EXHIBIT 4.23
AMENDMENT TO AMENDED AND RESTATED ASSIGNMENT
AND SECURITY AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED ASSIGNMENT AND SECURITY
AGREEMENT is made and entered into as of January 14, 1998, by and between
NORTHEAST ENERGY ASSOCIATES, A LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("NEA"), NORTH JERSEY ENERGY ASSOCIATES, A LIMITED PARTNERSHIP, a
New Jersey limited partnership ("NJEA"), (NEA and NJEA are individually referred
to as a "Borrower" and collectively referred to as the "Borrowers"),
INTERCONTINENTAL ENERGY CORPORATION ("IEC") Northeast Energy, LP, a Delaware
limited partnership ("NE LP") and STATE STREET BANK AND TRUST COMPANY as
"Collateral Agent" under the Collateral Agency Agreement referred to below (in
such capacity, the "Collateral Agent").
R E C I T A L S:
A. The Borrowers, the Collateral Agent and IEC have entered into the
Amended and Restated Assignment and Security Agreement dated as of December 1,
1994 (the "Amended and Restated Assignment and Security Agreement") pursuant to
which IEC granted to the Collateral Agent a security interest in all of the
Collateral (as such term is defined in the Amended and Restated Assignment and
Security Agreement).
B. Pursuant to and subject to the terms and conditions of the Credit
Agreement dated as of December 1, 1994 (as amended, the "Credit Agreement")
among the Borrowers and The Sanwa Bank Limited, the New York Branch ("Sanwa"),
as issuing bank (in such capacity, the "Issuing Bank"), as a "Bank" (in such
capacity, the "Bank") and as agent for the Bank and the Issuing Bank (in such
capacity, the "Agent"), the Issuing Bank has agreed to issue and renew letters
of credit (the "Letters of Credit") in support of certain obligations of the
Borrowers under the Power Purchase Agreements referred to therein as well as
certain other obligations referred to therein.
C. IEC Funding Corp., a Delaware corporation (the "Issuer"), has
entered into the trust indenture, dated as of November 15, 1994, as supplemented
by the first supplemental trust indenture, dated as of November 15, 1994 (the
"Indenture"), with the Borrowers and State Street Bank and Trust Company ("State
Street"), as Trustee (in such capacity, the "Trustee"), pursuant to which the
Issuer'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 outstanding as of the date hereof of
$490,286,720, were issued.
D. In connection with the Credit Agreement and the Indenture, and as a
condition to the obligations of the Issuing Bank to issue or renew the Letters
of Credit and of the Bank to make working capital loans to the Borrowers, the
Borrowers, Sanwa Bank Trust Company of New York, as Trustee and the Collateral
Agent entered into a Pledge, Trust & Intercreditor Agreement dated as of
December 1, 1994 (the "Pledge, Trust & Intercreditor Agreement").
E. In connection with the Indenture and certain other agreements, the
Borrowers and the Secured Parties (as defined in the Collateral Agency
Agreement) have entered into the Collateral Agency Agreement dated as of
December 1, 1994 (the "Collateral Agency Agreement") which provides, among other
things, for (a) the exercise of certain rights and remedies under the Amended
and Restated Assignment and Security Agreement and certain other Security
Documents (the "Security Documents") referred to therein, by the Collateral
Agent and (b) the priority of their respective security interests created by the
Security Documents.
F. Pursuant to the Purchase Agreement dated as of November 21, 1997
(the "Purchase Agreement") among Intercontinental Energy Corporation, a Delaware
corporation and the sole general partner of each Borrower, and the limited
partners of each Borrower, as sellers (the "Sellers"), 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")
pursuant to which (i) NE LP and NE LLC shall purchase from the Sellers all of
the general and limited partnership interests in the Borrowers and (ii) ESI
Funding and Tractebel shall purchase 7,500 issued and outstanding shares of
Common stock of the Issuer (the "Acquisition").
G. Upon the consummation of the Acquisition, the general partner of the
Borrowers will be NE LP, which is directly or indirectly wholly-owned by special
purpose subsidiaries of ESI Energy, Inc. and Tractebel Power, Inc.
H. In connection with the Acquisition, the Borrowers, the Grantor and
the Collateral Agent have agreed to enter into this Amendment in order to
implement an amendment to the Amended and Restated Assignment and Security
Agreement, which amendment permits the Grantor to, among other things, (i) sell,
assign or otherwise dispose of its general partnership interest in the Borrowers
pursuant to the Purchase Agreement, (ii) admit NE LP as a general partner to
each Borrower pursuant to the Purchase Agreement, (iii) enter into certain
amendments and restatements of the Partnership Agreement and (iv) consummate
certain transactions not constituting certain Events of Default under the
Indenture.
