EXHIBIT 4.22
================================================================================
EXECUTION COPY
-----------------
SECOND SUPPLEMENTAL TRUST INDENTURE
Dated as of January 14, 1998
to
TRUST INDENTURE
Dated as of November 15, 1994
as supplemented by
FIRST SUPPLEMENTAL TRUST INDENTURE
Dated as of November 15, 1994
-----------------
among
IEC FUNDING CORP.,
NORTHEAST ENERGY ASSOCIATES, A LIMITED PARTNERSHIP,
NORTH JERSEY ENERGY ASSOCIATES, A LIMITED PARTNERSHIP,
and
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
------------------
================================================================================
SECOND SUPPLEMENTAL TRUST INDENTURE (this "Second Supplemental Indenture"),
dated as of January 14, 1998, by and among IEC FUNDING CORP., a Delaware
corporation (together with its successors and assigns, the "Company"), its
executive office and mailing address being at 350 Lincoln Place, Hingham,
Massachusetts 02043, NORTHEAST ENERGY ASSOCIATES, A LIMITED PARTNERSHIP, a
Massachusetts limited partnership ("NEA"), its executive office and mailing
address being at 350 Lincoln Place, Hingham, Massachusetts 02043, NORTH JERSEY
ENERGY ASSOCIATES, A LIMITED PARTNERSHIP ("NJEA," and together with NEA, the
"Partnerships"), its executive office and mailing address being at 350 Lincoln
Place, Hingham, Massachusetts 02043, and STATE STREET BANK AND TRUST COMPANY, as
trustee (the "Trustee"), its corporate trust office and mailing address being at
2 International Place, Boston, Massachusetts 02110, Attention: Corporation Trust
Department, to the Trust indenture (the "Original Indenture"), as supplemented
by the First Supplemental Indenture (the "First Supplemental Indenture"), each
dated as of November 15, 1994, by and among the Company, the Partnerships and
the Trustee relating to the Company's 8.43% Senior Secured Notes due 2000, 9.16%
Senior Secured Notes due 2002, 9.32% Senior Secured Bonds due 2007 and 9.77%
Senior Secured Bonds due 2010, in the aggregate principal amount of $560,000,000
(collectively, the "Bonds").
Capitalized terms used herein without definition shall have the meanings
assigned thereto in the Original Indenture.
WITNESSETH:
WHEREAS, Intercontinental Energy Corporation, a Delaware corporation and
the sole general partner of each Partnership ("IEC"), and the limited partners
of each Partnership, as sellers (collectively, the "Sellers"), and Northeast
Energy, LP, a Delaware limited partnership ("NE LP"), Northeast Energy, LLC, a
Delaware limited liability company ("NE LLC"), ESI Northeast Energy Funding,
Inc., a Florida corporation ("ESI Funding") and Tractebel Power, Inc.
("Tractebel"), a Delaware corporation, as buyers (collectively, the "Buyers")
have entered into the Purchase Agreement dated as of November 21, 1997 (the
"Purchase Agreement"), pursuant to which NE LP and NE LLC agreed to purchase
from the Sellers (upon the satisfaction of the conditions set forth in the
Purchase Agreement) all of the general and limited partnership interests in the
Partnerships and ESI Funding and Tractebel agreed to purchase (upon the
satisfaction of the conditions set forth in the Purchase Agreement) 7,500 issued
and outstanding shares of common stock of the Company (the "Acquisition").
