EXHIBIT 10.12
DEPOSIT AND DISBURSEMENT AGREEMENT
among
PANDA-▇▇▇▇▇▇▇▇ FUNDING CORPORATION,
PANDA-ROSEMARY, L.P.,
FLEET NATIONAL BANK,
as Collateral Agent
and
FLEET NATIONAL BANK,
as Depositary Agent
Dated as of July 31, 1996
EXHIBIT B RESTORATION FUND REQUISITION
DEPOSIT AND DISBURSEMENT AGREEMENT (this "Depositary
Agreement"), dated as of July 31, 1996, among PANDA-▇▇▇▇▇▇▇▇
FUNDING CORPORATION, a Delaware corporation (the "Company"),
PANDA-ROSEMARY, L.P., a Delaware limited partnership (the
"Partnership"), FLEET NATIONAL BANK, a national banking
association established under the laws of the United States, in
its capacity as collateral agent (together with its successors
and permitted assigns in such capacity, the "Collateral Agent"),
and FLEET NATIONAL BANK, in its capacity as depositary agent
(together with its successors and permitted assigns in such
capacity, the "Depositary Agent").
W I T N E S S E T H:
WHEREAS, the Partnership owns a natural gas-fired 180
megawatt electrical generating facility in Roanoke Rapids, North
Carolina (the "Project");
WHEREAS, the Company is a wholly-owned subsidiary of the
Partnership, formed for the purposes of facilitating the
refinancing of the Project;
WHEREAS, the Company has duly authorized the creation and
issuance of its bonds to be issued in one or more series from
time to time (the "Bonds") pursuant to the Trust Indenture, dated
as of July 31, 1996 (the "Indenture"), among the Company, the
Partnership and Fleet National Bank, in its capacity as trustee
(together with its successors and permitted assigns in such
capacity, the "Trustee");
WHEREAS, the Company will lend all of the proceeds of the
sale of the Bonds of the initial series to the Partnership to
defease another indenture pursuant to which bonds were issued to
finance the cost of constructing the Project and for the purpose
of, among other things, funding certain reserve funds, redeeming
the limited partnership interests in the Partnership owned by
Ford Motor Credit Company, and paying closing costs;
WHEREAS, all of the Company's obligations under the Bonds
will be unconditionally guaranteed by the Partnership under one
or more guarantees (the "Partnership Guarantees"), which,
together with the above-mentioned loans, will be secured, in
accordance with the Collateral Documents referred to in the
Indenture, by substantially all the assets of the Partnership and
certain other collateral;
WHEREAS, the Partnership may finance certain working capital
requirements of the Project and intends to arrange for the
issuance of letters of credit as may be required by the Project
pursuant to a Credit Bank Working Capital Agreement and/or a
Credit Bank Reimbursement Agreement (as each such term is defined
in the Indenture), which may also be secured by substantially all
the assets of the Partnership and certain other collateral;
WHEREAS, in that connection, pursuant to Section 13.4 of the
VEPCO Power Purchase Agreement referred to in the Indenture, the
Partnership is required to post a letter of credit in the amount
of $4,950,000 for the benefit of Virginia Electric and Power
Company and the L/C Issuer referred to below has agreed to
provide such letter of credit for the account of the Partnership
under a Credit Bank Reimbursement Agreement;
WHEREAS, the Partnership and the Company may incur
additional debt permitted by Sections 6.16(a)(v) and 6.16(b)(ii)
of the Indenture ("Additional Permitted Debt"), to finance
certain modifications and enhancements to the Project in the
future and may incur certain other Financing Liabilities (as
defined in the Intercreditor Agreement, referred to below), that
may be secured in accordance with the Collateral Documents by
substantially all the assets of the Partnership and certain other
collateral;
WHEREAS, the Secured Parties (as defined below), the
Company, the Partnership and the Collateral Agent have entered
into a Collateral Agency and Intercreditor Agreement, dated as of
July 31, 1996 (the "Intercreditor Agreement"), appointing the
Collateral Agent as collateral agent and setting forth certain
rights and remedies of the Collateral Agent acting on behalf of
the Secured Parties with respect to the Collateral, including,
without limitation, the Funds created herein; and
WHEREAS, the Collateral Agent, the Partnership and the
Company desire to appoint the Depositary Agent as depositary
agent to hold and administer money deposited in the various Funds
established pursuant to this Depositary Agreement and funded
with, among other things, the transfer of moneys held under the
Existing Reimbursement Agreement referred to below, the proceeds
of the issuance of the Bonds and the related loans, proceeds of
Additional Permitted Debt, proceeds under the Credit Bank Working
Capital Agreement, proceeds of insurance and condemnation, and
revenues generated by the Project.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Section I.1 Capitalized Terms. Each capitalized term used
herein and not otherwise defined herein shall have the definition
assigned to such term in the Indenture, as such definition exists
on the Closing Date, or in the Intercreditor Agreement.
Section I.2 Definitions; Construction. For all purposes
of this Depositary Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(b) all references in this Depositary Agreement to
designated "Articles," "Sections" and other subdivisions are
to the designated Articles, Sections and other subdivisions
of this Depositary Agreement;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Depositary
Agreement as a whole and not to any particular Article,
Section or other subdivision;
(d) unless otherwise expressly specified, any
agreement, contract or document defined or referred to
herein shall mean such agreement, contract or document
(including any clarification letters relating thereto) as in
effect as of the date hereof, as the same may thereafter be
amended, supplemented or otherwise modified from time to
time in accordance with the terms of the Indenture, the
other Project Documents and any other Financing Documents
and including any agreement, contract or document in
substitution or replacement of any of the foregoing;
(e) unless the context clearly intends to the
contrary, pronouns having a masculine or feminine gender
shall be deemed to include the other; and
(f) any reference to any Person shall include its
successors and assigns.
"Additional Permitted Debt Fund" shall mean the fund
described in Section 3.10.
"Administrative Claims" shall mean all obligations of the
Partnership and the Company, now or hereafter existing, to pay
fees, costs and expenses (including the reasonable fees and
expenses of counsel) to any trustee or agent of any Secured
Party, or, if any Secured Party is not represented by a trustee
or agent, to such Secured Party for fees, costs and expenses
incurred in connection with administration of the applicable
Financing Document and the enforcement of its rights thereunder
(including any rights to indemnification of the Partnership or
the Company), excluding Collateral Agent Claims, Depositary Agent
Claims and Trustee Claims.
"Bullet Maturity" shall mean with respect to Additional
Permitted Debt, Debt with a single principal payment due in full
at final maturity.
"Bullet Maturity Amount" shall mean with respect to a
Funding Period for any Additional Permitted Debt with a Bullet
Maturity, an amount equal to the principal amount of such
Additional Permitted Debt due at final maturity divided by the
number of Funding Periods between the date of issuance and the
final maturity of such Additional Permitted Debt plus the
aggregate of the Bullet Maturity Amounts not funded in prior
periods.
"Collateral Agent Claims" shall mean all obligations of the
Secured Parties, the Partnership and the Company, now or
hereafter existing, to pay fees, costs and expenses to the
Collateral Agent pursuant to Section 3.4 of the Intercreditor
Agreement and the Security Documents.
"Company Loan Agreement" shall mean the Loan Agreement,
dated as of July 31, 1996, between the Company and the
Partnership.
"Debt Service Letter of Credit" shall mean one or more
irrevocable direct pay letters of credit available for the
purpose of drawing to pay principal and interest on the Bonds and
the Additional Permitted Debt in an amount up to the Debt Service
Reserve Requirement and any extensions thereof or any substitute
letter of credit therefor in the stated amount contained in such
extension or substitute, subject to the limitations set forth in,
and permitting draws therein as contemplated by, Section 3.4 of
this Depositary Agreement, (i) issued to the Depositary Agent by
a financial institution having a long-term unsecured senior debt
rating of at least "A" or its equivalent by the Rating Agencies
at the time of issuance, (ii) in form and substance reasonably
acceptable to the Depositary Agent, (iii) with a minimum term of
one (1) year, (iv) for the benefit of the Depositary Agent, (v)
providing for the amount thereof to be available to the
Depositary Agent in multiple drawings conditioned only upon
presentation of sight drafts accompanied by the applicable
certificate in the form attached to such letter of credit, (vi)
which the Partnership certifies in an Officer's Certificate does
not constitute Debt of that Company or the Partnership and is
not secured by a Lien on any of the properties of the Company or
the Partnership and (vii) automatically extending for not less
than six (6) months unless the issuing bank provides at least
thirty (30) days prior written notice of termination or non-
renewal to the Depositary Agent
"Debt Service Fund" shall mean the fund established pursuant
to Section 2.2(c).
"Debt Service Reserve Fund" shall mean the fund described in
Section 3.5.
"Debt Service Reserve Requirement" shall mean at any given
time an amount equal to the sum, without duplication, of (i) the
maximum aggregate principal payments due on the Bonds Outstanding
on any two consecutive quarterly payment dates in the immediately
succeeding three-year period from the date of determination (such
principal payments for the Initial Bonds being attached to the
Indenture on Schedule 1.1 thereto, subject to reduction pursuant
to Section 7.3 of the Indenture) and the maximum aggregate
principal payments due on the Additional Permitted Debt during
any semiannual period in the immediately succeeding three-year
period from the date of determination or, with respect to
Additional Permitted Debt with a Bullet Maturity in the three-
year period immediately prior to final maturity, the Bullet
Maturity Amounts for six Funding Periods and (ii) the maximum
aggregate interest payment due on the Bonds Outstanding on any
two consecutive quarterly payment dates in the immediately
succeeding three-year period from the date of determination and
the maximum aggregate interest payments due on the Additional
Permitted Debt (including the net amounts payable or receivable
under the Interest Rate Protection Agreements with respect to
such Additional Permitted Debt) during any semiannual period in
the immediately succeeding three-year period from the date of
determination. For the purposes of determining the Debt Service
Reserve Requirement, with respect to Additional Permitted Debt
with a floating interest rate and without a related Interest Rate
Protection Agreement, the interest rate in effect at the time of
calculation for such Additional Permitted Debt shall be assumed
to apply for such three-year period.
"Depositary Agent Claims" shall mean all obligations of the
Secured Parties, the Partnership and the Company, now or
hereafter existing, to pay fees, costs and expenses to the
Depositary Agent pursuant to Sections 5.1 and 5.3 of this
Depositary Agreement and the Security Documents.
"Depositary Agreement" shall have the meaning set forth in
the preamble.
"Disbursement Date" shall mean the date specified in a
Requisition as the date on which moneys are requested by the
Partnership to be withdrawn and transferred from the Fund to
which such Requisition relates for the purpose set forth in such
Requisition.
"Distribution Sub-Fund" shall mean the sub-fund described in
Section 3.9(a).
"Existing Reimbursement Agreement" shall mean the Second
Amended and Restated Letter of Credit and Reimbursement
Agreement, dated as of January 6, 1992, between the Partnership
and The Fuji Bank, Limited.
"Funding Date" shall be the fifteenth day of each month, or
in each case if such day is not a Business Day, the next
succeeding Business Day.
"Funding Period" shall mean a period commencing on a Funding
Date and ending on the day preceding the next succeeding Funding
Date.
"Funds" shall have the meanings assigned to such term in
Section 2.2.
"Interest Account" shall mean the account in the Debt
Service Fund described in Section 3.3.
"L/C Issuer" shall mean the issuer of the VEPCO Letter of
Credit and its successor and assigns.
"Maintenance Requisition" shall have the meaning assigned to
that term in Section 3.6(b).
"Major Maintenance Requirement" shall mean, for any Funding
Date, either (i) if, on any Funding Date, the amount then on
deposit in the Overhaul Fund is $1,000,000 or less, an amount
equal to the sum of (a) the product obtained by multiplying the
total number of hours that each of the combustion turbines
constituting a part of the Project has operated during the 30-day
period immediately preceding such Funding Date by $130, and
(b) the aggregate amount, not to exceed $1,000,000, of the
amounts of the Major Maintenance Requirements for previous
Funding Dates which has not been funded or has been withdrawn
from the Overhaul Fund to pay a deficiency in other Funds
pursuant to Section 3.12, or (ii) if, on any Funding Date, the
amount then on deposit in the Overhaul Fund exceeds $1,000,000,
then the Major Maintenance Requirement for such Funding Date
shall be zero, in each case as such amount shall be revised
annually pursuant to Section 6.11(a)(ii) of the Indenture;
provided, however, that no such revision shall reduce such amount
below the then current Major Maintenance Requirement without the
consent of the L/C Issuer.
