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EXHIBIT 10.19
DEPOSIT AND DISBURSEMENT AGREEMENT
among
AES EASTERN ENERGY, L.P.,
AEE 2, L.L.C.,
AES SOMERSET, L.L.C.,
AES CAYUGA, L.L.C.,
AES WESTOVER, L.L.C.,
AES GREENIDGE, L.L.C.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
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,
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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 B-2 and Milliken B-2),
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),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh C-1),
BANKERS TRUST COMPANY,
as Indenture Trustee (Kintigh C-2),
ii
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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 May 1, 1999
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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.............................................................................13
Section 3.3 Working Capital Account.......................................................................14
Section 3.4 Rent Payment Account..........................................................................14
Section 3.5 Debt Repayment Account........................................................................15
Section 3.6 Rent Reserve Account..........................................................................16
Section 3.7 Indemnity Account.............................................................................17
Section 3.8 Deferrable Rent Account.......................................................................17
Section 3.9 Additional Liquidity Account..................................................................18
Section 3.10 Special Rent Reserve Account..................................................................18
Section 3.11 Loss Proceeds Account.........................................................................20
Section 3.12 Payment Deficiencies; Invasion of Accounts....................................................20
Section 3.13 Permitted Investments.........................................................................21
Section 3.14 Account Balance Statements; Payment Undertaking Agreements....................................21
Section 3.15 Instructions to the Depositary Agent..........................................................22
Section 3.16 Lease Event of Default and Indenture Event of Default.........................................22
ARTICLE IV
THE DEPOSITARY AGENT
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5
Section 4.1 Appointment of the Depositary Agent; Powers and Immunities....................................23
Section 4.2 Reliance by the Depositary Agent..............................................................24
Section 4.3 Court Orders..................................................................................25
Section 4.4 Resignation or Removal........................................................................25
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
Section 5.1 Expenses......................................................................................26
Section 5.2 Indemnification...............................................................................26
Section 5.3 Fees..........................................................................................26
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation of Liability.......................................................................27
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments; Etc...............................................................................27
Section 7.2 Addresses for Notices.........................................................................27
Section 7.3 Integration, Etc..............................................................................27
Section 7.4 Headings; Table of Contents; Section References...............................................27
Section 7.5 No Third Party Beneficiaries..................................................................27
Section 7.6 No Waiver.....................................................................................28
Section 7.7 Severability..................................................................................28
Section 7.8 Successors and Assigns........................................................................28
Section 7.9 Execution in Counterparts.....................................................................28
Section 7.10 SPECIAL EXCULPATION...........................................................................28
Section 7.11 GOVERNING LAW.................................................................................28
SCHEDULE
SCHEDULE I Accounts
EXHIBITS
EXHIBIT A Form of Instruction Letter
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DEPOSIT AND DISBURSEMENT AGREEMENT (this "Depositary Agreement") dated
as of May 1, 1999 among (i) AES EASTERN ENERGY, L.P., a limited partnership
organized under the laws of the State of Delaware ("AEE"), (ii) AEE 2, L.L.C., a
limited liability company organized under the laws of the State of Delaware
("AEE 2"), AES SOMERSET, L.L.C., a Delaware limited liability company, AES
Cayuga, L.L.C., a Delaware limited liability company, AES WESTOVER, L.L.C., a
