EXHIBIT 4.4
EXECUTION COPY
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DEPOSIT AND DISBURSEMENT AGREEMENT
among
XXXXXX ENERGY LLC,
XXXXXX XX HOLDINGS, LLC,
ELWOOD III HOLDINGS, LLC,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Collateral Agent,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Administrative Agent
and
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Intercreditor Agent
Dated as of October 23, 2001
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TABLE OF CONTENTS
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Page
ARTICLE I
DEFINITIONS
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SECTION 1.1 Capitalized Terms.......................................... 2
SECTION 1.2 Rules of Interpretation.................................... 13
SECTION 1.3 Uniform Commercial Code.................................... 13
ARTICLE II
ESTABLISHMENT OF THE ACCOUNTS
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SECTION 2.1 Establishment of Accounts.................................. 13
SECTION 2.2 Termination................................................ 15
ARTICLE III
THE ACCOUNTS
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SECTION 3.1 Revenue Account............................................ 15
SECTION 3.2 O&M Account................................................ 20
SECTION 3.3 Sales Tax Reserve Account.................................. 21
SECTION 3.4 Debt Service Payment Account............................... 24
SECTION 3.5 DSR LOC Loan Principal Account............................. 25
SECTION 3.6 Debt Service Reserve Account............................... 26
SECTION 3.7 Major Maintenance Reserve Account.......................... 29
SECTION 3.8 PSA Contingency Reserve Account............................ 33
SECTION 3.9 Distribution Suspense Account.............................. 36
SECTION 3.10 Proceeds Account........................................... 39
SECTION 3.11 Permitted Investments...................................... 43
SECTION 3.12 Events of Default.......................................... 44
SECTION 3.13 Disposition of Accounts Upon Debt Termination Date......... 45
SECTION 3.14 Account Balance Statements................................. 45
SECTION 3.15 Instructions to the Administrative Agent................... 45
ARTICLE IV
THE ADMINISTRATIVE AGENT
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SECTION 4.1 Appointment of the Administrative Agent, Powers and
Immunities........................................... 46
SECTION 4.2 Reliance by the Administrative Agent....................... 48
SECTION 4.3 Court Orders............................................... 49
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SECTION 4.4 Resignation or Removal..................................... 49
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
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SECTION 5.1 Expenses................................................... 50
SECTION 5.2 Indemnification............................................ 51
SECTION 5.3 Fees....................................................... 51
ARTICLE VI
LIMITATION OF LIABILITY
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SECTION 6.1 Limitation of Liability.................................... 51
ARTICLE VII
MISCELLANEOUS
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SECTION 7.1 Amendments; Etc............................................ 51
SECTION 7.2 Addresses for Notices...................................... 51
SECTION 7.3 Integration, Etc........................................... 52
SECTION 7.4 Headings; Table of Contents; Section References............ 52
SECTION 7.5 No Third Party Beneficiaries............................... 52
SECTION 7.6 No Waiver.................................................. 52
SECTION 7.7 Severability............................................... 52
SECTION 7.8 Successors and Assigns..................................... 52
SECTION 7.9 Execution in Counterparts.................................. 53
SECTION 7.10 Special Exculpation........................................ 53
SECTION 7.11 Governing Law.............................................. 53
SECTION 7.12 Payments in Respect of Bonds............................... 54
Annex A Calculation Examples
Schedule I Accounts
Schedule II Major Maintenance Reserve Required Balance
Schedule III Sales Tax Reserve Required Balance
Schedule IV PSA Yearly Factor
Exhibit A Form of Debt Service Reserve Guaranty
Exhibit B Form of Major Maintenance Reserve Guaranty
Exhibit C Form of PSA Contingency Reserve Guaranty
Exhibit D Form of Sales Tax Reserve Guaranty
Exhibit E Maintenance Requisition
Exhibit F Restoration Requisition
Exhibit G Independent Engineer Restoration Requisition
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This DEPOSIT AND DISBURSEMENT AGREEMENT, dated as of October 23, 2001
(this "Agreement"), is by and among XXXXXX ENERGY LLC, a limited liability
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company duly formed and validly existing under the laws of the State of Delaware
(the "Issuer"), XXXXXX XX HOLDINGS, LLC, a limited liability company duly formed
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and validly existing under the laws of the State of Delaware ("Xxxxxx XX
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Holdings"), XXXXXX III HOLDINGS, LLC, a limited liability company duly formed
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and validly existing under the laws of the State of Delaware ("Xxxxxx III
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Holdings"), BANK ONE TRUST COMPANY, NATIONAL ASSOCI ATION, a national banking
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association formed under the laws of the United States, in its capacity as
collateral agent under the Collateral Agency Agreement (together with its
successors and permitted assigns in such capacity, the "Collateral Agent"), BANK
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ONE TRUST COMPANY, NATIONAL ASSOCIATION, in its capacity as administrative agent
(together with its successors and permitted assigns in such capacity, the
"Administrative Agent"), and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, in
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its capacity as intercreditor agent under the Intercreditor Agreement (together
with its successors and permitted assigns in such capacity, the "Intercreditor
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Agent").
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RECITALS
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WHEREAS, the Issuer was formed for the purpose of developing,
financing, constructing, owning and operating an approximately 1,409 MW natural
gas-fired electric generation peaking facility located in Elwood, Illinois;
WHEREAS, the Issuer has determined to issue $402,000,000 aggregate
principal amount of its 8.159% Senior Secured Bonds due July 5, 2026 (the
"Bonds") pursuant to the Trust Indenture, dated as of the date hereof (the
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"Indenture"), between the Issuer and Bank One Trust Company, National Associa
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tion, as trustee (the "Trustee");
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WHEREAS, the Issuer (as successor-in-interest to Xxxxxx Energy II,
LLC) and Xxxxxx XX Holdings are parties to that certain Equipment Sale
Agreement, dated December 20, 2000 (the "Holdings II ESA");
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WHEREAS, the Issuer (as successor-in-interest to Xxxxxx Energy III,
LLC) and Xxxxxx III Holdings are parties to (i) that certain Equipment Sale
Agree ment, dated December 20, 2000 (300 MW Facility), and (ii) to that certain
Equipment Sale Agreement, dated December 20, 2000, and Xxxxxx III Holdings (150
MW Facility)(collectively, the "Holdings III ESAs"); and
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WHEREAS, the Issuer will use the proceeds of the Bonds to repay in
full all indebtedness outstanding under existing intercompany loans provided by
the
Members and the Sponsors and to partially reimburse the Members and the
Sponsors for development, financing and construction costs (including, without
limitation, issuance costs, punchlist items, consultant and legal fees, the
funding of reserve accounts and working capital) incurred by or on behalf of the
Issuer in connection with the Project.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 Capitalized Terms.
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(a) Each capitalized term used herein and not otherwise defined
herein shall have the definition assigned to that term in the Indenture.
(b) The following terms shall have the following respective meanings:
"Administrative Claims" means all obligations of the Issuer, now or
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hereafter existing, to pay fees, costs and expenses to any trustee or agent of
any Secured Party, including, without limitation, the Collateral Agent, the
Administrative Agent, the Intercreditor Agent and the Trustee.
"Allocation Certificate" shall have the meaning given to such term in
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Section 3.9(c).
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"Asset Sale Proceeds" shall have the meaning given to such term in
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Section 3.10(c).
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"Buy-Out Proceeds" shall mean any cash or other proceeds received by
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or on behalf of the Issuer in connection with a Buy-Out.
"Contracted Cash Available for Debt Service" means, for any period,
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the aggregate of all payments to be received by the Issuer under Permitted PPAs
for such period, plus investment income on amounts in the Accounts attributable
to units subject to such Permitted PPAs for such period, minus (i) all O&M Costs
attributable
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to units subject to such Permitted PPAs for such period and (ii) all deposits,
if any, into the Sales Tax Reserve Account for such period.
"Contracted Coverage Ratio" means, for any period, the ratio of (i)
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the aggregate of all Contracted Cash Available for Debt Service for such period
to (ii) the aggregate of all Debt Service for such period, in each case
calculated on a projected basis and confirmed by the Independent Engineer.
"Current Major Maintenance Required Balance" shall mean, for any date
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of determination, the amount set forth on Schedule II hereto opposite the Bond
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Payment Date on or immediately succeeding such date of determination (provided
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that such Schedule II may be amended on an annual basis upon the delivery to the
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Trustee and the Administrative Agent of an Officer's Certificate by the Issuer,
which shall be confirmed by the Independent Engineer, that such amendment is
reasonable in light of the historic levels of operations of the Facility, is in
accordance with Prudent Industry Practice, and is reasonably expected to be
sufficient to fund scheduled Major Maintenance Expenditures on a timely basis).
"Debt Payment Amount" shall have the meaning set forth in Section
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3.6(c).
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"Debt Service Payment Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "Debt Service Payment Account" in Schedule I hereto.
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"Debt Service Reserve Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "Debt Service Reserve Account" in Schedule I hereto.
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"Debt Service Reserve Guarantor" shall mean any Person issuing a Debt
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Service Reserve Guaranty.
"Debt Service Reserve Guaranty" shall mean an unconditional guaranty
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issued by Dominion Resources, Peoples Energy Corporation, an Affiliate of either
Dominion Resources or Peoples Energy Corporation, or any other Person whose
long-term senior unsecured debt is rated at least "BBB" by S&P and "Baa2" by
Xxxxx'x, and otherwise in substantially the form attached hereto as Exhibit A.
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"Debt Service Reserve L/C" shall have the meaning given to such term
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in Section 3.6(a).
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"Debt Service Reserve L/C Agent" shall mean any agent for the banks
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and other financial institutions party to a Debt Service Reserve L/C Agreement.
"Debt Service Reserve L/C Agreement" shall mean any agreement
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providing for the issuance of an Issuer Debt Service Reserve L/C.
"Debt Service Reserve L/C Provider" shall mean the bank or other
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financial institution providing a Debt Service Reserve L/C.
"Debt Service Reserve LOC Bonds" shall mean Debt Service Reserve LOC
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Loans converted into substitute loans which (i) amortize, (ii) mature on the
Final Maturity Date and (iii) bear interest at a rate specified in the
applicable Debt Service Reserve L/C Agreement.
"Debt Service Reserve LOC Loans" shall mean any loans made to the
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Issuer under a Debt Service Reserve L/C Agreement.
"Debt Service Reserve Requirement" shall mean:
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(a) for any date of determination occurring on a Six-Month DSR Date,
an amount equal to (i) the principal and interest which will be due or has
become due on the Senior Secured Obligations during the period from and
including the day after the immediately preceding Bond Payment Date through and
including the Bond Payment Date succeeding such date of determination (or, if
such date of determination is a Bond Payment Date, through and including such
date of determi nation), less (ii) the amount of Monies already on deposit in
or credited to the Debt Service Reserve Account, if any, less (iii) the
aggregate of the Drawing Amounts of any Debt Service Reserve L/Cs, less (iv) the
aggregate of the Guaranteed Amounts under any Debt Service Reserve Guaranties;
or
(b) for any date of determination other than a Six-Month DSR Date, an
amount equal to (i) the principal and interest which will be due or has become
due on the Senior Secured Obligations during the period from and including the
day after the immediately preceding Bond Payment Date through and including the
next two Bond Payment Dates (or, if such date of determination is a Bond Payment
Date, through and including the next Bond Payment Date), less (ii) the amount of
Monies already on deposit in or credited to the Debt Service Reserve Account, if
any, less (iii) the aggregate of the Drawing Amounts of any Debt Service Reserve
L/Cs, less (iv) the aggregate of the Guaranteed Amounts under any Debt Service
Reserve Guaranties.
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"Debt Termination Date" means the date on which (i) all Senior Secured
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Obligations, other than contingent liabilities and obligations which are
unasserted at such date, have been paid and satisfied in full (or legally
defeased in full in accordance with the express terms and conditions of the
related Financing Documents), (ii) all Senior Secured Obligations that are
letters of credit have terminated or have expired in accordance with their terms
and (iii) all commitments of the Secured Parties under the Financing Documents
have been terminated.
"Default" shall have the meaning given to such term in the
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Intercreditor Agreement.
"Disbursement Date" shall mean a date on which Monies are withdrawn or
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transferred from an Account for the purposes set forth in a Requisition or
Funding Date Certificate.
"Distribution Conditions" shall have the meaning given to such term in
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Section 3.9(a).
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"Distribution Suspense Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "Distribution Suspense Account" in Schedule I hereto.
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"Drawing Amount" shall mean, with respect to a letter of credit at any
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given time, the amount available to be drawn under such letter of credit at such
time.
"DSR Insufficiency Amount" shall have the meaning given to such term
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in Section 3.6(c).
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"DSR LOC Loan Principal Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "DSR LOC Loan Principal Account" in Schedule I hereto.
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"Event of Default" shall have the meaning given to such term in the
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Intercreditor Agreement.
"Event of Default Date" shall have the meaning given to such term in
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Section 3.12(a).
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"Funding Date" shall mean the last day of each calender month (or, if
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such day is not a Business Day, the next succeeding Business Day).
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"Funding Date Certificate" shall have the meaning given to such term
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in Section 3.1(b).
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"Funding Period" shall mean a period commencing on a Funding Date and
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ending on the day preceding the next succeeding Funding Date.
"Guaranteed Amount" shall have the meaning applied to the term
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"Guaranty Cap" in any Debt Service Reserve Guaranty, any Major Maintenance
Reserve Guaranty, any Sales Tax Reserve Guaranty, or any PSA Contingency Reserve
Guaranty as applicable.
"Holdings II Account" shall mean the account established pursuant to
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Section 2.1 having the name and account number set forth below the title "Xxxxxx
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II Holdings Account" in Schedule I hereto.
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"Holdings III Account" shall mean the account established pursuant to
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Section 2.1 having the name and account number set forth below the title "Xxxxxx
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III Holdings Account" in Schedule I hereto.
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"Holdings II ESA Amount" shall have the meaning given to such term in
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Section 3.2(a).
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"Holdings III ESA Amount" shall have the meaning given to such term in
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Section 3.2(a).
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"Holdings II Periodic Tax Amount" shall mean$22,972.44.
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"Holdings III Periodic Tax Amount" shall mean $41,192.15.
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"Holdings II Return Amount" shall mean, for any date of determination
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(which shall be a Funding Date), the difference between (i) the Holdings II ESA
Amount and (ii) the Holdings II Periodic Tax Amount.
"Holdings III Return Amount" shall mean, for any date of determination
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(which shall be a Funding Date), the difference between (i) the Holdings III ESA
Amount and (ii) the Holdings III Periodic Tax Amount.
"Independent Engineer Restoration Certificate" shall have the meaning
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given to such term in Section 3.10(a)(iii)(B).
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"Initial Stub Period" shall mean the period of time commencing on (and
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including) the Closing Date and ending on (and including) the first Bond Payment
Date occurring after the Closing Date.
"Issuer Debt Service Reserve L/C" shall mean any Debt Service Reserve
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L/C for which the Issuer is the account party liable for the reimbursement
obligations under the applicable Debt Service Reserve L/C Agreement.
"Major Maintenance Insufficiency Amount" shall have the meaning set
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forth in Section 3.7(e).
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"Maintenance Requisition" shall have the meaning given to such term in
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Section 3.7(b).
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"Major Maintenance Reserve Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "Major Maintenance Reserve Account" in Schedule I hereto.
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"Major Maintenance Reserve Guarantor" shall mean any Person issuing a
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Major Maintenance Reserve Guaranty.
"Major Maintenance Reserve Guaranty" shall mean a guaranty issued by
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any Person whose long-term senior unsecured debt is rated at least "BBB" by S&P
and "Baa2" by Xxxxx'x, and otherwise in substantially the form attached hereto
as Exhibit B.
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"Major Maintenance Reserve L/C" shall have the meaning set forth in
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Section 3.7(c).
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"Major Maintenance Reserve L/C Provider" shall mean the bank or other
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financial institution providing a Major Maintenance Reserve L/C.
"Major Maintenance Reserve Requirement" shall mean, for any date of
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determination, an amount equal to (i) the Current Major Maintenance Required
Balance, less (ii) the amount of Monies on deposit in or credited to the Major
Maintenance Reserve Account (as determined on (x) the Bond Payment Date
immediately preceding such date of determination or (y) if such date of
determination is during the Initial Stub Period, the Closing Date), less (iii)
the aggregate of the Drawing Amounts of any Major Maintenance Reserve L/Cs (as
determined on (x) the Bond Payment Date immediately preceding such date of
determination or (y) if such date of determination is during the Initial Stub
Period,
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the Closing Date), less (iv) the aggregate of the Guaranteed Amounts
under any Major Maintenance Reserve Guaranties (as determined on (x) the Bond
Payment Date immediately preceding such date of determination or (y) if such
date of determination is during the Initial Stub Period, the Closing Date).
"Maximum PSA Contingency Amount" shall mean, at any time, an amount
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equal to the difference between (a) the aggregate principal amount of the Bonds
then Outstanding and (b) the amount set forth opposite the applicable year on
Schedule IV hereto.
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"Monies" shall mean all cash, payments, Permitted Investments and
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other amounts (including instruments evidencing such amounts) on deposit in or
credited to any Account.
"O&M Account" shall mean the account established pursuant to Section
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2.1 having the name and account number set forth below the title "O&M Account"
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in Schedule I hereto.
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"Post-2012 Debt Service Reserve Shortfall Guaranty" shall mean a Debt
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Service Reserve Guaranty that guarantees payment of all or any portion of any
Post-2012 Debt Service Reserve Shortfall.
"Post-2012 Debt Service Reserve Shortfall" shall mean, for any date of
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determination occurring on or after January 1, 2013, the positive difference, if
any, between (x) the Debt Service Reserve Requirement calculated in accordance
with clause (b) of the definition thereof and (y) the Debt Service Reserve
Requirement calculated in accordance with clause (a) of the definition thereof.