WHEREAS, in connection with the Acquisition and as a condition precedent to
the consummation thereof, the Company, the Partnerships and the Trustee wish to
enter into this Second Supplemental Indenture in order to implement certain
amendments to the Original
1
Indenture, which, among other things, (a) permit IEC and the persons who, prior
to the consummation of the Acquisition, are the limited partners of NEA and NJEA
(the "Original Limited Partners") to sell to one more of the Buyers all of their
general and limited partnership interests in the Partnerships and all of their
shares of common stock of the Company, (b) permit the substitution for the cash
collateral that secures the Partnerships' obligations relating to the Letters of
Credit of one or more guarantees (the "FPL Capital Guarantees") of FPL Group
Capital Inc., an affiliate of ESI Energy, Inc. (instead of or together with one
or more Back-up Letters of Credit currently permitted by the Original Indenture
to be substituted for such cash collateral), (c) permit the immediate release to
the General Partner or at the direction of the General Partner of such cash
collateral upon the substitution for such cash collateral of one or more Back-up
Letters of Credit and/or one or more FPL Capital Guarantees, (d) permit the
immediate release to the General Partner or at the direction of the General
Partner of any cash released from the Debt Service Reserve Fund upon a
substitution therefor, in accordance with the Original Indenture, of one or more
Substitute Letters of Credit, and (e) permit the payment as an Operating Expense
of fuel management fees to be paid under a Fuel Management Agreement to ESI
Northeast Fuel Management, Inc., an affiliate of ESI Energy, Inc.
WHEREAS, the Consent Solicitation Statement dated as of December 4, 1997
(the "Consent Solicitation Statement") stated that the requisite Holders'
consent to any of the proposed amendments described therein will be deemed to
constitute (i) a waiver of any other provisions of the Original Indenture, as
supplemented by the First Supplemental Indenture, and of any related financing
documents that may be inadvertently breached as a result of the Acquisition and
(ii) an authorization and a direction to the Trustee to execute all of the
related amendments to the Transaction Documents;
WHEREAS, Section 13.2 of the Original Indenture provides that with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Bonds of all series then Outstanding, considered as one class, by Act of
said Holders delivered to the Company and the Partnerships and the Trustee, the
Company and the Partnerships may, upon authorization evidenced by a resolution
of the Company's Board of Directors or a resolution of the Management Committee
of the General Partner, on behalf of the Partnerships, as the case may be, and
the Trustee shall, subject to certain conditions set forth in Sections 13.3 and
13.4 of the Original Indenture, enter into an indenture or indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any manner or eliminating or waiving any of the provisions of the Original
Indenture;
WHEREAS, the written consents of the Holders (other than Affiliates of the
Company) of 99.56% in aggregate principal amount outstanding of the Bonds,
treated as one class, have been delivered to the Trustee in accordance with
Sections 1.4 and 13.2 of the Original Indenture
2
and the documents described in Section 1.2, 13.2 and 13.4 of the Original
Indenture have been provided to the Trustee;
WHEREAS, the Company and the Partnerships desire to implement the proposed
amendments in respect of which, pursuant to the Consent Solicitation Statement,
the requisite Holders have given their consent, and have requested that the
Trustee join them in the execution of this Second Supplemental Indenture;
WHEREAS, the Board of Directors of the Company and the Management Committee
of the General Partner of the Partnerships have authorized the execution of this
Second Supplemental Indenture;
WHEREAS, all action on the part of the Company and the Partnerships
necessary to amend the Original Indenture and execute and deliver this Second
Supplemental Indenture (the Original Indenture, as supplemented by the First
Supplemental Indenture and as supplemented and amended by this Second
Supplemental Indenture, being hereinafter referred to as the "Indenture") have
been duly taken by each of the Company and the Partnerships, and each of the
Company and the Partnerships, in the exercise of the legal right and power
vested in it, is executing this Second Supplemental Indenture.
NOW, THEREFORE, the Trustee hereby joins the Company and the Partnerships
in the execution and delivery of this Second Supplemental Indenture in order to
amend the Original Indenture as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 Amendments to Provisions. The Original Indenture, as
supplemented by the First Supplemental Indenture, is hereby amended as follows:
(a) Definitions; Construction. Section 1.1(g) of the Original
Indenture is hereby amended by inserting after the word "supplemented",
which appears in the fifth line thereof, and before the word "or", which
appears in the sixth line thereof, the word "assigned".
