RECORDING REQUESTED BY )
AND WHEN RECORDED )
RETURN TO: )
)
David C. Reamer )
Skadden, Arps, Slate, Meagher & Flom )
919 Third Avenue )
New York, New York 10022 )
)
)
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 June
20, 1996, by SALTON SEA ROYALTY COMPANY, a Delaware corporation, whose address
is 302 South 36th Street, Suite 400-D, Omaha, Nebraska 68131, as trustor
("Trustor"), to CHICAGO TITLE COMPANY, whose address is 925 B Street, San
Diego, California 92101, as trustee ("Trustee"), and in favor of CHEMICAL
TRUST COMPANY OF CALIFORNIA, a California corporation, whose address is 50
California Street, 10th Floor, San Francisco, California 94111, as beneficiary
("Beneficiary") acting in its capacity as collateral agent for and on behalf
of Salton Sea Funding Corporation, a Delaware corporation ("Funding
Corporation") and the Secured Parties (the "Secured Parties") under that
certain Collateral Agency and Intercreditor Agreement by and among
Beneficiary, Funding Corporation, the Secured Parties and the other parties
named therein (the "Intercreditor Agreement") and 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 Second Supplemental Trust Indenture dated as of even date
herewith (as so amended, modified or supplemented, the "Indenture").
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 Million (the
"Initial Securities"); and
WHEREAS, in connection with the issuance and sale of the
Initial Securities, Trustor entered into the Royalty Secured Limited Guarantee
dated as of July 21, 1995 in favor
of Beneficiary (the "Royalty Secured Limited Guarantee") whereby Trustor
guaranteed certain of the obligations of Funding Corporation under the Initial
Securities; and
WHEREAS, in order to secure its obligations under the
Royalty Secured Limited Guarantee and the other Financing Documents, Trustor
has, among other things, entered into that certain Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing in favor of Trustee and for
the benefit of Beneficiary (the "Deed of Trust") dated as of July 21, 1995
which was recorded on July 21, 1995, as instrument no. 95015973, in the
official records of Imperial County, California; and
WHEREAS, Funding Corporation has simultaneously with the
execution and delivery of this Amendment issued and sold Securities in the
aggregate principal amount of $135 Million (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 that certain Agreement Regarding
Security Documents dated as of the date hereof, by and among Trustor,
Beneficiary and the other parties named therein (the "Agreement Regarding
Security Documents") supplementing the Royalty Secured Limited Guarantee and
acknowledging that the obligations guaranteed by the Royalty Secured Limited
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 Royalty
Secured Limited Guarantee and the other Financing Documents, as so amended,
modified or supplemented, including pursuant to the 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 Royalty Secured
Limited Guarantee, as amended, modified or supplemented by the Agreement
Regarding Security Documents, and as otherwise amended, modified or
supplemented from time to time, (b) the Depositary Agreement, as amended,
modified or supplemented by that certain Amendment No. 1 to Deposit and
Disbursement Agreement dated as of the date hereof, and as otherwise amended,
modified or supplemented from time to time, by and among Trustor, Beneficiary
and the other parties named therein, (c) the Intercreditor Agreement, as
amended, modified or supplemented by that certain First Amendment to
Collateral Agency and Intercreditor Agreement dated as of the date hereof, and
as otherwise amended, modified or supplemented from time to time, by and among
Trustor, Beneficiary and the other parties named therein and (d) the Exchange
and Registration Rights
Agreement dated as of the date hereof, between Funding Corporation and the
initial purchaser named therein.
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.
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.
SALTON SEA ROYALTY COMPANY,
a Delaware corporation
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
CHEMICAL TRUST COMPANY OF CALIFORNIA,
a California corporation,
as Collateral Agent
By: /s/ Rose Maravilla
Name: R.I. Maravilla
Title: Assistant Vice President
T:\CECIMPVA\DOT\1ST-RC.DOT
STATE OF )
)
COUNTY OF )
On July 21, 1996, before me, (Illegible) Notary Public, personally
appeared John B. Sylvia, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary/Public
STATE OF )
)
COUNTY OF )
On July 21, 1996, before me, (Illegible) Notary Public, personally
appeared Rose I. Maravilla, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary/Public