Exhibit 10(uu)
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TRINIDAD DEPOSIT AND DISBURSEMENT AGREEMENT
among
YORK POWER FUNDING (CAYMAN) LIMITED
YORK EX INTERNATIONAL SRL
YORK HOLDINGS (BARBADOS) SRL
INNCOGEN, LIMITED
and
THE BANK OF NEW YORK,
as Collateral Agent
and
THE BANK OF NEW YORK,
as Depositary Bank
Dated as of August 4, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINED TERMS AND PRINCIPLES OF CONSTRUCTION
ARTICLE 2
REPORTING REQUIREMENTS; PROCEDURES GOVERNING ACCOUNTS
Section 2.1 PROCEDURES GOVERNING ACCOUNTS.............................................................2
Section 2.2 ESTABLISHMENT OF TRINIDAD DEPOSITARY ACCOUNTS AND SUB-ACCOUNTS............................4
Section 2.3 SECURITY INTEREST.........................................................................4
Section 2.4 TERMINATION...............................................................................5
ARTICLE 3
THE ACCOUNTS
Section 3.1 TRINIDAD CONSTRUCTION ACCOUNT.............................................................6
Section 3.2 TRINIDAD REVENUE ACCOUNT..................................................................7
Section 3.3 TRINIDAD OPERATING ACCOUNT...............................................................10
Section 3.4 TRINIDAD INTEREST ACCOUNT................................................................11
Section 3.5 TRINIDAD PRINCIPAL ACCOUNT...............................................................11
Section 3.6 TRINIDAD MAINTENANCE RESERVE ACCOUNT.....................................................12
Section 3.7 TRINIDAD LOSS PROCEEDS ACCOUNT...........................................................12
Section 3.8 TRINIDAD ADDITIONAL RESERVE ACCOUNT......................................................14
Section 3.9 TRINIDAD DISTRIBUTION ACCOUNT............................................................14
Section 3.10 WITHDRAWALS FROM THE TRINIDAD DEPOSITARY ACCOUNTS ON THE DEBT TERMINATION DATE...........15
Section 3.11 INVESTMENTS..............................................................................15
Section 3.12 RECEIPT OF PROCEEDS......................................................................16
Section 3.13 BENEFIT OF ACCOUNTS......................................................................17
Section 3.14 INFORMATION..............................................................................17
Section 3.15 ACCOUNTS GENERALLY.......................................................................17
Section 3.16 DEPOSITARY BANK OBLIGATIONS LIMITED......................................................17
Section 3.17 TRIGGER EVENTS...........................................................................18
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ARTICLE 4
THE DEPOSITARY BANK
Section 4.1 APPOINTMENT OF DEPOSITARY BANK, POWERS AND IMMUNITIES....................................18
Section 4.2 RELIANCE BY DEPOSITARY BANK..............................................................19
Section 4.3 COURT ORDERS.............................................................................20
Section 4.4 RESIGNATION OR REMOVAL...................................................................20
Section 4.5 EXPENSES; INDEMNIFICATION; FEES..........................................................21
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 DIRECTION TO DEPOSITARY BANK.............................................................22
Section 5.2 ACTION BY DEPOSITARY BANK................................................................22
Section 5.3 BENEFIT OF AGREEMENT.....................................................................22
Section 5.4 NOTICES..................................................................................22
Section 5.5 COUNTERPARTS; DESCRIPTIVE................................................................22
Section 5.6 GOVERNING LAW; SUBMISSION TO JURISDICTION................................................22
Section 5.7 NO WAIVER; CUMULATIVE REMEDIES...........................................................24
Section 5.8 ASSIGNMENT...............................................................................24
Section 5.9 TIME OF DAY; ENGLISH LANGUAGE............................................................24
Section 5.10 BINDING EFFECT...........................................................................24
Section 5.11 NOTICE OF ADVERSE CLAIM..................................................................24
Section 5.12 LIMITATION OF FUNDING COMPANY'S LIABILITY................................................25
Section 5.13 THE COLLATERAL AGENT. ..................................................................25
Schedule 1 Trinidad Depositary Accounts
Exhibit A Trinidad Construction Requisition
Exhibit B Non-Budgeted Operating and Maintenance Expense Certificate
Exhibit C Restoration Requisition
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TRINIDAD DEPOSIT AND DISBURSEMENT AGREEMENT
TRINIDAD DEPOSIT AND DISBURSEMENT AGREEMENT, dated as of
August 4, 1998 (this "AGREEMENT"), among YORK POWER FUNDING (CAYMAN) LIMITED a
limited liability company incorporated under the laws of the Cayman Islands
("FUNDING COMPANY"), YORK EX INTERNATIONAL SRL, a Barbados exempt society with
restricted liability (the "TRINIDAD PROJECT BORROWER"), YORK HOLDINGS (BARBADOS)
SRL, a Barbados society with restricted liability (the "TRINIDAD GUARANTOR"),
INNCOGEN, LIMITED, a Trinidad limited liability company incorporated under the
laws of the Republic (the "TRINIDAD OBLIGOR" and, together with the Trinidad
Project Borrower and the Trinidad Guarantor, the "TRINIDAD FINANCE PARTIES"),
THE BANK OF NEW YORK, a New York banking corporation, as collateral agent (in
such capacity, together with its successors in such capacity, the "COLLATERAL
AGENT") under the Collateral Agency and Intercreditor Agreement referred to
below for the benefit of the Secured Parties and THE BANK OF NEW YORK, a New
York banking corporation, as the depositary bank (in such capacity, together
with its successors in such capacity, the "DEPOSITARY BANK") under this
Agreement.
W I T N E S S E T H:
WHEREAS, Funding Company is a limited liability company
established for the sole purpose of issuing the Securities in its individual
capacity as principal and as agent acting on behalf of the U.S. Guarantors
pursuant to the Indenture and to make loans to the Project Borrowers pursuant to
the Project Loan Agreements;
WHEREAS, Funding Company has simultaneously with the execution
and delivery of this Agreement issued and sold the Initial Securities pursuant
to the Indenture;
WHEREAS, payments of the principal of, premium (if any),
interest on and any other amounts due with respect to the Initial Securities
will be partially serviced by repayment of the Trinidad Project Loan and
guaranteed by the Trinidad Guarantor;
WHEREAS, the Collateral Agent, Funding Company
and the Project Obligors are entering into the Security
Documents, pursuant to which the Collateral Agent, acting on behalf of the
Secured Parties, will obtain a continuing Lien on and perfected security
interest in the Collateral;
WHEREAS, the Secured Parties and the Project Obligors are
entering into a Collateral Agency and 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 Trinidad Depositary Accounts established pursuant to this
Agreement; and
WHEREAS, Funding Company and the Trinidad Finance Parties
desire to (a) grant to the Collateral Agent, acting on behalf of the Secured
Parties solely with respect to amounts owed pursuant to the Trinidad Project
Loan Agreement, a Lien on and security interest in, among other things, the
Trinidad Depositary Accounts established pursuant to this Agreement and (b) the
Collateral Agent desires to appoint the Depositary Bank as depositary bank to
hold and administer money deposited in the various Trinidad Depositary Accounts
established pursuant to this Agreement and funded with, among other things,
proceeds of certain insurance and revenues generated by and/or distributed to
Funding Company and the Trinidad Finance Parties.
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 1
DEFINED TERMS AND PRINCIPLES OF CONSTRUCTION
For all purposes of this Agreement, (a) capitalized terms used
but not otherwise defined herein shall have the meanings set forth in APPENDIX A
to the Indenture and (b) the principles of construction set forth in SECTION 1.1
(Definitions; Construction) of the Indenture shall apply.
ARTICLE 2
REPORTING REQUIREMENTS; PROCEDURES GOVERNING ACCOUNTS
Section 2.1 PROCEDURES GOVERNING ACCOUNTS.
(a) The Depositary Bank hereby agrees to act as such and to
accept all cash, payments, other amounts (including any instruments in respect
thereof) and Cash Equivalents to be delivered to or held by the Depositary Bank
pursuant to the terms of this Agreement, and to promptly deposit all such
amounts and Cash Equivalents into the Trinidad Depositary Accounts established
hereunder or the Debt Service Reserve Account established under the U.S.
Depositary Agreement in accordance with the terms hereof. The Depositary Bank
shall hold and safeguard the Trinidad Depositary Accounts during the term of
this Agreement and shall treat the cash, payments, other amounts and Cash
Equivalents, and all rights related thereto, now or hereafter deposited in or
credited to the Trinidad Depositary Accounts as "financial assets" (as defined
in Section 8-102(a)(9) of the Revised UCC), pledged by Funding Company and the
Trinidad Finance Parties to the Collateral
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Agent for the benefit of the Secured Parties, to be held by the Depositary Bank,
acting as a "securities intermediary" (as defined in the Revised UCC).
(b) The Trinidad Depositary Accounts and sub-accounts
established pursuant to SECTION 2.2 (Establishment of Trinidad Depositary
Accounts and Sub-accounts) shall be in the name of the Collateral Agent, for the
benefit of the Secured Parties, for purposes of granting the Collateral Agent,
on behalf of the Secured Parties, a security interest therein in accordance with
the Security Documents. All amounts and Cash Equivalents from time to time held
in each Trinidad Depositary Account shall be (a) registered in the name of the
Collateral Agent for the benefit of the Secured Parties, (b) held in the custody
of the Depositary Bank for the purposes and on the terms set forth in this
Agreement and the other Finance Documents or (c) endorsed to the Collateral
Agent or credited to another account maintained in the name of Collateral Agent.
All such amounts shall constitute a part of the Collateral and shall not
constitute payment of any Indebtedness or any other obligation of Funding
Company or any Trinidad Finance Party until applied as hereinafter provided.
(c) Each of Funding Company and the Trinidad Finance Parties
agree that its rights to amounts and Cash Equivalents held in the Trinidad
Depositary Accounts are subject to and controlled by the terms of this
Agreement. In no case will any amounts or Cash Equivalents deposited in or
credited to any Trinidad Depositary Accounts be registered in the name of
Funding Company or any Trinidad Finance Party, payable to the order of Funding
Company or any Trinidad Finance Party or specially endorsed to Funding Company
or any Trinidad Finance Party except to the extent the foregoing have been
specially endorsed to the Collateral Agent or in blank. Each of Funding Company
and the Trinidad Finance Parties agree that the Trinidad Depositary Accounts and
sub-accounts established hereto, together with the U.S. Depositary Accounts,
shall be the only deposit accounts of Funding Company and each Trinidad Finance
Party.
(d) The Depositary Bank hereby agrees that it will comply with
"entitlement orders" (within the meaning of Section 8-102(a)(8) of the Revised
UCC, including, without limitation, any notification to the Depositary Bank
directing transfer or redemption of any securities or other financial assets in
any Trinidad Depositary Account) issued by the Collateral Agent and relating to
any Trinidad Depositary Account without the requirement of further consent by
Funding Company or any Trinidad Finance Party or any other Person. The
Depositary Bank hereby represents that it has not entered into, and, hereby
agrees that until the termination of each of the Finance Documents, it will not
enter into, any agreement with any other Person (other than Funding Company or
any Trinidad Finance Party) relating to the Trinidad Depositary Accounts (or the
amounts and Cash Equivalents deposited therein or credited thereto) pursuant to
which it has agreed to comply with entitlement orders made by such Person. The
Depositary Bank hereby represents that it has not entered into any other
agreement with Funding Company or any Trinidad Finance Party or the Collateral
Agent purporting to limit or condition the obligation of the Depositary
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Bank to comply with entitlement orders as set forth in this SECTION 2.1(d). The
Collateral Agent agrees that it shall not issue entitlement orders in any
circumstances which are not permitted by this Agreement, and Funding Company or
any Trinidad Finance Party shall have a cause of action against the Collateral
Agent for any damages suffered as a result of the Collateral Agent issuing
entitlement orders not authorized by this Agreement.
Section 2.2 ESTABLISHMENT OF TRINIDAD DEPOSITARY ACCOUNTS AND
SUB-ACCOUNTS. The Collateral Agent hereby establishes the following U.S. Dollar
denominated accounts (the "TRINIDAD DEPOSITARY ACCOUNTS") in the form of
non-interest bearing accounts and sub-accounts thereof, subject to the
provisions of SECTION 3.11 (Investments) (and each such Trinidad Depositary
Account or sub-account shall be a "securities account" as such term is defined
in Section 8-501(a) of the Revised UCC), which shall be maintained at all times
in accordance with SECTION 2.1 (Procedures Governing Accounts) until the
termination of this Agreement:
(i) Trinidad Revenue Account;
(ii) Trinidad Project Borrower Account;
(iii) Trinidad Guarantor Account;
(iv) Trinidad Interest Account;
(v) Trinidad Principal Account;
(vi) Trinidad Distribution Account;
(vii) Trinidad Distribution Suspense Account;
(viii) Trinidad Loss Proceeds Account;
(ix) Trinidad Redemption Account;
(x) Trinidad Operating Account;
(xi) Trinidad Construction Account;
(xii) Trinidad Maintenance Reserve Account; and
(xiii) Trinidad Additional Reserve Account.
Certain additional sub-accounts within certain of the Trinidad
Depositary Accounts may be established and created from time to time in
accordance with this Agreement.
The Trinidad Obligor may also establish a local account in the
Republic of Trinidad and Tobago (the "TRINIDAD LOCAL ACCOUNT") which may be
funded with amounts transferred in accordance with the terms hereof which shall
be included in the definition of "Trinidad Depositary Accounts" for all purposes
of the Finance Documents other than the provisions set forth in SECTION 2.1
(Procedures Governing Accounts) requiring each Trinidad Depositary Account to be
established at the Depositary Bank.
Section 2.3 SECURITY INTEREST. (a) As collateral
security for the prompt and complete payment and performance when due of all its
obligations owing to any Secured Party pursuant to the terms of each Finance
Document to which a Trinidad Finance
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Party is a party to, Funding Company and each Trinidad Finance Party have
pledged, assigned, hypothecated and transferred to the Collateral Agent for
the benefit of the Secured Parties, and have granted to the Collateral Agent
a Lien on and security interest in and to, and in furtherance thereof hereby
pledges, assigns, hypothecates and transfers to the Depositary Bank for the
benefit of the Secured Parties, and hereby grants to Depositary Bank a Lien
on and security interest in and to (i) each Trinidad Depositary Account and
(ii) all cash, investments and securities at any time on deposit in any
Trinidad Depositary Account, including all income or gain earned thereon. The
Depositary Bank 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 each Trinidad Depositary Account and all cash, investments and
securities and any proceeds thereof at any time on deposit in each Trinidad
Depositary Account; PROVIDED that the Depositary Bank 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 complying with this Agreement. Each
Trinidad Depositary Account shall at all times be in the exclusive possession
of, and under the exclusive domain and control of, the Depositary Bank, as
agent for the Collateral Agent.
The Depositary Bank shall not change the name or account
number of any of the foregoing Trinidad Depositary Accounts or sub-accounts
without giving prior notification to the Collateral Agent, Funding Company and
the Trinidad Finance Parties.
(b) The Depositary Bank hereby waives any right of set-off or
recoupment that it may have or obtain with respect to the Trinidad Depositary
Accounts or any amounts or Cash Equivalents deposited therein or credited
thereto other than any right of set-off or recoupment it may exercise on behalf
of the Secured Parties.
Section 2.4 TERMINATION. The rights and powers granted herein
to the Collateral Agent, granted in order to perfect the Collateral Agent's
security interest in the Trinidad Depositary Accounts, are coupled with an
interest and will be affected neither by the bankruptcy of Funding Company or
any Trinidad Finance Party nor by the lapse of time. The obligations of the
Collateral Agent hereunder shall continue in effect until the termination of the
Intercreditor Agreement pursuant to SECTION 5.10 (Termination) thereof.
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ARTICLE 3
THE ACCOUNTS
Section 3.1 TRINIDAD CONSTRUCTION ACCOUNT. (a) On the
Closing Date, $70,850,0000 shall be delivered to the Depositary Bank and
deposited in the Trinidad Construction Account from the Bond Proceeds.
(b) Amounts held in the Trinidad Construction Account shall be
applied solely for the payment (or reimbursement to the extent the same have
been previously paid or satisfied) of costs incurred or to be incurred in
connection with the construction of the Trinidad Project ("TRINIDAD CONSTRUCTION
EXPENSES"), for the payment of Trinidad Construction Expenses due and payable or
reasonably expected to be due and payable during the 30- day period following an
applicable Disbursement Date and for the payment of Operating and Maintenance
Expenses incurred prior to Substantial Completion of the Trinidad Project or
reasonably expected to be due payable during the 30-day period following an
applicable Disbursement Date. All monies withdrawn from the Trinidad
Construction Account shall be withdrawn in accordance with the disbursement
procedure hereinafter described in this SECTION 3.1. If the amounts on deposit
in the Trinidad Construction Account are insufficient to complete the Trinidad
Project, monies may be withdrawn first from the Trinidad Distribution Suspense
Account and secondly from the Debt Service Reserve Account and transferred to
the Trinidad Construction Account in amounts equal to the amount, as certified
by the Trinidad Obligor, necessary to complete with Trinidad Project.
(c) As a condition precedent to any withdrawal and transfer
from the Trinidad Construction Account the Depositary Bank shall have received
from an Authorized Officer of the Trinidad Obligor and the Independent Engineer,
with respect to each Disbursement Date, a requisition in the form attached
hereto as EXHIBIT A (the "TRINIDAD CONSTRUCTION REQUISITION") within at least
five (5) Business Days prior to such Disbursement Date as set forth therein on
which such withdrawal and transfer is requested to be made.
(d) On the earlier of the Disbursement Date referred to in
SECTION 3.1(c), or as soon as possible following receipt of the Trinidad
Construction Requisition, the Depositary Bank shall make payments in accordance
with such Trinidad Construction Requisition.
(e) Following Substantial Completion of the Trinidad Project
as evidenced by an Officer's Certificate of the Trinidad Obligor delivered to
the Depositary Bank, excess funds, if any, in the Trinidad Construction Account
shall be transferred to the Trinidad Revenue Account for distribution to the
other Trinidad Depositary Accounts, as provided in SECTION 3.2 (Trinidad Revenue
Account).
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Section 3.2 TRINIDAD REVENUE ACCOUNT. (a) The following
amounts shall be deposited into the Trinidad Revenue Account: (i) all Cash Flows
actually received by the Trinidad Finance Parties (other than such proceeds
deposited in the Trinidad Local Account as permitted herein); PROVIDED that Cash
Flows initially received by the Trinidad Obligor shall immediately be converted
into U.S. dollars (if necessary) and initially be deposited into the Trinidad
Guarantor Account and immediately and automatically withdrawn therefrom by the
Depositary Bank and transferred to the Trinidad Project Borrower Account and
immediately and automatically withdrawn therefrom by the Depositary Bank and
transferred to the Trinidad Revenue Account, in either case except for such
proceeds deposited in the Trinidad Local Account as permitted herein, (ii) all
amounts from the Trinidad Construction Account in accordance with SECTION 3.1
(Trinidad Construction Account), (iii) to the extent the amount on deposit in
the Debt Service Reserve Account equals the Debt Service Reserve Required
Balance, any income from the investment of the monies in any Trinidad Depositary
Account pursuant to SECTION 3.11 (Investments), (iv) any proceeds actually
received from the sale of assets by any Trinidad Finance Party in accordance
with the terms of the Trinidad Project Loan Agreement or the Trinidad Loan
Agreement, (v) all proceeds actually received from any business interruption
insurance actually received with respect to the Trinidad Project, (vi) any
proceeds of Additional Securities issued under SECTION 2.3(d) (Additional
Securities) of the Indenture and on-lent to any Trinidad Finance Party, (vii)
all Loss Proceeds not required to be maintained in the Trinidad Loss Proceeds
Account pursuant to SECTION 3.7 (Trinidad Loss Proceeds Account) and (viii)
certain amounts specified hereunder to be withdrawn from other Trinidad
Depositary Account or sub-accounts. Each Trinidad Finance Party shall instruct
all parties at any time paying material amounts of Cash Flows to such Trinidad
Finance Party, and shall use all commercially reasonable efforts to cause all
such parties to agree, to make all payments of such Cash Flows into the Trinidad
Revenue Account. Each Trinidad Finance Party shall certify to the Collateral
Agent and the Depositary Bank, as to the parties (and to the extent known, the
amounts) that will make payments into the Trinidad Revenue Account, and shall
promptly notify the Collateral Agent and the Depositary Bank in writing if it is
aware of any refusal or failure by any such party to make such payments into the
Trinidad Revenue Account and shall deliver any and all Cash Flows received by
such Trinidad Finance Party to the Depositary Bank for deposit to the Trinidad
Revenue Account as promptly as possible. Any excess amounts in any of the
Trinidad Depositary Accounts will be transferred to the Trinidad Revenue Account
on the next Funding Date.
