EXHIBIT 10.8
EXECUTION VERSION
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Third Supplemental Indenture"),
dated as of October 10, 2003, to the Trust Indenture, dated as of November 1,
1994 (as supplemented prior to the date hereof, the "Indenture"), among
Indiantown Cogeneration, L.P., a Delaware limited partnership (the
"Partnership"), its executive office and mailing address being at 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Indiantown Cogeneration Funding Corporation, a
Delaware corporation (the "Company"), its executive office and mailing address
being at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, and The Bank of New
York, as successor trustee to NationsBank of Florida, N.A. (the "Trustee"), its
Corporate Trust Division being at The Bank of New York Plaza, 00000 Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000. Capitalized terms used in this Third
Supplemental Indenture without definition shall have the meaning ascribed
thereto in the Indenture.
W I T N E S S E T H
WHEREAS, the Company, the Partnership, and the Trustee have heretofore
executed and delivered to the Trustee the Indenture to provide for the issuance
from time to time of the Company's and the Partnership's Securities to be issued
in one or more series;
WHEREAS, the Company, the Partnership, and the Trustee entered into
that certain First Supplemental Indenture, dated as of November 1, 1994 (the
"First Supplemental Indenture"), providing for the issuance of ten (10) separate
series of Securities having the designation, form, terms, and provisions set
forth in such First Supplemental Indenture;
WHEREAS, contemporaneously with the issuance of the Securities, 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 Company and the Partnership desire (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 Indenture and to certain of the Financing Documents, (b) to clarify in the
Indenture and in certain of the Financing Documents the Company's and 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 11.1 of the Indenture provides that the Partnership
and the Company, in each case when authorized by a Board Resolution, and the
Trustee may at any time, without the consent of the holders of any Securities,
enter into a supplemental indenture for the purpose of amending the Indenture in
connection with any of the purposes permitted under such section;
WHEREAS, all acts and things necessary to constitute these presents a
valid and binding supplemental indenture according to its terms have been done
and performed and the execution of this Third Supplemental Indenture has in all
respects been duly authorized, and the Company and the Partnership, in the
exercise of the legal right and power vested in them, execute this Third
Supplemental Indenture; and
WHEREAS, pursuant to Section 11.1(i) of the Indenture, the Trustee is
authorized to execute and deliver this Third Supplemental Indenture;
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 Third
Supplemental Indenture hereby agree as follows:
ARTICLE I.
AMENDMENTS
SECTION 1.1 AMENDMENTS
1. The first paragraph of the Indenture is hereby amended by
deleting the words "NATIONSBANK OF FLORIDA, N.A. as Trustee (the "Trustee"), its
corporate trust office and mailing address being at Xxx Xxxxxxxxx Xxxxx, 00xx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000" and inserting in lieu thereof the
following:
"THE BANK OF NEW YORK, as Trustee (the "Trustee"), its corporate trust
office and mailing address being at 00000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000"
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2. Section 1.1 of the Indenture 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."
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 10, 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."
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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 10, 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".
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 10, 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."
ARTICLE II.
MISCELLANEOUS
SECTION 2.1 EFFECT OF THE THIRD SUPPLEMENTAL INDENTURE
This Third Supplemental Indenture is executed and shall be construed as
an indenture supplemental to the Indenture and, as provided in the Indenture,
this Third Supplemental Indenture forms a part thereof. On and after the
effective date of this Third Supplemental Indenture, each reference in the
Indenture to "this Indenture," "hereunder" or "herein" shall mean and be a
reference to the Indenture as supplemented by this Third Supplemental Indenture.
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Except as specifically amended above, the Indenture shall remain in full force
and effect and is hereby ratified and confirmed.
SECTION 2.2 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
a. Set forth as Exhibit A hereto is a copy of the
Officer's Certificate delivered to the Trustee in connection with this Third
Supplemental Indenture.
b. Set forth as Exhibit B hereto is a copy of the
Opinion of Counsel delivered to the Trustee in connection with this Third
Supplemental Indenture.
SECTION 2.3 CONCERNING THE TRUSTEE
The Trustee shall not be responsible in any manner for or with respect
to the validity or sufficiency of this Third Supplemental Indenture or the due
execution hereof by the Company or the Partnership, or for or with respect to
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company and the Partnership.
SECTION 2.4 SEVERABILITY
Any term or provision of this Third Supplemental Indenture 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 Third Supplemental Indenture 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 Third Supplemental
Indenture shall have the same effect as delivery of a manually executed
counterpart.
SECTION 2.6 EFFECT OF HEADINGS
The article and section headings herein are for convenience only and
shall not affect the construction hereof.
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SECTION 2.7 GOVERNING LAW
THIS THIRD SUPPLEMENTAL INDENTURE 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 THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS, OTHER THAN GENERAL OBLIGATIONS LAW SECTION
5-1401.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental
Indenture to be duly executed by their respective duly authorized officers as of
the date and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. XXXXXX XXXXXX
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Name: F. Xxxxxx Xxxxxx
Title: Vice President
INDIANTOWN COGENERATION FUNDING CORPORATION
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ XXXXXX XXXX
-----------------------------------
Name: Xxxxxx Xxxx
Title: Agent
Exhibit A
Officer's Certificate
Exhibit B
Opinion of Counsel
