Exhibit 10.49
Recording requested by:
And when recorded mail to:
Baker & McKenzie
725 South Figueroa Street - 36th Floor
Los Angeles, California 90017
Attention: William A. Goddard IV, Esq.
________________________________________________________________________________
(Space above this line for recorder's use)
AGREEMENT OF TRANSFER AND ASSIGNMENT
(Navy II Transmission Line)
THIS AGREEMENT OF TRANSFER AND ASSIGNMENT (this "Agreement") is made and
entered into this 31 day of July, 1989, by and among (1) COSO POWER DEVELOPERS,
a general partnership organized and existing under the laws of the State of
California ("CPD" or the "Assignor"), consisting of two general partners, Coso
Technology Corporation, a corporation organized and existing under the laws of
the State of Delaware, and Caithness Navy II Group, L.P., a limited partnership
organized and existing under the laws of the State of New Jersey; and (2) COSO
TRANSMISSION LINE PARTNERS, a general partnership organized and existing under
the laws of the State of California ("CTLP" or the "Assignee"), consisting of
two general partners, CPD and Coso Energy Developers, a general partnership
organized and existing under the laws of the State of California ("CED"); with
reference to the following facts:
RECITALS
WHEREAS, CPD (through a series of assignments) and the United States
Department of the Navy (the "Navy") are parties to the Navy Contract, pursuant
to which the Navy granted to CPD, among other things, the right to develop
electric power from the geothermal resources on and under the Navy II Lands;
WHEREAS, CPD (through an assignment) is a party to that certain Credit
Agreement -- Construction Loan and Term Loan Facility dated as of December 30,
1988, as amended from time to time, among CPD (through an assignment), the Agent
(as defined therein) and Lenders (as defined therein) (the "Credit Agreement")
and that certain Resource Development Loan Agreement dated as of December 30,
1988, as amended from time to time, among CPD (through an assignment), the Agent
(as defined therein) and Lenders (as defined therein) (the "Resource Loan
Agreement"),
pursuant to which CED executed that certain Construction and Long-Term Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of
March 17, 1989 and recorded in the Official Records of Inyo County on March 17,
1989 as Instrument No. 89-1258, as amended from time to time (the "Mortgage");
WHEREAS, the parties hereto desire CPD to construct and operate Navy II -
Units 4, 5 and 6 on the Navy II Lands, and CED has assigned to CPD its interest
in such assets pursuant to that certain Agreement of Transfer and Assignment
(Navy II Lands and BLM Easement) of even date herewith, by and between CED and
CPD (the "Navy II Assignment");
WHEREAS, the parties hereto desire CTLP to own, utilize and operate the
Transmission Line, excluding the Interconnection Facilities, for the benefit of
the owners of Navy II - Units 4, 5 and 6 and the BLM Facilities;
WHEREAS, CED contemporaneously herewith is assigning and transferring to
CTLP all of its interest in the Transmission Line pursuant to that certain
Agreement of Transfer and Assignment (BLM Transmission Line) of even date
herewith (the "Transmission Line Assignment") by and between CED and CTLP, and
CED (i) reserves in the Transmission Line Assignment nonexclusive rights to
construct, repair, maintain, utilize and operate the Transmission Line for the
benefit of the BLM Project Area and the BLM Facilities and (ii) grants to CTLP
nonexclusive rights of ingress and egress across the BLM Project Area for the
purpose of construction, repair, maintenance, utilization and operation of the
Transmission Line; and
WHEREAS, Assignor is prepared to assign, set over and transfer all of its
interests in the Transmission Line, subject to Assignor's Easement (as defined
below) and, further, to assign, set over, and transfer the Navy II Transmission
Line Easement (as defined below) to Assignee, as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. Each of the following terms, when used herein
with initial capitals, shall have the meaning set forth for such term below:
(a) "Assignor's Easement" means the nonexclusive rights: (i) to use the
lands over, across and under the Transmission Line for purposes reasonably
necessary or desirable to construct, repair, maintain, utilize and operate the
Navy II - Units 4, 5 and 6; (ii) of ingress and egress over, across and under
