EXHIBIT 4.3(c)
SECOND AMENDED AND RESTATED
PARTNERSHIP SECURED LIMITED GUARANTEE
This Second Amended and Restated Partnership Secured
Limited Guarantee (this "Guarantee ") is entered into as of
October __, 1998 by CALENERGY OPERATING CORPORATION, a Delaware
corporation ("CEOC"), VULCAN POWER COMPANY, a Nevada corporation
("VPC"), CONEJO ENERGY COMPANY, a California corporation
("Conejo"), NIGUEL ENERGY COMPANY, a California corporation
("Niguel"), SAN FELIPE ENERGY COMPANY, a California corporation
("San Felipe"), BN GEOTHERMAL, INC., a Delaware corporation
("BNG"), 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"), VULCAN/BN GEOTHERMAL POWER COMPANY, a Nevada
general partnership ("Vulcan"), CALENERGY MINERALS LLC, a
Delaware limited liability company ("Minerals LLC"), and CE TURBO
LLC, a Delaware limited liability company ("Turbo LLC," and
together with CEOC, VPC, Conejo, Niguel, San Felipe, BNG, Del
Ranch, Elmore, Leathers, Vulcan, and Minerals LLC, the
"Partnership Guarantors"), in favor of and for the benefit of
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association organized under the laws of the
United States, as Trustee ("Trustee") under that certain Trust
Indenture dated as of July 21, 1995 by and between Salton Sea
Funding Corporation (the "Funding Corporation") and Trustee as
the same may be amended, modified or supplemented, including by
that certain First Supplemental Indenture dated as of October 18,
1995, that certain Second Supplemental Indenture dated as of June
20, 1996, that certain Third Supplemental Indenture dated as of
July 29, 1996, and that certain Fourth Supplemental Trust
Indenture dated as of even date herewith (as so amended, modified
or supplemented, the "Indenture") and as Collateral Agent
("Collateral Agent") under that certain Collateral Agency and
Intercreditor Agreement dated as of July 21, 1995 by and among
the Funding Corporation, the Guarantors and the Secured Parties
as the same may be amended, modified or supplemented, including
by that certain First Amendment to the Collateral Agency and
Intercreditor Agreement dated as of June 20, 1996 and that
certain Second Amendment to the Collateral Agency and
Intercreditor Agreement dated as of date even herewith for the
benefit of the Secured Parties and the Funding Corporation (as so
amended, modified or supplemented, the "Intercreditor
Agreement"). All capitalized terms used herein but not
specifically defined shall have the respective meanings given to
such terms in Exhibit A to the Indenture, which Exhibit A is
hereby incorporated by reference as if set forth in full herein.
W I T N E S S E T H:
WHEREAS, the 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, the principal and interest payments on the
Securities will be serviced by repayment of loans made by the
Funding Corporation to the Guarantors and guaranteed by the
Guarantors, subject to the conditions set forth in the Indenture;
and
WHEREAS, on July 21, 1995 the Funding Corporation
issued and sold Securities in the aggregate principal amount of
$475,000,000.00 (the "Initial Securities"); and
WHEREAS, the Funding Corporation used a portion of the
proceeds from the sale of the Initial Securities to make a loan
to CEOC and VPC in the aggregate amount of $75,000,000.00
pursuant to that certain Credit Agreement (Partnership
Guarantors) dated as of June 21, 1995; and
WHEREAS, in connection with the making of such loan to
CEOC and VPC, CEOC and VPC entered into the Partnership Secured
Limited Guarantee dated as of July 21, 1995 in favor of the
Trustee (the "Original Secured Limited Guarantee") whereby CEOC
and VPC guaranteed certain of the obligations of the Funding
Corporation under the Initial Securities; and
WHEREAS, on June 20, 1996 the Funding Corporation
issued and sold Securities in the aggregate principal amount of
$135,000,000.00 (the "Supplemental Securities); and
WHEREAS, the Funding Corporation used the proceeds from
the sale of the Supplemental Securities to make a loan to CEOC,
VPC, BNG, Conejo, Del Ranch, Elmore, Leathers, Niguel, San
Felipe, and Vulcan pursuant to that certain Amended and Restated
Credit Agreement (Partnership Guarantors) dated as of June 20,
1996; and
WHEREAS, in connection with the making of such loan to
CEOC, VPC, BNG, Conejo, Del Ranch, Elmore, Leathers, Niguel, San
Felipe, and Vulcan, such parties entered into the Amended and
Restated Partnership Secured Limited Guarantee dated as of June
20,1996 in favor of the Trustee (the "Supplemental Secured
Limited Guarantee") whereby such parties agreed to amend and
restate the Original Secured Limited Guarantee and guaranteed
certain of the obligations of the Funding Corporation under the
Initial Securities and the Supplemental Securities (the Original
Secured Limited Guarantee as so amended the "Existing Partnership
Guarantee"); and
WHEREAS, the Funding Corporation has simultaneously
with the execution and delivery of this Guarantee issued and sold
Securities in the aggregate principal amount of $285,000,000 (the
"New Securities") a portion of the net proceeds of which will be
loaned to the Partnership Guarantors pursuant to that certain
Second Amended and Restated Credit Agreement (Partnership
Guarantors) dated as of even date herewith (the "Partnership
Credit Agreement"); and
WHEREAS, each Partnership Guarantor is an affiliate of
the Funding Corporation and anticipates benefiting directly and
indirectly from the issuance and sale of the New Securities by
the Funding Corporation and continuing to benefit from the
issuance and sale of the Initial Securities and the Supplemental
Securities by the Funding Corporation, and each Partnership
Guarantor (including Minerals LLC and Turbo LLC) has therefore
agreed to jointly and severally guarantee certain of the
obligations of the Funding Corporation under the Securities
(including the Initial Securities and the Supplemental
Securities) in accordance with the terms hereof; and
WHEREAS, in order to evidence and implement such
guarantee by all of the Partnership Guarantors and the joint and
several obligations of all of the Partnership Guarantors
thereunder, the parties hereto have agreed to amend and restate
the Existing Partnership Guarantee as set forth herein.
In consideration of the above premises and for other
good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1. From and after the date hereof, the terms of the
Existing Partnership Guarantee shall be amended and restated to
read in their entirety as set forth herein and the terms hereof
shall govern and control the rights and obligations of the
parties in and with respect to the matters set forth herein,
notwithstanding any conflict between the terms hereof and the
terms of the Existing Partnership Guarantee. The Existing
Partnership Guarantee is hereby amended and restated in its
entirety as follows.
2. As set forth in this Guarantee, each Partnership
Guarantor jointly and severally guarantees the payment of the
Indebtedness (as hereafter defined) when due, upon maturity,
acceleration or otherwise; provided, however, that no obligation
to pay all or any portion of the Indebtedness shall exist unless
there also shall have occurred and be continuing (a) an Event of
Default under the Partnership Credit Agreement, (b) an Event of
Default under Section 6.1(a) of the Indenture or (c) an Event of
Default under Section 18 of this Guarantee; and provided further
that each Partnership Guarantor's obligation hereunder shall be
limited to the Available Cash Flow of such Partnership Guarantor.
3. "Indebtedness" as used herein shall mean all
principal, interest, premium (if any), fees, charges, penalties,
expenses, payments, and all other amounts due with respect to the
Securities and all other Senior Debt.
4. Subject to the conditions set forth in Section 2
of this Guarantee, the liability of each Partnership Guarantor
under this Guarantee in respect of the Indebtedness shall be
absolute and unconditional, and shall not be affected or released
in any way, irrespective of:
(a) any lack of validity or enforceability of the
Securities, the Indenture, the Credit Agreements or any of the
other Transaction Documents;
(b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Indebtedness or amendment or waiver of, or any consent to any
departure from, any Transaction Document, including, without
limitation, any increase in the Indebtedness or other obligations
of the Funding Corporation under the Indenture;
(c) any enforcement of any Transaction Document,
including the taking, holding or sale of any collateral, or any
termination or release of any collateral from the liens created
by any Transaction Document or the non-perfection of any liens
created by any Transaction Document;
(d) the failure by any one of the Partnership
Guarantors to fulfill its obligations under this Guarantee;
(e) any change, restructuring or termination of
the corporate structure or existence of the Funding Corporation;
or
(f) any Event of Default of the Funding
Corporation under Sections 6.1(f) or (g) of the Indenture, of the
Salton Sea Guarantors under Section 5.1(e) of the Salton Sea
Credit Agreement, of the Partnership Guarantors under Section
5.1(e) of the Partnership Credit Agreement or of the Royalty
Guarantor under Section 5.1(e) of the Royalty Credit Agreement.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Indebtedness is rescinded or must otherwise be returned by
the Trustee or any other Person upon the insolvency, bankruptcy
or reorganization of the Funding Corporation or the Partnership
Guarantors, or otherwise, all as though such payment had not been
made.
5. Except to the extent provided in Section 2 of this
Guarantee, the obligations hereunder are independent of the
obligations of the Funding Corporation or any other Guarantor,
and a separate action or actions may be brought and prosecuted
against any of the Partnership Guarantors whether action is
brought against either the Funding Corporation or any other
Guarantor or whether either the Funding Corporation or any other
Guarantor be joined in any such action or actions; and each
Partnership Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder.
6. The Partnership Guarantors authorize the Trustee,
acting pursuant to the Indenture, without notice or demand and
without affecting their liability hereunder, from time to time,
whether before or after termination of this Guarantee, to (a)
renew, compromise, extend, accelerate or otherwise change the
time for payment of the obligations of the Funding Corporation
under the Indenture or any part thereof; (b) take and hold
security for the payment of this Guarantee or the Indebtedness,
and exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security; (c) apply such security
and direct the order or manner of sale thereof; and (d) release
or substitute any one or more of the endorsers or guarantors.
7. The Partnership Guarantors hereby waive and
relinquish all rights and remedies accorded by applicable law to
sureties or guarantors and agree not to assert or take advantage
of any such rights or remedies, including without limitation:
Civil Code Section 2856(c) Waiver
(a) all rights and defenses that the Partnership
Guarantors may have because the obligations of the Funding
Corporation or any other guarantor of any or all of the
Indebtedness are secured by real property. This means, among
other things:
(1) Trustee may collect from the Partnership
Guarantors without first foreclosing on any real or personal
property collateral pledged by the Funding Corporation or any
other guarantor;
(2) If Trustee forecloses on any real
property collateral pledged by the Funding Corporation or any
other guarantor:
(A) the amount of the debt may be
reduced only by the price for which that collateral is sold at
the foreclosure sale, even if the collateral is worth more
than the sale price; and
(B) Trustee may collect from the
Partnership Guarantors even if Trustee, by foreclosing on the
real property collateral, has destroyed any right the
Partnership Guarantors may have to collect from the Funding
Corporation or any other guarantor.
This is an unconditional and irrevocable waiver of
any rights and defenses the Partnership Guarantors may have
because the Indebtedness is secured by real property. These
rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d or 726
of the California Code of Civil Procedure.
Civil Code Section 2856(d) Waiver
(b) all rights and defenses arising out of an
election of remedies by Trustee, even though that election of
remedies such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation has destroyed the
Partnership Guarantors' right of subrogation and reimbursement
against the principal by the operation of Section 580d of the
Code of Civil Procedure or otherwise;
Other Waivers
(c) The Partnership Guarantors hereby waive, to
the extent permitted by applicable law: (i) promptness,
diligence, notice of acceptance and any other notice with respect
to any of the Indebtedness or any other obligations under the
Transaction Documents or this Guarantee; (ii) any requirement
that the Trustee or any other Person protect, secure or insure
any lien or any collateral or other property subject thereto or
exhaust any right or take any action against either the Funding
Corporation or any other Person or any collateral; (iii) any
defense arising by reason of any claim or defense based upon an
election of remedies by the Trustee which in any manner impairs,
reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed
against either the Funding Corporation or any other Person or any
collateral; (iv) any duty on the part of the Trustee to disclose
to the Partnership Guarantors any matter, fact or thing relating
to the business, operation or condition of either the Funding
Corporation or any other party to any of the Transaction
Documents and the Funding Corporation's assets now known or
hereafter known by the Trustee; and (v) all presentments, demands
for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this
Guarantee and of the existence, creation, or incurrence of new or
additional Indebtedness.
8. The Partnership Guarantors hereby irrevocably
waive any claim or other rights which they may now or hereafter
acquire against either the Funding Corporation or any other
guarantor of any or all of the Indebtedness, whether due or to
become due, voluntary or involuntary, absolute or contingent,
liquidated or unliquidated, determined or undetermined,
including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, or indemnification; or
any right to participate in any claim or remedy of the Trustee
against either the Funding Corporation or any such guarantor or
any collateral which the Trustee now has or hereafter acquires,
whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including without
limitation, the right to take or receive from the Funding
Corporation, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account
of such claim or other rights; and the rights and defenses
available to Partnership Guarantors by reason of California Civil
Code Sections 2787 to 2855, inclusive; and any and all benefits
which might otherwise be available to the Partnership Guarantors
under California Civil Code Sections 2809, 2810, 2819, 2839, 2845
through 2847, 2849, 2850, 2899 and 3433. If any amount shall be
paid to the Partnership Guarantors in violation of the preceding
sentence and the Indebtedness shall not have been paid in full,
such amount shall be deemed to have been paid to the Partnership
Guarantors for the benefit of, and held in trust for the benefit
of, the Trustee and shall forthwith be paid to the Trustee to be
credited and applied to the Indebtedness, whether matured or
unmatured, in accordance with the terms of the Indenture. The
Partnership Guarantors acknowledge that they have received and
will receive direct and indirect benefits from the sales of the
Securities already completed and the sales of Securities
currently contemplated by the Indenture and that the waiver set
forth in this Section 8 is knowingly made in contemplation of
such benefits.
