EX-10.19 7 dex1019.htm AMENDED AND RESTATED PREFERRED PARTNERSHIP AGREEMENT Confidential Document Execution Version * CERTAIN INFORMATION, MARKED BY BRACKETS AND AN ASTERISK, IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES...
Exhibit 10.19
Confidential Document | Execution Version |
* CERTAIN INFORMATION, MARKED BY BRACKETS AND AN ASTERISK, IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
AMENDED AND RESTATED
PREFERRED PARTNERSHIP AGREEMENT
dated as of
December 27, 2010
between
BrightSource Energy, Inc.
and
ALSTOM Power Inc.
Confidential Document | December 27, 2010 |
TABLE OF CONTENTS
Page | ||||||
RECITALS | 1 | |||||
ARTICLE 1 DEFINITIONS AND INTERPRETATION | 2 | |||||
1.1 | Defined Terms | 2 | ||||
1.2 | Construction of Terms | 7 | ||||
ARTICLE 2 PROJECT COORDINATION COMMITTEE | 7 | |||||
2.1 | Purpose and Composition | 7 | ||||
2.2 | Meetings | 7 | ||||
2.3 | Roles and Responsibilities | 7 | ||||
2.4 | Limitations | 8 | ||||
ARTICLE 3 SELECTION OF JOINT PROJECTS | 8 | |||||
3.1 | Initial Cooperation on Project Opportunities | 8 | ||||
3.2 | Go / No Go Decision | 9 | ||||
3.3 | Exceptions to the Joint Pursuing of Project Opportunities | 10 | ||||
3.4 | Right to Develop Project Opportunities and Other Projects Independently | 12 | ||||
3.5 | Joint Projects Outside the Base Countries | 12 | ||||
3.6 | Joint Projects in [*] | 12 | ||||
3.7 | Joint Projects in [*] | 13 | ||||
ARTICLE 4 PROPOSAL PROCESS | 13 | |||||
4.1 | Bid / No Bid Decision | 13 | ||||
4.2 | Joint Proposal | 14 | ||||
4.3 | Consortium Agreements | 15 | ||||
4.4 | Approval of Joint Proposal | 15 | ||||
ARTICLE 5 ASSIGNMENT | 15 | |||||
5.1 | In General | 15 | ||||
5.2 | Non-Permitted Assignments | 15 | ||||
ARTICLE 6 TERM OF AGREEMENT | 16 | |||||
6.1 | Term | 16 | ||||
6.2 | Early Termination | 16 | ||||
6.3 | Effect of Termination on Pending Projects | 18 |
* | Confidential Treatment Requested |
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TABLE OF CONTENTS
(continued)
Page | ||||||
ARTICLE 7 INDEMNIFICATION AND LIABILITY | 18 | |||||
7.1 | Indemnification | 18 | ||||
7.2 | Limitation of Liability | 19 | ||||
ARTICLE 8 DISPUTE RESOLUTION | 19 | |||||
8.1 | Consultation | 19 | ||||
8.2 | Binding Arbitration | 19 | ||||
8.3 | Injunctive Relief | 19 | ||||
ARTICLE 9 CONFIDENTIALITY; PUBLICITY; INTELLECTUAL PROPERTY | 20 | |||||
9.1 | Confidential Information | 20 | ||||
9.2 | Publicity | 20 | ||||
9.3 | Intellectual Property | 20 | ||||
9.4 | System Licensing | 22 | ||||
9.5 | Intellectual Property Escrow | 22 | ||||
ARTICLE 10 REPRESENTATIONS AND WARRANTIES | 25 | |||||
10.1 | Standing | 25 | ||||
10.2 | Authority, Binding Agreement | 25 | ||||
10.3 | No Governmental Consents | 25 | ||||
10.4 | No Breach | 25 | ||||
10.5 | No Violation of Law; Litigation | 25 | ||||
ARTICLE 11 NOTICES | 26 | |||||
11.1 | Writing | 26 | ||||
11.2 | Timing of Receipt | 26 | ||||
ARTICLE 12 MISCELLANEOUS | 27 | |||||
12.1 | Relationship of the Parties | 27 | ||||
12.2 | Other Activities | 27 | ||||
12.3 | Entire Agreement; Amendment | 27 | ||||
12.4 | Joint Effort | 27 | ||||
12.5 | Captions | 27 | ||||
12.6 | Severability | 27 | ||||
12.7 | No Waiver | 28 |
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TABLE OF CONTENTS
(continued)
Page | ||||||
12.8 | Applicable Law | 28 | ||||
12.9 | Counterparts | 28 | ||||
12.10 | Survival | 28 | ||||
12.11 | Non-Use of Trademarks | 28 | ||||
12.12 | Expenses | 28 | ||||
12.13 | Third Parties | 28 |
EXHIBIT A — ENERGY OUTPUT MODEL | A-1 | |||
EXHIBIT B — PROJECT COSTS MODEL | B-1 | |||
EXHIBIT C — BASE COUNTRY BUSINESS DEVELOPMENT AND MARKETING PLAN | C-1 | |||
EXHIBIT D — MAIN PROJECT TERMS FOR EPC PROJECTS | D-1 | |||
EXHIBIT E — CONSORTIUM PRINCIPLES | E-1 | |||
EXHIBIT F — DIVISION OF WORK | F-1 |
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Confidential Document | December 27, 2010 |
AMENDED AND RESTATED
PREFERRED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PREFERRED PARTNERSHIP AGREEMENT (this “Agreement”), dated as of December 27, 2010 (the “Effective Date”), is executed and entered into by and between BrightSource Energy, Inc., a Delaware corporation (“BSE”), for itself and on behalf of its Affiliates including BrightSource Industries (Israel), Ltd. (“BSII”), and ALSTOM Power Inc. (“Alstom”), a Delaware corporation. BSE and Alstom are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”.
A. BSE and Alstom have agreed to align their interests in a strategic cooperation that leverages each Party’s core strengths and advances the Parties’ goal of developing a leading position in the worldwide market for concentrating solar power.
B. Alstom has made an investment into BSE under a Series D Preferred Stock Purchase Agreement, dated as of May 19, 2010, pursuant to which Alstom purchased BSE Series D preferred stock (the “Series D Stock Agreement”), and a Convertible Note, dated as of May 19, 2010, issued by BSE to Alstom (the “Note”, and together with the Series D Stock Agreement, the “Series D Investment”), which was converted into additional shares of BSE Series D preferred stock on August 31, 2010. In addition, Alstom Power Inc. will be making an investment in BSE Series E preferred stock concurrently with or immediately following the execution of this Agreement (the “Series E Investment”).
C. The Parties entered into the Preferred Partnership Agreement, dated as of August 31, 2010 (the “Original PPA”), setting forth the terms and conditions under which the Parties agreed to jointly market and sell solar tower thermal electric power plant projects in certain territories. In addition, the parties entered into the Preferred Turbine Supplier Agreement, dated as of August 31, 2010 (the “Original PSA”). Contemporaneously with the entry into this Agreement, Alstom and BSE are entering into an Amended and Restated Preferred Equipment Supply Agreement (the “A&R PSA”).
D. The Parties wish to amend and restate the Original PPA in its entirety in order to reflect certain changes in the agreements between them.
