Exhibit 10.18.2
================================================================================
AMENDED AND RESTATED SECURITY DEPOSIT AGREEMENT
between
EME HOMER CITY GENERATION L.P.
and
THE BANK OF NEW YORK
as Collateral Agent
--------------------------------
Dated as of December __, 2001
--------------------------------
================================================================================
SECURITY DEPOSIT AGREEMENT
--------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..............................................................................2
Section 1.1 Defined Terms.................................................................2
Section 1.2 OTHER DEFINITIONAL PROVISIONS.................................................8
ARTICLE II AGREEMENT OF COLLATERAL AGENT; CREATION OF ACCOUNTS; GRANT OF SECURITY INTERESTS........8
Section 2.1 AGREEMENT OF COLLATERAL AGENT.................................................8
Section 2.2 CREATION OF ACCOUNTS AND SUBACCOUNTS..........................................8
Section 2.3 DELIVERY OF REVENUES, ETC. TO COLLATERAL AGENT...............................10
Section 2.4 SECURITY INTERESTS IN THE LESSEE ACCOUNTS....................................10
Section 2.5 SECURITIES ACCOUNTS..........................................................11
ARTICLE III DEPOSITS INTO ACCOUNTS................................................................12
Section 3.1 REVENUE ACCOUNT..............................................................12
Section 3.2 RECOVERY EVENT PROCEEDS ACCOUNT..............................................12
Section 3.3 RESERVE ACCOUNT..............................................................13
Section 3.4 EQUITY ACCOUNT...............................................................13
Section 3.5 DEPOSITS IRREVOCABLE.........................................................13
ARTICLE IV TRANSFERS FROM ACCOUNTS................................................................14
Section 4.1 REVENUE ACCOUNT..............................................................14
Section 4.2 RECOVERY EVENT PROCEEDS ACCOUNT..............................................16
Section 4.3 SENIOR RENT PAYMENT ACCOUNT..................................................16
Section 4.4 RESERVE ACCOUNT..............................................................17
Section 4.5 PERMITTED INDEBTEDNESS ACCOUNT...............................................17
Section 4.6 EQUITY ACCOUNT...............................................................18
Section 4.7 SUPPLEMENTAL ACCOUNT.........................................................23
Section 4.8 SUBORDINATED RENT PAYMENT ACCOUNT............................................24
Section 4.9 SUBORDINATED RESERVE ACCOUNT.................................................24
Section 4.10 SUSPENDED DISTRIBUTIONS ACCOUNT..............................................24
Section 4.11 DELIVERY OF REQUEST LETTERS..................................................25
Section 4.12 SHORTFALL NOTICES............................................................25
Section 4.13 TRANSFERS FROM ACCOUNTS DURING A DEFAULT PERIOD..............................25
Section 4.14 COLLATERAL AGENT'S CALCULATIONS..............................................27
Section 4.15 INSUFFICIENT AMOUNTS.........................................................27
SECURITY DEPOSIT AGREEMENT
--------------------------
i
ARTICLE V INVESTMENT..............................................................................28
ARTICLE VI COLLATERAL AGENT.......................................................................29
Section 6.1 RIGHTS, DUTIES, ETC..........................................................29
Section 6.2 RESIGNATION OR REMOVAL.......................................................30
ARTICLE VII DETERMINATIONS........................................................................30
ARTICLE VIII MISCELLANEOUS........................................................................30
Section 8.1 INDEMNIFICATION OF COLLATERAL AGENT..........................................30
Section 8.2 WAIVER OF RIGHT OF SET-OFF...................................................31
Section 8.3 TERMINATION..................................................................31
Section 8.4 SEVERABILITY.................................................................31
Section 8.5 COUNTERPARTS.................................................................32
Section 8.6 AMENDMENTS...................................................................32
Section 8.7 APPLICABLE LAW...............................................................32
Section 8.8 NOTICES......................................................................32
Section 8.9 BENEFIT OF SECURITY DEPOSIT AGREEMENT........................................32
SECURITY DEPOSIT AGREEMENT
--------------------------
ii
AMENDED AND RESTATED
SECURITY DEPOSIT AGREEMENT, dated as of December
__, 2001 (this "AGREEMENT"), between EME HOMER CITY GENERATION L.P., a
Pennsylvania limited partnership ("EME HOMER CITY" or the "FACILITY LESSEE"),
and THE BANK OF
NEW YORK, as collateral agent for the Secured Parties (as
defined below) (in such capacity, the "COLLATERAL AGENT") and THE BANK OF
NEW
YORK, in its capacity as a "securities intermediary" as defined in
Section 8-102 of the
New York UCC (in such capacity, the "Securities
Intermediary").
RECITALS
--------
A. Contemporaneously herewith, EME Homer City will enter into a
transaction pursuant to the Participation Agreements listed on SCHEDULE 1, each
by and among EME Homer City, the applicable Owner Lessor, Xxxxx Fargo Bank
Northwest, National Association, not in its individual capacity but solely as
Owner Manager, the Owner Participant, Xxxxx City Funding LLC, as Lender, the
Lease Indenture Trustee, the Security Agent and The Bank of
New York, not in its
individual capacity but solely as Bondholder Trustee (as amended, modified and
supplemented and in effect from time to time, collectively, the "PARTICIPATION
AGREEMENTS") whereby EME Homer City will sell undivided interests in its
generating assets to the Owner Lessors and the Owner Lessors will lease such
undivided interests in its generating assets to EME Homer City under the
Facility Leases.
B. In consideration of the transactions contemplated by the
Participation Agreements, EME Homer City will be obligated to pay to the Secured
Parties the aggregate amount of all obligations owed by EME Homer City to the
Secured Parties under the Operative Documents (the "LEVERAGED LEASE
OBLIGATIONS").
C. In satisfaction of the requirements of the Secured Parties, the
Facility Lessee desires by this Agreement to provide interests in certain
Accounts as security for EME Homer City's obligations under the Participation
Agreements and the other Operative Documents.
D. In order to simplify administration of such Accounts and to provide
for the orderly enforcement of their respective rights, the Secured Parties have
appointed the Collateral Agent to serve as their common representative, to be
the beneficiary under any security interest intended to benefit the Secured
Parties, and to hold the liens created, or to be created, under the Operative
Documents.
E. The parties hereto desire by this Agreement (as defined above) to
provide for the receipt of Revenues and the application thereof to the payment
of Operating Expenses (as defined below) and Leveraged Lease Obligations and for
other purposes as described herein.
SECURITY DEPOSIT AGREEMENT
--------------------------
F. Pursuant to the Ownership and Operation Agreement, dated as of
December ___, 2001 (as amended, supplemented or otherwise modified from time to
time, the "OWNERSHIP AND OPERATION AGREEMENT"), among the Collateral Agent and
the Secured Parties, the Collateral Agent has agreed to serve as a common
collateral agent for all Secured Parties.
G. It is a condition precedent to the approval by the Secured Parties
of the transactions contemplated by the Operative Documents that the Facility
Lessee shall have executed and delivered this Agreement to the Collateral Agent
for the benefit of the Secured Parties.
H. The parties hereto desire to amend and restate the
Security Deposit
Agreement, among Edison Mission Holdings Co., Edison Mission Finance Co., Xxxxx
City Property Holdings, Inc., Chestnut Ridge Energy Co., Mission Energy
Westside, Inc., EME Homer City Generation L.P. and United States Trust Company
of
New York, as Collateral Agent, dated March 18, 1999 in its entirety and
release the liens granted therein as provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each of the parties hereto hereby agrees that the
Security Deposit
Agreement, dated March 18, 1999 is hereby amended and restated as follows:
ARTICLE I
---------
DEFINITIONS
Section 1.1 Defined Terms The following terms shall have the meanings
indicated:
"ACCOUNTS" means all accounts established pursuant to SECTION 2.2 of
this Agreement.
"ADDITIONAL RESERVE ACCOUNT" has the meaning specified in Section 2.2.
"ADDITIONAL RESERVE PERIOD" means the period from and including the
Additional Reserve Trigger Date to but excluding the Lien Release Date.
SECURITY DEPOSIT AGREEMENT
--------------------------
2
"ADDITIONAL RESERVE TRIGGER DATE" means the first Restricted Payment
Date on which the conditions set forth in Section 6.9(c)(i) of the Participation
Agreement are not satisfied.
"AMENDMENT DATE" means the date the Operative Documents are executed.
"AUTHORIZED REPRESENTATIVE" means those of officers and employees of
the Facility Lessee whose signatures and incumbency shall have been certified by
the Facility Lessee to the Collateral Agent and each Owner Lessor's
Representative.
"COLLATERAL AGENT" has the meaning specified in the PREAMBLE.
"COMPONENT A LETTER OF CREDIT" means a letter of credit that may be
delivered to the Collateral Agent at the election of a Owner Lessor in total or
partial satisfaction of the amount on deposit in the applicable subaccount of
the Equity Account, the Supplemental Equity Account and the Additional Reserve
Account in accordance with Section 4.7 hereof.
"DEFAULT PERIOD" means the period commencing on the date the Collateral
Agent receives a written notice from the Facility Lessee or any of the Secured
Parties stating that a Lease Default or a Lease Event of Default has occurred
and is continuing under any of the Facility Leases. Such notice shall be deemed
to have been delivered if a voluntary petition of Bankruptcy has been filed
under Title 11 of the United States Code (or any similar action has been taken
under the laws of any other jurisdiction) with respect to the Facility Lessee.
"DEPOSITARY" means Bank of America NT&SA.
