EXECUTION COPY
SALE AND PURCHASE AGREEMENT
BY AND AMONG
ESI BH LIMITED PARTNERSHIP,
TPC XXXXX, INC.
AS SELLERS,
AND
ORNI 1 LLC,
ORNI 2 LLC,
AS PURCHASERS,
DATED AS OF
FEBRUARY 28, 2001
PERTAINING TO THE XXXXX
GEOTHERMAL POWER FACILITY
TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS.................................................1
1.1 Definitions.................................................1
1.2 Construction of Certain Terms and Phrases...................9
ARTICLE 2 SALE AND PURCHASE OF PURCHASED INTERESTS AND CLOSING........9
2.1 The Sale....................................................9
2.2 Purchase Price and Payoff of Liability......................9
2.3 Closing....................................................10
2.4 Adjustment of Payment Amounts..............................10
2.5 Allocation of Payment Amounts..............................10
2.6 Further Assurances.........................................10
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE SELLERS..............11
3.1 Representations and Warranties of ESI BH...................11
3.2 Representations and Warranties of TPC Xxxxx................15
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...........17
4.1 Corporate Existence........................................17
4.2 Authority..................................................17
4.3 No Conflicts...............................................17
4.4 Governmental Approvals and Filings.........................17
4.5 Legal Proceedings..........................................17
4.6 Brokers and Investment.....................................18
4.7 Absence of Regulation......................................18
4.8 Purchase for Investment....................................18
4.9 Financing..................................................18
4.10 Knowledgeable Purchasers...................................18
ARTICLE 5 COVENANTS OF THE SELLERS...................................19
5.1 Regulatory and Other Approvals.............................19
5.2 Access of the Purchasers...................................19
5.3 Performance Until Closing..................................20
5.4 Certain Restrictions.......................................20
5.5 Fulfillment of Conditions..................................21
5.6 Permits....................................................21
5.7 Books and Records..........................................21
5.8 Operation in the Ordinary Course of Business...............21
5.9 No Negotiations............................................22
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5.10 Notice.....................................................22
ARTICLE 6 COVENANTS OF THE PURCHASERS................................22
6.1 Regulatory and Other Approvals.............................22
6.2 Fulfillment of Conditions..................................23
6.3 Notice.....................................................23
6.4 Contract Security..........................................24
ARTICLE 7 CONDITIONS TO OBLIGATIONS OF THE PURCHASERS................24
7.1 Representations and Warranties.............................24
7.2 Performance................................................24
7.3 BPP Restructuring..........................................24
7.4 UFG Holdings Debt..........................................24
7.5 Officers' Certificates.....................................24
7.6 Orders and Laws............................................24
7.7 Regulatory Consents and Approvals..........................24
7.8 No Material Adverse Effect.................................25
7.9 Opinions of Counsel........................................25
7.10 Deliveries.................................................25
7.11 Release....................................................25
7.12 Good Standing..............................................25
7.13 Parent Guaranty............................................25
7.14 Sierra ROFR and Consent....................................25
7.15 Consent of WSGC............................................26
7.16 MMS Audit Letter...........................................26
7.17 Transition Operations......................................26
ARTICLE 8 CONDITIONS TO OBLIGATIONS OF THE SELLERS...................26
8.1 Representations and Warranties.............................26
8.2 Performance................................................26
8.3 Officers' Certificates.....................................26
8.4 Orders and Laws............................................26
8.5 Regulatory Consents and Approvals..........................26
8.6 Opinion of Counsel.........................................27
8.7 Deliveries.................................................27
8.8 Good Standing..............................................27
8.9 Parent Guaranty............................................27
8.10 Sierra ROFR and Consent....................................27
8.11 Consent of WSGC............................................27
8.12 Good Faith Deposit.........................................27
ARTICLE 9 TAX MATTERS................................................27
9.1 Representations, Warranties and Covenants..................27
9.2 Tax Matters................................................28
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ARTICLE 10 SURVIVAL...................................................29
10.1 Survival of Representations, Warranties, Covenants and
Agreements................................................29
10.2 No Other Representations...................................29
ARTICLE 11 INDEMNIFICATION............................................30
11.1 Indemnification............................................30
11.2 Method of Asserting Claims.................................31
11.3 Exclusivity................................................33
11.4 Notification by the Sellers of Certain Matters.............33
ARTICLE 12 DISPUTE RESOLUTION.........................................34
ARTICLE 13 TERMINATION................................................34
13.1 Termination................................................34
13.2 Effect of Termination or Breach............................35
ARTICLE 14 MISCELLANEOUS..............................................35
14.1 Notices....................................................35
14.2 Entire Agreement...........................................37
14.3 Expenses...................................................37
14.4 Public Announcements.......................................37
14.5 Confidentiality............................................38
14.6 Waiver.....................................................38
14.7 Amendment..................................................38
14.8 No Third Party Beneficiary.................................38
14.9 No Assignment; Binding Effect..............................39
14.10 Headings...................................................39
14.11 Invalid Provisions.........................................39
14.12 Governing Law..............................................39
14.13 Jurisdiction and Venue.....................................39
14.14 Waiver of Trial by Jury....................................40
14.15 Attorneys' Fees............................................40
14.16 Time is of the Essence.....................................40
14.17 Waiver of Consequential Damages............................40
14.18 Interest on Past Due Payments..............................40
14.19 Counterparts...............................................41
14.20 Further Assurances.........................................41
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EXHIBIT I BPP Restructuring
EXHIBIT II Excluded Records
EXHIBIT III Material Contracts
EXHIBIT IV Intentionally Omitted
EXHIBIT V Form of Transfer Instrument
EXHIBIT VI Contract Security
EXHIBIT VII-A Form of Opinion of counsel to ESI BH/FPLE
EXHIBIT VII-B Form of Opinion of Counsel to TPC Xxxxx
EXHIBIT VII-C Form of Opinion of Nevada Counsel to Sellers/BPP
EXHIBIT VIII Form of Opinion of Counsel to Purchasers/Ormat Technologies
SCHEDULE I Purchased Interests
SCHEDULE II Sellers Disclosure Schedule
SCHEDULE III Adjustment of Payment Amounts
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SALE AND PURCHASE AGREEMENT
This SALE AND PURCHASE AGREEMENT dated as of this 28th day of
February, 2001, is made and entered into by and among ESI BH Limited Partnership
("ESI BH"), a Delaware limited partnership, TPC Xxxxx, Inc., a Delaware
corporation ("TPC Xxxxx"; each of ESI BH and TPC Xxxxx individually, a "Seller"
and collectively, the "Sellers"), ORNI 1 LLC, a Delaware limited liability
company, and ORNI 2 LLC, a Delaware limited liability company (each a
"Purchaser" and collectively the "Purchasers");
WHEREAS, each Seller is the holder and beneficial owner of
general partnership interests in Xxxxx Power Partners, a Nevada general
partnership ("BPP"), as set forth opposite such Seller's name on Schedule I
hereto (the "Purchased Interests");
WHEREAS, BPP owns a geothermal power facility located in
Xxxxxxxxx County, Nevada known as the Xxxxx Power Project (the "Xxxxx
Facility"), and has certain interests and rights with respect to a geothermal
power facility located in Desert Peak, Nevada known as Xxxx 0 of the Xxxxx Power
Project (the "Desert Peak Facility", and together with the Xxxxx Facility, the
"Facility"); and
WHEREAS, the Sellers desire to sell to the Purchasers and the
Purchasers desire to purchase from the Sellers all of the Purchased Interests on
the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth in this Agreement, upon the terms
and subject to the conditions hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
terms have the meanings indicated below:
"Affiliate" means any Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by Contract or
otherwise, provided that the direct or indirect ownership of fifty percent (50%)
or more of the voting securities of another Person shall be deemed to constitute
control of such other Person.
"After-Tax Basis" means, with respect to any payment received
or deemed to have been received by any Person, the amount of such payment (the
base payment) supplemented by a further payment (the additional payment) to that
Person so that the sum of the base payment plus the additional payment shall,
after deduction of the amount of all Taxes required to be paid by such Person in
respect of the receipt or accrual of the base payment and the additional payment
(taking into account any credits or deductions arising from the underlying loss,
the base payment and the additional payment and the timing thereof), be equal to
the
amount required to be received. Such calculations shall be made on the basis
of the assumption that the recipient is subject to U.S. federal income taxation
at the highest applicable statutory rate applicable to corporations for the
relevant period or periods, and is subject to state and local income taxation at
the highest applicable statutory rates applicable to corporations in the taxing
jurisdiction of Xxxxxxxxx County, Nevada for the relevant period or periods.
"Agreement" means this Sale and Purchase Agreement and all
Schedules and Exhibits hereto, as the same shall be amended from time to time.
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible and wherever situated),
including the goodwill related thereto, operated, owned or leased by such
Person.
"Books and Records" of any Person means all files, documents,
instruments, papers, books and records (including records and files stored on
computer disks or tapes or any other storage medium) relating to the business,
operations, condition of (financial or other), results of operations and Assets
and Properties of such Person, including financial statements, Tax Returns and
related work papers and letters from accountants, budgets, ledgers, journals,
deeds, title policies, minute books, stock certificates or other evidence of
equity or membership interests and registration books, stock transfer ledgers,
Contracts, Licenses, Environmental Permits, operating data and plans and
environmental studies and plans.
"BPP" shall have the meaning assigned to it in the recitals to
this Agreement.
"BPP Restructuring" shall mean any and all of the transactions
described on Exhibit I hereto.
"Xxxxx Facility" shall have the meaning assigned to it in the
recitals to this Agreement.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of Nevada, the State of Florida, or the
city of New York, are authorized or obligated to close.
"Claim Notice" means written notification pursuant to Section
11.2(a) of a Third Party Claim as to which indemnity under Section 11.1 is
sought by an Indemnified Party, enclosing a copy of all papers served, if any,
and specifying the nature of and basis for such Third Party Claim and for the
Indemnified Party's claim against the Indemnifying Party under Section 11.1,
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such Third Party Claim.
"Closing" means the closing of the transactions contemplated
by Section 2.3.
"Closing Date" means the fifth Business Day after the day on
which the last of the consents, approvals, actions, filings, notices or other
requirements set forth in Sections 7.7, 7.14, and 7.15 and Sections 8.5, 8.10,
and 8.11 has been obtained, made or given or has expired or such other date as
the Purchasers and the Sellers may from time to time agree upon in writing.
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"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor Federal tax code. Any statutory provision of
the Code shall be deemed to be a reference to any successor provision or
provisions.
"Contract" means any written agreement, lease, license,
option, guaranty, warranty, right of way, evidence of indebtedness, mortgage,
indenture, security agreement or other written contract, commitment or
undertaking of any kind.
"Desert Peak Facility" shall have the meaning assigned to it
in the recitals to this Agreement.
"Dispute Period" means the period ending ninety (90) days
following receipt by an Indemnifying Party of either a Claim Notice or an
Indemnity Notice.
"Dollars" and "$" refers to lawful money of the United States.
"Effective Date" means the date of this Agreement.
"Environmental Law" means any Law or Order relating to the
regulation or protection of human health and safety or to the regulation,
protection and preservation of the environment or to emissions, discharges,
Releases or threatened Releases of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes into the environment
(including, without limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes.
"Environmental Permits" means all material licenses, permits,
certificates of authority, authorizations, approvals, registrations, franchises
and similar consents granted by any Governmental or Regulatory Authority which
are required for the ownership, operation and maintenance of the Facility under
applicable Environmental Law.
"ESI BH" has the meaning given to it in the recitals to this
Agreement.
"ESI BH Consents" has the meaning given to it in Section
3.1(c)(ii).
"Excluded Records" shall mean any and all of the Books and
Records belonging or relating to BPP that are listed specifically or by category
in Exhibit II hereto.
"Facility" shall have the meaning assigned to it in the
recitals to this Agreement.
"Facility Operating Lease" means the Facility Operating Lease,
dated as of February 1, 1998, between Western States Geothermal Company, as
Lessor, and Xxxxx Power Partners, as Lessee, as amended March 31, 1998.
"Financial Statements" has the meaning given to them in
Section 3.1(j).
"FPLE" means FPL Energy, LLC, a Delaware limited liability
company.
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"FPLE Guaranty" means the Guaranty, dated the date of this
Agreement, made by FPLE in favor of the Purchasers.
"GAAP" means generally accepted accounting principles in the
United States, consistently applied throughout the specified period.
"Good Faith Deposit Amount" means the One Million Dollars
($1,000,000) previously paid by, or on behalf of, the Purchasers to FPLE for the
account of the Sellers under the terms of the Letter of Intent.
"Governmental or Regulatory Authority" means any federal,
state, local, foreign or supranational government, any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision or any Native American tribal council or
similar governing entity.
"Hazardous Material" means (i) any petroleum or petroleum
products, flammable explosives, radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam insulation and transformers
or other equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls (PCBs); (ii) any chemicals or other materials or
substances which are now or hereafter become defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants" or words of similar import under any Environmental Law; and
(iii) any other chemical or other material or substance, exposure to which is
prohibited, limited or regulated by any Governmental or Regulatory Authority
under any Environmental Law.
"Indemnified Party" means any Person claiming indemnification
under any provision of Article 11.
"Indemnifying Party" means any Person against whom a claim for
indemnification is being asserted under any provision of Article 11.
"Indemnity Notice" means written notification pursuant to
Section 11.2(b) of a claim for indemnity under Article 11 by an Indemnified
Party, specifying the nature of and basis for such claim, together with the
amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such claim.
"IRS" means the United States Internal Revenue Service.
"Knowledge" or similar phrases in this Agreement means, and
shall be limited to, the actual knowledge, after making reasonable
investigation, of:
(i) as to ESI BH, Xxxxxxx X. Xxxxxxxx, Xxx Xxxxxxxxxxx,
Xxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxx or Xxxx X. Xxxxx;
(ii) as to TPC Xxxxx, Xxxxxxxx Mitsuoka;
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(iii) as to the Purchasers, Ran Raviv or Hezy Ram.
"Laws" means all constitutions, treaties, laws, statutes,
rules, regulations, ordinances and other pronouncements having the effect of law
of the United States or any state, county, city or other political subdivision
or of any Governmental or Regulatory Authority.
"Letter of Intent" means that certain Letter of Intent signed
by Ormat Nevada Inc., an Affiliate of the Purchasers, on October 29, 2000, and
countersigned by FPLE on October 30, 2000.
"Licenses" means all material licenses, permits, certificates
of authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority, other
than Environmental Permits.
"Liens" means any charge, claim, "adverse claim" (as defined
in Section 8-102(a)(1) of the New York Uniform Commercial Code), community
property interest, condition, equitable interest, easement, encumbrance, option,
lien, pledge, hypothecation, assignment, deposit arrangement, security interest
(preference, priority or other security agreement or preferential arrangement of
any kind), mortgage, deed of trust, retention of title agreement, right of first
refusal, right of first offer, preemptive right, or other restriction or
granting of any rights of any kind (including any restriction on, or right
granted with respect to, the use, voting, transfer, receipt of income or
exercise of any other attribute of ownership).
"Loss" means any and all damages (including incidental and
consequential damages), assessments, fines, penalties, deficiencies, losses,
judgments, amounts paid in settlement or diminution in value, costs and expenses
(including, without limitation, interest, court costs, reasonable fees and
expenses of attorneys, accountants and other experts or other reasonable
expenses incurred in investigating, preparing, defending against or prosecuting
any litigation or claim, action, suit, proceeding or demand).
"Material Adverse Effect" means (a) when used in connection
with BPP, any change or effect (or any development that, insofar as can
reasonably be foreseen, is likely to result in any change or effect) that,
individually or in the aggregate with any such other changes or effects, is
materially adverse to the business, Assets and Properties, financial condition,
or results of operations of BPP; (b) when used in connection with any Seller,
any change or effect (or any development that, insofar as can reasonably be
foreseen, is likely to result in any change or effect) that, individually or in
the aggregate with any other such changes or effects, (i) is materially adverse
to the business, Assets and Properties, financial condition, or results of
operations of BPP, (ii) is materially adverse to the ability of the Sellers to
perform their obligations under this Agreement or (iii) is reasonably likely to
materially delay or prevent consummation of the transactions contemplated
hereby; and (c) when used in connection with the Purchasers, any change or
effect (or any development that insofar as can reasonably be foreseen, is likely
to result in any change or effect) that, individually or in the aggregate with
any such other changes or effects, (i) is materially adverse to the ability of
the Purchasers to perform their obligations under this Agreement or (ii) is
reasonably likely to materially delay or prevent consummation of the
transactions contemplated hereby. In no event shall the failure of one or
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more of BPP's employees to accept employment with the Purchasers, or their
affiliate, be considered a Material Adverse Effect.
"Material Contracts" means the PPA, the Facility Operating
Lease and each of the geothermal or other leases set forth on Exhibit III
hereto.
"MMS Audit Letter" means the letter from ESI BH, addressed to
the Purchasers, regarding BPP's liabilities to the Minerals Management Service,
a bureau in the United States Department of the Interior, for periods prior to
the Closing.
"Order" means any award, writ, judgment, decision, decree,
stipulation, injunction, ruling or similar order of any Governmental or
Regulatory Authority (in each such case whether preliminary or final).
"Ormat Nevada" means Ormat Nevada Inc., a Delaware
corporation.
"Ormat Technologies" means Ormat Technologies Inc., a Delaware
corporation.
"Ormat Technologies Guaranty" means the Guaranty, dated the
date of this Agreement, made by Ormat Technologies in favor of the Sellers.
"Overlap Period" means any time period beginning before and
ending after the Closing Date.
"Overlap Period Taxes" means any and all Taxes attributable to
the Overlap Period.
"Partnership Agreement" shall mean the General Partnership
Agreement, dated as of February 20, 1995, between ESI BH and TPC Xxxxx, as
amended by Amendment No. 1, dated as of March 20, 1995.
"PPA" shall mean the Long Term Agreement for the Purchase and
Sale of Electricity between Sierra Pacific Power Company and Nevada Geothermal
Power Partners, dated September 28, 1990, as amended, as subsequently assigned
to BPP.
"Permitted Lien" means (i) any Lien for Taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP; (ii) any
statutory Lien arising in the ordinary course of business by operation of Law
with respect to a liability that is not yet due or delinquent or which is being
contested in good faith by any Seller or BPP; (iii) zoning, entitlement,
conservation restriction and other land use and environmental regulations by any
Governmental or Regulatory Authority; (iv) any minor imperfection of title or
similar Lien which individually or in the aggregate with other matters could not
reasonably be expected to create a Material Adverse Effect; and (v) any Lien
securing the UFG Holdings Debt that will be discharged upon payment of the UFG
Holdings Debt at Closing.
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"Person" means any natural person, corporation, general
partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"Pre-Closing Taxes" means any and all Taxes relating to any
taxable period ending on or prior to the Closing Date.
"Prime Rate" means the rate published in The Wall Street
Journal as the "Prime Rate" from time to time (or, if more than one rate is
published, the arithmetic mean of such rates), in either case determined as of
the date the obligation to pay interest arises (or the most recent publication
date prior thereto), but in no event shall any interest under this Agreement
exceed the maximum amount permitted by applicable Law.
"Purchase Price" has the meaning given to it in Section
2.2(a).
"Purchased Interests" has the meaning given to it in the
recitals to this Agreement.
"Purchaser(s)" has the meaning given to it in the recitals to
this Agreement.
"Purchasers Indemnified Parties" has the meaning given to it
in Section 11.1(a).
"Release" means any release, spill, emission, leak, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including the movement of Hazardous Materials through
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata.
"Representatives" means, for any Person, any director,
officer, manager, employee, counsel, accountant, financial advisor or consultant
of such Person.
"Resolution Period" means the period ending thirty (30) days
following receipt by an Indemnified Party of a written notice from an
Indemnifying Party stating that it disputes all or any portion of a claim set
forth in a Claim Notice or an Indemnity Notice.
"Seller(s)" has the meaning given to it in the recitals to
this Agreement.
"Sellers Disclosure Schedule" means the disclosure schedule
set forth as Schedule II hereto delivered by the Sellers to the Purchasers
concurrently with the execution and delivery of this Agreement .
"Sellers Indemnified Parties" has the meaning given to it in
Section 11.1(d).
"Sierra" means Sierra Pacific Power Company, a Nevada
Corporation, the offtaker under the PPA.
"Sierra Litigation" means the Sierra Pacific Power Corporation
x. Xxxxx Power Partners, Supreme Court of Nevada, Case No. 36480, on appeal from
Xxxxx Power Partners v. Sierra Pacific Power Corporation, Third Judicial
District for State of Nevada, Xxxxxxxxx County, Case No. 24846, Dept. No. 2.
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"Sierra ROFR" means the right of first refusal in favor of
Sierra pursuant to the PPA, as amended by the Sierra Settlement to expire March
8, 2001.
"Sierra Settlement" means that certain Final Settlement
Agreement dated February 16, 2001, between BPP and Sierra terminating the Sierra
Litigation.
"Subsidiary" of any person means any corporation, limited
liability company, partnership, joint venture, trust, company or other entity
(i) the majority of the voting stock, partnership interests or other similar
ownership interests of which is owned, directly or indirectly, by such Person
and (ii) which is controlled by such Person. For purposes of this definition, a
corporation, limited liability company, partnership, joint venture, trust or
other entity is "controlled by" another Person if such other Person possesses,
directly or indirectly, the power to vote 50% or more of the securities
(including partnership interests or other ownership interests) having ordinary
voting power for the election of directors (or Persons performing similar
functions) of such corporation, limited liability company, partnership, joint
venture, trust or other entity or to direct or cause the direction of the
day-to-day management and policies of such corporation, limited liability
company, partnership, joint venture, trust or other entity, whether through
voting rights, by contract or otherwise.
"Tangible Personal Property" means all machinery, equipment,
spare parts, vehicles, furniture and other personal property owned or leased by
BPP, or supplied under any Contract for use by or incorporation into, the
Facility.
"Tax Returns" means any return, report, information return or
other document (including any related or supporting information) required to be
supplied to any taxing authority with respect to Taxes.
"Taxes" means all taxes, charges, duties, fees, levies or
other assessments imposed by any United States federal, state or local or
foreign taxing authority, including but not limited to, excise, property, sales,
use, value added, transfer, franchise, payroll, withholding, social security,
unemployment, business license, occupation, stamp, environmental, workers
compensation, Pension Benefit Guaranty Corporation premiums or other taxes,
including any interest, penalties or additions attributable thereto, excluding
Federal and state income and profits taxes.
"Termination Date" has the meaning given to it in Section
13.1.
"Third Party Claim" has the meaning given to it in Section
11.2(a).
"TPC Xxxxx" has the meaning given to it in the recitals to
this Agreement.
"TPC Xxxxx Consents" has the meaning given to it in Section
3.2(c)(ii).
"Transfer Taxes" has the meaning given to it in Section
9.2(a).
"Transition O&M Agreement" means the agreement between the
Purchasers and ESI Xxxxx Power Services, Inc. regarding transition operation of
the Facility after the Closing.
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"UFG Holdings" means UFG Holdings, Inc., a Delaware corporation.
"UFG Holdings Debt" means that certain note issued in favor of
and owing to UFG Holdings, as assumed by BPP.
"Western States" means Western States Geothermal Company, a
Delaware corporation.
"WSGC Rights" means the rights to consent to certain transfers
of the Purchased Interests and the related right of first refusal, if any, in
favor of Western States Geothermal Company arising pursuant to the Facility
Operating Lease.
1.2 Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement; and (v) "include" or "including" means including without
limiting the generality of any description preceding such term. Whenever this
Agreement refers to a number of days, such number shall refer to calendar days
unless Business Days are specified. All accounting terms used herein and not
expressly defined herein shall have the meanings given to them under GAAP. Any
representation or warranty contained herein as to the enforceability of a
Contract shall be subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium or other similar law affecting the enforcement of
creditors' rights generally and to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at Law).
ARTICLE 2
SALE AND PURCHASE OF PURCHASED INTERESTS AND CLOSING
2.1 The Sale. On the basis of the representations, warranties
and undertakings set forth in this Agreement, and on the terms and subject to
the conditions set forth in this Agreement, at the Closing each Seller
severally, and not jointly and severally, shall sell, transfer, convey, assign
and deliver to the Purchasers, or one or more nominees of the Purchasers
designated at the Closing, free and clear of all Liens (other than Liens
securing the UFG Holdings Debt), and the Purchasers will purchase and pay for,
the Purchased Interests set forth opposite such Seller's name on Schedule I
hereto.
2.2 Purchase Price and Payoff of Liability.
(a) As consideration for the Purchased Interests, on the terms
and subject to the conditions set forth in this Agreement, at the Closing the
Purchasers shall pay the following amounts (collectively, the "Purchase Price"):
(i) An amount of One Dollar ($1.00) to ESI BH in
consideration for the Purchased Interests being sold by it; and
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(ii) An amount of One Dollar ($1.00) to TPC Xxxxx Inc. in
consideration for the Purchased Interests being sold by it.
(b) As further inducement for the Sellers to enter into the
transactions contemplated under this Agreement, on the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Purchasers shall pay
or cause to be paid, an amount equal to the sum of Twenty Million and Five
Hundred Thousand Dollars ($20,500,000) less the Good Faith Deposit Amount to UFG
Holdings in satisfaction of the UFG Holdings Debt. The Good Faith Deposit shall
concurrently be transferred by FPLE to UFG Holdings for application to the
satisfaction of the UFG Holdings Debt.
2.3 Closing. The Closing will take place at the offices of
Xxxxxxxxxx & Xxxxx LLP, 0000 Xxx Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx X.X, 00000, at
10:00 a.m. on the Closing Date or at such other place and such other time as the
Purchasers and the Sellers mutually agree. At the Closing, the Purchasers will
pay the amounts set forth in Section 2.2 by wire transfer of immediately
available United States funds to such account or accounts as ESI BH, on behalf
of the Sellers, may direct by written notice delivered to the Purchasers by ESI
BH at least two (2) Business Days before the Closing. Simultaneously, the
Sellers will assign and transfer to the Purchasers good title in and to the
Purchased Interests (free and clear of all Liens, other than Liens securing the
UFG Holdings Debt) by execution and delivery of a Transfer Instrument, in the
form attached hereto as Exhibit V. At the Closing, there shall also be delivered
to the Sellers and the Purchasers the opinions, certificates and other
contracts, documents and instruments required to be delivered under Articles 7
and 8.
