New England Investment LLC, as Owner Lessor, the Guarantor, PMCC Calpine NEIM LLC, as Owner Participant, State Street Bank and Trust Company of Connecticut, N.A., not in its individual capacity, except as expressly provided in the Participation Agreement, but solely as Indenture Trustee and State Street Bank and Trust Company of Connecticut, N.A., not in its individual capacity, except as expressly provided in the Participation Agreement, but solely as Pass Through Trustee; WHEREAS, the Tiverton Lessee and the Owner Lessor are entering into the Tiverton Facility Lease, to be dated as of December 19, 2000 (as amended, modified or supplemented from time to time pursuant to Section 14.24 of the Participation Agreement, the "Tiverton Facility Lease"), providing for the Owner Lessor's leasing of the Tiverton Facility to the Tiverton Lessee as contemplated therein; WHEREAS, the Guarantor will obtain benefits as a result of the Tiverton Lessee entering into the Tiverton Facility Lease and the other transactions contemplated by the Participation Agreement; and WHEREAS, pursuant to Section 4.2 of the Participation Agreement, this Guaranty is required to be provided by the Guarantor. NOW, THEREFORE, in consideration of the foregoing premises, the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees as follows: 1 4 SECTION 1. DEFINITIONS (a) Capitalized terms used in this Guaranty, including the recitals, and not otherwise defined herein shall have the respective meanings set forth on Appendix A to the Participation Agreement, provided that if a term that is defined in this Guaranty (the "Guaranty Definition") includes in such definition a term that is defined in Appendix A to the Participation Agreement (the "Appendix A Definition"), and the Appendix A Definition in turn includes in such definition a term that is defined both in this Guaranty and in Appendix A to the Participation Agreement (the "Embedded Definition"), then for purposes of the Appendix A Definition as it is used in the Guaranty Definition and for purposes of the Guaranty Definition, the Embedded Definition shall be used as defined in this Guaranty and not as defined in Appendix A to the Participation Agreement. Except as otherwise provided in the previous sentence, the Rules of Interpretation set forth in Appendix A to the Participation Agreement shall apply to the terms used in this Guaranty and specifically defined herein. (b) As used in this Guaranty, the following terms shall have the respective meanings assigned thereto as follows: "GAAP" means generally accepted accounting principals in the United States of America as in effect and, to the extent optional, adopted by the Guarantor, on the date of the Guaranty, consistently applied. "Indebtedness" of any Person means, without duplication, (i) the principal in respect of indebtedness of such Person for money borrowed and; (ii) all Capitalized Lease Obligations of such Person; (iii) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in (i) and (ii) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit); (iv) all obligations of the type referred to in clauses (i) through (iii) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise; and (v) all obligations of the type referred to in clauses (i) through (iv) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation on any date of determination being deemed to be the lesser of the value of such property or assets or the amount of the obligation so secured. The amount of Indebtedness of any Person at any date shall be, with respect to unconditional obligations, the outstanding balance at such date of all such obligations as described above and, with respect to any contingent obligations at such date, the maximum liability determined by such Person's board of directors, in good faith, as, in light of the facts and circumstances existing at the time, reasonably likely to be Incurred upon the occurrence of the contingency giving rise to such obligation. 2 5 "Lien" means any mortgage, lien, pledge, charge, or other security interest or encumbrance of any kind (including any conditional sale or other title retention agreement and any lease in the nature thereof). "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Subsidiary" means, as applied to any Person, any corporation, partnership, trust, association or other business entity of which an aggregate of at least 50% of the outstanding Voting Shares or an equivalent controlling interest therein, of such Person is, at the time, directly or indirectly, owned by such Person and/or one or more Subsidiaries of such Person. "Voting Shares", with respect to any corporation, means the Capital Stock having the general voting power under ordinary circumstances to elect at least a majority of the board of directors (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). SECTION 2. GUARANTEED AND PAYMENT OBLIGATIONS Section 2.1. (a) The Guarantor hereby unconditionally and irrevocably guarantees to the Beneficiaries (except that the obligations referred to in clauses (1), (2) and (5)(A) (relating to clause (1) and clause (2) amounts) are for the benefit only of the Owner Lessor and the Indenture Trustee (as assignee of the Owner Lessor), as their interests may appear), as primary obligor and not merely as a surety, the due, punctual and full payment (when and as the same may become due and payable), and, as applicable, performance by the Tiverton Lessee of all of the Tiverton Lessee's obligations under the Tiverton Operative Documents to which it is a party if the same shall not be performed when due pursuant to the Tiverton Operative Documents, including, without limitation, but without duplication, (1) the Tiverton Lessee's obligation to make Periodic Rent, Supplemental Rent and other payments (in accordance with the terms of the Tiverton Operative Documents) to the Owner Lessor, (2) the Tiverton Lessee's obligation to pay Termination Value (and amounts computed by reference thereto) to the Owner Lessor and all other amounts owed under the Operative Documents under and in accordance with the Tiverton Facility Lease, (3) without duplication of the preceding clause (2), the Tiverton Lessee's obligation to pay the Equity Portion of Periodic Rent and the Equity Portion of Termination Value to the Owner Lessor, (4) the Tiverton Lessee's obligation to make indemnity payments in accordance with the terms of the Participation Agreement and the Tax Indemnity Agreement, (5) the Tiverton Lessee's obligation, pursuant to Section 3.3 of the Tiverton Facility Lease, to pay as Supplemental Rent an amount equal to (A) interest at the applicable Overdue Rate on any amount under clauses (1), (2), (3), (4) and 5(B) of this Section 2.1(a), not paid when due and (B) any Make-Whole Amount payable by the Owner Lessor to the Certificateholders pursuant to the Participation Agreement, the Tiverton Facility Lease or any other Tiverton Operative 3 6 Document to which the Tiverton Lessee is a party and (6) the Tiverton Lessee's obligation to make any and all other payments, and perform all other covenants and agreements, under and in accordance with the terms of the Tiverton Operative Documents. (b) The Guarantor agrees that upon the occurrence and during the continuance of a Lease Event of Default, it (1) shall pay to the Owner Lessor the Equity Portion of Periodic Rent and the Equity Portion of Termination Value as set forth in Exhibit A hereto, upon written demand by the Owner Lessor, such demand to be at the times permitted by, and otherwise subject to, the provisions of Section 5.6 of the Collateral Trust Indenture (so long as the Collateral Trust Indenture is in effect at such time), and (2) shall pay to the Indenture Trustee (as assignee of the Owner Lessor), upon written demand by the Indenture Trustee (as assignee of the Owner Lessor), all other amounts constituting Termination Value as set forth on Exhibit B hereto and Periodic Rent. Such payment obligation shall be effective without reference to or requirement for valuation of the Owner Lessor's Interest or any other security held by any Person for performance of the Tiverton Lessee's obligations under the Tiverton Facility Lease or any other Operative Documents. The Guarantor agrees that it shall make such payment notwithstanding the fact that, pursuant to Section 17.1 of the Tiverton Facility Lease, such amounts might not otherwise be payable by the Lessee. The Guarantor's obligations in this Section 2.1(b) are direct and primary obligations (and not obligations of a guarantor or surety) of the Guarantor to the Owner Lessor and the Indenture Trustee (as assignee of the Owner Lessor), which shall not be affected in any way by the provisions of Section 2.1(a) above or any payments under any other Operative Documents of any amounts until the Owner Lessor and the Indenture Trustee (as assignee of the Owner Lessor) have received full payment of such amounts. (c) The Guarantor acknowledges that notwithstanding the provisions of the second sentence of Section 8.13 hereof (i) as and to the extent provided in Section 5.6 of the Collateral Trust Indenture (A) upon the occurrence and during the continuation of a Lease Event of Default, the Indenture Trustee and the Owner Lessor may proceed against the Guarantor for the payment of the Termination Value (including without limitation all amounts the Guarantor is obligated to pay under Section 2.1(b) hereof under the circumstances specified therein), (B) upon the occurrence and during the continuation of a Lease Event of Default and the lapse of a period of 180 days after the declaration thereof, the Owner Lessor shall have the right to claim for and be paid to an account designated by it the amounts referred to in clause (3) of paragraph (a) of this Section 2.1 and clause (1) of paragraph (b) of this Section 2.1 (without duplication) (together with Overdue Interest on such amounts) and (C) only the Owner Lessor is entitled to compromise or settle any claim to the amounts referred to in clause (B) above; and unless so compromised or settled by the Owner Lessor, such claim shall survive until such claim shall be paid to the Owner Lessor in full; and (ii) payments made to the Indenture Trustee under this Guaranty with respect to the Debt Portion of Termination Value and the Equity Portion of Termination Value shall first be applied to satisfy the indebtedness evidenced by the Lessor Notes before being applied to satisfy any claim in respect of the amounts and Overdue Interest referred to in the preceding clause (B). 