EXHIBIT 10.5
EXECUTION VERSION
FIRST AMENDMENT TO AMENDED AND RESTATED
AUTHORITY LOAN AGREEMENT
FIRST AMENDMENT, dated as of October 10, 2003 (this "AMENDMENT"), to
the AMENDED AND RESTATED AUTHORITY LOAN AGREEMENT (the "AUTHORITY LOAN
AGREEMENT"), dated as of November 1, 1994, between the XXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, a body corporate and politic of the State of Florida
(together with its successors and assigns, the "AUTHORITY"), and INDIANTOWN
COGENERATION, L.P., a Delaware limited partnership (together with its successors
and assigns, the "PARTNERSHIP"). Capitalized terms used herein not otherwise
defined herein or otherwise amended hereby shall have the meanings ascribed
thereto in the Authority Loan Agreement.
WITNESSETH
WHEREAS, the Authority and the Partnership have heretofore executed and
delivered the Authority Loan Agreement to provide for the loan by the Authority
to the Partnership of the proceeds of the Bonds issued by the Authority pursuant
to the Tax Exempt Indenture in connection with the Partnership's cogeneration
facility located near Indiantown, in Xxxxxx County, Florida;
WHEREAS, contemporaneously with the issuance of the Bonds and the
making of such loan, the Partnership entered into (a) that certain Debt Service
Reserve Letter of Credit and Reimbursement Agreement among the Partnership, the
banks named therein, and Banque Nationale de Paris, as agent, dated as of
November 1, 1994, (b) that certain Letter of Credit and Reimbursement Agreement
among the Partnership, the banks named therein, and Credit Suisse, as agent,
dated as of November 1, 1994, and (c) that certain Revolving Credit Agreement
among the Partnership, the banks named therein, and Credit Suisse, as agent,
dated as of November 1, 1994 (all of the aforementioned credit facilities
collectively, the "ORIGINAL CREDIT FACILITIES");
WHEREAS, the Partnership desires (a) to replace the Original Credit
Facilities with credit facilities on substantially the same terms as those of
the Original Credit Facilities (such replacement facilities, the "NEW CREDIT
FACILITIES") and to make certain conforming and other changes to the Authority
Loan Agreement and to certain of the Financing Documents, (b) to clarify in the
Authority Loan Agreement and in certain of the Financing Documents the
Partnership's right to replace the New Credit Facilities from time to time, and
(c) in connection with such replacement of the Original Credit Facilities and
future replacements thereof to provide for the repayment of amounts outstanding
under such facilities and the payment of transaction expenses related to any
such replacement on dates other than an Interest Payment Date;
WHEREAS, Section 10.5 of the Authority Loan Agreement and Section 15.01
of the Tax Exempt Indenture provide that the Authority and the Tax Exempt
Trustee may at any time, without the consent of the Bondholders, enter into an
agreement for the purpose of amending, modifying or altering the Authority Loan
Agreement in a manner not inconsistent with the terms and provisions thereof;
WHEREAS, all acts and things necessary to constitute these presents a
valid and binding amendment according to its terms have been done and performed
and the execution of this Amendment has in all respects been duly authorized;
and
WHEREAS, pursuant to Section 10.5 of the Authority Loan Agreement and
Section 15.01(a) of the Tax Exempt Indenture, the Authority and the Tax Exempt
Trustee are authorized to execute and deliver this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
hereby agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 AMENDMENTS
1. Section 1.1 of the Authority Loan Agreement is hereby amended as
follows:
a. The definition of "Debt Service Reserve Letter of
Credit" is hereby deleted in its entirety and the following is inserted in lieu
thereof:
""Debt Service Reserve Letter of Credit" means one or more irrevocable,
direct pay letters of credit issued by any financial institution with a
rating of "A" or higher by S&P and "A2" or higher by Xxxxx'x in favor
of the Disbursement Agent, secured by the Collateral ratably with the
other senior secured indebtedness of the Partnership."
b. The definition of "Debt Service Reserve Letter of
Credit Provider" is hereby deleted in its entirety and the following is inserted
in lieu thereof:
""Debt Service Reserve Letter of Credit Provider" means the banks and
financial institutions providing or otherwise participating in any Debt
Service Reserve Letter of Credit under or pursuant to any Debt Service
Reserve LOC Reimbursement Agreement."
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c. The definition of "Debt Service Reserve LOC
Reimbursement Agreement" is hereby deleted in its entirety and the following is
inserted in lieu thereof:
""Debt Service Reserve LOC Reimbursement Agreement" means the Debt
Service Reserve Letter of Credit and Reimbursement Agreement, dated as
of October ___, 2003, among the Partnership, the Initial Bank and the
Banks (each as defined therein) party thereto from time to time, and
Credit Lyonnais New York Branch, as agent, and any replacement
agreement under or pursuant to which any Debt Service Reserve Letter of
Credit is provided, in each case as any such agreement may be amended,
modified, or supplemented from time to time."
d. The definition of "Disbursement Agreement" is hereby
amended by inserting immediately prior to the period appearing at the end
thereof the following:
", as the same may be amended, modified or supplemented from time to
time".
