Exhibit 10.22a
OMNIBUS AMENDMENT
TO XXXXXXXX A-1 TRANSACTION DOCUMENTS
THIS OMNIBUS AMENDMENT TO XXXXXXXX A-1 TRANSACTION DOCUMENTS dated as
of December 1, 2000 (this "Amendment") is an amendment to (i) that certain
Participation Agreement (Xxxxxxxx A-1) dated as of May 1, 1999 (the
"Participation Agreement"; capitalized terms not otherwise defined herein shall
have the meanings set forth in Appendix A to the Participation Agreement), among
AES EASTERN ENERGY, L.P. ("AES"), as Lessee, DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant (the "Owner Participant"), XXXXXXXX FACILITY TRUST A-1, as
Owner Trust (the "Owner Trust"), BANKERS TRUST COMPANY, not in its individual
capacity, except as expressly provided therein, but solely as Indenture Trustee
(the "Indenture Trustee"), and BANKERS TRUST COMPANY, not its individual
capacity, except as expressly provided therein, but solely as Pass Through
Trustees (the "Pass Through Trustees"), (ii) the Site Lease, (iii) the
Depositary Agreement and (iv) the Facilities Support Agreement (together with
the Participation Agreement, the Site Lease and the Depositary Agreement, the
"Transaction Documents").
The parties hereto desire to amend, and do hereby amend the Transaction
Documents to make certain changes as set forth below.
SECTION 1. AMENDMENTS.
The parties hereto agree as follows:
(a) Section 3.1(h)(ii) of the Participation Agreement is amended by
replacing the words "Part I" each time they appear therein with the words "Item
1".
(b) Section 6.2(a) of the Participation Agreement is amended by
replacing the first seven lines thereof with the following: "(a) Notwithstanding
any provision to the contrary set forth in the Depositary Agreement, AEE will
not make any Distribution (and will not permit any AEE Subsidiary to make any
Distribution other than to AEE or any other AEE Subsidiary) unless such
Distribution is made on or within 10 Business Days after a Rent Payment Date
(commencing with the Rent Payment Date occurring on July 2, 2000 as specified in
clause (vii) below) and at the time of such Distribution (and during the period
between the date that occurs 5 Business Days after a Rent Payment Date and the
time of such Distribution) the following conditions are satisfied:".
(c) Appendix A to the Participation Agreement is amended by:
(i) replacing in the definition for "Closing Appraisal" the
percentage "81.75%" each time it appears therein with the
percentage "86.75%";
(ii) replacing in the definition for "Engineering Report" the date
"May 14, 1999" each time it appears therein with the date "May
12, 1999";
(iii) replacing in the definition for "Ineligible Transferee" the
section reference of "5.3(c)" each time it appears therein
with the section reference "5.3(a)";
(iv) replacing in the definition for "Overdue Rate" the word
"rated" the first time it appears therein with the words "rate
of a"; and
(v) replacing the definition of "Related Site Lease" in its
entirety with the following:
""Related Site Lease" shall mean each "Site Lease", on
substantially the same terms and conditions as under the Site
Lease, and dated the same date as the Lease Financing,
relating to the lease financing of the Related Facility."
(d) Schedule 1 to the Participation Agreement is amended by replacing
the Lessor's Account number "48430-0" each time it appears therein with the
Lessor's Account number"48436-0".
(e) The Site Lease is amended by replacing the amount "$31,388.84" each
time it appears therein with the amount "$161,007.19".
(f) Section 3.1(b)(ix) "Ninth" of the Depositary Agreement is amended
by replacing the words "(or, if not on such date, within five Business Days
thereafter)" with the words "(or, if not on such date, within 10 Business Days
thereafter)" in the first and second line thereof.
(g) Exhibit A to the Depository Agreement is amended by replacing the
words "Operating Account" each time they appear therein with the words "Revenue
Account".
(h) Exhibit B to the Depositary Agreement is amended by:
(i) replacing the words "(or within five Business Days after such
Rent Payment Date)" with the words "(or within 10 Business
Days after such Rent Payment Date)" in paragraph "Ninth"
thereof; and
(ii) replacing the words "or is within five (5) Business Days
after" with the words "or is within 10 Business Days after" in
paragraph 16a thereof.
(i) ANNEX 5-Ninth to Exhibit B to the Depositary Agreement is amended
by replacing the words "or within 5 Business Days of which" with the words "or
within 10 Business Days of which" in clause 2 thereof.
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(j) The signature page to the Facilities Support Agreement is amended
by replacing the word "Facility" each time it appears therein with the word
"Facilities".
SECTION 2. MISCELLANEOUS.
(a) Lessee hereby agrees to deliver (i) pursuant to Section 4.6 of the
Participation Agreement, an Officer's Certificate of AEE, (ii) an original
executed copy of the Payment Undertaking Agreement by Morgan Guaranty Trust
Company, (iii) an original executed copy of the Depositary Agreement and (iv)
all appendices to the EPC Contract.
(b) This Amendment is hereby made a part of the Transaction Documents,
as expressly amended hereby, and each of the Transaction Documents is hereby
ratified and confirmed in all respects.
(c) The Owner Participant of the Trust, pursuant to Section 5.02 of the
Trust Agreement, hereby authorizes and directs Wilmington Trust Company, as
Trustee of the Trust, to execute and deliver this Amendment on behalf of the
Trust. The Owner Participant confirms that each such action by the Trustee
pursuant to the foregoing authorization and direction (i) is permitted by and
authorized under the Trust Agreement and does not violate or constitute a breach
of the Trust Agreement or any other Operative Document, (ii) does not constitute
bad faith, willful misconduct, negligence or gross negligence, and (iii) is
covered by the indemnification provided under Section 7.01 of the Trust
Agreement.
(d) This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
(e) From time to time each party hereto shall perform such acts and
execute such instruments as shall reasonably be requested by any other party
hereto for the purpose of carrying out and effectuating this Amendment and the
intent hereof.
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IN WITNESS WHEREOF, the parties hereto have each caused this Amendment
to be duly executed by their respective officers hereunto duly authorized as of
the date first above written.
DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant
By:
-------------------------------------
Name:
Title:
XXXXXXXX FACILITY TRUST A-1
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Trustee under the Trust Agreement
By:
-------------------------------------
Name:
Title:
AES EASTERN ENERGY, L.P.
By:
-------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity, except
as expressly set forth herein, but as
Indenture Trustee under the Indenture
Trust Agreement
By:
-------------------------------------
Name:
Title:
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BANKERS TRUST COMPANY,
not in its individual capacity,
except expressly set forth herein,
but as Pass Through Trustees under
the Pass Through Trust Agreements
By:
-------------------------------------
Name:
Title:
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