EXHIBIT 4.14(c)
AMENDED AND RESTATED DEPOSIT AND DISBURSEMENT AGREEMENT
among
SALTON SEA FUNDING CORPORATION,
SALTON SEA BRINE PROCESSING L.P.,
SALTON SEA POWER GENERATION L.P.,
FISH LAKE POWER COMPANY,
SALTON SEA POWER L.L.C.,
VULCAN POWER COMPANY,
CALIFORNIA ENERGY OPERATING CORPORATION,
BN GEOTHERMAL, INC.,
SAN FELIPE ENERGY COMPANY,
CONEJO ENERGY COMPANY,
NIGUEL ENERGY COMPANY,
VULCAN/BN GEOTHERMAL POWER COMPANY,
DEL RANCH, L.P.,
ELMORE, L.P.,
LEATHERS, L.P.,
CALENERGY MINERALS LLC,
CE TURBO LLC,
SALTON SEA ROYALTY COMPANY,
and
Chase Manhattan Bank and Trust Company, National Association,
as Collateral Agent
and
Chase Manhattan Bank and Trust Company, National Association,
as Depositary Agent
Dated as of October 13, 1998
AMENDED AND RESTATED DEPOSIT AND DISBURSEMENT
AGREEMENT (this "Depositary Agreement"), dated as of
October 13, 1998, among Salton Sea Funding Corporation, a
Delaware corporation (the "Funding Corporation"), Salton
Sea Brine Processing L.P., a California limited
partnership ("SSBP"), Salton Sea Power Generation L.P., a
California limited partnership ("SSPG"), Fish Lake Power
Company, a Delaware corporation ("Fish Lake"), Salton Sea
Power L.L.C., a Delaware limited liability company
("Power LLC" and, collectively with SSBP, SSPG and Fish
Lake, the "Salton Sea Guarantors"), Vulcan Power Company,
a Nevada corporation ("VPC"), California Energy Operating
Corporation, a Delaware corporation ("CEOC"), BN
Geothermal, Inc., a Nevada corporation ("BN Geothermal"),
San Felipe Energy Company, a California corporation ("San
Felipe"), Conejo Energy Company, a California corporation
("Conejo"), Niguel Energy Company, a California
corporation ("Niguel"), Vulcan/BN Geothermal Power
Company, a Nevada general partnership ("Vulcan"), Del
Ranch, L.P., a California limited partnership ("Del
Ranch"), Elmore, L.P., a California limited partnership
("Elmore"), Leathers, L.P., a California limited
partnership ("Leathers"), CalEnergy Minerals LLC, a
Delaware limited liability company ("Minerals LLC"), and
CE Turbo LLC, a Delaware limited liability company
("Turbo LLC" and, collectively with VPC, CEOC, BN
Geothermal, San Felipe, Conejo, Niguel, Vulcan, Del
Ranch, Elmore, Leathers and Minerals LLC, the
"Partnership Guarantors"), Salton Sea Royalty Company, a
Delaware corporation (the "Royalty Guarantor" and, collec
tively with the Salton Sea Guarantors and the Partnership
Guarantors, the "Guarantors"), Chase Manhattan Bank and
Trust Company, National Association, in its capacity as
collateral agent (together with its successors and
permitted assigns in such capacity, the "Collateral
Agent"), and Chase Manhattan Bank and Trust Company,
National Association, in its capacity as depositary agent
(together with its successors and permitted assigns in
such capacity, the "Depositary Agent").
WHEREAS, the Funding Corporation was formed for
the sole purpose of issuing its bonds, debentures,
promissory notes or other evidences of indebtedness under
the Trust Indenture dated as of July 21, 1995 (the
"Original Indenture") (as amended and supplemented by the
First Supplemental Indenture dated as of October 18,
1995, the Second Supplemental Indenture dated as of June
20, 1996 (the "Second Supplemental Indenture"), the Third
Supplemental Indenture dated as of July 29, 1996 and the
Fourth Supplemental Indenture dated as of the date hereof
(the "Fourth Supplemental Indenture"), and as further
amended, supplemented or otherwise modified from time to
time, the "Indenture"), between the Funding Corporation
and Chase Manhattan Bank and Trust Company, National
Association, as trustee (the "Trustee");
WHEREAS, pursuant to the Original Indenture,
the Funding Corporation issued $232,750,000 of its 6.69%
Series A Senior Secured Notes Due 2000 (the "Series A
Securities"), $133,000,000 of its 7.37% Series B Senior
Secured Bonds Due 2005 (the "Series B Securities") and
$109,250,000 of its 7.84% Series C Senior Secured Bonds
Due 2010 (the "Series C Securities" and, collectively
with the Series A Securities and the Series B Securities,
the "Original Securities");
WHEREAS, the Funding Corporation used the
proceeds of the Original Securities to make three
separate loans to (i) SSPB, SSPG and Fish Lake (the
"Original Salton Sea Guarantors"), (ii) VPC and CEOC (the
"Original Partnership Guarantors") and (iii) the Royalty
Guarantor, each pursuant to a separate credit agreement
(each a "Credit Agreement") entered into between the
Funding Corporation and each of the Original Salton Sea
Guarantors, the Original Partnership Guarantors and the
Royalty Guarantor;
WHEREAS, in connection with the issuance of the
Original Securities, the Funding Corporation, the
Original Salton Sea Guarantors, the Original Partnership
Guarantors, the Royalty Guarantor, the Collateral Agent
and the Depositary Agent entered into the Deposit and
Disbursement Agreement dated as of July 21, 1995 (the
"Original Depositary Agreement") in order to appoint the
Depositary Agent as depositary agent to hold and
administer monies deposited into various funds
established pursuant to the Original Depositary Agreement
and funded with, among other things, the proceeds of the
Original Securities, proceeds of drawings under the
Working Capital Facility, casualty insurance,
condemnation and title insurance proceeds, and revenues,
equity cash flows and royalties received by the
Guarantors;
WHEREAS, pursuant to the Second Supplemental
Indenture, the Funding Corporation issued $70,000,000 of
its 7.02% Series D Senior Secured Notes Due 2000 (the
"Series D Securities") and $65,000,000 of its 8.30%
Series E Senior Secured Bonds Due 2011 (the "Series E
Securities" and, together with the Series D Securities,
the "Second Offering Securities");
WHEREAS, the Funding Corporation used the
proceeds of the Second Offering Securities to make a loan
to (i) the Original Partnership Guarantors and (ii) BN
Geothermal, San Felipe, Conejo, Niguel, Vulcan, Del
Ranch, Elmore and Leathers (Leathers, collectively with
BN Geothermal, San Felipe, Conejo, Niguel, Vulcan, Del
Ranch and Elmore, the "Additional Partnership
Guarantors") pursuant to the Partnership Credit
Agreement;
WHEREAS, in connection with the issuance of the
Second Offering Securities, the Original Salton Sea
Guarantors, the Original Partnership Guarantors, the
Additional Partnership Guarantors and the Royalty
Guarantor entered into Amendment No. 1 to Deposit and
Disbursement Agreement dated as of June 20, 1996
("Amendment No. 1") in order to, among other things, add
the Additional Partnership Guarantors as parties to the
Depositary Agreement and establish the Capital
Expenditure Fund and set forth the mechanics for making
withdrawals therefrom;
WHEREAS, the Funding Corporation has determined
to issue $285,000,000 of its 7.475% Senior Secured Series
F Bonds Due 2018 (the "Series F Securities") pursuant to
the Fourth Supplemental Indenture;
WHEREAS, the Funding Corporation will use the
proceeds of the Series F Securities to (i) make a loan to
the Original Salton Sea Guarantors and Power LLC pursuant
to the Salton Sea Credit Agreement and (ii) make a loan
to the Original Partnership Guarantors, the Additional
Partnership Guarantors, Minerals LLC and Turbo LLC
pursuant to the Partnership Credit Agreement; and
WHEREAS, in connection with issuance of the
Series F Securities, the Funding Corporation, the
Guarantors, the Collateral Agent and the Depositary Agent
would like to amend and restate the Original Depositary
Agreement, as amended by Amendment No. 1, to, among other
things, add Power LLC, Minerals LLC and Turbo LLC as
parties to the Depositary Agreement and establish the
Construction Funds and set forth the mechanics for making
withdrawals therefrom.
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Original
Depositary Agreement, as amended by Amendment No. 1, is
hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 Capitalized Terms. Capitalized
terms used and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
SECTION I.2 Definitions; Construction. For
all purposes of this Depositary Agreement, except as
otherwise expressly provided or unless the context
otherwise requires:
(a) all terms defined in this Article have the
meanings assigned to them in this Article, and include
the plural as well as the singular;
(b) all references in this Depositary
Agreement to designated "Articles," "Sections,"
"Exhibits" and other subdivisions are to the designated
Articles, Sections, Exhibits and other subdivisions of
this Depositary Agreement;
(c) the words "herein," "hereof" and
"hereunder" and other words of similar import refer to
this Depositary Agreement as a whole and not to any
particular Article, Section, Exhibit or other
subdivision;
(d) unless otherwise expressly specified, any
agreement, contract or document defined or referred to
herein shall mean such agreement, contract or document as
in effect as of the date hereof, as the same may
thereafter be amended, restated, supplemented or
otherwise modified from time to time in accordance with
the terms thereof and of the Indenture and the other
Financing Documents and including any agreement, contract
or document in substitution or replacement of any of the
foregoing;
(e) unless the context clearly intends to the
contrary, pronouns having a masculine or feminine gender
shall be deemed to include the other; and
(f) any reference to any Person shall include
its successors and assigns.
"Additional Partnership Project Note" shall
mean the promissory note dated October 13, 1998 in the
amount of $201,728,000 executed by the Partnership
Guarantors in favor of the Funding Corporation pursuant
to the Partnership Credit Agreement.
"Additional Salton Sea Project Note" shall mean
the promissory note dated October 13, 1998 in the amount
of $83,272,000 executed by the Salton Sea Guarantors in
favor of the Funding Corporation pursuant to the Salton
Sea Credit Agreement.
"Administrative Costs" means all obligations of
the Funding Corporation and the Guarantors, now or
hereafter existing, to pay administrative fees, costs and
expenses to any trustee or agent of any Secured Party,
including the Collateral Agent, the Depositary Agent, any
party that becomes the agent for the Working Capital
Facility Provider, the Debt Service Reserve LOC Provider
and the Trustee.
"Allocation Certificate" means each certificate
provided by the Funding Corporation, one of the
Guarantors, or, pursuant to Section 6(d) of the
Intercreditor Agreement, the Required Secured Parties (as
defined in the Intercreditor Agreement), as applicable,
setting forth the allocation of Loss Proceeds, Eminent
Domain Proceeds, Title Event Proceeds or cash proceeds
resulting from liquidation of the Collateral and Funding
Corporation Collateral, as the case may be, among the
Secured Parties (to the extent the Secured Obligations of
such Secured Parties may be redeemed or prepaid under the
applicable Financing Documents).
"Capital Expenditure Fund" means the Fund of
such name established pursuant to Section 2.2 and having
the following account number at the Depositary Agent:
C28187F.
"Capital Expenditure Requisition" has the
meaning specified in Section 3.14(c).
"Cash Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at Bank of America: Account No.
2335309075.
"Combined Exposure" means, as of any date of
calculation, the sum (calculated without duplication) of
the following, to the extent the same is held by or
represented by a Creditor: (i) the aggregate principal
amount of all Outstanding Securities, (ii) the aggregate
principal amount of all Permitted Debt outstanding (other
than the Securities and Subordinated Debt), (iii) the
aggregate amount of all available undrawn financing
commitments under the documents governing the Permitted
Debt (other than the Securities and Subordinated Debt)
which the creditors party to such documents have no right
to terminate, (iv) the maximum amount available to be
drawn under the Debt Service Reserve Letter of Credit
issued pursuant to the Debt Service Reserve LOC
Reimbursement Agreement (if any) and (v) the termination
payment due and owing as of such calculation date or
which the Permitted Counterparty thereunder has a right
to cause to be due and owing as of such calculation date
under any Interest Rate Protection Agreements.
"Construction Debt Service" shall mean any
payments, due prior to Final Completion of the New
Projects and final completion of the Permitted Capital
Expenditures in accordance with the plans and
specifications therefor, of interest on, or other amounts
due in respect of (if any), the principal amount of
Series F Securities and (without duplication) interest
on, or other amounts due in respect of (if any), the
Additional Partnership Project Note and the Additional
Salton Sea Project Note.
"Construction Funds" means, collectively, the
Zinc Construction Fund, the Salton Sea Unit V
Construction Fund, the Region 2/Turbo Construction Fund
and the Construction Period Debt Service Fund.
"Construction Period Debt Service Fund" means
the Fund of such name established pursuant to Section 2.2
and having the following account number at the Depositary
Agent: C28186G.
"Construction Requisition" has the meaning
specified in Section 3.1.1(c).
"Creditors" means the Funding Corporation, the
Trustee, the Collateral Agent, the Depositary Agent, the
Debt Service Reserve LOC Provider (and the "Agent" and
"Banks" as each such term is defined in the Debt Service
Reserve LOC Reimbursement Agreement), any party that
becomes the agent for the Working Capital Facility
Provider, any Permitted Counterparty under any Interest
Rate Protection Agreement and any party that becomes a
Secured Party under the Intercreditor Agreement.
"Debt Service Reserve Bond" means each bond
issued by the Funding Corporation in exchange for a Debt
Service Reserve LOC Loan in accordance with, and pursuant
to the terms and provisions of, the Debt Service Reserve
LOC Reimbursement Agreement.
"Debt Service Reserve Fund" means the Fund of
such name established pursuant to Section 2.2 and having
the following account number at the Depositary Agent:
C28187A.
"Debt Service Reserve Bond Sub-Fund" means the
sub-fund of such name established pursuant to Section
2.2.
"Debt Service Reserve LOC Loan" means each loan
made to the Funding Corporation pursuant to the Debt
Service Reserve LOC Reimbursement Agreement.
"Debt Service Reserve LOC Loan Interest Sub-
Fund" means the sub-fund of such name established
pursuant to Section 2.2.
"Debt Service Reserve LOC Loan Principal Sub-
Fund" means the sub-fund of such name established
pursuant to Section 2.2.
"Debt Service Reserve LOC Credit Amount" has
the meaning specified in Section 3.2.
"Debt Service Reserve Required Balance" means
the amount set forth on Schedule I hereto, as such amount
may be adjusted from time to time in accordance with the
provisions set forth on such Schedule.
"Disbursement Date" means the date specified in
a Requisition as the date on which monies are requested
by a Guarantor to be withdrawn and transferred from the
Fund to which such Requisition relates for the purpose
set forth in such Requisition.
"Distribution Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28187B.
"Distribution Suspense Fund" means the Fund of
such name established pursuant to Section 2.2 and having
the following account number at the Depositary Agent:
C28187C.
"Equity Contributions" has the meaning
specified in Section 1 of the Equity Commitment
Agreement.
"Fund Collateral" has the meaning specified in
Section 2.3.
"Funding Date" means any day from the 10th
through the 15th day of each month, as determined by the
Funding Corporation or any Guarantor in an officer's
certificate received by the Depositary Agent at least
three (3) Business Days prior to such Funding Date,
provided that there shall only be a single Funding Date
for any month (except in the case of an emergency
referred to below), or if no earlier date is so
determined, then the 15th day of each month, or in each
case if such day is not a Business Day the next
succeeding Business Day, or in the case of an emergency
related to funding Operating and Maintenance Costs, any
Business Day of the month.
"Funds" has the meaning specified in Section
2.2.
"Indemnified Depositary Agent Party" has the
meaning specified in Section 5.2.
"Independent Engineer Construction Certificate"
has the meaning specified in Section 3.1.1(c).
"Interest Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28186C.
"Interest Payment Date" means with respect to
any (i) Security, each May 30th and November 30th,
commencing November 30, 1995 and concluding on the Final
Maturity Date, (ii) Debt Service Reserve LOC Loan, each
May 30th and November 30th, or any other date as may be
agreed from time to time by the Funding Corporation and
the agent under the Debt Service Reserve LOC
Reimbursement Agreement, commencing on the first such
date after the applicable drawing, and any date on which
interest on such Debt Service Reserve LOC Loan becomes
due and payable at redemption, the final maturity date or
declaration of acceleration, or otherwise, and (iii) Debt
Service Reserve Bond, each May 30th and November 30th,
commencing on the first such date after the applicable
conversion date, and any date on which interest on such
Debt Service Reserve Bond becomes due and payable at
redemption, the final maturity date or declaration of
acceleration, or otherwise.
