Exhibit 10.19
AMENDED AND RESTATED
DEPOSIT AND DISBURSEMENT AGREEMENT
among
AES EASTERN ENERGY, L.P.,
AEE2, L.L.C.,
AES SOMERSET, L.L.C.,
AES CAYUGA, L.L.C.,
AES WESTOVER, L.L.C.,
AES GREENIDGE, L.L.C.,
UNION BANK OF CALIFORNIA, N.A.,
as Agent under the Working Capital Facility,
as Working Capital Provider,
BANKERS TRUST COMPANY,
as Depositary Agent,
KINTIGH FACILITY TRUST A-1,
as Owner Trust,
KINTIGH FACILITY TRUST A-2,
as Owner Trust,
KINTIGH FACILITY TRUST B-1,
as Owner Trust,
KINTIGH FACILITY TRUST B-2,
as Owner Trust,
KINTIGH FACILITY TRUST C-1,
as Owner Trust,
KINTIGH FACILITY TRUST C-2,
as Owner Trust,
MILLIKEN FACILITY TRUST A-1,
as Owner Trust,
MILLIKEN FACILITY TRUST A-2,
as Owner Trust,
MILLIKEN FACILITY TRUST B-1,
as Owner Trust,
MILLIKEN FACILITY TRUST B-2,
as Owner Trust,
MILLIKEN FACILITY TRUST C-1,
as Owner Trust,
MILLIKEN FACILITY TRUST C-2,
as Owner Trust,
DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant under two Participation Agreements
(Kintigh A-1 and Milliken A-1),
DCC PROJECT FINANCE FIFTEEN, INC.,
as Owner Participant under two Participation Agreements
(Kintigh A-2 and Milliken A-2),
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under two Participation Agreements
(Kintigh B-1 and Milliken B-1),
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under two Participation Agreements
(Kintigh B-2 and Milliken B-2),
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under two Participation Agreements
(Kintigh C-1 and Milliken C-1),
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under two Participation Agreements
(Kintigh C-2 and Milliken C-2),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh A-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh A-2),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh B-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh B-2),
ii
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh C-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh C-2),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken A-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken A-2),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken B-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken B-2),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken C-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Milliken C-2),
BANKERS TRUST COMPANY,
as Pass Through Trustee (Series 1999-A),
and
BANKERS TRUST COMPANY,
as Pass Through Trustee (Series 1999-B)
Dated as of April 10, 2001
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms.................................................2
ARTICLE II
THE DEPOSITARY AGENT; ESTABLISHMENT OF THE ACCOUNTS
Section 2.1 The Depositary Agent; Limited Rights of AEE.......................7
Section 2.2 Establishment of Accounts.........................................7
Section 2.3 Responsibility and Control........................................8
Section 2.4 Termination.......................................................8
ARTICLE III
THE ACCOUNTS
Section 3.1 Revenue Account...................................................9
Section 3.2 Operating Account................................................14
Section 3.3 Working Capital Account..........................................14
Section 3.4 Rent Payment Account.............................................15
Section 3.5 Debt Repayment Account...........................................16
Section 3.6 Rent Reserve Account.............................................16
Section 3.7 Indemnity Account................................................18
Section 3.8 Deferrable Payments Account......................................18
Section 3.9 Additional Liquidity Account.....................................19
Section 3.10 Special Rent Reserve Account....................................19
Section 3.11 Loss Proceeds Account...........................................21
Section 3.12 Drawing Events..................................................21
Section 3.13 Permitted Investments...........................................22
Section 3.14 Account Balance Statements; Payment Undertaking Agreements......22
Section 3.15 Instructions to the Depositary Agent............................23
Section 3.16 Lease Event of Default and Indenture Event of Default...........23
ARTICLE IV
THE DEPOSITARY AGENT
Section 4.1 Appointment of the Depositary Agent; Powers and Immunities.......24
Section 4.2 Reliance by the Depositary Agent.................................26
Section 4.3 Court Orders.....................................................26
Section 4.4 Resignation or Removal...........................................26
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ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
Section 5.1 Expenses.........................................................27
Section 5.2 Indemnification..................................................28
Section 5.3 Fees.............................................................28
ARTICLE VI
Limitation of Liability
Section 6.1 Limitation of Liability..........................................28
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments; Etc..................................................28
Section 7.2 Addresses for Notices............................................28
Section 7.3 Integration, Etc.................................................28
Section 7.4 Headings; Table of Contents; Section References..................29
Section 7.5 No Third Party Beneficiaries.....................................29
Section 7.6 No Waiver........................................................29
Section 7.7 Severability.....................................................29
Section 7.8 Successors and Assigns...........................................29
Section 7.9 Execution in Counterparts........................................29
Section 7.10 SPECIAL EXCULPATION.............................................29
Section 7.11 GOVERNING LAW...................................................30
SCHEDULE
SCHEDULE I Accounts
EXHIBITS
EXHIBIT A Form of Instruction Letter
EXHIBIT B Form of Funding Date Certificate
APPENDIX A DEFINITIONS
AMENDED AND RESTATED DEPOSIT AND DISBURSEMENT AGREEMENT (this "Depositary
Agreement") dated as of April 10, 2001 among (i) AES EASTERN ENERGY, L.P., a
limited partnership organized under the State of Delaware ("AEE"); (ii) AEE2,
L.L.C., a limited liability company organized under the laws of the State of
Delaware ("AEE2"), 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) UNION BANK OF CALIFORNIA, N.A., as agent for
itself and certain other banks and financial institutions under the Working
Capital Facility (in such capacity, together with its successors and assigns in
such capacity, the "Agent"), as 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 (other than Union Bank of California, N.A., as
Agent, as Working Capital Provider) entered into that certain Deposit and
Disbursement Agreement
dated as of May 1, 1999, as amended by that certain Amendment No. 1 dated as of
April 12, 2000 (the "Original Depositary Agreement"), with Credit Suisse First
Boston, as Working Capital Provider, providing for the appointment of the
Depositary Agent and the administration of the Accounts established therein;
WHEREAS, the parties hereto desire to amend and restate the Original
Depositary Agreement to replace Credit Suisse First Boston with Union Bank of
California, N.A., as Agent, as Working Capital Provider and to clarify certain
terms and provisions of the Original Depositary Agreement;
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 to amend and restate the Original
Depositary Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. The following terms shall have the meanings
herein specified unless the context otherwise requires. Such definitions shall
be equally applicable to the singular and plural forms of the terms defined.
Each capitalized term used herein and not otherwise defined herein shall have
the meaning assigned to that term in Appendix A (as amended, supplemented or
otherwise modified from time to time after the date hereof with the consent of
the parties hereto) to the Participation Agreement (Kintigh A-1), dated as of
May 1, 1999, by and among AEE and the other parties thereto, attached hereto and
as in effect as of the date hereof, and the principles of interpretation set
forth in such Appendix shall apply to such definition.
"Accreted Value" shall have the meaning set forth in any Payment
Undertaking Agreement.
"Basic Rent" shall have the meaning specified in Section 3.3 of each Lease,
and at any time shall equal the aggregate amount of Basic Rent due at such time
under all such Leases.
"Deferrable Payments" shall have the meaning specified in Section 3.4 of
each Lease, and at any time shall equal the aggregate amount of Deferrable
Payments due at such time under all such Leases.
"Drawing Event" shall mean any deficiency in the Accounts under this
Depositary Agreement other than the Loss Proceeds Account, the Special Rent
Reserve Account and the Distribution Account.
"Funding Date" shall mean the first Business Day of each month commencing
with the first Business Day of the month falling after the Closing Date.
"Funding Date Certificate" shall have the meaning specified in Section
3.1(b).
2
"Funding Period" shall mean a period commencing on a Funding Date and
ending on the day preceding the next succeeding Funding Date.
"Indenture" shall mean, individually, each of the following:
(i) the Indenture of Trust and Security Agreement (Kintigh A-1), dated
as of May 1, 1999 between the parties named therein;
(ii) the Indenture of Trust and Security Agreement (Kintigh A-2),
dated as of May 1, 1999 between the parties named therein;
(iii) the Indenture of Trust and Security Agreement (Kintigh B-1),
dated as of May 1, 1999 between the parties named therein;
(iv) the Indenture of Trust and Security Agreement (Kintigh B-2),
dated as of May 1, 1999 between the parties named therein;
(v) the Indenture of Trust and Security Agreement (Kintigh C-1), dated
as of May 1, 1999 between the parties named therein;
(vi) the Indenture of Trust and Security Agreement (Kintigh C-2),
dated as of May 1, 1999 between the parties named therein;
(vii) the Indenture of Trust and Security Agreement (Milliken A-1),
dated as of May 1, 1999 between the parties named therein;
(viii) the Indenture of Trust and Security Agreement (Milliken A-2),
dated as of May 1, 1999 between the parties named therein;
(ix) the Indenture of Trust and Security Agreement (Milliken B-1),
dated as of May 1, 1999 between the parties named therein;
(x) the Indenture of Trust and Security Agreement (Milliken B-2),
dated as of May 1, 1999 between the parties named therein;
(xi) the Indenture of Trust and Security Agreement (Milliken C-1),
dated as of May 1, 1999 between the parties named therein; and
(xii) the Indenture of Trust and Security Agreement (Milliken C-2),
dated as of May 1, 1999 between the parties named therein.
"Indenture Trustee" shall mean Bankers Trust Company, not in its individual
capacity, but solely as Indenture Trustee under each Indenture, and each other
Person who may from time to time be acting as Indenture Trustee in accordance
with the provisions of such Indenture.
"Lease" shall mean, individually, each of the following:
3
(i) the Facility Lease Agreement (Kintigh A-1), dated as of May 1,
1999 between AEE and the lessor named therein;
(ii) the Facility Lease Agreement (Kintigh A-2), dated as of May 1,
1999 between AEE and the lessor named therein;
(iii) the Facility Lease Agreement (Kintigh B-1), dated as of May 1,
1999 between AEE and the lessor named therein;
(iv) the Facility Lease Agreement (Kintigh B-2), dated as of May 1,
1999 between AEE and the lessor named therein;
(v) the Facility Lease Agreement (Kintigh C-1), dated as of May 1,
1999 between AEE and the lessor named therein;
(vi) the Facility Lease Agreement (Kintigh C-2), dated as of May 1,
1999 between AEE and the lessor named therein;
(vii) the Facility Lease Agreement (Milliken A-1), dated as of May 1,
1999 between AEE and the lessor named therein;
(viii) the Facility Lease Agreement (Milliken A-2), dated as of May 1,
1999 between AEE and the lessor named therein;
(ix) the Facility Lease Agreement (Milliken B-1), dated as of May 1,
1999 between AEE and the lessor named therein;
(x) the Facility Lease Agreement (Milliken B-2), dated as of May 1,
1999 between AEE and the lessor named therein;
(xi) the Facility Lease Agreement (Milliken C-1), dated as of May 1,
1999 between AEE and the lessor named therein; and
(xii) the Facility Lease Agreement (Milliken C-2), dated as of May 1,
1999 between AEE and the lessor named therein.
"Market Termination Amount" shall have the meaning set forth in any Payment
Undertaking Agreement.
"Owner Participant" shall mean, individually, each of the following,
together with their respective successors and permitted assigns:
(i) DCC Project Finance Fourteen, Inc., as Owner Participant under
each Participation Agreement (Kintigh A-1 and Milliken A-1);
(ii) DCC Project Finance Fifteen, Inc., as Owner Participant under
each Participation Agreement (Kintigh A-2 and Milliken A-2); or
4
(iii) First Chicago Leasing Corporation, as Owner Participant under
each Participation Agreement (Kintigh B-1 and Milliken B-1);
(iv) First Chicago Leasing Corporation, as Owner Participant under
each Participation Agreement (Kintigh B-2 and Milliken B-2);
(v) Bankers Commercial Corporation, as Owner Participant under each
Participation Agreement (Kintigh C-1 and Milliken C-1); and
(vi) Bankers Commercial Corporation, as Owner Participant under each
Participation Agreement (Kintigh C-2 and Milliken C-2).
"Owner Trust" shall mean, individually, each of the following:
(i) Kintigh Facility Trust A-1, a Delaware business trust;
(ii) Kintigh Facility Trust A-2, a Delaware business trust;
(iii) Kintigh Facility Trust B-1, a Delaware business trust,
(iv) Kintigh Facility Trust B-2, a Delaware business trust;
(v) Kintigh Facility Trust C-1, a Delaware business trust;
(vi) Kintigh Facility Trust C-2, a Delaware business trust;
(vii) Milliken Facility Trust A-1, a Delaware business trust;
(viii) Milliken Facility Trust A-2, a Delaware business trust;
(ix) Milliken Facility Trust B-1, a Delaware business trust;
(x) Milliken Facility Trust B-2, a Delaware business trust;
(xi) Milliken Facility Trust C-1, a Delaware business trust; and
(xii) Milliken Facility Trust C-2, a Delaware business trust.
"Participation Agreement" shall mean, individually, each of the following:
(i) the Participation Agreement (Kintigh A-1), dated as of May 1, 1999
among AEE and the other parties named therein;
(ii) the Participation Agreement (Kintigh A-2), dated as of May 1,
1999 among AEE and the other parties named therein;
(iii) the Participation Agreement (Kintigh B-1), dated as of May 1,
1999 among AEE and the other parties named therein;
5
(iv) the Participation Agreement (Kintigh B-2), dated as of May 1,
1999 among AEE and the other parties named therein;
(v) the Participation Agreement (Kintigh C-1), dated as of May 1, 1999
among AEE and the other parties named therein;
(vi) the Participation Agreement (Kintigh C-2), dated as of May 1,
1999 among AEE and the other parties named therein;
(vii) the Participation Agreement (Milliken A-1), dated as of May 1,
1999 among AEE and the other parties named therein;
(viii) the Participation Agreement (Milliken A-2), dated as of May 1,
1999 among AEE and the other parties named therein;
(ix) the Participation Agreement (Milliken B-1), dated as of May 1,
1999 among AEE and the other parties named therein;
(x) the Participation Agreement (Milliken B-2), dated as of May 1,
1999 among AEE and the other parties named therein;
(xi) the Participation Agreement (Milliken C-1), dated as of May 1,
1999 among AEE and the other parties named therein;
(xii) the Participation Agreement (Milliken C-2), dated as of May 1,
1999 among AEE and the other parties named therein;
"Rent" shall mean Basic Rent and Supplemental Rent.
"Rent Reserve Account Payment Undertaking Agreement" shall mean the Rent
Reserve Account Payment Undertaking Agreement, dated as of May 1, 1999, among
AEE, Kintigh Facility Trust A-1, Milliken Facility Trust A-1, Kintigh Facility
Trust A-2, Milliken Facility Trust A-2, Kintigh Facility Trust B-1, Milliken
Facility Trust B-1, Kintigh Facility Trust B-2, Milliken Facility Trust B-2,
Kintigh Facility Trust C-1, Milliken Facility Trust C-1, Kintigh Facility Trust
C-2, Milliken Facility Trust C-2 and Morgan Guaranty Trust Company of New York,
or any other Payment Undertaking Agreement in effect from time to time in
respect of the Rent Reserve Account.
"Scheduled Payments" shall mean with respect to any Payment Undertaking
Agreement providing for the payment of Basic Rent the amounts available
thereunder for the purpose of paying installments of Basic Rent in accordance
with the schedule attached thereto.
"Supplemental Rent" shall mean any and all amounts, liabilities and
obligations (other than Basic Rent) which AEE assumes or agrees to pay to any
Persons under the Operative Documents (whether or not identified as
"Supplemental Rent"), including, but not limited to, Termination Value as set
forth in a Lease, and at any time, shall equal the aggregate amount of
Supplemental Rent due at such time under all such Operative Documents.
6
ARTICLE II
THE DEPOSITARY AGENT; ESTABLISHMENT OF THE ACCOUNTS
Section 2.1 The Depositary Agent; Limited Rights of AEE.
