Exhibit 10.6
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REIMBURSEMENT AGREEMENT
by and among
FPL GROUP CAPITAL INC.,
TRACTEBEL POWER, INC.,
and
NORTHEAST ENERGY, LP
November 21, 1997
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REIMBURSEMENT AGREEMENT, dated as of November 21, 1997, by and among
FPL GROUP CAPITAL INC., a Florida corporation ("FPL"), TRACTEBEL POWER, INC., a
Delaware corporation ("Tractebel"), and NORTHEAST ENERGY, LP, a Delaware limited
partnership ("Northeast Energy").
PRELIMINARY STATEMENT
Pursuant to Section 4.1 of the Agreement of Limited Partnership of
Northeast Energy, LP (the "Partnership Agreement"), the ESI Partners and the
Tractebel Partners (as such terms are defined in the Partnership Agreement) are
permitted or required to provide Back-up Letters of Credit, Parent Guaranties
and Substitute Letters of Credit pursuant to the Trust Indenture, and letters of
credit and corporate guaranties in connection with the Rule 144A Financing,
which Back-up Letters of Credit, Parent Guaranties, Substitute Letters of
Credit, letters of credit and corporate guaranties shall be in the respective
amounts specified in the Partnership Agreement;
Subject to the terms and conditions of the Partnership Agreement and to
the execution and delivery of this Agreement, FPL and Tractebel intend to enter
into reimbursement agreements with the banks issuing the Back-up Letters of
Credit, the Substitute Letters of Credit and the issuers of such other letters
of credit and to provide the Parent Guaranties and such other corporate
guaranties;
Now, therefore, in order to induce FPL and Tractebel to enter into such
commitments, Northeast Energy hereby agrees as follows:
SECTION 1. DEFINITIONS.
Section 1.1 Defined Terms. All capitalized terms used in this Agreement
and not defined herein shall have the respective meanings assigned to them in
the Partnership Agreement. As used herein, "144A Trust Indenture" shall mean the
indenture to be entered into among Northeast Energy, ESI Tractebel Acquisition
Corp., a Delaware corporation, and the trustee in connection with the
anticipated Rule 144A Financing.
SECTION 2. REIMBURSEMENT.
Section 2.1 Reimbursement of Payment. Upon (a) any drawing under any of
the Back-up Letters of Credit, the Substitute Letters of Credit or the letters
of credit issued in connection with the Rule 144A Financing (the "Rule 144A
letters of credit") and the reimbursement therefor by FPL or Tractebel or (b)
the payment by FPL or Tractebel under any corporate guaranty in connection with
the Rule 144A Financing or under any Parent Guaranty, Northeast Energy agrees to
pay, or cause to be paid, to each of FPL and Tractebel, an amount equal to the
amount so reimbursed or disbursed by each of FPL and Tractebel (collectively,
the "Reimbursement Amounts"). Repayment of the Reimbursement Amounts shall be
paid from funds distributed from the General Subfund of the Partnership
Distribution Fund (as defined in the Trust Indenture). On each date on which
funds are so distributed, such funds shall be paid to FPL and Tractebel, subject
to Section 2.5, pro rata on the basis of the total Reimbursement Amounts owing
to such entities at the time of such distribution. Such payments shall be senior
and prior to any equity distributions to the partners of Northeast Energy.
Section 2.2 Distribution of Payments From the Debt Service Reserve
Fund. Upon the issuance of new Substitute Letters of Credit pursuant to Section
4.1.4 of the Partnership Agreement and the release of funds with respect thereto
from the Debt Service Reserve Fund, such funds shall, upon distribution thereof
to the Partnership, be promptly paid by the Partnership to FPL and Tractebel in
accordance with Section 2.1 to the extent of any outstanding Reimbursement
Amounts.
Section 2.3. Manner and Place of Payments. All payments to be made to
FPL or Tractebel hereunder or in connection herewith by Northeast Energy shall
be made to such entity at such office or bank as it may designate from to time.
