EXHIBIT 10.1
EXECUTION VERSION
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AMENDED AND RESTATED DISBURSEMENT AGREEMENT
DATED AS OF OCTOBER 10, 2003
AMONG
INDIANTOWN COGENERATION, L.P.,
INDIANTOWN COGENERATION FUNDING CORPORATION,
THE BANK OF NEW YORK,
AS TAX EXEMPT TRUSTEE,
THE BANK OF NEW YORK,
AS TRUSTEE,
CREDIT LYONNAIS NEW YORK BRANCH,
AS AGENT BANK UNDER THE REIMBURSEMENT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH,
AS AGENT BANK UNDER THE WORKING CAPITAL FACILITY,
CREDIT LYONNAIS NEW YORK BRANCH,
AS AGENT BANK UNDER THE DEBT SERVICE RESERVE LOC REIMBURSEMENT AGREEMENT,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS COLLATERAL AGENT,
▇▇▇▇▇▇ COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
AND
THE BANK OF NEW YORK,
AS DISBURSEMENT AGENT
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INDIANTOWN COGENERATION PROJECT
▇▇▇▇▇▇ COUNTY, FLORIDA
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EXHIBIT 10.1
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS; INTERPRETATION............................................................................ 2
Section 1.1 Definitions: Interpretation............................................................ 2
ARTICLE II. APPOINTMENT OF DISBURSEMENT AGENT; ESTABLISHMENT OF FUNDS AND ACCOUNTS................................ 5
Section 2.1 Appointment of Disbursement Agent...................................................... 5
ARTICLE III. COLLECTION AND APPLICATION OF PROJECT REVENUES....................................................... 6
Section 3.1 Collection of Project Revenues......................................................... 6
Section 3.2 Payments Into Construction Account: Payments Into Qualifying Cost Subaccount........... 6
Section 3.3 Payments Into Securities Construction Interest Account and Tax-Exempt Bond
Construction Interest Fund............................................................. 7
Section 3.4 Application of Monies in Construction Account and Qualifying Cost Subaccount........... 8
Section 3.5 Completion of the Facility: Payments into Completion Account........................... 15
Section 3.6 Payments Into LOC Reimbursement Fund; Application of Monies in LOC
Reimbursement Fund; Payments Into Debt Service Reserve LOC Reimbursement Fund;
Application of Monies in Debt Service Reserve LOC Reimbursement Fund................... 15
Section 3.7 Application of Monies in Restoration Account........................................... 16
Section 3.8 Application of Monies in Partnership Distribution Account.............................. 18
Section 3.9 Payments into Subordinated Debt Account................................................ 19
Section 3.10 Application of Monies in the Revenue Account........................................... 19
Section 3.11 Monies to be Held in Trust............................................................. 26
Section 3.12 Application of Buy-Down Amounts........................................................ 28
Section 3.13 Application of Accounts and Monies Following a Trigger Event........................... 28
Section 3.14 Debt Service Reserve Account and Tax Exempt Debt Service Reserve Account............... 29
Section 3.15 Debt Acquisition Account............................................................... 34
Section 3.16 Monthly Reports by Disbursement Agent.................................................. 35
Section 3.17 Special Payments....................................................................... 35
ARTICLE IV. COLLATERALIZATION OF LETTERS OF CREDIT................................................................ 35
Section 4.1 FPL Termination Fee Letter of Credit................................................... 35
Section 4.2 ESA Letter of Credit................................................................... 37
Section 4.3 Fuel Supply Coverage Event............................................................. 37
Section 4.4 Replacement of Performance Letters of Credit........................................... 39
ARTICLE V. INVESTMENTS............................................................................................ 39
Section 5.1 Investment of Monies................................................................... 39
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EXHIBIT 10.1
Section 5.2 Valuation and Sale of Investments...................................................... 40
ARTICLE VI. THE DISBURSEMENT AGENT................................................................................ 41
Section 6.1 Actions Hereunder...................................................................... 41
Section 6.2 Compensation........................................................................... 42
Section 6.3 Successors............................................................................. 42
Section 6.4 Resignation............................................................................ 42
Section 6.5 Appointment of Successor............................................................... 42
Section 6.6 Indemnification........................................................................ 43
ARTICLE VII. TERMINATION.......................................................................................... 43
Section 7.1 Termination............................................................................ 43
ARTICLE VIII. GENERAL PROVISIONS.................................................................................. 43
Section 8.1 Severability........................................................................... 43
Section 8.2 Separate Counterparts.................................................................. 43
Section 8.3 Benefit of Agreement................................................................... 44
Section 8.4 Amendments, Waivers, etc............................................................... 44
Section 8.5 Headings: Table of Contents............................................................ 44
Section 8.6 Governing Law.......................................................................... 44
Section 8.7 Notices................................................................................ 44
Section 8.8 Nonrecourse Liability.................................................................. 45
Section 8.9 Termination of Existing Providers...................................................... 45
EXHIBITS
Exhibit A Form of Requisition
Exhibit B Form of Independent Engineer Certificate
Exhibit C Form of Restoration Account Requisition
Exhibit D Form of Transfer Certificate
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AMENDED AND RESTATED DISBURSEMENT AGREEMENT
This AMENDED AND RESTATED DISBURSEMENT AGREEMENT (this
"Disbursement Agreement"), dated as of October 10, 2003, amends and restates the
Original Disbursement Agreement (as defined below), and is entered into by and
among INDIANTOWN COGENERATION, L.P., a limited partnership organized and
existing under the laws of the State of Delaware (the "Partnership"), INDIANTOWN
COGENERATION FUNDING CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), THE BANK OF NEW YORK (as
successor trustee to NationsBank of Florida, N.A.), as Trustee under the Amended
and Restated Indenture of Trust (the "Tax Exempt Trustee"), ▇▇▇▇▇▇ COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY, as Issuer of the Tax Exempt Bonds (the "▇▇▇"),
THE BANK OF NEW YORK (as successor trustee to NationsBank of Florida, N.A.), as
Trustee under the Trust Indenture (the "Trustee"), CREDIT LYONNAIS NEW YORK
BRANCH as agent bank (together with its successors, assigns and replacements in
such capacity, the "Debt Service Reserve Letter of Credit Provider") under the
Debt Service Reserve LOC Reimbursement Agreement, CREDIT LYONNAIS NEW YORK
BRANCH as agent bank (together with its successors, assigns and replacements in
such capacity, the "LOC Provider") under the Reimbursement Agreement, CREDIT
LYONNAIS NEW YORK BRANCH as agent bank (together with its successors, assigns
and replacements in such capacity, the "Working Capital Provider") under the
Working Capital Facility (the Tax Exempt Trustee, the ▇▇▇, the Trustee, the Debt
Service Reserve Letter of Credit Provider, the LOC Provider, and the Working
Capital Provider collectively, the "Senior Secured Parties"), DEUTSCHE BANK
TRUST COMPANY AMERICAS (as successor collateral agent to Bankers Trust Company),
as Collateral Agent under the Collateral Agency and Intercreditor Agreement (the
"Collateral Agent") and THE BANK OF NEW YORK (as successor disbursement agent to
NationsBank of Florida, N.A.), as Disbursement Agent (the "Disbursement Agent").
RECITALS:
WHEREAS, the parties hereto wish to amend and restate that
certain Disbursement Agreement, dated as of November 1, 1994, among the
Partnership, the Company, and the other parties thereto (the "Original
Disbursement Agreement") in connection with the refinancing or replacement, as
applicable, of the Debt Service Reserve LOC Reimbursement Agreement, the
Reimbursement Agreement, and the Working Capital Facility (each as defined in
the Original Disbursement Agreement).
WHEREAS, the Partnership and the Company have agreed to
deposit all Project Revenues for disbursement pursuant to this Disbursement
Agreement.
WHEREAS, the Disbursement Agent is willing to act as
depository hereunder as security agent for (i) in respect of the Accounts, the
Senior Secured Parties (ii) in respect of the LOC Provider Funds, the LOC
Provider, (iii) in respect of the Debt Service Reserve Account, the Trustee,
(iv) in respect of the Tax Exempt Debt Service Reserve Account and the
Qualifying Cost Subaccount, the Tax Exempt Trustee, (v) in respect of the Debt
Service Reserve Letter of Credit, the Trustee and the Tax Exempt Trustee and
(vi) in respect of the DSR LOC Provider Funds, the Debt Service Reserve Letter
of Credit Provider and to hold and disburse the monies deposited hereunder in
accordance with the terms of this Disbursement Agreement, including without
limitation, to transfer monies in the Accounts to the Collateral Agent as
specified in Section 3.13 of this Disbursement Agreement.
WHEREAS, pursuant to the Security Agreement, the Partnership
has, among other things, pledged its interest in the Accounts established
hereunder to the Disbursement Agent on behalf of the Senior Secured Parties as
security for the obligations of the Partnership referred to therein.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I.
DEFINITIONS; INTERPRETATION
Section 1.1 Definitions: Interpretation. (a) Except
as otherwise expressly provided herein, capitalized terms used in this
Disbursement Agreement shall have their respective meanings given them in that
certain Trust Indenture, dated as of November 1, 1994, and supplemented by that
certain Third Supplemental Indenture, dated on or about October 10, 2003, among
the Partnership, the Company, and the Trustee (collectively, the "Indenture"),
in the form of such terms as they exist on the date of, and after giving effect
to, such Third Supplemental Indenture; provided, however, that defined terms
from the Indenture that have been added or amended subsequent to the date of
such Second Supplemental Indenture shall have such added or amended meanings
herein upon compliance with the amendment provisions of Section 8.4 hereof.
Unless otherwise indicated, references in this Disbursement Agreement to
Sections, subsections, paragraphs, Schedules, Appendices and Exhibits are to
Sections, subsections and paragraphs in, and Schedules, Appendices and Exhibits
to, this Disbursement Agreement. (b) "DSR LOC Issuing Bank" as used in this
Disbursement Agreement shall mean any bank or financial institution from time to
time issuing any Debt Service Reserve Letter of Credit.
(c) "Engineering Advisor" as used in this Disbursement
Agreement shall mean Energy & Environmental Engineering.
(d) "FPUC" as used in this Disbursement Agreement shall mean
the Florida Public Utilities Commission.
(e) "Fuel Amendments" as used in this Disbursement Agreement
shall mean amendments or other agreements between (i) FPL and the Partnership
with respect to the fuel price index set forth in Appendix I of the Power
Purchase Agreement (the "PPA Amendment") and (ii) the Project's fuel supplier
and the Partnership with respect to fuel price indexation and entered into in
respect of the amendment or other agreement contemplated by the foregoing clause
(i); provided that the "Fuel Amendments" shall not include any amendments or
modifications of, or other agreements with respect to, fuel supply or the Power
Purchase Agreement unless directly related to the provisions specified in the
foregoing clauses (i) and (ii), whether or not set forth in the same document or
instrument.
(f) "Fuel Supply Coverage Event" as used in this Disbursement
Agreement shall mean the occurrence of any of the following: (i) on the Fuel
Supply Coverage Test Date, the
projected average annual Senior Coverage Ratio for each calendar year from and
including the calendar year in which the Fuel Supply Coverage Test Date occurs
through and including the calendar year ending December 31, 2015, based on the
Pro Forma Model adjusted only to give effect to the Fuel Amendments, and
confirmed by the Engineering Advisor, is less than 1.30 to 1, (ii) as of
February 1, 2004, the failure of any party to the Fuel Amendments to have
executed the Fuel Amendments; (iii) as of June 1, 2004, the failure of the
Partnership to have (A) certified in writing to the LOC Provider and the Debt
Service Reserve Letter of Credit Provider that FPUC approval of the PPA
Amendment is not required or (B) obtained FPUC's approval of the PPA Amendment;
or (iv) an Indexation Event.
(g) "Fuel Supply Coverage Test Date" as used in this
Disbursement Agreement shall mean the first Business Day to occur after both (i)
the execution by all parties thereto of the Fuel Amendments, and (ii) (A) the
delivery by the Partnership to the Debt Service Reserve Letter of Credit
Provider and the LOC Provider of a written certificate stating that FPUC
approval of the PPA Amendment is not required or (B) if required, receipt of
approval of FPUC with respect to the PPA Amendment; provided, however, that if
each of (i) and (ii) above is satisfied on or before December 15, 2003, the Fuel
Supply Coverage Test Date shall occur on December 16, 2003; provided further,
that the approval of the FPUC shall be deemed to be required as of any date
unless the Partnership has certified in writing as of such date to the Debt
Service Reserve Letter of Credit Provider and the LOC Provider that such
approval is not required.
(h) "Fuel Supply Release Event" as used in this Disbursement
Agreement shall mean:
(i) with respect to any Fuel Supply Coverage
Event that is not an Indexation Event or a Non-Delivery Event, as of
any Interest Payment Date after the occurrence of such Fuel Supply
Coverage Event, the occurrence of both of the following: (a) the Senior
Debt Service Coverage Ratio for the semi-annual period ended on such
Interest Payment Date is equal to or greater than 1.35 to 1 and (b) the
projected average annual Senior Coverage Ratio for each calendar year
from and including the calendar year in which such Interest Payment
Date occurs through and including the calendar year ending December 31,
2015, based on the Pro Forma Model adjusted to give effect to the Fuel
Amendments (which shall have been executed and, in the case of the PPA
Amendment, have received FPUC Approval if required) and as otherwise
deemed appropriate in the reasonable discretion of the Partnership (as
confirmed by the Engineering Advisor), is equal to or greater than 1.35
to 1;
(ii) with respect to any Indexation Event, as of
any Interest Payment Date after the occurrence of such Indexation
Event, the occurrence of both of the following: (A) the average of the
Total Debt Service Coverage Ratios determined as of such Interest
Payment Date and as of the immediately preceding Interest Payment Date
is equal to or greater than 1.30 to 1 and (B) the average of the Total
Debt Service Coverage Ratios determined as of such Interest Payment
Date and as projected by the Partnership for the immediately succeeding
Interest Payment Date is equal to or greater than 1.30 to 1; or
(iii) with respect to any Non-Delivery Event, on
the Fuel Supply Coverage Test Date, the projected average annual Senior
Coverage Ratio for each calendar year from and including the calendar
year in which the Fuel Supply Coverage Test Date occurs through and
including the calendar year ending December 31, 2015, based on the Pro
Forma Model adjusted only to give effect to the Fuel Amendments and
confirmed by the Engineering Advisor, is equal to or greater than 1.30
to 1.
(i) "Indexation Event" as used in this Disbursement Agreement
shall mean, as of any Interest Payment Date, the occurrence of all of the
following: (i)(A) the average price paid by the Partnership for coal
free-on-board ("FOB") mine for the six-month period immediately preceding such
Interest Payment Date exceeds by more than ten Dollars ($10.00) per ton the
average adjusted amount of the FOB mine coal price component of the Unit Energy
Cost determined pursuant to the PPA during such six-month period or (B) the
Partnership shall have failed to certify in writing to the Engineering Advisor's
reasonable satisfaction (as evidenced by the Engineering Advisor's written
acknowledgment of such satisfaction), within five (5) Business Days after the
execution of the Fuel Amendments, that the fuel price index set forth in
Appendix I of the Power Purchase Agreement is not substantially dissimilar to
the coal price indexation mechanism determined pursuant to the Project's fuel
supply agreement (it being acknowledged and agreed that the Partnership shall
only be required to deliver such certificate once); and (ii)(A) the average of
the Total Debt Service Coverage Ratios determined as of such Interest Payment
Date and as of the immediately preceding Interest Payment Date is less than 1.30
to 1 or (B) the average of the Total Debt Service Coverage Ratios determined as
of such Interest Payment Date and as projected by the Partnership for the
immediately succeeding Interest Payment Date is less than 1.30 to 1; provided,
however, that with respect to the Interest Payment Date occuring on December 15,
2003, the occurrence of an Indexation Event shall be determined without
reference to the foregoing clause (ii)(A).
(j) "LDC" as used in this Disbursement Agreement shall mean
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus, Inc., assignee of ▇▇▇▇▇▇▇▇ Indiantown Citrus Co. with
respect to the Energy Services Agreement, and its permitted successors and
assigns.
(k) "LOC Issuing Bank" as used in this Disbursement Agreement
shall mean any bank or financial institution from time to time issuing any
Letter of Credit under the Reimbursement Agreement.
(l) "Non-Delivery Event" shall mean the occurrence of an event
specified in clause (ii) or (iii) of the definition of Fuel Supply Coverage
Event.
(m) "Original Disbursement Agreement" shall have the meaning
ascribed thereto in the first recital.
(n) "PPA Amendment" shall have the meaning ascribed thereto in
the definition of "Fuel Amendments."
(o) "Pro Forma Model" as used in this Disbursement Agreement
shall mean the pro forma model provided by the Partnership to the LOC Provider
and the Debt Service Reserve
Letter of Credit Provider on or about the date of this Amended and Restated
Disbursement Agreement.
(p) "Senior Coverage Ratio" as used in this Disbursement
Agreement shall mean, for any calendar year, the ratio of (i) Project Revenues
(other than revenues specified in clause (iv) of the definition thereof) for
such year minus Operation and Maintenance Costs for such year to (ii) aggregate
Scheduled Senior Debt Service due and payable during such year.
ARTICLE II.
APPOINTMENT OF DISBURSEMENT AGENT; ESTABLISHMENT
OF FUNDS AND ACCOUNTS
Section 2.1 Appointment of Disbursement Agent:
Establishment of Accounts: Establishment of LOC Provider Funds: Establishment of
DSR Provider Funds.
(a) The Disbursement Agent is hereby appointed and shall be
security agent for the Senior Secured Parties for all Project Revenues and all
other revenues, receipts, monies, proceeds and other sums derived in any manner
from or constituting the Collateral, pending application as hereinafter
provided. The following accounts (the "Accounts") are hereby established and
shall be held by the Disbursement Agent:
(i) Construction Account;
(ii) Completion Account;
(iii) Restoration Account;
(iv) Revenue Account;
(v) Subordinated Debt Account;
(vi) Partnership Distribution Account; and
(vii) Debt Acquisition Account.
The following account is hereby established and shall be held
by the Disbursement Agent as security agent for the Tax Exempt Trustee (acting
on behalf of the holders of the Tax Exempt Bonds) and for the benefit of no
other Senior Secured Party, which account shall be funded by proceeds from the
sale of the Tax Exempt Bonds as provided for herein:
(i) Qualifying Cost Subaccount.
(b) The Disbursement Agent is hereby confirmed by the LOC
Provider and shall remain the depository, as security agent for the LOC
Provider, and for the benefit of no other Senior Secured Party, for all
revenues, monies or proceeds deposited and held in the following accounts (the
"LOC Provider Funds") which have been or are hereby, as the case may be,
established and shall be held by the Disbursement Agent on behalf of the LOC
Provider.
(i) LOC Reimbursement Fund;
(ii) Termination LOC Collateralization Fund;
(iii) ESA LOC Collateralization Fund; and
(iv) QF LOC Collateralization Fund.
(c) The Disbursement Agent is hereby confirmed by the Debt
Service Reserve Letter of Credit Provider and shall remain the depository, as
security agent for the Debt Service Reserve Letter of Credit Provider, and for
the benefit of no other Senior Secured Party, for all revenues, monies or
proceeds deposited and held in the following accounts (the "DSR LOC Provider
Funds") which have been or are hereby, as the case may be, established and shall
be held by the Disbursement Agent on behalf of the Debt Service Reserve Letter
of Credit Provider:
(i) Debt Service Reserve LOC Reimbursement Fund;
and
(ii) DSR LOC Collateralization Fund.
ARTICLE III.