(a) Acceptance of Appointment of Depositary Agent. The parties hereto
hereby appoint Bankers Trust Company as Depositary Agent under this Depositary
Agreement, and Bankers Trust Company hereby agrees to act as Depositary Agent
under this Depositary Agreement. In performing its functions and duties under
this Depositary Agreement, the Depositary Agent, except in such capacity, does
not assume and shall not be deemed to have assumed any relationship of agency or
trust with or for AEE, AEE2 or any other Person.
(b) Limited Rights of AEE. AEE shall have no rights against, or to
monies held in, the Accounts, as third party beneficiary or otherwise, except,
subject to Section 3.16, AEE shall have the right, to the extent expressly
provided in this Depositary Agreement, (i) to receive or make requisitions of
monies held in the Accounts, (ii) to cause transfers of monies held in the
Accounts among the Accounts, (iii) to direct the investment of monies held in
the Accounts in Permitted Investments, and (iv) in the case of the Operating
Account, to write checks against such Account, or otherwise apply or cause the
transfer of monies held in such Account, for the payment of Operating and
Maintenance Costs and other obligations of AEE and AEE2. In no event shall any
amounts or Permitted Investments deposited in or credited to any Account be
registered in the name of AEE or AEE2, payable to the order of AEE or AEE2 or
specially indorsed to AEE or AEE2, except to the extent that the foregoing have
been specially indorsed by AEE or AEE2, as the case may be, in blank.
Section 2.2 Establishment of Accounts. The Depositary Agent has established
the following segregated and irrevocable cash collateral accounts (together with
all sub-accounts to be established pursuant to this Depositary Agreement, the
"Accounts") in the form of non-interest bearing accounts, which shall be
maintained at all times until the termination of this Depositary Agreement and
which are defined as follows:
(a) Revenue Account;
(b) Operating Account;
(c) Working Capital Account;
(d) Rent Payment Account;
(e) Debt Repayment Account;
(f) Rent Reserve Account;
(g) Indemnity Account;
(h) Deferrable Payments Account;
(i) Loss Proceeds Account;
(j) Additional Liquidity Account;
(k) Special Rent Reserve Account; and
(l) Distribution Account.
7
The account numbers of the Accounts established hereunder on the Closing
Date are set forth on Schedule I hereto. The Accounts shall not be evidenced by
passbooks or similar writings.
The Depositary Agent shall, if expressly required pursuant to the terms of
this Depositary Agreement, and may, upon the request of AEE and upon notice to
each other party hereto, establish and create sub-accounts within the Accounts.
In the event that, in accordance with this Depositary Agreement, the Depositary
Agent is required to segregate certain monies in an Account from any other
amounts on deposit in such Account pending transfer or withdrawal in accordance
with this Depositary Agreement, the Depositary Agent shall either (i) hold such
monies in such Account for use solely for such transfer or withdrawal or (ii) if
requested in a certificate of a Responsible Officer of AEE, create a separate
sub-account for such purpose.
All amounts from time to time held in each Account shall be held (A) in the
name of AEE and (B) in the custody of, and subject to the control of, the
Depositary Agent on the terms set forth in this Depositary Agreement. Subject to
clause (B) of the preceding sentence, all of the Accounts and any sub-accounts
established under this Depositary Agreement, including all revenues, cash,
payments, securities, investments and other amounts on deposit therein, shall be
considered the property of AEE until disbursed in accordance with the terms of
this Depositary Agreement, and AEE shall be solely responsible for, and shall
pay, any and all Taxes imposed on or with respect to any earnings or gains in
any Account or sub-account created under this Depositary Agreement.
Section 2.3 Responsibility and Control. The Depositary Agent shall not be
responsible to take any action except through the performance of its express
obligations under this Depositary Agreement upon the written direction of AEE
(or, in accordance with Section 3.16, the Owner Trusts or the Indenture
Trustees, as applicable), set forth in an Officer's Certificate of a Responsible
Officer of AEE (or, in accordance with Section 3.16, the Owner Trusts or the
Indenture Trustees, as applicable) to the effect that such direction is in
compliance in all respects with this Depositary Agreement and the other
Operative Documents. Each of the Accounts shall at all times be in the exclusive
possession of, and under the exclusive domain and control of, the Depositary
Agent.
Section 2.4 Termination. This Depositary Agreement shall remain in full
force and effect until the earlier of (i) the payment of all obligations owing
to each of the Indenture Trustees, each of the Pass Through Trustees, each of
the Owner Trusts, each of the Owner Participants, and the Working Capital
Provider and (ii) the termination of each of the Leases following the occurrence
of a Lease Event of Default. If this Depositary Agreement shall terminate as
provided in clause (ii) of the preceding sentence, all amounts on deposit in the
Accounts shall be applied by the Depositary Agent pursuant to an Officer's
Certificate of a Responsible Officer of each Indenture Trustee, first, to pay
accrued Operating and Maintenance Costs incurred to the date of termination to
non AEE Entities and, second, to pay any amounts due and owing to the Working
Capital Provider under the Working Capital Facility, and any funds remaining
thereafter shall be transferred to each Indenture Trustee pro rata to
termination value as set forth under each of the Leases for application in
accordance with the relevant Indenture. Each Indenture Trustee shall deliver to
the Depositary Agent notice of the discharge
8
or satisfaction of the Lien of the Indenture of such Indenture Trustee, and upon
receipt of such notice, references herein to such Indenture Trustee shall be
deemed to be references to the related Owner Trust. In the event that the
Working Capital Provider permanently terminates its commitments under the
Working Capital Facility and is taking affirmative steps to realize on its
collateral to satisfy AEE's obligations under the Working Capital Facility, the
Working Capital Provider's rights and AEE2's obligations (in both cases, to the
extent of amounts owed to the Working Capital Provider in respect of the Working
Capital Facility) hereunder shall terminate.
ARTICLE III
THE ACCOUNTS
Section 3.1 Revenue Account.
(a) Deposits to the Revenue Account.
(i) Deposits. AEE, AEE2 and each other AEE Subsidiary shall
deposit, or shall cause to be deposited the following amounts, into the
Revenue Account directly, or if received by AEE, AEE2 or any AEE
Subsidiary, as soon as practicable (but no more than three Business Days)
after receipt, in either case in accordance with this Section 3.1(a): (A)
all AEE Revenues (other than, with respect to an AEE Subsidiary, any
amounts distributed from the Operating Account to pay third party and labor
costs and other reimbursable costs and overhead under an Operation and
Maintenance Agreement, or those constituting accreted value under any
Payment Undertaking Agreement); (B) any proceeds of a drawing under the
Working Capital Facility; (C) any proceeds of Permitted Indebtedness (other
than payments made under letters of credit issued for the benefit of any
Person other than an AEE Entity); (D) all proceeds from the sale, lease or
other disposition of assets by AEE, AEE2 or any AEE Subsidiary, as
permitted by Section 6.3 of the each of the Participation Agreements; and
(E) all other income (howsoever earned), revenue (howsoever generated) and
proceeds of any nature whatsoever received by AEE, AEE2 or any AEE
Subsidiary (including, without limitation, the proceeds of any insurance
maintained pursuant to any Operative Document or otherwise) prior to, on or
after the Closing Date.
(ii) Instructions. AEE, AEE2 and each AEE Subsidiary hereby
agree, and AEE hereby agrees to cause each AEE Subsidiary, to irrevocably
instruct each party to any agreement pursuant to which payments may be made
to or received by AEE or AEE2 to make all such payments directly to the
Depositary Agent for deposit into the Revenue Account (and to specify in
writing, when making such payments, the source and nature of such payments)
in accordance with the terms of this Depositary Agreement. In the event
that AEE or AEE2 enters into a PPA, such instructions shall be made
pursuant to an Instruction Letter in the form of Exhibit A hereto. In the
event that AEE or AEE2 or any AEE Subsidiary enters into any other
agreement pursuant to which amounts set forth in Section 3.1(a)(i)(A)-(E)
will be received, such instructions, to the extent practicable, shall be
made pursuant to an
9
Instruction Letter in the form of Exhibit A hereto. If, notwithstanding the
foregoing, any amounts set forth in Section 3.1(a)(i)(A)-(E) are remitted
directly to AEE, AEE2 or any AEE Subsidiary, AEE, AEE2 and each AEE
Subsidiary shall, and AEE shall cause each AEE Subsidiary, to hold such
payments in trust for the Depositary Agent and shall, as promptly as
practicable (but no more than three Business Days) after receipt, remit
such payments to the Depositary Agent (together with an Officer's
Certificate of a Responsible Officer of AEE, AEE2 or such other AEE
Subsidiary, as the case may be, specifying the source and nature of such
payments) for deposit into the Revenue Account in accordance with the terms
of this Depositary Agreement, in the form received, with any necessary
endorsements.
(iii) Certain Transfers of Other Amounts upon Deposit. Upon
deposit into the Revenue Account of the proceeds of any payment in respect
of any insurance (other than liability or business interruption insurance)
or condemnation award (as identified in an Officer's Certificate of a
Responsible Officer of AEE), the Depositary Agent shall transfer such
payment to the Loss Proceeds Account.
(iv) Certain Transfers of Amounts with Respect to Permitted
Indebtedness. Upon deposit into the Revenue Account of any proceeds of
Permitted Indebtedness (as identified in an Officer's Certificate of a
Responsible Officer of AEE), the Depositary Agent shall (1) establish and
create a sub-account within the Revenue Account in accordance with Section
2.2 (and no separate request or consent of AEE or any other party hereto
shall be required in respect of such establishing), (2) transfer such
proceeds to such sub-account and (3) transfer such proceeds from such
sub-account from time to time in accordance with an Officers' Certificate
of a Responsible Officer of AEE (AEE agrees that each such Officer's
Certificate shall be in accordance with the Operative Documents and the
other conditions (if any) established in the agreements relating to such
Permitted Indebtedness) for application consistent with the purposes for
which such Permitted Indebtedness was incurred to the extent in accordance
with the Operative Documents.
(v) Identification of Amounts. In the event the Depositary Agent
receives monies without adequate identification or adequate instruction
with respect to the proper Account in which such monies are to be
deposited, the Depositary Agent shall deposit such monies into the Revenue
Account, and segregate such monies from all other amounts on deposit in the
Revenue Account and notify AEE of the receipt of such monies. Upon receipt
of an Officer's Certificate of a Responsible Officer of AEE containing
written identification and instruction from AEE, the Depositary Agent shall
(in accordance with this Depositary Agreement) transfer such monies from
the Revenue Account to the Account (other than the Distribution Account
unless such transfer is in accordance with Section 3.1(b)(ix)) in which
such monies were to have been deposited in accordance with this Depositary
Agreement as specified by AEE in such Officer's Certificate.
(b) Applications and Transfers. The Depositary Agent shall, on each
Funding Date or, with respect to the Operating Account or any sub-account
thereof and the Working
10
Capital Account, from time to time during the related Funding Period, apply or
cause the transfer of monies (x) to the extent then available in the Revenue
Account and not segregated for any specific purpose as provided in Sections 2.2
and 3.1(a) (except as otherwise set forth in this Depositary Agreement) in
accordance with an Officer's Certificate of a Responsible Officer of AEE in the
form of Exhibit B hereto or otherwise satisfactory to the Depositary Agent (with
respect to each Funding Date, a "Funding Date Certificate"), to be received by
the Depositary Agent at least four Business Days prior to the Funding Date, or
(y) with respect to the Operating Account and the Working Capital Account from
time to time during the related Funding Period in accordance with an Officer's
Certificate of a Responsible Officer of AEE, in each case setting forth in
addition to any items otherwise specifically required by this Depositary
Agreement, (1) the amounts to be applied or transferred pursuant to this Section
3.1(b) and any calculation required to determine such amounts, (2) the basis for
such application or transfer of funds, including a reference to the applicable
provisions of any Operative Document, (3) the Accounts or Persons referred to in
clauses (i) through (ix) (inclusive) below that are entitled to payment and to
whom amounts withdrawn are to be paid in the order of priority set forth below
and (4) a certification that such application or transfer (including after
giving effect to such application or transfer) is in accordance with, and will
not result in the breach of, the Operative Documents. Simultaneously with the
delivery of each Funding Date Certificate to the Depositary Agent, AEE shall
deliver a copy thereof to each Owner Participant and the Working Capital
Provider. To the extent that the Funding Date Certificate does not require any
monies to be applied on such Funding Date, such amounts will be retained in the
Account to which such monies were transferred pending application pursuant to an
Officer's Certificate of a Responsible Officer of AEE at such time as payment of
such amounts is due and payable to the Persons entitled thereto (and AEE shall
not apply such amounts or direct their application by the Depositary Agent for
any other purpose other than as provided herein). The order of priority of
application or transfer of monies from the Revenue Account on each Funding Date
(except as otherwise specified in Section 3.1(b)(ix)) or, in the case of
Sections 3.1(b)(i) and 3.1(b)(ii), during any Funding Period, shall be as
follows:
(i) First: To the Operating Account, from time to time, until the
amount on deposit therein equals the amount set forth in a Funding Date
Certificate in which AEE (A) certifies that such amount, when aggregated
with all other prior transfers pursuant to this Section 3.1(b)(i), (x) is
in compliance with Section 5.9 of each of the Participation Agreements with
respect to the calendar year in respect of which such Funding Date
Certificate is delivered and (y) is, unless accompanied by a certificate
from the Independent Engineer, pursuant to Section 5.9 of each of the
Participation Agreements, not more than actual fuel costs plus 125% of the
amount set forth in the Annual Operating Budget (other than actual fuel
costs) with respect to the semi-annual portion of the calendar year in
respect of which such Funding Date Certificate is delivered, (B) if the
amount available to be transferred from the Revenue Account is less than
the amount set forth in such Funding Date Certificate, includes
instructions in accordance with this Article III as to the source of
additional funding, if any, and (C) certifies that such amounts will be
expended only on Operating and Maintenance Costs;
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(ii) Second: On each Funding Date, or from time to time during
the related Funding Period, to the Working Capital Account, until the
amount on deposit therein equals the amount set forth in a Funding Date
Certificate in which AEE (A) certifies the amount payable in respect of the
principal amount due on drawings, if any, under the Working Capital
Facility and (B) includes instructions as to the transfer of such amount to
the Working Capital Provider;
(iii) Third: On each Funding Date, (A) to the Rent Payment
Account, until the amount on deposit therein equals the amount set forth in
a Funding Date Certificate as the amount of Basic Rent (other than
Deferrable Payments but only so long as Lessor Notes which are payable from
such Basic Rent shall remain outstanding) 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) less any Scheduled
Payments due on such Rent Payment Date under any Payment Undertaking
Agreement; provided, that notwithstanding any provision of this Depositary
Agreement to the contrary, with respect to each Funding Date, 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,
and each such amount shall be disbursed by the Depositary Agent in the same
manner as Basic Rent, and (B) to the Debt Repayment Account, until the
amount on deposit therein equals the amount set forth in a Funding Date
Certificate as the amount (other than as a result of optional prepayments)
due in respect of Permitted Indebtedness (other than Permitted Subordinated
Indebtedness and Indebtedness in respect of the Working Capital Facility)
on the immediately succeeding Rent Payment Date (or, if such be the case,
the Rent Payment Date occurring on such Funding Date); provided, however,
that if sufficient amounts are not available to fully fund the Rent Payment
Account and the Debt Repayment Account on such Funding Date, such Funding
Date Certificate shall provide that (x) the amount deposited in the Rent
Payment Account shall be an amount equal to the product of (i) the total
amount available to be deposited in both the Rent Payment Account and the
Debt Repayment Account on such Funding Date multiplied by (ii) a fraction
the numerator of which is the amount set forth in such Funding Date
Certificate with respect to clause (A) above, and the denominator of which
is the sum of (1) the amount set forth in such Funding Date Certificate
with respect to clause (A) above and (2) the amount set forth in such
Funding Date Certificate with respect to clause (B) above, and (y) the
amount deposited in the Debt Repayment Account shall be the amount
remaining after application of clause (x) above;
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(iv) Fourth: On each Funding Date, to the Rent Reserve Account,
until the amount on deposit therein (determined in accordance with Section
3.6(a)) equals the amount set forth in a Funding Date Certificate as the
Rent Reserve Account Required Balance (such Funding Date Certificate to
identify the respective portions thereof determined pursuant to clauses (a)
and (b) of the definition of Rent Reserve Account Required Balance);
(v) Fifth: On each Funding Date, to the Indemnity Account, until
the amount on deposit therein equals the amount set forth in a Funding Date
Certificate as the amount due, or estimated by AEE to be due, in respect of
AEE's aggregate indemnity obligations arising under the Operative
Documents;
(vi) Sixth: On each Funding Date, to the Deferrable Payments
Account, until the amount on deposit therein equals the aggregate amount
set forth in a Funding Date Certificate as the amount of Deferrable
Payments under all of the Leases (A) payable and remaining unpaid and (B)
scheduled to be due on the immediately succeeding Rent Payment Date (or, if
such be the case, the Rent Payment Date occurring on such Funding Date);
(vii) Seventh: On each Funding Date, to the Additional Liquidity
Account, until the amount on deposit therein equals the amount (determined
in accordance with Section 3.9) set forth in a Funding Date Certificate as
the Additional Liquidity Required Balance;
(viii) Eighth: On each Funding Date, to the Special Rent Reserve
Account, until the amount on deposit therein equals the amount (determined
in accordance with Section 3.10(a)) set forth in a Funding Date Certificate
as the Special Rent Reserve Account Required Balance; and
(ix) Ninth: On each Rent Payment Date (or, if not on such date,
within 10 Business Days thereafter), to the Distribution Account, the
amount set forth in a Funding Date Certificate in which a Responsible
Officer of AEE certifies that all conditions precedent set forth in Section
6.2(a) of the Participation Agreement to making a Distribution have been
satisfied. In the event that on any Rent Payment Date, a Responsible
Officer of AEE fails to certify that such conditions precedent have been
satisfied, the Depositary Agent shall provide prompt written notice thereof
to each Owner Participant and the Working Capital Provider.