4 7 (d) Notwithstanding anything herein or in the Collateral Trust Indenture to the contrary, in the event that an Indenture Event of Default that is attributable to a Lease Event of Default has occurred and is continuing and the Indenture Trustee (as assignee of the Owner Trustee) forecloses upon and sells, assigns or otherwise transfers, its interest in this Guaranty pursuant to the provisions of the Collateral Trust Indenture, the Guarantor shall remain obligated hereunder to pay to the Owner Lessor an amount equal to the amounts referred to in Section 2.1(a)(3) and Section 2.1(b)(1) (but without duplication). Any purchaser, assignee or other transferee of the Indenture Trustee's interest in this Guaranty shall have a claim pursuant to Section 2.1(a)(1) and (2) and Section 2.1(b)(2) of the Guaranty for the Debt Portion of Termination Value (Tiverton) and the Debt Portion of Periodic Rent (Tiverton), but not a claim for the Equity Portion of Termination Value (Tiverton) and the Equity Portion of Periodic Rent (Tiverton). Section 2.2. In the case of any failure by the Tiverton Lessee to perform and observe any term, provision or condition referred to in Section 2.1(a) when due pursuant to the Operative Documents, the Guarantor agrees to cause such performance or observance to be done, and in the case of any failure by the Tiverton Lessee to make such payment as and when the same shall become due and payable (by acceleration or otherwise), the Guarantor hereby agrees to make such payment (and, in addition, such further amounts, if any, as shall be sufficient to cover the costs and expenses of collection hereunder) as and when such payment is due and payable. All obligations and indebtedness set forth in Section 2.1 above, this Section 2.2, and in Section 8.15 below are referred to in this Guaranty as the "Obligations (Tiverton)." Section 2.3. The obligations of the Guarantor contained herein are direct, independent, and primary obligations of the Guarantor and are absolute, present, unconditional and continuing obligations and are not conditioned in any way upon the institution of suit or the taking of any other action or any attempt to enforce performance of or compliance with the obligations, covenants or undertakings (including any payment obligations) of the Tiverton Lessee and shall constitute a guaranty of, and agreement with respect to, payment and performance and not a guaranty of collection, binding upon the Guarantor and its successors and assigns and shall remain in full force and effect and irrevocable without regard to the genuineness, validity, legality or enforceability of the Participation Agreement, the Tiverton Facility Lease, the Tax Indemnity Agreement or any other agreement (including any other Tiverton Operative Document) or the lack of power or authority of the Tiverton Lessee to enter into any of the Participation Agreement, the Tiverton Facility Lease, the Tax Indemnity Agreement or any other agreement (including any other Tiverton Operative Document) to which the Tiverton Lessee is a party, or any substitution, release or exchange of any other guaranty of, or agreement with respect to, or any other security for, any of the Obligations (Tiverton) (including any settlement, compromise or other adjustment with respect to the Obligations (Tiverton)) or any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor and shall not be subject to any right of set-off, recoupment or counterclaim and is in no way 5 8 conditioned or contingent upon any attempt to collect from the Tiverton Lessee or any other entity or to perfect or enforce any security or upon any other condition or contingency or upon any other action, occurrence or circumstance whatsoever. Without limiting the generality of the foregoing, the Guarantor shall have no right to terminate this Guaranty, or to be released, relieved or discharged from its obligations hereunder, other than upon full payment and satisfaction and performance of all of the Obligations (Tiverton) (subject to Section 8.14 hereof), and such obligations shall be neither affected nor diminished for any other reason whatsoever, including (i) any amendment or supplement to or modification of any of the Participation Agreement, the Tiverton Facility Lease, the Tax Indemnity Agreement or any other agreement (including any other Tiverton Operative Document) to which the Tiverton Lessee is a party, any release, extension or renewal of the Tiverton Lessee's obligations under any of the Participation Agreement, the Tiverton Facility Lease, the Tax Indemnity Agreement or any other agreement (including any other Tiverton Operative Document) to which the Tiverton Lessee is a party or by which it is bound, including, without limitation, any actions taken by the Indenture Trustee pursuant to the Collateral Trust Indenture, or any subletting, assignment or transfer of the Tiverton Lessee's or any Beneficiary's interest in the Participation Agreement, the Tiverton Facility Lease or any other Tiverton Operative Document in accordance with the terms thereof, (ii) any bankruptcy, insolvency, readjustment, composition, liquidation or similar proceeding with respect to the Tiverton Lessee, Owner Lessor, Owner Participant or any other Person, including, without limitation, termination of the Tiverton Facility Lease and the operation of Section 502(b)(6) of the Bankruptcy Code in connection therewith, (iii) any furnishing or acceptance of additional security or any exchange, substitution, surrender or release of any security, (iv) any waiver, consent or other action or inaction or any exercise or nonexercise of any right, remedy or power with respect to the Obligations (Tiverton) (including any settlement, compromise or other adjustment with respect to the Obligations (Tiverton)) or any of the Participation Agreement, the Tiverton Facility Lease, the Tax Indemnity Agreement or any other agreement (including any Tiverton Operative Document) to which the Tiverton Lessee is a party, (v) without limiting Section 3.6(b) hereof, any merger or consolidation of the Tiverton Lessee or the Guarantor into or with any other Person, or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the assets or properties of the Tiverton Lessee or the Guarantor, or any change in the structure of the Tiverton Lessee or in the ownership of the Tiverton Lessee by the Guarantor, (vi) any default, misrepresentation, negligence, misconduct or other action or inaction of any kind by any Beneficiary, the Indenture Trustee or any other Person under or in connection with any Tiverton Operative Document or any other agreement relating to this Guaranty, (vii) any action or inaction by any Beneficiary as contemplated in Section 5 of this Guaranty; (viii) any invalidity, irregularity or unenforceability of all or part of the Obligations (Tiverton) or of any security therefor; (ix) any change in the manner, place, timing or schedule of payment or performance of, or in any other term of, all or any of the Obligations (Tiverton); (x) whether the Guarantor is related or unrelated to the Tiverton Lessee, (xi) the assignment by the Owner Lessor of its rights and interests hereunder, under the Tiverton Facility Lease or under any other Tiverton Operative Document in accordance with the Tiverton Operative Documents (or the genuineness, validity, legality or 6 9 enforceability of the obligations of the Owner Lessor under the Collateral Trust Indenture) and (xii) any other circumstance whatsoever. SECTION 3. GUARANTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS Section 3.1. The Guarantor represents and warrants, as of the date hereof: (i) The Guarantor is duly organized, validly existing and in good standing under the laws of the State of Delaware and has full power, authority and the legal right to execute, deliver and perform the terms of this Guaranty and each Operative Document to which it is a party (together, the "Calpine Documents"). (ii) The execution, delivery and performance by the Guarantor of the Calpine Documents have been duly authorized by all necessary corporate action. The Calpine Documents constitute legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their respective terms, except as such enforcement may be affected by applicable bankruptcy, insolvency, moratorium and other similar laws affecting creditors' rights generally and by general principles of equity. (iii) The execution, delivery and performance of the Calpine Documents will not (a) contravene any provision of law, rule or regulation to which the Guarantor is subject or any judgment, decree or order applicable to the Guarantor, (b) conflict or be inconsistent with or result in any breach of any terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien or other encumbrance upon any of the property or assets of the Guarantor pursuant to the terms of any agreement or other instrument to which the Guarantor is a party or by which it or its property is bound or to which it or its property may be subject, in each case the violation of which would have a material adverse effect on the business, operations, prospects, properties or assets, or in the condition, financial or otherwise, of the Guarantor, or (c) violate or contravene any provision of the articles of incorporation or by-laws of the Guarantor. (iv) No pending or, to the knowledge of the Guarantor, threatened action, suit, investigation or proceedings against the Guarantor before any Governmental Entity exists which, if determined adversely to the Guarantor, would materially adversely affect the business, operations, prospects, properties or assets, or in its condition, financial or otherwise, or the Guarantor's ability to perform its obligations under the Calpine Documents. (v) No consent from, authorization or approval or other action by, and no notice to or filing with, any Person is required for the execution, delivery and 7 10 performance by the Guarantor of the Calpine Documents except those which have been given and remain in full force and effect. (vi) The Tiverton Lessee is an indirect, wholly owned subsidiary of the Guarantor. (vii) The Guarantor is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act of 1940. (viii) The Guarantor is not in default with respect to any judgment, order, writ, injunction, decree, award, rule or regulation of any court, arbitrator or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which, either, separately or in the aggregate, would result in any material adverse change in any of its businesses, operations, prospects or assets, or in its condition, financial or otherwise, or its ability to perform its obligations under the Calpine Documents. (ix) The Guarantor is not a party to any agreement or instrument, or subject to any corporate restriction or any judgment, order, writ, injunction, decree, award, rule or regulation, which materially adversely affects, or in the future may materially adversely affect, its business, operations, prospects, properties or assets, or conditions, financial or otherwise, or its ability to perform its obligations the Calpine Documents. (x) The audited financial statements of the Guarantor and its Consolidated Subsidiaries, as at December 31, 1999, reported on by Arthur Andersen LLP, copies of which have been delivered to the Indenture Trustee, the Pass Through Trustee, the Certificateholders and the Owner Participant, are true, complete and correct and fairly present the financial condition of the Guarantor and its Consolidated Subsidiaries as of the date thereof. The financial statements have been prepared in accordance with GAAP. The Guarantor and its Consolidated Subsidiaries do not have any material liabilities, direct or contingent, except (a) as are disclosed in such financial statements or (b) as arise under the Operative Documents. There has been no material adverse change in the financial condition of the Guarantor and its Consolidated Subsidiaries since the date of the audited financial statements referred to above. (xi) All factual information relating to the Guarantor (taken as a whole) heretofore or contemporaneously furnished by or on behalf of the Guarantor in writing to the Owner Lessor, the Owner Participant, the Indenture Trustee, the Pass Through Trustee or the Certificateholders (including, without limitation, all such information contained herein, in the Participation Agreement and in any preliminary or final offering circular distributed in accordance with the terms of the Tiverton Operative Documents) for purposes of or in connection with the Calpine Documents or any transaction contemplated therein is true and accurate in all material respects on the date as of which such information is dated or 8 11 certified and not incomplete by omitting to state any fact necessary to make such information relating to the Guarantor (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided; provided, that no representation or warranty is made with regard to (i) any projections or other forward-looking statements provided by or on behalf of the Guarantor, or (ii) the descriptions of the Tiverton Operative Documents or the tax consequences to beneficial owners of Certificates; provided, however, each of the Beneficiaries acknowledges and agrees that (i) Calpine has heretofore provided to the Appraiser, solely in order to assist the Appraiser in connection with the preparation of the appraisal to be delivered by the Appraiser to certain of the Transaction Parties at the Closing, certain (1) general market information, (2) information about the Maine and Rhode Island energy markets and (3) information passed along from other Persons and (ii) that neither of the Facility Lessees makes any