(b) Debt Service Reserve Fund. Section 4.10(b) of the Original
Indenture is hereby amended by inserting after the words "upon any
Substitute Letter of Credit", which appear at the end thereof, the
following language:
3
Notwithstanding any provision of the Indenture to the contrary, in the
event that a Substitute Letter of Credit is issued to replace cash or
Permitted Investments then on deposit in the Debt Service Reserve Fund
(and if, upon the issuance of such Substitute Letter of Credit, the
Debt Service Reserve Fund will be fully funded with cash, Permitted
Investments and/or Substitute Letters of Credit in an aggregate amount
equal to the then current Debt Service Reserve Requirement), the
Trustee shall, promptly upon the receipt of such Substitute Letter of
Credit accompanied by the written request of the Company, release and
pay an amount of cash and/or Permitted Investments equal to the amount
of such Substitute Letter of Credit directly to or as directed by the
General Partner.
(c) Restricted Payments. Section 7.18(a) of the Original Indenture is
hereby amended by replacing the words "Sponsor Family Member, IEC or any
Affiliate of IEC", which appear in the seventh and the eighth lines thereof, by
the words "Affiliate of the Sponsors".
(d) Letter of Credit Obligations. Section 7.23 of the Original Indenture is
hereby amended as follows:
(i) by replacing the words "the Back-up Letter of Credit", which appear
in clause (y) thereof in the tenth and eleventh lines from the end of that
Section, by the words "one or more Back-up Letters of Credit and/or FPL
Capital Guarantees";
(ii) by replacing the words "the Back-up Letter of Credit", which
appear in clause (y) thereof in the ninth and tenth lines from the end of
that Section, with the words "any such Back-up Letters of Credit or FPL
Capital Guarantees";
(iii) by inserting after the words "Cash Collateral Proceeds; provided
that", and before the words "the Letters of Credit", which appear in the
seventh and eighth lines from the end of that Section, the following
language:
, notwithstanding any provision of this Indenture to the contrary,
if one or more Back-up Letters of Credit or FPL Capital Guarantees
are provided to replace all or portion of the cash or Permitted
Investments referred to in clause (x) (and if, upon the issuance of
such Back-up Letters of Credit and/or FPL Capital Guarantees, the
Letters of Credit shall be fully collateralized with any
combination
4
of cash, Permitted Investments, Back-up Letters of Credit or FPL
Capital Guarantees in an amount equal to the Letter of Credit
Maximum Amount), the Letter of Credit Banks or an agent or a
trustee thereof shall promptly, upon its receipt of such Back-up
Letters of Credit or FPL Capital Guarantees and the written request
of the Company, release and pay an amount of cash and/or Permitted
Investments equal to the amount of such Back-up Letters of Credit
and/or the amount of the guaranteed obligations under such FLP
Capital Guarantees directly to or as directed by the General
Partner; and provided, further, that
(e) Certain Required Contributions to Revenue Fund. Section 7.26 of the
Original Indenture is hereby amended as follows:
(i) by inserting after the words "pursuant to Section 7.23" and
before the words "(whether as a result of)", which appear in the fourth
and fifth lines thereof, the following language:
, such Released Letter of Credit Collateral (other than any
Released Letter of Credit Collateral included in clause (ii) of the
definition thereof) shall be deposited into the Revenue Fund.
"Released Letter of Credit Collateral" shall mean any cash or
Permitted Investments which collateralize the Letters of Credit or
constitute Substitute LOC Collateral and which are released from
the collateral required pursuant to Section 7.23.
(ii) by replacing the words "a Back-up Letter of Credit", which
appear in the seventh and eighth lines thereof, with the words "one or
more Back-up Letters of Credit and/or FLP Capital Guarantees as
contemplated by the first proviso of the last sentence of Section
7.23,";
(iii) by inserting after the words "in accordance with the", which
appear in the tenth line thereof, the word "second";
(iv) by deleting the following language, which appears in the last
three lines of that Section:
(such cash or Permitted Investments being referred to as "Released
Letter of Credit Collateral") such released cash or Permitted
Investments shall be deposited into the Revenue Fund.