"EME HOMER CITY" has the meaning specified in the PREAMBLE.
"ENTITLEMENT ORDER" means "entitlement order" as defined in Article 8
of the
New York UCC.
"EQUITY ACCOUNT" has the meaning specified in SECTION 2.2.
"FACILITY LESSEE PROVIDED LETTER OF CREDIT" has the meaning provided in
SECTION 4.7(B)(II).
"LD ACCOUNT" has the meaning specified in SECTION 2.2.
"LETTER OF CREDIT ACCOUNT" has the meaning specified in SECTION
4.7(b)(i).
SECURITY DEPOSIT AGREEMENT
--------------------------
3
"LIEN RELEASE DATE" means the date on which all amounts payable in
respect of the Lessor Notes have been paid in full and the Lien of the Lease
Indenture has been released in accordance with the terms thereof.
"LIMITATION PERIOD" means each period (a) commencing on a first
Restricted Payment Date on which the condition contained in Section 6.9(c)(i) of
the applicable Participation Agreement is not satisfied and which immediately
succeeds a Restricted Payment Date on which such condition was satisfied and (b)
ending on the first subsequent Restricted Payment Date on which the condition
contained in Section 6.9(c)(i) of the applicable Participation Agreement is
satisfied.
"MONTHLY TRANSFER DATE" means the last Business Day of each month.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"
NEW YORK UCC" means the Uniform Commercial Code as from time to time
in effect in the State of
New York.
"NOTICE OF ACTION" has the meaning for so long as the Lessor Notes are
outstanding and the Lien of the Lease Indenture has not been discharged
specified in the Lease Indenture; provided that after the Liens of the Indenture
Trustee have been discharged and the Lease Indenture has been terminated, the
applicable Owner Participant, during any Event of Default and upon the exercise
of remedies pursuant to Section 17.1 of the Facility Lease, the applicable Owner
Participant may deliver a "NOTICE OF ACTION" to the Collateral Agent directing
the Collateral Agent to take action pursuant to Section 4.13(b).
"NOx RESERVE ACCOUNT" has the meaning specified in SECTION 2.2.
"NOx RESERVE PERIOD" means the period commencing on the first Monthly
Transfer Date after September 30, 2003 and ending on the first Monthly Transfer
Date when the Xxxxx City Generating Station Units 1,2 and 3 selective catalytic
reduction (SCR) systems become Operational.
"NOx RESERVE REQUIREMENT" means the amount equal to the expenditures
incurred by the Facility Lessee for acquisition of emission allowances actually
used [(other than pursuant to the Permitted Trading Activities)] during the
prior fiscal year multiplied by two.
"OBLIGATIONS" means all obligations and liabilities of the Facility
Lessee which may arise under or in connection with the Operative Documents or
any other Transaction Document whether on account of Rent payment obligations,
SECURITY DEPOSIT AGREEMENT
--------------------------
4
reimbursement obligations, the unpaid principal of and interest on Permitted
Indebtedness, fees, indemnities, costs, expenses or otherwise (including all
fees and disbursements of counsel to the Collateral Agent and to the Secured
Parties that are required to be paid by the Facility Lessee pursuant to the
terms of any Transaction Document).
"OPERATING ACCOUNT" has the meaning specified in SECTION 2.2.
"OPERATING EXPENSES" means, in respect of any period, all cash amounts
paid by the Facility Lessee in the conduct of its business during such period,
including premiums for insurance policies, fuel supply and transportation costs,
utilities, costs of maintaining, renewing and amending Governmental Approvals,
franchise, licensing, property, real estate and income taxes, sales and excise
taxes, general and administrative expenses, employee salaries, wages and other
employment-related costs, business management and administrative services fees
and other fees, expenses and capital expenditures necessary for the continued
operation and maintenance of the Facility and the conduct of business of EME
Homer City.
"OPERATIVE DOCUMENTS" has the meaning specified in each of the
Participation Agreements.
"ORGANIC DOCUMENT" means, with respect to any Person that is a
corporation, its certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to any of its
authorized shares of capital stock, and, with respect to any Person that is a
limited partnership, its certificate of limited partnership and partnership
agreement.
"OWNER LESSOR'S REPRESENTATIVE" means each Person designated as serving
as indenture trustee, collateral agent, lenders' representative or in any
similar capacity for an Owner Lessor, provided however, that for as long as the
Lessor Notes of such Owner Lessor are outstanding, this term shall refer to the
Security Agent.
"PAYMENT DATES" means Rent Payment Dates and Permitted Indebtedness
Payment Dates.
"PERMITTED INDEBTEDNESS ACCOUNT" has the meaning set forth in Section
2.2 hereof.
"PERMITTED INDEBTEDNESS PAYMENT DATE" means, with respect to any
Permitted Indebtedness, any date on which amounts are payable on such Permitted
Indebtedness.
SECURITY DEPOSIT AGREEMENT
--------------------------
5
"PLEDGED ACCOUNTS" means, collectively, the Revenue Account, the Senior
Rent Payment Account, the Recovery Event Proceeds Account and the Equity
Account.
"PROCEEDS" has the meaning specified in the
New York UCC.
"RECOVERY EVENT" means any settlement of or payment of $5,000,000 or
more in respect of (a) any property or casualty insurance claim relating to the
Facility or any part thereof or (b) any seizure, condemnation, confiscation or
taking of, or requisition of title or use of, the Facility or any part thereof
by any Governmental Authority.
"RECOVERY EVENT PROCEEDS" means proceeds received in respect of a
Recovery Event (regardless of whether the amount thereof is less than
$5,000,000).
"RECOVERY EVENT PROCEEDS ACCOUNT" has the meaning specified in
Section 2.2.
"REQUEST LETTER" means each letter from time to time delivered by an
Authorized Representative of the Facility Lessee or by the Facility Lessee to
the Collateral Agent requesting the transfer and/or release of funds from one or
more Accounts or subaccounts, as applicable to or on behalf of the Facility
Lessee in accordance with the terms of this Security Deposit Agreement, each
such letter to be in such form acceptable to the Collateral Agent.
"REQUIRED SECURED PARTIES" has the meaning specified in the Ownership
and Operation Agreement.
"RESTORATION" means the replacement or restoration of the Facility or
any part thereof in respect of which the Facility Lessee or any of the Owner
Lessors have received Recovery Event Proceeds.
"RESTRICTED PAYMENT BLOCKAGE DATE" means any date on which the Facility
Lessee would not be permitted to make a Component A Payment pursuant to Section
6.9 of the applicable Participation Agreement (other than as a result of the
failure to satisfy the condition set forth in Section 6.9(a) of the applicable
Participation Agreement).
"RESTRICTED PAYMENT BLOCKAGE PERIOD" means each Limitation Period,
provided that in no event shall any such period exceed eighteen months.
"RESTRICTED PAYMENTS" has the meaning specified in each of the
Participation Agreements.
SECURITY DEPOSIT AGREEMENT
--------------------------
6
"REVENUE ACCOUNT" has the meaning specified in SECTION 2.2.
"S&P" means Standard & Poor's Rating Group.
"SECURED PARTIES" means the Collateral Agent and the Owner Lessors.
"SECURITIES INTERMEDIARY" has the meaning specified in SECTION 2.5.
"SENIOR RENT RESERVE AMOUNT" means, on any date with respect to an
applicable Facility Lease, the sum of the aggregate amount of Senior Rent due
and unpaid on that date under such Facility Lease and the lesser of (i) the
amount of the second succeeding payment of Senior Rent (other than of the type
specified in clause (b) of the definition thereof) under such Facility Lease and
(ii) the aggregate of all amounts transferred into the applicable subaccount of
the Equity Account pursuant to Section 4.1(a) during Limitation Periods (and
regardless of whether any such amounts thereafter remain on deposit in such
applicable subaccount of the Equity Account).
"SPECIAL RESERVE BALANCE" means, with respect to the calculation of the
Modified Senior Rent Service Coverage Ratio for any period, the sum of (a) the
amount on deposit (or, in the case of the projected Modified Senior Rent Service
Coverage Ratio, projected to be on deposit) in the applicable subaccount of the
Supplemental Account on the last day of such period, (b) the amount deposited
(or, in the case of the projected Modified Senior Rent Service Coverage Ratio,
projected to be deposited) into the applicable subaccount of the Equity Account
during the Limitation Period in which the last day of such calculation period
occurs but only to the extent such amount remains (or is projected to remain) on
deposit in the applicable subaccount of the Equity Account on the last day of
such calculation period, (c) the amount deposited (or, in the case of the
projected Modified Senior Rent Service Coverage Ratio, projected to be
deposited) into the applicable subaccount of the Additional Reserve Account
during the Limitation Period in which the last day of such calculation period
occurs but only to the extent such amount remains (or is projected to remain) on
deposit in the applicable subaccount of the Additional Reserve Account on the
last day of such calculation period, (d) the amount on deposit (or, in the case
of the projected Modified Senior Rent Service Coverage Ratio, projected to be on
deposit) in the applicable subaccount of the Subordinated Rent Payment Account
on the last day of such period and (e) the amount on deposit (or, in the case of
the projected Modified Senior Rent Service Coverage Ratio, projected to be on
deposit) in the applicable subaccount of the Subordinated Reserve Account on the
last day of such period.
SECURITY DEPOSIT AGREEMENT
--------------------------
7
"TRANSACTION DOCUMENTS" means the Operative Documents and each
indenture, loan agreement, underwriting agreement, security purchase agreement
or other document entered into in connection with any Permitted Indebtedness.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise defined in SECTION 1.1 hereof, each
capitalized term used in this Agreement and not otherwise defined herein shall
have the respective meaning set forth in Appendix A to the Participation
Agreements unless the context hereof shall otherwise require. The general
provisions of Appendix A to the Participation Agreements shall apply to terms
used in this Agreement and specifically defined herein. References to applicable
Operative Documents (or other agreements) shall mean Operative Documents (or
other agreements) as such term is defined in the Participation Agreement to
which the relevant Owner Lessor is a party.
ARTICLE II
----------
AGREEMENT OF COLLATERAL AGENT;
CREATION OF ACCOUNTS; GRANT OF SECURITY INTERESTS
SECTION 2.1 AGREEMENT OF COLLATERAL AGENT. The Collateral Agent agrees
to accept all cash, cash equivalents, instruments, investments and other
securities to be delivered to or held by the Collateral Agent pursuant to the
terms of this Agreement, and, from such cash, cash equivalents, instruments,
investments and other securities, to make the releases and transfers
contemplated by this Agreement as and when required in accordance with the terms
hereof. The Collateral Agent shall hold and safeguard the Accounts (other than
the Operating Account and the cash, cash equivalents, instruments, investments
and other securities on deposit therein) during the term of this Agreement in
accordance with the provisions hereof. The Collateral Agent shall treat the
cash, cash equivalents, instruments, investments and other securities in each
Pledged Account as pledged by the Facility Lessee to the Secured Parties, to be
held by the Collateral Agent, as agent of the Secured Parties, in trust in
accordance with the provisions hereof.
SECTION 2.2 CREATION OF ACCOUNTS AND SUBACCOUNTS.
(a) On or prior to the Amendment Date, (i) the Collateral Agent
shall establish in the corporate trust department of The Bank of New York, a
special, segregated and irrevocable trust account designated the "Xxxxx City
8
Revenue Account" (the "REVENUE ACCOUNT") and (ii) EME Homer City shall establish
with the Depositary a special and segregated account designated the "Xxxxx City
Operating Account" (the "OPERATING ACCOUNT").
(b) On or prior to the Amendment Date, the Collateral
Agent shall establish in the corporate trust department of The Bank of
New York, special, segregated and irrevocable trust accounts as follows:
(i) one designated the "Xxxxx City Recovery Event
Proceeds Account" (the "RECOVERY EVENT PROCEEDS ACCOUNT");
(ii) one designated the "Xxxxx City Senior Rent Payment
Account" (the "SENIOR RENT PAYMENT ACCOUNT");
(iii) one designated the "Xxxxx City Subordinated Rent
Payment Account" (the "SUBORDINATED RENT PAYMENT ACCOUNT");
(iv) one designated the "Xxxxx City Reserve Account"
(the "RESERVE ACCOUNT");
(v) one designated the "Xxxxx City Equity Account" (the
"EQUITY ACCOUNT");
(vi) one designated the "Xxxxx City Supplemental Equity
Account" (the "SUPPLEMENTAL ACCOUNT");
(vii) one designated the "Xxxxx City Suspended
Distributions Account" (the "SUSPENDED DISTRIBUTIONS ACCOUNT");
(viii) one designated the "Xxxxx City Subordinated
Reserve Account" (the "SUBORDINATED RESERVE ACCOUNT");
(ix) one designated the "Xxxxx City Distributions
Account" (the "DISTRIBUTIONS ACCOUNT");
(x) one designated the "Xxxxx City Permitted
Indebtedness Account" (the "PERMITTED INDEBTEDNESS ACCOUNT"); and
SECURITY DEPOSIT AGREEMENT
--------------------------
9
(xi) one designated the "Xxxxx City Additional Debt
Service Reserve Account" (the "ADDITIONAL RESERVE ACCOUNT").
(c) On or prior to September 30, 2002, the Collateral Agent
shall establish in the corporate trust department of The Bank of New York
special, segregated and irrevocable trust accounts as follows:
(i) one designated the "Xxxxx City Liquidated Damages
Account" (the "LD ACCOUNT");
(ii) one designated the "Xxxxx City NOx Reserve Account"
(the "NOx RESERVE ACCOUNT").
(d) Each of the Accounts (other than the Revenue Account, the
Operating Account and the Permitted Indebtedness Account) shall be subdivided
into eight subaccounts, one subaccount for each Facility Lease. The Collateral
Agent shall maintain separate records for each subaccount. Amounts deposited
into or debited from such Accounts shall be deposited or debited from the
applicable subaccount as provided herein.
SECTION 2.3 DELIVERY OF REVENUES, ETC. TO COLLATERAL AGENT. The
Facility Lessee shall cause all Revenues and Recovery Event Proceeds and all
cash, cash equivalents, instruments, investments and other securities in its
possession (excluding amounts received by the Facility Lessee as transfers from
the Operating Account or the Distributions Account in accordance with this
Agreement) to be delivered immediately to the Collateral Agent for deposit into
the Accounts pursuant to Article III. All such Revenues, cash, cash equivalents,
instruments, investments and other securities at any time on deposit in the
Accounts shall be held in the exclusive custody of the Collateral Agent for the
purposes and on the terms set forth in this Agreement.
SECTION 2.4 SECURITY INTERESTS IN THE LESSEE ACCOUNTS. In order to
secure the payment of the Obligations, and the performance and observance by the
Facility Lessee of all of its covenants, agreements and obligations to the
Secured Parties under the Transaction Documents, the Facility Lessee hereby
pledges and assigns to the Collateral Agent, and hereby grants in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, a security
interest in all of the Facility Lessee's right, title and interest, whether now
owned or hereafter acquired and whether now existing or hereafter coming into
existence, in, to and under (i) all Revenues, (ii) the Revenue Account, the
Senior Rent Payment Account, the Recovery Event Proceeds Account, the Equity
Account and all cash, cash
SECURITY DEPOSIT AGREEMENT
--------------------------
10
equivalents, instruments, investments and other securities on deposit therein,
(iii) all security entitlements with respect to any and/or all of the foregoing
and all Proceeds of the foregoing. All Accounts (other than the Operating
Account) and all cash, cash equivalents, instruments, investments and other
securities on deposit therein and security entitlements with respect thereto
shall, subject to the provisions of this Agreement, be subject to the exclusive
dominion and control of the Collateral Agent, and the Collateral Agent shall
have the sole and exclusive right to withdraw or order a transfer of funds from
such Accounts, and the Facility Lessee hereby irrevocably appoints the
Collateral Agent as its true and lawful attorney, with full power of
substitution, for the purpose of making any such withdrawal or ordering any such
transfer of funds from any such Account, which appointment is coupled with an
interest and is irrevocable. The Facility Lessee shall not have any rights or
powers with respect to any amounts in any of the Accounts (other than the
Operating Account) or any part thereof except (i) as provided in the Investments
section of this Security Deposit Agreement, (ii) the right to have such amounts
applied in accordance with the provisions of this Security Deposit Agreement,
and (iii) the right described in Section 4.7(b)(ii).
SECTION 2.5 SECURITIES ACCOUNTS. The parties hereto hereby agree that:
(a) the Accounts (other than the Operating Account) shall be
treated as "securities accounts" as such term is defined in Section 8-501 of the
New York UCC;
(b) The Securities Intermediary shall, subject to the terms
of this Agreement, treat the Facility Lessee as the person entitled to
exercise the rights that comprise any financial assets credited to the
Accounts;
(c) all property delivered to the Securities Intermediary,
pursuant to the terms of this Agreement, will be promptly credited to the
appropriate Account;
(d) all securities or other property underlying any financial
assets credited to such Accounts shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary or in blank and
in no case will any financial asset credited to any Account be registered in the
name of the Facility Lessee, payable to the order of the Facility Lessee or
specially indorsed to the Facility Lessee except to the extent the forgoing have
been specially indorsed to the Securities Intermediary or in blank;
SECURITY DEPOSIT AGREEMENT
--------------------------
11
(e) each item of property (whether investment property,
financial asset, security, instrument or cash) credited to such Accounts shall
be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of
the New York UCC; and
(f) if at any time the Securities Intermediary shall receive an
Entitlement Order issued by the Collateral Agent and relating to any of the
Pledged Accounts, the Securities Intermediary shall comply with such entitlement
order without further consent by the Facility Lessee or any other person. In the
event the Facility Lessee, if permitted to give any Entitlement Order with
respect to any Pledged Account and such order conflicts with or contradicts an
Entitlement Order issued by the Collateral Agent, the Securities Intermediary
shall always follow the Entitlement Orders issued by the Collateral Agent.
ARTICLE III
-----------
DEPOSITS INTO ACCOUNTS
SECTION 3.1 REVENUE ACCOUNT. The Facility Lessee agrees that there
shall be deposited into the Revenue Account all Revenues and all proceeds of
Permitted Indebtedness (including proceeds received pursuant to the SocGen
Instrument) received by or on behalf of itself and any proceeds of liquidated
damages or settlement proceeds arising out of contractual claims related to the
Facility. If, notwithstanding the foregoing, the Facility Lessee receives any
Revenues or proceeds of Permitted Indebtedness, it shall immediately deliver
such Revenues in the exact form received (duly indorsed, if appropriate, in a
manner satisfactory to the Collateral Agent) to the Collateral Agent for deposit
into the Revenue Account. The Collateral Agent shall have the right to receive
all Revenues directly from the Persons owing the same. All Revenue and proceeds
of Permitted Indebtedness received by the Collateral Agent shall be deposited
into the Revenue Account.