representation or warranty whatsoever with respect to the information described in clause (i) above except to the extent expressly set forth in Section 4(b) of the Tax Indemnity Agreement. (xii) The Guarantor is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such noncompliance as would not, in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Guarantor, or the Guarantor's ability to perform its obligations under the Calpine Documents. (xiii) The Guarantor has filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing (other than any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books), except such non-filing or non-payment, as the case may be, as would not, in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Guarantor. (xiv) No default has occurred under this Guaranty, which default would reasonably be expected to result in a material adverse effect on the business, operations, assets or condition (financial or otherwise) of the Guarantor. (xv) In accordance with Section 8.12 hereof and Section 14.04 of the Participation Agreement, the Guarantor has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York. 9 12 Section 3.2. The Guarantor covenants and agrees that on and after the date hereof and until this Guaranty is terminated pursuant to the terms hereof the Guarantor shall: (a) file with the Owner Participant and the Indenture Trustee, within 15 days after the filing with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. In the event the Guarantor is at any time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall file with the Owner Participant, and for so long as the Certificates remain outstanding, the Indenture Trustee and the Pass Through Trustee, within 15 days after the Guarantor would have been required to file such documents with the SEC, copies of the annual reports and of the information, documents and other reports which the Guarantor would have been required to file with the SEC if the Guarantor had continued to be subject to such Sections 13 or 15(d). Delivery of such reports, information and documents to the Owner Participant, the Indenture Trustee and the Pass Through Trustee is for informational purposes only and their receipt of the same shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor's compliance with any of its covenants hereunder (as to which the Owner Participant, the Indenture Trustee and the Pass Through Trustee are entitled to rely exclusively on Officers' Certificates); (b) furnish to the Beneficiaries, promptly upon the Guarantor obtaining Actual Knowledge of any action, suit or proceeding pending or threatened against the Guarantor before any court or before any governmental department, commission or agency or any arbitrator, which in the Guarantor's good faith opinion would reasonably be likely to result in a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Guarantor, a certificate of a senior officer specifying the nature of such action, suit or proceeding and the proposed response of the Guarantor thereto; (c) furnish to the Beneficiaries, as soon as possible and in any event within three days after the Guarantor obtains Actual Knowledge of default by the Guarantor of any of its material obligations under this Guaranty, a statement of an authorized officer of the Guarantor setting forth details of such default and the action which the Guarantor has taken and proposes to take with respect thereto. Notwithstanding the foregoing provision in this clause (c), the Guarantor shall, within 120 days after the close of each fiscal year of the Guarantor in which Certificates are outstanding hereunder, file with the Owner Participant, and if the Certificates are outstanding during any part of such fiscal year, the Indenture Trustee and the Pass Through Trustee, an Officer's Certificate, provided that one Officer executing the same shall be the principal executive officer, the principal financial officer or the principal accounting officer of the Guarantor, covering the period from the date hereof to the end of the fiscal year in which this Guaranty was executed and delivered by the Guarantor, in the case of the first such certificate, and covering the preceding fiscal year in the case of each subsequent certificate, and stating whether or not, to the Actual Knowledge of each 10 13 such executing Officer, the Guarantor has complied with and performed and fulfilled all covenants on its part contained in this Guaranty and is not in Default in the performance or observance of any of the terms or provisions contained in this Guaranty, and, if any such signer has obtained Actual Knowledge of any Default by the Guarantor in the performance, observance or fulfillment of any such covenant, terms or provision specifying each such Default and the nature thereof; and (d) promptly furnish to the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee such other information as the Owner Lessor, Owner Participant, the Indenture Trustee and the Pass Through Trustee may from time to time reasonably request with respect to the Guarantor. So long as the Indenture Trustee is also serving as the Pass Through Trustee, delivery to the Indenture Trustee shall satisfy the Guarantor's obligation to furnish information to the Pass Through Trustee under this Section 3.2. Section 3.3. The Guarantor covenants and agrees that it will not transfer or assign or cause to be transferred or assigned the Ownership Interest in the Tiverton Lessee to any other Person, without the prior written consent of the Owner Lessor, the Owner Participant and, so long as the Lien of the Collateral Trust Indenture has not been terminated or discharged, the Indenture Trustee and the Pass Through Trustee (it being agreed and understood that a consolidation with or merger of the Guarantor into, or a sale by the Guarantor of all or substantially all of its assets to, another Person in accordance with Section 3.6 hereof shall not be deemed to be a transfer or assignment of the Ownership Interest in the Tiverton Lessee for the purposes of this Section), except as permitted in this Section 3.3 or in Section 8.4 hereof. Notwithstanding the foregoing, and subject to Section 8.4 below, so long as this Guaranty remains in full force and effect, the Guarantor may transfer a portion of the Ownership Interest in the Tiverton Lessee (provided that following such transfer the Guarantor shall continue to own at least a majority of the Ownership Interest in the Tiverton Lessee, as well as at least a majority of the Ownership Interest in the Rumford Lessee) without the consent of the Owner Lessor, the Owner Participant, the Indenture Trustee, the Pass Through Trustee or any other Transaction Party if the following conditions have been satisfied: (i) the Owner Lessor, the Owner Participant and, so long as the Lien of the Collateral Trust Indenture shall not have been terminated or discharged, the Indenture Trustee and the Pass Through Trustee shall have received an Opinion of Counsel to the effect that all regulatory approvals required in connection with such transfer have been obtained; (ii) all the obligations of the Tiverton Lessee under the Tiverton Operative Documents shall remain in full force and effect, the Guarantor shall reaffirm in writing all of its obligations hereunder in a manner reasonably satisfactory to the Owner Participant, such obligations of the Guarantor shall remain in full force and effect; 11 14 (iii) no Significant Lease Default or Lease Event of Default shall have occurred and be continuing at the time of or immediately following such transfer; (iv) the transfer shall not subject the Tiverton Lessee, the Rumford Lessee, the Owner Participant, the Owner Lessor, the Indenture Trustee, the Pass Through Trustee or any Certificateholder to regulation under PUHCA or state laws and regulations regarding the rate and financial or organizational regulation of electric utilities in the affected party's reasonable opinion, nor result in a Regulatory Event of Loss; and (v) the Tiverton Lessee shall have paid, at no after-tax cost to such parties, all reasonable and documented out-of-pocket expenses (including reasonable attorneys' fees and expenses) of the Owner Lessor, the Owner Participant, the Indenture Trustee, the Lease Indenture Company and the Pass Through Trustee in connection with such assignment. Section 3.4. Subject to Section 4, the Guarantor shall not, and shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction unless (i) the Guarantor or such Restricted Subsidiary would be entitled to create a Lien on such property securing Indebtedness in an amount equal to the Attributable Debt with respect to such transaction without equally and ratably securing the Obligations (Tiverton) pursuant to Section 3.5 or (ii) the net proceeds of such sale are at least equal to the fair value (as determined by the Board of Directors) of such property or asset and the Guarantor or such Restricted Subsidiary shall apply or cause to be applied an amount in cash equal to the net proceeds of such sale to the retirement, within 180 days of the effective date of any such arrangement, of Indebtedness of the Guarantor or any Restricted Subsidiary; provided, however, that in addition to the transactions permitted pursuant to the foregoing clauses (i) and (ii), the Guarantor or any Restricted Subsidiary may enter into a Sale/Leaseback Transaction as long as the sum of (x) the Attributable Debt with respect to such Sale/Leaseback Transaction and all other Sale/Leaseback Transactions entered into pursuant to this proviso plus (y) the amount of outstanding Indebtedness secured by Liens Incurred pursuant to the final proviso to Section 3.5 does not exceed 15% of Consolidated Net Tangible Assets as determined based on the consolidated balance sheet of the Guarantor as of the end of the most recent fiscal quarter for which financial statements are available; and provided, further, that a Restricted Subsidiary may enter into a Sale/Leaseback Transaction with respect to property or assets owned by such Restricted Subsidiary, the proceeds of which are used to explore, drill, develop, construct, purchase, repair, improve or add to property or assets of any Restricted Subsidiary, or to repay (within 365 days of the commencement of full commercial operation of any such property) Indebtedness Incurred to explore, drill, develop, construct, purchase, repair, improve or add to property or assets of any Restricted Subsidiary. Section 3.5. Subject to Section 4, the Guarantor shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, incur any Lien on any of its properties or assets (including Capital Stock), whether owned at the date hereof or thereafter acquired, in each case to secure Indebtedness of the Guarantor or any 12 15 Restricted Subsidiary, other than (a)(1) Liens incurred by the Guarantor or any Restricted Subsidiary securing Indebtedness Incurred by the Guarantor or such Restricted Subsidiary, as the case may be, to finance the exploration, drilling, development, construction or purchase of or by, or repairs, improvements or additions to, property or assets of the Guarantor or such Restricted Subsidiary, as the case may be, which Liens may include Liens on the Capital Stock of such Restricted Subsidiary or (2) Liens incurred by any Restricted Subsidiary that does not own, directly or indirectly, at the time of such original incurrence of such Lien under this clause (2) any operating properties or assets, securing Indebtedness Incurred to finance the exploration, drilling, development, construction or purchase of or by, or repairs, improvements or additions to, property or assets of any Restricted Subsidiary that does not, directly or indirectly, own any operating properties or assets at the time of such original incurrence of such Lien, which Liens may include Liens on the Capital Stock of one or more Restricted Subsidiaries that do not, directly or indirectly, own any operating properties or assets at the time of such original incurrence of such Lien, provided, however, that the Indebtedness secured by any such Lien may not be issued more than 365 days