exv10w2



 





Exhibit 10.2




AGREEMENT




     AGREEMENT (this “Agreement”), dated as of June 11, 2004, between
Indiantown Cogeneration, L.P. (the “Partnership”) and Florida Power & Light
Company (“FPL”) (each of the Partnership and FPL a “Party” and together,
the “Parties”).



     Reference is made to that certain Agreement for the Purchase of Firm
Capacity and Energy between the Partnership and FPL dated as of March 31,
1990 (as amended, supplemented, or otherwise modified from time to time,
the “PPA”). Capitalized terms which are used herein and not defined herein
shall have the meanings given such terms in the PPA.



     Pursuant to Section 21.2 of the PPA, the Partnership has established a
reserve fund to be utilized by the Partnership to maintain (or reinstate)
the “qualifying” statuses of the Partnership and the Facility. Such reserve
fund is maintained with The Bank of New York Trust Company of Florida, N.A.
(including any successor in such capacity, the “Account Bank”) in Account
No. 427383 entitled “Indiantown Cogeneration, L.P., — QF Account”. Such
account, and any replacement account established pursuant to and meeting
the requirements of Section 21.2 of the PPA, is referred to herein as the
“QF Account”.



     The Partnership and FPL have entered into a Security Agreement, dated
as of September 30, 1992 (as amended, supplemented or otherwise modified
from time to time, the “Security Agreement”), securing the performance of
the Partnership’s obligations under the PPA. Pursuant to the Security
Agreement, the Partnership has granted to FPL a security interest in, among
other things, the QF Account, as required by Section 21.2 of the PPA, and
the Account Bank has acknowledged FPL’s security interest in the QF Account
pursuant to the letter dated February 20,1996 attached hereto as Exhibit A.



     As permitted under Section 21.2 of the PPA, simultaneously with the
execution hereof, the Partnership hereby delivers to FPL, and FPL hereby
acknowledges receipt of, Irrevocable Standby Letter of Credit
No. 91876082,
issued by BNP Paribas (the “Issuing Bank”), dated June 11, 2004 (the “QF
LOC”) in lieu of cash deposits in the QF Account. The Parties agree that
delivery of the QF LOC satisfies the Partnership’s obligation to provide
security pursuant to Section 21.2 of the PPA as of the date hereof.



     For the sum of ten Dollars ($10.00) and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, each of the Parties hereby agrees as follows.




1.      So long as no Event of Default has occurred and is continuing, the
Partnership may from time to time submit to FPL written notice in the
form of Exhibit B hereto (a “Drawing Directive”) directing a drawing
under the QF LOC. Upon receipt of a Drawing Directive from the
Partnership, FPL shall, not later than five business days following
receipt by FPL of such Drawing Directive, present its drawing
certificate under the QF LOC, duly completed using Option (B-l),
requesting payment under the QF LOC in the amount specified by the
Partnership in such Drawing Directive. As used in this Agreement,
“business day” shall mean any day other than a Saturday, a Sunday, or
a day



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on which commercial banks in New York, New York are authorized or
required by law to remain closed. In the event that the Issuing
Bank foils to honor any drawing request directed by the
Partnership in a Drawing Directive, FPL shall use commercially
reasonable efforts to correct such drawing request and re-present
such drawing request in compliance with the requirements of the QF
LOC. FPL shall direct the Issuing Bank in such drawing request
that monies drawn by FPL under the QF LOC shall be paid into the
QF Account. Subject to the rights of FPL under the Security
Agreement and FPL’s lien in the QF Account thereunder, the
Partnership shall be entitled to use such funds as and to the
extent provided in Section 21.2 of the PPA.




2.      In the event that FPL fails to present a drawing certificate as and
when required to
do so under this Agreement upon receipt of Drawing Directive or
otherwise to comply
with its obligations under this Agreement and, as a consequence of
such failure, the
proceeds of a drawing on the QF LOC are not available to be utilized
by the Partnership
to maintain (or reinstate) the “qualifying” statuses of the
Partnership and the Facility
pursuant to Section 21.2 of the PPA, then, for so long as such failure
by FPL is
continuing, (a) the Partnership shall be deemed not to be in breach or
default of any of its
obligations under the PPA to maintain such “qualifying” statuses,
including without
limitation under Section 2.0 of the PPA, (b) all grace or cure periods
under the PPA, the
Consent and Agreement and the Security Agreement applicable to any
event or
circumstance relating to the “qualifying” statuses of the Partnership
and the Facility that
would otherwise constitute a breach or default by the Partnership
under the PPA but for
the foregoing clause (a) shall be extended on a day for day basis, for
each day during
which such failure by FPL continues, and (c) FPL shall continue to
perform all its
obligations under the PPA, including without limitation all its
payment obligations, in
accordance with the terms thereof, and shall not take or allege a
contrary position before
any governmental authority or other Person.




