EXHIBIT 4.24
TERMINATION OF PLEDGE, TRUST AND INTERCREDITOR AGREEMENT
TERMINATION OF PLEDGE, TRUST AND INTERCREDITOR AGREEMENT, dated as of
January 30, 1998 (this "Termination Agreement"), among NORTH JERSEY ENERGY
ASSOCIATES, A LIMITED PARTNERSHIP, a New Jersey limited partnership ("NJEALP"),
NORTHEAST ENERGY ASSOCIATES, A LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("NEALP" and, together with NJEALP, the "Pledgors"), THE SANWA BANK,
LIMITED, NEW YORK BRANCH, as "Bank Agent," as a "Bank" and as the "Letter of
Credit Bank" (each as defined in the Pledge Agreement referred to below), SANWA
BANK TRUST COMPANY OF NEW YORK, in its capacity as trustee (together with its
successors in such capacity, the "Trustee") for the benefit of the Secured
Parties (as defined in the Pledge Agreement), STATE STREET BANK AND TRUST
COMPANY, in its capacity as "Collateral Agent" (as defined in the Pledge
Agreement) under the Collateral Agency Agreement referred to below, and STATE
STREET BANK AND TRUST COMPANY, in its capacity as "Bond Trustee" under the Bond
Indenture referred to below.
WHEREAS, pursuant to the Credit Agreement, dated as of December 1, 1994
(as amended, the "Credit Agreement"), among the Pledgors, the Bank Agent, the
Bank and the Letter of Credit Bank, the Letter of Credit Bank agreed to issue
and renew letters of credit (the "Letters of Credit") in support of certain
obligations of the Pledgors under the Power Purchase Agreements referred to
therein as well as certain other obligations referred to therein;
WHEREAS, IEC Funding Corp., a Delaware corporation (the "Issuer"),
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
"Original Bond Indenture"), with the Pledgors and the Bond 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, currently outstanding in the aggregate principal amount of
$490,286,720, were issued;
WHEREAS, in connection with the Credit Agreement and with the Original
Bond Indenture, and as a condition to the obligations of the Letter of Credit
Bank to issue and to renew the Letters of Credit and of the Banks to make
working capital loans to the Pledgors, the Pledgors, the Bank Agent, the Letter
of Credit Bank, the Trustee, the Collateral Agent and the Bond Trustee entered
into the Pledge, Trust & Intercreditor Agreement dated as of December 1, 1994
(the "Pledge Agreement");
WHEREAS, in connection with the Bond Indenture and certain other
agreements, the Pledgors and the Secured Parties (as such term is defined in the
Collateral Agency Agreement) 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 by the Collateral Agent of certain
rights and remedies under the Amended and Restated Assignment and Security
Agreement and under certain other Security Documents (the "Security Documents")
referred to therein and (b) the priority of their respective security interests
created by the Security Documents;
WHEREAS, 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 of NJEALP and NEALP,
and the limited partners of each of NJEALP and NEALP, as sellers (the
"Sellers"), and Northeast Energy, L.P., 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"), on January 14, 1998 (i) NE LP and NE LLC purchased
from the Sellers all of the general and limited partnership interests in the
Pledgors and (ii) ESI Funding and Tractebel purchased 7,500 issued and
outstanding shares of Common stock of the Issuer (the "Acquisition");
WHEREAS, after the consummation of the Acquisition, the sole partners
of both Pledgors are NE LP and NE LLC, which are directly or indirectly
wholly-owned by special purpose subsidiaries of ESI Energy, Inc. and Tractebel
Power, Inc.;
WHEREAS, in connection with the Acquisition, (i) the Issuer, the
Pledgors and the Bond Trustee executed and delivered a Second Supplemental Trust
Indenture, which amends and supplements the Original Bond Indenture (the "Second
Supplemental Bond Indenture" and together with the Original Bond Indenture, the
"Bond Indenture"), and (ii) the Pledgors and the other parties to the Credit
Agreement executed and delivered an amendment to the Credit Agreement (the
"Credit Agreement Amendment") to reflect, among other things, the
Acquisition;and
WHEREAS, following the Acquisition, the Pledgors arranged for the
delivery to the Power Purchasers of new letters of credit in substitution for
the Letters of Credit issued by the Letter of Credit Bank and for the delivery
to the issuers of such new letters of credit of a guaranty in lieu of the
Pledged Deposits and Pledged Investments required by the Pledge Agreement;
NOW, THEREFORE, in consideration of the premises and as provided in the
Credit Agreement and the Pledge Agreement, the parties hereto hereby agree as
follows:
Section 1. Definitions. All capitalized terms not defined herein shall
have the meanings assigned thereto in the Pledge Agreement. Terms defined in the
introductory paragraph or in the preambles or other provisions hereof shall have
the meanings assigned therein.
