Exhibit 10.4(b)
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Recording Requested by
AND WHEN RECORDED RETURN TO
Sheppard, Mullin, Richter & Hampton
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: Thomas Richardson, Esq.
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(Space above this line for Recorder's use)
FIRST AMENDMENT TO DEED OF
TRUST AND ASSIGNMENT OF RENTS
This First Amendment To Deed Of Trust And Assignment Of Rends ("Trust
Deed Amendment") is made as of the 1st day of July, 1986, by and between Zond
Windsystem Partners, Ltd. Series 85-C, a California limited partnership
("Trustor") and Zond Construction Corporation IV, a California corporation
("Beneficiary").
RECITALS
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A. Trustor executed that certain Series a Deed of Trust and Assignment
of Rents (the "Deed of Trust") dated as of the December 2, 1985, in the Official
Records of Alameda County, California as Instrument No. 85-271909, pursuant to
which Trustor granted, transferred and assigned to Ticor Title Insurance Company
of California, as trustee ("Trustee"), for the benefit of Beneficiary, as
beneficiary, with power of sale, all right, title, and interest of Trustor in
and to all those matters described in Paragraph 1.01 of the Deed of Trust,
including without limitation all right, title and interest of Trustor in the
document described in such Paragraph 1.01(a) as it relates to the "Land" (as
defined in Paragraph 1.01 and described in Exhibit A attached hereto and made a
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part hereof).
B. Trustor and Beneficiary now desire to amend the Deed of Trust.
NOW, THEREFORE, based on the foregoing and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
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1. Paragraph 1.01 of the Deed of Trust is amended to read in full as
follows:
"1.01 Trustor hereby irrevocably grants, transfers and assigns to
Trustee, in trust, with power of sale, all right, title and interest of Trustor
in and to all real property interests of Trustor and to which Trustor is
entitled (collectively, the "Subject Property"), including without limitation
all right, title and interest of Trustor in and to the following:
(a) Wind Park Easement Agreement dated as of November 4, 1985
between Trustor and Zond Systems, Inc., a California corporation
("Zond"), recorded in the office of the Alameda County Recorder on
December 23, 1985 as Instrument No. 85-271906, as it relates to that
certain real property situated in Alameda County, California, defined
in the Wind Park Easement Agreement (as defined below) as the
"Property" and described in Exhibit A attached hereto and made a part
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hereof (the "Land"), as amended and restated by the Amended and
Restated Wind Park Easement Agreement dated as of July 1, 1986 between
Trustor and Zond recorded concurrently herewith but prior hereto in
recording sequence (the "Wind Park Easement Agreement);
(b) to the extent it may constitute an interest in real property,
the PGE Agreement for Installation or Allocation of Special Facilities
for Parallel Operation of Nonutility-Owned Generation and/or Electrical
Standby Service dated November 26, 1985 between Pacific Gas and
Electric Company ("PGE") and Zond, as assigned by Zond to Trustor
pursuant to the Assignment of Interconnection Agreements dated as of
July 1, 1986 by and between Zond and Trustor (the "Interconnection
Agreement");
(c) To the extent it may constitute an interest in real property,
the PGE Agreement for Electrical Standby Service dated November 26,
1985 between PGE and Zond, as assigned by Zond to Trustor pursuant to
the Interconnection Assignment; and
(d) to the extent any of the following may constitute an interest
in real property: the Turbines described in Section 1.19 of the Wind
Park Easement Agreement, the Related Turbine Equipment
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described in Section 1.17 of the Wind Park Easement Agreement and the Power
Substation as described in Section 1.15 of the Wind Park Easement Agreement or
any portion thereof."
2. Paragraph 1.02 of the Deed of Trust is amended to read in full as
follows:
"1.02 The grant, transfer and assignment made in Paragraph 1.01 is for
the purpose of securing:
(a) Payment of two non-recourse Series C Promissory Notes of
Trustor, respectively dated December 23 and December 27, 1985, in the
aggregate original principal amount of $15,840,000, as modified by a
Modification Agreement between Trustor and Beneficiary, dated as of
July 1, 1986 (as so modified, the "Purchase Notes"), issued pursuant to
the Purchase Note and Security Agreement dated as of December 2, 1985,
as amended by an Amendment to Purchase Note and Security Agreement
dated as of July 1, 1986 (as amended, the "Security Agreement") between
Trustor, as debtor, and Beneficiary, as secured party, and each payable
to Beneficiary in partial payment by Trustor to Beneficiary of the
purchase price of a portion of the following purchased by Trustor from
Beneficiary pursuant to the Windsystem Construction Agreement dated as
of November 4, 1985 (the "Windsystem Construction Agreement"): certain
property (collectively, the "Windsystem") more specifically described
in paragraphs (a), (b) and (c) of Section 2.2 of the Security
Agreement, including without limitation up to 200 Vestas Model V17 wind
turbine generators, certain concrete pads, cables and step-up
transformers for such wind turbine generators and a 20MW power
substation and all modifications, extensions and renewals of the
Purchase Notes.
(b) Payment and performance of all indebtedness and other
obligations of Trustor to Beneficiary arising under or in connection
with the Security Agreement, and all modifications, extensions and
renewals thereof.
(c) The payment and performance of all amounts and obligations
owing by Trustor to Beneficiary pursuant to the terms of this Deed of
Trust."
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3. Paragraph 2.05 of the Deed of Trust is amended by amending the
first sentence thereof to read in full as follows:
"2.05 For so long as any amounts due under any Purchase Note remain
unpaid, Trustor hereby assigns to Beneficiary all of Trustor's right, title and
interest in any income, rents, issues and profits of Trustor's right, title and
interest in and to the Subject Property; provided, however, until the occurrence
of an event of default in respect of Trustor under this Deed of Trust as
provided in Paragraph 4.01 (hereinafter an "Event of Default"), Trustor reserves
the right to collect any such income, rents, issues and profits as they become
due and payable."
4. The Deed of Trust is hereby amended by adding paragraphs 2.08, 2.09
and 3.02 which shall read in full as follows:
"2.08 Trustor shall pay at or prior to maturity, all obligations of
Trustor secured by or reduceable to liens and encumbrances which shall now or
hereafter encumber the Subject Property or any part thereof or interest therein,
whether senior or subordinate hereto, including, without limiting the generality
of the foregoing, all claims for work or labor performed, or materials or
supplies furnished, in connection with any work of demolition, alteration
improvement of or construction upon the Subject Property."
"2.09 Except as otherwise permitted by the Security Agreement, without
the prior written consent of Beneficiary, Trustor shall not sell, transfer,
hypothecate, assign or encumber, whether voluntarily or involuntarily or by
operation of law or otherwise, all or any part of the Subject Property or any
interest therein."
"3.02 Without affecting the liability of any person for payment for
any indebtedness secured hereby, or the lien or priority of this Deed of Trust
upon the Subject Property, Beneficiary may, from time to time, with or without
notice, do one or more of the following: (i) release any other person from
liability for the payment of any indebtedness secured hereby, (ii) make any
agreement or take any action extending the maturity or otherwise altering the
terms or increasing the amount of any indebtedness secured hereby, (iii) accept
additional security to secure the indebtedness secured hereby, or (iv) release
all or any portion of the Subject Property or other security held to secure the
indebtedness secured hereby."
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5. Paragraph 4.02 of the Deed of Trust is amended to read in full as
follows:
"4.02 In the event of any Event of Default by Trustor under this Deed
of Trust as provided in Paragraph 4.01, then and in each such event, Beneficiary
may declare all sums secured hereby immediately due and payable either by
commencing an action to foreclose this Deed of Trust as a mortgage or by the
delivery to Trustee of a written declaration of default and demand for sale and
of written notice of default and of election to cause the right, title and
interest of Trustor in and to the Subject Property to be sold, which notice
Trustee shall cause to be duly filed for record. Should Beneficiary elect to
foreclose by exercise of power of sale herein, Beneficiary shall also deposit
with Trustee this Deed of Trust and the Purchase Notes and such receipts and
evidence of expenditures made and secured by this Deed of Trust as Trustee may
require, and notice of default and notice of sale having been given as then
required by law and after lapse of such time as may then be required by law
after recordation of such notices, Trustee, without demand on Trustor, shall
sell the right, title and interest of Trustor in and to the Subject Property at
the time and place of sale fixed by Trustee in said notice of sale, as a whole,
at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. Trustee may postpone sale by public
announcement at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the
right, title and interest of Trustor in and to the Subject Property so sold, but
without any covenant or warranty, express or implied. The recitals in such deed
of any matters or facts shall be conclusive proof of the truthfulness thereof.
Any person, including Trustor, Trustee or Beneficiary, may purchase at such
sale, and upon payment in full (or credit bid by Beneficiary) shall own the
right, title and interest of Trustor in and to the Subject Property. Any deed of
conveyance provided by Trustee or Beneficiary may provide that the granting of
the interest so conveyed shall not result in a merger with any other interest or
estate held by the grantee of such deed, and the actual holding of dominant and
subordinate interests or estates shall not result in a merger of such interests
or estates.