3.      Except for drawings pursuant to a Drawing Directive, FPL shall not
draw on the
QF LOC unless:




	a.	 	an Event of Default (as defined
in the Security Agreement) shall have occurred
and be continuing, all cure periods applicable
to such Event of Default under the PPA, the
Subordination Agreement and the Consent and
Agreement shall have expired, in which case,
subject to the provisions of the Consent and
Agreement and the Subordination Agreement, FPL
may present its drawing certificate under the
QF LOC, duly completed using Option (B-2),
requesting payment in an amount up to the
stated amount then available to be drawn
thereunder, direct the Issuing Bank in such
drawing request that monies drawn under the QF
LOC shall be paid into the QF Account and
utilize the proceeds thereof as funds under
Section 21.2 of the PPA to satisfy in whole or
in part any of the obligations of the
Partnership under the PPA; or




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	b.	 	the QF LOC shall be set to
expire (whether by its terms or pursuant to the
notice of the Issuing Bank) within thirty (30)
days and the Partnership shall have failed to
procure a replacement or renewal letter of
credit meeting the requirements of Section 21.2
of the PPA or other security reasonably
acceptable to FPL, and security is still
required under the terms of Section 21.2 of the
PPA, in which case FPL may present its drawing
certificate under the QF LOC, duly completed
using Option (B-3), requesting payment in an
amount up to the stated amount then available to
be drawn thereunder and direct the Issuing Bank
in such drawing request that monies drawn under
the QF LOC shall be paid into the QF Account.






Except as instructed by the Partnership in a Drawing Directive, FPL
shall not be entitled to draw any amount under the QF LOC to the
extent that such drawing would, when added to any amount then on
deposit in the QF Account, cause the balance of the QF Account to
exceed the then-stated amount of the QF LOC.




4.     FPL shall not enter into or consent to any amendment or waiver of
the QF LOC without the Partnership’s prior written consent (which
consent shall not be unreasonably withheld or delayed).



     The Partnership hereby represents and warrants to FPL as follows: (i)
it has full power and authority to execute and deliver this Agreement and
to perform its obligations hereunder; (ii) the execution, delivery and
performance by it of this Agreement have been duly authorized by all
necessary action on the part of the Partnership; and (iii) this Agreement
has been duly executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with
its terms except as such enforceability thereof may be limited by (a)
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer or other similar laws relating to or affecting the rights of
creditors generally and (b) the application of general principles of
equity (regardless of whether considered in a proceeding at law or in
equity).



     FPL hereby represents and warrants to the Partnership as follows:
(i) it has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder; (ii) the execution, delivery
and performance by it of this Agreement have been duly authorized by all
necessary action on the part of FPL; and (iii) this Agreement has been
duly executed and delivered by it and constitutes its legal’, valid and
binding obligation, enforceable against it in accordance with its terms
except as such enforceability thereof may be limited by (a) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer or
other similar laws relating to or affecting the rights of creditors
generally and (b) the application of general principles of equity
(regardless of whether considered in a proceeding at law or in equity).



     This Agreement may not be amended or modified except in a writing
acknowledged by each of the Partnership and FPL.



     Any term or provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or



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unenforceability without invalidating the remaining terms and provisions
hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render prohibited or unenforceable such term or
provision in any other jurisdiction.




     All covenants, agreements, conditions, obligations, liabilities,
terms and ‘provisions contained herein shall be binding upon, and inure to
the benefit of, the Parties and their respective successors, assigns and
replacements. Nothing in this Agreement, whether express or implied, shall
be construed give any person or entity other than the Parties hereto
any legal,
equitable or other right, privilege, remedy, claim or demand to, under or
in respect of this Agreement.



     THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO CONFLICTS OF
LAWS PROVISIONS THEREOF THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION.



     Each Party recognizes and affirms that in the event of breach by it
of any of the provisions of this Agreement, money damages alone may be
inadequate and an adequate remedy at law may not exist. Accordingly, each
Party agrees that the other Party shall have the right, in addition to any
other rights and remedies existing in its favor, to enforce its rights and
the obligations of the other Party under this Agreement not only by an
action or actions for damages, but also by an action or actions for
specific performance, injunction and/or other equitable relief in order to
enforce or prevent any violations of the provisions of this Agreement. In
accordance with the foregoing, each Party hereby irrevocably waives any
claim or defense that the other Party has or may have an adequate remedy
at law for any breach hereof.



