EXHIBIT 4.32
CREDIT SUISSE
One Liberty Plaza
165 Broadway
New York, NY 10006
Irrevocable Standby Letter of Credit
Credit Suisse Letter of Credit No. TS-06000733
One Liberty Plaza Irrevocable Standby Credit
165 Broadway
New York, New York 10006
Date and Place of Issue: Date and Place of Expiry:
New York, New York Credit Suisse
July 21, 1995 New York, New York
July 21, 2002
Applicant:
Salton Sea Funding Corporation
302 South 36th Street
Suite 400-A
Omaha, Nebraska 68131
Beneficiary: Amount: Up to an aggregate
Chemical Trust Company of of Fifty Million
California, United States Dollars
as Depositary Agent (US$50,000,000.00)
50 California Street
10th Floor
San Francisco, California 94111
Attn: Corporate Trust Department
Credit Available With:
Credit Suisse
By: Negotiations, Against
Presentation of the Documents
Detailed Herein Drawn on
Credit Suisse
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the Applicant in
any amount up to an aggregate amount as of any date as set forth on Schedule I
hereto but in no event to exceed FIFTY MILLION UNITED STATES DOLLARS
(US$50,000,000.00) (as reduced or reinstated from time to time as set forth in
this Letter of Credit, the "Outstanding Amount") available against
presentation of a dated drawing request drawn on Credit Suisse, New York
Office, manually signed by an authorized officer of the Beneficiary (who is
identified as such) appropriately completed
in the form of Annex 1 hereto and sent by the Beneficiary's authorized
officer.
The above drawing request and all communications with respect to this Letter
of Credit shall be in writing, addressed to us at One Liberty Plaza, 165
Broadway, New York, New York, 10006, Attn: Trade Services, telecopier no.
(212) 238-2121, telex no. 420149, with a copy to 12 East 49th Street, 43rd
Floor, New York, New York 10017, Attn: Project Finance Department, telecopier
no. (212) 238-5390, telex no. 420149, referencing this Letter of Credit No.
TS-06000733 and presented to us by tested telex, delivery in person or
facsimile transmission at such address, provided that the original of the
above drawing request or such communications, as the case may be, shall be
sent to us at such address by overnight courier for receipt by us within three
(3) Business Days of the date of any such facsimile transmission.
If the drawing request is presented in compliance with the terms of this
Letter of Credit to us at such address by 12:00 noon New York City time on any
Business Day, payment will be made not later than 3:00 p.m. New York City time
on such day and if such drawing request is so presented to us after 12:00 noon
New York City time on any Business Day, payment will be made on the following
Business Day not later than 1:00 p.m. New York City time. Payment under this
Letter of Credit shall be made in immediately available funds by wire transfer
to such account as may be designated by the Beneficiary in the applicable
drawing request.
As used in this Letter of Credit, "Business Day" means any day on which
commercial banks located in New York, New York are not required or authorized
to remain closed.
This Letter of Credit shall expire on the later of the then applicable Stated
Expiration Date or New Stated Expiration Date (as each such term is
hereinafter defined), as the case may be.
Notwithstanding the foregoing, we may at any time, subject to the provisions
of the Debt Service Reserve Letter of Credit and Reimbursement Agreement dated
as of July 21, 1995 among the Applicant, the Banks party thereto and Credit
Suisse, as Agent (the "Debt Service Reserve Letter of Credit and Reimbursement
Agreement"), terminate this Letter of Credit by giving the Beneficiary and
Chemical Trust Company of California, as Trustee (in such capacity, the
"Trustee") under the Indenture referred to in the Debt Service Reserve Letter
of Credit and Reimbursement Agreement, written notice thereof in the form of
Annex 2 hereto by delivery in person or facsimile transmission (with written
confirmation by overnight courier for receipt by the Beneficiary and the
Trustee within two (2) Business Days) addressed to Chemical Trust Company of
California at 50 California Street, 10th Floor, San Francisco, California
94111, Attn: Corporate Trust Department, telecopier no. (415) 989-5241,
telephone no.
