Additional Issuance. If the Company receives a financing order or other authorization or approval from the PSCWV, the Company may, in its sole discretion, acquire additional and separate property (including property other than Environmental Control Property) and issue one or more Additional Issuances that are backed by such separate additional property. Any new Additional Issuance may include terms and provisions unique to that Additional Issuance. (a) The Company shall not issue additional Environmental Control Bonds or other Additional Securities if the Additional Issuance would result in the then-current ratings on any Outstanding Series of Environmental Control Bonds or other Outstanding Additional Securities being reduced or withdrawn. (b) The following conditions must be satisfied in connection with any Additional Issuance: (i) if the Additional Issuance is a new series of Environmental Control Bonds, such Bonds shall be rated “Aaa” by M▇▇▇▇’▇ and “AAA” by S&P and Fitch; (ii) each Additional Issuance shall have recourse only to the assets pledged in connection with such Additional Issuance, shall be nonrecourse to any of the Company’s other assets and shall not constitute a claim against the Company if cash flow from the pledged assets is insufficient to pay such Additional Issuance in full; (iii) the Company has delivered to the Trustee an Opinion of Counsel of a nationally recognized firm experienced in such matters to the effect that after such issuance, in the opinion of such counsel, if either or both of Potomac Edison or the Seller were to become a debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy jurisdiction and exercising reasonable judgment after full consideration of all relevant factors would not order substantive consolidation of the assets and liabilities of the Company with those of the bankruptcy estate of Potomac Edison or the Seller, subject to the customary exceptions, qualifications and assumptions contained therein; (iv) the Company has delivered to the Trustee a certificate meeting the criteria of Section 3.19(c)(iv) of the Indenture stating that the securities issued pursuant to such Additional Issuance shall have the benefit of a true-up mechanism; (v) the transaction documentation for such Additional Issuance provides that holders of the securities of such Additional Issuance will not file or join in the filing of any bankruptcy petition against the Company; (vi) if the holders of the securities of any Additional Issuance are deemed to have any interest in any of the Collateral pledged under the Indenture (other than collateral pledged with respect to such Additional Issuance), the holders of such securities must agree that any such interest is subordinate to the claims and rights of the Holders of such other related series of Environmental Control Bonds; (vii) the Additional Issuance shall have its own bank accounts or trust accounts; and (viii) the Additional Issuance shall bear its own trustees fees and servicer fees, except that the allocation of such fees with respect to any Additional Issuance of Environmental Control Bonds shall be governed by the terms of the Indenture and the Servicing Agreement.
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Sources: Limited Liability Company Agreement (PE Environmental Funding LLC), Limited Liability Company Agreement (MP Environmental Funding LLC)
Additional Issuance. If the Company receives a financing order or other authorization or approval from the PSCWV, the Company may, in its sole discretion, acquire additional and separate property (including property other than Environmental Control Property) and issue one or more Additional Issuances that are backed by such separate additional property. Any new Additional Issuance may include terms and provisions unique to that Additional Issuance.
(a) The Company shall not At any time during the Reinvestment Period, the Issuer may, pursuant to a supplemental indenture in accordance with Section 8.1 hereof, issue and sell Additional Secured Debt of each Class (on a pro rata basis with respect to each Class of Secured Debt junior to, and pari passu with, the most senior Class of Secured Debt being issued) and/or Additional Junior Notes and use the net proceeds to purchase additional Environmental Control Bonds Collateral Obligations or other Additional Securities if as otherwise permitted under this Indenture; provided that the Additional Issuance would result in the then-current ratings on any Outstanding Series of Environmental Control Bonds or other Outstanding Additional Securities being reduced or withdrawn.