"Proceeds Account" shall mean the account established pursuant to
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Section 2.1 having the name and account number set forth below the title
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"Proceeds Account" in Schedule I hereto.
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"Projected PSA Coverage Ratio" shall mean, for any period, the ratio
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of (i) the aggregate of all Cash Available for Debt Service for such period plus
all deposits, if any, made or to be made to the Major Maintenance Reserve
Account during such period, to (ii) the aggregate of all Debt Service for such
period, in each case calculated by the Issuer on a projected basis and confirmed
by the Independent Engineer.
"PSA Contingency Insufficiency Amount" shall have the meaning set
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forth in Section 3.8(c).
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"PSA Contingency Reserve Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "PSA Contingency Reserve Account" in Schedule I hereto.
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"PSA Contingency Reserve Amount" shall mean, at the date of
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determination (which shall be the last Funding Date immediately preceding a Bond
Payment Date):
(i) $0, if, on such date of determination, either (a) the average
Contracted Coverage Ratio for the consecutive period of the lesser of (x)
sixteen full fiscal quarters following such date of determination and (y) the
number of full fiscal quarters from such date of determination until the first
Bond Payment Date in 2024, in either case taken as a whole, is equal to or
greater than 1.40 to 1.0 or (b) the PSA Coverage Ratio for the six fiscal
quarter period immediately preceding such date of determination is greater than
or equal to the PSA Historical Ratio, and the Projected PSA Coverage Ratio for
the consecutive period of the lesser of (A) sixteen full fiscal quarters
following such date of determination and (B) the number of full fiscal quarters
from such date of determination until the first Bond Payment Date in 2024, in
either case taken as a whole, is greater than or equal to the PSA Projected
Ratio; or
(ii) if the requirement set forth in clause (i) above has not been
satisfied, 25% of the Maximum PSA Contingency Amount, if, on such date of
determination, the average Contracted Coverage Ratio for the consecutive period
of the lesser of (x) sixteen full fiscal quarters following such date of
determination and (y) the number of full fiscal quarters from such date of
determination until the first Bond Payment Date in 2024, in either case taken as
a whole, is equal to or greater than 1.25 to 1.0; or
(iii) if the requirements set forth in clauses (i) or (ii) above have
not been satisfied, 33-1/3% of the Maximum PSA Contingency Amount, if, on such
date of determination, the average Contracted Coverage Ratio for the consecutive
period of the lesser of (x) sixteen full fiscal quarters following such date of
determination and (y) the number of full fiscal quarters from such date of
determination until the first Bond Payment Date in 2024, in either case taken as
a whole, is equal to or greater than 1.1 to 1.0; or
(iv) if the requirements set forth in clauses (i), (ii) or (iii) above
have not been satisfied, the Maximum PSA Contingency Amount.
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"PSA Contingency Reserve Guarantor" shall mean any Person issuing a
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PSA Contingency Reserve Guaranty.
"PSA Contingency Reserve Guaranty" shall mean a guaranty issued by any
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Person whose long-term senior unsecured debt is rated at least "BBB" by S&P and
"Baa2" by Xxxxx'x, and otherwise in substantially the form attached hereto as
Exhibit C attached hereto.
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"PSA Contingency Reserve L/C" shall have the meaning set forth in
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Section 3.8(a).
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"PSA Contingency Reserve L/C Provider" shall mean the bank or
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financial institution providing a PSA Contingency Reserve L/C.
"PSA Contingency Reserve Requirement" shall mean, for any date of
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determination, an amount equal to (i) the PSA Contingency Reserve Amount for the
Bond Payment Date immediately preceding such date of determination, less (ii)
the amount of Monies already on deposit in or credited to the PSA Contingency
Reserve Account, less (iii) the aggregate of the Drawing Amounts of any PSA
Contingency Reserve L/Cs, less (iv) the aggregate of the Guaranteed Amounts
under any PSA Contingency Reserve Guaranties.
"PSA Coverage Ratio" shall mean, for any period, the ratio of (i) the
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aggregate of all Cash Available for Debt Service for such period plus all
deposits, if any, made to the Major Maintenance Reserve Account for such period,
to (ii) the aggregate of all Debt Service for such period.
"PSA Funding Reduction Date" shall have the meaning set forth in
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Section 3.1(b)(vii).
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"PSA Historical Ratio" shall mean, for any date of determination, (x)
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(i) 4.0 minus (ii) 2.6 times the percentage of the Project's capacity that is
covered by Permitted PPAs for the six-quarter period, taken as a whole,
immediately preceding such date of determination, to (y) 1.0. For the avoidance
of doubt, the examples set forth on Annex A illustrate how the applicable
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percentage of capacity shall be calculated in this definition of "PSA Historical
Ratio".
"PSA Projected Ratio" shall mean, for any date of determination, (x)
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(i) 4.0 minus (ii) 2.6 times the percentage of the Project's capacity that is
covered by Permitted PPAs for the sixteen-quarter (or less, if applicable)
period, taken as a whole, immediately following such date of determination to
(y) 1.0. For the
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avoidance of doubt, the examples set forth on Annex A hereto illustrate how the
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applicable percentage of capacity shall be calculated in this definition of "PSA
Projected Ratio".
"PSA Reserve Excess" shall have the meaning set forth in Section
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3.1(b)(vii).
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"Redeemable Facilities" shall mean, in the context of any redemption
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or prepayment obligation, (i) the Bonds and (ii) each facility constituting a
Senior Secured Obligation whose agent, trustee or similar representative is
party to the Collateral Agency Agreement and which, pursuant to the terms of its
Financing Documents, has opted to be prepaid pursuant to the terms of the
Section hereof which refers to such prepayment obligation.
"Required Secured Parties" shall have the meaning given to such term
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in the Intercreditor Agreement.
"Requisition" shall mean a Maintenance Requisition or a Restoration
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Requisition.
"Restoration Requisition" shall have the meaning given to such term in
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Section 3.10(a)(iii)(A).
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"Revenue Account" shall mean the account established pursuant to
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Section 2.1 having the name and account number set forth below the title
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"Revenue Account" in Schedule I hereto.
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"Sales Tax Final Payment Date" shall mean the date on which final
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payment is due under the Sales Tax Agreements.
"Sales Tax Funding Date" shall mean each March 31, June 30, September
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30 and December 31 (or if any such day is not a Business Day, the next
succeeding Business Day) commencing March 31, 2006 and ending on the last such
date prior to the Sales Tax Final Payment Date.
"Sales Tax Reserve Account" shall mean the account established
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pursuant to Section 2.1 having the name and account number set forth below the
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title "Sales Tax Reserve Account" in Schedule I hereto.
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"Sales Tax Reserve Guarantor" shall mean any Person issuing a Sales
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Tax Reserve Guaranty.
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"Sales Tax Reserve Guaranty" shall mean a guaranty issued by any
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Person whose long-term senior unsecured debt is rated at least "BBB" by S&P and
"Baa2" by Xxxxx'x, and otherwise in substantially the form attached hereto as
Exhibit D attached hereto.
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"Sales Tax Reserve Insufficiency Amount" shall have the meaning set
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forth in Section 3.3(c).
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"Sales Tax Reserve L/C" shall have the meaning set forth in Section
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3.3(a).
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"Sales Tax Reserve Requirement" shall mean, for any date of
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determination, an amount equal to (i) the applicable amount for such date set
forth on Schedule III hereto, less (ii) the amount of Monies already on deposit
in or credited to the Sales Tax Reserve Account, less (iii) the aggregate of the
Drawing Amounts of any Sales Tax Reserve L/Cs, less (iv) the aggregate of the
Guaranteed Amounts under any Sales Tax Reserve Guaranties.
"Six-Month DSR Date" shall mean (a) any date of determination
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occurring on or after January 1, 2013 on which (i) the Issuer is party to
Permitted PPAs covering, in the aggregate, 75% or more of the capacity of the
Project for the consecutive period of four full fiscal quarters, taken as a
whole, following such date of determination and (ii) either (x) the Issuer has
provided one or more Post-2012 Debt Service Reserve Shortfall Guaranties or (y)
each Rating Agency has confirmed that the failure to provide such Post-2012 Debt
Service Reserve Shortfall Guaranties will not result in a Rating Downgrade, or
(b) any date of determination occurring on or before December 31, 2012.
SECTION 1.2 Rules of Interpretation. Except as otherwise expressly
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provided herein, the rules of interpretation set forth in the Indenture shall
apply to this Agreement.
SECTION 1.3 Uniform Commercial Code. As used herein, the term /_"New
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York UCC" shall mean the Uniform Commercial Code as in effect from time to time
in the State of New York. All terms defined in the New York UCC shall have the
respective meanings given to those terms in the New York UCC, except where the
context otherwise requires.
ARTICLE II
ESTABLISHMENT OF THE ACCOUNTS
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SECTION 2.1 Establishment of Accounts. The Administrative Agent has
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established the following special, segregated and irrevocable cash collateral
accounts (together with all sub-accounts to be established pursuant to this
Agreement, the "Accounts") in the form of non-interest bearing accounts (each
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such Account being (or to be, when established) a "securities account" as such
term is defined in Section 8-501(a) of the New York UCC), which shall be
maintained at all times until the termination of this Agreement in accordance
with the Securities Account Control Agreement:
(a) Revenue Account;
(b) O&M Account;
(c) Holdings II Account;
(d) Holdings III Account;
(e) Sales Tax Reserve Account;
(f) Debt Service Payment Account;
(g) DSR LOC Loan Principal Account;
(h) Debt Service Reserve Account;
(i) Major Maintenance Reserve Account;
(j) PSA Contingency Reserve Account;
(k) Distribution Suspense Account;
(l) Distribution Account; and
(m) Proceeds Account.
The account numbers of the Accounts established hereunder on the
Closing Date are set forth on Schedule I hereto. The Accounts shall not be
----------
evidenced by passbooks or similar writings.
The Collateral Agent may, with the consent of the Issuer (and, with
respect to the Holdings II Account or the Holdings III Account, with the consent
of Xxxxxx XX Holdings or Xxxxxx III Holdings, respectively) and upon notice to
the Trustee, any Working Capital Agent, any Debt Service Reserve L/C Agent and
any Additional Indebtedness Agent, cause the Administrative Agent to establish
and create sub-accounts within the Accounts. In the event that, in accordance
with this Agreement, the Administrative Agent is required to segregate certain
monies in an Account from any other amounts on deposit in such Account pending
transfer or withdrawal in accordance with this Agreement, the Collateral Agent
shall cause the Administrative Agent to either (i) hold such monies in such
Account for use solely for such transfer or withdrawal or (ii) create a separate
sub-account for such purpose.
All amounts from time to time held in each Account (other than the
Holdings II Account and the Holdings III Account) shall be held (A) in the name
of
13
the Issuer subject to the lien and security interest of the Collateral Agent
for the benefit of the Secured Parties and (B) in the custody of, and subject to
the control of, the Collateral Agent and the Administrative Agent for the
purposes and on the terms set forth in this Agreement. All such amounts shall
constitute a part of the Collateral and shall not constitute payment of any
Indebtedness or any other obligation of the Issuer until applied as hereinafter
provided.
All amounts from time to time held in the Holdings II Account shall be
held (A) in the name of Xxxxxx XX Holdings subject to the lien and security
interest of the Collateral Agent for the benefit of the Secured Parties and (B)
in the custody of, and subject to the control of, the Collateral Agent and the
Administrative Agent for the purposes and on the terms set forth in this
Agreement. All such amounts shall constitute a part of the Collateral and shall
not constitute payment of any Indebtedness or any other obligation of the Issuer
until applied as hereinafter provided.
All amounts from time to time held in the Holdings III Account shall
be held (A) in the name of Xxxxxx III Holdings subject to the lien and security
interest of the Collateral Agent for the benefit of the Secured Parties and (B)
in the custody of, and subject to the control of, the Collateral Agent and the
Administrative Agent for the purposes and on the terms set forth in this
Agreement. All such amounts shall constitute a part of the Collateral and shall
not constitute payment of any Indebtedness or any other obligation of the Issuer
until applied as hereinafter provided.
SECTION 2.2 Termination. This Agreement shall remain in full force
-----------
and effect until the Debt Termination Date.
ARTICLE III
THE ACCOUNTS
------------
SECTION 3.1 Revenue Account.
---------------
(a) Deposits into the Revenue Account.
---------------------------------
(i) Deposits. Except as otherwise expressly provided herein, the
--------
Issuer shall cause the following amounts to be deposited into the Revenue
Account directly, or if received by the Issuer, as soon as practicable (but no
more than three (3) Business Days) after receipt, or otherwise in accordance
with the provisions of this Agreement:
14
(A) all Operating Revenues received by the Issuer (including any
income from the investment of monies on deposit in the Accounts);
(B) any proceeds of Additional Indebtedness which are not
disbursed directly to vendors or contractors; and
(C) all other income (howsoever earned), revenue (howsoever
generated) and proceeds of any nature whatsoever received by the Issuer
(including, without limitation, the proceeds of any business interruption
insurance or other payments received for interruption of operations in
respect of any Loss Event, but excluding amounts required by the terms
hereof to be deposited into the Proceeds Account, amounts contributed by
the Members as equity (if any), the proceeds of the Bonds issued on the
Closing Date and the proceeds of Permitted Indebtedness under Sections
--------
5.1(c)(v) and 5.1(c)(vi) of the Indenture).
--------- ----------
(ii) Instructions. The Issuer hereby (A) acknowledges that it has
------------
irrevocably instructed each Project Party party to each Project Document in
effect as of the Closing Date pursuant to which payments may be made to or
received by the Issuer, and agrees that it shall so instruct each Project Party
party to each Project Document entered into after the Closing Date under which
payments may be made to, or received by, the Issuer, to make all such payments
directly to the Administrative Agent for deposit in the Revenue Account (and to
specify in writing when making such payments the source and nature of such
payments), and (B) acknowledges that it has obtained or will obtain to the
extent required under the Indenture and the other Financing Documents, a Consent
evidencing, among other things, the agreement or acknowledgment of each Project
Party to each Project Document in effect on the Closing Date to make all such
payments directly to the Administrative Agent for deposit in the Revenue
Account. If, notwithstanding the foregoing, any Operating Revenues are remitted
directly to the Issuer, the Issuer shall hold such payments in trust for the
Collateral Agent and shall as promptly as practicable (but no more than three
(3) Business Days) after receipt remit such payments to the Administrative Agent
(together with an Officer's Certificate of the Issuer specifying the source and
nature of such payments) for deposit in the Revenue Account in accordance with
the terms of this Agreement, in the form received, together with any necessary
endorsements.
(iii) Certain Transfers of Amounts with respect to Additional
-------------------------------------------------------
Indebtedness. Upon deposit into the Revenue Account of any proceeds of
------------
Additional Indebtedness (as identified in an Officer's Certificate of the
Issuer), the
15
Administrative Agent shall (i) establish and create a sub-account within the
Revenue Account in accordance with Section 2.1 (and no separate consent of the
-----------
Issuer or the Collateral Agent shall be required), (ii) transfer such proceeds
to such sub-account and (iii) transfer such proceeds from time to time in
accordance with Officers' Certificates (and in accordance with other conditions
(if any) established in the Additional Indebtedness Documents relating to such
Additional Indebtedness) for application consistent with the purposes for which
such Additional Indebtedness was incurred pursuant to the terms of the
Indenture.
(iv) Identification of Amounts. In the event the Administrative
-------------------------
Agent receives monies without adequate identification or adequate instruction
with respect to the proper Account in which such monies are to be deposited, the
Administrative Agent shall deposit such monies into the Revenue Account,
segregate such monies from all other Monies on deposit in the Revenue Account
and notify the Issuer of the receipt of such monies. Upon receipt of an
Officer's Certificate of the Issuer containing written identification and
instruction from the Issuer regarding such monies, the Administrative Agent
shall (if necessary and in accordance with this Agreement) transfer such monies
from the Revenue Account to the Account in which such monies were to be
deposited in accordance with this Agreement as specified by the Issuer in such
Officer's Certificate.