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. Initially capitalized terms used in this Agreement shall have the following meanings, unless the context clearly requires otherwise:
“AAA” has the meaning set forth in Section 8.2.
“Accepted Project Opportunity” has the meaning set forth in Section 3.2.3.
“Affiliate” means, with respect to any Person, any other entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For purposes of the foregoing, “control,” “controlled by” and “under common control with,” with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership, directly or indirectly, of more than 50% of the voting securities or partnership interests in such Person.
“Agreement” means this Amended and Restated Preferred Partnership Agreement, including all Exhibits attached hereto.
“Alstom” has the meaning given in the preamble to this Agreement.
“Alstom-BSE Subcontract” has the meaning set forth in Section 9.3.1.
“Alstom Competitor” has the meaning set forth in Section 6.2.1.2.
“A&R PSA” has the meaning set forth in the recitals to this Agreement.
“Base Countries” means the following countries: [*].
“BSE” has the meaning given in the preamble to this Agreement.
“BSE Technology” means the solar tower thermal electric generating technology developed and owned or controlled by BSE and/or BSII, where “controlled” for purposes of this definition means having the right to grant the rights set forth in this Agreement without having to pay any additional or incremental royalties or fees to a third party.
“BSII” has the meaning given in the preamble to this Agreement.
“Change of Control Transaction” means any transaction or series of related transactions that constitutes: (i) the sale or lease of all or substantially all of BSE’s business or assets to an acquiring entity; (ii) any merger, consolidation, share exchange, recapitalization, business combination or other transaction to which BSE is subject resulting in the exchange or sale of all
* | Confidential Treatment Requested |
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or substantially all of the outstanding shares of BSE or other consideration paid, issued, or caused to be issued, by the acquiring entity; or (iii) an acquiring entity having obtained beneficial ownership of fifty percent (50%) or more of the outstanding voting securities of BSE; provided, that a “Change of Control Transaction” will not be deemed to have occurred (A) if in any of cases (ii) or (iii), as a result of such transaction or transactions, (1) the stockholders of BSE as of the date prior to the closing of such transaction or series of transactions, in the aggregate, directly or indirectly hold more than fifty percent (50%) of the voting securities in BSE or, if BSE is no longer in existence, the surviving entity, outstanding immediately after the closing of such transaction or series of transactions, and (2) no Alstom Competitor holds, directly or indirectly, a majority of the voting securities in BSE or, if BSE is no longer in existence, the surviving entity, outstanding immediately after the closing of such transaction or series of transactions; (B) by virtue of Alstom or an Alstom Affiliate at any time holding more than fifty percent (50%) of the voting securities in the surviving entity in such transaction consummated by BSE or its parent, or (C) by virtue of any initial public offering of BSE’s equity securities or any offering of newly-issued securities after such initial public offering.
“Client” means the Person for whom the EPC Work will be or is performed, including as applicable utilities, sponsors (in the form of a special purpose company) and public bodies.
“Client Contract” means has the meaning set forth in Section 4.3.
“Commercial Implementation of the BSE Technology” has the meaning set forth in Section 6.2.2.1.
“Commercial Operation Date” has the meaning set forth in Section 6.2.3.3.
“Confidential Information” means (a) the terms and conditions (but not the existence) of this Agreement, and (b) information or material that is disclosed by one Party or its Affiliate to another Party or its Affiliate, whether before or after the Effective Date, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, materials and equipment), which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or is confidential in nature. Confidential Information may also include information received by the disclosing Party or its Affiliate from third parties under restrictions of confidentiality. Confidential Information includes any copies, notes, summaries, reports, analyses, compilations, studies and other information or material derived by the receiving Party in whole or in part from information or material described in the foregoing sentences. Notwithstanding the foregoing, “Confidential Information” shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving Party in good faith from a third party without breach of confidentiality obligations; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent
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evidence in the receiving Party’s possession and prepared contemporaneously with such independent development.
“Consortium Agreement” has the meaning set forth in Section 4.3.
“Consortium Members” has the meaning set forth in Section 4.2.3.
“Counter-Notice” has the meaning set forth in Section 9.5.4.2(a).
“Covered Project” has the meaning set forth in Section 9.5.1.
“Dispute” has the meaning set forth in Section 8.1.
“Effective Date” has the meaning given in the preamble to this Agreement.
“Energy Output Model” has the meaning set forth in Section 6.2.2.1.
“EPC Work” means the engineering, procurement and construction of a solar tower thermal electric power plant, including the design, procurement and delivery of equipment, construction, installation, commissioning, testing, provision of warranty and all other work or services required for a turnkey project. For the avoidance of doubt, EPC Work includes the installation of the Solar Field.
“Escrow Agent” means [*] or any other mutually agreed escrow agent reasonably acceptable to both Parties.
“Escrow Agreement” has the meaning set forth in Section 9.5.1.
“Escrow Materials” has the meaning set forth in Section 9.5.2.
“Escrow Materials License” has the meaning set forth in Section 9.5.4.3.
“Financial Closing Model” has the meaning set forth in Section 6.2.2.1.
“Gross Negligence” has the meaning set forth in Section 7.2.
“IEDD” has the meaning set forth in Section 6.2.2.1.
“Intellectual Property Rights” means rights arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (a) all patents and patent rights; (b) all (i) designs (whether or not capable of registration), (ii) mask works rights and copyrights, and applications therefor, and (iii) other forms of statutory or common law protection of any kind as well as trade secrets or other industrial and intellectual property rights, in all jurisdictions, where applicable; and (c) renewals and extensions for any of the foregoing in clause (b) above, but specifically excluding registered and unregistered trademarks, service marks and trade dress.
* | Confidential Treatment Requested |
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“Ivanpah Projects” means the projects that BSE is currently developing that are located in San Bernardino County, California.
“Joint Confidential Information” has the meaning set forth in Section 9.3.2.3.
“Joint IP” has the meaning set forth in Section 9.3.2.3.
“Joint Proposal” has the meaning set forth in Section 4.2.1.
“Note” has the meaning given in the recitals to this Agreement.
“Notice to Proceed” means a notice under an EPC contract that has been awarded to the Parties (or Alstom, if Alstom acts as the sole EPC contractor) whereby the EPC contractor is instructed to proceed with the EPC Work contemplated thereunder.
“Original PPA” has the meaning given in the recitals to this Agreement.
“Original PSA” has the meaning set forth in the recitals to this Agreement.
“Party” or “Parties” has the meaning given in the preamble to this Agreement.
“Person” means any legal or natural person, including any individual, corporation, partnership, limited liability company, trust, governmental or international body or agency, or other entity.
“Placement in Service Date” has the meaning set forth in Section 6.2.1.5.
“Power Island Equipment” typically includes the auxiliary steam generator and auxiliaries; steam turbine and auxiliaries; gas turbine and auxiliaries (in the case of a hybrid plant); gas turbine dependent heat recovery steam generator (in the case of a hybrid plant); electrical generators and auxiliaries; foundation design for turbine-generator and auxiliaries; condenser, including vacuum system; by-pass system; condensate system, including tank, pumps, and polisher; LP and HP preheaters; deaerator; BFW pumps; cooling water system; MV and LV electrical system, including feed to SF, SRSG and BOP; instrumentation and control; erection supervision; and commissioning and start-up, to be integrated into the overall plant commissioning and start-up.
