EXHIBIT 4.6(B)
FIRST AMENDMENT
TO
COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
First Amendment dated as of June 20, 1996 (this
"Amendment"), to the COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT dated as of
July 21, 1995 (the "Intercreditor Agreement"), among SALTON SEA FUNDING
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Funding Corporation"), the SALTON SEA GUARANTORS (as defined in the
Indenture referred to below), the PARTNERSHIP GUARANTORS (as defined in the
Indenture referred to below), the ROYALTY GUARANTOR (as defined in the
Indenture referred to below), the DEBT SERVICE RESERVE LOC PROVIDER (as
defined in the Intercreditor Agreement), the WORKING CAPITAL AGENT (as defined
in the Intercreditor Agreement), the PERMITTED COUNTERPARTY under any Interest
Rate Protection Agreement (each, as defined in the Indenture referred to
below), the TRUSTEE (as defined in the Intercreditor Agreement), the
DEPOSITARY AGENT (as defined in the Intercreditor Agreement) and the
COLLATERAL AGENT (as defined in the Intercreditor Agreement). Capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to such terms in the Intercreditor Agreement.
WHEREAS, the Funding Corporation, the Salton Sea Guarantors,
certain of the Partnership Guarantors, the Royalty Guarantor, the Debt Service
Reserve LOC Provider, the Working Capital Agent, the Trustee, the Depositary
Agent and the Collateral Agent have entered into the Intercreditor Agreement;
WHEREAS, the Funding Corporation has issued Securities under
the Trust Indenture, dated as of July 21, 1995 (as supplemented and amended by
the First Supplemental Indenture dated as of October 18, 1995), between the
Funding Corporation, as principal and as agent for the Guarantors, and the
Trustee (the "Trust Indenture");
WHEREAS, the Funding Corporation has determined to issue
$70,000,000 principal amount of 7.02% Series D Senior Secured Notes due 2000
and $65,000,000 principal amount of 8.30% Series E Senior Secured Bonds due
2011 (the "Series D and E Securities") pursuant to the Second Supplemental
Indenture, dated as of June 20, 1996 (the "Supplemental Indenture"), between
the Funding Corporation, as principal and as agent for the Guarantors, and the
Trustee (the Trust Indenture, as so supplemented and as otherwise amended,
modified or supplemented from time to time, the "Indenture");
WHEREAS, in connection with the issuance of additional
Securities pursuant to the Indenture, additional parties are becoming
Partnership Guarantors under the Indenture and related documents, and
additional parties are becoming obligors under the Partnership Credit
Agreement; and
WHEREAS, the terms of the Intercreditor Agreement must be
amended to reflect the additional Partnership Guarantors and additional
obligors under the Partnership Credit Agreement and to effect other changes in
connection with the issuance by the Funding Corporation of additional
Securities under the Indenture.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows.
1. Amendment of the Intercreditor Agreement.
As of the date hereof, the Intercreditor Agreement shall be amended as follows:
(a) Section 1 is hereby amended by inserting
the following immediately after the phrase "paid in full" contained in clause
(iv)(y) of the definition of "Trigger Event" set forth in such Section 1:
"or (z) the Salton Sea Guarantee at a time when the Salton
Sea Project Note shall have been paid in full,"
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(b) Section 18 is hereby amended by adding the
following names above the notice address for Partnership Guarantors:
"BN Geothermal Inc.
Vulcan/BN Geothermal Power Company
San Felipe Energy Company
Leathers, L.P.
Conejo Energy Company
Del Ranch, L.P.
Niguel Energy Company
Elmore, L.P."
(c) Schedule 8(a) to the Intercreditor
Agreement is hereby amended (i) by adding the words "and amended as of June
20, 1996, and as further amended or otherwise modified from time to time,"
after the words "dated as of July __, 1995" (which date shall be completed to
read "July 21, 1995") in the first sentence thereof, and (ii) by adding the
words "and supplemented by the First Supplemental Indenture dated as of
October 18, 1995, and by the Supplemental Indenture dated as of June 20, 1996,
and as otherwise amended, supplemented or otherwise modified from time to
time" after the words "dated as of July __, 1995" (which date shall be
completed to read "July 21, 1995") in the second sentence thereof.