(b) The following conditions must be satisfied in connection with any Additional Issuanceare met:
(i) if the Additional Issuance is a new series of Environmental Control Bonds, Collateral Manager and the Retention Holder each consent to such Bonds shall be rated “Aaa” by M▇▇▇▇’▇ and “AAA” by S&P and Fitchissuance;
(ii) each unless only Additional Issuance Junior Notes are being issued, the aggregate principal amount of Additional Secured Debt of any Class issued in all additional issuances shall have recourse only to the assets pledged in connection with such Additional Issuance, shall be nonrecourse to any not exceed 100% of the Company’s other assets and shall not constitute a claim against respective original outstanding principal amount of the Company if cash flow from the pledged assets is insufficient to pay Secured Debt of such Additional Issuance in fullClass;
(iii) the Company has delivered proceeds of any Additional Secured Debt (net of fees and expenses incurred in connection with such issuance) shall be treated as Principal Proceeds and used to purchase additional Collateral Obligations, to invest in Eligible Investments or to apply pursuant to the Trustee an Opinion Priority of Counsel of a nationally recognized firm experienced in such matters to the effect that after such issuancePayments or, solely in the opinion case of such counselAdditional Junior Notes Proceeds, if either or both of Potomac Edison or to be deposited in the Seller were to become a debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy jurisdiction and exercising reasonable judgment after full consideration of all relevant factors would not order substantive consolidation of the assets and liabilities of the Company with those of the bankruptcy estate of Potomac Edison or the Seller, subject to the customary exceptions, qualifications and assumptions contained thereinSupplemental Reserve Account;
(iv) in the Company has delivered to case of an additional issuance of Class A Notes, the Trustee prior written consent of a certificate meeting the criteria of Section 3.19(c)(iv) Majority of the Indenture stating that the securities issued pursuant to such Additional Issuance Controlling Class shall have the benefit of a true-up mechanismbeen obtained;
(v) the transaction documentation for Overcollateralization Ratio with respect to each Class of Secured Debt shall not be reduced after giving effect to such Additional Issuance provides that holders of the securities of such Additional Issuance will not file or join in the filing of any bankruptcy petition against the Companyissuance;
(vi) if written advice from Winston & ▇▇▇▇▇▇ LLP or Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or an opinion of other tax counsel of nationally recognized standing in the holders United States experienced in such matters will be delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the securities Code) nor cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (2) any additional Class A Notes, Class B Notes, Class C Notes and the Class D Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion of any Additional Issuance are deemed to have any interest tax counsel described in any of the Collateral pledged under the Indenture clause (other than collateral pledged vi)(2) will not be required with respect to such Additional Issuance), any additional Secured Debt that bear a different securities identifier from the holders of such securities must agree that any such interest is subordinate to the claims and rights Secured Debt of the Holders same Class that are Outstanding at the time of such other related series of Environmental Control Bondsthe additional issuance;
(vii) in the Additional Issuance case of additional Secured Debt of any one or more existing Classes, the terms of the Secured Debt issued must be identical to the respective terms of previously issued Secured Debt of the applicable Class (except that the interest due on additional Secured Debt will accrue from the issue date of such additional Secured Debt and the interest rate and price of such Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the spread over the Benchmark and/or fixed interest rate of any such additional Secured Debt will not be greater than the spread over the Benchmark and/or fixed interest rate on the applicable Class of Secured Debt (in each case, taking into account any original issue discount)) and such additional issuance shall have its own bank accounts or trust accountsnot be considered a Refinancing under this Indenture; and
(viii) an Officer’s certificate of the Issuer shall be delivered to the Trustee stating that the conditions of this Section 2.13(a) have been satisfied.
(b) Interest on the Additional Issuance Secured Debt shall bear its own trustees fees and servicer fees, except that be payable commencing on the allocation first Payment Date following the issue date of such fees Additional Secured Debt (if issued prior to the applicable Record Date). The Additional Secured Debt shall rank pari passu in all respects with respect the initial Secured Debt of that Class.
(c) Subject to Section 2.12(b) above, any Additional Issuance Secured Debt of Environmental Control Bonds each Class issued pursuant to this Section 2.13 shall, to the extent reasonably practicable, be offered first to Holders of that Class in such amounts as are necessary to preserve their pro rata holdings of Secured Debt of such Class.
(d) At any time the Holders of the Interests may make additional capital contributions to the Issuer in accordance with Section 11.1(e).
(e) The Issuer may also issue additional Secured Debt in accordance with a Refinancing which issuance shall not be subject to the conditions above.
(f) The Collateral Manager or an Affiliate of the Collateral Manager shall have the right to acquire any Secured Debt or Interests issued to the extent it deems such acquisition advisable for compliance with the U.S. Risk Retention Rules and the EU/UK Retention Requirements, and no consent of any Person to such additional issuance shall be governed by the terms of the Indenture and the Servicing Agreementrequired.
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Additional Issuance. (a) If the Company Issuer receives a financing an order or other authorization or approval from the PSCWV, the Company Issuer may, in its sole discretion, acquire additional and separate property (including property other than Environmental Control Property) and issue one or more Additional Issuances that are backed by such separate additional property. Any new Additional Issuance may include terms and provisions unique to that Additional Issuance.
