EXHIBIT 10.23
COLLATERAL ASSIGNMENT
(SCE Agreements)
This Collateral Assignment (this "Assignment") is dated as of June
20, 1996 by 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", and together with Del Ranch,
Elmore and Leathers, "Borrower") in favor of Chemical Trust Company of
California, a California corporation (together with its successors and
assigns, the "Collateral Agent"), as collateral agent under the Intercreditor
Agreement (as defined below).
RECITALS
A. Initial Senior Secured Debt. Pursuant to that certain Trust
Indenture (the "Original Indenture") dated as of July 21, 1995, between Salton
Sea Funding Corporation, a Delaware corporation ("Funding Corporation"), as
issuer, and Collateral Agent, as trustee, Funding Corporation has issued for
its own account as principal, and as agent for the Guarantors (as defined in
the Original Indenture), $232,750,000 principal amount of Senior Secured
Series A Notes due 2000, $133,000,000 principal amount of Senior Secured
Series B Bonds due 2005 and $109,250,000 principal amount of Senior Secured
Series C Bonds due 2010 (collectively, the "Initial Senior Secured Debt").
B. Additional Senior Secured Debt. Pursuant to that certain Second
Supplemental Trust Indenture (the "Supplemental Indenture") dated as of June
20, 1996, between Funding Corporation, as issuer, and Collateral Agent, as
trustee, Funding Corporation will issue for its own account as principal, and
as agent for the Guarantors, $70,000,000 principal amount of Senior Secured
Series D Notes due 2000 and $65,000,000 principal amount of Senior Secured
Series E Bonds due 2011 (the "Additional Senior Secured Debt", and together
with the Initial Senior Secured Debt and all other securities issued under the
Indenture, the "Senior Secured Debt"). The Original Indenture, as amended,
modified or supplemented, including pursuant to the Supplemental Indenture is
referred to herein as the "Indenture." Capitalized terms used and not
otherwise defined herein shall have the meanings as defined in the Indenture.
C. Financing Documents. In connection with the issuance of the Senior
Secured Debt, Borrower has entered or will enter into certain agreements (the
"Financing Documents") with certain parties (the "Secured Parties"), which
agreements include a credit agreement with Funding Corporation and a guarantee
in favor of Collateral Agent serving in its capacity as collateral agent under
the Intercreditor Agreement and as trustee under the Indenture.
D. Security Documents. In order to secure all their obligations under
the Financing Documents, Borrower has agreed to execute certain security
documents (the "Security Documents"), encumbering and granting security
interests in certain of Borrower's rights and properties in favor of Collateral
Agent, as agent for the Secured Parties and Funding Corporation under that
certain Collateral Agency and Intercreditor Agreement dated as of July 21,
1995, as amended, by and among Funding Corporation, the Secured Parties and the
Guarantors named therein (the "Intercreditor Agreement").
E. Purpose. This Assignment is entered into to assign, pledge and
encumber all of Borrower's right, title and interest in and to the documents
listed on Exhibit A attached hereto, in favor of the Collateral Agent, as agent
for the Secured Parties and Funding Corporation in order to secure the payment
and performance of the Obligations (as defined below) to the Secured Parties and
Funding Corporation.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and adequacy of which is hereby acknowledged, the parties agree as follows:
1. Borrower hereby conveys, assigns, transfers and grants to
Collateral Agent, as security for all its obligations under the Financing
Documents (the "Obligations") all the right, title and interest of Borrower
in, to and under (including all moneys due and to become due to Borrower
under), and does hereby grant and create in favor of Collateral Agent, for the
equal and ratable benefit of the Secured Parties and Funding Corporation, a
lien on and first priority security interest in the documents listed on
Exhibit A attached hereto (as amended, supplemented or modified, individually,
an "Assigned Agreement," and collectively, the "Assigned Agreements").
Notwithstanding any provision herein to the contrary, there shall be no
enforcement of remedies hereunder unless there shall have occurred and be
continuing a Credit Agreement Event of Default under the Partnership Credit
Agreement or a Guarantee Event of Default under the Partnership Guarantee.
2. This Assignment shall be subject to all the terms and conditions
of the other Security Documents, and all the right, title and interest of
Borrower in, to and under the Assigned Agreements shall from the date hereof
constitute part of the collateral pledged, assigned or otherwise encumbered
under the Security Documents (the "Collateral") for all purposes of the
Security Documents.
3. Neither this Assignment nor the receipt by Collateral Agent of any
payments pursuant hereto shall cause Collateral Agent, Funding Corporation or
any Secured Party to be under any obligation to Borrower for any action taken
or omitted to be taken by Collateral Agent, Funding Corporation or any Secured
Party under or in connection with the Assigned Agreements, this Assignment or
any other Security Document.
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4. Borrower hereby irrevocably constitutes and appoints Collateral
Agent and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact (which appointment as attorney-in-fact
shall be coupled with an interest) with full and irrevocable power and
authority in the place and stead of Borrower and in the name of Borrower or in
the name of Collateral Agent for the purpose of carrying out the terms of this
Assignment or any of the Security Documents, to execute and deliver and, if
appropriate, to file with the appropriate filing officer or office such
security agreements, financing statements, continuation statements or other
instruments as Collateral Agent deems necessary or advisable to impose,
perfect or continue the perfection of the Lien created hereby and to take any
and all action and to execute any and all instruments which may be necessary
to accomplish the purposes of this Assignment; provided, however, Collateral
Agent shall not exercise such rights except upon the occurrence and
continuance of a Credit Agreement Event of Default under the Partnership
Credit Agreement or a Guarantee Event of Default under the Partnership
Guarantee.
5. At any time and from time to time, Collateral Agent or any officer
or agent thereof shall have the right to perform any act, duty or obligation
required of Borrower that Collateral Agent reasonably determines to be
necessary or appropriate to cure any default, action or omission of Borrower
under any of the Assigned Agreements and, in connection with such cure, to
protect the rights of Borrower and Collateral Agent thereunder, and may do so
in Collateral Agent's name or in the name of Borrower; provided, however,
nothing herein shall require Collateral Agent to cure any default, action or
omission of Borrower under any such Assigned Agreement or to perform any act,
duty or obligation to Borrower thereunder. In accordance with the Security
Documents, neither Collateral Agent, Funding Corporation or any Secured Party,
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be liable to Borrower or any other
Person for any action taken or omitted to be taken by it or them under or in
connection with any Assigned Agreement notwithstanding that any such action
taken, or omission, by Collateral Agent or such other Persons shall prove to
be inadequate, inappropriate or invalid, in whole or in part, except for
liability resulting from Collateral Agent's gross negligence or willful
misconduct.
6. Borrower hereby agrees to execute and deliver such additional
assignments and other documents as Collateral Agent reasonably may request in
order to implement the purpose and intent of this Assignment and the Security
Documents, including, without limitation, those documents required to perfect
and protect the assignment and security interest granted hereunder and
thereunder.
7. Borrower hereby represents and warrants that, other than such
security interests as have been granted by the Borrower pursuant to (a) the
collateral assignments entered into by each of Del Ranch, Elmore and Leathers
in favor of Morgan Guaranty Trust Company of New York, as Agent, which
security interests shall have been terminated as of even date herewith, and
(b) the Security Documents, it has not heretofore assigned or otherwise
disposed of or encumbered any right, title or interest of the Borrower in, to
or under the Assigned Agreements or any moneys due or to become due to the
Borrower under or by reason thereof, and that the Borrower has, subject to
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the terms and conditions of the Assigned Agreements and all applicable
governmental laws, rules or other requirements, the right and power to
transfer to Collateral Agent, for the benefit of the Secured Parties and
Funding Corporation, absolute title to the Borrower's right, title and
interest in, to and under the Assigned Agreements and in and to all the moneys
due and to become due to the Borrower under the Assigned Agreements.
8. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
9. This Assignment shall create a continuing assignment, pledge and
first priority security interest in the Assigned Agreements and shall remain
in full force and effect for the benefit of Collateral Agent until all
Obligations to be paid or performed by Borrower have been paid and performed
in full. Upon the happening of all of such events, the security interest
granted hereby shall terminate. Upon such termination, Collateral Agent shall,
upon the request and at the expense of Borrower, execute and deliver to
Borrower such documents as Borrower shall reasonably request to evidence such
termination.
10. This Assignment shall be binding upon and inure to the benefit of
Borrower and Collateral Agent for the benefit of Funding Corporation and the
Secured Parties and their respective successors and assigns.
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IN WITNESS WHEREOF, Borrower has caused this Assignment to be duly
executed and delivered as of the date first above written.
DEL RANCH, L.P.,
a California limited partnership
By: CalEnergy Operating Company,
a Delaware corporation,
as General Partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
ELMORE, L.P.,
a California limited partnership
By: CalEnergy Operating Company,
a Delaware corporation,
as General Partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
LEATHERS, L.P.,
a California limited partnership
By: CalEnergy Operating Company,
a Delaware corporation,
as General Partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
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VULCAN/BN GEOTHERMAL POWER COMPANY,
a Nevada general partnership
By: Vulcan Power Company,
Nevada corporation,
as General Partner
By: /s/ John G. Sylvia
Name: John G. Sylvia
Title: Senior Vice President
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Exhibit A
to the
Collateral Assignment
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ASSIGNED AGREEMENTS
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As each of the following may be amended, supplemented or otherwise modified
in compliance with the provisions of the Financing Documents:
The Power Purchase Contract, dated February 22, 1984 between Southern
California Edison Company ("Edison") and Del Ranch, L.P., a California limited
partnership ("Del Ranch") (as successor-in-interest to Imperial Energy
Corporation), and Amendment No. 1 thereto dated November 13, 1984 and
Amendment No. 2 thereto dated April 10, 1986.
The Power Purchase Contract, dated June 15, 1984 between Edison and Elmore,
L.P., a California limited partnership ("Elmore") (as successor-in-interest to
Magma Electric Company), and Amendment No. 1 thereto dated November 30, 1984
and Amendment No. 2 thereto dated April 10, 1986.
The Power Purchase Contract, dated April 16, 1985 between Edison and
Leathers, L.P., a California limited partnership ("Leathers") (as
successor-in-interest to Imperial Energy Corporation), and Amendment No. 1
thereto dated April 10, 1986.
The Power Purchase Contract, dated March 1, 1984 between Edison and
Vulcan/BN Geothermal Power Company, a Nevada general partnership ("Vulcan")
(as successor-in-interest to Magma Electric Company), and Amendment No. 1
thereto dated May 10, 1984 and Amendment No. 2 thereto dated April 1, 1986.
The Funding Agreement dated May 18, 1990 between Edison and Del Ranch.
The Funding Agreement dated May 18, 1990 between Edison and Elmore.
The Funding Agreement dated June 15, 1988 between Edison and Leathers (as
successor-in-interest to Magma Power Company).
The Funding Agreement dated May 18, 1990 between Edison and Leathers.
The Funding Agreement dated May 18, 1990 between Edison and Vulcan.