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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
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Dated as of December __, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS....................................................................2
SECTION 1.1 DEFINED TERMS.......................................................2
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.......................................6
ARTICLE II AGREEMENT OF COLLATERAL AGENT; CREATION OF ACCOUNTS; GRANT OF
SECURITY INTERESTS..................................................6
SECTION 2.1 AGREEMENT OF COLLATERAL AGENT.......................................6
SECTION 2.2 CREATION OF ACCOUNTS AND SUBACCOUNTS................................7
SECTION 2.3 DELIVERY OF REVENUES, ETC. TO COLLATERAL AGENT......................8
SECTION 2.4 SECURITY INTERESTS IN THE LESSEE ACCOUNTS...........................8
SECTION 2.5 SECURITIES ACCOUNTS.................................................9
ARTICLE III DEPOSITS INTO ACCOUNTS......................................................10
SECTION 3.1 REVENUE ACCOUNT....................................................10
SECTION 3.2 RECOVERY EVENT PROCEEDS ACCOUNT....................................10
SECTION 3.3 RESERVE ACCOUNT....................................................10
SECTION 3.4 EQUITY ACCOUNT.....................................................11
SECTION 3.5 DEPOSITS IRREVOCABLE...............................................11
ARTICLE IV TRANSFERS FROM ACCOUNTS......................................................11
SECTION 4.1 REVENUE ACCOUNT....................................................11
SECTION 4.2 RECOVERY EVENT PROCEEDS ACCOUNT....................................12
SECTION 4.3 SENIOR RENT PAYMENT ACCOUNT........................................13
SECTION 4.4 RESERVE ACCOUNT....................................................13
SECTION 4.5 PERMITTED INDEBTEDNESS ACCOUNT.....................................14
SECTION 4.6 EQUITY ACCOUNT.....................................................14
SECTION 4.7 SUPPLEMENTAL EQUITY ACCOUNT........................................16
SECTION 4.8 SUBORDINATED RENT PAYMENT ACCOUNT..................................16
SECTION 4.9 SUBORDINATED RESERVE ACCOUNT.......................................16
SECTION 4.10 SUSPENDED DISTRIBUTIONS ACCOUNT....................................16
SECTION 4.11 DELIVERY OF REQUEST LETTERS........................................17
SECTION 4.12 SHORTFALL NOTICES..................................................17
SECTION 4.13 TRANSFERS FROM ACCOUNTS DURING A DEFAULT PERIOD....................17
SECTION 4.14 COLLATERAL AGENT'S CALCULATIONS....................................19
SECTION 4.15 INSUFFICIENT AMOUNTS...............................................19
ARTICLE V INVESTMENT ...................................................................20
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ARTICLE VI COLLATERAL AGENT.............................................................20
SECTION 6.1 RIGHTS, DUTIES, ETC................................................20
SECTION 6.2 RESIGNATION OR REMOVAL.............................................21
ARTICLE VII DETERMINATIONS..............................................................21
ARTICLE VIII MISCELLANEOUS..............................................................22
SECTION 8.1 INDEMNIFICATION OF COLLATERAL AGENT................................22
SECTION 8.2 WAIVER OF RIGHT OF SET-OFF.........................................22
SECTION 8.3 TERMINATION........................................................22
SECTION 8.4 SEVERABILITY.......................................................23
SECTION 8.5 COUNTERPARTS.......................................................23
SECTION 8.6 AMENDMENTS.........................................................23
SECTION 8.7 APPLICABLE LAW.....................................................23
SECTION 8.8 NOTICES............................................................23
SECTION 8.9 BENEFIT OF SECURITY DEPOSIT AGREEMENT..............................24
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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").
RECITALS
A. Contemporaneously herewith, EME Homer City will
enter into a transaction pursuant to the Participation Agreements listed on
SCHEDULE 1 by and among EME Homer City, the Owner Lessor, [ ], 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 (as defined below).
D. In order to simplify administration of such Accounts
and to provide for the orderly enforcement of their respective rights, the
Secured Parties (as defined below) 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 below) to provide for the receipt of Revenues (as defined below) and the
application thereof
to the payment of Operating Expenses (as defined below), Leveraged Lease
Obligations and other purposes as described herein.