In addition to the rights and remedies set forth above, and
notwithstanding any provisions to the contrary in Paragraph 3.01 of this Deed of
Trust, upon the occurrence of any Event of Default, with or without notice, and
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without releasing Trustor from any obligation hereunder, Beneficiary and/or
Trustee may cure any default hereunder of Trustor, and, in connection therewith,
may enter upon the Subject Property and do such acts and things as Beneficiary
or Trustee deem necessary or desirable to protect the security hereof including,
but without limitation, the right to appear in and defend any action or
proceeding purported to affect the security hereof or the rights or powers of
Beneficiary or Trustee hereunder, the right to pay, purchase, contest or
compromise any encumbrance, charge, lien or claim of lien which, in the judgment
of either Beneficiary or Trustee, is prior or superior hereto, the right to pay
any premiums or charges with respect to insurance required to be carried
hereunder, the right to employ counsel, accountants and contractors, and the
right to make repairs, alterations and improvements to the Subject Property
necessary in Trustee's or Beneficiary's judgment to protect or enhance the
security hereof. No action taken by Beneficiary or Trustee under this paragraph
shall cure or waive any default or notice of default hereunder or nullify the
effect of any such notice of default. Beneficiary or Trustee, or any employee or
agent of Beneficiary or Trustee, or receiver appointed by a court, may take any
action or proceeding without regard to (i) the adequacy of the security for the
indebtedness secured hereby, (ii) the existence of a declaration that the
indebtedness secured hereby has been declared immediately due and payable, or
(iii) the filing of a notice of default."
6. Paragraph 4.04 of the Deed of Trust is amended to read in full as
follows:
"4.04 After deducting all costs, fees and expenses of Trustee and of
this Deed of Trust, including the cost of evidence of title in connection with
sale and attorneys' fees, Trustee shall apply the proceeds of sale to payment
of: all sums expended under the terms hereof, not then repaid, with accrued
interest at the rate applicable under the Purchase Notes at the time of such
expenditure; all other sums then secured by this Deed of Trust; and the
remainder, if any, to the person or persons legally entitled thereto."
7. Trustor and Beneficiary agree that all proceeds of insurance
required to be maintained under the provisions of Section 6 of the Purchase Note
and Security Agreement dated as of December 2, 1985, as amended by an Amendment
to Purchase Note and Security Agreement dated as of July 1, 1986, between
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Trustor and Beneficiary (as amended, the "Security Agreement"), and all awards
made to Trustor with respect to the Land, the Turbines, the Related Turbine
Equipment and the Power Substation (as such three preceding terms are defined in
the Amended and Restated Wind Park Easement Agreement dated as of July 1, 1986
between Trustor and Zond (the "Wind Park Easement Agreement")) to which Trustor
is entitled under the Wind Park Easement Agreement as the result of the exercise
of the power of eminent domain are hereby assigned to Beneficiary and shall be
governed by the provisions of Section 6.5 of the Security Agreement.
8. All references to the term "Wind Park Easement Agreement" contained
in paragraphs 2.02, 2.07, 3.01, 4.03, 4.05, 6.02 and 6.11 shall hereinafter be
deemed to be references to the "Subject Property."
9. As hereby amended, the Deed of Trust remains in full force and
effect.
IN WITNESS WHEREOF, Trustor and Beneficiary have executed this Trust
Deed Amendment as of the day and year first written above.
TRUSTOR:
ZOND WINDSYSTEM PARTNERS, LTD.
Series 85-C, a California
limited partnership
By its general partner:
ZOND WINDSYSTEMS MANAGEMENT
Corporation V, a California
corporation
By /s/ Craig A. Anderson
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Name: CRAIG A. ANDERSON
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Title: Senior Vice President -
General Counsel
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BENEFICIARY:
ZOND CONSTRUCTION CORPORATION
IV, a California corporation
By /s/ Craig A. Anderson
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Name: CRAIG A. ANDERSON
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Title: Senior Vice President -
General Counsel
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EXHIBIT A
TO
FIRST AMENDMENT TO DEED OF TRUST AND ASSIGNMENT OF RENTS
Legal Description of the "Property" and the "Land":
PARCEL 1:
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THE SOUTH ONE-HALF OF SECTION 21, TOWNSHIP 2 SOUTH, RANGE 3 EAST, MOUNT DIABLO
BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE
DISTRICT LAND OFFICE.