In the event that after giving effect to the application or transfer of
monies from the Revenue Account on any Funding Date (or from time to time during
the related Funding Period), monies remain in the Revenue Account (due to
failure to satisfy the conditions precedent to making a Distribution or
otherwise), such monies shall continue to remain in the Revenue Account pending
application or transfer in accordance with this Section 3.1(b); provided,
however, that during any Special Rent Reserve Period, to the extent required by
Section 5.21 of each Participation Agreement, any monies that remain in the
Revenue Account shall be applied to purchase a Special Rent Reserve Account
Payment Undertaking Agreement in accordance
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with a certificate of a Responsible Officer of AEE regarding the amount of such
Payment Undertaking Agreement and the identity of the PUA Provider.
Section 3.2 Operating Account. The Operating Account shall be funded (i)
from the Revenue Account pursuant to Section 3.1(b)(i) and (ii) pursuant to
Section 3.2(c).
(a) Except as set forth in Section 3.2(b), all amounts on deposit in
the Operating Account from time to time shall be used solely for the payment of
Operating and Maintenance Costs. On each Funding Date upon receipt of the
Funding Date Certificate referred to in Section 3.1(b)(i), or from time to time
during the related Funding Period, upon receipt of an Officer's Certificate of a
Responsible Officer of AEE, the Depositary Agent shall transfer monies from the
Operating Account to AEE or to whomsoever AEE directs for application to the
payment of Operating and Maintenance Costs.
(b) On any Rent Payment Date, to the extent any amounts remain in the
Operating Account that were not applied towards Operating and Maintenance Costs
during the relevant Rent Payment Period ending on such Rent Payment Date, such
amounts shall be applied, pursuant to an Officer's Certificate of a Responsible
Officer of AEE, in accordance with the priorities set forth in Section
3.1(b)(ii)-(ix).
(c) If funds on deposit in the Operating Account shall be insufficient
to pay Operating and Maintenance Costs to the extent permitted by Section 5.9 of
each Participation Agreement, AEE shall direct the Depositary Agent, pursuant to
an Officer's Certificate of a Responsible Officer of AEE, to transfer monies to
the Operating Account to the extent of such deficiency (but subject to clause
(A) of Section 3.1(b)(i)) from the following sources to the extent available and
in the following order of priority: first, a drawing under the Working Capital
Facility; second, a withdrawal from the Working Capital Account; third, a
withdrawal of cash and Permitted Investments (other than any Payment Undertaking
Agreement) on deposit from the Special Rent Reserve Account; fourth, a
withdrawal of cash and Permitted Investments on deposit from the Additional
Liquidity Account; fifth, a drawing under the Additional Liquidity Account
Letter of Credit; sixth, a withdrawal from the Deferrable Payments Account;
seventh, a withdrawal from the Indemnity Account; and eighth, a withdrawal from
the Rent Payment Account and the Debt Repayment Account pro rata to the amounts
on deposit therein.
Section 3.3 Working Capital Account.
(a) Except as otherwise specified in Section 3.2(c), all amounts on
deposit in the Working Capital Account from time to time shall be used solely
for the repayment of the principal amount of borrowings under the Working
Capital Facility. On each Funding Date, or from time to time during the related
Funding Period, upon receipt of an Officer's Certificate of a Responsible
Officer of AEE, the Depositary Agent shall transfer from the Working Capital
Account to the Working Capital Provider (as identified in such Officer's
Certificate) the amount set forth in such Certificate as the amount payable in
respect of the principal amount of drawings on the Working Capital Facility. Any
income from the investment of monies on deposit in the Working Capital Account
shall be transferred to the Revenue Account in accordance with Section 3.13
hereof.
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(b) After effecting any transfers specified in Section 3.2(c), if
funds on deposit in the Working Capital Account shall be insufficient to pay the
principal amount of borrowings under the Working Capital Facility when due, AEE
shall direct the Depositary Agent, pursuant to an Officer's Certificate of a
Responsible Officer of AEE, to transfer monies to the Working Capital Account to
the extent of such deficiency from the following sources to the extent available
and in the following order of priority: first, a withdrawal of cash and
Permitted Investments (other than any Payment Undertaking Agreement) on deposit
in the Special Rent Reserve Account; second, a withdrawal of cash and Permitted
Investments on deposit in the Additional Liquidity Account; third, a drawing
under the Additional Liquidity Account Letter of Credit; fourth, a withdrawal
from the Deferrable Payments Account; fifth, a withdrawal from the Indemnity
Account; and sixth, a withdrawal from the Rent Payment Account and the Debt
Repayment Account pro rata to the amounts on deposit therein. Notwithstanding
anything herein to the contrary, each party hereto acknowledges that a
deficiency in the Working Capital Account does not preclude the transfer of
funds from the Rent Reserve Account or a demand under a Rent Reserve Account
Payment Undertaking Agreement as set forth in Section 3.6.
Section 3.4 Rent Payment Account.
The Rent Payment Account shall be funded (i) from the Revenue Account
pursuant to Section 3.1(b)(iii), (ii) from the Special Rent Reserve Account
pursuant to Section 3.10(b), (iii) from the Additional Liquidity Account
pursuant to Section 3.12(a), and (iv) from the Rent Reserve Account pursuant to
Section 3.6(b).
(a) Except as set forth in Section 3.4(b), all amounts on deposit in
the Rent Payment Account from time to time shall be used solely for the
repayment of Basic Rent (other than Deferrable Payments, but only so long as
Lessor Notes which are payable from such Basic Rent shall remain outstanding).
(b) After effecting any transfers specified, first, in Section 3.2(c)
and, second, in Section 3.3(b), on or prior to each Rent Payment Date, the
Depositary Agent shall withdraw from the Rent Payment Account the aggregate
amount set forth in the applicable Funding Date Certificate in respect of Basic
Rent (other than Deferrable Payments but only so long as Lessor Notes which are
payable from such Basic Rent shall remain outstanding) due on such Rent Payment
Date, and transfer to each Indenture Trustee the amount set forth in such
Funding Date Certificate opposite such Indenture Trustee's name.
(c) In the event that amounts deposited in the Rent Payment Account
pursuant to this Section 3.4, together with all Scheduled Payments under any
applicable Payment Undertaking Agreement, are insufficient to pay the aggregate
amount of Basic Rent (other than Deferrable Payments but only so long as Lessor
Notes which are payable from such Basic Rent shall remain outstanding) on such
Rent Payment Date, the Depositary Agent shall transfer to each Indenture Trustee
the amount specified in such Funding Date Certificate as the amount equal to the
product of (a) the amount on deposit in the Rent Payment Account multiplied by
(b) a fraction, the numerator of which is the amount of Basic Rent (other than
Deferrable Payments but only so long as Lessor Notes which are payable from such
Basic Rent shall remain
15
outstanding) due under the Lease to which such Indenture relates less any
Scheduled Payments due on such Rent Payment Date to such Indenture Trustee under
any applicable Payment Undertaking Agreement, and the denominator of which is
the aggregate amount of all Basic Rent (other than Deferrable Payments but only
so long as Lessor Notes which are payable from such Basic Rent shall remain
outstanding on such Funding Date) due under all Leases less all Scheduled
Payments due on such Rent Payment Date to the Indenture Trustees under any
applicable Payment Undertaking Agreement, such that no one Indenture Trustee
receives (together with such Scheduled Payments) a greater percentage of amounts
due under its Indenture than any other Indenture Trustee. Any income from the
investment of monies on deposit in the Rent Payment Account shall be transferred
to the Revenue Account in accordance with Section 3.13 hereof.
Section 3.5 Debt Repayment Account.
The Debt Repayment Account shall be funded (i) from the Revenue Account
pursuant to Section 3.1(b)(iii), (ii) from the Special Rent Reserve Account
pursuant to Section 3.10(b) (with respect to cash and Permitted Investments
(other than any Payment Undertaking Agreement) on deposit therein), (iii) from
the Additional Liquidity Account pursuant to Section 3.12(a), and (iv) from the
Rent Reserve Account pursuant to Section 3.6(b).
(a) Except as set forth in Section 3.5(b), all amounts on deposit in
the Debt Repayment Account from time to time shall be used solely for the
repayment of Permitted Indebtedness (other than Permitted Subordinated
Indebtedness and Indebtedness in respect of the Working Capital Facility).
(b) After effecting any transfers specified first, in Section 3.2(c)
and second, in Section 3.3(b), on each Rent Payment Date, the Depositary Agent
shall withdraw from the Debt Repayment Account the amount set forth in a Funding
Date Certificate payable in respect of Permitted Indebtedness (other than
Permitted Subordinated Indebtedness and Indebtedness in respect of the Working
Capital Facility) due on such Rent Payment Date and transfer such amount to the
provider of such Permitted Indebtedness. Any income from the investment of
monies on deposit in the Debt Repayment Account shall be transferred to the
Revenue Account in accordance with Section 3.13 hereof.
Section 3.6 Rent Reserve Account.
(a) Each Indenture Trustee confirms receipt on the Closing Date of the
executed, original Rent Reserve Account Payment Undertaking Agreement. Each
Indenture Trustee, upon obtaining Actual Knowledge of, or receipt of written
notice from an Owner Trust or AEE of, the occurrence of a Payment Event or a
Replacement Event with respect to any Rent Reserve Account Payment Undertaking
Agreement of which it is a beneficiary, shall (i) in the case of a Payment
Event, make a demand thereunder in an amount equal to (x) in the case of a
Payment Event caused by shortfall in the payment of Basic Rent (other than
Deferrable Payments but only so long as Lessor Notes which are payable from such
Basic Rent shall remain outstanding), the amount calculated in clause (b) of
this Section, (y) in the case of a Payment Event caused by a failure to maintain
or deliver adequate collateral under such Payment
16
Undertaking Agreement, the greater of the Market Termination Amount and the
aggregate Accreted Value, and (z) in the case of any other Payment Event, the
aggregate Accreted Value available for such Indenture Trustee as set forth in
the applicable schedules to such Payment Undertaking Agreement, and (ii) in the
case of a Replacement Event, make a demand thereunder for the full amount
available to it thereunder, retain such amount in a segregated non-interest
bearing account, and apply such amount either to the payment of Basic Rent
(other than Deferrable Payments but only so long as Lessor Notes which are
payable from such Basic Rent remain outstanding) on the immediately succeeding
Rent Payment Date in accordance with Section 3.1 of the Indenture to which such
Indenture Trustee is a party or, if the Indenture Trustee has received an
Officer's Certificate of a Responsible Officer of AEE to such effect, to the
purchase of a replacement Payment Undertaking Agreement in accordance with such
Officer's Certificate. When determining (I) if any amounts are required to be
deposited (or the amount so required to be deposited) in the Rent Reserve
Account from time to time or (II) whether the Rent Reserve Account has deposited
therein the Rent Reserve Account Required Balance, AEE shall aggregate amounts
on deposit in the Rent Reserve Account with the amount available to be withdrawn
under the Rent Reserve Account Payment Undertaking Agreement.
(b) In respect of any Rent Payment Date when there are insufficient
monies on deposit in the Rent Payment Account and the Debt Repayment Account to
pay amounts due therefrom on such Rent Payment Date, the Depositary Agent shall,
after effecting any transfers pursuant to, first, Section 3.10(b) and, second,
Section 3.12(a) but otherwise in accordance with a Funding Date Certificate of a
Responsible Officer of AEE, first, transfer cash and Permitted Investments
(other than any Payment Undertaking Agreement) on deposit in the Rent Reserve
Account to the Rent Payment Account and the Debt Repayment Account in the manner
set forth in the last proviso of Section 3.1(b)(iii) but taking into account in
such calculation the amount in respect of Basic Rent (other than Deferrable
Payments but only so long as Lessor Notes which are payable from such Basic Rent
remain outstanding) to be demanded under a Rent Reserve Account Payment
Undertaking Agreement pursuant to the immediately succeeding clause second, and,
second, instruct each Indenture Trustee that is a beneficiary of a Rent Reserve
Account Payment Undertaking Agreement to make a demand thereunder in an amount
equal to the lesser of (i) the amount available to be drawn by it under such
Rent Reserve Account Payment Undertaking Agreement and (ii) the amount of the
deficiency in the Rent Payment Account, and apply the proceeds thereof in
accordance with Section 3.1 of each Indenture so long as each such Indenture
shall remain in effect, and thereafter such proceeds shall be paid to the
applicable Owner Trust. Any income from the investment of monies on deposit in
the Rent Reserve Account (other than pursuant to a Payment Undertaking
Agreement) shall be transferred to the Revenue Account in accordance with
Section 3.13 hereof.
(c) Upon deposit into the Rent Reserve Account of monies in respect of
the portion of the Rent Reserve Account Required Balance relating to clause (a)
of the definition thereof, AEE shall instruct the Depositary Agent, in
accordance with the applicable Funding Date Certificate, to transfer such monies
to the provider of a Rent Reserve Account Payment Undertaking Agreement to
replenish amounts withdrawn therefrom in accordance with each Participation
Agreement.
17
(d) If at any time the sum of the amounts on deposit in the Rent
Reserve Account and all amounts then available under the Rent Reserve Account
Payment Undertaking Agreement exceeds the Rent Reserve Account Required Balance,
AEE may deliver to the Depositary Agent an Officer's Certificate of AEE setting
forth the amount of such excess and instructing the Depositary Agent to withdraw
an amount equal to such excess from the Rent Reserve Account and transfer such
amount to the Revenue Account.