COLLECTION AND APPLICATION OF PROJECT REVENUES
Section 3.1 Collection of Project Revenues. The
Partnership and the Company will arrange for the direct payment to the
Disbursement Agent of all Project Revenues, and to the extent any such Project
Revenues are at any time received by the Partnership or the Company, the
Partnership or the Company will hold all such revenues and other such amounts in
trust for the Disbursement Agent on behalf of the Senior Secured Parties and
will transfer to the Disbursement Agent for deposit of such Project Revenues (i)
prior to the Completion Date, in the Construction Account and (ii) on or after
the Completion Date, in the Revenue Account in each case as soon as reasonably
practical but no later than three (3) Business Days after receipt thereof (duly
endorsed, if necessary, to the Disbursement Agent). Without limiting the
generality of the foregoing, the Partnership and the Company will cause FPL and
LDC to pay directly to the Disbursement Agent for deposit in the Revenue Account
all amounts payable to the Partnership under the Power Purchase Agreement and
the Energy Services Agreement. Notwithstanding the foregoing, prior to the
Completion Date all Project Revenues (including payments received under the
Power Purchase Agreement and the Energy Services Agreement) shall be paid to the
Disbursement Agent for deposit in the Construction Account.
Section 3.2 Payments Into Construction Account: Payments
Into Qualifying Cost Subaccount. The Construction Account and the Qualifying
Cost Subaccount (but only with respect to monies to be deposited pursuant to
clauses (iv), (v), and (vi)) shall be funded (i) on the Closing Date, with the
net proceeds of the Securities other than those proceeds (A) transferred
pursuant to Section 3.3 to the Trustee for deposit in the Securities
Construction Interest Account under the Indenture and (B) transferred pursuant
to Section 3.15 to the Debt Acquisition Account; (ii) from time to time, with
process of any Equity Bridge Loan, provided, however, that if an Equity
Contribution Date has occurred, proceeds of the Equity Contribution received
pursuant to the Equity Contribution Agreement or the GE Capital Guaranty
Agreement, as the case may be, shall be applied as set forth in Section 3.4(d)
of this Disbursement
Agreement; (iii) from time to time, with proceeds of any Equity Contribution as
and when specified in Section 3.4(d) of this Disbursement Agreement; (iv) on the
Closing Date, with the net proceeds of the Series 1994A Bonds other than (A)
those proceeds necessary to refund the Series 1992A Bonds and the Series 1992B
Bonds, (B) those proceeds transferred pursuant to Section 3.3 to the Tax Exempt
Trustee for deposit in the Tax Exempt Bond Construction Interest Fund under the
Tax Exempt Indenture and (C) those proceeds transferred to the Tax Exempt Debt
Service Reserve Account pursuant to Section 3.14(e); (v) upon the sale of the
Series 1994B Bonds, with the net proceeds of such Series 1994B Bonds other than
those proceeds (A) transferred pursuant to Section 3.3 to the Tax Exempt Trustee
for deposit in the Tax Exempt Bond Construction Interest Fund under the Tax
Exempt Indenture and (B) transferred to the Tax Exempt Debt Service Reserve
Account pursuant to Section 3.14(e); (vi) on the Closing Date, with those
proceeds of the Series 1992A Bonds and Series 1992B Bonds transferred by
Citibank, N.A., as the "Paying Agent" under that certain Indenture of Trust
dated as of January 1, 1993 among the ▇▇▇ and NationsBank of Virginia, N.A., as
"Trustee" thereunder other than (A) those proceeds transferred pursuant to
Section 3.3 to the Tax Exempt Trustee for deposit in the Tax Exempt Bond
Construction Interest Fund under the Tax Exempt Indenture and (B) those proceeds
transferred to the Tax Exempt Debt Service Reserve Account pursuant to Section
3.14(e); (vii) prior to the Completion Date, with all Project Revenues and
(viii) those proceeds transferred by Credit Suisse from that certain "Indiantown
Swap Settlement Account (Account No. ▇▇▇▇▇▇▇▇)" held by Credit Suisse.
Thereafter, those monies shall be held on deposit in the Construction Account
and the Qualifying Cost Subaccount by the Disbursement Agent for disbursement in
accordance with the terms of this Disbursement Agreement. The balance of all
proceeds of the Tax Exempt Bonds and the Series 1992A Bonds and the Series 1992B
Bonds transferred to the Disbursement Agent for deposit pursuant to this Section
3.2 shall be segregated by the Disbursement Agent and held by the Disbursement
Agent in the Qualifying Cost Subaccount.
Section 3.3 Payments Into Securities Construction
Interest Account and Tax-Exempt Bond Construction Interest Fund. (a) On the
Closing Date, the Disbursement Agent shall transfer to the Trustee for deposit
in the Securities Construction Interest Account under the Indenture proceeds of
the Securities in an amount equal to the Construction Interest Requirement in
respect of the Securities. On the Closing Date, the Disbursement Agent shall
transfer to the Tax Exempt Trustee for deposit in the Tax Exempt Bond
Construction Interest Fund proceeds of the Series 1992A Bonds and the Series
1992B Bonds or the Tax Exempt Bonds in an amount equal to the Construction
Interest Requirement in respect of the Series 1994A Bonds. From time to time
upon the sale of the Series 1994B Bonds, the Disbursement Agent shall transfer
to the Tax Exempt Trustee for deposit in the Tax Exempt Bond Construction
Interest Fund proceeds of the Tax Exempt Bonds in an amount equal to the
Construction Interest Requirement in respect of the Series 1994B Bonds so sold.
On the Closing Date, the Partnership shall specify to the Disbursement Agent in
writing the Construction Interest Requirement in respect of the Securities and
the Series 1994A Bonds. From time to time upon the sale of the Series 1994B
Bonds, the Partnership shall specify to the Disbursement Agent in writing the
Construction Interest Requirement in respect of the Series 1994B Bonds. From
time to time prior to the Completion Date, the Partnership shall direct the
Disbursement Agent to transfer monies from the Construction Account and/or the
Qualifying Cost Subaccount to the Tax Exempt Trustee for deposit in the Tax
Exempt Bond Construction Interest Fund (to the extent monies already on deposit
therein are insufficient for such purpose) for application to the payment of
interest becoming due on the next succeeding Interest Payment Date on the Tax
Exempt Bonds in
accordance with the Tax Exempt Indenture. From time to time prior to the
Completion Date, the Partnership shall direct the Disbursement Agent to transfer
monies from the Construction Account to the Trustee for deposit in the
Securities Construction Interest Fund (to the extent monies already on deposit
therein are insufficient for such purpose) for application to the payment of
interest becoming due on the next succeeding Interest Payment Date on the
Securities in accordance with the Indenture.
(b) From time to time and within five (5) Business Days of
receipt, the Disbursement Agent shall transfer the proceeds of any Delay Damages
paid by the Contractor, first, to the Debt Service Reserve Letter of Credit
Provider, an amount equal to the principal of and interest on each Debt Service
Reserve LOC Loan resulting from a drawing on the Debt Service Reserve Letter of
Credit during the period of time commencing on the Commercial Operation Date and
terminating on the Substantial Completion Date and then, second, ratably (based
on the amount owing the recipients), to (i) the Trustee for deposit in the
Securities Construction Interest Account under the Indenture an amount equal to
the amount by which accrued but unpaid interest exceeds the amount transferred
to such Person pursuant to Section 3.3(a) and (ii) the Tax Exempt Trustee for
deposit in the Tax Exempt Bond Construction Interest Fund under the Tax Exempt
Indenture an amount equal to the amount by which accrued but unpaid interest
exceeds the amount transferred to such Person pursuant to Section 3.3(a). Any
proceeds of Delay Damages remaining after giving effect to the transfers
specified in this Section 3.3(b) shall be transferred by the Disbursement Agent
to the Revenue Account for application in accordance with Section 3.10 of this
Disbursement Agreement.
Section 3.4 Application of Monies in Construction
Account and Qualifying Cost Subaccount. (a) The Disbursement Agent shall apply
the amounts in the Construction Account to the payment, or reimbursement to the
extent the same have been paid or satisfied by the Partnership, of Project
Costs.
(b) The Disbursement Agent is hereby authorized to disburse
from the Construction Account the amount required to pay Project Costs as
specified in Section 3.4(a) hereof. The Disbursement Agent is hereby authorized
and directed to issue its checks or transfer funds electronically for each
disbursement from the Construction Account, upon receipt of (i) a requisition in
substantially the form of Exhibit A hereto submitted to the Disbursement Agent,
signed by an Authorized Representative of the Partnership and (ii) a certificate
of the Independent Engineer in the form of Exhibit B hereto, which such
certificate shall not be unreasonably withheld or delayed. Each requisition
shall be submitted to the Disbursement Agent, with a copy to the Independent
Engineer, at least five (5) Business Days prior to the day on which the
disbursement is desired. Contemporaneously with the submission to the
Disbursement Agent of a requisition under this Section 3.4, the Partnership
shall also submit such requisition to the Equity Lender (addressed to the Equity
Lender) and request the Equity Lender to wire transfer the amount of the Equity
Loan requested on the date specified in such requisition to the Disbursement
Agent for deposit in the Construction Account and for application by the
Disbursement Agent in accordance with the terms hereof. The Disbursement Agent
shall be entitled to rely on all certifications and statements in such
requisitions. Each requisition submitted by the Partnership shall include the
following:
(i) a certification that the proceeds thereof
will be used solely to pay Project Costs;
(ii) a certification that work performed to date
has been satisfactorily performed in a good and workmanlike manner and
according to the Construction Contract;
(iii) a statement that undisbursed funds in the
Construction Account, together with funds available from the Equity
Loan Agreement or other available sources, are reasonably expected to
be sufficient to complete the Facility according to the Construction
Contract by the Date Certain;
(iv) a statement that no Event of Default under
the Indenture has occurred and is continuing;
(v) a statement that all proceeds of prior
requisitions have been expended or applied pursuant to provisions of
the Indenture and the Approved Project Construction Budget and that the
items for which amounts are requested in the subject requisition have
not been the basis for a previous requisition;
(vi) a certification that required insurance,
material Governmental Approvals, and necessary Project Contracts are in
full force and effect;
(vii) a certification that the representations set
forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.9 of the
Indenture (including the same as incorporated with modifications into
the Debt Service Reserve LOC Reimbursement Agreement, the Reimbursement
Agreement and the Working Capital Facility) are true and correct in all
material respects.
In the event that the Partnership cannot satisfy clause (i) above, the
Disbursement Agent shall not release monies from the Construction Account in
respect of such requisition, until such clause is satisfied.
In the event the Disbursement Agent receives a requisition confirmed by the
Independent Engineer, in which the Partnership (x) expressly specifies and
identifies the failure, and the causes for the failure, to satisfy certain
requirements of such requisition (which such failed requirements may include,
among others, the certifications that there are sufficient funds available to
complete the Facility by the Date Certain, no default under the Indenture has
occurred and is continuing, and that the Partnership's representations referred
to in clause (vii) above ate true and correct in all material respects) and (y)
certifies that (1) there exists no Bankruptcy Event in respect of the
Partnership or the Company, (2) the proceeds of the disbursement requested under
such requisition will be used solely to pay Project Costs in accordance with the
Indenture and (3) each of the Construction Contract, the Operating Agreement,
the Power Purchase Agreement, required insurance policies and material
Governmental Approvals needed for construction of the Facility is in full force
and effect, then the Disbursement Agent shall pay such requisition and, within
fifteen (15) days of receipt of such requisition, give notice to the Senior
Parties describing such failure and specifying that unless the Required Senior
Creditors give notice to the Disbursement Agent of their objection to payment of
further requisitions containing any such specified failures, the Disbursement
Agent shall continue to make payment of such requisitions from available monies
in the Construction Account, unless a Trigger Event under the Intercreditor
Agreement shall have occurred and be continuing or the Disbursement Agent shall
have received, by the second Business Day prior to the time of payment of such
further requisitions, notice of objection from the Required Senior Creditors.
Notwithstanding the foregoing provisions of this Section 3.4(b), if a Trigger
Event under the Intercreditor Agreement shall have occurred and be continuing,
the Disbursement Agent shall not release monies from the Construction Account in
respect of such requisition, until the Disbursement Agent receives notice from
the Collateral Agent that such Trigger Event is no longer continuing or receives
notice from the Collateral Agent (at the direction of the Required Senior
Creditors) to apply monies from the Construction Account in accordance with the
instructions specified in such notice, which such instructions may direct the
Disbursement Agent to follow the instructions of the Partnership in the
application of monies under the Construction Account.
(c) The Disbursement Agent shall make disbursements from the
Qualifying Cost Subaccount only for Costs of the Tax Exempt Project (as such
terms are defined in the Tax Exempt Indenture) as follows:
(i) In the case of payment of interest on the
Tax Exempt Bonds (after first applying monies in the Tax Exempt Bond
Construction Interest Fund) from the Qualifying Cost Subaccount, if
any, that constitutes a Cost of the Tax Exempt Project, submission of a
direction from the Partnership to deposit same in the Tax Exempt Bond
Debt Service Fund under the Tax Exempt Indenture, and in every other
case, submission of a requisition substantially in the form of Exhibit
A hereto which shall be signed by an Authorized Representative of the
Partnership certifying that the work or services to which the payment
relates has been accomplished or performed in a manner satisfactory to
the Partnership or is estimated to be accomplished or performed within
forty-five (45) days from the date of the requisition, and that such
Cost has accrued or will accrue within such forty-five (45) day period
under the relevant agreement and that the amount to be paid does not
exceed the obligation on account of which the payment is to be made or
is estimated, and with respect to each such requisition, the
Independent Engineer shall certify that each such item which is the
subject of such requisition has been completed in a good and
workmanlike manner (other than in respect of items to be accomplished
or performed within the aforementioned forty-five (45) day period).
Such requisition shall, if appropriate, identify the portion of the Tax
Exempt Project to which it relates and shall state (A) the name of the
Person to whom the payment is to be made (who may be (i) the
Partnership if it is to be reimbursed for advances made or work done by
it and properly chargeable against the Qualifying Cost Subaccount or
(ii) the Partnership for any amounts estimated in such requisition not
payable directly to the Contractor under the Construction Contract
which are properly chargeable against the Qualifying Cost Subaccount);
(B) the amount to be paid; (C) the obligation on account of which the
payment is to be made or is estimated, showing the total obligation,
any amount previously paid, and the unpaid balance (if the total
obligation shall be fixed); (D) that the obligation was properly
incurred or will be properly incurred within forty-five (45) days from
the date of the requisition by the Partnership, is a Proper Charge
against the Qualifying Cost Subaccount
and has not formed the basis of any previous requisition; (E) that the
amount requisitioned is due and unpaid or is estimated to be due and
unpaid within forty-five (45) days from the date of the requisition;
(F) that, insofar as the payment is to be made for work, material,
supplies or equipment, the work has been performed or will be performed
within forty-five (45) days from the date of the requisition and the
material, supplies or equipment have been ordered or will be ordered
within forty-five (45) days from the date of the requisition and
payment is due or will be due the supplier within forty-five (45) days
from the date of the requisition or the material, supplies or equipment
have, been installed or will be installed within forty-five (45) days
from the date of the requisition in the Tax Exempt Project or have been
delivered or will be delivered within forty-five (45) days from the
date of the requisition at the site of construction of the Tax Exempt
Project (or in the case of fabricated materials, at such other place of
storage as the Partnership shall have approved); (G) that no portion of
the item for which the payment is to be made is attributable to profit
of the Partnership or any related person (within the meaning of Section
144(a)(3) of the Code); (H) that no default or event of default has
occurred and is continuing under the Authority Loan Agreement and each
representation and warranty of the Partnership under the Authority Loan
Agreement is true and correct in all material respects as of the date
of such requisition and (I) the amount remaining in the Qualifying Cost
Subaccount after the funding of such requisition, together with other
amounts available to the Partnership under this Disbursement Agreement
or otherwise, will be sufficient to complete the requisition,
construction and equipping of the Tax Exempt Project;
(ii) In the case of a payment to discharge
indebtedness of the Authority or the Partnership, the proceeds of which
were used for payments properly chargeable against the Qualifying Cost
Subaccount, upon cancellation and return to the issuer thereof, any
notes or other evidences of the indebtedness to be discharged shall
thereupon be canceled and returned to the issuer thereof;
(iii) All proceeds of the Tax Exempt Bonds
deposited in the Qualifying Cost Subaccount, including investment
earnings thereon, shall be used to pay all or a portion of the costs
paid or incurred by or on behalf of the Partnership for the Tax Exempt
Project as provided herein. In no event shall amounts requisitioned
include any expenses for work done or materials or equipment supplied
in respect of the Tax Exempt Project by the Partnership or its
employees, officers or employees of any lessee of the Partnership or
officers or employees of any related person to the Partnership (within
the meaning of Section 144(a)(3) of the Code) in excess of the actual
cost thereof to such Persons;
(iv) The Completion Date shall be evidenced by a
certificate signed by an Authorized Representative of the Partnership
and filed with the Authority, the Tax Exempt Trustee, the Disbursement
Agent and the Trustee (the "Partnership's Completion Certificate"),
stating that, except for amounts retained by the Disbursement Agent for
any Costs not then due and payable or, if due and payable, not then
paid, or to be deposited in the Rebate Fund, (i) the Tax Exempt Project
has been completed, (ii) all labor, services, materials and supplies
used in the Tax Exempt Project have been paid for or are being
contested in whole or in part, (iii) the equipment necessary for the
Tax Exempt Project has been installed to the Partnership's
satisfaction, such equipment so installed is suitable
and sufficient for the efficient operation of the Tax Exempt Project
for the intended purposes and all costs and expenses incurred in the
acquisition and installation of such equipment have been paid, (iv) any
permissions required of governmental authorities for the use of the
Facility for the purposes contemplated by the Authority Loan Agreement
have been obtained or, as of such date, are not then required to be
obtained, and (v) the Tax Exempt Project is being operated as an
authorized project under the Florida Act. The Partnership's Completion
Certificate shall also set forth the sum to be (A) deposited in the
Rebate Fund under the Tax Exempt Indenture, (B) reserved in the
Qualifying Cost Subaccount for the payment of any unpaid Costs and (C)
deposited in the Tax Exempt Debt Service Reserve Account pursuant to
Section 3.4(e) clause fourth. Such certification shall be accompanied
by a certificate signed by the Authorized Representative of the
Partnership providing a schedule regarding the use of proceeds of each
series of Tax Exempt Bonds, setting forth in reasonable detail the
amount of proceeds of each series of Tax Exempt Bonds (including
investment earnings thereon), the costs of issuance of each series of
Tax Exempt Bonds paid from proceeds of such series of Tax Exempt Bonds
(including investment earnings thereon) and such other information
required pursuant to a Supplemental Indenture in respect of such series
of Tax Exempt Bonds. In the event that the Partnership determines that
requisitions under clause (iii) of the definition of Proper Charge with
respect to proceeds of the Tax Exempt Bonds (including investment
earnings thereon) are in excess of the actual costs (as finally
determined) of such items, the Partnership shall redeposit in a
separate subaccount of the Qualifying Cost Subaccount the amount
necessary so that the Partnership will satisfy the requisition
requirements relating to Proper Charges (based upon such revised
costs). Notwithstanding the foregoing, such certificate may state that
it is given without prejudice to any rights against third parties which
exist at the date of such certificate or which may subsequently come
into being;
(v) The balance remaining in the Qualifying Cost
Subaccount after such reserve, the transfer pursuant to Section 3.4(e)
clause fourth and the transfer to the Rebate Fund in the amount, if
any, required by Section 3.4(c)(vi) hereof (the "Surplus") shall be
transferred by the Disbursement Agent to a separate account in the Tax
Exempt Bond Debt Service Fund established under the Tax Exempt
Indenture and any amounts thereafter remaining undisbursed shall be
used to pay all or part of the redemption price of such series of Tax
Exempt Bonds at the earliest redemption date or dates on which such
series of Tax Exempt Bonds may be redeemed without payment of a premium
or penalty and without the redemption of such series of Bonds in an
amount in excess of the amount of the Surplus. Prior to such redemption
date or dates, the Partnership may elect to direct the Disbursement
Agent to transfer to the Tax Exempt Trustee all or a part of the
Surplus for use to: (1) redeem such series of Tax Exempt Bonds during
the period that the payment of the redemption premium or penalty is
required; (2) purchase such series of Tax Exempt Bonds; or (3) pay the
annual principal due on any such series of Tax Exempt Bonds. In the
event the Partnership elects to use such Surplus to pay the principal
due on such series of Tax Exempt Bonds, the portion of the Surplus that
may be used to pay such principal shall not exceed the amount that
bears the same ratio to the annual principal due that the total Surplus
bears to the face amount of such series of Bonds. Pending use of the
Surplus in the manner described above, the Partnership shall direct the
Disbursement Agent to invest such Surplus at a Yield that does not
exceed the Yield on the series of Tax
Exempt Bonds to which such proceeds are allocable. Notwithstanding
anything herein contained to the contrary, the Surplus may be used and
invested in any manner permitted by an opinion of Bond Counsel.