"Modification Requisition" shall have the meaning assigned
to that term in Section 3.10(b).
"Operating Fund" shall mean the fund described in
Section 3.2.
"Overhaul Fund" shall mean the fund described in Section
3.6.
"Partnership Distribution Fund" shall mean the fund
described in Section 3.9.
"Pollution Control Finance Fund" shall mean the fund
described in Section 3.7.
"Principal Account" shall mean the account in the Debt
Service Fund described in Section 3.4.
"Project Revenue Fund" shall mean the fund described in
Section 3.1.
"Property Tax Fund" shall mean the fund described in Section
3.11.
"Property Tax Requirement" shall mean, for any Funding Date,
(i) until the date that the Partnership delivers to the
Depositary Agent the Officer's Certificate referred to in Section
6.29(b) of the Indenture, an amount equal to 8.33% of the amount
of real property taxes assessed in the tax year immediately
preceding such Funding Date against the real property owned by
The ▇▇▇▇ Company (or any successor owner of such property) that
includes the Site; provided, however, that if the Partnership
delivers to the Depositary Agent the Officer's Certificate and
other documents referred to in Section 3.11(e) of this Agreement,
the Property Tax Requirement for any Funding Date occurring
during the period commencing on the date of such delivery and
ending on the last day of the tax year with respect to which such
Officer's Certificate is delivered shall be zero, and (ii) after
the delivery of the Officer's Certificate referred to in Section
6.29(b) of the Indenture, zero.
"Requisition" shall mean a Maintenance Requisition,
Restoration Requisition, Modification Requisition or a
requisition by the Partnership from one of the other Funds.
"Responsible Officer", when used with respect to the
Depositary Agent, shall mean any officer in the Corporate Trust
Office (or any successor group of the Depositary Agent) including
any vice president, assistant vice president, assistant
secretary, assistant treasurer or any other officer of the
Depositary Agent customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge and familiarity with the
particular subject.
"Restoration Budget" shall have the meaning assigned to that
term in Section 3.8(a).
"Restoration Progress Payment Schedule" shall have the
meaning assigned to that term in Section 3.8(a).
"Restoration Fund" shall mean the fund described in Section
3.8.
"Restoration Requisition" shall have the meaning assigned to
that term in Section 3.8(b)(i).
"Secured Parties" shall have the meaning assigned to such
term in the Indenture.
"Suspension Sub-Fund" shall mean the sub-fund described in
Section 3.9(b).
"Trustee Claims" shall mean all obligations of the
Partnership and the Company, now or hereafter existing, to pay
fees, costs and expenses to the Trustee under the Indenture and
any supplemental indentures entered into pursuant to the terms
thereof.
ARTICLE II
Appointment of Depositary Agent;
Establishment of Funds
Section II.1 Acceptance of Appointment of Depositary
Agent. (a) The Depositary Agent hereby agrees to act as such
and to accept all cash, payments, other amounts and Permitted
Investments to be delivered to or held by the Depositary Agent
pursuant to the terms of this Depositary Agreement. The
Depositary Agent shall hold and safeguard the Funds during the
term of this Depositary Agreement and shall treat the cash,
instruments and securities in the Funds as moneys, instruments
and securities pledged by the Partnership and the Company to the
Collateral Agent for the benefit of the Secured Parties to be
held in the custody of the Depositary Agent, as agent solely for
the Collateral Agent, in trust in accordance with the provisions
of this Depositary Agreement. In performing its functions and
duties under this Depositary Agreement, the Depositary Agent
shall act solely as agent for the Collateral Agent and, except in
such capacity, does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust
with or for the Partnership or the Company.
(b) Neither the Partnership nor the Company shall have any
rights against or to moneys held in the Funds, as third party
beneficiary or otherwise, except the right to receive or make
requisitions of moneys held in the Funds, as permitted by this
Depositary Agreement , and to direct the investment of moneys
held in the Funds as permitted by Section 3.13.
Section II.2 Establishment of Funds and Sub-Funds. The
Depositary Agent hereby establishes the following special,
segregated and irrevocable cash collateral funds (collectively,
the "Funds") in the form of interest-bearing accounts which shall
be maintained at all times until the termination of this
Depositary Agreement:
(a) Project Revenue Fund;
(b) Operating Fund;
(c) Debt Service Fund;
(d) Debt Service Reserve Fund;
(e) Overhaul Fund;
(f) Pollution Control Finance Fund
(g) Restoration Fund;
(h) Partnership Distribution Fund;
(i) Property Tax Fund; and
(j) Additional Permitted Debt Fund.
The following two sub-accounts are hereby established and
created within the Debt Service Fund:
(a) Principal Account; and
(b) Interest Account.
The following two sub-funds are hereby established and
created within the Partnership Distribution Fund:
(a) Distribution Sub-Fund; and
(b) Suspension Sub-Fund.
Certain additional sub-funds within certain of the Funds may
be established and created from time to time in accordance with
this Depositary Agreement.
On the Closing Date, the Partnership shall deliver to the
Depositary Agent an Officer's Certificate setting forth the
amounts held on such date by The Fuji Bank, Limited under the
Existing Reimbursement Agreement and the allocation of such
amounts to the Funds. Upon the transfer of such amounts by The
Fuji Bank, Limited to the Depositary Agent, the Depositary Agent
shall allocate such amounts among the Funds in accordance with
such Officer's Certificate.
All amounts from time to time held in each Fund shall be
held (i) in the name of the Depositary Agent, as agent for the
Collateral Agent for the benefit of the Secured Parties and (ii)
in the custody of the Depositary Agent for the purposes and on
the terms set forth in this Depositary Agreement. All such
amounts shall constitute a part of the Collateral and shall not
constitute payment of any Debt or any other obligation of the
Partnership or the Company until applied as hereinafter provided.
Section II.3 Security Interest. As collateral security
for the prompt and complete payment and performance when due of
all their respective obligations, the Partnership and the Company
has, pursuant to the Security Agreements, pledged, assigned,
hypothecated and transferred to the Collateral Agent for the
benefit of the Secured Parties, and hereby grants to the
Depositary Agent, as agent for the Collateral Agent, a Lien and
security interest in and to, (i) each Fund and (ii) all cash,
investments and securities at any time on deposit in any Fund,
including all income or gain earned thereon. The Depositary
Agent is the agent of the Collateral Agent for the purpose of
receiving payments contemplated hereunder and for the purpose of
perfecting the Lien of the Collateral Agent for the benefit of
the Secured Parties in and to the Funds and all cash, investments
and securities and any proceeds thereof at any time on deposit in
the Funds; provided that the Depositary Agent shall not be
responsible to take any action to perfect such Lien except
through the performance of its express obligations hereunder or
upon the written direction of the Collateral Agent. Each of the
Funds shall at all times be in the exclusive possession of, and
under the exclusive domain and control of, the Depositary Agent,
as agent for the Collateral Agent.
Section II.4 Termination. This Depositary Agreement shall
remain in full force and effect until the termination of the
Intercreditor Agreement pursuant to Section 4.10 thereof.
ARTICLE III
The Funds
Section III.1 Project Revenue Fund. (a) (i) The following
amounts shall be deposited into the Project Revenue Fund
directly, or if received by the Partnership or the Company,
as soon as practicable upon receipt, in either case in
accordance with this Section 3.1(a): (A) all Project
Revenues received by the Partnership and any revenue from
any source received by the Company, (B) the proceeds of the
Debt under the Credit Bank Working Capital Agreement, (C)
any income from the investment of the moneys in any of the
Funds pursuant to Section 3.13, (D) all proceeds from the
sale of assets by the Partnership or the Company, (E) all
amounts, if any, required to be deposited in the Project
Revenue Fund pursuant to the Escrow Deposit Agreement, dated
July 31, 1996, among the Partnership, the Company and
NationsBank of Texas, N.A., and (F) all other amounts
collected or received by any lender of Debt or by the
Collateral Agent, in each case, under the Collateral
Documents (including, without limitation, all Casualty
Proceeds, Eminent Domain Proceeds and Title Insurance
Proceeds) and not at the time of receipt required to be
transferred to or deposited in the Restoration Fund, the
Debt Service Reserve Fund, or the Additional Permitted Debt
Fund. Each of the Partnership and the Company hereby agrees
and confirms that it has irrevocably instructed each Project
Participant to each Project Agreement in effect as of the
Closing Date pursuant to which payments may be made to or
received by the Partnership or the Company and that it will
so instruct all Project Participants to Project Agreements
and, to the extent practicable, parties to the Non-Material
Agreements, entered into after the Closing Date, to be made
directly to the Depositary Agent for deposit into the
Project Revenue Fund. If, notwithstanding the foregoing,
any Project Revenues or any other amounts required to be
deposited in the Project Revenue Fund are remitted directly
to the Partnership or the Company (or any Affiliate of the
Partnership or the Company), the Partnership or the Company,
as the case may be, shall (or shall cause any such Affiliate
to) hold such payments in trust for the Collateral Agent and
shall promptly remit such payments to the Depositary Agent
for deposit in the Project Revenue Fund, in the form
received, with any necessary endorsements.
(ii) Upon the deposit into the Project Revenue Fund of
the proceeds of any payment in respect of any Casualty
Proceeds, any Eminent Domain Proceeds or any Title Insurance
Proceeds, the Depositary Agent shall separately segregate
such Casualty Proceeds, Eminent Domain Proceeds or Title
Insurance Proceeds, as the case may be, from any other
amounts on deposit in the Project Revenue Fund.
(iii) In the event that pursuant to Section 6.10(d)
of the Indenture the Partnership determines that the Project
cannot be rebuilt, repaired or restored to permit operation
of all or a portion of the Project on a Commercially
Feasible Basis following an Event of Eminent Domain, Event
of Loss or Title Event, or, if pursuant to Section 6.10(f)
of the Indenture, the Partnership determines not to rebuild,
repair or restore the Project, then, upon delivery to the
Depositary Agent of an Officer's Certificate of the
Partnership certifying that the Project cannot be rebuilt,
repaired or restored to permit operation of all or a portion
of the Project on a Commercially Feasible Basis or that the
Partnership determines not to rebuild, repair or restore the
Project, the Collateral Agent shall deliver to the
Depositary Agent a certificate setting forth the allocation
of Casualty Proceeds, Eminent Domain Proceeds or Title
Insurance Proceeds, as the case may be, segregated in the
Project Revenue Fund among the Secured Parties (to the
extent the Secured Obligations of such Secured Parties may
be redeemed or prepaid under the applicable Financing
Documents) pursuant to the Intercreditor Agreement as if
such Casualty Proceeds, Eminent Domain Proceeds or Title
Insurance Proceeds, as the case may be, were to be ratably
distributed among such Secured Parties. Upon receipt of
such certificate of the Collateral Agent, the Depositary
Agent shall withdraw, transfer or distribute the moneys
representing the Casualty Proceeds, the Eminent Domain
Proceeds or the Title Insurance Proceeds, as the case may
be, segregated in the Project Revenue Fund ratably among (a)
the Trustee no later than one Business Day prior to the
Redemption Date, as instructed by the Company Order
delivered by the Partnership to the Depositary Agent, for
the redemption of Bonds Outstanding in accordance with
Section 7.3(a) of the Indenture and (b) the other Secured
Parties for prompt redemption or prepayment of Secured
Obligations pursuant to the applicable Financing Documents
in accordance with the allocation set forth in the
certificate of the Collateral Agent.
(iv) If the Partnership has determined to rebuild,
repair or restore the Project and has otherwise complied
with the requirements of Section 6.10(d)(ii) or (iii) of the
Indenture, then such segregated Casualty Proceeds, Eminent
Domain Proceeds or Title Insurance Proceeds shall be
deposited in the Restoration Fund in accordance with Section
3.8.