Section 3.7 Indemnity Account. The Indemnity Account shall be funded (i)
from the Revenue Account pursuant to Section 3.1(b)(v), (ii) from the Special
Rent Reserve Account pursuant to Section 3.10(c) and (iii) from the Additional
Liquidity Account pursuant to Section 3.12(c). After effecting any transfers
specified, first, in Section 3.2(c) and, second, in Section 3.3(b) upon receipt
of a Funding Date Certificate approved by the Owner Trusts, the Depositary Agent
shall withdraw from the Indemnity Account the amount set forth in such Funding
Date Certificate in respect of AEE's aggregate indemnity obligations arising
under the Operative Documents and transfer such amount to the indemnified
parties set forth in such Funding Date Certificate; provided, however, that if
funds in the Indemnity Account are insufficient to make the transfers specified
in this Section 3.7, distribution of funds shall be made ratably among claims
specified in such Funding Date Certificate. Any income from the investment of
monies on deposit in the Indemnity Account shall be transferred to the Revenue
Account in accordance with Section 3.13 hereof.
Section 3.8 Deferrable Payments Account.
The Deferrable Payments Account shall be funded (i) from the Revenue
Account pursuant to Section 3.1(b)(vi), (ii) from Special Rent Reserve Account
pursuant to Section 3.10(d) and (iii) from the Additional Liquidity Account
pursuant to Section 3.12(b).
(a) After effecting any transfers specified first, in Section 3.2(c)
and, second, in Section 3.3(b) on or prior to each Rent Payment Date, the
Depositary Agent shall withdraw from the Deferrable Payments Account the
aggregate amount set forth in the applicable Funding Date Certificate in respect
of Deferrable Payments due on such Rent Payment Date, and transfer to each
Indenture Trustee, the amount set forth in such Funding Date Certificate
opposite such Indenture Trustee's name.
(b) In the event that amounts deposited in the Deferrable Payments
Account are insufficient to pay the aggregate amount of Deferrable Payments on
such Rent Payment Date, the Depositary Agent shall transfer to each Indenture
Trustee, an amount equal to the product of (a) the amount on deposit in the
Deferrable Payments Account multiplied by (b) a fraction, the numerator of which
is the amount of Deferrable Payments due under the Lease to which such Indenture
relates, and the denominator of which is the aggregate amount of Deferrable
Payments due under all Leases, such that no one Indenture Trustee receives a
greater percentage of amounts due under its Indenture than any other Indenture
Trustee. Any income from the investment of monies on deposit in the Deferrable
Payments Account shall be transferred to the Revenue Account in accordance with
Section 3.13 hereof.
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Section 3.9 Additional Liquidity Account. The Depositary Agent confirms
receipt of the Additional Liquidity Letter of Credit. Upon obtaining Actual
Knowledge of, or upon receipt of written notice from an Owner Trust or AEE of,
the occurrence of a Drawing Event or a Replacement Event with respect to the
Additional Liquidity Letter of Credit, the Depositary Agent shall make a demand
for payment thereunder (A) in the case of a Drawing Event, in an amount equal to
the lesser of (x) the full amount available under the Additional Liquidity
Letter of Credit and (y) the deficiency of the amounts required to be paid from
the Accounts for which the Additional Liquidity Letter of Credit is available to
support and (B) in the case of a Replacement Event, the full amount available
thereunder, and deposit the proceeds thereof in the Additional Liquidity
Account. When determining (i) if any amounts are required to be deposited (or
the amount so required to be deposited) in the Additional Liquidity Account from
time to time or (ii) whether the Additional Liquidity Account has deposited
therein the Additional Liquidity Required Balance, amounts on deposit in the
Additional Liquidity Account shall be aggregated with the amount available to be
drawn under an Additional Liquidity Letter of Credit. At any time that the
Additional Liquidity Required Balance is reduced from that in effect on the
Closing Date in accordance with the definition of such term, AEE may issue a
notice of reduction to the LC Provider reducing the amount available to be drawn
thereunder to be equal to the then applicable Additional Liquidity Required
Balance only upon the express written confirmation of each Owner Trust. Any
income from the investment of monies on deposit in the Additional Liquidity
Account shall be transferred to the Revenue Account in accordance with Section
3.13 hereof.
Section 3.10 Special Rent Reserve Account.
(a) The Special Rent Reserve Account shall be funded pursuant to
Section 3.1(b)(viii) during a Special Rent Reserve Period in accordance with
each Participation Agreement. When determining (i) if any amounts are required
to be deposited (or the amount so required to be deposited) in the Special Rent
Reserve Account from time to time or (ii) whether the Special Rent Reserve
Account has deposited therein the Special Rent Reserve Account Required Balance,
amounts on deposit in the Special Rent Reserve Account shall be aggregated with
the amounts available to be withdrawn under any Special Rent Reserve Account
Payment Undertaking Agreement.
(b) In respect of any Rent Payment Date when there are insufficient
monies on deposit in the Rent Payment Account and the Debt Repayment Account to
pay amounts due therefrom on such Rent Payment Date, the Depositary Agent shall,
after effecting any transfers pursuant to Section 3.2(c) and 3.3(b) and
otherwise in accordance with a Funding Date Certificate of a Responsible Officer
of AEE, make up such deficiency by, first, transferring cash and Permitted
Investments (other than any Payment Undertaking Agreement) on deposit in the
Special Rent Reserve Account to the Rent Payment Account and the Debt Repayment
Account in the manner set forth in the last proviso of Section 3.1(b)(iii) but
taking into account in such calculation the amount in respect of Basic Rent
(other than Deferrable Payments but only so long as Lessor Notes which are
payable from such Basic Rent remain outstanding) to be demanded under a Special
Rent Reserve Account Payment Undertaking Agreement pursuant to the immediately
succeeding clause second, and, second, instructing each Indenture Trustee that
is a beneficiary of a Special Rent Reserve Account Payment Undertaking Agreement
to make a
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demand thereunder in an amount equal to the lesser of (i) the amount available
to be drawn under such Special Rent Reserve Account Payment Undertaking
Agreement and (ii) the amount of the deficiency in the Rent Payment Account, and
apply the proceeds thereof in accordance with Section 3.1 of the Indenture to
which such Indenture Trustee is a party.
(c) Subject to Section 3.10(b), in respect of any Rent Payment Date
when there are insufficient monies on deposit in the Indemnity Account to pay
amounts due therefrom on such Rent Payment Date, the Depositary Agent shall, in
accordance with a Funding Date Certificate of a Responsible Officer of AEE, make
up such deficiency by, first, transferring cash and Permitted Investments (other
than any Payment Undertaking Agreement) on deposit in the Special Rent Reserve
Account to the Indemnity Account, and, second, instructing each Indenture
Trustee that is a beneficiary of a Special Rent Reserve Account Payment
Undertaking Agreement to make a demand thereunder in an amount equal to the
lesser of (i) the amount available to be drawn under such Special Rent Reserve
Account Payment Undertaking Agreement and (ii) the amount of the deficiency in
the Indemnity Account, and apply the proceeds thereof (x) in accordance with
Section 3.1 of the Indenture to which such Indenture Trustee is a party (for so
long as the Lien of such Indenture has not been terminated or discharged) or (y)
to the payment of the indemnified claim.
(d) Subject to Section 3.10(c), in respect of any Rent Payment Date
when there are insufficient monies on deposit in the Deferrable Payments Account
to pay amounts payable but unpaid due therefrom on such Rent Payment Date, the
Depositary Agent shall, in accordance with a Funding Date Certificate of a
Responsible Officer of AEE, make up such deficiency by, first, transferring cash
and Permitted Investments (other than any Payment Undertaking Agreement) on
deposit in the Special Rent Reserve Account to the Deferrable Payments Account,
and, second, instructing each Indenture Trustee that is a beneficiary of a
Special Rent Reserve Account Payment Undertaking Agreement to make a demand
thereunder in an amount equal to the lesser of (i) the amount available to be
drawn under such Special Rent Reserve Account Payment Undertaking Agreement and
(ii) the amount of the deficiency in the Deferrable Payments Account, and apply
the proceeds thereof in accordance with Section 3.1 of the Indenture to which
such Indenture Trustee is a party.
(e) Upon (x) obtaining Actual Knowledge or receipt of written notice
from the Owner Trusts or AEE of the occurrence of a Replacement Event under any
Special Rent Reserve Account Payment Undertaking Agreement or (y) receipt of an
Officer's Certificate of a Responsible Officer of AEE that a Special Rent
Reserve Period no longer exists, each Indenture Trustee that is a beneficiary of
a Special Rent Reserve Account Payment Undertaking Agreement shall (i) make a
demand thereunder for the full amount available thereunder, (ii) retain such
amount in a segregated non-interest bearing account and (iii) apply such amount
either to the payment of Basic Rent on the immediately succeeding Rent Payment
Date in accordance with Section 3.1 of the Indenture to which such Indenture
Trustee is a party or, if the Indenture Trustee has received an Officer's
Certificate of a Responsible Officer of AEE to such effect, to the purchase of a
replacement Payment Undertaking Agreement in accordance with such Officer's
Certificate; provided, however, if a Replacement Event has occurred
contemporaneously with respect to a Rent Reserve Account Payment Undertaking
Agreement, such amount shall be applied by each Indenture Trustee to the payment
of Basic Rent on the
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second succeeding Rent Payment Date. Any income from the investment of monies on
deposit in the Special Rent Reserve Account (except with respect to a Payment
Undertaking Agreement) shall be transferred to the Revenue Account in accordance
with Section 3.13 hereof.
Section 3.11 Loss Proceeds Account. Amounts on deposit in the Loss Proceeds
Account shall be transferred by the Depositary Agent from time to time in
accordance with a Funding Date Certificate setting forth the amounts to be
transferred, the Persons to receive such transferred amounts and that each such
transfer is authorized and otherwise in accordance with the applicable Leases
and Participation Agreements. Any income from the investment of monies on
deposit in the Loss Proceeds Account shall be transferred to the Revenue Account
in accordance with Section 3.13 hereof.
Section 3.12 Drawing Events.
(a) Subject, first, to Section 3.2(c), second, to Section 3.3(b), and
third, to Section 3.10(b), if on any Funding Date the aggregate amount of monies
available to be withdrawn from the Rent Payment Account and the Debt Repayment
Account pursuant to Section 3.4(b) and Section 3.5(b) is not sufficient to fund
in full the amounts due to be paid therefrom, the Depositary Agent shall,
pursuant to the applicable Funding Date Certificate, forthwith make up such
deficiency by withdrawing monies for such purpose in the following order from:
(i) a transfer of cash and Permitted Investments on deposit in
the Additional Liquidity Account, to the extent funds are on deposit
therein; and
(ii) a drawing under the Additional Liquidity Account Letter of
Credit, to the extent funds are available thereunder;
provided, however, in the event that amounts available pursuant to clauses (i)
and (ii) above are insufficient to pay the aggregate amount of Basic Rent (other
than Deferrable Payments but only so long as Lessor Notes which are payable from
such Basic Rent shall remain outstanding) and Permitted Indebtedness (other than
Permitted Subordinated Indebtedness and Indebtedness in respect of the Working
Capital Facility) due on such Rent Payment Date, each party hereto agrees that
such deficiency shall be pro rated between the Rent Payment Account and the Debt
Repayment Account in the manner set forth in the last proviso of Section
3.1(b)(iii) and further pro rated within the Rent Payment Account in the manner
set forth in Section 3.4(c).
(b) Subject to Section 3.12(a), if on any Rent Payment Date the
aggregate amount of monies available to be withdrawn from the Deferrable
Payments Account is not sufficient to pay in full AEE's Deferrable Payment
obligations due and payable on such date, the Depositary Agent shall, pursuant
to the applicable Funding Date Certificate, forthwith make up such deficiency by
withdrawing monies for such purpose in the following order from:
(i) a transfer of cash and Permitted Investments on deposit in
the Additional Liquidity Account, to the extent funds are on deposit
therein; and
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(ii) a drawing under the Additional Liquidity Account Letter of
Credit, to the extent funds are available thereunder.
(c) Subject to Section 3.12(b), if on any Rent Payment Date the
aggregate amount of monies available to be withdrawn from the Indemnity Account
is not sufficient to pay in full AEE's aggregate indemnity obligations due and
payable on such date, the Depositary Agent shall, pursuant to the applicable
Funding Date Certificate, forthwith make up such deficiency by withdrawing
monies for such purpose in the following order from:
(i) a transfer of cash and Permitted Investments on deposit in
the Additional Liquidity Account, to the extent funds are on deposit
therein; and
(ii) a drawing under the Additional Liquidity Account Letter of
Credit, to the extent funds are available thereunder.
Section 3.13 Permitted Investments. Subject to Section 3.15 hereof, monies
held in any Account created by and held under this Depositary Agreement may be
invested and reinvested only in Permitted Investments at the written direction
(which may be in the form of a standing instruction) of a Responsible Officer of
AEE; provided, however, that at any time when a Responsible Officer of AEE has
not timely furnished such a written direction or, after a request by the
Depositary Agent, has not so confirmed a standing instruction to the Depositary
Agent, the Depositary Agent shall invest such monies only in Permitted
Investments of a maturity of 30 days or less. Any written direction of a
Responsible Officer of AEE with respect to the investment or reinvestment of
monies held in any Account shall direct investment or reinvestment only in
Permitted Investments that shall mature in such amounts and have maturity dates
or be subject to redemption at the option of the holder thereof on or prior to
maturity as needed for the purposes of such Accounts. The Depositary Agent shall
have no duty to determine whether any investment or reinvestment shall satisfy
the criteria set forth in the definition of "Permitted Investment" in the
Participation Agreements or the other criteria set forth in this Section 3.13
and the Depositary Agent shall have no liability in the event that the value of
any Permitted Investment decreases. The Depositary Agent shall at any time and
from time to time liquidate any or all of such investments prior to the maturity
as needed in order to effect the transfers and withdrawals contemplated by this
Depositary Agreement in accordance with an Officer's Certificate of a
Responsible Officer of AEE; provided that, in the absence of timely receipt of
such an Officer's Certificate, the Depositary Agent shall liquidate all such
investments (using reasonable efforts to minimize the costs of such liquidation)
as it deems necessary in order to effect the transfers and withdrawals
contemplated by this Depositary Agreement. In the event any such investments are
redeemed prior to the maturity thereof, the Depositary Agent shall not be liable
for any loss or penalties relating thereto. Any income or gain realized from
such investments shall be deposited into the Revenue Account. For purposes of
any income tax payable on account of any income or gain on an investment, such
income or gain shall be for the account of AEE. Any loss realized from such
investments shall be credited to the Account (or sub-account) from which such
monies came.
Section 3.14 Account Balance Statements; Payment Undertaking Agreements.
The Depositary Agent shall maintain records of and account balance statements in
respect of, each of
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the Accounts and amounts segregated in any of the Accounts. Such Account records
and balance statements shall also include deposits, withdrawals and transfers
from and to any Account and segregated amounts. No later than the tenth Business
Day prior to each Rent Payment Date, the Depositary Agent shall provide to each
Owner Participant, each Indenture Trustee, the Working Capital Provider and AEE
a statement of the amounts available in each Account and sub-account maintained
under this Depositary Agreement. In addition, upon the request of any such party
(which request may be a continuing request, but which absent the occurrence of
an Indenture Event of Default, may not be more frequent than monthly), the
Depositary Agent shall provide information regarding (a) balances in respect of
each of the Accounts and amounts segregated in any of the Accounts as of each
Funding Date and (b) such other information as the Owner Trust may reasonably
request. In addition, the Depositary Agent shall make its books and records
pertaining to the Accounts and this Depositary Agreement available upon request
of any party hereto for inspection and audit during normal business hours by a
nationally recognized independent auditing firm, and shall supply such
additional information as any such party may reasonably request from time to
time. On or prior to each Rent Payment Date, if there has been a drawing by an
Indenture Trustee under a Payment Undertaking Agreement since the preceding Rent
Payment Date, each Indenture Trustee shall notify the Depositary Agent, each
Owner Trustee and AEE of the amount available to be withdrawn (but not including
Scheduled Payments under such Payment Undertaking Agreement) on such Rent
Payment Date under any Payment Undertaking Agreement under which such Indenture
Trustee is a beneficiary.
Section 3.15 Instructions to the Depositary Agent. Each direction to the
Depositary Agent under this Depositary Agreement to transfer or withdraw amounts
in an Account shall either (a) be in the form of the Funding Date Certificate or
(b) be in the form of an Officer's Certificate of a Responsible Officer of AEE,
an Owner Trust or an Indenture Trustee that shall otherwise sufficiently
identify (i) the Account from which such amounts are to be withdrawn or
transferred, (ii) the Account in which such amount is to be deposited or Person
to whom such amount is to be transferred and (iii) the applicable provision of
this Depositary Agreement and, if applicable, such other Operative Document
which authorizes such transfer or withdrawal. In the event that the Depositary
Agent believes that it lacks sufficient information to make a transfer or
withdrawal or to determine whether it has authority under this Depositary
Agreement to make such transfer or withdrawal, it may refrain from making such
transfer or withdrawal until it has received the information required to make
such transfer or confirmed its authority to its satisfaction.
Section 3.16 Lease Event of Default and Indenture Event of Default.
(a) Upon receipt by the Depositary Agent of notice from each Owner
Trust of the occurrence and continuance of a Lease Bankruptcy Default or Lease
Event of Default, and in the absence of notice from each Indenture Trustee of
the occurrence and continuance of an Indenture Event of Default, Responsible
Officers of the Owner Trusts and not AEE shall have the right to deliver to the
Depositary Agent (i) Funding Date Certificates otherwise in accordance with this
Depositary Agreement and (ii) instructions pursuant to Section 3.13 with respect
to Permitted Investments, provided, as to clauses (i) and (ii) that each Owner
Trust is a signatory thereto.
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(b) Upon receipt by the Depositary Agent of notice from each Indenture
Trustee of the occurrence and continuance of an Indenture Event of Default,
Responsible Officers of the Indenture Trustees, to the exclusion of both AEE and
the Owner Trusts, shall have the right to deliver to the Depositary Agent (i)
Funding Date Certificates otherwise in accordance with this Depositary Agreement
and (ii) instructions pursuant to Section 3.13 with respect to Permitted
Investments; provided, as to clauses (i) and (ii) that each Indenture Trustee is
a signatory thereto.
(c) In the event that pursuant to clause (a) or (b) of this Section
3.16, AEE is precluded from delivering Funding Date Certificates, Responsible
Officers of the Owner Trusts or the Indenture Trustees, as applicable, may
instruct the Depositary Agent to distribute any amount remaining on deposit in
the Revenue Account on each Rent Payment Date in accordance with Sections
3.1(b)(i) - (vi) and withdrawals from the Operating Account shall require the
confirmation of the Independent Engineer.
ARTICLE IV
THE DEPOSITARY AGENT
The provisions of this Article IV are solely for the benefit of the parties
hereto, and except to the extent expressly provided in this Article IV, neither
AEE nor AEE2 shall have any rights under this Article IV against the Depositary
Agent or any other party hereto; provided that the Depositary Agent shall be
liable to AEE for its gross negligence or willful misconduct.
Section 4.1 Appointment of the Depositary Agent; Powers and Immunities. The
Transaction Parties hereby irrevocably appoint and authorize the Depositary
Agent to act as their agent hereunder, with such powers as are expressly
delegated to the Depositary Agent by the terms of this Depositary Agreement,
together with such other powers as are reasonably incidental thereto. The
Depositary Agent shall not have any duties or responsibilities to any Person
except those expressly set forth in this Depositary Agreement (and no implied
covenants, functions or responsibilities shall be read into this Depositary
Agreement or otherwise exist with respect to the Depositary Agent).
Notwithstanding anything to the contrary contained herein, the Depositary Agent
shall not be required to take any action which is contrary to this Depositary
Agreement or Applicable Law. Neither the Depositary Agent nor any of its
affiliates shall be responsible to any other Transaction Party for (i) any
recitals, statements, representations or warranties made by AEE contained in
this Depositary Agreement or any other Operative Document or in any certificate
or other document referred to or provided for in, or received by any other
Transaction Party under, this Depositary Agreement or any other Operative
Document, (ii) for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Depositary Agreement or any other
Operative Document or any other document referred to or provided for herein or
therein or (iii) for any failure by AEE or AEE2 to perform its obligations
hereunder or thereunder. The Depositary Agent shall not be required to ascertain
or inquire as to the performance by AEE of any of its obligations under the
other Operative Documents, this Depositary Agreement nor any other document or
agreement contemplated hereby or thereby. The Depositary Agent shall not be (a)
required to initiate or conduct any litigation or collection proceeding
hereunder or (b) responsible for any action taken or omitted to be taken by it
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hereunder (except for its own gross negligence or willful misconduct). Whenever
in the administration of this Depositary Agreement, the Depositary Agent shall
deem it necessary or desirable that a factual matter be proved or established in
connection with the Depositary Agent taking, suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof is
herein specifically prescribed) may be deemed to be conclusively proved or
established by an Officer's Certificate of each Owner Trust and, so long as the
Lien of the Indenture has not been terminated or discharged, each Indenture
Trustee. The Depositary Agent shall have the right at any time to seek
instructions concerning the administration of this Depositary Agreement from
legal counsel or any court of competent jurisdiction and shall not be liable to
any person for any action taken, suffered or omitted in accordance with the
advice or opinion of such counsel or any order, finding or determination of such
court. The Depositary Agent shall not be deemed to have actual, constructive,
direct or indirect knowledge or notice of the occurrence of an Event of Default
or a Lease Event of Default unless and until a Responsible Officer of the
Depositary Agent has received an Officer's Certificate of AEE or a written
notice or certificate from a Transaction Party stating that an Event of Default
or a Lease Event of Default has occurred.
Each of the Transaction Parties expressly acknowledge that neither the
Depositary Agent nor any of its officers, directors, employees, agents or
attorneys-in-fact has made any representations or warranties to it and that no
act by the Depositary Agent hereinafter taken, including, without limitation,
any review of the Facility, the Related Facility or the Additional Facilities or
of the affairs of AEE or AEE2, shall be deemed to constitute any representation
or warranty by the Depositary Agent to any other Transaction Party. Each
Transaction Party (other than any Transaction Party that has no obligation to
make appraisals, investigations or credit analyses under the financing documents
to which it is a party, including, without limitation, the Depositary Agent)
represents to the Depositary Agent that it has, independently and without
reliance upon the Depositary Agent or any other Transaction Party, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of each Assigned Asset and
each AEE Entity. Each Transaction Party (other than a Transaction Party that has
no obligation to make appraisals, investigations or credit analyses under the
financing documents to which it is a party, including, without limitation, the
Depositary Agent) also represents that it will, independently and without
reliance upon the Depositary Agent or any other Transaction Party, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Depositary Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of each
Assigned Asset and each AEE Entity. Except for notices, reports and other
documents expressly required to be furnished to the other Transaction Parties by
the Depositary Agent hereunder, the Depositary Agent shall not have any duty or
responsibility to provide any other Transaction Party with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of any Assigned Asset or any AEE Entity which may
come into the possession of the Depositary Agent or any of its officers,
directors, employees, agents or attorneys-in-fact.
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Section 4.2 Reliance by the Depositary Agent. The Depositary Agent shall be
entitled to rely upon any Officer's Certificate of any Transaction Party, any
Independent Engineer's certificate or any other certificate, notice or other
document (including any cable, telegram, telecopy, e-mail or other electronic
communication (other than a Funding Date Certificate which shall be manually
signed)) believed by it to be genuine and to have been signed or sent by or on
behalf of the proper Person or Persons, and upon advice of legal counsel,
independent accountants and other experts selected by the Depositary Agent and
shall have no liability for its actions taken thereupon, unless due to the
Depositary Agent's willful misconduct or gross negligence. The Depositary Agent
shall be entitled to rely and act upon any direction, instruction, Officer's
Certificate or other document delivered to it pursuant to this Depositary
Agreement to the extent that such document complies as to form with the
requirements of this Depositary Agreement, and shall not be required to examine,
ascertain or make any judgment with respect to the facts underlying such
document or to make any judgment or determination as to compliance with the
terms of any Operative Document. Without limiting the foregoing, the Depositary
Agent shall be required to make payments to the Transaction Parties or other
Persons only as set forth herein. The Depositary Agent shall be fully justified
in failing or refusing to take any action under this Depositary Agreement or the
Participation Agreement (i) if such action would, in the reasonable opinion of
the Depositary Agent, be contrary to Applicable Law or the terms of this
Depositary Agreement or the Participation Agreement, (ii) if such action is not
specifically provided for in this Depositary Agreement or the Participation
Agreement or (iii) if, in connection with the taking of any such action that
would constitute an exercise of remedies under this Depositary Agreement or the
Participation Agreement, it shall not first be indemnified to its satisfaction
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. In the event that the
Depositary Agent is required to perform any action on a particular date only
following the delivery of an Officer's Certificate or other document, the
Depositary Agent shall be fully justified in failing to perform such action if
it has not first received such Officer's Certificate or other document and shall
be fully justified in continuing to fail to perform such action until such time
as it has received such Officer's Certificate or other document.
Section 4.3 Court Orders. The Depositary Agent is hereby authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency affecting any money,
documents or things held by the Depositary Agent. The Depositary Agent shall not
be liable to any of the parties hereto or any other Transaction Party, their
successors, heirs or personal representatives by reason of the Depositary
Agent's compliance with such writs, orders, judgments or decrees,
notwithstanding such writ, order, judgment or decree is later reversed,
modified, set aside or vacated.
Section 4.4 Resignation or Removal. Subject to the appointment and
acceptance of a successor Depositary Agent as provided below, the Depositary
Agent may resign at any time by giving 30 days' prior written notice thereof to
AEE, and the Depositary Agent may be removed at any time with cause by AEE. In
the event that the Depositary Agent shall decline to take any action without
first receiving adequate indemnity and, having received adequate
indemnification, shall continue to decline to take such action, AEE shall be
deemed to have sufficient cause to remove the Depositary Agent. Upon any such
resignation or removal, AEE shall have the right to appoint a successor
Depositary Agent which shall be a bank or trust
26
company that (i) has an office in The City of New York, New York, (ii) has
capital, surplus and undivided profits of at least $500,000,000, (iii) is
experienced in administering sophisticated financing transactions, (iv) is
experienced in non-recourse lending on a project finance basis and (v) is
reasonably acceptable to the Lessor. If no successor Depositary Agent shall have
been appointed by AEE and shall have accepted such appointment within 30 days
after the retiring Depositary Agent's giving of notice of resignation or the
removal of the retiring Depositary Agent, then the retiring Depositary Agent may
appoint a successor Depositary Agent, which shall be a single bank or trust
company that (i) has an office in The City of New York, New York, (ii) has
capital, surplus and undivided profits of at least $500,000,000, (iii) is
experienced in administering sophisticated financing transactions, (iv) is
experienced in non-recourse lending on a project finance basis and (v) is
reasonably acceptable to AEE (and such bank or trust company shall be
irrevocably deemed acceptable to AEE if AEE shall not set forth its objections
to such bank or trust company in a written notice delivered to the Depositary
Agent not more than ten Business Days after the Depositary Agent shall have
notified AEE that it intends to appoint such entity as successor Depositary
Agent). Upon the acceptance of any appointment as Depositary Agent hereunder by
the successor Depositary Agent, (a) such successor Depositary Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Depositary Agent, and the retiring Depositary Agent
shall be discharged from its respective duties and obligations hereunder, and
(b) the retiring Depositary Agent shall promptly transfer all Accounts within
its possession or control to the possession or control of the successor
Depositary Agent, and the retiring Depositary Agent shall execute and deliver
such notices, instructions and assignments as may be necessary or desirable to
transfer the rights of the retiring Depositary Agent with respect to the
Accounts to the successor Depositary Agent. After the retiring Depositary
Agent's resignation or removal hereunder as Depositary Agent, the provisions of
this Article IV and of Article V shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while acting as
Depositary Agent. Further, a corporation into which the Depositary Agent is
merged or converted or with which it is consolidated or which results from a
merger, conversion or consolidation to which it is a party shall, to the extent
permitted by Applicable Law, be the successor Depositary Agent under this
Depositary Agreement without further formality and shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
Depositary Agent with which such corporation was merged, converted or
consolidated. The Depositary Agent concerned shall forthwith notify such event
to AEE.
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
Section 5.1 Expenses. AEE agrees to pay or reimburse all reasonable
out-of-pocket expenses of the Depositary Agent (including, without limitation,
the reasonable fees and disbursements of outside counsel engaged by the
Depositary Agent) in respect of, or incidental to, the administration or
enforcement of any of the provisions of this Depositary Agreement or in
connection with any actual or proposed amendment, waiver or consent relating to
this Depositary Agreement.
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Section 5.2 Indemnification. AEE agrees to indemnify the Depositary Agent
in its capacity as such, and, in its capacity as such, its officers, directors,
shareholders, controlling persons, employees, agents and servants, in accordance
with and in the manner contemplated by Section 10 of the Participation
Agreement.
Section 5.3 Fees. On the Closing Date, and on each anniversary of the
Closing Date to and including the termination of this Depositary Agreement
pursuant to Section 2.4, AEE shall pay the Depositary Agent an annual fee in an
amount mutually agreed on by AEE and the Depositary Agent in writing on or prior
to the date of appointment of the Depositary Agent.
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation of Liability. The rights and obligations of the
parties hereto under this Depositary Agreement are limited as provided in
Section 13 of each Participation Agreement, which is hereby incorporated herein
by reference, mutatis mutandis.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments; Etc. With respect to any Funding Date, the Working
Capital Provider may waive (in its absolute and sole discretion) its priority in
Section 3.1(b)(ii) by delivering written notice thereof to the Depositary Agent
four Business Days prior to such Funding Date. Any such waiver shall be
effective only with respect to the Funding Date so specified. No other amendment
or waiver of, or consent with respect to, any provision of this Depositary
Agreement (including, without limitation, any defined term utilized or
incorporated by reference herein) shall in any event be effective unless the
same shall be in writing and signed by each party hereto. Any such amendment,
waiver or consent shall be effective only in the specific instance and for the
specified purpose for which it is given.
Section 7.2 Addresses for Notices. All notices, requests and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Depositary Agreement) shall
be given or made in writing (including, without limitation, by telecopy),
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in this Depositary Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 7.3 Integration, Etc. This Depositary Agreement constitutes the
entire agreement and understanding among the parties hereto and supersede any
and all prior agreements and understandings, written or oral, relating to the
subject matter hereof. This
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Depositary Agreement shall become effective at such time as the Depositary Agent
shall have received counterparts hereof signed by all of the intended parties
hereto.
Section 7.4 Headings; Table of Contents; Section References. Headings used
in this Depositary Agreement, and the table of contents included in this
Depositary Agreement, are for convenience of reference only and do not
constitute part of this Depositary Agreement for any purpose. Unless otherwise
specified in this Depositary Agreement, section references shall refer to
sections of this Depositary Agreement.
Section 7.5 No Third Party Beneficiaries. The agreements of the parties
hereto are solely for the benefit of the parties hereto and their respective
successors and assigns and no Person (other than the parties hereto) shall have
any rights hereunder.
Section 7.6 No Waiver. No failure on the part of the parties hereto or any
of their nominees or representatives to exercise, and no course of dealing with
respect to, and no delay in, exercising, any right, power or remedy hereunder
shall operate as a waiver of such right, power or remedy; nor shall any single
or partial exercise by the Depositary Agent or any other Transaction Party or
any of their nominees or representatives of any right, power or remedy hereunder
shall operate as a waiver of such right, power or remedy.
Section 7.7 Severability. If any provision of this Depositary Agreement or
the application thereof shall be invalid or unenforceable to any extent, (a) the
remainder of this Depositary Agreement and the application of such remaining
provisions shall not be affected thereby and (b) each such remaining provision
shall be enforced to the greatest extent permitted by law.