5
(f) Events of Default. Section 10.1 of the Original Indenture is hereby
amended as follows:
(i) by replacing the word "IEC", which appears in the second,
twentieth and twenty-six lines of Section 10.1(b), with the word "NE
LP";
(ii) by replacing the word "IEC", which appears in the first and
the fourteenth lines of Section 10.1(d), with the word "NE LP";
(iii) by (i) replacing the words "the Sponsor Control Group shall
cease to own and", which appear in the first and second lines of
Section 10.1(n), with the words "neither Sponsor, alone or together
with the other Sponsor, shall own or"; (ii) by inserting after the
words "each Project," and before the words "(ii) 51% of the Voting",
which appear in the third line of Section 10(b), the word "or"; and
(iii) by replacing the word "IEC", which appears in the fourth line of
Section 10.1(n), with the words "the general partner of each
Partnership";
(iv) by deleting Section 10.1(o) in its entirety and replacing it
with the following language:
any Person other than a Sponsor or an Affiliate of a Sponsor shall
hold any general partnership interest in either Partnership.
SECTION 1.2 Amendments to Definitions. Appendix A to the Original
Indenture is hereby amended as follows:
(a) The following definitions are hereby inserted in Appendix A of the
Original Indenture, in alphabetical order:
"FPL Capital Guarantee" shall mean one or more corporate guarantees in
form and substance satisfactory to the Letter of Credit Banks issued by
FPL Group Capital Inc in favor of the Letter of Credit Banks in
accordance with Section 7.23.
"FPL Group Capital Inc" shall mean FPL Group Capital Inc, a subsidiary
of FPL Group, Inc.
"NE LP" shall mean Northeast Energy, LP, a Delaware limited
partnership.
6
"Second Supplemental Indenture" shall mean the Supplemental Indenture
dated as of January 14, 1998 among the IEC Funding, the Partnerships
and the Trustee.
(b) The definitions of "Sponsor Control Group" and "Sponsor Family
Members" are hereby deleted in their entirety from Appendix A of the Original
Indenture.
(c) Each reference to "IEC", wherever it appears, in the definitions of
"Authorized Representative", "Collateral", "Outstanding", "Partners" and
"Prestwich Letter of Credit", is hereby deleted and replaced with the words "NE
LP":
(d) The following definitions set forth in Appendix A to the Original
Indenture are hereby amended as follows:
(i) The definition of "General Partner" is hereby amended by
replacing the word "IEC", which appears in the first line
thereof, with the words "each of NE LP";
(ii) The definition of "Management Costs" is hereby amended by: (1)
replacing the word "IEC", which appears in the second and tenth
lines thereof, with the words "NE LP"; (ii) replacing the word
"IEC", which appears in the fourth and fifteenth lines thereof
after the words "or a vice president of" and before the words
"and in an Officers' Certificate", with the words "a general
partner of NE LP"; and (iii) deleting the words "that are not
related by blood or marriage to the Sponsors", which appear in
clause (iii) in the thirteenth and fourteenth lines thereof.
(iii) The definition of "Operating Expenses" is hereby amended by: (i)
inserting after the words "storage, transportation" and before
the words "and associated costs", which appear in the ninth line
thereof, the word "management"; and (ii) replacing the word
"IEC", which appears in clause (e) in the seventh line from the
end of the definition of "Operating Expenses", with the words "NE
LP";
(iv) the definition of "Related Party" is hereby amended by deleting
the words "Family Member", which appear in the second line
thereof; and
7
(v) the definition of "Sponsors" is hereby amended by replacing the
words "the Sponsor Family Members (other than executors, legal
representatives and administrators);" which appear in the first
and second lines thereof, with the words "ESI Energy, Inc. and
Tractebel Power, Inc."
ARTICLE II
CONDITIONS TO EFFECTIVENESS
This Second Supplemental Indenture shall become effective on the date (the
"Closing Date") on which each of the following conditions shall have been
satisfied (which date shall have occurred on or prior to March 31, 1998):
(a) Each of the conditions set forth in the Purchase Agreement shall have
been satisfied or waived by the parties thereto and the Acquisition shall have
been consummated;
(b) The Trustee shall have received certificates, each dated as of the
Closing Date, of the Secretary or Assistant Secretary of the Company and of the
General Partner of each Partnership (a) attaching a true and complete copy of
the resolutions of the Board of Directors of the Company and the resolutions of
the Management Committee of the General Partner of each Partnership,
respectively, and of all documents evidencing other necessary corporate or
partnership action taken by the Company and each Partnership to authorize this
Second Supplemental Indenture and all of the Related Amendments to the other
Transaction Documents being amended in connection herewith and the transactions
contemplated herein and therein, and (b) setting forth the incumbency and
authority of its officer or officers or, in the case of each Partnership, of the
officer or officers of the General Partner, who may sign this Second
Supplemental Indenture and all of the related amendments to the other
Transaction Documents being amended in connection herewith, including therein a
signature specimen of such officer or officers;
(c) All conditions precedent to the effectiveness of the related amendments
to the other Transaction Documents being amended in connection herewith shall
have been satisfied or waived by the parties thereto;
(d) The Trustee shall have received counterparts of this Second
Supplemental Indenture signed by each of the parties hereto (or the Trustee
shall have received from a party hereto a facsimile signature page signed by
such party, which party shall have agreed to promptly provide the Trustee with
originally executed counterparts hereof); and
8
(e) The Trustee shall have received a favorable opinion of Orrick,
Herrington & Sutcliffe LLP a form and substance reasonably satisfactory to the
Trustee, stating, among other things, that the execution of this Second
Supplemental Indenture is authorized or permitted by the Original Indenture, as
amended by the First Supplemental Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Execution of Supplemental Indenture. This Second Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, as supplemented by the First Supplemental Indenture, and, as
provided in the Original Indenture, this Second Supplemental Indenture forms a
part thereof.
SECTION 3.2 Concerning the Trustee. The recitals contained herein shall be
taken as the statements of the Company, NEA and NJEA, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture.
SECTION 3.3 Counterparts. This Second 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.
SECTION 3.4 Severability. Any provision of the Second Supplemental
Indenture which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 3.5 Section Headings. Section headings have been inserted in this
Second Supplemental Indenture as a matter of convenience for reference only and
it is agreed that such section headings are not a part of this Second
Supplemental Indenture and shall not be used in the interpretation of any
provision of this Second Supplemental Indenture.
SECTION 3.6 Reference to and Effect on the Transaction Documents. (a) Upon
the effectiveness of this Second Supplemental Indenture, on and after the date
hereof, each reference in the Original Indenture to "this Indenture",
"hereunder", "hereof", "herein", or words of like import, and each reference in
the other Transaction Documents to the Indenture, shall mean and be a reference
to the Original Indenture as amended by the First Supplemental Indenture and
hereby.
9
(b) Exception as specifically amended or waived above, the Original
Indenture, as supplemented by the First Supplemental Indenture, shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 3.7 Waivers. The execution, delivery and effectiveness of this
Second Supplemental Indenture shall operate as a consent and a waiver by the
Holders of any other provision of the Original Indenture which might have been
inadvertently breached as a result of the Acquisition and the execution of the
related amendments to the other Transaction Documents being amended in
connection herewith had therewith. Except as set forth in the preceding
sentence, the execution, delivery and effectiveness of this Second Supplemental
Indenture shall not operate as a waiver of any right, power or remedy of any of
the Holders or the Trustee under any of the Transaction Documents, nor
constitute a waiver of any provision of any of the Transaction Documents.
SECTION 3.8 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
[Signature page follows]
10
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date and year first written above.
COMPANY
IEC FUNDING CORP.
By: /s/ Glenn E. Smith
----------------------------
Name: Glenn E. Smith
Title: Vice President
PARTNERSHIPS
NORTHEAST ENERGY ASSOCIATES, A
LIMITED PARTNERSHIP
By: NORTHEAST ENERGY, LP.
its sole general partner
By: ESI NORTHEAST ENERGY GP.
INC.,
as a general partner
By: /s/ Glenn E. Smith
----------------------------
Name: Glenn E. Smith
Title: Vice President
By: TRACTEBEL NORTHEAST
GENERAL GP. INC.,
as general partner
By: /s/ Timothy R. Dunne
----------------------------
Name: Timothy R. Dunne
Title: Vice President
Address for Notices:
c/o ESI Energy, Inc.
11760 U.S. Highway 1, Suite 600
North Palm Beach, FL 33408
Execution Copy