(b) Applications and Transfers. Subject to Section 3.11, the Issuer
-------------------------- ------------
shall, on each Funding Date, cause the Administrative Agent to transfer Monies
to the extent then available in the Revenue Account and not segregated for any
specific purpose as provided in this Section 3.1 (except as otherwise set forth
-----------
in this Agreement), and the Administrative Agent shall so transfer such Monies,
in accordance with an Officer's Certificate of the Issuer to be received by the
Administrative Agent at least three (3) Business Days prior to such Funding Date
setting forth the amounts to be applied or transferred pursuant to this Section
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3.1(b) and the Persons referred to in clauses (i) through (viii) (inclusive)
------
below that are entitled to payment or Accounts to which amounts withdrawn are to
be paid or deposited (with respect to each Funding Date, the "Funding Date
------------
Certificate") in the amounts and order of priority set forth below. To the
-----------
extent that applications are not effected on such Funding Date, the related
amounts will be retained in the Revenue Account pending application at such time
as such amounts are due and payable to the Persons or Accounts entitled thereto
(and the Issuer and the Administrative Agent shall not apply such amounts for
any other purpose). The order of priority of application or transfer of monies
from the Revenue Account on each Funding Date is as follows:
(i) First: (i) transfer from the Revenue Account to the O&M
-----
Account the amount set forth in such Funding Date Certificate and certified
16
therein to be the Issuer's good faith estimate of the amounts due and payable
for O&M Costs (other than O&M Costs that will be paid with the proceeds of
Working Capital Loans) on such Funding Date or reasonably expected to be due and
payable within the Funding Period commencing on such Funding Date and (ii) at
the election of the Issuer, to the repayment of amounts outstanding under any
Working Capital Agreement if and to the extent that such amounts were used to
pay O&M costs previously incurred;
(ii) Second: if such Funding Date is a Sales Tax Funding Date,
------
transfer from the Revenue Account to the Sales Tax Reserve Account an amount (as
set forth in such Funding Date Certificate) which is equal to the then current
Sales Tax Reserve Requirement;
(iii) Third: beginning with the Funding Date occurring on November 30,
-----
2001, transfer from the Revenue Account to the Debt Service Payment Account an
amount (as set forth in such Funding Date Certificate) equal to the sum of (A)
one-sixth (or, during the Initial Stub Period, one-third) of the interest,
principal and premium, if any, due and payable with respect to the Bonds on the
next succeeding Bond Payment Date (unless such Funding Date is the last Funding
Date prior to a Bond Payment Date when the amount transferred shall equal the
excess of the total amount of interest, principal and premium, if any, due and
payable on the Bonds on such Bond Payment Date less the amounts already
transferred to the Debt Service Payment Account for such purpose), (B) one-third
or one-sixth, as applicable, of the interest, principal and premium, if any, due
and payable on the next Bond Payment Date with respect to any other Senior
Secured Obligation payable on a quarterly or semi-annual basis, as the case may
be, and (C) all other amounts (other than principal of Debt Service Reserve LOC
Loans which shall be paid under priority Fourth below) due and payable at any
------
time during the Funding Period commencing on such Funding Date with respect to
the Senior Secured Obligations; provided that any transfers required pursuant to
--------
this priority Third which were not made on the prior Funding Date because the
-----
amounts in the Revenue Account were insufficient to make such transfers shall
also be made as of the current Funding Date;
(iv) Fourth: transfer from the Revenue Account to the DSR LOC Loan
------
Principal Account an amount (as set forth in such Funding Date Certificate)
which, together with the Monies on deposit in or credited to the DSR LOC Loan
Principal Account, is equal to the principal amount of Debt Service Reserve LOC
Loans due and payable during the Funding Period commencing on such Funding Date;
provided that if the principal of the Debt Service Reserve LOC Loan is payable
--------
on a quarterly or semi-annual basis, then the amount transferred to the DSR LOC
Loan Principal Account on each Funding Date shall equal 1/3 or 1/6, as
applicable, of such quarterly or semi-annual principal payment; provided
--------
further,
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17
that any transfers required pursuant to this priority Fourth which were
------
not made on the prior Funding Date because the amounts in the Revenue Account
were insufficient to make such transfers shall also be made as of the current
Funding Date;
(v) Fifth: transfer from the Revenue Account to the Debt Service
-----
Reserve Account an amount (as set forth in such Funding Date Certificate) which
is equal to the then current Debt Service Reserve Requirement;
(vi) Sixth: beginning with the Funding Date occurring on November 30,
-----
2001, transfer from the Revenue Account to the Major Maintenance Reserve Account
an amount (as set forth in such Funding Date Certificate) which is equal to one-
sixth (or, during the Initial Stub Period, one-half) of the then current Major
Maintenance Reserve Requirement;
(vii) Seventh: beginning on the Funding Date immediately preceding the
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first Bond Payment Date in 2013 and ending on the Funding Date immediately
preceding the first Bond Payment Date in 2024, transfer from the Revenue Account
to the PSA Contingency Reserve Account an amount which is equal to the then
current PSA Contingency Reserve Requirement; provided, however, that, on any
-------- -------
Funding Date when Monies on deposit in or credited to the PSA Contingency
Reserve Account exceed the PSA Contingency Reserve Amount, subject to Sections
--------
3.8(c) and 3.8(d) below, an amount equal to such excess (the "PSA Reserve
------ ------ -----------
Excess") shall be transferred to the Distribution Suspense Account; provided,
------ --------
further, however, notwithstanding the foregoing, if, on any Funding Date, the
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PSA Contingency Reserve Amount is reduced from the Maximum PSA Contingency
Amount to $0 as a result of the Issuer meeting the test set forth in clause
(i)(b) of the definition of PSA Contingency Reserve Amount (such date, the "PSA
---
Funding Reduction Date"), then, notwithstanding such reduction of the PSA
----------------------
Contingency Reserve Amount to $0, the amount of Monies required to remain in the
PSA Contingency Reserve Account (taking into account any PSA Contingency Reserve
L/Cs and PSA Contingency Reserve Guaranties) after giving effect to any such
transfer to be made on a Funding Date, shall equal: (i) on such PSA Funding
Reduction Date and until the first anniversary of such PSA Funding Reduction
Date, 50% of the amount on deposit in the PSA Contingency Reserve Account
immediately prior to the reduction in the PSA Contingency Reserve Amount from
the Maximum PSA Contingency Amount to $0, (ii) on the first anniversary of such
PSA Funding Reduction Date and until the second anniversary of such PSA Funding
Reduction Date, 25% of the amount on deposit in the PSA Contingency Reserve
Account immediately prior to the reduction in the PSA Contingency Reserve Amount
from the Maximum PSA Contingency Amount to $0, (iii) on the second anniversary
of such PSA Funding Reduction Date and until the third anniversary of such PSA
Funding Reduction Date, 12.5% of the amount on deposit in the PSA
18
Contingency Reserve Account immediately prior to the reduction in the PSA
Contingency Reserve Amount from the Maximum PSA Contingency Amount to $0, and
(iv) on the third anniversary of such PSA Funding Reduction Date and until the
fourth anniversary of such PSA Funding Reduction Date, 6.25% of the amount on
deposit in the PSA Contingency Reserve Account immediately prior to the
reduction in the PSA Contingency Reserve Amount from the Maximum PSA Contingency
Amount to $0; provided, further, however, that if, on any Funding Date, the
-------- ------- -------
requirements set forth in any of clauses (i)(a), (ii), (iii) or (iv) of the
definition of "PSA Contingency Reserve Amount" shall have been satisfied, the
remainder of the PSA Reserve Excess shall be transferred to the Distribution
Suspense Account as set forth above); and
(viii) Eighth: transfer from the Revenue Account to the Distribution
------
Suspense Account the remaining Monies on deposit in or credited to the Revenue
Account after application of clauses (i) through (vii) above.
SECTION 3.2 O&M Account. (a) On each Funding Date until the Funding Date
-----------
occurring in June 2011, Monies on deposit in or credited to the O&M Account
shall be transferred, pursuant to an Officer's Certificate delivered to the
Administrative Agent delivered no later than three (3) Business Days prior to
such Funding Date, (i) to the Holdings II Account in the amount that is due and
payable to Xxxxxx XX Holdings under the Holdings II ESA on such date (the
"Holdings II ESA Amount") and (ii) to the Holdings III Account in the amount
----------------------
that is due and payable to Xxxxxx III Holdings under the Holdings III ESA on
such date (the "Holdings III ESA Amount"); provided, that, on any Funding Date,
----------------------- --------
Monies shall only be transferred once from the O&M Account to the Holdings II
Account and once from the O&M Account to the Holdings III Account. The Officer's
Certificate delivered pursuant to the preceding sentence shall set forth the
Holdings II ESA Amount and the Holdings III ESA Amount. Subject to the first
sentence of this Section 3.2(a), Monies on deposit in or credited to the O&M
--------------
Account may be remitted to the Issuer or paid directly to third parties in an
amount set forth in an Officer's Certificate of the Issuer (which Officer's
Certificate shall be delivered to the Administrative Agent no later than three
(3) Business Days before the date on which such Monies are to be remitted or
paid directly to third parties) as being the amount of O&M Costs due and payable
on such date or reasonably expected to be due and payable by the Issuer within
the next thirty (30) days, less any amounts previously transferred in respect of
such O&M Costs; provided, however, that Monies may be disbursed from the O&M
-------- -------
Account (and Officer's Certificates may be delivered) more often than monthly if
necessary to pay O&M Costs which are due and payable on the date of
disbursement. An Officer's Certificate of the Issuer delivered to the
Administrative Agent pursuant to this Section 3.2 shall indicate (a) the name of
-----------
each Person (including the Issuer or any third parties) to whom payment of any
O&M Costs requested under such
19
Officer's Certificate is to be made and (b) the payment or wire transfer
instructions for the payment or transfer of such amounts by the Administrative
Agent to each such Person. The Administrative Agent shall transfer to the
Revenue Account any amounts on deposit in or credited to the O&M Account which
are not needed to pay O&M Costs due or payable hereunder prior to the next
Funding Date, as certified by an Authorized Officer of the Issuer.
(b) Holdings II Account. Xxxxxx XX Holdings irrevocably directs the
-------------------
Administrative Agent, on each Funding Date on which Monies are transferred from
the O&M Account to the Holdings II Account pursuant to Section 3.2(a), (i) to
--------------
remit an amount equal to the Holdings II Periodic Tax Amount from the Holdings
II Account to Xxxxxx XX Holdings for payment of sales tax due and owing by it
under the applicable Sales Tax Agreement and (ii) to transfer the Holdings II
Return Amount from the Holdings II Account to the Revenue Account for
disbursement on such Funding Date in accordance with Section 3.1(b).
--------------
(c) Holdings III Account. Xxxxxx III Holdings irrevocably directs the
--------------------
Administrative Agent, on each Funding Date on which Monies are transferred from
the O&M Account to the Holdings III Account pursuant to Section 3.2(a), (i) to
--------------
remit an amount equal to the Holdings III Periodic Tax Amount from the Holdings
III Account to Xxxxxx III Holdings for payment of sales tax due and owing by it
under the applicable Sales Tax Agreement and (ii) to transfer the Holdings III
Return Amount from the Holdings III Account to the Revenue Account for
disbursement on such Funding Date in accordance with Section 3.1(b).
--------------
(d) It is the intention of the parties hereto that the Administrative
Agent shall transfer the Holdings II Return Amount and the Holdings III Return
Amount to the Revenue Account as soon as possible after, but in any event on the
same Funding Date as, the transfers of the Holdings II ESA Amount or the
Holdings III ESA Amount, as applicable, from the O&M Account to the Holdings II
Account or the Holdings III Account, respectively. In addition, the parties
hereto acknowledge that amounts transferred into the Revenue Account pursuant to
Sections 3.2 (b) and 3.2(c) hereof (i) shall not again be transferred into the
---------------- ------
O&M Account to pay O&M Costs unless necessary to fund a shortfall in the O&M
Account remaining after the initial transfer of funds to the O&M Account on such
Funding Date, and (ii) shall be added to amounts otherwise on deposit in the
Revenue Account before transfer or application of funds from the Revenue Account
to any priority below First.
-----
SECTION 3.3 Sales Tax Reserve Account.
-------------------------
20
(a) The Issuer may provide (i) one or more letters of credit (each,
until replaced, a "Sales Tax Reserve L/C") in substitution for all or any
---------------------
portion of the Monies required to be on deposit and/or (ii) one or more Sales
Tax Reserve Guaranties in substitution for all or any portion of the Monies
required to be on deposit in or credited to the Sales Tax Reserve Account,
provided that any such Sales Tax Reserve L/C complies with the requirements set
--------
forth in clause (b) below, and any such Sales Tax Reserve Guaranty complies with
the definition thereof. The Issuer may provide, from time to time as the Issuer
determines, substitute or replacement Sales Tax Reserve L/Cs or Sales Tax
Reserve Guaranties that meet the requirements hereof. Upon receipt of an
Officer's Certificate of the Issuer requesting such release, the Administrative
Agent shall release and pay to the Issuer or its designee such amount of Monies
for which Sales Tax Reserve L/Cs or Sales Tax Reserve Guaranties are substituted
(b) The Issuer shall ensure that each Sales Tax Reserve L/C shall: (i)
be an irrevocable direct pay letter of credit naming the Collateral Agent for
the benefit of the Secured Parties as beneficiary; (ii) be issued by a bank or
other financial institution rated at least "A2" by Xxxxx'x and at least "A" by
S&P; and (iii) name a Person other than the Issuer as the party responsible for
reimbursement or other obligations in respect of such Sales Tax Reserve L/C.
(c) On the Sales Tax Final Payment Date, Monies on deposit or credited
to the Sales Tax Reserve Account may be remitted to the Issuer or paid directly
to the taxing authority to whom such sales taxes are due in an amount set forth
in an Officer's Certificate of the Issuer (which Officer's Certificate shall be
delivered to the Administrative Agent no later than three (3) Business Days
before the date on which such Monies are to be remitted or paid directly to the
taxing authority to whom such sales taxes are due) as being the amount owing
pursuant to the Sales Tax Agreements on the Sales Tax Final Payment Date. An
Officer's Certificate of the Issuer delivered to the Administrative Agent
pursuant to this Section 3.3 shall indicate (a) the name of each Person to whom
-----------
the payment requested under such Officer's Certificate is to be made and (b) the
payment or wire transfer instructions for the payment or transfer of such
amounts by the Administrative Agent to each such Person. To the extent that
amounts held in the Sales Tax Reserve Account at 12:00 p.m. (noon) two (2)
Business Days prior to the Sales Tax Final Payment Date are insufficient to fund
the amounts set forth in such Officer's Certificate, one (1) Business Day prior
to such Sales Tax Final Payment Date, the Administrative Agent shall deliver to
(x) each Sales Tax Reserve L/C Provider, if any, on such date a draft on its
respective Sales Tax Reserve L/C, together with an appropriate certificate with
respect thereto if required under such Sales Tax Reserve L/C and (y) to each
Sales Tax Reserve Guarantor, if any, a notice of payment by such Sales Tax
Reserve Guarantor under its Sales Tax Reserve
21
Guaranty. The aggregate amount to be drawn on all Sales Tax Reserve L/Cs and
paid under all such Sales Tax Reserve Guaranties in accordance with the
immediately preceding sentence shall be equal to such insufficiency (the "Sales
-----
Tax Reserve Insufficiency Amount") and the amount to be drawn under each such
--------------------------------
Sales Tax Reserve L/C and each such Sales Tax Reserve Guaranty shall be
determined ratably based on the aggregate of the Drawing Amounts and the
aggregate of the Guaranteed Amounts available under all such Sales Tax Reserve
L/Cs and all such Sales Tax Reserve Guaranties, respectively. The Administrative
Agent shall deposit the amounts, if any, received from each Sales Tax Reserve
L/C Provider and each Sales Tax Reserve Guarantor in the Sales Tax Reserve
Account for disbursement in accordance with the first sentence of this Section
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3.3(c). The Administrative Agent shall transfer to the Revenue Account any
------
amounts which remain on deposit in or credited to the Sales Tax Reserve Account
after the Sales Tax Final Payment Date.
(d) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) prior to the expiration of any Sales Tax Reserve
L/C delivered to the Administrative Agent in respect of the Sales Tax Reserve
Account, provided that such Sales Tax Reserve L/C has not been previously
--------
renewed, extended or replaced (with a new Sales Tax Reserve L/C or a Sales Tax
Reserve Guaranty), the Administrative Agent shall deliver to the Sales Tax
Reserve L/C Provider providing such Sales Tax Reserve L/C on such date (i) a
draft on such Sales Tax Reserve L/C in an amount equal to the Drawing Amount of
such Sales Tax Reserve L/C and (ii) an appropriate certificate with respect
thereto if required by such Sales Tax Reserve L/C. The Administrative Agent
shall deposit the amounts received from such Sales Tax Reserve L/C Provider in
payment of such draft in the Sales Tax Reserve Account to be applied in
accordance with this Section 3.3.
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(e) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Sales Tax Reserve
L/C Provider is rated less than "A" by S&P or less than "A2" by Xxxxx'x,
provided that the Sales Tax Reserve L/C issued by such Sales Tax Reserve L/C
--------
Provider has not been replaced on or before the end of such 45-day period with a
Sales Tax Reserve L/C issued by a new Sales Tax Reserve L/C Provider or a Sales
Tax Reserve Guaranty, the Administrative Agent shall deliver to such Sales Tax
Reserve L/C Provider on such date (i) a draft on such Sales Tax Reserve L/C in
an amount equal to the Drawing Amount of such Sales Tax Reserve Account L/C and
(ii) an appropriate certificate with respect thereto if required by such Sales
Tax Reserve L/C. The Administrative Agent shall deposit the amounts received
from such Sales Tax Reserve L/C Provider in payment of such draft in the Sales
Tax Reserve Account to be applied in accordance with this Section 3.3.
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22
(f) Upon receipt of a notice from any Sales Tax Reserve L/C Provider
that the Sales Tax Reserve L/C provided by such Sales Tax Reserve L/C Provider
will be terminated prior to its stated expiration date, if, not less than
fifteen (15) Business Days prior to the termination date as provided in such
notice of termination, such Sales Tax Reserve L/C has not been replaced with a
new Sales Tax Reserve L/C or a Sales Tax Reserve Guaranty, the Administrative
Agent shall deliver to such Sales Tax Reserve L/C Provider (i) a draft on such
Sales Tax Reserve L/C in an amount equal to the Drawing Amount of such Sales Tax
Reserve L/C and (ii) an appropriate certificate with respect thereto if required
by such Sales Tax Reserve L/C. The Administrative Agent shall deposit the
amounts received from such Sales Tax Reserve L/C Provider in payment of such
draft in the Sales Tax Reserve Account to be applied in accordance with this
Section 3.3.
-----------
(g) Upon receipt of a notice from any Sales Tax Reserve Guarantor that
the Sales Tax Reserve Guaranty provided by such Sales Tax Reserve Guarantor will
be terminated, if, not less than fifteen (15) Business Days prior to the
termination date as provided in such notice of termination, such Sales Tax
Reserve Guaranty has not been replaced with a new Sales Tax Reserve Guaranty or
a Sales Tax Reserve L/C, the Administrative Agent shall deliver to such Sales
Tax Reserve Guarantor a notice of payment to such Sales Tax Reserve Guarantor in
an amount equal to the Guaranteed Amount of such Sales Tax Reserve Guaranty.
The Administrative Agent shall deposit amounts received from such Sales Tax
Reserve Guarantor in the Sales Tax Reserve Account to be applied in accordance
with this Section 3.3.