2.4 Adjustment of Payment Amounts. The amounts paid by the
Purchasers under Section 2.2 will be adjusted in accordance with the procedure
and adjustment provisions set forth in Schedule III hereto. Any payment by the
Sellers pursuant to the provisions of Schedule III shall reduce the amount of
the payment of the UFG Holdings Debt described in Section 2.2(b). Any payment by
the Purchasers pursuant to the provisions of Schedule III shall increase the
amount of the payment of the UFG Holdings Debt described in Section 2.2(b).
2.5 Allocation of Payment Amounts. The Purchasers and the
Sellers agree to report the allocation of the Purchase Price among the Purchased
Interests in accordance with Section 2.2(a). In addition, the Purchasers and the
Sellers agree to allocate the amounts paid by the Purchasers under Section
2.2(b) among the Assets and Properties of BPP, consistent with the principles of
Section 1060 of the Code (and related regulations) and Temporary Treasury
Regulations ss. 1.755-2T, as follows: (i) 77.5% to the power plant and
equipment, (ii) 2.5% to other buildings and fixtures, (iii) 5% to personal
property, (iv) 2.5% to the geothermal resource, (v) 7.5% to the PPA, (vi) 2.5%
to Environmental Permits and Licenses, and (vii) 2.5% to the lessee interest in
the Desert Peak Facility.
2.6 Further Assurances. At any time and from time to time
after the Closing Date, at the request of the Purchasers, and without further
consideration, each of the Sellers will execute and deliver such other
instruments of sale, transfer, conveyance, assignment and confirmation as may be
reasonably requested in order to more effectively transfer, convey and assign to
the Purchasers and to confirm the Purchasers' title to the Purchased Interests.
10
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
3.1 Representations and Warranties of ESI BH. As an inducement
to the Purchasers to enter into this Agreement and to consummate the
transactions contemplated hereby, ESI BH, severally, and not jointly and
severally with any other Seller, represents and warrants with respect only to
itself and BPP, as applicable, that as of the date of this Agreement and, except
as otherwise expressly provided, as of the Closing Date:
(a) Organization, Standing and Power. ESI BH is a limited
partnership, duly organized, validly existing and in good standing under the
laws of the State of Delaware.
(b) Authority. ESI BH has all requisite power and authority to
enter into, execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby, including
without limitation to sell and transfer the Purchased Interests owned by it. The
execution and delivery by ESI BH of this Agreement, and the performance by ESI
BH of its obligations hereunder, have been duly and validly authorized by all
necessary action on its behalf. This Agreement has been duly and validly
executed and delivered by ESI BH and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar Laws relating to or affecting the rights of
creditors generally, or by general equitable principles.
(c) No Conflicts. The execution and delivery by ESI BH of this
Agreement does not and the performance by ESI BH of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of
any of the terms, conditions or provisions of its limited partnership agreement
or any resolution adopted by the board of directors of its sole general partner;
or
(ii) assuming that the consents, approvals and waivers
described in Section 3.1(c) of the Sellers Disclosure Schedule (the "ESI BH
Consents") have been obtained and that the conditions set forth in sections
7.14, 7.15, 8.10 and 8.11 have been satisfied, be in violation of or result in a
default (or give rise to any right of purchase, termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which ESI BH is a party or by which it or any of the Purchased Interests
owned by it may be bound, or result in the creation of a Lien on such Purchased
Interests; or
(iii) assuming that the ESI BH Consents have been
obtained, conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to it or any of its Assets and
Properties;
(d) Governmental Approvals; Filings. Except as set forth in
Section 3.1(d) of the Sellers Disclosure Schedule, no consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority on
the part of ESI BH or BPP is required in connection
11
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(e) Purchased Interests. ESI BH is the holder under the
provisions of the Partnership Agreement and the beneficial owner of the
Purchased Interests set forth opposite its name on Schedule I, free and clear of
all Liens except as set forth in Section 3.1(e) of the Sellers Disclosure
Schedule.
(f) Legal Proceedings.
(i) Except as set forth in Section 3.1(f) of the Sellers
Disclosure Schedule, to the Knowledge of ESI BH, there are no actions or
proceedings pending against ESI BH or threatened against it or BPP which could
reasonably be expected (A) to result in the issuance of an Order restraining,
enjoining or otherwise prohibiting or making illegal, materially delaying or
preventing the consummation of, or awarding damages as a result of, any of the
transactions contemplated by this Agreement, or (B) individually or in the
aggregate, to create a BPP Material Adverse Effect; and
(ii) Except as set forth in Section 3.1(f) of the Sellers
Disclosure Schedule, to the Knowledge of ESI BH, there are no Orders issued
since December 31, 1997 outstanding against ESI BH or BPP which, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(g) Brokers. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by ESI BH directly
with the Purchasers without the intervention of any Person on behalf of ESI BH
in such manner as to give rise to any valid claim by any Person against the
Purchasers for a finder's fee, brokerage commission or similar payment.
(h) Solvency. ESI BH (i) is not entering into this Agreement
with actual intent to hinder, delay or defraud creditors, (ii) is not insolvent,
(iii) will not become insolvent as a result of the transfers contemplated by
this Agreement, (iv) is capable of paying its debts as they mature, (v) will
remain capable of paying its debts as they mature after effecting such transfers
and (vi) is receiving a reasonably equivalent value in exchange for the
Purchased Interests and the transactions contemplated by this Agreement. The
transfer of the Purchased Interests is not wrongful or fraudulent with respect
to ESI BH's creditors, and no creditor shall be entitled to bring any claim
under any Law against ESI BH or the Purchasers with respect to such transfer.
(i) Compliance with Laws and Orders. Except as set forth in
Section 3.1(i) of the Sellers Disclosure Schedule, since December 31, 1997, to
the Knowledge of ESI BH, neither ESI BH nor BPP have received any written notice
or other written communication from any Governmental or Regulatory Authority or
any other Person regarding (i) any actual, alleged, possible or potential
violation of, or failure to comply with, any Law or Order, or any intention to
conduct an investigation or review regarding any of the foregoing or (ii) any
actual, alleged, possible or potential obligation on the part of BPP to
undertake, or to bear all or any portion of
12
the cost of, any remedial action of any nature, which could reasonably be
expected to create or result in a BPP Material Adverse Effect.
(j) Financial Statements. ESI BH has previously furnished to
the Purchasers a copy of the audited financial statements (including balance
sheet, statement of income and statement of cash flows) as of December 31, 1997
for BPP and a copy of the unaudited financial statements (including balance
sheet and statement of income) for the year ended December 31, 2000 for BPP (the
"unaudited financial statements" and collectively with the audited financial
statements, the "Financial Statements"). The unaudited financial statements of
BPP were prepared from and in accordance with the Books and Records thereof, and
to the Knowledge of ESI BH, were prepared in conformity with GAAP.
(k) Absence of Certain Changes. Since December 31, 2000,
except as disclosed in Section 3.1(k) of the Sellers Disclosure Schedule, BPP
has not:
(i) incurred, permitted or allowed any of its Assets and
Properties to be subjected to any Lien, other than Liens existing on the date
hereof or Permitted Liens;
(ii) incurred or created any indebtedness or obligation,
or assumed or guaranteed (whether by way of guarantee, endorsement, indemnity,
warranty or otherwise) any indebtedness or obligation of any other Person;
(iii) sold, transferred, leased, or otherwise disposed of
any Assets and Properties, except in the ordinary course of business consistent
with past practice;
(iv) incurred any material liabilities or obligations
which would be required by GAAP to be shown on its balance sheet or the
footnotes thereto;
(v) suffered any damage, destruction or casualty loss
(whether or not covered by insurance) in excess of $50,000;
(vi) entered into any transaction outside the ordinary
course of its business;
(vii) renegotiated, amended, waived in writing or
terminated (partially or completely) any Material Contract to which it is a
party, or any Environmental Permit or License related to the ownership and
operations of the Facility;
(viii) made any payment, loan or advance to, or entered
into any agreement, arrangement or transaction with, any of its partners or
their Affiliates, or any business or entity in which any of its partners or
their affiliates, or any directors, officers or employees of any of the
foregoing have either a direct or indirect interest that will continue in effect
beyond the Closing other than in the ordinary course of business;
(ix) changed its organizational documents;
13
(x) reached any understanding or entered into any Contract
or commitment (contingent or otherwise) to do or engage in, or which could
result in any of the foregoing.
(l) Regulatory Status. On November 6, 1992, the Xxxxx Facility
was certified as a "qualifying small power production facility" pursuant to the
Public Utility Regulatory Policies Act of 1978 and the related implementing
regulations (a "QF"). On April 2, 1998, BPP filed a Notice of
Self-Recertification as a QF to reflect a consolidation of the Xxxxx Facility
and the Desert Peak Facility. To the Knowledge of ESI BH, neither it nor BPP
have received any written notice from any Governmental or Regulatory Authority
of any claim, action, proceeding or investigation denying, challenging or
otherwise questioning the status of the Facility as a QF.
(m) Real Property. Section 3.1(m) of the Sellers Disclosure
Schedule sets forth all of the geothermal leases pursuant to which real property
is leased by BPP and used or held for use in connection with its business.
Except as set forth in Section 3.1(m) of the Sellers Disclosure Schedule, to the
Knowledge of ESI BH, since December 31, 1997, BPP has not been in material
default under any of the leases listed thereon.
(n) Tangible Personal Property. Section 3.1(n) of the Sellers
Disclosure Schedule sets forth a list of all tangible personal property with a
value exceeding $5,000 that is included in, or used in the operation of, the
Facility.
(o) Material and other Contracts.
(i) The Facility Operating Lease is, as of the Effective
Date and, subject to the satisfaction of the conditions set forth in Sections
7.15 and 8.11 hereof, will be as of the Closing Date, in full force and effect
and constitutes and will constitute as of such dates, respectively, a legal,
valid and binding agreement, enforceable in accordance with its terms, of BPP
and to the Knowledge of ESI BH, Western States, except as the same may be
limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar Laws relating to or affecting the rights of creditors generally,
or by general equitable principles or as set forth on Schedule 3.1(o) of the
Sellers Disclosure Schedule. Except as set forth on Schedule 3.1(o) of the
Sellers Disclosure Schedule, all payments due from BPP under the Material
Contracts through the day prior to the Closing Date have been or shall, on or
before the Closing Date, be made. Except as set forth on Schedule 3.1(o) of the
Sellers Disclosure Schedule, to the Knowledge of ESI BH, neither it nor BPP have
received written notice from any other party to a Material Contract to the
effect that BPP is in violation or breach of or default under any Material
Contract (or with notice or lapse of time or both, would be in violation or
breach of or default under any Material Contract).
(ii) Section 3.1(o) of the Sellers Disclosure Schedule
contains a list of all Contracts (excluding, for the avoidance of doubt,
Environmental Permits and other Licenses) with a value or consideration in
excess of $50,000 to which BPP, to ESI BH's Knowledge, is a party, or has been a
party since December 31, 1997, and by which BPP or any of its assets may be
bound or affected as of the Effective Date. To the Knowledge of ESI BH, no
Contract (excluding, for the avoidance of doubt, Environmental Permits and other
Licenses) required to be set forth thereon has been amended or assigned except
as set forth in Section 3.1(o) of the Sellers
14
Disclosure Schedule. To the Knowledge of ESI BH, BPP is not a party to any
series of related Contracts (excluding, for the avoidance of doubt,
Environmental Permits and other Licenses) in effect as of the Effective Date
that in the aggregate have a value or consideration in excess of $150,000 which
are not listed on Section 3.1(o) of the Sellers Disclosure Schedule.
(p) Insurance.
(i) Except as set forth in Section 3.1(p) of the Sellers
Disclosure Schedule, to the Knowledge of ESI BH, there are no outstanding claims
under or in respect of any insurance policy to which BPP is a party or which
provides coverage to or for the benefit of or with respect to BPP or the
Facility.
(q) Disclosure. The copies of written materials concerning BPP
and the Facility that the Sellers have delivered to or made available to the
Purchasers or their Representatives constitute accurate copies of the originals
thereof, and to the Knowledge of ESI BH, the files and records that the Sellers
have made available to the Purchasers or their Representatives constitute all
documents that contain material factual information in the possession of the
Sellers or their Affiliates concerning the Facility.
3.2 Representations and Warranties of TPC Xxxxx. As an
inducement to the Purchasers to enter into this Agreement and to consummate the
transactions contemplated hereby, TPC Xxxxx, severally, and not jointly and
severally with ESI BH, represents and warrants with respect only to itself and
BPP, as applicable, that as of the date of this Agreement and, except as
otherwise expressly provided, as of the Closing Date:
(a) Organization, Standing and Power. TPC Xxxxx is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Delaware.
(b) Authority. TPC Xxxxx has all requisite corporate power and
authority to enter into, execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby,
including without limitation to sell and transfer the Purchased Interests owned
by it. The execution and delivery by TPC Xxxxx of this Agreement, and the
performance by TPC Xxxxx of its obligations hereunder, have been duly and
validly authorized by all necessary action on its behalf. This Agreement has
been duly and validly executed and delivered by TPC Xxxxx and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar Laws relating to or
affecting the rights of creditors generally, or by general equitable principles.
(c) No Conflicts. The execution and delivery by TPC Xxxxx of
this Agreement does not and the performance by TPC Xxxxx of its obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not:
(i) conflict with or result in a violation or breach of
any of the terms, conditions or provisions of its certificate of incorporation
and by-laws, or any resolution adopted by its board of directors;
15
(ii) assuming that the consents, approvals and waivers
described in Section 3.2(c) of the Sellers Disclosure Schedule (the "TPC Xxxxx
Consents") have been obtained and that the conditions set forth in Sections
7.14, 7.15, 8.10 and 8.11 have been satisfied, be in violation of or result in a
default (or give rise to any right of purchase, termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which TPC Xxxxx is a party or by which it or any of the Purchased Interests
owned by it may be bound, or result in the creation of a Lien on such Purchased
Interests; or
(iii) assuming that the TPC Xxxxx Consents have been
obtained, conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to it or any of its Assets and
Properties.
(d) Governmental Approvals; Filings. Except as set forth in
Section 3.2(d) of the Sellers Disclosure Schedule, no consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority on
the part of TPC Xxxxx is required in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(e) Purchased Interests. TPC Xxxxx is the holder under the
provisions of the Partnership Agreement and the beneficial owner of the
Purchased Interests set forth opposite its name on Schedule I, free and clear of
all Liens except as set forth in Section 3.2(e) of the Sellers Disclosure
Schedule.
(f) Legal Proceedings.
(i) Except as set forth in Section 3.2(f) of the Sellers
Disclosure Schedule, there are no actions or proceedings pending against TPC
Xxxxx or, to the Knowledge of TPC Xxxxx, threatened against it which could
reasonably be expected to result in the issuance of an Order restraining,
enjoining or otherwise prohibiting or making illegal, materially delaying or
preventing the consummation of, or awarding damages as a result of, any of the
transactions contemplated by this Agreement; and
(ii) There are no Orders outstanding against TPC Xxxxx
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(g) Brokers. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by TPC Xxxxx directly
with the Purchasers without the intervention of any Person on behalf of TPC
Xxxxx in such manner as to give rise to any valid claim by any Person against
the Purchasers for a finder's fee, brokerage commission or similar payment.
(h) Solvency. TPC Xxxxx (i) is not entering into this
Agreement with actual intent to hinder, delay or defraud creditors, (ii) is not
insolvent, (iii) will not become insolvent as a result of the transfers
contemplated by this Agreement, (iv) is capable of paying its debts as they
mature, (v) will remain capable of paying its debts as they mature after
effecting such transfers, and (vi) is receiving a reasonably equivalent value in
exchange for the Purchased Interests and the transactions contemplated by this
Agreement. The transfer of the Purchased
16
Interests is not wrongful or fraudulent with respect to TPC Xxxxx'x creditors,
and no creditor shall be entitled to bring any claim under any Law against TPC
Xxxxx or the Purchasers with respect to such transfer.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser severally, and not jointly and severally,
represents and warrants with respect only to itself, to the Sellers that as of
the date of this Agreement and, except as otherwise expressly provided, as of
the Closing Date:
4.1 Corporate Existence. Each Purchaser is a limited liability
company, duly organized, validly existing and in good standing under the Laws of
the State of Delaware.
4.2 Authority. The execution and delivery by each Purchaser of
this Agreement and the performance by each Purchaser of its obligations
hereunder have been duly and validly authorized by all necessary action on its
behalf. This Agreement has been duly and validly executed and delivered by each
Purchaser and constitutes the legal, valid and binding obligation of each
Purchaser enforceable against it in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar Laws relating to or affecting the rights of
creditors generally, or by general equitable principles.
4.3 No Conflicts. The execution and delivery by each Purchaser
of this Agreement, the performance by each Purchaser of its obligations
hereunder and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the organizational documents of each
Purchaser or any resolution adopted by its board of directors;
(b) be in violation of or result in a default (or give rise to
any right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which each Purchaser is a party
or by which any of its respective Assets and Properties may be bound; or
(c) conflict with or result in a violation or breach of any
term or provision of any Law or Order applicable to each Purchaser or any of its
Assets and Properties.
4.4 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of each Purchaser is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
4.5 Legal Proceedings. There are no actions or proceedings
pending or, to the Knowledge of each Purchaser, threatened against it or any of
its Assets and Properties which could reasonably be expected to result in the
issuance of an Order restraining, enjoining or
17
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
4.6 Brokers and Investment. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried out by each
Purchaser, or an Affiliate thereof, directly with the Sellers without the
intervention of any other Person on behalf of each Purchaser in such manner as
to give rise to any valid claim by any Person (including, for the avoidance of
doubt, any Affiliate of each Purchaser) against the Sellers for a finder's fee,
brokerage commission or similar payment.
4.7 Absence of Regulation. None of the Purchasers is subject
to regulation as an "electric utility company", "public utility company" or
"holding company" under the Public Utility Holding Company Act of 1935, as
amended. None of the Purchasers is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or an "investment advisor" within the meaning
of the Investment Company Act of 1940, as amended.
4.8 Purchase for Investment. The Purchasers are acquiring the
Purchased Interests for investment for their own account, and not with a view to
resell or distribute any part thereof; neither Purchaser has a present intention
to sell, grant a participation in or otherwise distribute the Purchased
Interests; provided, however, that the right to dispose of the Purchased
Interests shall be entirely within the sole discretion of the Purchasers.
The Purchasers understand and acknowledge that the Purchased
Interests have not been registered under the Securities Act of 1933, as amended,
or under any applicable blue sky or state securities law, and agree that any
sale by the Purchasers of such interests may only be made in compliance
therewith.
4.9 Financing. The Purchasers have sufficient cash and/or
access to sufficient cash through their Affiliates to make the payments required
under Section 2.2 of this Agreement.
4.10 Knowledgeable Purchasers. The Purchasers (i) are
represented by competent legal, tax and financial counsel in connection with the
negotiation, execution and delivery of this Agreement, (ii) together with their
Affiliates, have sufficient knowledge and experience in owning, managing and
operating power generating facilities to enable them to evaluate BPP, the
Facility and the business of BPP, and the technical, commercial, financial,
legal, regulatory and other risks associated with owning the Purchased
Interests, and (iii) acknowledge that pursuant to this Agreement they will have,
prior to the Effective Date, performed all due diligence that they have deemed
necessary to perform in order to close the transactions contemplated hereby, and
that in making the decision to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby, they have relied on their own
independent investigation, analysis and evaluation of BPP and its assets and
properties, business, financial condition and prospects and upon the express
representations, warranties and covenants in this Agreement and in any
certificate delivered at the Closing.
18
ARTICLE 5
COVENANTS OF THE SELLERS
The Sellers covenant and agree with the Purchasers that, from
the date hereof to the earlier of the termination of this Agreement or the
Closing Date (or, with respect to the covenants and agreements contained in
Section 5.3, until fully performed), the Sellers will comply with all covenants
and provisions of this Article 5, except to the extent the Purchasers may
otherwise consent in writing.
5.1 Regulatory and Other Approvals.
(a) The Sellers shall:
(i) take all commercially reasonable steps necessary or
desirable, and proceed diligently and in good faith and use all commercially
reasonable efforts, as promptly as practicable to obtain, in the case of ESI BH,
the ESI BH Consents and, in the case of TPC Xxxxx, the TPC Xxxxx Consents, and
all consents, approvals or actions of, to make all filings with, and to give all
notices to, Governmental or Regulatory Authorities or any other Person required
of the Sellers to consummate the transactions contemplated hereby;
(ii) provide such other information and communications to
such Governmental or Regulatory Authorities or other Persons as such
Governmental or Regulatory Authorities or other Persons may reasonably request
in connection therewith; and
(iii) provide reasonable cooperation to the Purchasers in
obtaining other consents, approvals or actions of, making all filings with and
giving all notices to Governmental or Regulatory Authorities or other Persons
required of the Purchasers to consummate the transactions contemplated hereby.
Prior to making any filings with or providing any information to a Governmental
or Regulatory Authority pursuant to this Section 5.1, the Sellers agree to
consult with the Purchasers regarding such filings and information, to obtain
the Purchasers' written consent before submitting any filings containing any
undertakings, obligations or conditions that survive the Closing Date, and to
provide copies of such filings and information to the Purchasers.
(b) The Sellers will provide prompt notification to the
Purchasers when any such consent, approval, action, filing or notice referred to
in clause (a)(i) above is obtained, taken, made or given, as applicable, and
will advise the Purchasers of any communications (and, unless precluded by Law,
provide copies of any such communications that are in writing) with any
Governmental or Regulatory Authority or other Person regarding any of the
transactions contemplated by this Agreement.
5.2 Access of the Purchasers. The Sellers will provide or
cause to be provided to the Purchasers and their Representatives reasonable
access, upon reasonable prior notice and during normal business hours, to the
officers and agents of the Sellers and BPP who have any responsibility for BPP
or the Facility, and to the Sellers' and BPP's accountants, and shall provide
the Purchasers and their Representatives with access to the Facility and the
Books and Records of BPP necessary to allow the Purchasers to perform their
obligations and exercise their rights under this Agreement; provided that no
investigation pursuant to this Section by the Purchasers
19
will affect, or limit liability for, any representation or warranty of the
Sellers contained in this Agreement.
5.3 Performance Until Closing. Until the Closing Date, the
Sellers shall be responsible for all amounts payable under the Contracts and for
the timely and full performance of all obligations of BPP thereunder, and the
enforcement of all provisions thereof.
5.4 Certain Restrictions. Except as the Purchasers may
specifically authorize in writing, the Sellers will cause BPP not to:
(a) (i) declare, set aside for payment or make any
distributions (other than in cash) with respect to any of its partnership
interests; (ii) redeem, purchase or otherwise acquire any of its partnership
interests or any rights, warrants or options for, or securities convertible
into, partnership interests; or (iii) split, combine or reclassify any of its
partnership interests or issue or authorize the issuance of, or grant any
registration rights with respect to, any partnership interests in lieu of or in
substitution for any of its partnership interests;
(b) issue, deliver, sell, pledge, dispose of or otherwise
subject to any Lien any of its partnership interests, any other voting
securities or equity equivalent or any securities convertible into, or any
rights, warrants or options to acquire, any such partnership interests, voting
securities or convertible securities or equity equivalent;
(c) incur, permit or allow any Lien on any of its Assets and
Properties, other than Liens existing on the date hereof, Permitted Liens or
Liens in connection with the BPP Restructuring;
(d) incur or create any indebtedness or obligation, or assume
or guarantee (whether by way of guarantee, endorsement, indemnity, warranty or
otherwise) any indebtedness or obligation of any other Person other than in
connection with the BPP Restructuring;
(e) sell, convey, transfer, lease or otherwise dispose of any
Assets and Properties, except in the ordinary course of business consistent with
past practice;
(f) incur any material liabilities or obligations which would
be required by GAAP to be shown on its balance sheet or the footnotes thereto,
other than in connection with the BPP Restructuring or the Sierra Settlement, if
applicable;
(g) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of or equity in, or
acquiring by any other manner, any business or any corporation, partnership,
association or other Person, other than in connection with the BPP
Restructuring;
(h) alter through merger, liquidation, reorganization,
restructuring or in any other fashion its legal nature or ownership;
(i) change its partnership agreement or any other
organizational documents;
20
(j) change its accounting methods or practices (including any
change in depreciation or amortization policies, or rates thereof);
(k) revalue any of its assets, make any Tax election, change
any annual Tax accounting period, amend any Tax Return, enter into any closing
agreement, settle any Tax claim or assessment, surrender any right to claim a
Tax refund or fail to make the payments or consent to an extension or waiver of
the limitations period applicable to any Tax claim or assessment;
(l) pay, discharge or satisfy any obligation or liability
other than the payment, discharge or satisfaction in the ordinary course of
business consistent with past practice of obligations or liabilities reflected
or reserved against in, or contemplated by, the Financial Statements (or notes
thereto) or incurred in the ordinary course of business consistent with past
practice, and other than in connection with the BPP Restructuring and the Sierra
Settlement, if applicable;
(m) enter into, amend or modify in any material way, terminate
(partially or completely), grant any waiver of any material term under, or give
any material consent with respect to any Material Contract, Environmental Permit
or License related to the ownership and operation of the Facility or any other
aspect of the business of BPP or any other Contract, if any of such actions with
respect to such other Contracts would result in a Material Adverse Effect, other
than in connection with the BPP Restructuring and the Sierra Settlement if
applicable;
(n) enter into any understanding or any Contract to do or
engage in, or which could result in, any of the foregoing other than in
connection with the BPP Restructuring and the Sierra Settlement, if applicable.
5.5 Fulfillment of Conditions. From the date hereof to the
earlier of the termination of this Agreement or the Closing Date, the Sellers
will take all commercially reasonable steps necessary or desirable and proceed
diligently and in good faith to satisfy each condition to the obligations of the
Purchasers contained in this Agreement, and will not take or fail to take any
action that could reasonably be expected to result in the non-fulfillment of any
such condition.
5.6 Permits. After the date hereof and up to the Closing Date
or the earlier termination of this Agreement, the Sellers will use commercially
reasonable efforts to cause BPP (a) to maintain in effect all its existing
Licenses and Environmental Permits and (b) to obtain any additional Licenses and
Environmental Permits not already issued, that are required in connection with
the normal course of business as conducted by BPP as of the Effective Date.
5.7 Books and Records. On or before the Closing Date, the
Sellers will cause all Books and Records (other than the Excluded Records)
belonging or relating to BPP to be in the possession of BPP, and the Sellers
will make such Books and Records (other than the Excluded Records) available to
such Persons as the Purchasers shall instruct.