the lands on which the Transmission Line is located to
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construct, repair, maintain, utilize and operate the Navy II - Units 4, 5 and
6; and (iii) to construct, repair, maintain, utilize and operate the
Transmission Line for the benefit of Navy II - Units 4, 5 and 6; provided,
however, that the exercise by Assignor and its successors and assigns of such
rights shall not unreasonably interfere with Assignee's further construction,
maintenance and operation of the Project, and consequently, the exercise by
Assignor and its successors and assigns of such rights is subject to such
reasonable restrictions upon the time, place and manner of exercise as may be
imposed by Assignee and its successors and assigns;
(b) "Assignor's Rights and Powers" means all of Assignor's rights, titles,
interests, estates, powers and privileges in, to and under the Project Area
Rights, Project Authorizations and the Project Documents in and with respect to
the Project, and the Transmission Line as it relates to Navy II - Units 4, 5 and
6 (i.e., a 53.3% undivided interest in the portion of the Transmission Line
running from Inyokern to the east site of the BLM Facilities and a 100% interest
in portion of the Transmission Line running from the east site of the BLM
Facilities to Navy II - Units 4, 5 and 6 and related rights), including, without
limitation, its rights and powers under the Navy Contract in and with respect to
the Project subject, in each case, to the security interests and encumbrances on
such Assignor's Rights and Powers granted in connection with the financing of
the Project, including, without limitation, the "Liens" granted pursuant to the
"Security Documents" (as such terms are defined in the Credit Agreement) and the
Mortgage; specifically excluding, however, the "BLM Easement," as such term is
defined in Section l(a) of that certain Agreement of Transfer and Assignment
(Navy II Lands and BLM Easement) of even date herewith, by and between CED and
CPD, and recorded concurrently herewith;
(c) "BLM Facilities" means the geothermal power plants together with
related wells, geothermal resource gathering system, geothermal resource
disposal system, the interconnection facilities related thereto, and all
equipment, improvements, fixtures and other items appurtenant thereto up to (but
not including) the Transmission Line, all of which are now or hereafter located
on, or used in connection with, the lands covered by the BLM Lease;
(d) "BLM Lease" means that certain offer to Lease and Lease for Geothermal
Resources dated April 19, 1985, effective May 1, 1985, between the BLM, as
lessor, and California Energy Company, Inc., a Delaware corporation ("CECI"), as
lessee, as assigned to Coso Land Company, a California joint venture, pursuant
to that certain Assignment Affecting Record Title to Geothermal Resources Lease,
dated as of May 17, 1985 and effective July 1, 1985, as further assigned to Coso
Geothermal
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Company, a California joint venture, pursuant to that certain Assignment of
Record Title interest in a Lease for Oil and Gas or Geothermal Resources, dated
as of April 15, 1988, and effective as of May 1, 1988, and as further assigned
to CED pursuant to that certain Assignment of Record Title Interest in a Lease
for Oil and Gas or Geothermal Resources, dated as of April 15, 1988 and
effective as of May 1, 1988;
(e) "BLM Project Area" means the lands located in Inyo County, California,
as more particularly described in Exhibit A attached hereto and made a part
hereof;
(f) "Interconnection Facilities" means the interconnection facilities and
all equipment, improvements, fixtures and other items appurtenant thereto, to be
constructed and installed at or near SCE's Inyokern substation pursuant to the
Interconnection Agreement;
(g) "Interconnection Agreement" means that certain Interconnection and
Integration Facilities Agreement dated December 15, 1988, between CLJV and SCE,
as assigned to CED as of December 30, 1988;
(h) "Loan Instruments" means the Credit Agreement, the Resource Loan
Agreement, the "Security Documents", the "Notes", the "Financing Statements" (as
such terms are defined in the Credit Agreement and the Resource Loan Agreement)
and such other instruments defined as "Loan Instruments" pursuant to the Credit
Agreement or the Resource Loan Agreement;
(i) "Navy Contract" means that certain Contract No. K-N62474-79-C-5382,