(vi) Notwithstanding the foregoing provisions of
this Section 3.4(c), the Disbursement Agent shall be authorized to
transfer interest, income and profits earned in the Qualifying Cost
Subaccount to the Rebate Fund under the Tax Exempt Indenture upon the
requisition by the Partnership from the Qualifying Cost Subaccount to
fund all or a portion of the Rebate Amount.
(d) If an Equity Contribution Date has occurred, the proceeds
of the Equity Contribution received by the Disbursement Agent shall be applied
in the following manner: (i) to repay any amounts (including any accrued
interest) owing, if any, under the Equity Loan Agreement to the extent such
amounts have not been repaid pursuant to Section 3 of the Equity Contribution
Agreement; then (ii) if the Equity Contribution Date occurs as a result of the
Completion Date, any amounts remaining of such Equity Contribution after the
application specified in (i) above shall be deposited into the Revenue Account;
or (iii) if the Equity Contribution Date occurs as a result of an event other
than the occurrence of the Completion Date, any amounts remaining after the
application specified in (i) above shall be deposited into the Construction
Account.
(e) On the Completion Date, the Disbursement Agent shall
transfer all remaining monies in the Construction Account (after giving effect
to the transfer to the Completion Account set forth in Section 3.5(b) of this
Disbursement Agreement) and the Qualifying Cost Subaccount to the following
accounts in the following order of priority:
first, to the Revenue Account, the, amount set forth in the
Approved Project Construction Budget or such other amount
which the Independent Engineer reasonably approves as equal to
the initial working capital requirements of the Partnership;
second, to (i) the Trustee for deposit in the Securities
Account under the Indenture an amount sufficient, after giving
effect to monies transferred to the Securities Account from
the Securities Construction Interest Account under the
Indenture, to fund the Securities Account up to the Accrued
Debt Service Amount in respect of the Securities, (ii) the Tax
Exempt Trustee for deposit in the Tax Exempt Bond Debt Service
Fund under the Tax Exempt Indenture an amount sufficient,
after giving effect to monies transferred to the Tax Exempt
Bond Debt Service Fund from the Tax Exempt Bond Construction
Interest Fund under the Tax Exempt Indenture, to fund the Tax
Exempt Bond Debt Service Fund up to the Accrued Debt Service
Amount in respect of the Tax Exempt Bonds, (iii) to the LOC
Provider, an amount equal to the amount of accrued interest in
respect of LOC Loans resulting from a drawing on the FPL
Completion Letter of Credit, and (iv) to the Debt Service
Reserve Letter of Credit Provider, an amount equal to each
unpaid Debt Service Reserve LOC Loan resulting from a drawing
on the Debt Service Reserve Letter of Credit prior to the
Completion Date, and accrued and unpaid interest thereon
(after taking into account payments pursuant to Section
3.3(b)), provided that in the event that monies in the
Construction Account are insufficient to make the transfers
specified in this clause second, the transfer of monies
specified in this clause shall be made ratably based on the
amount of monies to be transferred pursuant to (i), (ii),
(iii) and (iv) above;
third, to the LOC Reimbursement Fund, an amount equal to the
outstanding principal amount of any outstanding LOC Loans
resulting from a drawing on the FPL Completion Letter of
Credit;
fourth, to (i) the Tax Exempt Debt Service Reserve Account for
deposit therein, an amount sufficient to fund the Tax Exempt
Debt Service Reserve Account up to the Tax Exempt Bond DSR
Maximum Allowed Amount and (ii) the Debt Service Reserve
Account for deposit therein, an amount sufficient to fund the
Debt Service Reserve Account up to the Debt Service Reserve
Account Required Balance, provided that in the event that
monies in the Construction Account are insufficient to make
the transfers specified in this clause fourth, the transfer of
monies specified in this clause shall be made ratably based on
the amount of monies to be transferred pursuant to (i) and
(ii) above;
fifth, to the Contractor, an amount equal to the amount due
and payable in respect of scheduled and/or bonus payments
under the Construction Contract and any interest thereon after
giving effect to amounts in respect thereof deposited in the
Completion Account pursuant to Section 3.5; and
sixth, the balance into the Revenue Account.
Notwithstanding the foregoing provisions of this Section 3.4(e), monies
remaining in the Qualifying Cost Subaccount may not be applied pursuant to
clauses first, second, third, fifth, or sixth and may only be deposited in the
Tax Exempt Debt Service Reserve Account pursuant to clause fourth and only until
such account has contained therein the Tax Exempt Bond DSR Maximum Allowed
Amount, whereupon any excess monies in the Qualifying Cost Subaccount shall be
transferred to the Tax Exempt Trustee as specified in Section 3.4(c)(v) hereof.
(f) On or before the tenth (10th) Business Day of each month,
the Disbursement Agent shall furnish to the Partnership and the Independent
Engineer a written statement of activity in the Construction Account and the
Qualifying Cost Subaccount for the previous month, enumerating amounts received,
interest earned, amounts disbursed, the date of disbursement, the person to whom
each payment was made during the preceding calendar month and the current
account balance as of the end of the preceding calendar month. Upon reasonable
request therefor, the Disbursement Agent shall make available at its principal
corporate trust office for review by either or both of the Partnership and/or
the Independent Engineer copies of all bills, invoices or other evidences
submitted to the Disbursement Agent for disbursements from the Construction
Account and the Qualifying Cost Subaccount. The Disbursement Agent shall keep
and maintain adequate records pertaining to the Construction Account and the
Qualifying Cost Subaccount and all disbursements therefrom.
Section 3.5 Completion of the Facility: Payments into
Completion Account. (a) The occurrence of the Completion Date and payment of all
Project Costs shall be evidenced by the filing with the Disbursement Agent of a
certificate of an Authorized Representative of the Partnership, accompanied by a
certificate of the Independent Engineer which such certificate shall not be
unreasonably withheld or delayed, stating (1) that all conditions precedent to
the occurrence of the Completion Date have been satisfied, (2) that, except as
stated below, all labor and services required to acquire and complete the
Facility have been paid for, (3) the amount, if any, required for the payment of
any remaining portion of the Project Costs not then due or payable (or which are
being contested), and (4) that all permits, licenses, consents and approvals
required to have been obtained on or prior to such date by Governmental,
Authorities for the operation of the Facility have been obtained. The
certificate specified in this Section 3.5(a) shall also specify the amounts to
be transferred from the Construction Account by the Disbursement Agent pursuant
to Section 3.4(e).
(b) The Completion Account shall be funded: (i) if permitted
by Section 3.12 of this Disbursement Agreement, by Buy-Down Amounts paid by the
Contractor and received by the Partnership and (ii) from funds remaining in the
Construction Account, in the amount, if any, stated in the certificate specified
in Section 3.5 (a) hereof as necessary to pay Project Costs which are not then
due and payable (or which are being contested).
(c) The Disbursement Agent shall apply the monies in the
Completion Account to the payment, or reimbursement to the extent the same have
been paid or satisfied by the Partnership, of Project Costs to the extent the
Completion Account has been funded pursuant to clause (b)(ii) of this Section
3.5 or of the cost of Facility improvements to the extent the Completion Account
has been funded pursuant to clause (b)(i) of this Section 3.5. The Disbursement
Agent shall transfer monies from the Completion Account upon receipt of a
certificate executed by an Authorized Officer of the Partnership (confirmed in
writing by the Independent Engineer) specifying (i) the amount to be disbursed
from the Completion Account (including supporting documentation if available),
(ii) that such amounts have been or will be used for Project Costs or
improvements as provided in the first sentence of this Section 3.5(c), (iii) the
Person or Persons to whom such monies shall be transferred (including
appropriate account information), and (iv) that no `Event of Default' under the
Indenture or the Tax Exempt Indenture has occurred and is continuing.
(d) The Partnership shall provide the Disbursement Agent with
written notice when full payment of the Project Costs for which monies were held
in the Completion Account has occurred, whereupon the Disbursement Agent shall,
within seven (7) days of receipt of such notice, transfer any monies remaining
in the Completion Account to the Revenue Account.
Section 3.6 Payments Into LOC Reimbursement Fund;
Application of Monies in LOC Reimbursement Fund; Payments Into Debt
Service Reserve LOC Reimbursement Fund; Application of Monies in Debt
Service Reserve LOC Reimbursement Fund: (a)
The LOC Reimbursement Fund shall be funded from (i) monies transferred from the
Construction Account as and when specified in Section 3.4(e) and (ii) monies
transferred from the Revenue Account as and when specified in Section 3.10.
(b) On each Interest Payment Date the Disbursement Agent shall
transfer (to the extent of monies contained therein) from the LOC Reimbursement
Fund by wire transfer to the LOC Provider an amount equal to the amount due and
payable on such Interest Payment Date from the Partnership as reimbursement
obligations in respect of the principal amount of any outstanding LOC Loans.
(c) On each Quarterly Date the Disbursement Agent shall
transfer from the LOC Reimbursement Fund by wire transfer to the LOC Provider an
amount equal to the amount due and payable on such Quarterly Date as commitment,
letter of credit and fronting fees under the Reimbursement Agreement.
(d) Each Senior Secured Party hereby acknowledges and agrees
that all monies held by the Disbursement Agent in the LOC Provider Funds are
held for the benefit of the LOC Provider and that the Disbursement Agent shall
hold such monies solely for the benefit of such LOC Provider pending application
as set forth in this Disbursement Agreement.
(e) The Debt Service Reserve LOC Reimbursement Fund shall be
funded from monies transferred from the Revenue Account as and when specified in
Section 3.10.
(f) On each Interest Payment Date, the Disbursement Agent
shall transfer from the Debt Service Reserve LOC Reimbursement Fund by wire
transfer to the Debt Service Reserve Letter of Credit Provider an amount equal
to the amount payable on such Interest Payment Date in respect of the principal
of any Reserve Bond.
(g) On each Quarterly Date the Disbursement Agent shall
transfer from the Debt Service Reserve LOC Reimbursement Fund by wire transfer
to the Debt Service Reserve Letter of Credit Provider an amount equal to the
amount due and payable on such Quarterly Date as commitment, letter of credit
and fronting fees under the Debt Service Reserve LOC Reimbursement Agreement.
(h) Each Senior Secured Party hereby acknowledges and agrees
that all monies held by the Disbursement Agent in the DSR LOC Provider Funds are
held for the benefit of the Debt Service Reserve Letter of Credit Provider and
that the Disbursement Agent shall hold such monies solely for the benefit of
such Debt Service Reserve Letter of Credit Provider pending application as set
forth in this Disbursement Agreement.
Section 3.7 Application of Monies in Restoration
Account. (a) All Casualty Proceeds and Eminent Domain Proceeds shall be
deposited into the Restoration Account. Subject to Sections 3.7(d) and (e)
hereof, the Disbursement Agent shall apply the amounts in the Restoration
Account to the payment, or reimbursement to the extent the same have been paid
or satisfied by the Partnership, of the costs of repair and replacement of the
Project or any part thereof that has been affected by an Event of Loss or an
Event of Eminent Domain.
(b) The Disbursement Agent is hereby authorized to disburse
from the Restoration Account the amount required to be paid for the repair or
replacement of the Project or any part thereof as specified in Section 3.7(a)
hereof. The Disbursement Agent is hereby authorized and directed to issue its
checks or transfer funds electronically for each disbursement from the
Restoration Account, upon receipt of a requisition in substantially the form of
Exhibit C
submitted to the Disbursement Agent, signed by an Authorized Representative of
the Partnership, and approved by the Independent Engineer, provided, however,
that no such approval of the Independent Engineer shall be required if less than
$5,000,000 is requested pursuant to such requisition or requisitions in any one
Fiscal Year. The Disbursement Agent shall be entitled to rely on all
certifications and statements in such requisitions. The Disbursement Agent shall
keep and maintain adequate records pertaining to the Restoration Account and all
disbursements therefrom and shall file an accounting thereof with the
Partnership and the Independent Engineer within three months following the last
business day of each Fiscal Year.
(c) If an Event of Loss or an Event of Eminent Domain shall
occur with respect to any Collateral, the Partnership shall (i) diligently
pursue all its rights to compensation against any Person with respect to such
Event of Loss or Event of Eminent Domain, (ii) in the reasonable judgment of the
Partnership compromise or settle any claim against any Person with respect to
such Event of Loss or Event of Eminent Domain, and (iii) hold all amounts of
Casualty Proceeds or Eminent Domain Proceeds (including instruments) received in
respect of any Event of Loss or Event of Eminent Domain (after deducting all
reasonable expenses incurred by it in litigating, arbitrating, compromising or
settling any claims) in trust for the benefit of the Senior Secured Parties
segregated from other funds of the Partnership.
(d) If either an Event of Loss or an Event of Eminent Domain
shall occur, as soon as reasonably practicable but no later than the date of
receipt by the Partnership or the Collateral Agent of Eminent Domain Proceeds or
Casualty Proceeds, as the case may be, the Partnership shall make a reasonable
good faith determination as to whether (i) the Project or any portion thereof
can be rebuilt, repaired or restored to permit operation of the Project or a
portion thereof on a commercially feasible basis, and (ii) the Casualty Proceeds
or the Eminent Domain Proceeds, as the case may be, together with any other
amounts that are available to the Partnership for such rebuilding, repair or
restoration, are sufficient to permit such rebuilding, repair or restoration of
the Project or a portion thereof. The determination of the Partnership shall be
evidenced by a certificate of an Authorized Representative of the Partnership
(for the purposes of this Section 3.7, an "Officer's Certificate,") filed with
the Disbursement Agent which, in the event the Partnership determines that the
Project or a portion thereof can be rebuilt, repaired or restored to permit
operation thereof on a commercially feasible basis and that the Casualty
Proceeds or the Eminent Domain Proceeds, as the case may be, together with any
other amounts that are available to the Partnership for such rebuilding, repair
or restoration, are sufficient, shall also set forth a reasonable good faith
estimate by the Partnership of the total cost of such rebuilding, repair or
restoration. The Partnership shall deliver to the Collateral Agent at the time
it delivers the officers' Certificate referred to above a certificate of the
Independent Engineer, dated the date of the Officers' Certificate, stating that,
based upon reasonable investigation and review of the determination made by the
Partnership, the Independent Engineer believes the determination and the
estimate of the total cost set forth in the Officers' Certificate to be
reasonable.
(e) (i) In the event that the determination is made pursuant
to Section 3.7(d) above that the Project cannot be rebuilt, repaired or
restored to permit operation on a commercially feasible basis or that
the Casualty Proceeds or the Eminent Domain Proceeds, together with any
other amounts that are available to the Partnership for such
rebuilding, repair or restoration, are not sufficient to permit such
rebuilding, repair or
restoration, all of the Casualty Proceeds or the Eminent Domain
Proceeds, as the case may be, shall be paid to the Collateral Agent to
be distributed in accordance with the Intercreditor Agreement.
(ii) In the event that the determination is made
pursuant to Section 3.7(d) above that the entire Project can be
rebuilt, repaired or restored to permit operation on a commercially
feasible basis and that the Casualty Proceeds or the Eminent Domain
Proceeds, together with any other amounts that are available to the
Partnership for such rebuilding, repair or restoration, are sufficient
to permit such rebuilding, repair or restoration, all of the Casualty
Proceeds or the Eminent Domain Proceeds, as the case may be, together
with such other amounts as are available to the Partnership for such
rebuilding, repair or restoration, shall be deposited in the
Restoration Account in accordance with Section 3.7(a) and applied in
accordance with Section 3.7(b).
(iii) In the event that the determination is made
pursuant to Section 3.7(d) above that a portion of the Project can be
rebuilt, repaired or restored to permit operation on a commercially
feasible basis and that the Casualty Proceeds or the Eminent Domain
Proceeds, together with any other amounts that are available to the
Partnership for such rebuilding, repair or restoration, are sufficient
to permit such rebuilding, repair or restoration, (A) an amount equal
to the estimate of the total cost of such rebuilding, repair or
restoration set forth in the Officers' Certificate filed with the
Disbursement Agent pursuant to Section 3.7(d) above shall be deposited
in the Restoration Account in accordance with Section 3.7(a) and
applied in accordance with Section 3.7(b), and (B) the amount, if any,
by which all of the Casualty Proceeds or the Eminent Domain Proceeds,
as the case may be, exceed the estimate of the total cost shall be paid
to the Collateral Agent to be distributed in accordance with the
Intercreditor Agreement.
(f) Notwithstanding any other provision of this Section 3.7,
in the event the Partnership receives Casualty Proceeds or Eminent Domain
Proceeds, as the case may be, from an Event of Loss or an Event of Eminent
Domain that do not exceed in the aggregate $10,000,000, the Partnership shall
not have to comply with the provisions of Sections 3.7(d) or (e) and the
Casualty Proceeds or the Eminent Domain Proceeds, as the case may be, shall be
deposited in the Restoration Account in accordance with Section 3.7(a) and
applied in accordance with Section 3.7(b).
Section 3.8 Application of Monies in Partnership
Distribution Account. (a) The Partnership Distribution Account shall be funded
from monies transferred from the Revenue Account as and when specified in
Section 3.10(a)(12).
(b) The Disbursement Agent shall, at the written request and
direction of the Partnership, invest all monies on deposit in the Partnership
Distribution Account in Permitted Investments. Net interest gained or received
on such investments shall be deposited in the Partnership Distribution Account
for application in accordance with Sections 3.8(c) and (d).
(c) The Partnership may, if (i) it reasonably believes and can
demonstrate to the reasonable satisfaction of the LOC Provider that amounts in
the Debt Service Reserve Account and/or the Tax Exempt Debt Service Reserve
Account (or any replacement thereof) are
insufficient to meet the requirements of Article 21 of the Power Purchase
Agreement or (ii) FPL has informed the Partnership that the Debt Service Reserve
Account and/or the Tax Exempt Debt Service Reserve Account (or any replacement
of either) fails to meet the requirements of Article 21 of the Power Purchase
Agreement, by providing written notice to the Disbursement Agent to that effect,
segregate monies in the Partnership Distribution Account into a subaccount to be
designated "Partnership Distribution Account - PPA Reserve Subaccount" (the "PPA
Subaccount"). Monies maintained in the PPA Subaccount shall be deemed to be
monies maintained in the Debt Service Reserve Account or any replacement
thereof; provided, however, that funds maintained in the PPA Subaccount shall
not be counted toward determining whether the Debt Service Reserve Account
Required Balance or the Debt Service Reserve Account Maximum Balance are
satisfied. The Partnership may, by providing notice to the Disbursement Agent,
transfer monies from the PPA Subaccount to the Partnership Distribution Account
provided that such transfer of funds will not violate, as determined by the
Partnership, the provisions of Section 21.9 of the Power Purchase Agreement.
(d) After giving effect to any segregation of monies as
specified in Section 3.8(c), the Disbursement Agent on each Interest Payment
Date shall, provided that the Partnership has delivered to the Disbursement
Agent a certificate stating that the requirements of Section 5.24 of the
Indenture are satisfied, transfer all monies in the Partnership Distribution
Account as follows: first, if five (5) days prior to the applicable Interest
Payment Date, the Disbursement Agent receives written notice from the
Partnership stating that LOC Loans are then currently outstanding and setting
forth the principal amount of such LOC Loans, to the LOC Provider an amount
equal to the amount set forth in such notice of the Partnership less the amount
the Disbursement Agent is scheduled to transfer to the LOC Provider pursuant to
Section 3.10(a)(4) of this Disbursement Agreement, second, subject to Sections
4.2 and 4.3, to the appropriate Partner, an amount equal to all interest
(including overdue interest) and principal due and payable on Partner
Subordinated Debt attributable to such Partner as specified in writing by the
Partnership, third, subject to Sections 4.2 and 4.3, the balance to the account
or accounts specified in writing by the Partnership.