5.8 Operation in the Ordinary Course of Business. Between the
date of this Agreement and the Closing Date, except as may be necessary to
consummate the BPP Restructuring, the Sellers will cause BPP to operate only in
accordance with the Material Contracts, any other Contract (except to the extent
failure to so operate would not result in a
21
Material Adverse Effect), and the Sierra Settlement, if applicable, to which it
is a party, as set forth in Section 3.1(o) of the Sellers Disclosure Schedule,
and the Sellers will comply with all terms of such Contracts with respect to the
Facility and BPP.
5.9 No Negotiations. Other than in connection with any
attempts to negotiate a Sierra Settlement, the Sierra ROFR or the WSGC Rights,
until the earlier of the Closing or termination of this Agreement in accordance
with its terms, neither the Sellers nor any of their affiliates, advisors or
agents shall, directly or indirectly, initiate discussions with, engage in
negotiations with, or provide any information to any corporation, partnership,
person or other entity or group involving the possible sale, directly or
indirectly, transfer or joint venture of BPP, its business or assets, or the
partnership interests of BPP to any person other than the Purchasers.
5.10 Notice. Between the date of this Agreement and the
Closing Date, each Seller will promptly notify the Purchasers in writing if such
Seller becomes aware of any fact or condition that causes or constitutes a
material breach of such Seller's representations and warranties as of the date
of this Agreement, or if such Seller becomes aware of the occurrence after the
date of this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a material breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition. Should any
such fact or condition require any change in the schedules if this Agreement
were dated the date of the occurrence or discovery of any such fact or
condition, the applicable Seller will promptly deliver to the Purchasers a
supplement to the schedules specifying such change. During the same period, each
Seller will promptly notify the Purchasers of the occurrence of any breach of
any covenant of such Seller in this Article 5 or of the occurrence of any event
that may make the satisfaction of the conditions in Article 7 impossible or
unlikely. The delivery of any notice pursuant to this Section shall not be
deemed to (i) modify the representations or warranties hereunder of the party
delivering such notice, (ii) modify the closing conditions set forth in this
Agreement or (iii) limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
ARTICLE 6
COVENANTS OF THE PURCHASERS
The Purchasers covenant and agree with the Sellers that from
the date hereof to the earlier of the termination of this Agreement or the
Closing Date it will comply with all covenants and provisions of this Article 6,
except to the extent the Sellers may otherwise consent in writing.
6.1 Regulatory and Other Approvals.
(a) The Purchasers shall:
(i) take all commercially reasonable steps necessary or
desirable, and proceed diligently and in good faith and use all commercially
reasonable efforts, as promptly as practicable to obtain all consents, approvals
or actions of, to make all filings with, and to give all notices to,
Governmental or Regulatory Authorities or any other Person required of the
Purchasers to consummate the transactions contemplated hereby;
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(ii) provide such other information and communications to
such Governmental or Regulatory Authorities or other Persons as such
Governmental or Regulatory Authorities or other Persons may reasonably request
in connection therewith, and
(iii) provide reasonable cooperation to the Sellers in
obtaining all other consents, approvals or actions of, making all filings with
and giving all notices to Governmental or Regulatory Authorities or other
Persons required of the Sellers to consummate the transactions contemplated
hereby.
(b) The Purchasers will provide prompt notification to the
Sellers when any such consent, approval, action, filing or notice referred to in
clause (a)(i) above is obtained, taken, made or given, as applicable, and will
advise the Sellers of any communications (and, unless precluded by Law, provide
copies of any such communications that are in writing) with any Governmental or
Regulatory Authority or other Person regarding any of the transactions
contemplated by this Agreement.
6.2 Fulfillment of Conditions. From the date hereof to the
earlier of the termination of this Agreement or the Closing Date, the Purchasers
will take all commercially reasonable steps necessary or desirable and proceed
diligently and in good faith to satisfy each condition to the obligations of the
Sellers herein which are the obligations of the Purchasers, and will not take or
fail to take any action that could reasonably be expected to result in the
non-fulfillment of any such condition.
(a) Use of Certain Names. As soon as practicable, and in all
events within ninety (90) days after the Closing, the Purchasers shall cause BPP
to eliminate any reference to the Sellers or their Affiliates or any word or
expression constituting an abbreviation of the Sellers or their Affiliates names
from the names under which BPP conducts business, and all of the foregoing
words, expressions and abbreviations shall be removed from the property,
stationery and literature of BPP, and thereafter, the Purchasers and BPP shall
not use any logos, trademarks or tradenames, belonging to the Sellers or any
Affiliate thereof.
6.3 Notice. Between the date of this Agreement and the Closing
Date, the Purchasers will promptly notify the Sellers in writing if either
Purchaser becomes aware of any fact or condition that causes or constitutes a
breach of such Purchaser's representations and warranties as of the date of this
Agreement, or such Purchaser becomes aware of the occurrence after the date of
this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. Should any such
fact or condition require any change in the schedules to this Agreement if this
Agreement were dated the date of the occurrence or discovery of any such fact or
condition, the Purchasers will promptly deliver to the Sellers a supplement to
the schedules specifying such change. During the same period, the Purchasers
will promptly notify the Sellers of the occurrence of any breach of any covenant
of the Purchasers in this Article 6 or of the occurrence of any event that may
make the satisfaction of the conditions in Article 8 impossible or unlikely.
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6.4 Contract Security. On or within thirty (30) days following
the Closing Date, the Purchasers will, or will cause BPP to, deliver substitute
bonds, guarantees, letters of credit or other security sufficient to cause the
beneficiaries of the bonds, guarantees, letters of credit or other security
described on Exhibit VI hereto to release their interest therein and, to the
extent any funds are delivered to BPP or any Purchaser following any such
release, the Purchasers will, or will cause BPP to, promptly pay such funds to
the Sellers.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
The obligations of the Purchasers hereunder to purchase the
Purchased Interests are subject to the fulfillment, at or before the Closing, of
each of the following conditions (all or any of which may be waived in whole or
in part by the Purchasers in their sole discretion):
7.1 Representations and Warranties. The representations and
warranties made by the Sellers in this Agreement shall be true and correct in
all material respects on and as of the date of this Agreement and on and as of
the Closing Date as though made on and as of each such date.
7.2 Performance. The Sellers shall have performed and complied
in all material respects with the agreements, covenants and obligations required
by this Agreement to be so performed or complied with by them (other than those
set forth in Section 5.4, which shall have been complied with in all respects)
at or before the Closing.
7.3 BPP Restructuring. The Facility Lease Agreement between
State Street Bank and Trust Company of Connecticut, N.A., as Owner Trustee, and
BPP, dated as of June 30, 1992 shall have been terminated and BPP shall have
otherwise completed the BPP Restructuring.
7.4 UFG Holdings Debt. As part of the BPP Restructuring, BPP
shall have assumed the UFG Holdings Debt from the original obligor with respect
thereof and such UFG Holdings Debt shall, as part of such assumption
transaction, have been written down to an aggregate principal amount equal to
the sum specified in Section 2.2(b).
7.5 Officers' Certificates. Each of the Sellers shall have
delivered to the Purchasers a certificate, dated the Closing Date and executed
by an officer of the respective Seller, reasonably satisfactory in form and
substance to the Purchasers, as to the matters set forth in Section 7.1 and 7.2,
and a certificate, dated the Closing Date and executed by the Secretary or any
Assistant Secretary of each Seller, reasonably satisfactory in form and
substance to the Purchasers.
7.6 Orders and Laws. There shall not be in effect, pending or
threatened on the Closing Date any Order or Law restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
7.7 Regulatory Consents and Approvals. All ESI BH Consents,
TPC Xxxxx Consents and all consents, approvals and actions of, filings with and
notices to any Governmental or Regulatory Authority necessary to permit the
Purchasers and the Sellers to perform their obligations under this Agreement and
to consummate the transactions
24
contemplated hereby shall have been duly obtained, made or given and shall be in
full force and effect, including all Consents by third parties necessary for the
transfer or assignment to the Purchasers or their designee of the Contracts of
BPP, as required to consummate the transactions contemplated hereby, and all
terminations or expirations of waiting periods imposed by any Governmental or
Regulatory Authority necessary for the consummation of the transactions
contemplated by this Agreement shall have occurred.
7.8 No Material Adverse Effect. There shall not have occurred
on or after the Effective Date and be continuing (i) any changes or event that
has a Material Adverse Effect or (ii) any casualty loss to the Facility, whether
or not covered by insurance that has not been repaired to the reasonable
satisfaction of the Purchasers.
7.9 Opinions of Counsel. The Purchasers shall have received
(i) the opinion of Steel Xxxxxx & Xxxxx LLP, counsel to ESI BH and FPLE, dated
the Closing Date, substantially in the form attached hereto as Exhibit VII-A,
(ii) the opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to TPC Xxxxx,
dated the Closing Date, substantially in the form attached hereto as Exhibit
VII-B, and (iii) the opinion of Xxxxxx Xxxxxx & Xxxxxxx, Nevada counsel to the
Sellers and BPP, dated the Closing Date, substantially in the form attached
hereto as Exhibit VII-C.
7.10 Deliveries. The Sellers shall have executed and delivered
to the Purchasers all certificates evidencing the Purchased Interests, duly
endorsed to the Purchasers or their nominee, and all other documents
contemplated hereby to be executed and delivered by the Sellers on or before
Closing, which documents shall be in form and substance reasonably satisfactory
to the Purchasers and their counsel, and the Sellers shall have turned over to
the Purchasers (or made arrangements for the turnover which are satisfactory to
the Purchasers) the Books and Records of BPP.
7.11 Release. The Sellers shall have delivered to the
Purchasers an instrument dated the Closing Date in form and substance reasonably
satisfactory to the Purchasers and their counsel releasing any and all claims
the Sellers and their Affiliates may have against or with respect to BPP, except
for such claims arising pursuant to this Agreement. The Sellers and their
Affiliates shall repay to BPP all outstanding indebtedness that the Sellers and
their Affiliates may owe BPP.
7.12 Good Standing. The Sellers shall have delivered to the
Purchasers certificates, dated as of a date no more than ten (10) days prior to
the Closing Date, duly issued by the appropriate authorities, showing that the
Sellers and BPP are in good standing and authorized to do business.
7.13 Parent Guaranty. The FPLE Guaranty shall have been
entered into and shall be in full force and effect.
7.14 Sierra ROFR and Consent. The Sierra ROFR shall have been
expressly waived or the time period for exercise of such right shall have
expired without such right having been exercised, and Sierra shall have
consented to the assignment of the Purchased Interests.
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7.15 Consent of Western States. Western States shall have
consented to the assignment of the Purchased Interests, Ormat Technologies shall
have provided to Western States a guaranty and indemnification agreement in
substitution for the two separate guaranty and indemnification agreements
previously provided to Western States in connection with the Facility Operating
Lease by ESI Energy, Inc. (now known as ESI Energy, LLC) and Western States
shall have delivered to ESI Energy, LLC a written cancellation of its guaranty
and indemnification agreements.
7.16 MMS Audit Letter. The MMS Audit Letter shall have been
entered into and shall be in full force and effect.
7.17 Transition Operations. The Transition O&M Agreement shall
have been entered into and shall be in full force and effect.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF THE SELLERS
The obligations of the Sellers hereunder to sell the Purchased
Interests are subject to the fulfillment, at or before the Closing, of each of
the following conditions (all or any of which may be waived in whole or in part
by the Sellers in their sole discretion):
8.1 Representations and Warranties. The representations and
warranties made by the Purchasers in this Agreement shall be true and correct in
all material respects on and as of the date of this Agreement and on and as of
the Closing Date as though made on and as of each such date.
8.2 Performance. The Purchasers shall have performed and
complied with the agreements, covenants and obligations required by this
Agreement to be so performed or complied with by them at or before the Closing.
8.3 Officers' Certificates. The Purchasers shall have
delivered to the Sellers a certificate, dated the Closing Date and executed by
an officer of each Purchaser, reasonably satisfactory in form and substance to
the Sellers, as to the matters set forth in Sections 8.1 and 8.2, and a
certificate, dated the Closing Date and executed by the Secretary or any
Assistant Secretary of each Purchaser, reasonably satisfactory in form and
substance to the Sellers.
8.4 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement.
8.5 Regulatory Consents and Approvals. All ESI BH Consents,
TPC Xxxxx Consents and all consents, approvals and actions of, filings with and
notices to any Governmental or Regulatory Authority necessary to permit the
Sellers and the Purchasers to perform their obligations under this Agreement and
to consummate the transactions contemplated hereby shall have been duly
obtained, made or given and shall be in full force and effect, and all
terminations or expirations of waiting periods imposed by any Governmental or
Regulatory Authority necessary for the consummation of the transactions
contemplated by this Agreement shall have occurred.
26
8.6 Opinion of Counsel. The Sellers shall have received the
opinion of Xxxxxxxxxx & Xxxxx LLP, counsel to the Purchasers and Ormat
Technologies, dated the Closing Date, substantially in the form attached hereto
as Exhibit VIII.
8.7 Deliveries. The Purchasers shall have executed and
delivered to the Sellers all documents contemplated hereby to be executed and
delivered by the Purchasers on or before Closing, which documents shall be in
form and substance reasonably satisfactory to the Sellers and their counsel.
8.8 Good Standing. The Purchasers shall have delivered to the
Sellers certificates, dated as of a date no more than ten (10) days prior to the
Closing Date, duly issued by the appropriate authorities, showing that the
Purchasers are in good standing and authorized to do business.
8.9 Parent Guaranty. The Ormat Technologies Guaranty shall
have been entered into and shall be in full force and effect.
8.10 Sierra ROFR and Consent. The Sierra ROFR shall have been
expressly waived or the time period for exercise of such right in accordance
with the Sierra Settlement shall have expired without such right having been
exercised, and Sierra shall have consented to the assignment of the Purchased
Interest.
8.11 Consent of Western States. Western States shall have
consented to the assignment of the Purchased Interests, Ormat Technologies shall
have provided to Western States a guaranty and indemnification agreement in
substitution for the two separate guaranty and indemnification agreements
previously provided to Western States in connection with the Facility Operating
Lease by ESI Energy, Inc. (now known as ESI Energy, LCC) and Western States
shall have delivered to ESI Energy, LLC a written cancellation of its guaranty
and indemnification agreements.
8.12 Good Faith Deposit. Ormat Nevada Inc. shall have
delivered to FPLE written authorization to apply the Good Faith Deposit in
accordance with Section 2.2(b).
8.13 Transition Operations. The Transition O&M Agreement shall
have been entered into and shall be in full force and effect.
ARTICLE 9
TAX MATTERS
9.1 Representations, Warranties and Covenants. ESI BH
represents, warrants and covenants that as of the date of this Agreement and,
except as otherwise expressly provided, as of the Closing Date:
(a) (i) BPP has filed when due all Tax Returns that are
required to be filed by it on or before the Closing Date; (ii) such returns were
prepared in the manner required by applicable Laws and are true, correct, and
complete in all material respects; and (iii) BPP has timely paid all Taxes
imposed on or incurred by it as shown on such Tax Returns as being owed. Neither
the Sellers nor BPP has been notified of any claim or potential claim by any tax
authority
27
for unpaid Taxes relating to events or periods before the Closing Date. No
waiver of any statute of limitations is in effect with respect to any Tax
Returns. BPP is a partnership and has not elected to be treated as a
corporation. As of the Closing Date, BPP will not be a party to any Tax sharing
or Tax indemnity agreement, and BPP has not, or will not have as of the Closing
Date, any obligations or liabilities under any Tax sharing or Tax indemnity
arrangements previously in effect. The Sellers are not foreign persons within
the meaning of Section 1445 of the Code. All monies required to be withheld by
BPP for income Taxes and social security and other payroll Taxes have been
collected or withheld with respect to employees, and either paid to the
respective taxing authorities or set aside in accounts for such purpose.
(b) No "check-the-box" elections have been filed pursuant to
Treasury Regulations ss. 301.7701-3 for BPP within the 60-month period ending on
the Closing date.
(c) True and complete copies of all Tax Returns and all
schedules thereto filed by, or on behalf of, BPP for all prior taxable years
have been (or will be upon request) made available to the Purchasers for
inspection.
9.2 Tax Matters.
(a) Transfer Taxes. ESI BH on the one hand, and the
Purchasers, on the other, shall bear in equal portions and pay all sales, use,
transfer, recording, gains, stock transfer and other similar taxes and fees
("Transfer Taxes") if any, arising out of or in connection with the sale of the
Purchased Interests pursuant to this Agreement.
(b) Pre-Closing Taxes and Overlap Period Taxes. ESI BH shall
be responsible for all Pre-Closing Taxes and for Overlap Period Taxes to the
extent they relate to events or periods through 12:00 a.m. (Nevada time) on the
Closing Date. ESI BH shall prepare and file, or cause to be filed, Tax Returns
for Pre-Closing Taxes. The Purchasers shall prepare and file Tax Returns for
Overlap Period Taxes, and will supply ESI BH with a draft of any such returns
and a written request for payment of ESI BH's share of such Taxes. The
Purchasers preparation of any such Tax Returns shall be subject to ESI BH's
approval, which shall not be unreasonably withheld or delayed. Payments of the
ESI BH's share must be made to the Purchasers by wire transfer within thirty
(30) business days after such request. Liability for Overlap Period Taxes will
be allocated between ESI BH and the Purchasers on a closing of the books method.
The parties agree to cooperate with one another with respect to preparing and
filing Tax Returns.
(c) Refunds. Any refund or credit of Pre-Closing Taxes or
Overlap Period Taxes paid by the Sellers shall be for the benefit of the
Sellers. The Purchasers shall pay any such refund to the Sellers within thirty
(30) days after the Purchasers or BPP receive such refund or actually realize
the benefit of such credit.
(d) Contests. The Purchasers agree that, in the event the
Purchasers or BPP receive notice in writing of any examination, claim,
settlement, proposed adjustment, administrative or judicial proceeding, or other
matter related to any Pre-Closing Taxes or Overlap Period Taxes for which the
Sellers may be liable under section 9.2(b), the Purchasers will notify the
Sellers in writing promptly after receipt of such notice. The Purchasers will be
28
entitled to control any Tax contest, except to the extent that responsibility
for the disputed Tax liability falls solely on the Sellers; provided, however,
that if responsibility for the disputed Tax liability falls solely on the
Sellers but the contest involves issues that may recur on a later Tax Return of
BPP or the Purchasers with respect to BPP, the Purchasers will control such Tax
contest. The Sellers shall notify the Purchasers in writing within thirty (30)
business days following receipt of the notice from the Purchasers described in
this paragraph 9.2(c) that the Sellers assume control over the contest if so
entitled. Each party will bear its own expenses, and the controlling party will
keep the other party informed of developments in the case. The noncontrolling
party or parties shall have the opportunity to attend meetings with tax
officials and to comment on any written submissions before they are submitted.
Suggestions by the noncontrolling party or parties about the conduct of the
contest will be considered in good faith by the controlling party, but the
controlling party will make the ultimate decision on whether, how long and in
what manner to contest.
(e) Information. In connection with preparing any Tax Return
or preparing for any audit or other examination by any taxing authority or any
judicial or administrative proceedings relating to liability for Taxes, the
Sellers, the Purchasers and BPP will provide information, records or documents
relating to Taxes as may be reasonably requested by another Party. The Sellers
will not destroy any records related to BPP for tax periods commencing before
the Closing Date for a period of seven (7) years following the date thereof
without first giving notice to and obtaining the written consent of the
Purchasers (whose consent shall not be unreasonably withheld).
ARTICLE 10
SURVIVAL
10.1 Survival of Representations, Warranties, Covenants and
Agreements. The representations, warranties, covenants and agreements of the
Sellers and the Purchasers contained in this Agreement (other than (i) the
covenants and agreements contained in Articles 10, 11 and 12, which covenants
and agreements shall survive in accordance with their terms, (ii) the covenants
and agreements in Section 14.5, which covenants and agreements shall survive for
a period of five (5) years after the Closing, (iii) the representations and
warranties contained in Sections 3.1(a), (b), (c), (e) and (g); 3.2(a), (b),
(c), (e) and (g); 4.1; 4.2; 4.3 and 4.6; which covenants, representations and
warranties shall survive indefinitely after the Closing, (iv) the covenants and
agreements contained in Article 9, which covenants and agreements shall survive
for the applicable statute of limitations, and (v) the representation contained
in Section 3.1(q), which shall not survive beyond the date of this Agreement)
shall survive for a period of one (1) year after the Closing; provided, however,
that claims first asserted in writing within the applicable period (whether or
not the amount of any such claim has become ascertainable within such period)
shall not thereafter be time barred.
10.2 No Other Representations. Notwithstanding anything to the
contrary contained in this Agreement, each party agrees that the Sellers are
making no representation or warranty whatsoever, express or implied, except
those representations and warranties contained in Section 3.1 and 3.2 and in any
certificate delivered pursuant to Article 7. In particular, the Sellers make no
representation or warranty to the Purchasers with respect to (i) the cost of
operating the Facility or the revenues to be derived therefrom; (ii) the
accuracy of any forecast,
29
study or projection relating to the business or condition of BPP; (iii) whether
the Facility can be financed; (iv) the ultimate feasibility or economic worth of
the Facility; or (v) the effect on the business or condition of BPP of the sale
of the Purchased Interests to the Purchasers. With respect to any projection or
forecast delivered by or on behalf of the Sellers to the Purchasers, the
Purchasers acknowledge that (i) there are uncertainties inherent in attempting
to make such projections, studies and forecasts, (ii) they are familiar with
such uncertainties and (iii) they are taking full responsibility for making
their own evaluation of the adequacy and accuracy of all such projections,
studies and forecasts furnished to them.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification. (a) ESI BH shall, to the fullest extent
permitted by Law, indemnify, defend and hold harmless, on an After-Tax Basis,
the Purchasers and their Affiliates and the respective officers, directors,
employees and shareholders of the foregoing, and their successors and assigns
(the "Purchasers Indemnified Parties") from, against and with respect to any
claim, liability, obligation or Loss, of any kind or character, suffered,
incurred or sustained by the Purchasers or any of the foregoing or to which it
or they become subject, arising out of or in any manner incident, relating or
attributable to:
(i) any inaccuracy in any representation or breach of
warranty of any Seller contained in this Agreement or in any certificate,
instrument of transfer or other document or agreement executed by any Seller in
connection with this Agreement;
(ii) (1) the validity of TPC Xxxxx'x title to the
Purchased Interests set forth opposite its name on Schedule I; (2) any Liens
imposed on such Purchased Interests, other than any Liens which may be imposed
by the Purchasers or solely as a result of the Purchasers' ownership of the
Purchased Interests; (3) the existence of any outstanding liability for any
capital calls or other form of capital contributions in respect of such
Purchased Interests; (4) the existence of any agreements or restrictions
restricting the right of TPC Xxxxx to sell, transfer or otherwise dispose of
such Purchased Interests; or (5) the existence of any subscriptions, options,
warrants, conversion rights, preemptive rights or other rights (contractual or
otherwise) or agreements of any kind for the purchase or acquisition from TPC
Xxxxx, or any other Person of any of the Purchased Interests; and
(iii) any failure by any of the Sellers to perform or
observe, or to have performed or observed, in full, any covenant, agreement or
condition to be performed or observed by any of them under this Agreement or
under any certificates or other documents or agreements executed by any Seller
in connection with this Agreement.
(b) The Purchasers shall, to the fullest extent permitted by
Law, jointly and severally, indemnify, defend and hold harmless, on an After-Tax
Basis, the Sellers and their Affiliates and the respective partners, officers,
directors, employees and shareholders of the foregoing, and their successors and
assigns (the "Sellers Indemnified Parties") from, against and with respect to
any claim, liability, obligation judgment or Loss, of any kind or character,
suffered, incurred or sustained by the Sellers or any of the foregoing or to
which they become subject, arising out of or in any manner incident, relating or
attributable to:
30
(i) any inaccuracy in any representation or breach of
warranty of the Purchasers contained in this Agreement or in any certificate,
instrument of transfer or other document or agreement executed by the Purchasers
in connection with this Agreement;
(ii) any failure by the Purchasers to perform or observe,
or to have performed or observed, in full, any covenant, agreement or condition
to be performed or observed by it under this Agreement or under any certificates
or other documents or agreements executed by the Purchasers in connection with
this Agreement; and
(iii) any events, occurrences or conditions relating to
BPP, the Facility, the Assets and Properties of BPP or the Contracts of BPP in
respect of all periods after the Closing.]
(c) Notwithstanding anything herein to the contrary, no
indemnification shall be available to the Purchasers Indemnified Parties under
Section 11.1 (a) hereof or to the Sellers Indemnified Parties under Section
11.1(b) hereof:
(i) unless, with respect to any claim, the Loss involves
an amount in excess of $25,000; and
(ii) unless the aggregate amount of Damages that would
otherwise be subject to indemnification with respect to such claim and all prior
claims exceeds $500,000 (such amount, the "Threshold Amount"), in which case the
party(ies) entitled to such indemnification shall be entitled to receive all
amounts in excess of the Threshold Amount.
(d) Notwithstanding anything herein to the contrary, ESI BH
shall have no obligation to indemnify any Purchasers Indemnified Party for any
Damages pursuant to Section 11.1(a) hereof, and the Purchasers shall have no
obligation to indemnify any Seller Indemnified Party for any Damages pursuant to
Section 11.1(b) hereof, in each case to the extent such Damages arise from the
willful misconduct or gross negligence of any Purchaser or the Sellers, as
applicable.
(e) Notwithstanding anything herein to the contrary, the
maximum aggregate liability of ESI BH to the Purchasers Indemnified Parties
under this Agreement shall not exceed an amount equal to $2,300,000; provided
that the limitation contained in this clause shall not apply to Damages arising
from a breach of the representations in Sections 3.1(a), 3.1(b), 3.1(e), 3.2(a),
3.2(b) and 3.2(e).
11.2 Method of Asserting Claims. All claims for
indemnification by any Indemnified Party under this Section 11.2 will be
asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an
Indemnified Party might seek indemnity under Section 11.1 is asserted against or
sought to be collected from such Indemnified Party by a Person other than the
Sellers, the Purchasers or any Affiliate of the Sellers or the Purchasers (a
"Third Party Claim"), the Indemnified Party shall deliver a Claim Notice with
reasonable promptness to the Indemnifying Party.