"Liquidated Damages Sub-Funds" means,
collectively, the Zinc LD Sub-Fund, the Salton Sea Unit V
LD Sub-Fund, the Region 2/Turbo LD Sub-Fund and the LD
Holding Sub-Fund.
"Loss Proceeds Fund" means the Fund of such
name established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28187D.
"Non-Budgeted Operating and Maintenance Costs
Certificate" has the meaning specified in Section
3.2(c)(i)(A).
"Permitted Capital Expenditures" has the
meaning specified in Section 3.14(b).
"Permitted Investments" means investments in
securities that are: (i) direct obligations of the
United States or any agency thereof; (ii) obligations
fully guaranteed by the United States or any agency
thereof; (iii) certificates of deposit or bankers
acceptances issued by commercial banks (including the
Trustee or any of its Affiliates) organized under the
laws of the United States or of any political subdivision
thereof or under the laws of Canada, Japan, Switzerland
or any country that is a member of the European Economic
Community having a combined capital and surplus of at
least $250,000,000 and having long-term unsecured debt
securities then rated "A" or better by S&P or "A-2" or
better by Moody's (but at the time of investment not more
than $25,000,000 may be invested in such certificates of
deposit from any one bank); (iv) repurchase obligations
with a term of not more than seven days for underlying
securities of the types described in clauses (i) and (ii)
above, entered into with any financial institution
meeting the qualifications specified in clause (iii)
above; (v) open market commercial paper of any
corporation incorporated or doing business under the laws
of the United States or of any political subdivision
thereof having a rating of at least "A-1" from S&P and "P-
1" from Moody's (but at the time of investment not more
than $25,000,000 may be invested in such commercial paper
from any one company); (vi) auction rate securities or
money market preferred stock having one of the two
highest ratings obtainable from either S&P or Moody's
(or, if at any time neither S&P nor Moody's may be rating
such obligations, then from another nationally recognized
rating service acceptable to the Trustee); or (vii)
investments in money market funds or money market mutual
funds sponsored by any securities broker dealer of
recognized national standing (or an Affiliate thereof),
having an investment policy that requires substantially
all the invested assets of such fund to be invested in
investments described in any one or more of the foregoing
clauses having a rating of "A" or better by S&P or "A-2"
or better by Moody's (including money market funds for
which the Depositary Agent in its individual capacity,
its parent or any of its affiliates is investment manager
or adviser).
"Principal Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28186B.
"Principal Payment Date" means with respect to
(i) any Security, the date on which all or a portion of
the principal of such Security becomes due and payable as
provided therein or in the Indenture, whether on a
scheduled date for payment of principal at a Redemption
Date, the Final Maturity Date, a date of declaration of
acceleration or otherwise, (ii) any Debt Service Reserve
LOC Loan, each May 30th and November 30th, or any other
date as may be agreed from time to time by the Funding
Corporation and the agent under the Debt Service Reserve
LOC Reimbursement Agreement, commencing on the first such
date after the applicable drawing, and the date on which
all or a portion of the principal of such Debt Service
Reserve LOC Loan becomes due and payable at redemption,
the final maturity date or declaration of acceleration,
or otherwise, and (iii) any Debt Service Reserve Bond,
each May 30th and November 30th, commencing on the first
such date after the applicable conversion date, and any
date on which principal of such Debt Service Reserve Bond
becomes due and payable at redemption, the final maturity
date or declaration of acceleration, or otherwise.
"Redemption Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28187E.
"Region 2/Turbo Construction Costs" has the
meaning specified in Section 3.1.3(b).
"Region 2/Turbo Construction Fund" means the
Fund of such name established pursuant to Section 2.2 and
having the following account number at the Depositary
Agent: C28186F.
"Required Secured Parties" means, at any time,
Persons that at such time hold at least 33-1/3% of the
Combined Exposure, provided that for purposes of
directing actions of the Collateral Agent, (i) the
Funding Corporation shall convey, transfer and assign its
right to vote on all matters under the Intercreditor
Agreement to the Trustee and (ii) the Trustee shall be
entitled to vote on all matters under the Intercreditor
Agreement according to the aggregate principal amount of
the Outstanding Securities, subject, however, in all
events, to the terms and provisions of the Indenture.
"Requisition" means a Construction Requisition,
a Capital Expenditure Requisition, a Non-Budgeted
Operating and Maintenance Costs Certificate, a
Restoration Requisition or a Title Event Requisition.
"Responsible Officer" means the president or
any vice president, assistant vice president or the trust
officer of the Trustee to whom any matter has been
referred because of such officer's knowledge and
familiarity with the particular subject.
"Restoration Budget" has the meaning specified
in Section 3.8.
"Restoration Progress Payment Schedule" has the
meaning specified in Section 3.8.
"Restoration Requisition" has the meaning
specified in Section 3.8.
"Restoration Sub-Fund" means the sub-fund of
such name established pursuant to Section 2.2.
"Revenue Fund" means the Fund of such name
established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28186A.
"Salton Sea Unit V Construction Costs" has the
meaning specified in Section 3.1.2(b).
"Salton Sea Unit V Construction Fund" means the
Fund of such name established pursuant to Section 2.2 and
having the following account number at the Depositary
Agent: C28186E.
"Senior Debt" means all of the Permitted Debt
of the Funding Corporation other than Subordinated Debt.
"Series F Closing Date" means the date of
issuance and delivery of the Series F Securities.
"Title Event Requisition" has the meaning
specified in Section 3.8.
"Title Event Sub-Fund" means the sub-fund of
such name established pursuant to Section 2.2.
"Trigger Event" means (a)(i) an "Event of
Default" under the Indenture and an acceleration of all
or a portion of the indebtedness issued thereunder, (ii)
an "Event of Default" under the Debt Service Reserve LOC
Reimbursement Agreement and an acceleration of all or a
portion of the indebtedness incurred thereunder, (iii) an
"Event of Default" under a Senior Debt instrument and an
acceleration of all or a portion of the Debt issued
thereunder in an aggregate principal amount in excess of
$10,000,000 or (iv) there shall have occurred and be
continuing any Guarantee Event of Default under (x) the
Partnership Guarantee at a time when the Partnership
Project Note shall have been paid in full or (y) the
Royalty Guarantee at a time when the Royalty Project Note
shall have been paid in full, and such Guarantee Event of
Default, if it had been a Credit Agreement Event of
Default at a time prior to the payment in full of any
such Project Note, would have resulted in the
acceleration of such Project Note (assuming the exercise
by the Funding Corporation of its rights of acceleration
in respect of such Project Note pursuant to the terms of
the relevant Credit Agreement and the giving of any
applicable notices and passage of any applicable time
requirements thereunder); and in each case, the
Collateral Agent shall have, upon direction from the
Required Secured Parties (as defined in the Intercreditor
Agreement), declared such event to be a Trigger Event.
"Trigger Event Date" has the meaning specified
in Section 3.13.
"Zinc Construction Costs" has the meaning
specified in Section 3.1.1(b).
"Zinc Construction Fund" means the Fund of such
name established pursuant to Section 2.2 and having the
following account number at the Depositary Agent:
C28186D.
ARTICLE II
APPOINTMENT OF DEPOSITARY AGENT;
ESTABLISHMENT OF FUNDS
SECTION II.1 Acceptance of Appointment of
Depositary Agent. (a) The Depositary Agent hereby
agrees to act as such and to accept all cash, payments,
other amounts and Permitted Investments to be delivered
to or held by the Depositary Agent pursuant to the terms
of this Depositary Agreement and the Indenture. The
Depositary Agent shall hold and safeguard the Funds
during the term of this Depositary Agreement and shall
treat the cash, instruments and securities in the Funds
as monies, instruments and securities pledged by the
Guarantors to the Collateral Agent for the benefit of the
Secured Parties and the Funding Corporation to be held in
the custody of the Depositary Agent, as agent solely for
the Collateral Agent, in accordance with the provisions
of this Depositary Agreement. In performing its
functions and duties under this Depositary Agreement, the
Depositary Agent shall act solely as agent for the
Collateral Agent and, except in such capacity, does not
assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with
or for the Funding Corporation or any of the Guarantors.
(b) Neither the Funding Corporation nor any of
the Guarantors shall have any rights against or to monies
held in the Funds, as third party beneficiary or
otherwise, except the right to receive or make
requisitions of monies held in the Funds, as permitted by
this Depositary Agreement and the Indenture, and to
direct the investment of monies held in the Funds as
permitted by Section 3.10.
SECTION II.2 Establishment of Funds and Sub-
Funds. The Depositary Agent hereby establishes the
following funds (the "Funds") in the form of interest
bearing accounts and sub-accounts thereof, which shall be
maintained at all times until the termination of this
Depositary Agreement (provided that the Construction
Period Debt Service Fund shall terminate after all
required deposits into and withdrawals from such Fund
shall have been made in accordance with Section 3.1.4 and
each of the other Construction Funds shall terminate upon
Final Completion of the relevant New Project):
(a) Zinc Construction Fund;
(b) Salton Sea Unit V Construction Fund;
(c) Region 2/Turbo Construction Fund;
(d) Construction Period Debt Service Fund;
(e) Revenue Fund;
(f) Principal Fund;
(g) Interest Fund;
(h) Debt Service Reserve Fund;
(i) Distribution Fund;
(j) Distribution Suspense Fund;
(k) Loss Proceeds Fund;
(l) Redemption Fund;
(m) Capital Expenditure Fund; and
(n) Cash Fund.
The Funds referred to in clauses (f), (g), (i)
and (j) are not required to be separate accounts but may
be maintained as subaccounts of the Revenue Fund. To the
extent the Debt Service Reserve Fund is fully funded or
the amounts in such Fund, together with the Debt Service
Reserve Letter of Credit, equal the Debt Service Reserve
Required Balance, interest on the amounts in such Funds
shall be transferred to the Revenue Fund.
The following six sub-funds are hereby
established and created within the Loss Proceeds Fund:
(i) Restoration Sub-Fund;
(ii) Title Event Sub-Fund;
(iii) Zinc LD Sub-Fund;
(iv) Salton Sea Unit V LD Sub-Fund;
(v) Region 2/Turbo LD Sub-Fund; and
(vi) LD Holding Sub-Fund.
The following three sub-funds are hereby
established and created within the Debt Service Reserve
Fund:
(i) Debt Service Reserve Bond Sub-Fund;
(ii) Debt Service Reserve LOC Loan
Interest Sub-Fund; and
(iii) Debt Service Reserve LOC Loan
Principal Sub-Fund.
Certain additional sub-funds within certain of
the Funds may be established and created from time to
time in accordance with this Depositary Agreement.
All amounts from time to time held in each Fund
(other than amounts in the Debt Service Reserve Fund and
the Liquidated Damages Sub-Funds) shall be held (a) in
the name of the Depositary Agent, as agent for the
Collateral Agent for the benefit of the Secured Parties
and the Funding Corporation and (b) in the custody of the
Depositary Agent for the purposes and on the terms set
forth in this Depositary Agreement, the Indenture and the
Intercreditor Agreement and all such amounts shall
constitute a part of the Collateral and shall not
constitute payment of any Debt or any other obligation of
the Funding Corporation or any Guarantor until applied as
hereinafter provided. All amounts held from time to time
in the Debt Service Reserve Fund shall be held in the
name of the Depositary Agent, as agent for the Collateral
Agent, for the sole benefit of the Trustee, except for
those amounts (up to a maximum aggregate of $5,000,000
per fiscal year) available to be drawn in favor of the
Debt Service Reserve LOC Provider in respect of interest
due and payable, but unpaid, on outstanding Debt Service
Reserve LOC Loans, as set forth in Section 3.5(g). All
amounts held from time to time in the Liquidated Damages
Sub-Funds shall be held in the name of the Depositary
Agent, as agent for the Collateral Agent, for the sole
benefit of the Trustee.
SECTION II.3 Security Interest. (a) As
collateral security for the prompt and complete payment
and performance when due of all its obligations, each
Guarantor has pledged, assigned, hypothecated and
transferred to the Collateral Agent for the benefit of
the Secured Parties and the Funding Corporation, and has
granted to the Collateral Agent a Lien on and security
interest in and to, and in furtherance thereof hereby
pledges, assigns, hypothecates and transfers to the
Depositary Agent for the benefit of the Secured Parties
and the Funding Corporation, and hereby grants to the
Collateral Agent for the benefit of the Secured Parties
and the Funding Corporation a Lien on and security
interest in and to, (i) each Fund and (ii) all cash,
investments and securities at any time on deposit in any
Fund, including all income or gain earned thereon and any
proceeds thereof (collectively, the "Fund Collateral").
The Depositary Agent is the agent of the Collateral Agent
for the purpose of receiving payments contemplated
hereunder and for the purpose of perfecting the Lien of
the Collateral Agent for the benefit of the Secured
Parties and the Funding Corporation in and to the Funds
and all cash, investments and securities and any proceeds
thereof at any time on deposit in the Funds; provided
that the Depositary Agent shall not be responsible to
take any action to perfect such Lien except through the
performance of its express obligations hereunder or upon
the written direction of the Collateral Agent complying
with this Depositary Agreement and the Intercreditor
Agreement. Each of the Funds shall at all times be in
the exclusive possession of, and under the exclusive
domain and control of, the Depositary Agent, as agent for
the Collateral Agent.
SECTION II.4 Termination. This Depositary
Agreement shall remain in full force and effect until the
termination of the Intercreditor Agreement pursuant to
Section 27 thereof.
ARTICLE III
THE FUNDS
SECTION III.1 Construction Funds.
3.1.1 Zinc Construction Fund. (a) On the
Series F Closing Date, $126,317,000 shall be delivered to
the Depositary Agent and deposited in the Zinc
Construction Fund from the net proceeds of the sale of
the Series F Securities. The following amounts shall
(subject to Section 3.8) be delivered to the Depositary
Agent directly for deposit into the Zinc Construction
Fund, or if received by Minerals LLC, as soon as
practicable upon receipt:
(i) all Equity Contributions made by CalEnergy
pursuant to Sections 2(a) of the Equity
Commitment Agreement;
(ii) all revenues actually received by Minerals
LLC from the Zinc Project prior to
Substantial Completion of the Zinc
Project;
(iii) all income from the investment of
monies in the Zinc Construction Fund
pursuant to Section 3.10;
(iv) all amounts required to be transferred to
the Zinc Construction Fund pursuant to
Section 3.8(iii); and
(v) all other amounts required to be
transferred to the Zinc Construction Fund
from any other Funds pursuant to this
Depositary Agreement.
(b) Until Final Completion of the Zinc
Project, amounts on deposit in the Zinc Construction Fund
shall be applied solely for the payment of (i) costs (or
reimbursement to the extent the same have been previously
paid or satisfied by or on behalf of Minerals LLC)
incurred in connection with the engineering, development,
construction and start-up of the Zinc Project and (ii)
any Operating and Maintenance Costs for the Zinc Project
prior to Final Completion thereof (collectively, "Zinc
Construction Costs") and for the payment of Zinc
Construction Costs reasonably expected to be incurred
during the 30-day period following the relevant Disburse
ment Date. All amounts withdrawn from the Zinc
Construction Fund shall be withdrawn in accordance with
the disbursement procedure hereinafter described in this
Section 3.1.1.
(c) As a condition precedent to any
withdrawal and transfer from the Zinc Construction Fund
there shall be filed with the Depositary Agent, with
respect to each Disbursement Date on which any such
withdrawal and transfer is requested to be made, (i) an
appropriately completed requisition in the form attached
hereto as Exhibit A-1 (a "Construction Requisition")
signed by an Authorized Representative of Minerals LLC
and (ii) an appropriately completed certificate of the
Independent Engineer in the form attached hereto as
Exhibit A-2 (an "Independent Engineer's Construction
Certificate") signed by an authorized representative of
the Independent Engineer, in each case dated not more
than five (5) days prior to, and received by the
Depositary Agent not less than three (3) Business Days
prior to, such Disbursement Date (as such date is set
forth in such Construction Requisition).
(d) On the Disbursement Date referred to in
clause (c) of this Section 3.1.1, or as soon thereafter
as possible following receipt of the Construction Requisi
tion referred to in such clause, the Depositary Agent
shall make payments in accordance with such Construction
Requisition. The Depositary Agent may conclusively rely
on any Construction Requisition in making any
disbursements under this clause (d).