“Pre-existing IP” has the meaning set forth in Section 9.3.2.1.
“Project” means a project for a solar tower thermal electric power plant.
“Project Costs Model” has the meaning set forth in Section 6.2.3.3.
“Project Coordination Committee” has the meaning set forth in Section 2.1.
“Project Opportunity” means a project in one of the Base Countries involving (or potentially involving) a solar tower thermal electric power plant [*] which is presented or offered to either of the Parties or an Affiliate of a Party by any third party
* | Confidential Treatment Requested |
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during the term of this Agreement, provided that such project includes, at a minimum, the opportunity to supply and construct the Solar Field (or its equivalent) and supply the other electric power generating equipment, as applicable. A Project Opportunity may also include EPC Work, equity investment and operations and maintenance services.
“Proposal” shall mean a legally binding offer submitted or to be submitted to a Client.
“Release Event” has the meaning set forth in Section 9.5.4.1.
“Release Notice” has the meaning set forth in Section 9.5.4.2.
“Rules” has the meaning set forth in Section 8.2.
“Series D Stock Agreement” has the meaning given in the recitals to this Agreement.
“Series D Investment” has the meaning given in the recitals to this Agreement.
“Series E Investment” has the meaning given in the recitals to this Agreement.
“Solar Field” means that portion of a Project Opportunity involving procurement and/or fabrication of the heliostats, all mounting and tracking systems for the heliostats, the electrical system and the control software.
“Sole IP” has the meaning set forth in Section 9.3.2.2.
“Successor” means any Person that consummates a Change of Control Transaction with BSE or otherwise succeeds to all or substantially all of the business and assets of BSE.
“Successor Intellectual Property” means the Technology and/or Intellectual Property Rights owned or controlled by a Successor, or by an Affiliate of a Successor, which Technology and/or Intellectual Property Rights were owned or controlled by the Successor or its Affiliate prior to the effective date of a Change of Control Transaction or other transaction giving rise to a Person becoming a Successor; where “controlled” for purposes of this definition means having the right to grant licenses as set forth in Section 9.5. With respect to a particular Covered Project, “Successor Intellectual Property” also includes such Technology and/or Intellectual Property Rights owned or controlled by a Successor (or an Affiliate of a Successor) after the date when the Change of Control Transaction or other transaction giving rise to the Person becoming a Successor is consummated (exclusive of the Technology and/or Intellectual Property Rights that qualified as Escrow Materials in relation to that Covered Project immediately before the date when the Change of Control Transaction or other transaction giving rise to the Person becoming a Successor is consummated).
“System License” has the meaning set forth in Section 9.4.
“Technology” means all works of authorship, software, technology, inventions, know-how, designs, methods and processes.
“Threshold” has the meaning set forth in Section 3.4.1.
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1.2 Construction of Terms. As used in this Agreement, the terms “herein,” “herewith” and “hereof” are references to this Agreement, taken as a whole; the terms “include,” “includes” and “including” shall mean “including, but not limited to;” and references to a “Section,” “subsection,” “clause,” “Article,” or “Exhibit,” shall mean a Section, subsection, clause, Article, or Exhibit of this Agreement (including all paragraphs and provisions therein), as the case may be, unless in any such case the context clearly requires otherwise. All references to a given agreement, instrument or other document shall be a reference to that agreement, instrument or other document as modified, amended, supplemented and restated through the date as of which such reference is made, and reference to a law or regulation includes any amendment of modification thereof. A reference to a Person includes its successors and permitted assigns. The singular shall include the plural and the masculine shall include the feminine, and vice versa. Words importing persons or parties shall include firms, corporations, partnerships, limited liability companies, and any other organization or entity having legal capacity.
ARTICLE 2
PROJECT COORDINATION COMMITTEE
2.1 Purpose and Composition. The Parties shall establish a committee with the roles set forth in Section 2.3 below (the “Project Coordination Committee”). The Project Coordination Committee shall be comprised of four members who shall be: (i) two BSE representatives appointed by BSE, and (ii) two Alstom representatives appointed by Alstom. Until the Project Coordination Committee is established in accordance with this Section 2.1, BSE’s initial representatives shall be [*] and Alstom’s initial representatives shall be [*]. Each Party may replace either of its representatives at any time, effective immediately upon notice to the other Party.
2.2 Meetings. The Project Coordination Committee shall convene every [*] (or more frequently if requested by either Alstom or BSE), either in person, by telephone conference, or video conference. A meeting of the Project Coordination Committee shall be held following a minimum of five (5) business days prior written notice (which notice may be given via electronic mail) to the respective Party’s representatives on the Project Coordination Committee (notwithstanding the provisions of Section 11.1), or such shorter period of time which the members of the Project Coordination Committee may unanimously agree upon. The Project Coordination Committee shall record the minutes of each meeting and such minutes shall be circulated to the members of the Project Coordination Committee within five (5) business days following the meeting for review and comment. Thereafter, at the next meeting of the Project Coordination Committee, such minutes shall be considered for approval.
2.3 Roles and Responsibilities. The Project Coordination Committee shall be a forum for regular discussions of joint marketing and development efforts, Project Opportunities and joint Projects among the Parties. More specifically, the Project Coordination Committee shall have the following duties:
2.3.1 Establish sales and marketing capabilities in the Base Countries for the anticipated Project Opportunities based on the marketing plan set forth in Exhibit C, including
* | Confidential Treatment Requested |
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identifying key individuals in the Parties’ respective organizations who will be the primary contact people in each country in the Base Countries.
2.3.2 Present and review the potential Project Opportunities of which each Party is aware to determine the mutually preferred approach for each such potential Project Opportunity. The Project Coordination Committee shall decide how to proceed in respect of each such Project Opportunity, including whether or not to proceed and the manner and timing, until the Parties’ respective Go / No Go decision as described in Section 3.2 is taken.
2.3.3 Coordinate, to the extent necessary, the Parties’ respective Go / No Go and Bid / No Bid decisions pursuant to Section 3.2 and Section 4.1 correspondingly.
2.3.4 Coordinate the Parties’ efforts to pursue Accepted Project Opportunities until the Bid / No Bid decision is taken by each of the Parties.
2.3.5 Obtain updates from the Parties’ respective teams leading the preparation of Joint Proposals, the negotiation with the respective Clients and the execution of any joint Project that has been awarded to the Parties following a Joint Proposal. It is acknowledged that to the extent that one or both Parties have established (a) a specific tendering team (generally after a ‘Bid’ decision) that is responsible for a specific Proposal or (b) a specific project management team that is responsible for a specific Project that has been awarded to the Parties, communication and decision between the Parties on the specific Project shall be made between the respective tendering team leaders or project management team leaders, correspondingly, which team leaders shall report on the progress and key events to the Project Coordination Committee (such updates to be provided, unless agreed otherwise between the Parties, for discussion at the Project Coordination Committee’s scheduled meetings, or more frequently if requested by either Alstom or BSE).
2.3.6 Address any other matters related to coordination of the Parties’ activities under this Agreement that may arise from time to time.