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(415) 954-9515, at least forty-five (45) days prior to termination, whereupon
the Beneficiary is authorized to draw on us prior to such termination the
Outstanding Amount of this Letter of Credit by presentation to us, in the
manner and at the address specified in the fourth preceding paragraph, of a
drawing request appropriately completed in the form of Annex 1 hereto and sent
and signed by the Beneficiary's authorized officer.
This Letter of Credit is effective immediately. Unless terminated earlier in
accordance with the provisions hereof, the date of expiry set forth
hereinabove (the "Stated Expiration Date") may be extended for a period of one
year effective upon the Stated Expiration Date and each annual anniversary of
the Stated Expiration Date (each such annual anniversary date being referred
to as the "New Stated Expiration Date") if notice that such Stated Expiration
Date or New Stated Expiration Date, as the case may be, shall be extended is
given by Credit Suisse to the Beneficiary and the Trustee by delivery in
person or facsimile transmission (with written confirmation by overnight
courier for receipt by the Beneficiary and the Trustee within two (2) Business
Days) addressed to Chemical Trust Company of California at 50 California
Street, 10th Floor, San Francisco, California 94111, Attn: Corporate Trust
Department in accordance with Section 2.2(b) of the Debt Service Reserve
Letter of Credit and Reimbursement Agreement.
In the event that a drawing request fails to comply with the terms of this
Letter of Credit, we shall provide the Beneficiary prompt notice of same
stating the reasons therefor and shall upon your instructions hold any
non-conforming drawing request and other documents at your disposal or return
any non-conforming drawing request and other documents to the Beneficiary at
the address set forth above by delivery in person or facsimile transmission
(with originals thereof sent by overnight courier for receipt within two (2)
Business Days). Upon being notified that the drawing was not effected in
compliance with this Letter of Credit, the Beneficiary may attempt to correct
such non-complying drawing request in accordance with the terms of this Letter
of Credit.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only defined terms used herein and the drawing requests and certificates
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument, or agreement except for such
defined terms, drawing requests and certificates.
This Letter of Credit may be assigned upon presentation to us of a signed
transfer certificate in the form of Annex 3 accompanied by this Letter of
Credit, in which the Beneficiary irrevocably
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transfers to such transferee all of its rights hereunder, whereupon we agree
to either issue a substitute letter of credit to such successor or endorse
such transfer on the reverse of this Letter of Credit.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit. This Letter of Credit shall be reinstated as
provided in Sections 2.2(e) and 2.7(c) of the Debt Service Reserve Letter of
Credit and Reimbursement Agreement and we shall so advise the Beneficiary in a
certificate in the form of Annex 4 hereto. The Outstanding Amount shall be
reduced or increased as provided in Sections 2.7(b) and 2.7(c) of the Debt
Service Reserve Letter of Credit and Reimbursement Agreement, subject to
reinstatement as provided in the Debt Service Reserve Letter of Credit and
Reimbursement Agreement. In addition, the Outstanding Amount shall be reduced
as provided in Sections 2.2(c), 2.2(e) and 2.2(g) of the Debt Service Reserve
Letter of Credit and Reimbursement Agreement to the extent that we so advise
the Beneficiary pursuant to a certificate in the form of Annex 5 hereto.
All banking charges, including any advising and negotiating bank charges, are
for the account of the Applicant.
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under Credit Suisse Letter of Credit Number
TS-06000733 dated July 21, 1995."
This Letter of Credit shall not be amended except with the written concurrence
of Credit Suisse, the Applicant and the Beneficiary.
We hereby engage with you that a drawing request drawn strictly in compliance
with the terms of this Letter of Credit and amendments thereto shall meet with
due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision in force as from 1st of January 1994),
International Chamber of Commerce Publication Number 500 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be a contract made under
the laws of the State of New York and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of
such State.
We irrevocably agree with you that any legal action or proceeding with respect
to this Letter of Credit shall be brought in the courts of the State of New
York in the County of New York or of the United States of America in the
Southern District of New York. By signing this Letter of Credit, we
irrevocably submit to
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the jurisdiction of such courts solely for the purposes
of this Letter of Credit. We hereby waive, to the fullest extent permitted by
law any objection we may now or hereafter have to the laying of venue in any
such action or proceeding in any such court.
CREDIT SUISSE
/s/ Henry Park
- --------------------------
Authorized signature
/s/Suzanne Leon
- --------------------------
Authorized signature
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SCHEDULE I
OUTSTANDING AMOUNT OF DEBT SERVICE
RESERVE LETTER OF CREDIT
PART I
Set forth below for each period indicated is the Outstanding
Amount of the Debt Service Reserve Letter of Credit which shall be adjusted in
accordance with the terms of the Debt Service Reserve Letter of Credit and
Reimbursement Agreement, including, without limitation, Sections 2.2(c),
2.2(e), 2.7(b), 2.7(c) and 6.1 thereof. Promptly upon the occurrence of any
such adjustment to the Outstanding Amount (other than pursuant to Section
2.7(b) and 2.7(c) of the Debt Service Reserve Letter of Credit and
Reimbursement Agreement), the Initial Bank shall prepare a revised version of
this Schedule I to reflect such adjustment and a copy of which shall be
annexed to the notice delivered pursuant to Section 2.2(g) of the Debt Service
Reserve Letter of Credit and Reimbursement Agreement. Notwithstanding anything
to the contrary contained herein, no increase in the Debt Service Reserve
Required Balance occasioned by the issuance of Additional Securities shall
result in an increase in the Outstanding Amount without the consent of the
banks in accordance with the Debt Service Reserve Letter of Credit and
Reimbursement Agreement.
Period
- -----------------------------------------------
From and including To and including Outstanding Amount*
- ------------------ ---------------- -------------------
July 21, 1995 May 30, 1998 $49,909,141.30
May 31, 1998 November 30, 1998 $48,611,569.25
December 1, 1998 December 31, 1999 $27,704,941.00
January 1, 2000 December 31, 2000 $36,971,590.40
January 1, 2001 December 31, 2001 $36,971,590.40
January 1, 2002 July 21, 2002 $36,693,821.35
_________________________
* Prior to giving effect to any drawings hereunder or reinstatement
pursuant to the Debt Service Reserve Letter of Credit and Reimbursement
Agreement.
PART II
The following table of the Outstanding Amount of the Debt
Service Reserve Letter of Credit shall be utilized at any time that the
interest rate on the Securities has been adjusted pursuant to Section 2.2(b)
of the Indenture, and shall be subject to adjustment as described in Part I
above.
Period
- -----------------------------------------------
From and including To and including Outstanding Amount*
- ------------------ ---------------- -------------------
January 17, 1996 May 30, 1998 $50,000,000.00
May 31, 1998 November 30, 1998 $49,366,906.75
December 1, 1998 December 31, 1999 $28,278,836.00
January 1, 2000 December 31, 2000 $37,994,800.40
January 1, 2001 December 31, 2001 $37,994,800.40
January 1, 2002 July 21, 2002 $37,608,498.85
_________________________
* Prior to giving effect to any drawings hereunder or reinstatement
pursuant to the Debt Service Reserve Letter of Credit and Reimbursement
Agreement.
ANNEX 1
"Drawn under Credit Suisse Letter of Credit Number [__________]
dated July 21, 1995"
DRAWING REQUEST
[Date]
Credit Suisse
One Liberty Plaza
165 Broadway
New York, New York 10006
Attention: Trade Services
Ladies and Gentlemen:
The undersigned hereby draws on Credit Suisse Letter of
Credit No. [ ] Irrevocable Standby Letter of Credit (the "Letter of
Credit") dated July 21, 1995, issued by you in favor of us. Any capitalized
term used herein and not defined herein shall have its respective meaning as
set forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
A) "This drawing in the amount of US$____________ is being made
pursuant to Credit Suisse Letter of Credit No. [ ] Irrevocable
Standby Letter of Credit issued to the Depositary Agent pursuant to
Section 3.5 of the Deposit and Disbursement Agreement dated as of
July 21, 1995 among Salton Sea Funding Corporation, the Guarantors,
Chemical Trust Company of California, as Collateral Agent and
Chemical Trust Company of California, as Depositary Agent (as the
same may be amended, supplemented or modified from time to time, the
"Depositary Agreement")";
[Use one or more of the following forms of paragraph B, as
applicable]
B) "After the transfer of monies on deposit in the Debt Service Reserve
Fund, there are insufficient monies in the Interest Fund and the
Principal Fund on the [Interest] [Principal] Payment Date occurring
____________, ______ to pay the [interest] [or] [principal] due on
the Securities on such date (each capitalized word being used as
defined in the
Indenture) (whether due on a Scheduled Payment Date, at Stated
Maturity, at acceleration or otherwise)";
or
B) "You have delivered notice to Salton Sea Funding Corporation and the
Trustee that the long-term debt rating of Credit Suisse has fallen
below A as determined by Standard & Poor's Ratings Group or A2 as
determined by Moody's Investor Services, Inc. and Salton Sea Funding
Corporation has failed to provide us with a substitute letter of
credit from another letter of credit provider within 45 days of
receipt of such notice."