(e) Upon Final Completion of the Zinc Project,
as evidenced by an Officer's Certificate delivered to the
Depositary Agent, amounts remaining in the Zinc
Construction Fund, if any, shall be transferred to the
Revenue Fund, the Salton Sea Unit V Construction Fund or
the Region 2/Turbo Construction Fund, as directed in such
Officer's Certificate.
3.1.2 Salton Sea Unit V Construction Fund.
(a) On the Series F Closing Date, $74,854,000 shall be
delivered to the Depositary Agent and deposited in the
Salton Sea Unit V Construction Fund from the net proceeds
of the sale of the Series F Securities. The following
amounts shall (subject to Section 3.8) be delivered to
the Depositary Agent directly for deposit into the Salton
Sea Unit V Construction Fund, or if received by Power
LLC, as soon as practicable upon receipt:
(ii) all Equity Contributions made by CalEnergy
pursuant to Section 2(b) of the Equity
Commitment Agreement;
(iii) all revenues actually received by
Power LLC from Salton Sea Unit V prior to
Substantial Completion of Salton Sea Unit
V;
(iv) all income from the investment of monies
in the Salton Sea Unit V Construction Fund
pursuant to Section 3.10;
(v) all amounts required to be transferred to
the Salton Sea Unit V Construction Fund
pursuant to Section 3.8(iii); and
(vi) all other amounts required to be
transferred to the Salton Sea Unit V
Construction Fund from any other Funds
pursuant to this Depositary Agreement.
(b) Until Final Completion of Salton Sea Unit
V, amounts on deposit in the Salton Sea Unit V
Construction Fund shall be applied solely for the payment
of (i) costs (or reimbursement to the extent the same
have been previously paid or satisfied by or on behalf of
Power LLC) incurred in connection with the engineering,
development, construction, start-up and operation of
Salton Sea Unit V and (ii) any Operating and Maintenance
Costs for Salton Sea Unit V prior to Final Completion
thereof (collectively, "Salton Sea Unit V Construction
Costs") and for the payment of Salton Sea Unit V
Construction Costs reasonably expected to be incurred
during the 30-day period following the relevant
Disbursement Date. All amounts withdrawn from the Salton
Sea Unit V Construction Fund shall be withdrawn in
accordance with the disbursement procedure hereinafter
described in this Section 3.1.2.
(c) As a condition precedent to any
withdrawal and transfer from the Salton Sea Unit V
Construction Fund there shall be filed with the
Depositary Agent, with respect to each Disbursement Date
on which any such withdrawal and transfer is requested to
be made, (i) an appropriately completed Construction
Requisition signed by an Authorized Representative of
Power LLC and (ii) an appropriately completed Independent
Engineer's Construction Certificate signed by an
authorized representative of the Independent Engineer, in
each case dated not more than five (5) days prior to, and
received by the Depositary Agent not less than three (3)
Business Days prior to, such Disbursement Date (as such
date is set forth in such Construction Requisition).
(d) On the Disbursement Date referred to in
clause (c) of this Section 3.1.2, or as soon thereafter
as possible following receipt of the Construction Requisi
tion referred to in such clause, the Depositary Agent
shall make payments in accordance with such Construction
Requisition. The Depositary Agent may conclusively rely
on any Construction Requisition in making any
disbursements under this clause (d).
(e) Upon Final Completion of Salton Sea Unit
V, as evidenced by an Officer's Certificate delivered to
the Depositary Agent, amounts remaining in the Salton Sea
Unit V Construction Fund, if any, shall be transferred to
the Revenue Fund, the Zinc Construction Fund or the
Region 2/Turbo Construction Fund, as directed in such
Officer's Certificate.
3.1.3 Region 2/Turbo Construction Fund. (a)
On the Series F Closing Date, $40,076,000 shall be
delivered to the Depositary Agent and deposited in the
Region 2/Turbo Construction Fund from the net proceeds of
the sale of the Series F Securities. The following
amounts shall (subject to Section 3.8) be delivered to
the Depositary Agent directly for deposit into the Region
2/Turbo Construction Fund, or if received by Turbo LLC,
Vulcan or Del Ranch, as soon as practicable upon receipt:
(ii) all Equity Contributions made by CalEnergy
pursuant to Section 2(c) of the Equity
Commitment Agreement;
(iii) all revenues actually received by
Turbo LLC from the Region 2/Turbo Project
prior to Substantial Completion of the
Region 2/Turbo Project;
(iv) all income from the investment of monies
in the Region 2/Turbo Construction Fund
pursuant to Section 3.10;
(v) all amounts required to be transferred to
the Region 2/Turbo Construction Fund
pursuant to Section 3.8(iii); and
(vi) all other amounts required to be
transferred to the Region 2/Turbo
Construction Fund from any other Funds
pursuant to this Depositary Agreement.
(b) Until Final Completion of the Region
2/Turbo Project, amounts on deposit in the Region 2/Turbo
Construction Fund shall be applied solely for the payment
of (i) costs (or reimbursement to the extent the same
have been previously paid or satisfied by or on behalf of
Turbo LLC, Vulcan or Del Ranch) incurred in connection
with the engineering, development, construction, start-up
and operation of the Region 2/Turbo Project and (ii) any
Operating and Maintenance Costs for the Region 2/Turbo
Project prior to Final Completion thereof (collectively,
"Region 2/Turbo Construction Costs") and for the payment
of Region 2/Turbo Construction Costs reasonably expected
to be incurred during the 30-day period following the
relevant Disbursement Date. All amounts withdrawn from
the Region 2/Turbo Construction Fund shall be withdrawn
in accordance with the disbursement procedure hereinafter
described in this Section 3.1.3.
(c) As a condition precedent to any
withdrawal and transfer from the Region 2/Turbo
Construction Fund there shall be filed with the
Depositary Agent, with respect to each Disbursement Date
on which any such withdrawal and transfer is requested to
be made, an appropriately completed Construction
Requisition signed by an Authorized Representative of
Turbo LLC, Vulcan or Del Ranch and dated not more than
five (5) days prior to, and received by the Depositary
Agent not less than three (3) Business Days prior to,
such Disbursement Date (as such date is set forth in such
Construction Requisition).
(d) On the Disbursement Date referred to in
clause (c) of this Section 3.1.3, or as soon thereafter
as possible following receipt of the Construction Requisi
tion referred to in such clause, the Depositary Agent
shall make payments in accordance with such Construction
Requisition. The Depositary Agent may conclusively rely
on any Construction Requisition in making any
disbursements under this clause (d).
(e) Upon Final Completion of the Region
2/Turbo Project, as evidenced by an Officer's Certificate
delivered to the Depositary Agent, amounts remaining in
the Region 2/Turbo Construction Fund, if any, shall be
transferred to the Revenue Fund, the Zinc Construction
Fund or the Salton Sea Unit V Construction Fund, as
directed in such Officer's Certificate.
3.1.4 Construction Period Debt Service Fund.
(a) On the Series F Closing Date, $23,575,000 shall be
delivered to the Depositary Agent and deposited in the
Construction Period Debt Service Fund from the net
proceeds of the sale of the Series F Securities. All
amounts received by the Depositary Agent pursuant to
Section 2(e) of the Equity Commitment Agreement shall be
deposited into the Construction Period Debt Service Fund.
All income from the investment of monies in the
Construction Period Debt Service Fund pursuant to Section
3.10 shall be redeposited into the Construction Period
Debt Service Fund.
(b) Until Final Completion of the New Projects
and final completion of the Permitted Capital
Expenditures in accordance with the plans and
specifications therefor, amounts on deposit in the
Construction Period Debt Service Fund shall be applied
solely for the payment of interest on, and other amounts
due in respect of (if any), the principal amount of the
Securities, at times and in amounts equal to the amounts
due and payable for Construction Debt Service. On any
date on which any Construction Debt Service is due, as
set forth in an Officer's Certificate delivered to the
Depositary Agent three (3) Business Days prior to such
date, the Depositary Agent shall withdraw from the
Construction Period Debt Service Fund an amount of monies
(as certified in such Officer's Certificate) sufficient
to pay such interest or other amounts and remit such
monies to the Persons entitled thereto for the payment of
such interest or other amounts. Upon Final Completion of
each of the New Projects and final completion of the
Permitted Capital Expenditures in accordance with the
plans and specifications therefor, as evidenced by an
Officer's Certificate delivered to the Depositary Agent,
amounts remaining in the Construction Period Debt Service
Fund, if any, shall be transferred to the Revenue Fund.
SECTION III.2 Revenue Fund. (a) The following
amounts shall (subject to Section 3.8) be delivered to
the Depositary Agent directly for deposit into the
Revenue Fund, or if received by a Guarantor, as soon as
practicable upon receipt, in either case in accordance
with this Section 3.2(a):
(i) subject to Section 3.1, all revenues
actually received by the Salton Sea
Guarantors from the Salton Sea Projects
and all revenues actually received by the
Partnership Project Companies from the
Partnership Projects;
(ii) all Equity Cash Flows and Royalties
received by CEOC and VPC;
(iii) to the extent not included in clause
(ii), all Equity Cash Flows and Royalties
received by CEOC under the Magma Services
Agreement and by VPC in respect of the
Vulcan Project;
(iv) all Royalties received by the Royalty
Guarantor;
(v) all amounts from any Construction Fund, to
the extent that, following Final
Completion of the relevant New Project,
there are excess funds in such
Construction Fund and the Funding
Corporation has not elected to deposit
such excess funds into another
Construction Fund;
(vi) other than amounts required to be
deposited into a Construction Fund
pursuant to Section 3.10 and to the extent
the Debt Service Reserve Fund is fully
funded or the amounts in such Fund (not
including any funds held in the Debt
Service Reserve Bond Sub-Fund, the Debt
Service Reserve LOC Loan Interest Sub-Fund
or the Debt Service Reserve LOC Loan
Principal Sub-Fund), together with the
Debt Service Reserve Letter of Credit,
equals the Debt Service Reserve Required
Balance, any income from the investment of
the monies in any of the Funds pursuant to
Section 3.10; and
(vii) all amounts required to be
transferred to the Revenue Fund from any
other Funds as contemplated under this
Depositary Agreement or as provided in
Section 7 of the Intercreditor Agreement.
If any of the foregoing amounts required to be deposited
with the Depositary Agent in accordance with the terms of
this Depositary Agreement are received by any Guarantor
(or any Affiliate of such Guarantor), such Guarantor
shall (or shall cause any such Affiliate to) hold such
payments in trust for the Collateral Agent and shall
promptly remit such payments to the Depositary Agent for
deposit in the Revenue Fund, in the form received, with
any necessary endorsements.
(b) In the event the Depositary Agent receives
monies without adequate instruction with respect to the
proper Fund in which such monies are to be deposited, the
Depositary Agent shall deposit such moneys into the
Revenue Fund, segregate such monies from all other
amounts on deposit in the Revenue Fund and notify the
Guarantors of the receipt of such monies. Upon receipt
of written instructions from any Guarantor, the
Depositary Agent shall transfer such monies from the
Revenue Fund to the Fund specified by such instructions
(other than the Distribution Fund).
(c) The Funding Corporation and each Guarantor
hereby irrevocably authorizes the Depositary Agent to
make withdrawals and transfers of monies on each Funding
Date (via wire transfer or otherwise in the discretion of
the Depositary Agent) to the extent then available in the
Revenue Fund, upon the delivery of an officer's
certificate of such Guarantor or the Funding Corporation
(or any of their duly authorized agents for such
purposes) to the Depositary Agent three (3) Business Days
prior to such Funding Date setting forth the amounts to
be withdrawn from the Revenue Fund and the amounts to be
transferred pursuant to this clause (c) pursuant to the
terms of this Depositary Agreement in the following order
of priority:
(i) First: To pay when due the
amount of Operating and Maintenance Costs (including
principal, interest and commitment fees due and
payable with respect to Working Capital Debt and
Debt incurred in connection with Interest Rate
Protection Agreements) of any Guarantor or the
Funding Corporation or otherwise in respect of any
Project as set forth in the officer's certificate of
such Guarantor or the Funding Corporation (or any of
their duly authorized agents for such purposes) and
certified by such officer's certificate to be the
good faith estimate of the amounts payable for
Operating and Maintenance Costs, and stating that
the proviso immediately below does not apply to such
withdrawal; provided that if the cumulative
Operating and Maintenance Costs of such Guarantor in
any fiscal year, including the amounts set forth in
such officer's certificate, exceed the projected
Operating and Maintenance Costs in the applicable
annual operating budget of such Guarantor by more
than 25%, then no amounts may be withdrawn on behalf
of such Guarantor to pay non-budgeted operating
costs unless there shall be filed with the
Depositary Agent:
(A) an officer's certificate of such
Guarantor substantially in the form attached
hereto as Exhibit B (the "Non-Budgeted
Operating and Maintenance Costs Certificate"),
dated not more than three (3) Business Days
prior to such requested Disbursement Date; or
(B) if the relevant Guarantor does
not certify that (i) such additional non-
budgeted costs are reasonably designed to
permit such Guarantor to satisfy its
obligations in respect of its Project Note and
maximize its revenue and net income and (ii) it
is reasonable to expect that (A) a Debt Service
Coverage Ratio of at least 1.4 to 1 will be
maintained for the next 12-month period if such
period ends prior to 2000 or (B) a Debt Service
Coverage Ratio of at least 1.5 to 1 will be
maintained for the next 12-month period if such
period ends after January 1, 2000, an
Independent Engineer's Certificate, in substan
tially the form attached as Appendix I to
Exhibit B, dated not more than three (3)
Business Days prior to such requested
Disbursement Date;
(ii) Second: After making each
applicable withdrawal and transfer specified in
clause (i) above, withdraw and transfer from the
Revenue Fund on each Funding Date, to the Depositary
Agent, the Trustee, the agent under the Debt Service
Reserve LOC Reimbursement Agreement, the agent for
the Working Capital Facility Provider and the
Collateral Agent any amounts set forth in an
officer's certificate of the Funding Corporation or
any Guarantor then due and payable to each of the
Depositary Agent, the Trustee, the Collateral Agent,
the agent under the Debt Service Reserve LOC
Reimbursement Agreement or the agent for the Working
Capital Facility Provider as Administrative Costs;
provided, however, that if monies in the Revenue
Fund are insufficient on any date to make the
payments specified in this clause (ii), distribution
of monies shall be made ratably to the specified
recipients based on the respective amounts owed such
recipients;
(iii) Third: After making each
applicable withdrawal and transfer specified in
clauses (i) and (ii) above, transfer an amount set
forth in an officer's certificate of the Funding
Corporation or any Guarantor from the Revenue Fund
on each Funding Date (A) to the Interest Fund an
amount which, together with the amount then in such
Fund and the amount in the Construction Period Debt
Service Fund which is allocated to pay interest on
the next succeeding Interest Payment Date pursuant
to Section 3.1.4, equals all of the interest due or
becoming due on the Securities and (without
duplication) the Project Notes, on the next
succeeding Interest Payment Date, (B) to the
Principal Fund an amount which, together with the
amount then in such Fund, equals all of the
principal and premium (if any) due or becoming due
on the Securities and (without duplication) the
Project Notes, on the next succeeding Principal
Payment Date, (C) to the agent under the Debt
Service Reserve LOC Reimbursement Agreement an
amount which equals all of the commitment, letter of
credit and fronting fees becoming due and payable
under the Debt Service Reserve LOC Reimbursement
Agreement on the next succeeding payment date, (D)
to the Debt Service Reserve LOC Loan Interest Sub-
Fund an amount which, together with the amount then
in such Sub-Fund, equals all of the interest due or
becoming due on any Debt Service Reserve LOC Loans
on the next succeeding Interest Payment Date, and
(E) to the Debt Service Reserve Bond Sub-Fund an
amount which, together with the amount then in such
Sub-Fund, equals all of the principal, premium (if
any) and interest due or becoming due on all of the
Debt Service Reserve Bonds on the next succeeding
Scheduled Payment Date; provided, however, that if
monies in the Revenue Fund are insufficient on any
date to make the payments specified in this clause
(iii), distribution of monies shall be made ratably
to the specified recipients based on the respective
amounts owed such recipients;
(iv) Fourth: After making each
applicable withdrawal and transfer specified in
clauses (i), (ii) and (iii) above, withdraw from the
Revenue Fund on each Funding Date, as set forth in
an officer's certificate of the Funding Corporation
or any Guarantor, and transfer (A) to the Debt
Service Reserve LOC Loan Principal Sub-Fund an
amount which, together with the amount then in such
Sub-Fund, equals all of the principal outstanding on
any Debt Service Reserve LOC Loans on the next
succeeding Principal Payment Date, (B) to the agent
under the Debt Service Reserve LOC Reimbursement
Agreement (1) any direct loss (but excluding any
indirect, consequential or incidental loss or
damage), cost or out-of-pocket expense which the
Debt Service Reserve LOC Provider or such other
financial institution providing a Debt Service
Reserve LOC Loan incurs as a result of a prepayment
of any Debt Service Reserve LOC Loan bearing
interest at a London interbank offered rate on a
date which is not the last day of the applicable
interest period, to the extent that such loss, cost
or expense is required to be paid to the Debt
Service Reserve LOC Provider and such other
financial institutions under the agreement
evidencing such Debt Service Reserve LOC Loan, and
(2) any amounts certified by the Debt Service
Reserve LOC Provider or any financial institution
providing a Debt Service Reserve LOC Loan to be
required to compensate such lender for amounts due
under Sections 2.15, 2.16 and/or 2.17 of the Debt
Service Reserve LOC Reimbursement Agreement (as in
effect on the Closing Date, or any such
corresponding section of any similar agreement
refinancing or replacing such Debt Service Reserve
LOC Reimbursement Agreement) and (C) if no Debt
Service Reserve Letter of Credit is outstanding, to
the Debt Service Reserve Fund an amount as necessary
to fund the Debt Service Reserve Fund up to the Debt
Service Reserve Required Balance; provided, however,
that if monies in the Revenue Fund are insufficient
on any date to make the payments specified in this
clause (iv), distribution of monies shall be made
ratably to the specified recipients based on the
respective amounts owed such recipients;
(v) Fifth: After making each
applicable withdrawal and transfer specified in
clauses (i), (ii), (iii) and (iv) above, withdraw
from the Revenue Fund on each Funding Date, as set
forth in an officer's certificate of the Funding
Corporation or any Guarantor, any indemnification
expenses or other amounts heretofore not paid and
required to be paid to any of the Secured Parties,
to the extent then due and payable, including,
without limitation amounts due under Section 2.7(i)
of the Debt Service Reserve LOC Reimbursement
Agreement (as in effect on the Closing Date, or any
such corresponding section of any similar agreement
refinancing or replacing such Debt Service Reserve
LOC Reimbursement Agreement); provided, however,
that if monies in the Revenue Fund are insufficient
on any date to make the payments specified in this
clause (v), distribution of monies shall be made
ratably to the specified recipients based on the
respective amounts owed such recipients;
(vi) Sixth: After making each
applicable withdrawal and transfer specified in
clauses (i), (ii), (iii), (iv) and (v) above,
transfer from the Revenue Fund on each Funding Date
any remaining amounts, as set forth in an officer's
certificate of the Funding Corporation or any
Guarantor, for transfer to the Distribution Fund;
and
(vii) Seventh: After making each
applicable withdrawal and transfer specified in
clauses (i), (ii), (iii), (iv), (v) and (vi) above,
transfer from the Distribution Fund any amounts, as
set forth in an officer's certificate of the Funding
Corporation or any Guarantor, in the Distribution
Fund which cannot be distributed because of the
failure to satisfy certain conditions to
distributions as set forth in Section 3.6(b), to the
Distribution Suspense Fund.