2.4 Limitations. The Parties agree that the Project Coordination Committee shall have no ability to take action by or on behalf of any Party. All actions under this Agreement shall be taken directly by the Parties.
ARTICLE 3
SELECTION OF JOINT PROJECTS
3.1 Initial Cooperation on Project Opportunities
3.1.1 Whenever either Party (or an Affiliate of such Party) originates a Project Opportunity (including as a result of the Parties’ joint marketing efforts), it shall designate the other Party as its preferred provider of EPC Work (where BSE originates the Project Opportunity) or the Solar Field (where Alstom originates the Project Opportunity). Each Party will keep the other Party informed about Project Opportunities of which it becomes aware (to the
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extent at least that certain minimum information is available, including the identity of the developer, the size and location of the Project Opportunity, and the development timeframe).
3.1.2 At each meeting pursuant to Section 2.2, the Project Coordination Committee shall discuss all Project Opportunities that have come to the attention of either Party and decide whether to obtain more information on the respective Project Opportunity.
3.1.3 The Project Coordination Committee shall discuss the potential requirements and structure of the relevant Project Opportunities, including whether a cooperation with the project developer and/or support for the financing of the potential Project concerned is required. The Parties agree that they will cooperate with project developers on a given Project Opportunity if such cooperation is required and reasonably acceptable to the Parties. The Parties further agree that they shall not be obligated to act as project developers themselves or accept any risks associated with such activity.
3.2 Go / No Go Decision
3.2.1 When sufficient information is available to enable the Parties to decide whether or not to pursue a Project Opportunity, including the identity of the Project Opportunity’s owner, developer, construction manager, off-taker, financing source and structure, the scope of services and/or equipment available to be supplied or provided with respect to such Project Opportunity, the specific site location of such Project Opportunity (and the owner of such site), the maximum production capacity that will be permitted at such site, availability of transmission, and an overview of the regulatory requirements associated with the Project Opportunity, each Party shall submit a Go / No Go request to its respective internal decision-making body within a time period decided by the Project Coordination Committee, or if no time period has been agreed or specified, within a reasonable time period having regard to the requirements of the applicable Project Opportunity.
3.2.2 The Go / No Go decision shall be at the sole discretion of the respective Party and the Parties shall inform each other promptly of the respective decision taken. Alstom acknowledges that BSE currently does not have, and likely will not have in the near future, internal resources to pursue more than [*] Project Opportunities concurrently in any 12-month period. For purposes of this Section 3.2.2, pursuit of a Project Opportunity means reviewing such Project Opportunity for purposes of reaching a Go / No Go or Bid / No Bid decision, preparing a Joint Proposal, negotiating definitive agreements or carrying out any other substantial preparatory work prior to the issuance by the EPC contractor of the Notice to Proceed. BSE agrees that it shall notify Alstom as early as possible in case of possible resource constraints in the future in respect of any such pursuit of a Project Opportunity.
3.2.3 If both Parties have obtained a ‘Go’ decision from their respective decision-making bodies, the Project Opportunity shall become an “Accepted Project Opportunity” and the Parties shall dedicate sufficient resources to gather further information on and examine options to pursue such Accepted Project Opportunity. Notwithstanding the foregoing, neither Party shall have any obligation to prepare or submit a Proposal.
* | Confidential Treatment Requested |
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3.2.4 If either Party has elected a ‘No Go’, the other Party shall be free to pursue the Project Opportunity, alone or with a third party, independently of the refusing Party, and neither the refusing Party nor any of its Affiliates shall have any rights or interest in such Project Opportunity, and neither the refusing Party nor any of its Affiliates shall participate in any other competing bid or proposal for such Project Opportunity.
3.2.5 If one Party has obtained a ‘Go’ decision, and the other Party has not taken a Go / No Go decision (i) within the time period set by the Project Coordination Committee pursuant to Section 3.2.1 or (ii) if no such time period was agreed by the Project Coordination Committee but sufficient information to take a Go / No Go decision, as described in Section 3.2.1, is available, then the first Party may provide a notice to the other Party requesting a Go / No Go decision, and the other Party shall notify the first Party of its decision within 30 days from receipt of such notice. If the other Party elects a ‘No Go’ or fails to respond within such 30-day period, the first Party shall be free to pursue the Project Opportunity as described in Section 3.2.4.
3.3 Exceptions to the Joint Pursuing of Project Opportunities
3.3.1 Restriction to Bid. [*].
3.3.2 BSE Exceptions. The obligation of BSE to refer Project Opportunities to Alstom pursuant to this Agreement do not apply:
(a) to the solar thermal electric power plant project using BSE Technology currently under development by BSE and NUR Energie in Crete;
(b) to any Project Opportunity in which BSE is an equity investor and Alstom was given the opportunity to invest but declined to do so, provided that this Section 3.3.2 (b) shall not limit BSE’s obligations to grant Alstom Preferred Supply Rights (as defined in the A&R PSA) to the extent required under the A&R PSA;
(c) to any Project Opportunity for which [*], provided that BSE shall use commercially reasonable efforts to include Alstom as the [*]; or
(d) to any Project Opportunity for a Project with [*].
* | Confidential Treatment Requested |
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3.3.3 Alstom Exceptions. Until Commercial Implementation of the BSE Technology, notwithstanding anything to the contrary in this ARTICLE 3, Alstom shall be entitled to make proposals for projects that specify technologies other than solar tower technology without involving BSE.
3.4 Right to Develop Project Opportunities and Other Projects Independently
3.4.1 Threshold. After the date on which (a) the Parties have submitted Joint Proposals for [*] Projects or (b) the Parties have been awarded [*] joint Projects and have received Notices to Proceed for such joint Projects (the “Threshold”), whichever is earlier, each Party shall be permitted to work with third party EPC contractors, in the case of BSE, or third party solar technology providers, in the case of Alstom, and to submit joint proposals with such third parties, for up to [*] Projects. A Party may exercise the foregoing rights in its sole discretion and in a non-consecutive manner. Furthermore, each time that the Threshold is met during the term of this Agreement, each Party shall accrue the right to submit proposals with third parties for up to [*] more Projects.
3.4.2 Other Projects. Except as set forth in this Agreement, either Party shall have the right to develop solar projects (including any opportunities outside of the Base Countries), either alone or in cooperation with third parties. [*].
3.5 Joint Projects Outside the Base Countries. If the Parties decide, in their sole discretion, to work together on and make a joint Proposal for any Project outside the Base Countries, the provisions of Section 9.3 and Section 9.5 of this Agreement, and, if the Parties (or their Affiliates) decide to make a joint Proposal on a consortium basis, the principles set out in Exhibit E (Consortium Principles) and Exhibit D (Main Project Terms for EPC Projects) to this Agreement, each as they may be amended from time to time over the duration of this Agreement, shall apply mutatis mutandis unless otherwise agreed between the Parties.
3.6 Joint Projects in [*]. The Parties agree to cooperate in good faith and on an exclusive basis to enter into an agreement for jointly marketing solar tower thermal electric power plants and jointly developing solar tower thermal electric power plant projects in [*]. If the Parties have not entered into an agreement for [*] on or before [*], the Parties shall have no further obligations under this Section 3.6. During this exclusive period, the Parties shall use their respective resources and work together to explore the market and determine whether it is commercially advisable to enter the [*]market, what products should be marketed, how projects would be developed and financed and whether there are local partners with which to joint venture or otherwise cooperate.
