Exhibit 10.48
Recording requested by
and when recorded mail to
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California
Attention: Ronald G. Hartwell, Esq.
________________________________________________________________________________
(Space above this line for recorder's use)
AGREEMENT
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OF
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TRANSFER AND ASSIGNMENT
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THIS AGREEMENT is made and entered into this 14th day of July, 1987,
by and among (1) CHINA LAKE JOINT VENTURE, a joint venture and general
partnership organized and existing pursuant to the laws of State of California
("CLJV" or the "Assignor"), between California Energy Company, Inc., a
corporation organized and existing under the laws of the State of Delaware
("CECI") and Caithness Geothermal 1980 Limited, a limited partnership organized
and existing under the laws of the State of New Jersey ("CG80"; the sole general
partner of CG80 is Caithness Corporation, a corporation organized and existing
under the laws of the State of Delaware), (2) COSO FINANCE PARTNERS, a general
partnership organized and existing under the laws of the State of California
("Assignee"), consisting of two general partners, China Lake Operating Company,
a corporation organized and existing under the laws of the State of Delaware
("CLOC") and ESCA Limited Partnership, a California Limited Partnership ("ESCA";
the two general partners of ESCA are ESI Geothermal Inc., a corporation
organized and existing under the laws of the State of Florida ("ESI") and Mojave
Power, Inc., a corporation organized and existing under the laws of the State of
Delaware ("Mojave"); the sole limited partner of ESCA is CG80; CLOC, ESI and
Mojave are each referred to herein as a "GP Company"; The GP Companies and ESCA
are each referred to herein as a "GP Entity"), (3) ATKINSON-MHIA JOINT VENTURE,
a joint venture and general partnership organized and existing pursuant to the
laws of the State of California (the "Contractor" or "Assignor") between Guy F.
Atkinson Company, a corporation organized and existing under the laws of the
State of Nevada ("Atkinson") and Mitsubishi Heavy Industries America, Inc., a
corporation organized and existing under the laws of the State of Delaware
("MHIA") and (4) CREDIT SUISSE, a bank organized and existing under the laws of
Switzerland, acting through its New York branch ("CS"), in its capacity as Agent
and Collateral Agent for the account of CS and such other lenders (CS, in its
capacity as such a lender, and such other lenders are referred to herein as a
"Lender" or collectively the "Lenders") as may participate in the funding and
other risks associated with the Term Loan, as described below, pursuant to that
certain Unit I Loan Agreement of even date herewith between CS and Borrower (the
"Unit I Loan Agreement"), and in its capacity as receiving, paying and
Collateral Agent for Contractor pursuant to that
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certain Paying Agency Agreement (the "Agency Agreement") of even date herewith
among CS, Contractor, CLJV and Borrower (CS, in such agency capacities for
Contractor and the Lenders, is referred to herein as "Agent"), with reference to
the following:
RECITALS
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WHEREAS, Assignor is a party, by substitution for CECI, to the Navy
Contract, as hereinafter defined;
WHEREAS, Assignor and Southern California Edison Company, a
corporation organized and existing under the laws of the State of California
("SCE") have entered into the SCE Agreement, as hereinafter defined;
WHEREAS, Assignor and AMJV, as defined by reference below, have
entered into that certain Coso Geothermal Project Agreement dated as of February
12, 1986, as amended by the First and Second Supplemental Agreements thereto
dated as of April 16, 1986 and December 4, 1986, respectively, and as amended by
the Third Supplemental Agreement thereto of even date herewith (such agreement,
as so amended by the First and Second Supplemental Agreements thereto, the
"Original Project Agreement", and as further amended by the Third Supplemental
Agreement thereto, the "Project Agreement"), pursuant to the terms of which AMJV
has undertaken (subject to Assignor's option to acquire AMJV's
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interest, as therein provided) to design, engineer, construct, erect, own,
finance, lease, operate and maintain Unit I (as hereinafter defined) on certain
lands (the "Navy Lands") described in the Navy Contract;
WHEREAS, Assignor and AMJV have entered into certain other contracts
and agreements in connection with the Original Project Agreement and Unit I,
including, among others, (1) that certain Assignment and Consent dated as of
February 12, 1986, between CLJV and AMJV and consented to by the Navy (the
"Assignment and Consent"), (2) that certain Power Agreements Assignment dated as
of February 12, 1986, between Assignor and AMJV (the "SCE Agreement
Assignment"), (3) that certain Resource Agreement dated as of February 12, 1986,