In the event the Securities are accelerated and
no foreclosure occurs within 180 days thereafter, then
principal of the Debt Service Reserve LOC Loans shall be
paid equally and ratably in priority Third in lieu of
priority Fourth above until such time as such foreclosure
has occurred or such acceleration has been rescinded or
otherwise remedied.
Notwithstanding the foregoing provisions of
clause (iv) above, if the Debt Service Reserve Letter of
Credit has not been renewed or reinstated by a date 3.5
years prior to its stated expiration date, monies
withdrawn and transferred as specified in clause (iv)
above for application in priority Fourth shall, during
such 3.5 year period and until either (1) the Outstanding
Amount (as defined in the Debt Service Reserve LOC
Reimbursement Agreement) of the Debt Service Reserve
Letter of Credit is reduced to zero and no Debt Service
Reserve LOC Loans are outstanding or (2) a replacement
Debt Service Reserve Letter of Credit issued by a Debt
Service Reserve LOC Provider is provided to the
Depositary Agent and the commitments of the lenders
providing such original Debt Service Reserve Letter of
Credit which has not been renewed or reinstated are
terminated in accordance with Section 2.21 of the Debt
Service Reserve LOC Reimbursement Agreement (as in effect
on the Closing Date, or such corresponding section of any
similar agreement refinancing or replacing such Debt
Service Reserve LOC Reimbursement Agreement), be
distributed (after making any distribution in sub-clause
(B) of clause (iv) above) ratably as follows: (a) to the
Debt Service Reserve LOC Loan Principal Sub-Fund for
application against the principal of any Debt Service
Reserve LOC Loans due or becoming due on the next
succeeding Principal Payment Date; and (b) to the Debt
Service Reserve Fund until the amount deposited therein
equals the Debt Service Reserve Required Balance (such
amount deposited under this clause (b), the "Debt Service
Reserve LOC Credit Amount").
The Funding Corporation, the Guarantors, the
Collateral Agent and the Depositary Agent hereby
acknowledge that amounts paid by the Guarantors and
transferred to the Principal Fund and Interest Fund
pursuant to the terms hereof and applied by the
Depositary Agent for payment of principal and interest
owed from time to time on any series of Securities shall
reduce by the amount paid by each such Guarantor the
outstanding principal amount of the respective Project
Note of such Guarantor.
SECTION III.3 Principal Fund. (a) Monies
deposited in the Principal Fund on any Funding Date shall
be allocated ratably among sub-funds of the Principal
Fund established for each series of Securities and
(without duplication) each Project Note based on the
principal and premium, if any, due and payable on the
Securities and Project Notes at the next succeeding
Principal Payment Date falling on or within six months
following such Funding Date. Except as otherwise
provided in this Depositary Agreement, monies in such sub-
funds shall be used for the payment (without
duplication), when due and payable (whether at the
Principal Payment Date or otherwise), of principal and
premium, if any, with respect to the related series of
Securities.
(b) On any Funding Date that amounts for
the payment of principal of and premium, if any, on any
given series or any specific notes or bonds within a
particular series of Securities and (without duplication)
any Project Note are due and payable and have been
requisitioned in accordance with Section 3.2(c), the
Depositary Agent shall withdraw the monies on deposit in
the sub-fund of the Principal Fund allocated for such
series of Securities, and remit such monies to the
Persons entitled thereto for the payment of such
principal and premium, if any; provided, however, that
the Depositary Agent shall segregate such amounts from
any other amounts on deposit in the Principal Fund until
such time as payment is made to Persons entitled thereto.
(c) In the event that monies in the
Principal Fund exceed the amount of money required by
this Depositary Agreement to be deposited therein after
giving effect to the payment made on such Principal
Payment Date, the Depositary Agent shall transfer such
excess monies from the Principal Fund to the Revenue Fund
on such Principal Payment Date.
SECTION III.4 Interest Fund. (a) On any date
that amounts for the payment of interest on any given
series of Securities and (without duplication) any
Project Note (after giving effect to and without
duplication of interest to be paid pursuant to Section
3.1.4) are due and payable and have been requisitioned in
accordance with Section 3.2(c) (or if such day is not a
Business Day, then on the next succeeding Business Day),
the Depositary Agent shall withdraw the monies on deposit
in the sub-fund of the Interest Fund allocated for such
series of Securities, and remit such monies to the
Persons entitled thereto for the payment of such
interest, as requisitioned pursuant to Section 3.2(c);
provided, however, that the Depositary Agent shall
segregate such amounts from any other amounts on deposit
in the Interest Fund until such time as payment is made
to Persons entitled thereto.
(b) In the event that monies in the
Interest Fund exceed the amount of money required by this
Depositary Agreement to be deposited therein after giving
effect to the payment made on such Interest Payment Date,
the Depositary Agent shall transfer such excess monies
from the Interest Fund to the Revenue Fund on such
Interest Payment Date.
SECTION III.5 Debt Service Reserve Fund. (a)
On the Series F Closing Date the Funding Corporation and
the Guarantors will furnish to the Depositary Agent a
Debt Service Reserve Letter of Credit in an amount equal
to the Debt Service Reserve Required Balance from a
commercial bank or other financial institution whose long-
term unsecured debt obligations are rated at least "A" by
S&P and "A2" by Moody's, or otherwise make available to
the Depositary Agent for deposit in the Debt Service
Reserve Fund an amount equal to the Debt Service Reserve
Required Balance. Any Debt Service Reserve Letter of
Credit will be issued pursuant to the Debt Service
Reserve LOC Reimbursement Agreement. Notwithstanding
anything to the contrary set forth in this Depositary
Agreement, amounts in the Debt Service Reserve Bond Sub-
Fund, Debt Service Reserve LOC Loan Interest Sub-Fund and
Debt Service Reserve LOC Loan Principal Sub-Fund shall
not be included in determining the amount held in the
Debt Service Reserve Fund.
(b) On each date on which the Depositary
Agent is required to withdraw or transfer monies from the
Revenue Fund, the Principal Fund, the Interest Fund, the
Debt Service Reserve LOC Loan Interest Sub-Fund and the
Debt Service Reserve LOC Loan Principal Sub-Fund to meet
principal and interest payments on the Securities and
interest payments on the Debt Service Reserve LOC Loans,
the Depositary Agent shall first withdraw or transfer
(for and only for the above mentioned purposes and after
giving effect to the application of monies available in
any other Fund pursuant to this Agreement) monies then
held in such relevant Fund. To the extent that monies
then held in such relevant Funds are insufficient to fund
such withdrawal and transfer, as evidenced by the
officer's certificate in connection with such withdrawal
and transfer, one (1) Business Day prior to such date,
the Depositary Agent shall deliver to the Debt Service
Reserve LOC Provider on such date (i) a draft on the Debt
Service Reserve LOC Provider in an amount equal to the
lesser of (A) the Outstanding Amount (as defined in the
Debt Service Reserve LOC Reimbursement Agreement) of the
Debt Service Reserve Letter of Credit or (B) the amount
of such insufficiency and (ii) an appropriate certificate
with respect thereto if required by the Debt Service
Reserve Letter of Credit. The Depositary Agent shall
deposit the monies received from the Debt Service Reserve
LOC Provider in the relevant Fund or Funds.
(c) A determination as to the monies held
in the Debt Service Reserve Fund (not including any funds
held in the Debt Service Reserve Bond Sub-Fund, the Debt
Service Reserve LOC Loan Interest Sub-Fund or the Debt
Service Reserve LOC Loan Principal Sub-Fund) and/or the
aggregate maximum amount at the time available to be
drawn under the Debt Service Reserve Letter of Credit,
the then-current Debt Service Reserve Required Balance,
the ordinary course settlement amounts with respect to
all Interest Rate Protection Agreements and the interest
rate for all Additional Securities with a floating
interest rate which are not subject to Interest Rate
Protection Agreements (which interest rate for such
Additional Securities in effect at the time of
calculation shall be assumed to apply) shall be made by
the Funding Corporation or any Guarantor prior to each
Funding Date and immediately following any withdrawal of
amounts in the Debt Service Reserve Fund pursuant to
clause (b) above. As soon as practicable after making
any such determination, the Funding Corporation or any
Guarantor shall deliver to the Depositary Agent and the
Collateral Agent an officer's certificate setting forth
such determination and the then-current Debt Service
Reserve Required Balance. If such determination
indicates that the amount of the monies held in the Debt
Service Reserve Fund (not including any funds held in the
Debt Service Reserve Bond Sub-Fund, the Debt Service
Reserve LOC Loan Interest Sub-Fund or the Debt Service
Reserve LOC Loan Principal Sub-Fund) plus the aggregate
maximum amount at the time available to be drawn under
the outstanding Debt Service Reserve Letter of Credit
exceeds the then-current Debt Service Reserve Required
Balance after giving effect to a payment on any date, the
Depositary Agent shall transfer such excess monies held
in the Debt Service Reserve Fund to the Revenue Fund on
such date.
(d) Forty-five (45) days prior to the
expiration of the Debt Service Reserve Letter of Credit
delivered to the Depositary Agent in respect of the Debt
Service Reserve Fund, provided that the Debt Service
Reserve Letter of Credit has not been previously renewed,
extended or replaced, or if such day is not a Business
Day, on the next succeeding Business Day, the Depositary
Agent shall deliver to the Debt Service Reserve LOC
Provider on such date (i) a draft on the Debt Service
Reserve LOC Provider in an amount equal to the maximum
amount available to be drawn under the expiring Debt
Service Reserve Letter of Credit and (ii) an appropriate
certificate with respect thereto if required by the Debt
Service Reserve Letter of Credit. The Depositary Agent
shall deposit the monies received from the Debt Service
Reserve LOC Provider in payment of such draft in the Debt
Service Reserve Fund to be applied in accordance with
this Section 3.5.
(e) Forty-five (45) days after receipt of
notice from the Debt Service Reserve LOC Provider that
the long-term debt securities of such Debt Service
Reserve LOC Provider are rated less than "A" as
determined by S&P or "A2" as determined by Moody's, or if
such day is not a Business Day, the next succeeding
Business Day, provided that the Debt Service Reserve
Letter of Credit has not been replaced with a Debt
Service Reserve Letter of Credit issued by a new Debt
Service Reserve LOC Provider, the Depositary Agent shall
deliver to the Debt Service Reserve LOC Provider on such
date (i) a draft on the Debt Service Reserve LOC Provider
in an amount equal to the maximum amount available to be
drawn under the Debt Service Reserve Letter of Credit and
(ii) an appropriate certificate with respect thereto if
required by the Debt Service Reserve Letter of Credit.
The Depositary Agent shall deposit the monies received
from the Debt Service Reserve LOC Provider in payment of
such draft in the Debt Service Reserve Fund to be applied
in accordance with this Section 3.5.
(f) Upon receipt of a written notice from
the Debt Service Reserve LOC Provider that the Debt
Service Reserve Letter of Credit delivered to the
Depositary Agent will be terminated prior to its stated
expiration date, if, not less than five (5) Business Days
prior to the termination date as provided in such notice
of termination, the Debt Service Reserve Letter of Credit
has not been replaced with a Debt Service Reserve Letter
of Credit issued by a new Debt Service Reserve LOC
Provider, or other security reasonably acceptable to the
Depositary Agent, the Depositary Agent shall deliver to
the Debt Service Reserve LOC Provider (i) a draft on the
Debt Service Reserve LOC Provider in an amount equal to
the maximum amount available to be drawn under the
terminating Debt Service Reserve Letter of Credit and
(ii) an appropriate certificate with respect thereto if
required by the Debt Service Reserve Letter of Credit.
The Depositary Agent shall deposit the monies received
from the Debt Service Reserve LOC Provider in payment of
such draft in the Debt Service Reserve Fund to be applied
in accordance with this Section 3.5.
(g) Upon receipt of a written notice from
the Debt Service Reserve LOC Provider that interest is
due and payable, but unpaid, with respect to outstanding
Debt Service Reserve LOC Loans, the Depositary Agent
shall deliver to the Debt Service Reserve LOC Provider on
the date of such notice or as soon as practicable
thereafter (i) a draft on the Debt Service Reserve LOC
Provider in an amount equal to the amount of interest due
and payable (which, together with all drawings under the
Debt Service Reserve Letter of Credit in the current
fiscal year, shall not exceed $5,000,000 in the
aggregate) and (ii) an appropriate certificate with
respect thereto if required by the Debt Service Reserve
Letter of Credit. The Depositary Agent shall apply
monies received from the Debt Service Reserve LOC
Provider in payment of such amount of interest due and
payable.
(h) Monies deposited in the Debt Service
Reserve Bond Sub-Fund on any Funding Date shall be used
for the payment, when due and payable (whether at the
Scheduled Payment Date or otherwise), of principal and
interest with respect to any outstanding Debt Service
Reserve Bond at the next succeeding Scheduled Payment
Date falling on or within six (6) months following such
Funding Date. On any Funding Date that amounts for the
payment of principal and interest with respect to the
Debt Service Reserve Bond are due and payable and have
been requisitioned in accordance with Section 3.2(c), the
Depositary Agent shall withdraw the monies on deposit in
the Debt Service Reserve Bond Sub-Fund and remit such
monies to the agent under the Debt Service Reserve LOC
Reimbursement Agreement for such payments. In the event
that monies in the Debt Service Reserve Bond Sub-Fund
exceed the amount of money required by this Depositary
Agreement to be deposited therein after giving effect to
the payment made on such Scheduled Payment Date, the
Depositary Agent shall transfer such excess monies from
the Debt Service Reserve Bond Sub-Fund to the Revenue
Fund on such Scheduled Payment Date.