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.
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 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.
"AMENDMENT DATE" means the date the Operative Documents are
executed.
"AUTHORIZED REPRESENTATIVE" means those 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.
"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.
"EQUITY ACCOUNT" has the meaning specified in SECTION 2.2.
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"EQUITY 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 Equity Account in accordance with Section hereof.
"FINANCING 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.
"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 specified in the Lease
Indenture.
"OBLIGATIONS" means all obligations and liabilities of the
Facility Lessee which may arise under or in connection with the Operative
Documents or any other Financing Document whether on account of Rent payment
obligations, 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
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required to be paid by the Facility Lessee pursuant to the terms of any
Financing 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 and expenses 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.
"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.
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"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) 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 PAYMENTS" has the meaning specified in each of the
Participation Agreements.
"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.
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"SECURITIES INTERMEDIARY" has the meaning specified in SECTION
2.5.
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.
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Section 2.2 CREATION OF ACCOUNTS AND SUBACCOUNTS.
(a) On or prior to the Amendment Date, (i) the
Collateral Agent shall establish in its corporate trust department a special,
segregated and irrevocable trust account designated the "Xxxxx City Revenue
Account" (the "REVENUE ACCOUNT") and (ii) the Collateral Agent 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 its corporate trust department 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 EQUITY 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"); and
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(x) one designated the "Xxxxx City
Permitted Indebtedness Account" (the "PERMITTED INDEBTEDNESS ACCOUNT").
(c) 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 Financing Documents, the Facility
Lessee hereby pledges and assigns to the Collateral Agent, and creates 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 this Agreement and in and to all
Revenues and the Revenue Account, the Senior Rent Payment Account, the Recovery
Event Proceeds Account, the Equity Account and all cash, cash equivalents,
instruments, investments and other securities on deposit therein 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 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
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Accounts (other than the Operating Account) or any part thereof except (i) as
provided in the Investments section of this
Security Deposit Agreement and (ii)
the right to have such amounts applied in accordance with the provisions of this
Security Deposit Agreement.
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 Bank of
New York, in its capacity as
"securities intermediary" as such term is defined in Section 8-102(a)(14) of the
New York UCC (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;
(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) at any time the Securities Intermediary
shall receive an "entitlement order" (within the meaning of Section 8-102(a)(8)
of the New York UCC) issued by the Collateral Agent and relating to the Pledged
Accounts, the Securities Intermediary shall comply with such entitlement order
without further consent by the Facility Lessee or any other person.
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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 received by or on
behalf of itself. If, notwithstanding the foregoing, the Facility Lessee
receives any Revenues, 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 Revenues 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 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 up to $[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. The Collateral Agent shall
use the amount on deposit in each such subaccount of the Reserve Account to make
payments of the Equity Portion of Rent due in connection with the applicable
Facility Lease in case the amounts transferred pursuant to clause FIRST(i) OF
SECTION 4.6 are insufficient to make a payment of the Equity Portion of Basic
Lease Rent of such Facility Lease then due in full. No additional amounts shall
be deposited into the Reserve Account.
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Section 3.4 EQUITY ACCOUNT. The Facility Lessee agrees that
any Equity Letter of Credit delivered to the Collateral Agent in accordance with
the terms of Section 4.6(b) hereof and all proceeds thereof shall be deposited
in the applicable subaccount of the Equity Account.
Section 3.5 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.
(a) Subject to Section 4.13, on each Monthly
Transfer Date the Collateral Agent shall transfer each 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;
SECOND, to the Collateral Agent, such Owner Lessor's Owner
Manager, 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,
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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 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, then due and payable under such Owner Lessor's Facility
Lease together with the amount of all deficiencies, if any, with
respect to deposits required to be made in the applicable subaccount
of the Senior Rent Payment Account in all prior months, as certified
in the Request Letter;
FOURTH, subject to Section 4.13 and the applicable Operative
Documents, 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 sufficient to repay in full the
Permitted Indebtedness then outstanding, as certified in such Request
Letter;
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, or FOURTH 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 Equity Account,
the Subordinated Reserve Account, the Subordinated Rent Payment Account or
the Suspended Distributions Account, as available, and (ii) if an
insufficiency thereupon remains, in the applicable subaccount of the Equity
Account.