3.7 Joint Projects in [*]. The Parties agree to cooperate in good faith to explore mutually acceptable strategies for developing solar tower thermal electric power plants in [*]. BSE shall not, for a period of [*] following the Effective Date, enter into an agreement with any other Person that would preclude BSE from working with Alstom or Alstom Affiliates on future solar tower thermal electric power plant projects in [*], other
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than projects in [*].
ARTICLE 4
PROPOSAL PROCESS
4.1 Bid / No Bid Decision
4.1.1 Promptly following a Project Opportunity becoming an Accepted Project Opportunity, each Party shall devote additional internal resources to gather additional information on the Accepted Project Opportunity and, as soon as sufficient information is available (including, if applicable, the tender package from the party sponsoring the bid process) to make a decision as to whether to submit a Proposal on the Accepted Project Opportunity, each Party shall submit a Bid / No Bid request to its respective internal decision-making body within the time period set by the Project Coordination Committee, or if no time period has been agreed or specified, within such time period as is reasonable given the deadline for submitting proposals for such Project Opportunity.
4.1.2 For clarity, the Bid / No Bid decision remains at the sole discretion of the respective Party. The Parties shall inform each other promptly of the respective decision taken.
4.1.3 Any “Bid” decision shall include, as provided in Section 4.3, an indication of the contract structure that a Party determines is appropriate for an Accepted Project Opportunity based on the requirements for such Accepted Project Opportunity. If the Parties indicate different structures in their respective “Bid” decisions, and are unable to mutually agree on a contract structure within [*] from the date when both Parties have taken a “Bid” decision, the disagreement shall be immediately referred to the Senior Vice President Finance of the Alstom Power Sector (the “Alstom Power SVP Finance”) and the Chief Executive Officer of BSE (the “BSE CEO”). If then the Alstom Power SVP Finance and the BSE CEO have not agreed on a contract structure for the Accepted Project Opportunity concerned within another [*] (as such period may be extended by mutual written agreement between the Parties), each Party, and any of their Affiliates, shall be free to submit a Proposal for the Project Opportunity concerned, alone or with a third party, independently of each other, subject to such Party having acted in good faith in the Parties’ attempt to reach agreement on a contract structure.
4.1.4 If either Party declines to submit a Proposal (‘No Bid’ decision), the other Party shall be free to submit a Proposal for the Project Opportunity concerned, alone or with a third party, independently of the refusing Party, and neither the refusing Party nor any of its Affiliates shall have any rights or interest in such Project Opportunity, and neither the refusing Party nor any of its Affiliates shall participate in any other competing bid or proposal for such Project Opportunity.
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4.1.5 If one Party has obtained a ‘Bid’ decision, and the other Party has not taken a Bid / No Bid decision (i) within the time period decided by the Project Coordination Committee pursuant to Section 4.1.1 or (ii) if no such time period was agreed by the Project Coordination Committee but sufficient information to take a Bid / No Bid decision is available (in particular if the tender package has been released), then the first Party may provide a notice to the other Party requesting a Bid / No Bid decision. The other Party shall notify the first Party of its decision within ten (10) business days (or any such longer time period specified in the first Party’s notice) from receipt of such notice. If the other Party elects a ‘No Bid’ or fails to respond within such 10 business day period (or longer time period specified in the first Party’s notice), the first Party shall be free to submit a Proposal as described in Section 4.1.4.
4.2 Joint Proposal
4.2.1 If both Parties have obtained a ‘Bid’ decision from their respective decision-making bodies, each Party agrees to use commercially reasonable efforts, including by dedicating adequate resources, to prepare and submit a joint Proposal for the Project Opportunity concerned (“Joint Proposal”). Notwithstanding the foregoing, either Party may elect, in it sole discretion at any time until a Joint Proposal is submitted to the Client, not to proceed with the respective Proposal. If at any time a Party so elects not to proceed with preparing or submitting a Joint Proposal for an Accepted Project Opportunity and has made an express and definitive statement accordingly, in writing and signed by at least one of that Party’s representatives in the Project Coordination Committee, then the other Party shall be free to submit a Proposal, alone or with a third party, as described in Section 4.1.4.
4.2.2 Each Party shall use commercially reasonable efforts to ensure that the material terms for its part of the Joint Proposal are competitive in the market where the respective Project is located; provided however that neither Party shall have an obligation to accept a ‘negative margin.’
4.2.3 The Parties agree that whenever BSE and Alstom (or their Affiliates) make a Joint Proposal for a Project on a consortium basis (regardless of whether one or both of BSE and Alstom (or Affiliates) enter into the contract with the Client) (BSE and Alstom or their respective Affiliates that are members to the EPC consortium are referred to as the “Consortium Members”), the Main Project Terms set out in Exhibit D will be used as a basis for the Joint Proposal.
4.3 Consortium Agreements. [*] Whenever any form of consortium structure is adopted, prior to submitting a Joint Proposal the Parties shall enter into a consortium agreement that will govern the Parties’ respective rights and obligations with respect to the Joint Proposal,
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negotiation of the contract with the Client (the “Client Contract”) and performance of all work and services under the Client Contract (any such agreement, a “Consortium Agreement”). Each Consortium Agreement shall reflect the principles set forth in Exhibit E, except if and to the extent that the Parties agree otherwise.
4.4 Approval of Joint Proposal. Each Party shall ensure that it has received all necessary internal management approval of such Party’s obligations under the Joint Proposal on or before the date the Proposal for such Project Opportunity is due. No Joint Proposal may be submitted by either Party to a Client without the approval of both Parties.
ARTICLE 5
Subject to the provisions hereof, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
ARTICLE 6
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6.2.1.1 Alstom acquires a majority interest in, or a majority of Alstom is acquired by, a solar tower technology provider other than BSE and its Affiliates.
6.2.1.2 BSE undergoes a Change of Control Transaction where an Alstom Competitor is the surviving controlling party of BSE. An “Alstom Competitor” shall mean a global supplier of power plants and/or power island equipment and shall include [*]. In addition, consummation of a Change of Control Transaction by BSE with an EPC contractor in the power industry which is not an Alstom Competitor, including [*], shall also give rise to a right of either Party to terminate this Agreement.
6.2.1.3 The other Party files for insolvency or bankruptcy, makes a general assignment for the benefit of creditors, has a receiver or administrator appointed, commences winding up or similar proceedings or ceases or threatens to cease to carry on business or becomes unable to pay its debts as they fall due.
6.2.1.4 The other Party is in material breach of this Agreement, and, to the extent that such breach is curable, such breach has not been cured within thirty (30) days of notice of such breach by the non-breaching Party stating its intent to terminate in the event that said breach is not cured within said time period, or if cure is not realistically possible within thirty days, reasonable and documented action to cure such material breach has not been diligently initiated and pursued following the service of such notice.
6.2.1.5 Upon the [*] anniversary following the placement in service date (as indicated in the project owner’s Treasury Cash Grant (Section 1603) application for Ivanpah I) of Ivanpah I (the “Placement in Service Date”), Alstom (or an Affiliate of Alstom) as provider of EPC Work has not received Notices to Proceed for the construction of Projects with an aggregate capacity of at least [*] MW in the Base Countries for which the Parties submitted Joint Proposals.