(i) Monies deposited in the Debt Service
Reserve LOC Loan Interest Sub-Fund on any Funding Date
shall be used for the payment, when due and payable
(whether at the Interest Payment Date or otherwise), of
interest with respect to any outstanding Debt Service
Reserve LOC Loans at the next succeeding Interest Payment
Date falling on or within six (6) months following such
Funding Date. On any Funding Date that amounts for the
payment of interest with respect to any Debt Service
Reserve LOC Loans are due and payable and have been
requisitioned in accordance with Section 3.2(c), the
Depositary Agent shall withdraw the monies on deposit in
the Debt Service Reserve LOC Loan Interest Sub-Fund and
remit such monies to the agent under the Debt Service
Reserve LOC Reimbursement Agreement for the payment of
such interest. In the event that monies in the Debt
Service Reserve LOC Loan Interest Sub-Fund exceed the
amount of money required by this Depositary Agreement to
be deposited therein after giving effect to the payment
made on such Interest Payment Date, the Depositary Agent
shall transfer such excess monies from the Debt Service
Reserve LOC Loan Interest Sub-Fund to the Revenue Fund on
such Interest Payment Date.
(j) Monies deposited in the Debt Service
Reserve LOC Loan Principal Sub-Fund on any Funding Date
shall be used for the payment, when due and payable
(whether at the Principal Payment Date or otherwise), of
principal with respect to any outstanding Debt Service
Reserve LOC Loans at the next succeeding Principal
Payment Date falling on or within six (6) months
following such Funding Date. On any Funding Date that
amounts for the payment of principal with respect to any
Debt Service Reserve LOC Loans are due and payable and
have been requisitioned in accordance with Section
3.2(c), the Depositary Agent shall withdraw the monies on
deposit in the Debt Service Reserve LOC Loan Principal
Sub-Fund and remit such monies to the Debt Service
Reserve LOC Provider for the payment of such principal.
In the event that monies in the Debt Service Reserve LOC
Loan Principal Sub-Fund exceed the amount of money
required by this Depositary Agreement to be deposited
therein after giving effect to the payment made on such
Principal Payment Date, the Depositary Agent shall
transfer such excess monies from the Debt Service Reserve
LOC Loan Principal Sub-Fund to the Revenue Fund on such
Principal Payment Date.
SECTION III.6 Distribution Fund. (a) On any
Funding Date that all of the conditions set forth in
Section 3.6(b) are satisfied, the Depositary Agent shall
make payments from the Distribution Fund to such Persons
as may be directed in writing by the Guarantors.
(b) The Distribution Fund will be funded
from monies transferred from the Revenue Fund after all
other then-required amounts have been paid as provided in
Section 3.2(c). Distributions may be made only from and
to the extent of monies on deposit in the Distribution
Fund. Such distributions are subject to the prior
satisfaction of the following conditions:
(i) the amounts contained in the
Principal Fund and Interest Fund shall be equal to
or greater than the aggregate principal and interest
payments next due on the Securities and (without
duplication) the Project Notes (without duplication
of interest to be paid pursuant to Section 3.1.4);
(ii) no Default or Event of Default
under the Indenture shall have occurred and be
continuing;
(iii) the Debt Service Coverage
Ratio for the preceding four (4) fiscal quarters,
measured as one (1) annual period (or, with respect
to any proposed distribution date prior to the first
anniversary of the Closing Date, for the period
commencing with the Closing Date and ending on the
first anniversary of the Closing Date, projected
results for any portion of such period (certified by
an officer of the Funding Corporation) shall be used
when actual results are not available), is equal to
or greater than 1.4 to 1.0, if such distribution
date occurs prior to the year 2000, and, if such
distribution date occurs in or subsequent to the
year 2000, is equal to or greater than 1.5 to 1.0,
as certified by an Authorized Officer of the Funding
Corporation;
(iv) the projected Debt Service
Coverage Ratio for the succeeding four (4) fiscal
quarters, measured as one (1) annual period, is
equal to or greater than 1.4 to 1.0, if such
distribution date occurs prior to the year 2000,
and, if, such distribution date occurs in or
subsequent to the year 2000, is equal to or greater
than 1.5 to 1.0, as certified by an Authorized
Officer of the Funding Corporation;
(v) the Debt Service Reserve Fund
shall have a balance equal to or greater than the
Debt Service Reserve Required Balance or a Debt
Service Reserve Letter of Credit in an amount at
least equal to (collectively with the balance, if
any, then in such Debt Service Reserve Fund) the
Debt Service Reserve Required Balance shall be
outstanding and available;
(vi) an Authorized Officer of the
Funding Corporation certifies (containing customary
assumptions and qualifications) that there are
sufficient geothermal resources to operate (A) the
Salton Sea Projects and the Partnership Projects
(other than the Zinc Project) at contract capacity
and (B) the Zinc Project at a level not materially
lower than the level contemplated in the Base Case
Projections (as adjusted pursuant to (x) an Approved
Completion Plan, (y) Section 2(j) of the Fourth
Supplemental Indenture or (z) Section 2(m) of the
Fourth Supplemental Indenture, if applicable), in
each case through the Final Maturity Date; and
(vii) Substantial Completion of each
New Project has occurred on or prior to the
Guaranteed Substantial Completion Date for such New
Project, as certified by an Authorized Officer of
the Funding Corporation; provided that,
notwithstanding that such condition is not
satisfied, distributions may be made if (A) (x) if
such condition is not satisfied with respect to the
Zinc Project, Series F Securities having an
aggregate principal amount of $140,520,000 have been
redeemed pursuant to Section 2(m) of the Fourth
Supplemental Indenture, (y) if such condition is not
satisfied with respect to Salton Sea Unit V, Series
F Securities having an aggregate principal amount of
$83,272,000 have been redeemed pursuant to Section
2(m) of the Fourth Supplemental Indenture, and (z)
if such condition is not satisfied with respect to
the Region 2/Turbo Project, Series F Securities
having an aggregate principal amount of $44,581,000
have been redeemed pursuant to Section 2(m) of the
Fourth Supplemental Indenture, or (B) for each New
Project with respect to which such condition is not
satisfied, the Funding Corporation and the
Guarantors take such actions as the Rating Agencies
require in order for the Rating Agencies to confirm
in writing to the Trustee that such failure of such
New Project to achieve Substantial Completion by the
Guaranteed Substantial Completion Date therefor or
such abandonment, as the case may be, will not
result in a Rating Downgrade, and the Rating Agen
cies issue such written confirmation; provided,
further, that this condition to distribution shall
apply with respect to any New Project only (x) after
the Guaranteed Substantial Completion Date for such
New Project, or (y) if the construction of such New
Project has been abandoned, in each case as set
forth in the Officer's Certificate delivered to the
Trustee pursuant to Section 5.21 of the Indenture.
SECTION III.7 Distribution Suspense Fund. On
any Funding Date on which any of the conditions precedent
to distributions in Section 3.6(b) are not satisfied, the
Depositary Agent shall transfer all monies held in the
Distribution Fund to the Distribution Suspension Fund;
provided, however, that, after application of the last
sentence of this Section 3.7, the Depositary Agent shall
transfer any remaining monies which were transferred to
the Distribution Suspense Fund solely because of a
failure to satisfy the condition precedent to
distributions set forth in Section 3.6(b)(vii) to one or
more of the Construction Funds for application in
accordance with Section 3.1, if so directed in an
Officer's Certificate of the Funding Corporation
delivered to the Depositary Agent. On any Business Day
thereafter on which the conditions to distributions set
forth in Section 3.6(b) are satisfied, upon delivery to
the Trustee, the Collateral Agent and the Depositary
Agent of an Officer's Certificate of the Funding
Corporation certifying that all such conditions to
distribution are now satisfied, the Depositary Agent
shall withdraw and transfer monies in the Distribution
Suspense Fund designated for such Funding Date to such
Persons as may be directed in writing by the Guarantors.
The Depositary Agent may conclusively rely on such
Officer's Certificate certifying that all conditions for
disbursement from the Distribution Fund have been met.
At any time that funds in the Revenue Fund are not
sufficient to pay any amounts which are due and payable
(other than by acceleration) and required to be paid with
proceeds of the Revenue Fund, then funds in the
Distribution Suspense Fund shall be transferred to the
Revenue Fund for distribution as provided therein.
SECTION III.8 Loss Proceeds Fund. (i) All
Loss Proceeds and Eminent Domain Proceeds received by any
Salton Sea Guarantor or, as the case may be, Partnership
Guarantor, shall be deposited in the Loss Proceeds Fund.
The Depositary Agent shall separately segregate such Loss
Proceeds and Eminent Domain Proceeds for distribution in
the manner as set forth below:
(A) In the event that the Salton Sea
Guarantors or, as the case may be, the Partnership
Guarantors, determine that the affected Salton Sea
Project or, as the case may be, Partnership Project,
cannot be rebuilt, repaired or restored to permit
operation of all or a portion of such Project on a
commercially reasonable basis following an Event of
Eminent Domain or Event of Loss, or that the Loss
Proceeds or the Eminent Domain Proceeds, together with
any other amounts that the Salton Sea Guarantors or, as
the case may be, the Partnership Guarantors, are willing
to commit or cause to be committed to such rebuilding,
repair or restoration, are not sufficient to permit such
rebuilding, repair or restoration, upon delivery to the
Depositary Agent and Collateral Agent of an officer's
certificate of the Salton Sea Guarantors or, as the case
may be, the Partnership Guarantors (containing customary
assumptions and qualifications), certifying to the
foregoing then, if such Loss Proceeds or Eminent Domain
Proceeds exceed $15,000,000, the Collateral Agent shall
deliver to the Depositary Agent an Allocation
Certificate. Upon receipt of the Allocation Certificate,
the Depositary Agent shall withdraw, transfer or
distribute the monies representing the Loss Proceeds or
the Eminent Domain Proceeds in the Loss Proceeds Fund to
the Redemption Fund.
(B) In the event that the Salton Sea
Guarantors or, as the case may be, the Partnership
Guarantors, determine not to rebuild, repair or restore
the affected Salton Sea Project or, as the case may be,
Partnership Project, following an Event of Eminent Domain
or Event of Loss, and such Loss Proceeds or Eminent
Domain Proceeds exceed $15,000,000, upon delivery to the
Depositary Agent and Collateral Agent of an officer's
certificate of the Salton Sea Guarantors or, as the case
may be, the Partnership Guarantors, certifying that the
Salton Sea Guarantors or, as the case may be, the
Partnership Guarantors, have determined not to rebuild,
repair or restore the affected Project, the Collateral
Agent shall deliver to the Depositary Agent an Allocation
Certificate. Upon receipt of the Allocation Certificate,
the Depositary Agent shall withdraw, transfer or
distribute the monies representing the Loss Proceeds or
the Eminent Domain Proceeds in the Loss Proceeds Fund to
the Redemption Fund.
(C) (1) In the event that the Salton
Sea Guarantors or, as the case may be, the Partnership
Guarantors, have determined to rebuild, repair or restore
all or a portion of the affected Salton Sea Project or,
as the case may be, Partnership Project, upon delivery to
the Depositary Agent and Collateral Agent of an officer's
certificate of the relevant Salton Sea Guarantor or, as
the case may be, Partnership Guarantor, certifying that
all or a portion, as applicable, of the Project will be
rebuilt, repaired or restored, the Depositary Agent shall
transfer the applicable Loss Proceeds or Eminent Domain
Proceeds, as the case may be, in the Loss Proceeds Fund
to the Restoration Sub-Fund. Amounts held in the
Restoration Sub-Fund shall be applied solely for the
payment of the costs of rebuilding, restoration or repair
of the affected Salton Sea Project or, as the case may
be, Partnership Project, as set forth below or as
otherwise contemplated herein. If the amount initially
deposited in the Restoration Sub-Fund with respect to any
Event of Loss or Event of Eminent Domain exceeds
$15,000,000 per Event of Loss or Event of Eminent Domain,
the relevant Salton Sea Guarantor or, as the case may be,
Partnership Guarantor, shall deliver to the Depositary
Agent, the Collateral Agent and the Trustee (x) a restora
tion budget (as amended, modified or supplemented from
time to time, the "Restoration Budget") prepared by the
relevant Salton Sea Guarantor or, as the case may be,
Partnership Guarantor, identifying all categories and
approximate amounts reasonably anticipated to be incurred
in connection with the rebuilding, restoration or repair,
together with a statement of uses of proceeds of the
Restoration Sub-Fund and any other monies necessary to
complete the rebuilding, restoration or repair, and (y) a
restoration progress payment schedule (as amended,
modified or supplemented from time to time, the
"Restoration Progress Payment Schedule") determined by
the Guarantors for the projected requisitions to be made
from the Restoration Sub-Fund.
(2) Before any withdrawal or transfer
shall be made from the Restoration Sub-Fund, there shall
be filed with the Depositary Agent with respect to each
Disbursement Date:
(I) a requisition from the relevant
Salton Sea Guarantor or, as the case may be,
Partnership Guarantor, substantially in the
form attached hereto as Exhibit C (a
"Restoration Requisition"), dated not more than
three (3) Business Days prior to such
Disbursement Date as set forth therein on which
such withdrawal and transfer is requested to be
made, signed by an Authorized Representative of
the relevant Salton Sea Guarantor or, as the
case may be, Partnership Guarantor;
(II) if the amount requested in
any consecutive twelve-month period with
respect to any Event of Loss or Event of
Eminent Domain exceeds $30,000,000 in the
aggregate for all Projects affected by such
occurrence, an Independent Engineer's Certifi
cate in the form attached hereto as Appendix I
to Exhibit C, dated not more than three
(3) Business Days prior to the Disbursement
Date; and
(III) if clause (II) above does not
apply, the Restoration Requisition shall so
state.
(3) On the Disbursement Date referred to
in Section 3.8(i)(C)(2) or as soon thereafter as
practicable following receipt of the documents described
in Sections 3.8(i)(C)(2)(I) through (III) above, the
Depositary Agent shall withdraw and transfer from the
Restoration Sub-Fund and shall pay to the relevant Salton
Sea Guarantor or, as the case may be, Partnership
Guarantor, or to Persons directed by it in writing the
amounts set forth in the Restoration Requisition.
(4) Upon completion of any rebuilding,
restoration or repair of all or a portion of the affected
Salton Sea Project or, as the case may be, Partnership
Project, there shall be filed with the Depositary Agent
and the Collateral Agent an officer's certificate of the
relevant Salton Sea Guarantor or, as the case may be,
Partnership Guarantor, certifying that the completion of
the rebuilding, restoration or repair has been performed
in accordance with standard industry practices and the
amount, if any, required in its opinion to be retained in
the Restoration Sub-Fund for the payment of any remaining
costs of rebuilding, restoration or repair not then due
and payable or the liability for payment of which is
being contested or disputed by the Salton Sea Guarantors
or the Partnership Guarantors, as the case may be, and
for the payment of reasonable contingencies following
completion of the rebuilding, restoration or repair.
Upon receipt of such officer's certificate, the
Depositary Agent shall transfer the amount remaining in
the Restoration Sub-Fund in excess of the amounts to
remain in the Restoration Sub-Fund as stated in the
officer's certificate of the Salton Sea Guarantors or, as
the case may be, Partnership Guarantors, first, to the
Salton Sea Guarantors or, as the case may be, Partnership
Guarantors, or to Persons directed by them in writing to
the extent of any amounts which have been expended in
connection with such rebuilding, restoration or repair
(as set forth in such officer's certificate) and not
previously reimbursed, and second, segregate the
remaining excess in the Restoration Sub-Fund from any
other amounts therein. If such remaining excess exceeds
$15,000,000, the Depositary Agent shall transfer all of
such monies in the Restoration Sub-Fund to the Redemption
Fund for the uses set forth in Section 3.8(i) and Section
3.9. If the remaining excess is equal to or less than
$15,000,000, the Depositary Agent shall transfer such
monies to the Revenue Fund. Thereafter, upon receipt of
an officer's certificate of the Salton Sea Guarantors or,
as the case may be, Partnership Guarantors, certifying
payment of all costs of rebuilding, restoration or repair
of the affected Project, the Depositary Agent shall
transfer any amounts remaining in the Restoration Sub-
Fund to the Revenue Fund.