Section 2.4. Interest and other Costs Excluded. The Reimbursement
Amounts shall exclude any interest thereon or costs associated therewith.
Section 2.5. Subordination. Each of FPL and Tractebel agrees (i) that
its rights under this Agreement to demand and receive payment of any
Reimbursement Amounts, and the obligation of Northeast Energy to make payment of
such Reimbursement Amounts, are and shall be subordinated and subject to the
prior payment of any amounts payable under the 144A Trust Indenture to the
extent provided therein, and (ii) that it will enter into such subordination
agreement with respect thereto as may be requested by Northeast Energy and the
trustee under the 144A Trust Indenture.
Section 2.6. Representations and Warranties. Northeast Energy
represents and warrants as of the date hereof as follows:
(a) Powers. Northeast Energy has full power to execute, deliver
and perform its obligations under this Agreement.
(b) Authorization. The execution, delivery and performance by
Northeast Energy of this Agreement has been duly authorized by all
necessary actions on the part of Northeast Energy, does not and will
not conflict with, or result in a violation of, any provision of law,
including the Partnership Agreement, or any order, writ, rule or
regulation of any court or governmental department, commission, board,
bureau, agency or instrumentality binding upon or applicable to
Northeast Energy and does not and will not conflict with, result in a
violation of, or constitute a default under, any agreement or
instrument to which Northeast Energy is a party or by which Northeast
Energy or any of its property is bound.
(c) Binding Effect. This Agreement constitutes a valid and
binding agreement of Northeast Energy enforceable in accordance with
its terms.
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SECTION 3. MISCELLANEOUS.
Section 3.1. Amendments, Etc. No amendment, modification or waiver of
any provision of this Agreement nor consent to any departure by the parties
hereto shall in any event be effective unless the same shall be in writing and
signed by Northeast Energy, FPL and Tractebel, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
Section 3.2. Addresses for Notices; Payments to FPL and Tractebel. All
notices and other communications provided for hereunder shall be in writing and
addressed to it at the address for notices to Northeast Energy, FPL or
Tractebel, as applicable, on the signature pages hereto, or as to each party at
such other address as shall be designated by such party in a written notice to
the other parties hereto. All such notices and other communications shall, be
effective when received, except that a notice sent by telecopier and received
after normal business hours shall be deemed to be received the following
business day.
Section 3.3. No Waiver; Remedies. No failure on the part of FPL or
Tractebel to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
Section 3.4. Successors and Assigns; Third Party Beneficiaries. This
Agreement shall be binding upon (a) Northeast Energy, its successors and
assigns, (b) inure to the benefit of and be enforceable by FPL, its affiliates,
and their successors, transferees and assigns and (c) inure to the benefit of
and be enforceable by Tractebel, its affiliates, and their successors,
transferees and assigns; provided, that Northeast Energy may not assign all or
any part of this Agreement without the prior written consent of FPL and
Tractebel.
Section 3.5. Fees and Expenses. Northeast Energy agrees to pay, upon
receipt of an invoice, all reasonable costs and expenses of FPL and/or Tractebel
in connection with the enforcement of Northeast Energy's obligations under
Section 2.1 hereof.
Section 3.6. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 3.7. Governing Law. This Agreement shall be governed by and
construed in accordance with, the laws of the State of New York.
Section 3.8. Disputes. Any dispute between or among the parties hereto
shall be resolved pursuant to the provisions of Article VIII of the Partnership
Agreement.
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Section 3.9. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 3.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Reimbursement
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the above written.
FPL GROUP CAPITAL INC.
By: /s/ L. J. Gelber
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Name: L. J. Gelber
Title:
TRACTEBEL POWER, INC.
By: /s/ Charles Vetters
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Name: Charles Vetters
Title: Vice President
NORTHEAST ENERGY, LP
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/ Timothy R. Dunne
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Name: Timothy R. Dunne
Title: Vice President
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