Distribution Suspense Account. (a) On any Monthly Date on which all of the conditions set forth in clause (b) of this Section 3.9 (the "Distribution Conditions") are satisfied, upon delivery to the Collateral Agent, the Administrative Agent, the Trustee and the VEPCO L/C Agent of an Officer's Certificate of the Partnership certifying as such three (3) Business Days prior to such Monthly Date, the Administrative Agent shall transfer Monies from the Distribution Suspense Account to the Distribution Account in accordance with clause (b) of this Section 3.9 in an amount equal to the lesser of (i) the Monies on deposit in or credited to the Distribution Suspense Account and (ii) the Account Balance Amount less the Account Reserve Requirement. (b) Subject to Section 3.9(c), the transfer of Monies on any Monthly Date from the Distribution Suspense Account to the Distribution Account as described in clause (a) of this Section 3.9 is subject to the following conditions (the "Distribution Conditions"): (i) all required transfers and payments described in clauses (i) through (viii) of Section 3.2(b) shall have been completed; (ii) immediately after giving effect to the proposed transfer of Monies to the Distribution Account, the Account Balance Amount shall be greater than or equal to the Account Reserve Requirement; provided that this Distribution Condition shall apply only if such Monthly Date is not a Scheduled Payment Date for the Bonds; (iii) no Default or Event of Default shall have occurred and be continuing or shall result from such transfer of Monies to the Distribution Account; (iv) if the Test Period consists entirely of the Two-Thirds PPA Period and/or the 100% PPA Period, (A) the Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period (or, with respect to the Monthly Dates that occur within six months after the Commercial Operation Date, the period commencing on the Commercial Operation Date and ending on such Monthly Date) preceding such Monthly Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period succeeding such Monthly Date; (v) if a portion of the Test Period consists of the 100% PPA Period and/or the Two-Thirds PPA Period and a portion of the Test Period consists of the One-Third PPA Period and/or the Merchant Period: (A) for the portion of the Test Period which consists of the 100% PPA Period and/or the Two-Thirds PPA Period, (1) the Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is six months prior to such Monthly Date and ending on such Monthly Date, and (2) the Projected Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the date which is six months after such Monthly Date; and (B) for the portion of the Test Period which consists of the One-Third PPA Period and/or the Merchant Period, (1) the Senior Debt Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is one year prior to such Monthly Date and ending on such Monthly Date, provided that such portion will not be taken into account unless it consists of at least two fiscal quarters, and (2) the Projected Senior Debt Service Coverage Ratio for the portion of the period described below which consists of the One-Third PPA Period and/or the Merchant Period shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the later of (x) the date which is two years after such Monthly Date if such portion includes at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period and (y) the earliest date after the date described in clause (x) which results in such portion including at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period; (vi) if the Test Period consists entirely of the One-Third PPA Period and/or the Merchant Period, (A) the Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the one-year period preceding such Monthly Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the two-year period succeeding such Monthly Date; (vii) the Monies remaining on deposit in or credited to the Revenue Account, the O&M Account, the Major Maintenance Account and, after giving effect to the proposed transfer of Monies to the Distribution Account, the Distribution Suspense Account, shall be sufficient, in the Partnership's reasonable judgment, to meet the Partnership's ongoing working capital needs; (viii) the Completion Date shall have occurred; and (ix) such Monthly Date is the last Business Day of September 2000. (c) If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) months continuously without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to a redemption or prepayment, as applicable, of the Redeemable Facilities, and (C) Holders holding at least 66 2/3% of the Outstanding Bonds vote to apply such funds to such redemption and prepayment, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be used to redeem or prepay, as applicable, the Redeemable Facilities on a pro rata basis, as among the Redeemable Facilities, based upon the then outstanding principal amounts of each of the Redeemable Facilities, at the prices for redemption or prepayment set forth in the Indenture or the applicable facility agreement in respect of such Redeemable Facility, as applicable, and the Partnership shall provide the Administrative Agent a certificate (an "Allocation Certificate") setting forth the amount to be so allocated to each