I. Further, in connection with the Acquisition, the Issuer, the
Borrowers and the Trustee are executing and delivering concurrently herewith a
Second Supplemental Trust Indenture to the Indenture (the "Second Supplemental
Indenture") in order to implement, among other things, certain of the proposed
amendments described in the preceding paragraph.
NOW, THEREFORE, the Borrowers, IEC, NE LP and the Collateral Agent
hereby agree as follows:
1. Terms. Capitalized terms not defined herein shall have the meaning
given such terms in the Amended and Restated Assignment and Security Agreement.
2. Amendments.
2.1 Section 3 of the Amended and Restated Assignment and
Security Agreement is hereby amended to read in its entirety as follows:
(b) So long as the Secured Obligations have not been satisfied
or performed or paid in full, as the case may be, the Grantor will not,
except as otherwise permitted under the Indenture, (i) cancel or
terminate the Partnership Agreement or consent to or accept any
cancellation or termination thereof, (ii) sell, assign or otherwise
dispose of (by operation of law or otherwise) any part of its general
partnership interest in the Borrowers (other than pursuant to the
Purchase Agreement dated as of November 21, 1997 (the "Purchase
Agreement") among the parties identified on Schedule I thereto), (iii)
admit any other partner to either Borrower as a general partner (other
than NE LP, as contemplated in the Purchase Agreement) or (iv) amend,
supplement or otherwise modify the Partnership Agreement (as in effect
on the date hereof) in a manner that would materially and adversely
affect the rights of the Grantor as a general partner thereunder,
provided that the foregoing shall not be construed to preclude (i)
entry into amendments and restatements of the Partnership Agreement
simultaneously with closing of the transactions contemplated by the
Purchase Agreement, or (ii) the consummation of any transaction (A) not
constituting an Event of Default under Section 10.1(n) or 10.1(o) of
the Indenture (in each case as amended by the Second Supplemental
Indenture dated as of January 14, 1998 among IEC Funding, the
Partnerships and the Trustee), or (B) permitted under the Indenture
resulting in a Permitted Successor to either Borrower in accordance
with the Indenture. The Grantor at the Borrowers' expense will perform
and comply in all material respects with all terms and provisions of
the Partnership Agreement required to be complied with by the Grantor.
2.2 The addresses for notices specified on the signature pages hereof
shall supersede any prior addresses designated pursuant to the Amended and
Restated Assignment and Security Agreement.
2.3 It is acknowledged and agreed that (a) NE LP is hereby substituted
for IEC as the Grantor under the Amended and Restated Assignment and Security
Agreement, and (b) IEC shall cease to be a party thereto.
3. Conditions to Effectiveness. This Amendment shall become effective
on the date on which each of the conditions specified in Article II of the
Second Supplemental Indenture shall have been satisfied.
4. Successors and Assignees. This Amendment shall be binding upon and
inure to the benefit of the Borrowers, the Grantor and the Collateral Agent and
their respective successors and assigns.
5. Counterparts. This Amendment may be executed in any number of
counterparts and each such counterpart shall be deemed to constitute but one and
the same instrument.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
7. No Other Changes. Except as modified and amended pursuant to the
terms of this Amendment, the terms and conditions of the Amended and Restated
Assignment and Security Agreement shall remain in full force and effect in
accordance with its terms, and the Borrowers, the Grantor and the Collateral
Agent hereby ratify, confirm and reaffirm the terms and conditions of the
Amended and Restated Assignment and Security Agreement as modified and amended
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
INTERCONTINENTAL ENERGY CORPORATION,
By: /s/ James Blakey
------------------------
Name: James Blakey
Title: Vice President
NORTHEAST ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
By: Intercontinental Energy
Corporation,
By: /s/ James Blakey
------------------------
Name: James Blakey
Title: Vice President
Address for Notices:
c/o ESI Energy, Inc.
11760 U.S. Highway 1, Suite 600
North Palm Beach, FL 33408
NORTH JERSEY ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
By: Intercontinental Energy
Corporation,
By: /s/ James Blakey
-------------------------
Name: James Blakey
Title: Vice President
Address for Notices:
c/o ESI Energy, Inc.
11760 U.S. Highway 1, Suite 600
North Palm Beach, FL 33408
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
By: /s/ Paul D. Allen
Name: Paul D. Allen
Title: Vice President
NORTHEAST ENERGY, LP,
By: ESI Northeast Energy GP, Inc.,
General Partner
By: /s/ Glenn E. Smith
-----------------
Name: Glenn E. Smith
Title: Vice President
By: Tractebel Northeast Generation GP, Inc.,
General Partner
By: /s/ Charles Vetters
-------------------
Name: Charles Vetters
Title: Vice President