after the later of the exploration, drilling, development, completion of construction, purchase, repair, improvement, addition or commencement of full commercial operation of the property or assets being so financed; (b) Liens existing on the date hereof (other than Liens relating to Indebtedness or other obligations being repaid or Liens that are otherwise extinguished with the proceeds of the offering of the Certificates); (c) Liens on property, assets or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that any such Lien may not extend to any other property or assets owned by the Guarantor or any Restricted Subsidiary; (d) Liens on property or assets at the time the Guarantor or a Subsidiary acquires the property or asset, including any acquisition by means of a merger or consolidation with or into the Guarantor or a Subsidiary; provided, however, that such Liens are not incurred in connection with, or in contemplation of, such merger or consolidation; and provided, further, that the Lien may not extend to any other property or asset owned by the Guarantor or any Restricted Subsidiary; (e) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Guarantor or a Restricted Subsidiary or of the Guarantor owing to a Subsidiary; (f) Liens incurred on assets that are the subject of a Capitalized Lease Obligation to which the Guarantor or a Subsidiary is a party, which shall include, Liens on the stock or other ownership interest in one or more Restricted Subsidiaries leasing such assets; (g) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (a), (b), (c), (d) and (f), provided, however, that (x) such new Lien shall be limited to all or part of the same property or assets that secured the original Lien (plus repairs, improvements or additions to such property or assets and Liens on the stock or other ownership interest in one or more Restricted Subsidiaries beneficially owning such property or assets) and (y) the amount of the Indebtedness secured by such Lien at such time (or, if the amount that may be realized in respect of such Lien is limited, by contract or otherwise, such limited lesser amount) is not increased (other than by an amount necessary to pay fees and expenses, including premiums, related to the refinancing, refunding, extension, renewal or replacement of such Indebtedness); and (h) Liens by which the Obligations (Tiverton) are 13 16 secured equally and ratably with other Indebtedness pursuant to this Section 3.5; in any such case without effectively providing that the Obligations (Tiverton) shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured; provided, however, that the Guarantor or a Restricted Subsidiary may Incur other Liens to secure outstanding Indebtedness as long as the sum of (x) the lesser of (A) the amount of outstanding Indebtedness secured by Liens Incurred pursuant to this proviso (or, if the amount that may be realized in respect of such Lien is limited, by contract or otherwise, such limited lesser amount) and (B) the fair value (as determined by the Board of Directors) of the property securing such item of Indebtedness, plus (y) the Attributable Debt with respect to all Sale/Leaseback Transactions entered into pursuant to the first proviso to Section 3.4 does not exceed 15% of Consolidated Net Tangible Assets as determined based on the Consolidated balance sheet of the Guarantor as of the end of the most recent fiscal quarter for which financial statements are available. Section 3.6. (a) The Guarantor covenants and agrees that it shall not consolidate or merge with or into any other Person, or sell, assign, convey, lease, transfer or otherwise dispose of, all or substantially all of its properties or assets to any Person or Persons in one or a series of transactions, unless immediately after giving effect to such transaction, (i) no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; (ii) either (A) the Guarantor shall be the continuing Person, or (B) the Person (if other than the Guarantor) formed by such consolidation or into which the Guarantor is merged or to which the properties and assets of the Guarantor are sold, assigned, conveyed, transferred, disposed of or leased as aforesaid shall be an entity organized and existing under the laws of the United States or any State thereof or the District of Columbia and shall execute and deliver to the Owner Participant, the Owner Lessor and, so long as the Lien of the Collateral Trust Indenture shall not have been terminated or discharged, the Indenture Trustee and the Pass Through Trustee, a Guarantor's Assignment and Assumption Agreement; and (iii) each of the Owner Participant, the Owner Lessor and, so long as the Lien of the Collateral Trust Indenture shall not have been terminated or discharged, the Indenture Trustee and the Pass Through Trustee shall have received an Officer's Certificate of the Guarantor, the surviving entity or the transferee, as the case may be, in form and substance reasonably satisfactory to each of such parties, stating that the proposed merger, consolidation, assignment, conveyance, transfer, disposition, lease or sale, and the Guarantor Assignment and Assumption Agreement complies with the terms of this Section 3(a) and, as to legal matters, an Opinion of Counsel; and (iv) In addition to the conditions set forth in clauses (i) through (iii) above, the Guarantor, subject to Section 4, will not consummate any such 14 17 consolidation, merger or sale of all or substantially all of its properties or assets unless the long-term unsecured debt of the resulting, surviving or succeeding entity shall have a credit rating assigned by the Rating Agencies that is not less than the lower of (x) the credit rating of the long-term unsecured debt of the Guarantor assigned by the Rating Agencies immediately prior to such transaction and (y) a credit rating of the long-term unsecured debt of the resulting, surviving or succeeding entity assigned by the Rating Agencies that is Investment Grade; provided however, the foregoing credit rating condition set forth in this paragraph may be waived by the Owner Participant in its sole discretion, and provided further, that if such credit rating condition is not otherwise satisfied, or waived by the Owner Participant, the Guarantor, the surviving entity or the transferee, as the case may be, may provide (and maintain in accordance with the provisions of Section 5.46(vi)(b) through (k) of the Participation Agreement (with appropriate conforming changes)) in the alternative, either (A) a Qualifying Letter of Credit from a Qualifying Letter of Credit Bank with at least an A rating from S&P and A2 rating from Moody's covering the Equity Portion of Termination Value from time to time throughout the Lease Term, or (B) if the long-term unsecured debt of the surviving entity or the transferee, as the case may be, has a credit rating assigned by the Rating Agencies at least equal to that of Calpine at Closing, a Qualifying Letter of Credit from a Qualifying Letter of Credit Bank with at least an A rating from S&P and A2 from Moody's covering fifty percent (50%) of the Equity Portion of Termination Value from time to time throughout the Lease Term or (C) alternative or additional credit support arrangements which result in the satisfaction of the rating condition in either clause (x) or clause (y) above, provided that such arrangements contemplated in this sub-clause (C) are satisfactory to the Owner Participant and result in the satisfaction of such rating condition. (b) Upon the consummation of such transaction described in Section 3.6(a), the resulting, surviving or succeeding entity, if other than the Guarantor, shall succeed to, and be substituted for, and may exercise every right and power and shall perform every obligation of, the Guarantor under this Guaranty and each other Calpine Document, and from and after the effective date and time of the consummation of such transfer, the Guarantor shall be released from all obligations accruing hereunder other than those accruing prior to such effective date and time. Section 3.7. The Guarantor shall, together with each payment it makes hereunder, provide a written notice to each Beneficiary or Beneficiaries which are the intended recipients of such payment of the amount payable to each such Beneficiary and the Tiverton Operative Document(s) with respect to which such payment is being made. SECTION 4. BENEFICIARIES; TERMINATION OF CERTAIN COVENANTS The Owner Participant, the Owner Lessor, the Trust Company (but only to the extent indemnified under the Participation Agreement) and, so long as the Lien of the Collateral Trust Indenture has not been terminated or discharged, the Indenture Trustee and the Lease Indenture Company, and (but only to the extent expressly referred to 15 18 herein, and with respect to Section 3.2(a) hereof and with respect to the obligations of the Tiverton Lessee under the Participation Agreement) the Pass Through Trustee (for the benefit of the Certificateholders) and the Pass Through Company, in each case, together with their respective permitted successors and assigns (and with respect to clause (ii) below, the other related Persons referred to therein), are each beneficiaries of this Guaranty (each a "Beneficiary" or, together, the "Beneficiaries"); provided that, notwithstanding the foregoing or any other provision of this Guaranty, (i) the Owner Participant shall be the sole and exclusive beneficiary of, and shall have the sole right to enforce, (A) clause (iv) of Section 3.6(a) hereof, (B) clause (4) of Section 2.1(a) hereof to the extent relating to the Tiverton Lessee's indemnity obligation under the Tax Indemnity Agreement, (ii) to the extent that the Tiverton Lessee is obligated to indemnify a particular Beneficiary (or any Affiliate, agent director, officer, or employee thereof) in accordance with Section 9 of the Participation Agreement, then such Beneficiary (or such Affiliate, agent, director, officer or employee) shall be the sole and exclusive beneficiary of, and shall have the sole right to enforce, the Guarantor's guaranty of, and agreement with respect to, such indemnification obligation hereunder, (iii) the Owner Lessor shall be the sole and exclusive beneficiary of, and shall have the sole right to enforce clause (B) of Section 2.1(c) hereof and the fourth sentence of Section 2.1(b) hereof, and (iv) the Indenture Trustee, the Lease Indenture Company, the Pass Through Trustee and the Pass Through Company shall be the sole and exclusive beneficiaries of the provisions of Section 3.4 and Section 3.5 hereof; provided however, with respect to this clause (iii), once the Certificates shall have been paid in full, the covenants set forth in Section 3.4 and Section 3.5 hereof shall, subject to the immediately following sentence, immediately and without any further action terminate and be of no further force or effect. Any amendment, waiver or modification of or supplement to Section 3.4 or Section 3.5 which is consented to by the Indenture Trustee shall be binding upon the Owner Lessor and the Owner Participant. Notwithstanding the foregoing or anything herein or in any of the Tiverton Operative Documents to the contrary, if the Owner Lessor shall have issued additional Lease Debt at the request of the Tiverton Lessee in accordance with Section 11 of the Participation Agreement prior to, simultaneously with, or after payment in full of the Certificates and such new Lease Debt is outstanding on or after the date the Certificates are paid in full, the covenants set forth in Section 3.4 and Section 3.5 shall, to the extent required by the terms of such new Lease Debt, remain in effect or thereafter become effective if not then in effect, but shall be for the sole and exclusive benefit of, and enforceable solely by, the holder of such new Lease Debt. Upon repayment of such new Lease Debt, or compliance with the terms thereof, the covenants set forth in Section 3.4 and Section 3.5 shall immediately and without further action terminate and be of no further force and effect. Notwithstanding any of the preceding provisions, a