Exhibit 10.23a
SECOND AMENDMENT TO XXXXXXX A-1
PARTICIPATION AGREEMENT AND APPENDIX A
This SECOND AMENDMENT TO XXXXXXX A-1 PARTICIPATION AGREEMENT AND APPENDIX A
dated as of April 10, 2001 (this "Amendment") by and among the parties hereto is
an amendment to that certain Participation Agreement (Xxxxxxx A-1) (including
Appendix A thereto) dated as of May 1, 1999, as amended by that certain Omnibus
Amendment to Xxxxxxx A-1 Transaction Documents dated as of December 1, 2000 (as
so amended, the "Participation Agreement"), among AES EASTERN ENERGY, L.P.
(herein, together with its permitted successors and assigns, called "AEE"),
XXXXXXX FACILITY TRUST A-1 (herein, together with its permitted successors and
assigns, called the "Owner Trust"), DCC PROJECT FINANCE FOURTEEN, INC. (herein,
together with its permitted successors and assigns, called the "Owner
Participant"), BANKERS TRUST COMPANY, not in its individual capacity, except as
expressly provided therein, but solely as Indenture Trustee (herein, together
with its permitted successors and assigns, the "Indenture Trustee"), and BANKERS
TRUST COMPANY, not in its individual capacity, except as expressly provided
therein, but solely as Pass Through Trustees (herein, together with its
permitted successors and assigns, the "Pass Through Trustees"). Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in Appendix A to the Participation Agreement.
WHEREAS, the parties hereto desire to amend the Participation Agreement and
Appendix A thereto;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO PARTICIPATION AGREEMENT.
(a) Section 5.17 of the Participation Agreement is hereby amended by
replacing the words "no later than 30 days following January 1, 2001
and biennially thereafter" with the words "at least 30 days prior to
January 1, 2003 and biennially thereafter (and prior to or
concurrently with the Pro Forma projections and related calculations
required in such year pursuant to Section 5.3(c))" in the fourth and
fifth lines thereof.
(b) Section 6.7 of the Participation Agreement is hereby amended by
replacing the words "Section 2.12" with the words "Section 3.13" in
the second line thereof.
SECTION 2. AMENDMENTS TO APPENDIX A. The following definitions set forth in
Appendix A to the Participation Agreement shall be amended as follows:
(a) The definition of "Depositary Agreement" set forth in Appendix A to
the Participation Agreement is hereby amended to read in its entirety
as follows:
"Depositary Agreement" shall mean the Amended and Restated Deposit and
Disbursement Agreement, dated as of April 10, 2001, among AEE, the AEE
Subsidiaries, the Working Capital Provider, the Owner Trust, the Other
Lessors, the Related Lessors, the Owner Participant, the Other Owner
Participants, the Related Owner Participants, the Depositary Agent,
the Indenture Trustee (and each indenture trustee under any Other
Indenture or in respect of any Related Lease) and each Pass Through
Trustee.
(b) The definition of "Environmental Laws" set forth in Appendix A to the
Participation Agreement is hereby amended by replacing the words
"Hazardous Material" with the words "Hazardous Substance" in the
twentieth line and the twenty-third and twenty-fourth lines thereof.
(c) The definition of "Operating and Maintenance Costs" set forth in
Appendix A to the Participation Agreement is hereby amended to read in
its entirety as follows:
"Operating and Maintenance Costs" shall mean, for any period, all cash
operating and maintenance expenses of AEE or any AEE Subsidiary in
respect of the Facility, the Related Facility, the Additional
Facilities or any other assets or property of AEE or any AEE
Subsidiary for such period, calculated in accordance with cash
accounting, including, without limitation, amounts owed under the Coal
Hauling Agreement, Working Capital Fees, Working Capital Costs and
Expenses and interest payable pursuant to the Working Capital Facility
or any successor facility, the fees set forth in the Operation and
Maintenance Agreements, capital expenditures (made or, in the case of
any future period duly
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budgeted pursuant to Section 5.9 of the Participation Agreement,
including all costs of major inspections, unscheduled or scheduled
major maintenance of the Facility, the Related Facility or any
Additional Facility and all work on account of extraordinary equipment
failures and contingencies (including overhaul costs)), insurance
premiums, payments due in respect of property or sales taxes,
consumables, labor costs, costs incurred under any contracts for the
purchase, transportation or handling of fuel and any options related
thereto, costs incurred with regard to disposal of ash or any products
generated by the Facility, the Related Facility or the Additional
Facilities and general and administrative expenses and maintenance
costs with regard to the Facility, the Related Facility or the
Additional Facilities and any other assets or property of any AEE
Subsidiary, but excluding Fixed Charges in all such cases, in each
case attributable to such period. For the avoidance of doubt,
Operating and Maintenance Costs shall not include income taxes, the
costs under the EPC Contract for the construction and installation of
the SCR or any transaction expenses associated with the Acquisition or
the Lease Financing paid in 1999.