-----------
(h) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Sales Tax Reserve
Guarantor is rated less than "BBB" by S&P or less than "Baa2" by Xxxxx'x,
provided that the Sales Tax Reserve Guaranty issued by such Sales Tax Reserve
--------
Guarantor has not been replaced with a Sales Tax Reserve Guaranty issued by a
new Sales Tax Reserve Guarantor or with a Sales Tax Reserve L/C, the
Administrative Agent shall deliver to such Sales Tax Reserve Guarantor on such
date a notice of payment to such Sales Tax Reserve Guarantor in an amount equal
to the Guaranteed Amount of such Sales Tax Reserve Guaranty. The Administrative
Agent shall deposit amounts received from such Sales Tax Reserve Guarantor in
the Sales Tax Reserve Account to be applied in accordance with this Section 3.3.
-----------
SECTION 3.4 Debt Service Payment Account. Monies on deposit in or
----------------------------
credited to the Debt Service Payment Account shall be allocated ratably (based
on an Officer's Certificate of the Issuer provided to the Administrative Agent)
among sub-accounts of the Debt Service Payment Account for each credit facility
(including the Bonds) constituting a Senior Secured Obligation, based on the
principal of,
23
premium, if any, and interest due or becoming due, and fees, indemnities or
other amounts owed in respect of such credit facility on the next succeeding
payment date therefor (other than the principal of any Debt Service Reserve LOC
Loans). On any date that amounts for the payment of such Senior Secured
Obligations are due and payable and have been specified in a Funding Date
Certificate delivered to the Administrative Agent in accordance with Section
-------
3.1(b)(iii) (or if such day is not a Business Day, then on the next succeeding
-----------
Business Day) and have been allocated to a sub-account of the Debt Service
Payment Account applicable to such Senior Secured Obligations, the
Administrative Agent shall remit such amounts to the Persons specified in such
Funding Date Certificate for the payment of such Senior Secured Obligations;
provided, however, that the Administrative Agent shall segregate such amounts
-------- -------
from any other monies on deposit in the Debt Service Payment Account until such
time as payment is made to the Persons entitled thereto. The Issuer hereby
instructs the Collateral Agent and the Administrative Agent to make all such
payments in respect of the Bonds directly to the Trustee for deposit into the
Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and the
-----------
Collateral Agent and the Administrative Agent hereby acknowledge receipt of such
instruction. In the event that Monies on deposit in or credited to the Debt
Service Payment Account exceed the amount of Monies required by this Agreement
to be deposited therein or credited thereto after giving effect to the payments
made pursuant to this Section 3.4, the Administrative Agent shall transfer such
-----------
excess amounts from the Debt Service Payment Account to the Revenue Account at
the written direction of the Issuer.
SECTION 3.5 DSR LOC Loan Principal Account.
------------------------------
(a) Monies on deposit in or credited to the DSR LOC Loan Principal
Account shall be used for the payment of principal of outstanding Debt Service
Reserve LOC Loans. On any date that such amounts have been specified in a
Funding Date Certificate in accordance with Section 3.1(b)(iv), the
------------------
Administrative Agent shall withdraw the monies on deposit in or credited to the
DSR LOC Loan Principal Account and remit such monies to the Debt Service Reserve
L/C Agent for the payment of such amounts.
(b) In the event that Monies on deposit in or credited to the DSR LOC
Loan Principal Account exceed the amount of Monies required by this Agreement to
be deposited therein or credited thereto after giving effect to the payments
made pursuant to this Section 3.5, the Administrative Agent shall transfer such
-----------
excess amounts from the DSR LOC Loan Principal Account to the Revenue Account at
the written direction of the Issuer.
SECTION 3.6 Debt Service Reserve Account.
----------------------------
24
(a) The Issuer may provide (i) one or more letters of credit (each, a
"Debt Service Reserve L/C") and/or (ii) one or more Debt Service Reserve
------------------------
Guaranties in each case in substitution for all or any portion of the Monies
required to be on deposit in or credited to the Debt Service Reserve Account,
provided that (A) any such Debt Service Reserve L/C complies with the
--------
requirements set forth in clause (b) below, (B) any such Debt Service Reserve
Guaranty complies with the definition thereof and (C) prior to the issuance of
any Debt Service Reserve L/C that is an Issuer Debt Service Reserve L/C, each
Rating Agency shall confirm that there will be no Rating Downgrade as a result
of the incurrence of Indebtedness by the Issuer in connection with such Issuer
Debt Service Reserve L/C or the Issuer Debt Service Reserve L/C Agreement
related thereto. The Issuer may, from time to time as the Issuer determines,
provide substitute or replacement Debt Service Reserve L/Cs or Debt Service
Reserve Guaranties that meet the requirements hereof. The Administrative Agent
shall release such amount of Monies for which Issuer Debt Service Reserve L/Cs
are substituted in accordance with clause (viii) of Section 3.1(b). Upon
--------------
receipt of an Officer's Certificate of the Issuer requesting such release, the
Administrative Agent shall release and pay to the Issuer or its designee such
amount of Monies for which Debt Service Reserve L/Cs (other than Issuer Debt
Service Reserve L/Cs) or Debt Service Reserve Guaranties are substituted.
(b) The Issuer shall ensure that each Debt Service Reserve L/C shall:
(i) be an irrevocable direct pay letter of credit naming the Collateral Agent
for the benefit of the Secured Parties as beneficiary; (ii) be issued by a bank
or other financial institution rated at least "A2" by Xxxxx'x and at least "A"
by S&P; (iii) if such Debt Service Reserve L/C is an Issuer Debt Service Reserve
L/C, be issued under a Debt Service Reserve L/C Agreement with payment terms
which are consistent with the terms of this Agreement and with other terms
customary for debt service reserve obligations similar to those described
herein, including, without limitation, (A) a requirement that any drawing under
such Debt Service Reserve L/C be converted into a Debt Service Reserve LOC Loan
which matures not less than five (5) years after the date of such drawing, and
(B) a provision which permits the Debt Service Reserve L/C Provider to convert
outstanding Debt Service Reserve LOC Loans into Debt Service Reserve LOC Bonds
at any time on or after the 5/th/ anniversary of the Closing Date and otherwise
in accordance with the terms of the applicable Debt Service Reserve L/C
Agreement; and (iv) if such Debt Service Reserve L/C is not an Issuer L/C, name
a Person other than the Issuer as the account party.
(c) On each date on which the Administrative Agent is required to
withdraw or transfer amounts from the Debt Service Payment Account to make
payments with respect to Senior Secured Obligations under Section 3.4, the
-----------
25
Administrative Agent shall first withdraw or transfer (for and only for the
purposes described in Section 3.4) amounts then held in the Debt Service Payment
-----------
Account. To the extent that amounts then held in the Debt Service Payment
Account at 12:00 p.m. (noon) two (2) Business Days prior to the date of the
requested withdrawal or transfer are insufficient to fund such withdrawal or
transfer (the "Debt Payment Amount"), as evidenced by an Officer's Certificate
-------------------
of the Issuer, one (1) Business Day prior to such date the Administrative Agent
shall transfer the Monies on deposit in or credited to the Debt Service Reserve
Account, if any, to the Debt Service Payment Account provided that, if, after
--------
such transfer of Monies from the Debt Service Reserve Account to the Debt
Service Payment Account, the Monies on deposit in or credited to the Debt
Service Payment Account are insufficient to fund the Debt Payment Amount, the
Administrative Agent shall, one (1) Business Day prior to the date of the
requested withdrawal or transfer, deliver to (x) each Debt Service Reserve L/C
Provider, if any, on such date a draft on its respective Debt Service Reserve
L/C, together with an appropriate certificate with respect thereto if required
under such Debt Service Reserve L/C and (y) to each Debt Service Reserve
Guarantor, if any, a notice of payment by such Debt Service Reserve Guarantor
under its Debt Service Reserve Guaranty. The aggregate amount to be drawn on
all such Debt Service Reserve L/Cs and paid under all such Debt Service Reserve
Guaranties in accordance with the immediately preceding sentence shall be equal
to the amount of such insufficiency (the "DSR Insufficiency Amount") and the
------------------------
amount to be drawn under each such Debt Service Reserve L/C and each such Debt
Service Reserve Guaranty shall be determined ratably based on the aggregate of
the Drawing Amounts and the aggregate of the Guaranteed Amounts then available
under all such Debt Service Reserve L/Cs and all such Debt Service Reserve
Guaranties, respectively.
The Administrative Agent shall deposit the amounts, if any, received from each
Debt Service Reserve L/C Provider and each Debt Service Reserve Guarantor in the
Debt Service Payment Account.
(d) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) prior to the expiration of any Debt Service
Reserve L/C delivered to the Administrative Agent in respect of the Debt Service
Reserve Account, provided that such Debt Service Reserve L/C has not been
--------
previously renewed, extended or replaced with a new Debt Service Reserve L/C or
a Debt Service Reserve Guaranty, the Administrative Agent shall deliver to the
Debt Service Reserve L/C Provider providing such Debt Service Reserve L/C on
such date (i) a draft on such Debt Service Reserve L/C in an amount equal to the
Drawing Amount of such Debt Service Reserve L/C and (ii) an appropriate
certificate with respect thereto if required by such Debt Service Reserve L/C.
The Administrative Agent shall deposit the amounts received from such Debt
Service Reserve L/C
26
Provider in payment of such draft in the Debt Service Reserve Account to be
applied in accordance with this Section 3.6.
-----------
(e) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Debt Service
Reserve L/C Provider is rated less than "A" by S&P or less than "A2" by Xxxxx'x,
provided that the Debt Service Reserve L/C issued by such Debt Service Reserve
--------
L/C Provider has not been replaced on or before the end of such 45-day period
with a Debt Service Reserve L/C issued by a new Debt Service Reserve L/C
Provider or a Debt Service Reserve Guaranty, the Administrative Agent shall
deliver to such Debt Service Reserve L/C Provider on such date (i) a draft on
such Debt Service Reserve L/C in an amount equal to the Drawing Amount of such
Debt Service Reserve Account L/C and (ii) an appropriate certificate with
respect thereto if required by such Debt Service Reserve L/C. The
Administrative Agent shall deposit the amounts received from such Debt Service
Reserve L/C Provider in payment of such draft in the Debt Service Reserve
Account to be applied in accordance with this Section 3.6.
-----------
(f) Upon receipt of a notice from any Debt Service Reserve L/C
Provider that the Debt Service Reserve L/C provided by such Debt Service Reserve
L/C Provider will be terminated prior to its stated expiration date, if, not
less than fifteen (15) Business Days prior to the termination date as provided
in such notice of termination, such Debt Service Reserve L/C has not been
replaced with a new Debt Service Reserve L/C or a Debt Service Reserve Guaranty,
the Administrative Agent shall deliver to such Debt Service Reserve L/C Provider
(i) a draft on such Debt Service Reserve L/C in an amount equal to the Drawing
Amount of such Debt Service Reserve L/C and (ii) an appropriate certificate with
respect thereto if required by such Debt Service Reserve L/C. The
Administrative Agent shall deposit the amounts received from such Debt Service
Reserve L/C Provider in payment of such draft in the Debt Service Reserve
Account to be applied in accordance with this Section 3.6.
-----------
(g) Upon receipt of a notice from any Debt Service Reserve Guarantor
that the Debt Service Reserve Guaranty provided by such Debt Service Reserve
Guarantor will be terminated, if, not less than fifteen (15) Business Days prior
to the termination date as provided in such notice of termination, such Debt
Service Reserve Guaranty has not been replaced with a new Debt Service Reserve
Guaranty or a Debt Service Reserve L/C, the Administrative Agent shall deliver
to such Debt Service Reserve Guarantor a notice of payment to such Debt Service
Reserve Guarantor in an amount equal to the Guaranteed Amount of such Debt
Service Reserve Guaranty. The Administrative Agent shall deposit amounts
received from such Debt Service Reserve Guarantor in the Debt Service Reserve
Account to be applied in accordance with this Section 3.6.
-----------
27
(h) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Debt Service
Reserve Guarantor is rated less than "BBB" by S&P or less than "Baa2" by
Xxxxx'x, provided that the Debt Service Reserve Guaranty issued by such Debt
--------
Service Reserve Guarantor has not been replaced with a Debt Service Reserve
Guaranty issued by a new Debt Service Reserve Guarantor or with a Debt Service
Reserve L/C, the Administrative Agent shall deliver to such Debt Service Reserve
Guarantor on such date a notice of payment to such Debt Service Reserve
Guarantor in an amount equal to the Guaranteed Amount of such Debt Service
Reserve Guaranty. The Administrative Agent shall deposit amounts received from
such Debt Service Reserve Guarantor in the Debt Service Reserve Account to be
applied in accordance with this Section 3.6.
-----------
SECTION 3.7 Major Maintenance Reserve Account.
---------------------------------
(a) Application of Amounts. Except as otherwise provided in this
----------------------
Agreement, amounts held in the Major Maintenance Reserve Account shall be
applied solely for the payment of Major Maintenance Expenditures due and payable
as of any Disbursement Date or the reimbursement for Major Maintenance
Expenditures paid prior to such Disbursement Date (as evidenced by invoices
received by the Issuer). All Monies withdrawn from the Major Maintenance
Reserve Account shall be withdrawn in accordance with the disbursement procedure
hereinafter described in this Section 3.7. In the event that Monies on deposit
-----------
in or credited to the Major Maintenance Reserve Account, after giving effect to
the payments made pursuant to this Section 3.7, exceed the amount of Monies
required by this Agreement to be deposited therein or credited thereto, the
Administrative Agent shall transfer such excess amounts from the Major
Maintenance Reserve Account to the Revenue Account at the written direction of
the Issuer.
(b) Conditions Precedent to Withdrawals. As a condition precedent to
-----------------------------------
any withdrawal from the Major Maintenance Reserve Account, there shall be
delivered by the Issuer to the Administrative Agent on or prior to the date
three (3) Business Days prior to each Disbursement Date a requisition from the
Issuer in the form attached hereto as Exhibit E (a "Maintenance Requisition")
--------- -----------------------
signed by an Authorized Representative of the Issuer.
(c) The Issuer may provide (i) one or more letters of credit (each, a
"Major Maintenance Reserve L/C") and/or (ii) one or more Major Maintenance
-----------------------------
Reserve Guaranties in each case in substitution for all or any portion of the
Monies required to be on deposit in or credited to the Major Maintenance Reserve
Account, provided that any such Major Maintenance Reserve L/C complies with the
--------
28
requirements set forth in clause (d) below, and any such Major Maintenance
Reserve Guaranty complies with the definition thereof. The Issuer may provide,
from time to time as the Issuer determines, substitute or replacement Major
Maintenance Reserve L/Cs or Major Maintenance Reserve Guaranties that meet the
requirements hereof. Upon receipt of an Officer's Certificate of the Issuer
requesting such release, the Administrative Agent shall release and pay to the
Issuer or its designee such amount of Monies for which Major Maintenance Reserve
L/Cs or Major Maintenance Reserve Guaranties are substituted.
(d) The Issuer shall ensure that each Major Maintenance Reserve L/C
shall: (i) be an irrevocable direct pay letter of credit naming the Collateral
Agent for the benefit of the Secured Parties as beneficiary; (ii) be issued by a
bank or other financial institution rated at least "A2" by Xxxxx'x and at least
"A" by S&P; and (iii) name a Person other than the Issuer as the party
responsible for reimbursement or other obligations in respect of such Major
Maintenance Reserve L/C.
(e) On each Disbursement Date following delivery by the Issuer to the
Administrative Agent of all documentation relating to such Disbursement Date
described in Section 3.7(b), the Issuer shall (subject to Section 3.11) instruct
-------------- ------------
the Administrative Agent to apply, and the Administrative Agent so apply, Monies
on deposit or credited to the Major Maintenance Reserve Account to make payments
in amounts set forth in, and otherwise in accordance with, the related Major
Maintenance Requisition. To the extent that amounts held in the Major
Maintenance Reserve Account at 12:00 p.m. (noon) two (2) Business Days prior to
the such Disbursement Date are insufficient to fund the amounts set forth in
such Major Maintenance Requisition, one (1) Business Day prior to such
Disbursement Date, the Administrative Agent shall deliver to (x) each Major
Maintenance Reserve L/C Provider, if any, on such date a draft on its respective
Major Maintenance Reserve L/C, together with an appropriate certificate with
respect thereto if required under such Major Maintenance Reserve L/C, and (y) to
each Major Maintenance Reserve Guarantor a notice of payment by such Major
Maintenance Reserve Guarantor under its Major Maintenance Reserve Guaranty. The
aggregate amount to be drawn on all such Major Maintenance Reserve L/Cs and paid
under all such Major Maintenance Reserve Guaranties in accordance with the
immediately preceding sentence shall be equal to the amount of such
insufficiency (the "Major Maintenance Insufficiency Amount") and the amount to
--------------------------------------
be drawn under each such Major Maintenance Reserve L/C and each such Major
Maintenance Reserve Guaranty shall be determined ratably based on the aggregate
of the Drawing Amounts and the aggregate of the Guaranteed Amounts then
available under all such Major Maintenance Reserve L/Cs and all such Major
Maintenance Reserve Guaranties, respectively. The Administrative Agent shall
deposit the amounts, if any, received from each Major Maintenance Reserve
29
L/C Provider and each Major Maintenance Reserve Guarantor in the Major
Maintenance Reserve Account for disbursement in accordance with the first
sentence of this Section 3.7(e).
--------------
(f) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) prior to the expiration of any Major Maintenance
Reserve L/C delivered to the Administrative Agent in respect of the Major
Maintenance Reserve Account, provided that such Major Maintenance Reserve L/C
--------
has not been previously renewed, extended or replaced with a new Major
Maintenance Reserve L/C or a Major Maintenance Reserve Guaranty, the
Administrative Agent shall deliver to the Major Maintenance Reserve L/C Provider
providing such Major Maintenance Reserve L/C on such date (i) a draft on such
Major Maintenance Reserve L/C in an amount equal to the Drawing Amount of such
Major Maintenance Reserve L/C and (ii) an appropriate certificate with respect
thereto if required by such Major Maintenance Reserve L/C. The Administrative
Agent shall deposit the amounts received from such Major Maintenance Reserve L/C
Provider in payment of such draft in the Major Maintenance Reserve Account to be
applied in accordance with this Section 3.7.
-----------
(g) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Major Maintenance
Reserve L/C Provider is rated less than "A" by S&P or less than "A2" by Xxxxx'x,
provided that the Major Maintenance Reserve L/C issued by such Major Maintenance
--------
Reserve L/C Provider has not been replaced on or before the end of such 45-day
period with a Major Maintenance Reserve L/C issued by a new Major Maintenance
Reserve L/C Provider or with a Major Maintenance Reserve Guaranty, the
Administrative Agent shall deliver to such Major Maintenance Reserve L/C
Provider on such date (i) a draft on such Major Maintenance Reserve L/C in an
amount equal to the Drawing Amount of such Major Maintenance Reserve Account L/C
and (ii) an appropriate certificate with respect thereto if required by such
Major Maintenance Reserve L/C. The Administrative Agent shall deposit the
amounts received from such Major Maintenance Reserve L/C Provider in payment of
such draft in the Major Maintenance Reserve Account to be applied in accordance
with this Section 3.7.
-----------
(h) Upon receipt of a notice from any Major Maintenance Reserve L/C
Provider that the Major Maintenance Reserve L/C provided by such Major
Maintenance Reserve L/C Provider will be terminated prior to its stated
expiration date, if, not less than fifteen (15) Business Days prior to the
termination date as provided in such notice of termination, such Major
Maintenance Reserve L/C has not been replaced with a new Major Maintenance
Reserve L/C or with a Major Maintenance Reserve Guaranty, the Administrative
Agent shall deliver to such Major
30
Maintenance Reserve L/C Provider (i) a draft on such Major Maintenance Reserve
L/C in an amount equal to the Drawing Amount of such Major Maintenance Reserve
L/C and (ii) an appropriate certificate with respect thereto if required by such
Major Maintenance Reserve L/C. The Administrative Agent shall deposit the
amounts received from such Major Maintenance Reserve L/C Provider in payment of
such draft in the Major Maintenance Reserve Account to be applied in accordance
with this Section 3.7.
-----------
(i) Upon receipt of a notice from any Major Maintenance Reserve
Guarantor that the Major Maintenance Reserve Guaranty provided by such Major
Maintenance Reserve Guarantor will be terminated, if, not less than fifteen (15)
Business Days prior to the termination date as provided in such notice of
termination, such Major Maintenance Reserve Guaranty has not been replaced with
a new Major Maintenance Reserve Guaranty or a Major Maintenance Reserve L/C, the
Administrative Agent shall deliver to such Major Maintenance Reserve Guarantor a
notice of payment in an amount equal to the Guaranteed Amount of such Major
Maintenance Reserve Guaranty. The Administrative Agent shall deposit amounts
received from such Major Maintenance Reserve Guarantor in the Major Maintenance
Reserve Account to be applied in accordance with this Section 3.7.
-----------
(j) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any Major Maintenance
Reserve Guarantor is rated less than "BBB" by S&P or less than "Baa2" by
Xxxxx'x, provided that the Major Maintenance Reserve Guaranty issued by such
--------
Major Maintenance Reserve Guarantor has not been replaced with a Major
Maintenance Reserve Guaranty issued by a new Major Maintenance Reserve Guarantor
or with a Major Maintenance Reserve L/C, the Administrative Agent shall deliver
to such Major Maintenance Reserve Guarantor on such date a notice of payment in
an amount equal to the Guaranteed Amount of such Major Maintenance Reserve
Guaranty. The Administrative Agent shall deposit amounts received from such
Major Maintenance Reserve Guarantor in the Major Maintenance Reserve Account to
be applied in accordance with this Section 3.7.
-----------
SECTION 3.8 PSA Contingency Reserve Account.
-------------------------------
(a) The Issuer may provide (i) one or more letters of credit (each, a
"PSA Contingency Reserve L/C") and/or (ii) one or more PSA Contingency Reserve
---------------------------
Guaranties in each case in substitution for all or any portion of the Monies
required to be on deposit in or credited to the PSA Continency Reserve Account,
provided that any such PSA Contingency Reserve L/C complies with the
--------
requirements set forth in clause (b) below, and any such PSA Contingency Reserve
Guaranty complies with the definition thereof. The Issuer may provide, from
time to
31
time as the Issuer determines, substitute or replacement PSA Contingency Reserve
L/Cs or PSA Contingency Reserve Guaranties that meet the requirements hereof.
Upon receipt of an Officer's Certificate of the Issuer requesting such release,
the Administrative Agent shall release and pay to the Issuer or its designee
such amount of Monies for which PSA Contingency Reserve L/Cs or PSA Contingency
Reserve Guaranties are substituted.
(b) The Issuer shall ensure that each PSA Contingency Reserve L/C
shall: (i) be an irrevocable direct pay letter of credit naming the Collateral
Agent for the benefit of the Secured Parties as beneficiary; (ii) be issued by a
bank or other financial institution rated at least "A2" by Xxxxx'x and at least
"A" by S&P; and (iii) name a Person other than the Issuer as the party
responsible for reimbursement or other obligations in respect of such PSA
Contingency Reserve L/C.
(c) If, after giving effect to the transfers to the Debt Service
Payment Account contemplated by Sections 3.1(b)(iii) and 3.6(c), amounts held in
-------------------- -------
the Debt Service Payment Account are insufficient to fund the Debt Payment
Amount, the Administrative Agent shall, prior to the making of any transfers to
the Distribution Suspense Account in accordance with Section 3.1(b)(vii) or any
-------------------
transfers contemplated by clause (d) of this Section 3.8, transfer the Monies on
-----------
deposit in or credited to the PSA Contingency Reserve Account, if any, to the
Debt Service Payment Account; provided that, if, after such transfer of Monies
--------
from the PSA Contingency Reserve Account to the Debt Service Payment Account,
the Monies on deposit in or credited to the Debt Service Payment Account are
insufficient to fund the Debt Payment Amount, the Administrative Agent shall,
one (1) Business Day prior to the date for payment of the Debt Service Payment
Amount, deliver to (x) each PSA Contingency Reserve L/C Provider, if any, on
such date a draft on its respective PSA Contingency Reserve L/C, together with
an appropriate certificate with respect thereto if required under such PSA
Contingency Reserve L/C and (y) to each PSA Contingency Reserve Guarantor, if
any, a notice of payment by such PSA Contingency Reserve Guarantor under its PSA
Contingency Reserve Guaranty. The aggregate amount to be drawn on all such PSA
Contingency Reserve L/Cs and paid under all such PSA Contingency Reserve
Guaranties in accordance with the proviso to the immediately preceding sentence
shall be equal to the amount of such insufficiency (the "PSA Contingency
---------------
Insufficiency Amount") and the amount to be drawn under each such PSA
--------------------
Contingency Reserve L/C and each such PSA Contingency Reserve Guaranty shall be
determined ratably based on the aggregate of the Drawing Amounts and the
aggregate of the Guaranteed Amounts then available under all such PSA
Contingency Reserve L/Cs and all such PSA Contingency Reserve Guaranties,
respectively.
32
The Administrative Agent shall deposit the amounts, if any, received under this
clause (c) from each PSA Contingency Reserve L/C Provider and each PSA
Contingency Reserve Guarantor in the Debt Service Payment Account.
(d) After making the transfer contemplated by Section 3.8(c), if any,
--------------
on any Funding Date on which monies on deposit in or credited to the PSA
Contingency Reserve Account are to be transferred to the Distribution Suspense
Account in accordance with Section 3.1(b)(vii), (i) the Debt Service Reserve
-------------------
Requirement is greater than zero (after giving effect to the transfer set forth
in Section 3.1(b)(v)), or (ii) the Major Maintenance Reserve Requirement is
------------------
greater than zero (after giving effect to the transfer set forth in Section
-------
3.1(b)(vi), the Administrative Agent shall transfer the Monies otherwise
----------
available for distribution from the PSA Contingency Reserve Account, if any,
first, to the Debt Service Reserve Account in an amount equal to the Debt
Service Reserve Requirement and second, to the Major Maintenance Account in an
amount equal to the Major Maintenance Reserve Requirement.
(e) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) prior to the expiration of any PSA Contingency
Reserve L/C delivered to the Administrative Agent in respect of the PSA
Contingency Reserve Account, provided that such PSA Contingency Reserve L/C has
--------
not been previously renewed, extended or replaced with a new PSA Contingency
Reserve L/C or with a PSA Contingency Reserve Guaranty, the Administrative Agent
shall deliver to the PSA Contingency Reserve L/C Provider providing such PSA
Contingency Reserve L/C on such date (i) a draft on such PSA Contingency Reserve
L/C in an amount equal to the Drawing Amount of such PSA Contingency Reserve L/C
and (ii) an appropriate certificate with respect thereto if required by such PSA
Contingency Reserve L/C. The Administrative Agent shall deposit the amounts
received from such PSA Contingency Reserve L/C Provider in payment of such draft
in the PSA Contingency Reserve Account to be applied in accordance with this
Section 3.8.
-----------
(f) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any PSA Contingency
Reserve L/C Provider is rated less than "A" by S&P or less than "A2" by Xxxxx'x,
provided that the PSA Contingency Reserve L/C issued by such PSA Contingency
--------
Reserve L/C Provider has not been replaced on or before the end of such 45-day
period with a PSA Contingency Reserve L/C issued by a new PSA Contingency
Reserve L/C Provider or with a PSA Contingency Reserve Guaranty, the
Administrative Agent shall deliver to such PSA Contingency Reserve L/C Provider
on such date (i) a draft on such PSA Contingency Reserve L/C in an amount equal
to the Drawing Amount of such PSA Contingency Reserve Account L/C and (ii) an
33
appropriate certificate with respect thereto if required by such PSA Contingency
Reserve L/C. The Administrative Agent shall deposit the amounts received from
such PSA Contingency Reserve L/C Provider in payment of such draft in the PSA
Contingency Reserve Account to be applied in accordance with this Section 3.8.
-----------
(g) Upon receipt of a notice from any PSA Contingency Reserve L/C
Provider that the PSA Contingency Reserve L/C provided by such PSA Contingency
Reserve L/C Provider will be terminated prior to its stated expiration date, if,
not less than fifteen (15) Business Days prior to the termination date as
provided in such notice of termination, such PSA Contingency Reserve L/C has not
been replaced with a new PSA Contingency Reserve L/C or a PSA Contingency
Reserve Guaranty, the Administrative Agent shall deliver to such PSA Contingency
Reserve L/C Provider (i) a draft on such PSA Contingency Reserve L/C in an
amount equal to the Drawing Amount of such PSA Contingency Reserve L/C and (ii)
an appropriate certificate with respect thereto if required by such PSA
Contingency Reserve L/C. The Administrative Agent shall deposit the amounts
received from such PSA Contingency Reserve L/C Provider in payment of such draft
in the Debt Service Reserve Account to be applied in accordance with this
Section 3.8.
-----------
(h) Upon receipt of a notice from any PSA Contingency Reserve
Guarantor that the PSA Contingency Reserve Guaranty provided by such PSA
Contingency Reserve Guarantor will be terminated, if, not less than fifteen (15)
Business Days prior to the termination date as provided in such notice of
termination, such PSA Contingency Reserve Guaranty has not been replaced with a
new PSA Contingency Reserve Guaranty or a PSA Contingency Reserve L/C, the
Administrative Agent shall deliver to such PSA Contingency Reserve Guarantor a
notice of payment in an amount equal to the Guaranteed Amount of such PSA
Contingency Reserve Guaranty. The Administrative Agent shall deposit amounts
received from such PSA Contingency Reserve Guarantor in the PSA Contingency
Reserve Account to be applied in accordance with this Section 3.8.
-----------
(i) Forty-five (45) days (or if such day is not a Business Day, on the
next succeeding Business Day) after receipt of notice that any PSA Contingency
Reserve Guarantor is rated less than "BBB" by S&P or less than "Baa2" by
Xxxxx'x, provided that the PSA Contingency Reserve Guaranty issued by such PSA
--------
Contingency Reserve Guarantor has not been replaced with a PSA Contingency
Reserve Guaranty issued by a new PSA Contingency Reserve Guarantor or with a PSA
Contingency Reserve L/C, the Administrative Agent shall deliver to such PSA
Contingency Reserve Guarantor on such date a notice of payment in an amount
equal to the Guaranteed Amount of such PSA Contingency Reserve Guaranty. The
Administrative Agent shall deposit amounts received from such PSA Contingency
34
Reserve Guarantor in the PSA Contingency Reserve Account to be applied in
accordance with this Section 3.8.
-----------
SECTION 3.9 Distribution Suspense Account.
-----------------------------
(a) On any Bond Payment Date on which all of the conditions set forth
in clause (b) of this Section 3.9 (the "Distribution Conditions") are satisfied,
----------- -----------------------
upon delivery to the Collateral Agent, the Administrative Agent and the Trustee
of an Officer's Certificate of the Issuer certifying as such three (3) Business
Days prior to such Bond Payment Date, the Administrative Agent shall transfer
Monies from the Distribution Suspense Account (regardless of whether such Monies
have been on deposit therein for more than 12 consecutive months) to the
Distribution Account in accordance with clause (b) of this Section 3.9 in an
-----------
amount equal to the Monies on deposit in or credited to the Distribution
Suspense Account or such lesser amount, as specified by the Issuer in its
Officer's Certificate.
(b) Subject to clauses (c) and (d) of Section 3.9, the transfer of
-----------
Monies on any Bond Payment Date from the Distribution Suspense Account to the
Distribution Account as described in clause (a) of this Section 3.9 is subject
-----------
to the following conditions:
(i) all required transfers and payments described in clauses
(i) through (viii) of Section 3.1(b) shall have been completed;
--------------
(ii) no Default or Event of Default shall have occurred and be
continuing or shall result from such transfer of Monies to the Distribution
Account;
(iii) The Debt Service Coverage Ratio for the four quarter period
preceding such Bond Payment Date (or with respect to the first Bond Payment
Date, the number of full fiscal quarters that have elapsed since the Closing
Date) measured as one accounting period, and the Projected Debt Service Coverage
Ratio for each of the two four quarter periods succeeding such Bond Payment Date
(each such four quarter period measured as one accounting period), shall each be
greater than or equal to:
(A) 1.7 to 1.0; or
(B) 1.6 to 1.0, if as of such Bond Payment Date, the
Issuer is party to Permitted PPAs covering, in the aggregate, at least 25%
of the capacity of the Project for the consecutive period of eight full
quarters, taken as a whole, following such Bond Payment Date; or
35
(C) 1.45 to 1.0, if as of such Bond Payment Date, the Issuer is
party to Permitted PPAs covering, in the aggregate, at least 50% of the
capacity of the Project for the consecutive period of eight full quarters,
taken as a whole, following such Bond Payment Date; or
(D) 1.3 to 1.0, if as of such Bond Payment Date, the Issuer is
party to Permitted PPAs covering, in the aggregate, at least 75% of the
capacity of the Project for the consecutive period of eight full quarters,
taken as a whole, following such Bond Payment Date; or
(E) 1.2 to 1.0, if as of such Bond Payment Date, the Issuer is
party to Permitted PPAs covering, in the aggregate, 100% of the capacity of
the Project for the consecutive period of eight full quarters, taken as a
whole, following such Bond Payment Date; and
(iv) The Issuer shall have delivered to the Trustee, the Collateral
Agent and the Administrative Agent an Officer's Certificate of the Issuer
certifying as to the matters described in clauses (i) through (iii) above
(including the relevant PPAs). The Issuer shall determine the satisfaction of
the conditions in clause (iii) based on projections prepared by the Issuer in
good faith based upon assumptions consistent in all material respects with the
relevant contracts and agreements, the Transaction Documents, historical
operations and the Issuer's good faith projections of future revenues and
projections of operating and maintenance expenses for the Issuer in light of
existing or reasonably expected regulatory and market environments in the
markets in which the Project is or will be operated and upon the assumption that
there will be no early redemption or prepayment of Indebtedness or that any
Indebtedness which matures within such projected periods will be refinanced on
reasonable terms. For the avoidance of doubt, the examples set forth on Annex A
-------
hereto illustrate how the applicable percentage of capacity shall be calculated
in clauses (B), (C), (D) and (E) of Section 3.9(b)(iii) above.
(c) If (A) any Monies remain on deposit in or credited to the
Distribution Suspense Account for twelve (12) months continuously without being
transferred to the Distribution Account pursuant to clause (a) of this Section
-------
3.9, (B) the Issuer delivers an Issuer Request to the Trustee requesting the
---
Trustee to call a vote of the Holders to determine whether to apply such funds
to a redemption or prepayment, as applicable, of the Redeemable Facilities, and
(C) Holders holding at least 66 2/3% of the Outstanding Bonds vote to apply such
funds to such redemption and prepayment, then the Monies that have so remained
on deposit in or credited to the Distribution Suspense Account for twelve (12)
consecutive months without being transferred to the Distribution Account
pursuant to clause (a) of this Section 3.9 shall
-----------
36
be used to redeem or prepay, as applicable, the Redeemable Facilities on a pro
rata basis, as among the Redeemable Facilities, based upon the then outstanding
principal amounts of each of the Redeemable Facilities, at the prices for
redemption or prepayment set forth in the Indenture or the applicable facility
agreement in respect of such Redeemable Facility, as applicable,shall provide
the Administrative Agent a certificate (an "Allocation Certificate") setting
----------------------
forth the amount to be so allocated to each Redeemable Facility and the account
or accounts into which each Redeemable Facility's allocable share shall be
deposited in accordance with the terms of the Indenture or the applicable
Additional Indebtedness Agreement, as applicable. Within two (2) Business Days
of its receipt of an Allocation Certificate, the Administrative Agent shall make
the transfers specified therein. The Issuer hereby instructs the Collateral
Agent and the Administrative Agent to make all such payments in respect of the
Bonds directly to the Trustee for deposit into the Bond Fund in accordance with
the terms of Section 3.3 of the Indenture, and the Collateral Agent and the
-----------
Administrative Agent hereby acknowledge receipt of such instruction.
