EXHIBIT 10.7
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture"),
dated as of October 10, 2003, to the Amended and Restated Indenture of Trust,
dated as of November 1, 1994 (as supplemented prior to the date hereof, the
"Tax-Exempt Indenture"), by and between the Martin County Industrial Development
Authority, a body corporate and politic of the State of Florida, as issuer (the
"Authority") and The Bank of New York (as successor trustee to NationsBank of
Florida, N.A.), as tax-exempt trustee (the "Tax-Exempt Trustee"), its Corporate
Trust Division being at The Bank of New York Plaza, 10161 Centurion Parkway,
Jacksonville, Florida 32256. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Tax-Exempt Indenture.
W I T N E S S E T H
WHEREAS, the Authority and the Tax-Exempt Trustee have heretofore
executed and delivered to the Tax-Exempt Trustee the Tax-Exempt Indenture to
provide for the issuance by the Authority of Bonds in order to make a loan to
Indiantown Cogeneration, L.P., a Delaware limited partnership (the
"Partnership"), pursuant to the Authority Loan Agreement in connection with the
Partnership's cogeneration facility located near Indiantown, in Martin County,
Florida;
WHEREAS, contemporaneously with the issuance of the Bonds, 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 and Indiantown Cogeneration Funding
Corporation, a Delaware corporation (the "Company"), 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 Tax-Exempt Indenture and to certain of the Financing Documents, (b) to
clarify in the Tax-Exempt 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 13.01 of the Tax-Exempt Indenture provides that the
Authority and the Tax-Exempt Trustee may at any time, without the consent of the
Bondholders, enter into a supplemental indenture for the purpose of amending,
modifying or altering the terms or provisions set forth in the Tax-Exempt
Indenture for the reasons set forth in such Section 13.01;
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 First Supplemental Indenture has in all
respects been duly authorized, and the Authority, in the exercise of the legal
right and power vested in it, executes this First Supplemental Indenture; and
WHEREAS, pursuant to Section 13.01(a) of the Tax-Exempt Indenture, the
Trustee is authorized to execute and deliver this First 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 First
Supplemental Indenture hereby agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 AMENDMENTS
1. Section 1.01 of the Tax-Exempt 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 Moody's 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
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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, 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 "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".
2. Section 17.01 of the Tax-Exempt Indenture 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
10161 Centurion Parkway
Jacksonville, Florida 32256
Telefax Number: (904) 645-1997
Attention: Trust Division"
ARTICLE II
MISCELLANEOUS
SECTION 2.1 EFFECT OF THE FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture is executed and shall be construed as
an indenture supplemental to the Tax-Exempt Indenture and, as provided in the
Tax-Exempt Indenture, this First Supplemental Indenture forms a part thereof. On
and after the effective date of this First
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Supplemental Indenture, each reference in the Tax-Exempt Indenture to "this
Tax-Exempt Indenture," "hereunder" or "herein" shall mean and be a reference to
the Tax-Exempt Indenture as supplemented by this First Supplemental Indenture.
Except as specifically amended above, the Tax-Exempt Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
SECTION 2.2 OPINION OF BOND COUNSEL AS TO CONDITIONS PRECEDENT
Set forth as Exhibit A hereto is a copy of the Opinions of Bond Counsel
delivered to the Tax-Exempt Trustee in connection with this First Supplemental
Indenture.
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 First Supplemental Indenture
or the due execution hereof by the Authority.
SECTION 2.4 SEVERABILITY
Any term or provision of this First 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 First 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 First 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 FIRST SUPPLEMENTAL INDENTURE 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 First Supplemental
Indenture to be executed by its Chairman and the seal of the Authority to be
impressed hereon and attested by the Secretary of said Authority, and the
Tax-Exempt Trustee has caused this First Supplemental Indenture to be executed
on its behalf and its seal to be impressed hereon and attested, all as of the
day and year first above written.
MARTIN COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ JOHN E. TRANTER
---------------------------------------
Name: John E. Tranter
Title: Chairman
(SEAL)
ATTEST:
/s/ TED ASTOLFI
- ---------------------------------
Secretary
THE BANK OF NEW YORK,
as Tax-Exempt Trustee
By: /s/ SHERYL LEAR
---------------------------------------
Name: Sheryl Lear
Title: Agent
(SEAL)
ATTEST:
[First Supplemental Indenture]
Exhibit A
Opinion(s) of Bond Counsel