Redeemable Facility and the account or accounts into which each Redeemable Facility's allocable share shall be deposited in accordance with the terms of the Indenture or the applicable Additional Indebtedness Agreement, as applicable. Within two (2) Business Days of its receipt of an Allocation Certificate, the Administrative Agent shall make the transfers specified therein. The Partnership and the Funding Corporation hereby instruct the Collateral Agent and the Administrative Agent to make all such payments in respect of the Bonds directly to the Trustee for deposit into the Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and the Collateral Agent and the Administrative Agent hereby acknowledge receipt of such instruction. If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to the redemption or prepayment of the Redeemable Facilities, (C) Holders holding at least 66 2/3% of the Outstanding Bonds do not vote to apply such funds to such redemption and prepayment, and (D) each of the conditions set forth in Section 3.9(b), other than those set forth in clauses (iv), (v) and (vi) thereof, are satisfied, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be transferred to the Distribution Account on the next Monthly Date, provided, however, that if the Administrative Agent receives written notice prior to such next Monthly Date from any agent, trustee or similar representative in respect of any Redeemable Facility which instructs the Administrative Agent to apply a portion of such Monies that have remained on deposit in or credited to the Distribution Suspense Account for such twelve (12) consecutive months to the prepayment of such Redeemable Facility in accordance with the terms thereof (such portion not to exceed the amount that would have been applied to the prepayment of such Redeemable Facility had the requisite number of Holders voted in favor of the redemption and prepayment of the Redeemable Facilities pursuant to the first sentence of this Section 3.9(c)), then the Administrative Agent shall apply such portion of such Monies on deposit in the Distribution Suspense Account as so provided in such written notice and shall transfer the remainder of such Monies on deposit in the Distribution Suspense Account to the Distribution Account. (d) Pending any other application of Monies on deposit in or credited to the Distribution Suspense Account as provided herein, the Administrative Agent shall, on any Funding Date, withdraw and transfer Monies on deposit in or credited to the Distribution Suspense Account to the Debt Service Payment Account if and to the extent such amounts on deposit in the Debt Service Payment Account and the Debt Service Reserve Account are insufficient to pay any amounts due on the Senior Indebtedness on such Funding Date. (e) The Administrative Agent shall withdraw and transfer Monies on deposit in or credited to the Distribution Account to such Persons as may be directed in an Officer's Certificate of the Partnership delivered to the Administrative Agent three (3) Business Days prior to the date of such withdrawal and transfer. Such Officer's Certificate shall state that all conditions precedent provided for in this Section 3.11 have been complied with.
Appears in 1 contract
Distribution Suspense Account. (a) On any Monthly Date The Depositary Bank shall deposit, on which all each Payment Date, the funds into the Distribution Suspense Account as specified in Clause Eleventh of the conditions set forth in clause Section 4.2(e) hereof.
(b) of this Section 3.9 (the "Distribution Conditions") are satisfied, upon delivery to the Collateral Agent, the Administrative Agent, the Trustee and the VEPCO L/C Agent of an Officer's Certificate of the Partnership certifying as such three (3) Business Days prior to such Monthly Date, the Administrative Agent The Depositary Bank shall transfer Monies amounts from the Distribution Suspense Account to other Accounts if, and as required, under Sections 4.2(d) and 4.4(b) hereof. In addition, the [***] which is at least [***] following any Payment Date (each such date, a “Distribution Date”), upon receipt of a Distribution Suspense Account Withdrawal Certificate duly completed and delivered in accordance with clause Section 2.5 hereof within [***] of such Payment Date certifying that, as of such Payment Date, the Borrower has satisfied all conditions set forth in Section 4.5(c) (bthe “Distribution Conditions”) of this Section 3.9 such that funds are no longer required to be held in an amount equal to the lesser of (i) the Monies on deposit in or credited to the Distribution Suspense Account and (ii) but are available for distribution pursuant to the Account Balance Amount less terms of the Account Reserve Requirement.
(b) Subject to Section 3.9(c)Credit Documents on the proposed date of Withdrawal, the transfer of Monies Depositary Bank shall distribute amounts on any Monthly Date from deposit in the Distribution Suspense Account in the following order of priority, to the extent funds are available therefor: (i) first, to the extent of any positive balances in the Tracking Account (ii) second, to the account or accounts specified by the Borrower in the other Distribution Suspense Account as described Withdrawal Certificate.
