Exhibit 10.8(h)
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ASSIGNMENT OF POWER PURCHASE CONTRACTS
By and Between
"ZOND"
ZOND SYSTEMS, INC.,
a California corporation
and
"THE PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-A,
a California Limited Partnership
as of
September 9, 1985
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TABLE OF CONTENTS
Section Heading Page
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1 ASSIGNMENT 1
2 ACCEPTANCE 1
3. TERM 1
4. REPRESENTATIONS AND AGREEMENTS OF ZOND 2
4.1 Form and Status of Agreement 2
4.2 Enforcement 2
4.3 Additional Agreements 2
4.4 Encumbrances 2
5. RIGHT TO CURE 2
6. APPOINTED REPRESENTATIVE 3
7 AMENDMENT OF POWER AGREEMENTS 3
8. MISCELLANEOUS PROVISIONS 3
8.1 Notices 3
8.2 Waiver 3
8.3 Assignment 4
8.4 Successors and Assigns 4
8.5 Further Assurances 4
8.6 Construction of Assignment 4
8.7 Attorneys' Fees 4
8.8 Counterparts 5
8.9 Effective Date 5
8.10 Entire Assignment 5
Exhibit A - Power Agreements
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ASSIGNMENT OF POWER PURCHASE CONTRACTS
THIS ASSIGNMENT OF POWER PURCHASE CONTRACTS ("Assignment") is entered
into as of September 9, 1985 by and between ZOND SYSTEMS, INC., a California
corporation ("Zond"), and ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-A, a
California limited partnership (the "Partnership").
RECITALS
A. On June 22, 1984 Zond entered into the Power Purchase Contracts
with Southern California Edison Company which are listed on the attached Exhibit
A and incorporated herein by this reference (individually a "Power Agreement"
and collectively the "Power Agreements").
B. Zond now desires to make an assignment of the Power Agreements
to the Partnership to allow the Partnership to sell to Southern California
Edison Company all electricity generated by those Turbines purchased from Zond
Construction Corporation III, a California corporation ("ZCC III").
NOW, THEREFORE, in consideration of the Partnership's acceptance of this
Assignment and the covenants set forth in the Windsystem Management Agreement
between Zond and the Partnership, the parties hereto agree as follows:
1. ASSIGNMENT
Zond hereby assigns to the Partnership the Power Agreements described on
the attached Exhibit A. This Assignment is made expressly subject to the prior
security interest of Scandinavian Bank Limited, Western America International
Branch ("SBL") in the Power Agreements. Notwithstanding the foregoing, nothing
contained in this Assignment shall relieve Zond from performing any covenant,
agreement or obligation on the part of Zond to be performed or from observing
any condition on the part of Zond to be observed under or in respect to the
Power Agreements or from any liability thereunder.
2. ACCEPTANCE
The Partnership hereby accepts the assignment as set forth in Section 1,
subject to the existing collateral security interests of SBL and to the terms
and conditions of this Assignment and agrees to be bound by, and comply with,
all of the terms and conditions of the Power Agreements to the extent applicable
to it as assignee of the Power Agreements under this Assignment.
3. TERM
This Assignment shall run from the Effective Date specified below until
the earlier to occur of December 31, 2005 and the termination of the Wind Park
Easement Agreement dated as of September 9, 1985 between the Partnership and ZCC
III. At that time, all rights in and to the Power Agreements shall revert to
Zond or its successors and assigns.
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4. REPRESENTATIONS AND AGREEMENTS OF ZOND
Zond hereby represents and warrants to the Partnership as follows:
4.1 Form and Status of Agreement
Zond has previously delivered to the Partnership copies of the Power
Agreements. Such copies are true, correct and complete copies of the Power
Agreements which are in full force and effect without modification or amendment
of any kind and with no default existing thereunder.
Enforcement
Each of the Power Agreements constitutes a valid, legal and binding
obligation between Zond and Southern California Edison Company and the
Partnership is entitled to the benefits under this Assignment and each of the
Power Agreements is enforceable in accordance with its terms.