Section 7.8 Successors and Assigns. All covenants, agreements,
representations and warranties in this Depositary Agreement by the parties
hereto shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 7.9 Execution in Counterparts. This Depositary Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 7.10 SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY AEE, AEE2 OR ANY
OTHER PERSON AGAINST THE DEPOSITARY AGENT OR ANY OTHER TRANSACTION PARTY OR THE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF THEM
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR
RELATING TO THIS DEPOSITARY AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, AND EACH OF AEE AND AEE2 HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE
29
UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
Section 7.11 GOVERNING LAW. THIS DEPOSITARY AGREEMENT 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.
30
IN WITNESS WHEREOF, the parties hereto have caused this Depositary
Agreement 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:
Title:
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
AEE2, L.L.C.
By:________________________________
Name:
Title:
Address for Notices:
AEE2, 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
AES SOMERSET L.L.C.
By:________________________________
Name:
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
AES CAYUGA, L.L.C.
By:________________________________
Name:
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
AES WESTOVER, L.L.C.
By:________________________________
Name:
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
AES GREENIDGE, L.L.C.
By:________________________________
Name:
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
UNION BANK OF CALIFORNIA, N.A.,
as Agent under the Working Capital Facility,
as Working Capital Provider
By:________________________________
Name:
Title:
Address for Notices:
Union Bank of California, N.A.
445 South Figueroa Street, 15th Floor
Los Angeles, CA 90071
Attention: Susan Johnson
Telecopier No.: (213) 236-4096
Telephone No.: (213) 236-4125
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
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 19890-0001
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-1000
With a copy to:
Wilmington Trust Company
Attention: Ann Roberts
Telecopier No.: (212) 415-0513
Telephone No.: (212) 415-0545
DCC PROJECT FINANCE FOURTEEN, INC.,
as Owner Participant under each Participation
Agreement (Kintigh A-1 and 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
DCC PROJECT FINANCE FIFTEEN, INC.,
as Owner Participant under each Participation
Agreement (Kintigh A-2 and Milliken A-2)
By:________________________________
Name:
Title:
Address for Notices:
DCC Project Finance Fifteen, Inc.
1801 Richards Road
Toledo, OH 43607
Attention: Letitia D. Marth, Esq.
Telecopier No.: (419) 322-7484
Telephone No.: (419) 322-7465
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under each Participation
Agreement (Kintigh B-1 and Milliken B-1)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
55 West Monroe
Mail Code IL1-0502, 17th Floor
Chicago, IL 60670-0502
Attention: Frieda Feiger, Contract
Administration
Maurice Moore, Head Power Generation
Leasing Group
Telecopier No.: (312) 732-7921 or (312) 732-3634
Telephone No.: (312) 732-8100 or (312) 732-2093
FIRST CHICAGO LEASING CORPORATION,
as Owner Participant under each Participation
Agreement (Kintigh B-2 and Milliken B-2)
By:________________________________
Name:
Title:
Address for Notices:
First Chicago Leasing Corporation
55 West Monroe
Mail Code IL1-0502, 17th Floor
Chicago, IL 60670-0502
Attention: Frieda Feiger, Contract
Administration
Maurice Moore, Head Power Generation
Leasing Group
Telecopier No.: (312) 732-7921 or (312) 732-3634
Telephone No.: (312) 732-8100 or (312) 732-2093
BANKERS COMMERCIAL CORPORATION,
as Owner Participant under each Participation
Agreement (Kintigh C-1 and Milliken C-1)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
445 South Figueroa Street, 16th Floor
Mail Code G16-200
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 each Participation
Agreement (Kintigh C-2 and Milliken C-2)
By:________________________________
Name:
Title:
Address for Notices:
Bankers Commercial Corporation
445 South Figueroa Street, 16th Floor
Mail Code G16-200
Los Angeles, CA 90071
Attention: Bill Moore, Esq.
Telecopier No.: (213) 236-7579
Telephone No.: (213) 236-5544
BANKERS TRUST COMPANY,
as Depositary Agent
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 7th Floor
New York, NY 10006
Attention: Janet Robinson
Telecopier No.: (212) 669-0772
Telephone No.: (212) 250-7702
BANKERS TRUST COMPANY,
as each Indenture Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 7th Floor
New York, NY 10006
Attention: Janet Robinson
Telecopier No.: (212) 669-0772
Telephone No.: (212) 250-7702
BANKERS TRUST COMPANY,
as each Pass Through Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 7th Floor
New York, NY 10006
Attention: Janet Robinson
Telecopier No.: (212) 669-0772
Telephone No.: (212) 250-7702
Schedule I
to
Depositary Agreement
ACCOUNTS
ACCOUNTS Account #
-------- ---------
(a) Revenue Account 27667
(b) Operating Account 27668
(c) Working Capital Account 27669
(d) Rent Payment Account 27670
(e) Debt Repayment Account 27671
(f) Rent Reserve Account 27672
(g) Deferrable Payments Account 27674
(h) Indemnity Account 27673
(i) Loss Proceeds Account 27675
(j) Additional Liquidity Account 27676
(k) Special Rent Reserve Account 27677
(l) Distribution Account 27678
EXHIBIT A to
Depositary Agreement
[Form of Instruction Letter]
[AES Eastern Energy, L.P. Letterhead]
[Date]
[NAME AND ADDRESS
OF DOCUMENT PARTY]
Re: [__________________] (the "Subject Agreement") dated as of
[_____________] by and between AES Eastern Energy, L.P. ("AEE")
and [_____________] (the "Document Party").
Ladies and Gentlemen:
All payments to be made by the Document Party to AEE under the Subject
Agreement shall be made in lawful money of the United States, directly to
Bankers Trust Company, [a national banking corporation organized and existing
under the laws of the United States of America], in its capacity as depositary
agent (in such capacity, together with its successors and permitted assigns in
such capacity, the "Depositary Agent"), for deposit in accordance with the
following instructions:
(a) with respect to wire transfers:
Bankers Trust Company
-----------------------
------------------------
ABA #:
Account No.:
For further credit to: AEE Revenue Account
(Account No.:)
Re: AEE
Attn:
2
and (b) with respect to other transfers:
Bankers Trust Company
-----------------------
------------------------
ABA #:
Account No.:
For further credit to: AEE Revenue Account
(Account No.:)
Re: AEE
Attn:
or to such other Person and/or at such other address as the transaction parties
may from time to time specify in writing to the Document Party for application
by the Depositary Agent in the manner contemplated in the Amended and Restated
Deposit and Disbursement Agreement dated as of April __, 2001 (as amended,
supplemented or modified and in effect from time to time) among AEE, the AEE
Subsidiaries parties thereto, Union Bank of California, N.A., as Agent under the
Working Capital Facility, as Working Capital Provider, the twelve Owner Trusts
parties thereto, [Owner Participant] and Bankers Trust Company, and shall be
accompanied by a notice from the Document Party stating that such payments are
made under the Subject Agreement and stating the nature and amounts of such
payments.
AES EASTERN ENERGY, L.P.
By:____________________________
Name:
Title:
Agreed and Acknowledged:
[DOCUMENT PARTY]
By:_________________________________
Name:
Title:
Date:
3
EXHIBIT B to
Depositary Agreement
FUNDING DATE CERTIFICATE
Dated:____________________ (the "Report Date")
[To be delivered to the Depositary Agent at least
four (4) Business Days prior to the Funding Date]
Funding Date:____________
TO: Bankers Trust Company, as Depositary Agent
Copies to: DCC Project Finance Fourteen, Inc.,
DCC Project Finance Fifteen, Inc.,
First Chicago Leasing Corporation, and
Bankers Commercial Corporation,
as Owner Participants
The undersigned, _______________ [Name], hereby certifies that [he/she] is
[a/the] _____________ [Title] of AES Eastern Energy, L.P., a Delaware limited
partnership ("AEE"), and that:
This Funding Date Certificate is delivered to Bankers Trust Company, as
Depositary Agent, and to each Owner Participant pursuant to Section 3.1(b) of
the Amended and Restated Deposit and Disbursement Agreement dated as of April
__, 2001 among AES Eastern Energy, L.P., AEE2, L.L.C., AES Somerset, L.L.C., AES
Cayuga, L.L.C., AES Westover, L.L.C., AES Greenidge, L.L.C., Union Bank of
California, N.A., as Agent under the Working Capital Facility, as Working
Capital Provider, the twelve Owner Trusts parties thereto, DCC Project Finance
Fourteen, Inc., DCC Project Finance Fifteen, Inc., First Chicago Leasing
Corporation, Bankers Commercial Corporation, and Bankers Trust Company, as
Depositary Agent, Indenture Trustee and Pass Through Trustee (the "Depositary
Agreement"). Capitalized terms used and not defined herein shall have the
meanings assigned to them in or pursuant to the Depositary Agreement.
In preparing this Funding Date Certificate, I have examined the Depositary
Agreement, the other Operative Documents and other documents necessary or
relevant for such preparation. The examination I have made enables me to express
an informed belief as to whether this Funding Date Certificate complies with the
Depositary Agreement and the other Operative Documents, and whether the
applications and transfers of funds (including after giving effect to such
applications and transfers)
4
provided for in this Funding Date Certificate are in accordance with, and will
not result in a breach of, the Depositary Agreement or any other Operative
Document.
This Funding Date Certificate complies with the Depositary Agreement and
the other Operative Documents, and the applications and transfers of funds
(including after giving effect to such applications and transfers) provided for
in this Funding Date Certificate are in accordance with, and will not result in
a breach of, the Depositary Agreement or any other Operative Document.
The monies on deposit in the Revenue Account on the Funding Date specified
above (the "Funding Date") are expected to aggregate $__________.
The monies on deposit in the Revenue Account on ___________ (most
recent available date) are $____________.
The monies (in addition to those referred to in the preceding
paragraph (a)) expected to be received in the Revenue Account prior to
the Funding Date are:
Amount
------
$
$
$
$---------
Total $_________
Pursuant to Section 3.1(b) of the Depositary Agreement, on the Funding Date
the monies on deposit in the Revenue Account and certain other Accounts or
available for drawing under certain letters of credit and Payment Undertaking
Agreements should be applied or transferred as follows and in the following
order of priority to the extent such monies are available:
First: Transfer $_________ from the Revenue Account to the Operating
Account.
[ The amount specified in item A. 1, plus the amounts of all prior
transfers to the Operating Account pursuant to Section 3.1(b)(i)
of the Depositary Agreement during the relevant [calendar year]
[semi-annual period]:
x. Equals $___________;
5
y. Is in compliance with Section 5.9 of each of the Participation
Agreements with respect to the calendar year in respect of which
this Funding Date Certificate is delivered; and
z. Is not more than $__________, which is the amount of actual fuel
costs plus 125% of the amount set forth in [the Annual Operating
Budgets (other than actual fuel costs) with respect to the
[first] [second] half of the calendar year ____ [Insert year of
Funding Date] delivered under each of the Participation
Agreements] [the amended, modified or reallocated Annual
Operating Budgets (other than actual fuel costs) with respect to
the [first] [second] half of the calendar year ____ [Insert year
of Funding Date] delivered under each of the Participation
Agreements and attached to the certificate of the Independent
Engineer annexed hereto as Annex 5-First-A.2 confirming such
amended, modified or reallocated Annual Operating Budgets (other
than actual fuel costs) as being based on reasonable
assumptions]. [Delete as applicable]
OR
[2. The amount set forth in item A.1, plus the amounts of all prior
transfers to the Operating Account pursuant to Section 3.1(b)(i)
of the Depositary Agreement during the relevant [calendar year]
[semi-annual period]:
x. Equals $____________; and
y. Is less than $_________ which is the amount of actual fuel costs
plus 125% of the amount set forth in [the Annual Operating
Budgets (other than actual fuel costs) with respect to the
[first] [second] half of the calendar year ____ [Insert year of
Funding Date] delivered under each of the Participation
Agreements] [the amended, modified or reallocated Annual
Operating Budgets (other than actual fuel costs) with respect to
the [first] [second] half of the calendar year ____ [Insert year
of Funding Date] delivered under each of the Participation
Agreements and attached to the certificate of the Independent
Engineer annexed hereto as Annex 5-First-A.2 confirming such
amended, modified or reallocated Annual Operating Budgets (other
than actual fuel costs) as being based on reasonable
assumptions]. [Delete as applicable]
Consequently, the funds on deposit in the Operating Account,
after giving effect to the transfer pursuant to item A.1, will be
insufficient to pay Operating and Maintenance Costs to the extent
6
permitted by Section 5.9 of each Participation Agreement.
Pursuant to Section 3.2(c) of the Depositary Agreement, an amount
equal to the deficiency of $__________ should be transferred to
the Operating Account on the Funding Date by transferring the
following amounts from the following Accounts and drawing the
following amounts under the following letters of credit, all of
which transfers and drawings are and will be in compliance with
Article III of the Depositary Agreement and such letters of
credit:
Account/LOC Amount
----------- ------
Working Capital Facility Drawing $__________
Working Capital Account $__________
Special Rent Reserve Account (but not PUA) $__________
Additional Liquidity Account $__________
Additional Liquidity Account LOC Drawing $__________
Deferrable Payments Account $__________
Indemnity Account $__________
Rent Payment Account ) pro rata $__________
Debt Repayment Account ) $__________
Total $__________]
All of the foregoing amounts applied or transferred to the
Operating Account will be expended only on Operating and
Maintenance Costs, except as provided in item D below.
On the Funding Date, transfer from the Operating Account to the
Persons specified on Annex 5-First-B hereto the respective
amounts specified in such Annex.
D. [Insert if applicable] On the Rent Payment Date occurring during the
Funding Period in which the Funding Date occurs, transfer from the
Operating Account to the following Accounts in the following order of
priority the respective amounts specified below, all of which
transfers comply with Section 3.2(b) of the Depositary Agreement:
Account
Amount
-------
Working Capital Account $__________
Rent Payment Account ) pro rata $__________
Debt Repayment Account ) $__________
Rent Reserve Account $__________
7
Indemnity Account $__________
Deferrable Payments Account $__________
Additional Liquidity Account $__________
Special Rent Reserve Account $__________
Distribution Account $__________
Total $__________
Second: Transfer $_________ to the Working Capital Account. After
giving effect to such transfer, the amount on deposit in the Working
Capital Account will be [equal to] [less than] $_________, which is
the principal amount due under the Working Capital Facility during the
Funding Period in which the Funding Date occurs.
[ The amount on deposit in the Working Capital Account will be
insufficient to pay the principal amount of borrowings under the
Working Capital Facility due during the Funding Period in which
the Funding Date occurs. Therefore, pursuant to Section 3.3(b) of
the Depositary Agreement, transfer the following amounts from the
following Accounts or from drawings under the following letters
of credit to the Working Capital Account:
Account/LOC Amount
----------- ------
Special Rent Reserve Account (but not PUA) $__________
Additional Liquidity Account $__________
Additional Liquidity Account LOC Drawing $__________
Deferrable Payments Account $__________
Indemnity Account $__________
Rent Payment Account ) pro rata $__________
Debt Repayment Account ) $__________
Total $__________]
After the transfers pursuant to item (ii)(A) and item (ii)(B)
above, the amount on deposit in the Working Capital Account
during such Funding Period should be transferred from such
account to the Working Capital Provider [insert wire transfer
information], as follows, each of which amounts is an amount
payable in respect of the principal amount of drawings under the
Working Capital Facility:
Date Amount of Transfer
---- ------------------
------------ $
8
------------ $
Third: A.1. Transfer $________ from the Revenue Account to the Rent
Payment Account; [If this Certificate is delivered in respect of a
Funding Period that includes a Rent Payment Date, insert the
following: "such amount, together with the $________ being transferred
from the Operating Account to the Rent Payment Account pursuant to
item 5(i)D above and the $________ on deposit in the Rent payment
Account on the Report Date, equals the [Basic Rent Due] [Rent Payment
Portion] (as defined in item G below);"] AND
2. Transfer $_______ from the Revenue Account to the Debt
Repayment Account [If this Certificate is delivered in respect
of a Funding Period that includes a Rent Payment Date, insert
the following: "; such amount, together with the $ _______
being transferred from the Operating Account to the Debt
Repayment Account pursuant to item 5(i)D above and the
$_________ on deposit in the Debt Payment Account on the Report
Date, equals the [Debt Repayment Due] [Debt Repayment
Portion]"].
