EXHIBIT 4.14(B)
AMENDMENT NO. 1
TO
DEPOSIT AND DISBURSEMENT AGREEMENT
AMENDMENT NO. 1, dated as of June 20, 1996 (this
"Amendment"), to the DEPOSIT AND DISBURSEMENT AGREEMENT, dated as of July 21,
1995 (as the same may be further amended or otherwise modified from time to
time, the "Depositary Agreement"), 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"; and collectively with SSBP and SSPG, the
"Salton Sea Guarantors"), Vulcan Power Company, a Nevada corporation ("VPC"),
CalEnergy Operating Company, a Delaware corporation ("CEOC"), Salton Sea
Royalty Company, a Delaware corporation (the "Royalty Guarantor"), and
Chemical Trust Company of California, acting in its capacities as Collateral
Agent and Depositary Agent.
Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them by the Depositary Agreement.
WHEREAS, the Funding Corporation has been formed for the
sole purpose of issuing bonds, debentures, promissory notes or other evidences
of indebtedness (the "Securities"), under the Trust Indenture dated as of July
21, 1995 (as supplemented by the First Supplemental Indenture dated as of
October 18, 1995 and as further supplemented by the Second Supplemental
Indenture dated as of June 20, 1996, between the Funding Corporation and the
Trustee and as otherwise amended, supplemented or otherwise modified from time
to time, the "Indenture") between the Funding Corporation and Chemical Trust
Company of California, in its capacity as Trustee;
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");
WHEREAS, the net proceeds derived by the Funding Corporation
from the issuance of the Series D and E Securities will be loaned by the
Funding Corporation to (i) CEOC and VPC and used by CEOC and VPC to acquire
interests in 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"), and Vulcan/BN Geothermal Power
Company, a Nevada general partnership ("Vulcan"), (ii) Del Ranch, Elmore, and
Leathers, and used by such entities to repay existing Debt, and (iii) to Del
Ranch, Elmore, Leathers, Vulcan, SSBP, SSPG and Fish Lake to finance the
making of certain capital improvements to the Partnership Projects and the
Salton Sea Projects;
WHEREAS, the Series D and E Securities are being guaranteed
by the Salton Sea Guarantors, the Royalty Guarantor, VPC, CEOC, BN Geothermal,
Inc., a Nevada corporation ("BNG"), San Felipe Energy Company, a California
corporation ("San Felipe"), Conejo Energy Company, a California corporation
("Conejo"), Niguel Energy Company, a California corporation ("Niguel"),
Vulcan, Leathers, Del Ranch, and Elmore;
WHEREAS, the Salton Sea Guarantors, the Royalty Guarantor,
VPC, and CEOC are currently parties to the Depositary Agreement;
WHEREAS, in connection with the issuance of the Series D and
E Securities, BNG, San Felipe, Conejo, Niguel, Vulcan, Leathers, Del Ranch,
and Elmore are to become parties to the Depositary Agreement;
WHEREAS, in connection with the issuance of the Series D and
E Securities, a Capital Expenditure Fund is to be established under the
Depositary Agreement and the Depositary Agreement shall be modified as
provided herein;
NOW, THEREFORE, in consideration of the premises and for
other consideration, the receipt of which is
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hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment. (a) The introductory paragraph of the
Depositary Agreement is hereby amended by deleting "("CEOC"; and together with
VPC, the "Partnership Guarantors")" beginning in the eleventh line of such
paragraph and replacing it with the following: "("CEOC"), BN Geothermal Inc.,
a Nevada corporation ("BNG"), 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"), Leathers
L.P., a California limited partnership ("Leathers"), Del Ranch L.P., a
California limited partnership ("Del Ranch"), and Elmore, L.P., a California
limited partnership ("Elmore"; and together with VPC, CEOC, BNG, San Felipe,
Conejo, Niguel, Vulcan, Leathers, and Del Ranch, the "Partnership
Guarantors")".
(a) The fifth "WHEREAS" clause of the Depository agreement
is hereby amended by adding the words ", as amended 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 otherwise amended, modified or
supplemented from time to time" after the word "hereof" in the fifth line of
such clause.
(b) Section 1.2 of the Depositary Agreement is hereby
amended by: (i) inserting the definition ""Capital Expenditure Fund" has the
meaning specified in Section 3.14." between the definitions of "Allocation
Certificate" and "Combined Exposure", and (ii) adding the words "Capital
Expenditure Requisition" after the words "Expansion Requisition," in the first
line of the definition of "Requisition".
(c) Section 2.2 is hereby amended by replacing the period
after the words "(i) Redemption Fund" with "; and" and by inserting the
following in the first paragraph directly below "(i) Redemption Fund":
"(j) Capital Expenditure Fund.".