(D) In the event that the Salton Sea
Guarantors or, as the case may be, Partnership
Guarantors, determine (x) in accordance with Section
3.8(i)(A) that such affected Salton Sea Project or, as
the case may be Partnership Project, cannot be rebuilt,
repaired or restored to permit operation of all or a
portion of such Project on a commercially reasonable
basis following an Event of Loss or Event of Eminent
Domain, or (y) in accordance with Section 3.8(i)(B), not
to rebuild, repair or restore the affected Salton Sea
Project or, as the case may be, Partnership Project, and
in either case such Loss Proceeds or Eminent Domain
Proceeds are equal to or less than $15,000,000, the
Depositary Agent shall withdraw and transfer such monies
to the Revenue Fund.
(ii) All Title Event Proceeds
received by the Salton Sea Guarantors or, as the case may
be, Partnership Guarantors, shall be deposited in the
Loss Proceeds Fund. The Depositary Agent shall
separately segregate such Title Event Proceeds for
distribution in the manner set forth below:
(A) Title Event Proceeds in respect of
any particular Title Event shall be transferred by
the Depositary Agent as follows: (i) the first
$25,000,000 of Title Event Proceeds shall be
transferred to the Title Event Sub-Fund; and (ii)
Title Event Proceeds exceeding $25,000,000 in
respect of such Title Event shall (a) be transferred
to the Revenue Fund (to the extent such excess
proceeds do not exceed $5,000,000) and (b) be
transferred to the Redemption Fund (to the extent
such excess proceeds exceed $5,000,000). Amounts
held in the Title Event Sub-Fund shall be applied in
an effort to remedy the Title Event and for payment
of expenses incurred in connection therewith, as set
forth below.
(B) Before any withdrawal and transfer
shall be made from the Title Event Sub-Fund, there
shall be filed with the Depositary Agent and the
Collateral Agent with respect to each Disbursement
Date a requisition from the relevant Salton Sea
Guarantor or, as the case may be, Partnership
Guarantor, substantially in the form attached hereto
as Exhibit D (a "Title Event Requisition"), dated
not more than three (3) Business Days prior to such
Disbursement Date as set forth therein on which such
withdrawal and transfer is requested to be made,
signed by an Authorized Representative of the
relevant Salton Sea Guarantor or, as the case may
be, Partnership Guarantor.
(C) On the Disbursement Date referred to
in Section 3.8(ii)(B) or as soon thereafter as
practicable following receipt of the Title Event
Requisition described in Section 3.8(ii)(B) above,
the Depositary Agent shall withdraw and transfer
from the Title Event Sub-Fund and shall pay to the
Salton Sea Guarantors or, as the case may be,
Partnership Guarantors, or Persons directed by them
in writing the amounts set forth in such Title Event
Requisition.
(D) Upon completion of the effort to
remedy the Title Event there shall be filed with the
Depositary Agent and the Collateral Agent an
officer's certificate of the Salton Sea Guarantors
or, as the case may be, Partnership Guarantors,
certifying the result of the effort to remedy the
Title Event and the amount, if any, required in
their opinion to be retained in the Title Event Sub-
Fund for the payment of any remaining expenses.
Upon receipt of the officer's certificate described
in the immediately preceding sentence, the
Depositary Agent shall transfer the amount remaining
in the Title Event Sub-Fund in excess of the amounts
to remain in the Title Event Sub-Fund, as stated in
such officer's certificate, first, to the Salton Sea
Guarantors or, as the case may be, Partnership
Guarantors, or Persons directed by them in writing
to the extent of any amounts expended in connection
with such effort to remedy and not previously
reimbursed, and second, segregate the remaining
excess in the Title Event Sub-Fund from any other
amounts therein. If such excess exceeds $5,000,000,
the Depositary Agent shall transfer all of such
monies in the Title Event Sub-Fund to the Redemption
Fund. If the remaining excess is equal to or less
than $5,000,000, the Depositary Agent shall transfer
such monies to the Revenue Fund. Thereafter, upon
receipt of an officer's certificate of the Salton
Sea Guarantors or, as the case may be, Partnership
Guarantors, certifying payment of all costs of
remedying the Title Event, the Depositary Agent
shall transfer any amounts remaining in the Title
Event Sub-Fund to the Revenue Fund.
(iii) All Performance Liquidated Damages
received by or on behalf of Minerals LLC, Power LLC,
Turbo LLC, Vulcan and Del Ranch shall be deposited in the
Loss Proceeds Fund. The Depositary Agent shall
separately segregate such Performance Liquidated Damages
for distribution in the manner set forth below:
(A) All Performance Liquidated Damages
received by or on behalf of Minerals LLC shall be
deposited into the Zinc LD Sub-Fund. If, within 90
days after any date on which any Performance
Liquidated Damages are deposited into the Zinc LD
Sub-Fund, the Depositary Agent shall have received
an officer's certificate of Minerals LLC stating
that Minerals LLC has elected to use all or a
specified portion of such Performance Liquidated
Damages to pay costs associated with the
construction of the Zinc Project in accordance with
an Approved Completion Plan, together with a copy of
such Approved Completion Plan, the Depositary Agent
shall (1) transfer the amount of Performance
Liquidated Damages specified in such officer's
certificate to the Zinc Construction Fund for
application in accordance with Section 3.1.1 and
such Approved Completion Plan and (2) transfer the
remaining portion of such Performance Liquidated
Damages (if any) to (a) if the amount of such
portion is greater than $6,000,000, to the Mandatory
Redemption Fund held by the Trustee under the
Indenture for the pro rata redemption of Series F
Securities Outstanding in accordance with Section
2(l) of the Fourth Supplemental Indenture, or (b) if
the amount of such proceeds is less than or equal to
$6,000,000, to the LD Holding Sub-Fund. If, within
90 days after the date on which any Performance
Liquidated Damages are deposited into the Zinc LD
Sub-Fund, the Depositary Agent shall not have
received an officer's certificate of Minerals LLC
stating that Minerals LLC has elected to use all or
a specified portion of such Performance Liquidated
Damages to pay costs associated with the
construction of the Zinc Project in accordance with
an Approved Completion Plan, the Depositary Agent
shall transfer such Performance Liquidated Damages
(a) if the amount of such Performance Liquidated
Damages is greater than $6,000,000, to the Mandatory
Redemption Fund held by the Trustee under the
Indenture for the pro rata redemption of Series F
Securities Outstanding in accordance with Section
2(l) of the Fourth Supplemental Indenture, or (b) if
the amount of such Performance Liquidated Damages is
less than or equal to $6,000,000, to the LD Holding
Sub-Fund.
(B) All Performance Liquidated Damages
received by or on behalf of Power LLC shall be
deposited into the Salton Sea Unit V LD Sub-Fund.
Prior to the date (the "Unit V LD Refund End Date")
on which the Salton Sea Unit V EPC Contractor shall
no longer have any rights granted by Power LLC to
receive a refund of Performance Liquidated Damages
pursuant to Section 16.6 of the Salton Sea Unit V
EPC Contract, as evidenced by an officer's
certificate of Power LLC delivered to the Depositary
Agent, all amounts on deposit in or credited to the
Salton Sea Unit V LD Sub-Fund shall be applied
solely to refund Performance Liquidated Damages to
the Salton Sea Unit V EPC Contractor in accordance
with Section 16.6 of the Salton Sea Unit V EPC
Contract. All amounts withdrawn from the Salton Sea
Unit V LD Sub-Fund to refund Performance Liquidated
Damages to the Salton Sea Unit V EPC Contractor
shall be withdrawn in accordance with the
disbursement procedure described below:
(1) As a condition precedent to any withdrawal
and transfer from the Salton Sea Unit V LD
Sub-Fund to refund Performance Liquidated
Damages to the Salton Sea Unit V EPC
Contractor there shall be filed with the
Depositary Agent, with respect to each
Disbursement Date on which any such
withdrawal and transfer is requested to be
made, an appropriately completed
requisition in the form attached hereto as
Exhibit F (a "Liquidated Damages Refund
Requisition") signed by an Authorized
Representative of Power LLC and dated not
more than five (5) days prior to, and
received by the Depositary Agent not less
than three (3) Business Days prior to,
such Disbursement Date (as such date is
set forth in such Liquidated Damages
Refund Requisition).
(2) On the Disbursement Date referred to in
clause (1) of this Section 3.8(iii)(B), or
as soon thereafter as possible following
receipt of the Liquidated Damages Refund
Requisition referred to in such clause,
the Depositary Agent shall make payments
in accordance with such Liquidated Damages
Refund Requisition. The Depositary Agent
may conclusively rely on any Liquidated
Damages Refund Requisition in making any
disbursements under this clause (2).
If, within 90 days after the Unit V LD Refund End
Date, the Depositary Agent shall have received an
officer's certificate of Power LLC stating that
Power LLC has elected to use all or a specified
portion of such Performance Liquidated Damages to
pay costs associated with the construction of Salton
Sea Unit V in accordance with an Approved Completion
Plan, together with a copy of such Approved
Completion Plan, the Depositary Agent shall (1)
transfer the amount of Performance Liquidated
Damages specified in such officer's certificate to
the Salton Sea Unit V Construction Fund for applica
tion in accordance with Section 3.1.2 and such
Approved Completion Plan and (2) transfer the
remaining portion of such Performance Liquidated
Damages (if any) to (a) if the amount of such
portion is greater than $6,000,000, to the Mandatory
Redemption Fund held by the Trustee under the
Indenture for the pro rata redemption of Series F
Securities Outstanding in accordance with Section
2(l) of the Fourth Supplemental Indenture, or (b) if
the amount of such proceeds is less than or equal to
$6,000,000, to the LD Holding Sub-Fund. If, within
90 days after the Unit V LD Refund End Date, the
Depositary Agent shall not have received an
officer's certificate of Power LLC stating that
Power LLC has elected to use all or a specified
portion of such Performance Liquidated Damages to
pay costs associated with the construction of Salton
Sea Unit V in accordance with an Approved Completion
Plan, the Depositary Agent shall transfer such
Performance Liquidated Damages (a) if the amount of
such Performance Liquidated Damages is greater than
$6,000,000, to the Mandatory Redemption Fund held by
the Trustee under the Indenture for the pro rata
redemption of Series F Securities Outstanding in
accordance with Section 2(l) of the Fourth
Supplemental Indenture, or (b) if the amount of such
Performance Liquidated Damages is less than or equal
to $6,000,000, to the LD Holding Sub-Fund.
(C) All Performance Liquidated Damages
received by or on behalf of Turbo LLC, Vulcan or Del
Ranch shall be deposited into the Region 2/Turbo LD
Sub-Fund. Prior to the date (the "Region 2/Turbo LD
Refund End Date") on which the Region 2/Turbo EPC
Contractor shall no longer have any rights granted
by Turbo LLC, Vulcan or Del Ranch to receive a
refund of Performance Liquidated Damages pursuant to
Section 16.6 of the Region 2/Turbo EPC Contract, as
evidenced by an officer's certificate of Turbo LLC,
Vulcan and Del Ranch delivered to the Depositary
Agent, all amounts on deposit in or credited to the
Region 2/Turbo LD Sub-Fund shall be applied solely
to refund Performance Liquidated Damages to the
Region 2/Turbo EPC Contractor in accordance with
Section 16.6 of the Region 2/Turbo EPC Contract.
All amounts withdrawn from the Region 2/Turbo LD Sub-
Fund to refund Performance Liquidated Damages to the
Region 2/Turbo EPC Contractor shall be withdrawn in
accordance with the disbursement procedure described
below:
(1) As a condition precedent to any withdrawal
and transfer from the Region 2/Turbo LD
Sub-Fund to refund Performance Liquidated
Damages to the Region 2/Turbo EPC
Contractor there shall be filed with the
Depositary Agent, with respect to each
Disbursement Date on which any such
withdrawal and transfer is requested to be
made, an appropriately completed
Liquidated Damages Refund Requisition
signed by an Authorized Representative of
Turbo LLC, Vulcan or Del Ranch and dated
not more than five (5) days prior to, and
received by the Depositary Agent not less
than three (3) Business Days prior to,
such Disbursement Date (as such date is
set forth in such Liquidated Damages
Refund Requisition).
(2) On the Disbursement Date referred to in
clause (1) of this Section 3.8(iii)(C), or
as soon thereafter as possible following
receipt of the Liquidated Damages Refund
Requisition referred to in such clause,
the Depositary Agent shall make payments
in accordance with such Liquidated Damages
Refund Requisition. The Depositary Agent
may conclusively rely on any Liquidated
Damages Refund Requisition in making any
disbursements under this clause (2).
If, within 90 days after the Region 2/Turbo LD
Refund End Date, the Depositary Agent shall have
received an officer's certificate of Turbo LLC,
Vulcan or Del Ranch stating that Turbo LLC, Vulcan
or Del Ranch, as the case may be, has elected to use
all or a specified portion of such Performance Liqui
dated Damages to pay costs associated with the
construction of the Region 2/Turbo Project in
accordance with an Approved Completion Plan,
together with a copy of such Approved Completion
Plan, the Depositary Agent shall (1) transfer the
amount of Performance Liquidated Damages specified
in such officer's certificate to the Region 2/Turbo
Construction Fund for application in accordance with
Section 3.1.3 and such Approved Completion Plan and
(2) transfer the remaining portion of such
Performance Liquidated Damages (if any) to (a) if
the amount of such portion is greater than
$6,000,000, to the Mandatory Redemption Fund held by
the Trustee under the Indenture for the pro rata
redemption of Series F Securities Outstanding in
accordance with Section 2(l) of the Fourth
Supplemental Indenture, or (b) if the amount of such
proceeds is less than or equal to $6,000,000, to the
LD Holding Sub-Fund. If, within 90 days after the
Region 2/Turbo LD Refund End Date, the Depositary
Agent shall not have received an officer's
certificate of Turbo LLC, Vulcan or Del Ranch
stating that Turbo LLC, Vulcan or Del Ranch has
elected to use all or a specified portion of such
Performance Liquidated Damages to pay costs
associated with the construction of the Region
2/Turbo Project in accordance with an Approved
Completion Plan, the Depositary Agent shall transfer
such Performance Liquidated Damages (a) if the
amount of such Performance Liquidated Damages is
greater than $6,000,000, to the Mandatory Redemption
Fund held by the Trustee under the Indenture for the
pro rata redemption of Series F Securities
Outstanding in accordance with Section 2(l) of the
Fourth Supplemental Indenture, or (b) if the amount
of such Performance Liquidated Damages is less than
or equal to $6,000,000, to the LD Holding Sub-Fund.
(D) As soon as possible after the date on
which all Performance Liquidated Damages required to
be transferred to the LD Holding Sub-Fund in
accordance with this Section 3.8(iii) have been so
transferred, as evidenced by an officer's
certificate of Minerals LLC, Power LLC, Turbo LLC,
Vulcan and Del Ranch delivered to the Depositary
Agent, the Depositary Agent shall calculate the
aggregate amount of Performance Liquidated Damages
then on deposit in the LD Holding Sub-Fund. If such
aggregate amount of Performance Liquidated Damages
is greater than $6,000,000, the Depositary Agent
shall transfer such Performance Liquidated Damages
to the Mandatory Redemption Fund held by the Trustee
under the Indenture for the pro rata redemption of
Series F Securities Outstanding in accordance with
Section 2(l) of the Fourth Supplemental Indenture.
If such aggregate amount of Performance Liquidated
Damages is less than or equal to $6,000,000, the
Depositary Agent shall transfer such Performance
Liquidated Damages to the Revenue Fund for
application in accordance with Section 3.2(c).
SECTION III.9 Redemption Fund. (a) The
following amounts shall be delivered to the Depositary
Agent directly for deposit into the Redemption Fund, or
if received by a Guarantor, as soon as practicable upon
receipt, in either case in accordance with this Section
3.9(a), to the extent such amounts are available for
redemption of Securities under the Indenture:
(i) certain amounts from the Loss
Proceeds Fund received by the Salton Sea Guarantors
or, as the case may be, Partnership Guarantors, in
connection with an Event of Loss, an Event of
Eminent Domain or a Title Event, to the extent such
amounts are required to be transferred to the
Redemption Fund in accordance with Section 3.8; and
all Loss Proceeds and Eminent Domain Proceeds
received as Equity Cash Flows by CEOC or VPC;
(ii) proceeds realized in connection
with a Permitted Power Contract Buy-Out;
(iii) any net cash proceeds actually
received by Magma or any of its subsidiaries from
(i) any settlement or buy-out agreement between
Magma and SCE, regarding the BRPU Award, or between
Magma and San Diego Gas and Electric, a California
corporation, regarding the BRPU Award, or (ii) a
lump sum settlement payment (whether payable in one
payment or a series of lump sum installments) of
claims made by Magma and certain of its Affiliates
in the SCE Litigation, to the extent that any such
proceeds are required to be deposited in the
Redemption Fund pursuant to the Support Letter;
(iv) proceeds of Debt which is
incurred by the Partnership Project Companies to
fund an equity distribution to any of the Partner
ship Guarantors other than the Partnership Project
Companies; and
(v) proceeds received as a result of
foreclosure on the Collateral securing the
obligations of the Guarantors following a Trigger
Event caused by an event of default under a Credit
Agreement or a Guarantee.