[Insert the following items B, C, D, E and F as applicable]
[B. The transfers pursuant to the preceding item A do not result in
the transfer to the Rent Payment Account of the full Basic Rent
Due and to the Debt Repayment Account of the full Debt Repayment
Due. Therefore, pursuant to Section 3.10(b) of the Depositary
Agreement, to the extent there are funds in the Special Rent
Reserve Account (including Permitted Investments, but excluding
any PUA):
Transfer $_________ from the Special Rent Reserve Account to
the Rent Payment Account (after giving effect to such transfer,
$_________ of the Basic Rent Due will remain unpaid); and
Transfer $__________ from the Special Rent Reserve Account to
the Debt Repayment Account (after giving effect to such
transfer, $_________ of the Debt Repayment Due will remain
unpaid).
The transfers provided for in the foregoing items 1 and 2 are
in the pro rata portions required pursuant to Section 3.10(b)
of the Depositary Agreement.]
9
[C. 1. Pursuant to Section 3.10(b), instruct each Indenture Trustee that
is a beneficiary of a Special Rent Reserve Account Payment
Undertaking Agreement to make a demand thereunder in the amount
set forth in Annex 5-Third-A hereto, which amount is in each case
equal to the lesser of (i) the amount available to be drawn under
the relevant Special Rent Reserve Account Payment Undertaking
Agreement, and (ii) the amount of the deficiency in the Basic
Rent Due in respect of the relevant Lease and relevant Indenture
after giving effect to the transfers to the Rent Payment Account
provided above in this item (iii) Third.
2. The instructions pursuant to this item C are in compliance with
Sections 3.4(c) and 3.10(b) of the Depositary Agreement.]
[D. Pursuant to Section 3.12 (a) (i) of the Depositary Agreement:
1. Transfer $_________ from the funds and Permitted Investments in
the Additional Liquidity Account to the Rent Payment Account
(after giving effect to such transfer, $________ of the Basic
Rent Due will remain unpaid); and
2. _____ Transfer $_________ from the funds and Permitted
Investments in the Additional Liquidity Account to the Debt
Repayment Account (after giving effect to such transfer,
$________ of the Debt Repayment Due will remain unpaid).
3. The transfers provided for in the foregoing items 1 and 2 are in
the pro rata proportions required pursuant to the proviso to
Section 3.12(a) of the Depositary Agreement.]
[E. 1. Pursuant to Section 3.12(a)(ii) of the Depositary Agreement,draw
the following amounts under the Additional Liquidity Account
Letter of Credit:
a. $_______, and transfer such amount to the Rent Payment
Account; and
b. $_______, and transfer such amount to the Debt Repayment
Account.
2. The sum of such amounts is equal to the lesser of (a) the amount
available to be drawn under the Additional Liquidity Account
Letter of Credit, and (b) the sum of the deficiencies in the
payment
10
of the Basic Rent Due and the Debt Repayment Due after giving
effect to the transfers provided for above in this item (iii)
Third.
3. The drawings and transfers provided for pursuant to the preceding
items 1.a and 1.b are in the pro rata portions required pursuant
to Section 3.12(a) of the Depositary Agreement.]
[Use the alternative of item F that is applicable.]
[F. 1. Pursuant to Section 3.6(b) of the Depositary Agreement, transfer
from the funds (including Permitted Investments, but excluding
any PUA) in the Rent Reserve Account:
a. $_______ to the Rent Payment Account; and
b. $_______ to the Debt Repayment Account.
2. After giving effect to such transfers and to the prior transfers
and drawings provided for in this item (iii) Third, no Basic Rent
Due will remain unpaid, and no Debt Repayment Due will remain
unpaid.]
OR
[F. 1. a. Pursuant to Section 3.6(b) of the Depositary Agreement and
after effecting any transfers from the Rent Reserve Account
pursuant to item 5(i)B or item 5(ii)B above, transfer from the
funds (including Permitted Investments, but excluding any PUA) in
the Rent Reserve Account (i) $_______ to the Rent Payment Account
and (ii) $_________ to the Debt Repayment Account; and
b. In addition, instruct each Indenture Trustee that is a
beneficiary of a Rent Reserve Account Payment Undertaking
Agreement to make a demand thereunder in the respective amount
set forth in Annex 5-Third-B hereto, which amount is in each case
equal to the lesser of (i) the amount available to be drawn under
the relevant Rent Reserve Account Payment Undertaking Agreement,
and (ii) the amount of the deficiency in the Basic Rent Due in
respect of the relevant Lease and the relevant Indenture after
giving effect to the transfers to the Rent Payment Account
provided above in this item (iii) Third (including clause (i) of
item F.1.a).
11
2. After giving combined effect to the transfers provided for in
item 1.a and 1.b above and to the drawings under the Rent Reserve
Account Payment Undertaking Agreements provided for in such item
1, and also giving effect to the transfers and drawings provided
for above in this item (iii) Third [and to the payment of any
Scheduled Payments due on the next succeeding Rent Payment Date]:
a. The ratio of (i) the amounts paid into the Rent Payment
Account in respect of the next succeeding Rent Payment Date to
(ii) the amounts due to be paid from the Rent Payment Account in
respect of such Rent Payment Date, is equal to the ratio of (iii)
the amounts paid into the Debt Repayment Account in respect of
such Rent Payment Date to (iv) the amounts due to be paid from
the Debt Repayment Account in respect of such Rent Payment Date;
and
b. Such payments and drawings are in the ratio required pursuant
to Section 3.4(c) of the Depositary Agreement.]
G. For purposes of this Funding Date Certificate:
1. "Basic Rent Due" means the amount of Basic Rent (other than
Deferrable Payments, but only so long as Lessor Notes which are
payable from such Basic Rent shall remain outstanding) under each
of the Leases due on the immediately succeeding Rent Payment Date
(or, if such be the case, on the Rent Payment Date that coincides
with the above Funding Date in respect of which this Certificate
is issued) less any Scheduled Payments due on such Rent Payment
Date under the Payment Undertaking Agreements.
2. "Debt Repayment Due" means the amount (other than as a result of
optional prepayments) due in respect of Permitted Indebtedness
(other than Permitted Subordinated Indebtedness and Indebtedness
in respect of the Working Capital Facility) on the immediately
succeeding Rent Payment Date (or, if such be the case, on the
Rent Payment Date that coincides with the above Funding Date in
respect of which this Certificate is issued).
3. "Third Available Funds" means the amount on deposit in the
Revenue Account on the Funding Date set forth above reduced by
the amounts transferred therefrom pursuant to the preceding items
5(i) and 5(ii) Second.
12
4. If the sum of Basic Rent Due and Debt Repayment Due is greater
than Third Available Funds, then:
a. "Rent Payment Portion" means the product of Third Available
Funds times the following fraction:
Basic Rent Due
-----------------------
Basic Rent Due + Debt Repayment Due
=$---------
See Annex 5-Third-C for calculation.
b. "Debt Repayment Portion" means Third Available Funds minus
Rent Payment Portion
= $ _________ minus $_________
= $ ---------
5. Calculations of certain amounts defined in this item (iii) Third
are set forth in Annex 5-Third-C hereto
Fourth: Transfer $_______ from the Revenue Account and $_______ from
the Operating Account to the Rent Reserve Account. The Rent Reserve
Account Required Balance as of the above Funding Date is $________.
"Rent Reserve Account Required Balance" means the sum of the maximum
aggregate payments of (a) Basic Rent (other than Deferrable Payments),
and (b) all other Fixed Charges Scheduled to be Paid due during any
one semi-annual period ending on a Rent Payment Date in the three year
period succeeding the above Funding Date. All such payments of Basic
Rent and Fixed Charges Scheduled to be Paid in respect of each such
semi-annual period are set forth on Annex 5-Fourth hereto. The amount
of such Rent Reserve Account Required Balance set forth above is
calculated as follows:
Rent Payment Date on which such semi-annual period ends:
-------------, ----
Basic Rent (other than Deferrable Payments) due during such
semi-annual period: $_________
13
Fixed Charges Scheduled to be Paid due during such semi-annual
period: $__________
Rent Reserve Account Required Balance: $___________
Fifth: Transfer $_________ from the Revenue Account and $__________
from the Operating Account to the Indemnity Account. The aggregate
indemnity obligations of AEE due as of the above Funding Date and
arising under the Operative Documents [are] [are estimated to be]
$___________. After giving effect to the foregoing transfers, the
amount on deposit in the Indemnity Account as of the above Funding
Date will be $_________.
Sixth: Transfer $_________ from the Revenue Account and $_______ from
the Operating Account to the Deferrable Payments Account. After giving
effect to the foregoing transfers, the amount on deposit in the
Deferrable Payments Account as of the above Funding Date will be
$_______. The aggregate amount of Deferrable Payments payable under
all of the Leases is $__________, consisting of (A) $_________ payable
and remaining unpaid, plus (B) $_________ scheduled to be due on the
Rent Payment Date immediately succeeding the date hereof (or, if such
be the case, occurring on the Funding Date in respect of which this
Certificate is delivered), as set forth on Annex 5-Sixth hereto.
Seventh: Transfer $_________ from the Revenue Account and $_____ from
the Operating Account to the Additional Liquidity Account. After
giving effect to the foregoing transfers, the amount on deposit in the
Additional Liquidity Account as of the above Funding Date will be
$_________. The Additional Liquidity Required Balance as of the above
Funding Date is $_________, as set forth on Annex 5-Seventh hereto.
Eighth: Transfer $________ from the Revenue Account and $________ from
the Operating Account to the Special Rent Reserve Account. After
giving effect to the foregoing transfers, the amount on deposit in the
Special Rent Reserve Account as of the above Funding Date is
$________. The Special Rent Reserve Account Required Balance as of the
above Funding Date is $__________.
1. As of the date hereof, the senior unsecured long-term debt of
the ultimate parent of AEE is rated ____ by S&P; and
2. As of the last day of the fiscal [quarter] [year] ending
_________ [Insert last day of most recent fiscal period in
respect of which
14
financial statements of AEE have been delivered pursuant to
Section 5.3(a) or (b) of the Participation Agreement], AEE's
Coverage Ratio in respect of such [quarterly] [annual] period was
_________ and the Required Coverage Ratio in respect of such
period was ________; the calculation of such Coverage Ratio and
Required Coverage Ratio in accordance with the Depositary
Agreement and the Participation Agreements is set forth in Annex
5-Eighth hereto;
consequently, a "Special Rent Reserve Period" [does exist] [does
not exist]. [Delete as applicable]
Special Rent Reserve Account Required Balance prior to May 14,
2004
i. The maximum aggregate payments of Basic Rent (other than
Deferrable Payments) expected to become due on any three
successive Basic Rent payment dates in the three year period
immediately succeeding the date hereof is $__________.
Rent Payment Date Basic Rent Due
----------------- --------------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
Total of largest three successive
payments $__________
ii. The amount set forth in clause (a) of the definition of Rent
Reserve Account Required Balance (which is the largest
single semi-annual payment of Basic Rent (other than
Deferrable Payments) scheduled to be paid during the three
year period referred to in the preceding item i is
$________.
15
iii. The Special Rent Reserve Account Required Balance equals the
amount in item i minus the amount in item ii, which is
$__________.
Special Rent Reserve Account Required Balance on and after May
14, 2004.
i. The maximum aggregate payment of Basic Rent (other than
Deferrable Payments) expected to become due on any two
successive Basic Rent payment dates in the three year period
immediately succeeding the date hereof is $---------.
Rent Payment Date Basic Rent Due
----------------- --------------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
------------, ---- $----------
Total of largest three successive
payments $__________
ii. The amount set forth in clause (a) of the definition of Rent
Reserve Account Required Balance (which is the largest
single semi-annual payment of Basic Rent (other than
Deferrable Payments) scheduled to be paid during the three
year period referred to in the preceding item i is
$________.
iii. The Special Rent Reserve Account Required Balance equals the
amount in item i minus the amount in item ii, which is
$__________.
Ninth: On each Rent Payment Date (or within 10 Business Days after
such Rent Payment Date) occurring after your receipt of this Funding
Date Certificate and prior to the date you are entitled or required to
receive
16
another Funding Date Certificate from AEE, after making all transfers
required pursuant to the preceding items (i) First through (viii)
Eighth, transfer $________ from the Revenue Account and $_________
from the Operating Account to the Distribution Account. All conditions
precedent to making a Distribution set forth in Section 6.2(a) of the
Participation Agreement have been satisfied. The satisfaction of such
conditions precedent is set forth in Annex 5-Ninth hereto.
[ Pursuant to Section 3.4(b) of the Depositary Agreement, on the Rent
Payment Date that occurs on ____________, ____, after effecting all of
the transfers specified in item 5(i)B and item 5(ii)B above, withdraw
from the Rent Payment Account and transfer to each Indenture Trustee
the amount in respect of Basic Rent set forth opposite the name of
such Indenture Trustee on ANNEX 6 hereto.
The amounts specified in ANNEX 6 hereto comply with Section 3.4(c) of
the Depositary Agreement.]
[ Pursuant to Section 3.5(b) of the Depositary Agreement, on the Rent
Payment Date that occurs on ___________, ____, after effecting the transfers
specified in item 5(i)B and item 5(ii)B above, withdraw from the Debt Payment
Account and transfer to each provider of Permitted Indebtedness specified on
ANNEX 7 hereto the amount set forth opposite the name of such provider on ANNEX
7 hereto.]
[ Pursuant to item _______ of the Funding Date Certificate dated
___________, ____ and item ________ of the Funding Date Certificate dated
___________, ____, $________ has been deposited into the Rent Reserve Account in
respect of the portion of the Rent Reserve Account Required Balance relating to
clause (a) of the definition thereof. Pursuant to Section 3.6(c) of the
Depositary Agreement, transfer such amount to _____________, the provider of the
Rent Reserve Account Payment Undertaking Agreement dated _____________, ____, to
replenish amounts drawn under such Agreement in accordance with each
Participation Agreement.]
Pursuant to Section 3.7 of the Depositary Agreement, on the Funding Date,
withdraw from the Indemnity Account the amounts set forth below and transfer
such amounts to the following Persons:
Indemnified Party Amount
----------------- ------
--------------- $----------
--------------- $----------
--------------- $----------
--------------- $----------
--------------- $----------
17
--------------- $----------
Total $__________
The distribution of funds provided in the preceding paragraph (a) complies
with the proviso to the second sentence of such Section 3.7.
(a) Pursuant to Section 3.8 of the Depositary Agreement, on the Rent
Payment Date that occurs on ____________, ____, withdraw from the Deferrable
Payments Account the amounts set forth below and transfer to each Indenture
Trust the amount set forth opposite its name:
Indenture Trustee Amount
----------------- ------
--------------- $----------
--------------- $----------
--------------- $----------
--------------- $----------
--------------- $----------
--------------- $----------
Total $__________
Pursuant to Section 3.10(c) of the Depositary Agreement, after effecting
the transfers pursuant to item 5(i)(B), item 5(ii)(B), item 5(iii)(B) and item
5(iii)(C), on or prior to the Rent Payment Date that occurs on ________, ____:
Transfer $ ________ from the funds (including Permitted Investment,
but excluding any PUA) in the Special Rent Reserve Account to the
Indemnity Account; and
Instruct the following Indenture Trustees (each of which is a
beneficiary of a Special Rent Reserve Account Payment Undertaking
Agreement) to make a demand under such PUA in the amount specified
opposite its name and to apply the proceeds thereof in accordance with
Section 3.1 of the Indenture to which such Indenture Trustee is a
party:
Special Rent Reserve
Indenture Trustee Account PUA Amount
----------------- ----------- ------
-------------- ----------------- --------------
-------------- ----------------- --------------
-------------- ----------------- --------------
Total $_____________
18
The above transfers and drawings are in compliance with Section 3.10(c) and
all other provisions of the Depositary Agreement.