(c) Notwithstanding anything to the contrary set forth in clause (a) this Agreement or any other Credit Document, no amount in the Distribution Suspense Account shall be available for distribution to Borrower or any of this Section 3.9 is subject to its Affiliates unless the following conditions (the "Distribution Conditions"):have been satisfied:
(i) all required transfers and payments described in clauses (i) through (viii) of Section 3.2(b) shall have been completed;
(ii) immediately after giving effect to the proposed transfer of Monies to the Distribution Account, the Account Balance Amount shall be greater than or equal to the Account Reserve Requirement; provided that this Distribution Condition shall apply only if such Monthly Date is not a Scheduled Payment Date for the Bonds;
(iii) no Default or Event of Default shall have occurred and be continuing or shall result from such transfer of Monies continuing;
(ii) the Debt Service Reserve Account has been funded to the Distribution AccountRequired DSR Balance (taking into consideration posted letters of credit);
(iii) no LC Loans are outstanding;
(iv) if the Test Period consists entirely of the Two-Thirds PPA Period and/or the 100% PPA Period, (A) the Senior Debt Service Coverage Ratio Term Conversion Date shall be greater than or equal to the Required Ratio for the six-month period (or, with respect to the Monthly Dates that occur within six months after the Commercial Operation Date, the period commencing on the Commercial Operation Date and ending on such Monthly Date) preceding such Monthly Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period succeeding such Monthly Datehave occurred;
(v) if a portion of there is no positive balance in the Test Period consists of the 100% PPA Period and/or the Two-Thirds PPA Period and a portion of the Test Period consists of the One-Third PPA Period and/or the Merchant Period: (A) for the portion of the Test Period which consists of the 100% PPA Period and/or the Two-Thirds PPA Period, (1) the Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is six months prior to such Monthly Date and ending on such Monthly Date, and (2) the Projected Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the date which is six months after such Monthly Date; and (B) for the portion of the Test Period which consists of the One-Third PPA Period and/or the Merchant Period, (1) the Senior Debt Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is one year prior to such Monthly Date and ending on such Monthly Date, provided that such portion will not be taken into account unless it consists of at least two fiscal quarters, and (2) the Projected Senior Debt Service Coverage Ratio for the portion of the period described below which consists of the One-Third PPA Period and/or the Merchant Period shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the later of (x) the date which is two years after such Monthly Date if such portion includes at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period and (y) the earliest date after the date described in clause (x) which results in such portion including at least one year which consists entirely of the One-Third PPA Period and/or the Merchant PeriodTracking Account;
(vi) if the Test Period consists entirely of the One-Third PPA Period and/or the Merchant PeriodBorrower has maintained a Debt Service Coverage Ratio, (A) as of the Senior Payment Date immediately preceding such Distribution Date and (B) calculated on the basis of the twelve month period ending on such Payment Date, of no less than [***] (the “Required DSCR”); provided that, to the extent any such Payment Date is less than 12 months after the Term Conversion Date, the Debt Service Coverage Ratio as of such Payment Date shall be greater than or equal to calculated solely on the Required Ratio for basis of the one-year period preceding between the Term Conversion Date and such Monthly Payment Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the two-year period succeeding such Monthly Date;; and
(vii) The Borrower shall have transferred the Monies remaining on deposit in or credited applicable percentage of Excess Cash Flow to the Revenue Account, the O&M Account, the Major Maintenance Prepayment Account and, after giving effect if and to the proposed transfer of Monies extent required pursuant to the Distribution AccountSection 4.2(e), the Distribution Suspense Account, shall be sufficient, in the Partnership's reasonable judgment, to meet the Partnership's ongoing working capital needs;
(viii) the Completion Date Clause Ninth and shall have occurred; and
(ixmade corresponding mandatory prepayments pursuant to Section 2.13(h) such Monthly Date is of the last Business Day of September 2000Credit Agreement.