between Assignor and AMJV (the "Resource Agreement"), (4) that certain Drilling
and Resource Supply Agreement dated as of February 12, 1986, between Assignor
and AMJV (the "Resource Supply Agreement") and (5) that certain Project
Authorization and Data Agreement dated as of February 12, 1986, between Assignor
and AMJV (the "Project Authorization Agreement") (such other contracts and
agreements are referred to collectively herein as the "Additional Project
Contracts");
WHEREAS, AMJV and the Assignee are parties to that certain Royalty
Agreement, as hereinafter defined;
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WHEREAS, AMJV has designed, engineered, constructed and erected Unit I
(exclusive of the construction of certain elements of the surface steam
gathering system and certain testing of Unit I), and has financed such work;
WHEREAS, CS has entered into the Unit I Loan Agreement with Assignee,
as Borrower, and Credit Suisse, as Agent pursuant to which the Term Lenders have
agreed to loan Assignee an aggregate amount (not to exceed the Term Loan
Commitment, as defined in the Unit I Loan Agreement) to be used by Assignee for
the purpose, among other things, of purchasing Unit I and certain of AMJV's and
Assignor's rights, titles, interests and estates powers and privileges,
including those pursuant to the Navy Contract, SCE Agreement, Project Agreement
and Additional Project Contracts; and
WHEREAS, Assignee wishes Assignor to assign certain rights, titles,
interests, estates, powers and privileges under and in connection with Unit I
and the aforementioned contracts, and Assignor is prepared to assign, set over
and transfer the same to Assignee, as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the parties hereto hereby agree as follows:
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Section 1. Definitions. Terms defined in the Unit I Loan Agreement,
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unless otherwise defined herein, shall when used herein with initial capitals,
have the meaning set forth therefore in the Unit I Loan Agreement. Unless
otherwise defined herein, or unless the context otherwise clearly requires, each
of the following terms, when used herein with initial capitals, shall have the
meaning set forth for such term below or in the document or agreement referred
to below:
"Assignor's Rights and Powers" means all of Assignor's rights, titles,
interests and estates, powers and privileges pursuant to all of the Project
Documents; provided, however, that with respect to the Navy Contract, it means
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all of Assignor's rights, titles, interests, estate, powers and privileges
thereunder with respect to the Initial Project, Initial Project Lands and Unit
I.
"Initial Project" means all elements of designing, constructing,
erecting, owning, financing, leasing, operating and maintaining Unit I and of
generating, selling and delivering the power therefrom and receiving, utilizing
and disbursing the revenues generated thereby.
"Initial Project Lands" means the area described in Exhibit A hereto.
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"Liens" shall have the meaning set forth in the Royalty Agreement.
Section 2. Assignment; Reservation. Concurrently with the execution
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of this Agreement, and in consideration of the issuance to Affiliates of
Assignor of the partnership interests in Assignee, the agreement of Assignee to
perform certain obligations of Assignor, and other good and valuable
consideration receipt of which is hereby acknowledged, Assignor hereby
transfers, sets over and assigns to Assignee all of Assignor's right, title and
interest in and all of Assignor's Rights and Powers.
Section 3. Acceptance of Assignment and Assumption of Obligations.
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Assignee hereby accepts the assignment hereunder and assumes and agrees to
perform and be bound by all obligations of Assignor (i) pursuant to each of the
Navy Contract and SCE Agreement (with respect to the Initial Project and Unit
I), and (ii) pursuant to each of the other Project Documents.
Section 4. Sale and Assignment Without Prejudice to Other Rights.
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The assignments hereunder are without prejudice to Assignor's other rights,
powers, authorities and interests, including, without limitation, its
responsibilities or obligations, pursuant to the Project Documents and its
rights
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under the SCE Agreement (with respect to Units other than Unit I which may
deliver power pursuant to the SCE Agreement) and under the Navy Contract (with
respect to lands other than those set forth on Exhibit A). CLJV hereby
expressly agrees, for the benefit of AMJV, that CLJV is and shall remain bound,
notwithstanding the delegations to and assumption by Assignee of CLJV's
obligations pursuant to the Project Documents, that CLJV is and shall remain
bound to perform all of its obligations pursuant to the Royalty Agreement, the
Project Agreement and the Well Notes.