Additional Agreements
Zond shall, except with the prior written consent of the Partnership,
(1) observe and perform all of its obligations under the Power Agreements,
including the payment of all inter-connection costs and the provision of all
required insurance, and cause the Power Agreements to be maintained in full
force and effect; (2) not cancel or terminate or consent to the cancellation or
termination of the Power Agreements; (3) not amend, modify or otherwise effect a
change in the Power Agreements or consent to any amendment, modification or
change; (4) not consent to any discount of amounts payable under the Power
Agreements; and (5) not consent, waive or approve any act which would have the
effect of impairing the value of this Assignment to the Partnership or otherwise
impair the position of the Partnership.
Encumbrances
Zond agrees that it shall not, except with the prior written consent of
the Partnership, sell, pledge, mortgage, assign or otherwise dispose of, or
create or suffer to be created any levies, liens or encumbrances on, its
interest in and to the Power Agreements if such action would have the effect of
impairing the value of this Assignment to the Partnership or otherwise impair
the position of the Partnership. Notwithstanding the foregoing, the Partnership
acknowledges that Zond has previously granted a security interest in the Power
Agreements to SBL, which security interest presently encumbers the Power
Agreements. Zond agrees to secure a release from SBL of SBL's security interest
in the Power Agreements prior to the purchase by the Partnership of any wind
turbine generators from Zond Construction Corporation III, a wholly owned
subsidiary of Zond.
5. RIGHT TO CURE
Zond agrees to furnish to the Partnership duplicates or copies of all
notices, requests and demands sent to, or received from Southern California
Edison Company and its operating representative under or relating to the Power
Agreements. Zond further agrees to notify the Partnership as soon as possible
after Zond becomes aware of any event or threatened event
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which reasonably could be expected to interfere with the Partnership's rights
under this Assignment. Should the Partnership receive any such notices from Zond
or should the Partnership otherwise become aware of any such event or threatened
event, the Partnership shall be entitled to perform such acts and to make such
payments, after giving Zond ten (10) days' prior written notice of its intention
to do so, as may be necessary or appropriate to preserve the rights of the
Partnership under this Assignment. In the event that the Partnership makes any
such payments, Zond immediately shall repay the amount thereof, together with
interest thereon at the maximum rate allowed under California law from the date
of payment to the date of repayment. In the event that Zond does not comply
with, or only partially complies with, its repayment obligation in the preceding
sentence, the Partnership shall be entitled to offset those amounts which Zond
is to repay the Partnership against any other amounts owing Zond by the
Partnership.
6. APPOINTED REPRESENTATIVE
The Partnership hereby agrees that its managing agent shall be Zond
pursuant to the Windsystem Management Agreement between the parties. The
Partnership further agrees that it will not replace Zond as its managing agent
without the prior approval of SCE given in accordance with the provisions of
Section 4.1.1 of the Power Agreements.
7. AMENDMENT OF POWER AGREEMENTS
The Partnership hereby agrees to cooperate with Zond in Zond's efforts
to enter into an agreement with SCE to amend one or more of the Power Agreements
in order to reduce the aggregate capacity covered by such Power Agreements to a
level equal to the aggregate rated capacity of the Partnership's Turbines (as
defined in the Confidential Private Placement Memorandum of the Partnership
dated September 9, 1985).
8. MISCELLANEOUS PROVISIONS
Notices
Any notice required or permitted to be given pursuant to this Assignment
shall be conclusively deemed to have been received by a party on the day it is
personally delivered to such party or, if sent by registered or certified mail
or by telegram, telex or telefax, on the third business day after the day on
which sent, addressed to such party at its address set forth on the signature
page of this Assignment or at such other address as such party may designate by
written notice given in accordance with this Section.
Waiver
No waiver of any right under this Assignment shall be effective for any
purpose unless in writing, signed by the party hereto possessing the right, nor
shall any such waiver be construed to be a waiver of any subsequent right, term
or provision of this Assignment.
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Assignment
Neither Zond nor the Partnership may assign its rights or duties under
this Assignment without the prior written consent of the other. Any assignment
which is made without such consent shall be null and void. However, the parties
hereby acknowledge and agree that the Partnership may collaterally assign all or
any portion of its rights hereunder to lenders to secure loans made to the
Partnership.
