EXHIBIT 10.6
EXECUTION VERSION
FIRST AMENDMENT TO COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
FIRST AMENDMENT, dated as of October 10, 2003 (this "AMENDMENT"), to
the COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (the "AGREEMENT") dated as of
November 1, 1994 among CREDIT SUISSE, as agent bank under the Working Capital
Facility, CREDIT SUISSE, as agent bank under the Reimbursement Agreement, BANQUE
NATIONALE DE PARIS, as agent bank under the Debt Service Reserve LOC
Reimbursement Agreement, THE BANK OF NEW YORK (as successor trustee to
NationsBank of Florida, N.A.), as Trustee under the Trust Indenture, dated as of
November 1, 1994, THE BANK OF NEW YORK (as successor tax exempt trustee to
NationsBank of Florida, N.A.), as Tax Exempt Trustee under the Amended and
Restated Indenture of Trust, dated as of November 1, 1994, the XXXXXX COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY, a body corporate and politic organized and
existing under the laws of the State of Florida (the "XXX"), THE BANK OF NEW
YORK (as successor disbursement agent to NationsBank of Florida, N.A.), as
Disbursement Agent under the Disbursement Agreement, INDIANTOWN COGENERATION,
L.P., a Delaware limited partnership (together with its successors and assigns,
the "PARTNERSHIP"), INDIANTOWN COGENERATION FUNDING CORPORATION, a Delaware
corporation (together with its successors and assigns, the "COMPANY"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS (as successor collateral agent to Bankers
Trust Company), as Collateral Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the
Agreement.
WITNESSETH
WHEREAS, the Partnership intends to refinance and/or replace the credit
facilities evidenced by the Working Capital Facility, the Reimbursement
Agreement, and the Debt Service Reserve LOC Reimbursement Agreement referred to
above (such facilities, collectively, the "ORIGINAL CREDIT FACILITIES") pursuant
to certain agreements to be entered into with Credit Lyonnais New York Branch as
agent thereunder and the other parties thereto on or about the date hereof (such
facilities as refinanced or replaced from time to time, the "NEW CREDIT
FACILITIES").
WHEREAS, the Required Senior Creditors have agreed to amend the
Agreement pursuant to Section 8(d), Section 22, and other provisions thereof,
and subject to the terms and conditions set forth herein, to (i) reflect the
particulars of the New Credit Facilities (including making Credit Lyonnais New
York Branch as agent under the New Credit Facilities a Senior Party), (ii)
incorporate the amended defined terms of that certain Third Supplemental
Indenture, dated on or about the date hereof, to the Indenture, (iii) clarify
that the credit facilities represented by the New Credit Facilities may be
replaced from time to time in accordance with the requirements of the applicable
Financing Documents, and (iv) provide that certain Financing Documents may be
amended or modified from time to time in certain circumstances without the
consent of the Required Senior Creditors, the Trustee, the Tax Exempt Trustee,
or the XXX for the purpose of evidencing the termination, amendment,
modification, or replacement of the credit facilities represented by the New
Credit Facilities.
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 hereto do hereby agree
as follows:
SECTION 1. AMENDMENTS TO THE AGREEMENT
1.1 AMENDMENTS TO THE FIRST PARAGRAPH.
The first paragraph of the Agreement, appearing immediately
before the "Preliminary Statements" of the Agreement, is hereby amended by
deleting such paragraph in its entirety and inserting in lieu thereof the
following:
"This COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this "Agreement"),
dated as of November 1, 1994, among CREDIT LYONNAIS NEW YORK BRANCH, as
agent bank (together with its successors, assigns and replacements)
under the Reimbursement Agreement, CREDIT LYONNAIS NEW YORK BRANCH, as
agent bank (together with its successors, assigns and replacements)
under the Debt Service Reserve LOC Reimbursement Agreement, CREDIT
LYONNAIS NEW YORK BRANCH, as agent bank (together with its successors,
assigns and replacements) under the Working Capital Facility, THE BANK
OF NEW YORK (successor trustee to NationsBank of Florida, N.A.), as
Trustee under the Trust Indenture dated as of November 1, 1994
(together with its successors and assigns the "Trustee"), THE BANK OF
NEW YORK (successor trustee to NationsBank of Florida, N.A.), as
Trustee under the Amended and Restated Indenture of Trust (together
with its successors and assigns, the "Tax Exempt Trustee"), the XXXXXX
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a body corporate and politic
organized and existing under the laws of the State of Florida (together
with its successors and assigns, the "XXX"), THE BANK OF NEW YORK
(successor disbursement agent to NationsBank of Florida, N.A.), as
Disbursement Agent (together with its successors and assigns, the
"Disbursement Agent") under the Disbursement Agreement, INDIANTOWN
COGENERATION, L.P., a Delaware limited partnership (together with its
successors and assigns, the "Partnership"), INDIANTOWN COGENERATION
FUNDING CORPORATION, a Delaware corporation (together with its
successors and assigns, the "Company," the Company together with the
Partnership is herein collectively referred to as the "Borrowers"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS (successor collateral agent to
Bankers Trust Company), as Collateral Agent (together with its
successors and assigns, the "Collateral Agent")."