(b) WITHDRAWALS FROM THE TRINIDAD REVENUE ACCOUNT. Provided
that no Trigger Event has occurred and is continuing, Funding Company and each
Trinidad Finance Party hereby irrevocably authorize the Depositary Bank, on each
Funding Date, to make withdrawals and transfers of moneys to the extent then
available in the Trinidad Revenue Account and not segregated for any specific
purpose as provided in this SECTION 3.2, upon the delivery of an Officer's
Certificate of the applicable Trinidad Finance Party to the Depositary Bank at
least three (3) Business Days prior to a scheduled Funding Date setting
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forth the amounts to be withdrawn, transferred or segregated pursuant to this
clause (b), in the following order of priority:
(i) FIRST: Withdraw and transfer to the Bond Trustee, the
Collateral Agent and the Depositary Bank the amount set forth in the
Officer's Certificate of the Trinidad Finance Parties equal to the
Trinidad Finance Parties' PRO RATA portion of the fees and expenses
then due and payable to each of the Bond Trustee, the Collateral Agent
and the Depositary Bank in accordance with the relative value of the
outstanding Trinidad Project Loans as compared to the value of the
outstanding U.S. Project Loans; PROVIDED, HOWEVER, that if monies in
the Trinidad Revenue Account are insufficient on any date to make
payments specified in this clause (i), distribution of monies shall be
made ratably to the specified recipients based on the respective
amounts owed to such recipients;
(ii) SECOND: After making the withdrawals specified in clause
(i), withdraw and transfer to the Trinidad Operating Account the amount
set forth in the Officer's Certificate of the Trinidad Obligor to be
the amounts payable for Operating and Maintenance Expenses due and
payable at any time during the next sixty (60) days beginning on such
Funding Date, less (x) the aggregate of the amounts previously
transferred on any prior Funding Date for Operating and Maintenance
Expenses and not otherwise used as of such date and (y) the amounts
currently on deposit in the Trinidad Local Account for such purpose and
such Authorized Officer certifies that the proviso immediately below
does not apply to such withdrawal; PROVIDED that if the cumulative
actual and projected Operating and Maintenance Expenses in any
operating year, including the amounts set forth in such Officer's
Certificate, exceed the projected Operating and Maintenance Expenses in
the applicable Operating Budget by more than 25%, then no amounts may
be withdrawn on behalf of the Trinidad Obligor to pay non-budgeted
operating costs unless the Depositary Bank shall have received:
(x) an Officer's Certificate of the Trinidad Obligor
substantially in the form attached hereto as EXHIBIT B (the
"NON-BUDGETED OPERATING AND MAINTENANCE COSTS CERTIFICATE"),
within at least three (3) Business Days prior to such
requested Disbursement Date; or
(y) an Independent Engineer's certificate substantially in the
form attached as APPENDIX I to EXHIBIT B, dated not more than
three (3) Business Days prior to such requested Disbursement
Date;
(iii) THIRD: After making the withdrawals specified in clauses
(i) and (ii), withdraw and transfer to the Trinidad Interest Account
the amount set forth in the Officer's Certificate of the Trinidad
Finance Parties for payment of the sum of (x) one-sixth of the interest
due and payable with respect to the Trinidad Project
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Note and Trinidad Loan (if any) (without duplication) on the next
Scheduled Payment Date (unless such Funding Date is also a Scheduled
Payment Date when the amount transferred shall equal the excess of the
total amount of interest due and payable on the Trinidad Project Note
and Trinidad Loan (if any) (without duplication) on such date less the
amounts already transferred to the Trinidad Interest Account for such
purpose) and (y) interest due and payable at any time during the
Funding Period commencing on such Funding Date with respect to the
Permitted Indebtedness (other than the Trinidad Project Note and
Trinidad Loan) incurred for the benefit of the Trinidad Project
PROVIDED that any transfers required pursuant to this priority THIRD
which were not made on the prior Funding Date because the amounts in
the Trinidad Revenue Account were insufficient to make such transfers
shall also be made as of the current Funding Date;
(iv) FOURTH: After making the withdrawals specified in clauses
(i), (ii) and (iii), withdraw and transfer to the Trinidad Principal
Account the amount set forth in the Officer's Certificate of the
Trinidad Finance Parties for payment of the sum of (x) one-sixth of
the principal and premium, if any, due and payable with respect to the
Trinidad Project Note and Trinidad Loan (if any) (without duplication)
on the next Scheduled Payment Date (unless such Funding Date is also a
Scheduled Payment Date when the amount transferred shall equal the
excess of the total amount of principal and premium, if any, due and
payable on the Trinidad Project Note and Trinidad Loan (if any)
(without duplication) on such date less the amounts transferred to the
Trinidad Principal Account for such purpose) and (y) principal due and
payable at any time during the Funding Period commencing on such
Funding Date with respect to the Permitted Indebtedness (other than
the Trinidad Project Note and Trinidad Loan) incurred for the benefit
of the Trinidad Project; PROVIDED that any transfers required pursuant
to this priority FOURTH which were not made on the prior Funding Date
because the amounts in the Trinidad Revenue Account were insufficient
to make such transfers shall also be made as of the current Funding
Date;
(v) FIFTH: After making withdrawals specified in clauses (i),
(ii), (iii) and (iv), withdraw and transfer to the applicable Secured
Parties the amount set forth in the Officer's Certificate of the
Trinidad Finance Parties for payment of any indemnification expenses or
other amounts heretofore not paid and required to be paid to any of the
Secured Parties, to the extent then due and payable; PROVIDED, HOWEVER,
that if monies in the Trinidad Revenue Account are insufficient on any
date to make the payments specified in this clause (v), distribution of
monies shall be made ratably to the specified recipients based on the
respective amounts owed such recipients;
(vi) SIXTH: Following Substantial Completion of the Trinidad
Project, after making the withdrawals and transfers specified in
clauses (i), (ii), (iii), (iv) and
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(v), withdraw and transfer to the Trinidad Maintenance Reserve Account
an amount equal to the Trinidad Maintenance Requirement, less amounts
already on deposit in the Trinidad Maintenance Reserve Account, as set
forth in an Officer's Certificate of the Trinidad Obligor;
(vii) SEVENTH: After making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv), (v) and (vi), withdraw
and transfer to the Debt Service Reserve Account the amount set forth
in the Officer's Certificate of the Trinidad Finance Parties which is
equal to the excess, if any, of (x) the Debt Service Reserve Required
Balance less (y) the amount determined by the Depositary Bank pursuant
to SECTION 3.6 (Debt Service Reserve Account) of the U.S. Depositary
Agreement to be held in the Debt Service Reserve Account as of such
date, after giving effect to any withdrawals from the Debt Service
Reserve Account made on such date; PROVIDED that such amount shall be
reduced by an amount equal to the amount transferred to the Debt
Service Reserve Account in accordance with SECTION 3.2(vii) of the
U.S. Depositary Agreement;
(viii) EIGHTH: after making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii), on
any date after October 30, 2005, transfer to the Trinidad Additional
Reserve Account an amount equal to 50% of the amounts remaining on
deposit in the Trinidad Revenue Account and;
(ix) NINTH: After making the withdrawals and transfers
specified in clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and
(viii), transfer to the Trinidad Distribution Account the balance, if
any, remaining in the Trinidad Revenue Account.
When determining the amounts currently on deposit in any Trinidad Depositary
Account, the Depositary Bank shall include all amounts deposited therein by any
U.S. Guarantor or any other party.
Section 3.3 TRINIDAD OPERATING ACCOUNT. Monies on deposit in
the Trinidad Operating Account shall be used for the payment of Operating and
Maintenance Expenses. Amounts due and payable with respect to Operating and
Maintenance Expenses for the Trinidad Project during the next sixty (60) days
(less amounts already on deposit in the Trinidad Local Account) shall be
transferred to the Trinidad Local Account if so directed by the Trinidad Finance
Parties. On any date that such amounts are due and payable and have been
requisitioned in accordance with SECTION 3.2(b)(ii) (Withdrawals from the
Trinidad Revenue Account), the Depositary Bank shall withdraw the monies on
deposit in the Trinidad Operating Account and remit such monies to either the
Persons entitled thereto for the payment of such Operating and Maintenance
Expense or to the Trinidad Local Account, as directed by the Trinidad Obligor.
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Section 3.4 TRINIDAD INTEREST ACCOUNT. (a) Monies on
deposit in the Trinidad Interest Account shall be used for the payment of
interest due and payable on the Trinidad Project Note and Trinidad Loan (if any
and without duplication) and Permitted Indebtedness (other than the Trinidad
Project Note and Trinidad Loan) incurred for the benefit of the Trinidad
Project. On any date that such amounts are due and payable and have been
requisitioned in accordance with SECTION 3.2(b)(iii) (Withdrawals from the
Trinidad Revenue Account), the Depositary Bank shall, subject to the last
proviso of such SECTION 3.2(b)(iii), withdraw the monies on deposit in the
Trinidad Interest Account and remit such monies to the Persons entitled thereto
for the payment of such interest.
(b) If monies in the Trinidad Interest Account are
insufficient on any date to make any required interest payment due and payable
on the Trinidad Project Note and Trinidad Loan (if any and without duplication)
and Permitted Indebtedness (other than the Trinidad Project Note and Trinidad
Loan) incurred for the benefit of the Trinidad Project, then the Depositary Bank
shall withdraw funds and pay such deficiency from the Debt Service Reserve
Account, the Trinidad Distribution Suspense Account and lastly the Trinidad
Maintenance Reserve Account. If an insufficient amount of monies remains on
deposit in the Trinidad Interest Account following the transfer in the preceding
sentence, then distribution of monies shall be made ratably to the Persons
entitled thereto.
(c) Funding Company, the Trinidad Finance Parties, the
Collateral Agent and the Depositary Bank hereby acknowledge that amounts paid by
the Trinidad Finance Parties and transferred to the Trinidad Interest Account
pursuant to the terms hereof and applied by the Depositary Bank for payment of
interest owed from time to time on the Securities shall reduce the amount of
interest owed with respect to the Trinidad Project Note and Trinidad Loan by
such amount.
Section 3.5 TRINIDAD PRINCIPAL ACCOUNT. (a)
Monies on deposit in the Trinidad Principal Account shall be used for the
payment of principal and premium (if any) due and payable on the Trinidad
Project Note and Trinidad Loan (without duplication) and Permitted Indebtedness
(other than the Trinidad Project Note and Trinidad Loan) incurred for the
benefit of the Trinidad Project. On any date that such amounts are due and
payable and have been requisitioned in accordance with SECTION 3.2(b)(iv)
(Withdrawals from the Trinidad Revenue Account), the Depositary Bank shall,
subject to the last proviso of such SECTION 3.2(b)(iv), withdraw the monies on
deposit in the Trinidad Principal Account and remit such monies to the Persons
entitled thereto for the payment of such principal and premium (if any).