EXCEPTING THEREFROM THE PAST, PRESENT AND FUTURE INTEREST RESERVED BY THE
CENTRAL PACIFIC RAILROAD COMPANY IN THE GRANT DEED RECORDED NOVEMBER 19, 1883,
IN BOOK 261 OF DEEDS, PAGE 184, SERIES NO. 5-7019, ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO THE WESTERN
PACIFIC RAILWAY COMPANY, A CALIFORNIA CORPORATION, RECORDED DECEMBER 7, 1905, IN
BOOK 1076 OF DEEDS, PAGE 406, SERIES NO. L-1500, ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO R. H. SHERMAN,
RECORDED JULY 8, 1907, IN BOOK 1390 OF DEEDS, PAGE 64, SERIES NO. L-69077,
ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO THE COUNTY OF
ALAMEDA, RECORDED JANUARY 4, 1915, IN BOOK 2311 OF DEEDS, PAGE 109, SERIES
P-83238, ALAMEDA COUNTY RECORDS.
PARCEL 2:
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A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY ON, OVER, UNDER AND ACROSS THE
FOLLOWING DESCRIBED REAL PROPERTY FOR USE AS A ROADWAY FOR VEHICLES OF ALL
KINDS, PEDESTRIANS AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPE LINES, AND
FOR TELEPHONE, ELECTRIC LIGHT AND POWER LINES, TOGETHER WITH ALL NECESSARY POLES
OR CONDUITS TO CARRY SAID LINES, TO WIT:
A STRIP OF LAND 30 FEET WIDE, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF THOSE LANDS CONVEYED TO ROBERTA I.
HAUGH, BY DECREE OF PARTIAL DISTRIBUTION, DATED SEPTEMBER 30, 1949, RECORDED IN
BOOK 5901 OF OFFICIAL RECORDS OF ALAMEDA COUNTY AT PAGE 37 THEREOF, SERIES NO.
AD-66898, SAID POINT BEING ON THE SECTION LINE BETWEEN SECTION 20 AND 21, T.2
JHR41G11 EXHIBIT A
080986
S., R.3 E., M.D.B.M., SOUTH 456 FEET FROM THE APPARENT NORTHWEST CORNER OF THE
SOUTHWEST QUARTER OF SAID SECTION 21 AS SAID CORNER IS DEFINED BY THE FENCE
CORNER, THENCE NORTH 41 DEGREES 26 MINUTES WEST 492.7 FEET TO THE SOUTHEASTERLY
RIGHT OF WAY LINE OF COUNTY ROAD NO. 818, ALSO KNOWN AS ALTAMONT PASS ROAD,
BEING A PORTION OF THE SOUTHEAST QUARTER OF SECTION 20, TOWNSHIP 2 SOUTH, RANGE
3 EAST, MOUNT DIABLO BASE AND MERIDIAN.
PARCEL 3:
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THE NORTH ONE-HALF OF SECTION 28, TOWNSHIP 2 SOUTH, RANGE 3 EAST, MOUNT DIABLO
BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAN OF SAID LAND FILED IN THE
DISTRICT LAND OFFICE.
JHR41G12 EXHIBIT A
080986
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On August 9, 1986, before me, the undersigned, a Notary Public in and
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for said State, personally appeared Craig A. Anderson, personally known to me or
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proved to me on the basis of satisfactory evidence to be the person who executed
the within instrument as the Senior Vice President, General Counsel of Zond
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Windsystems Management Corporation V, the corporation that executed the within
instrument as the general partner of Zond Windsystem Partners, Ltd. Series 85-C,
a California limited partnership, the partnership that executed the within
instrument, and acknowledged to me that such corporation executed the within
instrument as such partner and that such partnership executed the same.
WITNESS may hand and official seal.
/s/ Olivia Maria Merriam
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Notary Public in and
for said County and State.
My commission expires: September 23, 1998
[Notarial Seal]
JHR41G
080986
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On August 9, 1986, before me, the undersigned, a Notary Public in and
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for said State, personally appeared Craig A. Anderson, personally known
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to me or proved to me on the basis of satisfactory evidence to
be the person who executed the within instrument as the Senior Vice President,
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General Counsel of Zond Construction Corporation IV, the corporation that
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executed the within instrument, and acknowledged to me that such corporation
executed the same pursuant to its bylaws or a resolution of its board of
directors.
WITNESS my hand and official seal.
/s/ Olivia Maria Merriam
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Notary Public in and
for said County and State.
My commission expires: September 23, 1998
[Notarial Seal]
JHR41G
080986