Exhibit 10.8(b)
Assignment 9/17/85
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ASSIGNMENT OF POWER PURCHASE AGREEMENT
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By and Between
"WDI"
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WIND DEVELOPERS, INC.,
a California corporation
and
"ZOND"
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ZOND SYSTEMS, INC.,
a California corporation
TABLE OF CONTENTS
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TO
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ASSIGNMENT OF POWER PURCHASE AGREEMENT
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Section Heading Page
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1. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. INTERIM PERFORMANCE
BY THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.1 Interim Performance by WDI . . . . . . . . . . . . . . . . . . . . 1
3.2 Interim Performance by Zond. . . . . . . . . . . . . . . . . . . . 2
4. WDI SHAREHOLDER APPROVAL . . . . . . . . . . . . . . . . . . . . . . 2
5. REPRESENTATIONS, WARRANTIES
AND COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5.1 Representations, Warranties
and Covenants of WDI . . . . . . . . . . . . . . . . . . . . . . . 2
5.2 Representations, Warranties
and Covenants of Zond . . . . . . . . . . . . . . . . . . . . . . 4
5.3 Representations and Warranties -
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.1 Bulk Transfer Indemnification. . . . . . . . . . . . . . . . . . . 5
6.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 6
6.3 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 6
6.5 Construction of Agreement. . . . . . . . . . . . . . . . . . . . . 7
6.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.7 Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . 8
6.8 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.9 Action by a Party. . . . . . . . . . . . . . . . . . . . . . . . . 8
6.10 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.11 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.12 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.13 Indemnification and
Limitation on Damages. . . . . . . . . . . . . . . . . . . . . . 10
6.14 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . 11
6.15 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.16 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 11
EXHIBITS
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Exhibit A - Pacific Gas & Electric
Energy and Capacity
Power Purchase Agreement
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ASSIGNMENT OF POWER PURCHASE AGREEMENT
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THIS ASSIGNMENT OF POWER PURCHASE AGREEMENT ("Assignment") is entered into
by and between WIND DEVELOPERS, INC., a California corporation ("WDI") and ZOND
SYSTEMS, INC., a California corporation ("Zond").
WHEREAS:
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A. Effective January 17, 1985, WDI entered into a Long-Term Energy and
Capacity Power Purchase Agreement with Pacific Gas & Electric Company ("PG&E")
which is attached hereto as Exhibit A and incorporated herein by this reference
("the Power Agreement"); and
B. WDI now desires to assign the Power Agreement to Zond in accordance
with the terms and provisions of this Assignment.
NOW, THEREFORE, the parties hereto agree as follows:
1. ASSIGNMENT
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In consideration for the payment of Five Thousand Dollars ($5,000.00),
receipt of which is hereby acknowledged, and effective as of the Closing Date
(as defined in the Lease Acquisition Agreement between Zond and Santa ▇▇▇▇▇ Wind
Leasing, Inc., a subsidiary of WDI) (the "Closing Date"), WDI hereby assigns to
Zond the Power Agreement subject to the consent of PG&E. Notwithstanding the
foregoing, nothing contained in this Assignment shall relieve WDI from
performing any covenant, agreement or obligation on the part of WDI to be
performed or from observing any condition on the part of WDI to be observed
under or respect to the Power Agreement or from any liability thereunder up to
the Closing Date of this Assignment.
2. ACCEPTANCE
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Effective as of the Closing Date, Zond hereby accepts this Assignment
subject 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 Agreement.
3. INTERIM PERFORMANCE
BY THE PARTIES
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3.1 Interim Performance by WDI
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WDI further agrees that it shall: (1) observe and perform all of its
obligations under the Power Agreement and cause the Power Agreement to be
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maintained in full force and effect; (2) not cancel or terminate or consent to
the cancellation or termination of the Power Agreement; (3) not amend, modify or
otherwise affect a change in the Power Agreement or consent to any amendment,
modification or change; (4) not consent, waive or approve any act which would
have the effect of jeopardizing or impairing in any way, directly or indirectly,
the value of the Power Agreement to Zond; and (5) not sell, transfer, pledge,
mortgage, assign or otherwise dispose of, or create or suffer to be created any
levies, liens or encumbrances on the Property or their interests in and to the
Power Agreement. WDI also agrees to furnish Zond with duplicates or copies of
all correspondence, notices, requests or demands sent to, or received under the
Power Agreement and until December 31, 1986, to notify Zond as soon as possible
after it becomes aware of any event or threatened event which could interfere
with Zond's rights or interests in the Power Agreement.
3.2 Interim Performance By Zond
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Until the Closing Date, Zond agrees to keep the Power Agreement free
and clear of any liens resulting from any of its activities.