Section 3.9 Payments into Subordinated Debt Account. The
Subordinated Debt Account shall be funded by monies transferred from the Revenue
Account as and when specified in Section 3.10(a)(6). The Disbursement Agent
shall apply the amounts in the Subordinated Debt Account to the payment of
principal of and interest on Subordinated Debt (other than Partner Subordinated
Debt) in accordance with the applicable Subordinated Loan Agreement.
Section 3.10 Application of Monies in the Revenue
Account. (a) Upon receipt of a certificate of the Partnership substantially in
the form of Exhibit D detailing the amounts to be paid, funds in the Revenue
Account shall be transferred by wire transfer in the following order of
priority:
(1) as and when required under the Working
Capital Facility, to the Working Capital Provider for an amount
certified by the Partnership as the amount then payable for principal
of, interest on or fees or other charges relating to the Working
Capital Facility;
(2) as and when required, to the Partnership for
payment of Operation and Maintenance Costs in accordance with the
approved Annual Operating Budget;
(3) as and when required, to (i) the Trustee an
amount certified by the Partnership as the amount then due and payable
to the Trustee (in its capacity as such) as fees, costs and expenses
owed to the Trustee under the Indenture, (ii) the Tax Exempt Trustee an
amount certified by the Partnership as the amount then due and payable
to the Tax Exempt Trustee (in its capacity as such) as fees, costs and
expenses owed to the Tax Exempt Trustee under the Tax Exempt Indenture,
(iii) the Disbursement Agent an amount certified by the Partnership as
the amount then due and payable to the Disbursement Agent (in its
capacity as such) as fees, costs and expenses owed to the Disbursement
Agent under the Disbursement Agreement, (iv) the Collateral Agent an
amount certified by the Partnership as the amount then due and payable
to the Collateral Agent (in its capacity as such) as fees, costs and
expenses owed to the Collateral Agent under the Intercreditor
Agreement, (v) the LOC Provider an amount certified by the Partnership
as the amount then due and payable to the LOC Provider as
administrative fees, costs and expenses owed to the LOC Provider under
the Reimbursement Agreement, and (vi) the Debt Service Reserve Letter
of Credit Provider an amount certified by the Partnership as the amount
then due and payable to the Debt Service Reserve Letter of Credit
Provider as administrative fees, costs and expenses owed to the Debt
Service Reserve Letter of Credit Provider under the Debt Service
Reserve LOC Reimbursement Agreement; provided, however, that if monies
in the Revenue Account are insufficient on any date to make the
payments specified in this subsection, distribution of monies shall be
made ratably to the recipients specified in this subsection based on
the respective amounts owing such recipients;
(4) on a monthly basis, to (i) the Trustee for
deposit in the Securities Account an amount equal to (a) one-sixth of
the interest due or becoming due on the Securities on the next
succeeding Interest Payment Date, plus (b) one-sixth of the principal
due or becoming due on the Securities on the next succeeding Principal
Payment Date; (ii) the Tax Exempt Trustee for deposit in the Tax Exempt
Bond Debt Service Fund an amount equal to (a) one-sixth of the interest
due or becoming due on the Tax Exempt Bonds on the next succeeding
Interest Payment Date, plus (b) commencing January 1, 2020, one-sixth
of the principal due or becoming due on the Tax Exempt Bonds on the
next succeeding Principal Payment Date; (iii) (a) the LOC Provider, an
amount equal to interest due or becoming due and payable on LOC Loans
on such date, plus (b) the LOC Reimbursement Fund, an amount equal to
one-sixth of the principal due or becoming due and payable as
reimbursement obligations in respect of LOC Loans under the
Reimbursement Agreement on the next succeeding Interest Payment Date,
plus (c) the LOC Reimbursement Fund, an amount equal to one-third of
the commitment, letter of credit and fronting fees due or becoming due
and payable under the Reimbursement Agreement on the next succeeding
Quarterly Date; (iv) (a) the Debt Service Reserve Letter of Credit
Provider, an amount equal to interest due or becoming due on any Debt
Service Reserve LOC Loans on such date, plus (b) the Debt Service
Reserve LOC Reimbursement Fund, an amount equal to one-third of the
commitment, letter of credit and fronting fees becoming due and payable
under the Debt Service Reserve LOC Reimbursement Agreement on the next
succeeding Quarterly Date; and (v) (a) the Debt Service Reserve Letter
of Credit Provider, one-sixth of the interest due or becoming due on
any Reserve Bond on the next succeeding Interest Payment Date, plus (b)
the Debt
Service Reserve LOC Reimbursement Fund, one-sixth of the principal due
or becoming due on any Reserve Bond on the next succeeding Interest
Payment Date; provided, however, that if monies in the Revenue Account
are insufficient on any date to make the payments specified in this
subsection, distribution of monies shall be made ratably to the
recipients specified in this subsection (including under the
circumstances set forth in Sections 3.10(d) and (e)), based on the
respective amounts owing such recipients;
(5) provided that sufficient monies remain in
the Revenue Account after taking into account the transfer of monies
specified in Sections 3.10(a)(1) through (4) of this Disbursement
Agreement and the working capital, major maintenance (including
scheduled periodic major maintenance) and capital expenditure
requirements of the Facility as reasonably determined by the
Partnership, on a monthly basis, an amount up to 100% of Available Cash
Flow to: first, the Debt Service Reserve Letter of Credit Provider, an
amount equal to the outstanding principal amount of any unreimbursed
drawings or Debt Service Reserve LOC Loans; second, the Disbursement
Agent for deposit in the Debt Service Reserve Account or the Tax Exempt
Debt Service Reserve Account, as the case may be, an amount as
necessary to (x) replenish any amounts previously withdrawn from such
accounts and not replaced as required by this Disbursement Agreement
and (y) fund the Debt Service Reserve Account and the Tax Exempt Debt
Service Reserve Account in an aggregate amount up to the Debt Service
Reserve Account Required Balance; provided, however, that if the Debt
Service Reserve Letter of Credit will not be renewed or reinstated
pursuant to Section 2.2(b) of the Debt Service Reserve LOC
Reimbursement Agreement, Available Cash Flow allocated pursuant to this
clause (5) shall, during the three year and six month period preceding
the expiration date of such Debt Service Reserve Letter of Credit due
to such failure to renew or reinstate and until the Outstanding Amount
of the Debt Service Reserve Letter of Credit is reduced to zero and no
Debt Service Reserve LOC Loans are outstanding, be distributed ratably
(as between clauses (a) and (b)): (a) based upon the amount of the Debt
Service Reserve LOC Provider Share, equally to (i) the Debt Service
Reserve Letter of Credit Provider for application against any Debt
Service Reserve LOC Loan, and (ii) the Disbursement Agent (such amount
allocable to the Disbursement Agent, the "Debt Service Reserve LOC
Credit Amount") for deposit in the Debt Service Reserve Account or the
Tax Exempt Debt Service Reserve Account, as the case may be; and (b)
based upon the amount of the Debt Service Reserve Account Share, to the
Disbursement Agent for deposit in the Debt Service Reserve Account or
the Tax Exempt Debt Service Reserve Account, as the case may be, until
there is deposited therein in the aggregate the Debt Service Reserve
Account Maximum Balance. For the purposes of this clause (5): "Debt
Service Reserve LOC Provider Share" shall mean, at the time of any
allocation of funds pursuant to this clause (5), the sum of (i) the
then Outstanding Amount of the Debt Service Reserve Letter of Credit
plus (ii) any unreimbursed drawing or Debt Service Reserve LOC Loan;
and "Debt Service Reserve Account Share" shall mean the difference
between (i) the Debt Service Reserve Account Maximum Balance and (ii)
the sum of (x) the aggregate cash balances in the Debt Service Reserve
Account and the Tax Exempt Debt Service Reserve Account, (y) the amount
of any Debt Service Reserve Account Security, and (z) the Outstanding
Amount under the Debt Service Reserve Letter of
Credit. Cash deposits or Debt Service Reserve Account Security
maintained in the Debt Service Reserve Account or the Tax Exempt Debt
Service Reserve Account shall in no event be applied to the payment of
any unreimbursed drawing or Debt Service Reserve LOC Loans unless
released from such account in accordance with this Disbursement
Agreement.
(5A1) provided that no default or Event of Default
under the Indenture, the Tax Exempt Indenture, the Debt Service Reserve
LOC Reimbursement Agreement, the Reimbursement Agreement or the Working
Capital Facility shall have occurred and be continuing, and provided
further, that sufficient monies remain in the Revenue Account after
taking into account the transfer of monies specified in Sections
3.10(a)(1) through (5) of this Disbursement Agreement and the working
capital, major maintenance (including scheduled periodic major
maintenance) and capital expenditure requirements of the Facility as
reasonably determined by the Partnership, on a monthly basis, to the
LOC Provider up to 100% of Available Cash Flow for prepayment of the
outstanding principal amount of any unreimbursed drawings under any
Letter of Credit or any outstanding LOC Loans, as specified in writing
by the Partnership and acknowledged by the LOC Provider;
(5A2) provided that sufficient monies remain in the
Revenue Account after taking into account the transfer of monies
specified in Sections 3.10(a)(1) through (5A1) of this Disbursement
Agreement and the working capital, major maintenance (including
scheduled periodic major maintenance) and capital expenditure
requirements of the Facility as reasonably determined by the
Partnership, if either the ESA Letter of Credit or the FPL QF Letter of
Credit will not be renewed or reinstated pursuant to Section 2.2(b) of
the Reimbursement Agreement, on a monthly basis during the one-year and
six-month period preceding the expiration date of the ESA Letter of
Credit or the FPL QF Letter of Credit, as applicable, due to such
failure to renew or reinstate such letter of credit, an amount up to
100% of Available Cash Flow (but in no event more than the Outstanding
Amount of the ESA Letter of Credit or the FPL QF Letter of Credit, as
applicable, in each case less any amount then on deposit in the ESA LOC
Collateralization Fund or the QF LOC Collateralization Fund, as
applicable, or on deposit in the trust account described in Section
3.10(d)(i)), to be distributed to the Disbursement Agent for deposit in
the ESA LOC Collateralization Fund (in the case of the non-renewal or
non-reinstatement of the ESA Letter of Credit) or the QF LOC
Collateralization Fund (in the case of the non-renewal or
non-reinstatement of the FPL QF Letter of Credit); provided, however,
that if both the ESA Letter of Credit and the FPL QF Letter of Credit
will not be renewed or reinstated pursuant to Section 2.2(b) of the
Reimbursement Agreement and in such event monies in the Revenue Account
are insufficient on any date to make the payments specified in this
subsection, distribution of monies shall be made ratably to the
accounts specified in this subsection, based on the deficiency in such
accounts;
(6) on a monthly basis, provided that no LOC
Loans are then outstanding, to the Subordinated Debt Account an amount
equal to (a) one-sixth of the interest becoming due on third party
Subordinated Debt on the next succeeding Interest Payment Date, plus
(b) one-sixth or one-twelfth of the principal (depending on the
amortization of such Subordinated Debt) becoming due on third party
Subordinated Debt on the next succeeding payment date applicable to the
principal of such Subordinated Debt;
(7) [Reserved];
(8) on a monthly basis, provided that no LOC
Loans are then outstanding, to the Operator an amount equal to any
Subordinated Base Fee, Management Performance Bonus and Earned Fees due
and payable to the Operator under the Operating Agreement and any
interest payable thereon until such amounts have been paid in full;
(9) on a monthly basis, provided that no LOC
Loans are then outstanding, to the Manager an amount equal to any
payments subordinated pursuant to the Management Services Agreement and
any interest payable thereon until such amounts have been paid in full;
(10) on a monthly basis, 100% of the cash
available after the deposits required by clauses (a)(1) through (a)(9)
of this Section 3.10, to (i) the Disbursement Agent for deposit in the
Debt Service Reserve Account or the Tax Exempt Debt Service Reserve
Account, as the case may be, until there has been deposited in such
accounts, in the aggregate, the Debt Service Reserve Account Maximum
Balance;
(11) provided that no default or Event of Default
under the Indenture, the Tax Exempt Indenture, the Debt Service Reserve
LOC Reimbursement Agreement, the Reimbursement Agreement or the Working
Capital Facility shall have occurred and be continuing, from time to
time, if none of an Energy Collateralization Event, a CBF
Collateralization Event, an Adequate Assurance Collateralization Event,
collateralization of the ESA Letter of Credit pursuant to Section
4.2(a) hereof or collateralization of the Debt Service Reserve Letter
of Credit, the ESA Letter of Credit, or the FPL QF Letter of Credit
pursuant to Section 4.3(a) hereof has occurred and is continuing, to
the Partnership an amount specified by the Partnership as the amount
that will be used within thirty (30) days of receipt for application
against the purchase of Securities by the Partnership at then
prevailing rates in the open market pursuant to unaffiliated broker
transactions, provided, that the Partnership hereby covenants and
agrees to transfer to the Disbursement Agent any monies transferred to
the Partnership pursuant to this Section 3.10(a)(11) and not applied by
the Partnership within thirty (30) days of receipt for the repurchase
of Securities as set forth above, provided, further, that the
Disbursement Agent covenants and agrees that any monies transferred to
it by the Partnership pursuant to the immediately preceding proviso
shall be deposited by the Disbursement Agent in the Revenue Account for
application in accordance with Section 3.10(a)(12);
(12) on a monthly basis to the Partnership
Distribution Account.
When making the transfers specified in Section 3.10(a)(4) and Section
3.10(a)(6), each monthly transfer shall be adjusted as necessary to ensure that
the aggregate amounts so transferred are sufficient to pay the amount due and
payable on the applicable payment date.
(b) In determining as of a specified date the amount of monies
to be transferred or applied pursuant to each subsection of Section 3.10(a), a
credit shall be made to the account to receive such transfer or application
(which shall reduce the amount required to be so transferred or applied) in an
amount equal to the amount of monies on deposit or provided for therein, as of
the applicable date, in the account to receive such monies. The Disbursement
Agent may disregard uncollected interest earnings for the purpose of such
credit.
(c) Operation and Maintenance Costs payable pursuant to
Section 3.10(a)(2) shall not in the aggregate exceed the amounts approved by the
Independent Engineer in each Annual Operating Budget in any Fiscal Year except
as may be permitted in accordance with Section 5.16 of the Indenture.
(d) The foregoing provisions of this Section 3.10
notwithstanding, in the event that there shall have occurred and be continuing
an Event of Default under the Indenture and there shall have been an
acceleration of the Securities but prior to the Collateral Agent taking action
or exercising rights, remedies or options under Section 4 of the Intercreditor
Agreement (for the purposes of this Section 3.10, the "Securities Acceleration
Period"), the Disbursement Agent shall, when making the transfers each month
specified in 3.10(a)(4) during the Securities Acceleration Period and with the
same priority as such transfers, ratably deposit:
(i) in a separate trust account to be maintained
by the Disbursement Agent on behalf of the LOC Provider an amount up to
the amount equal to the Outstanding Amount of the Letters of Credit
less any amounts then on deposit in the ESA LOC Collateralization Fund
and the QF LOC Collateralization Fund. During the Securities
Acceleration Period, the Disbursement Agent shall hold the monies in
such separate account until receipt of a written notice or notices from
the LOC Provider (which such notice or notices shall be
contemporaneously delivered by the LOC Provider to the other Senior
Parties) executed by an Authorized Officer of the LOC Provider to the
effect that either (x) a beneficiary under a Letter of Credit has made
a Drawing (as defined in the Reimbursement Agreement) on a Letter of
Credit, each such notice to specify the Letter of Credit on which the
Drawing was made and the amount of such Drawing honored by the LOC
Issuing Bank or (y) a Letter of Credit has expired or terminated
without a Drawing being made thereunder, each such notice to specify
the Letter of Credit so expired or terminated, the issued amount of
such Letter of Credit and the date of such expiration or termination.
Upon receipt of a notice specified in (x) above, the Disbursement Agent
shall distribute to the LOC Provider from the separate account referred
to above the amount of the Drawing specified in such notice as having
been honored; provided, however, that if the amount contained in such
account is less than the sum of such specified Drawing and the undrawn
amounts available under the Letters of Credit, the amount so
distributed to the LOC Provider pursuant to this sentence shall be that
proportion of the amount contained in such account which is equal to
the proportion which each specified Drawing bears to the sum of such
specified Drawing and the undrawn amounts available under the Letters
of Credit. Upon receipt of a notice specified in (y) above, the
Disbursement Agent shall transfer monies from such separate account
into the Revenue Account for application in accordance with Sections
3.10(a)(3) through (12) in an amount equal to the issued amount of the
Letter of Credit so expired or terminated; provided, however, that if
the amount contained in such account is less than
the sum of the undrawn amount of the Letter of Credit so expired or
terminated and the undrawn amounts available under the Letters of
Credit, the amount so distributed in accordance with this sentence
shall be that proportion of the amount contained in such account which
is equal to the proportion which the undrawn amount of the Letter of
Credit so expired or terminated bears to the sum of such undrawn amount
and the undrawn amounts available under the Letters of Credit. The LOC
Provider hereby covenants and agrees to use reasonable efforts to send
the written notice specified in clause (y) of this Section 3.10(d) (i)
within three (3) Business Days of the occurrence of the event giving
rise to such notice, but in any event within a reasonable period of
time;
(ii) in a separate trust account to be maintained
by the Disbursement Agent on behalf of the Debt Service Reserve Letter
of Credit Provider an amount up to the amount equal to the Outstanding
Amount of the Debt Service Reserve Letter of Credit less any amount
then on deposit in the DSR LOC Collateralization Fund. During the
Securities Acceleration Period, the Disbursement Agent shall hold the
monies in such separate account until receipt of a written notice or
notices from the Debt Service Reserve Letter of Credit Provider (which
such notice or notices shall be contemporaneously delivered by the Debt
Service Reserve Letter of Credit Provider to the other Senior Parties)
executed by an Authorized Officer of the Debt Service Reserve Letter of
Credit Provider to the effect that either (x) a beneficiary under the
Debt Service Reserve Letter of Credit has made a Drawing (as defined in
the Debt Service Reserve LOC Reimbursement Agreement) on the Debt
Service Reserve Letter of Credit, each such notice to specify the
amount of such Drawing honored by the DSR LOC Issuing Bank or (y) the
Debt Service Reserve Letter of Credit has expired or terminated without
a Drawing being made thereunder, each such notice to specify the issued
amount of the Debt Service Reserve Letter of Credit and the date of
such expiration or termination. Upon receipt of a notice specified in
(x) above, the Disbursement Agent shall distribute to the Debt Service
Reserve Letter of Credit Provider from the separate account referred to
above the amount of the Drawing specified in such notice as having been
honored; provided, however, that if the amount contained in such
account is less than the sum of such specified Drawing and the undrawn
amounts available under the Debt Service Reserve Letter of Credit, the
amount so distributed to the Debt Service Reserve Letter of Credit
Provider pursuant to this sentence shall be that proportion of the
amount contained in such account which is equal to the proportion which
each specified Drawing bears to the sum of such specific Drawing and
the undrawn amounts available under the Debt Service Reserve Letter of
Credit. Upon receipt of a notice specified in (y) above, the
Disbursement Agent shall transfer monies from such separate account
into the Revenue Account for application in accordance with Sections
3.10(a)(3) through (12) in an amount equal to the issued amount of the
Debt Service Reserve Letter of Credit so expired or terminated. The
Debt Service Reserve Letter of Credit Provider hereby covenants and
agrees to use reasonable effort to send the written notice specified in
clause (y) of this Section 3.10(d)(i) within three (3) Business Days of
the occurrence of the event giving rise to such notice, but in any
event within a reasonable period of time.