breach of Sections 3.4 or 3.5 under this Guaranty at such time as such breach shall have become an "Event of Default" under Section 7.1 shall constitute a Lease Event of Default under the circumstances provided in, and to the extent set forth in, the Tiverton Facility Lease. SECTION 5. BENEFICIARIES' RIGHTS Each Beneficiary may at any time and from time to time without the consent of, or notice to the Guarantor, without incurring responsibility to the Guarantor 16 19 and without impairing or releasing the obligations of the Guarantor hereunder, upon or without any terms or conditions and in whole or in part: (a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew or alter, any of the Obligations (Tiverton) due to it, any security therefor, or any liability incurred directly or indirectly in respect thereof, and, subject to clause (d) below, the guaranty and agreement herein made shall apply to the Obligations (Tiverton) due to it as so changed, extended, renewed or altered; (b) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Obligations (Tiverton) or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof due to it, and/or any offset thereagainst due to it; (c) exercise or refrain from exercising any rights against the Tiverton Lessee or others or otherwise act or refrain from acting; (d) settle or compromise any of the Obligations (Tiverton) due to it, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Tiverton Lessee to its creditors other than the Guarantor; provided that any settlement or compromise with respect to, or other reduction (by operation of law or negotiation) of, any of the Obligations (Tiverton) (or amounts underlying such Obligations (Tiverton)) due to it (whether occurring before or after the occurrence of a Lease Event of Default) shall not alter the amount of the original Obligations (Tiverton) due to it guaranteed hereby and the Guarantor acknowledges and agrees that its obligations hereunder shall be for the full amount of the Obligations (Tiverton) due to it without giving effect to any such settlement, compromise or other reduction; (e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Tiverton Lessee to such Beneficiary regardless of what liabilities or liabilities of the Tiverton Lessee remain unpaid; (f) consent to or waive any breach of, or any act, omission or default under, the Participation Agreement or the Tiverton Facility Lease, or otherwise amend, modify or supplement the Participation Agreement or the Tiverton Facility Lease or any of such other instruments or agreements; and/or (g) act or fail to act in any manner referred to in this Guaranty which may deprive the Guarantor of its right to subrogation against the Tiverton Lessee to recover full indemnity for any payments made pursuant to this Guaranty. Anything herein to the contrary notwithstanding, any exercise of rights or remedies by any Beneficiary hereunder or under any other Tiverton Operative Document, or the failure or any Beneficiary to exercise any rights or remedies hereunder in accordance with the provisions hereof or under any other Tiverton Operative Document, shall not in 17 20 any way adversely affect the ability of any other Beneficiary to exercise its rights or remedies hereunder. SECTION 6. SURVIVAL OF GUARANTY AND PAYMENT AGREEMENT (TIVERTON) Notwithstanding anything to the contrary herein, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any of the amounts paid to any of the Beneficiaries, in whole or in part, is required to be repaid upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of the Guarantor or the Tiverton Lessee or any other Person, or as a result of the appointment of a custodian, interviewer, receiver, trustee, or other officer with similar powers with respect to the Guarantor or the Tiverton Lessee or any other Person or any substantial part of the property of the Guarantor or the Tiverton Lessee or such other Person, all as if such payments had not been made. SECTION 7. DEFAULTS; REMEDIES; SUBROGATION Section 7.1. Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity): (a) the Guarantor or the Tiverton Lessee under the Tiverton Facility Lease shall fail to make any payment with respect to Periodic Rent or Termination Value (including the Equity Portion of Termination Value or Debt Portion of Termination Value) when due and payable under such Tiverton Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or (b) the Guarantor or the Tiverton Lessee shall fail to make any other amount payable under any Tiverton Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the Tiverton Lessee and the Guarantor of written notice of such failure by the Tiverton Lessee and/or the Guarantor, as applicable; (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty. (d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the Tiverton Lessee under any of the Tiverton Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through 18 21 Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof; (e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations (Tiverton)) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default; (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case; (ii) consents to the entry of an order for relief against it in an involuntary case; (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property; (iv) makes a general assignment for the benefit of its creditors; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency; (g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of 19 22 the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; (h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the Tiverton Lessee under any Tiverton Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the Tiverton Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the Tiverton Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Tiverton Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing. Section 7.2. Remedies. Subject to the last paragraph of Section 7.1, each Beneficiary shall be entitled to (a) all rights and remedies to which it may be entitled hereunder or at law, in equity or by statute and may proceed by appropriate court action to enforce the terms hereof and to recover damages for the breach hereof. Each and every remedy of the Beneficiaries shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy now or hereafter existing at law or in equity. At the option of each Beneficiary and upon notice to the Guarantor, the Guarantor may be joined in any action or proceeding commenced by such Beneficiary against the Tiverton Lessee in respect of any Obligations (Tiverton) and recovery may be had against the Guarantor in such action or proceeding or in any independent action or proceeding against the Guarantor, without any requirement such Beneficiary first assert, prosecute or exhaust any remedy or claim against the Tiverton Lessee. Notwithstanding any of the foregoing, if an Event of Default specified in clause (e) or (f) of Section 7.1 with respect to the Guarantor occurs, all monetary Obligations (Tiverton) shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee. Section 7.3. Subrogation. The Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or thereunder or otherwise, until all of the Obligations (Tiverton) and all other obligations of the Tiverton Lessee and the Guarantor owing to any of the Beneficiaries (or any other party) under the Tiverton Operative Documents shall have been paid in full. 20 23 If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when all of the Obligations (Tiverton) and such other obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Beneficiary to whom such Obligation (Tiverton) or other obligation is payable and shall forthwith be paid to such Beneficiary to be credited and applied to such Obligation (Tiverton) or other obligation, whether matured or unmatured, in accordance with the terms of the Tiverton Operative Document under which such Obligation (Tiverton) or other obligation arose. If (i) the Guarantor shall make payment to any Beneficiary of all or any part of the Obligations (Tiverton) or other obligations and (ii) all the Obligations (Tiverton) and such other obligations shall be paid and performed in full, such Beneficiary will, at the Guarantor's request and expense, execute and deliver to the Guarantor appropriate documents, without recourse, subject to Section 6 hereof, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations (Tiverton) and such other obligations resulting from such payment by the Guarantor. Section 7.4. Waiver of Demands, Notices, Etc. (a) Without limiting the last sentence of Section 7.1, the Guarantor hereby unconditionally waives (i) notice of any of the matters referred to in the second sentence of Section 2.3 hereof; (ii) all notices which may be required by statute, rule of law or otherwise, now or hereafter in effect, to preserve any rights against the Guarantor hereunder, including, without limitation, any demand, proof or notice of non-payment of any Obligation (Tiverton); (iii) any right to the enforcement, assertion or exercise of any right, remedy, power or privilege under or in respect of the Tiverton Facility Lease (or under or in respect of any other agreement including any Tiverton Operative Document); (iv) notice of acceptance of this Guaranty, demand, protest, presentment, notice of default and any requirement of diligence; (v) any requirement to exhaust any remedies or to mitigate any damages resulting from default by the Tiverton Lessee or any Person under the Tiverton Facility Lease (or under any other agreement including any Tiverton Operative Document); and (vi) any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or which might otherwise limit recourse against the Guarantor, other than satisfaction in full of the Obligations (Tiverton). (b) This Guaranty is a continuing one and all of the Obligations (Tiverton) shall be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of any Beneficiary in exercising any right, power or privilege hereunder and no course of dealing among the Guarantor, any Beneficiary or the Tiverton Lessee shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights, powers and remedies herein expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Beneficiary would otherwise have. No notice to or demand on the Guarantor in any case shall entitle the Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Beneficiary to any other or further action in any circumstances without notice or demand. 