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(d) Section 3.2(a)(i) is hereby amended by
adding the words "and all revenues actually received by the Partnership
Project Companies from the Partnership Projects" after the words "Salton Sea
Projects."
(e) Section 3.2(a)(ii) is hereby amended by deleting
"the Partnership Guarantors" and replacing it with "CEOC and VPC".
(f) Section 3.6(b)(iii) of the Depositary Agreement is
hereby amended by inserting "such distribution date occurs in or" after the
words "and, if" in the twelfth line of such Section 3.6(b)(iii).
(g) Section 3.8 of the Depositary Agreement is hereby
amended by inserting ", or as the case may be, Partnership Guarantor," after
the words "Salton Sea Guarantor", wheresoever such words appear within such
Section 3.8.
(h) Section 3.8 of the Depositary Agreement is hereby
amended by inserting ", or as the case may be, Partnership Guarantors," after
the words "Salton Sea Guarantors", wheresoever such words appear within such
Section 3.8.
(i) Section 3.8 of the Depositary Agreement is hereby
amended by inserting ", or as the case may be, Partnership Project" after the
words "Salton Sea Project", wheresoever such words appear within such Section
3.8.
(j) Section 3.9(a)(i) of the Depositary Agreement is hereby
amended by inserting ", or as the case may be, Partnership Guarantors," after
the words "Salton Sea Guarantors" in the second line and by replacing the
words "the Partnership Guarantors" with "CEOC or VPC" in such Section
3.9(a)(i).
(k) Section 3.9(a)(iv) is hereby amended by inserting the
words "any of" between the words "to" and "the" appearing contiguously in the
third line, and by inserting the phrase "other than the Partnership Project
Companies" after the word "Guarantors" beginning in the third line.
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(l) Article III is hereby amended by adding after
Section 3.13 thereof the following:
"Section 3.14. Capital Expenditure Fund. (a) On June 20, 1996,
$15,000,000 shall be delivered to the Depositary Agent and deposited
in the Capital Expenditure Fund from the net proceeds derived by the
Funding Corporation from the issuance of the Series D and E
Securities.
(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) 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 or the Salton Sea Projects (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 within three days of each Disbursement Date on which such
withdrawal and transfer is requested to be made, a requisition in the
form attached hereto as Exhibit E (the "Capital Expenditure
Requisition") signed by an Authorized Representative of the relevant
Partnership Project Company or Salton Sea Guarantor, as the case may
be.
(d) On the Disbursement Date referred to in Section 3.14(c), or as
soon thereafter as pos-
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sible following receipt of the Capital Expenditure Requisition, the
Depositary Agent shall make payments in accordance with such Capital
Expenditure Requisition."
(n) Schedule I to the Depositary Agreement is hereby
deleted and replaced with the new Schedule I attached hereto.
(o) Exhibit C to the Depositary Agreement is hereby amended
by adding the words ", or as the case may be, Partnership Guarantors," after
the words "Salton Sea Guarantors" appearing in numbered paragraphs six and
seven and in Appendix I of such Exhibit C.
(p) Exhibit D to the Depositary Agreement is hereby amended
by adding the words ", or as the case may be, Partnership Guarantors" after
the words "Salton Sea Guarantors" appearing in numbered paragraph five of such
Exhibit D.
(q) The Depositary Agreement is hereby amended by adding
attached Exhibit E as Exhibit E to the Depositary Agreement.
2. Agreement to be Bound. Each of BNG, San Felipe, Conejo,
Niguel, Vulcan, Leathers, Del Ranch, and Elmore hereby agrees to become a
party to and be bound by the Depositary Agreement, as amended pursuant to this
Amendment and as subsequently amended, modified, or supplemented from time to
time, and acknowledges that all references to "Guarantors" or "Partnership
Guarantors" shall, from and after the effectiveness of this Amendment, refer
to each such Person as well as to all such Persons that were previously
Guarantors or Partnership Guarantors.
3. Condition to Effectiveness of Amendment. Pursuant to
Section 6.1 of the Depositary Agreement, this Amendment shall become
effective, and shall modify and amend the Depositary Agreement, upon execution
and delivery of this Amendment by the Collateral Agent, the Depositary Agent,
the Funding Corporation and the Guarantors.
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4. Modification of Depositary Agreement. Except as
expressly modified by this Amendment, all of the terms and provisions of the
Depositary Agreement are reaffirmed and shall remain in full force and effect.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
6. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been executed and
delivered by the Funding Corporation, each of the Guarantors, the Collateral
Agent, and the Depositary Agent.
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
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
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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
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
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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
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
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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
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
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