(d) Pending any other application of Monies on deposit in or credited
to the Distribution Suspense Account as provided herein, the Administrative
Agent shall, on any Funding Date, withdraw and transfer Monies on deposit in or
credited to the Distribution Suspense Account to the Debt Service Payment
Account if and to the extent such amounts on deposit in the Debt Service Payment
Account and the Debt Service Reserve Account are insufficient to pay any amounts
due on the Senior Secured Obligations on such Funding Date.
(e) Subject to Section 3.9(c), the Issuer may, at any time, request in
--------------
writing that the Administrative Agent transfer any amounts on deposit in the
Distribution Suspense Account to any other Account (other than the Distribution
Account).
(f) The Administrative Agent shall withdraw and transfer Monies on
deposit in or credited to the Distribution Account to such Persons as may be
directed in an Officer's Certificate of the Issuer delivered at any time to the
Administrative Agent three (3) Business Days prior to the date of such
withdrawal and transfer. Such Officer's Certificate shall state that all
conditions precedent provided for in this Section 3.9 have been complied with.
-----------
SECTION 3.10 Proceeds Account.
----------------
(a) Loss Events. Except as otherwise expressly provided herein, all
-----------
Loss Proceeds shall be deposited into the Proceeds Account directly, or if
received by the Issuer, as soon as practicable (but no more than three (3)
Business Days) after receipt, in either case in accordance with this Section
-------
3.10(a). The
-------
37
Administrative Agent shall separately segregate such Loss Proceeds for
distribution in the manner as set forth below:
(i) If (A) a Loss Event occurs and (B) either (x) the Issuer
determines not to Restore the Project or (y) the Issuer determines that the
Project cannot be Restored to permit operation of the Project on a Commercially
Feasible Basis, upon delivery to the Administrative Agent and the Collateral
Agent of an Officer's Certificate of the Issuer certifying to the foregoing
(together with, in the case of clause (y) immediately above, a certificate
signed by an authorized representative of the Independent Engineer concurring
with such Officer's Certificate), then the Loss Proceeds in excess of $5,000,000
received by the Issuer in connection with such Loss Event shall be used to
redeem or prepay, as applicable, the Redeemable Facilities on a pro rata basis
--- ----
among the Redeemable Facilities, based upon the then outstanding principal
amounts of each of the Redeemable Facilities, at the prices for redemption or
prepayment set forth in the applicable Financing Document, and the Issuer shall
provide the Administrative Agent an Allocation Certificate setting forth the
amount to be so allocated to each Redeemable Facility and the account or
accounts into which each Redeemable Facility's allocable share shall be
deposited in accordance with the terms of the applicable Financing Document.
Within three (3) Business Days of its receipt of an Allocation Certificate, the
Administrative Agent shall make the transfers from the Proceeds Account
specified therein. The Issuer hereby instructs the Collateral Agent and the
Administrative Agent to make all such payments in respect of the Bonds directly
to the Trustee for deposit into the Bond Fund in accordance with the terms of
Section 3.3 of the Indenture, and the Collateral Agent and the Administrative
-----------
Agent hereby acknowledge receipt of such instruction. Amounts remaining in the
Proceeds Account after the redemption required under this Section 3.10(a)(i)
------------------
shall be transferred by the Administrative Agent from the Proceeds Account to
the Revenue Account for disbursement in accordance with Section 3.1(b).
--------------
(ii) If (A) a Loss Event occurs, (B) the Issuer receives Loss
Proceeds in respect of such Loss Event and (C) the Issuer determines that the
Project can be Restored to permit operation of the Project on a Commercially
Feasible Basis, the Issuer shall deliver to the Administrative Agent and the
Collateral Agent an Officer's Certificate of the Issuer certifying to the
foregoing and a certificate signed by an authorized representative of the
Independent Engineer concurring with such Officer's Certificate, and such Loss
Proceeds shall be applied as set forth in paragraphs (iii), (iv) and (v) below.
(iii) Before any withdrawal or transfer shall be made from the
Proceeds Account with respect to any Restoration, there shall be filed with the
Administrative Agent three (3) Business Days prior to any Disbursement Date:
38
(A) a requisition from the Issuer substantially in the form
attached hereto as Exhibit F (a "Restoration Requisition") and signed by an
--------- -----------------------
Authorized Representative of the Issuer;
(B) if the cost of the Restoration is anticipated to exceed
$5,000,000, a certificate of the Independent Engineer substantially in the
form attached hereto as Exhibit G (an "Independent Engineer Restoration
--------- --------------------------------
Certificate").
-----------
(iv) On the Disbursement Date referred to in Section 3.10(a)(iii)
--------------------
or as soon thereafter as practicable following receipt of the documents
described in Sections 3.10(a)(iii)(A) and (B) above, the Administrative Agent
------------------------ ---
shall withdraw and transfer from the Proceeds Account and shall make available
to the Issuer the amount set forth in the Restoration Requisition and,
thereafter, the Issuer shall remit such amount to the applicable payees with
respect to the Restoration Work (or, in the case of reimbursement for the costs
of Restoration Work theretofore paid by the Issuer, retain such amounts for
itself).
(v) Upon completion of any Restoration Work, there shall be filed
with the Administrative Agent and the Collateral Agent (A) an Officer's
Certificate of the Issuer certifying the completion of such Restoration Work and
the amount, if any, required in its opinion to be retained in the Proceeds
Account for the payment of any costs of such Restoration Work not then due and
payable or the liability for payment of which is being contested or disputed by
the Issuer, and for the payment of reasonable contingencies following completion
of such Restoration Work and (B) if the Restoration Work required an Independent
Engineer Restoration Certificate under Section 3.10(a)(iii)(B) above, an
officer's certificate of the Independent Engineer stating that completion of the
Restoration has occurred and concurring with the amounts to be retained in the
Proceeds Account. Upon receipt of such Officer's Certificate and, if applicable,
such Independent Engineer Restoration Certificate, the Administrative Agent
shall first, transfer the amount remaining in the Proceeds Account in excess of
-----
the amounts to remain in the Proceeds Account as stated in such Officer's
Certificate to the applicable payees (or, in the case of reimbursement for the
costs of the Restoration theretofore paid by the Issuer, to the Issuer) with
respect to such Restoration Work, and second, segregate the remaining excess in
------
the Proceeds Account from any other amounts therein. If such remaining excess
exceeds $5,000,000, then the Loss Proceeds received in connection with such Loss
Event in excess of $5,000,000, after giving effect to the cost of the
Restoration, shall be used to redeem or prepay, as applicable, the Redeemable
Facilities on a pro rata basis among the Redeemable Facilities, based upon the
--- ----
then outstanding principal amounts of each of the Redeemable Facilities, at the
prices for redemption
39
or prepayment set forth in the applicable Financing Document, and the Issuer
shall provide the Administrative Agent an Allocation Certificate setting forth
the amount to be so allocated to each Redeemable Facility and the account or
accounts into which each Redeemable Facility's allocable share shall be
deposited in accordance with the terms of the applicable Financing Document.
Within three (3) Business Days of its receipt of an Allocation Certificate, the
Administrative Agent shall make the transfers specified therein. The Issuer
hereby instructs the Collateral Agent and the Administrative Agent to make all
such payments in respect of the Bonds directly to the Trustee for deposit into
the Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and
-----------
the Collateral Agent and the Administrative Agent hereby acknowledge receipt of
such instruction. If the remaining excess is equal to or less than $5,000,000,
the Administrative Agent shall transfer such monies to the Revenue Account.
Thereafter, upon receipt of an Officer's Certificate of the Issuer certifying
payment of all costs of Restoration Work for the Project, the Administrative
Agent shall transfer any amounts remaining in the Proceeds Account to the
Revenue Account.
(b) Receipt of Buy-Out Proceeds. All Buy-Out Proceeds shall be
---------------------------
deposited into the Proceeds Account directly, or, if received by the Issuer, as
soon as practicable (but no more than three (3) Business Days) after receipt, in
either case in accordance with this Section 3.10(b). If (i) the aggregate
---------------
amount of Buy-Out Proceeds received by or on behalf of the Issuer is less than
or equal to $10,000,000 or (ii) the aggregate amount of Buy-Out Proceeds
received by or on behalf of the Issuer exceeds $10,000,000 and the
Administrative Agent receives written confirmation from each Rating Agency that
the related Buy-Out or Buy-Outs will not result in a Rating Downgrade (taking
into account the proviso to the definition of Rating Downgrade for Voluntary
Buy-Outs) by such Rating Agency, then the Administrative Agent shall transfer
the Monies representing such Buy-Out Proceeds to the Revenue Account for
application in accordance with Section 3.1(b). If (A) the aggregate amount of
--------------
Buy-Out Proceeds received by or on behalf of the Issuer is in excess of
$10,000,000 and (B) any Rating Agency does not confirm in writing that such Buy-
Out or Buy-Outs will not result in a Rating Downgrade (taking into account the
proviso to the definition of Rating Downgrade for Voluntary Buy-Outs) by such
Rating Agency, then the Buy-Out Proceeds so received by the Issuer shall be used
to redeem or prepay, as applicable, the Redeemable Facilities on a pro rata
--- ----
basis among the Redeemable Facilities, based upon the then outstanding principal
amounts of each of the Redeemable Facilities, at the prices for redemption or
prepayment set forth in the applicable Financing Document, and the Issuer shall
provide the Administrative Agent an Allocation Certificate setting forth the
amount to be so allocated to each Redeemable Facility and the account or
accounts into which each Redeemable Facility's allocable share shall be
deposited in accordance with the terms of the applicable Financing Document.
Within three (3) Business Days of its receipt
40
of an Allocation Certificate, the Administrative Agent shall make the transfers
specified therein.
(c) Proceeds of Permitted Asset Dispositions. All proceeds received by
----------------------------------------
the Issuer in connection with a disposition of assets permitted by Section
-------
5.1(g) of the Indenture ("Asset Sale Proceeds") shall be deposited into the
------ -------------------
Proceeds Account directly, or, if received by the Issuer, as soon as practicable
(but no more than three (3) Business Days) after receipt, in either case in
accordance with this Section 3.10(c). If the Issuer receives more than
---------------
$5,000,000 of Asset Sale Proceeds in connection with any disposition of assets
permitted by Section 5.1(g) of the Indenture, then such Asset Sale Proceeds in
--------------
excess of $5,000,000 shall be used to redeem or prepay, as applicable, the
Redeemable Facilities on a pro rata basis among the Redeemable Facilities, based
--- ----
upon the then outstanding principal amounts of each of the Redeemable
Facilities, at the prices for redemption or prepayment set forth in the
applicable Financing Document, and the Issuer shall provide the Administrative
Agent an Allocation Certificate setting forth the amount to be so allocated to
each Redeemable Facility and the account or accounts into which each Redeemable
Facility's allocable share shall be deposited in accordance with the terms of
the applicable Financing Document. Within three (3) Business Days of its
receipt of an Allocation Certificate, the Administrative Agent shall make the
transfers specified therein. The Issuer hereby instructs the Collateral Agent
and the Administrative Agent to make all such payments in respect of the Bonds
directly to the Trustee for deposit into the Bond Fund in accordance with the
terms of Section 3.3 of the Indenture, and the Collateral Agent and the
-----------
Administrative Agent hereby acknowledge receipt of such instruction. Any Asset
Sale Proceeds remaining on deposit in the Proceeds Account after the making of
the transfers contemplated by this Section 3.10(d) shall be deposited in the
---------------
Revenue Account for application in accordance with Section 3.1(b).
--------------
SECTION 3.11 Permitted Investments. Amounts held in any Account
---------------------
created by and held under this Agreement (other than the Distribution Account)
shall be invested and reinvested in Permitted Investments at the written
direction (which may be in the form of a standing instruction) of an Authorized
Representative of the Issuer (or, in the case of the Holdings II Account or the
Holdings III Account, an Authorized Representative of Xxxxxx XX Holdings or
Xxxxxx III Holdings, as applicable); provided, however, that at any time when
-------- -------
(a) an Authorized Officer of the Administrative Agent has received written
notice from the Collateral Agent or any other Secured Party that an Event of
Default shall have occurred and be continuing or (b) an Authorized
Representative of the Issuer, Xxxxxx XX Holdings or Xxxxxx III Holdings, as the
case may be, has not timely furnished such a written direction or, after a
request by the Administrative Agent, has not so confirmed a standing instruction
to the Administrative Agent, the
41
Administrative Agent shall invest such monies only in Permitted Investments of
the type referred to in clause (vi) of the definition of "Permitted
Investments". Any written direction of an Authorized Representative of the
Issuer (or, with respect to the Holdings II Account and the Holdings III
Account, Xxxxxx XX Holdings or Xxxxxx III Holdings, respectively) with respect
to the investment or reinvestment of monies held in any Account (other than the
Distribution Account) shall direct investment or reinvestment only in Permitted
Investments that shall mature in such amounts and have maturity dates or be
subject to redemption at the option of the holder thereof on or prior to
maturity thereof as needed for the purposes of such Accounts, but in no event
shall such Permitted Investments mature more than one year after the date
acquired. The Administrative Agent shall have no duty to determine whether any
investment or reinvestment shall satisfy the criteria set forth in the
definition of "Permitted Investment" in the Indenture or the other criteria set
forth in this Section 3.11 and neither the Administrative Agent nor the
-----------
Collateral Agent shall have any liability in the event that the value of any
Permitted Investment decreases. The Administrative Agent shall at any time and
from time to time liquidate any or all of such investments prior to the maturity
as needed in order to effect the transfers and withdrawals contemplated by this
Agreement in accordance with an Officer's Certificate of the Issuer; provided
--------
that, in the absence of timely receipt of such an Officer's Certificate, the
Administrative Agent shall liquidate all such investments as necessary in order
to effect the transfers and withdrawals contemplated by this Agreement. In the
event any such investments are redeemed prior to the maturity thereof, the
Administrative Agent shall not be liable for any loss or penalties relating
thereto. Any income or gain realized from such investments shall be deposited
into the Revenue Account as and when realized. For purposes of any income tax
payable on account of any income or gain on an investment, such income or gain
shall be for the account of the Issuer.
SECTION 3.12 Events of Default. On and after any date on which the
-----------------
Administrative Agent receives written notice from the Intercreditor Agent
pursuant to Section 2.4 of the Intercreditor Agreement that an Event of Default
-----------
has occurred (the date of receipt of such notice, the "Event of Default Date"),
---------------------
the Administrative Agent shall, until the Administrative Agent receives notice
from the Intercreditor Agent that the Event of Default has been cured,
thereafter accept all notices and instructions required to be given to the
Administrative Agent pursuant to the terms of this Agreement only from the
Collateral Agent (acting upon instructions from the Intercreditor Agent, acting
pursuant to the Intercreditor Agreement) and not from any other Person and the
Administrative Agent shall not withdraw, transfer, pay or otherwise distribute
any monies in any of the Accounts except pursuant to such notices and
instructions from the Collateral Agent (acting upon instructions from the
Intercreditor Agent, acting pursuant to the Intercreditor Agreement). On the
Event of Default Date, the Administrative Agent shall render an accounting of
all monies in
42
in the Accounts as of the Event of Default Date to the Collateral Agent and the
Intercreditor Agent.
SECTION 3.13 Disposition of Accounts Upon Debt Termination Date. In
--------------------------------------------------
the event that the Administrative Agent shall have received a certificate of a
Responsible Officer of the Collateral Agent stating that the Debt Termination
Date shall have occurred, all Administrative Claims of which the Collateral
Agent is aware shall have been paid in full and all fees, charges and expenses
of the Independent Consultants and all other amounts required to be paid
hereunder and under the other Financing Documents of which the Collateral Agent
is aware shall have been paid in full, all amounts remaining in the Accounts
shall, upon receipt of a certificate of a Responsible Officer of the Collateral
Agent authorizing such payments from the Accounts, be remitted to or as directed
by the Issuer, Xxxxxx XX Holdings or Xxxxxx III Holdings, as applicable, or as
otherwise directed by the Issuer.
SECTION 3.14 Account Balance Statements. The Administrative Agent
--------------------------
shall, on a monthly basis, provide to the Collateral Agent and the Issuer (and,
with respect to the Holdings II Account or the Holdings III Account, Xxxxxx XX
Holdings or Xxxxxx III Holdings, respectively) account balance statements in
respect of each of the Accounts and amounts segregated in any of the Accounts.
Such balance statement shall also include deposits, withdrawals and transfers
from and to any Account and segregated amounts. At such other times as the
Collateral Agent or the Issuer (or, with respect to the Holdings II Account or
the Holdings III Account, Xxxxxx XX Holdings or Xxxxxx III Holdings,
respectively) may from time to time reasonably request (but not more frequently
than once each week unless an Event of Default shall have occurred and is
continuing), the Administrative Agent shall provide written informal account
information regarding (a) balances in respect of each of the Accounts and, to
the extent reasonably available, amounts segregated in any of the Accounts and
(b) deposits, withdrawals and transfers from and to any Account and, to the
extent reasonably available, segregated amounts.