Delaware limited liability company and AES GREENIDGE, L.L.C., (iii) CREDIT
SUISSE FIRST BOSTON, as Working Capital Provider (the "Working Capital
Provider"), (iii) KINTIGH FACILITY TRUST A-1, a Delaware business trust, (iv)
KINTIGH FACILITY TRUST A-2, a Delaware business trust, (v) KINTIGH FACILITY
TRUST B-1, a Delaware business trust, (vi) KINTIGH FACILITY TRUST B-2, a
Delaware business trust, (vii) KINTIGH FACILITY TRUST C-1, a Delaware business
trust, (viii) KINTIGH FACILITY TRUST C-2, a Delaware business trust, (ix)
MILLIKEN FACILITY TRUST A-1, a Delaware business trust, (x) MILLIKEN FACILITY
TRUST A-2, a Delaware business trust, (xii) MILLIKEN FACILITY TRUST B-1, a
Delaware business trust, (xiii) MILLIKEN FACILITY TRUST B-2, a Delaware business
trust, (xiv) MILLIKEN FACILITY TRUST C-1, a Delaware business trust, (xv)
MILLIKEN FACILITY TRUST C-2, a Delaware business trust, (xvi) DCC PROJECT
FINANCE FOURTEEN, INC., as Owner Participant under two Participation Agreements
(Kintigh A-1 and Milliken A-1), (xvii) DCC PROJECT FINANCE FIFTEEN, INC., as
Owner Participant under two Participation Agreements (Kintigh A-2 and Milliken
A-2), (xviii) FIRST CHICAGO LEASING CORPORATION, as Owner Participant under two
Participation Agreements (Kintigh B-1 and Milliken B-1), (xix) FIRST CHICAGO
LEASING CORPORATION, as Owner Participant under two Participation Agreements
(Kintigh B-2 and Milliken B-2), (xx) BANKERS COMMERCIAL CORPORATION, as Owner
Participant under two Participation Agreements (Kintigh C-1 and Milliken C-1),
(xxi) BANKERS COMMERCIAL CORPORATION, as Owner Participant under two
Participation Agreements (Kintigh C-2 and Milliken C-2), (xxii) BANKERS TRUST
COMPANY, a banking corporation organized and existing under the laws of the
State of New York as Depositary Agent (herein, in such capacity, together with
its successors and permitted assigns, the "Depositary Agent"), (xxiii) BANKERS
TRUST COMPANY, a banking corporation organized and existing under the laws of
the State of New York, not in its individual capacity, except as expressly
provided herein, but solely as trustee under each Indenture (herein in its
capacity as trustee under each Indenture, together with its successors and
permitted assigns, the "Indenture Trustee"), and (xxiv) BANKERS TRUST COMPANY, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided herein, but
solely as trustee under each Pass Through Trust Agreement (herein in its
capacity as trustee under each Pass Through Trust Agreement, together with its
successors and permitted assigns, the "Pass Through Trustee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to enter into this Depositary
Agreement to provide for the appointment of a Depositary Agent to administer the
Accounts established herein;
DEPOSITARY AGREEMENT
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS
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 to the
Participation Agreement (Kintigh A-1), dated as of May 1, 1999, by and among AEE
and the other parties thereto as in effect as of the date hereof without regard
to subsequent amendments thereto, and the principles of interpretation set forth
in such Appendix shall apply to such definition.
"Accreted Value" shall have the meaning set forth in each 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).
"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;
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DEPOSITARY AGREEMENT
8
(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:
(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;
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DEPOSITARY AGREEMENT
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(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;
(xi) 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.
["Management Services Agreement" shall mean the Management Services
Agreement dated as of May 6, 1999, between Somerset Railroad and AES Somerset,
L.L.C.]
"Market Termination Amount" shall have the meaning set forth in each
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
(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
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DEPOSITARY AGREEMENT
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(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;
(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;
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DEPOSITARY AGREEMENT
11
(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.
"Replacement Event" shall mean
(a) in the case of any Additional Liquidity Letter of Credit,
either (i) the rating of the senior unsecured long term debt of the issuer of
such Additional Liquidity Letter of Credit having been downgraded below A1 by
Moody's or below A- by S&P, or (ii) the occurrence within the next 15 days of
the expiration date of any Additional Liquidity Letter of Credit and the failure
of AEE to have provided any letter of credit that satisfies the requirements of
an Additional Liquidity Letter of Credit specified in the definition of such
term; and
(b) in the case of any Payment Undertaking Agreement, the
downgrade of the senior unsecured long term debt rating of the PUA Provider to
below Aa3 by Moody's or below AA- by S&P and the failure of the PUA Provider to
provide collateral in an amount equal to or exceeding the amount set forth on a
schedule attached to such Payment Undertaking Agreement.