6.2.1.6 Despite the terminating Party’s willingness to participate in Accepted Project Opportunities and corresponding ‘Bid’ decisions, the Parties have not submitted together at least [*] Joint Proposals for Project Opportunities under this Agreement within [*] from the Placement in Service Date.
6.2.2.1 BSE may terminate this Agreement if after Commercial Implementation of the BSE Technology, Alstom acquires a majority interest in, or a majority of Alstom is acquired by, a non-tower solar thermal technology provider. “Commercial Implementation of the BSE Technology” shall have occurred when the Ivanpah I plant has operated successfully for [*] from the Initial Energy Delivery Date for Ivanpah I (as defined in the Power Purchase Agreement for Ivanpah I) (the “IEDD”). The Ivanpah I plant shall be deemed to have operated successfully if the plant has achieved [*] percent of the energy
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output projected for such [*] period in the pro forma financial model attached as Exhibit A (the “Energy Output Model”), adjusted to reflect actual operating results that are beyond BSE’s control (such as weather, force majeure, operations and maintenance, and power block performance). The Parties acknowledge that a final pro forma financial model reflecting the most updated information and assumptions will be agreed by the Ivanpah I equity investors for purposes of the project’s financial closing (the “Financial Closing Model”), and agree to discuss in good faith updating the Energy Output Model to reflect the Financial Closing Model.
6.2.2.2 BSE may terminate this Agreement if Alstom divests itself of its business of providing equipment and/or EPC Work to projects similar to the Project Opportunities.
6.2.2.3 BSE may terminate this Agreement if Alstom sells or otherwise disposes of all or substantially all of its shares in BSE.
6.2.3.1 Alstom may terminate this Agreement if BSII is no longer an Affiliate of BSE, unless the new owner or controlling party of BSII assumes all of BSE’s obligations under this Agreement.
6.2.3.2 Alstom may terminate this Agreement if BSE acquires a majority interest in an Alstom Competitor.
6.2.3.3 Alstom may terminate this Agreement if (a) the Commercial Operation Date (as defined in the Power Purchase Agreement for Ivanpah I) of Ivanpah I (“Commercial Operation Date”) does not occur on or before [*], (b) the actual total project costs on the Commercial Operation Date exceed [*] of the total budgeted project costs as reflected in the pro forma financial model attached as Exhibit B (the “Project Costs Model”), or (c) the Ivanpah I plant fails to achieve Commercial Implementation of the BSE Technology; provided, however, that Alstom may only elect to exercise its termination rights under this Section 6.2.3.3 if it gives BSE written notice of such election within sixty days after (i) [*], in the case of clause (a) above, (ii) the Commercial Operation Date, in the case of clause (b) above, or (iii) the [*] anniversary after the IEDD, in the case of clause (c) above. The Parties acknowledge that the Ivanpah I equity investors will prepare the Financial Closing Model and agree to discuss in good faith updating the Project Costs Model to reflect the Financial Closing Model.
6.3 Effect of Termination on Pending Projects
6.3.1 Upon expiry or termination of this Agreement for any reason, neither Party shall have any obligations toward the other Party with respect to any Project Opportunities (whether discussed by the Parties or not) or Accepted Project Opportunities that are not subject to a Consortium Agreement or Alstom-BSE Subcontract or a Joint Proposal already submitted to the Client. No expiry or termination of this Agreement shall have any effect on the Parties’ (or their Affiliates’) respective obligations under a Consortium Agreement or Alstom-BSE
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Subcontract unless such Consortium Agreement or Alstom-BSE Subcontract expressly provides otherwise.
6.3.2 For clarity, no expiry or termination of this Agreement shall have any effect on the A&R PSA or the Parties’ respective obligations thereunder.
ARTICLE 7
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ARTICLE 8
8.2 Binding Arbitration. If the Dispute is not resolved within fifteen (15) days following the date on which such notice is given, the Dispute shall be submitted to confidential, binding arbitration at the request of either Party with notice to the other Party. The arbitration shall be conducted in New York, New York and shall be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules of the AAA in force at the time of the commencement of the arbitration (the “Rules”). Three (3) arbitrators shall be appointed as follows: the Party requesting arbitration shall appoint one arbitrator and disclose the name of such arbitrator in its demand (as defined in the Rules), and the other Party shall appoint one arbitrator and disclose the name of such arbitrator in its answering statement (as defined in the Rules). The two arbitrators shall then have ten (10) business days to agree on a third arbitrator, who shall act as the chairman. If the two arbitrators appointed by the Parties cannot agree on the third arbitrator, the third arbitrator shall be selected in accordance with the Rules. The arbitration proceedings shall be conducted in English. Each Party (a) hereby irrevocably agrees that all complaints shall be heard and determined exclusively by the AAA, and (b) agrees not to commence any action, suit or proceeding relating to this Agreement by any means whatsoever other than initiating arbitration in the AAA (subject only to Section 8.3). The award rendered by the arbitrators shall be final and binding and may be entered and enforced as a final judgment in accordance with New York law in any court of competent jurisdiction.
8.3 Injunctive Relief. Notwithstanding the foregoing, nothing in this Article 8 shall prevent a Party from seeking preliminary injunctive relief from a court and each Party hereto irrevocably agrees to submit to the jurisdiction and venue of any court of the State of New York or the United States District Court for the Southern District of the State of New York for the purpose of any such suit, action or other proceeding.
ARTICLE 9
CONFIDENTIALITY; PUBLICITY; INTELLECTUAL PROPERTY
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with regard to this Agreement and shall not be used for any other purpose. Notwithstanding the foregoing, such obligations of confidentiality shall not apply to any Confidential Information that is required to be disclosed by law or an order of any court or governmental body, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement prior to such disclosure, gives assistance in obtaining an order protecting the information from public disclosure and takes all other reasonable steps required to minimize the extent of the Confidential Information disclosed and to make such disclosure in confidence. Upon expiration or other termination of this Agreement, all Confidential Information shall be returned to the Party from whom received, or shall be destroyed with an appropriate assurance that any and all copies thereof have been destroyed, or shall be retained by the receiving Party subject to the confidentiality, non-disclosure and use restrictions of this Article 9.
9.3.2 Intellectual Property Ownership under the Agreement. The Parties do not intend to perform any development of Technology under this Agreement. It is the Parties’ expectation that in the event that the Parties, or their Affiliates, intend to collaborate to develop a Technology, the Parties (or their respective Affiliates) will enter into a specific agreement covering inter alia roles and responsibilities, investment and resources, intellectual property ownership, licensing, prosecution, maintenance and enforcement of Intellectual Property Rights. In the event that Technology or Intellectual Property Rights do arise under this Agreement, however, and to the extent that the Parties (or their Affiliates) have not made specific provisions in a separate agreement executed between them, the Parties agree that the following terms and conditions will apply.
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9.3.2.1 All Technology and Intellectual Property Rights developed, authored, or first conceived by or on behalf of a Party or its Affiliate prior to the Effective Date of the Original PPA shall remain the sole property of the respective Party or Affiliate (“Pre-existing IP” of BSE, Alstom, or their Affiliates, respectively).