(cd) If In the event Borrower fails to maintain the Required DSCR for four (4) or more consecutive Payment Dates, Borrower may, in its sole discretion, either (A) any Monies remain on deposit retain in or credited to the Distribution Suspense Account for twelve (12) months continuously without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to a redemption or prepayment, as applicable, of the Redeemable Facilities, and (C) Holders holding at least 66 2/3% of the Outstanding Bonds vote to apply such funds to such redemption and prepayment, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be used to redeem or prepay, as applicable, the Redeemable Facilities on a pro rata basis, as among the Redeemable Facilities, based upon the then outstanding principal any amounts of each of the Redeemable Facilities, at the prices for redemption or prepayment set forth in the Indenture or the applicable facility agreement in respect of such Redeemable Facility, as applicable, and the Partnership shall provide the Administrative Agent a certificate (an "Allocation Certificate") setting forth the amount to be so allocated to each Redeemable Facility and the account or accounts into which each Redeemable Facility's allocable share shall be deposited in accordance with the terms of the Indenture or the applicable Additional Indebtedness Agreement, as applicable. Within two (2) Business Days of its receipt of an Allocation Certificate, the Administrative Agent shall make the transfers specified therein. The Partnership and the Funding Corporation hereby instruct the Collateral Agent and the Administrative Agent to make all such payments in respect of the Bonds directly to the Trustee for deposit into the Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and the Collateral Agent and the Administrative Agent hereby acknowledge receipt of such instruction. If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to the redemption or prepayment of the Redeemable Facilities, (C) Holders holding at least 66 2/3% of the Outstanding Bonds do not vote to apply such funds to such redemption and prepayment, and (D) each of the conditions set forth in Section 3.9(b), other than those set forth in clauses (iv), (v) and (vi) thereof, are satisfied, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be transferred to the Distribution Account on the next Monthly Date, provided, however, that if the Administrative Agent receives written notice prior to such next Monthly Date from any agent, trustee or similar representative in respect of any Redeemable Facility which instructs the Administrative Agent to apply a portion of such Monies that have remained on deposit in or credited to the Distribution Suspense Account for such twelve (12) consecutive months to the prepayment of such Redeemable Facility in accordance with the terms thereof (such portion not to exceed the amount that would have been applied to the prepayment of such Redeemable Facility had the requisite number of Holders voted in favor of the redemption and prepayment of the Redeemable Facilities pursuant to the first sentence of this Section 3.9(c)), then the Administrative Agent shall apply such portion of such Monies on deposit in the Distribution Suspense Account as so or (B) transfer any amounts in the Distribution Suspense Account to the Prepayment Account and apply such amounts to prepay the principal amount of the Term Loan pro rata across all remaining payments; provided that, in such written notice and shall transfer the remainder of such Monies event that Borrower fails to maintain the Required DSCR for eight (8) or more consecutive Payment Dates, any amounts that have been on deposit in the Distribution Suspense Account for at least twenty four (24) months as of any such Payment Date shall be transferred on such Payment Date to the Distribution AccountPrepayment Account and applied to prepay the principal amount of the Term Loan pro rata across all remaining payments.
(de) Pending Notwithstanding the foregoing, once the Required DSCR is satisfied as of any Payment Date, and so long as all other application Distribution Conditions are met as of Monies on deposit the related Distribution Date, all amounts in or credited to the Distribution Suspense Account as provided herein, of such Date shall be available for distribution.
(f) Notwithstanding anything to the Administrative Agent shallforegoing set forth in this Section 4.5 but subject to Section 2.12 of the Credit Agreement, on each Monthly Date the Borrower may apply any Funding Date, withdraw and transfer Monies on deposit amounts in or credited to the Distribution Suspense Account to the Debt Service Payment Account if and to the extent such amounts on deposit in the Debt Service Payment Account and the Debt Service Reserve Account are insufficient to pay repay any amounts due on the Senior Indebtedness on such Funding Dateoutstanding LC Loans.
(e) The Administrative Agent shall withdraw and transfer Monies on deposit in or credited to the Distribution Account to such Persons as may be directed in an Officer's Certificate of the Partnership delivered to the Administrative Agent three (3) Business Days prior to the date of such withdrawal and transfer. Such Officer's Certificate shall state that all conditions precedent provided for in this Section 3.11 have been complied with.
Appears in 1 contract
Distribution Suspense Account. (a) On any Monthly Bond Payment Date on which all of the conditions set forth in clause (b) of this Section 3.9 (the "Distribution Conditions") are satisfied, ----------- ----------------------- upon delivery to the Collateral Agent, the Administrative Agent, Agent and the Trustee and the VEPCO L/C Agent of an Officer's Certificate of the Partnership Issuer certifying as such three (3) Business Days prior to such Monthly Bond Payment Date, the Administrative Agent shall transfer Monies from the Distribution Suspense Account (regardless of whether such Monies have been on deposit therein for more than 12 consecutive months) to the Distribution Account in accordance with clause (b) of this Section 3.9 in an ----------- amount equal to the lesser of (i) the Monies on deposit in or credited to the Distribution Suspense Account and (ii) or such lesser amount, as specified by the Account Balance Amount less the Account Reserve RequirementIssuer in its Officer's Certificate.
(b) Subject to clauses (c) and (d) of Section 3.9(c)3.9, the transfer of ----------- Monies on any Monthly Bond Payment Date from the Distribution Suspense Account to the Distribution Account as described in clause (a) of this Section 3.9 is subject ----------- to the following conditions (the "Distribution Conditions"):conditions:
(i) all required transfers and payments described in clauses (i) through (viii) of Section 3.2(b3.1(b) shall have been completed;; --------------
(ii) immediately after giving effect to the proposed transfer of Monies to the Distribution Account, the Account Balance Amount shall be greater than or equal to the Account Reserve Requirement; provided that this Distribution Condition shall apply only if such Monthly Date is not a Scheduled Payment Date for the Bonds;
(iii) no Default or Event of Default shall have occurred and be continuing or shall result from such transfer of Monies to the Distribution Account;
(iviii) if the Test Period consists entirely of the Two-Thirds PPA Period and/or the 100% PPA Period, (A) the Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period (or, with respect to the Monthly Dates that occur within six months after the Commercial Operation Date, the period commencing on the Commercial Operation Date and ending on such Monthly Date) preceding such Monthly Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period succeeding such Monthly Date;
(v) if a portion of the Test Period consists of the 100% PPA Period and/or the Two-Thirds PPA Period and a portion of the Test Period consists of the One-Third PPA Period and/or the Merchant Period: (A) for the portion of the Test Period which consists of the 100% PPA Period and/or the Two-Thirds PPA Period, (1) the Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is six months prior to such Monthly Date and ending on such Monthly Date, and (2) the Projected Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the date which is six months after such Monthly Date; and (B) for the portion of the Test Period which consists of the One-Third PPA Period and/or the Merchant Period, (1) the Senior Debt Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is one year prior to such Monthly Date and ending on such Monthly Date, provided that such portion will not be taken into account unless it consists of at least two fiscal quarters, and (2) the Projected Senior The Debt Service Coverage Ratio for the portion four quarter period preceding such Bond Payment Date (or with respect to the first Bond Payment Date, the number of full fiscal quarters that have elapsed since the Closing Date) measured as one accounting period, and the Projected Debt Service Coverage Ratio for each of the two four quarter periods succeeding such Bond Payment Date (each such four quarter period described below which consists of the One-Third PPA Period and/or the Merchant Period measured as one accounting period), shall each be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the later of (x) the date which is two years after such Monthly Date if such portion includes at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period and (y) the earliest date after the date described in clause (x) which results in such portion including at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period;to:
(vi) if the Test Period consists entirely of the One-Third PPA Period and/or the Merchant Period, (A) the Senior Debt Service Coverage Ratio shall be greater than or equal 1.7 to the Required Ratio for the one-year period preceding such Monthly Date, and 1.0; or
(B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal 1.6 to the Required Ratio for the two-year period succeeding 1.0, if as of such Monthly Bond Payment Date;
(vii) the Monies remaining on deposit in or credited to the Revenue Account, the O&M Account, the Major Maintenance Account and, after giving effect Issuer is party to the proposed transfer of Monies to the Distribution Account, the Distribution Suspense Account, shall be sufficientPermitted PPAs covering, in the Partnership's reasonable judgmentaggregate, to meet the Partnership's ongoing working capital needs;
(viii) the Completion Date shall have occurred; and
(ix) such Monthly Date is the last Business Day of September 2000.
(c) If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) months continuously without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote at least 25% of the Holders to determine whether to apply such funds to a redemption or prepayment, as applicable, capacity of the Redeemable FacilitiesProject for the consecutive period of eight full quarters, and taken as a whole, following such Bond Payment Date; or
(C) Holders holding 1.45 to 1.0, if as of such Bond Payment Date, the Issuer is party to Permitted PPAs covering, in the aggregate, at least 66 2/350% of the Outstanding Bonds vote capacity of the Project for the consecutive period of eight full quarters, taken as a whole, following such Bond Payment Date; or