21 24 (c) If a claim is ever made upon any Beneficiary for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations (Tiverton) and any of the Beneficiaries repays all or part of said amount by reason of (a) any judgment, decree or order of any court or administrative body having jurisdiction over such Beneficiary or any of its property or (b) any settlement or compromise of any such claim effected by such Beneficiary with any such claimant (including the Tiverton Lessee), then and in such event the Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon it, notwithstanding any revocation hereof or the cancellation of the Tiverton Facility Lease or other instrument evidencing any liability of the Tiverton Lessee, and the Guarantor shall be and remain liable to the aforesaid Beneficiaries hereunder for the amount so repaid by or recovered from such Beneficiary to the same extent as if such amount had never originally been received by any such Beneficiary. Section 7.5. Costs and Expenses. The Guarantor agrees to pay on an After-Tax Basis any and all reasonable costs and expenses (including reasonable legal fees) incurred by any Beneficiary in enforcing its rights under this Guaranty. Section 7.6. Survival of Remedies and Subrogation Rights. The provisions of this Section 7 shall survive the term of this Guaranty and the payment in full of the Obligations (Tiverton) and the termination of the Tiverton Operative Documents. SECTION 8. MISCELLANEOUS Section 8.1. Amendments and Waivers. No term, covenant, agreement or condition of this Guaranty may be terminated, amended or compliance therewith waived (either generally or in a particular instance, retroactively or prospectively) except by an instrument or instruments in writing executed by the Guarantor and consented to by the Beneficiaries. Section 8.2. Notices. Unless otherwise expressly specified or permitted by the terms hereof, all communications and notices provided for herein shall be in writing or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon personal delivery thereof, including, without limitation, by overnight mail or courier service, (b) in the case of notice by United States mail, certified or registered, postage prepaid, return receipt requested, upon receipt thereof, or (c) in the case of notice by such a telecommunications device, upon transmission thereof, provided such transmission is promptly confirmed by either of the methods set forth in clauses (a) or (b) above, in each case addressed to the Guarantor hereto at its address set forth below or at such other address as such party may from time to time designate by written notice: Calpine Corporation 50 West San Fernando Street, 5th Floor San Jose, CA 95113 22 25 Facsimile No.: (408) 975-4648 Telephone No.: (408) 995-5115 Attention: General Counsel Section 8.3. Survival. Except as expressly set forth herein, the warranties and covenants made by the Guarantor shall not survive the expiration or termination of this Guaranty. Section 8.4. Assignment and Assumption. (a) Except as provided in clause (b) below, this Guaranty may not be assigned by the Guarantor to, or assumed by, any successor to or assign of the Guarantor (it being understood and agreed that a consolidation with or merger of the Guarantor into, or the sale of all or substantially all of its assets to, another Person in accordance with Section 3.6 shall not be deemed such an assignment or assumption for the purposes hereof) without the prior written consent of the Beneficiaries, nor may the Guarantor transfer or assign a majority (or more) of (i) the Ownership Interest in the Tiverton Lessee or (ii) the Ownership Interest in the Rumford Lessee. (b) Notwithstanding any of the foregoing in this Section 8.4, the Guarantor may transfer a majority (or more) of its Ownership Interest in the Tiverton Lessee to a single third party, provided that the Guarantor assigns this Guaranty to such third party (whereupon the Guarantor shall be released from all obligations under this Guaranty in connection with such transfer) upon satisfaction of the following conditions: (i) unless the Owner Participant shall have consented to such assignment, such transferee, or a party which unconditionally guarantees such transferee's obligations under the Operative Documents assigned to such transferee (A) shall have significant experience owning or operating gas-fired electric generating facilities in the United Sates and (B) shall have a tangible net worth of at least $1 billion after giving effect to such transfer; (ii) the requirements set forth in Section 3.3(i), (iii), (iv) and (v) of this Guaranty have been satisfied and, immediately after giving effect to such transfer, the transferee shall own (A) at least a majority of the Ownership Interest of the Tiverton Lessee and (B) at least a majority of the Ownership Interest of the Rumford Lessee; (iii) such transfer occurs (i) subsequent to the tenth year of the Facility Lease Term of the Tiverton Lessee and the Rumford Lessee and (ii) when the aggregate principal amount of the Tiverton Notes is less than $50 million and the aggregate principal amount of the Rumford Notes is less than $50 million; (iv) neither the transferee nor any Affiliate of the transferee shall be involved in any material litigation with the Owner Participant; (v) the Rating Agencies shall have confirmed that after giving effect to such transfer, the Certificates (if then outstanding) and the transferee (or a party 23 26 which guarantees such transferee's obligations under the Operative Documents assigned to such transferee) shall be rated at least Investment Grade (and not be on negative credit watch) by the Rating Agencies; (vi) all the obligations of the Tiverton Lessee under the Tiverton Operative Documents shall remain in full force and effect, the transferee shall assume all the obligations of the Guarantor under the Operative Documents pursuant to the Guarantor's Assignment and Assumption Agreement and such Operative Documents as so assumed shall remain in full force and effect, and any guaranty of such transferee's obligations pursuant to this Section 8.4 shall be in a form satisfactory to the Owner Participant (it being acknowledged and agreed that any such guaranty which shall be in form and substance substantially similar to this Guaranty shall be deemed to be satisfactory to the Owner Participant); and (vii) the Owner Participant, the Owner Lessor and, so long as the Lien on the Collateral Trust Indenture shall not have been terminated or discharged, the Indenture Trustee and the Pass Through Trustee shall have received an Opinion of Counsel as to the satisfaction of the conditions set forth in clause (vi) of this Section 8.4(b). Section 8.5. Governing Law. This Guaranty shall be in all respects governed by and construed in accordance with the laws of the State of New York, including all matters of construction, validity and performance (without giving effect to the conflicts of laws provisions, other than New York General Obligations Law Section 5-1401). Section 8.6. Severability. Any provision of this Guaranty that 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. Section 8.7. Headings. The headings of the sections of this Guaranty are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof. Section 8.8. Further Assurances. The Guarantor will promptly and duly execute and deliver such further documents as may be reasonably requested by the Owner Lessor, all as may be reasonably necessary to affirm the Guarantor's obligations under this Guaranty. Section 8.9. Effectiveness of Guaranty. This Guaranty has been dated as of the date first above written for convenience only. This Guaranty shall be effective on the date of execution and delivery by the Guarantor. 24 27 Section 8.10. Acknowledgment by the Guarantor. The Guarantor acknowledges that an executed (or conformed) copy of the Participation Agreement, the Tiverton Facility Lease and the other Operative Documents have been made available to its principal executive officers and such officers are familiar with the contents thereof. Section 8.11. Tolling. Any acknowledgement or new promise, whether by payment of principal or interest or otherwise and whether by the Tiverton Lessee or others (including the Guarantor), with respect to any of the Obligations (Tiverton) shall, if the statute of limitations in favor of the Guarantor against any Beneficiary shall have commenced to run, toll the running of such statute of limitations, and if the period of such statute of limitations shall have expired, prevent the operation of such statute of limitations. Section 8.12. Consent to Jurisdiction; Waiver of Trail by Jury; Process Agent. (a) The Guarantor (i) hereby irrevocably submits to the nonexclusive jurisdiction of the Supreme Court of the State of New York, New York County (without prejudice to the right of the Guarantor to remove to the United States District Court for the Southern District of New York) and to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York for the purposes of any suit, action or other proceeding arising out of this Guaranty, the Tiverton Facility Lease, the other Tiverton Operative Documents, or the subject matter hereof or thereof or any of the transactions contemplated hereby or thereby brought by any of the Beneficiaries hereunder or their successors or assigns; (ii) hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court, or in such federal court; and (iii) to the extent permitted by Applicable Law, hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding any claim that it is not personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Guaranty, the other Tiverton Operative Documents, or the subject matter hereof or thereof may not be enforced in or by such court. (b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY IRREVOCABLY WAIVES THE RIGHT TO DEMAND A TRIAL BY JURY, IN ANY SUCH SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS GUARANTY, THE OTHER TIVERTON OPERATIVE DOCUMENTS, OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY BROUGHT BY ANY OF THE BENEFICIARIES HEREUNDER OR THEIR SUCCESSORS OR ASSIGNS. (c) By the execution and delivery of this Guaranty, the Guarantor designates, appoints and empowers National Registered Agent, Inc., 440 9th Avenue, 5th Floor, New York, NY 10001 as its authorized agent to receive for and on its behalf service of any summons, complaint or other legal process in any such action, suit or 25 28 proceeding in the State of New York for so long as any obligation of the Guarantor shall remain outstanding hereunder or under any of the other Tiverton Operative Documents. The Guarantor shall grant an irrevocable power of attorney to National Registered Agent, Inc. in respect of such appointment and shall maintain such power of attorney in full force and effect for so long as any obligation of the Guarantor shall remain outstanding hereunder or under any of the Tiverton Operative Documents. Section 8.13. Agreement for Benefit of Parties Hereto. Nothing in this Guaranty, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto and their respective successors and assigns, any right, remedy or claim under or by reason of this Guaranty or any covenant, condition or stipulation hereof; and the covenants, stipulations and agreements contained in this Guaranty are and shall be for the sole and exclusive benefit of the parties hereto and their respective successors and assigns. The Guarantor acknowledges that certain of the rights of the Owner Lessor hereunder have been or shall be assigned to and may be enforced by the Indenture Trustee pursuant to the terms of the Collateral Trust Indenture (excluding, among other things, rights to Excepted Payments), the Guarantor hereby consents to such assignment and the Guarantor agrees to render performance of such assigned obligations directly to the Indenture Trustee (as assignee of the Owner Lessor). The Guarantor agrees to make all payments which have been so assigned owing to the Owner Lessor under this Guaranty directly to the account of the Indenture Trustee to be specified to the Guarantor in writing, or to such other account specified in writing from time to time by the Indenture Trustee. Section 8.14. Termination of Guaranty. Upon the full payment and satisfaction of the Obligations (Tiverton) and all of the Guarantor's obligations hereunder, this Guaranty shall terminate and shall be of no further effect. Nevertheless, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time, any payment, or any part thereof, of any of the Obligations (Tiverton) is rescinded or must otherwise be returned by any Beneficiary upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Tiverton Lessee or otherwise, all as though such payment had not been made. Section 8.15. Additional Obligations (Tiverton). Upon the assumption by the Tiverton Lessee of the Tiverton Notes in connection with a termination of the Tiverton Lease, as permitted therein, the obligation of the Tiverton Lessee to pay principal of, and Make-Whole Amount if any, and interest on the Tiverton Notes, and amounts payable by it to the Indenture Trustee under the Collateral Trust Indenture, shall thereupon become Obligations (Tiverton) for all purposes of this Guaranty, and the Guarantor shall therefor execute and deliver to the Indenture Trustee such further guaranties, instruments and documents as the Indenture Trustee may reasonably request in order to more fully effectuate the Guarantor's unconditional guaranty of such additional Obligations (Tiverton). Section 8.16. Miscellaneous Provisions. 