(ab) The Company Issuer shall not issue additional Environmental Control Bonds or other Additional Securities securities if the Additional Issuance would result in the then-current ratings on any Outstanding Series of Environmental Control Bonds or other Outstanding Additional Securities being reduced or withdrawn.
(bc) The following conditions must be satisfied in connection with any Additional Issuance:
(i) if the Additional Issuance is a new series of Environmental Control Bonds, such Bonds shall be rated “Aaa” by M▇▇▇▇’▇ and “AAA” by S&P and Fitch;
(ii) each Additional Issuance shall have recourse only to the assets pledged in connection with such Additional Issuance, shall be nonrecourse to any of the CompanyIssuer’s other assets and shall not constitute a claim against the Company Issuer if cash flow from the pledged assets is insufficient to pay such Additional Issuance in full;
(iii) the Company Issuer has delivered to the Indenture Trustee and each Rating Agency then rating any series of Outstanding Environmental Control Bonds an Opinion of Counsel of a nationally recognized firm experienced in such matters to the effect that after such issuance, in the opinion of such counsel, if either or both of Potomac Edison the Utility or the Seller were to become a debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy jurisdiction and exercising reasonable judgment after full consideration of all relevant factors would not order substantive consolidation of the assets and liabilities of the Company Issuer with those of the bankruptcy estate of Potomac Edison the Utility or the Seller, subject to the customary exceptions, qualifications and assumptions contained therein;
(iv) the Company Issuer has delivered to the Indenture Trustee a certificate meeting an Officer’s Certificate from the criteria of Section 3.19(c)(iv) of the Indenture stating Issuer certifying that the securities issued pursuant to such Additional Issuance Securities shall have the benefit of a true-up mechanism;
(v) the transaction documentation for such Additional Issuance provides that holders of the securities of such Additional Issuance will not file or join in the filing of any bankruptcy petition against the CompanyIssuer;
(vi) if the holders of the securities of any Additional Issuance are deemed to have any interest in any of the Series Collateral pledged under the Indenture a Series Supplement (other than collateral pledged with respect the Series Supplement related to such Additional Issuance, if any), the holders of such securities must agree that any such interest is subordinate to the claims and rights of the Holders of such other related series Series of Environmental Control Bonds;
(vii) the Additional Issuance shall have its own bank accounts or trust accounts; and
(viii) the Additional Issuance shall bear its own trustees fees and servicer fees, except that fees and a pro rata portion of fees due under the allocation of such fees with respect to any Additional Issuance of Environmental Control Bonds shall be governed by the terms of the Indenture and the Servicing Issuer Administration Agreement.
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Additional Issuance. (a) If the Company Issuer receives a financing an order or other authorization or approval from the PSCWV, the Company Issuer may, in its sole discretion, acquire additional and separate property (including property other than Environmental Control Property) and issue one or more Additional Issuances that are backed by such separate additional property. Any new Additional Issuance may include terms and provisions unique to that Additional Issuance.
(ab) The Company Issuer shall not issue additional Environmental Control Bonds or other Additional Securities securities if the Additional Issuance would result in the then-current ratings on any Outstanding Series of Environmental Control Bonds or other Outstanding Additional Securities being reduced or withdrawn.