dated December 6, 1979, by and between the United States of America acting
through the Navy, and CECI, as modified, amended, assigned to China Lake Joint
Venture, a California joint venture ("CLJV"), and restated by Contract
Modification P00004, dated as of October 19, 1983, and as modified by
Modifications Nos. P00005, P00006, P00007, P00008, P00009, P00010, P00011,
P00012, P00013 and P00014 thereto of June 21, 1984, June 28, 1984, November 14,
1984, February 13, 1986, April 10, 1987, July 2, 1987, August 17, 1987,
September 18, 1987, October 13, 1987 and February 16, 1988, respectively, a
portion of which contract was assigned to CED as of December 30, 1988, and as
the same is hereafter modified or amended;
(j) "Navy II - Units 4, 5 and 6" means the geothermal power plant,
consisting of three nominal 27 megawatt (net) electric generating units to be
designed, constructed and tested by Mission Power Engineering Company, a
California corporation ("MPE"), together with related wells, geothermal resource
gathering system, geothermal resource disposal system, the Interconnection
Facilities, and all equipment, improvements,
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fixtures and other items appurtenant thereto up to (but not including) the
Transmission Line, for the purpose of supplying electric energy and capacity to
SCE, pursuant to, and as more fully described in, the Project Documents;
(k) "Navy II Transmission Line Easement" means the nonexclusive rights of
ingress and egress across the Navy II Lands for the purpose of construction,
maintenance, repair, utilization and operation of the Project, provided,
however, that Assignee's exercise of such rights shall not unreasonably
interfere with Assignor's further construction, maintenance and operation of
Navy II - Units 4, 5 and 6 an the Navy II Lands and, consequently, Assignee's
exercise of such rights are subject to such reasonable restrictions upon the
time, place and manner of exercise as may be imposed by Assignor and its
successors and assigns;
(1) "Navy II Lands" means the public lands located in Inyo County,
California as more particularly described in Exhibit D attached hereto;
(m) "Project" means all elements of designing, testing, owning, financing,
leasing, operating and maintaining the Transmission Line;
(n) "Project Area Rights" means the entire rights, titles, interests,
estates, powers and privileges of Assignor under the Navy Contract in and with
respect to the Project, including rights of access, ingress and egress to and
from the Navy II Lands and BLM Project Area, subject to the terms and conditions
of the Navy Contract;
(o) "Project Authorizations" means all permits, authorizations, rights of
way and licenses relating to the Project in favor of or held by Assignor which
are necessary or appropriate to operate, utilize and maintain the Project, as
each relates to the Project;
(p) "Project Documents" means all agreements relating to the Project to
which Assignor is a party or a beneficiary, which are necessary or appropriate
to operate and maintain the Project including, without limitation, the Navy
Contract, the warranties, guarantees and rights with respect to the Transmission
Line under the Turnkey Contract, and those documents set forth in Exhibit B
attached hereto and made a part hereof, as each relates to the Project;
(q) "SCE Contract" means that certain Agreement effective June 28, 1985,
between CLJV and Southern California Edison Company, Inc., a California
corporation ("SCE"), and assigned to CED as of December 30, 1988, pursuant to
which CED has agreed to construct, own and operate a Small Power Production
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Facility (as defined in the SCE Contract) and sell electric power derived from
the Small Power Production Facility to SCE and SCE has agreed to purchase from
CED at fixed rates such electrical power;
(r) "Transmission Line" means that certain transmission line, and all
equipment, improvements, fixtures and other items appurtenant thereto which is
or will be located in the Counties of Inyo and Kern, State of California, on
that certain real property more particularly described in Exhibit C hereto; and
(s) "Turnkey Contract" means that certain Contract for the Engineering and
Construction of Coso Geothermal Project Navy II - Units 1, 2 and 3 between CED
and MPE dated January 25, 1989 and assigned to CPD pursuant to the Navy II
Assignment.
