EXHIBIT 4.38(a)
RECORDING REQUESTED BY )
AND WHEN RECORDED RETURN )
TO: )
)
Skadden, Arps, Slate, )
Meagher & Flom )
919 Third Avenue )
New York, New York 10022 )
Attention: Jennifer )
Frederick )
FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF
RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment")
is made as of October __, 1998 by ELMORE L.P., a California
limited partnership ("Elmore") as trustor ("Trustor"), to CHICAGO
TITLE COMPANY, a California corporation, whose address is 925 B
Street, San Diego, California 92101, as trustee ("Trustee") and
in favor of CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association organized under the
laws of the United States, whose address is 101 California
Street, #2725, San Francisco, California 94111, as beneficiary
("Beneficiary") acting in its capacity (a) as trustee (as
successor in interest to Chemical Trust Company of California)
for and on behalf of Salton Sea Funding Corporation, a Delaware
corporation ("Funding Corporation"), and the Secured Parties (the
"Secured Parties") under that certain Trust Indenture dated as of
July 21, 1995 by and between Funding Corporation and Beneficiary,
as trustee, as the same may be amended, modified or supplemented,
including by that certain First Supplemental Indenture dated as
of October 18, 1995, that certain Second Supplemental Indenture
dated as of June 20, 1996, that certain Third Supplemental
Indenture dated as of July 29, 1996, and that certain Fourth
Supplemental Trust Indenture dated as of even date herewith (as
so amended, modified or supplemented, the "Indenture") and (b) as
collateral agent (in such capacity, the "Collateral Agent") under
that certain Collateral Agency and Intercreditor Agreement dated
as of July 21, 1995 as the same may be amended, modified or
supplemented, including by that certain First Amendment to the
Collateral Agency and Intercreditor Agreement dated as of June
20, 1996 and that certain Second Amendment to the Collateral
Agency and Intercreditor Agreement dated as of even date herewith
for the benefit of the Secured Parties and Funding Corporation
(as so amended, modified or supplemented, the "Intercreditor
Agreement"). Capitalized terms used and not defined herein shall
have the meanings set forth in the Indenture.
RECITALS
WHEREAS, Funding Corporation is a corporation
established for the sole purpose of making loans to the
Guarantors from proceeds of the issuance of notes and bonds
(collectively, the "Securities") in its individual capacity as
principal and as agent acting on behalf of the Guarantors
pursuant to the Indenture; and
WHEREAS, on July 21, 1995 the Funding Corporation
issued and sold Securities in the aggregate principal amount of
$475, 000,000.00 (the "Initial Securities"); and
WHEREAS, in connection with the issuance and sale of
the Initial Securities, Trustor entered into the Partnership
Secured Limited Guarantee (the "Initial Partnership Guarantee")
whereby Trustor guaranteed certain of the obligations of Funding
Corporation under the Initial Securities; and
WHEREAS, on June 20, 1996 the Funding Corporation
issued and sold Securities in the aggregate principal amount of
$135,000,000.00 (the "Supplemental Securities"); and
WHEREAS, in connection with the issuance and sale of
the Supplemental Securities Trustor entered into various
agreements and amendments to the Financing Documents including
(a) that certain Deed of Trust, Assignment of Rents, Security
Agreement, and Fixture Filing in favor of Trustee and for the
benefit of the Secured Parties dated as of June 20, 1996 which
was recorded on June 21, 1996 as instrument no. 96013777 in the
official records of Imperial County, California, (b) that certain
Amended and Restated Partnership Secured Limited Guarantee dated
as of June 20, 1996 (the "Supplemental Partnership Guarantee")
and (c) that certain Agreement Regarding Security Documents in
favor of Collateral Agent and for the benefit of the Secured
Parties dated as of June 20, 1996 (the "First Agreement Regarding
Security Documents"); and
WHEREAS, Funding Corporation has simultaneously with
the execution and delivery of this Amendment issued and sold
Securities in the aggregate principal amount of $285,000,000.00
(the "Additional Securities"); and
WHEREAS, in connection with the issuance and sale of
the Additional Securities, Trustor entered into various
agreements and amendments to the Financing Documents, including
(a) that certain Second Amended and Restated Partnership
Guarantee (the "Additional Partnership Guarantee," together with
the Initial Partnership Guarantee and the Supplemental
partnership Guarantee, the "Partnership Guarantee") and (b) that
certain Second Agreement Regarding Security Documents dated as of
the date hereof, by and among Trustor, Beneficiary and the other
parties named therein (the "Second Agreement Regarding Security
Documents") supplementing the Partnership Guarantee and
acknowledging that the obligations guaranteed by the Partnership
Guarantee include the obligations of Funding Corporation under
