W I T N E S S E T H : - - - - - - - - - -
Exhibit 10.20
AMENDMENT NO. 1 dated as of April 12, 2000 (this "Amendment No. 1") to
the DEPOSIT AND DISBURSEMENT AGREEMENT (the "Depositary Agreement") dated as of
May 1, 1999 among (i) AES EASTERN ENERGY, L.P., a limited partnership organized
under the laws of the State of Delaware ("AEE"), (ii) AEE 2, L.L.C., a limited
liability company organized under the laws of the State of Delaware ("AEE 2"),
AES SOMERSET, L.L.C., a Delaware limited liability company, AES CAYUGA, L.L.C.,
a Delaware limited liability company, AES XXXXXXXX, L.L.C., a Delaware limited
liability company and AES XXXXXXXXX, L.L.C., a Delaware limited liability
company (iii) CREDIT SUISSE FIRST BOSTON, as Working Capital Provider (the
"Working Capital Provider"), (iv) Xxxxxxx Facility Trust A-1, a Delaware
business trust, (v) Xxxxxxx Facility Trust A-2, a Delaware business trust, (vi)
Xxxxxxx Facility Trust B-1, a Delaware business trust, (vii) Xxxxxxx Facility
Trust B-2, a Delaware business trust, (viii) Xxxxxxx Facility Trust C-1, a
Delaware business trust, (ix) Xxxxxxx Facility Trust C-2, a Delaware business
trust, (x) Xxxxxxxx Facility Trust A-1, a Delaware business trust, (xi) Xxxxxxxx
Facility Trust A-2, a Delaware business trust, (xii) Xxxxxxxx Facility Trust
B-1, a Delaware business trust, (xiii) Xxxxxxxx Facility Trust B-2, a Delaware
business trust, (xiv) Xxxxxxxx Facility Trust C-1, a Delaware business trust,
(xv) Xxxxxxxx Facility Trust C-2, a Delaware business trust, (xvi) DCC Project
Finance Fourteen, Inc., as Owner Participant under two Participation Agreements
(Xxxxxxx A-1 and Xxxxxxxx A-1), (xvii) DCC Project Finance Fifteen, Inc., as
Owner Participant under two Participation Agreements (Xxxxxxx A-2 and Xxxxxxxx
A-2), (xviii) First Chicago Leasing Corporation, as Owner Participant under two
Participation Agreements (Xxxxxxx B-1 and Xxxxxxxx B-1), (xix) First Chicago
Leasing Corporation, as Owner Participant under two Participation Agreements
(Xxxxxxx B-2 and Xxxxxxxx B-2), (xx) Bankers Commercial Corporation, as Owner
Participant under two Participation Agreements (Xxxxxxx C-1 and Xxxxxxxx C-1),
(xxi) Bankers Commercial Corporation, as Owner Participant under two
Participation Agreements (Xxxxxxx C-2 and Xxxxxxxx C-2), (xxii) BANKERS TRUST
COMPANY, a banking corporation organized and existing under the laws of the
State of New York, as Depositary Agent (herein, in such capacity, together with
its successors and permitted assigns, the "Depositary Agent"), (xxiii) BANKERS
TRUST COMPANY, a banking corporation organized and existing under the laws of
the State of New York, not in its individual capacity, except as expressly
provided herein, but solely as trustee under each Indenture (herein in its
capacity as trustee under each Indenture, together with its successors and
permitted assigns, the "Indenture Trustee"), and (xxiv) BANKERS TRUST COMPANY, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided herein, but
solely as trustee under each Pass Through Trust Agreement (herein in its
capacity as trustee under each Pass Through Trust Agreement, together with its
successors and permitted assigns, the "Pass Through Trustee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the parties hereto desire to amend the Depositary Agreement to
(a) permit AEE to pay additional interest that is required to be paid with
respect to the Pass Through Trust Certificates pursuant to Section 6 of the
Registration Rights Agreement dated May 11, 1999 (the "Registration Rights
Agreement") by and among AEE and Xxxxxx Xxxxxxx & Co. Incorporated, Working
Capital Provider and CIBC World Markets Corp. as a result of AEE's failure to
consummate the Registered Exchange Offer (as defined in the Registration Rights
Agreement) or to have a Shelf Registration Statement (as defined in the
Registration Rights Agreement) declared effective on or prior to November 10,
1999 and (b) provide for a mechanism for the payment by AEE of that portion of
Supplemental Rent that is attributable to interest at the applicable Overdue
Rate on any part of any payment of Basic Rent under each of the Leases not paid
when due for any period for which the same shall be overdue, or on any
Supplemental Rent not paid when due (whether on demand or otherwise) for the
period from such due date until the same shall be paid;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. All capitalized terms not defined herein are used herein as
defined in, or in the manner specified in, the Depositary Agreement.
SECTION 2. Notwithstanding any provision of the Depositary Agreement to
the contrary, the Depositary Agent is hereby authorized and directed to transfer
immediately from the Revenue Account to the Rent Payment Account and to disburse
from the Rent Payment Account to the Indenture Trustee in the same manner and
with the same effect as a payment of Basic Rent, the amount of $409,171.99,
representing the Additional Interest (as defined in the Registration Rights
Agreement) required to be paid pursuant to Section 6 of the Registration Rights
Agreement for the period from November 10, 1999 to January 2, 2000, plus
interest thereon at the Overdue Rate for the period from January 2, 2000 to the
date hereof.
SECTION 3. Notwithstanding any provision of the Depositary Agreement to
the contrary, with respect to each Funding Date after the date hereof, AEE may
include in any Funding Date Certificate as an addition to Basic Rent under each
of the Leases due on the immediately succeeding Rent Payment Date (or, if such
be the case, the Rent Payment Date occurring on such Funding Date), any amount
constituting that portion of Supplemental Rent that is attributable to (a)
Additional Interest required to be paid pursuant to Section 6 of the
Registration Rights Agreement with respect to such Funding Date or (b) interest
at the applicable Overdue Rate on any part of any payment of Basic Rent under
each of the Leases not paid when due for any period for which the same shall be
overdue, or on any Supplemental Rent not paid when due (whether on demand or
otherwise) for the period from such due date until the same shall be paid, in
each case compounded semi-annually. Each such amount shall be disbursed by the
Depositary Agent in the same manner as Basic Rent.
SECTION 4. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 5. Except as expressly amended by this Amendment No. 1, the
terms and provisions of the Depositary Agreement shall continue in full force
and effect. No reference to this Amendment No. 1 need be made in any instrument
or document making reference to the Depositary Agreement; any reference to the
Depositary Agreement in any such instrument or document shall be deemed a
reference to the Depositary Agreement as amended hereby.
SECTION 6. This Amendment No. 1 may be executed in separate
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed as of the day and year first above written.
AES EASTERN ENERGY, L.P.
By: AES NY, L.L.C., its General Partner
By
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
Address for Notices:
AES Eastern Energy, L.P.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
3
AEE 2, L.L.C.
By:
------------------------------
Name: Xxxx Xxxxxxxxxx
Title:
Address for Notices:
AEE 2, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
4
CREDIT SUISSE FIRST BOSTON,
as Working Capital Provider
By:________________________________
Name:
Title:
Address for Notices:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
5
XXXXXXX FACILITY TRUST A-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx A-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
6
XXXXXXX FACILITY TRUST A-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx A-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
7
XXXXXXX FACILITY TRUST B-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx B-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
8
XXXXXXX FACILITY TRUST B-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx B-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
9
XXXXXXX FACILITY TRUST C-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx C-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
10
XXXXXXX FACILITY TRUST C-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxx C-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
11
XXXXXXXX FACILITY TRUST A-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx A-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
12
XXXXXXXX FACILITY TRUST A-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx A-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
13
XXXXXXXX FACILITY TRUST B-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx B-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
14
XXXXXXXX FACILITY TRUST B-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx B-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
15
XXXXXXXX FACILITY TRUST C-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx C-1)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
16
XXXXXXXX FACILITY TRUST C-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee under the Trust
Agreement (Xxxxxxxx C-2)
By:________________________________
Name:
Title:
Address for Notices:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
17
DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant under the
Participation Agreement (Xxxxxxx A-1)
By:________________________________
Name:
Title:
Address for Notices:
DCC Project Finance Fourteen, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant under the
Participation Agreement (Xxxxxxxx A-1)
By:________________________________
Name:
Title:
Address for Notices:
DCC Project Finance Fourteen, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
18
DCC PROJECT FINANCE FIFTEEN, INC.,
as Owner Participant under the
Participation Agreement (Xxxxxxx A-2)
By:________________________________
Name:
Title:
Address for Notices:
DCC Project Finance Fourteen, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
DCC PROJECT FINANCE FIFTEEN, INC.,
as Owner Participant under the
Participation Agreement (Xxxxxxxx A-2)
By:________________________________
Name:
Title:
Address for Notices:
DCC Project Finance Fourteen, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
19
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxx B-1)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Contract Administration
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxxx B-1)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Contract Administration
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
20
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxx B-2)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Contract Administration
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxxx B-2)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Contract Administration
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
21
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxx C-1)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxxx C-1)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
22
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxx C-2)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under the
Participation Agreement (Xxxxxxxx C-2)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
23
BANKERS TRUST COMPANY,
as Depositary Agent
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
0 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
24
BANKERS TRUST COMPANY,
as the Indenture Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
0 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
25
BANKERS TRUST COMPANY,
as the Pass Through Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
0 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
26
AES SOMERSET, L.L.C.
By:________________________________
Name: Xxxx Xxxxxxxxxx
Title:
Address for Notices:
AES Somerset, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
27
AES CAYUGA, L.L.C.
By:________________________________
Name: Xxxx Xxxxxxxxxx
Title:
Address for Notices:
AES Cayuga, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
28
AES XXXXXXXX, L.L.C.
By:________________________________
Name: Xxxx Xxxxxxxxxx
Title:
Address for Notices:
AES Xxxxxxxx, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
29
AES XXXXXXXXX, L.L.C.
By:________________________________
Name: Xxxx Xxxxxxxxxx
Title:
Address for Notices:
AES Xxxxxxxxx, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
30
Pursuant to Section 6 (d) of that certain
Consent to Assignment, dated May 6, 1999,
by AEE Eastern Energy L.P. and AES NY3,
L.L.C. and accepted by CIBC, Inc. as
Secured Party (as defined therein) and
Somerset Railroad Corporation, consented
to by:
CIBC, INC., as Secured Party and Bank
(as defined in such Consent to Assignment)
By:________________________________
Name:
Title:
Dated:
31
Pursuant to Section 10.06 of the Working
Capital Facility, acknowledged and agreed by:
COBANK, ACB, as Bank (as defined
in the Working Capital Facility)
By:____________________________
Name:
Title:
Date:
32