Section 2. Termination Date and Withdrawal of Collateral. The Pledgors
hereby notify the Bank Agent that, effective as of the date hereof, they are
terminating in entirety (a) the Working Capital Loan Commitment (as defined in
the Credit Agreement) and (b) the L/C Commitment (as defined in the Credit
Agreement). The Bank Agent hereby waives any further or additional notice of
such termination and the parties confirm that such Working Capital Loan
Commitment and L/C Commitment are hereby terminated in their entirety. Subject
to the payment to the Bank Agent of any fees, expenses, reimbursements or other
amounts due to it under the Credit Agreement, including without limitation, any
fees due under Section 4.1 or Section 7 of the Credit Agreement and the
reimbursement of costs and expenses under Section 13 of the Credit Agreement,
and except as provided in Section 14.7 of the Credit Agreement, the Bank Agent
hereby confirms that no Bank Obligations are outstanding under the Credit
Agreement. Subject to receipt by the Letter of Credit Bank of the original of
each outstanding Letter of Credit for cancellation and the written confirmation
thereof from each beneficiary to each Letter of Credit reasonably satisfactory
to the Letter of Credit Bank, the parties agree that the Termination Date is
January 30, 1998. As provided in subsection 3.4(d) of the Pledge Agreement, the
Bank Agent hereby directs the Trustee to withdraw the Pledged Deposits deposited
in the Accounts and to liquidate the Pledged Investments credited to the
Accounts and, upon written confirmation from the Bank Agent that all amounts due
to it under the Credit Agreement have been paid in full and from the issuers of
the new letters of credit that such issuers have received an FPL Capital
Guarantee (as defined in the Bond Indenture), to pay over to or at the direction
of the General Partner of the Pledgors all of such proceeds and deposits, after
deducting for its own account any amounts due to it under Section 7.1 and
Section 7.18 of the Pledge Agreement. Each of the parties hereto agrees that
upon such payment of such proceeds and deposits by the Trustee, the Trustee
shall be released and discharged from its duties and responsibilities under the
Pledge Agreement or with respect to the Collateral.
Section 3. Joinder and Release. Each of the Collateral Agent and the
Bond Trustee joins in the request and direction of the Bank Agent to the Trustee
set forth in Section 2 hereof and each party to this Termination Agreement
agrees that the Pledgors shall be released from their obligations under the
Pledge Agreement, that the Collateral shall be released and that the Collateral
and the proceeds thereof shall be paid over to or at the direction of the
General Partner of the Pledgors.
Section 4. Counterparts. This Termination Agreement may be executed in
any number of counterparts and each such counterpart shall be deemed to
constitute but one and the same instrument.
Section 4. Governing Law. This Termination Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the 30th day of January, 1998.
NORTHEAST ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
By: NORTHEAST ENERGY, LP,
its sole general partner
By: ESI Northeast Energy GP, Inc.,
General Partner
By: /s/ Glenn E. Smith
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Name: Glenn E. Smith
Title: Vice President
By: Tractebel Northeast Generation GP, Inc.,
General Partner
By: /s/ Charles Vetters
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Name: Charles Vetters
Title: Vice President
NORTH JERSEY ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
By: NORTHEAST ENERGY, LP,
its sole general partner
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
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
as Bank Agent, as Bank and as Letter of
Credit Bank
By: /s/ Thomas R. Cantello
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Name: Thomas R. Cantello
Title: Vice President
SANWA BANK AND TRUST COMPANY OF NEW YORK,
as Trustee
By: /s/ Peter P. Kearns
Name: Peter P. Kearns
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent and Bond Trustee
By: /s/ Paul D. Allen
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Name: Paul D. Allen
Title: Vice President