(d) Schedule 9a to the Intercreditor
Agreement is hereby amended by adding the words "and amended as of June 20,
1996, and as further amended or modified from time to time," after the words
"dated as of July __, 1995" (which date shall be completed to read "July 21,
1995") in the first paragraph thereof.
(e) Schedule 14a to the Intercreditor
Agreement is hereby amended by adding the words "and amended as of June 20,
1996, and as further amended or modified from time to time," after the words
"dated as of July __, 1995" (which date shall be completed to read "July 21,
1995") in the first paragraph thereof.
(f) The Certificate of Salton Sea
Funding Corporation, appearing directly after Schedule 14a to the
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Intercreditor Agreement, is hereby amended by adding the words ", and
supplemented by the First Supplemental Indenture dated as of October 18, 1995,
and by the Second Supplemental Indenture dated as of June 20, 1996, and as
further amended or modified from time to time," after the words "July , 1995"
(which date shall be completed to read "July 21, 1995") in such certificate.
2. Additional Partnership Guarantors. In
accordance with the terms of the Supplemental Indenture, from and after the
date hereof each of BN Geothermal Inc., Vulcan/BN Geothermal Power Company,
San Felipe Energy Company, Leathers, L.P., Conejo Energy Company, Del Ranch,
L.P., Niguel Energy Company and Elmore, L.P. (the "New Guarantors") shall be
"Partnership Guarantors" under the Intercreditor Agreement, as amended hereby
(as so amended, the "Amended Intercreditor Agreement"). Each New Guarantor
hereby acknowledges and agrees to the terms of the Amended Intercreditor
Agreement and consents to the exercise of remedies by the Collateral Agent
contained therein.
3. Intercreditor Agreement. Except as
specifically amended hereby, the Intercreditor Agreement shall continue in
full force and effect in accordance with the provisions thereof as in
existence on the date hereof. All references to "this Intercreditor Agreement"
in the Intercreditor Agreement shall be deemed to refer to the Amended
Intercreditor Agreement.
4. Governing Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW
EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
5. Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date first written above.
SALTON SEA FUNDING CORPORATION
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
SALTON SEA POWER GENERATION L.P.
By: SALTON SEA POWER COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
SALTON SEA BRINE PROCESSING L.P.
By: SALTON SEA POWER COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
FISH LAKE POWER COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
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VULCAN POWER COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
CALENERGY OPERATING COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
BN GEOTHERMAL INC.
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
VULCAN/BN GEOTHERMAL POWER
COMPANY
By: VULCAN POWER COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
SAN FELIPE ENERGY COMPANY,
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
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LEATHERS, L.P.
By: CALENERGY OPERATING COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
CONEJO ENERGY COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
DEL RANCH, L.P.
By: CALENERGY OPERATING COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
NIGUEL ENERGY COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
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ELMORE, L.P.
By: CALENERGY OPERATING COMPANY,
as its general partner
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
SALTON SEA ROYALTY COMPANY
By: /s/ John G. Sylvia
-------------------------------
Name: John G. Sylvia
Title: Senior Vice President
CREDIT SUISSE,
as the Debt Service
Reserve LOC Provider
By: /s/ Henry Park
-------------------------------
Name: Henry Park
Title: Associate
By: /s/ Suzanne Leon
-------------------------------
Name: Suzanne Leon
Title: Associate
CREDIT SUISSE,
as the Working Capital Agent
By: /s/ Henry Park
-------------------------------
Name: Henry Park
Title: Associate
By: /s/ Suzanne Leon
-------------------------------
Name: Suzanne Leon
Title: Associate
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CHEMICAL TRUST COMPANY
OF CALIFORNIA
as the Trustee
By: /s/ Rose Maravilla
-------------------------------
Name: Rose Maravilla
Title: Assistant Vice President
CHEMICAL TRUST COMPANY
OF CALIFORNIA
as the Collateral Agent
By: /s/ Rose Maravilla
-------------------------------
Name: Rose Maravilla
Title: Assistant Vice President
CHEMICAL TRUST COMPANY
OF CALIFORNIA
as the Depositary Agent
By: /s/ Rose Maravilla
-------------------------------
Name: Rose Maravilla
Title: Assistant Vice President
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