or
B) "The current Stated Expiration Date or New Stated Expiration Date,
as the case may be, will occur within forty-five (45) days of the
date hereof and Salton Sea Funding Corporation has failed to deliver
a replacement or renewal letter of credit or other security
reasonably acceptable to Depositary Agent and security is still
required under the terms of the Depositary Agreement."
or
B) "You have delivered to us notice that the Letter of Credit will
terminate prior to its stated expiry date of [insert Stated
Expiration Date or New Stated Expiration Date, as applicable] and
Salton Sea Funding Corporation has failed to deliver a replacement
or renewal letter of credit or other security reasonably acceptable
to Depositary Agent not less than five (5) Business Days prior to
the termination date as provided in such notice of termination and
security is still required under the terms of the Depositary
Agreement."
or
B) "You have delivered to us notice that interest on loans made by
Credit Suisse in respect of drawings under the Credit Suisse Letter
of Credit No. [ ] Irrevocable Standby Letter of Credit is now due
and payable, and the drawing requested hereunder, together with all
drawings under the Letter of Credit in the current Fiscal Year (as
defined in the Indenture) do not exceed $5,000,000 in the
aggregate."
C) "The amount requested to be drawn does not exceed the Outstanding
Amount"; and
D) "You are directed to make payment of the requested drawing to
account no. _______________ at __________________ [insert bank name,
address and account number]."
IN WITNESS WHEREOF, the undersigned has executed and
delivered this request on this _____ day of _______________, ____.
CHEMICAL TRUST COMPANY OF CALIFORNIA
By:________________________________
Name:
Title:
ANNEX 2
NOTICE OF TERMINATION OF LETTER OF CREDIT
[Date]
Chemical Trust Company
of California
50 California Street
10th Floor
San Francisco, California 94111
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Credit Suisse Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated July 21,
1995, issued by us in your favor.
This constitutes our notice to you pursuant to the Letter of
Credit that the Letter of Credit shall terminate on _____________, ____
[insert a date which is 45 or more days after the date of this notice of
termination] (the "Termination Date").
Pursuant to the terms of the Letter of Credit, you are
authorized to draw (pursuant to one or more drawings), prior to the
Termination Date, on the Letter of Credit in an aggregate amount that does not
exceed the Outstanding Amount (as defined in the Letter of Credit).
Very truly yours,
CREDIT SUISSE
By:__________________________
By:___________________________
ANNEX 3
TRANSFER OF LETTER OF CREDIT
[Date]
Credit Suisse
One Liberty Plaza
165 Broadway
New York, New York 10006
Attention: Trade Services
Gentlemen:
Reference is made to Credit Suisse Letter of Credit No. [ ] Irrevocable
Standby Letter of Credit dated July 21, 1995 originally issued by you in favor
of Chemical Trust Company of California, as Depositary Agent (the "Letter of
Credit"). Any capitalized term used herein and not defined shall have its
respective meaning as set forth in the Letter of Credit.
For value received, the undersigned, as beneficiary under the Letter of
Credit, hereby irrevocably transfers to (the "Transferee") all rights of the
undersigned to draw under the Letter of Credit in their entirety.