(D) 1.3 to apply 1.0, if as of such funds to such redemption and prepayment, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be used to redeem or prepay, as applicableBond Payment Date, the Redeemable Facilities on a pro rata basisIssuer is party to Permitted PPAs covering, as among in the Redeemable Facilities, based upon the then outstanding principal amounts of each of the Redeemable Facilitiesaggregate, at the prices for redemption or prepayment set forth in the Indenture or the applicable facility agreement in respect of such Redeemable Facility, as applicable, and the Partnership shall provide the Administrative Agent a certificate (an "Allocation Certificate") setting forth the amount to be so allocated to each Redeemable Facility and the account or accounts into which each Redeemable Facility's allocable share shall be deposited in accordance with the terms of the Indenture or the applicable Additional Indebtedness Agreement, as applicable. Within two (2) Business Days of its receipt of an Allocation Certificate, the Administrative Agent shall make the transfers specified therein. The Partnership and the Funding Corporation hereby instruct the Collateral Agent and the Administrative Agent to make all such payments in respect of the Bonds directly to the Trustee for deposit into the Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and the Collateral Agent and the Administrative Agent hereby acknowledge receipt of such instruction. If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to the redemption or prepayment of the Redeemable Facilities, (C) Holders holding at least 66 2/375% of the Outstanding Bonds do not vote to apply such funds to such redemption and prepayment, and (D) each capacity of the conditions set forth in Section 3.9(b)Project for the consecutive period of eight full quarters, other than those set forth in clauses (iv)taken as a whole, (v) and (vi) thereof, are satisfied, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be transferred to the Distribution Account on the next Monthly following such Bond Payment Date, provided, however, that if the Administrative Agent receives written notice prior to such next Monthly Date from any agent, trustee or similar representative in respect of any Redeemable Facility which instructs the Administrative Agent to apply a portion of such Monies that have remained on deposit in or credited to the Distribution Suspense Account for such twelve (12) consecutive months to the prepayment of such Redeemable Facility in accordance with the terms thereof (such portion not to exceed the amount that would have been applied to the prepayment of such Redeemable Facility had the requisite number of Holders voted in favor of the redemption and prepayment of the Redeemable Facilities pursuant to the first sentence of this Section 3.9(c)), then the Administrative Agent shall apply such portion of such Monies on deposit in the Distribution Suspense Account as so provided in such written notice and shall transfer the remainder of such Monies on deposit in the Distribution Suspense Account to the Distribution Account.
(d) Pending any other application of Monies on deposit in or credited to the Distribution Suspense Account as provided herein, the Administrative Agent shall, on any Funding Date, withdraw and transfer Monies on deposit in or credited to the Distribution Suspense Account to the Debt Service Payment Account if and to the extent such amounts on deposit in the Debt Service Payment Account and the Debt Service Reserve Account are insufficient to pay any amounts due on the Senior Indebtedness on such Funding Date.
(e) The Administrative Agent shall withdraw and transfer Monies on deposit in or credited to the Distribution Account to such Persons as may be directed in an Officer's Certificate of the Partnership delivered to the Administrative Agent three (3) Business Days prior to the date of such withdrawal and transfer. Such Officer's Certificate shall state that all conditions precedent provided for in this Section 3.11 have been complied with.; or
Appears in 1 contract
Sources: Deposit and Disbursement Agreement (Dominion Resources Inc /Va/)
Distribution Suspense Account. (a) On any Monthly Date The Depositary Bank shall deposit, on which all each Payment Date, the funds into the Distribution Suspense Account as specified in Clause Eleventh of the conditions set forth in clause Section 4.2(e) hereof.
(b) of this Section 3.9 (the "Distribution Conditions") are satisfied, upon delivery to the Collateral Agent, the Administrative Agent, the Trustee and the VEPCO L/C Agent of an Officer's Certificate of the Partnership certifying as such three (3) Business Days prior to such Monthly Date, the Administrative Agent The Depositary Bank shall transfer Monies amounts from the Distribution Suspense Account to other Accounts if, and as required, under Sections 4.2(d) and 4.4(b) hereof. In addition, the first Business Day which is at least 30 days following any Payment Date (each such date, a “Distribution Date”), upon receipt of a Distribution Suspense Account Withdrawal Certificate duly completed and delivered in accordance with clause Section 2.5 hereof within thirty (b30) days of this such Payment Date certifying that, as of such Payment Date, the Borrower has satisfied all conditions set forth in Section 3.9 4.5(c) (the “Distribution Conditions”) such that funds are no longer required to be held in an amount equal to the lesser of (i) the Monies on deposit in or credited to the Distribution Suspense Account and (ii) but are available for distribution pursuant to the Account Balance Amount less terms of the Account Reserve Requirement.
(b) Subject to Section 3.9(c)Credit Documents on the proposed date of Withdrawal, the transfer of Monies Depositary Bank shall distribute amounts on any Monthly Date from deposit in the Distribution Suspense Account in the following order of priority, to the extent funds are available therefor: (i) first, to the extent of any positive balances in the Tracking Account (ii) second, to the account or accounts specified by the Borrower in the other Distribution Suspense Account as described Withdrawal Certificate.