SECTION 3.15 Instructions to the Administrative Agent. Each
----------------------------------------
direction to the Administrative Agent under this Agreement to transfer or
withdraw amounts in an Account shall sufficiently identify (a) the Account from
which such amounts are to be withdrawn or transferred, (b) the Account in which
such amount is to be deposited or Person to whom such amount is to be
transferred and (c) the applicable provision of this Agreement which authorizes
such transfer or withdrawal. In the event that the Administrative Agent believes
that it lacks sufficient information to make a transfer or withdrawal or to
determine whether it has authority under this Agreement to make such transfer or
withdrawal, it may refrain from making such transfer or withdrawal until it has
received the information required to
43
make such transfer or confirmed its authority to its satisfaction. In no event
shall the Administrative Agent be responsible for making calculations relating
to deposits to or withdrawals from the Accounts.
ARTICLE IV
THE ADMINISTRATIVE AGENT
------------------------
The provisions of this Article IV are solely for the benefit of the
----------
Secured Parties, the Administrative Agent and the Collateral Agent and, except
to the extent expressly provided in this Article IV, the Issuer shall not have
----------
any rights under this Article IV against the Administrative Agent, the
----------
Collateral Agent or any other Secured Party; provided that the Administrative
--------
Agent shall be liable to for its gross negligence or willful misconduct.
SECTION 4.1 Appointment of the Administrative Agent, Powers and
---------------------------------------------------
Immunities. The Collateral Agent hereby irrevocably appoints and authorizes
----------
Bank One Trust Company, National Association, to act as Administrative Agent
hereunder, with such powers as are expressly delegated to the Administrative
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Bank One Trust Company, National Association,
hereby agrees to act as Administrative Agent under this Agreement. Each of the
Issuer, Xxxxxx XX Holdings and Xxxxxx III Holdings hereby acknowledges the
appointment of the Administrative Agent to act as the agent of the Collateral
Agent hereunder, with such powers as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. The Administrative Agent shall not
have any duties or responsibilities to any Person except those expressly set
forth in this Agreement and shall not have any fiduciary relationship with any
other Secured Party (and no implied covenants, functions or responsibilities
shall be read into this Agreement or otherwise exist with respect to the
Administrative Agent). Without limiting the generality of the foregoing, the
Administrative Agent shall take all actions as the Collateral Agent shall direct
it to perform in accordance with the express provisions of this Agreement and
the Intercreditor Agreement. Notwithstanding anything to the contrary contained
herein, the Administrative Agent shall not be required to take any action which
is contrary to this Agreement and the Intercreditor Agreement or Applicable Law.
Neither the Administrative Agent nor any of its Affiliates shall be responsible
to any other Secured Party for any recitals, statements, representations or
warranties made by the Issuer, Xxxxxx XX Holdings, Xxxxxx III Holdings or the
Collateral Agent contained in this Agreement or any other Transaction Document
or in any certificate or other document referred to or provided for in, or
received by any other Secured Party under, this Agreement or any other
Transaction Document for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any
44
other Transaction Document or any other document referred to or provided for
herein or therein or for any failure by the Issuer, Xxxxxx XX Holdings or Xxxxxx
III Holdings to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be required to ascertain or inquire as to the
performance by the Issuer, Xxxxxx XX Holdings or Xxxxxx III Holdings of any of
its respective obligations under this Agreement or any other Transaction
Document or any other document or agreement contemplated hereby or thereby. The
Administrative Agent shall not be (a) required to initiate or conduct any
litigation or collection proceeding hereunder or under any other Transaction
Document or (b) responsible for any action taken or omitted to be taken by it
hereunder (except for its own gross negligence or willful misconduct) or in
connection with any other Transaction Document. Except as otherwise expressly
set forth in this Agreement, the Administrative Agent shall take action under
this Agreement only as it shall be directed in writing by the Collateral Agent.
Whenever, in the administration of this Agreement, the Administrative Agent
shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Administrative Agent taking, suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by an Officer's Certificate or a certificate
of any Responsible Officer of the Collateral Agent, if appropriate. The
Administrative Agent shall have the right at any time to seek instructions
concerning the administration of this Agreement from the Collateral Agent, legal
counsel or any court of competent jurisdiction. The Administrative Agent shall
not be deemed to have actual, constructive, direct or indirect knowledge or
notice of the occurrence of an Event of Default unless and until a Responsible
Officer of the Administrative Agent has received an Officer's Certificate of the
Issuer or a written notice or certificate from a Secured Party stating that an
Event of Default has occurred.
Each of the Secured Parties expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents or
attorneys-in-fact has made any representations or warranties to it and that no
act by the Administrative Agent hereinafter taken, including, without
limitation, any review of the Project or of the affairs of the Issuer, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any other Secured Party. Each Secured Party (other than any other Secured
Party that has no obligation to make appraisals, investigations or credit
analyses under the Financing Documents to which it is a party, including,
without limitation, the Collateral Agent and the Administrative Agent)
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Secured Party, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the
45
Project and the Issuer. Each Secured Party (other than a Secured Party that has
no obligation to make appraisals, investigations or credit analyses under the
Financing Documents to which it is a party, including, without limitation, the
Collateral Agent and the Administrative Agent) also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Secured Party, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Project and Issuer. Except for notices, reports and other documents expressly
required to be furnished to the other Secured Parties by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any other Secured Party with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Project and the Issuer which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents or attorneys-in-fact.
SECTION 4.2 Reliance by the Administrative Agent. The Administrative
------------------------------------
Agent shall be entitled to rely upon any Officer's Certificate, officer's
certificate of an Authorized Officer of any Secured Party, Independent
Engineer's certificate, certificate of a Responsible Officer of the Collateral
Agent or any other certificate, notice or other document (including any cable,
telegram or telecopy) believed by it to be genuine and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice of legal
counsel, independent accountants and other experts selected by the
Administrative Agent and shall have no liability for its actions taken
thereupon, unless due to the Administrative Agent's willful misconduct or gross
negligence. Without limiting the foregoing, the Administrative Agent shall be
required to make payments to the Secured Parties or other Persons only as set
forth herein. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or the Intercreditor Agreement
(i) if such action would, in the opinion of the Administrative Agent, be
contrary to Applicable Law or the terms of this Agreement or the Intercreditor
Agreement, (ii) if such action is not specifically provided for in this
Agreement or the Intercreditor Agreement and it shall not have received any such
advice or concurrence of the Collateral Agent as it deems appropriate or (iii)
if, in connection with the taking of any such action that would constitute an
exercise of remedies under any Financing Document (whether such action is or is
intended to be an action of the Administrative Agent or the Collateral Agent),
it shall not first be indemnified to its satisfaction against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
46
or any other Financing Document in accordance with a request of the Collateral
Agent (to the extent that the Collateral Agent is expressly authorized to direct
the Administrative Agent to take or refrain from taking such action), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Secured Parties. In the event that the Administrative Agent is
required to perform any action on a particular date only following the delivery
of an Officer's Certificate or other document, the Administrative Agent shall be
fully justified in failing to perform such action if it has not first received
such Officer's Certificate or other document and shall be fully justified in
continuing to fail to perform such action until such time as it has received
such Officer's Certificate or other document.
SECTION 4.3 Court Orders. The Administrative Agent is hereby
------------
authorized, in its exclusive discretion, to obey and comply with all writs,
orders, judgments or decrees issued by any court or administrative agency
affecting any money, documents or things held by the Administrative Agent. The
Administrative Agent shall not be liable to any of the parties hereto or any
other Secured Party, their successors, heirs or personal representatives by
reason of the Administrative Agent's compliance with such writs, orders,
judgments or decrees, notwithstanding such writ, order, judgment or decree is
later reversed, modified, set aside or vacated.
SECTION 4.4 Resignation or Removal. Subject to the appointment and
----------------------
acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving 30 days' prior written
notice thereof to the Collateral Agent, the Issuer, Xxxxxx XX Holdings and
Xxxxxx III Holdings (provided that if the Administrative Agent is also the
--------
Collateral Agent and the Trustee, it must also at the same time resign as
Collateral Agent and as Trustee), and the Administrative Agent may be removed at
any time with cause by the Collateral Agent. In the event that the
Administrative Agent shall decline to take any action without first receiving
adequate indemnity and, having received adequate indemnification, shall continue
to decline to take such action, the Collateral Agent shall be deemed to have
sufficient cause to remove the Administrative Agent. Prior
to the occurrence of an Event of Default, the Issuer shall have the right to
remove the Administrative Agent upon 30 day's notice to the Secured Parties with
or without cause, subject to the appointment and acceptance of a successor
Administrative Agent as provided below. Upon any such resignation or removal,
the Collateral Agent shall have the right to appoint a successor Administrative
Agent which shall be a single bank or trust company that (i) has an office in
New York, New York, (ii) has capital, surplus and undivided profits of at least
$50,000,000, (iii) is experienced in administering sophisticated financing
transactions, and (iv) so long as no Event of Default has occurred and is
continuing, is reasonably acceptable to the Issuer. If no successor
Administrative Agent shall have been appointed by the Collateral Agent and shall
have accepted such appointment within 30 days after the retiring
47
Administrative Agent's giving of notice of resignation or the removal of the
retiring Administrative Agent, then the retiring Administrative Agent may
appoint a successor Administrative Agent, which shall be a single bank or trust
company that (i) has an office in New York, New York, (ii) has capital, surplus
and undivided profits of at least $50,000,000, (iii) is experienced in
administering sophisticated financing transactions, and (iv) so long as no Event
of Default has occurred and is continuing, is reasonably acceptable to the
Issuer. Upon the acceptance of any appointment as Administrative Agent hereunder
by the successor Administrative Agent, (a) such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (b) the retiring Administrative Agent shall promptly transfer all
Accounts within its possession or control to the possession or control of the
successor Administrative Agent and the retiring Administrative Agent shall
execute and deliver such notices, instructions and assignments as may be
necessary or desirable to transfer the rights of the retiring Administrative
Agent with respect to such Accounts to the successor Administrative Agent. After
the retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IV and of Article V shall
---------- ---------
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while acting as Administrative Agent. Further, a corporation into
which the Administrative Agent is merged or converted or with which it is
consolidated or which results from a merger, conversion or consolidation to
which it is a party shall, to the extent permitted by Applicable Law, be the
successor Administrative Agent under this Agreement without further formality
and shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the Administrative Agent with which such corporation
was merged, converted or consolidated. The Administrative Agent shall forthwith
notify such event to the Issuer and the Collateral Agent.
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
-------------------------------
SECTION 5.1 Expenses. The Issuer agrees to pay or reimburse all
--------
reasonable out-of-pocket expenses of the Administrative Agent (including,
without limitation, the reasonable fees and disbursements of outside counsel
engaged by the Administrative Agent) in respect of, or incidental to, the
administration or enforcement of any of the provisions of this Agreement or in
connection with any amendment, waiver or consent relating to this Agreement.
SECTION 5.2 Indemnification. The Issuer agrees to indemnify the
---------------
Administrative Agent in its capacity as such, and, in their capacity as such,
its officers, directors, shareholders, controlling persons, employees, agents
and servants
48
in accordance with and in the manner contemplated by Article 7.17 of the
------------
Intercreditor Agreement.
SECTION 5.3 Fees. On the Closing Date, and on each anniversary of the
----
Closing Date to and including the Debt Termination Date, the Issuer shall pay
the Administrative Agent an annual fee in an amount mutually agreed on by the
Issuer and the Administrative Agent in writing on or prior to the date of
appointment of the Administrative Agent.
The provisions of this Article V shall survive the termination of this
---------
Agreement or the resignation or removal of the Administrative Agent.
ARTICLE VI
LIMITATION OF LIABILITY
-----------------------
SECTION 6.1 Limitation of Liability. Section 14.1 of the Indenture is
----------------------- ------------
incorporated herein by reference as if set forth in full herein.
ARTICLE VII
MISCELLANEOUS
-------------
SECTION 7.1 Amendments; Etc. No amendment or waiver of, or consent
---------------
with respect to, any provision of this Agreement shall in any event be effective
unless the same shall be made in accordance with the Intercreditor Agreement.
SECTION 7.2 Addresses for Notices. All notices, requests and other
---------------------
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 7.3 Integration, Etc. This Agreement and the other Financing
----------------
Documents to which the parties hereto are a party constitute the entire
agreement and understanding among the parties hereto and supersede any and all
prior agreements and understandings, written or oral, relating to the subject
matter
49
hereof. This Agreement shall become effective at such time as the Collateral
Agent shall have received counterparts hereof signed by all of the intended
parties hereto.
SECTION 7.4 Headings; Table of Contents; Section References. Headings
-----------------------------------------------
used in this Agreement, and the table of contents included in this Agreement,
are for convenience of reference only and do not constitute part of this
Agreement for any purpose. Unless otherwise specified in this Agreement, section
references shall refer to sections of this Agreement.
SECTION 7.5 No Third Party Beneficiaries. The agreements of the
----------------------------
parties hereto are solely for the benefit of the Issuer, Xxxxxx XX Holdings,
Xxxxxx III Holdings, the Collateral Agent, the Administrative Agent, the
Intercreditor Agent and the other Secured Parties and their respective
successors and assigns and no Person (other than the parties hereto and such
other Secured Parties) shall have any rights hereunder.
SECTION 7.6 No Waiver. No failure on the part of the Administrative
---------
Agent, the Collateral Agent or any other Secured Party or any of their nominees
or representatives to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Administrative
Agent, the Collateral Agent or any other Secured Party or any of their nominees
or representatives of any right, power or remedy.
SECTION 7.7 Severability. If any provision of this Agreement or the
------------
application thereof shall be invalid or unenforceable to any extent, (a) the
remainder of this Agreement and the application of such remaining provisions
shall not be affected thereby and (b) each such remaining provision shall be
enforced to the greatest extent permitted by law.
SECTION 7.8 Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Agreement by the Administrative Agent,
the Collateral Agent, the Intercreditor Agent and the Issuer shall bind and, to
the extent permitted hereby, shall inure to the benefit of and be enforceable by
their respective successors and assigns, whether so expressed or not.
SECTION 7.9 Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
50
SECTION 7.10 Special Exculpation. No claim may be made by the Issuer,
-------------------
Xxxxxx XX Holdings, Xxxxxx III Holdings or any other person against the
Administrative Agent, the Collateral Agent, the Intercreditor Agent or any other
Secured Party or the affiliates, directors, officers, employees, attorneys or
agents of any of them for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or relating to this Agreement or any other Transaction
Document or the transactions contemplated hereby or thereby, or any act,
omission or event occurring in connection therewith, and the Issuer, Xxxxxx XX
Holdings and Xxxxxx III Holdings hereby waives, releases and agrees not to xxx
upon any claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
SECTION 7.11 Governing Law. (a) THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR THE REMEDIES
HEREUNDER, ARE GOVERNED BY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF
THE NEW YORK UCC, THE "SECURITIES INTERMEDIARY'S JURISDICTION" OF THE
ADMINISTRATIVE AGENT WITH RESPECT TO THE ACCOUNTS IN RESPECT OF WHICH THE
COLLATERAL AGENT HAS BEEN GRANTED A SECURITY INTEREST UNDER THE SECURITY
AGREEMENT IS THE STATE OF NEW YORK.
(b) Any legal action or proceeding by or against the Issuer, Xxxxxx XX
Holdings or Xxxxxx III Holdings with respect to or arising out of this Agreement
may be brought in or removed to the courts of the State of New York, in and for
the County of New York, or of the United States of America for the Southern
District of New York. By execution and delivery of this Agreement, each of the
Issuer, Xxxxxx XX Holdings and Xxxxxx III Holdings accepts, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts for legal proceedings arising out of or in connection with this
Agreement and the Issuer irrevocably consents to the appointment of CT
Corporation System, with offices on the date hereof at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 as its agent to receive service of process in New York, New
York. If for any reason such agent shall cease to be available to act as such
for the Issuer, the Issuer agrees to appoint a new agent on the terms and for
the purposes of this provision. Nothing herein shall affect the right to serve
process in any other manner permitted by law or any right to bring legal action
or proceedings in any other competent jurisdiction. Each of the Issuer, Xxxxxx
XX Holdings and Xxxxxx III Holdings further agrees that the aforesaid courts of
the State of New York and of the United States of America for the Southern
District of New York shall have exclusive jurisdiction with respect to any claim
or counterclaim of any such Person based upon the assertion that the rate of
interest charged by or under any Financing Documents is usurious. Each of the
Issuer,
51
Xxxxxx XX Holdings and Xxxxxx III Holdings hereby waives any right to stay or
dismiss any action or proceeding under or in connection with the Project, this
Agreement or any other Transaction Document brought before the foregoing courts
on the basis of forum non-conveniens or improper venue.
--------------------
(c) EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF THE OTHER PARTIES HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT.
SECTION 7.12 Payments in Respect of Bonds. The Issuer hereby
----------------------------
instructs the Collateral Agent and the Administrative Agent to make all payments
to be made in respect of the Bonds hereunder directly to the Trustee for deposit
into the Bond Fund in accordance with the terms of Section 3.3 of the Indenture,
-----------
and the Collateral Agent and the Administrative Agent hereby acknowledge receipt
of such instruction.
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXXX ENERGY LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Representative
Address for Notices:
Xxxxxx Energy LLC
c/o Peoples Energy Resources Corp.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Energy LLC
c/o Dominion Resources Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
XXXXXX XX HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Representative
Address for Notices:
Xxxxxx XX Holdings, LLC
c/o Peoples Energy Resources Corp.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx XX Holdings, LLC
c/o Dominion Resources Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
XXXXXX III HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Representative
Address for Notices:
Xxxxxx III Holdings, LLC
c/o Peoples Energy Resources Corp.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx III Holdings, LLC
c/o Dominion Resources Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Account Executive
Address for Notices:
Bank One Trust Company, National
Association
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Global Corporate Trust Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Account Executive
Address for Notices:
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Global Corporate Trust Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION,
as Intercreditor Agent
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Account Executive
Address for Notices:
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Global Corporate Trust Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Annex A to
Deposit and Disbursement Agreement
----------------------------------
Calculation Examples
--------------------
The following examples illustrate how the applicable percentage of capacity
covered by Permitted PPAs is to be calculated for the purposes of Section
3.9(b)(iii) of this Agreement:
Assume for the purposes of each example that the capacity of the Project is 1400
MW.