Section 2. Assignment. Concurrently with the execution of this Agreement,
and in consideration of the agreement of Assignee to perform certain obligations
of Assignor (as set forth below), and other good and valuable consideration, the
receipt of which is hereby acknowledged, Assignor hereby grants, transfers, sets
over and assigns to Assignee the Assignor's Rights and Powers, specifically
reserving, however, Assignor's Easement and hereby further grants, transfers,
sets over and assigns to Assignee the Navy II Transmission Line Easement.
Section 3. Acceptance of Assignment and Assumption of Obligations.
Subject to the terms and conditions of this Agreement, Assignee hereby accepts
the assignment hereunder, expressly agrees to be bound fully by all provisions
of, and expressly assumes and agrees to perform and discharge all duties, debts,
liabilities and all obligations of Assignor with respect to Assignor's Rights
and Powers.
Section 4. Consent of Credit Suisse. Credit Suisse hereby consents to the
foregoing assignment from Assignor to Assignee.
Section 5. Assignor's Representations, Warranties and Covenants. Assignor
hereby represents and warrants to, and covenants with, Assignee that: (a)
Assignor's Rights and Powers, as and when assigned and transferred to Assignee
hereunder, are free of any liens, other than those arising under the Loan
Instruments; (b) the Project Authorizations and the Project Documents, to the
extent relating to the Project, as and when assigned and transferred to Assignee
hereunder, will be in full force and effect with respect to Assignee and
Assignor is not in breach or default of such Project Authorizations and Project
Documents; (c) except for the modification of the Navy Contract providing for
the construction, ownership, operation, utilization and maintenance of the
Transmission Line, there are no amendments, modifications or supplements to the
Project Documents, the
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Project Area Rights or the Project Authorizations other than those set forth
herein; (d) the Project Documents are the legal, valid and binding obligation of
Assignor; (e) Assignor will take no action which would result in the termination
of the Project Authorizations or the Project Documents; (f) Assignor has not
sold, assigned, pledged or otherwise hypothecated 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 or pursuant to the Loan
Instruments; (g) this Agreement has been duly authorized and executed by
Assignor and, assuming the due authorization and consent by the Navy,
constitutes the legal, valid, binding and enforceable obligation of Assignor in
accordance with its terms; and (h) the execution and delivery of this Agreement
by Assignor does not violate any law or any contract with any other party and no
other governmental authorization other than the consent of the Navy is required
for the effectiveness of this Agreement.
Section 6. No Other Representations or Warranties. Except for the
representations and warranties specifically set forth in Section 5 hereof,
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. Indemnification. The parties hereto shall each defend and
indemnify the other against and hold it harmless from all claims, damages,
liabilities, costs and expenses (including attorneys' fees and expenses)
incurred in connection with all claims, including any actions or proceedings
brought thereon, relating to the death of or injury to any person or to the
destruction of or damage to the property of any person arising from the use or
enjoyment by such indemnitor of any easement or other right granted or created
by this Agreement, except claims resulting from the gross negligence or willful
act or omissions of the indemnified owner or the agents, servants, employees or
contractors of such owner wherever the same may occur.
Section 8. Further Assurances. Assignor and Assignee agree that, at 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 Agreement and of Assignor's
Rights and Powers herein granted.
Section 9. Agreement for Benefit of Parties Hereto. This Agreement is for
the sole and exclusive benefit of the parties hereto and their respective legal
and beneficial 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 and their
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respective successors and assigns, and other than the agent and lenders
providing financing pursuant to the Loan Instruments for the construction and
operation of the Project, any right, remedy or claim.
Section 10. Severability. Any provision of this Agreement which is
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 11. Notices. All notices, certificates, requests and other
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 be hereafter specify for such
purpose by notice to the other parties in accordance herewith. Each notice,
certificate, request or communication shall be effective (a) when presented
personally, (b) if given by telex, when such telex is transmitted to the telex
number specified below and the appropriate answerback is received, (c) if given
by mail, five (5) days after such communication is deposited in the U.S. mail,
registered, return receipt requested, with first class postage prepaid,
addressed as aforesaid or (d) 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 Assignor: Coso Power Developers
c/o Coso Technology Corporation
601 California Street
San Francisco, California 94108
Attention: Chief Financial Officer
Telecopy: (415) 433-3839
with one copy to: Baker & McKenzie
Citicorp Plaza, 36th Floor
725 South Figueroa Street
Los Angeles, California 90017
Attention: Everett B. Laybourne, Esq.