If any of the foregoing amounts required to be deposited
with the Depositary Agent in the Redemption Fund are
received by any Guarantor (or any Affiliate of such
Guarantor), such Guarantor shall (or shall cause any such
Affiliate to) hold such payments in trust for the
Collateral Agent and shall promptly remit such payments
to the Depositary Agent for deposit in the Redemption
Fund, in the form received, with any necessary
endorsements.
(b) The Depositary Agent shall segregate
the amounts referred to in Section 3.9(a)(i) through (v)
above for distribution in the manner set forth below:
(i) Upon the receipt of those
amounts from the Loss Proceeds Fund described in
Section 3.9(a)(i), the Depositary Agent shall so
notify the Collateral Agent and the Trustee and
shall separately segregate such monies, and the
Collateral Agent shall deliver to the Depositary
Agent an Allocation Certificate. Upon receipt of
the Allocation Certificate described in the
immediately preceding sentence, the Depositary Agent
shall withdraw, transfer or distribute the amounts
described in Section 3.9(a)(i) no later than one (1)
Business Day prior to the Redemption Date
established pursuant to Section 3.2 of the
Indenture, (x) in the case of the Securities being
redeemed, as instructed by the Allocation
Certificate referred to above, to the Mandatory
Redemption Fund held by the Trustee, for the pro-
rata redemption of Securities Outstanding by the
Trustee in accordance with Section 3.3 of the
Indenture, and (y) in the case of other Senior Debt
then being redeemed or prepaid, as instructed by the
Allocation Certificate referred to above.
(ii)(A) Upon the receipt of those
amounts described in Section 3.9(a)(ii) and, within
ninety (90) days of such receipt, an Officer's
Certificate of the Funding Corporation certifying
that the Rating Agencies have confirmed that such
Permitted Power Contract Buyout will not result in a
Ratings Downgrade, the Depositary Agent shall
transfer such amounts to the Revenue Fund.
(B) Other than as described in
Section 3.9(b)(ii)(A), upon the receipt of those
amounts described in Section 3.9(a)(ii), the
Depositary Agent shall so notify the Collateral
Agent and the Trustee and separately segregate such
monies, and the Collateral Agent shall deliver to
the Depositary Agent an Allocation Certificate.
Upon receipt of the Allocation Certificate described
in the immediately preceding sentence and if an
officer's certificate as described in Section
3.9(b)(ii)(A) has not been received within ninety
(90) days after receipt of the Permitted Power
Contract Buy-Out proceeds, the Depositary Agent
shall withdraw, transfer or distribute the amounts
described in Section 3.9(a)(ii) no later than one
(1) Business Day prior to the Redemption Date
established pursuant to Section 3.2 of the
Indenture, (x) in the case of the Securities being
redeemed, as instructed by the Allocation
Certificate referred to above, to the Mandatory
Redemption Fund held by the Trustee, for the pro
rata redemption of Securities Outstanding by the
Trustee in accordance with Section 3.3 of the
Indenture, and (y) in the case of other Senior Debt
then being redeemed or prepaid, as instructed by the
Allocation Certificate referred to above.
(iii) Upon the receipt of those
amounts described in Section 3.9(a)(iii), the
Depositary Agent shall transfer such amounts to the
Revenue Fund.
(iv) (A) Upon the receipt of those
amounts described in Section 3.9(a)(iv) and, within
ninety (90) days of such receipt, an officer's
certificate of the Partnership Guarantors certifying
that the Rating Agencies have confirmed that such
incurrence of Debt and distribution of proceeds as
an equity distribution will not result in a Ratings
Downgrade, the Depositary Agent shall transfer such
amounts to the Revenue Fund.
(B) Other than as described in
Section 3.9(b)(iv)(A), upon the receipt of those
amounts described in Section 3.9(a)(iv), the
Depositary Agent shall so notify the Collateral
Agent and the Trustee and separately segregate such
monies, and the Collateral Agent shall deliver to
the Depositary Agent an Allocation Certificate.
Upon receipt of the Allocation Certificate described
in the immediately preceding sentence, the
Depositary Agent shall withdraw, transfer or
distribute the amounts described in Section
3.9(a)(iv) hereof, no later than one (1) Business
Day prior to the Redemption Date established
pursuant to Section 3.2 of the Indenture, (x) in the
case of the Securities being redeemed, as instructed
by the Allocation Certificate referred to above, to
the Mandatory Redemption Fund held by the Trustee,
for the pro-rata redemption of Securities
Outstanding by the Trustee in accordance with
Section 3.3 of the Indenture, and (y) in the case of
other Senior Debt then being redeemed or prepaid, as
instructed by the Allocation Certificate referred to
above.
(v) Upon the receipt of those
amounts described in Section 3.9(a)(v), the
Depositary Agent shall so notify the Collateral
Agent and the Trustee and separately segregate such
monies, and the Collateral Agent shall deliver to
the Depositary Agent an Allocation Certificate which
sets forth the priorities established pursuant to
Section 6(d) of the Intercreditor Agreement. Upon
receipt of the Allocation Certificate described in
the immediately preceding sentence, the Depositary
Agent shall withdraw, transfer or distribute the
amounts described in Section 3.9(a)(v), no later
than one (1) Business Day prior to the Redemption
Date established pursuant to Section 3.2 of the
Indenture, (x) in the case of the Securities being
redeemed, as instructed by the Allocation
Certificate referred to above, to the Mandatory
Redemption Fund held by the Trustee, for the pro-
rata redemption of Securities Outstanding by the
Trustee in accordance with Section 3.3 of the Inden
ture, and (y) in the case of other Senior Debt then
being redeemed or prepaid, as instructed by the
Allocation Certificate referred to above; provided
that if the amounts described in Section 3.9(a)(v)
do not exceed $5,000,000, then such amounts shall be
transferred to the Revenue Fund.
SECTION III.10 Investment of Funds. Monies
held in any Fund created by and held under this
Depositary Agreement shall be invested and reinvested in
Permitted Investments at the written direction (which may
be in the form of a standing instruction) of an
Authorized Representative of the Funding Corporation or
any of the Guarantors; provided, however, that at any
time when (a) a Responsible Officer of the Depositary
Agent has received written notice that an Event of
Default under the Indenture shall have occurred and be
continuing or (b) an Authorized Representative of the
Funding Corporation or the Guarantors has not timely fur
nished such a written direction or, after a request by
the Depositary Agent, has not so confirmed a standing
instruction to the Depositary Agent, the Depositary Agent
shall invest such monies only in Permitted Investments
described in clause (i) of such definition of a maturity
of thirty (30) days or less. Such investments shall
mature in such amounts and have maturity dates or be
subject to redemption at the option of the holder thereof
on or prior to maturity as needed for the purposes of
such Funds, but in no event shall such investments mature
more than one (1) year after the date acquired. The
Depositary Agent shall at any time and from time to time
liquidate any or all of such investments prior to the
maturity as needed in order to effect the transfers and
withdrawals contemplated by this Depositary Agreement in
accordance with an officer's certificate of the Funding
Corporation or the Guarantors; provided that, in the
absence of timely receipt of such an officer's
certificate, the Depositary Agent shall liquidate any or
all such investments as so needed. In the event any such
investments are redeemed prior to the maturity thereof,
the Depositary Agent shall not be liable for any loss or
penalties relating thereto in the absence of gross negli
gence or willful misconduct. Any income or gain realized
from such investments shall be deposited (i) first, into
the Debt Service Reserve Fund until amounts in the Debt
Service Reserve Fund, together with the Debt Service
Reserve Letter of Credit, equal the Debt Service Reserve
Required Balance, and (ii) second, if amounts in the Debt
Service Reserve Fund, together with the Debt Service
Reserve Letter of Credit, equal the Debt Service Reserve
Required Balance, into the Revenue Fund; provided,
however, that any income or gain realized from
investments made with monies on deposit in any
Construction Fund shall be redeposited into such
Construction Fund. Any loss shall be charged to the
applicable Fund. The Depositary Agent shall not be
liable for any such loss other than by reason of its
willful misconduct or gross negligence. For purposes of
any income tax payable on account of any income or gain
on an investment, such income or gain shall be for the
account of the Guarantors or the Funding Corporation.
SECTION III.11 Disposition of Funds Upon
Retirement of Securities and Additional Securities. (a)
Upon the payment in full of the principal of, premium, if
any, and interest on any series of Securities, any
Project Note or issuance of Additional Securities such
that such series of Securities, such Project Note or
issuance of Additional Securities is no longer
outstanding, all amounts held in the Interest Fund, the
Principal Fund and the Debt Service Reserve Fund
allocated to such series of Securities, such Project Note
or issuance of Additional Securities, as the case may be,
shall upon the written direction of the Funding
Corporation or any Guarantor be transferred to the
Revenue Fund.
(b) Upon termination of the Intercreditor
Agreement and after payment in full of the principal of,
premium, if any, and interest on and all other amounts
due in respect of all the additional Permitted Debt, each
Project Note, all Securities Outstanding, all amounts
payable under the Working Capital Facility, the Debt
Service Reserve LOC Reimbursement Agreement and
termination of the Debt Service Reserve Letter of Credit
and all amounts payable to the Permitted Counterparties
under the Interest Rate Protection Agreements and after
payment in full of all Administrative Costs, and all
other amounts required to be paid hereunder, all amounts
remaining in any Fund established in Section 2.2 shall at
the written direction of the Funding Corporation be paid
by the Depositary Agent to the Funding Corporation.
SECTION III.12 Fund Balance Statements. The
Depositary Agent shall, on a monthly basis and at such
other times as the Collateral Agent or the Funding
Corporation may from time to time reasonably request,
provide to the Collateral Agent, the Guarantors and the
Funding Corporation fund balance statements in respect of
each of the Funds, sub-funds and amounts segregated in
any of the Funds. Such balance statements shall also
include deposits, withdrawals and transfers from and to
each Fund, sub-fund and segregated amount.
SECTION III.13 Trigger Events. (a) On and
after any date on which the Depositary Agent receives
written notice from the Collateral Agent pursuant to
Section 6 of the Intercreditor Agreement that a Trigger
Event has occurred (the date of receipt of such notice,
the "Trigger Event Date"), the Depositary Agent shall
thereafter accept all notices and instructions required
to be given to the Depositary Agent pursuant to the terms
of this Depositary Agreement only from the Collateral
Agent and not from any other Person and the Depositary
Agent shall not withdraw, transfer, pay or otherwise
distribute any monies in any of the Funds except pursuant
to such notices and instructions from the Collateral
Agent.
(b) On the Trigger Event Date, the Depositary
Agent shall render an accounting of all monies in the
Funds as of the Trigger Event Date to the Collateral
Agent.
(c) On and after the Trigger Event Date, the
Depositary Agent shall distribute all monies then held in
any Fund to the Collateral Agent for disposition pursuant
to Section 6 of the Intercreditor Agreement. The
proceeds of any sale, disposition or other realization
with respect to Collateral or Funding Corporation
Collateral held for the benefit of some but not all of
the Secured Parties shall be applied to the payment of
obligations owed to the parties for whose benefit the
specific Collateral or Funding Corporation Collateral was
held.
SECTION III.14 Capital Expenditure Fund. (a)
On the Series F Closing Date, $14,946,000 shall be
delivered to the Depositary Agent and deposited in the
Capital Expenditure Fund from the net proceeds of the
sale of the Series F Securities. All Equity
Contributions received by the Depositary Agent pursuant
to Section 2(d) of the Equity Commitment Agreement shall
be deposited into the Capital Expenditure Fund.
(b) Amounts held in the Capital Expenditure
Fund shall be applied solely for the payment (or
reimbursement to the extent the same shall have been
previously paid or satisfied by the relevant Guarantor)
of costs (including any interest paid) incurred in
connection with the modification, improvement, reworking,
maintenance and replacement from time to time of wells,
pipelines, gathering systems, equipment, facilities and
other capital expenditures in connection with or located
at the Partnership Projects (other than the Zinc Project
and the Region 2/Turbo Project) or the Salton Sea
Projects (other than Salton Sea Unit V) (collectively,
the "Permitted Capital Expenditures") and for the payment
of Permitted Capital Expenditures reasonably expected to
be incurred during the 30-day period following an
applicable Disbursement Date. All monies shall be
withdrawn in accordance with the disbursement procedure
hereinafter described in this Section 3.14.
(c) As a condition precedent to any withdrawal
and transfer from the Capital Expenditure Fund there
shall be filed with the Depositary Agent, with respect to
each Disbursement Date on which any such withdrawal and
transfer is requested to be made, an appropriately
completed requisition in the form attached hereto as
Exhibit E (a "Capital Expenditure Requisition") signed by
an Authorized Representative of the relevant Guarantor
and dated not more than five (5) days prior to, and
received by the Depositary Agent not less than three (3)
Business Days prior to, such Disbursement Date (as such
date is set forth in such Capital Expenditure
Requisition).
(d) On the Disbursement Date referred to in
clause (c) of this Section 3.14, or as soon thereafter as
possible following receipt of the Capital Expenditure
Requisition referred to in such clause, the Depositary
Agent shall make payments in accordance with such Capital
Expenditure Requisition. The Depositary Agent may
conclusively rely on any Capital Expenditure Requisition
in making any disbursements under this clause (d).
ARTICLE IV
DEPOSITARY AGENT
SECTION IV.1 Appointment of Depositary Agent,
Powers and Immunities. The Collateral Agent, on behalf
of the Secured Parties and the Funding Corporation under
the Intercreditor Agreement, hereby appoints the
Depositary Agent to act as its agent hereunder, with such
powers as are expressly delegated to the Depositary Agent
by the terms of this Depositary Agreement, together with
such other powers as are reasonably incidental thereto.
The Depositary Agent shall not have any duties or
responsibilities except those expressly set forth in this
Depositary Agreement. Without limiting the generality of
the foregoing, the Depositary Agent shall take all
actions as the Collateral Agent shall direct it to
perform in accordance with the express provisions of this
Depositary Agreement or as the Collateral Agent may
otherwise direct it to perform in accordance with the
provisions of this Depositary Agreement. Notwithstanding
anything to the contrary contained herein, the Depositary
Agent shall not be required to take any action which is
contrary to this Depositary Agreement or applicable law.
Neither the Depositary Agent nor any of its Affiliates
shall be responsible to any Secured Party for any
recitals, statements, representations or warranties made
by the Funding Corporation or the Guarantors contained in
this Depositary Agreement or any other Transaction
Document or in any certificate or other document referred
to or provided for in, or received by any Secured Party
under, the Indenture, this Depositary Agreement or any
other Transaction Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency
of this Depositary Agreement or any other Transaction
Document or any other document referred to or provided
for herein or therein or for any failure by the Funding
Corporation or any Guarantor to perform its obligations
hereunder or thereunder. The Depositary Agent shall not
be required to ascertain or inquire as to the performance
by the Funding Corporation or the Guarantors of any of
its obligations under the Indenture, this Depositary
Agreement, any other Financing Document or any other
document or agreement contemplated hereby or thereby.
The Depositary Agent shall not be (a) required to
initiate or conduct any litigation or collection
proceeding hereunder or under any other Security Document
or (b) responsible for any action taken or omitted to be
taken by it hereunder (except for its own gross
negligence or willful misconduct) or in connection with
any other Security Document. Except as otherwise
provided under this Depositary Agreement, the Depositary
Agent shall take action under this Depositary Agreement
only as it shall be directed in writing by the Collateral
Agent. Whenever in the administration of this Depositary
Agreement the Depositary Agent shall deem it necessary or
desirable that a factual matter be proved or established
in connection with the Depositary Agent taking, suffering
or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively
proved or established by a certificate of any Authorized
Representative of the Funding Corporation or the
Guarantors, or the Collateral Agent, if appropriate. The
Depositary Agent shall have the right at any time to seek
instructions concerning the administration of this
Depositary Agreement from the Collateral Agent or any
court of competent jurisdiction. The Depositary Agent
shall have no obligation to expend or risk its own funds
or otherwise incur any financial liability in the perfor
mance of any of its duties hereunder.