"Scheduled Payments" shall mean with respect to any Payment Undertaking
Agreement providing for the payment of Basic Rent (other than Deferrable
Payments) the amounts available thereunder for the purpose of paying
installments of Basic Rent (other than Deferrable Payments) in accordance with
the schedule attached thereto.
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DEPOSITARY AGREEMENT
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"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.
THE DEPOSITARY AGENT;
ESTABLISHMENT OF THE ACCOUNTS
The Depositary Agent; Limited Rights of AEE.
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, AEE 2 or any other Person.
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 AEE 2. In no
event shall any amounts or Permitted Investments deposited in or credited to any
Account be registered in the name of AEE or AEE 2, payable to the order of AEE
or AEE 2 or specially indorsed to AEE or AEE 2, except to the extent that the
foregoing have been specially indorsed by AEE or AEE 2, as the case may be, in
blank.
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:
Revenue Account;
Operating Account;
Working Capital Account;
Rent Payment Account;
Debt Repayment Account;
Rent Reserve Account;
Indemnity Account;
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DEPOSITARY AGREEMENT
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Deferrable Payments Account;
Loss Proceeds Account;
Additional Liquidity Account;
Special Rent Reserve Account; and
Distribution Account.
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.
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.
Termination. This Depositary Agreement shall remain in
full force and effect until 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 (i) of the preceding sentence, all amounts held in the
Accounts shall be applied in accordance with Section [3.12(a)], and if this
Depositary Agreement shall terminate as provided
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DEPOSITARY AGREEMENT
14
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 under each
of the Leases for application in accordance with such Indenture. Each Indenture
Trustee shall deliver to the Depositary Agent notice of the discharge 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 forecloses on its Lien with respect to AEE 2 and the
Additional Facilities, the Working Capital Provider's rights and AEE 2's
obligations (to the extent of amounts owed to the Working Capital Provider)
hereunder shall terminate.
THE ACCOUNTS
Revenue Account.
Deposits to the Revenue Account.
Deposits. AEE, AEE 2 and each other AEE Subsidiary
shall, or shall cause, the following amounts to be deposited into the
Revenue Account directly, or if received by AEE, AEE 2 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, [the Management Services
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; (D) all
proceeds from the sale, lease or other disposition of assets by AEE,
AEE 2 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, AEE 2 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.
Instructions. AEE, AEE 2 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 AEE 2, 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 AEE 2 enters into a
PPA, such instructions shall be made pursuant
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DEPOSITARY AGREEMENT
15
to an Instruction Letter in the form of Exhibit A hereto. In the event
that AEE or AEE 2 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 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, AEE 2 or any AEE
Subsidiary, AEE, AEE 2 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, AEE 2 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.
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.
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.
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 (if necessary and 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 be deposited in accordance with this Depositary
Agreement as specified by AEE in such Officer's Certificate.
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DEPOSITARY AGREEMENT
16
Applications and Transfers. The Depositary Agent
shall, on each Funding Date or, with respect to the Operating Account, the
Working Capital Account and the Indemnity Account, from time to time during the
related Funding Period, apply or cause the transfer of monies 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, with respect to the Operating
Account, the Working Capital Account and the Indemnity 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. 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 or, with respect to the
Operating Account, the Working Capital Account and the Indemnity Account, from
time to time during the related Funding Period shall be as follows:
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 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 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 the Participation Agreement, not more than actual fuel
costs plus 125% of the amount set forth in the Annual Operating Budget
(other than fuel costs) with respect to the semi-annual portion of the
calendar year in which such Funding Date Certificate is delivered or
(z) is in accordance with the waiver of each Owner Trust attached to
such Funding Date Certificate, (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
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DEPOSITARY AGREEMENT
17
additional funding, if any, and (C) certifies that such amounts will be
expended only on Operating and Maintenance Costs;
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;
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 less
any Scheduled Payments under the Payment Undertaking Agreements, 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; 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;
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 and
identifying the respective portions thereof determined pursuant to
clauses (a) and (b) of the definition of Rent Reserve Account Required
Balance;
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;
Sixth: On each Funding Date, to the Deferrable Rent
Account, until the amount on deposit therein equals the amount set
forth in a Funding Date Certificate as the
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DEPOSITARY AGREEMENT
18
amount of Deferrable Payments under each of the Leases (A) payable and
remaining unpaid and (B) scheduled to be due on the immediately
succeeding Rent Payment Date;
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;
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
Ninth: On each Rent Payment Date (or, if not on
such date, within five 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.