(b) If monies in the Trinidad Principal Account are
insufficient on any date to make any required principal and premium (if any)
payment due and payable on the Trinidad Project Note and Trinidad Loan (without
duplication) and Permitted Indebtedness (other than the Trinidad Project Note
and Trinidad Loan) incurred for the benefit of the Trinidad Project, then the
Depositary Bank shall withdraw funds and pay such deficiency
11
from the Debt Service Reserve Account, the Trinidad Distribution Suspense
Account and lastly the Trinidad Maintenance Reserve Account. If an insufficient
amount of monies remains on deposit in the Trinidad Principal Account following
the transfer in the preceding sentence, then distribution of monies shall be
made ratably to the Persons entitled thereto.
(c) Funding Company, the Trinidad Finance Parties, the
Collateral Agent and the Depositary Bank hereby acknowledge that amounts paid by
the Trinidad Finance Parties and transferred to the Trinidad Principal Account
pursuant to the terms hereof and applied by the Depositary Bank for payment of
principal and premium (if any) owed from time to time on the Securities shall
reduce the amount of principal and premium (if any) owed with respect to
Trinidad Project Note and Trinidad Loan (to the extent provided in the Trinidad
Loan Agreement) by such amount.
Section 3.6 TRINIDAD MAINTENANCE RESERVE ACCOUNT. After
Substantial Completion of the Trinidad Project, the Trinidad Maintenance Reserve
Account will be funded in an amount equal to the Trinidad Maintenance
Requirement, and amounts held in the Trinidad Maintenance Account shall be
applied to pay Maintenance Expenses with respect to the Trinidad Project. At
least three (3) Business Days prior to any date on which Maintenance Expenses
are due and payable, the Trinidad Obligor shall deliver an Officer's Certificate
certifying that such Maintenance Expenses are due and payable and the amount of
such Maintenance Expenses and the Depositary Bank shall, in accordance with the
requirements of the Independent Engineer and upon the written request by the
Trinidad Obligor, withdraw the monies on deposit in the Trinidad Maintenance
Reserve Account in an amount equal to the amount of Maintenance Expenses then
due and remit such monies to the Trinidad Obligor for payment of such
Maintenance Expenses.
Section 3.7 TRINIDAD LOSS PROCEEDS ACCOUNT.
(a) All Loss Proceeds received directly or indirectly by the
Trinidad Obligor shall be paid directly into the Trinidad Loss Proceeds Account;
PROVIDED that any insurance proceeds related to any delayed opening or business
interruption insurance policies shall be paid directly into the Trinidad Revenue
Account. If any Loss Proceeds are received by or on behalf of the Trinidad
Obligor, such Loss Proceeds shall be received in trust for the Collateral Agent,
segregated from the other funds of the Trinidad Obligor and immediately paid to
the Collateral Agent for deposit into the Trinidad Loss Proceeds Account or the
Trinidad Revenue Account, as the case may be. Amounts held in the Trinidad Loss
Proceeds Account shall be applied solely for the payment of the costs of
rebuilding, repair or restoration of the Trinidad Project or as otherwise set
forth below.
(b) If an Event of Loss with respect to the Trinidad Project
shall have occurred requiring the payment of Loss Proceeds in excess of
$2,000,000 and the Trinidad Project is not or cannot be repaired, rebuilt or
restored in accordance with an Approved Restoration Plan, then the Depositary
Bank shall withdraw and transfer to the Trinidad
12
Redemption Account all such proceeds on deposit in the Trinidad Loss Proceeds
Account relating to such Event of Loss for application by the Bond Trustee to
the redemption of the Securities in accordance with SECTION 3.2 (Mandatory
Redemption) of the Indenture and, upon such application, the Trinidad Project
Loan and Trinidad Loan then required to be prepaid in accordance with SECTION
2.4(b) (Prepayment) of the Trinidad Project Loan Agreement and the Trinidad Loan
Agreement, respectively, shall be deemed to be prepaid as well. In the event
that the Loss Proceeds received relating to such Event of Loss do not exceed
$2,000,000, then such Loss Proceeds shall be withdrawn from the Trinidad Loss
Proceeds Account and deposited in the Trinidad Revenue Account.
(c) If (i) an Event of Loss with respect to the Trinidad
Project shall have occurred requiring the payment of Loss Proceeds and (ii) an
Approved Restoration Plan with respect to such Event of Loss has been received
by the Depositary Bank, the Depositary Bank shall withdraw and pay to the
Trinidad Obligor, upon satisfaction of the conditions set forth in SECTION
3.7(d) below and provided that no Project Event of Default has occurred and is
continuing, such proceeds on deposit in the Trinidad Loss Proceeds Account
relating to such Event of Loss from time to time in installments sufficient to
pay for restoration as it progresses. In the event there are any amounts on
deposit in the Trinidad Loss Proceeds Account relating to such Event of Loss in
excess of $2,000,000 in excess of the amount necessary to effect such
restoration, then the Collateral Agent shall withdraw and transfer to the
Trinidad Redemption Account all such excess Loss Proceeds on deposit in the
Trinidad Loss Proceeds Accounts relating to such Event of Loss for application
by the Bond Trustee to the redemption of the Securities in accordance with
SECTION 3.2 (Mandatory Redemption) of the Indenture and, upon such application,
the Trinidad Project Loans and Trinidad Loans then required to be prepaid in
accordance with SECTION 2.4(b) (Prepayment) of the Trinidad Project Loan
Agreement and the Trinidad Loan Agreement, respectively, shall be deemed to be
prepaid as well. In the event that the excess Loss Proceeds received relating to
such Event of Loss do not exceed $2,000,000, then such excess Loss Proceeds
shall be withdrawn from the Trinidad Loss Proceeds Account and deposited in the
Trinidad Revenue Account.
(d) APPLICATION OF FUNDS TO APPROVED RESTORATION PLAN. Amounts
on deposit in the Trinidad Loss Proceeds Account shall be used for restoration
of the Trinidad Project to the extent provided in subsections (b) and (c) above
on the following terms and conditions:
(i) The Depositary Bank, prior to the initial release of such
amounts, receives a copy of the Approved Restoration Plan;
(ii) For the initial release and each subsequent release of
such amounts the Depositary Bank receives an executed Restoration
Requisition in the form of EXHIBIT C hereto (the "RESTORATION
REQUISITION") and an executed Independent Engineer's Certificate in the
form attached thereto.
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(iii) The release of such amounts shall be made within five
(5) days after the Depositary Bank receives a proper Restoration
Requisition therefor.
(e) Upon the occurrence of an Power Contract Buy-Out, all
proceeds received by or on behalf of any of the Trinidad Finance Parties in
respect of such Power Contract Buy-Out shall be deposited into the Trinidad Loss
Proceeds Account. Such proceeds in excess of $2,000,000 shall be withdrawn and
transferred to the Trinidad Redemption Account for application by the Bond
Trustee to the redemption of the Securities in accordance with the terms of
SECTION 3.2 (Mandatory Redemption) of the Indenture and, upon such application,
the Trinidad Project Loan and Trinidad Loan then required to be prepaid in
accordance with SECTION 2.4(b) (Prepayment) of the Trinidad Project Loan
Agreement and the Trinidad Loan Agreement, respectively, shall be deemed to be
prepaid as well. Any proceeds of any Power Contract Buy-Out not required
pursuant to the Indenture to be used for the redemption of the Securities shall
be withdrawn from the Trinidad Loss Proceeds Account and transferred to the
Trinidad Revenue Account.
(f) All liquidated damages received by the Trinidad Obligor
pursuant to the Trinidad EES Contract or the Trinidad Turnkey Construction
Contract shall be deposited into the Trinidad Loss Proceeds Account. Such
proceeds in excess of $1,000,000 shall be withdrawn and transferred to the
Trinidad Redemption Account for application by the Bond Trustee to the
redemption of the Securities in accordance with the terms of SECTION 3.2
(Mandatory Redemption) of the Indenture and, upon such application, the Trinidad
Project Loan and Trinidad Loan then required to be prepaid in accordance with
SECTION 2.4(b) (Prepayment) of the Trinidad Project Loan Agreement and the
Trinidad Loan Agreement, respectively, shall be deemed to be prepaid as well.
Any liquidated damages not required pursuant to the Indenture to be used for the
redemption of the Securities shall be withdrawn from the Trinidad Loss Proceeds
Account and transferred to the Trinidad Revenue Account.
Section 3.8 TRINIDAD ADDITIONAL RESERVE ACCOUNT. Monies on
deposit in the Trinidad Additional Reserve Account shall be used for the payment
of principal and interest due on the Trinidad Project Loan and Trinidad Loan
(without duplication) in the event that amounts on deposit in the Trinidad
Interest Account or Trinidad Principal Account, as applicable, the Debt Service
Reserve Account or the Trinidad Distribution Suspense Account are insufficient
to make such payments. On any date that such amounts are due and payable and
have been requisitioned in accordance with SECTION 3.2(b)(iii)-(iv) (Withdrawals
from the Trinidad Revenue Account) and the available amounts have been withdrawn
and transferred from the accounts mentioned in the previous sentence, the
Depositary Bank shall (i) withdraw the monies on deposit in the Trinidad
Additional Reserve Account and (ii) apply such monies to the payment of
principal and interest then due with respect to the Trinidad Project Loan and
Trinidad Loan.
Section 3.9 TRINIDAD DISTRIBUTION ACCOUNT. (a) The Trinidad
Distribution Account will be funded pursuant to SECTION 3.2(b) (Withdrawals from
the Trinidad
14
Revenue Account). At least eight (8) Business Days prior to any Distribution
Date on which the Trinidad Distribution Conditions are satisfied, the Trinidad
Finance Parties shall deliver an Officer's Certificate to the Depositary Bank
certifying as such, PROVIDED that the Depositary Bank shall not have received a
written objection from the Bond Trustee or the Collateral Agent within five (5)
Business Days prior to such Distribution Date, then the Depositary Bank shall
withdraw and transfer from the Trinidad Distribution Account to the applicable
Trinidad Finance Parties, or as otherwise directed by such Trinidad Finance
Parties, monies on deposit in the Trinidad Distribution Account for use as
distributions or other lawfully permitted uses thereof.