26 29 (a) The provisions of Section 2 of this Guaranty are subject to the provisions of Section 14.25 of the Participation Agreement. (b) When determining the amount of unpaid Equity Portion of Termination Value to be paid by the Guarantor under Section 2 of this Guaranty, the correct amount thereof shall be the applicable amount of Equity Portion of Termination Value (as set forth in Exhibit A hereto) for the date of the demand for payment or if the amount of Equity Portion of Termination Value is not set forth for such date on Exhibit A hereto, the Equity Portion of Termination Value shall be determined by interpolation between the values set forth on Exhibit A for the date next preceding the date of the demand and the date next succeeding the date of the demand on a straight-line basis assuming thirty day months. (c) The payment obligations of the Guarantor hereunder shall rank pari passu with all other senior unsecured indebtedness of the Guarantor for borrowed money. [No more text on this page] 27 30 IN WITNESS WHEREOF, the parties have caused this Guaranty to be duly executed and delivered on the day and year first above written. CALPINE CORPORATION, as Guarantor By: /s/ ERIC PRYOR ------------------------------------- Name: Eric Pryor Title: Authorized Agent PMCC CALPINE NEW ENGLAND INVESTMENT LLC, a Delaware limited liability company By: PMCC Calpine NEIM LLC, a Delaware limited liability company, its managing member By: General Foods Credit Corporation, a Delaware corporation, its managing member By: /s/ ILLEGIBLE ------------------------------------- Name: Title: Date: PMCC CALPINE NEIM LLC By: General Foods Credit Corporation, its managing member By: /s/ ILLEGIBLE ------------------------------------- Name: Title: Date: 28 31 STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, N.A., not in its individual capacity but solely as Indenture Trustee By: /s/ MARK HENSON ------------------------------------- Name: Mark Henson Title: Assistant Vice President STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, N.A., not in its individual capacity but solely as Pass Through Trustee By: /s/ MARK HENSON ------------------------------------- Name: Mark Henson Title: Assistant Vice President 29 32 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE -------- ----------------- Jan 15 2001 22.86727903 Feb 15 2001 23.16421293 Mar 15 2001 23.46383134 Apr 15 2001 23.10615619 May 15 2001 23.36914584 Jun 15 2001 23.65646772 Jul 15 2001 23.91345533 Aug 15 2001 24.1947209 Sep 15 2001 24.47852933 Oct 15 2001 24.73197173 Nov 15 2001 25.00966004 Dec 15 2001 25.28985886 Jan 15 2002 25.53965903 Feb 15 2002 25.81367217 Mar 15 2002 26.09016261 Apr 15 2002 26.36915273 May 15 2002 26.62548058 Jun 15 2002 26.90091551 Jul 15 2002 27.15365603 Aug 15 2002 27.42547124 Sep 15 2002 27.69974388 Oct 15 2002 27.95131156 Nov 15 2002 28.22194334 Dec 15 2002 28.49502185 Jan 15 2003 28.74538461 Feb 15 2003 29.01480057 Mar 15 2003 29.28665226 Apr 15 2003 29.56096171 May 15 2003 29.8144664 Jun 15 2003 30.08578613 Jul 15 2003 30.33627408 Aug 15 2003 30.60454978 Sep 15 2003 30.87525091 Oct 15 2003 31.12511466 Nov 15 2003 31.39276053 Dec 15 2003 31.66282613 Jan 15 2004 31.91204861 Feb 15 2004 32.1790474 Mar 15 2004 32.44846007 Apr 15 2004 32.72030845 May 15 2004 32.97310042 Jun 15 2004 33.24252057 Jul 15 2004 33.49286238 Aug 15 2004 33.75981022
33 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- Sep 15 2004 34.02917147 Oct 15 2004 34.27945384 Nov 15 2004 34.54634171 Dec 15 2004 34.81564245 Jan 15 2005 35.06586376 Feb 15 2005 35.33269001 Mar 15 2005 35.60192859 Apr 15 2005 35.87360129 May 15 2005 36.12756406 Jun 15 2005 36.3972669 Jul 15 2005 36.64924199 Aug 15 2005 34.13337148 Sep 15 2005 34.36494529 Oct 15 2005 34.57844664 Nov 15 2005 34.80732225 Dec 15 2005 35.03826708 Jan 15 2006 35.25113377 Feb 15 2006 35.40632527 Mar 15 2006 35.63561248 Apr 15 2006 35.86697263 May 15 2006 36.0814393 Jun 15 2006 36.31050169 Jul 15 2006 36.52264982 Aug 15 2006 36.49798373 Sep 15 2006 36.72327543 Oct 15 2006 36.93161879 Nov 15 2006 37.1545025 Dec 15 2006 37.37940126 Jan 15 2007 37.58734812 Feb 15 2007 37.80983176 Mar 15 2007 38.03432682 Apr 15 2007 38.2608515 May 15 2007 38.47186527 Jun 15 2007 38.69649268 Jul 15 2007 38.90559204 Aug 15 2007 38.18178711 Sep 15 2007 38.39339011 Oct 15 2007 38.5893473 Nov 15 2007 38.79878201 Dec 15 2007 39.01011018 Jan 15 2008 39.20579005 Feb 15 2008 38.54841156 Mar 15 2008 38.74745863 Apr 15 2008 38.94830524
34 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- May 15 2008 39.13345615 Jun 15 2008 39.33195532 Jul 15 2008 39.51473756 Aug 15 2008 38.93009454 Sep 15 2008 39.11716566 Oct 15 2008 39.28841654 Nov 15 2008 39.47289001 Dec 15 2008 39.65903125 Jan 15 2009 39.82934386 Feb 15 2009 39.30833934 Mar 15 2009 39.48376974 Apr 15 2009 39.66078617 May 15 2009 39.82171299 Jun 15 2009 39.99588803 Jul 15 2009 40.15394777 Aug 15 2009 39.70416791 Sep 15 2009 39.86839875 Oct 15 2009 40.01642437 Nov 15 2009 40.17758158 Dec 15 2009 40.34019578 Jan 15 2010 40.48659015 Feb 15 2010 40.09199974 Mar 15 2010 40.24528052 Apr 15 2010 40.39994707 May 15 2010 40.542426 Jun 15 2010 40.69525033 Jul 15 2010 40.83587038 Aug 15 2010 40.49720557 Sep 15 2010 40.64273933 Oct 15 2010 40.77600289 Nov 15 2010 40.91952855 Dec 15 2010 41.0643518 Jan 15 2011 41.19689843 Feb 15 2011 40.89858604 Mar 15 2011 41.03657129 Apr 15 2011 41.17580403 May 15 2011 41.30928769 Jun 15 2011 41.44865005 Jul 15 2011 41.5822645 Aug 15 2011 41.31761384 Sep 15 2011 41.45277319 Oct 15 2011 41.58214662 Nov 15 2011 41.71736159 Dec 15 2011 41.85379902
35 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- Jan 15 2012 41.98446209 Feb 15 2012 41.7467369 Mar 15 2012 41.87930533 Apr 15 2012 42.01307228 May 15 2012 42.14316682 Jun 15 2012 42.27769203 Jul 15 2012 42.40855168 Aug 15 2012 42.19726689 Sep 15 2012 42.32898826 Oct 15 2012 42.45701873 Nov 15 2012 42.5894612 Dec 15 2012 42.72310106 Jan 15 2013 42.85306736 Feb 15 2013 42.66394861 Mar 15 2013 42.79507982 Apr 15 2013 42.92739655 May 15 2013 43.05697072 Jun 15 2013 43.19034222 Jul 15 2013 43.32098069 Aug 15 2013 43.15476649 Sep 15 2013 43.28626422 Oct 15 2013 43.41501199 Nov 15 2013 43.54754961 Dec 15 2013 43.68128547 Jan 15 2014 43.81229161 Feb 15 2014 43.6652604 Mar 15 2014 43.79739295 Apr 15 2014 43.93072009 May 15 2014 44.06235973 Jun 15 2014 44.19711808 Jul 15 2014 44.33020187 Aug 15 2014 44.20246009 Sep 15 2014 44.33625218 Oct 15 2014 44.46836097 Nov 15 2014 44.60359272 Dec 15 2014 44.74004706 Jan 15 2015 44.87484218 Feb 15 2015 44.76331529 Mar 15 2015 44.8990504 Apr 15 2015 45.03601266 May 15 2015 45.17244451 Jun 15 2015 45.31128892 Jul 15 2015 45.44961993 Aug 15 2015 45.35377511
36 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DATE TERMINATION VALUE ----------- ----------------- Sep 15 2015 45.49253219 Oct 15 2015 45.6307751 Nov 15 2015 45.77144693 Dec 15 2015 45.91339055 Jan 15 2016 46.05484878 Feb 15 2016 46.19876502 Mar 15 2016 46.34398238 Apr 15 2016 46.49051261 May 15 2016 46.63795681 Jun 15 2016 46.78700787 Jul 15 2016 46.93699569 Aug 15 2016 47.08853706 Sep 15 2016 47.24152443 Oct 15 2016 47.39548415 Nov 15 2016 47.55110963 Dec 15 2016 47.70814209 Jan 15 2017 47.86618347 Feb 15 2017 48.02592751 Mar 15 2017 48.18711577 Apr 15 2017 48.3497613 May 15 2017 48.51423139 Jun 15 2017 48.67995234 Jul 15 2017 48.84752565 Aug 15 2017 45.25639495 Sep 15 2017 45.3747099 Oct 15 2017 45.49444863 Nov 15 2017 45.61503382 Dec 15 2017 45.73670919 Jan 15 2018 45.85983871 Feb 15 2018 45.98384535 Mar 15 2018 46.1089731 Apr 15 2018 46.23523211 May 15 2018 46.36326247 Jun 15 2018 46.49203041 Jul 15 2018 46.62259238 Aug 15 2018 43.04798413 Sep 15 2018 43.12917845 Oct 15 2018 43.21173671 Nov 15 2018 43.29462144 Dec 15 2018 43.37825551 Jan 15 2019 43.46327558 Feb 15 2019 43.54864437 Mar 15 2019 43.63478497 Apr 15 2019 43.72170435
37 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- May 15 2019 43.81025006 Jun 15 2019 43.89903595 Jul 15 2019 43.98946505 Aug 15 2019 39.52431233 Sep 15 2019 39.5527346 Oct 15 2019 39.58225435 Nov 15 2019 39.61148063 Dec 15 2019 39.64097114 Jan 15 2020 39.67156879 Feb 15 2020 39.70188272 Mar 15 2020 39.73247071 Apr 15 2020 39.76333524 May 15 2020 39.80379041 Jun 15 2020 39.83840359 Jul 15 2020 39.88264131 Aug 15 2020 35.43622633 Sep 15 2020 35.43622633 Oct 15 2020 35.43622633 Nov 15 2020 35.43622633 Dec 15 2020 35.43622633 Jan 15 2021 35.43622633 Feb 15 2021 35.43622633 Mar 15 2021 35.43622633 Apr 15 2021 35.43622633 May 15 2021 35.43622633 Jun 15 2021 35.43622633 Jul 15 2021 35.43622633 Aug 15 2021 31.50180011 Sep 15 2021 31.5018001 Oct 15 2021 31.5018001 Nov 15 2021 31.5018001 Dec 15 2021 31.5018001 Jan 15 2022 31.5018001 Feb 15 2022 31.50180011 Mar 15 2022 31.50180011 Apr 15 2022 31.50180011 May 15 2022 31.50180011 Jun 15 2022 31.50180011 Jul 15 2022 31.50180011 Aug 15 2022 27.56737388 Sep 15 2022 27.56737388 Oct 15 2022 27.56737388 Nov 15 2022 27.56737388 Dec 15 2022 27.56737388
38 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ------------ ----------------- Jan 15 2023 27.56737388 Feb 15 2023 27.56737388 Mar 15 2023 27.56737388 Apr 15 2023 27.56737388 May 15 2023 27.56737388 Jun 15 2023 27.56737388 Jul 15 2023 27.56737388 Aug 15 2023 23.63294765 Sep 15 2023 23.63294765 Oct 15 2023 23.63294765 Nov 15 2023 23.63294765 Dec 15 2023 23.63294765 Jan 15 2024 23.63294765 Feb 15 2024 23.63294765 Mar 15 2024 23.63294765 Apr 15 2024 23.63294765 May 15 2024 23.63294765 Jun 15 2024 23.63294765 Jul 15 2024 23.63294765 Aug 15 2024 19.69852142 Sep 15 2024 19.69852142 Oct 15 2024 19.69852142 Nov 15 2024 19.69852142 Dec 15 2024 19.69852142 Jan 15 2025 19.69852142 Feb 15 2025 19.69852142 Mar 15 2025 19.69852142 Apr 15 2025 19.69852142 May 15 2025 19.69852142 Jun 15 2025 19.69852142 Jul 15 2025 19.69852142 Aug 15 2025 15.76409519 Sep 15 2025 15.76409519 Oct 15 2025 15.76409519 Nov 15 2025 15.76409519 Dec 15 2025 15.76409519 Jan 15 2026 15.76409519 Feb 15 2026 15.75863071 Mar 15 2026 15.75863071 Apr 15 2026 15.75863071 May 15 2026 15.75863071 Jun 15 2026 15.75863071 Jul 15 2026 15.75863071 Aug 15 2026 15.75316623
39 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- Sep 15 2026 15.75316623 Oct 15 2026 15.75316623 Nov 15 2026 15.75316623 Dec 15 2026 15.75316623 Jan 15 2027 15.75316623 Feb 15 2027 15.74770174 Mar 15 2027 15.74770174 Apr 15 2027 15.74770174 May 15 2027 15.74770174 Jun 15 2027 15.74770174 Jul 15 2027 15.74770174 Aug 15 2027 15.74223726 Sep 15 2027 15.74223726 Oct 15 2027 15.74223726 Nov 15 2027 15.74223726 Dec 15 2027 15.74223726 Jan 15 2028 15.74223726 Feb 15 2028 15.73677278 Mar 15 2028 15.73677278 Apr 15 2028 15.73677278 May 15 2028 15.73677278 Jun 15 2028 15.73677278 Jul 15 2028 15.73677278 Aug 15 2028 15.7313083 Sep 15 2028 15.7313083 Oct 15 2028 15.7313083 Nov 15 2028 15.7313083 Dec 15 2028 15.7313083 Jan 15 2029 15.7313083 Feb 15 2029 15.72584382 Mar 15 2029 15.72584382 Apr 15 2029 15.72584382 May 15 2029 15.72584382 Jun 15 2029 15.72584382 Jul 15 2029 15.72584382 Aug 15 2029 15.72037934 Sep 15 2029 15.72037934 Oct 15 2029 15.72037934 Nov 15 2029 15.72037934 Dec 15 2029 15.72037934 Jan 15 2030 15.72037934 Feb 15 2030 15.71491486 Mar 15 2030 15.71491486 Apr 15 2030 15.71491486 40 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE --------------- ----------------- May 15 2030 15.71491486 Jun 15 2030 15.71491486 Jul 15 2030 15.71491486 Aug 15 2030 15.70945038 Sep 15 2030 15.70945038 Oct 15 2030 15.70945038 Nov 15 2030 15.70945038 Dec 15 2030 15.70945038 Jan 15 2031 15.70945038 Feb 15 2031 15.7039859 Mar 15 2031 15.7039859 Apr 15 2031 15.7039859 May 15 2031 15.7039859 Jun 15 2031 15.7039859 Jul 15 2031 15.7039859 Aug 15 2031 15.69852142 Sep 15 2031 15.69852142 Oct 15 2031 15.69852142 Nov 15 2031 15.69852142 Dec 15 2031 15.69852142 Jan 15 2032 15.69852142 Feb 15 2032 15.69305694 Mar 15 2032 15.69305694 Apr 15 2032 15.69305694 May 15 2032 15.69305694 Jun 15 2032 15.69305694 Jul 15 2032 15.69305694 Aug 15 2032 15.68759245 Sep 15 2032 15.68759245 Oct 15 2032 15.70309329 Nov 15 2032 15.70840038 Dec 15 2032 15.71375544 Jan 15 2033 15.74005831 Feb 15 2033 15.74697125 Mar 15 2033 15.75961412 Apr 15 2033 15.77237129 May 15 2033 15.80753044 Jun 15 2033 15.8281497 Jul 15 2033 15.87124201 Aug 15 2033 15.89417135 Sep 15 2033 15.92297542 Oct 15 2033 15.97432654 Nov 15 2033 16.01128416 Dec 15 2033 16.0485759