(d) The definition of "Working Capital Facility" set forth in Appendix A
to the Participation Agreement is hereby amended to read in its
entirety as follows:
"Working Capital Facility" shall mean (i) the working capital facility
established pursuant to that certain Credit Agreement dated as of
April 10, 2001 among AEE, the Banks and the Issuing Banks named
therein and Union Bank of California, N.A., as Agent therein or (ii)
any other agreement or agreements from time to time in effect among
AEE and banks or financial institutions providing for the availability
of Permitted Working Capital Indebtedness; provided, that such banks
or financial institutions shall not be Affiliates of AEE.
(e) The definition of "Working Capital Provider" set forth in Appendix A
to the Participation Agreement is hereby amended to read in its
entirety as follows:
"Working Capital Provider" shall mean the banks or financial
institutions providing Permitted Working Capital Indebtedness pursuant
to any Working Capital Facility and any agent acting on behalf of such
banks or financial institutions.
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(f) The following definitions are hereby added to Appendix A to the
Participation Agreement:
"Working Capital Costs and Expenses" shall mean any and all (i)
breakage costs, increased costs due to changes in tax laws, capital
adequacy requirements or other regulatory changes and other similar
costs, expenses, losses and compensation associated with yield
protection, (ii) tax gross-up payments, (iii) out-of-pocket costs and
expenses (including reasonable fees and expenses of counsel and other
experts or consultants) and (iv) other similar costs and expenses, in
each case required to be paid to the Working Capital Provider in
respect of, or pursuant to the terms of, the Working Capital Facility
(other than indemnity obligations thereunder).
"Working Capital Fees" shall mean any and all upfront fees, commitment
fees, facility fees, utilization fees, agency fees or other similar
fees payable to the Working Capital Provider in respect of, or
pursuant to, the Working Capital Facility.
SECTION 3. MISCELLANEOUS.
(a) This Amendment is hereby made a part of the Participation Agreement
(including Appendix A thereof), and the Participation Agreement (including
Appendix A thereof), as expressly amended hereby, is hereby ratified and
confirmed in all respects.
(b) By its execution hereof, the Owner Trust shall be deemed to have
consented to this Amendment and to the Depositary Agreement (as defined in this
Amendment) for the purposes of Section 8.2 of the Indenture.
(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 on behalf of the Trust this
Amendment and the Depositary Agreement (as defined in this Amendment). 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.
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(d) This Amendment has been delivered in the State of New York and shall
be in all respects governed by and construed in accordance with the laws of the
State of New York including all matters of construction, validity and
performance.
(e) This Amendment may be executed in any number of counterparts and by
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.
(f) From time to time each party hereto shall promptly and duly execute
and deliver such further documents to make further assurances for and take such
further action reasonably 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 caused this Amendment to be
duly executed by their respective officers hereunto duly authorized as of the
date first above written.
AES Eastern Energy, L.P.
By: AES NY L.L.C., its general partner
By: ______________________________
Name:
Title:
XXXXXXX FACILITY TRUST A-1
By: Wilmington Trust Company, not in its
individual capacity but solely as
Trustee under the Trust Agreement
By: ______________________________
Name:
Title:
DCC PROJECT FINANCE FOURTEEN, INC.
By: ______________________________
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Indenture Trustee under the Indenture
By: ______________________________
Name:
Title:
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BANKERS TRUST COMPANY, not in its
individual capacity but solely as Pass
Through Trustees under the Pass Through
Trust Agreements
By: ______________________________
Name:
Title:
