SECURITIES AND EXCHANGE COMMISSION
EXHIBIT 4.10(a)
AMENDMENT TO NOTES AND TO AMENDED AND RESTATED DEBT
SERVICE RESERVE LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT
This AMENDMENT TO NOTES AND TO AMENDED AND
RESTATED DEBT SERVICE RESERVE LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT dated as of October 13, 1998
(this "Amendment") by and among SALTON SEA FUNDING
CORPORATION, a Delaware corporation (the "Borrower");
CREDIT SUISSE FIRST BOSTON, New York Branch (formerly
known as Credit Suisse)(in its individual capacity as
"Initial Bank"); CREDIT SUISSE FIRST BOSTON, New York
Branch (formerly known as Credit Suisse), DRESDNER BANK,
A.G., New York Branch, PARIBAS (formerly known as Banque
Paribas), New York Branch and THE FUJI BANK, LIMITED
(each a "Bank" and collectively the "Banks"); and CREDIT
SUISSE FIRST BOSTON, New York Branch (formerly known as
Credit Suisse), as Agent (in such capacity, together with
its successors in such capacity, the "Agent") for the
Banks.
W I T N E S S E T H :
WHEREAS, Pursuant to an Indenture dated as of
July 21, 1995 (as amended, supplemented or modified by
the First Supplemental Indenture dated as of October 18,
1995, the Second Supplemental Indenture dated as of June
20, 1996, the Third Supplemental Indenture dated as of
July 29, 1996 and the Supplemental Indenture referred to
below, the "Indenture") among the Borrower and Chase
Manhattan Bank and Trust Company, National Association,
as trustee (in such capacity, together with its
successors in such capacity, the "Trustee"), the Borrower
has authorized the creation of issues of nonrecourse
bonds, debentures, promissory notes and other evidences
of indebtedness to be issued in one or more series
(collectively, the "Securities"), the sale proceeds of
which are to be advanced to the Borrower pursuant to the
Indenture.
WHEREAS, the Borrower and the Trustee have
entered into that certain Fourth Supplemental Indenture
dated as of October 13, 1998 (the "Supplemental
Indenture") to provide for the issuance of one additional
series of bonds in accordance with Article 2 of the
Indenture.
WHEREAS, on July 21, 1995 and on June 20, 1996
the Borrower issued securities (the "Existing
Securities") under the Indenture. On the date of this
Amendment, pursuant to the terms of the Supplemental
Indenture, the Borrower will issue the additional
securities described therein (the "Offered Securities").
WHEREAS, in connection with the issuance of the
Existing Securities, the Borrower and the Initial Bank
entered into the Amended and Restated Debt Service
Reserve Letter of Credit and Reimbursement Agreement
dated as of June 20, 1996, together with a Supplement
dated concurrently therewith (the "Agreement") pursuant
to which the Initial Bank issued a letter of credit (the
"Original Debt Service Reserve Letter of Credit").
WHEREAS, in connection with the issuance of the
Offered Securities, the Borrower has requested that the
Banks increase the Commitment and that the Initial Bank
issue and exchange for the Original Debt Service Reserve
Letter of Credit, and the Banks participate in, and
Initial Bank is willing to issue and the Banks are
willing to participate in, the Debt Service Reserve
Letter of Credit upon the terms and conditions
hereinafter set forth, it being the intention of the
Banks to amend and modify the Agreement as herein
provided.
NOW, THEREFORE, in consideration of the
foregoing, and subject to the terms and conditions herein
set forth, the parties hereto agree as follows:
A. Definitions.
Terms used in the preamble and recitals and
capitalized terms used herein, and not otherwise defined
herein, shall have the meanings assigned to them in the
Agreement.
B. Amendments
1. The definition of "Outstanding Amount" is
hereby amended and restated to read in its entirety as
follows:
"'Outstanding Amount' means, for any
applicable period, the amount for such period
set forth in Annex I or, at any time that the
interest rate on the Securities has been
adjusted pursuant to Section 2.2(b) of the
Indenture, Annex II hereto, as the case may
be, in the column under the caption 'Total
Commitments,' and as the same may be reduced,
increased or reinstated from time to time in
accordance with the terms and provisions
hereof."
2. Each of the Banks hereby consents to the
incorporation pursuant to Section 1.1 of the Agreement of
amendments to definitions under the Indenture as set
forth in the Supplemental Indenture which is attached
hereto as Exhibit 1. Section 1.1(a) is hereby amended by
adding the following sentence at the end thereof:
"The following terms have the meanings
assigned to them in the Depository Agreement:
'Debt Service Reserve Required Balance',
'Debt Service Reserve Fund', 'Interest
Payment Date', 'Principal Fund' and
'Principal Payment Date'.
3. Section 2.1 is hereby amended by deleting
the words "opposite such Bank's name on the signature
pages hereof" in the sixth line of such section and
substituting therefor "in Annex I or Annex II hereto, as
applicable". Annex I hereto is hereby added to the
Amended and Restated Debt Service Reserve Letter of
Credit and Reimbursement Agreement as Annex I. Annex II
hereto is hereby added to the Amended and Restated Debt
Service Reserve Letter of Credit and Reimbursement
Agreement as Annex II.
4. Section 2.2(a) is hereby amended by
deleting the amount "$70,430,000" in the sixth line
thereof and substituting therefor "69,053,313". Section
2.2(a) is hereby further amended by deleting the words
"Closing Date" in the two places they appear and
substituting therefore "October 13, 1998". Section
2.2(a) is hereby further amended by adding the following
sentence at the end thereof:
"Within each period set forth in Annex I
or Annex II, as applicable, neither the
Commitment of any Bank nor the total
Commitments shall exceed that set forth
for each such Bank or the total
Commitments, respectively, in each such
period."
5. Section 2.2(e) is hereby amended by
deleting the amount "$70,429,065" in the eighth line
thereof and substituting therefor "$69,053,313".
6. Section 2.3 is hereby amended by adding
the following new paragraph to the end of such section:
"In order to maintain the anticipated
reductions in the Commitment of The Fuji Bank,
Limited, prior to the issuance of the Offered
Securities and related amendments to the Financing
Documents resulting therefrom, the Commitment and
Commitment percentages for each Bank shall be as set
forth in Annex I or Annex II, as applicable, hereto
for each respective period described therein."
7. Section 2.5(c) is hereby amended by adding
the following to the end of such section:
"in addition, for the period from and
including December 1, 1998 to and including
December 31, 1999, the Borrower shall pay to
the Agent for the respective accounts of the
Banks, quarterly in arrears on the same
payment dates described in the immediately
preceding clause, a fee equal to that
described in the letter from the Borrower to
the Agent dated June 20, 1996."
8. Section 2.6(a) is hereby amended by
correcting "3.5(j)" to read "3.5(i)".
9. Section 2.7(f) is hereby amended by
deleting the word "Bonds" and substituting therefor
"Securities".
10. Section 2.8(c) is hereby amended by
deleting clauses (i) and (ii) thereof and substituting
therefor "on a pro-rata basis among all such Loans.
11. Section 6.1(i) is hereby amended by adding
"(d)" between "(c)" and "(e)" in the fifth line thereof.
12. Section 9.1 is hereby amended by deleting
the word "or" at the end of clause (d)(ii), substituting
a "," therefor and adding the following clause (d)(iv)
after (d)(iii): "or (iv) reduction in Commitments set
forth in Annex I or Annex II hereto".
13. Section 9.2 is hereby amended by deleting
the address (i) "One Liberty Plaza, 000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, telephone (000) 000-0000,
telecopier (000) 000-0000" and replacing it with "5 World
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telephone (000) 000-0000, telecopier (000) 000-0000" and
(ii) by deleting the address "12 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, telephone (212) 238-
2000, telecopier (000) 000-0000" and replacing it with
"Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
telephone (000) 000-0000, telecopier (000) 000-0000"
14. Exhibit A is hereby amended and
restated in its entirety to read as Exhibit A
hereto.
15. Clause (i) of the first paragraph of the
Note issued on September 13, 1996 to Credit Suisse is
hereby amended in its entirety to read as follows:
"The principal sum of Twenty Five Million Three
Hundred Thirty Thousand Seven Hundred Seventy Three
dollars ($25,330,773) and".
16. Clause (i) of the first paragraph of the
Note issued on September 13, 1996 to Dresdner Bank A.G.,
New York Branch, is hereby amended in its entirety to
read as follows:
"The principal sum of Twenty Million Eight
Hundred Sixty Nine Thousand Four Hundred Seventy One
dollars ($20,869,471) and".
17. Clause (i) of the first paragraph of the
Note issued on September 13, 1996 to Paribas (formerly
known as Banque Paribas), New York Branch is hereby
amended in its entirety to read as follows:
"The principal sum of Sixteen Million Eight
Hundred Fifty Five Thousand Eight Hundred Eighty Seven
dollars ($16,855,887) and".
18. Clause (i) of the first paragraph of the
Note issued on September 13, 1996 to The Fuji Bank,
Limited, is hereby amended in its entirety to read as
follows:
"The principal sum of Nine Million Six Hundred
Ninety Seven Thousand Two Hundred Seventy Eight dollars
($9,697,278) and".
19. Pursuant to Section 8.1 of the Agreement,
each Bank hereby authorizes and instructs the Agent to
execute the Second Amendment to the Collateral Agency and
Intercreditor Agreement substantially in the form
attached hereto as Exhibit 2.
C. Conditions Precedent.
The obligation of the Initial Bank to issue the Debt
Service Reserve Letter of Credit and the effectiveness of
this Amendment is subject to the following conditions
precedent:
(a) The Agent shall have received the
following, each dated on or before the date of this
Amendment, unless otherwise specified below, in form
and substance satisfactory to the Agent and in the
number of originals or photostatic copies reasonably
required by the Agent:
(i) this Amendment, duly executed by the
Borrower and the Banks;
(ii) The Supplemental Indenture, as
amended, supplemented or modified, duly
executed by the parties thereto, in form and
substance reasonably satisfactory to the Agent;
(iii) the Amended and Restated Deposit and
Disbursement Agreement, dated as of October 13,
1998, duly executed by the parties thereto, in
form and substance reasonably satisfactory to
the Agent;
(iv) the Second Amendment, dated as of
October 13, 1998, to the Intercreditor
Agreement, duly executed by the parties
thereto, in form and substance reasonably
satisfactory to the Agent;
(v) the Second Agreement Regarding
Security Documents, dated as of October 13,
1998, duly executed by the parties thereto, in
form and substance reasonably satisfactory to
the Agent;
(vi) written opinions of counsel, as to
such matters as the Agent may reasonably
request, in form and substance satisfactory to
the Agent; and
(vii) a certificate of the Depositary Agent
as to the incumbency and specimen signatures of
the officers of the Depositary Agent authorized
to make drawings, to execute and present
certificates under the Debt Service Reserve
Letter of Credit, and otherwise communicate
with the Agent with respect thereto;
(b) all agreements referred to in Sections
3.1(a)(ii), (iii) and (iv) remain in full force and
effect and any conditions precedent to the
amendments or supplements referred to therein shall
have been satisfied;
(c) the Borrower shall have paid to the Agent
for the benefit of Credit Suisse First Boston, New
York Branch, Dresdner Bank, A.G., New York Branch
and Paribas, (formerly known as Banque Paribas), New
York Branch $50,841, $58,497 and $47,247,
respectively, as an amendment fee;
(d) the Borrower shall have paid all accrued
fees and expenses (as provided in Sections 2.5 and
9.4 of the Agreement) of the Agent and the Banks
(including the reasonable accrued fees and
disbursements of counsel to the Agent and the
Banks), to the extent that one or more statements
for such fees and expenses have been presented for
payment;
(e) (i) all conditions precedent under the
Purchase Agreement, dated October 7, 1998, have been
satisfied;
(ii) not less than $285,000,000 (less
underwriting fees and transaction costs) in proceeds
from the Offered Securities shall have been received
by the Borrower thereunder; and
(iii) the Offered Securities shall have
received investment grade ratings from both Rating
Agencies;
(f) no Default or Event of Default shall have
occurred and be continuing;
(g) all agreements and documents the delivery
of which was made a condition precedent to issuance
of the Debt Service Reserve Letter of Credit, as
they may have been amended, supplemented or
modified, remain in full force and effect except as
contemplated herein or as otherwise required by the
transactions contemplated herein;
(h) the Agent shall have received for
cancellation, on or before the date of this
Amendment, the Original Debt Service Reserve Letter
of Credit;
(i) the Agent shall have received certified
copies of the charter and bylaws of the Borrower or,
in lieu thereof, a certificate from the Secretary of
the Borrower certifying that such documents
previously delivered to the Agent are true, correct
and complete as of the date hereof;
(j) the Agent shall have received a
certificate from the Secretary of the Borrower in
respect of all corporate action taken by the
Borrower in approving the execution, delivery and
performance of this Amendment and stating that the
resolutions previously adopted which authorized and
approved the execution, delivery and performance of
the Agreement are in full force and effect and have
not been amended, rescinded or otherwise modified;
(k) the Agent shall have received a
certificate of the Secretary of the Borrower which
certifies the names and offices of the officers of
the Borrower who are authorized to sign this
Amendment, together with the true signatures of such
officers;
(l) the Agent shall have received a good
standing certificate with respect to the Borrower,
as of a recent date prior to the effective date of
this Amendment, from the Secretary of State of each
of Delaware and California; and
(m) the Agent shall have received such other
approvals, opinions, evidence and documents as it
may reasonably request and which are customary for
transactions of the type contemplated by this
Amendment.