Successors and Assigns
All of the terms and provisions of this Assignment shall be binding upon
and shall inure to the benefit of and be enforceable by the successors and
permitted assigns of the parties hereto.
Further Assurances
Zond and the Partnership agree to perform all such acts (including
without limitation executing and delivering instruments and documents) as
reasonably may be necessary to fully effectuate the intent and each and all of
the purposes of this Assignment. Zond further agrees to cooperate with any
lenders to the Partnership and to provide such information and to take such
actions as such lenders may reasonably request in connection with this
Assignment and the Power Agreements.
Construction of Assignment
8.6.1 Governing Law. The terms and provisions of this
Assignment shall be construed in accordance with the laws of the State of
California.
8.6.2 Interpretation. Zond and the Partnership agree that the
terms and provisions of this Assignment embody their mutual intent and that such
terms and conditions are not to be construed more liberally in favor of, nor
more strictly against, Zond or the Partnership.
8.6.3 Partial Invalidity. If any term or provision of this
Assignment, or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Assignment or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each remaining term and provision of this Assignment shall be valid
and enforceable to the fullest extent permitted by law.
8.6.4 Headings and References. The headings contained in this
Assignment are for purposes of reference and convenience only and shall not
limit or otherwise affect in any way the meaning of this Assignment. Unless
otherwise indicated, all references to Sections are to Sections in this
Assignment.
Attorneys' Fees
If either the Partnership or Zond brings any action or proceeding for
the enforcement, protection or establishment of any right or remedy under this
Assignment or for the interpretation
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of this Assignment, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and costs in connection with such action or
proceeding.
Counterparts
This Assignment may be executed and recorded in Counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
8.9 Effective Date
The Effective Date of this Assignment is September 9, 1985
8.10 Entire Assignment
The provisions of this Assignment constitute the entire understanding
and agreement between Zond and the Partnership regarding the Power Agreements
and may not be altered or amended except by an instrument in writing signed by
Zond and the Partnership. Zond and the Partnership each acknowledge and agree
that no representation, warranty or inducement has been made to it regarding the
Power Agreements which is not expressly set forth in this Assignment.
Signatures on following page
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IN WITNESS WHEREOF, Zond and the Partnership have executed this
Assignment as set forth below.
"ZOND"
ZOND SYSTEMS, INC.,
a California corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dated: /s/ September 11, 1985 By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President
General Counsel
"PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS,
LTD. SERIES 85-A, a California
Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By its authorized General
Partner:
ZOND WINDSYSTEMS
MANAGEMENT CORPORATION III,
a California corporation
Dated: /s/ September 11, 1985 By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇,
Senior Vice President
General Counsel
Southern California Edison Company hereby consents to the foregoing Assignment
of Power Purchase Contracts.
SOUTHERN CALIFORNIA EDISON
COMPANY, a California public utility
Dated: /s/ 9/20/85 By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Its Vice President
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POWER AGREEMENTS
1. Power Purchase Contract dated June 22, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Edison Company and Zond Systems, Inc. designated as Monolith I.
Exhibit A
to Series A Assignment of
Power Purchase Contracts
A-1
GUARANTY
Zond Systems, Inc. hereby guarantees the full performance of Zond
Windsystem Partners, Ltd. Series 85-A, a California limited partnership (the
"Partnership"), under the following agreement assigned to the Partnership under
the Assignment of Power Purchase Contracts to which this Guaranty is attached:
1. Power Purchase Contract dated June 22, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Edison Company and Zond Systems, Inc. designated as Monolith I.
ZOND SYSTEMS, INC.,
a California corporation
/s/ September 11, 1985 By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Date ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President-
General Counsel
CONSENT
Scandinavian Bank Limited, Western America International Branch, hereby
consents to the Assignment of Power Purchase Contracts between Zond Systems,
Inc. and Zond Windsystems Partners, Ltd. Series ▇▇-▇.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INTERNATIONAL
BRANCH
By
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Its
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