41 EXHIBIT A EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ------------ ----------------- Jan 15 2034 16.10849143 Feb 15 2034 16.14839608 Mar 15 2034 16.19432894 Apr 15 2034 16.24067706 May 15 2034 16.31120946 Jun 15 2034 16.36653602 Jul 15 2034 16.44612804 Aug 15 2034 16.50490132 Sep 15 2034 16.5698734 Oct 15 2034 16.65919812 Nov 15 2034 16.73348691 Dec 15 2034 16.80844733 Jan 15 2035 16.9078507 Feb 15 2035 16.98661445 Mar 15 2035 17.07175772 Apr 15 2035 17.15767076 May 15 2035 17.26970174 Jun 15 2035 17.36585142 Jul 15 2035 17.48821159 Aug 15 2035 17.58908905 Sep 15 2035 17.69654595 Oct 15 2035 17.83031557 Nov 15 2035 17.94840042 Dec 15 2035 18.06755285 Jan 15 2036 18.21312374 Feb 15 2036 18.33742173 Mar 15 2036 18.46851093 Apr 15 2036 18.60078527 May 15 2036 18.83544727 Jun 15 2036 19.00476962 Jul 15 2036 19.27681453 Aug 15 2036 19.47816297 Sep 15 2036 19.68699918 Oct 15 2036 19.99891523 Nov 15 2036 20.24619004 Dec 15 2036 20.49570042 Dec 19 2036 20.00546448
42 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ------------ ----------------- Jan 15 2001 80.52000000 Feb 15 2001 81.12000000 Mar 15 2001 81.72000000 Apr 15 2001 82.32000000 May 15 2001 82.92000000 Jun 15 2001 83.52000000 Jul 15 2001 84.12000000 Aug 15 2001 80.60000000 Sep 15 2001 81.20000000 Oct 15 2001 81.80000000 Nov 15 2001 82.40000000 Dec 15 2001 83.00000000 Jan 15 2002 83.60000000 Feb 15 2002 80.60000000 Mar 15 2002 81.20000000 Apr 15 2002 81.80000000 May 15 2002 82.40000000 Jun 15 2002 83.00000000 Jul 15 2002 83.60000000 Aug 15 2002 80.60000000 Sep 15 2002 81.20000000 Oct 15 2002 81.80000000 Nov 15 2002 82.40000000 Dec 15 2002 83.00000000 Jan 15 2003 83.60000000 Feb 15 2003 80.60000000 Mar 15 2003 81.20000000 Apr 15 2003 81.80000000 May 15 2003 82.40000000 Jun 15 2003 83.00000000 Jul 15 2003 83.60000000 Aug 15 2003 80.60000000 Sep 15 2003 81.20000000 Oct 15 2003 81.80000000 Nov 15 2003 82.40000000 Dec 15 2003 83.00000000 Jan 15 2004 83.60000000 Feb 15 2004 80.60000000 Mar 15 2004 81.20000000 Apr 15 2004 81.80000000 May 15 2004 82.40000000 Jun 15 2004 83.00000000 Jul 15 2004 83.60000000 Aug 15 2004 80.06596995
43 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION DATE TERMINATION VALUE ----------- ----------------- Sep 15 2004 80.66199454 Oct 15 2004 81.25801913 Nov 15 2004 81.85404372 Dec 15 2004 82.45006831 Jan 15 2005 83.04609290 Feb 15 2005 80.06596995 Mar 15 2005 80.66199454 Apr 15 2005 81.25801913 May 15 2005 81.85404372 Jun 15 2005 82.45006831 Jul 15 2005 83.04609290 Aug 15 2005 80.06596995 Sep 15 2005 80.66199454 Oct 15 2005 81.25801913 Nov 15 2005 81.85404372 Dec 15 2005 82.45006831 Jan 15 2006 83.04609290 Feb 15 2006 80.06596995 Mar 15 2006 80.66199454 Apr 15 2006 81.25801913 May 15 2006 81.85404372 Jun 15 2006 82.45006831 Jul 15 2006 83.04609290 Aug 15 2006 77.67571749 Sep 15 2006 78.25394863 Oct 15 2006 78.83217978 Nov 15 2006 79.41041093 Dec 15 2006 79.98864208 Jan 15 2007 80.56687322 Feb 15 2007 77.67571749 Mar 15 2007 78.25394863 Apr 15 2007 78.83217978 May 15 2007 79.41041093 Jun 15 2007 79.98864208 Jul 15 2007 80.56687322 Aug 15 2007 75.67172842 Sep 15 2007 76.23504153 Oct 15 2007 76.79835464 Nov 15 2007 77.36166776 Dec 15 2007 77.92498087 Jan 15 2008 78.48829399 Feb 15 2008 74.09386230 Mar 15 2008 74.64542951 Apr 15 2008 75.19699672
44 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ----------- ----------------- May 15 2008 75.74856393 Jun 15 2008 76.30013115 Jul 15 2008 76.85169836 Aug 15 2008 74.09386230 Sep 15 2008 74.64542951 Oct 15 2008 75.19699672 Nov 15 2008 75.74856393 Dec 15 2008 76.30013115 Jan 15 2009 76.85169836 Feb 15 2009 72.04164536 Mar 15 2009 72.57793552 Apr 15 2009 73.11422568 May 15 2009 73.65051585 Jun 15 2009 74.18680601 Jul 15 2009 74.72309617 Aug 15 2009 72.04164536 Sep 15 2009 72.57793552 Oct 15 2009 73.11422568 Nov 15 2009 73.65051585 Dec 15 2009 74.18680601 Jan 15 2010 74.72309617 Feb 15 2010 32.40230109 Mar 15 2010 32.64350929 Apr 15 2010 32.88471749 May 15 2010 33.12592568 Jun 15 2010 33.36713388 Jul 15 2010 33.60834208 Aug 15 2010 32.40230109 Sep 15 2010 32.64350929 Oct 15 2010 32.88471749 Nov 15 2010 33.12592568 Dec 15 2010 33.36713388 Jan 15 2011 33.60834208 Feb 15 2011 21.32288415 Mar 15 2011 21.48161530 Apr 15 2011 21.64034645 May 15 2011 21.79907760 Jun 15 2011 21.95780874 Jul 15 2011 22.11653989 Aug 15 2011 21.32288415 Sep 15 2011 21.48161530 Oct 15 2011 21.64034645 Nov 15 2011 21.79907760 Dec 15 2011 21.95780874
45 EXHIBIT B EQUITY PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
EQUITY PORTION OF DATE TERMINATION VALUE ----------- ----------------- Jan 15 2012 22.11653989 Feb 15 2012 14.99049891 Mar 15 2012 15.10209071 Apr 15 2012 15.21368251 May 15 2012 15.32527432 Jun 15 2012 15.43686612 Jul 15 2012 15.54845792 Aug 15 2012 14.99049891 Sep 15 2012 15.10209071 Oct 15 2012 15.21368251 Nov 15 2012 15.32527432 Dec 15 2012 15.43686612 Jan 15 2013 15.54845792 Feb 15 2013 11.96161257 Mar 15 2013 12.05065683 Apr 15 2013 12.13970109 May 15 2013 12.22874536 Jun 15 2013 12.31778962 Jul 15 2013 12.40683388 Aug 15 2013 11.96161257 Sep 15 2013 12.05065683 Oct 15 2013 12.13970109 Nov 15 2013 12.22874536 Dec 15 2013 12.31778962 Jan 15 2014 12.40683388 Feb 15 2014 8.56804426 Mar 15 2014 8.63182623 Apr 15 2014 8.69560820 May 15 2014 8.75939016 Jun 15 2014 8.82317213 Jul 15 2014 8.88695410 Aug 15 2014 8.56804426 Sep 15 2014 8.63182623 Oct 15 2014 8.69560820 Nov 15 2014 8.75939016 Dec 15 2014 8.82317213 Jan 15 2015 8.88695410 Feb 15 2015 5.25551639 Mar 15 2015 5.29463934 Apr 15 2015 5.33376230 May 15 2015 5.37288525 Jun 15 2015 5.41200820 Jul 15 2015 5.45113115 Aug 15 2015 5.25551639
46 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ----------- ----------------- Sep 15 2015 5.29463934 Oct 15 2015 5.33376230 Nov 15 2015 5.37288525 Dec 15 2015 5.41200820 Jan 15 2016 5.45113115 Feb 15 2016 1.13897049 Mar 15 2016 1.14744918 Apr 15 2016 1.15592787 May 15 2016 1.16440656 Jun 15 2016 1.17288525 Jul 15 2016 1.18136393 Aug 15 2016 1.13897049 Sep 15 2016 1.14744918 Oct 15 2016 1.15592787 Nov 15 2016 1.16440656 Dec 15 2016 1.17288525 Jan 15 2017 1.18136393 Feb 15 2017 0.44065738 Mar 15 2017 0.44393770 Apr 15 2017 0.44721803 May 15 2017 0.45049836 Jun 15 2017 0.45377869 Jul 15 2017 0.45705902 Aug 15 2017 0.44065738 Sep 15 2017 0.44393770 Oct 15 2017 0.44721803 Nov 15 2017 0.45049836 Dec 15 2017 0.45377869 Jan 15 2018 0.45705902 Feb 15 2018 0.44065738 Mar 15 2018 0.44393770 Apr 15 2018 0.44721803 May 15 2018 0.45049836 Jun 15 2018 0.45377869 Jul 15 2018 0.45705902 Aug 15 2018 0.00000000 Sep 15 2018 0.00000000 Oct 15 2018 0.00000000 Nov 15 2018 0.00000000 Dec 15 2018 0.00000000 Jan 15 2019 0.00000000 Feb 15 2019 0.00000000 Mar 15 2019 0.00000000 Apr 15 2019 0.00000000
47 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE --------------- ----------------- May 15 2019 0.00000000 Jun 15 2019 0.00000000 Jul 15 2019 0.00000000 Aug 15 2019 0.00000000 Sep 15 2019 0.00000000 Oct 15 2019 0.00000000 Nov 15 2019 0.00000000 Dec 15 2019 0.00000000 Jan 15 2020 0.00000000 Feb 15 2020 0.00000000 Mar 15 2020 0.00000000 Apr 15 2020 0.00000000 May 15 2020 0.00000000 Jun 15 2020 0.00000000 Jul 15 2020 0.00000000 Aug 15 2020 0.00000000 Sep 15 2020 0.00000000 Oct 15 2020 0.00000000 Nov 15 2020 0.00000000 Dec 15 2020 0.00000000 Jan 15 2021 0.00000000 Feb 15 2021 0.00000000 Mar 15 2021 0.00000000 Apr 15 2021 0.00000000 May 15 2021 0.00000000 Jun 15 2021 0.00000000 Jul 15 2021 0.00000000 Aug 15 2021 0.00000000 Sep 15 2021 0.00000000 Oct 15 2021 0.00000000 Nov 15 2021 0.00000000 Dec 15 2021 0.00000000 Jan 15 2022 0.00000000 Feb 15 2022 0.00000000 Mar 15 2022 0.00000000 Apr 15 2022 0.00000000 May 15 2022 0.00000000 Jun 15 2022 0.00000000 Jul 15 2022 0.00000000 Aug 15 2022 0.00000000 Sep 15 2022 0.00000000 Oct 15 2022 0.00000000 Nov 15 2022 0.00000000 Dec 15 2022 0.00000000
48 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ---------------- ----------------- Jan 15 2023 0.00000000 Feb 15 2023 0.00000000 Mar 15 2023 0.00000000 Apr 15 2023 0.00000000 May 15 2023 0.00000000 Jun 15 2023 0.00000000 Jul 15 2023 0.00000000 Aug 15 2023 0.00000000 Sep 15 2023 0.00000000 Oct 15 2023 0.00000000 Nov 15 2023 0.00000000 Dec 15 2023 0.00000000 Jan 15 2024 0.00000000 Feb 15 2024 0.00000000 Mar 15 2024 0.00000000 Apr 15 2024 0.00000000 May 15 2024 0.00000000 Jun 15 2024 0.00000000 Jul 15 2024 0.00000000 Aug 15 2024 0.00000000 Sep 15 2024 0.00000000 Oct 15 2024 0.00000000 Nov 15 2024 0.00000000 Dec 15 2024 0.00000000 Jan 15 2025 0.00000000 Feb 15 2025 0.00000000 Mar 15 2025 0.00000000 Apr 15 2025 0.00000000 May 15 2025 0.00000000 Jun 15 2025 0.00000000 Jul 15 2025 0.00000000 Aug 15 2025 0.00000000 Sep 15 2025 0.00000000 Oct 15 2025 0.00000000 Nov 15 2025 0.00000000 Dec 15 2025 0.00000000 Jan 15 2026 0.00000000 Feb 15 2026 0.00000000 Mar 15 2026 0.00000000 Apr 15 2026 0.00000000 May 15 2026 0.00000000 Jun 15 2026 0.00000000 Jul 15 2026 0.00000000 Aug 15 2026 0.00000000
49 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ------------ ----------------- Sep 15 2026 0.00000000 Oct 15 2026 0.00000000 Nov 15 2026 0.00000000 Dec 15 2026 0.00000000 Jan 15 2027 0.00000000 Feb 15 2027 0.00000000 Mar 15 2027 0.00000000 Apr 15 2027 0.00000000 May 15 2027 0.00000000 Jun 15 2027 0.00000000 Jul 15 2027 0.00000000 Aug 15 2027 0.00000000 Sep 15 2027 0.00000000 Oct 15 2027 0.00000000 Nov 15 2027 0.00000000 Dec 15 2027 0.00000000 Jan 15 2028 0.00000000 Feb 15 2028 0.00000000 Mar 15 2028 0.00000000 Apr 15 2028 0.00000000 May 15 2028 0.00000000 Jun 15 2028 0.00000000 Jul 15 2028 0.00000000 Aug 15 2028 0.00000000 Sep 15 2028 0.00000000 Oct 15 2028 0.00000000 Nov 15 2028 0.00000000 Dec 15 2028 0.00000000 Jan 15 2029 0.00000000 Feb 15 2029 0.00000000 Mar 15 2029 0.00000000 Apr 15 2029 0.00000000 May 15 2029 0.00000000 Jun 15 2029 0.00000000 Jul 15 2029 0.00000000 Aug 15 2029 0.00000000 Sep 15 2029 0.00000000 Oct 15 2029 0.00000000 Nov 15 2029 0.00000000 Dec 15 2029 0.00000000 Jan 15 2030 0.00000000 Feb 15 2030 0.00000000 Mar 15 2030 0.00000000 Apr 15 2030 0.00000000
50 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ----------- ----------------- May 15 2030 0.00000000 Jun 15 2030 0.00000000 Jul 15 2030 0.00000000 Aug 15 2030 0.00000000 Sep 15 2030 0.00000000 Oct 15 2030 0.00000000 Nov 15 2030 0.00000000 Dec 15 2030 0.00000000 Jan 15 2031 0.00000000 Feb 15 2031 0.00000000 Mar 15 2031 0.00000000 Apr 15 2031 0.00000000 May 15 2031 0.00000000 Jun 15 2031 0.00000000 Jul 15 2031 0.00000000 Aug 15 2031 0.00000000 Sep 15 2031 0.00000000 Oct 15 2031 0.00000000 Nov 15 2031 0.00000000 Dec 15 2031 0.00000000 Jan 15 2032 0.00000000 Feb 15 2032 0.00000000 Mar 15 2032 0.00000000 Apr 15 2032 0.00000000 May 15 2032 0.00000000 Jun 15 2032 0.00000000 Jul 15 2032 0.00000000 Aug 15 2032 0.00000000 Sep 15 2032 0.00000000 Oct 15 2032 0.00000000 Nov 15 2032 0.00000000 Dec 15 2032 0.00000000 Jan 15 2033 0.00000000 Feb 15 2033 0.00000000 Mar 15 2033 0.00000000 Apr 15 2033 0.00000000 May 15 2033 0.00000000 Jun 15 2033 0.00000000 Jul 15 2033 0.00000000 Aug 15 2033 0.00000000 Sep 15 2033 0.00000000 Oct 15 2033 0.00000000 Nov 15 2033 0.00000000 Dec 15 2033 0.00000000
51 EXHIBIT B DEBT PORTION OF TERMINATION VALUE EXPRESSED AS PERCENTAGE OF PURCHASE PRICE
DEBT PORTION OF DATE TERMINATION VALUE ----------- ----------------- Jan 15 2034 0.00000000 Feb 15 2034 0.00000000 Mar 15 2034 0.00000000 Apr 15 2034 0.00000000 May 15 2034 0.00000000 Jun 15 2034 0.00000000 Jul 15 2034 0.00000000 Aug 15 2034 0.00000000 Sep 15 2034 0.00000000 Oct 15 2034 0.00000000 Nov 15 2034 0.00000000 Dec 15 2034 0.00000000 Jan 15 2035 0.00000000 Feb 15 2035 0.00000000 Mar 15 2035 0.00000000 Apr 15 2035 0.00000000 May 15 2035 0.00000000 Jun 15 2035 0.00000000 Jul 15 2035 0.00000000 Aug 15 2035 0.00000000 Sep 15 2035 0.00000000 Oct 15 2035 0.00000000 Nov 15 2035 0.00000000 Dec 15 2035 0.00000000 Jan 15 2036 0.00000000 Feb 15 2036 0.00000000 Mar 15 2036 0.00000000 Apr 15 2036 0.00000000 May 15 2036 0.00000000 Jun 15 2036 0.00000000 Jul 15 2036 0.00000000 Aug 15 2036 0.00000000 Sep 15 2036 0.00000000 Oct 15 2036 0.00000000 Nov 15 2036 0.00000000 Dec 15 2036 0.00000000 Dec 19 2036 0.00000000