Example 1: On the applicable date of determination, the Issuer is party to
Permitted PPAs with terms that extend for all eight of the
quarters that follow such date. These Permitted PPAs cover, in
the aggregate, 1000 MW of the Project's capacity. Therefore, the
applicable percentage is (1000/1400) x 100% = 71.4%.
Example 2: On the applicable date of determination, the Issuer is party to
Permitted PPAs with terms that extend for the first six of the
eight quarters that follow such date. These Permitted PPAs cover
1000 MW of the Project's capacity during such first six quarters
and 0 MW of the Project's capacity during the seventh and eight
quarters following such date. Therefore, the applicable
percentage is [(1000/1400) x (75%)] + [(0/1400) x (25%)] =
(53.6%) + (0%) = 53.6%
Example 3: On the applicable date of determination, the Issuer is party to
Permitted PPAs that cover 1000 MW of the Project's capacity
during the first six quarters following such date and 500 MW of
the Project's capacity during the seventh and eight quarters
following such date. Therefore, the applicable percentage is
[(1000/1400) x (75%)] + [(500/1400) x (25%)] = (53.6%) + (8.9%) =
62.5%
Example 4: On the applicable date of determination, the Issuer is party to
Permitted PPAs that cover 0 MW of the Project's capacity during
the first six quarters following such date and 1400 MW of the
Project's capacity during
Annex A-1
the seventh and eight quarters following such date. Therefore,
the applicable percentage is [(0/1400) x (75%)] + [(1400/1400) x
(25%)] = (0%) + (25%) = 25%
Example 5: On the applicable date of determination, the Issuer is party to
Permitted PPAs that cover 1400 MW of the Project's capacity
during the first four quarters following such date and 0 MW of
the Project's capacity during the fifth, sixth, seventh and
eighth quarters following such date. Therefore, the applicable
percentage is [(1400/1400) x (50%)] + [(0/1400) x (50%)] = (50%)
+ (0%) = 50%
Example 6: On the applicable date of determination, the Issuer is party to
Permitted PPAs that cover 1400 MW of the Project's capacity
during the first 3 1/2 quarters following such date and 0 MW of
the Project's capacity during the last 1/2 of the fourth quarter
and during the fifth, sixth, seventh and eighth quarters
following such date. Therefore, the applicable percentage is
[(1400/1400) x (43.75%)] + [(0/1400) x (56.25%)] = (43.75%) +
(0%) = 43.75%
Annex A-2
Schedule I to
Deposit and Disbursement Agreement
----------------------------------
Accounts
--------
1. Revenue Account
Account Name: Xxxxxx Energy Revenue Account
Account Number: 2600015505
2. O&M Account
Account Name: Xxxxxx Energy O&M Account
Account Number: 2600015506
3. Holdings II Account
Account Name: Xxxxxx Energy Holdings II Account
Account Number: 2600015507
4. Holdings III Account
Account Name: Xxxxxx Energy Holdings III Account
Account Number: 2600015508
5. Sales Tax Reserve Account
Account Name: Xxxxxx Energy Sales Tax Reserve Account
Account Number: 0000000000
6. Debt Service Payment Account
Account Name: Xxxxxx Energy Debt Service Payment Account
Account Number: 2600015510
7. DSR LOC Loan Principal Account
I-1
Account Name: Xxxxxx Energy DSR LOC Loan Principal Account
Account Number: 2600015511
8. Debt Service Reserve Account
Account Name: Xxxxxx Energy Debt Service Reserve Account
Account Number: 2600015512
9. Major Maintenance Reserve Account
Account Name: Xxxxxx Energy Major Maintenance Reserve Account
Account Number: 2600015513
10. PSA Contingency Reserve Account
Account Name: Xxxxxx Energy PSA Contingency Reserve Account
Account Number: 2600015514
11. Distribution Suspense Account
Account Name: Xxxxxx Energy Distribution Suspense Account
Account Number: 2600015515
12. Distribution Account
Account Name: Xxxxxx Energy Distribution Account
Account Number: 2600015516
13. Proceeds Account
Account Name: Xxxxxx Energy Proceeds Account
Account Number: 0000000000
I-2
Schedule II to
Deposit and Disbursement Agreement
----------------------------------
Current Major Maintenance Required Balance* (in thousands)
------------------------------------------
October 23, 2001 $ 2,000
January 5, 2002 $ 3,800
July 5, 2002 $ 7,400
January 5, 2003 $11,000
July 5, 2003 $14,600
January 5, 2004 $18,200
July 5, 2004 $21,800
January 5, 2005 $25,400
July 5, 2005 $29,000
January 5, 2006 $27,818
July 5, 2006 $31,418
January 5, 2007 $28,703
July 5, 2007 $32,303
January 5, 2008 $34,093
July 5, 2008 $37,693
January 5, 2009 $39,139
July 5, 2009 $42,739
January 5, 2010 $22,232
July 5, 2010 $25,832
January 5, 2011 $18,500
July 5, 2011 $22,100
January 5, 2012 $24,840
July 5, 2012 $28,440
January 5, 2013 $32,040
July 5, 2013 $41,040
January 5, 2014 $45,632
July 5, 2014 $54,632
January 5, 2015 $59,181
July 5, 2015 $68,181
January 5, 2016 $48,218
July 5, 2016 $57,218
January 5, 2017 $45,936
July 5, 2017 $52,936
January 5, 2018 $56,622
July 5, 2018 $63,622
January 5, 2019 $64,731
July 5, 2019 $71,731
II-1
January 5, 2020 $70,020
July 5, 2020 $77,020
January 5, 2021 $37,052
July 5, 2021 $47,907
January 5, 2022 $40,154
July 5, 2022 $51,154
January 5, 2023 $61,715
July 5, 2023 $72,715
January 5, 2024 $68,633
July 5, 2024 $76,633
January 5, 2025 $51,157
July 5, 2025 $59,157
January 5, 2026 $29,515
July 5, 2026 $32,515
* Each amount set forth herein shall be adjusted as necessary to reflect
anticipated Major Maintenance Expenditures from the Major Maintenance Reserve
Account during the six-month period ending on such Bond Payment Date as
certified in the applicable Funding Date Certificate.
II-2
Schedule III to
Deposit and Disbursement Agreement
----------------------------------
Sales Tax Reserve Required Balance
----------------------------------
----------------------------------------------------------------
Date Amount Date Amount
----------------------------------------------------------------
March 31, 2006 $ 350,000 December 31, 2008 $4,200,000
----------------------------------------------------------------
June 30, 2006 $ 700,000 March 31, 2009 $4,550,000
----------------------------------------------------------------
September 30, 2006 $1,050,000 June 30, 2009 $4,900,000
----------------------------------------------------------------
December 31, 2006 $1,400,000 September 30, 2009 $5,250,000
----------------------------------------------------------------
March 31, 2006 $1,750,000 December 31, 2009 $5,600,000
----------------------------------------------------------------
June 30, 2007 $2,100,000 March 31, 2010 $5,950,000
----------------------------------------------------------------
September 30, 2007 $2,450,000 June 30, 2010 $6,300,000
----------------------------------------------------------------
December 31, 2007 $2,800,000 September 30, 2010 $6,650,000
----------------------------------------------------------------
March 31, 2008 $3,150,000 December 31, 2010 $7,000,000
----------------------------------------------------------------
June 30, 2008 $3,500,000 March 31, 2011 $7,350,000
----------------------------------------------------------------
September 30, 2008 $3,850,000 June 30, 2011 $7,700,000
----------------------------------------------------------------
III-1
Schedule IV to
Deposit and Disbursement Agreement
----------------------------------
PSA Yearly Factor
-----------------
2013 $45,000,000
2014 $45,000,000
2015 $45,000,000
2016 $45,000,000
2017 $45,000,000
2018 $40,000,000
2019 $40,000,000
2020 $42,000,000
2021 $32,500,000
2022 $17,000,000
2023 $15,000,000
IV-1
Exhibit A
to Deposit and Disbursement Agreement
-------------------------------------
FORM OF DEBT SERVICE RESERVE GUARANTY
-------------------------------------
A-1
Exhibit B
to Deposit and Disbursement Agreement
-------------------------------------
FORM OF MAJOR MAINTENANCE RESERVE GUARANTY
------------------------------------------
B-1
Exhibit C to
Deposit and Disbursement Agreement
----------------------------------
FORM OF PSA CONTINGENCY RESERVE GUARANTY
C-1
Exhibit D to
Deposit and Disbursement Agreement
----------------------------------
FORM OF SALES TAX RESERVE GUARANTY
D-1
Exhibit E to
Deposit and Disbursement Agreement
----------------------------------
MAINTENANCE REQUISITION
-----------------------
No. ______
[Date]
Bank One Trust Company, National Association,
as Administrative Agent
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Global Corporate Trust Services
Re: Deposit and Disbursement Agreement, dated as of October 23, 2001 (the
"Deposit and Disbursement Agreement"), among Xxxxxx Energy LLC (the
----------------------------------
"Issuer"), Bank One Trust Company, National Association, in its capacity as
------
Collateral Agent, Bank One Trust Company, National Association, in its
capacity as Administrative Agent, and Bank One Trust Company, National
Association, in its capacity as Intercreditor Agent.
Ladies and Gentlemen:
This requisition (this "Maintenance Requisition") is delivered to you
-----------------------
pursuant to Section 3.7(b) of the Deposit and Disbursement Agreement.
--------------
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Deposit and Disbursement Agreement (including defined
terms incorporated therein by reference from the Indenture). The information
relating to this Maintenance Requisition is as follows:
1. The aggregate amount requested to be withdrawn from the Major
Maintenance Reserve Account in accordance with this Maintenance
Requisition is $____________.
2. The Disbursement Date on which the withdrawals and transfers pursuant to
this Maintenance Requisition are to be made is _________ __, ____.
E-1
3. Set forth on Schedule I attached hereto is the name of each Person to
----------
whom any payment is to be made, the aggregate amount incurred on or
prior to the Disbursement Date or reasonably expected to be incurred
within the thirty (30) day period following the Disbursement Date by
such Person and a summary description of the work performed, services
rendered, materials, equipment or supplies delivered or any other
purpose for which each payment was or is to be made.
4. The proceeds of this Maintenance Requisition withdrawn from the Major
Maintenance Reserve Account will be used to pay Major Maintenance
Expenditures due and payable as of the Disbursement Date or to reimburse
the Issuer or the appropriate third parties for the costs of Major
Maintenance Expenditures paid prior to the Disbursement Date (as
evidenced by invoices received or provided by the Issuer).
XXXXXX ENERGY LLC
By:___________________
Name:
Title:
E-2
Schedule I to Exhibit E
to Deposit and Disbursement Agreement
-------------------------------------
Amount
Name of Payment Purpose
---- ---------- -------
E-3
Exhibit F
to Deposit and Disbursement Agreement
RESTORATION REQUISITION
-----------------------
No. ______
[Date]
Bank One Trust Company, National Association
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Global Corporate Trust Services
Re: Deposit and Disbursement Agreement, dated as of October 23, 2001 (the
"Deposit and Disbursement Agreement"), among Xxxxxx Energy LLC (the
----------------------------------
"Issuer"), Bank One Trust Company, National Association, in its capacity as
------
Collateral Agent, Bank One Trust Company, National Association, in its
capacity as Administrative Agent, and Bank One Trust Company, National
Association, in its capacity as Intercreditor Agent.
Ladies and Gentlemen:
This requisition (this "Restoration Requisition") is delivered to you
-----------------------
pursuant to Section 3.10(a)(iii)(A) of the Deposit and Disbursement Agreement.
-----------------------
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Deposit and Disbursement Agreement (including defined
terms incorporated therein by reference from the Indenture). The information
relating to this Restoration Requisition is as follows:
1. The aggregate amount requested to be withdrawn from the Proceeds Account
in accordance with this Restoration Requisition is $____________.
2. The Disbursement Date on which the withdrawals and transfers pursuant to
this Restoration Requisition are to be made is _________ __, ____.
3. Set forth on Schedule I attached hereto is the name of each Person to
----------
whom any payment is to be made, the aggregate amount incurred on or
prior to the Disbursement Date or reasonably expected to be incurred
F-1
within the thirty (30) day period following the Disbursement Date by
such Person and a summary description of the work performed, services
rendered, materials, equipment or supplies delivered or any other
purpose for which each payment was or is to be made.
4. The proceeds of this Restoration Requisition withdrawn from the Proceeds
Account will be used to pay the costs of rebuilding, restoration or
repair of the Project in accordance with the budget and schedule for the
Restoration, and the Administrative Agent may properly charge such costs
against the Proceeds Account.
5. The rebuilding, restoration or repair costs which have been paid or for
which payment is requested under this Restoration Requisition are in
accordance with the budget and schedule for the Restoration Work.
6. The costs of rebuilding, restoration or repair for which payment is
requested under this Restoration Requisition from the Proceeds Account
have not been the basis for any prior requisition by the Issuer.
7. As of the date hereof, the Issuer has not received any written notice of
any lien, right to lien or attachment upon, or claim affecting the right
of the Issuer to receive any portion of the amount of this Restoration
Requisition (other than in respect of Permitted Liens), or in the event
that the Issuer has received notice of any such lien, right to lien,
attachment or claim (other than a Permitted Lien), such lien, right to
lien, attachment or claim has been released or discharged as of the date
hereof or is expected to be released or discharged upon payment of the
costs for which payment is requested under this Restoration Requisition,
or is subject to a Good Faith Contest.
XXXXXX ENERGY LLC
By:______________________________
Name:
Title:
F-2
Schedule I to Exhibit F
to Deposit and Disbursement Agreement
-------------------------------------
Amount
Name of Payment Purpose
---- ---------- -------
F-3
Exhibit G
to Deposit and Disbursement Agreement
-------------------------------------
INDEPENDENT ENGINEER RESTORATION CERTIFICATE
--------------------------------------------
No. _____
[Date]
Bank One Trust Company, National Association
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Global Corporate Trust Services
Re: Deposit and Disbursement Agreement, dated as of October 23, 2001 (the
"Deposit and Disbursement Agreement"), among Xxxxxx Energy LLC (the
----------------------------------
"Issuer"), Bank One Trust Company, National Association, in its capacity as
------
Collateral Agent, Bank One Trust Company, National Association, in its
capacity as Administrative Agent, and Bank One Trust Company, National
Association, in its capacity as Intercreditor Agent.
Ladies and Gentlemen:
This Certificate (this "Independent Engineer's Restoration
----------------------------------
Certificate") is delivered to you pursuant to Section 3.10(a)(iii)(B) of the
----------- -----------------------
Deposit and Disbursement Agreement and in connection with the requisition for
payment dated __________ __, ____ (the "Restoration Requisition") delivered
-----------------------
together with this Independent Engineer's Restoration Certificate. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Deposit and Disbursement Agreement (including defined
terms incorporated therein by reference from the Indenture).
We hereby certify to the Administrative Agent as of the date hereof
that:
1. We have reviewed the material and data made available to us by the
Issuer with respect to [describe rebuilding, repair or restoration of
project] and have performed such other investigation as is referenced in
Annex 1 attached hereto (the "Review"). Our Review was
------- ------
G-1
performed in accordance with generally accepted engineering and
construction practices and included such investigation, [insert
customary exceptions and qualifications] and review as we in our
professional capacity deemed necessary or appropriate in the
circumstances and within the scope of our appointment [insert customary
exceptions and qualifications]. We have also reviewed the Restoration
Requisition and any appendices, schedules and requisitions and/or
invoices attached thereto or delivered therewith.
2. Based on our Review and the understanding and assumption that we have
been provided true, correct and complete information, and [insert
customary exceptions and qualifications] we are of the opinion that, as
of the date hereof:
a. After giving effect to the payments requested under the Restoration
Requisition, the undisbursed moneys in the Proceeds Account together
with any other amounts that the Issuer is willing to commit or cause
to be committed to such rebuilding, repair or restoration is
reasonably estimated to equal or exceed the amount necessary to pay
for (i) all work, labor or services performed and all materials,
supplies or equipment furnished for which payment has not yet been
made and (ii) all other reasonably anticipated costs of rebuilding,
repair or restoration ("Restoration Costs") which have yet to be paid
-----------------
in order to achieve operation of [all] [a portion] of the Project.
[Alternative if applicable: After giving effect to the payments
requested under the Restoration Requisition, the undisbursed moneys
in the Proceeds Account may be less than the amount necessary to pay
for (i) all work, labor or services performed and all materials,
supplies or equipment furnished for which payment has not yet been
made and (ii) all other reasonably anticipated Restoration Costs
which have yet to be paid in order to achieve operation of [all] [a
portion] of the Project; however, in our opinion, such insufficiency
could not reasonably be expected to result in a Material Adverse
Effect.]
b. The major rebuilding, repair and restoration activities and the
progress of the rebuilding, repair and restoration of the Project
through the date of this Independent Engineer's Restoration
Certificate are proceeding in a satisfactory manner in accordance
with the budget and the schedule for the Restoration.
G-2
c. The Restoration Costs set forth on Schedule I to the Restoration
----------
Requisition not incurred on or prior to the Disbursement Date are
reasonably anticipated to be incurred during the thirty (30) day
period following the Disbursement Date.
d. The payments made with respect to the Restoration Requisition are
in accordance with the budget and schedule for the Restoration.
The person signing this Independent Engineer's Restoration Certificate
is a duly qualified representative of the Independent Engineer and as such is
authorized to execute this Independent Engineer's Restoration Certificate on
behalf of the Independent Engineer.
Very truly yours,
[Stone & Xxxxxxx Consultants, Inc.]
By:_________________________
Name:
Title:
G-3