SECTION IV.2 Reliance by Depositary Agent.
The Depositary Agent shall be entitled to rely upon and
shall not be bound to make any investigation into the
facts or matters stated in any certificate, officer's
certificate of the Funding Corporation or the Guarantors,
Independent Engineer's certificate, Collateral Agent's
certificate or any other notice or other document
(including any cable, telegram, telecopy or telex)
believed by it to be genuine and to have been signed or
sent by or on behalf of the proper Person or Persons, and
upon advice and statement of legal counsel, independent
accountants and other experts selected by the Depositary
Agent and shall have no liability for its actions taken
thereupon, unless due to the Depositary Agent's willful
misconduct or gross negligence. Without limiting the
foregoing, the Depositary Agent shall be required to make
payments to the Secured Parties only as set forth herein.
The Depositary Agent shall be fully justified in failing
or refusing to take any action under this Depositary
Agreement or the Intercreditor Agreement (i) if such
action would, in the reasonable opinion of the Depositary
Agent, be contrary to applicable law or the terms of this
Depositary Agreement or the Intercreditor Agreement, (ii)
if such action is not specifically provided for in this
Depositary Agreement or the Intercreditor Agreement, it
shall not have received any such advice or concurrence of
the Collateral Agent as it deems appropriate, or (iii)
if, in connection with the taking of any such action that
would constitute an exercise of remedies under this
Depositary Agreement or the Intercreditor Agreement
(whether such action is or is intended to be an action of
the Depositary Agent or the Collateral Agent), it shall
not first be indemnified to its satisfaction by the
Secured Parties (other than the Trustee (in its
individual capacity) or the Collateral Agent (in its
individual capacity) or any other agent or trustee under
any of the Financing Documents (in their respective
individual capacities)) against any and all liability and
expense which may be incurred by it by reason of taking
or continuing to take any such action. The Depositary
Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Depositary
Agreement or the Intercreditor Agreement in accordance
with a request of the Collateral Agent (to the extent
that the Collateral Agent is expressly authorized to
direct the Depositary Agent to take or refrain from
taking such action), and such request and any action
taken or failure to act pursuant thereto shall be binding
upon all the Secured Parties.
SECTION IV.3 Court Orders. The Depositary
Agent is hereby authorized, in its exclusive discretion,
to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency
affecting any money, documents or things held by the
Depositary Agent. The Depositary Agent shall not be
liable to any of the parties hereto or any other Secured
Party, their successors, heirs or personal
representatives by reason of the Depositary Agent's
compliance with such writs, orders, judgments or decrees,
notwithstanding that such writ, order, judgment or decree
is later reversed, modified, set aside or vacated.
SECTION IV.4 Resignation or Removal. Subject
to the appointment and acceptance of a successor
Depositary Agent as provided below, the Depositary Agent
may resign at any time by giving thirty (30) days written
notice thereof to the Collateral Agent and the Funding
Corporation or the Guarantors, provided that in the event
the Depositary Agent is also the Collateral Agent and
Trustee, it must also at the same time resign as
Collateral Agent and Trustee. The Depositary Agent may
be removed at any time with cause by the Collateral
Agent. The Funding Corporation shall have the right to
remove the Depositary Agent upon thirty (30) days' notice
to the Secured Parties with or without cause, effective
upon the appointment of a successor Depositary Agent
under this Section 4.4, which is reasonably acceptable to
the Trustee. In the event that the Depositary Agent
shall decline to take any action without first receiving
adequate indemnity from the Funding Corporation or the
Guarantors, the Secured Parties or the Collateral Agent,
as the case may be, and, having received an indemnity,
shall continue to decline to take such action, the
Collateral Agent shall be deemed to have sufficient cause
to remove the Depositary Agent. In the event that the
Depositary Agent is also the Trustee, the Collateral
Agent shall have the right to remove the Depositary Agent
with or without cause. Upon any such resignation or
removal, the Collateral Agent shall have the right to
appoint a successor Depositary Agent, which Depositary
Agent shall be reasonably acceptable to the Funding
Corporation. If no successor Depositary Agent shall have
been appointed by the Collateral Agent and shall have
accepted such appointment within thirty (30) days after
the retiring Depositary Agent's giving of notice of
resignation or the removal of the retiring Depositary
Agent, then the retiring Depositary Agent may appoint a
successor Depositary Agent, which shall be a bank or
trust company reasonably acceptable to the Collateral
Agent and the Funding Corporation. Upon the acceptance
of any appointment as Depositary Agent hereunder by the
successor Depositary Agent, (a) such successor Depositary
Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the
retiring Depositary Agent, and the retiring Depositary
Agent shall be discharged from its duties and obligations
hereunder, and (b) the retiring Depositary Agent shall
promptly transfer all Funds within its possession or
control to the possession or control of the successor
Depositary Agent and shall execute and deliver such
notices, instructions and assignments as may be necessary
or desirable to transfer the rights of the retiring
Depositary Agent with respect to the Funds to the
successor Depositary Agent. After the retiring
Depositary Agent's resignation or removal hereunder as
Depositary Agent, the provisions of this Article IV and
of Article V shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it
while it was acting as Depositary Agent.
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
SECTION V.1 Expenses. The Funding Corporation
agrees to pay or reimburse all out-of-pocket expenses of
the Depositary Agent (including reasonable fees and
expenses for legal services) in respect of, or incident
to, the administration or enforcement of any of the
provisions of this Depositary Agreement or in connection
with any amendment, waiver or consent relating to this
Depositary Agreement.
SECTION V.2 Indemnification. The Funding
Corporation agrees to indemnify the Depositary Agent in
its capacity as such, and, in their capacity as such, its
officers, directors, shareholders, controlling persons,
employees, agents and servants (each an "Indemnified
Depositary Agent Party") from and against any and all
claims, losses, liabilities and expenses (including the
reasonable fees and expenses of counsel) growing out of
or resulting from this Depositary Agreement (including,
without limitation, performance under or enforcement of
this Depositary Agreement, but excluding any such claims,
losses or liabilities resulting from the Indemnified
Depositary Agent Party's gross negligence or willful
misconduct). This indemnity shall survive the
termination of this Depositary Agreement, and the
resignation or removal of the Depositary Agent. This
indemnity is extended in addition to, and not in
derogation or limitation of, the provisions of Section 12
of the Intercreditor Agreement.
SECTION V.3 Fees. On the Closing Date, and on
each anniversary of the Closing Date to and including the
Final Maturity Date, the Funding Corporation shall pay
the Depositary Agent an annual fee in an amount mutually
agreed on by the Funding Corporation and the Depositary
Agent.
ARTICLE VI
MISCELLANEOUS
SECTION VI.1 Amendments; Etc. No amendment or
waiver of any provision of this Depositary Agreement nor
consent to any departure by the Funding Corporation or
the Guarantors herefrom shall in any event be effective
unless the same shall be in writing and signed by the
Collateral Agent, the Depositary Agent, the Funding
Corporation and the Guarantors. Any such amendment,
waiver or consent shall be effective only in the specific
instance and for the specified purpose for which given.
SECTION VI.2 Addresses for Notices. All
notices, requests and other communications provided for
hereunder shall be in writing and, except as otherwise
required by the provisions of this Depositary Agreement,
shall be sufficiently given and shall be deemed given
when delivered or mailed by registered or certified mail,
postage prepaid, or sent by overnight delivery, telecopy,
telegram or telex, addressed to the parties as follows:
The Funding Corporation: Salton Sea Funding Corporation
302 South 36th Street
Suite 400-A
Omaha, Nebraska 68131
Telephone: (402) 341-4500
Fax: (402) 231-1658
Attention: Chief Financial
Officer
and a copy to: General Counsel
Fax: (402) 231-1658
The Salton Sea
Guarantors: c/o Salton Sea Power Company
302 South 36th Street
Suite 400-B
Omaha, Nebraska 68131
Telephone: (402) 341-4500
Fax: (402) 231-1658
Attention: Chief Financial
Officer
and a copy to: General Counsel
Fax: (402) 231-1658
The Partnership
Guarantors: c/o CalEnergy Operating
Corporation
302 South 36th Street
Suite 400-C
Omaha, Nebraska 68131
Telephone: (402) 341-4500
Fax: (402) 231-1658
Attention: Chief Financial
Officer
and a copy to: General Counsel
Fax: (402) 231-1658
The Royalty
Guarantor: Salton Sea Royalty Company
302 South 36th Street
Suite 400-D
Omaha, Nebraska 68131
Telephone: (402) 341-4500
Fax: (402) 231-1658
Attention: Chief Financial
Officer
and a copy to: General Counsel
Fax: (402) 231-1658
Collateral Agent: Chase Manhattan Bank and Trust
Company,National Association
101 California Street, #2725
San Francisco, California 94111
Telephone: (415) 954-9508
Fax: (415) 693-8850
Attention: Corporate Trust
Department
Depositary Agent: Chase Manhattan Bank and Trust
Company,National Association
101 California Street, # 2725
San Francisco, California 94111
Telephone: (415) 954-9508
Fax: (415) 693-8850
Attention: Corporate Trust
Department
SECTION VI.3 Governing Law; Terms. THIS
DEPOSITARY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
SECTION VI.4 Headings. Headings used in this
Depositary Agreement are for convenience of reference
only and do not constitute part of this Depositary
Agreement for any purpose.
SECTION VI.5 No Third Party Beneficiaries.
The agreements of the parties hereto are solely for the
benefit of the Funding Corporation, the Guarantors, the
Collateral Agent, the Depositary Agent and the Secured
Parties and their respective successors and assigns and
no Person (other than the parties hereto and such Secured
Parties) shall have any rights hereunder.
SECTION VI.6 No Waiver. No failure on the
part of the Depositary Agent, the Collateral Agent or any
Secured Party or any of their nominees or representatives
to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise by the Depositary Agent,
the Collateral Agent or any Secured Party or any of their
nominees or representatives of any right, power or remedy
preclude any further exercise thereof, or the exercise of
any other right, power or remedy.
SECTION VI.7 Severability. If any provision
of this Depositary Agreement or the application thereof
shall be invalid or unenforceable to any extent, (a) the
remainder of this Depositary Agreement and the
application of such remaining provisions shall not be
affected thereby and (b) each such remaining provision
shall be enforced to the greatest extent permitted by
law.
SECTION VI.8 Successors and Assigns. All
covenants, agreements, representations and warranties in
this Depositary Agreement by the Depositary Agent, the
Collateral Agent, the Funding Corporation and the
Guarantors shall bind and, to the extent permitted
hereby, shall inure to the benefit of and be enforceable
by their respective successors and assigns, whether so
expressed or not.
SECTION VI.9 Execution in Counterparts. This
Depositary Agreement may be executed in any number of
counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION VI.10 Appointment of Agent. CEOC is
hereby appointed as agent and attorney-in-fact for each
Guarantor to take all actions, to give all notices and to
deliver all certificates and requisitions and the like
hereunder.
SECTION VI.11 Consequential Damages. In no
event (other than with respect to its own gross
negligence or willful misconduct) shall the Depositary
Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Depositary Agent
has been advised of the likelihood of such loss or damage
and regardless of the form of action.
SECTION VI.12 Limitation of Liability.
Notwithstanding anything to the contrary contained in
this Depositary Agreement and the other Transaction
Documents, the liability and obligation of the Funding
Corporation or the Guarantors to perform and observe and
make good the obligations contained in this Depositary
Agreement and the other Security Documents shall not be
enforced by any action or proceeding wherein damages or
any money judgment or any deficiency judgment or any
judgment establishing any personal obligation or
liability shall be sought, collected or otherwise
obtained against any officer, director or shareholder or
related Person of the Funding Corporation or any of the
Guarantors or any Secured Party, and the Collateral
Agent, for itself and its successors and assigns, and on
behalf of the Secured Parties and the Funding
Corporation, irrevocably waives any and all right to sue
for, seek or demand any such damages, money judgment,
deficiency judgment or personal judgment against any
officer, director or shareholder or related Person of the
Funding Corporation or any of the Guarantors under or by
reason of or in connection with this Depositary Agreement
and agrees to look solely to the Funding Corporation and
the Guarantors and the security and Collateral and
Funding Corporation Collateral held under or in
connection with the Security Documents for the
enforcement of such liability and obligation of the
Funding Corporation and the Guarantors. Notwithstanding
the foregoing, the obligations of CalEnergy under the
Equity Commitment Agreement and of Magma under the
Support Letter, the Magma Assignment Agreement and the
Magma Services Agreement shall be recourse to each such
party, subject to the limitations, qualifications and
other terms of such documents.
IN WITNESS WHEREOF, the parties hereto have
caused this Depositary Agreement to be duly executed as
of the day and year first above written.
SALTON SEA FUNDING CORPORATION
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SALTON SEA POWER GENERATION L.P.
By: SALTON SEA POWER COMPANY,
as its general partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SALTON SEA BRINE PROCESSING L.P.
By: SALTON SEA POWER COMPANY,
as its general partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
FISH LAKE POWER COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SALTON SEA POWER L.L.C.
By: CE SALTON SEA INC.,
as its manager
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
VULCAN POWER COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CALENERGY OPERATING CORPORATION
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
BN GEOTHERMAL INC.
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
VULCAN/BN GEOTHERMAL POWER
COMPANY
By: VULCAN POWER COMPANY,
as its general partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SAN FELIPE ENERGY COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
LEATHERS, L.P.
By: CALENERGY OPERATING
CORPORATION, as its general
partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CONEJO ENERGY COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
DEL RANCH, L.P.
By: CALENERGY OPERATING
CORPORATION, as its general
partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
NIGUEL ENERGY COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
ELMORE, L.P.
By: CALENERGY OPERATING CORPO
RATION, as its general
partner
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CALENERGY MINERALS LLC
By: SALTON SEA MINERALS CORP.,
as its manager
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CE TURBO LLC
By: MAGMA POWER COMPANY,
as its manager
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SALTON SEA ROYALTY COMPANY
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Depositary Agent
By:
Name:
Title:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Collateral Agent
By:
Name:
Title:
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 4
SECTION 1.1Capitalized Terms 4
SECTION 1.2Definitions; Construction 4
ARTICLE II
APPOINTMENT OF DEPOSITARY AGENT;ESTABLISHMENT OF
FUNDS 12
SECTION 2.1Acceptance of
Appointment of Depositary Agent 12
SECTION 2.2Establishment of Funds and Sub-Funds 13
SECTION 2.3Security Interest 14
SECTION 2.4Termination 15
ARTICLE III THE FUNDS 15
SECTION 3.1Construction Funds 15
SECTION 3.2Revenue Fund 21
SECTION 3.3Principal Fund 27
SECTION 3.4Interest Fund 28
SECTION 3.5Debt Service Reserve Fund 29
SECTION 3.6Distribution Fund 33
SECTION 3.7Distribution Suspense Fund 35
SECTION 3.8Loss Proceeds Fund 35
SECTION 3.9Redemption Fund 41
SECTION 3.10 Investment of Funds 45
SECTION 3.11 Disposition of Funds Upon Retirement of
Securities and Additional Securities 46
SECTION 3.12 Fund Balance Statements 47
SECTION 3.13 Trigger Events 47
SECTION 3.14 Capital Expenditure Fund 47
ARTICLE IV DEPOSITARY AGENT 48
SECTION 4.1Appointment of Depositary Agent, Powers
and Immunities 48
SECTION 4.2Reliance by Depositary Agent 50
SECTION 4.3Court Orders 50
SECTION 4.4Resignation or Removal 51
ARTICLE VEXPENSES; INDEMNIFICATION; FEES 52
SECTION 5.1Expenses 52
SECTION 5.2Indemnification 52
SECTION 5.3Fees 52
ARTICLE VI MISCELLANEOUS 53
SECTION 6.1Amendments; Etc 53
SECTION 6.2Addresses for Notices 53
SECTION 6.3Governing Law; Terms 55
SECTION 6.4Headings 55
SECTION 6.5No Third Party Beneficiaries 55
SECTION 6.6No Waiver 55
SECTION 6.7Severability 55
SECTION 6.8Successors and Assigns 55
SECTION 6.9Execution in Counterparts 56
SECTION 6.10 Appointment of Agent 56
SECTION 6.11 Consequential Damages 56
SECTION 6.12 Limitation of Liability 56