SECTION 3.2 RECOVERY EVENT PROCEEDS ACCOUNT. The Facility Lessee agrees
that there shall be deposited into the Recovery Event Proceeds Account all
Recovery Event Proceeds PROVIDED, that if the aggregate amount of Recovery Event
Proceeds with respect to a Recovery Event is less than $5 million, such proceeds
shall be transferred to the Revenue Account if requested pursuant to a Request
Letter. If, notwithstanding the foregoing, the Facility Lessee shall receive any
such proceeds, it shall immediately deliver such proceeds in the exact form
received (duly endorsed, if appropriate, in a manner satisfactory to the
Collateral Agent) to the Collateral Agent for deposit into the Recovery Event
Proceeds
SECURITY DEPOSIT AGREEMENT
--------------------------
12
Account. The Collateral Agent shall have the right to receive all such
proceeds directly from the Persons owing the same. All such proceeds received by
or on behalf of the Collateral Agent shall be deposited into the Recovery Event
Proceeds Account. Amounts deposited into the Recovery Event Proceeds Account
shall be credited to each subaccount thereof based upon each Owner Lessor's
Percentage of such deposited amounts.
SECTION 3.3 RESERVE ACCOUNT. The Facility Lessee agrees that on the
Amendment Date there shall be deposited into the Reserve Account the proceeds
from the sale of the Facility received pursuant to the Facility Deeds and the
Bills of Sale, in a total amount of $[134] million. Such amount shall be
credited to each subaccount of the Reserve Account based upon each Owner
Lessor's Percentage of such deposited amount. No additional amounts shall be
deposited into the Reserve Account.
SECTION 3.4 EQUITY ACCOUNT, SUPPLEMENTAL ACCOUNT AND ADDITIONAL RESERVE
ACCOUNT. The Facility Lessee agrees that any Component A Letter of Credit or
Facility Lessee Provided Letter of Credit (in each case with respect to the
applicable Facility Lease) delivered to the Collateral Agent in accordance with
the terms of Section 4.7(b) hereof shall be deposited in the applicable
subaccounts of the Equity Account, the Additional Reserve Account or the
Supplemental Account and all proceeds from a draw thereon shall be deposited in
the applicable subaccounts of the Equity Account, the Additional Reserve Account
or the Supplemental Account.
SECTION 3.5 LD ACCOUNT. The Facility Lessee agrees that there shall be
deposited into the LD Account all sums received by or on behalf of the Facility
Lessee during the NOx Reserve Period on account of performance liquidated
damages and similar payments pursuant to the SCR Construction Contract.
SECTION 3.6 DEPOSITS IRREVOCABLE. Any deposit made into the Accounts
hereunder shall be irrevocable and all cash, cash equivalents, instruments,
investments and other securities on deposit shall be held in trust by the
Collateral Agent, and applied solely as provided herein.
ARTICLE IV
----------
TRANSFERS FROM ACCOUNTS
SECTION 4.1 REVENUE ACCOUNT.
SECURITY DEPOSIT AGREEMENT
--------------------------
13
(a) Subject to Section 4.13, on each Monthly Transfer Date the
Collateral Agent shall transfer with respect to each Owner Lessor, such Owner
Lessor's Percentage of the funds on deposit in the Revenue Account in the
following amounts in the following order of priority:
FIRST, to the Operating Account, the amount certified in such
Request Letter to be such Owner Lessor's Percentage of the excess, if
any, of the aggregate amount of Operating Expenses then due and payable
or projected to become due and payable in the next succeeding month
over the balance then on deposit in the Operating Account; PROVIDED
THAT if the Annual Budget in effect for such Fiscal Year of the
Facility Lessee was determined in accordance with Section 5.14(b) or
5.14(c) of any Participation Agreement, then the amount withdrawn from
the Operating Account on any Monthly Transfer Date during such Fiscal
Year shall not exceed the amount set forth in such Annual Budget for
the immediately succeeding calendar month unless agreed to by the
Majority in Interest of the Owner Lessors except with respect to fuel
and emission allowance costs which shall not be subject to the consent
or approval of the Owner Lessors;
SECOND, to the Collateral Agent, the applicable Owner Lessor's
Owner Manager, the Lease Indenture Trustee, the Security Agent and the
Bondholder Trustee, the amount certified in the Request Letter
delivered in connection with such Monthly Transfer Date to be the sum
of the unpaid fees, indemnities, costs and expenses then due and
payable to such Persons in respect of their respective services in such
capacities; PROVIDED THAT in the case of the Collateral Agent and the
Bondholder Trustee, such amount shall be such Owner Lessor's Percentage
of the sum of the unpaid fees, indemnities, costs and expenses of the
Collateral Agent and the Bondholder Trustee;
THIRD, into the applicable subaccount of the Senior Rent
Payment Account, an amount equal to (a) 1/6th of the aggregate amount
(except with respect to the first Rent Payment Date following the
Closing Date, 1/3rd of the aggregate amount) which is payable on or
within six months following such Monthly Transfer Date on account of
Senior Rent (other than of the type specified in clause (b) of the
definition thereof) under such Owner Lessor's Facility Lease and (b)
the aggregate amount of all Senior Rent of the type specified in clause
(b) of the definition thereof, under such Owner Lessor's Facility Lease
for which will become due and payable prior to the next Monthly
Transfer Date together with the amount of all deficiencies, if any,
with respect to deposits required to be made in the applicable
subaccount of
SECURITY DEPOSIT AGREEMENT
--------------------------
14
the Senior Rent Payment Account in all prior months, as certified in
the Request Letter;
FOURTH, subject to Section 4.13 hereof and to Section 6.9 of
the Participation Agreement, if applicable, and to the Operative
Documents applicable to the Persons entitled thereto, an amount equal
to all other Supplemental Rent (other than Excepted Payments) under the
applicable Facility Lease then due and payable to such Persons as
certified in the Request Letter;
FIFTH, into the Permitted Indebtedness Account, such Owner
Lessor's Percentage of an amount equal to 1/6th of the amounts due and
payable in respect of Permitted Indebtedness on or within six months
following such Monthly Transfer Date (including all unpaid fees,
indemnities, costs and expenses then due and payable with respect to
such Permitted Indebtedness), as certified in the Request Letter;
provided that, in the case of the SocGen Instrument, (A) in the event
that no Early Termination Date (as defined in the SocGen Instrument)
has occurred, there shall also be deposited into the Permitted
Indebtedness Account 1/6th of the amount (the "ADDITIONAL AMOUNT")
required to be paid in accordance with the SocGen Instrument on or
within six months following such Monthly Transfer Date in excess of the
amount relating to the SocGen Instrument referred to in this clause
FIFTH above; and (B) in the event that an Early Termination Date (as so
defined) has occurred, there shall be deposited into the Permitted
Indebtedness Account on such Monthly Transfer Date the full amount due
under the SocGen Instrument (including unpaid fees, indemnities, costs
and expenses then due and payable with respect to the SocGen
Instrument);
SIXTH, into the applicable subaccount of the Equity Account,
such Owner Lessor's Percentage of the balance remaining in the Revenue
Account.
(b) If, on any Monthly Transfer Date, such Owner
Lessor's Percentage of the funds on deposit in the Revenue Account are
insufficient to make in full any transfer required pursuant to clause FIRST,
SECOND, THIRD, FOURTH or FIFTH of Section 4.1(a), the Collateral Agent shall
make such transfer with funds then on deposit (in the following order of
priority) (i) in the applicable subaccount of each of the Supplemental
Account, the Subordinated Reserve Account (funds shall be transferred from
the Subordinated Reserve Account only with respect to clause FIRST, SECOND,
THIRD and FOURTH), the Subordinated Rent Payment Account, the Suspended
Distributions Account, the Additional Reserve Account (funds shall be
transferred
SECURITY DEPOSIT AGREEMENT
--------------------------
15
from the Additional Reserve Account only with respect to clause FIRST, SECOND
and THIRD), the Equity Account (funds shall be transferred from the Equity
Account only with respect to clause SECOND and THIRD ) or the Reserve Account
(funds shall be transferred from the Reserve Account only with respect to
clause SECOND and THIRD), as available.
SECTION 4.2 RECOVERY EVENT PROCEEDS ACCOUNT.
(a) Except as otherwise provided in Section 4.2(b) and subject
to Section 4.13, on each Monthly Transfer Date occurring after a Recovery Event
and until Restoration with respect thereto is completed, the Collateral Agent
shall transfer to the Facility Lessee, from the funds on deposit in each
subaccount of the Recovery Event Proceeds Account, such Owner Lessor's
Percentage of the amount certified in the Request Letter delivered in connection
with such Monthly Transfer Date to be the aggregate amount then due and payable
in respect of such Restoration.
(b) Subject to Section 4.13, on any Rent Payment Date or
Termination Value Payment Date on which Rent or Termination Value under a
Facility Lease is required to be paid with any Recovery Event Proceeds, the
Collateral Agent shall transfer, from the funds on deposit in the applicable
subaccount of the Recovery Event Proceeds Account, the following amounts in the
following order of priority:
FIRST, to the applicable Owner Lessor under such Facility Lease, the
amount certified in the Request Letter delivered in connection with such
Rent Payment Date or Termination Value Payment Date to be the amount then
due and payable in respect of Senior Rent under such Facility Lease
(including premium and interest, if any);
SECOND, into the Permitted Indebtedness Account, the amount sufficient
to pay in full the Permitted Indebtedness outstanding; and
THIRD, to the applicable Owner Lessor, the amount certified in such
Request Letter to be the amount of the Component A of Basic Lease Rent or
the Component A of Termination Value then due and payable under such
Facility Lease.
SECTION 4.3 SENIOR RENT PAYMENT ACCOUNT Subject to Section 4.13 hereof,
on any Rent Payment Date for a Facility Lease, the Collateral Agent shall
transfer from funds on deposit in the applicable subaccount of the Senior Rent
Payment Account to the Security Agent on behalf of the applicable
SECURITY DEPOSIT AGREEMENT
--------------------------
16
Owner Lessor, the amount certified by the Facility Lessee in the Request Letter
delivered in connection with such Rent Payment Date to be payable with respect
to the Senior Rent and all Supplemental Rent (other than Excepted Payments)
under such Facility Lease on such date.
SECTION 4.4 RESERVE ACCOUNT. Subject to Sections 4.13 and 4.1(b) hereof
and so long as no Lease Event of Default (other than a Rent Default Event) then
exists, on any Rent Payment Date for a Facility Lease, the Collateral Agent
shall transfer to the applicable Owner Lessor from funds on deposit in the
applicable subaccount of the Reserve Account the amount certified by the
Facility Lessee to be equal to the difference, if positive, between the amounts
payable with respect to the Component A of Basic Lease Rent under such Facility
Lease on such Rent Payment Date and the amounts that would be available under
Section 4.8, if any (and whether or not the conditions have been met under
Section 6.9 of the applicable Participation Agreement), after giving effect to
any transfers (with respect to such subaccount) to be made on such date pursuant
to Section 4.1 hereof for use in making payments with respect to the Component A
of Basic Lease Rent in accordance with the applicable Operative Documents.
SECTION 4.5 LD ACCOUNT; NOx RESERVE ACCOUNT. During the NOx Reserve
Period, subject to Section 4.13 hereof, on each Business Day specified in the
Request Letter, the Collateral Agent shall transfer to the Facility Lessee from
the funds on deposit in the applicable subaccount of the LD Account and the NOx
Reserve Account respectively, the amount certified in such Request Letter to be
the aggregate amount then due and payable in respect of emission allowances
required to be acquired by the Facility Lessee from time to time during such
period. The transfers shall be made from the applicable subaccounts of the LD
Account and the NOx Reserve Account in the following order of priority: first,
the applicable subaccount of the LD Account and second, the applicable
subaccount of the NOx Reserve Account. Subject to Section 4.13, on the first
Monthly Transfer Date following the end of the NOx Reserve Period the balance
remaining in each subaccount of the LD Account and the NOx Reserve Account shall
be transferred into the Equity Account.
SECTION 4.6 PERMITTED INDEBTEDNESS ACCOUNT. (a) Subject to Section 4.13
hereof, on any date on which any payment is due and payable in respect of
Permitted Indebtedness, after giving effect to all transfers to be made on such
date pursuant to Section 4.1, the Collateral Agent shall transfer to the Persons
that provide each class of Permitted Indebtedness, from the funds on deposit in
the Permitted Indebtedness Account, the aggregate amount of principal, premium,
fees, indemnities, costs and expenses then due and payable to the Persons that
provide
SECURITY DEPOSIT AGREEMENT
--------------------------
17
each such class of Permitted Indebtedness, as certified in the Request Letters
delivered in connection with such Monthly Transfer Date.
(b) Subject to Section 4.13 hereof, on any date on which an
Additional Amount is required to be paid under the SocGen Instrument, after
giving effect to all transfers to be made on such date pursuant to Section 4.1,
the Collateral Agent shall transfer to the counterparty under the SocGen
Instrument, from the funds on deposit in the Permitted Indebtedness Account, the
amount required to be deposited on such date, as certified in the Request Letter
delivered in connection with such deposit; PROVIDED HOWEVER, that no funds shall
be transferred on such date for making of a deposit under the SocGen Instrument
unless after giving effect to such transfer there are sufficient funds remaining
to make in full transfers required pursuant to clause THIRD of Section 4.7
hereof, as certified in the Request Letter. If on any Rent Payment Date on which
an Additional Amount is required to be paid under the SocGen Instrument the
conditions set forth in the proviso immediately above are not satisfied, then an
amount equal to the sum of deposits made into the Permitted Indebtedness Account
since the immediately preceding Rent Payment Date pursuant to clause FIFTH (A)
of Section 4.1(a) hereof in respect of Additional Amount shall be transferred
from the Permitted Indebtedness Account into the Equity Account following the
payment pursuant to clause (a) of this Section 4.6.
SECTION 4.7 EQUITY ACCOUNT.
(a) Subject to Section 4.13, on the date specified below the
Collateral Agent shall transfer, from the funds on deposit in each subaccount of
the Equity Account, the amount certified by the Facility Lessee in the Request
Letter delivered in connection with such date the following amounts in the
following order of priority:
FIRST, after giving effect to all transfers made pursuant to Section
4.1 hereof, on each Monthly Transfer Date either (a) which is also a
Restricted Payment Blockage Date occurring prior to the Additional Reserve
Period or (b) which occurs during the Additional Reserve Period, into the
applicable subaccount of the Supplemental Account, the amount, if any, by
which the sum of the balance in the applicable subaccount of the Senior Rent
Payment Account and the balance in the applicable subaccount of the Equity
Account (immediately prior to giving effect to the transfer contemplated by
this clause FIRST) exceeds the applicable Senior Rent Reserve Amount;
SECOND, on each Monthly Transfer Date either (a) which is also a
Restricted Payment Blockage Date occurring prior to the Additional Reserve
Period or (b) which occurs during the Additional Reserve Period, into the
SECURITY DEPOSIT AGREEMENT
--------------------------
18
applicable subaccount of the Additional Reserve Account the amount by which
the sum of (1) the Owner Lessor's Percentage of the balance in the Revenue
Account and (2) the balances in the applicable subaccounts of the Senior
Rent Payment Account, the Equity Account (immediately prior to giving effect
to the transfer contemplated by this clause SECOND) and the Recovery Event
Proceeds Account exceeds the sum of all the Basic Lease Rent and
Supplemental Lease Rent due and unpaid on that date and the average of the
next two aggregate payments of the Basic Lease Rent, in each case, under the
applicable Facility Lease minus the Owner Lessor's Percentage of $1 million,
as certified in the Request Letter;
THIRD, on each Restricted Payment Date which does not occur during the
Additional Reserve Period if the conditions to the payments of the Component
A of Basic Lease Rent are satisfied pursuant to Section 6.9 of the
applicable Participation Agreement, into the applicable subaccount of the
Subordinated Rent Payment Account, an amount payable with respect to the
Component A of Basic Lease Rent plus all Excepted Payments, if any, due and
payable under the applicable Facility Lease on the Restricted Payment Date,
together with the amount of all deficiencies, if any, with respect to all
payments required in all prior months, as certified in the Request Letter;
PROVIDED THAT on each Restricted Payment Date that is not a Rent Payment
Date if the SocGen Instrument is not in effect through the following two
Restricted Payment Dates than the Collateral Agent shall deposit 1/2 of the
amount of Component A of Basic Lease Rent due and payable on the Rent
Payment Date following such Restricted Payment Date;
FOURTH, on each Restricted Payment Date which does not occur during the
Additional Reserve Period if the conditions to the payment of the Component
A of Basic Lease Rent set forth in Section 6.9 of the applicable
Participation Agreement are satisfied, into the applicable subaccount of the
Subordinated Reserve Account, an amount equal to the difference, if
positive, between the Reserve Requirement under the applicable Facility
Lease and the sum of the balances on deposit in the applicable subaccounts
of the Reserve Account and the Subordinated Reserve Account;
FIFTH, on each Restricted Payment Date which occurs during the NOx
Reserve Period which is not also the Additional Reserve Period if the
conditions to the payment of the Component A of Basic Lease Rent set forth
in Section 6.9 of the applicable Participation Agreement are satisfied, the
balance remaining in the applicable subaccount of the Equity Account into
the applicable subaccount of the NOx Reserve Account the amount equal to
such Owner Lessor's Percentage of the NOx Reserve Requirement;
SECURITY DEPOSIT AGREEMENT
--------------------------
19
SIXTH, on each Restricted Payment Date which does not occur during the
Additional Reserve Period if the conditions to the payment of the Component
A of Basic Lease Rent set forth in Section 6.9 of the applicable
Participation Agreement are satisfied, the balance remaining in the
applicable subaccount of the Equity Account, either into the Distributions
Account or any other account designated by the Facility Lessee for the
making of Restricted Payments if the conditions to making these payments as
set forth in Section 6.10 of the applicable Participation Agreement are
satisfied or into the applicable subaccount of the Suspended Distributions
Account if such conditions in Section 6.10 of the applicable Participation
Agreement are not satisfied; and
SEVENTH, on each Monthly Transfer Date either (a) which is not a
Restricted Payment Blockage Date occurring prior to the Additional
Reserve Period and (b) which does not occur during the Additional Reserve
Period, into the applicable subaccount of the Supplemental Account the
amount by which the sum of (1) the Owner Lessor's Percentage of the
balance in the Revenue Account and (2) the balances in the applicable
subaccounts of the Senior Rent Payment Account, the Equity Account and
the Recovery Event Proceeds Account exceeds the sum of all the Basic
Lease Rent and Supplemental Lease Rent due and unpaid on that date and
the average of the next two aggregate payments of the Basic Lease Rent,
in each case, under the applicable Facility Lease minus the Owner
Lessor's Percentage of $1 million, as certified in the Request Letter.
(b) The amount withdrawn from the applicable subaccounts of the
Equity Account, the Supplemental Account or the Additional Reserve Account shall
be in the manner and priority provided herein:
(i) First, upon the occurrence and during the
continuance of a Rent Default Event under a Facility Lease, the applicable
Owner Lessor may from time to time request and the Collateral Agent shall
transfer from the applicable subaccounts (in the following order of
priority) of the Supplemental Account, the Equity Account and the Additional
Reserve Account (the "Letter of Credit Accounts") to such Owner Lessor, to
the extent then on deposit in such subaccount, an amount equal to the
Component A of Basic Lease Rent under such Facility Lease then past due (the
"OVERDUE RENT"); PROVIDED, that (i) as a condition to such transfer, such
Owner Lessor shall cause to be delivered to the Collateral Agent a standby
letter of credit with respect to such Facility Lease in form reasonably
satisfactory to the parties hereto (the "COMPONENT A LETTER OF CREDIT")
SECURITY DEPOSIT AGREEMENT
--------------------------
20
issued in favor of the Collateral Agent by an Acceptable Credit Provider for
the account of a party other than Xxxxx City or any of the Owner Lessors in
the face amount equal the amount requested to be withdrawn, PROVIDED,
FURTHER, that any transfer of funds from such subaccount of the relevant
Letter of Credit Accounts pursuant to this Section 4.7(b) shall not be
deemed to constitute any payment of Rent. If at any time after the delivery
of a Component A Letter of Credit the amount the Collateral Agent is then
directed to transfer from such subaccount of the Equity Account pursuant to
the terms of this Agreement exceeds cash then on deposit in such subaccount
of the Letter of Credit Account (such excess amount, the "SHORTFALL
AMOUNT"), then the Collateral Agent shall draw on the Component A Letter of
Credit in an amount equal to the lesser of the Shortfall Amount and the
undrawn face amount of the Component A Letter of Credit and shall deposit
the proceeds of such drawing into the applicable subaccounts of the relevant
Letter of Credit Account (for application in accordance with the terms of
this Security Deposit Agreement). If pursuant to the terms thereof the
Component A Letter of Credit becomes drawable as a result of the failure of
such Component A Letter of Credit to be extended or failure to provide a
replacement letter of credit within 30 days of a downgrade of the applicable
Acceptable Credit Provider, the Collateral Agent shall draw on the Component
A Letter of Credit in an amount equal to the undrawn face amount of the
Component A Letter of Credit and shall deposit the proceeds of such drawing
into the applicable subaccount of the relevant Letter of Credit Accounts
(for application in accordance with the terms of this Security Deposit
Agreement).
(ii) Second, so long as no Lease Event of Default has
occurred and is continuing and distributions are not blocked pursuant to
Section 6.10 (b)(ii) or (iii) of each Participation Agreement, the Facility
Lessee may from time to time request and the Collateral Agent shall transfer
from the applicable subaccount of the Equity Account to the Facility Lessee,
to the extent cash is then on deposit in such subaccount, an amount equal to
the funds specified in such request; PROVIDED, that (i) as a condition to
such transfer, the Facility Lessee shall cause to be delivered to the
Collateral Agent a standby letter of credit in form reasonably satisfactory
to the Collateral Agent (the "FACILITY LESSEE PROVIDED LETTER OF CREDIT")
issued in favor of the Collateral Agent by an Acceptable Credit Provider for
the account of a party other than the Facility Lessee or any of the Owner
Lessors in the face amount equal to the amount
SECURITY DEPOSIT AGREEMENT
--------------------------
21
requested to be withdrawn. If at any time after the delivery of a Facility
Lessee Provided Letter of Credit the amount the Collateral Agent is then
directed to transfer from such subaccount of the Equity Account pursuant to
the terms of this Security Deposit Agreement exceeds cash then on deposit in
such subaccount of the Equity Account, as applicable (such excess amount,
the "FACILITY LESSEE PROVIDED SHORTFALL AMOUNT"), then the Collateral Agent
shall draw on the Facility Lessee Provided Letter of Credit in an amount
equal to the lesser of the Facility Lessee Provided Shortfall Amount and the
undrawn face amount of the Facility Lessee Provided Letter of Credit and
shall deposit the proceeds of such drawing into such subaccount of the
Equity Account, as required (for application in accordance with the terms of
this Security Deposit Agreement). If pursuant to the terms thereof the
Facility Lessee Provided Letter of Credit becomes drawable as a result of
the failure of such Facility Lessee Provided Letter of Credit to be extended
or failure to provide a replacement letter of credit within 30 days of a
downgrade of the applicable Acceptable Credit Provider, the Collateral Agent
shall draw on the Facility Lessee Provided Letter of Credit in an amount
equal to the undrawn face amount of the Facility Lessee Provided Letter of
Credit and shall deposit the proceeds of such drawing into such applicable
subaccount of the Equity Account or in such applicable subaccount of the
Equity Account (for application in accordance with the terms of this
Security Deposit Agreement).
(c) In addition, the Collateral Agent shall make transfers from
the funds on deposit in each subaccount of the Equity Account in accordance with
Sections 4.1(b) and 4.13(b).
(d) If, on any Restricted Payment Date the funds on deposit in
the applicable subaccount of the Equity Account are insufficient to make in full
any transfer required pursuant to clause THIRD of Section 4.7(a) and the
conditions to the payments of Component A of Basic Rent are satisfied pursuant
to Section 6.9 of the applicable Participation Agreement, the Collateral Agent
shall transfer into the applicable subaccount of the Subordinated Rent Account
the amount of such shortfall after giving effect to any transfer pursuant to
Section 4.4 from funds then on deposit (in the following order of priority) in
the applicable subaccount of each of the Supplement Account, the Subordinated
Reserve Account or the Suspended Distributions Account, as available.
(f) The Reserve Requirement may be satisfied by Qualifying
Credit Support.
SECURITY DEPOSIT AGREEMENT
--------------------------
22
SECTION 4.8 SUPPLEMENTAL ACCOUNT AND ADDITIONAL RESERVE ACCOUNT. (a)
Subject to Sections 4.13 and 4.1(b) hereof, on each Monthly Transfer Date or
Restricted Payment Date as applicable, the Collateral Agent shall make transfers
from the funds on deposit in the applicable subaccount of each of the
Supplemental Account and the Additional Reserve Account in accordance with
Sections 4.1(b) and 4.7(d).
(b) On each Monthly Transfer Date and immediately prior to
making the transfers contemplated by Section 4.7, the Collateral Agent shall
transfer all funds on deposit in each subaccount of the Supplemental Account and
the Additional Reserve Account into the applicable subaccount of the Equity
Account.
(c) On the Lien Release Date, all amounts on deposit in the
subaccounts of the Additional Reserve Account shall be transferred to the Equity
Account.
(d) After giving effect to all transfers contemplated by
Section 4.7, on each Restricted Payment Date which occurs during the Additional
Reserve Period, from funds on deposit in the applicable subaccount of the
Supplemental Account, the amount certified by the Facility Lessee in the Request
Letter delivered in connection with such date the following amounts in the
following order of priority:
FIRST, on each Restricted Payment Date if (a) such
Restricted Payment Date does not occur during a Restricted Payment Blockage
Period and (b) the conditions to the payments of Component A of Basic Lease Rent
are satisfied pursuant to Section 6.9 of the applicable Participation Agreement,
into the applicable subaccount of the Subordinated Rent Payment Account, an
amount payable with respect to the Component A of Basic Lease Rent plus all
Excepted Payments, if any, due and payable under the applicable Facility Lease
on the Restricted Payment Date, together with the amount of all deficiencies, if
any, with respect to all payments required in all prior months, as certified in
the Request Letter;
SECOND, on each Restricted Payment Date if (a) such
Restricted Payment Date does not occur during a Restricted Payment Blockage
Period and (b) the conditions to the payment of Component A of Basic Lease Rent
set forth in Section 6.9 of the applicable Participation Agreement are
satisfied, into the applicable subaccount of the Subordinated Reserve Account,
an amount equal to the difference, if positive, between the Reserve Requirement
under the applicable Facility Lease and the sum of the balances on deposit in
the applicable subaccounts of the Reserve Account and the Subordinated Reserve
Account; and
SECURITY DEPOSIT AGREEMENT
--------------------------
23
THIRD, on each Restricted Payment Date if (a) such
Restricted Payment Date does not occur during a Restricted Payment Blockage
Period and (b) the conditions to the payment of Component A of Basic Lease Rent
set forth in Section 6.9 of the applicable Participation Agreement are
satisfied, the balance remaining in the applicable subaccount of the Equity
Account, either into the applicable subaccount of the Distributions Account for
the making of Restricted Payments if the conditions to making these payments as
set forth in Section 6.10 of the applicable Participation Agreement are
satisfied or into the applicable subaccount of the Suspended Distributions
Account if such conditions in Section 6.10 of the applicable Participation
Agreement are not satisfied.
SECTION 4.9 SUBORDINATED RENT PAYMENT ACCOUNT. Subject to Sections 4.13
and 4.1(b) hereof, if the conditions to the payments of Component A Portion of
the Basic Lease Rent are satisfied pursuant to Section 6.9 of the applicable
Participation Agreement, on each Restricted Payment Date under such
Participation Agreement, after giving effect to all transfers to be made on such
date pursuant hereto, the Collateral Agent shall transfer to the applicable
Owner Lessor, from funds on deposit in the applicable subaccount of the
Subordinated Rent Payment Account, the amount certified by the Facility Lessee
in the Request Letter delivered in connection with such payment to be (i)
payable with respect to the Component A of the Basic Lease Rent and all Excepted
Payments under the applicable Facility Lease and (ii) available for use in
making such payments on account of the Component A of Basic Lease Rent and
Excepted Payments in accordance with the terms of the applicable Operative
Documents.
SECTION 4.10 SUBORDINATED RESERVE ACCOUNT. Subject to Sections 4.13 and
4.1(b) hereof and so long as no Lease Event of Default (other than a Rent
Default Event) then exists on each Restricted Payment Date under such
Participation Agreement, following a distribution in accordance with the terms
of Sections 4.8 and 4.4 hereof, if any (and whether or not the conditions have
been met under Section 6.9 of the applicable Participation Agreement), the
Collateral Agent shall transfer to the applicable Owner Lessor, from funds on
deposit in the applicable subaccount of the Subordinated Reserve Account, the
amount certified by the Facility Lessee in the Request Letter delivered in
connection with such Restricted Payment Date to be equal to the difference, if
positive, between the aggregate amount of the Component A of Basic Lease Rent
and Excepted Payments under the applicable Facility Lease due and the aggregate
amount of payments, if any, made on such Restricted Payment Date pursuant to
Sections 4.8 and 4.4 hereof.
SECTION 4.11 SUSPENDED DISTRIBUTIONS ACCOUNT. Subject to Section 4.13
hereof, on each Monthly Transfer Date or Restricted Payment Date (as
applicable), the Collateral Agent shall make transfers from the funds on deposit
in
SECURITY DEPOSIT AGREEMENT
--------------------------
24
the applicable subaccount of the Suspended Distributions Account in
accordance with Sections 4.1(b) and 4.7(d). Following the end of the Lease Term
of the applicable Facility Lease and the payment in full of all Rent,
Termination Value and other amounts due and owing from the Facility Lessee under
such Facility Lease and the other Operative Documents, the Collateral Agent
shall transfer, all the funds on deposit in the applicable subaccount of the
Suspended Distributions Account to the Facility Lessee.
SECTION 4.12 DELIVERY OF REQUEST LETTERS. Each Request Letter to be
delivered by the Facility Lessee pursuant to this Article IV shall be delivered
to the Collateral Agent not later than one day prior to the date that the
Collateral Agent is required to make any transfer specified therein. At the time
the Facility Lessee delivers to the Collateral Agent any Request Letter or other
written communication relating to any Account or subaccount of the Accounts, the
Facility Lessee shall deliver a copy thereof to each Owner Lessor and its
applicable Lease Indenture Trustee, Owner Participant and such Owner Lessor's
Representative.
SECTION 4.13 SHORTFALL NOTICES. Not later than the Business Day
preceding each date on which any transfer is to be made pursuant to this Article
IV, the Collateral Agent shall notify the applicable Owner Lessor and its
applicable Owner Participant if the amounts requested to be transferred on such
date in the Request Letter delivered in connection therewith exceed the funds
available in the applicable subaccounts of the relevant Accounts.
SECTION 4.14 TRANSFERS FROM ACCOUNTS DURING A DEFAULT PERIOD.
(a) During a Default Period under a Facility Lease, the
Facility Lessee shall be entitled to issue Request Letters and otherwise direct
the transfer of funds from the applicable Accounts or subaccounts of the
Accounts pursuant to the other provisions of this Article IV until the
Collateral Agent receives a Notice of Action directing that action be taken
pursuant to Section 4.13(b).
(b) At any time after the Collateral Agent receives a Notice of
Action specifying that action be taken pursuant to this Section 4.13(b), the
Collateral Agent shall transfer (from the Accounts or applicable subaccounts in
the order set forth in Section 4.13(c)) the following amounts in the following
order of priority:
FIRST, to the Collateral Agent, the amount certified by the Collateral
Agent to be the sum of the unpaid fees, indemnities, costs and expenses then
due and payable for its services in such capacity;
SECURITY DEPOSIT AGREEMENT
--------------------------
25
SECOND, pro rata to (i) the applicable Owner Lessor, the amount
certified by such Owner Lessor to be the aggregate amount (including premium
and interest, if any) then due and payable in respect of Senior Rent and
Supplemental Lease Rent (other than Excepted Payments) under the applicable
Operative Documents and (ii) to extent that the applicable Owner Lessor's
Percentage of amounts then on deposit in the Permitted Indebtedness Account
are insufficient to pay such amounts, to any Person who has provided
Permitted Indebtedness in the aggregate amount of the applicable Owner
Lessor's Percentage of such Permitted Indebtedness (including premium and
interest, if any) then due and payable;
THIRD, to the applicable Owner Lessor, the amount certified by such
Owner Lessor to be the aggregate amount of the Component A of Basic Lease
Rent , Component A of Termination Value and all other fees and indemnities
in respect thereof then due and payable in respect of such Component A of
Basic Lease Rent or Component A of Termination Value under the applicable
Facility Lease;
FOURTH, pro rata, to the Persons entitled thereto, an amount equal to
all other Supplemental Rent under the applicable Facility Lease then due and
payable to such Persons and all other sums due and owing by the Facility
Lessee to such Persons under any of the applicable Operative Documents (as
certified in writing by such Persons); and
FIFTH, any surplus then remaining after the termination of the
applicable Facility Lease in accordance with its terms and the satisfaction
of all rents and fees thereunder, shall be paid to the Facility Lessee or
its successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(c) The amounts to be distributed pursuant to Section 4.13(b)
with respect to any Facility Lease shall be debited from the subaccounts in the
following order of priority:
FIRST, from the applicable subaccount of the Suspended Distributions
Account;
SECOND, from the applicable subaccount of the Subordinated Reserve
Account;
THIRD, from the applicable subaccount of the Supplemental Account;
SECURITY DEPOSIT AGREEMENT
--------------------------
26
FOURTH, from the applicable subaccount of the Subordinated Rent Payment
Account;
FIFTH; from the applicable subaccount of the Reserve Account;
SIXTH, from the applicable subaccount of the Additional Reserve
Account;
SEVENTH, from the applicable subaccount of the Equity Account;
EIGHTH, from the applicable subaccount of the Senior Rent Payment
Account;
NINTH, solely with respect to amounts distributed pursuant to clauses
FIRST through FOURTH of Section 4.13(b) above, up to an amount equal to the
amount then on deposit therein, from the applicable subaccount of the
Recovery Event Proceeds Account; and
TENTH, solely with respect to amounts distributed pursuant to clauses
FIRST through FOURTH of Section 4.13(b) above, up to an amount equal to such
Owner Lessor's Percentage of the amount then on deposit therein, from the
Revenue Account.
It is understood and agreed that no amount on deposit in any other subaccount of
any of the Accounts (nor, except as provided in clauses seventh and eighth
above, amounts on deposit in the Revenue Account or the applicable subaccount of
the Recovery Event Proceeds Account) shall be available for distributions to be
made pursuant to Section 4.13(b) with respect to such Facility Lease and the
applicable Operative Documents.
SECTION 4.15 COLLATERAL AGENT'S CALCULATIONS. In making the
determinations and allocations required by Section 4.13, the Collateral Agent
may rely upon information specified in any Request Letter and any certificate of
the applicable Owner Lessor delivered to it, as applicable, and the Collateral
Agent shall have no liability to any of the Secured Parties for actions taken in
reliance on such information. All transfers and releases made by the Collateral
Agent pursuant to Section 4.13 shall be (subject to any decree of any court of
competent jurisdiction) final, and the Collateral Agent shall have no duty to
inquire as to the application by any Secured Party of any amounts distributed to
them.
SECTION 4.16 INSUFFICIENT AMOUNTS. Except as provided in Sections
4.1(b) and 4.7(d) hereof, to the extent the applicable Owner Lessor Percentage
of the amounts on deposit in any Account (or, if the Account has
SECURITY DEPOSIT AGREEMENT
--------------------------
27
subaccounts, in the applicable subaccount) are insufficient to fully satisfy any
transfer requirement from such Account (or, if the Account has subaccounts, the
applicable subaccount) under this Article IV, such transfer shall be made to the
extent of the amounts on deposit in such Account (or, if the Account has
subaccounts, the applicable subaccount). In addition, if (i) any transfer
requirements from any Account (or, if the Account has subaccounts, the
applicable subaccount) in this Article IV share the same level of priority and
(ii) the funds equal to the applicable Owner Lessor Percentage of the funds in
such Account (or, if the Account has subaccounts, the funds in the applicable
subaccount) are insufficient to satisfy in full all such transfer requirements
which share such level of priority, such transfers shall be made on a pro rata
basis to the extent of the amounts on deposit in such Account (or, if the
Account has subaccounts, the funds in the applicable subaccount).
ARTICLE V
---------
INVESTMENT
Cash held by the Collateral Agent in the Accounts shall not be invested
or reinvested except as provided below:
(a) cash held in the Accounts or applicable subaccounts shall
be invested and reinvested in Permitted Investments by the Collateral Agent who
shall make such Permitted Investments (i) except during a Default Period, at the
written direction of the Facility Lessee and (ii) during a Lease Default or
Lease Event of Default under a Facility Lease, in Permitted Investments selected
by the Collateral Agent unless specific investment instructions are given to the
Collateral Agent by the applicable Owner Lessor and in such case, to the extent
of amounts credited to applicable subaccounts;
(b) the Collateral Agent shall sell or liquidate all or any
designated part of the Permitted Investments held in any Account to the extent
credited to any subaccount at any time the proceeds thereof are required to make
a release from any such subaccount or any transfer between subaccounts pursuant
to Article IV hereof; and
(c) all such Permitted Investments, the interest thereon, and
the net proceeds of the sale, liquidation or payment thereof, shall be held in
the appropriate Account and credited to the applicable subaccounts for the same
purposes as the cash used to purchase such Permitted Investments.