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(i) If the Indemnifying Party notifies the Indemnified
Party within the Dispute Period that the Indemnifying Party desires to defend
the Indemnified Party with respect to the Third Party Claim pursuant to this
Section 11.2(a), and confirms its liability with respect thereto, then the
Indemnifying Party will have the right to defend, at the sole cost and expense
of the Indemnifying Party, such Third Party Claim by all appropriate
proceedings, which proceedings will be vigorously and diligently prosecuted by
the Indemnifying Party, with counsel reasonably acceptable to the Indemnified
Party, to a final conclusion or will be settled at the discretion of the
Indemnifying Party (subject to the limitations set forth below). From and after
the Indemnifying Party's delivery of the notice referred to in the first
sentence of this Section 11.2(a)(i), the Indemnifying Party will have full
control of such defense and proceedings, including any settlement thereof;
provided, that the Indemnifying Party may not settle or compromise any Third
Party Claim in any manner that results in any continuing liability or obligation
for the Indemnified Party or any admission of liability or wrongdoing by the
Indemnified Party, without, in any such case, the prior written consent of the
Indemnified Party, which will not be unreasonably withheld. If requested by the
Indemnifying Party, the Indemnified Party will, at the sole cost and expense of
the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in
contesting any Third Party Claim that the Indemnifying Party elects to contest,
or, if appropriate and related to the Third Party Claim in question, in making
any counterclaim against the Person asserting the Third Party Claim, or any
cross-complaint against any Person (other than the Indemnified Party or any of
its Affiliates). Notwithstanding the foregoing, the Indemnified Party may take
over the control of the defense or settlement of a Third Party Claim at any time
if it irrevocably waives its right to indemnity under Section 11.1 with respect
to such Third Party Claim. Should the Indemnifying Party have interests that
diverge materially from those of the Indemnified Party, the Indemnified Party
shall have the right to request separate counsel from that representing the
Indemnifying Party, the expenses of such separate representation to be paid by
the Indemnifying Party.
(ii) If the Indemnifying Party fails to notify the
Indemnified Party within the Dispute Period that the Indemnifying Party desires
to defend the Third Party Claim pursuant to Section 11.2(a), or if the
Indemnifying Party gives such notice but fails to prosecute vigorously and
diligently or settle the Third Party Claim, then the Indemnified Party will have
the right to defend, at the sole cost and expense of the Indemnifying Party, the
Third Party Claim by all appropriate proceedings, which proceedings will be
vigorously and diligently prosecuted by the Indemnified Party to a final
conclusion or will be settled at the discretion of the Indemnified Party (with
the consent of the Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such defense and
proceedings, including (except as provided in the immediately preceding
sentence) any settlement thereof; provided, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole cost and expense of the
Indemnifying Party, cooperate with the Indemnified Party and its counsel in
contesting any Third Party Claim which the Indemnified Party is contesting, or,
if appropriate and related to the Third Party Claim in question, in making any
counterclaim against the Person asserting the Third Party Claim, or any
cross-complaint against any Person (other than the Indemnified Party or any of
its Affiliates).
(iii) If the Indemnifying Party notifies the Indemnified
Party that it does not dispute its liability to the Indemnified Party with
respect to the Third Party Claim under Section 11.1 or fails to notify the
Indemnified Party within the Dispute Period whether the
32
Indemnifying Party disputes its liability to the Indemnified Party with respect
to such Third Party Claim, the Damages arising from such Third Party Claim will
be conclusively deemed a liability of the Indemnifying Party under Section 11.1
and the Indemnifying Party shall pay the amount of such Damages to the
Indemnified Party on demand following the final determination thereof. If the
Indemnifying Party has timely disputed its liability with respect to such claim,
the Indemnifying Party and the Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if not resolved through negotiations
within the Resolution Period, the Indemnified Party shall be entitled to seek
such remedies against the Indemnifying Party as may then be available to it
under this Agreement and applicable Laws.
(b) In the event any Indemnified Party should have a claim
under Section 11.1 against any Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver an "Indemnity Notice" with
reasonable promptness to the Indemnifying Party. If the Indemnifying Party
notifies the Indemnified Party that it does not dispute the claim or the amount
of Loss therefrom described in such Indemnity Notice or fails to notify the
Indemnified Party within the Dispute Period that it disputes the claim described
in the Indemnity Notice, the Loss in the amount specified in the Indemnity
Notice will be conclusively deemed a liability of the Indemnifying Party under
Section 11.1 and the Indemnifying Party shall pay the amount of such Loss to the
Indemnified Party on demand. If the Indemnifying Party has disputed its
liability with or the amount of the Loss therefrom respect to such claim, such
dispute shall be resolved in accordance with the provisions of Article 12
hereof.
11.3 Exclusivity. After the Closing, to the extent permitted
by applicable Laws, and except in the case of fraud, gross negligence or willful
misconduct, the indemnities set forth in this Article 11 shall be the exclusive
remedies of the Purchasers and the Sellers and their respective officers,
directors, employees, agents and Affiliates due to misrepresentation, breach of
warranty, nonfulfillment or failure to be performed of any covenant or agreement
contained in this Agreement or any events, occurrences or conditions relating to
the Facility in respect of all periods on or after the Closing Date for the
Sellers, and the parties shall not be entitled to a rescission of this Agreement
or to any further indemnification rights or claims of any nature whatsoever in
respect thereof, all of which the parties hereto hereby waive; provided,
however, that the foregoing provision shall not limit or restrict the
availability of specific performance or other injunctive or equitable relief
(other than rescission) to the extent that specific performance or such other
relief would otherwise be available to a party under this Agreement.
11.4 Notification by the Sellers of Certain Matters. The
Sellers may, at the Closing, notify the Purchasers in one or more of the
certificates to be delivered pursuant to Section 7.5, in reasonable detail of
any representation or warranty of any of the Sellers that was not true and
accurate as of the date of this Agreement or as of the Closing or of any
covenant of any of the Sellers that has not been performed and complied with
and, if the Purchasers shall in their sole discretion nevertheless elect to
close under this Agreement, none of the matters set forth in such certificate
shall be deemed to be an inaccuracy in or breach of the specific representations
and warranties or covenants of the Sellers so modified for purposes of, and the
Purchasers shall not be entitled to be indemnified as to any of such specific
representations, warranties and covenants in the form prior to their
modification pursuant to, this Article 11.
33
ARTICLE 12
DISPUTE RESOLUTION
In the event an action, dispute, claim, counterclaim or
controversy ("Dispute") arises between the parties arising out of or relating to
this Agreement, the aggrieved party shall promptly notify the other party of the
Dispute within ten (10) Business Days after such Dispute arises. If the parties
have failed to resolve the Dispute within ten Business Days after delivery of
such notice, each party shall, within five (5) Business Days thereafter,
nominate a senior officer of its management to meet to attempt to resolve the
Dispute. The senior officers shall meet within twenty (20) Business Days after
their nomination. If the matter has not been resolved within fourteen (14) days
after the meeting of the senior executives, either party may pursue any and all
available legal remedies, unless the parties mutually agree to an alternative
dispute resolution procedure.
ARTICLE 13
TERMINATION
13.1 Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned by written notice from the
terminating party to the non-terminating party (the date of such termination
being sometimes referred to as the "Termination Date"):
(a) at any time before the Closing, by mutual written
agreement of the Sellers and the Purchasers; or
(b) at any time before the Closing, by either the Sellers or
the Purchasers, in the event that any Order or Law becomes effective
restraining, enjoining, or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement, upon
notification of the non-terminating party by the terminating party; or
(c) at any time before the Closing, by the Sellers if either
Purchaser shall be in material breach with respect to the due and timely
performance of any of its covenants or agreements contained herein and such
breach has not been waived, or if any of the representations and warranties of
the Purchasers contained in Article 4 are untrue, inaccurate or breached in any
material respect as of the Closing, and such breach or untrue or inaccurate
representation or warranty, if capable of being cured, has not been cured or
made true by the Purchasers within twenty (20) days following receipt by the
Purchasers of written notice thereof or has not been waived by the Sellers; or
(d) at any time before the Closing, by the Purchasers if the
Seller shall be in material breach with respect to the due and timely
performance of any of its respective covenants or agreements contained herein
and such breach has not been waived, or if any of the representations and
warranties of the Sellers contained in Article 3 are untrue, inaccurate or
breached in any material respect as of the Closing, and such breach or untrue or
inaccurate representation or warranty, if capable of being cured, has not been
cured or made true by the Sellers within twenty (20) days following receipt by
the Sellers of written notice thereof or has not been waived by the Purchasers;
or
34
(e) at any time before the Closing, (i) by either of the
Sellers or the Purchasers upon receipt by either of the Sellers of notification
that Sierra has elected to exercise the Sierra ROFR or Western States has
elected to exercise its right of first refusal that is part of the WSGC Rights,
or (ii) by ESI BH if Western States has failed to exercise its right of first
refusal or grant its consent to the transfer of the Purchased Interests to the
Purchasers within thirty (30) days following the date that a notice is given to
Western States of the transfer of the Purchased Interests to the Purchasers that
complies with the requirements of Section 11.1(b)(i) of the Facility Operating
Lease and ESI BH, on behalf of BPP, has given notice to Western States purchase
to Section 11.1(b)(ii) of the Facility Operating Lease that it is withdrawing
its request for Western States' consent to the transfer of the Purchased
Interests to the Purchasers; or
(f) at any time after June 30, 2001, by ESI BH or the
Purchasers if the Closing shall not have occurred on or before such date and
such failure to consummate is not caused by a breach of this Agreement by the
terminating party.
13.2 Effect of Termination or Breach.
(a) If this Agreement is validly terminated pursuant to
Section 13.1, there will be no liability or obligation on the part of the
Sellers or the Purchasers (or any of their Affiliates or any of its or their
respective officers, directors, employees, agents or other Representatives)
except as provided in Section 13.2(b) and except that the provisions with
respect to expenses in Section 14.3 and confidentiality in Section 14.5 will
continue to apply following any such termination. Without limiting the
foregoing, if either Sierra or Western States exercises its right of first
refusal and, as a result of such exercise, this Agreement is terminated pursuant
to Section 13(e), the Purchasers shall have no further rights to purchase and
the Sellers shall not have any further obligation to sell or offer to sell any
of the Purchased Interests or the Facility or any portion thereof pursuant to
this Agreement or otherwise following such termination, including, without
limitation, in the event that the purchase of the Purchased Interests pursuant
to the exercise of any such right of first refusal is not thereafter
consummated.
(b) Notwithstanding any other provision in this Agreement to
the contrary, if this Agreement is validly terminated by the Sellers pursuant to
Section 13.1(c) or by the Purchasers pursuant to Section 13.1(d) hereof as a
result of the willful breach by the non-terminating party, the terminating party
may recover such remedies, including damages and fees and expenses of attorneys
as may be available at law or equity.
(c) Upon termination of this Agreement under Section 13.1(a),
(b), (e), or (f), ESI BH shall pay or cause to be paid to the Purchasers, no
later than seven days following such termination, the Good Faith Deposit Amount.
ARTICLE 14
MISCELLANEOUS
14.1 Notices. Unless this Agreement specifically requires
otherwise, any notice, demand or request provided for in this Agreement, or
served, given or made in connection with it, shall be in writing and shall be
deemed properly served, given or made if delivered in person or sent by fax or
sent by registered or certified mail, postage prepaid, or by
35
an internationally recognized overnight courier service that provides a receipt
of delivery, in each case, to the parties at the addresses specified below:
If to the Purchasers, to:
ORNI 1 LLC
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Attn.: President
Tel: (000) 000-0000
Fax: (000) 000-0000
and
ORNI 2 LLC
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Attn.: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Ormat Industries, Ltd.
Xxxxxxxxxx Xxxx, X.X.X. 00
Xxxxx 00000, Xxxxxx
Attn.: President
Fax: (000) 0 000 0000
Tel: (000) 0 000 0000
If to the Sellers, to:
ESI BH Limited Partners
c/o FPL Energy, LLC
000 Xxxxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Attn.: Xxx Xxxxxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
36
with a copy to:
Steel Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
and
TPC Xxxxx, Inc.
c/o Tomen Power Corporation
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn.: Chief Executive Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Notice given by personal delivery, mail or overnight courier
pursuant to this Section 14.1 shall be effective upon physical receipt. Notice
given by fax pursuant to this Section 14.1 shall be effective as of (i) the date
of confirmed delivery if delivered before 5:00 p.m. EST on any Business Day, or
(ii) the next succeeding Business Day if confirmed delivery is after 5:00 p.m.
EST on any Business Day or during any non-Business Day.
14.2 Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
14.3 Expenses. Except as otherwise expressly provided in this
Agreement (including as provided in Section 13.2), whether or not the
transactions contemplated hereby are consummated, each party will pay its own
costs and expenses incurred in connection with the negotiation, execution and
closing of this Agreement and the transactions contemplated hereby.
14.4 Public Announcements. No press releases or similar public
announcements concerning this Agreement and the transactions contemplated hereby
will be issued by any party without the prior consent of the other parties,
except as such release or public announcement may be required by Law (including,
for the avoidance of doubt, rules and
37
regulations of any stock exchange), in which case the party required to make the
release or public announcement will, to the extent practicable, consult with the
other parties regarding such release or announcement in advance thereof.
14.5 Confidentiality. Each party hereto will hold, and will
use commercially reasonable efforts to cause its Affiliates and their respective
Representatives to hold, in strict confidence from any Person (other than any
such Affiliate or Representative), unless (i) compelled to disclose by judicial
or administrative process (including in connection with obtaining the necessary
approvals of this Agreement and the transactions contemplated hereby of
Governmental or Regulatory Authorities) or by other requirements of Law
(including exchange rules) or (ii) disclosed in an action or proceeding brought
by a party hereto in pursuit of its rights or in the exercise of its remedies
hereunder, all documents and information concerning the other party or any of
its Affiliates furnished to it by the other party or such other party's
Representatives in connection with this Agreement or the transactions
contemplated hereby, except to the extent that such documents or information can
be shown to have been (a) previously known by the party receiving such documents
or information, (b) in the public domain (either prior to or after the
furnishing of such documents or information hereunder) through no fault of such
receiving party or (c) later acquired by the receiving party from another source
if the receiving party is not aware that such source is under an obligation to
another party hereto to keep such documents and information confidential. In the
event the transactions contemplated hereby are not consummated, upon the request
of the other party, each party hereto will, and will cause its Affiliates and
their respective Representatives to, promptly (and in no event later than five
(5) Business Days after such request) redeliver or cause to be redelivered all
copies of confidential documents and information furnished by the other party in
connection with this Agreement or the transactions contemplated hereby and
destroy or cause to be destroyed all notes, memoranda, summaries, analyses,
compilations and other writings related thereto or based thereon prepared by the
party furnished such documents and information or its Representatives. The
obligations contained in this Section 14.5 shall survive for two (2) years
following the termination or abandonment of this Agreement or the Closing, as
the case may be. The provisions of this Section 14.5 supersede that certain
Confidentiality Agreement dated as of June 28, 2000, between Ormat Nevada Inc.,
and BPP in its entirety.
14.6 Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, will be cumulative
and not alternative.
14.7 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
14.8 No Third Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights
38
upon any other Person except for such shareholders, officers, directors,
employees, and Affiliates referenced in Section 11.1.
14.9 No Assignment; Binding Effect. Neither this Agreement nor
any right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void, except for (a) assignments and transfers by operation of
Law, (b) assignments and transfers by the Purchasers of their rights, interests
or obligations hereunder, in whole or in part, to an Affiliate with the consent
of ESI BH, which shall not be unreasonably withheld or delayed, and (c) that the
Purchasers may assign any or all of their rights, interests and obligations
hereunder to any financial institution providing purchase money or other
financing to the Purchasers from time to time as collateral security for such
financing, but no such assignment referred to in clauses (b) or (c) shall
relieve the assigning party of its obligations hereunder. Subject to the
preceding sentence, this Agreement is binding upon, inures to the benefit of and
is enforceable by the parties hereto and their respective successors and
assigns.
14.10 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
14.11 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
14.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof other than Section 5-1401 and Section
5-1402 of the General Obligations Law of the State of New York.
14.13 Jurisdiction and Venue. Each of the Parties hereto
hereby irrevocably and unconditionally consents and agrees that any actions,
suits or proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby may be brought in the United States District
Court for the Southern District of New York or in any state court having subject
matter jurisdiction located in the Borough of Manhattan, New York, New York,
and, by execution and delivery of this Agreement and any other documents
executed in connection herewith, each such Party hereby (i) accepts the
non-exclusive jurisdiction of the aforesaid courts, (ii) irrevocably agrees to
be bound by any final judgment (after any and all appeals) of any such court
with respect to such documents, (iii) irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceedings with respect to such documents
brought in any such court, and further
39
irrevocably waives, to the fullest extent permitted by law, any claim that any
such action, or proceeding brought in any such court has been brought in any
inconvenient forum, (iv) agrees that service of any process, summons, notice or
document in any such action may be effected by mailing a copy thereof by U.S.
registered or certified mail, postage prepaid, to such Party at its address set
forth in Section 14.5, or at such other address of which the other Parties
hereto shall have been notified will be effective service for any action, suit
or proceeding brought against it in any such court and (v) agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or limit the right to bring any suit, action or proceeding in
any other jurisdiction.
14.14 Waiver of Trial by Jury. EACH OF THE PARTIES HERETO
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING
INTO THIS AGREEMENT.
14.15 Attorneys' Fees. In the event of any suit or other
proceeding between the Parties with respect to any of the transactions
contemplated hereby or subject matter hereof, the prevailing Party shall, in
addition to such other relief as the court or arbitrator may award, be entitled
to recover reasonable attorneys' fees and costs (including at the trial and
appellate levels) and expenses of investigation.
14.16 Time is of the Essence. With regard to all dates and
time periods set forth or referred to in this Agreement, time is of the essence.
14.17 Waiver of Consequential Damages. NOTWITHSTANDING ANY
PROVISION IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY OR ITS
AFFILIATES, OR ITS RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES OR
REPRESENTATIVES, BE LIABLE HEREUNDER AT ANY TIME FOR PUNITIVE, CONSEQUENTIAL,
SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY OTHER PARTY OR ANY OF SUCH PARTY'S
AFFILIATES, INCLUDING LOSS OF PROFIT, LOSS OF REVENUE OR ANY OTHER SPECIAL OR
INCIDENTAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE, AND EACH PARTY HEREBY EXPRESSLY RELEASES THE OTHER
PARTIES, THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES
AND REPRESENTATIVES THEREFROM.
14.18 Interest on Past Due Payments. If a payment is due to be
made by a Party pursuant to this Agreement and such payment is not made within
thirty (30) days following receipt by such Party of written demand for such
payment from the Party entitled to receive such payment, then the Party
obligated to make such payment agrees to pay interest on the amount due and
unpaid at a variable rate equal to the Prime Rate then in effect. Such interest
shall begin
40
to accrue on the first day following the end of such thirty (30) day period and
shall continue to accrue on the unpaid amount until the past due amount has been
paid in full.
14.19 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
14.20 Further Assurances. The Sellers and the Purchasers each
agree, upon the request of the other party from time to time before and after
the Closing Date, to do, execute, acknowledge and deliver such other acts,
consents, instruments, documents and other assurances as may be reasonably
necessary to carry out and perform the transactions contemplated by this
Agreement.
[The rest of this page is intentionally left blank. The next page is the
signature page]
41
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party as of the date first
above written.
ESI BH LIMITED PARTNERSHIP
By: ESI Xxxxx, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
TPC XXXXX, INC.
By: /s/ [illegible]
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ORNI 1 LLC
By: Ormat Nevada Inc., Manager of ORNI 1 LLC
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------------
Title: Assistant Secretary
---------------------------------
ORNI 2 LLC
By: Ormat Nevada Inc., Manager of ORNI 2 LLC
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------------
Title: Assistant Secretary
---------------------------------
Signature Page for Sale and Purchase Agreement
EXHIBIT I
BPP RESTRUCTURING
XXXXX PROJECT
LEASE STRUCTURE COLLAPSE
STEPS
------------------------------------------------------------------------------------------------------------------------------------
STEP ACTION NOTES PARTIES
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
1. Note Holder directs Security Trustee to consent to Note Holder
each of the following actions and to terminate
collateral assignment in Deed of Trust and release
security under Indenture:
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
a. Terminate Facility Lease Owner Trustee, as
Lessor, BPP, as Lessee
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
b. Terminate Site Sub-Sublease After termination, file termination of the BPP
and Owner Trustee Memorandum of Sub-Sublease
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
c. Terminate Site Sublease After termination, file termination of the WSGC and Owner Trustee
Memorandum of Sublease
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
d. Quitclaim to BPP (Owner Trustee executes (Quitclaim uses same property description as Owner Trustee
Deed of Reconveyance) Instrument of Conveyance and Xxxx of Sale (#12))
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
e. Assignment and Assumption Agreement Owner Trustee assigns to BPP all interest in Owner Trustee and BPP
(quitclaim xxxx of sale) any and all property owned by Owner Trustee
and BPP assigns all liabilities under note and
Indenture and other obligations to third
parties. Assignment includes any rights under
Participation Agreement, Guarantees, etc.);
Cancellation of Guarantees.
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
2. BPP, as beneficial owner, gives Trustee notice BPP
and direction to take the actions described in
No. 1 above.
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3. BPP, Security Trustee and Note Holder enter into BPP, Security
Trustee, agreement regarding payoff of Note as follows: Note Holder
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
a. payoff equals net proceeds under Purchase
Agreement
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
b. any balance waived by Note Holder, except
any adjustment past closing applied to
payment of debt
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
4. Upon payment, Note Holder directs Security Note Holder, Security
Trustee to cancel Indenture and to file Trustee
termination of UCCs; cancels rights and executes
termination of all security documents, including
assignments of Guarantees, Assignments of
Contracts, etc.
-------- -------------------------------------------------- ------------------------------------------------ -----------------------
5. Notices to all parties to Contracts regarding BPP
cancellation of assignment
-----------------------------------------------------------------------------------------------------------------------------------
Parties
-------
BPP Xxxxx Power Partners
Note Holder UFG Holdings LLC
WSGC Western States Geothermal Company
2
EXHIBIT II
EXCLUDED RECORDS
BPP's and each Seller's income Tax Returns and workpapers, internal memos and
correspondence with taxing authorities relating to BPP's and each Seller's
income Tax Returns.
Documents relating to ESI BH that contain more than just BPP partnership level
information and that are not principally related to the business, condition or
results of operations of BPP.
Presentations to internal management committees and boards of FPLE and its
affiliates that contain more than just BPP partnership level information and
that are not principally related to the business, condition or results of
operations of BPP.
Agreements with TPC Xxxxx, other than the Partnership Agreement and any
amendments thereto, and other than any agreements directly between BPP and TPC
Xxxxx.
Budgets of FPLE and its affiliates, other than budgets of BPP and other than
budgets for periods after 1998 prepared by ESI Xxxxx Power Services, Inc.
relating solely to BPP or the Facility.
Files of employees of FPLE and its affiliates (other than ESI Xxxxx Power
Services, Inc.) that have performed business management and other administrative
services for ESI BH as managing general partner of BPP (including electronic
files and spreadsheets).
EXHIBIT III
MATERIAL CONTRACTS
1. Long Term Agreement for the Purchase and Sale of Electricity between Sierra
Pacific Power Company and Nevada Geothermal Power Partners, dated September 28,
1990, as amended, as subsequently assigned to BPP.
2. Facility Operating Lease, dated as of February 1, 1998, between Western
States Geothermal Company, as Lessor, and Xxxxx Power Partners, as Lessee, as
amended March 31, 1988.
3. Each of the following BLM Leases, identified as Lease No.:
NVN 010922
NVN 040353
NVN 040355
NVN 046566
NVN 065558
NVN 065561
NVN 58562X
NVN 62280
NVN 042718
NVN 062739
NVN 062741
4. Each of the following leases with private parties:
Geothermal Lease SPL-6282 dated October 10, 1984, as amended, between the
Southern Pacific Land Company and Xxxxxx Geothermal, assigned to Xxxxx Power
Partners pursuant to a Consent to Assignments and Sublease of Santa Fe
Geothermal Lease, dated as of June 30, 1992 between BPP and The Xxxxxxxx,
Topeka & Santa Fe Railway Company (later acquired by the Burlington Northern
Santa Fe Railway Company by merger).
EXHIBIT IV
[INTENTIONALLY OMITTED]
EXHIBIT V
FORM OF TRANSFER INSTRUMENT
TRANSFER INSTRUMENT, dated as of ____________ __, 2001
("Transfer Instrument") between [ESI BH Limited Partnership. a Delaware limited
partnership] [TPC Xxxxx, Inc., a Delaware corporation] ("Assignor") and [ORNI 1
LLC] [ORNI 2 LLC], a Delaware limited liability company ("Assignees").
Whereas, Assignor and Assignee are parties to that certain
Sale and Purchase Agreement dated as of February 28, 2001 (the "Sale and
Purchase Agreement");
Whereas, the Sale and Purchase Agreement provides for, among
other things, the execution and delivery of a transfer instrument in the form
hereof to effect the sale by Assignor of all of its Purchased Interests (as
defined in the Sale and Purchase Agreement) to Assignee;
NOW, THEREFORE, for the good and valuable consideration under
the Sale and Purchase Agreement, the receipt and sufficiency of which are hereby
acknowledges, Assignor and Assignee hereby agree as follows:
1. DEFINITIONS. Capitalized terms uses herein without definition shall
have the meanings set forth in the Sale and Purchase Agreement.
2. TRANSFER. Assignor does hereby sell, transfer, convey, assign and
deliver unto Assignee all of Assignor's right, title and interest in and to the
Purchased Interests, free and clear of all Liens (other than Liens securing the
UFG Holdings Debt).
3. ASSUMPTION. Assignee hereby assumes all of the duties and
obligations of Assignor under the Partnership Agreement with respect to the
Purchased Interests arising or accruing on or after the date hereof.
4. GOVERNING LAW. This Transfer Instrument shall be governed by and
construed in accordance with the laws of the State of New York applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof other than Section 5-1401 and Section
5-1402 of the General Obligations Law of the State of New York.
5. This Transfer Instrument may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Transfer
Instrument to be duly executed and delivered by their respective duly authorized
representatives as of the day and year first above written.
___________________________________, as Assignor
By:
Name:
Title:
__________________________________, as Assignee
By:
Name:
Title:
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EXHIBIT VI
CONTRACT SECURITY
Oil and Gas or Geothermal Lease Bond No. 23S100912170-1BCM, in the amount of
US$50,000.00
Oil and Gas or Geothermal Lease Bond No. NV-0147, in the amount of US$10,000
Surety riders to FPL Energy's nationwide surety lease issued in August 1998,
extending coverage to the Xxxxx Facility, covering performance of all lease
operations past and future including responsibility to plug and abandon any and
all xxxxx including reclamation, up to $150,000
EXHIBIT VII-A
FORM OF OPINION OF COUNSEL TO ESI BH/FPL
The Agreement provides that the obligations of the Purchasers are
subject to satisfaction of certain conditions, including receipt on the closing
date of opinions to the effect set forth below (capitalized terms have the same
meanings as in the Agreement):
1. ESI BH Limited Partnership ("ESI BH") is a limited partnership duly
formed, validly existing and in good standing under the laws of the
State of Delaware. ESI BH has all corporate power and authority
necessary to own or lease, license and operate its properties and
assets and conduct its business as it is now being conducted and enter
into and perform its obligations under the Agreement or any other
document contemplated thereby (collectively, the "Transaction
Documents").
2. ESI BH has duly authorized the Transaction Documents to which it is a
party, and no consent or approval of the partners of ESI BH or any
trustee or holder of any of its indebtedness or other obligations is
required in connection therewith, except such as has been duly
obtained, given or accomplished.
3. ESI BH has duly executed and delivered the Transaction Documents to
which it is a party and each of the Transaction Documents to which ESI
BH is a party constitute the legal, valid and binding obligation of ESI
BH, enforceable in accordance with their respective terms, except as
the enforceability of any such agreement may be limited by applicable
bankruptcy, insolvency, reorganization or moratorium or other similar
laws relating to the rights of creditors generally, and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law).
4. Neither the execution, delivery nor performance by ESI BH of the
Transaction Documents to which it is a party, nor the performance by
ESI BH of the transactions contemplated by the Transaction Documents,
nor compliance by ESI BH with the provisions of the Transaction
Documents, conflicts with, results in the breach of any provision of,
or is inconsistent with, its charter documents, or contravenes any
Applicable Law or any indenture, mortgage or agreement for borrowed
money to which it is a party or any material agreement or instrument to
which it is a party or by which its property is bound, except the Loan,
or would result in the creation or imposition of any Lien on any of its
Properties or Assets, or requires any Governmental Approval under
Applicable Law.
5. FPLE is a corporation duly incorporated and validly existing under the
laws of the State of Delaware.
6. FPLE has the requisite corporate power and authority to execute and
deliver the FPLE Guaranty, to perform its obligations thereunder, and
to consummate the transactions contemplated thereby.
7. The execution, delivery and performance of the FPLE Guaranty and the
consummation of the transactions contemplated thereby have been duly
authorized by all necessary corporate action on the part of FPLE.
8. The FPLE Guaranty has been duly executed and delivered by FPLE and
constitutes the legal, valid and binding obligation of FPLE,
enforceable against FPLE in accordance with its terms.
9. Neither the execution and delivery of the FPLE Guaranty, nor the
consummation of the transactions therein contemplated, nor compliance
with the provisions thereof, (a) violates any provision of the
certificate of incorporation or bylaws of FPLE, or (b) violates the
Delaware General Corporation Law (the "DGCL") or any New York or
federal law or, to the best of our knowledge, any order, writ,
injunction or decree of any court or governmental instrumentality of
the State of New York or the United States of America binding on FPLE.
10. To our actual knowledge, other than the filings or approvals set forth
in Schedule II of the Agreement, no Governmental Approval is necessary
in connection with the execution and delivery of any of the Transaction
Documents to be executed by ESI BH, or for the consummation of the
transfer of the Purchased Interests.
11. To our actual knowledge, other than as set forth in Schedule II of the
Agreement, no filing, registration, qualification, notice, consent,
approval or authorization to, with or from any Person (excluding any
Governmental Authority) is necessary in connection with the execution
and delivery of any of the Transaction Documents to be executed by ESI
BH, or for the consummation of the transfer of the Purchased Interests.
12. To our actual knowledge, other than as set forth in Schedule II of the
Agreement, (i) there are no actions, suits, arbitrations,
administrative or other proceedings at law or in equity, by or before
any Governmental Authority now pending or threatened against or
affecting ESI BH or any property, assets or rights of ESI BH which, if
determined adversely to ESI BH, could reasonably be expected,
individually or in the aggregate, to have a material adverse effect on
its ability to perform its obligations under the Transaction Documents
to which it is a party, and (ii) ESI BH is not subject to any judgment,
order or decree entered in any lawsuit or proceeding which could have a
material adverse effect on its ability to perform its obligations under
the Transaction Documents to which it is a party.
For purposes of the foregoing, no opinions need be expressed as to any
statute, rule or regulation relating to (A) environmental or permitting matters,
including, without limitation, pollution, protection of the environment or any
hazardous substances, (B) labor, employee rights and benefits, and worker or
occupational safety and health, including ERISA, (C) taxation, (D) planning,
zoning, land use, building or construction matters, and (E) the ownership,
transfer, use, sale or subdivision of real property; (ii) any statute, rule or
regulation the violation of which would not have a material adverse effect on
ESI BH; (iii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, or any regulation promulgated thereunder; (iv) utility regulatory
matters, including, without limitation, any matters with respect to the Public
Utility
2
Holding Company Act of 1935, as amended, the Natural Gas Act (15 U.S.C.
ss.717 et seq.), as amended, the Public Utility Regulatory Policies Act of 1970,
as amended, the Federal Power Act, as amended, and Federal Energy Regulatory
Commission rules, regulations and orders; (v) any forum selection provision or
consent to jurisdiction provision (both as to personal jurisdiction and subject
matter jurisdiction) in any Transaction Document; (vi) patent, trademark or
copyright statutes, rules or regulations; (vii) any choice of law provision in
any Transaction Document; (viii) any state or federal securities laws, (xi) any
right in or title to any asset or property; and (ix) any law, rule, regulation,
ordinance, code or similar provision of law of any county, municipality, or
similar political subdivision or any agency or instrumentality thereof.
3
EXHIBIT VII-B
FORM OF OPINION OF COUNSEL TO TPC XXXXX
The Agreement provides that the obligations of the Purchasers are
subject to satisfaction of certain conditions, including receipt on the closing
date of opinions to the effect set forth below (capitalized terms have the same
meanings as in the Agreement):
1. TPC Xxxxx is a corporation validly existing and in good standing
under the laws of the State of Delaware.
2. TPC Xxxxx has corporate power and authority to execute, deliver and
perform the Agreement. The Agreement has been duly authorized, executed and
delivered by TPC Xxxxx and constitutes the legal, valid and binding obligation
of TPC Xxxxx, enforceable against TPC Xxxxx in accordance with its terms.
3. The execution, delivery and performance by TPC Xxxxx of the
Agreement does not violate TPC Xxxxx'x certificate of incorporation or bylaws
or, to our knowledge (i) does not violate or constitute a breach of or default
under any material written agreement by which TPC Xxxxx is now bound or to which
it is now a party, or (ii) does violate any order, writ, injunction or decree of
any court or governmental authority against TPC Xxxxx or by which any of its
properties is bound.
4. To our knowledge, other than as set forth in Schedule II of the
Agreement, there are no legal or governmental actions, suits, proceedings,
inquiries or investigations pending or threatened against TPC Xxxxx or its
property which, if determined adversely to TPC Xxxxx, would, individually or in
the aggregate, have a material adverse effect on the financial position or
results of operations of TPC Xxxxx or the enforceability of the Agreement.
5. To our knowledge, other than as set forth on Schedule II to the
Agreement and except where the lack of such consent or approval would not have a
material adverse effect on TPC Xxxxx'x performance under the Agreement, the
execution, delivery and performance by TPC Xxxxx of the Agreement does not
require the consent or approval of any Person (excluding any governmental
authority or agency).
6. To our knowledge, other than the filings or approvals set forth in
Schedule II of the Agreement and except where the lack of such consent,
approval, notice or registration would not have a material adverse effect on TPC
Xxxxx'x performance under the Agreement, the execution, delivery and performance
by TPC Xxxxx of the Agreement do not require the consent or approval of, the
giving of notice to or the registration with, any governmental authority or
agency of the State of New York or the United States of America.
Certain Assumptions
With your permission we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all
documents submitted to us as copies; (c) the truth, accuracy, and completeness
of the information, representations, and warranties contained in the records,
documents, instruments, and certificates we have reviewed; (d) except as
specifically covered in the opinions set forth above, the due authorization,
execution, and delivery on behalf of the respective parties thereto of documents
referred to herein and the legal, valid, and binding effect thereof on such
parties; (e) the absence of any evidence extrinsic to the provisions of the
written agreement(s) between the parties that the parties intended a meaning
contrary to that expressed by those provisions.
Certain Limitations and Qualifications
Whenever a statement herein is qualified by the phrases "known
to us" or "to our knowledge," or similar phrases, it is intended to indicate
that, during the course of our representation of TPC Xxxxx in this transaction,
no information that would give us current actual knowledge of the inaccuracy of
such statement has come to the attention of those attorneys presently in this
firm who have rendered legal services in connection with the representation
described in the introductory paragraph of this opinion letter. However, we have
not undertaken any independent investigation or review to determine the accuracy
of any such statement, and any limited inquiry undertaken by us during the
preparation of this opinion letter should not be regarded as such an
investigation or review; no inference as to our knowledge of any matters bearing
on the accuracy of any such statement should be drawn from the fact of our
representation of TPC Xxxxx.
We express no opinion as to matters of law in jurisdictions
other than the State of New York and the United States.
2
EXHIBIT VII-C
FORM OF OPINION OF NEVADA COUNSEL TO SELLERS/BPP
The Agreement provides that the obligations of the Purchasers are
subject to satisfaction of certain conditions, including receipt on the closing
date of opinions to the effect set forth below (capitalized terms have the same
meanings as in the Agreement):
1. That the relevant parties are duly organized, validly existing and
in good standing under the laws of the State of Nevada [or, if not organized in
Nevada, are organized, validly existing and in good standing under the laws of
the state of their organization and are qualified to do business in the State of
Nevada or exempt from the requirements to qualify]. This should include that the
partnership(s) involved are duly formed and that all partnership
shares/interests are duly and validly issued (and including any
parent/subsidiary GPs/LPs).
2. That each of the relevant parties (i) has all requisite power and
authority to execute and deliver each Lease Structure Collapse Document to which
it is a party and to consummate the transactions and perform its obligations
thereunder, and (ii) has taken all necessary action to authorize the execution,
delivery and performance of each the other Lease Structure Collapse Documents to
which it is a party and to consummate and give effect to the transactions
contemplated to be performed on its part under the Lease Structure Collapse
Documents.
3. Each Lease Structure Collapse Document has been duly executed and
delivered by the relevant parties, as applicable, and constitutes the legal,
valid and binding obligation of each of the relevant parties, as the case may
be, enforceable against the relevant parties, as applicable, in accordance with
its respective terms.
4. Neither the execution and delivery of the Lease Structure Collapse
Documents by the relevant parties, nor the consummation of the transactions
contemplated thereunder, or the compliance with or performance of the terms and
conditions therein, will (a) violate or contravene the organizational articles
[articles of incorporation, articles of organization, etc.] or bylaws or
operating agreement of the relevant parties; (b) to counsel's knowledge, result
in a breach or violation of, or a material default (with due notice or lapse of
time or both) under, any indenture, evidence of indebtedness, loan or financing
agreement, or other agreement or instrument of whatever nature to which they, or
either of them, are a party or by which they, or either of them, are bound; or
(c) violate any provision of any existing law, rule and regulation, or, to
counsel's knowledge, any order, writ, injunction or decree of any court or
governmental authority to which they, or either of them, are subject where such
breach could reasonably be expected to result in a material adverse event.
5. No consent of or notices to any party and no consent, approval,
consent order or designation, permit, license, registration, declaration with or
filing (other than for recordation purposes) or action by any governmental
authority is required to be made in connection with the valid execution,
delivery or performance of, and compliance with, the Lease Structure Collapse
Documents.
6. The documents terminating the UCC financing statements are each in
appropriate form for recordation and/or filing in the official records of the
County Recorder of ____ County, Nevada ("Recorder's Office") and the Office of
the Secretary of State for the State of Nevada ("Filing Office"). Proper
recording or filing and indexing of the documents terminating the UCC Financing
Statements in the Recorder's Office and in the Filing Office will terminate the
security interest in the collateral described in each of the financing
statements (the "Collateral"). The Recorder's Office and the Filing Office are
the only offices in the State of Nevada in which the documents terminating the
Financing Statements are required to be filed in order to terminate the security
interest in the Collateral.
7. The Deed of Reconveyance is in proper form for recording, has been
fully executed and delivered and will, when recorded in the Recorder's Office,
create a valid and legally binding conveyance of ownership of the property
described therein. No other filing or other registration of any document or
instrument is necessary or advisable to convey ownership of the property so
described.
8. The Memoranda of Termination of the sublease and sub-sublease are in
proper form for recording, has been fully executed and delivered and will, when
recorded in the Recorder's Office, memorialize a valid and legally binding
termination of the leases described therein. No other filing, other registration
or execution of any document or instrument is necessary or advisable to
terminate the leases so described.
10. No state or local recording tax, transfer tax, stamp tax or other
similar fee, tax or governmental charge, including, without limitation, sales
tax, is required to be paid to the State of Nevada or any political subdivision
thereof in connection with the execution, delivery, filing or recording of the
Lease Structure Collapse Documents, other than the statutory filing and
recording fees that are to be paid upon filing and recording, as applicable, the
documents terminating any UCC Financing Statements, Deed of Reconveyance or
Memoranda of Termination of Leases.
2
EXHIBIT VIII
FORM OF OPINION OF COUNSEL TO PURCHASERS/ORMAT TECHNOLOGIES
The Agreement provides that the obligations of the Sellers are subject
to satisfaction of certain conditions, including receipt on the closing date of
opinions to the effect set forth below (capitalized terms have the same meanings
as in the Agreement):
(1) Each Purchaser is a limited liability company, validly existing and
in good standing under the laws of the State of Delaware.
(2) Ormat Technologies is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
(3) Each Purchaser has the requisite limited liability company power
and authority to execute and deliver the Sale and Purchase Agreement, to perform
its obligations thereunder, and to consummate the transactions contemplated
thereby.
(4) Ormat Technologies has the requisite corporate power and authority
to execute and deliver the Ormat Technologies Guaranty, to perform its
obligations thereunder, and to consummate the transactions contemplated thereby.
(5) The execution, delivery and performance of the Sale and Purchase
Agreement and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary limited liability company action on the
part of each Purchaser.
(6) The Sale and Purchase Agreement has been duly executed and
delivered by each Purchaser and constitutes the legal, valid and binding
obligation of each Purchaser, enforceable against such Purchaser in accordance
with its terms.
(7) The execution, delivery and performance of the Ormat Technologies
Guaranty and the consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of Ormat
Technologies.
(8) The Ormat Technologies Guaranty has been duly executed and
delivered by Ormat Technologies and constitutes the legal, valid and binding
obligation of Ormat Technologies, enforceable against Ormat Technologies in
accordance with its terms.
(9) Neither the execution and delivery of the Sale and Purchase
Agreement by each Purchaser, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof, (a) violates any
provision of the certificate of formation or limited liability company agreement
of such Purchaser, or (b) violates the Delaware Limited Liability Company Act
(the "DLLCA") or any New York or federal law or, to the best of our knowledge,
any order, writ, injunction or decree of any court or governmental
instrumentality of the State of New York or the United States of America binding
on such Purchaser.
(10) Neither the execution and delivery of the Ormat Technologies
Guaranty, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof, (a) violates any provision of the
certificate of incorporation or bylaws of Ormat Technologies, or (b) violates
the Delaware General Corporation Law (the "DGCL") or any New York or federal law
or, to the best of our knowledge, any order, writ, injunction or decree of any
court or governmental instrumentality of the State of New York or the United
States of America binding on Ormat Technologies.
(11) No authorization, consent, waiver, approval or other action or
consideration by, and no notice to or filing with any governmental or regulatory
authority, body or instrumentality under New York or federal laws or the DLLCA
or the DGCL is required for the due execution and delivery by the Ormat Entities
of the Transaction Documents to which each such entity is party or the
performance by the Ormat Entities of their respective obligations under such
Transaction Documents.
Our opinions set forth above are subject to the following
qualifications and limitations:
(a) In rendering our opinions contained in paragraphs 9 and 10 above,
we have not made any investigations of, and express no opinion concerning, laws,
rules and regulations of the State of New York relating to health, safety, the
environment, environmental contamination, land use or construction and all laws
rules and regulations promulgated by political subdivisions of the State of New
York.
(b) Our opinions contained in paragraphs 6 and 8 above with respect to
the enforceability of the Transaction Documents are subject to the following
qualifications:
(i) the enforceability of the Transaction Documents may be limited
by the effect of bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws relating to or
affecting the rights of creditors generally, including,
without limitation, laws relating to fraudulent transfers or
conveyances, preferences and equitable subordination;
(ii) the enforceability of the Transaction Documents may be limited
by statutory requirements with respect to good faith, fair
dealing and commercial reasonableness, by general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and by the effect of judicial
decisions that have held that certain provisions are
unenforceable where their enforcement would violate the
implied covenant of good faith and fair dealing, or would be
commercially unreasonable or where a default is not material;
(iii) certain remedial provisions of the Transaction Documents are
or may be unenforceable in whole or in part under the laws of
the State of New York, but the inclusion of such provisions
does not make the remedies afforded by the Transaction
Documents inadequate for the practical realization of the
rights and remedies afforded thereby; and
2
(iv) the availability of equitable remedies, including without
limitation specific performance and injunctive relief, is
subject to the discretion of the court before which any
proceedings therefore may be brought.
(c) In giving the opinions set forth in paragraphs 6 and 8 above, we
express no opinion as to:
(i) the enforceability of any provisions contained in the
Transaction Documents that purport to establish (or may be
construed to establish) evidentiary standards;
(ii) the enforceability of forum selection clauses in federal
courts;
(iii) the legality, validity, binding effect or enforceability of
any provision of the Transaction Documents insofar as it
provides for the payment or reimbursement of costs and
expenses or indemnification for claims, losses or liabilities
in excess of a reasonable amount determined by any court or
other tribunal;
(iv) the enforceability under certain circumstances of any
provision indemnifying a party against liability for its own
wrongful or negligent acts;
(v) the effect of the compliance or noncompliance of any Seller
with any state or federal laws or regulations (including,
without limitation, any unpublished order, decree, or
directive issued by any governmental authority) applicable to
such Seller because of its legal or regulatory status, the
nature of its business, or its authority to conduct business
in any jurisdiction;
(vi) the enforceability of any provision of any Transaction
Document that provides that the assertion or employment of any
right or remedy shall not prevent the concurrent assertion or
employment of any other right or remedy, or that each and
every remedy shall be cumulative and in addition to every
other remedy or that any delay or omission to exercise any
right or remedy shall not impair any other right or remedy or
constitute a waiver thereof; and
(vii) the enforceability of any provisions providing for
indemnification or contribution to the extent such
indemnification or contribution violates the Securities Act,
the Exchange Act or the securities laws of any state or is
against public policy.
(d) When in this opinion we have used the phrase "to the best of our
knowledge," "known to us," or similar phrases, we have not made any independent
investigation of the relevant facts for purposes of this opinion, but we have
relied on the representations and warranties and other statements as to certain
facts contained in the Examined Documents and in
3
certificates of public officials, and the principal attorneys involved in the
review of the Transaction Documents are not aware of any facts inconsistent
therewith.
(e) We do not express any opinion with respect to the law of any
jurisdiction other than the federal laws of the United States, the laws of the
State of New York, the DGCL, and the DLLCA.
The opinion is being furnished to the addressees hereof and is
intended solely for the benefit of the addressees hereof in connection with the
Transaction Documents. This opinion may be relied on solely as of the date
hereof and we undertake no obligation to update or supplement this opinion after
the date hereof for the benefit of the addressees or any other person. No person
or entity other than the addressees hereof is entitled to rely on this opinion.
This opinion may not be used, circulated, quoted or otherwise referred to for
any other purpose without our prior written consent.
4
SCHEDULE I
Purchased Interests
------------------------------------ ------------------------------------------
SELLER INTEREST
------ --------
------------------------------------ ------------------------------------------
ESI BH General Partnership Interest of 50%
------------------------------------ ------------------------------------------
TPC Xxxxx General Partnership Interest of 50%
------------------------------------ ------------------------------------------
SCHEDULE II
SELLER DISCLOSURE SCHEDULE
Capitalized terms used in this Sellers Disclosure Schedule and not
otherwise defined shall have the same meanings when used herein as in the Sale
and Purchase Agreement to which this Schedule is attached.
Section 3.1(c): ESI BH Consents.
1. The right of Sierra to consent to the transfer of the Purchased
Interests to Purchasers pursuant to Section 26 of the PPA and the related Sierra
ROFR.
2. The WSGC Rights arising pursuant to the Facility Operating Lease.
3. The transfer of the Purchased Interest of ESI BH is subject to any
limitations or any rights or obligations related thereto that may be imposed
directly or indirectly on ESI BH pursuant to (i) that certain Agreement Relating
to Transfer of Partneship Interest, dated May 9, 1995, between TPC Xxxxx and ESI
Energy, Inc. (now known as ESI Energy, LLC), (ii) that certain Option and Put
Agreement, dated May 9, 1995, between such parties, and (iii) that certain
Pledge and Security Agreement, dated May 9, 1995, between such parties
(collectively, the "TPC Xxxxx Acquisition Agreements"), which TPC Xxxxx
Acquisition Agreements will be terminated by the parties thereto at Closing.
4. Consent of TPC Xxxxx to the transfer of ESI BH's partnership
interest, pursuant to that certain Xxxxx Power Partners First Amended and
Restated Agreement of General Partnership dated February 20, 1995, as amended by
Amendment No. 1 to Xxxxx Power Partners First Amended and Restated Agreement of
General Partnership dated March 20, 1995 by and between ESI BH and TPC Xxxxx.
5. Consents under any of the documents to be terminated pursuant to the
BPP Restructuring prior to Closing.
6. Consent under Grant of Easement Agreement dated March 27, 1998, from
Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx to BPP, recorded as
document number 312853 in the Official Records of Xxxxxxxxxx County, Nevada.
Section 3.1(d): ESI BH/BPP Government Approvals; Filings.
The transactions contemplated by the Agreement will require
post-Closing notice filings or additional applications to the following
governmental agencies by BPP or Ormat:
1. Nevada Division of Minerals.
2. Nevada Division of Environmental Protection Bureau of Air Quality.
Note that Permit AP4911-0229 will expire on May 3, 2001. If the Closing has not
occurred, a renewal application must be filed not less than 30-days before May
3, 2001.
3. Nevada Division of Environmental Protection Bureau of Waste
Management.
4. Nevada Division of Environmental Protection Bureau of Water
Pollution Control.
5. Nevada Division of Industrial Relations.
6. Nevada Division of Water Resources, State Engineer.
7. Nevada Division of Wildlife (Industrial Pond Permit).
8. Bureau of Land Management ("BLM").
9. Nevada State Fire Marshal.
10. Xxxxxxxxx County (business license (should be acquired before
Closing and Special Use Permit).
11. Nevada Department of Transportation.
12. Army Corps of Engineers.
13. Notice of self-certification under the Public Utility Regulatory
Policies Act of 1978 and the related implementing regulations to be filed by BPP
to reflect the transfer of the Purchased Interests to Purchasers.
14. UCC-3 Termination Statement to be filed at Closing by ESI Energy,
LLC (as successor to ESI Energy, Inc.) with the California Secretary of State
with respect to security interest granted by TPC Xxxxx in favor of ESI BH
pursuant to the Pledge and Security Agreement, dated May 9, 1995, by TPC Xxxxx
in favor of ESI Energy, Inc.
Section 3.1(e): Liens; Voting Agreements, outstanding rights relating to
Purchased Interests.
1. The rights and obligations described in items 1, 2, 3 and 4 of
Section 3.1(c) hereof.
2. The rights and obligations of each partner pursuant to the Xxxxx
Power Partners First Amended and Restated Agreement of General Partnership dated
February 20, 1995, as amended by Amendment No. 1 to Xxxxx Power Partners First
Amended and Restated Agreement of General Partnership dated March 20, 1995 by
and between ESI BH and TPC Xxxxx.
Section 3.1(f): Litigation; Orders.
1. Sierra Pacific Power Corporation x. Xxxxx Power Partners, Supreme
Court of Nevada, Case No. 36480, on appeal from Xxxxx Power Partners v. Sierra
Pacific Power Corporation, Third Judicial District for State of Nevada,
Xxxxxxxxx County, Case No. 24846, Dept. No. 2.
2
2. Gilroy Foods, Inc. and United Specialty Food Ingredients Company x.
Xxxxx Power Partners, ESI BH Limited Partnership, TPC Xxxxx, Inc., ESI Xxxxx,
Inc., and Oxbow Power Services, Inc., XX-X-00-00000-XXX, X.X. XXX Xxxxxxxx
Xxxxxxxx xx Xxxxxx.
3. On January 12, 2001, BPP received a letter from United States
Department of the Interior Minerals Management Service advising of lease audits
for fiscal year 2002.
4. Letter dated October 22, 1999 from United States Department of the
Interior Minerals Management Service regarding (i) Payment of Royalties on Hot
Water Transferred to Onion Plant; (ii) Captial Investments; (iii) Submission of
Forms MMS-2014; (iv) Analysis of Rent and Minimum Royalty; (v) Operations &
Maintenance (O&M) Expenses; and a Miscellaneous Questions List.
Section 3.1(i): Laws and Orders.
1. On January 12, 2001, BPP received a letter from United States
Department of the Interior Minerals Management Service advising of lease audits
for fiscal year 2002.
2. Letter dated October 22, 1999 from United States Department of the
Interior Minerals Management Service regarding (i) Payment of Royalties on Hot
Water Transferred to Onion Plant; (ii) Captial Investments; (iii) Submission of
Forms MMS-2014; (iv) Analysis of Rent and Minimum Royalty; (v) Operations &
Maintenance (O&M) Expenses; and a Miscellaneous Questions List.
Section 3.1(k): Certain Changes.
1. Any and all transactions related to the BPP Restructuring.
2. Any negotiations with Sierra relating to, and entry into, the Sierra
Settlement.
3. Accounts payable incurred in the ordinary course of business and
other obligations arising under the provisions of any existing Contract incurred
in the ordinary course of business.
4. Distributions of cash to ESI BH or TPC Xxxxx made prior to Closing.
Section 3.1(m): Real Property.