9. The Partnership Guarantors agree that, to the
extent that either the Funding Corporation or any of the
Partnership Guarantors makes a payment or payments to the
Trustee, or the Trustee receives any proceeds of collateral,
which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or otherwise required to be repaid to either the Funding
Corporation, its estate, trustee, receiver or any other party,
including, without limitation, under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of
such payment or repayment, the obligation or part thereof which
has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date
such initial payment, reduction or satisfaction occurred. The
Partnership Guarantors shall defend and indemnify the Trustee
from and against any claim or loss under this Section 9
(including reasonable attorneys' fees and expenses) in the
defense of any such action or suit.
10. The Partnership Guarantors acknowledge and agree
that they shall have the sole responsibility for obtaining from
the Funding Corporation such information concerning the Funding
Corporation's financial conditions or business operations as the
Partnership Guarantors may require, and that the Trustee has no
duty at any time to disclose to the Partnership Guarantors any
information relating to the business operations or financial
condition of the Funding Corporation.
11. To the extent that any of the waivers set forth in
Sections 7 and 8 is or is deemed to be ineffective or
inapplicable, any obligations of the Funding Corporation to the
Partnership Guarantors, now or hereafter existing, are hereby
subordinated to the Indebtedness. If the Trustee so requests,
after the occurrence of an Event of Default under the Indenture,
such obligations of the Funding Corporation to the Partnership
Guarantors shall be enforced and performance received by the
Partnership Guarantors as trustee for the Trustee and the
proceeds thereof shall be paid over to the Trustee on account of
the Indebtedness, but without reducing or affecting in any manner
the maximum liability of the Partnership Guarantors under the
other provisions of this Guarantee.
12. The Trustee may, without notice to the Partnership
Guarantors and without affecting the Partnership Guarantors'
obligations hereunder, assign this Guarantee, in whole or in part
in accordance with the provisions of the Indenture. The
Partnership Guarantors agree that the Trustee may, subject to the
provisions of the Indenture, disclose to any prospective
purchaser and any purchaser of all or part of the Indebtedness
any and all information in the Trustee's possession concerning
the Partnership Guarantors, this Guarantee and any security for
this Guarantee.
13. The Partnership Guarantors agree to pay all
reasonable attorneys' fees and all other fees and expenses which
may be incurred by the Trustee in the enforcement of this
Guarantee.
14. The Trustee agrees that no directors, officers,
shareholders (other than CEOC, VPC, Conejo, Niguel, San Felipe
and BNG) or employees of any Partnership Guarantor shall in any
way be liable for the payment of the Securities, the Project
Notes or any sums now or hereafter owing under the terms of, or
for the performance of any obligation contained in, this
Guarantee.
15. This Guarantee shall be governed by and construed
according to the laws of the State of California.
16. This Guarantee embodies the entire agreement and
understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter
hereof.
17. This Guarantee may be executed in any number of
counterparts, all of which together shall constitute one
agreement.
18. The Partnership Guarantors shall continue to be
bound by and perform all of their obligations under the terms and
conditions set forth in the Partnership Credit Agreement for the
benefit of the Funding Corporation and its legal successors and
assigns, the terms of which are incorporated herein by reference
as if set forth in full herein, from and after the date that the
Partnership Project Note is repaid and until the payment in full
of all obligations under the Salton Sea Project Note and the
Royalty Project Note. The Partnership Guarantors' failure to
perform such terms and conditions shall, from and after the date
that the Partnership Project Note has been repaid, be an Event of
Default hereunder.
19. The obligations hereunder are subject to the
limitations set forth in Section 6.11 of the Partnership Credit
Agreement, the provisions of which are hereby incorporated by
reference.
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The Partnership Guarantors have executed this Guarantee
as of the date and year first written above.
VULCAN POWER COMPANY,
a Nevada corporation
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CALIFORNIA ENERGY OPERATING CORPORATION,
a Delaware corporation
By: /s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CONEJO ENERGY COMPANY,
a California corporation
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
NIGUEL ENERGY COMPANY,
a California corporation
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
SAN FELIPE ENERGY COMPANY,
a California corporation
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
BN GEOTHERMAL INC.,
a Delaware corporation
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
DEL RANCH, L.P.,
a California limited partnership
By: CalEnergy Operating Corporation,
a Delaware corporation, its general partner
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
ELMORE, L.P.,
a California limited partnership
By: CalEnergy Operating Corporation,
a Delaware corporation, its general partner
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
LEATHERS, L.P.,
a California limited partnership
By: CalEnergy Operating Corporation,
a Delaware corporation, its general partner
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
VULCAN/BN GEOTHERMAL POWER COMPANY,
a Nevada general partnership
By: Vulcan Power Company,
a Nevada corporation, its partner
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CALENERGY MINERALS LLC,
a Delaware limited liability company
By: Salton Sea Minerals Corp.,
a Delaware corporation, its manager
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President
CE TURBO LLC,
a Delaware limited liability company
By: Magma Power Company,
a Nevada corporation, its manager
By:/s/ Craig M. Hammett
Name: Craig M. Hammett
Title: Senior Vice President