(b) The Partnership and the Company hereby irrevocably
authorize the Depositary Agent, on each Funding Date, to make
withdrawals and transfers of moneys to the extent then available
in the Project Revenue Fund and not segregated for any specific
purpose as provided in this Section 3.1, upon the delivery of an
Officer's Certificate of the Partnership to the Depositary Agent
at least five (5) days prior to the Funding Date (or such fewer
days as may be acceptable to the Depositary Agent) setting forth
the amounts to be withdrawn, transferred or segregated pursuant
to this clause (b) pursuant to the terms of this Depositary
Agreement in the following order of priority:
(i) First: Withdraw from the Project Revenue Fund for
payment to the Operating Fund the amount set forth in the
Officer's Certificate of the Partnership and certified by
such Officer's Certificate to be the good faith estimate of
the amounts payable for Operating Expenses (other than Debt
Service and amounts referred to in clauses (ii) and (iii)
below to the extent that the same are Operating Expenses)
during the Funding Period commencing on such Funding Date,
less the aggregate of the amounts previously transferred on
any prior Funding Date for the payment of such Operating
Expenses;
(ii) Second: After making the withdrawals specified in
clause (i), withdraw from the Project Revenue Fund the
amount set forth in the Officers' Certificate of the
Partnership for payment to the Credit Banks of an amount
equal to (A) the unpaid principal amount of, interest on,
and fees and other amounts due and payable at any time
during the Funding Period commencing on such Funding Date
with respect to reimbursement obligations and other amounts
owed under a Credit Bank Reimbursement Agreement, and (B)
the principal of, interest, and fees and other amounts due
and payable at any time during the Funding Period commencing
on such Funding Date with respect to loans under the Credit
Bank Working Capital Agreement to the extent not paid (or to
the extent provision for such payment is not made) pursuant
to clause (i) above; provided, however, that the Depositary
Agent shall segregate such amounts from any other amounts on
deposit in the Project Revenue Fund until such time as
payment is made to the Credit Banks;
(iii) Third: After making the withdrawals specified
in clauses (i) and (ii), if applicable, withdraw from the
Project Revenue Fund the amount set forth in the Officer's
Certificate of the Partnership for payment, without
duplication, of interest due and payable at any time during
the Funding Period commencing on such Funding Date with
respect to the Bonds, the Additional Permitted Debt
(including ordinary course settlement amounts (other than
termination payments) under any related Interest Rate
Protection Agreements) and Debt permitted under Sections
6.16(a)(ii) and (iii) of the Indenture (taking into account
payments from the Interest Account allocated thereto);
provided, however, that the Depositary Agent shall segregate
such amounts from any other amounts on deposit in the
Project Revenue Fund until such time as payment is made to
the Persons entitled thereto;
(iv) Fourth: After making the withdrawals specified in
clauses (i), (ii) and (iii), withdraw from the Project
Revenue Fund the amount set forth in the Officer's
Certificate of the Partnership for the payment, without
duplication, of the principal and premium, if any, due and
payable at any time during the Funding Period commencing on
such Funding Date (A) with respect to the Bonds, the
Additional Permitted Debt, and Debt permitted under Sections
6.16(a)(ii) and (iii) of the Indenture (in each case, taking
into account payments from the Principal Account allocated
thereto), and (B) termination payments under Interest Rate
Protection Agreements; provided, however, that the
Depositary Agent shall segregate such amounts from any other
amounts on deposit in the Project Revenue Fund until such
time as payment is made to the Persons entitled thereto;
(v) Fifth: After making the withdrawals specified in
clauses (i), (ii), (iii) and (iv), withdraw from the Project
Revenue Fund the amount set forth in the Officer's
Certificate of the Partnership for the payment, without
duplication, of other amounts due and payable at any time
during the Funding Period commencing on such Funding Date
with respect to the Bonds, the Additional Permitted Debt,
and Debt permitted under Sections 6.16(a)(ii) and (iii) of
the Indenture (in each case, taking into account payments,
if any, from the Debt Service Fund allocated thereto);
provided, however, that the Depositary Agent shall segregate
such amounts from any other amounts on deposit in the
Project Revenue Fund until such time as payment is made to
Persons entitled thereto;
(vi) Sixth: After making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv) and (v),
transfer from the Project Revenue Fund to the Interest
Account of the Debt Service Fund, an amount equal to the
excess of (i) the sum of the interest payments due and
payable on all of the Bonds Outstanding on the next
succeeding interest payment dates falling on or within six
months following such Funding Date and the interest
payment(s) due and payable on Additional Permitted Debt
(including ordinary course settlement amounts, but not
termination payments, under any related Interest Rate
Protection Agreement) on the next interest payment date(s)
falling on or within six months following such Funding Date,
over (ii) the amount then on deposit in the Interest
Account, after giving effect to any withdrawals from the
Interest Fund made on such date; provided, however, that for
the purposes of determining the amount to transfer from the
Project Revenue Fund to the Interest Fund with respect to
Additional Permitted Debt with a floating interest rate and
without a related Interest Rate Protection Agreement, the
interest rate in effect at the time of such determination
for such Additional Permitted Debt shall be assumed to apply
for such six-month period;
(vii) Seventh: After making the withdrawals and
transfers specified in clauses (i), (ii), (iii), (iv), (v)
and (vi), transfer from the Project Revenue Fund to the
Principal Account of the Debt Service Fund, an amount equal
to the excess of (i) the sum of the principal and premium,
if any, payment next due and payable on the Bonds
Outstanding at the next succeeding principal payment dates
falling on or within six months following such Funding Date
and the principal and premium, if any, payment(s) due and
payable on the Additional Permitted Debt on the next
principal payment date(s) falling on or within six months
following such Funding Date over (ii) the amount then on
deposit in the Principal Account, after giving effect to any
withdrawals from the Principal Account made on such date;
(viii) Eighth: After making the withdrawals and
transfers specified in clauses (i), (ii), (iii), (iv), (v),
(vi) and (vii), transfer from the Project Revenue Fund to
the Property Tax Fund an amount equal to the excess, if any,
of the Property Tax Requirement for such Funding Date over
the amount then on deposit in the Property Tax Fund, after
giving effect to any disbursement from the Property Tax Fund
made on such Funding Date;
(ix) Ninth: After making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv), (v), (vi),
(vii) and (viii), transfer from the Project Revenue Fund to
the Debt Service Reserve Fund an amount equal to the excess,
if any, of the then current Debt Service Reserve Requirement
over the sum of (A) the moneys held in the Debt Service
Reserve Fund as of such date, plus (B) the aggregate amount
available to be drawn under the Debt Service Letter of
Credit after giving effect to any withdrawals from the Debt
Service Reserve Fund and drawn on the Debt Service Letter of
Credit made on such date;
(x) Tenth: After making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii) and (ix), transfer from the Project Revenue
Fund to the Overhaul Fund, an amount equal to the excess, if
any, of the Major Maintenance Requirement for such Funding
Date over the amount then on deposit in the Overhaul Fund as
of such Funding Date, after giving effect to any
disbursements from the Overhaul Fund made on such Funding
Date; and
(xi) Eleventh: After making the withdrawals and
transfers specified in the preceding clauses (i) through
(x), transfer to the Distribution Sub-Fund the balance, if
any, remaining in the Project Revenue Fund and not otherwise
segregated for a specified purpose.
If an Event of Default (as defined in the Intercreditor
Agreement), shall have occurred and be continuing and the
Partnership shall have failed to deliver an Officers' Certificate
setting forth the amounts to be withdrawn or transferred pursuant
to clause (ii), (iii), (iv), (v), (vi), (vii), or (ix) of this
Section 3.1(b), then the Depository Agent shall make such
withdrawals and transfers:
(A) upon receipt of a certificate from an
authorized representative of the appropriate Credit Bank
under a Credit Bank Reimbursement Agreement in the case of
clause (ii)(A);
(B) upon receipt of a certificate from an
authorized representative of the appropriate Credit Bank
under a Credit Bank Working Capital Agreement in the case of
clause (ii)(B); and
(C) upon receipt of a certificate of Responsible
Officer of the Trustee or a certificate of an authorized
representative of the holder or holders of any Additional
Permitted Debt or Debt permitted under Sections 6.16(a)(ii)
or (iii) of the Indenture approved by a Responsible Officer
of the Trustee in the case of clauses (iii), (iv), (v),
(vi), (vii), or (ix).
Section III.2 Operating Fund. (a) On the Closing Date, the
amounts then held in the Operating Account established under the
Existing Reimbursement Agreement, if any, shall be made available
to the Depository Agent and deposited in the Operating Fund
established pursuant to this Depositary Agreement. Amounts held
in the Operating Fund shall be applied to pay Operating Expenses.
(b) Before any withdrawal and transfer shall be made from
the Operating Fund, there shall be deposited with the Depositary
Agent:
(i) a requisition from the Partnership, dated not more
than five (5) days prior to Disbursement Date set forth
therein on which such withdrawal and transfer is requested
to be made, signed by an Authorized Representative of the
Partnership and stating whether the circumstances described
in the next succeeding clause (ii) exist; and;
(ii) if the Partnership shall have prepared an
Operating Budget pursuant to Section 6.14 of the Indenture
and if the amount set forth in the Partnership's
requisition, when added to the amounts previously withdrawn
from the Operating Fund in the fiscal year of the
Partnership in which such Distribution Date occurs, exceeds
by ten percent (10%) or more the amount of Operating
Expenses budgeted for in the Operating Budget through the
month in which such Distribution Date occurs, then an
Independent Engineer's Certificate dated not more than five
(5) days prior to such Disbursement Date, approving of the
withdrawal and transfer requested to be made.
(c) On the Disbursement Date referred to in Section 3.2(b)
following the receipt of the documents described in such Section,
the Depositary Agent shall withdraw and transfer from the
Operating Fund and shall remit to the Partnership the amount set
forth in the Partnership's requisition (which, if required by
Section 3.2(b)(ii), shall have been approved by the Independent
Engineer), and thereafter the Partnership shall remit to the
applicable payees any amounts the Partnership receives.
Section III.3 Interest Account. (a) Moneys deposited in
the Interest Account of the Debt Service Fund on any Funding Date
shall be allocated ratably among sub-funds of the Interest
Account established for each series of Bonds and each issuance of
Additional Permitted Debt based on the aggregate interest due and
payable on the Bonds and on the Additional Permitted Debt on the
next interest payment dates falling on or within six months
following such Funding Date (calculated in accordance with the
applicable amortization schedules provided to the Depositary
Agent by the Partnership). Except as otherwise provided in this
Depositary Agreement, moneys in such sub-funds shall be used for
the payment, when due and payable (whether at the stated maturity
or upon redemption or by acceleration or otherwise), of interest
on the related series of Bonds and issuances of Additional
Permitted Debt.
(b) On any Funding Date that amounts of interest on any
given series of Bonds or issuance of Additional Permitted Debt
are due and payable and have been requisitioned in accordance
with Section 3.1(b)(iii) (or if such day is not a Business Day,
then on the next Business Day), the Depositary Agent shall
withdraw the moneys on deposit in the sub-fund of the Interest
Fund allocated for such series of Bonds or issuance of Additional
Permitted Debt and remit such moneys to the Persons entitled
thereto for the payment of such interest.
(c) In the event that moneys in the Interest Account exceed
the amount of money required by this Depositary Agreement to be
deposited therein, on the next Funding Date prior to making the
distributions pursuant to Section 3.1(b), the Depositary Agent
shall transfer such excess moneys from the Interest Account to
the Project Revenue Fund.
Section III.4 Principal Account. (a) Moneys deposited in
the Principal Account on any Funding Date shall be allocated
ratably among sub-funds of the Principal Account established for
each series of Bonds and each issuance of Additional Permitted
Debt based on the aggregate principal and premium, if any, due
and payable on the Bonds and on the Additional Permitted Debt on
next principal payment dates falling on or within six months
following such Funding Date. Except as otherwise provided in
this Depositary Agreement, moneys in such sub-funds shall be used
for the payment, when due and payable (whether at the stated
maturity or upon redemption or by acceleration or otherwise), of
principal and premium, if any, with respect to the related series
of Bonds and issuances of Additional Permitted Debt.
(b) On any Funding Date that amounts for the payment of
principal of and premium on, if any, any given series of Bonds or
issuance of Additional Permitted Debt are due and payable and
have been requisitioned in accordance with Section 3.1(b)(iv),
the Depositary Agent shall withdraw the moneys on deposit in the
sub-fund of the Principal Account allocated for such series of
Bonds or issuance of Additional Permitted Debt and remit such
moneys to the Persons entitled thereto for the payment of such
principal and premium, if any.
(c) In the event that moneys in the Principal Account
exceed the amount of money required by this Depositary Agreement
to be deposited therein on the next Funding Date prior to making
the distributions pursuant to Section 3.1(b), the Depositary
Agent shall transfer such excess moneys from the Principal
Account to the Project Revenue Fund.