SECURITY DEPOSIT AGREEMENT
--------------------------
28
The Collateral Agent shall take such action as may be
necessary to perfect the security interest created by this Agreement in all
Permitted Investments held in any Pledged Account.
ARTICLE VI
----------
COLLATERAL AGENT
SECTION 6.1 RIGHTS, DUTIES, ETC. The acceptance by the Collateral Agent
of its respective duties hereunder is subject to the following terms and
conditions which the parties to this Agreement hereby agree shall govern and
control with respect to the rights, duties, liabilities and immunities of the
Collateral Agent:
(a) it shall not be responsible or liable in any manner
whatever for soliciting any funds or for the sufficiency, correctness,
genuineness or validity of any funds or securities deposited with or held by it;
(b) it shall be protected in acting or refraining from acting
upon any written notice, certificate, instruction, request or other paper or
document, as to the due execution thereof and the validity and effectiveness of
the provisions thereof and as to the truth of any information therein contained,
which it in good faith believes to be genuine;
(c) it shall not be liable for any error of judgment or for any
act done or step taken or omitted except in the case of its gross negligence,
willful misconduct or bad faith;
(d) it may consult with and obtain advice from counsel of its
own choice in the event of any dispute or question as to the construction of any
provision hereof;
(e) it shall have no duties hereunder, except those which are
expressly set forth herein and in any modification or amendment hereof;
provided, however, that no such modification or amendment hereof shall affect
its duties unless it shall have given its prior written consent thereto;
(f) it may execute or perform any duties hereunder either
directly or through administrative agents or attorneys selected with reasonable
care;
(g) it may engage or be interested in any financial or other
transactions with any party hereto and may act on, or as depositary, collateral
agent
SECURITY DEPOSIT AGREEMENT
--------------------------
29
or administrative agent for, any committee or body of holders of obligations
of such Persons as freely as if it were not Collateral Agent hereunder; and
(h) it shall not be obligated to take any action which in its
reasonable judgment would involve it in expense or liability unless it has been
furnished with reasonable indemnity.
SECTION 6.2 RESIGNATION OR REMOVAL. The Collateral Agent may resign or
be removed as set forth in Section 6.5 of the Amended and Restated Guarantee and
Collateral Agreement.
ARTICLE VII
-----------
DETERMINATIONS
In the event of any dispute as to any amount to be distributed
or paid by the Collateral Agent from the Accounts (or subaccounts), the
Collateral Agent is authorized and directed to retain in its possession without
liability to anyone all or any part of the amounts then on deposit in the
Accounts or subaccounts, until such dispute shall have been settled by mutual
agreement of the disputing parties or by a final order, decree or judgment of a
Federal or State court of competent jurisdiction located in the State of New
York (with respect to disputes in connection with amounts on deposit in the
Accounts or subaccounts), and time for an appeal has expired and no appeal has
been perfected, but the Collateral Agent shall be under no duty whatsoever to
institute or defend any such proceedings.
ARTICLE VIII
------------
MISCELLANEOUS
SECTION 8.1 INDEMNIFICATION OF COLLATERAL AGENT. The Facility Lessee
assumes liability for, and agrees to indemnify, protect, save and keep harmless
each Owner Lessor, each Owner Lessor's Representative, each Owner Participant,
the Security Agent and the Collateral Agent and their respective successors,
assigns, agents and servants from and against, any and all claims, liabilities,
obligations, losses, damages, taxes, penalties, costs and expenses (including
reasonable attorneys' fees) that may be imposed on, incurred by, or asserted
against, at any time, such Owner Lessor, such Owner Lessor's Representative,
such Owner Participant, the Security Agent or the Collateral Agent and in any
way relating to or arising out of the execution and delivery of this Agreement,
the establishment of the Accounts and subaccounts, the acceptance of
SECURITY DEPOSIT AGREEMENT
--------------------------
30
deposits, the purchase or sale of Permitted Investments, the retention of cash
and Permitted Investments or the proceeds thereof and any payment, transfer or
other application of cash or Permitted Investments in accordance with the
provisions of this Agreement, or as may arise by reason of any act, omission or
error of the Collateral Agent made in good faith in the conduct of its duties;
except that the Facility Lessee shall not be required to indemnify, protect,
save and keep harmless the Collateral Agent or any Owner Lessor, against its own
gross negligence or willful misconduct. The indemnities contained in this
Section 8.1 shall survive the termination of this Agreement.
SECTION 8.2 WAIVER OF RIGHT OF SET-OFF. The Collateral Agent waives,
with respect to all of its existing and future claims against the Facility
Lessee, all existing and future rights of set-off and banker's liens against the
Accounts and subaccounts and all items (and proceeds thereof) that come into its
possession in connection with the Accounts.
SECTION 8.3 TERMINATION. The provisions of Articles III and IV with
respect to the applicable Accounts or subaccounts shall terminate on the date on
which the applicable Facility Lease shall terminate in accordance with its terms
and the Obligations under the applicable Transaction Documents shall have been
paid in full. Promptly after such termination, the applicable Owner Lessor shall
notify the Collateral Agent of such termination and the Collateral Agent hereby
agrees that at the time of such termination (x) the Owner Lessor's Percentage of
amounts or Permitted Investments in the Accounts or amounts and Permitted
Investments in the applicable subaccounts, as applicable, shall be liquidated as
soon as commercially prudent, (y) a reconciliation shall be made of the
distributions made from the applicable Accounts or subaccounts and any necessary
adjustments to the balances of such applicable Accounts or subaccounts as a
result of such reconciliation shall be made and (z) the applicable portion of
Owner Lessor's Percentage of the moneys in the applicable Accounts, subject to
the other Transaction Documents, or subaccounts (after giving effect to such
liquidation and such adjustments) shall, subject to other Transaction Documents,
be distributed to the Facility Lessee or as it may direct.
SECTION 8.4 SEVERABILITY. If any one or more of the covenants or
agreements provided in this Agreement on the part of the parties hereto to be
performed should be determined by a court of competent jurisdiction to be
contrary to law, such covenant or agreement shall be deemed and construed to be
severable from the remaining covenants and agreements herein contained and shall
in no way affect the validity of the remaining provisions of this Agreement.
SECURITY DEPOSIT AGREEMENT
--------------------------
31
SECTION 8.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
SECTION 8.6 AMENDMENTS. The provisions of this Agreement and other
Transaction Documents may be amended, modified or waived if such amendment,
modification or waiver is in writing and is entered into in accordance with the
provisions of the Participation Agreement.
SECTION 8.7 APPLICABLE LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
REGARDLESS OF ANY OTHER PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE
NEW YORK UCC, NEW YORK SHALL BE DEEMED TO BE THE SECURITIES INTERMEDIARY'S
JURISDICTION AND THE ACCOUNTS (AS WELL AS THE SECURITIES ENTITLEMENTS RELATED
THERETO) SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.8 NOTICES. Except as otherwise specifically provided herein,
all notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person shall be in writing and shall be deemed to have been duly given or made
when delivered if delivered by hand or courier or when received if sent by mail
or telecopy, in each case addressed to the party to which such notice is
required or permitted to be given or made hereunder set forth below its
signature hereto, or such other address as may be specified from time to time by
such party in a notice to the other parties hereto.
SECTION 8.9 BENEFIT OF SECURITY DEPOSIT AGREEMENT
(a) This Security Deposit Agreement shall inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and permitted assigns, and no other Person shall be entitled to any of the
benefits of this Security Deposit Agreement.
(b) Notwithstanding the foregoing, in order to secure the
Lessor Notes of each Owner Lessor, such Owner Lessor will assign and grant a
first priority security interest in favor of its applicable Lease Indenture
Trustee in and to all of such Owner Lessor's right, title and interest in, to
and under this Security Deposit Agreement (other than to the extent relating to
Excepted Payments and the rights to enforce and collect the same). The Facility
Lessee hereby consents to such assignment and to the creation of such Lien and
security interest and acknowledges
SECURITY DEPOSIT AGREEMENT
--------------------------
32
receipt of copies of the Lease Indenture, it being understood that such consent
shall not affect any requirement or the absence of any requirement for any
consent of the Facility Lessee under any other circumstances. Unless and until
the Collateral Agent shall have received written notice from the Lease Indenture
Trustee that the Lien of the applicable Lease Indenture has been fully
discharged, the applicable Security Agent shall have the right (i) to directly
receive for application in accordance with the terms of the applicable Lease
Indenture all amounts payable or otherwise distributable under this Agreement to
the applicable Owner Lessor (other than in respect of the Excepted Payments) and
(ii) to exercise the rights of such Owner Lessor under this Security Deposit
Agreement (other than with respect to Excepted Payments and the rights to
enforce and collect the same) to the extent set forth in and subject to the
exceptions set forth in the applicable Lease Indenture.
SECURITY DEPOSIT AGREEMENT
--------------------------
33
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
EME HOMER CITY GENERATION L.P.
By:
By:
-------------------------------------------
Name:
Title:
Address for Notices:
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
THE BANK OF NEW YORK, as Collateral Agent
By:
-------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Securities Intermediary
By:
-------------------------------------------
Name:
Title:
Address for Notices:
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECURITY DEPOSIT AGREEMENT
--------------------------
34