Pursuant to Section 3.10(d) of the Depositary Agreement, after effecting
the transfers pursuant to item 5(i)(B), item 5(ii)B, item 5(iii)(B), item
5(iii)(C) and item 11, on or prior to the Rent Payment Date that occurs on
__________, ____:
Transfer $__________ from the funds (including Permitted Investments,
but excluding any PUA) in the Special Rent Reserve Account to the
Deferrable Payments Account; and
Instruct the following Indenture Trustees (each of which is a
beneficiary of a Special Rent Reserve Account Payment Undertaking
Agreement) to make a demand under such Agreement in the amount
specified opposite its name and to apply the proceeds thereof in
accordance with Section 3.1 of the Indenture to which such Indenture
Trustee is a party:
Special Rent Reserve
Indenture Trustee Account PUA Amount
----------------- ----------- ------
-------------- ----------------- --------------
-------------- ----------------- --------------
-------------- ----------------- --------------
Total $_____________
The above transfers and drawings are in compliance with Section 3.10(d) and
all other provisions of the Depositary Agreement.
Pursuant to Section 3.11 of the Depositary Agreement, on each date
specified below transfer from the Loss Proceeds Account to each of the Persons
specified below the amount set forth opposite the name of such Person. Each such
transfer is authorized pursuant to, and otherwise in accordance with, all
applicable Leases and Participation Agreements.
Date of Transfer Recipient Amount
-------------- ----------------- $--------------
-------------- ----------------- $--------------
-------------- ----------------- $--------------
Total $______________
14. Pursuant to Section 3.12(b) of the Depositary Agreement, on the Rent
Payment Date that occurs on ___________, ____:
19
a. Transfer $________ from the funds and Permitted Investments
in the Additional Liquidity Account to the Deferrable
Payments Account; and
b. Make a drawing in the amount of $________ under the
Additional Liquidity Account Letter of Credit, and transfer
the proceeds thereof to the Deferrable Payments Account.
15. Pursuant to Section 3.12(c) of the Depositary Agreement, on the Rent
Payment Date that occurs on ___________, ____:
a. Transfer $__________ from the funds and Permitted
Investments in the Additional Liquidity Account to the
Indemnity Account; and
b. Make a drawing in the amount of $_________ under the
Additional Liquidity Account Letter of Credit, and transfer
the proceeds thereof to the Indemnity Account.
16. a. Pursuant to Section 6.2 of the Participation Agreement, on
__________ [specify date], which date is, or is within 10 Business Days
after, a Rent Payment Date occurring on or after July 2, 2000, distribute
the following amounts to the Persons specified:
Payee Amount
------------- $-------------
------------- $-------------
------------- $-------------
Total $_____________
b. All of the above Distributions are in compliance with the
Depositary Agreement, the Participation Agreement and each other Operative
Document.
IN WITNESS WHEREOF the undersigned has executed this Funding Date
Certificate as of the date first specified above.
-------------------------------
Name:
Title:
20
ANNEX 5-First-A.2
Certificate of Independent Engineer
[If applicable]
ANNEX 5-First-B
Transfers from Operating Account
Funding Date:__________
Payee/Transferee Amount
---------------- ------
------------- $-------------
------------- $-------------
ANNEX 5-Third-A
SPECIAL RENT RESERVE ACCOUNT
PAYMENT UNDERTAKING AGREEMENT(S) -
DRAWING INSTRUCTIONS
Relevant Relevant Special Accreted
Indenture Rent Reserve Value Amount to
Trustee Account PUA Available be Drawn
--------- ----------- --------- --------
ANNEX 5-Third-B
RENT RESERVE ACCOUNT
PAYMENT UNDERTAKING AGREEMENT(S) -
DRAWING INSTRUCTIONS
Relevant Relevant Accreted
Indenture Rent Reserve Value Amount to
Trustee Account PUA Available be Drawn
--------- ----------- --------- --------
ANNEX 5-Third-C
CALCULATION OF CERTAIN DEFINED AMOUNTS
Funding Date:
Next Succeeding or Coinciding Rent Payment Date:
Basic Rent [(other than Deferrable Payments)] due under the Leases on the
Rent Payment Date set forth above:
Lease Basic Rent Due
----- --------------
Kintigh A-1 Lease $_______________
Kintigh A-2 Lease $_______________
Kintigh B-1 Lease $_______________
Kintigh B-2 Lease $_______________
Kintigh C-1 Lease $_______________
Kintigh C-2 Lease $_______________
Milliken A-1 Lease $_______________
Milliken A-2 Lease $_______________
Milliken B-1 Lease $_______________
Milliken B-2 Lease $_______________
Milliken C-1 Lease $_______________
Milliken C-2 Lease $_______________
Total $_______________
Payments due in respect of Permitted Indebtedness included in the
definition of Debt Repayment Due:
Description of Permitted
Indebtedness Debt Repayment Due
------------------- $---------------
------------------- $---------------
Total $_______________
"Third Available Funds" on the Funding Date:
Revenue Account-on deposit $___________
-Item 5(i) First transfer $______
-Item 5(ii) Second transfer $______ ____________
Third Available Funds $___________
"Rent Payment Portion"
= Basic Rent Due x Third Available Funds
-----------------------------------
Basic Rent Due + Debt Repayment Due
= _________________________________x $___________
$---------- + $---------
= _________________________________x $___________
$----------
= $-----------
"Debt Repayment Portion"
= Third Available Funds minus Basic Rent Due
= $____________minus $___________
= $------------
2
ANNEX 5-Fourth
RENT RESERVE ACCOUNT REQUIRED BALANCE
Items for Calculation
Fixed Changes
Scheduled to be Paid
Semi-Annual Period Basic Rent (other than Basic Rent) Total
- ------------------ ---------- ----------------------- -----
_______to_______ $________ $________________ $________
_______to_______ $________ $________________ $________
_______to_______ $________ $________________ $________
_______to_______ $________ $________________ $________
_______to_______ $________ $________________ $________
_______to_______ $________ $________________ $________
ANNEX 5-Sixth
PAYMENT TO DEFERRABLE RENT ACCOUNT
Deferrable Payments Deferrable Payments
Unpaid & Payable on Due on next
Lease next Rent Payment Date Rent Payment Date
Kintigh A-1 Lease $ $
Kintigh A-2 Lease
Kintigh B-1 Lease
Kintigh B-2 Lease
Kintigh C-1 Lease
Kintigh C-2 Lease
Milliken A-1 Lease
Milliken A-2 Lease
Milliken B-1 Lease
Milliken B-2 Lease
Milliken C-1 Lease
Milliken C-2 Lease _______________ _______________
Total $ $
Total Deferrable Rent Account payment is $__________.
2
ANNEX 5-Seventh
ADDITIONAL LIQUIDITY REQUIRED BALANCE
"Additional Liquidity Required Balance" means:
1. As of the Closing Date (May 14, 1999) and at any time to and including
May 14, 2002, $36,326,900; and
2. On and after May 15, 2002:
A. $18,163,450 from and after such time as the conditions set forth
in clause (A) of the definition of Additional Liquidity Required
Balance are satisfied.
i. Credit ratings of the Pass Through Certificates as of the
date hereof:
Moody's:__________ (Baa3 minimum required), and S&P:
_________ (BBB - minimum required)
and
ii. Before and after any PPA Term:
x. Average Coverage Ratio for immediately preceding three
year period:
____ to ____ (not less than 2.5 to 1.0 required)
y. Minimum Coverage Ratio for each of immediately
preceding 3 years (not less than 2.0 to 1.0 in any year
required)
Year Ending Coverage Ratio
----------- --------------
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
and
iii. During any PPA Term:
x. Average Coverage Ratio for immediately preceding three
year period:
____to____ (not less than 1.5 to 1.0 required)
y. Minimum Coverage Ratio for each of immediately
preceding 3 years (not less than 1.4 to 1.0 in any year
required):
Year Ending Coverage Ratio
----------- --------------
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
z. PPA Term [Describe any applicable PPA or PPAs and terms
thereof]
B. $0, from and after such time as the conditions set forth in
clause (B) of the definition of Additional Liquidity Required
Balance are satisfied.
i. Credit Ratings of the Pass Through Certificates as of the
date hereof:
Moody's _______ (Baa2 minimum required), and
S&P _______ (BBB minimum required)
and
ii. Before and after any PPA Term:
x. Average Coverage Ratio for immediately preceding three
year period:
2
____to____ (not less than 2.5 to 1.0 required)
y. Minimum Coverage Ratio for each of the three
immediately preceding years (not less than 2.0 to 1.0
in any years required):
Year Coverage Ratio
---- --------------
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
iii. During any PPA Term:
x. Average Coverage Ratio for the immediately preceding
three year period:
____to____ (not less than 1.75 to 1.0 required)
y. Minimum Coverage Ratio for each of the three
immediately preceding years (not less than 1.5 to 1.0
in any years required):
Year Ending Coverage Ratio
----------- --------------
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
_________ ____to____
z. PPA Term [Describe any applicable PPA or PPAs and terms
thereof]
3
ANNEX 5-Eighth
SPECIAL RENT RESERVE PERIOD CALCULATIONS
S&P rating of senior unsecured long term debt of
AEE's ultimate parent
--------
(B+ or higher required)
Period for calculations: [Quarter][Year] ended ______,___
Coverage Ratio = CADS for period
------------------------
Fixed Charges for period
= -----
---------------
-----
= --------------
Required Coverage Ratio:
PPA Term: [None][Describe applicable PPA Term]
Required Coverage Ratio: [1.5 to 1.0][1.7 to 1.0] or [Show calculation
of Required Coverage Ratio for a period that
spans a PPA Term]
ANNEX 5-Ninth
COMPLIANCE CERTIFICATE
Section 6.2 of the Participation Agreements
The undersigned, ___________ [Name], hereby certifies that [he/she] is
[a/the] _________ [Title] of AES Eastern Energy, L.P. and that:
1. This Compliance Certificate is delivered to Bankers Trust Company, as
Depositary Agent, pursuant to item 5(ix) of, and forms a part of, the Funding
Date Certificate of AEE dated ____________, ____.
2. All Rent, including Deferrable Payments, payable through and including
the Rent Payment Date (occurring on or after July 2, 2000) on which, or within
10 Business Days of which, a Distribution has been provided for pursuant to such
item 5(ix), has been paid or will be paid after the making of the transfers and
payments provided for in such Funding Date Certificate.
3. The respective amounts on deposit or deemed on deposit pursuant to
Section 3.1 of the Depositary Agreement in the Rent Reserve Account, the
Additional Liquidity Account and the Special Rent Reserve Account are, or after
giving effect to the transfers and payments provided for in such Funding Date
Certificate will be, [equal to] [greater than] the Rent Reserve Account Required
Balance, [equal to] [greater than] the Additional Liquidity Required Balance and
[equal to] [greater than] the Special Rent Reserve Account Required Balance.
4. No Lease Material Default, Lease Event of Default or event of default
under any Permitted Indebtedness will have occurred and be continuing after
giving effect to the transfers and payments provided for in such Funding Date
Certificate.
5. After giving effect to the transfers and payments provided for in such
Funding Date Certificate, no amounts will be outstanding under the Working
Capital Facility.
6. After giving effect to the transfers and payments provided for in such
Funding Date Certificate, AEE will not have any indemnity currently due and
payable under Section 10 of the Participation Agreement or under any other
Operative Document or any obligation to fund the Indemnity Account pursuant to
Section 5.5(e) or Section 5.6 of the Lease.
7. The Coverage Ratios for each of the two semi-annual Rent Payment Periods
immediately preceding the Rent Payment Date referred to in paragraph 2 above
(based on actual operating history) are [equal to] [greater than] the Required
Coverage Ratio, and the Pro Form Coverage Ratios for each of the four
semi-annual periods immediately succeeding such Rent Payment Date (based on Pro
Forma projections) are [equal to] [greater than] the Required Coverage Ratio.
True and correct calculations of such Coverage Ratios, Pro Forma Coverage Ratios
and Required Coverage Ratios are set forth in Exhibit 1 hereto. All calculations
of such Coverage Ratios are Pro Forma for any Permitted Indebtedness, including
the effects of such permitted Indebtedness, and any assets reasonably expected
to be acquired in connection therewith and the consummation of any related
transactions. [Notwithstanding the foregoing, for the purpose of making the
certification in this paragraph 7 on the Rent Payment Date occurring on July 3,
2000, only the semi-annual period immediately preceding such date shall be
relevant.]
8. With respect to the Rail Credit Facility, no event of default will have
occurred and be continuing after giving effect to the transfers and payments
provided for in such Funding Date Certificate, and the remaining term of the
Rail Credit Facility is not less than 30 days, [after the Funding Date referred
to therein.]
IN WITNESS WHEREOF, the undersigned has executed this Compliance
Certificate as of the Report Date of the Funding Date Certificate to which this
Compliance Certificate is annexed.
----------------------------------
Name:
Title:
Exhibit 1
to
Compliance Certificate
Coverage Ratios Calculations
----------------------------
Rent Payment Date:_________
First Preceding Rent Payment Period: ______ to ______
Coverage Ratio = CADS for period
------------------------
Fixed Charges for period
= -----
---------------
-----
= ______ to 1.0
Required Coverage Ratio for such period: _____ to 1.0
Second Preceding Rent Payment Period: ____ to ____
Coverage Ratio = _____
---------------
-----
= ______ to 1.0
Required Coverage Ratio for such period: _____ to 1.0
First Succeeding Semi-Annual Period: ____ to ____
Pro Forma Coverage Ratio = Pro Forma CADS for period
----------------------------------
Pro Forma Fixed Charges for period
= -----
---------------
-----
= ______ to 1.0
Second Succeeding Semi-Annual Period: ____ to ____
Pro Forma Coverage Ratio
= -----
---------------
-----
= ______ to 1.0
Third Succeeding Semi-Annual Period: ____ to ____
Pro Forma Coverage Ratio
= -----
---------------
-----
= ______ to 1.0
Fourth Succeeding Semi-Annual Period: ____ to ____
Pro Forma Coverage Ratio
= -----
---------------
-----
= ______ to 1.0
Attached hereto are (1) the report of the independent consultant selected by AEE
with the approval of each Owner Participants setting forth the assumptions on
which the above Pro Forma calculations are based, and (2) a detailed calculation
of such Pro Forma amounts using such assumptions.
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ANNEX 6
BASIC RENT TRANSFERS
A. Basic Rent Calculations
1. Amount on deposit in Rent Payment
Account after effecting item 5(i)B and
item 5(ii)B transfers $_____________
2. Total Basic Rent due on applicable
Rent Payment Date under all Leases
(other than Deferrable Payments so
long as Lessor Notes payable from such
Basic Rent remain outstanding) $_____________
3. Total Scheduled Payments on such Rent
Payment Date to all Indenture Trustees
under all PUAs $_____________
4. Total Basic Rent Shortfall
= 2- (1+3)
= $---- ($---+$---)
= $---- $---
= $---
B. Indenture Trustee Transfers
Indenture Trustee Basic Rent Transfer
- ----------------- -------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
Total Transfers (= Total Basic Rent Shortfall)
ANNEX 7
PERMITTED INDEBTEDNESS PAYMENTS
Provider of Permitted Indebtedness Amount to be Transferred
- ---------------------------------- ------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
- -------------------- $-----------------------------------
TOTAL $___________________________________
Bank Wire Information for Provider of Permitted Indebtedness:
----------------------
----------------------
--------------
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