e. The definition of "LOC Provider" is hereby deleted in
its entirety and the following is inserted in lieu thereof:
""LOC Provider" means the banks and financial institutions providing or
otherwise participating in any of the Letters of Credit under or
pursuant to any Reimbursement Agreement."
f. The definition of "Reimbursement Agreement" is hereby
deleted in its entirety and the following is inserted in lieu thereof:
""Reimbursement Agreement" means the Letter of Credit and Reimbursement
Agreement, dated as of October ___, 2003, among the Partnership, the
Initial Bank and the Banks (each as defined therein) party thereto from
time to time, and Credit Lyonnais New York Branch, as agent, and any
replacement agreement under or pursuant to which any of the Letters of
Credit is provided, in each case as any such agreement may be amended,
modified, or supplemented from time to time."
g. The definition of "Security Agreement" is hereby
amended by inserting immediately prior to the period appearing at the end
thereof the following:
", as the same may be amended, modified or supplemented from time to
time".
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h. The definition of "Working Capital Facility" is
hereby deleted in its entirety and the following is inserted in lieu thereof:
""Working Capital Facility" means the Revolving Credit Agreement, dated
as of October ___, 2003, among the Partnership, the Banks (as defined
therein) party thereto from time to time, and Credit Lyonnais New York
Branch, as agent, and any replacement agreement under or pursuant to
which funds for the working capital needs of the Project are provided,
in each case as any such agreement may be amended, modified, or
supplemented from time to time."
i. The definition of "Working Capital Provider" is
hereby deleted in its entirety and the following is inserted in lieu thereof:
""Working Capital Provider" means any Person providing funds for the
working capital needs of the Partnership pursuant to a Working Capital
Facility."
2. Section 10.1 of the Authority Loan Agreement is hereby amended by
deleting the notice address for the Tax Exempt Trustee appearing therein and
inserting in lieu thereof the following:
"The Bank of New York
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Telefax Number: (000) 000-0000
Attention: Trust Division"
ARTICLE II
MISCELLANEOUS
SECTION 2.1 EFFECT OF THIS AMENDMENT
This Amendment is executed and shall be construed as an amendment to
the Authority Loan Agreement and, as provided in the Authority Loan Agreement
and the Tax Exempt Indenture forms a part thereof. On and after the effective
date of this Amendment, each reference in the Authority Loan Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import referring to
the Authority Loan Agreement, and each reference in the other Financing
Documents to the "Authority Loan Agreement", "thereunder", "thereof" or words of
like import referring to the Authority Loan Agreement, shall mean and be a
reference to the Authority Loan Agreement as amended by this Amendment.
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SECTION 2.2 OPINION OF BOND COUNSEL AS TO CONDITIONS PRECEDENT
Set forth as Exhibit A hereto is a copy of the Opinion of Bond Counsel
delivered to the Tax Exempt Trustee in connection with this Amendment.
SECTION 2.3 CONCERNING THE TAX EXEMPT TRUSTEE
The Tax Exempt Trustee shall not be responsible in any manner for or
with respect to the validity or sufficiency of this Amendment or the due
execution hereof by the Partnership or the Authority, or for or with respect to
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Partnership and the Authority.
SECTION 2.4 SEVERABILITY
Any term or provision of this Amendment that is invalid, illegal,
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity, illegality, prohibition or
unenforceability without invalidating the remaining terms and provisions hereof,
and any such invalidity, illegality, prohibition or unenforceability in any
jurisdiction shall not invalidate or render prohibited or unenforceable such
term or provision in any other jurisdiction.
SECTION 2.5 COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original;
but all such counterparts shall together constitute but one and the same
instrument. Delivery by facsimile of a signed copy of this Amendment shall have
the same effect as delivery of a manually executed counterpart.
SECTION 2.5 HEADINGS
The article and section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 2.7 GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF FLORIDA, AS APPLIED TO CONTRACTS MADE AND PERFORMED
ENTIRELY WITHIN THE STATE OF FLORIDA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
[signature page follows]
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IN WITNESS WHEREOF, the Authority has caused this Amendment to the
Authority Loan Agreement to be executed by its Chairman and the seal of the
Authority to be hereunto affixed and attested by its Secretary, and the
Partnership has duly caused this Amendment to the Authority Loan Agreement to be
executed by its duly authorized officer, as of the day and year first above
written.
XXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ XXXX X. XXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
(SEAL)
ATTEST:
/s/ XXX XXXXXXX
---------------------------
Secretary
INDIANTOWN COGENERATION, L.P.
By: /s/ F. XXXXXX XXXXXX
-------------------------
Name: F. Xxxxxx Xxxxxx
Title: Vice President
The foregoing Amendment is hereby accepted and acknowledged by The Bank of New
York, as Tax Exempt Trustee.
THE BANK OF NEW YORK,
as Tax Exempt Trustee
By: /s/ XXXXXX XXXX
-------------------------
Name: Xxxxxx Xxxx
Title: Agent
[First Amendment to Authority Loan Agreement]
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Exhibit A
Opinion of Bond Counsel