1. Each of the following United States Bureau of Land Management
("BLM") leases: N-10922, N-40353, N-40355, N-46566, N-62739, N-62741, N-65558,
N-65561.
2. Geothermal Lease SPL-6282 dated October 10, 1984, as amended,
between the Southern Pacific Land Company and Xxxxxx Geothermal, assigned to BPP
pursuant to a Consent to Assignments and Sublease of Santa Fe Geothermal Lease,
dated as of June 30, 1992 between BPP and The Xxxxxxxx, Topeka & Santa Fe
Railway Company (later acquired by the Burlington Northern Santa Fe Railway
Company by merger).
3
3. All royalty payments due with respect to the BLM Leases referred to
in item 1 of this Section 3.1(m) may not have been timely paid. On January 12,
2001, BPP received a letter from United States Department of the Interior
Minerals Management Service advising of lease audits for fiscal year 2002.
Section 3.1(n): Tangible Personal Property.
XXXXX UNIT 1 VEHICLES
--------------------------------------------------------------------------
EQNO Description Make/Model
==========================================================================
VEH-1 Wagon, 1993 Jeep
VEH-2 Pickup, 4X4 Dodge Dakota
VEH-3 Pickup,2X Dodge Dakota
VEH-4 Truck, Maintenance 1 Ton Dodge
VEH-5 Truck, Boom 5000 Ford
VEH-6 Bobcat Bobcat
-
----------------------------------------------------
XXXXX XXXX 0 POWER TOOLS
-----------------------------------------------------
Description Brand
-----------------------------------------------------
Welder (shop) Xxxxxx
Cutrring torch set
Hydraulic Xxxxxx Xxxxxxxx
Drill Press JET
Hydraulic press NORCO
Bench Grinder Baldor
Bench Grinder Baldor
Battery Charger Associated
ped mount tubing threader GIDGID
Band saw HH Milwalkee
Rotary Hammer Milwalkee
Sawzall Milwalkee
Tubing Threader RIDGID
Grinder 4 inch Milwalkee
Grinder 8 inch Milwalkee
Electric Drill
Skill saw
Chop saw
Electric impact wrench
Generator
Pump
Pump
Floor Buffer
Oil pump electric
4
XXXXX UNIT 1 EQUIPMENT LIST
---------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
---------------------------------------------------------------------------------------------------------------------------------
52a-Breaker Breaker, 00x Xxxx XXX Xxxx VPC-W Westinghouse EL
52a-Transformer Transformer, Main Substation S# E-76130192 Delta Star EL
120kv/15kv
52b-Breaker Breaker, 00x XXX Xxxx XXX-X Xxxxxxxxxxxx XX
Xxxxxxxxxxx X
52b-Transformer Transformer, 15kv/5kv 1112206B 11W Xxxxxx Substation 1112206B 11W Xxxxxx Power Systems
EL 12.470KV-4.160KV,2000 KVA,
TAP Position C
52c-Breaker Breaker, 52c MCC Bldg VPC-W Westinghouse EL
Transformer C
52c-Transformer Transformer, 15kv/480v 1112206B 12W Xxxxxx Substation 1112206B 12W Xxxxxx Power Systems EL
52d-Breaker Breaker, 00x XXX Xxxx VPC-W Westinghouse EL
Transformer D
52d-Transformer Transformer, 15kv/480v 1112206B 12W Xxxxxx Substation 1112206B 12W Xxxxxx Power Systems EL
52r-Breaker Breaker, 52r Reactors MCC Bldg VPC-W Westinghouse EL
52r-Reactors Reactors, EL
Aircond1 Air Conditioner, MCC TG Bldg WCC048F400AA Trane
Room
Aircond2 Air WCH090C400AA TRANE Shop WCH090C400AA Trane SP
Conditioner, Control
Room
Bld-1 Maintenance Shop
Bld-2 Office And Control
Room
Bld-3 Turbine Bay
Bld-4 MCC Room And
Transformer Yard
Bld-5 Fire Pump Xxxx.
Xxx-0 Xxxxx 0000 Xxxx
Xxx-0 Xxxx And Caustic
Xxxx.
X-0x Xxxxxxxxxx, Xxx #0 XX00-000 XXXXX Shop CAP:90 SCFM, Press:150 PSIG,
Type:Rotary Screw Driver:25 HP,
GA18-150 Atlas CopCo
X-0x Xxxxxxxxxx, Xxx #0 XX00-000 XXXXX Shop CAP:90 SCFM, Press:150 PSIG,
Type:Rotary Screw Driver:25 HP,
GA18-150 Atlas CopCo
X-0x Xxxxxxxxxx, Xxx #0 XX00-000 XXXXX Shop CAP:90 SCFM, Press:150 PSIG,
Type:Rotary Screw Driver:25 HP,
GA18-150 Atlas CopCo
Cr1bridge Crane Crane, Bridge TG Building 8 TON AMERCIAN Equipment
5
XXXXX UNIT 1 EQUIPMENT LIST
--------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
--------------------------------------------------------------------------------------------------------------------------------
Ct-1 Cooling Tower 035CFF ECODYNE Cooling Tower CIRC:28,000 GPM, Type: Counter Flow,
Mat: Trreated Firsize:54 X 54 X 2
Cells, Fan: Diameter 36 FT Driver:200
HP each Electric 1800/900 RPM 035CFF
Custodis-Ecodyne Inc.
Ct-1a-Gearbox Gearbox, Cta 1712 AMARILLO Cooling Tower 1712 Amarillo Gear Company GB
Cell A
Ct-1a-Motor Motor, Cooling Tower 0-000000-00 MAGNETEC Cooling Tower 0-000000-00 S# BK1-80327 Magneteck
Fan #1 Cell A Lous Allis MT 200HP
Ct-1a-Starter Westinghouse Type J #5 WESTINGH MCC Building Westinghouse #5
Starter
Ct-1b-Gearbox Gearbox, Ctb 1712 AMARILLO Cooling Tower 1712 Amarillo Gear Company GB
Cell B
Ct-1b-Motor Motor, Cooling Tower 0-000000-00 MAGNETEC Cooling Tower 0-000000-00 S# BK1-80328 Magneteck
Fan #2 Cell B Lous Allis MT 200HP
Ct-1b-Starter Westinghouse Type J #5 WESTINGH MCC Building Westinghouse #5
Starter
Ct-1c-Gearbox Gearbox, Ctc 1712 AMARILLO Cooling Tower 1712 Ammarillo Gear Company GB
Cell C
Ct-1c-Motor Motor, Cooling Tower 0-000000-00 MAGNETEC Cooling Tower 0-000000-00 S# BK1-80326 Magneteck
Fan #3 Cell C Lous Allis MT 200HP
Ct-1c-Starter Westinghouse Type J #5 WESTINGH MCC Building Westinghouse #5
Starter
Dcs Distributed Control MCC Bldg INFI90 Job#154 Xxxxxx Controls IN
System
Dr-1a Dryer, Air XXXXXX XXXXXX Shop CAP:250 SCFM, DEW POINT:-40 DEG.F,
Regenerative Tank #1 PV-1098 Press:150 PSIG @150 DEG.F
TG-1-E-1 Condenser, Contact XXXXXX XX Building Duty:215.5 MMBTU/HR, SIZE: 96" DIA. X
TG-1 24' 4" Length Shell:15 PSIG/Full
Vacuum @250 DEG.F, Mat: 304L
SSTRIM:3"-SC-306-HA-N MFG:XXXXXX
XX-2-E-2 Condenser, Contact XXXXXX XX Building Duty:152.52 MMBTU/HR, Size: 96" DIA.
TG-2 X 24' 4" Length Shell:15 PSIG/Full
Vacuum @250 DEG.F, Mat: 304L
SSTRIM:3"-SC-315-HA-N MFG:XXXXXX
E-4a Intercondenser, 24MM XXXXXX Ejector Type:Direct Contact, Duty:4.943
Ejector, #1stage Platform MMBTU/HR, Circulation: 575 GPM,
SIZE:24" O.D. X 10'3" H
Mat:304L SS,
TRIM:3/4"-SC-335-HA-F 24MM Xxxxxx Mfg.
6
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
E-4b Aftercondenser, 20MM XXXXXX Ejector Type:Direct Contact, Duty:4.157
Ejector, #2stage Platform MMBTU/HR, Circulation:435 GPM,
SIZE:20" O.D. X 10' H Mat:304L SS,
TRIM:3/4"-SC-336-HA-F 20MM Xxxxxx Mfg.
Gasair Compress Compressor, Gas Air 10 F G T INGERSOL 10 F G T Xxxxxxxx-Xxxx
Gaswelder Welder, Gas Arc Trailblazer Xxxxxx
MCC-5kv Motor Control Center 00-000-000-000 SIEMANS MCC Bldg 00-000-000-000 SIEMANS Electrical EL
4160v
MCC-A Motor Control Center 0000 XXXXXXXX XXX Xxxx 2100 Westinghouse EL
480v 'A'
MCC-B Motor Control Center 0000 XXXXXXXX XXX Xxxx 2100 Westinghouse EL
480v 'B'
MCC-C Motor Control Center 0000 XXXXXXXX XXX Xxxx 2100 Westinghouse EL
480v (T-1
MCC-D Motor Control Center 0000 XXXXXXXX XXX Xxxx 2100 Westinghouse EL
480v (T-2
MCC-E Motor Control Center 0000 XXXXXXXX XXX Xxxx 2100 Westinghouse EL
480v (T-3
MCC-Tie Breaker Breaker, Tie MCC Room SIEMANS MCC Bldg SIEMANS Electrical EL
Ois-10 Operator Interface Control Room OIS 10 Xxxxxx Controls IN
System
P-7-Pump Pump, Sump 3171 GOULDS Condensate Pit CAP:200 GPM, Delta P:24 PSI,
Type:Centrifugal Specific GR:1.0
Driver:7.5 HP, 3171 GOULDS Pumps
P-10-Megator-Mo Motor For Megator GX12O GX160 HONDA
Pump
P-10-Megator-Pm Megator Pump, Type L L-100 (SYSTEM - 3) MEGATOR
And H
P-10-Trash-Pump Trash Pump WAF 1007369 HONDA
P-11-Pump Pump, Cooling Tower PH241 XXXX PMP Condensate Pit CAP:600 GPM, TDH:20 PSI,
Blowdown Ct Type:Centrifugal, Specific
GR:0.992, Driver:10 HP
PH241 XXXX Pumps
P-11-Motor Motor, Ct Blowdown US MOTOR Condensate Pit HP:10 657073/V03U0410334R-1 US MOTORS
Pump
P-12-Pump Pump, Fire Water MI XXXXXXXXX XXXXXXXX Fire Pump CAP:1500 GPM, TEST CAP:2250 GPM,
(Diesel) Building TDH:120 PSI DP, Type:Horizontal
Centrifugal, Specific GR:1.0,
Driver:182 HP DIESEL MI Xxxxxxxxx
7
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-13-Pump Pump,Fire Water MABS PATTERSO Fire Pump CAP:1500 GPM, TEST CAP:2250 GPM,
(Electric) XXXXXXXXX Building TDH:120 PSI DP, Type:Horizontal
Centrifugal, Specific GR:1.0,
Driver:150 Electrical MABS XXXXXXXXX
P-14-Pump Pump,Fire Water CR4-80U GRUNDFOS Fire Pump CAP:20 GPM, TDH:120 PSI DP, Specific
Jockey Building GR:1.0, Type:Horizontal Centrifugal,
Driver:3HP Electrical CR4-80U
GRUNDFOS Pumps
P-16-Pump Pump,Utility Water CR2-40U GRUNDFOS Fire Pump CAP:10 GPM, Delta P:60 PSI,
Building Type:Vertical Centrifugal Specific
GR:1.0, Driver:1 HP CR2-40U GRUNDFOS
Pumps
P-17-Pump Pump,Wetdown 80S50-5 GRUNDFOS Cooling Tower CAP:100 GPM, Delta P:61 PSI, Mat:316
Area SS Type:Submersible Centrifugal,
Specific GR:1.0 Driver:5 HP 3600 RPM
80S50-5 GRUNDFOS Pumps
X-00-Xxxx Xxxx, Xxxx Xxxxx Xxxx Xxxxx 0XX00-0 S.N. 43156 CORNELL
Dewatering
P-1a-Pump Pump, Condensate 27FKH XXXXXXX XX Building CAP:7758 GPM, Delta P:45 PSI,
Specific GR:0.992 Type:Vertical
Turbine, Material:316 SS,
Driver:250HP @1200 RPM,
27FKH PEABODY FLOWAY
P-1a-Motor Motor, Condensate 651790 US MOTOR Condensate Pit HP:250, RPM:1200
250hp PN:651790/V01U212661R-1
P-1b-Pump Pump, Condensate 27FKH XXXXXXX XX Building CAP:7758 GPM, Delta P:45 PSI,
Specific GR:0.992 Type:Vertical
Turbine, Material:316 SS,
Driver:250HP @1200 RPM,
27FKH PEABODY FLOWAY
P-1b-Motor Motor, Condensate 651790 US MOTOR Condensate Pit HP:250, RPM:1200
250hp PN:651790/V01U212661R-1
P-2a-Pump Pump, Condensate 22BKH XXXXXXX XX Building 22BKH PEABODY FLOWAY PP
P-2a-Motor Motor, Condensate US MOTOR Condensate Pit 651792/V01U21205668R-4 US MOTORS MT
200hp
P-2b-Pump Pump, Condensate 22KBH XXXXXXX XX Building 22BKH PEABODY FLOWAY PP
P-2b-Motor Motor, Condensate US MOTOR Condensate Pit 651792/V01U21205668R-2 US MOTORS MT
200hp
P-3a-Pump Pump, Condensate TG Building 22BKH PEABODY FLOWAY PP
P-3a-Motor Motor, Condensate Condensate Pit 651792/V01U21205668R-3 US MOTORS MT
200hp
P-3b-Pump Pump, Condensate TG Building 22BKH PEABODY FLOWAY PP
P-3b-Motor Motor, Condensate Condensate Pit 651792/V01U21205668R-1 US MOTORS MT
200hp
8
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-49a-Pump Pump, Metering Chem XXXXXX R Chemical Bldg CAP:2.8 GPH, Delta P:1100 PSI,
Brine Inlet Material:316 SS Driver: 1/4HP 1750 RPM
P-49b-Pump Pump, Metering Chem XXXXXX R Chemical Bldg CAP:2.8 GPH, Delta P:1100 PSI,
Brine Inlet Material:316 SS Driver: 1/4HP 1750 RPM
P-50a-Motor Motor, Injection Seal Water HP:3,
Seal Water 3/4 Inj Pump
P-50a-Pump Pump, Injection Seal Seal Water CAP:4.5 GPM, TDH:157 PSI, Driver:3
Water 'A' Inj Pump HP, Type: Centrifugal, Specific
GR:0.992 142 MTH PUMP CO. PP
P-50b-Motor Motor, Injection HP:3
Seal Water 3/4
P-50b-Pump Pump, Injection Seal Injection Pump CAP:4.5 GPM, TDH:157 PSI, Driver:3
Water 'B' HP, Type: Centrifugal, Specific
GR:0.992 142 MTH PUMP CO. PP
P-71-Pump Pump, Lube Oil 4323-P TEXSTEAM North Well CAP:12 GPD, XXX.Xxxxx:500 PSIG,
(82a-11) Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
Tk-41 Tank, Lube Oil 3751K14 North Well CAP:55 GAL, Material: Polyethlene
(82a-11) Field 3751K14 XXXXXXXX-XXXX
P-51-Motor Motor,600hp (82a-11) GE North Well HP:600,
Field RPM:1780
Reduced Voltage STARTING
Auto-Transformer Type
General Electric
P-51-Multilen Relay,Motor 269 MULTILIN North Well
Management Field
P-51-Pump Pump,Well (82a-11) 10X12EHHC GOULDS North Well CAP:1190 GPM @1486 FT TDH,
Field XXX.Xxxxx:194 PSIG Driver:
600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-81 Cooler,Seal Water 3515K12 HAYDEN North Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(82a-11) Field Delta P:5.0 PSI
3515K12 HAYDEN
P-61a-Motor Motor,Seal Water North Well HP:1, RPM:3600
(82a-11) Field
P-61a-Pump Pump,Seal Water 051C MTH North Well CAP:5.6 GPM, Delta P:108 PSIG,
(82a-11) Field Driver:1HP 3600RPM
051C MTH Pumps
Xx-00 Xxxx,Xxxx Xxxxx 0000X00 Xxxxx Xxxx CAP:55 GAL, Material: Polyethlene
(82a-11) Field 3751K14 XXXXXXXX-XXXX
9
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
MCC-Aa Switchgear, 5kv VPC-W WESTINGH North Well VPC-W 1200 SERIES Westinghouse EL
(82a-11) Field
Aa-Substation Transformer, 00952V13K15S Xxxxxx North Well 00952V13K15S Xxxxxx Power Systems
15kv/5kv (82a-11) Field
P-72-Pump Pump, Lube Oil 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, XXX.Xxxxx:500 PSIG,
(48a-1) Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
P-52-Motor Motor,600hp (48a-1) GE South Well HP:600, RPM:1780
Field Reduced Voltage STARTING
Auto-Transformer Type
General Electric
P-52-Multilen Relay,Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
P-52-Pump Pump,Well (48a-1) 10X12EHHC GOULDS South Well CAP:1760GPM@917 FT TDH, Dis.
Field Press:182 PSIG Driver: 600HP/1780RPM
Reduced Voltage Starting
Auto-Transformer Type
10X12EHHC GOULDS
E-12 Cooler,Seal Water 3525K12 HAYDEN South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (48a-1) Field P:10.45 PSI
3525K12 HAYDEN
P-62b-Motor Motor,Seal Water South Well HP:1, RPM:3600
(48a-1) Field
P-62b-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(48a-1) Field Driver:1HP 3600RPM
051C MTH Pumps
Xx-00 Xxxx, Xxxx Xxxxx 0000X00 Xxxxx Xxxx CAP:55 GAL, Material: Polyethlene
(48a-1) Field 3751K14 XXXXXXXX-XXXX
MCC-Bb Switchgear, 5kv VPC-W WESTINGH South Well VPC-W Westinghouse EL
(48a-1) Field
Bb-Substation Transformer, 00952V13K15S Xxxxxx South Well 00952V13K15S Xxxxxx Power Systems EL
15kv/5kv (48a-1) Field
P-73-Pump Pump,Lube Oil (27-1) 4323-P TEXSTEAM North Well CAP:12 GPD, Dis. Press:500 PSIG,
Field DR:1/2HP @1750RPM Type:Positive
Displacement Moved From 56-1 4323-P
Texsteam
P-53-Motor Motor, 700hp (27-1) GE North Well HP:700, RPM:1780
Field Reduced Voltage Starting
Auto-Transformer Type
General Electric
P-53-Multilen Relay, Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
10
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-53-Pump Pump,Well (27-1) 10X12EHHC GOULDS North Well CAP:1775 GPM @737 FT TDH,
Field XXX.Xxxxx:182 PSIG Driver:
700HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type Moved
From 56-1 10X12EHHC GOULDS
E-13 Cooler, Seal Water 3525K12 North Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (27-1) Field P:10.45 PSI moved from 56-1 3525K12
HAYDEN
P-63c-Motor Motor, Seal Water North Well HP:1, RPM:3600
(27-1) Field Moved From 56-1
P-63c-Pump Pump, Seal Water 051C MTH North Well CAP:5.6 GPM, Delta P:108 PSIG,
(27-1) Field Driver:1HP 3600RPM moved from 56-1
051C MTH Pumps
Tk-33 Tank, Seal Water 3751K14 North Well CAP:55 GAL, Material: Polyethlene
(27-1) Field moved from 56-1
3751K14 XXXXXXXX-XXXX
MCC-Cc Switchgear, 5kv VPC-W WESTINGH North Well VPC-W Westinghouse EL
(27-1) Field moved from 56-1
Cc-Substation Transformer, 00952V13K15S Xxxxxx North Well 00952V13K15S Xxxxxx Power Systems EL
15kv/5kv (27-1) Field moved from 56-1
P-74-Pump Pump, Lube Oil 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, XXX.Xxxxx:500 PSIG,
(56b-1) Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
Tk-44 Tank, Lube Oil 3751K14 South Well CAP:55 GAL, Material: Polyethlene
(56b-1) Field 3751K14 XXXXXXXX-XXXX
P-54-Motor Motor, 500hp (56b-1) GE South Well HP:600, RPM:1780
Field Reduced Voltage STARTING
Auto-Transformer Type
General Electric
P-54-Multilen Relay, Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
P-54-Pump Pump,Well (56b-1) 10X12EHHC GOULDS South Well CAP:1138 GPM @745 FT TDH,
Field XXX.Xxxxx:182 PSIG Driver:
600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-14 Cooler, Seal Water 3525K12 South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (56b-1) Field P:10.45 PSI
3525K12 HAYDEN
P-64d-Motor Motor, Seal Water South Well HP:1, RPM:3600
(56b-1) Field
P-64d-Pump Pump, Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(56b-1) Field Driver:1HP 3600RPM
051C MTH Pumps
11
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
Xx-00 Xxxx, Xxxx Xxxxx 0000X00 Xxxxx Xxxx CAP:55 GAL, Material: Polyethlene
(56b-1) Field 3751K14 XxXxxxxx-Xxxx
MCC-Dd Switchgear, 5kv VPC-W WESTINGH South Well VPC-W Westinghouse EL
(56b-1) Field
Dd-Substation Transformer, 00952V13K15S Xxxxxx South Well 00952V13K15S Xxxxxx Power Systems
15kv/5kv (56b-1) Field
P-75-Pump Pump, Lube Oil (46-1) 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, XXX.Xxxxx:500 PSIG,
Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
Tk-45 Tank, Lube Oil (46-1) 3751K14 South Well CAP:55 GAL, Material: Polyethlene
Field 3751K14 McMasterCarr
P-55-Motor Motor,500hp (46-1) GE South Well HP:600, RPM:1780
Field Reduced Voltage Starting
Auto-Transformer Type
General Electric
P-55-Multilen Relay,Motor 269 MULTILIN South Well
Manangement Field
P-55-Pump Pump,Well (46-1) 10X12EHHC GOULDS South Well CAP:1792 GPM @745 FT TDH,
Field XXX.Xxxxx:182 PSIG Driver:
600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-15 Cooler,Seal Water 3525K12 South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (46-1) Field P:10.45 PSI 3525K12 HAYDEN
P-65e-Motor Motor,Seal Water South Well HP:1, RPM:3600
(46-1) Field
P-65e-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(46-1) Field Driver:1HP 3600RPM 051C MTH Pumps
Xx-00 Xxxx,Xxxx Xxxxx 0000X00 Xxxxx Xxxx CAP:55 GAL, Material: Polyethlene
(46-1) Field 3751K14 XxXxxxxx-Xxxx
MCC-Ee Switchgear,5kv (46-1) South Well VPC-W Westinghouse EL
Field
Ee-Substation Transformer,15kv/5kv South Well 00952V13K15S Xxxxxx Power Systems
(46-1) Field
P-76-Pump Pump,Lube Oil (46a-1) 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, DIS. Press:500 PSIG, DR:
Field 1/2HP@1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
Tk-46 Tank,Lube Oil (46a-1) 3751K14 South Well Cap:55 Gal, Material: Polyethlene
Field 3751K14 XxXxxxxx-Xxxx
12
XXXXX UNIT 1 EQUIPMENT LIST
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Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-56-Motor Motor,500hp (46a-1) GE South Well HP:600, RPM:1780 Reduced Voltage
Field Starting Auto-Transformer Type
General Electric
P-56-Multilen Relay,Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
P-56-Pump Pump,Well (46a-1) 10X12EHHC GOULDS South Well CAP:1797 GPM @745 FT TDH,
Field XXX.Xxxxx:182 PSIG Driver:
600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-16 Cooler,Seal Water 3525K12 South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (46a-1) Field P:10.45 PSI
3525K12 HAYDEN
P-66f-Motor Motor,Seal Water South Well HP:1, RPM:3600
(46a-1) Field
P-66f-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(46a-1) Field Driver:1HP 3600RPM 051C MTH Pumps
Xx-00 Xxxx,Xxxx Xxxxx 0000X00 Xxxxx Xxxx Cap:55 Gal, Material: Polyethlene
(46a-1) Field 3751K14 XxXxxxxx-Xxxx
MCC-Ff Switchgear,5kv VPC-W WESTINGH South Well VPC-W Westinghouse EL
(46a-1) Field
Ff-Substation Transformer,15kv/5kv 00952V13K15S Xxxxxx Xxxxx Xxxx 00000X00X00X Xxxxxx Power Systems
(46a-1) Field
P-77-Pump Pump,Lube Oil (47a-1) 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, XXX.Xxxxx:500 PSIG,
Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
Tk-47 Tank,Lube Oil (47a-1) 3751K14 South Well CAP:55 GAL, Material: Polyethlene
Field 3751K14 XxXxxxxx-Xxxx
P-57-Motor Motor,500hp (47a-1) GE South Well HP:600, RPM:1780
Field Reduced Voltage Starting
Auto-Transformer Type
General Electric
P-57-Multilen Relay,Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
P-57-Pump Pump,Well (47a-1) 10X12EHHC GOULDS South Well CAP:1751 GPM @745 FT TDH,
Field XXX.Xxxxx:182 PSIG
Driver:600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-17 Cooler,Seal Water 3525K12 South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (47a-1) Field P:10.45 PSI 3525K12 HAYDEN
13
XXXXX UNIT 1 EQUIPMENT LIST
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Equipment No. Description Model No. Manufacturer Location Comments
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P-67G-Motor Motor,Seal Water South Well HP:1, RPM:3600
(47a-1) Field
P-67G-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(47a-1) Field Driver:1HP 3600RPM 051C MTH Pumps
XX-00 Xxxx,Xxxx Xxxxx 0000X00 Xxxxx Xxxx Cap:55 Gal, Material: Polyethlene
(47a-1) Field 3751K14 XxXxxxxx-Xxxx
MCC-GG Switchgear,5kv VPC-W WESTINGH South Well VPC-W Westinghouse EL
(47a-1) Field
GG-Substation Transformer,15kv/5kv South Well 00952V13K15S Xxxxxx Power Systems
(47a-1) Field
P-78-Pump Pump,Lube Oil (47c-1) 0000-X XXXXXXXX Xxxxx Xxxx CAP:12 GPD, XXX.Xxxxx:500 PSIG,
Field DR:1/2HP @1750RPM Type:Positive
Displacement 4323-P TEXSTEAM
TK-48 Tank,Lube Oil (47c-1) 3751K14 South Well Cap:55 Gal, Material: Polyethlene
Field 3751K14 XxXxxxxx-Xxxx
P-58-Motor Motor,500hp (47c-1) GE South Well HP:600, RPM:1780 Reduced Voltage
Field Starting Auto-Transformer Type
General Electric
P-58-Multilen Relay,Motor 000 XXXXXXXX Xxxxx Xxxx
Management Field
P-58-Pump Pump,Well (47c-1) 10X12EHHC GOULDS South Well CAP:1793 GPM @745 FT TDH,
Field XXX.Xxxxx:182 PSIG Driver:
600HP/1780RPM Reduced Voltage
Starting Auto-Transformer Type
10X12EHHC GOULDS
E-18 Cooler,Seal Water 3525K12 South Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid (47c-1) Field P:10.45 PSI
3525K12 HAYDEN
P-68h-Motor Motor,Seal Water South Well HP:1, RPM:3600
(47c-1) Field
P-68h-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(47c-1) Field Driver:1HP 3600RPM
051C MTH Pumps
Xx-00 Xxxx,Xxxx Xxxxx 0000X00 Xxxxx Xxxx Cap:55 Gal, Material: Polyethlene
(47c-1) Field 3751K14 XxXxxxxx-Xxxx
MCC-Hh Switchgear,5kv VPC-W WESTINGH South Well VPC-W Westinghouse EL
(47c-1) Field
Hh-Substation Transformer,15kv/5kv 00952V13K15S Xxxxxx Xxxxx Xxxx 00000X00X00X Xxxxxx Power Systems
(47c-1) Field
P-5a-Pump Pump,Auxilliary PH251 XXXX PMP Condensate Pit Cap:1860 GPM, The:25 PSI,Type:
Cooling Water Centrifugal, Specific GR: 1.0,
Driver:40 HP PH251 Xxxx Pumps
P-5a-Motor Motor,Auxillary Condensate Pit HP:40
Cooling Water
14
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-5b-Pump Pump,Auxilliary PH251 XXXX PMP Condensate Pit Cap:1860 GPM, The:25 PSI,Type:
Cooling Water Centrifugal, Specific GR: 1.0,
Driver:40 HP PH251 Xxxx Pumps
P-5b-Motor Motor,Auxillary Condensate Pit MT
Cooling Water
P-6a-Pump Pump,Injection 19FKM PEABODY Separator Area CAP:5200 GPM, Delta P:90 PSI,
Driver:350HP 1800RPM
Type:Centrifugal, Material:C.I.
