Exhibit 10.50
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
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(BLM 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 ENERGY
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DEVELOPERS, a general partnership organized and existing under the laws of the
State of California ("CED" or the "Assignor"), consisting of two general
partners, Coso Hotsprings Intermountain Power, Inc., a corporation organized and
existing under the laws of the State of Delaware, and Caithness Coso Holdings, a
general partnership organized and existing under the laws of the State of
California; 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, CED and Coso Power Developers,
a general partnership organized and existing under the laws of the State of
California ("CPD"); with reference to the following facts:
RECITALS
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WHEREAS, CED (through a series of assignments) and the Bureau of Land
Management ("BLM") are parties to the BLM Lease, pursuant to which the BLM
granted to CED, among other things, the right to develop electric power from the
geothermal resources on and under the BLM Project Area;
WHEREAS, CED entered into that certain Credit Agreement --
Construction Loan and Term Loan Facility dated as of August 3, 1988, as amended
from time to time, among CED, the Agent (as defined therein) and Lenders (as
defined therein) (the "Credit Agreement") and that certain Resource Development
Loan Agreement dated as of March 31, 1988, as amended from time to time, among
CED, the Agent (as defined therein) and the Lenders (as defined therein) (the
"Resource Loan Agreement"), pursuant to which CED executed that certain Second
Amended and Restated Construction
and Long-Tem 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. 89-1259, as amended from time to time
(the "Mortgage");
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, CPD contemporaneously herewith is assigning and transferring
to CTLP all of its interests in the Transmission Line pursuant to that certain
Agreement of Transfer and Assignment (Navy II Transmission Line) of even date
herewith (the "Transmission Line Assignment") by and between CPD and CTLP, and
CPD (i) reserves in the Transmission Line Assignment nonexclusive rights to
construct, repair, maintain, utilize and operate the Transmission Line for the
benefit of the Navy II Lands and Navy II - Units 4, 5 and 6 and (ii) grants to
CTLP nonexclusive rights of ingress and egress across the Navy II Lands 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 BLM
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
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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
BLM Facilities; (ii) of ingress and egress over, across and under the lands on
which the Transmission Line is located to construct, repair, maintain, utilize
and operate the BLM Facilities; and (iii) to construct, repair, maintain,
utilize and operate the Transmission Line for the benefit of the BLM Facilities;
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
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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 the BLM
Facilities (i.e., a 46.7% undivided interest in the portion of the Transmission
----
Line running from Inyokern to the east site of the BLM Facilities and related
rights), including, without limitation, its rights and powers under the Navy
Contract and the BLM Lease 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 "Assignor's Easement," as such term is defined in
- --------- -------
Section 1(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 Transmission Line Easement" means the nonexclusive rights of
ingress and egress across the BLM Project Area for the purpose of construction,
repair, maintenance, 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 the
BLM Facilities 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;
(d) "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;
(e) "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
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effective July 1, 1985, as further assigned to Coso Geothermal 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;
(f) "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;
(g) "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;
(h) "Interconnection Agreement" means that certain Interconnection and
Integration Facilities Agreement dated December 15, 1988, between CLJV and SCE,
and assigned to CED as of December 30, 1988;
(i) "Loan Instruments" means the Credit Agreement, the Resource Loan
Agreement, the "Security Documents", the "Notes", and "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;
(j) "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 on December 30, 1988, and as the
same is hereafter modified or amended;
(k) "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
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Interconnection Facilities, and all equipment, improvements, 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;
(l) "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 and under the
BLM Lease 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 and the BLM Lease;
(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 BLM Lease, 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
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
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(s) "Turnkey Contract" means that certain Contract for the Engineering
and Construction of Coso Geothermal Project BLM - Units 1, 2 and 3 between CED
and MPE dated as of May 11, 1987.
Section 2. Assignment. Concurrently with the execution of this
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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 BLM 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, Project Area Rights or the Project
Authorizations other than those set forth herein; (d) the Project Documents are
the legal, valid and binding obligations of Assignor; (e) Assignor will take no
action which would result in the termination of the Project Authorizations,
Project Area Rights 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
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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
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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
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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 Agreement and of
Assignor's Rights and Powers herein granted.
Section 9. Agreement for Benefit of Parties Hereto. This Agreement
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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 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
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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.
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Section 11. 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 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 Energy Developers
c/o Coso Hotsprings Intermountain Power, Inc.
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. Leybourne, Esq.
Telex: 752718
Telecopy: (213) 629-7206
another to: Caithness Coso Holdings
c/o Caithness BLM Group, L.P.
c/o Mojave Power III, Inc.
c/o Caithness Corporation
1114 Avenue of the Americas
New York, New York 10036
Attention: Chairman
Telex: 640807
Telecopy: (212) 921-9239
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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, CA 90017
Attention: Everett B. Leybourne, 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
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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
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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 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.
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Section 14. 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 prior
agreements among the parties hereto with respect to the matters addressed
herein.
Section 15. Headings. The section headings in this Agreement are
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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
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number of 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 ENERGY DEVELOPERS
----------------------
Coso Energy Developers,
a California general partnership
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
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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
By: Mojave Power III, Inc.,
a Delaware corporation,
General Partner
By: /s/ Hiram A. Bingham
--------------------
Hiram A. Bingham
President
By: Caithness CEA Geothermal, L.P.,
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
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"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
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
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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
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
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CREDIT SUISSE
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Credit Suisse,
a Swiss banking corporation
By: /s/ Markus K. Christen
----------------------
Printed Name: Markus K. Christen
------------------
Its: Deputy Vice President
---------------------
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