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, any monies that remain in
the Revenue Account shall be applied to purchase a Special Rent Reserve Account
Payment Undertaking Agreement in accordance with a certificate of a Responsible
Officer of AEE regarding the amount of such Payment Undertaking Agreement and
the identity of the PUA provider. Each Funding Date Certificate with respect to
the transfers specified in Sections 3.1(b), shall take into account investment
gains or losses in each Account and the amount of any prior over-funding or
shortfalls in each Account, to ensure that the aggregate amounts so transferred
to such Account are sufficient to pay the amount due and payable from such
Account on the applicable Funding Date.
Operating Account.
Except as set forth in Section 3.2(c), 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, or from time
to time during the related Funding Period, upon receipt of the Funding Date
Certificate referred to in Section 3.1(b)(i) 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.
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DEPOSITARY AGREEMENT
19
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 in accordance with the priorities set forth in
Section 3.1(b)(ii)-(ix).
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, together with interest then due
under the Working Capital Facility, 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 from the
following sources to the extent available and in the following order of
priority: from, first, a drawing under the Working Capital Facility; second, a
withdrawal from the Working Capital Account, third, a withdrawal from the
Special Rent Reserve Account; fourth, a withdrawal 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.
Working Capital Account.
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 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.
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 on deposit in the Special Rent Reserve Account; second, a
withdrawal of cash 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 as set forth in Section 3.6.
Rent Payment Account.
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DEPOSITARY AGREEMENT
20
Except as set forth in this Section 3.4, 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).
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 such 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.
In the event that amounts on deposit in the Rent Payment
Account, together with all "Scheduled Payments" under, and as defined in, 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
Funding Date) 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 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
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 any Scheduled Payments due on such Rent Payment
Date to such Indenture Trustee 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.
Debt Repayment Account. Except as set forth in this Section
3.5, 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).
After effecting any transfers specified first, in Section
2.3(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
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DEPOSITARY AGREEMENT
21
monies on deposit in the Debt Repayment Account shall be transferred to the
Revenue Account in accordance with Section 3.13 hereof.
Rent Reserve Account.
Each Indenture Trustee confirms receipt on the Closing
Date of an executed, original Rent Reserve Account Payment Undertaking Agreement
in counterparts in respect of the Lease Financing for which it is Indenture
Trustee. 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 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 each such Indenture Trustee as set forth in the 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, (iii) retain
such amount in a segregated non-interest bearing account, and (iv) 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 each Rent Reserve
Account Payment Undertaking Agreement.
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, subject to first, Section 3.12(a) and second, Section
3.10(b) but otherwise in accordance with a Funding Date Certificate of a
Responsible Officer of AEE, first, transfer monies on deposit in the Rent
Reserve Account to the Rent Payment Account and the Debt Repayment Account in
the manner set forth in the proviso of Section 3.1(b)(iii), 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
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DEPOSITARY AGREEMENT
22
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.
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.
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 such amount and transfer such amount to the Revenue Account.
Indemnity Account. After effecting any transfers
specified first, in Section 3.2(c), second, in Section 3.3(b) and third, in
Section 3.12(a), 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.
Deferrable Rent Account.
After effecting any transfers specified first, in
Section 3.2(c), second, in Section 3.3(b) and third, in Section 3.12(a), on or
prior to each Rent Payment Date, the Depositary Agent shall withdraw from the
Deferrable Rent Account the aggregate amount set forth in such 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.