(b) On any Distribution Date on which any of
the Trinidad Distribution Conditions is not satisfied, the Depositary Bank shall
withdraw and transfer from the Trinidad Distribution Account to the Trinidad
Distribution Suspense Account monies on deposit in the Trinidad Distribution
Account until such time as the requirements of clause (a) above are satisfied
(other than the requirement regarding the eight (8) Business Days notice
period), at which time the Depositary Bank shall withdraw and transfer such
monies to the Trinidad Distribution Account for distribution in accordance with
the terms thereof; PROVIDED that the requirement that monies shall only be
withdrawn from the Trinidad Distribution Account and transferred to the Trinidad
Finance Parties only on a Distribution Date shall not apply to such monies being
withdrawn and transferred to the Trinidad Distribution Account from the Trinidad
Distribution Suspense Account; PROVIDED FURTHER that if monies remain on deposit
in the Trinidad Distribution Suspense Account and have not been withdrawn and
transferred to the Trinidad Distribution Account within eighteen (18) months
after the Scheduled Payment Date on which such monies were deposited in the
Trinidad Distribution Suspense Account, then, following the request of Funding
Company or upon their own decision, the Majority Holders may elect whether or
not to use such funds to redeem all or a portion of the Securities in accordance
with SECTION 3.1 of the Indenture. At any time that monies on deposit in any of
the other Trinidad Depositary Accounts are not sufficient to make the payments
specified in SECTION 3.1 (Trinidad Construction Account) or SECTION 3.2(b)
(Withdrawals from the Trinidad Revenue Account) or are not equal to the required
balance of such Trinidad Depositary Accounts, then monies on deposit in the
Trinidad Distribution Suspense Account shall be withdrawn and transferred to the
Trinidad Revenue Account for application in accordance with such SECTION 3.2(b).
Section 3.10 WITHDRAWALS FROM THE TRINIDAD DEPOSITARY ACCOUNTS
ON THE DEBT TERMINATION DATE. Upon the occurrence of the Debt Termination Date
and the termination of the Intercreditor Agreement the Depositary Bank shall
withdraw the balances outstanding in each Trinidad Depositary Account and
transfer to the Trinidad Finance Parties, or as directed by the Trinidad Finance
Parties, all remaining amounts in the Trinidad Depositary Accounts; PROVIDED
that the Depositary Bank shall have received an Officer's Certificate from the
Collateral Agent authorizing such withdrawal and transfer.
Section 3.11 INVESTMENTS.
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(a) Pending the application of funds in any of the Trinidad
Depositary Accounts or sub-accounts in accordance with this ARTICLE 3, such
funds may be invested and reinvested in Cash Equivalents denominated in dollars
and liquidated (at the risk and expense of the Trinidad Finance Parties), in
accordance with written instructions given to the Depositary Bank by the
Trinidad Finance Parties (except upon the occurrence and during the continuance
of an Event of Default, during which such funds shall be invested and reinvested
in Cash Equivalents with maturations no longer than a week).
(b) If and when cash is required for disbursement in
accordance with this ARTICLE 3, the Depositary Bank is authorized, to the extent
necessary to make disbursements required pursuant to this ARTICLE 3, to cause
Cash Equivalents to be sold or otherwise liquidated into cash in accordance with
written instructions from any Trinidad Finance Party; PROVIDED that in the
absence of timely receipt of such instructions, the Depositary Bank shall sell
or otherwise liquidate Cash Equivalents as it shall, in good faith, deem
necessary. The Depositary Bank shall not be liable for any loss resulting from
such liquidation except to the extent such loss results solely from the gross
negligence or wilful misconduct of the Depositary Bank. All such liquidations
shall be binding on Funding Company and each Trinidad Finance Party.
(c) The Depositary Bank shall not be required to take any
action with respect to investing the funds in any Trinidad Depositary Account or
sub-account in the absence of written instructions by any Trinidad Finance
Party. The Depositary Bank shall not be liable for any loss resulting from any
investment in any Cash Equivalent or the sale or redemption thereof except to
the extent such loss results solely from the gross negligence or willful
misconduct of the Depositary Bank, it being understood and agreed that in no
event shall the Depositary Bank be liable for any loss resulting from any
investment, or any sale or redemption thereof, made in accordance with written
instructions received from Depositary Bank or any Trinidad Finance Party.
(d) All funds in each Trinidad Depositary Account and all
investments in Cash Equivalents made in respect thereof, shall be held by the
Depositary Bank and the interests of Funding Company and each Trinidad Finance
Party therein shall constitute part of the security subject to the pledge and
security interests created by the Security Documents. All income from the
investments in Cash Equivalents shall be included by the Depositary Bank in the
calculation of amounts on deposit in the applicable Trinidad Depositary Account.
Section 3.12 RECEIPT OF PROCEEDS. Funding Company and each
Trinidad Finance Party agree that forthwith upon the receipt by it of any
Project Revenues, Equity Cash Flows or Note Cash Flows or any other proceeds
related to the Projects or of any check, draft, note, trade acceptance or other
instrument constituting Project Revenues, Equity Cash Flows or Note Cash Flows
or any other proceeds related to the Projects it will hold the same in precisely
the form received, in trust for the Collateral Agent, and will
16
forthwith, and without any notice or demand whatsoever, pay, endorse, transfer
and deliver the same to the Depositary Bank.
Section 3.13 BENEFIT OF ACCOUNTS. All right, title and
interest in and to the Trinidad Depositary Accounts and the monies in the
Trinidad Depositary Accounts and investments made with monies from the Trinidad
Depositary Accounts shall be vested in trust for the Collateral Agent for the
benefit of the Secured Parties until payment and performance in full of all of
the Secured Obligations and, upon payment in full of all the Secured
Obligations, shall be vested in each Trinidad Finance Party. Amounts deposited
in the Trinidad Depositary Accounts shall be applied by the Depositary Bank as
provided in this Agreement and the other Security Documents, as applicable.
Section 3.14 INFORMATION. The Depositary Bank shall (i) (x) on
a monthly basis provide each Trinidad Finance Party, the Bond Trustee and each
other Secured Party and (y) within five (5) Business Days after receipt of any
written request by any Trinidad Finance Party, the Bond Trustee or any other
Secured Party, provide Funding Company, such Trinidad Finance Party, the Bond
Trustee or such other Secured Party, as the case may be, with (a) account
balance statements in respect of each of the Trinidad Depositary Accounts and
sub-accounts, including all deposits, withdrawals and transfers from and to such
Trinidad Depositary Accounts and sub-accounts and (b) such information as
Funding Company, such Trinidad Finance Party, the Bond Trustee or such other
Secured Party, as the case may be, may specify regarding all Trinidad Depositary
Accounts, Cash Equivalents (including, without limitation, categories, amounts,
maturities and issuers) and any other investments made by the Depositary Bank
pursuant hereto and regarding amounts available in the Trinidad Depositary
Accounts and (ii) upon the written request and at the expense of any Trinidad
Finance Party, arrange with such Trinidad Finance Party for a mutually
convenient time for an Authorized Officer or an Authorized Representative of
such Trinidad Finance Party and its auditors to attend the office of the
Depositary Bank to examine and take copies of records relating to and
instruments evidencing the Cash Equivalents and other investments made by the
Collateral Agent pursuant hereto.
Section 3.15 ACCOUNTS GENERALLY. Except as specifically set
forth in this ARTICLE 3, neither Funding Company nor any Trinidad Finance Party
shall have any right of withdrawal in respect of any of the Trinidad Depositary
Accounts. Neither Funding Company nor any Trinidad Finance Party shall make,
attempt to make or consent to the making of any withdrawal or transfer from any
Trinidad Depositary Accounts except in strict adherence to this Agreement.
Funding Company and each Trinidad Finance Party acknowledge and agree that
dominion and control of each of the Trinidad Depositary Accounts shall at all
times reside with the Depositary Bank for the benefit of the Secured Parties.
Section 3.16 DEPOSITARY BANK OBLIGATIONS LIMITED. The
obligations of the Depositary Bank under this ARTICLE 3 shall be limited to
making the withdrawals,
17
retentions and transfers specified herein; the Depositary Bank shall have no
obligation to Funding Company or any Trinidad Finance Party or any third party
to make any payment for which the appropriate Trinidad Depositary Account does
not contain sufficient funds.
Section 3.17 TRIGGER EVENTS.
(a) Notwithstanding anything in this Agreement to the
contrary, but subject to the exercise of remedies pursuant to the Intercreditor
Agreement, upon the occurrence of any Trigger Event all amounts on deposit in
the Trinidad Depositary Account shall, at the written direction of the
Collateral Agent, acting pursuant to the Intercreditor Agreement, be paid in
accordance with the terms of ARTICLE 4 of the Intercreditor Agreement to the
payment of the Secured Obligations.
ARTICLE 4
THE DEPOSITARY BANK
Section 4.1 APPOINTMENT OF DEPOSITARY BANK, POWERS AND
IMMUNITIES.
(a) The Depositary Bank may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining hereto.
(b) The Collateral Agent on behalf of the Secured Parties
under the Intercreditor Agreement hereby appoints the Depositary Bank to act as
depositary bank and "securities intermediary" hereunder with such powers as are
expressly delegated to the Depositary Bank by the terms of this Agreement. The
Depositary Bank shall not have any duties or responsibilities except those
expressly set forth in this Agreement. Without limiting the generality of the
foregoing, the Depositary Bank shall take all actions as the Collateral Agent
shall direct it to perform in accordance with the express provisions of this
Agreement or as the Collateral Agent may otherwise direct it to perform in
accordance with the provisions of this Agreement. Notwithstanding anything to
the contrary contained herein, the Depositary Bank shall not be required to take
any action which is contrary to this Agreement or Applicable Law. Neither the
Depositary Bank nor any of its Affiliates shall be responsible to any Secured
Party for any recitals, statements, representations or warranties made by
Funding Company or any Trinidad Finance Party contained in this Agreement or any
other Finance Document or in any certificate or other document referred to or
provided for in, or received by any Secured Party under the Indenture, this
Agreement or any other Finance Document for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
document referred to or provided for herein or therein or for any failure by
Funding Company or any Trinidad Finance Party to perform its obligations
hereunder or thereunder. The Depositary Bank shall not be required to ascertain
or inquire as to the performance by Funding Company or
18
any Trinidad Finance Party of any of its or their obligations under the
Indenture, this Agreement, any other Finance Document or any other document or
agreement contemplated hereby or thereby. The Depositary Bank shall not be (a)
required to initiate or conduct any litigation or collection proceeding
hereunder or under any other Security 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 Security
Document. Except as otherwise provided under this Agreement, the Depositary Bank
shall take action under this Agreement only as it shall be directed in writing
by the Collateral Agent or any Trinidad Finance Party. Whenever in the
administration of this Agreement the Depositary Bank shall deem it necessary or
desirable that a factual matter be proved or established in connection with the
Depositary Bank 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 Officer of the applicable Trinidad Finance Party
or the Collateral Agent, if appropriate. The Depositary Bank shall have the
right at any time to seek instructions concerning the administration of this
Agreement from the Collateral Agent or any court of competent jurisdiction. The
Depositary Bank shall have no obligation to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder.
Section 4.2 RELIANCE BY DEPOSITARY BANK. The Depositary Bank
shall be entitled to rely upon and shall not be bound to make any investigation
into the facts or matters stated in any Officer's Certificate of any Trinidad
Finance Party, the Independent Engineer, the Collateral Agent or any other
notice or other document (including any 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 or statement of legal counsel,
independent accountants and other experts selected by the Depositary Bank and
shall have no liability for its actions taken thereupon, unless due to the
Depositary Bank's willful misconduct or gross negligence. Without limiting the
foregoing, the Depositary Bank shall be required to make payments to the Secured
Parties only as set forth herein. The Depositary Bank shall be fully justified
in failing or refusing to take any action under this Agreement (i) if such
action would, in the reasonable opinion of the Depositary Bank, be contrary to
Applicable Law or the terms of this Agreement or the Intercreditor Agreement,
(ii) if such action is not specifically provided for in this Agreement or the
Intercreditor Agreement and it shall not have received any such advice or
concurrence of the Collateral Agent as it deems appropriate or (iii) if, in
connection with the taking of any such action that would constitute an exercise
of remedies under this Agreement or the Intercreditor Agreement (whether such
action is or is intended to be an action of the Depositary Bank or the
Collateral Agent), it shall not first be indemnified to its satisfaction by the
Secured Parties (other than the Bond Trustee (in its individual capacity) or the
Collateral Agent (in its individual capacity) or any other agent or trustee
under any of the Finance Documents (in their respective individual capacities))
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Depositary Bank shall in
all cases be
19
fully protected in acting, or in refraining from acting, under this Agreement or
the Intercreditor Agreement in accordance with a request of the Collateral Agent
or any Trinidad Finance Parties, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Secured Parties.
Section 4.3 COURT ORDERS. The Depositary Bank 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 Bank. The
Depositary Bank 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 Bank's compliance with such writs, orders, judgments or decrees,
notwithstanding that such writ, order, judgment or decree is later reversed,
modified, set aside or vacated.
Section 4.4 RESIGNATION OR REMOVAL. Subject to the
appointment and acceptance of a successor Depositary Bank as provided below, the
Depositary Bank may resign at any time by giving thirty (30) days prior written
notice thereof to the Collateral Agent, the Funding Company and each Trinidad
Finance Party, PROVIDED that in the event the Depositary Bank is also the
Collateral Agent, it must also at the same time resign as Collateral Agent. The
Depositary Bank may be removed at any time without cause by the Collateral
Agent. Except during the continuation of a default or event of default under any
Finance Document, Funding Company shall have the right to remove the Depositary
Bank upon thirty (30) days prior written notice to the Secured Parties with or
without cause, effective upon the appointment of a successor Depositary Bank
under this SECTION 4.4, which is reasonably acceptable to the Bond Trustee. In
the event that the Depositary Bank shall decline to take any action without
first receiving adequate indemnity from the Trinidad Finance Parties, the other
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 shall be deemed to have sufficient cause to remove the Depositary Bank. In
the event that the Depositary Bank is also the Bond Trustee, the Collateral
Agent shall have the right to remove the Depositary Bank with or without cause.
Upon any such resignation or removal, the Collateral Agent shall have the right
to appoint a successor Depositary Bank, which Depositary Bank (except during the
continuation of a default or event of default under any Finance Document) shall
be reasonably acceptable to Funding Company. If no successor Depositary Bank
shall have been appointed by the Collateral Agent and shall have accepted such
appointment within thirty (30) days after the retiring Depositary Bank's giving
of notice of resignation or removal of the retiring Depositary Bank, then (i)
the retiring Depositary Bank may petition a court of competent jurisdiction for
the appointment of a successor Depositary Bank or (ii) the retiring Depositary
Bank may appoint a successor Depositary Bank, which shall be a bank or trust
company reasonably acceptable to the Collateral Agent. Upon the acceptance of
any appointment as Depositary Bank hereunder by the successor Depositary Bank,
(a) such successor Depositary Bank shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
20
retiring Depositary Bank and the retiring Depositary Bank shall be discharged
from its duties and obligations hereunder and (b) the retiring Depositary Bank
shall promptly transfer all Trinidad Depositary Accounts within its possession
or control to the possession or control of the successor Depositary Bank and
shall execute and deliver such notices, instructions and assignments as may be
necessary or desirable to transfer the rights of the Depositary Bank with
respect to the Accounts to the successor Depositary Bank. After the retiring
Depositary Bank's resignation or removal hereunder as Depositary Bank, the
provisions of this ARTICLE 4 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 Bank.
Section 4.5 EXPENSES; INDEMNIFICATION; FEES.
(a) The Trinidad Finance Parties agree, jointly and severally,
to pay or reimburse all reasonable out-of-pocket expenses of the Depositary Bank
(including reasonable fees and expenses for legal services) in respect of, or
incident to, the execution, administration or enforcement of any of the
provisions of this Agreement or in connection with any amendment, waiver or
consent relating to this Agreement. The obligations contained in this SECTION
4.5 shall survive the termination of this Agreement or the resignation or
removal of the Depositary Bank.
(b) The Trinidad Finance Parties agree, jointly and severally,
to indemnify the Depositary Bank in its capacity as such, and, in their capacity
as such, its officers, directors, shareholders, controlling persons, employees,
agents and servants (each an "INDEMNIFIED DEPOSITARY BANK PARTY") from and
against any and all claims, losses, liabilities and expenses (including the
reasonable fees and expenses of counsel) arising out of or resulting from this
Agreement (including, without limitation, performance under or enforcement of
this Agreement, but excluding any such claims, losses or liabilities resulting
from the Indemnified Depositary Bank Party's gross negligence or willful
misconduct). This indemnity shall survive the termination of this Agreement, and
the resignation or removal of the Depositary Bank. This indemnity is extended in
addition to, and not in derogation or limitation of, the provisions of SECTION
2.4 (Indemnification; Bankruptcy) of the Intercreditor Agreement.
(c) On the Closing Date, and on each anniversary of the
Closing Date to and including the Debt Termination Date, the Trinidad Finance
Parties shall pay the Depositary Bank an annual fee in an amount mutually agreed
on by the Trinidad Finance Parties and the Depositary Bank.
21
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 DIRECTION TO DEPOSITARY BANK. Unless otherwise
provided herein, any instruction or direction given to the Depositary Bank with
respect to the transfer, withdrawal, deposit or payment of any funds under this
Agreement shall be in writing and shall state with specificity the dollar
amount, source and disposition of any such funds.
Section 5.2 ACTION BY DEPOSITARY BANK. Notwithstanding any
provisions to the contrary in this Agreement, if any transfer, withdrawal,
deposit or payment of any funds by the Depositary Bank, or any other action to
be taken by the Depositary Bank, under this Agreement is to be made or taken on
a day which is not a Business Day, such transfer, withdrawal, deposit, payment
or other action shall be made or taken on the next Business Day.
Section 5.3 BENEFIT OF AGREEMENT. Nothing in this
Agreement, expressed or implied, shall give or be construed to give to any
Person other than the parties hereto and the Secured Parties any legal or
equitable right, remedy or claim under this Agreement, or under any covenant or
provision therein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and the Secured Parties.
Section 5.4 NOTICES. Except as otherwise expressly provided
herein, (a) all notices and other communications provided for hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or sent by overnight delivery or telecopy,
addressed to a party hereto or to any Secured Party at the address specified in
SECTION 5.4 (Notices) of the Intercreditor Agreement or to any other at its
address specified in a written notice to the Collateral Agent, or at such other
address as shall be designated by any of the foregoing Persons in a written
notice to the parties hereto.
Section 5.5 COUNTERPARTS; DESCRIPTIVE. This Agreement
may be executed in separate counterparts, and by each party separately on a
separate counterpart, and each such counterpart, when so executed and delivered,
shall be an original. Such counterparts shall together constitute but one and
the same instrument. The descriptive headings in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 5.6 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement is a contract made under the laws of the
State of New York of the United States and shall for all purposes be governed by
and construed in accordance with the laws of such State without regard to the
conflict of law rules thereof (other than SECTION 5-1401 of the New York General
Obligations Law). Regardless of any provision in any other Agreement, for
purposes of the UCC, New York shall be deemed to
22
be the Depositary Bank's location and the Trinidad Depositary Accounts (as well
as the securities entitlements related thereto) other than the Trinidad Local
Account shall be governed by the laws of the State of New York, without regard
to the conflict of law rules thereof (other than SECTION 5-1401 of the New York
General Obligations Laws).
(b) Any legal action or proceeding against Funding Company or
any Trinidad Finance Party with respect to this Agreement may be brought in the
courts of the State of New York in the County of New York or of the United
States for the Southern District of New York and, by execution and delivery of
this Agreement, Funding Company and each Trinidad Finance Party hereby
irrevocably submits and accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Funding
Company and each Trinidad Finance Party agree that a judgment, after exhaustion
of all available appeals, in any such action or proceeding shall be conclusive
and binding upon Funding Company and each Trinidad Finance Party and may be
enforced in any other jurisdiction, by a suit upon such judgment, a certified
copy of which shall be conclusive evidence of the judgment. Each Trinidad
Finance Party and Funding Company hereby irrevocably designates, appoints and
empowers Corporation Services Company with offices on the date hereof at βββ
ββββββ ββββββ, βββ ββββ, βββ ββββ βββββ-ββββ, as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceeding. If for any
reason such designee, appointee and agent shall cease to be available to act as
such, each Trinidad Finance Party agrees to designate a new designee, appointee
and agent in New York City on the terms and for the purposes of this provision
satisfactory to the Bond Trustee. Funding Company and each Trinidad Finance
Party irrevocably consent to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Funding Company and
each Trinidad Finance Party at its address referred to in SECTION 5.4 (Notices)
hereof, such service to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right of the Collateral Agent to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Funding Company and each Trinidad Finance Party in any
other jurisdiction.