(e) The foregoing provisions of this Section 3.10
notwithstanding, if (i) there shall have been an acceleration pursuant to the
terms of the Reimbursement Agreement of the principal amount of outstanding LOC
Loans thereunder and such acceleration is not rescinded, (ii) at the
time of or during the occurrence of (i) above, Debt Service Reserve LOC Loans
are then outstanding, and (iii) there shall have been an acceleration pursuant
to the terms of the Debt Service Reserve LOC Reimbursement Agreement of the
principal amount of such outstanding Debt Service Reserve LOC Loans thereunder
and such acceleration is not rescinded, the Disbursement Agent shall, when
making the transfers each month specified in 3.10(a)(4) and with the same
priority as such transfers, transfer to the Debt Service Reserve Letter of
Credit Provider an amount up to the amount accelerated pursuant to (iii) above.
Section 3.11 Monies to be Held in Trust. (a) All monies
held by the Disbursement Agent acting on behalf of the Senior Secured Parties
under the provisions of this Disbursement Agreement shall be deposited in one or
more Accounts herein in trust for the benefit of the Senior Secured Parties and
shall be applied only in accordance with the provisions of this Disbursement
Agreement, and each of the Accounts established by this Disbursement Agreement
shall be a trust fund for the purposes thereof. The Disbursement Agent shall
hold all Accounts and monies within such Accounts as security agent for the
Senior Secured Parties. Notwithstanding any other provision of this Disbursement
Agreement, each of the Partnership and the Company hereby transfers, assigns and
sets over all of its right, title and interest in and to all amounts deposited
or held in any Account under this Disbursement Agreement and grants the
Disbursement Agent sole dominion and control over such amounts until such
amounts are transferred to the Collateral Agent pursuant to Section 3.13 hereof,
whereupon such amounts shall be under the sole dominion and control of the
Collateral Agent pending application in accordance with the Intercreditor
Agreement. Neither the Partnership nor the Company shall have the right to
withdraw monies from any Account hereunder except to the extent such monies are
disbursed by the Disbursement Agent pursuant to the terms of this Disbursement
Agreement.
(b) All monies held by the Disbursement Agent as security
agent on behalf of the LOC Provider under the provisions of this Disbursement
Agreement shall be deposited in one or more LOC Provider Funds herein in trust
on behalf of the LOC Provider and shall be applied only in accordance with the
provisions of this Disbursement Agreement, and each of the LOC Provider Funds
established by this Disbursement Agreement shall be a trust fund for the
purposes thereof. The Disbursement Agent shall hold all LOC Provider Funds and
monies within such LOC Provider Funds as security agent solely for the LOC
Provider. Notwithstanding any other provision of this Disbursement Agreement,
each of the Partnership and the Company hereby transfers, assigns and sets over
all of its right, title and interest in and to all amounts deposited or held in
any LOC Provider Fund under this Disbursement Agreement and grants the
Disbursement Agent sole dominion and control over such amounts (as security
agent for the LOC Provider). Neither the Partnership nor the Company shall have
the right to withdraw monies from any LOC Provider Fund hereunder except to the
extent such monies are disbursed by the Disbursement Agent pursuant to the terms
of this Disbursement Agreement.
(c) All monies held by the Disbursement Agent as security
agent on behalf of the Debt Service Reserve Letter of Credit Provider under the
provisions of this Disbursement Agreement shall be deposited in one or more DSR
LOC Provider Funds herein in trust on behalf of the Debt Service Reserve Letter
of Credit Provider and shall be applied only in accordance with the provisions
of this Disbursement Agreement, and each of the DSR LOC Provider Funds
established by this Disbursement Agreement shall be a trust fund for the
purposes thereof. The Disbursement Agent shall hold all DSR LOC
Provider Funds and monies within such DSR LOC Provider Funds as security agent
solely for the Debt Service Reserve Letter of Credit Provider. Notwithstanding
any other provision of this Disbursement Agreement, each of the Partnership and
the Company hereby transfers, assigns and sets over all of its right, title and
interest in and to all amounts deposited or held in any DSR LOC Provider Funds
under this Disbursement Agreement and grants the Disbursement Agent sole
dominion and control over such amounts (as security agent for the Debt Service
Reserve Letter of Credit Provider). Neither the Partnership nor the Company
shall have the right to withdraw monies from any DSR LOC Provider Fund hereunder
except to the extent such monies are disbursed by the Disbursement Agent
pursuant to the terms of this Disbursement Agreement.
(d) All monies held in the Debt Service Reserve Account by the
Disbursement Agent as security agent on behalf of the Trustee (acting on behalf
of the holders of the Securities) under the provisions of this Disbursement
Agreement shall be held in trust for the benefit of the Trustee (acting on
behalf of the holders of the Securities) and shall be applied only in accordance
with the provisions of this Disbursement Agreement, and the Debt Service Reserve
Account established by this Disbursement Agreement shall be a trust fund for the
purposes thereof. The Disbursement Agent shall hold the Debt Service Reserve
Account and monies within such Debt Service Reserve Account as security agent
solely for the Trustee (acting on behalf of the holders of the Securities).
Notwithstanding any other provision of this Disbursement Agreement, each of the
Partnership and the Company hereby transfers, assigns and sets over all of its
right, title and interest in and to all amounts deposited or held in the Debt
Service Reserve Account under this Disbursement Agreement and grants the
Disbursement Agent sole dominion and control over such amounts (as security
agent for the Trustee acting on behalf of the holders of the Securities).
Neither the Partnership nor the Company shall have the right to withdraw monies
from the Debt Service Reserve Account hereunder except to the extent such monies
are disbursed by the Disbursement Agent pursuant to the terms of this
Disbursement Agreement.
(e) All monies held in the Tax Exempt Debt Service Reserve
Account or the Qualifying Cost Subaccount by the Disbursement Agent as security
agent on behalf of the Tax Exempt Trustee (acting on behalf of the holders of
the Tax Exempt Bonds) under the provisions of this Disbursement Agreement shall
be held in trust for the benefit of the Tax Exempt Trustee (acting on behalf of
the holders of the Tax Exempt Bonds) and shall be applied only in accordance
with the provisions of this Disbursement Agreement, and the Tax Exempt Debt
Service Reserve Account and the Qualifying Cost Subaccount established by this
Disbursement Agreement shall be a trust fund for the purposes thereof. The
Disbursement Agent shall hold the Tax Exempt Debt Service Reserve Account and
the Qualifying Cost Subaccount and monies within such Tax Exempt Debt Service
Reserve Account or the Qualifying Cost Subaccount as security agent solely for
the Tax Exempt Trustee (acting on behalf of the holders of the Tax Exempt
Bonds). Notwithstanding any other provision of this Disbursement Agreement, each
of the Partnership and the Company hereby transfers, assigns and sets over all
of its right, title and interest in and to all amounts deposited or held in the
Tax Exempt Debt Service Reserve Account or the Qualifying Cost Subaccount under
this Disbursement Agreement and grants the Disbursement Agent sole dominion and
control over such amounts (as security agent for the Tax Exempt Trustee acting
on behalf of the holders of the Tax Exempt Bonds). Neither the Partnership nor
the Company shall have the right to withdraw monies from the Tax Exempt Debt
Service Reserve Account or the Qualifying Cost Subaccount hereunder except to
the extent such
monies are disbursed by the Disbursement Agent pursuant to the terms of this
Disbursement Agreement.
Section 3.12 Application of Buy-Down Amounts. (a) All
Buy-Down Amounts shall be deposited by the Disbursement Agent in a separate
trust account pending application as set forth in Section 3.12(b) and (c) of
this Disbursement Agreement.
(b) Within thirty (30) days of receipt of any Buy-Down
Amounts, the Disbursement Agent shall transfer such Buy-Down Amounts to the
Collateral Agent for application as set forth in Section 6(f) of the
Intercreditor Agreement.
(c) The provisions of Section 3.12(b) notwithstanding, the
Disbursement Agent shall transfer any Buy-Down Amounts to the Completion Account
if the Partnership delivers to the Disbursement Agent within the thirty (30) day
period specified in Section 3.12(b) a certificate of an Authorized
Representative of the Partnership (which has been confirmed in writing by the
Independent Engineer, which confirmation shall not be unreasonably withheld or
delayed) specifying that (i) the use of such Buy-Down Amounts together with
available construction funds to make improvements to the Facility would not
reasonably be expected to result in a projected average Senior Debt Service
Coverage Ratio lower than the projected average Senior Debt Service Coverage
Ratio the Partnership would have achieved for such period after taking into
account (x) the application of such Buy-Down Amounts in accordance with Section
6 of the Intercreditor Agreement and (y) the performance of the Facility as
evidenced by the performance tests upon which the obligation of the Contractor
to pay such Buy-Down Amounts was based and (ii) the proposed improvements are
technically feasible and are not reasonably expected to materially and adversely
affect the operation or reliability of the Facility.
Section 3.13 Application of Accounts and Monies Following
a Trigger Event. (a) If a Trigger Event under the Intercreditor Agreement shall
have occurred and be continuing and the Collateral Agent has delivered written
notice to the Disbursement Agent specifying that either (i) the written request
of the Required Senior Creditors specified in Section 4(a) of the Intercreditor
Agreement has been delivered to the Collateral Agent and not rescinded or (ii)
such Trigger Event was caused by a Bankruptcy Event in respect of the
Partnership or the Company, then the Disbursement Agent shall transfer all
monies and investments held by the Disbursement Agent pursuant to this
Disbursement Agreement in an Account or in the account specified in Section
3.12, to the Collateral Agent for application in accordance with Section 5 of
the Intercreditor Agreement. Prior to such transfer, the Collateral Agent shall
have no duties or responsibilities whatsoever in respect of the Accounts or the
account specified in Section 3.12 or monies or investments therein or for the
actions or omissions of the Disbursement Agent and the Collateral Agent may
conclusively rely on the completeness and accuracy of any records or information
delivered by the Disbursement Agent to the Collateral Agent. Upon receipt of the
transfer referred to in this Section 3.13(a), the rights, powers, duties,
obligations and indemnities of the Collateral Agent in respect of the Accounts
and the accounts specified in Sections 3.12 and 3.14 hereof, shall be governed
by the Intercreditor Agreement.
(b) If the Disbursement Agent shall have received notice, or
otherwise become aware, of the occurrence of a Trigger Event under the
Intercreditor Agreement, the Disbursement Agent shall exercise all rights
available to it under the Equity Contribution Agreement and the
GE Capital Guaranty Agreement (in each case, in accordance with the terms
thereof), and, following the receipt of the notice specified in Section 3.13(a)
above, shall assign all such rights to the Collateral Agent on behalf of the
Senior Secured Parties.
(c) The Collateral Agent shall deliver to the Disbursement
Agent the written notice specified in Section 3.13(a) of this Disbursement
Agreement within three (3) Business Days of its actual knowledge of the event
giving rise to such notice.
Section 3.14 Debt Service Reserve Account and Tax Exempt
Debt Service Reserve Account. (a) The Disbursement Agent is hereby appointed and
shall be the depository, as security agent for the Trustee (on behalf of the
holders of the Securities) for all revenues, receipts, monies, proceeds and
other sums or instruments deposited or deemed deposited in the Debt Service
Reserve Account hereinafter created. There is hereby established a separate
trust account (the `Debt Service Reserve Account") which shall be held by the
Disbursement Agent for the Trustee (on behalf of the holders of the Securities).
(b) The Disbursement Agent is hereby appointed and shall be
the depository, as security agent for the Tax Exempt Trustee (on behalf of the
holders of the Tax Exempt Bonds) for all revenues, receipts, monies, proceeds
and other sums or instruments deposited or deemed deposited in the Tax Exempt
Debt Service Reserve Account hereinafter created. There is hereby established a
separate trust account (the "Tax Exempt Debt Service Reserve Account") which
shall be held by the Disbursement Agent for the Tax Exempt Trustee (on behalf of
the holders of the Tax Exempt Bonds). While the Securities are outstanding,
amounts to be deposited in the Tax Exempt Debt Service Reserve Account shall at
no time cause amount on deposit therein to exceed the Tax Exempt Bond DSR
Maximum Allowed Amount and, thereafter, the Debt Service Reserve Account Maximum
Balance.
(c) On the Closing Date the Partnership shall deliver, or
cause to be delivered, to the Disbursement Agent the Debt Service Reserve Letter
of Credit. The Disbursement Agent shall hold the Debt Service Reserve Letter of
Credit as security agent for the Trustee (on behalf of the holders of the
Securities) and the Tax Exempt Trustee (on behalf of the holders of the Tax
Exempt Bonds). The Disbursement Agent is hereby authorized to submit sight
drafts and other required documentation under the Debt Service Reserve Letter of
Credit, in each case, when and to the extent permitted under the Debt Service
Reserve Letter of Credit and for the purposes specified in this Section 3.14.
(d) Upon the occurrence of the Completion Date and submission
of the certificate required by Section 3.5(a) of this Disbursement Agreement,
the Debt Service Reserve Account shall be funded from monies available in the
Construction Account for such purpose in accordance with Section 3.4(e) of this
Disbursement Agreement in an amount up to the Debt Service Reserve Account
Required Balance.
(e) On the Closing Date, the Disbursement Agent shall deposit
in the Tax Exempt Debt Service Reserve Account an amount specified in writing by
the Partnership as equal to ten percent (10%) of the aggregate principal amount
of the Series 1994A Bonds. From time to time upon the sale of Series 1994B
Bonds, the Disbursement Agent shall deposit in the Tax Exempt Debt Service
Reserve Account an amount specified in writing by the Partnership as equal to
ten
percent (10%) of the aggregate principal amount of the Series 1994B Bonds so
sold. Upon the occurrence of the Completion Date and submission of the
certificate required by Section 3.5(a) of this Disbursement Agreement, the Tax
Exempt Debt Service Reserve Account shall be funded from monies available in the
Qualifying Cost Subaccount of the Construction Account for such purpose in
accordance with Section 3.4(e) of this Disbursement Agreement in an amount up to
the Tax Exempt Bond DSR Maximum Allowed Amount.
(f) Subsequent to the Completion Date, the Debt Service
Reserve Account shall be funded from monies transferred by the Disbursement
Agent pursuant to Section 3.10(a)(5) and (10) of this Disbursement Agreement.
(g) Subsequent to the Completion Date, the Tax Exempt Debt
Service Reserve Account shall be funded from monies transferred by the
Disbursement Agent pursuant to Section 3.10(a)(5) and (10) of this Disbursement
Agreement.
(h) Notwithstanding any other provision of the Agreement to
the contrary, when determining (i) if any amounts are required to be deposited
(or the amount so required to be deposited) into the Debt Service Reserve
Account from time to time, (ii) whether the Debt Service Reserve Account has
deposited therein the Debt Service Reserve Account Maximum Balance or (iii) when
determining the amount by which the Debt Service Reserve Account may be reduced
from time to time, amounts on deposit in the Debt Service Reserve Account and
the Tax Exempt Debt Service Reserve Account shall be aggregated with the
Outstanding Amount of each Debt Service Reserve Letter of Credit.
(i) At any time after the first anniversary of the Completion
Date, the amount which is the Debt Service Reserve Account Maximum Balance shall
be reduced to an amount equal to Debt Service Reserve Account Required Balance
by: first, causing a reduction in the Outstanding Amount of the Debt Service
Reserve Letter of Credit, second, having the Disbursement Agent withdraw monies
from the Debt Service Reserve Account, then, third, reducing Debt Service
Reserve Account Security if the Partnership provides a letter from each of two
of S&P, ▇▇▇▇▇'▇, Fitch or another nationally recognized rating agency (then
currently rating the Securities) confirming that such reduction will not in and
of itself result in (x) a downgrading of the rating on the Securities to below
Investment Grade if such agency is then rating the Securities as Investment
Grade, or (y) any downgrading of the rating on the Securities if the Securities
are then rated as below Investment Grade by such agency. Monies withdrawn from
the Debt Service Reserve Account pursuant to this Section 3.14(i) shall be
deposited into the Revenue Account for application in accordance with Section
3.10 of this Disbursement Agreement.
(j) In the event that the Debt Service Reserve Account Maximum
Balance has not been reduced to an amount equal to the Debt Service Reserve
Account Required Balance in accordance with the immediately preceding paragraph,
the Debt Service Reserve Account Maximum Balance shall, beginning on the tenth
anniversary of the Completion Date, be reduced by $750,000 each month by: first,
causing a reduction in the Outstanding Amount of the Debt Service Reserve Letter
of Credit, then, second, withdrawing monies from the Debt Service Reserve
Account, then third, reducing Debt Service Reserve Account Security until the
amount on deposit in the Debt Service Reserve Account equals the Debt Service
Reserve Account
Required Balance; provided however, that there shall be no reduction in the Debt
Service Reserve Account Maximum Balance pursuant to this sentence unless the
Partnership certifies (A)(1) that the average Total Debt Service Coverage Ratio
for the two semi-annual payment periods immediately preceding the reduction date
was equal to at least 1.2 to 1, and (2) based on projections prepared by the
Partnership on a reasonable basis, that the average Total Debt Service Coverage
Ratio for the current semi-annual payment period and the next succeeding
semi-annual payment period is projected to be at least 1.2 to 1, (B) that since
the Commercial Operation Date the budgeted Operating and Maintenance Costs in
the Annual Operating Budgets have not on average been exceeded by more than
fifteen (15) percent, and (C) the Facility's Capacity Billing Factor has
averaged at least 87 percent since the Commercial Operation Date, excluding the
first operating year after the Commercial Operation Date and any years during
which the Facility was removed from service for scheduled major maintenance, and
provided further that in any month after reductions in the Debt Service Reserve
Account have been made pursuant to this sentence that the Partnership is not
able to make the certifications required by clauses (A), (B) and (C) of this
sentence, the Partnership shall be required to either (1) deposit up to $750,000
in the Debt Service Reserve Account or (H) cause the Outstanding Amount of the
Debt Service Reserve Letter of Credit to be increased, so that in each case,
amounts available in the Debt Service Reserve Account are equal to the Debt
Service Reserve Account Maximum Balance as specified in Section 3.10(a)(10) of
the Disbursement Agreement, except that the Partnership shall be permitted to
reduce such monthly deposit by any amounts required in respect of any Partner's
Income Tax Deficiency. Any monies resulting from a reduction of monies required
to be held in the Debt Service Reserve Account pursuant to this Section 3.14(j)
shall be transferred by the Disbursement Agent for deposit into the Revenue
Account for application in accordance with Section 3.10 of this Disbursement
Agreement.
(k) The Partnership may from time to time withdraw any amount
of monies then on deposit in the Debt Service Reserve Account upon the delivery
to the Disbursement Agent of (1) a Partner Letter of Credit, (ii) a Debt Service
Reserve Account Guaranty, (iii) Debt Service Reserve Account Capital Infusion
Arrangements or (iv) any combination of the foregoing in an aggregate amount
equal to the amount to be withdrawn from the Debt Service Reserve Account on
such date (any, or all, of the instruments described in (i), (ii), (iii) and
(v), the "Debt Service Reserve Account Security"). Each Debt Service Reserve
Account Security shall provide that (x) thirty (30) days prior to the expiration
or termination of such Debt Service Reserve Account Security the provider
thereof shall deliver written notice to the Disbursement Agent and the
Partnership of such expiration or termination and (y) if the Partnership has not
caused such expiring or terminating Debt Service Reserve Account Security to be
replaced with cash and/or substitute Debt Service Reserve Account Security in an
amount equal to the amount then available under such expiring or terminating
Debt Service Reserve Account Security within ten (10) days prior to the
expiration or termination of such Debt Service Reserve Account Security, the
Disbursement Agent shall be entitled to draw or call on such expiring or
terminating Debt Service Reserve Account Security in an amount equal to the
amount available thereunder. The Disbursement Agent is hereby authorized and
directed to take the actions specified in clause (y) of the preceding sentence.