(bc) The following conditions must be satisfied in connection with any Additional Issuance:
(i) if the Additional Issuance is a new series of Environmental Control Bonds, such Bonds shall be rated “Aaa” by M▇▇▇▇▇’▇ and “AAA” by S&P and Fitch;
(ii) each Additional Issuance shall have recourse only to the assets pledged in connection with such Additional Issuance, shall be nonrecourse to any of the CompanyIssuer’s other assets and shall not constitute a claim against the Company Issuer if cash flow from the pledged assets is insufficient to pay such Additional Issuance in full;
(iii) the Company Issuer has delivered to the Indenture Trustee and each Rating Agency then rating any series of Outstanding Environmental Control Bonds an Opinion of Counsel of a nationally recognized firm experienced in such matters to the effect that after such issuance, in the opinion of such counsel, if either or both of Potomac Edison the Utility or the Seller were to become a debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy jurisdiction and exercising reasonable judgment after full consideration of all relevant factors would not order substantive consolidation of the assets and liabilities of the Company Issuer with those of the bankruptcy estate of Potomac Edison the Utility or the Seller, subject to the customary exceptions, qualifications and assumptions contained therein;
(iv) the Company Issuer has delivered to the Indenture Trustee a certificate meeting an Officer’s Certificate from the criteria of Section 3.19(c)(iv) of the Indenture stating Issuer certifying that the securities issued pursuant to such Additional Issuance Securities shall have the benefit of a true-up mechanism;
(v) the transaction documentation for such Additional Issuance provides that holders of the securities of such Additional Issuance will not file or join in the filing of any bankruptcy petition against the CompanyIssuer;
(vi) if the holders of the securities of any Additional Issuance are deemed to have any interest in any of the Series Collateral pledged under the Indenture a Series Supplement (other than collateral pledged with respect the Series Supplement related to such Additional Issuance, if any), the holders of such securities must agree that any such interest is subordinate to the claims and rights of the Holders of such other related series Series of Environmental Control Bonds;
(vii) the Additional Issuance shall have its own bank accounts or trust accounts; and
(viii) the Additional Issuance shall bear its own trustees fees and servicer fees, except that fees and a pro rata portion of fees due under the allocation of such fees with respect to any Additional Issuance of Environmental Control Bonds shall be governed by the terms of the Indenture and the Servicing Issuer Administration Agreement.
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Additional Issuance. (a) If the Company Issuer receives a financing an order or other authorization or approval from the PSCWV, the Company Issuer may, in its sole discretion, acquire additional and separate property (including property other than Environmental Control Property) and issue one or more Additional Issuances that are backed by such separate additional property. Any new Additional Issuance may include terms and provisions unique to that Additional Issuance.
(ab) The Company Issuer shall not issue additional Environmental Control Bonds or other Additional Securities securities if the Additional Issuance would result in the then-current ratings on any Outstanding Series of Environmental Control Bonds or other Outstanding Additional Securities being reduced or withdrawn.
(bc) The In addition to all applicable requirements of Section 2.10 hereof, the following conditions must be satisfied in connection with any Additional Issuance:
(i) if the Additional Issuance is a new series of Environmental Control Bonds, such Bonds shall be rated “Aaa” by M▇▇▇▇’▇ and “AAA” by S&P and Fitch;
(ii) each Additional Issuance shall have recourse only to the assets pledged in connection with such Additional Issuance, shall be nonrecourse to any of the CompanyIssuer’s other assets and shall not constitute a claim against the Company Issuer if cash flow from the pledged assets is insufficient to pay such Additional Issuance in full;
(iii) the Company Issuer has delivered to the Indenture Trustee and each Rating Agency then rating any series of Outstanding Environmental Control Bonds an Opinion of Counsel of a nationally recognized firm experienced in such matters to the effect that after such issuance, in the opinion of such counsel, if either or both of Potomac Edison the Utility or the Seller were to become a debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy jurisdiction and exercising reasonable judgment after full consideration of all relevant factors would not order substantive consolidation of the assets and liabilities of the Company Issuer with those of the bankruptcy estate of Potomac Edison the Utility or the Seller, subject to the customary exceptions, qualifications and assumptions contained therein;
(iv) the Company Issuer has delivered to the Indenture Trustee a certificate meeting an Officer’s Certificate from the criteria of Section 3.19(c)(iv) of the Indenture stating Issuer certifying that the securities issued pursuant to such Additional Issuance Securities shall have the benefit of a true-up mechanism;
(v) the transaction documentation for such Additional Issuance provides that holders of the securities of such Additional Issuance will not file or join in the filing of any bankruptcy petition against the CompanyIssuer;
(vi) if the holders of the securities of any Additional Issuance are deemed to have any interest in any of the Series Collateral pledged under the Indenture a Series Supplement (other than collateral pledged with respect the Series Supplement related to such Additional Issuance, if any), the holders of such securities must agree that any such interest is subordinate to the claims and rights of the Holders of such other related series Series of Environmental Control Bonds;
(vii) the Additional Issuance shall have its own bank accounts or trust accounts; and
(viii) the Additional Issuance shall bear its own trustees fees and servicer fees, except that fees and a pro rata portion of fees due under the allocation of such fees with respect to any Additional Issuance of Environmental Control Bonds shall be governed by the terms of the Indenture and the Servicing Issuer Administration Agreement.
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