(c) Funding Company and each Trinidad Finance Party hereby
irrevocably waive any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Finance Document brought in the
courts referred to in clause (b) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
23
(d) WITH REGARD TO THIS AGREEMENT, FUNDING COMPANY, EACH
TRINIDAD FINANCE PARTY, THE COLLATERAL AGENT AND THE DEPOSITARY BANK HEREBY
WAIVE THE RIGHT TO A TRIAL BY JURY.
Section 5.7 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise, and no delay in exercising, any right, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude or require any other or future
exercise thereof or the exercise of any other right, power or privilege. All
rights, powers and remedies granted to any party hereto and all other
agreements, instruments and documents executed in connection with this Agreement
shall be cumulative, may be exercised singly or concurrently and shall not be
exclusive of any rights or remedies provided by law.
Section 5.8 ASSIGNMENT. Funding Company and each Trinidad
Finance Party hereby consent to any assignment of this Agreement in whole or in
part by any of the Secured Parties in connection with the assignment of any
Secured Obligations or part thereof in accordance with the terms of the
Agreement giving rise to such Secured Obligations or any other Agreement
relating thereto. In the event of any such assignment or transfer, the term
"Secured Party" as used in this Agreement shall be deemed to mean any such
assignee or transferee, as the case may be. Subject to the first two sentences
of this SECTION 5.8 no assignment of this Agreement may be made by Funding
Company or any Trinidad Finance Party without the prior written consent of the
Collateral Agent, acting pursuant to the Intercreditor Agreement.
Section 5.9 TIME OF DAY; ENGLISH LANGUAGE. All references
herein to any time of day shall be deemed to be references to New York City
time, and all notices, instruments and other documents required to be delivered
hereunder shall be in the English language.
Section 5.10 BINDING EFFECT. All of the covenants,
warranties, undertakings and agreements of Funding Company and each Trinidad
Finance Party hereunder shall bind Funding Company and each Trinidad Finance
Party and its successors and assigns and shall inure to the benefit of the
Secured Parties and their respective successors and assigns.
Section 5.11 NOTICE OF ADVERSE CLAIM. Except
for the claims and interest of the Secured Parties in the Trinidad Depositary
Accounts, the Collateral Agent does not know of any claim to, or interest in,
the Trinidad Depositary Accounts or in any "financial asset" (as defined in
SECTION 8-102(a) of the UCC) credited thereto; it being understood that the
Collateral Agent has not conducted an independent investigation. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Trinidad Depositary Accounts or in any financial asset carried therein actually
known by the Collateral
24
Agent, the Collateral Agent will promptly notify the Secured Parties, Funding
Company and each Trinidad Finance Party thereof.
Section 5.12 LIMITATION OF FUNDING COMPANY'S LIABILITY.
Notwithstanding anything to the contrary contained herein, the obligations of
Funding Company hereunder are solely the obligations of Funding Company and
payable from, and recourse solely to, the Funding Company's interest in the
Funding Collateral following application of the Funding Company Collateral in or
towards the discharge of the Secured Obligations and the obligations of Funding
Company under each other Transaction Document. No recourse shall be had against
any Non-Recourse Person subject to the exceptions set forth in SECTION 11.11
(Limitation of Liability) of the Indenture.
Section 5.13 THE COLLATERAL AGENT. Each party hereto
acknowledges and agrees that the rights, privileges, benefits, immunities and
duties of the Collateral Agent set forth in the Increditor Agreement are
expressly incorporated herein by reference thereto.
25
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers or
representatives hereunto.
YORK POWER FUNDING (CAYMAN) LIMITED
By: /s/ ββββββ βββββ
---------------------------------
Name: ββββββ βββββ
Title: Director
YORK EX INTERNATIONAL SRL
By:/s/ ββββββ β. ββββββββ
---------------------------------
Name: ββββββ β. ββββββββ
Title: Vice President
YORK HOLDINGS (BARBADOS) SRL
By: /s/ ββββββ β. ββββββββ
---------------------------------
Name: ββββββ β. ββββββββ
Title: Vice President
INNCOGEN, LIMITED
By: /s/ ββββββ β. ββββββββ
---------------------------------
Name: ββββββ β. ββββββββ
Title: President
26
THE BANK OF NEW YORK
as Collateral Agent
By: /s/ ββββββ βββββ
---------------------------------
Name: ββββββ βββββ
Title: Vice President
THE BANK OF NEW YORK
as Depositary Bank
By: /s/ ββββββ βββββ
---------------------------------
Name: ββββββ βββββ
Title: Vice President
27
SCHEDULE I
TRINIDAD DEPOSITARY ACCOUNTS
ACCOUNT NAME ACCOUNT NO.
------------ -----------
Trinidad Revenue Account 800014
Trinidad Interest Account 800015
Trinidad Principal Account 800016
Trinidad Distribution Account 800017
Trinidad Distribution Suspense Account 800018
Trinidad Loss Proceeds Account 800019
Trinidad Redemption Account 800020
Trinidad Operating Account 800021
Trinidad Construction Account 800022
Trinidad Maintenance Reserve Account 800023
Trinidad Additional Reserve Account 800024
-28-
EXHIBIT A
TRINIDAD CONSTRUCTION REQUISITION
No. ______
[Date]
The Bank of New York,
as Depositary Bank
[__________________________]
Attention: [______________]
Ladies and Gentlemen:
This requisition (this "TRINIDAD CONSTRUCTION REQUISITION") is
delivered to you pursuant to SECTION 3.1 of the Trinidad Deposit and
Disbursement Agreement, dated as of ________, 1998 (the "AGREEMENT"), by and
among York Power Funding (Cayman) Limited, York Ex International SRL, York
Holdings (Barbados) SRL, InnCOGEN, Limited (the "TRINIDAD OBLIGOR"), The Bank of
New York, as Collateral Agent and The Bank of New York as Depositary Bank.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Agreement.
The Trinidad Obligor hereby certifies to the Depositary Bank for the
benefit of the Secured Parties as of the date hereof that:
1. The aggregate amount requested to be withdrawn
from the Trinidad Construction Account in
accordance with this Trinidad Construction
Requisition is $________.
2. The date on which such withdrawals and transfers pursuant to
this Trinidad Construction Requisition are to be made is
_______ (the "DISBURSEMENT DATE")
3. Set forth on Schedule I attached hereto is the
name of each Person to whom any payment is to
be made, the aggregate amount incurred on the
Disbursement Date or reasonably expected to be
incurred within the thirty (30) day period
following the Disbursement Date by such Person
and a summary description of the work
performed, services rendered, materials,
equipment or supplies delivered or any other
purpose for which each payment was or is to be
made.
4. As of the date hereof, no Default or Event of Default has
occurred and is continuing.
Exhibit A-1
5. The Trinidad Obligor reviewed the work performed, services
rendered and materials, equipment or supplies delivered in
connection with the construction of the Trinidad Project, and
confirm that the construction activities are proceeding in
accordance with the current construction budget and schedule.
INNCOGEN, LIMITED
By:
------------------------
Name:
Title:
Exhibit A-2
SCHEDULE I TO TRINIDAD CONSTRUCTION REQUISITION
AMOUNT
NAME OF PAYMENT PURPOSE
---- ---------- -------
Exhibit A-3
APPENDIX I TO EXHIBIT A
INDEPENDENT ENGINEER'S CERTIFICATE
[Date]
The Bank of New York
as Depositary Bank
[______________________]
Attention: [ ]
InnCOGEN, Limited
[______________________]
Attention: [ ]
Ladies and Gentlemen:
This Certificate is delivered to you in connection with (a)
SECTION 3.1 of the Trinidad Deposit and Disbursement Agreement, dated as of
_______, 1998 (the "AGREEMENT"), by and among York Power Funding (Cayman)
Limited, York Ex International SRL, Trinidad Holdings (Barbados) SRL, InnCOGEN,
Limited (the "TRINIDAD OBLIGOR"), The Bank of New York, as Collateral Agent and
The Bank of New York, as Depositary Bank and (b) the requisition for payment to
which this Certificate is attached as APPENDIX I (the "TRINIDAD CONSTRUCTION
REQUISITION") delivered by the Trinidad Obligor to the Depositary Bank.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
We hereby certify to the Depositary Bank for the benefit of
the Secured Parties as of the date hereof that:
1. We have reviewed the Trinidad Construction
Requisition and the construction costs set
forth on SCHEDULE I to the Trinidad
Construction Requisition are due and payable as
of the Disbursement Date or are reasonably
anticipated to be incurred during the thirty
(30) day period following the Disbursement
Date.
2. We have reviewed the [description of work
reviewed], services rendered and materials,
equipment or supplies delivered in connection
with the construction of the Trinidad Project,
and confirm that the construction activities
are proceeding in accordance with the current
construction budget and schedule
Exhibit A-4
and that sufficient funds are on deposit in the
Trinidad Construction Account or shall otherwise
be available to the Trinidad Obligor to complete
the Trinidad Project.
The person signing this Certificate is a duly qualified
representative of the Independent Engineer and as such is authorized to execute
this Certificate on behalf of the Independent Engineer.
Very truly yours,
[NAME OF INDEPENDENT
ENGINEER]
By:
-------------------------------
Name:
Title:
Exhibit A-5
EXHIBIT B
NON-BUDGETED OPERATING AND MAINTENANCE COSTS CERTIFICATE
No. _____
[Date]
The Bank of New York,
as Depositary Bank
[______________]
Attention: [______]
Ladies and Gentlemen:
This certificate (the "NON-BUDGETED OPERATING AND
MAINTENANCE COSTS CERTIFICATE") is delivered to you pursuant to SECTION
3.2(b)(ii) of the Trinidad Depositary Agreement, dated as of ___________,
1998 (the "AGREEMENT"), by and among York Power Funding (Cayman) Limited,
York Ex International SRL, York Holdings (Barbados) SRL, InnCOGEN, Limited
(the "TRINIDAD OBLIGOR"), The Bank of New York, as Collateral Agent and The
Bank of New York, as Depositary Bank. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned thereto in the
Agreement.
The Trinidad Obligor hereby certifies to the Depositary Bank
of the benefit of the Secured Parties as of the date hereof that:
1. The aggregate amount requested to be withdrawn from the
Trinidad Revenue Account in accordance with this Non-Budgeted
Operating and Maintenance Costs Certificate is $_________.
2. The date on which the withdrawals and transfers pursuant to
this Non-Budgeted Operating and Maintenance Costs Certificate
are to be made is _________ (the "DISBURSEMENT DATE").
3. Set forth on Schedule I attached hereto is the name of each
Person to whom any payment is to be made, the aggregate
amount due and payable on the Disbursement Date or
reasonably expected to be due and payable within the sixty
(60) day period following the Disbursement Date to such
Person and a summary description of the work performed,
services rendered, materials,
Exhibit B-1
equipment or supplies delivered or any other purpose for
which each payment was or is to be made.