(l) When there are insufficient monies in the Securities
Account on any Interest Payment Date to pay the interest or principal then due
on the Securities, the Disbursement Agent shall, in the following order of
priority: first, transfer monies on deposit in the Debt Service
Reserve Account; second, call on any Debt Service Reserve Account Security
(ratably, if more than one Debt Service Reserve Account Security has been
provided, based on the ownership interest in the Partnership of the Partner on
whose behalf such Debt Service Reserve Account Security was provided) in
accordance with the terms and provisions thereof substitute for monies in the
Debt Service Reserve Account; and third, draw on any Debt Service Reserve Letter
of Credit in accordance with the terms and provisions thereof up to the amount
available for such purpose thereunder, in each case, to the extent necessary to
make such payment and transfer such monies to the Securities Account under the
Indenture to be applied to make such payment.
(m) When there are insufficient monies in the Tax Exempt Bond
Debt Service Fund on any Interest Payment Date to pay the interest or principal
then due on the Tax Exempt Bonds, the Disbursement Agent shall, in the following
order of priority: first, transfer monies on deposit in the Tax Exempt Debt
Service Reserve Account; and second, draw on any Debt Service Reserve Letter of
Credit in accordance with the terms and provisions thereof up to the amount
available for such purpose thereunder, in each case, to the extent necessary to
make such payment and transfer such monies to the Tax Exempt Bond Debt Service
Fund under the Tax Exempt Indenture to be applied to make such payment.
(n) If the Disbursement Agent receives a written notice from
the Partnership stating that there has been a reduction in the long-term debt
rating of a Debt Service Reserve Letter of Credit Provider below "A" by S&P or
"A2" by ▇▇▇▇▇'▇, or if a responsible officer of the Disbursement Agent otherwise
becomes aware of such reduction, and the Debt Service Reserve Letter of Credit
has not been replaced within the time period specified therefor, the
Disbursement Agent shall draw on the affected Debt Service Reserve Letter of
Credit in the amount necessary to fund, in the aggregate, the Debt Service
Reserve Account and the Tax Exempt Debt Service Reserve Account up to the Debt
Service Reserve Account Maximum Balance (excluding the Debt Service Reserve
Letter of Credit), whereupon the Disbursement Agent shall deposit the proceeds
of such drawing ratably in the Debt Service Reserve Account and the Tax Exempt
Debt Service Reserve Account (based on the then current shortfalls, if any, in
the Debt Service Reserve Account and the Tax Exempt Debt Service Reserve Account
(in each case excluding the Outstanding Amount of the Debt Service Reserve
Letter of Credit)). The Partnership shall give the notice specified in this
Section 3.14(n) within three (3) Business Days of its actual knowledge of the
event giving rise to such notice.
(o) If a Trigger Event under the Intercreditor Agreement shall
have occurred and be continuing and the Collateral Agent has delivered written
notice to the Disbursement Agent specifying that either (i) the written request
of the Required Senior Creditors specified in Section 4(a) of the Intercreditor
Agreement has been delivered to the Collateral Agent and not rescinded or (ii)
such Trigger Event was caused by a Bankruptcy Event in respect of the
Partnership or the Company, then the Disbursement Agent shall draw on the Debt
Service Reserve Letter of Credit in an amount equal to the amount necessary to
fund, in the aggregate, the Debt Service Reserve Account and the Tax Exempt Debt
Service Reserve Account up to the Debt Service Reserve Account Maximum Balance
(excluding the Debt Service Reserve Letter of Credit), whereupon the
Disbursement Agent shall distribute the proceeds of such drawing ratably to the
Trustee and the Tax Exempt Trustee (based on the then current shortfalls, if
any, in the Debt Service Reserve Account and the Tax Exempt Debt Service Reserve
Account (in each case excluding the Outstanding Amount of the Debt Service
Reserve Letter of Credit)).
(p) If the Disbursement Agent receives a notice from a Debt
Service Reserve Letter of Credit Provider substantially in the form of Annex 4
to the Debt Service Reserve Letter of Credit, stating that the Debt Service
Reserve Letter of Credit Provider shall terminate the Debt Service Reserve
Letter of Credit on the date specified in such notice, the Disbursement Agent
shall, within three (3) Business Days of receipt of such notice, draw on the
Debt Service Reserve Letter of Credit in the amount necessary to fund, in the
aggregate, the Debt Service Reserve Account and the Tax Exempt Debt Service
Reserve Account up to the Debt Service Reserve Account Maximum Balance
(excluding the Debt Service Reserve Letter of Credit), whereupon the
Disbursement Agent shall deposit the proceeds of such drawing ratably in the
Debt Service Reserve Account and the Tax Exempt Debt Service Reserve Account
(based on the then current shortfalls, if any, in the Debt Service Reserve
Account and the Tax Exempt Debt Service Reserve Account (in each case excluding
the Outstanding Amount of the Debt Service Reserve Letter of Credit).
(q) If, subsequent to the Commercial Operation Date, monies
transferred to the Debt Service Reserve Letter of Credit Provider pursuant to
Section 3.10(a)(4)(v)(a) of this Disbursement Agreement are insufficient to
repay the interest on any Debt Service Reserve LOC Loans due or becoming due on
the first day of such month, the Disbursement Agent shall draw on the Debt
Service Reserve Letter of Credit in amount equal to the amount of such shortfall
and transfer such amount to the Debt Service Reserve Letter of Credit Provider
as repayment (in whole or part) of such interest on such Debt Service Reserve
LOC Loans. Notwithstanding the foregoing, in no event may any draw on the Debt
Service Reserve Letter of Credit under this Section 3.14(q) individually or in
the aggregate with all other such draws in any Fiscal Year, exceed $5,000,000.
(r) Net interest gained or received on investment of monies in
the Debt Service Reserve Account shall be deposited in the Debt Service Reserve
Account and be available for use as specified in this Section 3.14; provided,
however, that such interest shall be transferred for deposit in the Revenue
Account to the extent amounts on deposit after such transfer would otherwise
exceed the Debt Service Reserve Account Maximum Balance.
(s) Net interest gained or received on investment of monies in
the Tax Exempt Debt Service Reserve Account shall be deposited in the Tax Exempt
Debt Service Reserve Account and be available for use as specified in this
Section 3.14; provided, however, that unless required to be transferred to the
Tax Exempt Trustee for deposit in the Rebate Fund, such interest in excess of
the Tax Exempt Bond DSR Maximum Allowed Amount (while the Securities are
outstanding, and thereafter, the Debt Service Reserve Account Maximum Balance)
shall be transferred to the Tax Exempt Trustee for deposit in the Tax Exempt
Bond Debt Service Fund.
(t) Each month (including on the Business Day prior to each
Interest Payment Date) and immediately following any withdrawal, the
Disbursement Agent shall "▇▇▇▇-to-market each Permitted Investment on deposit in
the Debt Service Reserve Account and shall promptly thereafter notify the
Partnership, the Trustee and the Independent Engineer as to the amount of any
deficiency or surplus in the Debt Service Reserve Account as of such date based
on such revaluation. Any deficiency shall be funded from the Revenue Account, as
specified in Section 3.10(a)(5), and any surplus shall be deposited in the
Revenue Account.
(u) Each month (including on the Business Day prior to each
Interest Payment Date) and immediately following any withdrawal the Disbursement
Agent shall "▇▇▇▇-to-market" each Investment Obligation on deposit in the Tax
Exempt Debt Service Reserve Account and shall promptly thereafter notify the
Partnership, the Tax Exempt Trustee and the Independent Engineer as to the
amount of any deficiency or surplus in the Tax Exempt Debt Service Reserve
Account as of such date based on such revaluation. Any deficiency shall be
funded from the Revenue Account, as specified in Section 3.10(a)(5), and any
surplus shall be transferred to the Tax Exempt Trustee for deposit in the Tax
Exempt Debt Service Fund.
(v) The Trustee on behalf of the Holders of the Securities and
the Tax Exempt Trustee on behalf of Holders of the Tax Exempt Bonds hereby
acknowledge and agree that, FPL has, on the terms specified in the FPL Security
Agreement, a junior lien and security interest in any monies maintained in the
Debt Service Reserve Account or in the Tax Exempt Debt Service Reserve Account.
(w) The Disbursement Agent shall on each date funds are
transferred pursuant to Section 3.10 or 3.11 provide written notice to the Debt
Service Reserve Letter of Credit Provider of (i) the balances (both prior and
subsequent to such transfers) in the Debt Service Reserve Account and the Tax
Exempt Debt Service Reserve Account and (ii) the amount of the Debt Service
Reserve LOC Provider Share, the Debt Service Reserve LOC Credit Amount, and the
Debt Service Reserve Account Share, as each term is defined in Section
3.10(a)(5) of this Disbursement Agreement.
(x) Unless otherwise specifically provided for in this
Disbursement Agreement, when required to make deposits into both the Debt
Service Reserve Account and the Tax Exempt Debt Service Reserve Account, the
Disbursement Agent shall make such deposits ratably between the Debt Service
Reserve Account and the Tax Exempt Debt Service Reserve Account based on the
shortfall in each such account, where, solely for such purposes, the amount
required to be on deposit in the Tax Exempt Debt Service Reserve Account is the
Tax Exempt Bond DSR Maximum Allowed Amount and the amount required to be on
deposit in the Debt Service Reserve Account is the Debt Service Reserve Account
Maximum Balance (after giving effect to Section 3.14(h) of this Disbursement
Agreement).
Section 3.15 Debt Acquisition Account. (a) The Disbursement
Agent is hereby appointed and shall be security agent for the Senior Parties (as
defined in the Intercreditor Agreement) for all monies held in the Debt
Acquisition Account. On the Closing Date, the Debt Acquisition Account shall be
funded from proceeds from the sale of the Securities in an amount equal to the
outstanding indebtedness of the Partnership (other than indebtedness relating to
the Series 1992A Bonds, the Series 1992B Bonds and the Financing Liabilities).
Monies in the Debt Acquisition Account shall be used by the Disbursement Agent
on behalf of the Senior Parties to acquire such outstanding indebtedness in
whole and in an amount equal to the principal amount of, accrued interest on,
and other amounts due in respect of such indebtedness.
(b) On the Closing Date, the Disbursement Agent shall transfer
monies from the Debt Acquisition Account in an amount specified in writing by
the Partnership to the account or accounts specified by the Partnership for use
in accordance with Section 3.15(a).
(c) On the Closing Date, the Partnership shall deliver to the
Disbursement Agent a certificate executed by an authorized representative of the
Partnership setting forth the amount of the outstanding indebtedness of the
Partnership (other than indebtedness relating to the Series 1992A Bonds, the
Series 1992B Bonds and the Financing Liabilities) and setting forth the
information required in Section 3.15(b).
(d) On the Closing Date and following the transfer of monies
to be made pursuant to Section 3.15(b), the Disbursement Agent shall transfer
any monies remaining in the Debt Acquisition Account to the Construction Account
for application in accordance with Section 3.4 of this Disbursement Agreement.
Section 3.16 Monthly Reports by Disbursement Agent. On or
prior to the tenth (10th) Business Day of each month, the Disbursement Agent
shall furnish the Partnership a statement of activity in all of the accounts and
funds created under this Disbursement Agreement.
Section 3.17 Special Payments. Notwithstanding anything to the
contrary in this Disbursement Agreement or in any other Financing Document, in
the event of the refinancing and/or replacement of the Debt Service Reserve LOC
Reimbursement Agreement, the Reimbursement Agreement, and/or the Working Capital
Facility as permitted under the Financing Documents, upon delivery by the
Partnership of a certificate setting forth the information described in the
following clauses (a) and (b), the Disbursement Agent shall, on the date
specified by the Partnership in such certificate, (a) transfer to the Revenue
Account from the account(s) specified by the Partnership the amount(s) specified
by the Partnership and (b) transfer from the Revenue Account to the account(s)
specified by the Partnership the amount(s) specified by the Partnership;
provided that such amounts shall be applied by the Partnership solely to (x)
repayment of principal, accrued interest, fees and other expenses in respect of
the credit facility or credit facilities being refinanced or replaced and (y)
payment of reasonable fees and expenses of the Partnership (including fees and
expenses of counsel) incurred in connection with such refinancing or
replacement.
ARTICLE IV.
COLLATERALIZATION OF LETTERS OF CREDIT
Section 4.1 FPL Termination Fee Letter of Credit. (a)
Subsequent to the Commercial Operation Date and upon the occurrence of:
(i) the Disbursement Agent's receipt of a
written notice from the Partnership to the effect that the Facility has
failed to deliver any Energy (as defined in the Power Purchase
Agreement) (an "Energy Collateralization Event") to FPL for 6
consecutive months (provided, however, such period shall be extended to
12 consecutive months if (X) the Partnership determines that major
equipment, including, but not limited to, the boiler or the turbine
generator, needs replacement, (Y) the Partnership demonstrates to FPL,
in writing, that such major equipment does need replacing, and (Z) FPL
concurs in writing in such determination); or
(ii) the Disbursement Agent's receipt of a
written notice from the Partnership to the effect that the Facility has
failed for any 12 consecutive months to maintain a Capacity Billing
Factor of at least 55% (a "CBF Collateralization Event"); or
(iii) the Disbursement Agent's receipt of a
written notice from the Partnership to the effect that the Partnership
has failed to give FPL adequate assurance that it is in compliance with
any material provision of the Power Purchase Agreement not specifically
referenced in Section 3.5 of the Power Purchase Agreement within 15
calendar days after FPL has given notice in writing to the Partnership
of noncompliance of such material provision (an "Adequate Assurance
Collateralization Event");
then the Disbursement Agent shall, provided that the Partnership certificate
referred to in Section 5.24 of the Indenture has been delivered to the
Disbursement Agent, transfer monies from the Partnership Distribution Account to
the Termination LOC Collateralization Fund on the Interest Payment Date next
succeeding the date on which the Disbursement Agent receives a notice specified
in (i), (ii) or (iii) above in an amount up to the then issued amount of the FPL
Termination Fee Letter of Credit (which such amount may not exceed $50,000,000).
Upon receipt of a written notice or notices from the LOC Provider (which such
notice or notices shall be contemporaneously delivered by the LOC Provider to
the other Senior Secured Parties) executed by an Authorized Officer of the LOC
Provider to the effect that FPL has made a Drawing (as defined in the
Reimbursement Agreement) on the FPL Termination Fee Letter of Credit, each such
notice to specify the amount of such Drawing honored by the LOC Issuing Bank,
the Disbursement Agent shall distribute to the LOC Provider from the Termination
LOC Collateralization Fund the amount of the Drawing specified in such notice as
having been honored.
(b) Notwithstanding the provisions of Section 4.1(a), the
Disbursement Agent shall wire transfer the monies from the Termination LOC
Collateralization Fund to an account specified by the Partnership if:
(i) in respect of an Energy Collateralization
Event, the Partnership delivers written notice (accompanied by
appropriate supporting documentation) to the Disbursement Agent that
the Facility has delivered Energy to FPL and the Partnership has
received payment therefor from FPL within the twelve (12) month period
(or eighteen (18) month period, as the case may be) provided for in
Section 3.5.4 of the Power Purchase Agreement; or
(ii) in respect of a CBF Collateralization Event,
the Partnership delivers written notice (accompanied by appropriate
supporting documentation) to the Disbursement Agent that the Facility
has, within the twenty-seven (27) month period provided for in Section
3.5.5 of the Power Purchase Agreement, maintained a monthly Capacity
Billing Factor of at least 55% for at least one (1) month during such
period and that within six (6) weeks of doing so either (i) FPL
confirms in writing to the Partnership that the Partnership has cured
its failure to maintain the required monthly Capacity Billing Factor or
(ii) FPL has not discontinued payments under the Power Purchase
Agreement and has not notified the Partnership in writing that the
Partnership has not cured its failure to maintain the required monthly
Capacity Billing Factor, or
(iii) in respect of an Adequate Assurance
Collateralization Event, the Partnership delivers written notice
(accompanied by appropriate supporting documentation) to the
Disbursement Agent that the Partnership has responded to the notice
given by FPL within fifteen (15) days of its receipt thereof and that
within six (6) weeks of the Partnership's response either (i) FPL has
confirmed to the Partnership in writing that the Partnership has cured
any noncompliance or (ii) FPL has not discontinued payments under the
Power Purchase Agreement and has not notified the Partnership in
writing that the Partnership has failed to cure such noncompliance.
Section 4.2 ESA Letter of Credit. (a) Upon the Disbursement
Agent's receipt of a written notice from the Partnership that the Partnership
has received from LDC a notice of Steam Delivery Default pursuant to the Energy
Services Agreement, the Disbursement Agent shall, provided that the Partnership
certificate referred to in Section 5.24 of the Indenture has been delivered to
the Disbursement Agent, transfer monies from the Partnership Distribution
Account to the ESA LOC Collateralization Fund on the Interest Payment Date next
succeeding the date on which the Disbursement Agent receives the notice
specified above in an amount up to the then Outstanding Amount of the ESA Letter
of Credit (which such amount may not exceed $10,000,000) less any amount then on
deposit in the ESA LOC Collateralization Fund. Upon receipt of a written notice
or notices from the LOC Provider (which such notice or notices shall be
contemporaneously delivered by the LOC Provider to the other Senior Secured
Parties) executed by an Authorized Officer of the LOC Provider to the effect
that LDC has made a Drawing (as defined in the Reimbursement Agreement) on the
ESA Letter of Credit, each such notice to specify the amount of such Drawing
honored by the LOC Issuing Bank, the Disbursement Agent shall distribute to the
LOC Provider from the ESA LOC Collateralization Fund the amount of the Drawing
specified in such notice as having been honored.
(b) Notwithstanding the provisions of Section 4.2(a), the
Disbursement Agent shall wire transfer the monies from the ESA LOC
Collateralization Fund to an account specified by the Partnership if the
Partnership provides written notice to the Disbursement Agent that (i) the Steam
Delivery Default referred to in Section 4.2(a) is cured (provided that (A) such
monies are not otherwise required to remain in the ESA LOC Collateralization
Fund pursuant to Section 4.3 and (B) no event that would require the funding of
the ESA LOC Collateralization Fund pursuant to Section 3.10(a)(5A2) has occurred
and is continuing), such notice from the Partnership to be accompanied by a
writing from LDC meeting the requirements of Section 12.2(b)(1) of the Energy
Services Agreement or (ii) the ESA Letter of Credit has been terminated or
expired by its terms without a Drawing thereunder.