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
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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 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 to be the aggregate amount then
due and payable in respect of such Senior Rent (including premium and
interest, if any); and
SECOND, to the applicable Owner Lessor, the amount certified
in such Request Letter to be the aggregate amount of the Equity Portion
of the Basic Lease Rent 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 applicable 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 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 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 Equity Portion of the Basic Lease Rent under such
Facility Lease on such Rent Payment Date and the amounts that would be available
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 Equity Portion of Basic Lease Rent in accordance with the
applicable Operative Documents.
Section 4.5 PERMITTED INDEBTEDNESS ACCOUNT.
Subject to Section 4.13 hereof, on any date on which any amount
of
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principal or premium of Permitted Indebtedness is due and payable, 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 and premium then due and payable to
the Persons that provide each such class of Permitted Indebtedness, as certified
in the Request Letter delivered in connection with such Monthly Transfer Date.
Section 4.6 EQUITY ACCOUNT.
(a) On each Restricted Payment Date, subject
to Section 4.13, 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
Restricted Payment Date the following amounts in the following order of
priority:
FIRST, either:
(i) into the applicable subaccount
of the Subordinated Rent Payment Account, if the conditions to the
payments of the Equity Portion of Basic Lease Rent are satisfied
pursuant to Section 6.9 of the applicable Participation Agreement,
an amount payable with respect to the Equity Portion 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; or
(ii) into the applicable subaccount
of the Supplemental Equity Account, if the conditions to the
payments of the Equity Portion of Basic Lease Rent set forth in
Section 6.9 of the applicable Participation Agreement are not
satisfied, in the amount by which the sum of the balances in the
applicable subaccount in each of the Revenue Account, the Senior
Rent Payment Account, the Recovery Event Proceeds Account and the
Equity Account exceeds the sum of all 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 under the
applicable Facility Lease minus the Owner Lessor Percentage of $1
million, as certified the Request Letter;
SECOND, into the applicable subaccount of the Subordinated
Reserve Account, an amount equal to the difference, if positive,
between the Reserve
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Requirement under the applicable Facility Lease and any amount on
deposit in the applicable subaccount of the Reserve Account; and
THIRD, the balance remaining in the applicable subaccount
of the Equity Account, either into 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 Participation Agreement are not satisfied.
(b) 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 subaccount of the Equity Account to such Owner
Lessor, to the extent then on deposit in such subaccount, an amount equal to
the Equity Portion of 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 (the "EQUITY LETTER OF CREDIT") 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 the Equity Account pursuant to this Section 4.6(a) shall not be
deemed to constitute any payment of Rent. If at any time after the delivery
of an Equity 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 Equity Account (such excess amount, the "SHORTFALL AMOUNT"), then the
Collateral Agent shall draw on the Equity Letter of Credit in an amount equal
to the lesser of the Shortfall Amount and the undrawn face amount of the
Equity Letter of Credit and shall deposit proceeds of such drawing into such
subaccount of the Equity Account (for application in accordance with the
terms of this
Security Deposit Agreement). If pursuant to the terms thereof
the Equity Letter of Credit becomes drawable as a result of the failure of
such Equity 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 Equity
Letter of Credit in an amount equal to the undrawn face amount of the Equity
Letter of Credit and shall deposit proceeds of such drawing into such
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 the Equity Account in accordance with
Sections 4.1(b) and 4.13(b).
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Section 4.7 SUPPLEMENTAL EQUITY ACCOUNT. Subject to Section
4.13 hereof, on each Monthly Transfer Date, the Collateral Agent shall make
transfers from the funds on deposit in the applicable subaccount of the
Supplemental Equity Account in accordance with Sections 4.1(b) and 4.13(b).
Section 4.8 SUBORDINATED RENT PAYMENT ACCOUNT. Subject to
Section 4.13 hereof, if the conditions to the payments of the Equity Portion
of the Basic Lease Rent are satisfied pursuant to Section 6.9 of the
applicable Participation Agreement, on each Restricted Payment Date under a
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 Equity Portion 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 Equity
Portion of Basic Lease Rent and Excepted Payments in accordance with the
terms of the applicable Operative Documents.
Section 4.9 SUBORDINATED RESERVE ACCOUNT. Subject to Section
4.13 hereof, if the conditions to the payments of the Equity Portion of the
Basic Lease Rent are satisfied pursuant to Section 6.9 of the applicable
Participation Agreement, on each Restricted Payment Date under a Participation
Agreement, following a distribution in accordance with the terms of Section 4.8
hereof, 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 Equity Portion of
Basic Lease Rent and Excepted Payments under the applicable Facility Lease due
and the aggregate amount of payments made on such Restricted Payment Date
pursuant to Section 4.8 hereof.
Section 4.10 SUSPENDED DISTRIBUTIONS ACCOUNT. Following the
end of the Lease Term of a Facility Lease, the Collateral Agent shall transfer,
all the funds on deposit in the applicable subaccount of the Suspended
Distributions Account to the Facility Lessee.
Section 4.11 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 the Accounts, the Facility Lessee shall
deliver a copy thereof to each
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Owner Lessor and its applicable Lease Indenture Trustee, Owner Participant and
the Owner Lessor's Representative.
Section 4.12 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 each Owner Lessor and its 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 subaccount of the relevant Accounts.
Section 4.13 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 Accounts 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
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;
SECOND, pro rata to (i) the applicable Owner Lessors, 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, pro rata to such Owner Lessor, the amount certified by
such Owner Lessor to be the aggregate amount of the Equity Portion of
Basic Lease Rent and all other fees and indemnities in respect thereof
then due and payable in respect of such Equity Portion of Basic Lease
Rent under the applicable Facility Lease;
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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 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
Accounts and 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
Equity Account;
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 Senior Rent
Payment Account;
SEVENTH, 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 Recovery Event Proceeds Account; and
EIGHTH, 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.
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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 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 applicable Operative Documents.
Section 4.14 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 4.15 INSUFFICIENT AMOUNTS. Except as provided in
Section 4.1(b) hereof, to the extent the amounts on deposit in any Account (or
applicable subaccount) are insufficient to fully satisfy any transfer
requirement from such Account (or applicable subaccount) under this Article IV,
such transfer shall be made to the extent of the amounts on deposit in such
Account (or applicable subaccount). In addition, if (i) any transfer
requirements from any Account (or applicable subaccount) in this Article IV
share the same level of priority and (ii) there are insufficient funds in such
Account (or applicable subaccount) 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
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 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 Majority in Interest of Owner Lessors;
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(b) the Collateral Agent shall sell or liquidate
all or any designated part of the Permitted Investments held in any Account at
any time the proceeds thereof are required to make a release from any Account
(or applicable subaccount) or any transfer between Accounts 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 for the same purposes as the cash used to
purchase such Permitted Investments (and credited pro rata among subaccounts, if
applicable).
The Collateral Agent shall take such action as may be
necessary to perfect the security interest created by this Agreement in all
Permitted Investments 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,
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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 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 [ ] 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, until such dispute shall have been settled by mutual agreement of the
Facility Lessee and the Secured 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), 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, 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, penalties, costs and expenses
(including reasonable
21
attorneys' fees) that may be imposed on, incurred by, or asserted against, at
any time, such Owner Lessor, such Owner Lessor's Representative, 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, the acceptance of 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 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 Accounts shall terminate on the date on which the
Obligations under Financing Documents shall have been paid in full. Promptly
after such termination, the Owner Lessor shall notify the Collateral Agent of
such termination and the Collateral Agent hereby agrees that at the time of such
termination (x) any Permitted Investments in the Accounts shall be liquidated as
soon as commercially prudent, (y) a reconciliation shall be made of the
distributions made from the Accounts and any necessary adjustments to the
balances of such Accounts as a result of such reconciliation shall be made and
(z) the moneys in the Accounts (after giving effect to such liquidation and such
adjustments) shall 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.
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.
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Section 8.6 AMENDMENTS. The provisions of this Agreement 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 TILE 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 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
23
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.
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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:
Address for Notices:
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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