In the event that amounts on deposit in the Deferrable
Rent 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 Rent 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
Rent Account shall be transferred to the Revenue Account in accordance with
Section 3.13 hereof.
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DEPOSITARY AGREEMENT
23
Additional Liquidity Account. The Depositary Agent
confirms receipt of the Additional Liquidity Letter of Credit. Upon obtaining
Actual Knowledge of or 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 Account 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. The Depositary Agent shall
not issue any notice of reduction to the provider of the Additional Liquidity
Letter of Credit reducing the amount available to be drawn thereunder by the
amount available to be demanded under such Special Rent Reserve Account Payment
Undertaking Agreements. 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.
Special Rent Reserve Account.
The Special Rent Reserve Account shall be funded by AEE
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.
In respect of any Rent Payment Date when there are
insufficient monies on deposit in the Rent Payment 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 monies on deposit in the Special Rent Reserve
Account to the Rent Payment 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 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.
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 monies on deposit
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DEPOSITARY AGREEMENT
24
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 in
accordance with Section 3.1 of the Indenture to which such Indenture Trustee is
a party.
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 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 monies 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.
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 on the 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.
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DEPOSITARY AGREEMENT
25
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.
Drawing Events.
Subject first, to Section 3.2(c) and second, to
Section 3.3(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 3.1(b)(iii) is not sufficient to fund in full the amounts to
be transferred to the Rent Payment Account and the Debt Repayment Account in
accordance with such Section, 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:
a transfer of cash on deposit in the Additional
Liquidity Account, to the extent funds are on deposit therein; and
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) 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 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.
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:
a transfer of cash on deposit in the Additional
Liquidity Account, to the extent funds are on deposit therein; and
a drawing under the Additional Liquidity Account
Letter of Credit, to the extent funds are available thereunder.
Subject to Section 3.12(a), if on any Rent Payment
Date, (i) the aggregate amount of monies available to be withdrawn from the
Indemnity Account is not sufficient to pay
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DEPOSITARY AGREEMENT
26
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:
a transfer of cash on deposit in the Additional
Liquidity Account, to the extent funds are on deposit therein; and
a drawing under the Additional Liquidity Account
Letter of Credit, to the extent funds are available thereunder.
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 (or sub-account)
from which such monies came. 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.
Account Balance Statements; Payment Undertaking
Agreements. The Depositary Agent shall maintain records of account balance
statements in respect of, each of 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 and AEE, a statement of the amounts available in each Account and
sub-account maintained under this
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DEPOSITARY AGREEMENT
27
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, each Indenture Trustee shall notify
the Depositary Agent, each Owner Trustee and AEE of the amount available to be
withdrawn on such Rent Payment Date under any Payment Undertaking Agreement
under which such Indenture Trustee is a beneficiary.
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, 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.
Lease Event of Default and Indenture Event of Default.
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.
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.
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DEPOSITARY AGREEMENT
28
(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 Operating Account on each Rent Payment Date in accordance with
Sections 3.1(b)(ii) - (vi).
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 AEE 2 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.
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 AEE 2 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
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
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DEPOSITARY AGREEMENT
29
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 AEE 2, shall be deemed to constitute any representation
or warranty by the Depositary Agent to any other Transaction Party. Each
Transaction Party (other than any other 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.
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,
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DEPOSITARY AGREEMENT
30
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.
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.
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 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
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DEPOSITARY AGREEMENT
31
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.
EXPENSES; INDEMNIFICATION; FEES
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.
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.
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.
26
DEPOSITARY AGREEMENT
32
LIMITATION OF LIABILITY
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.
MISCELLANEOUS
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 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.
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.
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 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.
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.
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.
27
DEPOSITARY AGREEMENT
33
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.
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.
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.
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.
SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY AEE, AEE
2 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 AEE 2
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
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.
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DEPOSITARY AGREEMENT
34
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:________________________________
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
DEPOSITARY AGREEMENT
35
AEE 2, L.L.C.
By:________________________________
Name:
Title:
Address for Notices:
AEE 2, L.L.C.