9.3.2.2 Subject to Section 9.3.2.3 below, all Technology and Intellectual Property Rights that are developed, authored, or first conceived under this Agreement solely by employees, agents or consultants of a Party or its Affiliates shall be and remain the sole property of the respective Party or Affiliate (“Sole IP” of BSE, Alstom, or their Affiliates, respectively).
9.3.2.3 Technology and Intellectual Property Rights that are first conceived by employees, agents or consultants of both Parties (or their Affiliates), or result from joint development or joint authorship by employees, agents or consultants of both Parties (or their Affiliates), exclusive of Pre-existing IP and Sole IP, will be jointly owned by the Parties (collectively, the “Joint IP”). Subject to the provisions set out in this Section 9.3.2.3, each Party shall be entitled to exercise all rights in and to the Joint IP for any purpose (including grants of non-exclusive licenses without obtaining the consent of the other Party), without duty to account to the other Party; provided, however, that if the subject of such exercise is the granting by one Party to a third party of a license to a patent within the Joint IP or the disclosure by one Party to a third party of Joint Confidential Information, the Parties will first discuss in good faith, giving due consideration to the Parties’ respective interests (for clarity the Parties will be under no obligation under this Section 9.3.2.3 to come to agreement or to obtain formal consent to license Joint IP). The prosecution, maintenance and enforcement of Joint IP shall be as mutually agreed in a written agreement among the Parties. Any disclosure by a Party (or its Affiliates) to third parties of any Joint IP that is of a proprietary or confidential nature and that does not fall within one of the exclusions set forth in subsections (i) through (v) of the definition of “Confidential Information” first set forth above (“Joint Confidential Information”) shall be subject to a written, signed confidentiality agreement containing terms and conditions that limit disclosure and use (including further disclosure and use) in a manner that is substantially as protective of the disclosed Joint Confidential Information as the agreements that the disclosing Party uses with respect to its own other confidential or proprietary information of like nature.
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System License with Alstom. However, if BSE determines not to pursue a System License with such third party, then the foregoing provisions shall remain in effect for any subsequent System License that BSE elects to pursue.
9.5 Intellectual Property Escrow
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9.5.4 Release of Escrow Materials
(a) BSE ceases to function as a going concern or to do business in the ordinary course;
(b) BSE files a voluntary petition in bankruptcy or is subject to bankruptcy (including without limitation, appointment of a receiver or trustee in bankruptcy, receivership, liquidation, assignment for the benefit of creditors or composition of creditors) or an order for relief is entered against BSE under, (i) Chapter 7 of the U.S. Bankruptcy Code or comparable provision of any other jurisdiction, or (ii) Chapter 11 of the U.S. Bankruptcy Code or comparable provision of any other jurisdiction if BSE has materially breached the Client Contract or as applicable has materially breached the Alstom-BSE Subcontract or the Consortium Agreement causing the Contractor (as defined in Exhibit D) to default under the Client Contract and the Escrow Materials are required to cure such breach.
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(b) Counter-Notice. If BSE disputes the existence of the conditions upon which the Release Notice is based, then BSE shall, within ten (10) business days following the delivery of the Release Notice by the Escrow Agent, submit a Counter-Notice to the Escrow Agent with copy to Alstom. If the Counter-Notice is received by the Escrow Agent before the close of business on the tenth (10th) business day following the date on which the Release Notice was delivered to BSE by the Escrow Agent, then the Escrow Agent shall, within three (3) business days after receipt of any such Counter-Notice, serve a copy of the Counter-Notice on Alstom and withhold delivery of the Escrow Materials pending receipt of (i) a decision pursuant to the applicable dispute resolution mechanism set forth in the Escrow Agreement or in the Consortium Agreement or Alstom-BSE Subcontract, as applicable, or if no such provision exists, then in accordance with Section 8.2, (ii) an order from a court of competent jurisdiction, or (iii) written instructions jointly signed by both Parties. Upon receipt of such decision, order or instructions, the Escrow Agent shall deliver a copy of the Escrow Materials only in accordance with such decision, order or instructions.
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ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Party as of the Effective Date, that:
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ARTICLE 11
If delivered to BSE:
BrightSource Energy, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Attn: Senior VP of Global Development
If delivered to Alstom:
ALSTOM Power Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: [*]
cc: ALSTOM (Switzerland) Ltd
Xxxxx Xxxxxx Xxxxxxx 0
XX-0000 Xxxxx
Xxxxxxxxxxx
Attn: General Counsel Power
Each Party shall have the right to change the place to which notice shall be sent or delivered or to specify one additional address to which copies of notices may be sent, in either case by similar notice sent or delivered in like manner to the other Party.
* | Confidential Treatment Requested |
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ARTICLE 12
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12.8 Applicable Law. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of New York, exclusive of conflicts of laws provisions.
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AGREEMENT EXECUTION
BrightSource Energy, Inc: | ALSTOM Power Inc.: | |||||||
By: | /s/ Xxxx Xxxxxxx | By: | /s/ Xxxxxxx X. Currant | |||||
Name: | Xxxx Xxxxxxx | Name: | Xxxxxxx X. Currant | |||||
Title: | CEO | Title: | President | |||||
BrightSource Industries (Israel), Ltd. acknowledges that it has reviewed this Agreement and shall cooperate (through BSE or otherwise) with BSE in all respects in order to allow BSE to comply with its obligations under this Agreement.
BrightSource Industries (Israel), Ltd.: | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Name: | Xxxxxx Xxxxxxx | |
Title: | President | |
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EXHIBIT A
ENERGY OUTPUT MODEL
Net Delivered Output (in MWh) | ||||
First quarter after Initial Energy Delivery Date | [*] | |||
Second quarter after Initial Energy Delivery Date | [*] | |||
Third quarter after Initial Energy Delivery Date | [*] | |||
Fourth quarter after Initial Energy Delivery Date | [*] | |||
Total - first year of commercial operations | [*] |
Source: Ivanpah 1 financial model as of July 7, 2010.
* | Confidential Treatment Requested |
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EXHIBIT B
PROJECT COSTS MODEL
Total Capital Costs (in $000s)*
Plant supply and erection | [*] | |||
Sales taxes | [*] | |||
Owner costs during construction | [*] | |||
Owner’s contingency | [*] | |||
Total | [*] |
* | Total capital costs excludes development costs, financing fees and closing costs, reserves, and interest during construction. |
Source: Ivanpah 1 financial model as of July 7, 2010.
* | Confidential Treatment Requested |
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EXHIBIT C
BASE COUNTRY BUSINESS DEVELOPMENT AND MARKETING PLAN
Alstom and BSE will carry out a business development and marketing program to identify and promote Solar Tower Thermal Electric Power Projects (“STTEPP”) in the Base Countries based on the principles described below. For the purposes of joint marketing and development efforts, when used herein “Alstom” and “BSE” includes as applicable either Party’s respective Affiliates.