The Transferee is the successor to the Beneficiary, as Depositary Agent under
the Deposit and Disbursement Agreement dated as of July 21, 1995 among Salton
Sea Funding Corporation, the Guarantors, Chemical Trust Company of California,
as Collateral Agent, Chemical Trust Company of California, as Depositary Agent
(as the same may be amended, supplemented or modified from time to time, the
"Depositary Agreement") and all conditions to appointment of such successor
set forth in the Depositary Agreement have been satisfied.
By this transfer, all rights of the undersigned, as beneficiary under the
Letter of Credit, are transferred to the Transferee, and the Transferee shall
have the sole rights with respect to the Letter of Credit relating to any
amendments thereof and any notices thereunder. All amendments to the Letter of
Credit are to be consented to by the Transferee without necessity of any
consent of or notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this notice
are being transmitted to the Transferee.
The Letter of Credit is returned herewith, and we ask you to either issue a
substitute letter of credit for the benefit of the Transferee or endorse the
transfer on the reverse thereof, and forward it directly to the Transferee
with your customary notice of transfer.
Very truly yours,
CHEMICAL TRUST COMPANY OF CALIFORNIA
By:________________________________
Name:
Title:
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ANNEX 4
CERTIFICATE OF REINSTATEMENT OF OUTSTANDING AMOUNT
[Date]
Chemical Trust Company
of California
50 California Street
10th Floor
San Francisco, California 94111
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Credit Suisse Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated July 21,
1995, issued by us in your favor. Any capitalized term used herein and not
defined shall have its respective meaning as set forth in the Letter of
Credit.
This constitutes our notice to you pursuant to the Letter of
Credit that:
[use one or more of the following paragraphs]
We have received repayment of a Loan in accordance with the
provisions of the Debt Service Reserve Letter of Credit and
Reimbursement Agreement in the amount of $________, and,
pursuant to Section 2.7(c) of the Debt Service Reserve
Letter of Credit and Reimbursement Agreement, the
Outstanding Amount is therefore increased by such amount to
$__________ .
or
We have received payment of a Loan in accordance with the
provisions of the Debt Service Reserve Letter of Credit and
Reimbursement Agreement in the amount of $________. The Debt
Service Reserve Required Balance has been previously reduced
(each capitalized term being used as defined in the
Indenture dated as of July 21, 1995 by and between Salton
Sea Funding Corporation, and , as Trustee (as the same may
be amended, supplemented or modified from time to time, the
"Indenture")). Accordingly, the Outstanding Amount is hereby
increased by $ to $ to the extent that such increase shall
not cause the Outstanding Amount when added to the aggregate
balance in the Debt Service Reserve Account to exceed the
Debt Service Reserve Required Balance.
Very truly yours,
CREDIT SUISSE
By:______________________________
By:______________________________
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ANNEX 5
CERTIFICATE OF CHANGE OF OUTSTANDING AMOUNT
[Date]
Chemical Trust Company
of California
50 California Street
10th Floor
San Francisco, California 94111
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Credit Suisse Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated July 21,
1995, issued by us in your favor. Any capitalized term used herein and not
defined shall have its respective meaning as set forth in the Letter of
Credit. Reference is also made to that certain Deposit and Disbursement
Agreement dated as of July 21, 1995 (as the same may be amended, supplemented
or modified from time to time, the "Depositary Agreement"), among, among
others, us and you, in your capacity as Depositary Agent.
This constitutes our notice to you pursuant to the Letter of
Credit that we have been advised by the Applicant that:
[use one or more of the following paragraphs]
The Letter of Credit has not been renewed or deemed renewed
pursuant to Section 2.2(b) of the Debt Service Reserve
Letter of Credit and Reimbursement Agreement. Therefore,
pursuant to such Section 2.2(c), the Outstanding Amount is
reduced by $______, which is the Debt Service Reserve LOC
Credit Amount (as defined in the Depositary Agreement), to
$____________.
or
The Debt Service Reserve Required Balance (as defined in the
Depositary Agreement) has been [reduced/increased] by the
amount of $_____. Accordingly, pursuant to Section 2.2(e) of
the Debt Service Reserve Letter of Credit and Reimbursement
Agreement, the Outstanding Amount is [reduced/increased] by
$______ to $______ as set forth on Schedule I annexed
hereto.
Very truly yours,
CREDIT SUISSE
By:______________________________
By:______________________________
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