1001 North 19th Street
Suite 2000
Arlington, VA 22209
Attention: William Luraschi
Telecopier No.: (703) 528-4510
Telephone No.: (703) 522-1315
DEPOSITARY AGREEMENT
36
CREDIT SUISSE FIRST BOSTON,
as Working Capital Provider
By:________________________________
Name:
Title:
Address for Notices:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Thomas Boehlert
Telecopier No.: (212) 325-0982
Telephone No.: (212) 325-9106
DEPOSITARY AGREEMENT
37
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
38
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
39
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
40
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
41
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
42
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
43
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
44
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
45
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
46
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
47
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
48
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
Attention: Ann Roberts
Telecopier No.: (302) 651-8882
Telephone No.: (302) 651-8681
DEPOSITARY AGREEMENT
49
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
DEPOSITARY AGREEMENT
50
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 Fourteen, Inc.
1801 Richards Road
Toledo, OH 43607
Attention: Letitia D. Marth, Esq.
Telecopier No.: (419) 322-7484
Telephone No.: (419) 322-7465
DEPOSITARY AGREEMENT
51
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
One First National Plaza, Suite 0502
Chicago, IL 60670-0502
Attention: Contract Administration
Telecopier No.: (312) 732-2231
Telephone No.: (312) 732-8100
DEPOSITARY AGREEMENT
52
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
One First National Plaza, Suite 0502
Chicago, IL 60670-0502
Attention: Contract Administration
Telecopier No.: (312) 732-2231
Telephone No.: (312) 732-8100
DEPOSITARY AGREEMENT
53
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
Los Angeles, CA 90071
Attention: Bill Moore, Esq.
Telecopier No.: (213) 236-7579
Telephone No.: (213) 236-5544
DEPOSITARY AGREEMENT
54
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
Los Angeles, CA 90071
Attention: Bill Moore, Esq.
Telecopier No.: (213) 236-7579
Telephone No.: (213) 236-5544
DEPOSITARY AGREEMENT
55
BANKERS TRUST COMPANY,
as Depositary Agent
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 4th Floor
New York, NY 10006
Attention: Richard L. Buckwalter
Telecopier No.: (212) 250-6725
Telephone No.: (212) 250-8869
DEPOSITARY AGREEMENT
56
BANKERS TRUST COMPANY,
as each Indenture Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 4th Floor
New York, NY 10006
Attention: Richard L. Buckwalter
Telecopier No.: (212) 250-6725
Telephone No.: (212) 250-8869
DEPOSITARY AGREEMENT
57
BANKERS TRUST COMPANY,
as each Pass Through Trustee
By:________________________________
Name:
Title:
Address for Notices:
Bankers Trust Company
4 Albany Street - 4th Floor
New York, NY 10006
Attention: Richard L. Buckwalter
Telecopier No.: (212) 250-6725
Telephone No.: (212) 250-8869
DEPOSITARY AGREEMENT
58
Schedule I
to
Depositary Agreement
ACCOUNTS
ACCOUNTS Account #
-------- ---------
(a) Revenue Account
(b) Operating Account
(c) Working Capital Account
(d) Rent Payment Account
(e) Debt Repayment Account
(f) Rent Reserve Account
(g) Deferrable Rent Account
(h) Indemnity Account
(i) Loss Proceeds Account
(j) Additional Liquidity Account
(k) Special Rent Reserve Account
(l) Distribution Account
DEPOSITARY AGREEMENT
59
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 Operating Account
(Account No.:)
Re: AEE
Attn:
A-1
60
and (b) with respect to other transfers:
Bankers Trust Company
________________________
________________________
ABA #:
Account No.:
For further credit to: AEE Operating 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 Deposit and
Disbursements Agreement dated as of April __, 1999 (as amended, supplemented or
modified and in effect from time to time) among AEE, AEE 2, Credit Suisse First
Boston, Wilmington Trust Company, [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:
A-2
61
EXHIBIT B to
Depositary Agreement
[Form of Funding Date Certificate]
[to come]
A-3