Section 4.3 Fuel Supply Coverage Event. (a) Upon the
Disbursement Agent's receipt of a written notice from the LOC Provider and the
Debt Service Reserve LOC Provider that there has occurred and is continuing a
Fuel Supply Coverage Event, the Disbursement Agent shall, provided that the
Partnership certificate referred to in Section 5.24 of the Indenture has been
delivered to the Disbursement Agent, transfer monies on the Interest Payment
Date next succeeding the date on which the Disbursement Agent receives the
notice specified above (unless such notice is received on an Interest Payment
Date in respect of an Indexation Event, in which case such transfer shall be
made on such Interest Payment Date) from the Partnership Distribution Account
(i) first, to the DSR LOC Collateralization Fund in an amount up to the then
Outstanding Amount of the Debt Service Reserve Letter of Credit (which such
amount may not
exceed $29,925,906) less (A) any amount then on deposit in the DSR LOC
Collateralization Fund and (B) any amount then on deposit in the trust account
described in Section 3.10(d)(ii) of this Disbursement Agreement, and (ii)
second, to (A) the ESA LOC Collateralization Fund in an amount up to the then
Outstanding Amount of the ESA Letter of Credit (which such amount may not exceed
$10,000,000) less any amount then on deposit in the ESA LOC Collateralization
Fund, and (B) the QF LOC Collateralization Fund in an amount up to the then
Outstanding Amount of the FPL QF Letter of Credit (which such amount may not
exceed $5,000,000) less any amount then on deposit in the QF LOC
Collateralization Fund and, in the cases of clauses (ii)(A) and (B) above, less
(without duplication) any amount then on deposit in the trust account described
in Section 3.10(d)(i) of this Disbursement Agreement; provided, however, that if
monies in the Partnership Distribution Account are insufficient on any date to
make the payments specified in this Section 4.3(a), distribution of monies shall
be made first, to the recipient specified in Section 4.3(a)(i) up to the maximum
amount required thereunder and, second, ratably to the recipients specified in
Sections 4.3(a)(ii)(A) and (B), based on the respective amounts owing such
recipients; provided further that with respect to any Fuel Supply Coverage Event
that is an Indexation Event, the Disbursement Agent shall not transfer any
monies to the DSR LOC Collateralization Fund, the ESA LOC Collateralization
Fund, or the QF LOC Collateralization Fund to the extent such monies were
credited to the Revenue Account prior to the date of this Disbursement
Agreement. Upon receipt of a written notice or notices from the Debt Service
Letter of Credit Provider or the LOC Provider, as applicable (which such notice
or notices shall be contemporaneously delivered by the Debt Service Letter of
Credit Provider or the LOC Provider, as applicable, to the other Senior Secured
Parties), executed by an Authorized Officer of the Debt Service Letter of Credit
Provider or the LOC Provider, as applicable, to the effect that the beneficiary
of its letter of credit described above in this Section 4.3(a) has made a
Drawing (as defined in the Debt Service Reserve LOC Reimbursement Agreement or
the Reimbursement Agreement, as applicable) on such letter of credit, each such
notice to specify the amount of such Drawing honored by the DSR LOC Issuing Bank
or the LOC Issuing Bank, as applicable, the Disbursement Agent shall distribute
to the Debt Service Letter of Credit Provider or the LOC Provider, as
applicable, from the DSR LOC Collateralization Fund, the ESA LOC
Collateralization Fund, or the QF LOC Collateralization Fund, as applicable, the
amount of the Drawing specified in such notice as having been honored.
(b) Notwithstanding the provisions of Section 4.3(a), the
Disbursement Agent shall wire transfer the monies (i) from the DSR LOC
Collateralization Fund, the ESA LOC Collateralization Fund, and the QF LOC
Collateralization Fund to an account specified by the Partnership if the
Partnership provides written notice to the Disbursement Agent, together with a
written acknowledgment to the Disbursement Agent signed by the Debt Service
Reserve LOC Provider and the LOC Provider (such acknowledgment not to be
unreasonably withheld), that a Fuel Supply Release Event has occurred (provided
that, (A) in the case of the ESA LOC Collateralization Fund, (1) such monies are
not otherwise required to remain therein pursuant to Section 4.2 and (2) no
event that would require the funding of the ESA LOC Collateralization Fund
pursuant to Section 3.10(a)(5A2) has occurred and is continuing, and (B) in the
case of the QF LOC Collateralization Fund, no event that would require the
funding of the QF LOC Collateralization Fund pursuant to Section 3.10(a)(5A2)
has occurred and is continuing), and (ii) from the DSR LOC Collateralization
Fund, the ESA LOC Collateralization Fund, or the QF LOC Collateralization Fund,
as applicable, to an account specified by the Partnership if the Partnership
provides written notice to the Disbursement Agent, together with a written
acknowledgment to
the Disbursement Agent signed by the Debt Service Reserve Letter of Credit
Provider or LOC Provider, as applicable, that the Debt Service Reserve Letter of
Credit, the ESA Letter of Credit, or the FPL QF Letter of Credit has been
terminated or expired by its terms without a Drawing thereunder.
Section 4.4 Replacement of Performance Letters of Credit. At
any time after the occurrence of an event that would require the funding of the
ESA LOC Collateralization Fund or the QF LOC Collateralization Fund pursuant to
Section 3.10(a)(5A2), the Disbursement Agent shall wire transfer the monies from
the ESA LOC Collateralization Fund and the QF LOC Collateralization Fund, as
applicable, to an account specified by the Partnership if the Partnership
provides written notice to the Disbursement Agent (acknowledged in writing to
the Disbursement Agent by the Engineering Advisor and the LOC Provider) that the
ESA Letter of Credit and/or the FPL QF Letter of Credit, as applicable, will be
reinstated or replaced in accordance with the terms of the Financing Documents;
provided, however, that (a) in the case of the ESA LOC Collateralization Fund,
such monies are not otherwise required to remain therein pursuant to Section 4.2
or 4.3, and (b) in the case of the QF LOC Collateralization Fund, such monies
are not otherwise required to remain therein pursuant to Section 4.3.
ARTICLE V.
INVESTMENTS
Section 5.1 Investment of Monies. (a) Amounts deposited in the
Accounts, the LOC Provider Funds, the Qualifying Cost Subaccount, the DSR LOC
Provider Funds, the Debt Service Reserve Account, the Tax Exempt Debt Service
Reserve Account and each other account or fund created hereunder (unless
expressly stated otherwise), at the written request and direction of the
Partnership, shall be invested by the Disbursement Agent in Permitted
Investments (except that monies contained in the Tax Exempt Debt Service Reserve
Account or the Qualifying Cost Subaccount shall be invested only in Investment
Obligations). Such investments shall mature in such amounts and not later than
such times as may be necessary to provide monies when needed to make payments
from such monies as provided in this Disbursement Agreement. Net interest or
gain received from such investments shall be applied as provided in this
Disbursement Agreement. Absent written instructions from the Partnership, the
Disbursement Agent shall invest the amounts held in the Accounts, the LOC
Provider Funds, the Qualifying Cost Subaccount, the Debt Service Reserve
Account, the Tax Exempt Debt Service Reserve Account and the DSR LOC Provider
Funds and each other account or fund created hereunder, in Permitted Investments
described in clause (i) of such definition.
(b) So long as an outstanding balance shall remain in the
Accounts or the LOC Provider Funds or the Qualifying Cost Subaccount or the DSR
LOC Provider Funds or the Debt Service Reserve Account or the Tax Exempt Debt
Service Reserve Account or any other account or fund created hereunder, the
Disbursement Agent shall provide the Partnership and the Independent Engineer
with monthly statements showing the amount of all receipts, the net investment
income or gain received and collected, all disbursements and the amount then
available in each Account and the LOC Provider Funds, the Qualifying Cost
Subaccount, the DSR LOC Provider Funds and each other account or fund created
hereunder.
(c) The Partnership shall (i) calculate or cause to be
calculated the Rebate Amount in respect of monies held in the Qualifying Cost
Subaccount, the Tax Exempt Debt Service Reserve Account and the Tax Exempt Bond
Debt Service Fund (to the extent required) and shall pay to the federal
government at such times as required under the Code an amount equal to the
Rebate Amount in respect of monies held in the Qualifying Cost Subaccount, the
Tax Exempt Debt Service Reserve Account and the Tax Exempt Debt Service Fund and
(ii) in respect of the monies held in the Qualifying Cost Subaccount, the Tax
Exempt Debt Service Reserve Account and the Tax Exempt Debt Service Fund, comply
with the requirements of the Code relating to the investment restrictions on the
proceeds (as defined in the Code) of the Tax Exempt Bonds held in the Qualifying
Cost Subaccount, the Tax Exempt Debt Service Reserve Account and the Tax Exempt
Debt Service Fund.
Section 5.2 Valuation and Sale of Investments. (a) Obligations
purchased as an investment of monies in any Account, LOC Provider Fund, DSR LOC
Provider Fund, the Debt Service Reserve Account, the Tax Exempt Debt Service
Reserve Account or any other separate account or fund created under the
provisions of this Disbursement Agreement shall be deemed at all times to be a
part of such account or fund and, unless otherwise specified herein, any profit
realized from the liquidation of such investment shall be credited to such
Account, LOC Provider Fund, DSR LOC Provider Fund, Debt Service Reserve Account,
Tax Exempt Debt Service Reserve Account or such other separate account or fund,
and any loss resulting from the liquidation of such investment shall be charged
to the respective Account, LOC Provider Fund, DSR LOC Provider Fund, Debt
Service Reserve Account, Tax Exempt Debt Service Reserve Account or such other
separate account or fund.
(b) The Disbursement Agent shall determine the value of all
investments in any of the LOC Provider Funds on the Completion Date and
thereafter on the last Business Day of each month with any deficit in any LOC
Provider Fund balance to be funded from Project Revenues in accordance with
Section 3.10 hereof and any investments valued in excess of the amounts required
to be on deposit in an LOC Provider Fund shall be liquidated and the amount of
such excess shall be deposited in the Revenue Account.
(c) The Disbursement Agent shall determine the value of all
investments in any of the DSR LOC Provider Funds on the Completion Date and
thereafter on the last Business Day of each month with any deficit in any DSR
LOC Provider Fund balance to be funded from Project Revenues in accordance with
Section 3.10 hereof and any investments valued in excess of the amounts required
to be on deposit in a DSR LOC Provider Fund shall be liquidated and the amount
of such excess shall be deposited in the Revenue Account.
(d) The Disbursement Agent shall determine the value of all
investments in any of the Accounts on the Completion Date and thereafter on the
last Business Day of each month with any deficit in any Account balance to be
funded from Project Revenues in accordance with Section 3.10 hereof and any
investments valued in excess of the amounts required to be on deposit in an
Account shall be liquidated and the amount of such excess shall be deposited in
the Revenue Account.
(e) The Disbursement Agent shall determine the value of all
investments in the Debt Service Reserve Account and the Tax Exempt Debt Service
Reserve Account in accordance with Section 3.14 of this Disbursement Agreement.
(f) In computing the amount in any Account, LOC Provider Fund,
DSR LOC Provider Funds, Debt Service Reserve Account, Tax Exempt Debt Service
Reserve Account or other separate account or fund created under the provisions
of this Disbursement Agreement for any purpose provided in this Disbursement
Agreement, obligations purchased as an investment of monies therein shall be
valued at the market value of such obligations, exclusive of accrued interest.
ARTICLE VI.
THE DISBURSEMENT AGENT
Section 6.1 Actions Hereunder. (a) The Disbursement Agent is
hereby authorized and directed to make the deposits, transfers and disbursements
of funds prescribed by this Disbursement Agreement. No deposits, transfers or
disbursements of funds received and held by it pursuant to this Disbursement
Agreement shall be made otherwise than as provided by this Disbursement
Agreement.
(b) The Senior Secured Parties hereby designate and appoint
the Disbursement Agent to act as the security agent for the Senior Secured
Parties in connection with the Equity Contribution Agreement and the GE Capital
Guaranty Agreement. Each of the Senior Secured Parties hereby authorizes the
Disbursement Agent, as the security agent for the Senior Secured Parties, to
execute the Equity Contribution Agreement and the GE Capital Guaranty Agreement
and take such actions on behalf of the Senior Secured Parties under the
provisions thereof and of this Disbursement Agreement and to exercise such
powers and perform such duties as are expressly granted to the Disbursement
Agent by the terms thereof and of this Disbursement Agreement, together with
such other powers as are reasonably incidental thereto. The Disbursement Agent
shall give notice to the Senior Secured Parties and the Collateral Agent of any
action taken under the Equity Contribution Agreement and the GE Capital Guaranty
Agreement; such notice shall be given prior to the taking of such action unless
the Disbursement Agent determines that to do so would be detrimental to the
interest of the Senior Secured Parties, in which event such notice shall be
given promptly after the taking of such action.
(c) The Disbursement Agent shall be entitled to conclusively
rely upon and to act and refrain from acting in reliance upon any written
requisition, notice, request, consent, certificate, order, affidavit, letter,
telegram or other document furnished to it hereunder and reasonably believed by
it to be genuine and to have been signed or sent by the purported proper party;
and the Disbursement Agent shall not be liable for anything it may do or refrain
from doing in connection with its duties or obligations hereunder except as a
result of its own negligence or willful misconduct. The Disbursement Agent shall
not be under any duty to give the funds deposited with it hereunder any greater
degree of care than it gives its own property and shall not be required to
invest any funds held hereunder except as directed in accordance with this
Disbursement Agreement. This Disbursement Agreement sets forth all of the duties
of the Disbursement Agent and no implied duties or obligations shall be read
into this Disbursement Agreement against the Disbursement Agent. The
Disbursement Agent may consult with counsel
and shall not be liable for anything it may do or refrain from doing in good
faith in accordance with the written advice of such counsel so long as the
Disbursement Agent shall have exercised reasonable care in selecting such
counsel.
Section 6.2 Compensation. The Partnership shall pay to the
Disbursement Agent, as compensation for its services hereunder, an annual fee
mutually agreed upon by the Partnership, the Senior Secured Parties and the
Disbursement Agent and set forth in a letter signed by each of them, and shall
reimburse the Disbursement Agent for its reasonable out-of pocket costs and
expenses (including the reasonable fees and expenses of its counsel) incurred by
it in the performance of its obligations hereunder.
Section 6.3 Successors. Any corporation or association into
which the Disbursement Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, shall be and become the successor Disbursement
Agent hereunder, without the execution or filing of any agreement, document or
instrument or any further act, deed or conveyance on the part of the parties
hereto, anything herein to the contrary notwithstanding.
Section 6.4 Resignation. The Disbursement Agent may at any
time resign by giving written notice to the Partnership and the Senior Secured
Parties. Such resignation shall not take effect until the appointment of a
successor Disbursement Agent. The Disbursement Agent may be removed by the
Required Senior Creditors at any time, with the reasonable consent of the
Partnership, by an instrument in writing delivered to the Disbursement Agent and
the Partnership, by the Senior Secured Parties.
Section 6.5 Appointment of Successor. In case the Disbursement
Agent shall give notice of its resignation or be removed, or shall be dissolved,
or shall be in the course of dissolution or liquidation, or shall otherwise be
or become incapable of acting as Disbursement Agent, or in case it shall be
taken under the control of any public officer or officers, or of a receiver or
similar officer appointed by a court, a successor (which shall be reasonably
satisfactory to the Partnership) shall be appointed by the Senior Secured
Parties. Written notice of such appointment shall immediately be given by the
Senior Secured Parties to the Partnership. Any successor Disbursement Agent
shall execute and deliver an instrument accepting such appointment and thereupon
such successor, without any further act, deed or conveyance, shall become fully
vested with all rights, powers, duties and obligations of its predecessor, with
like effect as if originally named as Disbursement Agent, but such predecessor
shall nevertheless, on the written request of the Senior Secured Parties or of
the successor, execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in such
successor all rights, powers, duties and obligations of such predecessor. If no
successor Disbursement Agent has accepted appointment in the manner provided
above within sixty (60) days after the Disbursement Agent has given notice of
its resignation as provided in Section 6.4, the Disbursement Agent may petition
any court of competent jurisdiction for the appointment of a temporary successor
Disbursement Agent; provided, however, that any Disbursement Agent so appointed
shall immediately and without further act be superseded by a Disbursement Agent
appointed by the Senior Secured Parties as provided in this Section 6.5.
Section 6.6 Indemnification. Each of the Partnership and the
Company hereby assumes liability for and agrees to indemnify, protect, save and
keep harmless the Disbursement Agent and its respective successors, assigns,
agents and servants, from and against any and all claims, liabilities, losses,
costs and expenses (including reasonable legal fees) that may be imposed on,
incurred by, or asserted against, at any time, the Disbursement Agent (whether
or not also indemnified against by any other Person under any contract,
agreement, document or instrument) and in any way relating to or arising out of
the execution and delivery of this Disbursement Agreement, the establishment of
the Accounts, the acceptance of deposits, the mating of investments, the
retention of money and securities or the proceeds thereof and any payment,
transfer, deposit, disbursement or other application of money or securities by
the Disbursement Agent in accordance with the provisions of this Disbursement
Agreement, or as may arise by reason of any act, omission or error of the
Disbursement Agent made in good faith in the proper conduct of its duties and
obligations; except that neither the Partnership nor the Company shall be
required to indemnify, protect, save and keep harmless the Disbursement Agent
against its own negligence or willful misconduct. The indemnities contained in
this Section 6.6 shall survive the termination of this Disbursement Agreement.
ARTICLE VII.
TERMINATION
Section 7.1 Termination. This Disbursement Agreement shall
terminate December 31, 2025 unless a "Default" or an "Event of Default" under
any of the Financing Documents shall have occurred and be continuing at such
time, in which event this Disbursement Agreement shall terminate on the date no
such Default or Event of Default is continuing. Upon such termination, the
Senior Secured Parties, at the request and expense of the Partnership, will
execute and deliver the proper instruments acknowledging the termination of this
Disbursement Agreement, and will, and will direct the Disbursement Agent to,
duly assign, transfer and deliver to the Partnership, as may be requested in a
written notice from the Partnership, and without recourse and without any
representation or warranty, all monies on deposit in any of the accounts created
hereunder and in possession of the Disbursement Agent, to the extent such monies
have not theretofore been otherwise applied or released pursuant to this
Disbursement Agreement.
ARTICLE VIII.
GENERAL PROVISIONS
Section 8.1 Severability. Any term or provision of this
Disbursement Agreement which is invalid, illegal, prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality, prohibition or unenforceability without
invalidating the remaining terms and provisions hereof, and any such invalidity,
illegality, prohibition or unenforceability in any jurisdiction shall not
invalidate or render prohibited or unenforceable such term or provision in any
other jurisdiction.
Section 8.2 Separate Counterparts. This Disbursement Agreement
may be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 8.3 Benefit of Agreement. All covenants, agreements,
conditions, obligations, liabilities, terms and provisions contained herein
shall be binding upon, and inure to the benefit of, the parties and their
respective successors and assigns. Nothing in this Disbursement Agreement,
whether express or implied, shall be construed to give any Person other than the
parties hereto any legal, equitable or other right, privilege, remedy, claim or
demand to, under or in respect of this Disbursement Agreement or any of the
Accounts maintained hereunder.
Section 8.4 Amendments, Waivers, etc. Except for amendments
provided for in Section 11.9 of the Principal Indenture, no amendment or
modification of any provision of this Disbursement Agreement shall be effective
unless (i) approved in writing by the Required Senior Creditors, (ii) the LOC
Provider and the Debt Service Reserve Letter of Credit Provider shall have
received written notice of such amendment or modification at least 15 days prior
to the effectiveness thereof, and (iii) if such amendment or modification would
reasonably be expected to have a material effect on the LOC Provider, or the
Debt Service Reserve Letter of Credit Provider, the LOC Provider or the Debt
Service Reserve Letter of Credit Provider, as the case may be, shall have
approved such amendment (which approval shall not be unreasonably withheld);
provided, however, that no consent of (nor, for the avoidance of doubt, any
Senior Creditor Certificate from) the Required Senior Creditors pursuant to
clause (i) above (or, for the avoidance of doubt, any consent of the Trustee,
the Tax Exempt Trustee, or the ▇▇▇) shall be required for purposes of any
amendment or modification of any provision of this Disbursement Agreement to the
extent that (1) such amendment or modification concerns the termination,
amendment, modification, or replacement of any of the Debt Service Reserve LOC
Reimbursement Agreement, the Reimbursement Agreement, or the Working Capital
Facility to reflect a substitute provider(s) of any such facility and (2) such
amendment or modification is permitted under Section 5.14(b) of the Indenture or
Section 6.19(b) of the Authority Loan Agreement, as applicable, without the
consent of any such Person, and in such case the Collateral Agent and the
Disbursement Agent may conclusively rely on the certificates of the Partnership
given pursuant to such Sections 5.14(b) and 6.19(b) and shall enter into such
amendment or modification of this Disbursement Agreement. Notwithstanding the
foregoing, no such amendment or modification shall affect the rights, duties,
obligations or liabilities of the Disbursement Agent without the written consent
of the Disbursement Agent.
Section 8.5 Headings: Table of Contents. The headings of the
various Sections herein, and the table of contents hereof, are for convenience
of reference only and shall not define or limit or in any way affect the
construction or application of any of the terms or provisions hereof.
Section 8.6 Governing Law. THIS DISBURSEMENT AGREEMENT,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE OF THIS
DISBURSEMENT AGREEMENT, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 8.7 Notices. All notices and other communications
provided for hereunder shall be given as provided in Section 17 of the
Intercreditor Agreement.
Section 8.8 Nonrecourse Liability. Satisfaction of the
obligations of the Partnership and the Company under this Disbursement Agreement
shall be had solely from the assets of the Partnership and the Company. The
liability of the Partners with respect to the obligations of the Partnership and
the Company under this Disbursement Agreement is limited to any unpaid capital
contributions required by the Equity Contribution Agreement, and no recourse
shall be held in the event of any non-performance by the Partnership or the
Company of any such obligations to (i) any assets or properties of the Partners
of the Partnership other than their respective interests in the Collateral and
other than with respect to any unpaid capital contributions required by the
Equity Contribution Agreement, or (ii) any Partner or any Affiliate of any
Partner or the Partnership or the Company or any incorporators or any of the
officers, directors, employees or stockholders of the Partners or the
Partnership or the Company or any Affiliate of any Partner or the Partnership or
the Company, and no judgment for any deficiency upon the obligations of the
Partnership under the Disbursement Agreement shall be obtainable by the
Disbursement Agent, the Collateral Agent or any Senior Secured Party against any
Partner or any Affiliate of the Partnership or any Partner or any incorporator,
stockholder, officer, employee or director, past, present or future, of any
Partner or any Affiliate of any Partner or the Partnership.
Section 8.9 Termination of Existing Providers. Each of the
parties hereto agrees that as of the date hereof, all obligations and
commitments (i) of Credit Suisse First Boston (as successor to Credit Suisse)
acting through its New York Branch as LOC Provider and Working Capital Provider
arising under the Original Disbursement Agreement are terminated and are of no
further force and effect and (ii) of BNP Paribas (as successor to Banque
Nationale de Paris) as Debt Service Reserve Letter of Credit Provider arising
under the Original Disbursement Agreement are terminated and of no further force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Disbursement Agreement. to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
INDIANTOWN COGENERATION,
FUNDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as
Tax Exempt Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Agent
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Agent
THE BANK OF NEW YORK, as
Disbursement Agent
By: ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Agent
CREDIT LYONNAIS NEW YORK BRANCH, as
LOC Provider
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as
Working Capital Provider
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as
Debt Service Reserve Letter of Credit
Provider
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as
Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
ACKNOWLEDGED AND AGREED SOLELY FOR
PURPOSES OF SECTION 8.9 HEREOF as of
the date first above written:
CREDIT SUISSE FIRST BOSTON
(as successor to CREDIT SUISSE)
acting through its New York Branch,
as LOC Provider and Working Capital
Provider under the Original
Disbursement Agreement
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
BNP PARIBAS (as successor to BANQUE
NATIONALE DE PARIS), as Debt Service
Reserve Letter of Credit Provider
under the Original Disbursement
Agreement
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
EXHIBIT A
Requisition No. _______
Date: _______
FORM OF REQUISITION
NATIONSBANK OF FLORIDA, N.A.
One Financial ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
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Reference is hereby made to that certain Disbursement
Agreement, dated as of November 1, 1994, among Indiantown Cogeneration, L.P.
(the "Partnership"), Indiantown Cogeneration Funding Corporation, NationsBank of
Florida, N.A., as Trustee, NationsBank of Florida, N.A., as Tax Exempt Trustee,
Credit Suisse, as LOC Provider, Credit Suisse, as Working Capital Provider,
Banque Nationale de Paris, as Debt Service Reserve Letter of Credit Provider,
Bankers Trust Company, as Collateral Agent, ▇▇▇▇▇▇ County Industrial Development
Authority, and NationsBank of Florida, N.A., as Disbursement Agent (the
"Disbursement Agent") (as the same may be amended, modified or supplemented from
time to time, the "Disbursement Agreement"). Each capitalized term used herein
and not otherwise defined herein shall have the meaning assigned to it in the
Disbursement Agreement.
The Partnership hereby requests, pursuant to Section 3.4(b) of
the Disbursement Agreement, that the Disbursement Agent make a disbursement from
the Construction Account in the aggregate amount of $ _________ (the "Requested
Disbursement").
Of such Requested Disbursement, $ _________ shall be disbursed
from the Construction Account, $ _________ shall be disbursed from the
Qualifying Cost Subaccount and $ _________, shall be disbursed from funds
transferred by Equity Lender.
The date that the Requested Disbursement is to be made is
_________. All monies released pursuant to this Requisition shall be secured by
the Security Documents, including, without limitation, the Mortgage.
Proceeds of the Requested Disbursement shall be used as
follows:
Cash to be Paid to Contractor $ ______________
Cash to be Paid to the Senior Secured Parties $ ______________
Cash to be Paid to TIFD in respect of the Equity
Loan Agreement $ ______________
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Cash to be Paid to Trustee for deposit in the
Securities Construction Interest Account $ ______________
Cash to be Paid to Tax Exempt Trustee for
Deposit in the Tax Exempt Bond Construction
Interest Account $ ______________
Cash for Other Project Costs $ ______________
Total Funds This Requisition $ ______________
Total Tax Exempt Funding to Date $ ______________
Total Equity Funding to Date $ ______________
Total Securities Funding to Date $ ______________
Total Funding to Date $ ______________
Cash disbursement instructions for the Requested Disbursement
are set forth in Annex 1 hereto.
The undersigned, an Authorized Representative of Partnership
hereby certifies, in connection with this Requisition, that:
(a) the proceeds of the Requested Disbursement will be used
solely to pay Project Costs;
(b) all work performed to date has been satisfactorily
performed in a good and workmanlike manner and according to the Construction
Contract;
(c) undisbursed funds in the Construction Account, together
with funds available from the Equity Loan Agreement or other available sources,
are reasonably expected to be sufficient to complete the Facility according to
the Construction Contract by the Date Certain;
(d) no Event of Default under the Indenture has occurred and
is continuing;
(e) all proceeds of prior requisitions have been expended or
applied pursuant to provisions of the Indenture and the Approved Project
Construction Budget and the items for which amounts are requested in the subject
requisition have not been the basis for a previous requisition;
(f) required insurance, material Governmental Approvals, and
necessary Project Contracts are in full force and effect; and
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(g) the representations set forth in Sections 3.1, 3.2, 3.3,
3.4, 3.5, 3.6, 3.7 and 3.9 of the Indenture (including the same as incorporated
with modifications into the Debt Service Reserve LOC Reimbursement Agreement,
the Reimbursement Agreement and the Working Capital Facility) are true and
correct in all material respects.
This Requisition is accompanied by the following items:
(a) if any amount of the Requested Disbursement is to be
applied to any payment under the Construction Contract, a payment request under
the Construction Contract (which request is attached hereto), approved by the
Partnership;
(b) if any amount of the Requested Disbursement is to be
applied to the payment of a Project Cost other than the payment of interest,
fees, expenses or other costs required to be paid by the Partnership under the
Disbursement Agreement or the Construction Contract, a statement of the
Partnership detailing such amounts and describing the services rendered,
together with attached bills for individual Project Costs in excess of $50,000,
except for estimated amounts which represent a Project Cost which as of the date
of this Requisition is not due and payable but which will become due and payable
prior to the next scheduled requested disbursement ("Estimated Project Costs")
and for which bills for such Estimated Project costs will be attached to the
next Requisition for individual Project Costs in excess of $50,000; and
(c) bills for any Project Costs required to be attached to
this Requisition pursuant to clause (b) above which as of the date of the last
Requisition were Estimated Project Costs.
A certificate of the Independent Engineer, substantially in
the form of Exhibit A hereto, will be submitted to the Disbursement Agent by the
time required under the Disbursement Agreement.
The Partnership hereby certifies that all conditions precedent
to the Requested Disbursement as set forth in the Disbursement Agreement have
been satisfied.
With respect to monies to be withdrawn from the Qualifying
Cost Subaccount of the Construction Account, the Partnership does hereby
represent and certify to the Authority and the Disbursement Agent that:
(1) Prior to the date hereof, the Partnership
has expended amounts or estimates to expend amounts within forty-five
(45) days from the date hereof equal to an aggregate of $_______, as
costs in connection with the Tax Exempt Project, all in accordance with
Schedule I attached hereto and made a part hereof.
(2) Each amount to be paid is a Cost of the Tax
Exempt Project, has been properly incurred or is estimated to be
properly incurred within forty-five (45) days from the date hereof by
the Partnership, is a Proper Charge (as defined in the Tax Exempt
Indenture) against the Qualifying Cost Subaccount of the Construction
Account, is due and unpaid or unreimbursed or will be due and unpaid or
unreimbursed within such forty-five (45) day period, has not been the
basis of any previously paid requisition, has accrued or will accrue
within such forty-five (45) day period under the relevant agreement and
the
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amount to be paid does not exceed the obligation on account of which
the payment is made.
(3) Payment of this requisition will not cause
the statements contained in the Authority Loan Agreement to become
untrue, and the amounts remaining in the Qualifying Cost Subaccount of
the Construction Account after payment of this requisition, together
with amounts available to the Partnership under the Indenture or
otherwise, will be sufficient to complete the acquisition, construction
and equipping of the Tax Exempt Project.
(4) No-default or Event of Default has occurred
and is continuing under the Authority Loan Agreement and each
representation and warranty of the Partnership under the Authority Loan
Agreement is true and correct in all material respects as of the date
of such requisition.
(5) No amount to be requisitioned, if the
payment is a reimbursement to the Partnership for costs or expenses
incurred by reason of work performed by officers or employees of the
Partnership or any of its affiliates or related persons (within the
meaning of Section 144(a)(3) of the Code), exceeds the actual cost
thereof to the Partnership or any of its affiliates.
(6) This requisition contains no request for
payment on account of any portion of such obligation which the
Partnership is, as of the date of such requisition, entitled to retain
under any retained percentage agreement.
(7) In the event that a previous requisition was
submitted based on estimated costs, $_______ of such moneys have been
expended with respect to such costs and the proofs of payment relating
thereto for items each in an amount greater than $50,000 are attached.
(8) The Partnership hereby certifies that
insofar as the amount covered by the above requisition includes
payments to be made for work, labor, services, materials, supplies
and/or equipment in connection with the acquisition, construction,
renovation and installation of the Tax Exempt Project, such labor
and/or services were actually accomplished or performed in a
satisfactory manner or will be accomplished or performed within
forty-five (45) days from the date hereof and such material, supplies
and/or equipment were ordered or will be ordered within forty-five (45)
days from the date hereof and the payment therefor is due or will be
due within forty-five (45) days of the date hereof, the material,
supplies and/or equipment were actually used in or about the
construction or will be used in or about the construction, were
installed or will be installed within forty-five (45) days of the date
hereof or were delivered or will be delivered within forty-five (45)
days from the date hereof at the site of the Tax Exempt Project (or in
the case of fabricated materials, at such other place of storage as the
Partnership has approved) for that purpose and that the item of
equipment with respect to which any payment is requested constitutes
Tax Exempt Project equipment.
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INDIANTOWN COGENERATION, L.P.
By: ____________________________________
Name: __________________________________
Title: _________________________________
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EXHIBIT B
INDIANTOWN COGENERATION, L.P.
Exhibit A to Requisition
STONE & ▇▇▇▇▇▇▇ MANAGEMENT CONSULTANTS, INC., as the
Independent Engineer, hereby certifies, in connection with the Requisition
(Requisition No. _____ of Indiantown Cogeneration, L.P., a Delaware limited
partnership ("Partnership"), dated ______ 199___, that:
(1) the Facility is likely to achieve the
Commercial Operation Date by the Date Certain[ ] [; and]
[Include items (2) and (3) if any amount of the
Requested Disbursement is to be applied to any
payment under the Construction Contract.]
(2) the Work (as defined in the Construction
Contract) required to be completed by the date hereof has actually been
completed; and
(3) Contractor has made satisfactory progress in
accordance with the Milestone Schedule (as defined in the Construction
Contract).
Each capitalized term used herein and not otherwise
defined herein shall have the meaning assigned to it in the
Disbursement Agreement.
STONE & ▇▇▇▇▇▇▇ MANAGEMENT CONSULTANTS, INC.
By: ________________________________________
Name:
Title:
Dated: _____________________________________
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EXHIBIT C
Requisition No.___________
Date: ____________________
FORM OF REQUISITION/DISBURSEMENT FROM RESTORATION ACCOUNT
THE BANK OF NEW YORK
One Financial ▇▇▇▇▇
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Reference is hereby made to that certain Amended and Restated
Disbursement Agreement, dated as of October 10, 2003, among Indiantown
Cogeneration, L.P. (the "Partnership"), Indiantown Cogeneration Funding
Corporation, The Bank of New York, as Trustee, The Bank of New York, as Tax
Exempt Trustee, Credit Lyonnais New York Branch, as LOC Provider, Credit
Lyonnais New York Branch, as Working Capital Provider, Credit Lyonnais New York
Branch, as Debt Service Reserve Letter of Credit Provider, Deutsche Bank Trust
Company Americas, as Collateral Agent, ▇▇▇▇▇▇ County Industrial Development
Authority and The Bank of New York, as Disbursement Agent (the "Disbursement
Agent") (as the same may be amended, modified or supplemented from time to time,
the "Disbursement Agreement'). Each capitalized term used herein and not
otherwise defined herein shall have the meaning assigned to it in the
Disbursement Agreement
The Partnership hereby requests, pursuant to Section 3.7(b) of
the Disbursement Agreement, that the Disbursement Agent make a disbursement from
the Restoration Account in the aggregate amount of $___________ (the "Requested
Disbursement").
The date that the Requested Disbursement is to be made is,
___________. Cash disbursement instructions for the Requested Disbursement are
set forth in Annex 1 hereto.
All monies released from the Restoration Account pursuant to
this Requisition shall be secured by the Security Documents, including, without
limitation, the Mortgage.
The undersigned, an Authorized Representative of the
Partnership hereby certifies, in connection with this Requisition, that the
proceeds of the Requested Disbursement will be used solely for the payment (or
reimbursement, to the extent the same have been paid or satisfied by the
Partnership) of the costs of repair and replacement of the
Project or portion thereof that has been affected by an Event
of Loss or an Event of Eminent Domain.
The Requested Disbursement, together with all other such
requisitions in the current Fiscal Year, total $_______________ in the aggregate
and the approval of the Independent Engineer hereto [is/is not] required.
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The Partnership hereby certifies that all conditions precedent
to the Requested Disbursement as set forth in the Disbursement Agreement have
been satisfied.
INDIANTOWN COGENERATION, L.P.
By: __________________________________
Name: ________________________________
Title: _______________________________
Dated: _______________________________
Approved this ________ day of ____________, _________(1)
STONE & ▇▇▇▇▇▇▇ MANAGEMENT CONSULTANTS, INC.
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
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(1) Required only if aggregate amount of disbursements requested in any one
Fiscal Year exceeds $5,000,000.
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EXHIBIT D
Date: ____________________
FORM OF TRANSFER CERTIFICATE,
The Bank of New York
Trust Division
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Reference is hereby made to that certain Amended and Restated
Disbursement Agreement, dated as of October 10, 2003, among Indiantown
Cogeneration, L.P. (the "Partnership"), Indiantown Cogeneration Funding
Corporation, The Bank of New York, as Trustee, The Bank of New York, as Tax
Exempt Trustee, Credit Lyonnais New York Branch, as LOC Provider, Credit
Lyonnais New York Branch, as Working Capital Provider, Credit Lyonnais New York
Branch, as Debt Service Reserve Letter of Credit Provider, Deutsche Bank Trust
Company Americas, as Collateral Agent, ▇▇▇▇▇▇ County Industrial Development
Authority and The Bank of New York, as Disbursement Agent (the "Disbursement
Agent") (as the same may be amended, modified or supplemented from time to time,
the "Disbursement Agreement"). Each capitalized term used herein and not
otherwise defined herein shall have the meaning assigned to it in the
Disbursement Agreement.
The Partnership hereby directs, pursuant to Section 3.10 of
the Disbursement Agreement, that the following amounts be transferred by the
Disbursement Agent from the Revenue Account:
1) $_________, to the Working Capital Provider, as the
amount payable for principal of, interest on or fees
or other charges relating to the Working Capital
Facility;
2) $_________, to the Partnership for payment of
Operation and Maintenance Costs in accordance with
the approved Annual Operating Budget;
a) $_________, to the Local Bank Account;
b) $_________, to the Citibank Disbursement
Account;
3) $_________, to the Trustee, as the amount due and
payable to the Trustee as fees, costs and expenses
owed to the Trustee under the Indenture;
4) $_________, to the Tax Exempt Trustee, as the amount
due and payable to the Tax Exempt Trustee as fees,
costs and expenses owed to the Tax Exempt Trustee
under the Tax Exempt Indenture;
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5) $_________, to the Disbursement Agent, as the amount
due and payable to the Disbursement Agent as fees,
costs and expenses owed to the Disbursement Agent
under the Disbursement Agreement;
6) $_________, to the Collateral Agent, as the amount
due and payable to the Collateral Agent as fees,
costs and expenses owed to the Collateral Agent under
the Intercreditor Agreement;
7) $_________, to the LOC Provider, as the amount due
and payable to the LOC Provider as administrative
fees, costs and expenses owed to the LOC Provider
under the Reimbursement Agreement;
8) $_________, to the Debt Service Reserve Letter of
Credit Provider, as the amount due and payable to the
Debt Service Reserve Letter of Credit Provider as
administrative fees, costs and expenses owed to the
Debt Service Reserve Letter of Credit Provider under
the Debt Service Reserve LOC Reimbursement Agreement;
9) $_________, to the Trustee for deposit in the
Securities Account;
10) $_________, to the Tax Exempt Trustee for deposit in
the Tax Exempt Bond Debt Service Fund;
11) $_________, to the LOC Provider as interest on LOC
Loans;
12) $_________, to the LOC Reimbursement Fund with
respect to principal on LOC Loans;
13) $_________, to the LOC Reimbursement Fund with
respect to commitment, letter of credit and fronting
fees;
14) $_________, to the Debt Service Reserve Letter of
Credit Provider as interest on Debt Service Reserve
LOC Loans;
15) $_________, to the Debt Service Reserve LOC
Reimbursement Fund with respect to commitment, letter
of credit and fronting fees;
16) $_________, to the Debt Service Reserve Letter of
Credit Provider with respect to interest on Reserve
Bonds;
16A) $________, to the Debt Service Reserve LOC
Reimbursement Fund with respect to principal on
Reserve Bonds;
17) $_________, to the Debt Service Reserve Letter of
Credit Provider with respect to the outstanding
principal amount of any unreimbursed drawings or
loans resulting from unreimbursed drawings on the
Debt Service Reserve Letter of Credit;
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18) $_________, to the Disbursement Agent for deposit in
the Debt Service Reserve Account or the Tax Exempt
Debt Service Reserve Account, as necessary to
replenish any amounts previously withdrawn therefrom
and not replaced;
19) $_________, to the Disbursement Agent to fund the
Debt Service Reserve Account and the Tax Exempt Debt
Service Reserve Account in an aggregate amount up to
the Debt Service Reserve Account Required Balance;
19A) $_________, to the LOC Provider with respect to the
outstanding principal amount of any unreimbursed
drawings under any Letter of Credit or any
outstanding LOC Loans;
19B) $_________, to the Disbursement Agent to fund the ESA
LOC Collateralization Fund and/or the QF LOC
Collateralization Fund, as applicable;
20) $_________, to the Subordinated Debt Account;
21) [Reserved];
22) $_________, to the Operator;
23) $_________, to the Manager;
24) $_________, to the Disbursement Agent for deposit in
the Debt Service Reserve Account or the Tax Exempt
Debt Service Reserve Account, until such accounts
have deposited therein in the aggregate the Debt
Service Reserve Account Maximum Balance;
25) [Reserved];
26) $_________, to the Partnership as an amount that will
be used against the purchase of Securities by the
Partnership; and
27) $_________, to the Partnership Distribution Account.
28) $_________, to the Tax Exempt Trustee for deposit in
the Rebate Fund.
INDIANTOWN COGENERATION, L.P.
By: _____________________________
Name: ___________________________
Title: __________________________
Dated: __________________________
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