(c) Notwithstanding anything to the contrary set forth in clause (a) this Agreement or any other Credit Document, no amount in the Distribution Suspense Account shall be available for distribution to Borrower or any of this Section 3.9 is subject to its Affiliates unless the following conditions (the "Distribution Conditions"):have been satisfied:
(i) all required transfers and payments described in clauses (i) through (viii) of Section 3.2(b) shall have been completed;
(ii) immediately after giving effect to the proposed transfer of Monies to the Distribution Account, the Account Balance Amount shall be greater than or equal to the Account Reserve Requirement; provided that this Distribution Condition shall apply only if such Monthly Date is not a Scheduled Payment Date for the Bonds;
(iii) no Default or Event of Default shall have occurred and be continuing or shall result from such transfer of Monies continuing;
(ii) the Debt Service Reserve Account has been funded to the Distribution AccountRequired DSR Balance (taking into consideration posted letters of credit);
(iii) no LC Loans are outstanding;
(iv) if the Test Period consists entirely of the Two-Thirds PPA Period and/or the 100% PPA Period, (A) the Senior Debt Service Coverage Ratio Term Conversion Date shall be greater than or equal to the Required Ratio for the six-month period (or, with respect to the Monthly Dates that occur within six months after the Commercial Operation Date, the period commencing on the Commercial Operation Date and ending on such Monthly Date) preceding such Monthly Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the six-month period succeeding such Monthly Datehave occurred;
(v) if a portion of there is no positive balance in the Test Period consists of the 100% PPA Period and/or the Two-Thirds PPA Period and a portion of the Test Period consists of the One-Third PPA Period and/or the Merchant Period: (A) for the portion of the Test Period which consists of the 100% PPA Period and/or the Two-Thirds PPA Period, (1) the Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is six months prior to such Monthly Date and ending on such Monthly Date, and (2) the Projected Senior Debt Service Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the date which is six months after such Monthly Date; and (B) for the portion of the Test Period which consists of the One-Third PPA Period and/or the Merchant Period, (1) the Senior Debt Coverage Ratio for such portion shall be greater than or equal to the Required Ratio during the period beginning on the date which is one year prior to such Monthly Date and ending on such Monthly Date, provided that such portion will not be taken into account unless it consists of at least two fiscal quarters, and (2) the Projected Senior Debt Service Coverage Ratio for the portion of the period described below which consists of the One-Third PPA Period and/or the Merchant Period shall be greater than or equal to the Required Ratio during the period beginning on such Monthly Date and ending on the later of (x) the date which is two years after such Monthly Date if such portion includes at least one year which consists entirely of the One-Third PPA Period and/or the Merchant Period and (y) the earliest date after the date described in clause (x) which results in such portion including at least one year which consists entirely of the One-Third PPA Period and/or the Merchant PeriodTracking Account;
(vi) if the Test Period consists entirely of the One-Third PPA Period and/or the Merchant PeriodBorrower has maintained a Debt Service Coverage Ratio, (A) as of the Senior Payment Date immediately preceding such Distribution Date and (B) calculated on the basis of the twelve month period ending on such Payment Date, of no less than [***] (the “Required DSCR”); provided that, to the extent any such Payment Date is less than 12 months after the Term Conversion Date, the Debt Service Coverage Ratio as of such Payment Date shall be greater than or equal to calculated solely on the Required Ratio for basis of the one-year period preceding between the Term Conversion Date and such Monthly Payment Date, and (B) the Projected Senior Debt Service Coverage Ratio shall be greater than or equal to the Required Ratio for the two-year period succeeding such Monthly Date;; and
(vii) The Borrower shall have transferred the Monies remaining on deposit in or credited applicable percentage of Excess Cash Flow to the Revenue Account, the O&M Account, the Major Maintenance Prepayment Account and, after giving effect if and to the proposed transfer of Monies extent required pursuant to the Distribution AccountSection 4.2(e), the Distribution Suspense Account, shall be sufficient, in the Partnership's reasonable judgment, to meet the Partnership's ongoing working capital needs;
(viii) the Completion Date Clause Ninth and shall have occurred; and
(ixmade corresponding mandatory prepayments pursuant to Section 2.13(h) such Monthly Date is of the last Business Day of September 2000Credit Agreement.