D. Representations and Warranties.
In order to induce the Agent, the Initial Bank
and the Banks to enter into this Amendment, the Borrower
represents and warrants to the Agent, the Initial Bank
and the Banks that (a) the execution, delivery and
performance of this Amendment and the documents
contemplated hereby are within the Borrower's power, have
been duly authorized by all necessary or proper action,
are not in contravention of, do not result in a breach
of, or constitute (with due notice or lapse of time or
both) a default under, any contractual obligation to
which the Borrower is a party or by which the property of
the Borrower is bound, do not and will not result in or
require the creation or imposition of any material Lien
upon any of the properties or assets of the Borrower, are
not in contravention of any provision of any law, do not
require the consent or approval of any governmental body,
agency, authority or any other person that has not been
obtained and a copy thereof furnished to the Agent, and
(b) no Event of Default or Default exists as of the date
hereof and no Event of Default or Default would result
from the execution, delivery or consummation of the
transactions contemplated by this Amendment.
The Borrower hereby makes for the benefit of
the Agent and the Banks all of the representations and
warranties of the Borrower made in the Indenture, in the
form of such representations and warranties as they exist
on the date of this Amendment and as they may hereafter
be amended from time to time, but only to the extent that
the incorporation of any such amendments has been
consented to in accordance with Section 9.1 of the
Agreement. Such representations and warranties are
incorporated herein by reference as if set forth at
length in this Amendment; provided that any reference to
the Funding Corporation shall be deemed to be a reference
to Borrower; each reference to the term "Securities"
shall be deemed to include the Obligations; and each
reference to the term "Indenture" shall be deemed to be a
reference to the Agreement, as amended by this Amendment.
E. Miscellaneous.
1. This Amendment shall be subject to the
provisions of Section 9.1 of the Agreement. Without
limiting the generality of the foregoing, all of the
terms and conditions of the Agreement shall remain in
full force and effect except as specifically set forth
herein. The Agreement shall, as the context so requires,
be read and construed throughout so as to incorporate
this Amendment. All references to the Agreement in the
Notes shall be deemed to include the Agreement as amended
by this Amendment.
2. Each of the agreements and amendments set
forth herein shall be effective only in the specific
instances described herein and for the specific purpose
for which it was given, and nothing contained herein
shall be construed to limit or bar any rights or remedies
of the undersigned which they may have on any other
occasion.
3. The Borrower reaffirms its obligations
(pursuant to Section 9.4 of the Agreement) and agrees to
pay, on the date hereof or promptly thereafter, the
reasonable costs and expenses (including attorneys' fees
and expenses) incurred by the Agent in connection with
the consummation of the transactions contemplated under
this Amendment, including, without limitation, the
negotiation, preparation, execution and delivery of this
Amendment and all other related documents.
4. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW.
5. This Amendment may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written, and by their signature evidence their consent to the
effectiveness of the modifications and amendments to the
provisions of the Agreement which are made herein, and further,
consent to the modifications and amendments to Schedule I to the
Depositary Agreement as they shall be in effect on the date
hereof.
SALTON SEA FUNDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
New York Branch
(formerly known as Credit
Suisse), as Agent, Initial Bank
and as a Bank
By:
Name:
Title:
By:
Name:
Title:
DRESDNER BANK AG, New York Branch,
as a Bank
By:
Name:
Title:
By:
Name:
Title:
PARIBAS
(formerly known as Banque Paribas)
New York Branch,
as a Bank
By:
Name:
Title:
By:
Name:
Title:
THE FUJI BANK, LIMITED,
as a Bank
By:
Name:
Title:
By:
Name:
Title:
