OPC LLC MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.1.13
EXECUTION VERSION
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is made and entered
into on October 30, 2009, by and among Xxxxxx-OPC LLC, a Delaware limited liability company
(“Xxxxxx”), Ormat Nevada Inc., a Delaware corporation (“Ormat”), and OPC LLC, a
Delaware limited liability company (the “Company”). All capitalized terms not otherwise
defined herein shall have the meanings set forth in the LLC Agreement (as defined below).
WHEREAS, Xxxxxx is a party to (i) that certain Amended and Restated Limited Liability Company
Agreement of the Company, dated as of June 7, 2007 (as amended from time to time, the “LLC
Agreement”), among Xxxxxx, Ormat and Xxxxxx Xxxxxxx Geothermal LLC, a Delaware limited
liability company (“Xxxxxx Xxxxxxx”) and (ii) that certain Agreement for Purchase of
Membership Interests in the Company, dated as of June 7, 2007, among Xxxxxx, Ormat and Xxxxxx
Xxxxxxx (as amended April 17, 2008, the “Original Purchase Agreement”), and owns 300 units
of Class B membership interests in the Company and the rights associated therewith (all such units
and rights, the “Xxxxxx Units”);
WHEREAS, Ormat and Xxxxxx Xxxxxxx are the sole other Members of the Company and the sole other
holders of Membership Interests in the Company, with (i) Ormat holding all of the 1,000 units of
Class A Membership Interests issued and outstanding and (ii) Xxxxxx Xxxxxxx holding 700 units of
the 1,000 Class B Membership Interests issued and outstanding;
WHEREAS, in accordance with Section 9.5(I) of the LLC Agreement, on August 17, 2009, Xxxxxx
delivered an Offer Notice to Xxxxxx Xxxxxxx, offering to sell the Xxxxxx Units to Xxxxxx Xxxxxxx
for an aggregate purchase price of $18,500,000 (the “Purchase Price”);
WHEREAS, Xxxxxx Xxxxxxx did not exercise its right to purchase the Xxxxxx Units within the 30
calendar day period specified in the LLC Agreement and the Offer Notice;
WHEREAS, in accordance with Section 9.5(II) of the LLC Agreement, on September 17, 2009,
Xxxxxx delivered an Offer Notice to Ormat, offering to sell the Xxxxxx Units to Ormat for the
Purchase Price;
WHEREAS, on September 28, 2009, Ormat delivered an irrevocable ROFO Notice to Xxxxxx and
agreed to acquire the Xxxxxx Units at the Purchase Price, and Xxxxxx has agreed to sell to Ormat
the Xxxxxx Units for the Purchase Price and thereby withdraw as a member of the Company in
accordance with Article IX of the LLC Agreement and subject to the terms set forth herein (the
“Transaction”).
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises set forth herein,
and of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending legally to be bound, hereby agree as follows:
1. Sale and Purchase of the Xxxxxx Units, and Assignment.
(a) Subject to the terms and conditions hereof, Xxxxxx hereby sells, transfers, assigns and
conveys to Ormat all rights, title and interests held by Xxxxxx in and to (i) the Xxxxxx Units,
free and clear of all Encumbrances other than Permitted Encumbrances (except liens for Taxes not
yet due and payable), and (ii) the LLC Agreement and the Original Purchase Agreement. Ormat hereby
accepts the foregoing sale, transfer, assignment and conveyance, and assumes all of the obligations
of Xxxxxx in respect of such Xxxxxx Units under the LLC Agreement and under the Original Purchase
Agreement, and agrees to perform thereunder from and after the Closing (as defined below).
(b) In consideration for the sale, transfer, assignment and conveyance set forth in Section
1(a), Ormat shall pay the Purchase Price to Xxxxxx by wire transfer of immediately available United
States Dollars to such United Stated bank account as previously designated by Xxxxxx in writing.
(c) At the Closing, (i) all of Xxxxxx’x obligations and liabilities associated with the Xxxxxx
Units and under the Original Purchase Agreement will terminate except those obligations and
liabilities accrued through the date of this Agreement, (ii) Xxxxxx shall cease to be a Member of
the Company and shall have no further rights as a Member in respect of the Xxxxxx Units, (iii)
Ormat shall be admitted as a Class B Member of the Company, and (iv) all the rights, obligations
and liabilities associated with the Xxxxxx Units (including under the LLC Agreement and the
Original Purchase Agreement) shall become the rights, obligations and liabilities of Ormat.
(d) The closing of the transactions contemplated in this Agreement (the “Closing”)
shall take place upon the receipt of the last of the closing deliverables set forth in Section
2 of this Agreement. Notwithstanding any other provision herein, the transactions set forth in
Sections 1(a), (b) and (c) shall become effective upon (and not prior to) the Closing.
2. Closing Deliverables. At or prior to the Closing,
(a) Xxxxxx shall deliver to Ormat Certificate No. 3 for Class B Membership Interest,
representing the Xxxxxx Units.
(b) Ormat shall deliver to Xxxxxx the Purchase Price.
3. Representations and Warranties of Xxxxxx. Xxxxxx hereby represents and warrants to
Ormat and the Company the following, as set forth in Schedule 9 to the LLC Agreement:
(a) Xxxxxx is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite limited liability company
power and authority to transfer the Xxxxxx Units as contemplated by the LLC Agreement.
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(b) Xxxxxx owns directly 30% of the Company’s outstanding Class B Membership Interests to the
extent that is what it was sold under the Original Purchase Agreement.
(c) Xxxxxx has absolute record and beneficial ownership and title to all of the Membership
Interests held by Xxxxxx to the extent that is what it was sold under the Original Purchase
Agreement, free and clear of all Encumbrances except Permitted Encumbrances.
(d) At or prior to the Closing, this Agreement will have been duly and validly executed and
delivered by Xxxxxx and (assuming due and valid execution by the other parties hereto) will
constitute a legal, valid and binding obligation of Xxxxxx, enforceable against Xxxxxx in
accordance with its terms (subject, however, to the effects of bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect relating to the rights and
remedies of creditors as well as to general principles of equity whether considered at law or in
equity).
(e) Neither the execution, delivery and performance by Xxxxxx of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or result in any breach
of any provision of the Organizational Documents of Xxxxxx, (ii) violate or conflict with (or give
rise to any right of termination, cancellation or acceleration under) any of the terms, conditions
or provisions of any material contract or other instrument or obligation that Xxxxxx is a party to
or by which Xxxxxx is bound or (iii) violate any material Legal Requirement or any material
license, franchise, permit or other authorization applicable to or affecting Xxxxxx or any of its
assets.
(f) No declaration, filing or registration with, or notice to, or authorization, consent or
approval of any Governmental Body or any other Person that has not been made or obtained on or
before the date hereof is necessary for the execution, delivery and performance by Xxxxxx of this
Agreement or the consummation by Xxxxxx of the transactions contemplated hereby.
4. Representations and Warranties of Ormat.
(a) Ormat hereby represents and warrants to Xxxxxx and the Company that, with respect to
Ormat, the statements set forth in Section 3.11 of the LLC Agreement are true and correct as of the
date hereof as if made on the date hereof.
(b) Ormat hereby represents and warrants to Xxxxxx as follow:
(i) At or prior to the Closing, this Agreement will have been duly and validly executed
and delivered by Ormat and (assuming due and valid execution by the other parties hereto)
will constitute a legal, valid and binding obligation of Ormat,
enforceable against Ormat in accordance with its terms (subject, however, to the
effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to
time in effect relating to the rights and remedies of creditors as well as to general
principles of equity whether considered at law or in equity).
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(ii) Neither the execution, delivery and performance by Ormat of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or result in any
breach of any provision of the Organizational Documents of Ormat, (ii) violate or conflict
with (or give rise to any right of termination, cancellation or acceleration under) any of
the terms, conditions or provisions of any material contract or other instrument or
obligation that Ormat is a party to or by which Ormat is bound or (iii) violate any material
Legal Requirement or any material license, franchise, permit or other authorization
applicable to or affecting Ormat or any of its assets.
(iii) No declaration, filing or registration with, or notice to, or authorization,
consent or approval of any Governmental Body or any other Person that has not been made or
obtained on or before the date hereof is necessary for the execution, delivery and
performance by Ormat of this Agreement or the consummation by Ormat of the transactions
contemplated hereby.
5. Acknowledgment of Ormat. Ormat hereby confirms and agrees that (i) the
consummation of the transactions contemplated by this Agreement satisfies the requirements of
Article IX of the LLC Agreement, and (ii) the transfer of the Xxxxxx Units to Ormat will not result
in a termination of the Company or any Project Company under Section 708(b)(1)(B) of the Internal
Revenue Code of 1986, as amended (the “Code”).
6. Taxes.
(a) Ormat shall be responsible for any sales taxes applicable to the sale of Xxxxxx Units
hereunder and for all other applicable sales, use, stamp, documentary, filing, recording, transfer
or similar fees or taxes. Ormat shall prepare and file, or cause to be prepared and filed, all tax
returns required to be filed with respect to any such taxes.
(b) Pursuant to Section 5.4 of the LLC Agreement, Ormat and Xxxxxx agree that the Company and
the Tax Matters Partner (as defined in the LLC Agreement) shall use the proration method (under
Section 706 of the Code) for purposes of allocating items of the Company income, gains, losses,
deductions, credits and other tax incidents to Xxxxxx and Ormat with respect to the Xxxxxx Units
transferred to Ormat pursuant to this Agreement.
(c) From the date of Closing until the end of its current taxable year, the Company shall
conduct its business in accordance with its approved budget as of the date hereof and any other
activities notified to the Members prior to the date of this Agreement, or otherwise in the
ordinary and usual course of normal day-to-day operations consistent with past practice, except
that the Parties acknowledge that the Company intends to drill another well at its Steamboat Hills
project.
(d) The Company shall provide Xxxxxx with such information that Xxxxxx reasonably requests for
the filing of any tax returns with respect to the Company or the sale of the Xxxxxx Units.
(e) The Company hereby represents and warrants that within the 12-month period ending on the
date hereof, other than the transactions contemplated pursuant to this Agreement, there has not
been a “sale or exchange” (within the meaning of Section 708(b)(1)(B)
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of the Code) of any equity
interests in the Company (including, without limitation, any Class A Membership Interests or Class
B Membership Interests).
7. Notification. Ormat will file a notice of self-recertification of qualifying
facility status within 10 days from the date hereof that complies with the applicable requirements
of 18 C.F.R. 292.207(a)(1) (2009) and discloses, as part of the notification of the change to the
upstream ownership of the Projects, the Transaction and noting that it was made pursuant to blanket
authorization under 18 C.F.R. 33.1(c)(8).
8. Future Cooperation. Each of the parties hereto agrees to cooperate at all times
from and after the date hereof with respect to all of the matters described herein, and to execute
such further assignments, releases, assumptions, amendments, notifications and other documents as
may be reasonably requested for the purpose of giving effect to, or evidencing or giving notice of,
the transactions contemplated by this Agreement.
9. LIMITATION OF DAMAGES. IN NO EVENT SHALL ANY PARTY BE LIABLE (WHETHER IN CONTRACT,
TORT, WARRANTY, STRICT LIABILITY, EQUITY OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER OR RELATING TO THIS AGREEMENT,
HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES THAT
CANNOT BE READILY ASCERTAINED AND QUANTIFIED. THE AGGREGATE LIABILITY OF EACH PARTY HEREUNDER
SHALL IN NO EVENT EXCEED THE PURCHASE PRICE.
10. Binding Effect; No Third Party Beneficiaries; Execution in Counterparts. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. This Agreement does not and is not intended to confer any
rights or remedies upon any Person other than the parties hereto. This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which shall constitute one
and the same instrument. Copies of executed counterparts transmitted by telecopy, telefax or other
electronic transmission service shall be considered original executed counterparts.
11. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to conflict of laws principles that might
require the application of the laws of another jurisdiction.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Membership Interest Purchase Agreement as
of the date first set forth above.
| XXXXXX-OPC LLC |
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| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Authorized Signatory | |||
| ORMAT NEVADA, INC. |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Assistant Secretary | |||
| OPC LLC |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Assistant Secretary, Ormat Nevada, Inc., Member |
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[Signature page to Membership Interest Purchase Agreement]