(cd) If In the event Borrower fails to maintain the Required DSCR for four (4) or more consecutive Payment Dates, Borrower may, in its sole discretion, either (A) any Monies remain on deposit retain in or credited to the Distribution Suspense Account for twelve (12) months continuously without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to a redemption or prepayment, as applicable, of the Redeemable Facilities, and (C) Holders holding at least 66 2/3% of the Outstanding Bonds vote to apply such funds to such redemption and prepayment, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be used to redeem or prepay, as applicable, the Redeemable Facilities on a pro rata basis, as among the Redeemable Facilities, based upon the then outstanding principal any amounts of each of the Redeemable Facilities, at the prices for redemption or prepayment set forth in the Indenture or the applicable facility agreement in respect of such Redeemable Facility, as applicable, and the Partnership shall provide the Administrative Agent a certificate (an "Allocation Certificate") setting forth the amount to be so allocated to each Redeemable Facility and the account or accounts into which each Redeemable Facility's allocable share shall be deposited in accordance with the terms of the Indenture or the applicable Additional Indebtedness Agreement, as applicable. Within two (2) Business Days of its receipt of an Allocation Certificate, the Administrative Agent shall make the transfers specified therein. The Partnership and the Funding Corporation hereby instruct the Collateral Agent and the Administrative Agent to make all such payments in respect of the Bonds directly to the Trustee for deposit into the Bond Fund in accordance with the terms of Section 3.3 of the Indenture, and the Collateral Agent and the Administrative Agent hereby acknowledge receipt of such instruction. If (A) any Monies remain on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9, (B) the Partnership delivers a Partnership Request to the Trustee requesting the Trustee to call a vote of the Holders to determine whether to apply such funds to the redemption or prepayment of the Redeemable Facilities, (C) Holders holding at least 66 2/3% of the Outstanding Bonds do not vote to apply such funds to such redemption and prepayment, and (D) each of the conditions set forth in Section 3.9(b), other than those set forth in clauses (iv), (v) and (vi) thereof, are satisfied, then the Monies that have so remained on deposit in or credited to the Distribution Suspense Account for twelve (12) consecutive months without being transferred to the Distribution Account pursuant to clause (a) of this Section 3.9 shall be transferred to the Distribution Account on the next Monthly Date, provided, however, that if the Administrative Agent receives written notice prior to such next Monthly Date from any agent, trustee or similar representative in respect of any Redeemable Facility which instructs the Administrative Agent to apply a portion of such Monies that have remained on deposit in or credited to the Distribution Suspense Account for such twelve (12) consecutive months to the prepayment of such Redeemable Facility in accordance with the terms thereof (such portion not to exceed the amount that would have been applied to the prepayment of such Redeemable Facility had the requisite number of Holders voted in favor of the redemption and prepayment of the Redeemable Facilities pursuant to the first sentence of this Section 3.9(c)), then the Administrative Agent shall apply such portion of such Monies on deposit in the Distribution Suspense Account as so or (B) transfer any amounts in the Distribution Suspense Account to the Prepayment Account and apply such amounts to prepay the principal amount of the Term Loan pro rata across all remaining payments; provided that, in such written notice and shall transfer the remainder of such Monies event that Borrower fails to maintain the Required DSCR for eight (8) or more consecutive Payment Dates, any amounts that have been on deposit in the Distribution Suspense Account for at least twenty four (24) months as of any such Payment Date shall be transferred on such Payment Date to the Distribution AccountPrepayment Account and applied to prepay the principal amount of the Term Loan pro rata across all remaining payments.
(de) Pending Notwithstanding the foregoing, once the Required DSCR is satisfied as of any Payment Date, and so long as all other application Distribution Conditions are met as of Monies on deposit the related Distribution Date, all amounts in or credited to the Distribution Suspense Account as provided herein, of such Date shall be available for distribution.
(f) Notwithstanding anything to the Administrative Agent shallforegoing set forth in this Section 4.5 but subject to Section 2.12 of the Credit Agreement, on each Monthly Date the Borrower may apply any Funding Date, withdraw and transfer Monies on deposit amounts in or credited to the Distribution Suspense Account to the Debt Service Payment Account if and to the extent such amounts on deposit in the Debt Service Payment Account and the Debt Service Reserve Account are insufficient to pay repay any amounts due on the Senior Indebtedness on such Funding Dateoutstanding LC Loans.
(e) The Administrative Agent shall withdraw and transfer Monies on deposit in or credited to the Distribution Account to such Persons as may be directed in an Officer's Certificate of the Partnership delivered to the Administrative Agent three (3) Business Days prior to the date of such withdrawal and transfer. Such Officer's Certificate shall state that all conditions precedent provided for in this Section 3.11 have been complied with.
Appears in 1 contract