Section III.5 Debt Service Reserve Fund. (a) On the
Closing Date, certain amounts specified in the Officer's
Certificate referred to in the next to last paragraph of Section
2.2 shall be made available to the Depositary Agent through a
transfer of amounts held in one or more funds established under
the Existing Reimbursement Agreement for ultimate deposit into
the Debt Service Reserve Fund. Additionally, on the Closing
Date, a portion (which shall be specified in such Officer's
Certificate) of the proceeds of the sale of the Initial Bonds
shall be deposited into the Debt Service Reserve Fund. The
amounts referred to in the two preceding sentences shall be
allocated solely to the Initial Bonds. At any time, the
Partnership may deliver to the Depositary Agent a Debt Service
Letter of Credit in an aggregate maximum amount available to be
drawn thereunder equal to all or any portion of the then current
Debt Service Reserve Requirement. Promptly following delivery of
a Debt Service Letter of Credit to the Depositary Agent, the
Depositary Agent shall remit to the Partner or Partners
furnishing such Debt Service Letter of Credit (as set forth in an
Officer's Certificate of the Partnership delivered
contemporaneously with such Debt Service Letter of Credit) an
amount from the Debt Service Reserve Fund equal to the lesser of
(i) the minimum amount to be drawn under such Debt Service Letter
of Credit and (ii) the moneys then held in the Debt Service
Reserve Fund, and such payment shall not constitute a
Distribution for purposes of Section 3.9 of this Depositary
Agreement, Section 6.22 of the Indenture or any other Financing
Document. Upon receipt by the Depositary Agent of an Officer's
Certificate of the Partnership instructing it to draw on the Debt
Service Reserve Letter of Credit or certifying that the Debt
Termination Date (as defined in the Intercreditor Agreement) has
occurred under the Intercreditor Agreement, the Depositary Agent
shall deliver to the issuer of such Debt Service Letter of
Credit, a draft in an amount equal to the lesser of the amount
set forth in such Officer's Certificate or the aggregate maximum
amount available to be drawn under such letter of credit and
deposit the moneys received into the Debt Service Reserve Fund.
(b) Moneys deposited in the Debt Service Reserve Fund on
any Funding Date or, subject to clause (a), otherwise available
to be drawn on the Debt Service Letter of Credit shall be
allocated ratably (i) among sub-funds of the Debt Service Reserve
Fund established for the principal of and premium, if any, on
each series of the Bonds and each issuance of Additional
Permitted Debt based on the maximum aggregate principal and
premium, if any, payments due and payable on the Bonds on any two
consecutive quarterly payment dates in the immediately succeeding
three-year period from the date of determination and the maximum
principal payments due on the Additional Permitted Debt during
any six-month period in the immediately succeeding three-year
period from the date of determination or, with respect to
Additional Permitted Debt with a Bullet Maturity, in the three-
year period immediately prior to final maturity, the Bullet
Maturity Amounts for six Funding Periods, and (ii) among sub-
funds of the Debt Service Reserve Fund established for the
interest on each series of the Bonds and each issuance of
Additional Permitted Debt based on the maximum aggregate interest
payments due and payable on the Bonds Outstanding due on any two
consecutive quarterly payment dates in the immediately succeeding
three-year period from the date of determination and the maximum
aggregate interest payments due on the Additional Permitted Debt
during any six-month period in the immediately succeeding three-
year period from the date of determination. For the purposes of
allocating the moneys deposited in the Debt Service Reserve Fund
among the sub-funds with respect to Additional Permitted Debt
with a floating interest rate and without a related Interest Rate
Protection Agreement, the interest rate in effect at the time of
calculation for such Additional Permitted Debt shall be assumed
to apply for such three-year period. Except as otherwise
provided in this Depositary Agreement, moneys in such sub-funds
shall be used for the payment, when due and payable (whether at
the stated maturity or upon redemption or by acceleration, or
otherwise), of principal and premium, if any, or interest with
respect to the related series of Bonds and issuances of
Additional Permitted Debt.
(c) On any Funding Date that amounts have been
requisitioned in accordance with Section 3.1(b)(iii) or (iv) and
amounts are to be withdrawn from the Debt Service Reserve Fund in
accordance with this Depositary Agreement, the Depositary Agent
shall withdraw the moneys on deposit in the sub-fund of the Debt
Service Reserve Fund allocated for such series of Bonds or
issuance of Additional Permitted Debt. To the extent that moneys
then held in the sub-fund of the Debt Service Reserve Fund
allocated for such series of Bonds or issuance of Additional
Permitted Debt are insufficient to fund such payment, as
evidenced by the Officer's Certificate delivered in accordance
with Section 3.1(b), one day prior to the Funding Date, the
Depositary Agent shall draw on the Debt Service Letter of Credit
in an amount equal to the lesser of (x) the amount necessary to
make up such deficiency and (y) the amounts available to be drawn
under such Debt Service Letter of Credit allocated for such
series of Bonds or issuance of Additional Permitted Debt. On
such Funding Date, the Depositary Agent shall apply the moneys
withdrawn from the Debt Service Reserve Fund or drawn under the
Debt Service Letter of Credit to the payments of such principal,
premium, if any, or interest then due and payable.
(d) A determination as to the moneys held in the Debt
Service Reserve Fund and/or the aggregate maximum amount at the
time available to be drawn under any Debt Service Letter of
Credit and the then current Debt Service Reserve Requirement
shall be made by the Partnership prior to each Funding Date and
immediately following any withdrawal of amounts in the Debt
Service Reserve Fund pursuant to clause (b) above. As soon as
practicable after making any such determination, the Partnership
shall deliver to the Depositary Agent and the Collateral Agent an
Officer's Certificate of the Partnership setting forth such
determination and the then current Debt Service Reserve
Requirement and the Depositary Agent shall confirm such
determination and Debt Service Reserve Requirement. If such
determination, as confirmed by the Depositary Agent, indicates
that the amount of the moneys held in the Debt Service Reserve
Fund plus the aggregate maximum amount at the time available to
be drawn under the outstanding Debt Service Letter of Credit
exceeds the then current Debt Service Reserve Requirement, on the
next succeeding Funding Date prior to making the distributions
pursuant to Section 3.1(b), the Depositary Agent shall transfer
such excess moneys held in the Debt Service Reserve Fund to the
Project Revenue Fund.
(e) Thirty (30) days prior to the expiration of the Debt
Service Letter of Credit delivered to the Depositary Agent,
provided that the Debt Service Letter of Credit has not been
renewed, extended or replaced, the Depositary Agent shall deliver
to the issuer of such Debt Service Letter of Credit on such date
(i) a draft on the issuer of such Debt Service Letter of Credit
in an amount equal to the maximum amount available to be drawn
under the expiring Debt Service Letter of Credit and (ii) an
appropriate certificate with respect thereto in the form required
by the Debt Service Letter of Credit. The Depositary Agent shall
deposit the moneys received from the issuer of such Debt Service
Letter of Credit in payment of such draft in the Debt Service
Reserve Fund to be applied in accordance with this Section 3.5.
Section III.6 Overhaul Fund. (a) On the Closing Date,
amounts held in an overhaul account established under the
Existing Reimbursement Agreement shall be made available to the
Depositary Agent for ultimate deposit in the Overhaul Fund.
Except as otherwise provided in this Depositary Agreement,
amounts held in the Overhaul Fund shall be applied to pay Major
Maintenance Expenses.
(b) Before any withdrawal and transfer shall be made from
the Overhaul Fund for the purpose of paying Major Maintenance
Expenses, there shall be filed with the Depositary Agent with
respect to each Disbursement Date:
(i) a requisition from the Partnership in the form
attached hereto as Exhibit A (a "Maintenance Requisition")
dated no more than five (5) days prior to such Disbursement
Date as set forth in the Maintenance Requisition on which
such withdrawal and transfer is requested to be made, signed
by an Authorized Representative of the Partnership; and
(ii) an Independent Engineer's Certificate dated no
more than five (5) days prior to such Disbursement Date
approving of the withdrawal and transfer requested to be
made.
(c) On the Disbursement Date referred to in Section 3.6(b)
following receipt of the documents described in Sections
3.6(b)(i) and (ii) above, the Depositary Agent shall withdraw and
transfer from the Overhaul Fund and remit to the Partnership the
amount set forth in the Maintenance Requisition, and thereafter
the Partnership shall remit to the applicable payee any such
amounts the Partnership receives.
(d) Pursuant to Section 6.11(b) of the Indenture, a
determination of the Major Maintenance Requirement shall be
delivered to the Depositary Agent annually in connection with the
Engineer's Annual Report setting forth the then current schedule
of the Major Maintenance Reserve Requirement. The Depositary
Agent shall be entitled to rely on the last determination of the
Major Maintenance Requirement received by it.
Section III.7 Pollution Control Finance Fund. (a) On the
Closing Date, amounts held in the Pollution Control Finance
Account established under the Existing Reimbursement Agreement
shall be made available to the Depositary Agent for ultimate
deposit in the Pollution Control Finance Fund established
pursuant to this Depositary Agreement. Amounts held in the
Pollution Control Finance Fund shall be applied to pay the cost
of installing pollution control facilities at the Project.
(b) Before any withdrawal and transfer shall be made from
the Pollution Control Finance Fund, there shall be deposited with
the Depositary Agent:
(i) a requisition from the Partnership, in the form
satisfactory to the Independent Engineer, dated not more
than five (5) days prior to Disbursement Date set forth
therein on which such withdrawal and transfer is requested
to be made, signed by an Authorized Representative of the
Partnership; and
(ii) an Independent Engineer's Certificate dated not
more than five (5) days prior to such Disbursement Date,
approving of the withdrawal and transfer requested to be
made.
(c) On the Disbursement Date referred to in Section 3.7(b)
following the receipt of the documents described in such section,
the Depositary Agent shall withdraw and transfer from the
Pollution Control Finance Fund and shall remit to the Partnership
the amount set forth in the Partnership's requisition approved by
the Independent Engineer, and thereafter the Partnership shall
remit to the applicable payees any amounts the Partnership
receives.
(d) Upon completion of the installation of pollution
control facilities at the Project, there shall be filed with the
Depositary Agent (i) an Officer's Certificate of the Partnership
certifying the completion of the installation of pollution
control facilities at the Project and the amount, if any,
required in its opinion to be retained in the Pollution Control
Finance Fund for the payment of any remaining costs of
installation not then due and payable or the liability for
payment of which is being contested or disputed by the
Partnership and for the payment of reasonable contingencies
following completion of the installation and (ii) an Independent
Engineer's Certificate stating that completion of the
installation of pollution control facilities at the Project has
occurred and concurring with the amounts to be retained in the
Pollution Control Finance Fund. Upon receipt of the documents
described in clauses (i) and (ii) above, the Depositary Agent
shall transfer the amount, if any, remaining in the Pollution
Control Finance Fund in excess of the amounts, if any, to remain
in the Pollution Control Finance Fund as stated in the Officer's
Certificate of the Partnership to the Project Revenue Fund.
Section III.8 Restoration Fund. (a) In the event that
pursuant to Section 6.10(d)(ii) or (iii) of the Indenture the
Partnership has determined to rebuild, repair or restore the
Project to permit operation of all or a portion of the Project on
a Commercially Feasible Basis, upon delivery to the Depositary
Agent of an Officer's Certificate of the Partnership certifying
that the Project will be rebuilt, repaired or restored to permit
operation of all or a portion of the Project on a Commercially
Feasible Basis, the Depositary Agent shall withdraw and transfer
the Casualty Proceeds, Eminent Domain Proceeds and Title
Insurance Proceeds, as the case may be, segregated in the Project
Revenue Fund to the Restoration Fund. Amounts held in the
Restoration Fund shall be applied solely for the payment of the
costs of rebuilding, repair or restoration of the Project as set
forth below. If the amount initially deposited in the
Restoration Fund with respect to any Event of Loss, Event of
Eminent Domain or Title Event, as the case may be, exceeds
$500,000 per Event of Loss, Event of Eminent Domain or Title
Event, the Partnership shall deliver to the Depositary Agent, the
Collateral Agent, the Trustee, and the L/C Issuer (x) a
restoration budget (the "Restoration Budget") prepared by the
Partnership identifying all costs reasonably anticipated to be
incurred in connection with the rebuilding, restoration or
repair, together with a statement of uses of proceeds of the
Restoration Fund and any other moneys necessary to complete the
rebuilding, repair or restoration and (y) a restoration progress
payment schedule (the "Restoration Progress Payments Schedule")
for the projected requisitions to be made from the Restoration
Fund based on the percentage of rebuilding, repair or restoration
completed.
(b) Before any withdrawal and transfer may be made from the
Restoration Fund, there shall be filed with the Depositary Agent
and the Collateral Agent with respect to each Disbursement Date:
(i) a requisition from the Partnership in the form
attached hereto as Exhibit B (a "Restoration Requisition"),
dated not more than five (5) days prior to such Disbursement
Date as set forth therein on which such withdrawal and
transfer is requested to be made, signed by an Authorized
Representative of the Partnership; and
(ii) if the amount of Casualty Proceeds, Eminent Domain
Proceeds or Title Insurance Proceeds, as the case may be,
initially deposited in the Restoration Fund with respect to
any Event of Loss, Event of Eminent Domain or Title Event,
as the case may be, exceeds $500,000, an Independent
Engineer's Certificate dated not more than five (5) days
prior to the Disbursement Date approving of the withdrawal
and transfer requested to be made.
(c) On the Disbursement Date referred to in Section 3.8(b)
following receipt of the documents described in Sections
3.8(b)(i) and(ii) above, the Depositary Agent shall withdraw and
transfer from the Restoration Fund and shall remit to the
Partnership the amount set forth in the Restoration Requisition,
and thereafter the Partnership shall remit to the applicable
payees any amounts the Partnership receives.
(d) Upon completion of any rebuilding, repair or
restoration of the Project, there shall be filed with the
Depositary Agent and the Collateral Agent (i) an Officer's
Certificate of the Partnership certifying the completion of the
rebuilding, repair or restoration of the Project and the amount,
if any, required in its opinion to be retained in the Restoration
Fund for the payment of any remaining costs of rebuilding, repair
or restoration not then due and payable or the liability for
payment of which is being contested or disputed by the
Partnership and for the payment of reasonable contingencies
following completion of the rebuilding, repair or restoration and
(ii) if the amount of Casualty Proceeds, Eminent Domain Proceeds
or Title Insurance Proceeds, as the case may be, initially
deposited in the Restoration Fund in respect of such Event of
Loss, Event of Eminent Domain or Title Event, as the case may be,
exceeded $500,000, an Independent Engineer's Certificate stating
that completion of the rebuilding, repair or restoration of the
Project has occurred and concurring with the amounts to be
retained in the Restoration Fund. Upon receipt of the documents
described in clauses (i) and (ii) above, the Depositary Agent
shall transfer the amount, if any, remaining in the Restoration
Fund in excess of the amounts, if any, to remain in the
Restoration Fund as stated in the Officer's Certificate of the
Partnership, first, to the Partnership to the extent of any
amounts the Partnership has expended in connection with such
rebuilding, repair or restoration (as set forth in such officer's
Certificate of the Partnership) and not previously reimbursed
(and such payment shall not constitute a Distribution for
purposes of Section 3.9 of this Depositary Agreement or Section
6.22 of the Indenture or any other Financing Document) and
second, segregate the remainder in the Restoration Fund from any
other amounts therein. Upon the segregation of such excess in
the Restoration Fund, the Collateral Agent shall deliver to the
Depositary Agent and the Trustee a certificate setting forth the
allocation of such excess among the Secured Parties pursuant to
the Intercreditor Agreement as if such excess were to be ratably
distributed to the Secured Parties. If the amount allocated to
the Trustee for the benefit of the Holders set forth in the
certificate of the Collateral Agent exceeds $500,000, the
Depositary Agent shall transfer such moneys segregated in the
Project Revenue Fund ratably among (x) the Trustee no later than
one Business Day prior to the Redemption Date, as instructed by
the Company Order delivered by the Partnership to the Depositary
Agent, for the redemption of the Bonds outstanding in whole or in
part in accordance with the Section 7.3(b) of the Indenture and
(y) the other Secured Parties for prompt redemption or prepayment
of Secured Obligations pursuant to the applicable Financing
Document in accordance with the allocation set forth in the
certificate of the Collateral Agent. If the amount allocated to
the Trustee for the benefit of the Holders set forth in the
certificate of the Collateral Agent is less than $500,000, the
Depositary Agent shall transfer the moneys representing the
excess of the Restoration Fund segregated in the Restoration
Fund, first, to the Overhaul Fund until an amount equal to the
then current Major Maintenance Requirement has been deposited
therein, second, to the Debt Service Reserve Fund until the
amount held in the Debt Service Reserve Fund equals the then
current Debt Service Reserve Requirement, and third, to the
Project Revenue Fund. Thereafter, upon receipt of an Officer's
Certificate of the Partnership certifying payment of all costs of
rebuilding, repair or restoration of the Project and an
Independent Engineer's Certificate concurring with such
certification, the Depositary Agent shall transfer any amounts
remaining in the Restoration Fund in the same order and manner as
described in the immediately preceding sentence.
Section III.9 Partnership Distribution Fund. (a) On any
Funding Date that all of the conditions for Distributions set
forth in Section 6.22 of the Indenture and the other Financing
Documents are satisfied, provided that the Depositary Agent shall
not have received within five (5) days of receipt by the
Depositary Agent of the Officer's Certificate of the Partnership
a written objection from the Collateral Agent setting forth the
conditions to Distributions not satisfied under the relevant
Financing Document, the Depositary Agent shall make payment from
the Distribution Sub-Fund to the Partnership for use as
Distributions and any other lawful purpose.
(b) On any Funding Date on which all the conditions
precedent to Distributions are satisfied except (i) the
conditions to Distributions in Section 6.22(a)(vi) of the
Indenture, (ii) the conditions to Distributions in Section
6.22(a)(vii) of the Indenture, (iii) the conditions to
Distributions in Section 6.22(b) of the Indenture, or (iv) the
conditions to Distributions set forth in any other Financing
Document, after giving effect to Distributions otherwise
permitted by Section 6.22(b) of the Indenture, the Depositary
Agent shall transfer all moneys held in the Distribution Sub-Fund
to the Suspension Sub-Fund. The moneys deposited in the
Suspension Sub-Fund and designated for the Funding Date on which
such money is deposited shall be segregated from other amount on
deposit in the Suspension Sub-Fund. On any day thereafter on
which the Partnership is entitled to make a Distribution pursuant
to Section 6.22(c) of the Indenture and all other conditions to
Distributions set forth in the other Financing Documents have
been satisfied, upon delivery to the Trustee, the Collateral
Agent and the Depositary Agent of an Officer's Certificate of the
Partnership certifying either that the Event of Default which had
occurred and was continuing on a previous Funding Date has been
cured or that the conditions set forth in Section 6.22(a)(vii) or
6.22(b) of the Indenture (whichever was previously not satisfied)
are now satisfied and, in either case, all other conditions to
Distributions set forth in the other Financing Documents have
been satisfied, the Depositary Agent shall withdraw and transfer
moneys in the Suspension Sub-Fund designated for such Funding
Date to the Partnership to make Distributions and any other
lawful purpose.
(c) Upon receipt of an Officer's Certificate of the
Partnership (or, if an Event of Default (as defined in the
Intercreditor Agreement) shall have occurred and be continuing, a
certificate of a Responsible Officer of the Trustee, approved by
an authorized representative of the L/C Issuer, or a certificate
of an authorized representative of the L/C Issuer approved by a
Responsible Officer of the Trustee) requesting transfer of moneys
held in the Partnership Distribution Fund to any other Fund, the
Depositary Agent shall promptly transfer from the sub-finds of
the Partnership Distribution Fund the specified amount to the
specified Fund in accordance with the Officer's Certificate.
Section III.10 Additional Permitted Debt Fund. (a) If the
Partnership or the Company incurs any Additional Permitted Debt
or the Company makes Loans to the Partnership of the proceeds of
Additional Permitted Debt of the Company permitted under Sections
6.16(a)(v) and (vi) of the Indenture, respectively, the
Partnership and the Company shall deposit with the Depositary
Agent the proceeds of such Additional Permitted Debt or Loans to
be held in the Additional Permitted Debt Fund. Except as
otherwise provided in this Depositary Agreement, amounts held in
the Additional Permitted Debt Fund shall be applied solely for
the payment of the costs of enhancements and modifications to the
Project as set forth below.
(b) Before any withdrawal and transfer shall be made from
the Additional Permitted Debt Fund, there shall be filed with the
Depositary Agent and the Collateral Agent with respect to each
Disbursement Date:
(i) a requisition from the Partnership in the form
satisfactory to the Independent Engineer and the holders of
such Additional Permitted Debt (a "Modification
Requisition"), dated not more than five (5) days prior to
such Disbursement Date as set forth therein on which such
withdrawal and transfer is requested to be made, signed by
an Authorized Representative of the Partnership;
(ii) an Officer's Certificate of the Partnership in the
form satisfactory to the Independent Engineer and the
holders of such Additional Permitted Debt dated not more
than five (5) days prior to such Disbursement Date;
(iii) a budget prepared by the Partnership
identifying all costs reasonably anticipated to be incurred
in connection with the enhancement or modification, together
with a statement of reasonably anticipated use of proceeds
of the Additional Permitted Debt Fund and any other moneys
necessary to complete the enhancement or modification and a
progress payment schedule for the projected requisitions to
be made from the Additional Permitted Debt Fund; and
(iv) an Independent Engineer's Certificate in the form
satisfactory to the holders of such Additional Permitted
Debt, dated not more than five (5) days prior to such
Disbursement Date.
(c) On the Disbursement Date referred to in Section 3.10(b)
following receipt of the documents described in Sections
3.10(b)(i) through (iv) above, the Depositary Agent shall
withdraw and transfer from the Additional Permitted Debt Fund and
shall remit to the Partnership the amount set forth in the
Modification Requisition, and thereafter the Partnership shall
remit to the applicable payees any amounts the Partnership
receives.
Section III.11 Property Tax Fund. (a) Amounts held in the
Property Tax Fund shall be applied to pay property taxes assessed
against the property of The ▇▇▇▇ Company that includes, or is
contiguous to, the Site.
(b) Before any withdrawal and transfer shall be made from
the Property Tax Fund, there shall be deposited with the
Depositary Agent:
(i) a requisition from the Partnership, in a form
satisfactory to the Depositary Agent, dated not more than
five (5) days prior to Disbursement Date set forth therein
on which such withdrawal and transfer is requested to be
made, signed by an Authorized Representative of the
Partnership stating that the taxes to be paid with the
amount requisitioned are due and it is anticipated that, if
such taxes are not paid, a Lien on the Site will be
foreclosed or otherwise realized upon; and
(ii) any notice or other written communication received
by the Partnership evidencing the possible enforcement of
such Lien.
(c) On the Disbursement Date referred to in Section 3.11(b)
and following the receipt of the documents described in such
Section, the Depositary Agent shall withdraw and transfer from
the Property Tax Fund and shall remit to the Partnership the
amount set forth in the Partnership's requisition, and thereafter
the Partnership shall remit to the applicable taxing authority or
appropriate payees any amounts the Partnership receives.
(d) Reference is made to Section 6.29 of the Indenture,
which provides that upon the occurrence of either of the events
described therein, the Partnership shall deliver to the
Depositary Agent, an Officer's Certificate of the Partnership
certifying that such event has occurred. Upon receipt of such
Officer's Certificate and the other documents described in
Section 6.29 of the Indenture, the Depositary Agent shall
transfer the amount, if any, remaining in the Property Tax Fund
in excess of the amounts, if any, to remain in the Property Tax
Fund as stated in the Officer's Certificate of the Partnership to
the Project Revenue Fund.
(e) Upon the payment of The ▇▇▇▇ Company of the property
taxes against the property that includes the Site for a
particular tax year, the Partnership may submit to the Depositary
Agent:
(i) an Officer's Certificate of the Partnership
certifying that the property taxes for such year have been
paid in full, and
(ii) such other documents as the Depositary Agent may
reasonably request to evidence that such payment has been
made.
Upon receipt of such Officer's Certificate and other
documents, the Depositary Agent shall transfer the amount, if
any, remaining in the Property Tax Fund that is in excess of the
then current Property Tax Requirement with respect to any tax
year that has not been paid in full to the Project Revenue Fund.
Section III.12 Payment Deficiencies; Invasion of Funds. (a)
If on any Funding Date the aggregate amount of moneys withdrawn
from the Project Revenue Fund pursuant to Section 3.1(b)(i) are
not sufficient to pay in full all Operating Expenses
requisitioned in accordance with Section 3.1(b)(i) and the
Partnership is unable to borrow moneys under a Credit Bank
Working Capital Agreement, the Depositary Agent shall forthwith
make up such deficiency by withdrawing cash for such purpose from
the Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Additional
Permitted Debt Fund, the Property Tax Fund, ratably from the
Principal Account sub-funds, and ratably from the Interest
Account sub-funds, ratably from the Debt Service Reserve sub-
funds (including any draws on the Debt Service Letter of Credit),
in such order, until such deficiency is satisfied and by
depositing such cash into the Operating Fund for transfer to the
Partnership in accordance with Section 3.2. If, after giving
effect to the immediately preceding sentence, there shall be
insufficient moneys to pay in full the whole amount of such
requisition, the aggregate amount withdrawn from the Project
Revenue Fund, the Distribution Sub-Fund, the Suspension Sub-Fund,
the Overhaul Fund, the Pollution Control Finance Fund, the
Additional Permitted Debt Fund, the Property Tax Fund, and
ratably from the Principal Account, the Interest Account, the
Debt Service Reserve Fund shall be applied to the ratable payment
of such amount.
