Amendment No. 1 to Deposit and Disbursement Agreement among AES Eastern Energy, L.P., Affiliates, and Bankers Trust Company

Summary

This amendment updates the original Deposit and Disbursement Agreement dated May 1, 1999, between AES Eastern Energy, L.P., its affiliates, various trust entities, Credit Suisse First Boston, and Bankers Trust Company. The amendment allows for the payment of additional interest and overdue rent as required by a related Registration Rights Agreement, and clarifies how these payments are to be processed and disbursed. All other terms of the original agreement remain in effect. The amendment is governed by New York law.

EX-10.20 2 aesee10kex1020.txt EXHIBIT 10.20 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 WESTOVER, L.L.C., a Delaware limited liability company and AES GREENIDGE, L.L.C., a Delaware limited liability company (iii) CREDIT SUISSE FIRST BOSTON, as Working Capital Provider (the "Working Capital Provider"), (iv) Kintigh Facility Trust A-1, a Delaware business trust, (v) Kintigh Facility Trust A-2, a Delaware business trust, (vi) Kintigh Facility Trust B-1, a Delaware business trust, (vii) Kintigh Facility Trust B-2, a Delaware business trust, (viii) Kintigh Facility Trust C-1, a Delaware business trust, (ix) Kintigh Facility Trust C-2, a Delaware business trust, (x) Milliken Facility Trust A-1, a Delaware business trust, (xi) Milliken Facility Trust A-2, a Delaware business trust, (xii) Milliken Facility Trust B-1, a Delaware business trust, (xiii) Milliken Facility Trust B-2, a Delaware business trust, (xiv) Milliken Facility Trust C-1, a Delaware business trust, (xv) Milliken Facility Trust C-2, a Delaware business trust, (xvi) DCC Project Finance Fourteen, Inc., as Owner Participant under two Participation Agreements (Kintigh A-1 and Milliken A-1), (xvii) DCC Project Finance Fifteen, Inc., as Owner Participant under two Participation Agreements (Kintigh A-2 and Milliken A-2), (xviii) First Chicago Leasing Corporation, as Owner Participant under two Participation Agreements (Kintigh B-1 and Milliken B-1), (xix) First Chicago Leasing Corporation, as Owner Participant under two Participation Agreements (Kintigh B-2 and Milliken B-2), (xx) Bankers Commercial Corporation, as Owner Participant under two Participation Agreements (Kintigh C-1 and Milliken C-1), (xxi) Bankers Commercial Corporation, as Owner Participant under two Participation Agreements (Kintigh C-2 and Milliken 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 Morgan Stanley & 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: John Ruggirello Title: Vice President Address for Notices: AES Eastern Energy, L.P. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 3 AEE 2, L.L.C. By: ------------------------------ Name: John Ruggirello Title: Address for Notices: AEE 2, L.L.C. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 4 CREDIT SUISSE FIRST BOSTON, as Working Capital Provider By:________________________________ Name: Title: Address for Notices: Credit Suisse First Boston 11 Madison Avenue New York, NY 10010-3629 Attention: Thomas Boehlert Telecopier No.: (212) 325-0982 Telephone No.: (212) 325-9106 5 KINTIGH FACILITY TRUST A-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh A-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 6 KINTIGH FACILITY TRUST A-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh A-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 7 KINTIGH FACILITY TRUST B-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh B-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 8 KINTIGH FACILITY TRUST B-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh B-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 9 KINTIGH FACILITY TRUST C-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh C-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 10 KINTIGH FACILITY TRUST C-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Kintigh C-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 11 MILLIKEN FACILITY TRUST A-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken A-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 12 MILLIKEN FACILITY TRUST A-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken A-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 13 MILLIKEN FACILITY TRUST B-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken B-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 14 MILLIKEN FACILITY TRUST B-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken B-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 15 MILLIKEN FACILITY TRUST C-1 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken C-1) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 16 MILLIKEN FACILITY TRUST C-2 By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee under the Trust Agreement (Milliken C-2) By:________________________________ Name: Title: Address for Notices: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE ###-###-#### Attention: Ann Roberts Telecopier No.: (302) 651-8882 Telephone No.: (302) 651-8681 17 DCC PROJECT FINANCE FOURTEEN, INC., as Owner Participant under the Participation Agreement (Kintigh A-1) By:________________________________ Name: Title: Address for Notices: DCC Project Finance Fourteen, Inc. 1801 Richards Road Toledo, OH 43607 Attention: Letitia D. Marth, Esq. Telecopier No.: (419) 322-7485 Telephone No.: (419) 322-7465 DCC PROJECT FINANCE FOURTEEN, INC., as Owner Participant under the Participation