Telex: 752718
Telecopy: (213) 629-7206
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another to: Caithness Navy II Group, L.P.
c/o Mojave Power IV, Inc.
c/o Caithness Corporation
1114 Avenue of the Americas
New York, New York 10036
Attention: Chairman
Telex: 640807
Telecopy: (212) 921-9239
If to Assignee: Coso Transmission Line Partners
c/o Coso Technology Corporation
601 California Street
San Francisco, California 94108
Attention: Chief Financial Officer
Telecopy: (415) 433-3839
with one copy to: Baker & McKenzie
Citicorp Plaza, 36th Floor
725 South Figueroa Street
Los Angeles, California 90017
Attention: Everett B. Laybourne, Esq.
Telex: 752718
Telecopy: (213) 629-7206
another to: Caithness Navy II Group, L.P.
c/o Mojave Power IV, Inc.
c/o Caithness Corporation
1114 Avenue of the Americas
New York, New York 10036
Attention: Chairman
Telex: 640807
Telecopy: (212) 921-9239
Section 12. Successors and Assigns. Whenever in this Agreement any of the
parties hereto is named or referred to, successor 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 shall bind and
inure to the benefit of the respective successors and assigns of such parties,
whether so expressed or not.
Section 13. Governing Law. The parties hereby expressly acknowledge and
agree that this Agreement shall be governed by and construed in accordance with
the laws of the State of California. Nothing contained herein shall preclude
either party from bringing any legal suit, action or proceeding arising 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
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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 14. Amendments and Waivers. This Agreement may be amended 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 prior agreements among the parties hereto with respect to the matters
addressed herein.
Section 15. Headings. The section headings in this Agreement are included
herein for convenience or reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 16. Counterparts. This Agreement may be executed in any number
counterparts, each of which shall be deemed 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.
"ASSIGNOR" COSO POWER DEVELOPERS
Coso Power Developers, a California general partnership
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By: Coso Technology Corporation,
a Delaware corporation,
General Partner
By: /s/ Richard A. Nishkian
-----------------------
Richard A. Nishkian
Chief Financial Officer
By: Caithness Navy II Group, L.P.,
a New Jersey limited partnership,
General Partner
By: Mojave Power IV, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
"ASSIGNEE" COSO TRANSMISSION LINE PARTNERS
Coso Transmission Line Partners,
a California general partnership
By: Coso Power Developers,
a California general partnership,
General Partner
By: Coso Technology Corporation,
a Delaware corporation,
General Partner
By: /s/ Richard A. Nishkian
-----------------------
Richard A. Nishkian
Chief Financial Officer
By: Caithness Navy II Group, L.P.,
a New Jersey limited partnership
General Partner
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By: Mojave Power IV, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
By: Coso Energy Developers,
a California general partnership,
General Partner
By: Coso Hotsprings Intermountain
Power, Inc.,
a Delaware corporation,
General Partner
By: /s/ Richard A. Nishkian
-----------------------
Richard A. Nishkian
Chief Financial Officer
By: Caithness Coso Holdings,
a California general partnership,
General Partner
By: Caithness Navy II Group, L.P.,
a New Jersey limited
partnership,
General Partner
By: Mojave Power IV, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
By: Caithness BLM Group L.P.,
a New Jersey limited
partnership,
General Partner
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By: Mojave Power III, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
By: Caithness CEA Geothermal,
a Delaware limited partnership,
General Partner
By: Mojave Power III, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
CREDIT SUISSE
Credit Suisse,
a Swiss banking corporation
By: /s/ Markus K. Christen
----------------------
Printed Name: Markus K. Christen
------------------
Its: Deputy Vice President
---------------------------
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