(b) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(ii) are not sufficient to pay in full amounts
requisitioned in accordance with Section 3.1(b)(ii), the
Depositary Agent shall forthwith make up such deficiency by
withdrawing cash for such purpose from the Distribution Sub-Fund,
the Suspension Sub-Fund, the Overhaul Fund, the Pollution Control
Finance Fund, and the Additional Permitted Debt Fund, in such
order, until such deficiency is satisfied and by depositing such
cash into the Project Revenue Fund for transfer to the Credit
Banks in accordance with Section 3.1(b)(ii). If, after giving
effect to the immediately preceding sentence, there shall be
insufficient moneys to pay in full the whole amount of such
requisition, the aggregate amount withdrawn from the Project
Revenue Fund, the Distribution Sub-Fund, the Suspension Sub-Fund,
the Overhaul Fund, the Pollution Control Finance Fund, and the
Additional Permitted Debt Fund, shall be applied to the ratable
payment of such amount.
(c) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(iii) and the Interest Fund sub-funds (to the extent
allocated to such payments) pursuant to Section 3.3(b) are not
sufficient to pay in full all amounts requisitioned in accordance
with Section 3.1(b)(iii), the Depositary Agent shall forthwith
make up such deficiency by withdrawing moneys for such purpose
from the Distribution Sub-Fund, the Suspension Sub-Fund, the
Overhaul Fund, the Pollution Control Finance Fund, the Property
Tax Fund, the Debt Service Reserve Fund sub-funds (to the extent
allocated to such payments) and the Additional Permitted Debt
Fund, in such order, until such deficiency is satisfied and by
depositing such moneys into the Project Revenue Fund for payment
in accordance with Section 3.1(b)(iii). If, after giving effect
to the immediately preceding sentence, there shall be
insufficient moneys to pay in full the whole amount of such
requisition, the aggregate amount withdrawn from the Project
Revenue Fund, the Interest Account, the Distribution Sub-Fund,
the Suspension Sub-Fund, the Overhaul Fund, the Pollution Control
Finance Fund, the Property Tax Fund, the Debt Service Reserve
Fund, and the Additional Permitted Debt shall be applied to the
ratable payment of such interest.
(d) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(iv) and the Principal Account sub-funds (to the extent
allocated to such payments) pursuant to Section 3.4(b) are not
sufficient to pay in full all amounts requisitioned in accordance
with Section 3.1(b)(iv), the Depositary Agent shall forthwith
make up such deficiency by withdrawing moneys for such purpose
from the Distribution Sub-Fund, the Suspension Sub-Fund, the
Overhaul Fund, the Pollution Control Finance Fund, the Property
Tax Fund, the Debt Service Reserve Fund sub-funds (to the extent
allocated to such payment) in accordance with Section 3.5(c),
and the Additional Permitted Debt Fund, in such order, until such
deficiency is satisfied and by depositing such moneys into the
Project Revenue Fund for payment in accordance with Section
3.1(b)(iv). If, after giving effect to the immediately preceding
sentence, there shall be insufficient moneys to pay in full the
whole amount of such requisition, the aggregate amount withdrawn
from the Project Revenue Fund, the Principal Account, the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Property Tax Fund,
the Debt Service Reserve Fund, and the Additional Permitted Debt
Fund shall be applied to the ratable payment of such principal.
(e) If on any Funding Date the aggregate moneys withdrawn
from the Project Revenue Fund pursuant to Section 3.1(b)(v) are
not sufficient to pay in full all amounts requisitioned in
accordance with Section 3.1(b)(v), the Depositary Agent shall
forthwith make up such deficiency by withdrawing moneys for such
purpose from the Distribution Sub-Fund, the Suspension Sub-Fund,
the Overhaul Fund, the Pollution Control Finance Fund, the
Property Tax Fund, and the Additional Permitted Debt Fund, in
such order, until such deficiency is satisfied and by depositing
such amount into the Project Revenue Fund for payment in
accordance with Section 3.1(b)(v). If, after giving effect to the
immediately preceding sentence, there shall be insufficient
moneys to pay in full the whole amount of such requisition, the
aggregate amount withdrawn from the Project Revenue Fund, the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Property Tax Fund,
and the Additional Permitted Debt Fund shall be applied to the
ratable payment of such amounts.
(f) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(vi) or (vii) are not sufficient to pay in full all amounts
to be transferred to the Debt Service Fund in accordance with
Section 3.1(b)(vi) or (vii), the Depositary Agent shall forthwith
make up such deficiency by withdrawing cash for such purpose from
the Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Property Tax Fund,
and the Additional Permitted Debt Fund, in such order, until such
deficiency is satisfied and by depositing such cash into the
Project Revenue Fund for transfer to the Debt Service Fund in
accordance with Section 3.1(b)(vi) or (vii). If, after giving
effect to the immediately preceding sentence, there shall be
insufficient moneys to pay in full the whole amount required to
be transferred to the Debt Service Fund on such Funding Date, the
aggregate amount withdrawn from the Project Revenue Fund, the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Property Tax Fund,
and the Additional Permitted Debt Fund shall be applied to the
ratable payment of such amount.
(g) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(viii) are not sufficient to pay in full amounts to be
transferred to the Property Tax Fund in accordance with Section
3.1(b)(viii), the Depositary Agent shall forthwith make up such
deficiency by withdrawing cash for such purpose from the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund, and the Additional
Permitted Debt Fund, in such order, until such deficiency is
satisfied and by depositing such cash into the Project Revenue
Fund for transfer to the Property Tax Fund in accordance with
Section 3.1(b)(viii). If, after giving effect to the immediately
preceding sentence, there shall be insufficient moneys to pay in
full the whole amount that is required to be transferred to the
Property Tax Fund on such Funding Date, the aggregate amount
withdrawn from the Project Revenue Fund, the Distribution Sub-
Fund, the Suspension Sub-Fund, the Overhaul Fund, the Pollution
Control Finance Fund and the Additional Permitted Debt Fund shall
be applied to the ratable payment of such amount.
(h) If on any Funding Date the aggregate amount of moneys
withdrawn from the Project Revenue Fund pursuant to Section
3.1(b)(ix) are not sufficient to pay in full amounts to be
transferred to the Debt Service Reserve Fund in accordance with
Section 3.1(b)(ix), the Depositary Agent shall forthwith make up
such deficiency by withdrawing cash for such purpose from the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund and the Additional
Permitted Debt Fund, in such order, until such deficiency is
satisfied and by depositing such cash into the Project Revenue
Fund for transfer to the Debt Service Reserve Fund in accordance
with Section 3.1(b)(ix). If, after giving affect to the
immediately preceding sentence, there shall be insufficient
moneys to pay in full the whole amount required to be transferred
to the Debt Service Reserve Fund on such Funding Date, the
aggregate amount withdrawn from the Project Revenue Fund, the
Distribution Sub-Fund, the Suspension Sub-Fund, the Overhaul
Fund, the Pollution Control Finance Fund and the Additional
Permitted Debt Fund shall be applied to the ratable payment of
such amount.
Section III.13 Investment of Funds. Moneys held in any Fund
created by and held under this Depositary Agreement shall be
invested and reinvested in Permitted Investments at the written
direction (which may be in the form of a standing instruction) of
an Authorized Representative of the Partnership; provided,
however, that at any time when (a) a Responsible Officer of the
Depositary Agent has received written notice that an Event of
Default shall have occurred and be continuing or (b) an
Authorized Representative of the Partnership has not timely
furnished such a written direction or, after a request by the
Depositary Agent, has not so confirmed a standing instruction to
the Depositary Agent, the Depositary Agent shall invest such
moneys only in Permitted Investments of a maturity of thirty (30)
days or less. Such investments shall mature in such amounts and
have maturity dates or be subject to redemption at the option of
the holder thereof on or prior to maturity as needed for the
purposes of such Funds, but in no event shall such investments
mature more than one year after the date acquired. Any income or
gain realized from such investments shall be deposited, first,
into the Fund from which such moneys came, until the amount in
such Fund equals the amount then required to be deposited in such
Fund and, second, into the Project Revenue Fund. Any loss shall
be charged to the applicable Fund. The Depositary Agent shall
not be liable for any such loss other than by reason of its
willful misconduct or gross negligence. For purposes of any
income tax payable on account of any income or gain on an
investment, such income or gain shall be for the account of the
Partnership and the Company.
Section III.14 Disposition of Funds Upon Retirement of Bonds
and Additional Permitted Debt. (a) Upon the payment in full of
the principal, premium, if any, and interest on any series of
Bonds or issuance of Additional Permitted Debt such that such
series of Bonds or issuance of Additional Permitted Debt is no
longer Outstanding, all amounts held in the sub-funds of the
Interest Account, the Principal Account and the Debt Service
Reserve Fund allocated to such series of Bonds or issuance of
Additional Permitted Debt, as the case may be, shall be
transferred to the Project Revenue Fund.
(b) Upon termination of the Intercreditor Agreement and
after payment in full of the principal of, premium, if any, and
interest on all the Additional Permitted Debt and Bonds
Outstanding, all amounts payable to the Credit Banks under the
Credit Bank Documents and all to payable to the Permitted
Counterparties under the Interest Rate Protection Agreements, and
after payment in full of all Administrative Claims, Trustee
Claims, Collateral Agent Claims, the Depositary Agent Claims, and
all fees, charges and expenses of the Independent Engineer, the
Gas Consultant and the Insurance Consultant and after payment in
full of all other amounts required to be paid hereunder, all
amounts remaining in any Fund established in Section 2.2 shall be
paid by the Depositary Agent to the Partnership upon receipt of a
certificate of the Collateral Agent authorizing such payments
from the Funds.
Section III.15 Fund Balance Statements. The Depositary Agent
shall, on a monthly basis and at such other times as the
Collateral Agent, the Partnership or the Company may from time to
time reasonably request, provide to the Collateral Agent, the
Partnership and the Company, fund balance statements in respect
of each of the Funds, accounts, sub-funds and amounts segregated
in any of the Funds. Such balance statement shall also include
deposits, withdrawals and transfers from and to any Fund,
account, sub-fund and segregated amounts.
Section III.16 Trigger Events. (a) On and after any date
on which the Depositary Agent receives written notice from the
Collateral Agent pursuant to Section 2.4(a) of the Intercreditor
Agreement that a Trigger Event has occurred (the date of receipt
of such notice, the "Trigger Event Day"), the Depositary Agent
shall thereafter accept all notices and instructions required to
be given to the Depositary Agent pursuant to the terms of this
Depositary Agreement only from the Collateral Agent and not from
any other Person and the Depositary Agent shall not withdraw,
transfer, pay or otherwise distribute any moneys in any of the
Funds except pursuant to such notices and instructions from the
Collateral Agent.
(b) On the Trigger Event Date, the Depositary Agent shall
(i) draw on the Debt Service Letter of Credit and deposit the
proceeds thereof into the Debt Service Reserve Fund and (ii)
render to the Collateral Agent an accounting of all moneys in the
Funds as of the Trigger Event Date.