Pumping Temp:Normal 240 Deg.F Max 280
DEF.F Specific GR: 0.947 19FKM
Peabody Floway
P-6a-Motor Motor,Injection 450hp US Separator Area HP:350, 652832/U1ZU2390429R-2 US MOTORS
P-6b-Pump Pump,Injection 19KFM PEABODY Separator Area CAP:5200 GPM, Delta P:90 PSI,
Driver:350HP 1800RPM
Type:Centrifugal, Material:C.I.
Pumping Temp:Normal 240 Deg.F Max 280
Def.F Specific GR:0.947
19FKM Peabody Floway
P-6b-Motor Motor,Injection 350hp US Separator Area HP:350, 652832/U1ZU2390429R-2 US MOTORS
Pl-200 Piping System (Brine Pw's To Plant GS
Supply) Inlet
Pl-500 Piping System (Brine Fv-511 To Inj GS
Injection Xxxxx
Xx-Cooling Wat Piping Syster Ct To Plant
(Cooling Water S
Pl-Domestic Wa Piping System Fire Bldg To
(Domestic Water) Control
Pl-Fire Pipe System (Fire) Fire Bldg To
Plant
Pl-Ncg Piping System (Ncg) TG Cond To
Cooling T
Pl-Plant Air Piping System (Plant Maint Bldg To
Air) Plant
S-3a-Pond Silen Silencer,Pond Brady Lake SIZE:5'6" ID X 16' H, Mat:
Area
S-3b-Pond Silen Silencer,Pond Brady Lake
Area
St-1 Strainer,Injection HVS-F XXXXXXX Injection CAP:12,300 GPM @250 DEG.F, Delta P:
System Less than 5PSI Press: 200PSI@350
Deg.F, Shell Material: A-285-C
Internal Material: 316L SS HVS-F
Xxxxxxx Steel
Etg-1breaker Breaker,Generator VPC-W WESTINGH MCC VPC-W Westinghouse EL
TG-1
15
XXXXX UNIT 1 EQUIPMENT LIST
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Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
TG-1-Gb-1 Gearbox 92857180 XXXXXX XX Building 92857180 XXXXXX
XX-1
TG-1-G-1 Generator, 911053-03 IDEAL TG Building Type:Synchronous, Rating:8889 KVA@0.9
8200kw TG-1 PF, Voltage:12.47 KV, Speed:1,800
RPM, Excitation: Brushless
TG-1-Hyd.Pump#1 Pump,Hydraulic PVB10RSY30C10 XXXXXXX XX Hydraulic PVB-10-RSY-30-C-10 Xxxxxxx
#1 TG-1 Skid
TG-1-Hyd.Tank Tank,Hydraulic Power AUTOMAX TG Building AUTOMAX TK
Pack TG-1
XX-0-Xx.Xxxx#1 Cooler #1,Lube TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision Ind.
Oil XX-0 Xxxx
XX-0-Xx.Xxxxxx Xxxxxx,Xxxx XXX-000000X00 CHROMALO XX Xxxxxxxx XXX-000000X0 Xxxxxxxxx EL
Oil XX-0
XX-0-Xx.Xxxx Xx Xxxx,Xxxxxxxxxx Xxx X0X0X-000 XXX TG Buliding C3E1C-187 IMO Industries Ind.
(Ac) XX-0
XX-0-Xx.Xxxx Xx Xxxx,Xxxxxxxxx Xxx X0X0X-000 XXX TG Building C3E1C-200 IMO Industries Inc.
(Dc) TG-1
TG-1-Lo.Pump Ma Pump,Main 3D-BC-250 IMO TG Building 3D-BC-250 IMO Industries Inc.
Oil TG-1
TG-1-Tk-1 Skid,Lube GEOTHERM TG Building Cap:715 Gal, AC/Pump:73 GPM with 10
Oil TG-1 HP Motor DC/Pump: 40 GPM with 5 HP
Motor, C.W. Rate:75 GPM Oil
Cooler:604,000 BTU/HR MFG:Geothermal Co.
Etg-1pwr.Meter Transducer,Power Turb Control WHR33U-Z RIS
TG-1 Panel
TG-1 Skid,Turbine CC-55 GEOTHERM TG Building CL-55 Geothermal Power Co.
Generator TG-1
TG-1-T-1 Turbine,Steam Low CL-55 GE TG Building Type:4 Stage Double Flow, Rating:7.85
Press TG-1 MW, Speed:4352 RPM, Steam
Rate:221,250 LB/HR, Main Oil Pump:98
GPM MFG:General Electric
TG-1-Vibration Monitor,Vibration 3300 BENTLY N TG Control 3300 BENTLY-NEVADA
TG-1 Panel
Etg-2breaker Breaker,Generator MCC Bldg VPC-W Westinghouse
TG-2
TG-2-Gb-2 Gearbox 92857180 XXXXXX XX Building 92857180 XXXXXX
XX-2
TG-2-G-2 Generator, 911053-03 IDEAL TG Building Type:Synchronous, Rating:8889 KVA
9000kw TG-2 @0.9 PF, Voltage:12.47 KV,
Speed:1,800 RPM,
Excitation:Brushless
TG-2-Hyd.Pump#1 Pump,Hydraulic PVB10RSY30C10 XXXXXXX XX Building PVB-10-RSY-30-C-10 XXXXXXX
#1 TG-2
16
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
TG-2-Hyd.Skid Skid, Hydraulic Power AUTOMAX TG Building AUTOMAX
Pack TG-2
XX-0-Xx.Xxxx#1 Cooler, Lube Oil TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision Ind.
#1 TG-2 Skid
XX-0-Xx.Xxxxxx Xxxxxx, Xxxx XXX-00000X0 CHROMALO XX Xxxxxxxx XXX-00000X0 Xxxxxxxxx EL
Oil XX-0
XX-0-Xx.Xxxx Xx Xxxx, Xxxxxxxxxx Xxx X0X0X-000 XXX TG Building C3E1C-187 IMO Industries Ind.
(Ac) TG-2
TG-2-Lo.Pump Dc Pump, Emergency Oil X0X0X-000 XXX XX Xxxxxxxx X0X0X-000 XXX Industries Inc.
(Dc) TG-2
TG-2-Lo.Pump Ma Pump, Main Oil 3D-BC-250 IMO TG Building 3D-BC-250 IMO Industries Inc.
(T-2) TG-2
TG-2-Lo.Tank Tank, Lube Oil GEOTHERM TG Building CAP:715 GAL
(T-2) TG-2
TG-2 Skid, Turbine CC-55 GEOTHERM TG Building CL-55 Geothermal Power Co.
Generator TG-2
TG-2-T-2 Turbine, Steam High CL-55 GE TG Building Type:4 Stage Double Flow, Rating:8.0
Press TG-2 MW, Speed:4352 RPM, Steam
Rate:163,904 LB/HR, Main Oil Pump:98
GPM MFG:General Electric
TG-2-Vibration Monitor, Vibration 3300 BENTLY N TG Control 3300 BENTLY-NEVADA
TG-2 Panel
Etg-3breaker Breaker, Generator MCC VPC-W Westinghouse
TG-3
TG-3-Gb-3 Gearbox 92857180 XXXXXX XX Building 92857180 XXXXXX
XX-3
TG-3-G-3 Generator, 911053-03 IDEAL TG Building Type:Synchronous, Rating:8889 KVA
9000kw TG-3 @0.9 PF, Voltage:12.47 KV,
Speed:1,800 RPM,
Excitation:Brushless
TG-3-Hyd.Pump#1 Pump, Hydraulic PVB10RSY30C10 XXXXXXX XX Hydraulic PVB-10-RSY-30-C-10 XXXXXXX
#1 TG-3 Skid
TG-3-Hyd.Skid Skid, Hydraulic Power AUTOMAX TG Building AUTOMAX
Pack TG-3
XX-0-Xx.Xxxx#1 Cooler #1, Lube TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision Ind.
Oil TG-3 Skid
TG-3-Lo.Heater Heater, Lube CC-55 GEOTHERM TG Building CL-55 Geothermal Power Co.
Oil XX-0
XX-0-Xx.Xxxx Xx Xxxx, Xxxxxxxxxx Xxx X0X0X-000 XXX TG Building C3E1C-187 IMO Industries Inc. PP
(Ac) TG-3
TG-3-Lo.Pump Dc Pump,Emergency Oil C3E1C-200 IMO TG Building C3E1C-200 IMO Industries Inc. PP
(Dc) TG-3
TG-3-Lo.Pump Ma Pump, Main 3D-BC-250 IMO TG Building 3D-BC-250 IMO Industries Inc. PP
Oil TG-3
17
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
TG-3-Tk-3 Skid,Lube GEOTHERM TG Building CAP:715 GAL, AC/Pump:73 GPM with 10
Oil TG-3 HP Motor DC/Pump: 40 GPM with 5 HP
Motor, C.W.Rate:75 GPM Oil
Cooler:605,000 BTU/HR
MFG:Geothermal Co.
TG-3 Skid,Turbine CC-55 GEOTHERM TG Building CL-55 Geothermal Power Co.
Generator TG-3
TG-3-T-3 Turbine,Steam High CL-55 GE TG Building Type:4 Stage Double Flow, Rating:9.0
Press TG-3 MW, Speed:4352 RPM, Steam
Rate:163,904 LB/HR, Main Oil Pump:98
GPM MFG:General Electric
TG-3-Vibration Monitor,Vibration 3300 BENTLY N TG Control 3300 BENTLY-NEVADA
TG-3 Panel
Tk-20 Tank,Fire Water Behind Fire SIZE:10' OD X 10' H, CAP:5875 GAL,
Pump Bld Mat:FRP Tank Existed at Beginning
Tk-21 Tank,Fire Water Behind Fire SIZE:10' OD X 10' H, CAP:5875 GAL,
Pump Bld Mat:FRP Tank Existed at Beginning
Tk-8 Tank,Fuel Diesel Fire Pump SIZE:35" OD X 4' LONG, CAP:200 GAL,
Fire Pump Building Mat:Carbon Steel
Ups Uninterupted Power PBBM101246792 MCC Bldg Allied Power Company
Supply In Controlled Power
V-10-Diesel Tank,500 Gal. Diesel
V-9-Unlead Gas Tank,500 Gal.
Unleaded Gas
V-11-Caustic Tank,2500 Gal Caustic Cooling Tower
V-1 Tank,Separator High Seaparator ID:7'6", HT:30', CAP: 10,500 GAL,
Pressure Area Mat:SA-516-70 Design:100 PSIG @500
DEF.F W/Full Vacuum
Trim:3"-BR-135-HA-F Xxxx Xxxxx Tank
Sp-101 Purifier,Internal DIMS-33-2 XXXXXXXX Separator Area CAP:181,040 LB/HR, Delta P:0.5 PSI,
Steam V-1 Mat:304L SS DIMS-33-2 Xxxxxxxx
Separator Company
S-1a Silencer,High BOS-52 FLUIDKIN Separator Area DIA:52 1/2" HT:11'2" CAP: 194,945
Pressure Steam V LB/HR @288 DEG.F Delta P:32 PSI Sound
Level:110 DBA @3' Shell Mat:SA-516-70
Internal Mat:304 XX XXX-52 Fluid
Kinetics
18
XXXXX UNIT 1 EQUIPMENT LIST
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Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
V-2 Tank,Separator Low Separator Area ID:9'0", HT:28', Cap: 14,500 Gal,
Pressure Mat:SA-516-70 Design:40 PSIG @500
DEF.F W/ Full Vacuum
Trim:3"-BR-237-HA-F Xxxx Xxxxx Tank
Sp-102 Purifier,Internal DIMS-42-2 XXXXXXXX Separator Area CAP:227,930 LB/HR, Delta P:0.5 PSI,
Steam V-2 Mat:304L SS DIMS-42-2 Xxxxxxxx
Separator Company
S-2 Silencer,Lo Pressure BOS-52 FLUIDKIN Separator Area DIA:44" HT:9'7" CAP:136,357 LB/HR
Steam V-2 Delta P:21.9 PSI Sound Level:110 DBA
@10' Shell Mat: SA-516-70 Internal
Mat:304 XX XXX-52 Fluid Kinetics
V-4 Tank,Air Receiver 42VA650L XXXXXX Shop CAP:650 GAL, Press:200 PSIG 42VA650L
Xxx X. Xxxxxx Xx. Mfg.
V-5 Tank,Separator High Separator Area ID:7'6", HT:30', CAP: 10,500 GAL,
Pressure Mat:SA-516-70 Design:100 PSIG @500
DEF.F W/Full Vacuum
Trim:3"-BR-133-HA-F Xxxx Xxxxx Tank
Sp-105 Purifier,Internal DIMS-33-2 XXXXXXXX Separator Area CAP:181,040 LB/HR, Delta P:0.5 PSI,
Steam V-5 Mat:304L SS DIMS-33-2 Xxxxxxxx
Separator Company
S-1b Silencer,Hi Pressure BOS-52 FLUIDKIN Separator Area Dia:52 1/2" Ht:11'2" Cap: 194,945
Steam V-5 LB/HR @288 Deg.F Delta P:32 PSI Sound
Level:110 DBA@3' Shell Mat:SA-516-70
Internal Mat:304 XX XXX-52
FluidKinetics
V-8 Tank,Utility XXXXXX Fire Pump CAP:100 GAL, SIZE:24" ID X 43" T/T
Pressure Water House Press:125 PSIG, Mat: Carbon Steel
Epoxy Lined
Xxx X. Xxxxxx Xx. Mfg.
Brc-46a-1 Xxxxxx,Remote Cab.#6 Xxxxxx South Well Xxxxxx Controls
Field
Prj-18a-1 Proj,Install Pump In North Well New Production Well
New Well Field
82a-11 Well,Production North Well
Field
48a-1 Well,Production South Well
Field
00-0 Xxxx,Xxxxxxxxxx Xxxxx Xxxx
Xxxxx
56b-1 Well,Production South Well
Field
46-1 Well,Production South Well
Field
19
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
00x-0 Xxxx,Xxxxxxxxxx Xxxxx Xxxx
Xxxxx
47a-1 Well,Production South Well
Field
47c-1 Well,Production South Well
Field
Brc-82a-11 Xxxxxx,Remote Cab.#1 Xxxxxx North Well Xxxxxx Controls
Field
Brc-48a-1 Xxxxxx,Remote Cab.#2 Xxxxxx South Well Xxxxxx Controls
Field
Brc-56b-1 Xxxxxx,Remote Cab.#4 Xxxxxx South Well Xxxxxx Controls
Field
Brc-46-1 Xxxxxx,Remote Cab.#5 Xxxxxx South Well Xxxxxx Controls
Field
Brc-47a-1 Xxxxxx,Remote Cab.#7 Xxxxxx South Well Xxxxxx Controls
Field
Brc-47c-1 Xxxxxx,Remote Cab.#8 Xxxxxx South Well Xxxxxx Controls
Field
P-61aa-Motor Motor,Seal Water North Well HP:1, RPM:3600
(00x-00) Xxxxx
X-00xx-Xxxx Pump,Seal Water 051C MTH North Well CAP:5.6 GPM, Delta P:108 PSIG,
(82a-11) Field Driver:1HP 3600RPM 051C MTH Pumps
Ts-136a Heater,Lube Oil North Well
(82a-11) Field
E-11 Cooler,Seal Water 3525K12 HAYDEN North Well Duty:13,800 BTU/HR CAP:7.5 GPM Delta
Skid(82a-11) Field P:10.45 PSI 3525K12 HAYDEN
P-71-Motor Motor,Lube Oil North Well HP:1/2, RPM:1750
(82a-11) Field
E-85 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(46-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
E-86 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(46a-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
E-87 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(47a-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
E-88 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(47c-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
E-82 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(48a-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
E-83 Cooler,Seal Water 3515K12 HAYDEN North Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(27-1) Field Delta P:5.0 PSI Moved From 56-1
3515K12 HAYDEN
20
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
E-84 Cooler,Seal Water 3515K12 HAYDEN South Well Duty:30,000 BTU/HR, CAP:7.5 GPM,
(56b-1) Field Delta P:5.0 PSI 3515K12 HAYDEN
P-65ee-Motor Motor,Seal Water South Well HP:1, RPM:3600
(46-1) Field
P-66ff-Motor Motor,Seal Water South Well HP:1, RPM:3600
(46a-1) Field
P-67gg-Motor Motor,Seal Water South Well HP:1, RPM:3600
(47a-1) Field
P-68hh-Motor Motor,Seal Water South Well HP:1, RPM:3600
(47c-1) Field
P-62bb-Motor Motor,Seal Water South Well HP:1, RPM:3600
(48a-1) Field
P-63cc-Motor Motor,Seal Water North Well HP:1, RPM:3600
(27-1) Field moved from 00-0
X-00xx-Xxxxx Xxxxx,Xxxx Xxxxx Xxxxx Xxxx HP:1, RPM:3600
(56b-1) Field
P-65ee-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx Cap:5.6 GPM, Delta P:108 PSIG,
(46-1) Field Driver:1HP 3600RPM 051C MTH Pumps
P-66ff-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(46a-1) Field Driver:1HP 3600RPM
051C MTH Pumps
P-67gg-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(47a-1) Field Driver:1HP 3600RPM 051C MTH Pumps
P-68hh-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(47c-1) Field Driver:1HP 3600RPM 051C MTH Pumps
P-62bb-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(48a-1) Field Driver:1HP 3600RPM 051C MTH Pumps
P-63cc-Pump Pump,Seal Water 051C MTH North Well CAP:5.6 GPM, Delta P:108 PSIG,
(27-1) Field Driver:1HP 3600RPM moved from 56-1
051C MTH Pumps
P-64dd-Pump Pump,Seal Water 000X XXX Xxxxx Xxxx CAP:5.6 GPM, Delta P:108 PSIG,
(56b-1) Field Driver:1HP 3600RPM 051C MTH Pumps
P-75-Motor Motor,Lube Oil (46-1) South Well HP:1/2, RPM:1750
Field
P-76-Motor Motor,Lube Oil South Well HP:1/2, RPM:1750
(46a-1) Field
P-77-Motor Motor,Lube Oil South Well HP:1/2, RPM:1750
(47a-1) Field
P-78-Motor Motor,Lube Oil South Well HP:1/2, RPM:1750
(47c-1) Field
P-72-Motor Motor,Lube Oil South Well HP:1/2, RPM:1750
(48a-1) Field
21
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
P-73-Motor Motor,Lube Oil (27-1) North Well HP:1/2, RPM:1750
Field moved from 00-0
X-00-Xxxxx Xxxxx,Xxxx Xxx Xxxxx Xxxx HP:1/2, RPM:1750
(00x-0) Xxxxx
Xx-000x Heater,Lube Oil South Well
(46-1) Field
Ts-136f Heater,Lube Oil South Well
(46a-1) Field
Ts-136g Heater,Lube Oil South Well
(47a-1) Field
Ts-136h Heater,Lube Oil South Well
(47c-1) Field
Ts-136b Heater,Lube Oil South Well
(48a-1) Field
Ts-136c Heater,Lube Oil North Well moved from 56-1
(00-0) Xxxxx
Xx-000x Heater,Lube Oil South Well
(56b-1) Field
Tk-42 Tank,Lube Oil (48a-1) 3751K14 South Well Cap:55 Gal, Material: Polyethlene
Field 3751K14 XxXxxxxx-Xxxx
Tk-43 Tank,Lube Oil (48a-1) 3751K14 South Well Cap:55 Gal, Material: Polyethlene
Field 3751K14 XxXxxxxx-Xxxx
P-49a-Motor Motor,Chemical Chemical Bldg 1/4HP 1750 RPM
(Brine Inlet)
P-49b-Motor Motor,Chemical Chemical Bldg 1/4HP 1750 RPM
(Brine Inlet)
TG-1-Lo.Tank Tank,Lube Geotherm TG Building CAP:715 GAL
Oil TG-1
TG-1-Hyd.Skid Skid,Hydraulic Power AUTOMAX TG Hydraulic AUTOMAX
Pack TG-1 Skid
XX-0-Xx.Xxxx#2 Cooler #2,Lube TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision Ind.
Oil TG-1 Skid
TG-1-Hyd.Accu#1 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#1,Hydraulic TG-1 Skid
TG-1-Hyd.Accu#2 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#2,Hydraulic TG-1 Skid
TG-2-Hyd.Pump#2 Pump,Hydraulic PVB10RSY30C10 XXXXXXX XX Buliding PVB-10-RSY-30-C-10 XXXXXXX
#2 TG-2
XX-0-Xx.Xxxx#2 Cooler,Lube Oil TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision IND.
#2 TG-2 Skid
TG-2-Hyd.Accu#1 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#1,Hydraulic TG-2 Skid
22
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
TG-2-Hyd.Accu#2 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#2,Hydraulic TG-2 Skid
TG-2-Hyd.Tank Tank,Hydraulic Power AUTOMAX TG Hydraulic AUTOMAX TK
Pack TG-2 Skid
TG-1-Hyd.Pump#2 Pump,Hydraulic PVB10RSY30C10 XXXXXXX XX Hydraulic PVB-10-RSY-30-C-10 XXXXXXX
#2 TG-1 Skid
TG-3-E-3 Condenser,Contact XXXXXX XX Building Duty:162.0 MMBTU/HR, SIZE: 96" DIA. X
TG-3 24' 4" Length Shell:15 PSIG/Full
Vacuum @250 DEG.F, Mat: 304L
SSTRIM:3"-SC-325-HA-N MFG:XXXXXX
XX-3-Hyd.Accu#1 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#1,Hydraulic TG-3 Skid
TG-3-Hyd.Accu#2 Accumulator AUTOMAX TG Hydraulic AUTOMAX
#2,Hydraulic TG-3 Skid
TG-3-Hyd.Pump#2 Pump,Hydraulic PVB10RSY30C10 XXXXXXX XX Hydraulic PVB-10-RSY-30-C-10 XXXXXXX
#2 TG-3 Skid
XX-0-Xx.Xxxx#2 Cooler #2,Lube TYPE 500 AMERICAN TG Lube Oil Type 500 American Precision Ind.