1. | Alstom and BSE will each nominate one person to have shared responsibility for developing and implementing a STTEPP business development and marketing program across the Base Countries (the “Business Development Executives”). |
2. | The Business Development Executives, in coordination with the Project Coordination Committee (as defined in the Amended and Restated Preferred Partnership Agreement), will evaluate and agree on which Base Countries offer the greatest potential for the sales of STTEPPs (the “Target Countries”) and develop a strategy for introducing Alstom/BSE’s STTEPP capability into each Target Country. Business development and marketing activities in other Base Countries will be defined and carried out on an as-required basis. |
3. | Alstom Global Power Sales (“GPS”) will identify one GPS individual in each Target Country (each a “GPS Representative”) to have responsibility for STTEPP business development in that country. |
4. | The GPS Representative in each Target Country will be responsible for developing and carrying out a STTEPP business development program in his/her Target Country. This will include introducing Alstom/BSE’s STTEPP capability to the appropriate audiences in their Target Country, including to regulatory bodies, private and public sector utility companies, large private sector consumers, and financial entities. |
5. | BSE will work with GPS to train the GPS Representatives and Alstom sales team, and other Alstom personnel as appropriate (collectively “Alstom Teams”), to enable them to efficiently promote identify, target and promote STTEPP project opportunities in the Target Countries. |
6. | BSE and GPS will develop marketing materials including introductory presentations, and other collateral for use by the Alstom Teams. |
7. | BSE will support members of the Alstom Teams by providing information, advice, etc. as required. BSE will make key business development and technical personnel available for in-person meetings and calls with concerned parties in the Target Countries when GPS and BSE management agree that such involvement is essential. |
8. | The Alstom Teams and the Business Development Executives will evaluate the need for and/or desirability of involving third parties, including developers, financial entities, etc. in the Parties’ sales and marketing programs in any Target Country and make recommendations to the Project Coordinating Committee as necessary regarding any proposed relationships. |
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EXHIBIT C
BASE COUNTRY BUSINESS DEVELOPMENT AND MARKETING PLAN
9. | Within thirty days after execution of the Amended and Restated Preferred Partnership Agreement, the Business Development Executives will present a report to the Project Coordination Committee summarizing the STTEPP strategy and outlook in each Target and Base Country. This will include an STTEPP Pipeline Report that provides basic information about all specific opportunities that have been identified. This report will be updated on a monthly basis, or more frequently if required. |
10. | The Business Development Executives will make recommendations to the Project Coordination Committee, and to both BSE and Alstom’s management, regarding the prioritization of key target Project Opportunities. |
Periodically, but no less than quarterly, each GPS Representative will meet with the Business Development Executives, either physically or telephonically, to report and discuss the situation and opportunities in the respective Target Country.
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
General
Capitalized words and expressions used herein shall, unless otherwise defined, have the same meaning as is ascribed thereto in the Amended and Restated Preferred Partnership Agreement.
BSE and Alstom agree that whenever BSE and Alstom (or their Affiliates) make a Joint Proposal for a Project on a consortium basis (regardless of whether one or both of BSE and Alstom (or Affiliate) enter into the contract with the Client) (BSE and Alstom or their respective Affiliates that are members to the EPC consortium are referred to in this Exhibit D as the “Consortium Members”), these Main Project Terms will serve as a basis for the EPC offer in the respective Joint Proposal in accordance with the following principles:
[*]
d. | BSE and Alstom agree that these Main Project Terms are not exhaustive and other issues will be raised during the negotiation of the Contract, including for example finance, security and other related issues. If applicable, the Consortium Members shall consider reasonable finance-related requirements of Project lenders and technical requirements arising from other Project agreements, to the extent these do not materially affect the Consortium Members’ rights and responsibilities, scope of work, prices, schedule or liabilities. |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
The term “Parties”, or individually “Party”, when used in Sections 1 through 21 below, means the parties, or individually a party, to the Contract, i.e. the EPC contractor (“Contractor”) and the Client.
1. | Contract Effectiveness and Commencement of Work (NTP) |
[*] |
2. | Site Conditions; Below Ground Risks |
[*] |
3. | Permits, Consents and Licences |
[*] |
4. | Delivery and Acceptance (PAC) |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
5. | Terms of Payment |
[*] |
6. | Care of the Works; Risk of Loss or Damage |
[*] |
7. | Insurance |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
8. | Quality Assurance; Drawings; Inspections and Tests; Subcontracting |
[*] |
9. | Extensions of Time / Suspension |
[*] |
10. | Time for Completion; Delay LDs |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
11. | Performance Guarantees / Performance LDs |
[*] |
* | Confidential Treatment Requested |
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Confidential Document | December 27, 2010 |
EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
12. | Defects Liability |
[*] |
13. | Indemnities |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
14. | Limits of Liability |
[*] |
15. | Bonds and Guarantees |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
16. | Taxes and Duties |
[*] |
17. | Contractor’s Rights |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
18. | Variation Orders |
[*] |
19. | Intellectual Property Rights; Confidentiality |
[*] |
20. | Adjudication, Disputes and Applicable Law |
[*] |
* | Confidential Treatment Requested |
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EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
[*]
21. | Entire Agreement; General Provisions |
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* | Confidential Treatment Requested |
D-10
Confidential Document | December 27, 2010 |
EXHIBIT D
MAIN PROJECT TERMS FOR EPC PROJECTS
Attachment A
Force Majeure and Client’s Risks
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* | Confidential Treatment Requested |
D-11
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
Capitalized words and expressions used herein shall, unless otherwise defined, have the same meaning as is ascribed thereto in the Amended and Restated Preferred Partnership Agreement.
1. | General |
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2. | Completeness of Work |
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3. | Variation Orders |
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* | Confidential Treatment Requested |
E-1
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
4. | Leader of the Consortium |
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5. | Management Committee |
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6. | Terms and Conditions |
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7. | Price |
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* | Confidential Treatment Requested |
E-2
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
8. | Costs and Resources |
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9. | Payments |
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10. | Joint and Several Liability |
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11. | General Liability for Default |
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* | Confidential Treatment Requested |
E-3
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
12. | Liability for liquidated damages for delay |
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* | Confidential Treatment Requested |
E-4
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
13. | Performance Guarantees; Liability for Liquidated Damages for Performance |
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14. | Exclusion of “Consequential” Losses |
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15. | Termination of Consortium Agreement |
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16. | Insurance |
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* | Confidential Treatment Requested |
E-5
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
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17. | Payment and Performance Guarantees (Bonds) |
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18. | Applicable Law / Dispute Resolution |
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19. | Confidentiality / Intellectual Property Rights |
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20. | Division of Work |
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21. | Execution of the Client Contract |
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* | Confidential Treatment Requested |
E-6
Confidential Document | December 27, 2010 |
EXHIBIT E
CONSORTIUM PRINCIPLES
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* | Confidential Treatment Requested |
E-7
Confidential Document | December 27, 2010 |
EXHIBIT F
DIVISION OF WORK
ALSTOM / BRIGHTSOURCE
POTENTIAL EPC CONTRACT FOR PROJECT
UTILIZING BRIGHTSOURCE TECHNOLOGY
Alstom
Services:
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Equipment:
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BrightSource
Services:
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Equipment:
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* | Confidential Treatment Requested |
F-1
Confidential Document | December 27, 2010 |
EXHIBIT F
DIVISION OF WORK
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Other:
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* | Confidential Treatment Requested |
F-2