(c) On and after the Trigger Event Date, the Depositary
Agent shall (A) distribute all money then held in the Project
Revenue Fund in accordance with clauses (i) through (vii) of
Section 3.1(b) (except that it shall not make any withdrawal,
transfer or payment in accordance with Section 3.1(b)(i) unless
the Depositary Agent receives written notice from the Collateral
Agent to make such withdrawal, transfer or payment) and (B) make
any or all of the following transfers and withdrawals as directed
in a notice from the Collateral Agent:
(i) to the Trustee for redemption of the Bonds
Outstanding in accordance with Section 7.3 of the Indenture,
or if the maturity of the Bonds have been accelerated
pursuant to Section 8.2 of the Indenture, for payment of the
Bonds and to each holder of Additional Permitted Debt, any
moneys held in the Principal Account sub-funds, the Interest
Account sub-funds, the Additional Permitted Debt Fund and
the Debt Service Reserve Fund sub-funds, in each case,
allocated to the Bonds and such Additional Permitted Debt,
respectively; and
(ii) to the Trustee (for redemption of the Bonds
outstanding in accordance with Section 7.3 of the Indenture
or, if the maturity of the Bonds has been accelerated, for
payment of the Bonds), and to the other Secured Parties,
ratably, any moneys held in the Operating Fund, the Overhaul
Fund, the Pollution Control Finance Fund, the Property Tax
Fund, the Partnership Distribution Fund and the Restoration
Fund and any moneys remaining in the Funds described in
clause (i) above after making the withdrawals specified
therein;
provided that if the Depositary Agent has not received a notice
authorizing the Depositary Agent to distribute all amounts in the
Project Revenue Fund as provided in Section 3.16(c)(A) from the
Collateral Agent following the Trigger Event Date, the Depositary
Agent shall distribute all moneys then held in the Project
Revenue Fund in accordance with Section 3.1(b) (except that it
shall not make any withdrawal, transfer or payment in accordance
with Section 3.1(b)(i)) on each one-month anniversary of the
Trigger Event Date until the Depositary Agent receives such
notice from the Collateral Agent and thereafter the Depositary
Agent shall follow the instructions set forth in such notice
until notified otherwise by the Collateral Agent.
(d) Upon receipt from the Collateral Agent of any cash
proceeds resulting from liquidation of the Collateral, the
Depositary Agent shall (i) first, deposit such cash proceeds
resulting from liquidation of the Collateral into the Project
Revenue Fund, (ii) second, pay to each of the Collateral Agent,
the Trustee, the Credit Banks (if there is no agent(s) for the
Credit Banks or, if there is an agent or agents for the Credit
Banks, then the agent(s) for the Credit Banks) and any other
trustees or agents that are Secured Parties under the Security
Documents, and the Depositary Agent, as the case may be, ratably,
in an amount equal to the amounts due in respect of the
Administrative Claims, the Collateral Agent Claims, the Trustee
Claims and the Depositary Agent Claims, respectively, due and
payable as of the date of such distribution; provided that, prior
to any such distribution to any such Persons, the Depositary
Agent shall have received a certificate signed by each such
Person setting forth the amount payable to such Person as of the
date of such distribution, including any supporting materials for
such claims and (iii) third, distribute the balance of such
proceeds in accordance with Section 3.16(c)(A).
ARTICLE IV
Depositary Agent
Section IV.1 Appointment of Depositary Agent, Powers and
Immunities. The Collateral Agent, on behalf of the Secured
Parties under the Intercreditor Agreement, hereby irrevocably
appoints and authorizes the Depositary Agent to act as its agent
hereunder, with such powers as are expressly delegated to the
Depositary Agent by the terms of this Depositary Agreement,
together with such other powers as are reasonably incidental
thereto. The Depositary Agent shall not have any duties or
responsibilities except those expressly set forth in this
Depositary Agreement. Without limiting the generality of the
foregoing, the Depositary Agent shall take all actions as the
Collateral Agent shall direct it to perform in accordance with
the express provisions of this Depositary Agreement or as the
Collateral Agent may otherwise direct it to perform in accordance
with the provisions of this Depositary Agreement.
Notwithstanding anything to the contrary contained herein, the
Depositary Agent shall not be required to take any action which
is contrary to this Depositary Agreement or applicable law.
Neither the Depositary Agent nor any of its Affiliates shall be
responsible to any Secured Party for any recitals, statements,
representations or warranties made by the Partnership or the
Company contained in this Depositary Agreement or any other
Project Document or Financing Document or in any certificate or
other document referred to or provided for in, or received by any
Secured Party under, the Indenture, this Depositary Agreement or
any other Project Document or Financing Document for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Depositary Agreement or any other Project
Document or any other document referred to or provided for herein
or therein or for any failure by the Partnership or the Company
to perform their respective obligations hereunder or thereunder,
the Depositary Agent shall not be required to ascertain or
inquire as to the performance by the Partnership or the Company
of any of their respective obligations under the Indenture, any
other Financing Document, this Depositary Agreement or any other
Project Document or any other document or agreement contemplated
hereby or thereby. The Depositary Agent shall not be (a)
required to initiate or conduct any litigation or collection
proceeding hereunder or under any other Collateral Document or
(b) responsible for any action taken or omitted to be taken by it
hereunder (except for its own gross negligence or willful
misconduct) or in connection with any other Collateral Document.
Except as otherwise provided under this Depositary Agreement, the
Depositary Agent shall take action under this Depositary
Agreement only as it shall be directed in writing by the
Collateral Agent. Whenever in the administration of this
Depositary Agreement the Depositary Agent shall deem it necessary
or desirable that a factual matter be proved or established in
connection with the Depositary Agent taking, suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed)
may be deemed to be conclusively proved or established by a
certificate of any Authorized Representative of the Partnership
or the Company, as the case may be, or the Collateral Agent, if
appropriate. The Depositary Agent shall have the right at any
time to seek instructions concerning the administration of this
Depositary Agreement from the Collateral Agent or any court of
competent jurisdiction.
Section IV.2 Reliance by Depositary Agent. The Depositary
Agent shall be entitled to rely upon any certificate, Officer's
Certificate of the Partnership, Independent Engineer's
Certificate, notice or other document (including any electric
mail, cable, telegram, telecopy or telex) believed by it to be
genuine and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statement of legal
counsel, independent accountants and other experts selected by
the Depositary Agent and shall have no liability for its actions
taken thereupon, unless due to the Depositary Agent's willful
misconduct or gross negligence. The Depositary Agent's duties
and responsibilities hereunder are entirely administrative and
not discretionary and are to be determined only with reference to
this Depositary Agreement and applicable law. Without limiting
the foregoing, the Depositary Agent shall be required to make
payment to the Secured Parties only as set forth herein. As to
any matters not expressly provided for by this Depositary
Agreement, the Depositary Agent shall not be required to take any
action or exercise any discretion, but shall be required to act
or to refrain from acting upon the instructions of the Collateral
Agent and shall in all such cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with or
pursuant to the terms of this Depositary Agreement or the
instructions of the Collateral Agent, and such instructions of
the Collateral Agent and any action taken or failure to act
pursuant thereto shall be binding on all of the Secured Parties.
The Depositary Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Depositary
Agreement in accordance with a request of the Collateral Agent,
and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Collateral Agent and the
Secured Parties.
Section IV.3 Court Orders. The Depositary Agent is hereby
authorized, in its exclusive discretion, to obey and comply with
all writs, orders, judgments or decrees issued by any court or
administrative agency affecting any money, documents or things
held by the Depositary Agent. The Depositary Agent shall not be
liable to any of the parties hereto or any other Secured Party,
their successors, heirs or personal representatives by reason of
the Depositary Agent's compliance with such writs, orders,
judgments or decrees, notwithstanding such writ, order, judgment
or decree is later reversed, modified, set aside or vacated.
Section IV.4 Resignation or Removal of Depositary Agent.
Subject to the appointment and acceptance of a successor
Depositary Agent as provided below, the Depositary Agent may
resign at any time by giving thirty (30) days written notice
thereof to the Collateral Agent, the Partnership and the Company.
The Depositary Agent may be removed at any time with cause by the
holders of 25% or more of the Combined Exposure and, if not the
same Person as the Depositary Agent, by the Trustee or the
Collateral Agent. In the event that the Depositary Agent shall
decline to take any action without first receiving an indemnity
from the Partnership, the Company, the Secured Parties or the
Collateral Agent, as the case may be, and, having received an
indemnity, shall continue to decline to take such action, the
Collateral Agent, the Trustee and the holders of 25% or more of
the Combined Exposure shall be deemed to have sufficient cause to
remove the Depositary Agent. In the event the Depository Agent
is also the Trustee, the Collateral Agent (if it is not the same
Person as the Depositary Agent) and such holders shall have the
right to remove the Depositary Agent with or without cause. Upon
any such resignation or removal, the Collateral Agent shall have
the right to appoint a successor Depositary Agent, which
Depositary Agent shall be reasonably acceptable to the
Partnership and the Company. If no successor Depositary Agent
shall have been appointed by the Collateral Agent and shall have
accepted such appointment within 30 days after the retiring
Depositary Agent's giving of notice of resignation or the removal
of the retiring Depositary Agent, then the retiring Depositary
Agent may appoint a successor Depositary Agent, which shall be a
bank or trust company reasonably acceptable to the Collateral
Agent, the Partnership and the Company. Upon the acceptance of
any appointment as Depositary Agent hereunder by the successor
Depositary Agent, (a) such successor Depositary Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Depositary Agent,
and the retiring Depositary Agent shall be discharged from its
duties and obligations hereunder and (b) the retiring Depositary
Agent shall promptly transfer the Funds within its possession or
control to the possession or control of the successor Depositary
Agent and shall execute and deliver such notices, instructions
and assignments as may be necessary or desirable to transfer the
rights of the Depositary Agent with respect to the Funds to the
successor Depositary Agent. After the retiring Depositary Agents
resignation or removal hereunder as Depositary Agent, the
provisions of this Article IV and of Article V shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Depositary Agent.
ARTICLE V
Expenses; Indemnification; Fees
Section V.1 Expenses. The Partnership and the Company
agree to pay or reimburse all out-of-pocket expenses of the
Depositary Agent (including reasonable fees and expenses for
legal services of every kind) in respect of, or incident to, the
administration or enforcement of any of the provisions of this
Depositary Agreement or in connection with any amendment, waiver
or consent relating to this Depositary Agreement.
Section V.2 Indemnification. The Partnership and the
Company jointly and severally agree to indemnify the Depositary
Agent from and against any and all claims, losses, liabilities
and expenses (including the fees and expenses of counsel) growing
out of or resulting from (a) this Depositary Agreement
(including, without limitation, performance under or enforcement
of this Depositary Agreement, but excluding any such claims,
losses or liabilities resulting from the Depositary Agent's gross
negligence or willful misconduct) or (b) any refund or adjustment
of any amount paid or payable to the Depositary Agent under or in
respect of this Depositary Agreement which may be ordered or
otherwise required by any Person. This indemnity shall survive
the termination of this Depositary Agreement, and the resignation
or removal of the Depositary Agent.
Section V.3 Fees. On the Closing Date, and on each
anniversary of the Closing Date to and including the Maturity
Date, the Partnership and the Company shall pay the Depositary
Agent a fee in an amount mutually agreed on by the Partnership,
the Company and the Depositary Agent.
ARTICLE VI
Exculpation
Section VI.1 Exculpation. Notwithstanding anything to the
contrary contained in this Depositary Agreement, the liability
and obligation of the Partnership or the Company to perform and
observe and make good the obligations contained in this
Depositary Agreement shall not be enforced by any action or
proceeding wherein damages or any money judgment or any
deficiency judgment or any judgment establishing any personal
obligation or liability shall be sought, collected or otherwise
obtained against any Partner, any past, present or future
partner, officer, director or shareholder or related Person of
any Partner or the Company (other than the Partnership and the
Company), and the Depositary Agent, for itself and its successors
and assigns, and the Collateral Agent, for itself and its
successors and assigns, irrevocably waive any and all right to
▇▇▇ for, seek or any such damages. money judgment, deficiency
judgment or personal judgment against any Partner, any past,
present or future partner, officer, director or shareholder or
related Person of any Partner or the Company (other than the
Partnership and the Company) under or by reason of or in
connection with this Depositary Agreement and agrees to look
solely to the Company and the Partnership and the security and
collateral held under or in connection with the Collateral
Documents for the enforcement of such liability and obligation of
the Company or the Partnership. Nothing contained in this
paragraph shall be construed (i) as preventing the Depositary
Agent or the Collateral Agent from naming the Company or the
Partnership, any Partner, any past, present or future partner,
officer, director or shareholder or related Person of any Partner
or the Company in any action or proceeding brought by the
Collateral Agent to enforce and to realize upon the security and
collateral provided under or in connection with the Collateral
Documents so long as no judgment, order, decree or other relief,
in each came, in the nature of a personal or deficiency judgment
or otherwise establishing any personal obligation shall be asked
for, taken, entered or enforced against any Partner or any past,
present or future partner, officer, director or shareholder or
related Person of any Partner or the Company (other than the
Partnership and the Company), in any such action or proceeding,
(ii) as modifying, qualifying or affecting in any manner
whatsoever the lien and security interests created by this
Depositary Agreement and the other Project Documents or the
enforcement thereof by the Collateral Agent, (iii) as modifying,
qualifying or affecting in any manner whatsoever the personal
recourse undertakings, obligations and liabilities of any person,
party or entity under any guaranty of payment. completion
guaranty, other guaranty or indemnification agreement now or
hereafter executed and delivered to the Collateral Agent in
connection with the Collateral Documents, or (iv) as modifying.
qualifying or affecting in any manner whatsoever the personal
recourse liability of any Partner, any past, present or future
partner, officer, director or shareholder or related Person of
any Partner or the Company or any other person, party or entity
for fraud or willful misrepresentation or any wrongful
misappropriation or diversion of any portion of the Collateral.