1.2 AMENDMENTS TO THE PRELIMINARY STATEMENTS.
A. Preliminary Statement 6 is hereby amended by deleting such
preliminary statement in its entirety and inserting in lieu thereof the
following:
"6. The Partnership intends to finance certain working capital
requirements of the Project pursuant to a Revolving Credit Agreement,
dated as of October ___,
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2003, among the Partnership, each of the banks and financial
institutions identified therein and the Working Capital Provider, as
agent."
B. Preliminary Statement 7 is hereby amended by
deleting the second sentence thereof in its entirety and inserting in lieu
thereof the following:
"The LOC Provider has agreed to issue Letters of Credit subject to the
terms and conditions contained in the Letter of Credit and
Reimbursement Agreement, dated as of October ___, 2003, among the
Partnership, each of the banks and financial institutions identified
therein and the LOC Provider, as agent."
C. Preliminary Statement 8 is hereby amended by
deleting the second sentence thereof in its entirety and inserting in lieu
thereof the following:
"The Debt Service Reserve Letter of Credit Provider has agreed to issue
a Debt Service Reserve Letter of Credit subject to the terms and
conditions contained in the Debt Service Reserve Letter of Credit and
Reimbursement Agreement, dated as of October ___, 2003, among the
Partnership, each of the banks and financial institutions identified
therein and the Debt Service Reserve Letter of Credit Provider, as
agent."
1.3 AMENDMENTS TO SECTION 1: DEFINITIONS.
A. Section 1 of the Agreement is hereby amended by deleting the
third sentence thereof in its entirety and inserting in lieu thereof the
following:
"Capitalized terms not otherwise defined herein shall have the meanings
set forth in that certain Trust Indenture, dated as of November 1, 1994, and
supplemented by that certain Third Supplemental Indenture, dated on or about
October ___, 2003, among the Partnership, the Company, and the Trustee
(collectively, the "Indenture"), in the form of such terms as they exist on the
date of and giving effect to such Third Supplemental Indenture; provided,
however, that defined terms from the Indenture that have been added or amended
subsequent to the date of such Third Supplemental Indenture shall have such
added or amended meanings herein upon compliance with the provisions of Section
8(d) hereof."
B. Section 1 of the Agreement is hereby further amended by
deleting the definitions of "Debt Service Reserve Letter of Credit," "Debt
Service Reserve Letter of Credit Provider," "Debt Service Reserve LOC
Reimbursement Agreement," "Letters of Credit," "LOC Provider," "Reimbursement
Agreement," and "Working Capital Provider" in their respective entireties and by
deleting the definition of "Working Capital Facility" in its entirety and
inserting in lieu thereof the following:
""Working Capital Facility" means the Revolving Credit Agreement, dated
as of October ___, 2003, among the Partnership, the Banks (as defined
therein) party
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thereto from time to time, and Credit Lyonnais New York Branch, as
agent, and any replacement agreement under or pursuant to which funds
not to exceed $15,000,000 in principal amount for the working capital
needs of the Project are provided, which funds may be used solely to
pay Operation and Maintenance Costs and principal, interest, fees,
expenses and other amounts payable by the Partnership under such
agreement, in each case as any such agreement may be amended, modified,
or supplemented from time to time."
1.4 AMENDMENTS TO SECTION 7: RIGHTS OF SENIOR PARTIES.
Section 7 of the Agreement is hereby amended by deleting the
words "(upon receipt of Senior Creditor Certificates from the Required Senior
Creditors)" and inserting in lieu thereof the words "(upon receipt of Senior
Creditor Certificates from the Required Senior Creditors unless such
certificates are not required under Section 8(d) of this Agreement or under the
Disbursement Agreement)".
1.5 AMENDMENTS TO SECTION 8: APPOINTMENT AND DUTIES OF
COLLATERAL AGENT, APPOINTMENT AND DUTIES OF
DISBURSEMENT AGENT UNDER THE SECURITY DOCUMENTS.