Agreement (Milliken A-1) By:________________________________ Name: Title: Address for Notices: DCC Project Finance Fourteen, Inc. 1801 Richards Road Toledo, OH 43607 Attention: Letitia D. Marth, Esq. Telecopier No.: (419) 322-7485 Telephone No.: (419) 322-7465 18 DCC PROJECT FINANCE FIFTEEN, INC., as Owner Participant under the Participation Agreement (Kintigh A-2) By:________________________________ Name: Title: Address for Notices: DCC Project Finance Fourteen, Inc. 1801 Richards Road Toledo, OH 43607 Attention: Letitia D. Marth, Esq. Telecopier No.: (419) 322-7484 Telephone No.: (419) 322-7465 DCC PROJECT FINANCE FIFTEEN, INC., as Owner Participant under the Participation Agreement (Milliken A-2) By:________________________________ Name: Title: Address for Notices: DCC Project Finance Fourteen, Inc. 1801 Richards Road Toledo, OH 43607 Attention: Letitia D. Marth, Esq. Telecopier No.: (419) 322-7484 Telephone No.: (419) 322-7465 19 FIRST CHICAGO LEASING CORPORATION, as Owner Participant under the Participation Agreement (Kintigh B-1) By:________________________________ Name: Title: Address for Notices: First Chicago Leasing Corporation One First National Plaza, Suite 0502 Chicago, IL 60670-0502 Attention: Contract Administration Telecopier No.: (312) 732-2231 Telephone No.: (312) 732-8100 FIRST CHICAGO LEASING CORPORATION, as Owner Participant under the Participation Agreement (Milliken B-1) By:________________________________ Name: Title: Address for Notices: First Chicago Leasing Corporation One First National Plaza, Suite 0502 Chicago, IL 60670-0502 Attention: Contract Administration Telecopier No.: (312) 732-2231 Telephone No.: (312) 732-8100 20 FIRST CHICAGO LEASING CORPORATION, as Owner Participant under the Participation Agreement (Kintigh B-2) By:________________________________ Name: Title: Address for Notices: First Chicago Leasing Corporation One First National Plaza, Suite 0502 Chicago, IL 60670-0502 Attention: Contract Administration Telecopier No.: (312) 732-2231 Telephone No.: (312) 732-8100 FIRST CHICAGO LEASING CORPORATION, as Owner Participant under the Participation Agreement (Milliken B-2) By:________________________________ Name: Title: Address for Notices: First Chicago Leasing Corporation One First National Plaza, Suite 0502 Chicago, IL 60670-0502 Attention: Contract Administration Telecopier No.: (312) 732-2231 Telephone No.: (312) 732-8100 21 BANKERS COMMERCIAL CORPORATION, as Owner Participant under the Participation Agreement (Kintigh C-1) By:________________________________ Name: Title: Address for Notices: Bankers Commercial Corporation 445 South Figueroa Street Los Angeles, CA 90071 Attention: Bill Moore, Esq. Telecopier No.: (213) 236-7579 Telephone No.: (213) 236-5544 BANKERS COMMERCIAL CORPORATION, as Owner Participant under the Participation Agreement (Milliken C-1) By:________________________________ Name: Title: Address for Notices: Bankers Commercial Corporation 445 South Figueroa Street Los Angeles, CA 90071 Attention: Bill Moore, Esq. Telecopier No.: (213) 236-7579 Telephone No.: (213) 236-5544 22 BANKERS COMMERCIAL CORPORATION, as Owner Participant under the Participation Agreement (Kintigh C-2) By:________________________________ Name: Title: Address for Notices: Bankers Commercial Corporation 445 South Figueroa Street Los Angeles, CA 90071 Attention: Bill Moore, Esq. Telecopier No.: (213) 236-7579 Telephone No.: (213) 236-5544 BANKERS COMMERCIAL CORPORATION, as Owner Participant under the Participation Agreement (Milliken C-2) By:________________________________ Name: Title: Address for Notices: Bankers Commercial Corporation 445 South Figueroa Street Los Angeles, CA 90071 Attention: Bill Moore, Esq. Telecopier No.: (213) 236-7579 Telephone No.: (213) 236-5544 23 BANKERS TRUST COMPANY, as Depositary Agent By:________________________________ Name: Title: Address for Notices: Bankers Trust Company 4 Albany Street - 4th Floor New York, NY 10006 Attention: Richard L. Buckwalter Telecopier No.: (212) 250-6725 Telephone No.: (212) 250-8869 24 BANKERS TRUST COMPANY, as the Indenture Trustee By:________________________________ Name: Title: Address for Notices: Bankers Trust Company 4 Albany Street - 4th Floor New York, NY 10006 Attention: Richard L. Buckwalter Telecopier No.: (212) 250-6725 Telephone No.: (212) 250-8869 25 BANKERS TRUST COMPANY, as the Pass Through Trustee By:________________________________ Name: Title: Address for Notices: Bankers Trust Company 4 Albany Street - 4th Floor New York, NY 10006 Attention: Richard L. Buckwalter Telecopier No.: (212) 250-6725 Telephone No.: (212) 250-8869 26 AES SOMERSET, L.L.C. By:________________________________ Name: John Ruggirello Title: Address for Notices: AES Somerset, L.L.C. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 27 AES CAYUGA, L.L.C. By:________________________________ Name: John Ruggirello Title: Address for Notices: AES Cayuga, L.L.C. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 28 AES WESTOVER, L.L.C. By:________________________________ Name: John Ruggirello Title: Address for Notices: AES Westover, L.L.C. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 29 AES GREENIDGE, L.L.C. By:________________________________ Name: John Ruggirello Title: Address for Notices: AES Greenidge, L.L.C. 1001 North 19th Street Suite 2000 Arlington, VA 22209 Attention: William Luraschi Telecopier No.: (703) 528-4510 Telephone No.: (703) 522-1315 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