ARTICLE VII
Miscellaneous
Section VII.1 Amendments; Etc. No amendment or waiver of
any provision of this Depositary Agreement nor consent to any
departure by the Partnership and the Company here from shall in
any event be effective unless the same shall be in writing and
signed by the Collateral Agent, the Depositary Agent, the
Partnership and the Company and such amendment or waiver shall
have been consented to by the Trustee. Any such amendment,
waiver or consent shall be effective only in the specific
instance and for the specified purpose for which given.
Section VII.2 Addresses for Notices. All notices, requests
and other communications provided for hereunder shall be in
writing and, except as otherwise required by the provisions of
this Depositary Agreement, shall be given to the Company and the
Partnership as provided in Section 1.5 of the Indenture, and in
the case of notices, requests, or communications to or with the
Depositary Agent, to the following address, or such other address
as the Depositary Agent may from time to time designate in
writing to the others as herein required:
Fleet National Bank
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ref: Panda-▇▇▇▇▇▇▇▇ 1996
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
and, in the came of notices, requests or communications to or
with the Collateral Agent, to the following address, or such
other address as the Collateral Agent may from time to time
designate in writing to the others as herein required:
Fleet National Bank
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ref: Panda-▇▇▇▇▇▇▇▇ 1996
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Except as may be otherwise required by Section 1.5 of the
Indenture with respect to the Partnership and the Company,
notices, requests and other communications shall be delivered
personally, telecopied or transmitted by another customary form
of electronic transmission, or mailed, postage prepaid. Each
such notice, request and other communication shall be deemed to
have been given if and when received by an officer, manager or
supervisor in the department of the addressee specified for
attention (unless the addressee refuses to accept delivery, in
which case they shall be deemed to have been given when first
presented to the addressee for acceptance); provided, however,
that notices to the Depository Agent must be received by a
Responsible Officer.
Section VII.3 Governing Law. THIS DEPOSITARY AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS (OTHER THAN THE PROVISIONS OF SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section VII.4 Headings. The headings used in this
Depositary Agreement are for convenience of reference only and do
not constitute part of this Depositary Agreement for any purpose.
Section VII.5 No Third Party Beneficiaries. The agreements
of the parties hereto are solely for the benefit of the
Partnership, the Company, the Collateral Agent, the Depositary
Agent and the Secured Parties and their respective successors and
assigns and no Person (other than the parties hereto and such
Secured Parties) shall have any rights hereunder.
Section VII.6 No Waiver. No failure an the part of the
Depositary Agent, the Collateral Agent or any Secured Party or
any of their nominees or representatives to exercise, and no
course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall be construed as a
waiver thereof; nor shall any single or partial exercise by the
Depositary Agent, the Collateral Agent or any Secured Party or
any of their nominees or representatives of any right, power or
remedy preclude the exercise of any other right, remedy or power.
Section VII.7 Severability. If any provision of this
Depositary Agreement or the application thereof shall be invalid
or unenforceable to any extent, (a) the remainder of this
Depositary Agreement and the application of such remaining
provisions shall not be affected, and (b) each such remaining
provision shall be enforced to the fullest extent permitted by
law.
Section VII.8 Successors and Assigns. All covenants,
agreements, representations and warranties in this Depositary
Agreement by the Depositary Agent, the Collateral Agent, the
Partnership and the Company shall bind and, to the extent
permitted hereby, shall inure to the benefit of and be
enforceable by their respective successors and assigns, whether
so expressed or not.
Section VII.9 Execution in Counterparts. This instrument
may be executed in any number of counterparts, each of which when
so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Depositary Agreement to be duly executed as of the date first
written above.
PANDA-▇▇▇▇▇▇▇▇, L.P.
BY: PANDA-▇▇▇▇▇▇▇▇ CORPORATION,
as general partner
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
PANDA-▇▇▇▇▇▇▇▇ FUNDING CORPORATION
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
FLEET NATIONAL BANK,
as Collateral Agent
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
FLEET NATIONAL BANK,
as Depositary Agent
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Exhibit A to
Depositary Agreement
MAINTENANCE REQUISITION
NO. ________
[Date]
Fleet National Bank, as Depositary Agent
under the Depositary Agreement
referred to below
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ref: Panda-▇▇▇▇▇▇▇▇ 1996
Attention:
Re: Deposit and Disbursement Agreements dated as of July
31, 1996 (as amended, supplemented or modified and in
effect, the "Depositary Agreement"), among Panda-
▇▇▇▇▇▇▇▇ Funding Corporation, a Delaware corporation
(the "Company"), Panda-Rosemary, L.P., a Delaware
limited partnership (the "Partnership") and Fleet
National Bank, a national banking association organized
under the laws of the United States in its capacity as
depositary agent (in such capacity, together with its
successors in such capacity, the "Depositary Agent")
and Trust Indenture, dated as of July 31, 1996 (as
amended, supplemented or modified and in effect, the
"Indenture") among the Company, the Partnership and
Fleet National Bank, in its capacity as trustee (in
such capacity, together with its successor in such
capacity, the "Trustee")
Ladies and Gentlemen:
This requisition (this "Maintenance Requisition") is
delivered to you pursuant to Section 3.6 of the Depositary
Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the
Depositary Agreement and the Indenture. The information relating
to the Maintenance Requisition is as follows:
1. The aggregate amount to be withdrawn from the Overhaul
Fund in accordance with this Maintenance Requisition is
$_____________.
2. The Disbursement Date on which the withdrawals and
transfer from the Overhaul Fund pursuant to this
Maintenance Requisition are to be made is
_____________, _______.
3. Set forth on Schedule 1 attached hereto is the name of
each Person to whom any payment is to be made, the
aggregate amount due and payable on the Disbursement
Date or reasonably expected to be due and payable
within the thirty (30) day period following the
Disbursement Date to such Person and an accurate
description of the work performed, services rendered,
materials, equipment or supplies delivered or any other
purpose for which each payment was or is to be made,
with invoices with respect thereto attached (except for
invoices reasonably expected to be received by the
Partnership during the thirty (30) day period following
the Disbursement Date).
4. The proceeds of this Maintenance Requisition withdrawn
from the Overhaul Fund will be used to pay Major
Maintenance Expenses and the Depositary Agent may
properly charge such Major Maintenance Expenses against
the Overhaul Fund.
5. The Partnership has reviewed the work performed,
services rendered and materials, equipment or supplies
delivered (either directly or, in the case of offsite
work or services, in reliance on sources of information
deemed reliable by the Independent Engineer) for which
payment is requested under this Maintenance
Requisition, and the Depositary Agent may properly
charge such Major Maintenance Expenses against the
Overhaul Fund.
6. The Major Maintenance Expenses for which payment is
requested under this Maintenance Requisition from the
Overhaul Fund have not been the basis for any prior
requisition by the Partnership.
7. As of the date hereof, the Partnership has not received
any written notice of any lien, right to lien or
attachment upon, or claim affecting the Partnership's
right to receive any portion of the amount of this
Maintenance Requisition (other than in respect of
Permitted Liens), or in the event that the Partnership
has received notice of any such lien, attachment or
claim (other than a Permitted Lien), such lien,
attachment or claim has been released or discharged as
of the date hereof or will be released or discharged
upon payment of the Major Maintenance Expenses for
which payment is requested under this Maintenance
Requisition.
8. This Maintenance Requisition contains no items which
represent payment on account of any retained
percentages which the Partnership is entitled to retain
on the date hereof or which will be used to make a
payment of an amount in dispute which the Partnership
is entitled to retain or withhold.
9. Except as set forth on Schedule 2 hereto, the major
overhaul of the Project is in accordance with the
current schedule of major overhaul, as delivered to the
Depositary Agent pursuant to Section 6.11 of the
Indenture, and the exceptions set forth on Schedule 2
hereto could not reasonably be expected to result in a
Material Adverse Change.
10. Attached hereto as Appendix I is an Independent
Engineer's Certificate approving this Maintenance
Requisition.
Very truly yours,
PANDA-▇▇▇▇▇▇▇▇, L.P.
By: Panda-▇▇▇▇▇▇▇▇ Corporation,
its General Partner
By:
Name:
Title:
Schedule 1 to Exhibit A
Amount
Name of Payment Purpose
Schedule 2 to Exhibit A
Maintenance
Exhibit B to
Depositary Agreement
RESTORATION REQUISITION
NO. ______
[Date]
Fleet National Bank, as Depositary Agent
under the Depositary Agreement
referred to below
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ref: Panda-▇▇▇▇▇▇▇▇ 1996
Attention:
Re: Deposit and Disbursement Agreement, dated as of
July 31, 1996 (as amended, supplemented or modified and
in effect, the "Depositary Agreement"), among Panda-
▇▇▇▇▇▇▇▇ Funding Corporation, a Delaware corporation
(the "Company"), Panda-Rosemary, L.P., a Delaware
limited partnership (the "Partnership") and Fleet
National Bank, a national banking association organized
under the laws of the United States in its capacity as
depositary agent (in such capacity, together with its
successors in such capacity, the "Depositary Agent")
and Trust Indenture, dated as of July 31, 1996 (as
amended, supplemented or modified and in effect, the
"Indenture") among the Company, the Partnership and
Fleet National Bank, in its capacity as trustee (in
such capacity, together with its successor in such
capacity, the "Trustee")
Ladies and Gentlemen:
This requisition (this "Restoration Requisition") is
delivered to you pursuant to Section 3.8(b) of the Depositary
Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the
Depositary Agreement and the Indenture. The information relating
to the Maintenance Requisition is as follows:
1. The aggregate amount to be withdrawn from the
Restoration Fund in accordance with this Restoration
Requisition is $_____________.
2. The Disbursement Date on which the withdrawals and
transfers pursuant to this Restoration Requisition are
to be made is _____________, _____.
3. Set forth on Schedule 1 attached hereto is the name of
each Person to whom any payment is to be made, the
aggregate amount due and payable on the Disbursement
Date or reasonably expected to be due and payable
within the thirty (30) day period following the
Disbursement Date to such Person and an accurate
description of the work performed, services rendered,
materials, equipment or supplies delivered or any other
purpose for which each payment was or is to be made,
with invoices with respect thereto attached (except for
invoices of, or other evidences of payment required to,
third parties paid or to be paid by the general
contractor or invoices reasonably expected to be
received during the thirty (30) day period following
the Disbursement Date).
4. The proceeds of this Restoration Requisition withdrawn
from the Restoration Fund will be used to pay the costs
of rebuilding, repair or restoration ("Restoration
Costs") and the Depositary Agent may properly charge
such costs against the Restoration Fund.
5. The Partnership has reviewed the work performed,
services rendered and materials, equipment or supplies
delivered (either directly or, in the case of offsite
work or services, in reliance on sources of information
deemed reliable by the Independent Engineer) for which
payment is requested under this Restoration
Requisition, and the Restoration Costs which have been
paid or for which payment is requested under this
Restoration Requisition are in accordance with the
Restoration Budget and the Restoration Progress Payment
Schedule.
6. The Restoration Costs for which payment is requested
under this Restoration Requisition from the Restoration
Fund have not been the basis of any prior requisition
by the Partnership.
7. As of the date hereof, the Partnership has not received
any written notice of any lien, right to lien or
attachment upon, or claim affecting the Partnership's
right to receive any portion of the amount of this
Restoration Requisition (other than in respect of
Permitted Liens), or in the event that the Partnership
has received notice of any such lien, attachment or
claim (other than a Permitted Lien), such lien,
attachment or claim has been released or discharged as
of the date hereof or will be released or discharged
upon payment of the Restoration Costs for which payment
is requested under this Restoration Requisition.
8. This Restoration Requisition contains no items which
represent payment on account of any retained
percentages which the Partnership is entitled to retain
on the date hereof or which will be used to make a
payment of an amount in dispute which the Partnership
is entitled to retain or withhold.
9. Attached hereto as Appendix I is an Independent
Engineer's Certificate approving this Restoration
Requisition.
Very truly yours,
PANDA-▇▇▇▇▇▇▇▇, L.P.
By: Panda-▇▇▇▇▇▇▇▇ Corporation,
its General Partner
By:
Name:
Title:
Schedule 1 to Exhibit B
Amount
Name of Payment Purpose