[signature pages follow]




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	 	 	INDIANTOWN COGENERATION, L.P.
	 
	 	 	 	 
	 

	 	 	 	/S/ John L. Barpoulis
	 

	 	


	

	 	Name:
	 	John L. Barpoulis
	

	 	Title:
	 	Vice President and Treasurer
	 
	 	 	 	 
	 	 	FLORIDA POWER & LIGHT COMPANY
	 
	 	 	 	 
	

	 	 	 	[ILLEGIBLE]
	

	 	

	

	 	Name:
	 	[ILLEGIBLE]
	

	 	Title:
	 	Director, Resource Planning







[AGREEMENT - SIGNATURE PAGE]





 









 








Exhibit A




ACKNOWLEDGMENT OF FPL’S INTEREST IN OF ACCOUNT




See attached letter agreement




[EXHIBIT A]







 









 








Exhibit A




THE BANK OF NEW
YORK

TRUST COMPANY OF FLORIDA, N.A.




CORPORATE TRUST DIVISION

TOWERMARC PLAZA

10101 CENTURION PARKWAY 3RD FLOOR

JACKSONVILLE FLORIDA 32256




February 20, 1995




Indiantown [ILLEGIBLE], L.P.

7500 old Georgetown Road - 13th Flr.

[ILLEGIBLE], Maryland  [ILLEGIBLE],

Attention: General Counsel

Facsimille: 301-718-6913



     Dear
Sir:



     Please
be advised that we have, in accordance with the letter Agreement dated
[ILLEGIBLE],
even this herewith and attached hereto (the Letter Agreement”),
[ILLEGIBLE] account no. [ILLEGIBLE]. Such account is
[ILLEGIBLE]
“Indiantown
Cogeneration, L.P. , — QF Account” and the account will be administered in
accordance with the Letter Agreement.



     Best regards.



	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK TRUST
	 	 	COMPANY OF FLORIDA. N.A.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ [ILLEGIBLE]
	 	 	 	 	

	

	 	 	 	   Name :
	 	[ILLEGIBLE]
	

	 	 	 	   Title:
	 	Vice President







 









 






Indiantown Cogeneration, L.P.

7500 Old Georgetown Road

Betheds, MD 20814




February 20,1996




Bank of New York

Towermarc Plaza

3rd Floor

10161 Centurion Plaza

Jacksonville, FL 32250

Attention: Philip  [ILLEGIBLE]



Dear Sir:




     We
refer to our account no. 427383 ( the “Account”) maintained with you into
which
wire transfers, cash deposit and other insurance of payments may be
 [ILLEGIBLE] from time to
time. Pursuant to a Security Agreement, dated as of September 30,
1992 (the“ Security
Agreement”), between Indiantown Cogeneration, L.P. and Florida Power de
Light Company
(“FPL”),we have granted to FPL a security interested in among other
things, the Account, all
fund deposited from time to time in the Account and all products of the
forgoing. It is a
condition to the [ILLEGIBLE] maintenance of the Account with you that you
agree this Letter Agreement.



     By
signing this Letter Agreement, you acknowledge the  [ILLEGIBLE] of
FPL’S security
 [ILLEGIBLE] in the Account and in the amounts from time to time on
deposit therein and agree that
from the date hereof the Account shall be maintained by you for
the benefit of, and amounts
from time to time therein hold by you as security agreed for, FPL on
the terms and to the extent
provided herein. The Account is to be entitled “ Indiantown
Cogeneration, L.P. -QF Account”.
All service charges and fees with respect to the Account shall be payable by us.



     With
the exception of service charges and fees or recorded item
you irrevocably waive
and agree not to [ILLEGIBLE] claim or [ILLEGIBLE] to exercise, and by
executing this Letter Agreement you irrevocably bar and stop yourself
from asserting, claiming and exercising, and you
acknowledge that you have not heretofore received a notice, writ, order
under or any form of legal process from any other party asserting,
claiming or exercising, any
right of cut-off, banker’s lion or other purported form of claim
with respect to the Account or any funds or  securities
from



 









 





Bank of New York

February 20, 1996

Page 2



time to time therein. Except as provided in the proceeding sentence,
(a) you
shall leave no rights in the Account and fund therein and (b) you hereby
[ILLEGIBLE] subordinates all rights you may ever have in the Account to all rights
of FPL and you have been informed by us that this Letter Agreement to no
longer of any force or effect.