Oil TG-3 Skid
TG-3-Lo.Tank Tank,Lube Geotherm TG Building CAP:715 GAL
Oil TG-3
TG-3-Hyd.Tank Tank,Hydraulic Power AUTOMAX TG Hydraulic AUTOMAX TK
Pack TG-3 Skid
Vac Ejector System Ejector Area
Wash Wash Water System TG Bldg & Pit
P-48 Pump,Wash Water TG Building CAP:10 GPM, Delta P:112 FT., Specific
GR:1.0 Type:Horiz Centrifical,
Driver:1 1/2 HP @3500RPM Mat:316 SS
No longer in operation
Hv-743 Valve,Hand Wash TG Building No longer in operation
Water Output
Pi-742 Gauge,Press Wash TG Building No longer in operation
Water Output
Pi-741 Gauge,Press Wash TG Building No longer in operation
Water Output
Tg Turbine Generator GEOTHERM TG Building Manufactured by Geothermal Power
Systems Company
23
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
TG-1-G-1-Cooler Cooler,Generator UNIFIN TG Building UNIFIN International Removable
Coverplate Cooler With Leak Detectors
TG-2-G-2-Cooler Cooler,Generator UNIFIN TG Building UNIFIN International Removable
Coverplate Cooler With Leak Detectors
TG-3-G-3-Cooler Cooler,Generator UNIFIN TG Building UNIFIN International Removable
Coverplate Cooler With Leak Detectors
XX-0-Xxx.Xxx#1 Motor,Hydraulic Pump TG Building
#1
XX-0-Xxx.Xxx#2 Motor,Hydraulic Pump TG Building
#2
XX-0-Xxx.Xxx#1 Motor,Hydraulic Pump TG Building
#1
XX-0-Xxx.Xxx#2 Motor,Hydraulic Pump TG Building
#2
XX-0-Xxx.Xxx#1 Motor,Hydraulic Pump TG Building
#1
XX-0-Xxx.Xxx#2 Motor,Hydraulic Pump TG Building
#2
XX-0-Xx.Xxx Ac Motor,Ac Lube Oil TG Building
Pump
XX-0-Xx.Xxx Ac Motor,Ac Lube Oil TG Building
Pump
XX-0-Xx.Xxx Ac Motor,Ac Lube Oil TG Building
Pump
XX-0-Xx.Xxx Dc Motor,Dc Lube Oil TG Building
Pump
XX-0-Xx.Xxx Dc Motor,Dc Lube Oil TG Building
Pump
XX-0-Xx.Xxx Dc Motor,Dc Lube Oil TG Building
Pump
P-79-Pump Pump,Brine Wash (New) Pit
P-79-Motor Motor,Brine Wash Pit
(New)
Ej-1 Ejector #1 Ejector STEAM FLW:4470 LBS/HR, STEAM
Platform Press:40.4 PSIA, SIZE:10" X 10"
Ej-2 Ejector #2 Ejector STEAM FLW:3735 LBS/HR, STEAM
Platform Press:40.4 PSIA, SIZE:4" X 4"
Ct Cooling Tower Water
System
Ct-1a-Xxx Xxx,Cooling Tower DIAMETER:36 FEET
Ct-1b-Xxx Xxx,Cooling Tower DIAMETER:36 FEET
24
XXXXX UNIT 1 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
Ct-1c-Xxx Xxx,Cooling Tower Cooling Tower DIAMETER:36 FEET
P-12-Motor Motor,Fire Water Fire Pump Type:DIESEL, HP:182
(Diesel) Building
P-13-Motor Motor,Fire Water Fire Pump HP:150
(Electric) Building
P-14-Motor Motor,Fire Water Fire Pump HP:3
Jockey Building
P-16-Motor Motor,Utility Water Fire Pump HP:1
Building
P-17-Motor Motor,Ct Wetdown Pump Cooling Tower HP:5, RPM:3600,
Area
P-18-Motor Motor,Lake Xxxxx
Dewatering
P-7-Motor Motor,Sump Pump Condensate Pit HP:7.5
Fire System,Fire
Protection
Pit System, Condensation
Pit
Air System, Compressed
Air
Dr-1b Dryer,Air XXXXXX XXXXXX Shop Cap:250 SCFM, Dewpoint:-40 DEG.F,
Regenerative Tank #2 PV-1098 Press:150 PSIG @150 DEG.F
Dr System,Air Dryer EE-250 PMEUMATE Shop Cap:250 SCFM, Dewpoint:-40 DEG.F,
Press:150 PSIG @150 DEG.F
C-2a-Sv Safety, Compressor #1 Shop, SET @160 PSIG
Compressor #1
C-2b-Sv Safety, Compressor #2 Shop, SET @160 PSIG
Compressor #2
C-2c-Sv Safety, Compressor #3 Shop, SET @160 PSIG
Compressor #3
C-1a-Ctrl Sequencer, 0000-0000-00 ATLAS CO Shop Comp Air Three Compressor Controller
Compressor Controler Skid
15kv System,15kv
5kv 5kv System Various
MCC-Dc Dc Power For Turbine TG Building
MCC System,Motor Control Various
Centers
Switchgear System,Switch Gear XX Xxxxxxxx
00
XXXXX XXXX 0 EQUIPMENT LIST
----------------------------------------------------------------------------------------------------------------------------------
Equipment No. Description Model No. Manufacturer Location Comments
----------------------------------------------------------------------------------------------------------------------------------
480v System,480v MCC Various
Datalogger Dataloggers Well Feild
Steam Wash Turbine Steam Wash TG Bldg.,
Sep. Deck
Dg-1 Deisl Generater Parking Lot
27-1 Wellpad 15kv Fuse Diconect POWERCON 27-1
27a-1 Wellpad 15kv Fuesd Disconect POWERCON 27-1
Caustic Tank Cooling Tower
27-1 Production Well
Tk-Oil Used Oil Storage HOMADE Yard
Tank & Trlr.
Bat-1 Batteries For 6SLA25 FIAMM MCC 20 Sealed Recomb Lead Acid Batteries
Control Voltage
Bat-2 Batterys For Control 6SLA25 FIAMM MCC Sealed Recomb Lead Acid Batteries
Voltage
Bat-Charg-1 Control Voltage 0 XXX XXXXX XXX Xxxxx Xxxxxxx Charger
Battery Charge 130-035
Bat-Charg-2 Control Voltage 0 XXX XXXXX XXX Xxxxx Xxxxxxx Charger
Battery Charge 130-035
Wa-1 Parts Washer E200 Shop
Iw1 Injection Well Well Field
Number One
Iw2 Injection Well
Number 2
Iw3 Injection Well 18d-31
Iw4 Injection Well 18b-31
Iw5 Injection Well Mgi-1
Iw7 Injection Well 74-25
Iw8 Injection Well 73-25
Iw9 Injection Well 81-25
Iw10 Injection Well 61-25
Pall Pump Coalescing Filter - Pall Turbine
Lo Purifie Aerospace Building
Network Computer Computer Various HP
26
Section 3.1(n): Tangible Personal Property (cont).
XXXXX POWER PARTNERS
UNIT 2 INVENTORY
----------------
Mobile Equipment
----------------
YEAR MAKE MODEL DRIVE MILEAGE LIC. NO.
1997 Ford F250 4x4 181000 129CL
1990 Ford F150 2x2 155182 550FBJ
1992 Ford F-Supe 2x2 54000 039ERS
YEAR MADE MODEL TYPE HOURS
Cat RC60 Forklift 1741
Lincoln 200 Welder 155
Xxxxx 150 Compressor
Turbine Parts
-------------
QUANTITY P/N DESCRIPTION
1 Old 9 stage rotor for Delaval turbine
2 8442-000-022-p Thrust pad set
2 PMT-2200J Oil Seal
2 PMT-2200H Oil Seal
1 GP427OF Journal Bearing LP assembly
1 GP427OR Journal Bearing HP assembly
3 LU298BU0001 Thrust bearing shims
2 HJ588 Used oil guard, steel shaft
2 RJ298CX1 Bearing housing shims
2 TJ588EX1 Oil Guards
1 HG588 Oil guard, steel shaft
1 8442-000-022-p Thrust shoe set
1 8442-000-023-p Thrust shoe set
2 Thrust shoe carrier
2 Bearing, large gear
2 PMT-2200J Oil Seal
Injection Pump Parts
--------------------
QUANTITY P/N DESCRIPTION
1 150 HP Pump motor
1 CT Fan Gear Box
1 Emergency Diesel Generator
P/N DESCRIPTION COMMENTS
A200M4CAC Contractor 4-J Westinghouse
A200M5CX1 Contractor 5-J Westinghouse
A200M6CX Contractor 6-J Westinghouse
27
Plant Equipment
---------------
PRODUCTION XXXXX
67-21 Well - SW/4 SE/4 Sec. 21, T22N, R27E, Desert Peak, Xxxxxxxxx
County, Nevada. Total depth 4097', Cased 2516' with 13 3/8 68#/ft K-55 buttress
casing, 614' of 20" 94#/ft X-52 buttress casing, 30" 118.6#/ft X-42 conductor.
86-21 Well NE/4 XX/0 Xxx.00, X00X, X00X, Xxxxxx Xxx, Xxxxxxxxx Xxxxxx,
Xxxxxx. Total depth 3356', Cased 2501', 13 3/8" 68#/Ft K55 buttress casing, 490'
buttress casing 20" 94#/ft K-55, 40' 30" 118.6#/ft. conductor.
INJECTION WELL
B21-2 Well - NE/4 NE/4 Sec. 21, T22N, R27E, Desert Peak, Xxxxxxxxx
County, Nevada, Cased 2030', 9 5/8" 40#/ft K-55 buttress casing, 1000' 13 3/8"
54.5#/ft K-55 buttress casing, 95' 20" 94#/ft H-40 buttress casing.
1 EACH HIGH PRESSURE SEPARATOR
The separator was built by B&J Welding and Manufacturing Co. It is a
horizontal separator, 60' long by 12' diameter and is of carbon steel
construction.
1 EACH LOW PRESSURE SEPARATOR
The separator was built by B&J Welding and Manufacturing Co. It is a
vertical separator, 20' tall and 12' diameter, and stands on a 20' support. It
is of carbon steel construction.
2 EACH KNOCKOUT TANKS
The High Pressure Knockout Tank was manufactured by Winston
Manufacturing Company. It is a horizontal vessel 3' diameter by 7' long, and is
constructed of carbon steel.
The Low Pressure Knockout Tank was manufactured by Winston
Manufacturing Company. It is 5' diameter by 12' long, and constructed of carbon
steel.
1 each Delaval, nine state turbine (4 HP and 5 LP). Serial No. 708312,
Size XJSF, Rated 9294 KW.
1 each Philadelphia Gear Box, single helical gear box, 2.023 to 1 gear
reduction.
1 each 11 MW Induction Generator, Serial No. 708312, Mfg. by Electric
Machinery Company.
1 each Delaval Oil Tank Console
28
2 each 40 HP vertical pumps.
1 each DC driven Emergency Lube Oil Pump and Motor.
1 each 3000' oil tank.
1 EACH CONDENSER
The condenser was manufactured by Xxxxxx. It is a direct contact,
spray, barometric condenser. It is approximately 52' high by 9 1/2" diameter,
and is of carbon steel construction.
2 EACH HOTWELL PUMPS
Xxxxx-Xxxxxxx "VMT", vertical, single-stage pumps, 4430 gpm at 66 ft
head, 150 HP, 1185 rpm, 460 V motors.
1 EACH COOLING TOWER
The cooling tower is a two-cell counterflow unit manufactured by
Marley. The basin dimensions are 102' x 48' x 4'. Two fans are fiberglass and
are powered by 125 hp, 460 V motors.
2 EACH BASIN PUMPS
Worthington model "LR" double suction, single stage pumps. They are
rated 4350 gpm and 85.5 ft. head, and are powered by 125 hp motors.
2 EACH INJECTION PUMPS
Xxxxxxx-Xxxxxxxxxxx pumps with 4" x 6" x 14" impellars. They are
powered by 300 HP, 3560 RMP, pump motors.
1 each 14 MVA Transformer, ASEA Mfg. 120 KV Y primiary/13.8 KV delta
secondary.
1 each 1500 KVA Transformer, 13.8 KV primary and 480 V secondary.
1 each 480 V Motor Control Center.
1 each 13.8 KV switchgear, with 4 cubicles of 13.8 KV Westinghouse
Vacuum Breakers and related protection relays
1 each 484 Modicon PC for electrical controls.
Section 3.1(o): Contracts.
--------------------------
1. Agreement between BPP and ABB Automation Inc. (d/b/a ABB Automation
Services) dated May 31, 2000.
29
2. Agreement, dated as of November 18, 1987, between Gilroy Foods,
Incorporated and Xxxxx Hot Springs Geothermal Associates.
3. Agreement, dated as of February 1, 1991, between Gilroy Foods,
Incorporated and Nevada Geothermal Power Partners, Limited Partnership.
4. Agreement, dated as of April 25, 1995, between BPP and Gilroy Foods
Incorporated. Although the term of the Agreement has ended, BPP has continued to
provide geothermal fluids to Gilroy Foods Incorporated pursuant to this
Agreement.
5. Stipulation In the Matter of the Application of Xxxxx Power Partners
to Drill and Operate Geothermal Xxxxx Within the SW 1/4 of the SW 1/4 of Section
I, T22N, R26E, M.D.B. & M., Xxxxxxxxx County, Nevada (Xxxxx No. 27-1 & 27A-1).
6. On January 12, 2001, BPP received a letter from United States
Department of the Interior Minerals Management Service ("MMS") advising of
geothermal lease audits for fiscal year 2002 (a "MMS Audit").
7. BPP has made certain payments to MMS pursuant to BLM Lease Nos.
N-40353, N-40355, N-10922 and N-46566 and the PPA, but has not filed the
requisite reports for the periods before the Closing Date. The Sellers will file
all such requisite reports either before or after the Closing Date and will be
responsible for any additional payments due for royalties under such leases for
all periods prior to the Closing Date, except payments accounted for on the
Estimated Adjusted Statement pursuant to Section 2.5 of the Agreement.
8. BPP purchases the majority of the goods and services for the
Facility on a purchase order basis. Records of the accounts payable accounts for
Unit 1 and Unit 2 have been delivered to the Purchasers for review. During this
period, the following contractors (excluding payments under the Material
Contracts) had one time or aggregate payments meeting the criteria in Section
3.1(o):
a. Goulds Pumps
b. Alliance Cooling Products
x. Xxxxxx, a Division of Schlumberger
d. Electric Maintenance Consultants
9. The agreements to be terminated pursuant to the BPP Restructuring.
10. The Trust Indenture, Deed of Trust, Assignment of Leases and Rents
and Security Agreement dated as of June 30, 1992, between State Street Bank and
Trust Company of Connecticut, National Association and Security Pacific Bank
Nevada and First Security Bank of Utah, National Association, as amended, will
be terminated following satisfaction of the note issued thereunder.
11. BPP has retained the law firm of Xxxxxx Xxxxxx & Xxxxxxx, Reno,
Nevada to represent it in the Sierra Litigation and the Gilroy Litigation.
30
12. Final Settlement Agreement dated February 16, 2001 between BPP and
Sierra terminating the Sierra Litigation.
13. Sub-Operating Agreement dated as of February 20, 0000, xxxxxxx XXX
xxx Xxxxxxx Xxxxxx.
14. Grant of Easement Agreement dated March 27, 1998, from Xxxxx X.
Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx to BPP, recorded as document number
312853 in the Official Records of Xxxxxxxxxx County, Nevada.
15. Notice and Letter Agreement Regarding Occupancy and Operations
Date, dated March 31, 1998, between BPP and Western States (relates to the
Facility Operating Lease).
16. Memorandum of Facility Operating Lease, dated April 3, 0000,
xxxxxxx XXX xxx Xxxxxxx Xxxxxx.
17. Assignment and Assumption Agreement, dated as of June 30, 1998,
between AT&T Capital Holdings International, Inc. and BPP.
18. Operation and Maintenance Agreement, dated May 31, 1996, between
BPP and ESI Xxxxx Power Services, Inc.
19. Unit Agreement for the Development and Operation of the Xxxxx Hot
Springs Unit Area, County, of Xxxxxxxxx, State of Nevada, dated July 1, 1993,
with Xxxxx Power Partners as joined by The Xxxxxxxx Topeka and Santa Fe Railway
Company pursuant to that certain Ratification and Joinder of Unit Agreement
Xxxxx Hot Springs Area Xxxxxxxxx County, Nevada, dated September 20, 1993.
Additional exceptions to representation and warranty regarding
enforceability of Facility Operating Lease. The Sellers make no representation
as to the validity, binding effect or enforceability of provisions, if any, of
the Facility Operating Lease (a) restricting access to legal or equitable
redress, (b) purporting to waive or affect any rights to notice or the
obligations of good faith, fair dealing, diligence and reasonableness, (c)
allowing any party to declare indebtedness to be due and payable without notice,
(d) providing for specific performance or the appointment of a receiver, (e)
providing that a selection of a remedy will not limit the availability of
another remedy, (f) purporting to establish evidentiary standards for suits or
proceedings to enforce the Contracts, (g) releasing, exculpating or exempting a
party from, or requiring indemnification of a party for, liability for its own
actions or inactions, to the extent such action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct, (h) limiting
judicial discretion regarding the determination of damages and entitlement to
attorneys' fees and other costs, (i) which deny a party that has materially
failed to render or offer performance required by the contract the opportunity
to cure that failure unless permitting a cure would unreasonably hinder the
non-defaulting party from making substitute arrangements for performance or
unless it was important in the circumstances to the non-defaulting party that
performance occur by the date stated in the agreement, (j) providing that forum
selection clauses
31
are binding on the court or courts in the forum selected, (k) providing for
choice of law, or (l) providing for a waiver of a party's right to trial by
jury.
Section 3.1(p): Insurance.
--------------------------
None.
Section 3.2(c): TPC Xxxxx Consents.
-----------------------------------
1. The right of Sierra to consent to the transfer of the Purchased
Interests to Purchasers pursuant to Section 26 of the PPA and the related Sierra
ROFR.
2. The WSGC Rights arising pursuant to the Facility Operating Lease.
3. The transfer of the Purchased Interest of TPC Xxxxx is subject to
any limitations or any rights or obligations related thereto that may be imposed
directly or indirectly on TPC Xxxxx pursuant to the TPC Xxxxx Acquisition
Agreements, which TPC Xxxxx Acquisition Agreements will be terminated by the
parties thereto at Closing.
4. Consent of ESI BH, pursuant to that certain Xxxxx Power Partners
First Amended and Restated Agreement of General Partnership dated February 20,
1995, as amended by Amendment No. 1 to Xxxxx Power Partners First Amended and
Restated Agreement of General Partnership dated March 20, 1995 by and between
ESI BH and TPC Xxxxx.
5. Consents under any of the documents to be terminated pursuant to the
BPP Restructuring prior to Closing.
6. Consent under Grant of Easement Agreement dated March 27, 1998, from
Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx to BPP, recorded as
document number 312853 in the Official Records of Xxxxxxxxxx County, Nevada.
Section 3.2(d): TPC Xxxxx Government Approvals; Filings.
--------------------------------------------------------
The transactions contemplated by the Agreement will require
post-Closing notice filings or additional applications to the following
governmental agencies by BPP or Ormat:
1. Nevada Division of Minerals.
2. Nevada Division of Environmental Protection Bureau of Air Quality.
Note that Permit AP4911-0229 will expire on May 3, 2001. If the Closing has not
occurred, a renewal application must be filed not less than 30-days before May
3, 2001.
3. Nevada Division of Environmental Protection Bureau of Waste
Management.
4. Nevada Division of Environmental Protection Bureau of Water
Pollution Control.
5. Nevada Division of Industrial Relations.
32
6. Nevada Division of Water Resources, State Engineer.
7. Nevada Division of Wildlife (Industrial Pond Permit).
8. Bureau of Land Management ("BLM").
9. Nevada State Fire Marshal.
10. Xxxxxxxxx County (business license (should be acquired before
Closing and Special Use Permit).
11. Nevada Department of Transportation.
12. Army Corps of Engineers.
13. Notice of self-certification under the Public Utility Regulatory
Policies Act of 1978 and the related implementing regulations to be filed by BPP
to reflect the transfer of the Purchased Interests to Purchasers.
14. UCC-3 Termination Statement to be filed at Closing by ESI Energy,
LLC (as successor to ESI Energy, Inc.) with the California Secretary of State
with respect to security interest granted by TPC Xxxxx in favor of ESI BH
pursuant to the Pledge and Security Agreement, dated May 9, 1995, by TPC Xxxxx
in favor of ESI Energy, Inc.
Section 3.2(e): Liens; Voting Agreements, outstanding rights relating to
Purchased Interests.
------------------------------------------------------------------------
1. The rights and obligations described in items 1, 2, 3 and 4 of
Section 3.2(c) hereof.
2. The rights and obligations of each partner pursuant to the Xxxxx
Power Partners First Amended and Restated Agreement of General Partnership dated
February 20, 1995, as amended by Amendment No. 1 to Xxxxx Power Partners First
Amended and Restated Agreement of General Partnership dated March 20, 1995 by
and between ESI BH and TPC Xxxxx.
3. Security interest created by that certain Pledge and Security
Agreement, dated May 9, 1995, by TPC Xxxxx in favor of ESI Energy, Inc.
4. Pursuant to that certain Option and Put Agreement, dated May 9,
1995, between TPC Xxxxx and ESI Energy, Inc., TPC Xxxxx covenanted not to
encumber its partnership interest.
Section 3.2(f): Litigation; Orders.
-----------------------------------
1. Sierra Pacific Power Corporation x. Xxxxx Power Partners, Supreme
Court of Nevada, Case No. 36480, on appeal from Xxxxx Power Partners v. Sierra
Pacific Power Corporation, Third Judicial District for State of Nevada,
Xxxxxxxxx County, Case No. 24846, Dept. No. 2.
33
2. Gilroy Foods, Inc. and United Specialty Food Ingredients Company x.
Xxxxx Power Partners, ESI BH Limited Partnership, TPC Xxxxx, Inc., ESI Xxxxx,
Inc., and Oxbow Power Services, Inc., XX-X-00-00000-XXX, X.X. XXX Xxxxxxxx
Xxxxxxxx xx Xxxxxx.
3. On January 12, 2001, BPP received a letter from United States
Department of the Interior Minerals Management Service advising of lease audits
for fiscal year 2002.
4. Letter dated October 22, 1999 from United States Department of the
Interior Minerals Management Service regarding (i) Payment of Royalties on Hot
Water Transferred to Onion Plant; (ii) Captial Investments; (iii) Submission of
Forms MMS-2014; (iv) Analysis of Rent and Minimum Royalty; (v) Operations &
Maintenance (O&M) Expenses; and a Miscellaneous Questions List.
34
SCHEDULE III
ADJUSTMENT OF PAYMENT AMOUNTS
(1) Estimated Adjustment Statement.
(a) On the Closing Date, the Sellers shall prepare and deliver to the
Purchasers a statement (the "Estimated Adjustment Statement") that sets forth as
of the close of business on the day prior to the Closing Date (the "Adjustment
Date"): (i) a good faith estimate of the accrued liabilities of BPP that will
remain unpaid following the Adjustment Date ("Liabilities"); (ii) a good faith
estimate of the accrued gross revenues of BPP that will not have been received
prior to the Adjustment Date ("Accounts Receivable"); and (iii) the expenses of
BPP that have been paid in advance (including property taxes and insurance) as
prorated for the period following the Adjustment Date ("Prepaid Expenses"). The
Estimated Adjustment Statement will be prepared in conformity with GAAP, applied
on a basis consistent with the financial statements delivered to the Purchasers
under Section 3.1(j) of the Agreement.
(b) If the Liabilities as set forth on the Estimated Adjustment
Statement exceed the sum of the Accounts Receivable plus the Prepaid Expenses as
set forth thereon, the amount paid by the Purchasers under Section 2.2(b) of the
Agreement will be reduced by an amount equal to the excess. If the Accounts
Receivable plus the Prepaid Expenses as set forth on the Estimated Adjustment
Statement exceed the Liabilities as set forth thereon, the amount paid by the
Purchasers under Section 2.2(b) of the Agreement will be increased by an amount
equal to the excess.
(2) Adjustment Statement.
(a) Within forty-five (45) days following the Closing Date, the
Purchasers shall prepare and deliver to the Sellers a final statement (the
"Final Adjustment Statement") that sets forth the same information as included
in the Estimated Adjustment Statement provided pursuant to Section 1(a) above,
adjusted to take into account the final figures as of the Adjustment Date
determined in accordance with the standard set forth in said Section 1(a). The
Sellers shall provide copies of all invoices or other billing information
actually received or sent by the Sellers during this 45 days period to allow the
Purchasers to prepare the Final Adjustment Statement in accordance with this
Section. The Final Adjustment Statement shall be accompanied by such backup
information and schedules as is reasonably required in order for the Sellers to
understand the computation of the amount(s) set forth therein.
(b) The Parties shall attempt to agree upon the Final Adjustment
Statement within thirty (30) days following the delivery thereof to the Sellers.
If the Sellers dispute any item set forth on the Final Adjustment Statement, the
Sellers shall give the Purchasers written notice thereof within thirty (30) days
following the delivery to the Sellers of the Final Adjustment Statement, setting
forth in reasonable detail the disputed item or items. If the Sellers have not
delivered such notice to the Purchasers within such thirty (30) day period, the
Final Adjustment Statement shall be deemed to be final and, to the extent the
Final Adjustment Statement reflects an adjustment to the amounts paid by the
Purchasers under Section 2.2(b) of the Agreement that is different from the
adjustment made on the Closing Date, the Party that benefited from the
variance in the adjustment made on the Closing Date shall pay to the other Party
the variance amount within five (5) days following the expiration of such thirty
(30) day period. If the Sellers have delivered a notice of a dispute to the
Purchasers, the undisputed portion of the variance amount, if any, shall be paid
to the Party entitled to receive the same within five (5) days following the
delivery of the notice by the Sellers to the Purchasers and the Parties shall
jointly engage PricewaterhouseCoopers (or, if such firm is unable or unwilling
to act in such capacity, such other Big-5 accounting firm as may be agreed by
the parties) (hereinafter, the "Auditors") and shall direct the Auditors to make
a final, binding determination of all such disputes within forty-five (45) days
of presentation to the Auditors by the Parties of the information that each such
Party believes supports its position with respect to each disputed item. Such
information shall be presented by each Party to the Auditors within ten (10)
days following the selection thereof. The Parties will further direct the
Auditors to deliver a written notice to the Purchasers and the Sellers setting
forth its determination with respect to each disputed item. The results of such
determination will be final and binding, and the balance of the variance amount,
if any, resulting from such determination will be paid to the Party entitled to
receive the same within ten (10) days of the independent accountant's notice of
its determination. The Parties agree that the fees and expenses of the Auditors
shall be borne in equal parts by the Purchasers on the one hand, and the
Sellers, on the other, and further agree that in connection with the engagement
of the Auditors, each of the Purchasers and the Sellers will, if requested by
the Auditors, execute a reasonable engagement letter including customary
indemnities.
2
SCHEDULE III
Adjustment of Payment Amounts
Estimated Closing Date of June 28, 2001
SELLING PRICE $20,500,000.00
LESS AMOUNTS IN DEPOSITS (1,000,000.00)
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$19,500,000.00
ADJUSTMENTS TO PAYMENT AMOUNT:
LIABILITIES
Estimated accrued liabilities - project AP $ 50,000.00
Due to Cal Energy June Estimated 164,716.00
Due to Santa Fe - Estimate 57,731.00
Other Royalties 4,906.74
--------------
277,353.74
Funding Major Maintenance Account 371,778.00
Funding Major Maintenance Unit I & II 1,578,222.00
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TOTAL LIABILITIES $ 2,227,353.74
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ACCOUNTS RECEIVABLE
SPP - May 15 to June 14 625,000.00
SPP - June 15 to Closing June 28th - 14 days 291,666.67
PREPAID EXPENSES
2000-2001 - Property Taxes paid in 2001
Unit I - July 1st to June 30 333,361.00
Unit II - July 1st to June 30 46,181.90
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379,542,90
Prorated for 2 days 2,079.69
TOTAL ACCOUNTS RECEIVABLE AND PREPAID EXPENSES $ 918,746.35
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AMOUNT DUE FROM PURCHASER $18,191,392.61
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3