Section 8(d) is hereby amended by inserting the following
after the ")" and prior to the "." at the end of such section:
"; and provided, further, that no consent of (nor, for the avoidance of
doubt, any Senior Creditor Certificate from) the Required Senior
Creditors (or, for the avoidance of doubt, any consent of the Trustee,
the Tax Exempt Trustee, or the XXX) shall be required for purposes of
any amendment or modification of any provision of (A) this Agreement,
the Mortgage, or the Security Agreement to the extent that (1) such
amendment or modification concerns the termination, amendment,
modification, or replacement of any of the Debt Service Reserve LOC
Reimbursement Agreement, the Reimbursement Agreement, or the Working
Capital Facility to reflect a substitute provider(s) of any such
facility and (2) the Partnership certifies to each of the Trustee and
the Tax Exempt Trustee (on which such certificate the Trustee and the
Tax Exempt Trustee may conclusively rely) that such termination,
amendment, modification, or replacement is not reasonably expected to
reduce the likelihood of payment of the Securities or Tax Exempt Bonds,
as applicable, or otherwise to have a material adverse effect upon the
holders of the Securities or the Tax Exempt Bonds, as applicable, or
(B) the Disbursement Agreement, to the extent provided therein, and in
each such case the Collateral Agent and/or the Disbursement Agent, as
applicable, may conclusively rely on the certificate of the Partnership
described above and shall enter into such amendment or modification of
such agreement".
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1.6 AMENDMENT TO SECTION 17: NOTICES.
Section 17 is hereby amended by deleting the notice address of
each of the Trustee, the Tax Exempt Trustee, and the Disbursement Agent
appearing therein and inserting in lieu thereof the following:
"The Bank of New York
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Trust Division"
SECTION 2. MISCELLANEOUS
2.1 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.
2.2 SEPARATE COUNTERPARTS.
This Amendment 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. Delivery
by facsimile of a signed copy of this Amendment shall have the same effect as
delivery of a manually executed counterpart.
2.3 BENEFIT OF AGREEMENT.
All covenants, agreements, conditions, obligations, liabilities, terms
and provisions contained herein shall be binding upon, and inure to the benefit
of, the parties and their respective successors, assigns and replacements.
Nothing in this Amendment, whether express or implied, shall be construed to
give any Person other than the parties hereto any legal, equitable or other
right, privilege, remedy, claim or demand to, under or in respect of this
Amendment.
2.4 HEADINGS.
The article and section headings herein are for convenience only and
shall not affect the construction hereof.
2.5 GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
ENTIRELY WITHIN XXX XXXXX XX XXX
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XXXX, XXXXXXX REGARD TO PRINCIPLES OF CONFLICT OF LAWS, OTHER THAN GENERAL
OBLIGATIONS LAW SECTION 5-1401.
2.6 EFFECT OF THIS AMENDMENT.
On and after the effective date of this Amendment, each reference in
the Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of
like import referring to the Agreement, and each reference in the other
Financing Documents to the "Intercreditor Agreement", "thereunder", "thereof" or
words of like import referring to the Agreement shall mean and be a reference to
the Agreement as amended by this Amendment. Except as specifically amended
above, the Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. XXXXXX XXXXXX
------------------------------------
Name: F. Xxxxxx Xxxxxx
Title: Vice President
INDIANTOWN COGENERATION
FUNDING CORPORATION
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Tax Exempt Trustee
By: /s/ XXXXXX XXXX
------------------------------------
Name: Xxxxxx Xxxx
Title: Agent
THE BANK OF NEW YORK,
as Trustee
By: /s/ XXXXXX XXXX
------------------------------------
Name: Xxxxxx Xxxx
Title: Agent
THE BANK OF NEW YORK,
as Disbursement Agent
By: /s/ XXXXXX XXXX
------------------------------------
Name: Xxxxxx Xxxx
Title: Agent
[First Amendment to Collateral Agency and Intercreditor Agreement]
CREDIT LYONNAIS NEW YORK BRANCH,
as agent bank under the Reimbursement
Agreement and as a Senior Party
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as agent bank under the Working Capital
Facility and as a Senior Party
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as agent bank under the Debt Service
Reserve LOC Reimbursement Agreement and
as a Senior Party
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ XXX XXXXXXX
------------------------------------
Name: Xxx Xxxxxxx
Title: Secretary
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Collateral Agent
By: /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
[First Amendment to Collateral Agency and Intercreditor Agreement]
ACKNOWLEDGED AND AGREED
as of the date first above written:
BNP PARIBAS (f/k/a BANQUE
NATIONALE DE PARIS), as agent bank
under the original Debt Service Reserve
LOC Reimbursement Agreement
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON (f/k/a
CREDIT SUISSE), as agent bank under the
original Reimbursement Agreement and
Working Capital Facility
By: /s/ XXXXX X. XXXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
[First Amendment to Collateral Agency and Intercreditor Agreement]
