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 POWER GENERATION L.P., a California limited
partnership ("SSPG"), whose address is 302 South 36th Street, Suite 400-B,
Omaha, Nebraska 68131, SALTON SEA BRINE PROCESSING L.P., a California limited
partnership ("SSBP"), whose address is 302 South 36th Street, Suite 400-B,
Omaha, Nebraska 68131 and FISH LAKE POWER COMPANY, a Delaware corporation
("Fish Lake"), whose address is 302 South 36th Street, Suite 400-F, Omaha,
Nebraska 68131, jointly and severally as trustor (collectively "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 Salton Sea Secured Guarantee
dated as of July 21, 1995 in favor of Beneficiary (the "Salton Sea Secured
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 Salton
Sea Secured 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. 95015970, 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 Salton Sea Secured Guarantee and
acknowledging that the obligations guaranteed by the Salton Sea Secured
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 Salton Sea
Secured 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 Salton Sea Secured
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 POWER GENERATION L.P.,
a California limited partnership
By: SALTON SEA POWER COMPANY,
a Nevada corporation, its general partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
SALTON SEA BRINE
PROCESSING L.P.,
a California limited partnership
By: SALTON SEA POWER COMPANY,
a Nevada corporation, its general partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
FISH LAKE POWER 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
STATE OF NEW YORK)
)
COUNTY OF NEW YORK)
On June 20, 1996, before me, Patricia Peterson, Notary Public,
personally appeared R.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.
/s/ Patricia Peterson
- ------------------------------------
Notary/Public
STATE OF NEW YORK)
)
COUNTY OF NEW YORK)
On June 20, 1996, before me, Patricia Peterson, Notary Public,
personally appeared John 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.
/s/ Patricia Peterson
- ------------------------------------
Notary/Public
STATE OF NEW YORK)
)
COUNTY OF NEW YORK)
On June 20, 1996, before me, Patricia Peterson, Notary Public,
personally appeared R.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.
/s/ Patricia Peterson
- ------------------------------------
Notary/Public
STATE OF NEW YORK)
)
COUNTY OF NEW YORK)
On June 20, 1996, before me, Patricia Peterson, Notary Public,
personally appeared John 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.
/s/ Patricia Peterson
- ------------------------------------
Notary/Public