Section 5. Assignor's Representations, Warranties and Covenants.
--------- ----------------------------------------------------
Assignor hereby represents and warrants to and covenants with Assignee: (a)
that Assignor's Rights and Powers, as and when assigned and transferred to
Assignee hereunder, are free of any Liens, other than the Liens granted by the
Project Documents to Tudesco and AMJV; (b) that each of the Project Documents
assigned hereunder, in whole or in part, is in full force and effect with
respect to Assignor; there are no breaches by Assignor or events of default
thereunder; there are no amendments, modifications or supplements thereto; and,
assuming the due authorization, execution and delivery thereof by each other
party thereto, each is the legal, valid and binding obligation of assignor
enforceable in accordance with its terms; (c) that Assignor has not sold,
assigned, pledged or otherwise hypothecated (subject to the exception contained
in paragraph
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(a) above), and will not sell, assign, pledge or otherwise hypothecate, the
whole or any part of Assignor's Rights and Powers, other than pursuant to this
Agreement with Assignee and pursuant to the assignments to Agent contained in
the Loan Instruments (it being understood and agreed that all of the same are
being pledged or hypothecated concurrently herewith pursuant to the Loan
Instruments and that the Tudesco and AMJV Liens are being transferred to Agent
concurrently herewith).
Section 6. No Other Representations or Warranties. Except for the
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representations and warranties specifically set forth in Section 5 hereof, and
except for the representations and warranties of Assignor pursuant to the
Project Documents that are assigned to Assignee, Assignor makes no
representations or warranties of any kind or character whatsoever pursuant to
this Agreement or with respect to Assignor's Rights and Powers.
Section 7. Further Assurances. Assignor and Assignee agree that, at
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any time and from time to time, upon the written request of the other, such
party will promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the other party may
reasonably request in order to obtain the full benefits of this Assignment and
of the Rights and Powers herein granted.
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Section 8. Agreement for Benefit of Parties Hereto. This Agreement
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is for the sole and exclusive benefit of the parties hereto, the Agent and Term
Lenders and their respective successors and assigns, and nothing in this
Agreement, expressed or implied, is intended to, or shall be construed to,
confer upon, or to give to, any person other than the parties hereto, the Agent
and Term Lenders and their respective successors and assigns any right, remedy
or claim.
Section 9. Severability. Any provision of this Agreement which is
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prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 10. Notices. All notices, certificates, requests and other
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communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile or similar writing) and shall be given to such party, addressed
to it, at its address or telex number or facsimile number set forth below, or
such other address or number as such party may hereafter specify for such
purpose by notice to the other parties in accordance herewith. Each such
notice, certificate, request or communication shall be effective (i) when
presented personally,
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(ii) if given by telex, when such telex is transmitted to the telex number
specified below and the appropriate answerback is received, (iii) if given by
mail, five (5) says after such communication is deposited in the U.S. mails,
registered, return receipt requested, with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified below. The telecopy (facsimile) numbers provided below
are for convenience of the parties only. Transmission by telecopy shall
constitute provision of notice under this Agreement only if receipt thereof is
acknowledged by the recipient.
If to Assignee: Coso Finance Partners
c/o China Lake Operating Company
3333 Mendocino Ave.
Santa Rosa, CA 95401
Attention: Chief Financial Officer
Telex: 5107442088
Telecopy: (707) 526-0504
with a copy to: Macdonald Halsted & Laybourne
Citicorp Plaza, 36th Floor
725 South Figueroa Street
Los Angeles, California 90017
Attention: Everett B. Laybourne, Esq.
Telex: 752718
Telecopy: (213) 629-7206
If to Assignor: China Lake Joint Venture
c/o California Energy Company, Inc.
3333 Mendocino Ave.
Santa Rosa, CA 95401
Attention: Chief Financial Officer
Telex: 5107442088
Telecopy: (707) 526-0504
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with a copy to: Macdonald Halsted & Laybourne
Citicorp Plaza, 36th Floor
725 South Figueroa Street
Los Angeles, California 90017
Attention: Everett B. Laybourne, Esq.
Telex: 752718
Telecopy: (213) 629-7206
If to AMJV: Atkinson-MHIA Joint Venture
c/o Guy F. Atkinson Company
10 West Orange Avenue
South San Francisco,
California 94080
Attention: President and General Manager
Guy F. Atkinson Construction
Company
Telex:
Telecopy: (415) 876-1143
with a copy to: Mitsubishi Heavy Industries America, Inc.
50 California Street
San Francisco, California 94111
Attention: Manager, Power Systems
Telex:
Telecopy: (415) 986-1771
If to Credit Suisse: Credit Suisse
100 Wall St.; 14th Floor
New York, NY 10008
Attention: Specialty Finance
Telex: 232491
Telecopy: (212) 943-1598
Section 11. Successors and Assigns. Whenever in this Agreement any
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of the parties hereto is named or referred to, successors and assigns of such
party shall be deemed to be included, and all covenants, promises and agreements
in this Agreement by and on behalf of the respective parties hereto
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shall bind and inure to the benefit of the respective successors and permitted
assigns of such parties, whether so expressed or not.
Section 12. Governing Law. (a) The parties hereto expressly
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acknowledge and agree that, in accordance with the provisions of New York
General Obligations Law Section 5-1401 governing agreements relating to any
obligation arising out of a transaction covering in the aggregate not less than
$250,000, this Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Each of the parties hereto hereby expressly
and irrevocably agrees and consents that any legal suit, action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
herein may be instituted in any State or Federal court sitting in the County of
New York, State of New York, United States of America and, by the execution and
delivery of this Agreement, each of the parties hereto expressly waives any
objection which it may have now or hereafter to the laying of the venue or to
the jurisdiction of any such suit, action or proceeding, and irrevocably submits
generally and unconditionally to the jurisdiction of any such court in any such
suit, action or proceeding.
(b) Nothing contained herein shall preclude either party from
bringing any legal suit, action or proceeding arising
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out of or relating to this Agreement in the courts of any place where the other
party or any of its property or assets, or the property or assets of any of its
general partners, may be found or located. To the extent permitted by
applicable Law, such party hereby irrevocably submits to the jurisdiction of any
such court and expressly waives, in respect of any such suit, action or
proceeding, the jurisdiction of any other court or courts which now or
hereafter, by reason of its present or future domicile, or otherwise, may be
available to it.
Section 13. Amendments and Waivers. This Agreement may be amended
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only by a writing signed by the parties hereto. No amendment or waiver of any
provision of this Agreement nor consent by either party to any departure by the
other party herefrom shall in any event be effective unless the same shall be in
writing and signed by the party to be charged thereby. Any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof (except as provided above) nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. This Agreement supersedes
any
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prior agreements among the parties hereto with respect to the matters addressed
herein.
Section 14. Headings. The section headings in this Agreement are
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included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 15. Counterparts. This Agreement may be executed in any
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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 undersigned have caused this Agreement of
Transfer and Assignment to be executed all as of the date first above written.
CHINA LAKE JOINT VENTURE
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By: California Energy Company, Inc.,
a general partner
By: /s/Harold H. Robinson III
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Name: Harold H. Robinson III
Title: President
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By: Caithness Geothermal 1980 Limited,
a general partner
By: Caithness Corporation,
a general partner
By: /s/ Hiram A. Bingham
---------------------------------------
Name: Hiram A. Bingham
Title: President
COSO FINANCE PARTNERS
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By: China Lake Operating Company,
a general partner
By: /s/ Harold H. Robinson III
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Name: Harold H. Robinson III
Title: President
By: /s/ Richard A. Nishkian
--------------------------------------------
Name: Richard A. Nishkian
Title: Chief Financial Officer
By: ESCA Limited Partnership, a
California Limited Partnership,
a general partner
By: ESI Geothermal Inc.,
a general partner
By: /s/ Larry Carpenter
---------------------------------------
Name: Larry Carpenter
Title: Vice President
By: Mojave Power, Inc.,
a general partner
By: /s/ Hiram A. Bingham
---------------------------------------
Name: Hiram A. Bingham
Title: President
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ATKINSON-MHIA JOINT VENTURE
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By: Guy F. Atkinson Company,
a general partner
By: /s/ Larry L. Mogilitz
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Name: Larry L. Mogilitz
Title: Attorney-in-Fact
By: Mitsubishi Heavy Industries America, Inc.,
a general partner
By: /s/ signature illegible
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Name: [illegible]
Title: Attorney-in-Fact
CREDIT SUISSE
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By: /s/ Richard Garcia
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Name: Richard Garcia
Title: Vice President
By: /s/ Markus K. Christen
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Name: Markus K. Christen
Title: Assistant Vice President
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