the Additional Securities; and
WHEREAS, the parties wish to amend the Deed of Trust to
expressly provide that it secures Trustor's obligations under the
Partnership Guarantee and the other Financing Documents, as so
amended, modified or supplemented, including pursuant to the
Second Agreement Regarding Security Documents.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Financing Documents. The term Financing
Documents, as used in the Deed of Trust, is hereby expressly made
to include (to the extent it does not now so include), without
limitation: (a) the Trust Indenture, dated as of July 21, 1995,
as amended by the First Supplemental Indenture dated as of
October 18, 1995, the Second Supplemental Indenture dated as of
June 20, 1996, the Third Supplemental Indenture dated as of July
29, 1996 and the Fourth Supplemental Indenture dated as of even
date herewith; (b) the $285,000,000 7.475% Senior Secured Series
F Bonds issued as of even date herewith by the Funding
Corporation; (c) the Exchange and Registration Rights Agreement,
dated as of even date herewith, among the Funding Corporation,
Credit Suisse First Boston Corporation and Goldman, Sachs & Co.;
(d) the Amended and Restated Deposit and Disbursement Agreement,
dated as of even date herewith, among the Funding Corporation,
the Guarantors, the Collateral Agent and the Depositary Agent;
(e) the Collateral Agency and Intercreditor Agreement, dated as
of July 21, 1995, as amended by the First Amendment to Collateral
Agency and Intercreditor Agreement dated as of June 20, 1996 and
the Second Amendment to Collateral Agency and Intercreditor
Agreement dated as of even date herewith, among the Funding
Corporation, the Guarantors, the Secured Parties named therein,
the Depositary Agent and the Collateral Agent; (f) the Equity
Commitment Agreement, dated as of even date herewith, among
CalEnergy, the Guarantors and the Collateral Agent; (g) the
Amended and Restated Debt Service Reserve Letter of Credit and
Reimbursement Agreement, dated as of June 20, 1996, as amended by
the Amendment to Notes and to Amended and Restated Debt Service
Reserve Letter of Credit and Reimbursement Agreement dated as of
even date herewith, among the Funding Corporation, the Debt
Service LOC Provider and the other banks named therein; (h) the
Amended and Restated Credit Agreement (Salton Sea Guarantors),
dated as of even date herewith, among the Funding Corporation and
the Salton Sea Guarantors; (i) the Second Amended and Restated
Credit Agreement (Partnership Guarantors), dated as of even date
herewith, among the Funding Corporation and the Partnership
Guarantors; (j) the promissory note in the amount of
$246,483,000, dated as of even date herewith, executed by the
Salton Sea Guarantors in favor of the Funding Corporation; (k)
the promissory note in the amount of $83,272,000, dated as of
even date herewith, executed by the Salton Sea Guarantors in
favor of the Funding Corporation; (l) the promissory note in the
amount of $24,579,000, dated as of even date herewith, executed
by the Partnership Guarantors in favor of the Funding
Corporation; (m) the promissory note in the amount of
$93,150,000, dated as of even date herewith, executed by the
Partnership Guarantors in favor of the Funding Corporation; (n)
the promissory note in the amount of $201,728,000, dated as of
even date herewith, executed by the Partnership Guarantors in
favor of the Funding Corporation; (o) the Amended and Restated
Salton Sea Secured Guarantee, dated as of even date herewith, by
the Salton Sea Guarantors in favor of the Trustee and the
Collateral Agent; and (p) the Second Amended and Restated
Partnership Secured Limited Guarantee, dated as of even date
herewith, by the Partnership Guarantors in favor of the Trustee
and the Collateral Agent.
2. Effect of This Amendment. On and after the date
of this Amendment, each reference in the Deed of Trust to the
Deed of Trust, shall mean the Deed of Trust as amended hereby.
Except as specifically amended above, the Deed of Trust shall
remain in full force and effect and is hereby ratified and
confirmed. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power, or remedy of Beneficiary or any
of the Secured Parties nor constitute a waiver of any provision
of the Deed of Trust.
3. Headings. The headings, titles and captions of
various Sections of this Amendment are for convenience of
reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions
hereof.
4. Governing Law. THIS AMENDMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
5. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed, and this Amendment shall be effective,
as of the day and year first above written.
ELMORE, L.P.,
a California limited partnership
By: CalEnergy Operating Corporation,
a Delaware corporation, its
general partner
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
a national banking association
organized under the
laws of the United States, as
Collateral Agent
By: /s/ Rose T. Maravilla
Name: Rose T. Maravilla
Title: Assistant Vice President