     We may terminate this Letter Agreement by providing you written notice
that FPL, has been provided replacement security and that their security
[ILLEGIBLE] in the account is no longer applicable. As such that you shall
disburse all funds in the Account and all proceeds thereof in the account or
accounts specified by us in the notice terminating this Letter Agreement.



     You may terminate this Letter Agreement only upon thirty days prior
written notice to us, sent by U.S. mail, certified return receipt requested, as
the address set forth above, by canceling the Account maintained with you.
Within said thirty days period we shall provide you with written notice
directing you to disburse all funds in the Account and all proceeds thereof to
the account or accounts specified by us in such written notice and you shall
disburse such [ILLEGIBLE] at the end of such thirty days period.



     You
shall be fully protected in acting under any notice from us without
making any further hereby whatsoever as to our right or authority to give such notice.
You shall have no responsibility to verify the authenticity of any such notice
received by you and may act upon any such notes received from any party
identifying itself as Indiantown Cogeneration, L.P. Indiantown Cogeneration,
L.P. hereby releases you from any and all claims, liabilities and demands
that it may at any time have against you arising out of or in any way relating
to the authorization and instructions set forth above and Indiantown
Cogeneration,
L.P. shall indemnify and hold you harmless from and against any and all
claims, actions, suits, losses, damages, costs, payments, liabilities and
expenses including, but not limited to, reasonable legal fees and
disbursements arising out of or in any way relating in the aforesaid
authorization and Instructions.



 









 





Bank of New York

February 20, 1996

Page 3



     Please agree to the terms, and acknowledge receipts, of this Letter
Agreement by signing in the space provided below and send such signed copy to us
at the address set forth above, attention: General Counsel.



	 	 	 	 	 	 	 
	 	 	Very truly yours
	 
	 	 	 	 	 	 
	 	 	INDIAN TOWN COGENERATION, L.P.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Stephen A. Sorreodeo
	 	 	 	 	

	

	 	 	 	Name :
	 	Stephen A. Sorreodeo
	

	 	 	 	Title:
	 	Authorized Representative







Agreed to and Acknowledged:



THE BANK OF NEW YORK TRUST COMPANY OF

FLORIDA, N.A.



	 	 	 
	By:

	 	/s/ H.P. Henry


	

	 	Name: H.P. Henry
	

	 	Title: Vice President







Attention:

Address:



Telephone:

Telex:



 









 





Exhibit B




FORM OF DRAWING DIRECTIVE




Florida Power & Light
Company 
[INSERT FPL ADDRESS]



Re:   Drawing
Directive – Indiantown Project QF Letter of Credit



Ladies and Gentlemen:


This letter (this “Drawing Directive”) is delivered pursuant to the Agreement,
dated as of June 11, 2004 (the “QF LOC Agreement”), between Indiantown
Cogeneration, L.P. (the “Partnership”) and Florida Power & Light Company
(“FPL”) and in accordance with the Agreement for the Purchase of Firm Capacity
and Energy, dated as of March 31,1990 (as amended, the “PPA”). Capitalized
terms used herein have the meanings given to them in the QF LOC Agreement.



The Partnership hereby directs FPL to draw on the QF LOC pursuant to Section 1
of the QF
LOC Agreement in the amount of
[$       ] (the “Drawing
Amount”). FPL shall present
its
drawing certificate under the QF LOC, duly completed, to the Issuing Bank
within five business days after receipt of this Drawing Directive and shall
direct the Issuing Bank to wire the proceeds of such drawing directly to the
following account: [INSERT WIRE INSTRUCTIONS FOR QF ACCOUNT].



In connection with this Drawing Directive, the Partnership hereby certifies to
FPL as follows:



(1)     No
Event of Default (as defined in the Security Agreement) has
occurred and is
continuing or will occur as a result of the drawing contemplated hereby.



(2)     The proceeds of the drawing are needed by ICL to maintain (or reinstate)
the “qualifying”
statuses of ICL and the Facility pursuant to the Power Purchase Agreement.



(3)     The amount of the requested drawing does not exceed the lesser of (x) ICL’s
good faith
estimate of the amount required to maintain (or reinstate) such “qualifying”
statuses (after giving
effect to the application of all security and funds available to ICL for such
purposes), and (y) the
stated amount available to be drawn under the QF LOC.




Sincerely,




Indiantown Cogeneration, L.P.




[EXHIBIT B]