4. The proceeds withdrawn from the Trinidad Revenue Account
pursuant to this Non-Budgeted Operating and Maintenance
Expenses Certificate will be used to pay Operating and
Maintenance Expenses which exceed the projected Operating
and Maintenance Expenses in the Operating Budget of the
Trinidad Obligor by more than twenty-five (25) percent.
5. The Operating and Maintenance Expenses for which payment is
requested under this Non-Budgeted Operating and Maintenance
Expenses Certificate have not been the basis for any prior
requisition by the Trinidad Obligor.
6. All proceeds of prior requisitions under any Non-Budgeted
Operating and Maintenance Expenses Certificate have been
expended or applied pursuant to the provisions of the Trinidad
Depositary Agreement.
[7. Attached hereto as Appendix I is an Independent Engineer's
Certificate in respect of this Non- Budgeted Operating and
Maintenance Expenses Certificate.]*
[7. The Operating and Maintenance Expenses for which payment is
requested under this Non- Budgeted Operating and Maintenance
Expenses Certificate are reasonably designed to permit the
Trinidad Obligor to satisfy its obligations in respect of
the Trinidad Project Note and maximize its revenue and net
income. A Debt Service Coverage Ratio of at least 1.5 to 1.0
will be maintained for the next 12-month period.]
------------------------------
* Insert particular clause 7, as applicable.
Exhibit B-2
INNCOGEN, LIMITED
By:
-------------------------------
Name:
Title:
Exhibit B-3
SCHEDULE I TO NON-BUDGETED OPERATING AND MAINTENANCE
COSTS CERTIFICATE
AMOUNT
NAME OF PAYMENT PURPOSE
---- ---------- -------
Exhibit B-4
APPENDIX I TO EXHIBIT B
INDEPENDENT ENGINEER'S CERTIFICATE
[Date]
The Bank of New York,
as Depositary Bank
[______________________]
Attention: [______________________]
InnCOGEN, Limited
[______________________]
Attention: [______________________]
Ladies and Gentlemen:
This certificate (the "NON-BUDGETED OPERATING AND
MAINTENANCE EXPENSES CERTIFICATE") is delivered to you pursuant to (a)
SECTION 3.2(b)(ii) of the Trinidad Depositary Agreement, dated as of
______________, 1998 (the "AGREEMENT"), by and among York Power Funding
(Cayman) Limited, York Ex International SRL, York Holdings (Barbados) SRL,
InnCOGEN, Limited (the "TRINIDAD OBLIGOR"), The Bank of New York, as
Collateral Agent and The Bank of New York, as Depositary Bank and (b) the
certificate to which this Certificate is attached as APPENDIX I (the
"NON-BUDGETED OPERATING AND MAINTENANCE EXPENSE CERTIFICATE") delivered by
the Trinidad Obligor to the Depositary Bank. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned thereto in the
Agreement.
We hereby certify to the Depositary Bank of the benefit of the
Secured Parties as of the date hereof that:
1. We have reviewed the Non-Budgeted Operating and Maintenance
Expenses Certificate dated ____________ of the Trinidad
Obligor relating to the Trinidad Project.
2. Based on our review of the aforementioned information,
including applicable operating and maintenance budgets and
plans, inspection and overhaul reports and elective
generation reports and data provided to us by the Trinidad
Obligor and such other investigation as is referenced on the
Annex hereto, and the understanding and assumption that we
have been provided true, correct and complete information,
and that we have not undertaken to
Exhibit B-5
verify such information, and [insert customary exceptions
and qualifications] we are of the opinion that, as of the
date hereof:
(a) The operations and maintenance of the Trinidad Project as
of the date hereof have been performed in accordance with generally accepted
engineering and project operations and maintenance practices.
(b) The operations and maintenance expenses set forth on
Schedule I to the Non-Budgeted Operating and Maintenance Expenses Certificate
not incurred on or prior to the Disbursement Date are reasonably anticipated to
be incurred during the sixty (60) day period following the Disbursement Date.
(c) The expenditures described in the Non-Budgeted Operating
and Maintenance Expenses Certificate delivered by the Trinidad Obligor to the
Depositary Bank
are necessary and reasonable.
The person signing this Certificate is a duly qualified
representative of the Independent Engineer and as such is authorized to execute
this Certificate on behalf of the Independent Engineer.
[NAME OF INDEPENDENT ENGINEER]
By:
-----------------------------------
Name:
Title:
Exhibit B-6
EXHIBIT C
RESTORATION REQUISITION
No.____
[Date]
The Bank of New York
as Collateral Agent
[__________________________]
Attention: [______________]
Ladies and Gentlemen:
This requisition (this "RESTORATION REQUISITION") is delivered to you
pursuant to SECTION 3.7(d) of the Trinidad Deposit and Disbursement Agreement,
dated as of ________, 1998 (the "AGREEMENT"), by and among York Power Funding
(Cayman) Limited, York Ex International SRL, York Holdings (Barbados) SRL,
InnCOGEN, Limited (the "TRINIDAD OBLIGOR"), The Bank of New York, as Collateral
Agent and The Bank of New York, as Depositary Bank. Capitalized terms used and
not otherwise defined herein shall have the meanings assigned thereto in the
Agreement.
The Trinidad Obligor hereby certifies to the Collateral Agent for the
benefit of the Secured Parties as of the date hereof that:
1. The aggregate amount requested to be withdrawn
from the Trinidad Loss Proceeds Account in
accordance with this Restoration Requisition is
$_____.
2. The date on which the withdrawals and transfers pursuant to
this Restoration Requisition are to be made is ________ (the
"DISBURSEMENT DATE").
3. Set forth on SCHEDULE I attached hereto is the name of each
Person to whom any payment is to be made with the amount
requested pursuant to item 1, the aggregate amount incurred
on or prior to the Disbursement Date or reasonably expected
to be incurred within the thirty (30) day period following
the Disbursement Date by such Person and a summary
description of the work performed, services rendered,
materials, equipment or supplies delivered or any other
purpose for which each payment was or is to be made.
Exhibit C-1
4. The proceeds of this Restoration Requisition withdrawn from
the Trinidad Loss Proceeds Account will be used to pay the
costs of rebuilding, restoration or repair or the Trinidad
Project in accordance with an Approved Restoration Plan and
the budget and payment schedule set forth in the Approved
Restoration Plan, if any.
5. The costs of rebuilding, restoration or repair for which
payment is requested under this Restoration Requisition from
the Trinidad Loss Proceeds Account have not been the basis for
any prior requisition by the Trinidad Obligor.
6. As of the date hereof, the Trinidad Obligor has not received
any written notice of any lien, right to lien or attachment
upon, or material claim affecting the right of the Trinidad
Obligor to receive any portion of the amount of this
Restoration Requisition (other than in respect of Permitted
Liens), or in the event that the Trinidad Obligor 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 is
expected to be released or discharged upon payment of the
costs for which payment is requested under this Restoration
Requisition.
7. [Insert for final release only] [The restoration has been
completed, (or will be completed upon the expenditure of the
funds requested hereby) and the Trinidad Project as restored
conforms in all material respects to all Applicable Laws and
Governmental Approvals].
8. Attached hereto as APPENDIX I is an Independent Engineer's
Certificate in respect of this Restoration Requisition.
Exhibit C-2
INNCOGEN, LIMITED
By:
-----------------------------------
Name:
Title:
Exhibit C-3
SCHEDULE I TO RESTORATION REQUISITION
AMOUNT
NAME OF PAYMENT PURPOSE
---- ---------- -------
Exhibit C-4
APPENDIX I TO EXHIBIT C
INDEPENDENT ENGINEER'S CERTIFICATE
[Date]
The Bank of New York
as Collateral Agent
[________________________]
Attention: [ ]
InnCOGEN, Limited
[____________]
Attention: [ ]
Ladies and Gentlemen:
This Certificate is delivered to you in connection with (a)
SECTION 3.7(d) of the Trinidad Deposit and Disbursement Agreement, dated as of
_______, 1998 (the "AGREEMENT"), by and among York Power Funding (Cayman)
Limited, York Ex International SRL, York Holdings (Barbados) SRL, InnCOGEN,
Limited (the "TRINIDAD OBLIGOR"), The Bank of New York, as Collateral Agent and
The Bank of New York, as Depositary Bank and (b) the requisition for payment to
which this Certificate is attached as APPENDIX I (the "RESTORATION REQUISITION")
delivered by the Trinidad Obligor to the Collateral Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement.
We hereby certify to the Collateral Agent for the benefit of
the Secured Parties as of the date hereof that:
1. We have reviewed the material and data made available to us by
the Trinidad Obligor with respect to [describe rebuilding,
repair or restoration project] and have performed such other
investigation as is referenced in the Annex attached hereto
(the "REVIEW"). Our Review was performed in accordance with
generally accepted engineering and construction practices
and included such investigation and review as we in our
professional capacity deemed necessary or appropriate under
the circumstances and within the scope of our appointment.
We have also reviewed the Restoration Requisition dated
______________, including any appendices, schedules and
requisitions and/or invoices attached thereto or delivered
therewith.
Exhibit C-5
2. Based on our Review and the understanding and assumption that
we have been provided true, correct and complete information
and [insert customary assumptions and qualifications], we are
of the opinion that, as of the date hereof:
a. The rebuilding, repair and restoration activities and
the progress of the rebuilding, repair and
restoration of the Trinidad Project through the date
of this Certificate are proceeding in a satisfactory
manner in accordance with the Approved Restoration
Plan.
b. The restoration costs set forth on SCHEDULE I to the
Restoration Requisition not incurred on or prior to
the Disbursement Date are reasonably anticipated to
be incurred during the thirty (30) day period
following the Disbursement Date.
c. The payments made with respect to the Restoration
Requisition are in accordance with the Approved
Restoration Plan and budget and project payment
schedule set forth therein, if any.
d. [Insert for final release only] [The restoration has
been completed (or will be completed upon the
expenditure of funds requested in the Restoration
Requisition to which this certificate is attached)
and the Trinidad Project as restored conforms in all
material respects to all Applicable Laws and
Governmental Approvals.]
Exhibit C-6
The person signing this Certificate is a duly qualified
representative of the Independent Engineer and as such is authorized to execute
this Certificate on behalf of the Independent Engineer.
Very truly yours,
[NAME OF INDEPENDENT
ENGINEER]
By:
-------------------------------
Name:
Title:
Exhibit C-7