4. WDI SHAREHOLDER APPROVAL
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The Assignment of the Power Agreement set forth in Section 1 and Zond's
acceptance under Section 2 is subject to and contingent upon the approval of
WDI's shareholders by October 7, 1985. WDI represents that this Assignment has
been approved by its Board of Directors and that the Board will recommend
approval of this Assignment by the shareholders. WDI agrees to immediately repay
to Zond the $5,000 paid under Section 1 if shareholder approval is not obtained
by October 7, 1985 or if Zond exercises its termination option pursuant to
Section 5.1, below, or Section 6.3 of the Lease Acquisition Agreement between
Zond and SCWL, in which case this Assignment shall terminate and shall be void
and of no effect.
5. REPRESENTATIONS, WARRANTIES
AND COVENANTS
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5.1 Representations, Warranties
and Covenants of WDI
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WDI hereby represents, warrants and covenants to and with Zond that as
of October 5, 1985, except as may be disclosed to Zond in writing by telefax by
5:00 p.m. an October 7, 1985 (which disclosure may, at Zond's option and at
Zond's sole discretion, allow Zond to terminate this Agreement, the Installation
and Production Payment Agreement and the Assignment of Power Purchase Agreement
with no liability to either SCWL or WDI provided that all three Agreements must
be terminated simultaneously);
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5.1.1 Status and Authorization.
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5.1.1.1 Existence. It is a corporation duly organized, validly
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existing and in good standing under the laws of the State of California. Subject
to the shareholder approval required by Section 4, it has the corporate power
and lawful authority to enter into and perform its obligations under this
Assignment and any other documents referred to herein or required thereby or by
this Assignment to be delivered by it (collectively the "Documents").
5.1.1.2 Authorization. Subject to the shareholder approval
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required by Section 4, the execution, delivery and performance by it of and
under the Documents have been duly authorized by all necessary corporate action,
and do not and will not violate any provision of law, and do not and will not
violate any provision of its charter or bylaws or result in a material breach of
or constitute a material default under any agreement, indenture or instrument to
which it is a party or by which it or its properties may be bound or affected.
5.1.1.3 Validity of Documents. Subject to the shareholder
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approval required by Section 4, the Documents, when duly executed and delivered,
will constitute valid and legally binding obligations of it enforceable in
accordance with their terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally or (ii) application of general principles of equity
including availability of specific performance as a remedy.
5.1.1.4 Consents. Except for the shareholder approval required
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by Section 4, no authorization, consent, approval, license, exemption by, or
filing a registration with, any court or governmental department, commission,
board, bureau, agency or instrumentality is or will be necessary to the valid
execution, delivery or performance by it of the Documents.
5.1.2 PG&E Power Agreement. With respect to the PG&E Power Agreement:
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5.1.2.1 Form and Status. The copy of the Power Agreement
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attached to this Agreement as Exhibit A is a true, correct and complete copy and
that it is aware of no reason why the Power Agreement would not be fully
enforceable as assigned to Zond.
5.1.2.2 Enforcement. It will, on behalf of Zond (but only upon
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Zond's reasonable request and at Zond's expense), perform and discharge or cause
to be performed and discharged all obligations and duties of the Seller under
the Power Agreement, and shall use its best efforts to cause PG&E to perform its
obligations and duties in accordance with the terms and provisions thereof (the
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foregoing beat efforts shall include, but not be limited to, cooperating with
Zond in bringing and diligently prosecuting legal proceedings against PG&E in
the event it fails or refuses to perform its duties and obligations under the
Power Agreement).
5.1.2.3 Amendments. The Power Agreement sets forth and contains
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the entire agreement between the parties named therein with respect to the
subject matter thereof, and there are no modifications, amendments, supplements,
consents, arrangements, agreements or understandings, oral or written, of any
sort, modifying, amending, altering, supplementing or changing the terms
thereof.
5.1.2.4 Compliance. It is in full compliance with all of its
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respective obligations under the Power Agreement and to the best of its
knowledge, all of the other parties to the Power Agreement are in full
compliance with all of its obligations thereunder.
5.1.2.5 Further Amendments. It shall not execute or allow to be
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executed any amendments to the Power Agreement which are inconsistent with this
Assignment and which have not been approved by Zond.
5.1.2.6 PG&E Release. Neither it or any employee, agent or
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affiliate will contact PG&E prior to March 6, 1986 without Zond's prior consent
or attempt in any way to obtain a release from PG&E prior to March 6, 1987.
5.2 Representations, Warranties
and Covenants of Zond
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5.2.1 Status and Authorization. Zond hereby represents, warrants
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and covenants to and with WDI:
5.2.1.1 Existence. It is a corporation duly organized, validly
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existing and in good standing under the laws of the State of California. It has
corporate power and lawful authority to enter into and perform its obligations
under this Assignment and any other documents required thereby or by this
Assignment to be delivered by it (collectively the "Documents").
5.2.1.2 Authorization. The execution, delivery and performance
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by it of and under the Documents have been duly authorized by all necessary
corporate action, and do not and will not violate any provision of law, and do
not and will not violate any provision of its charter or bylaws or result in a
material breach of or constitute a material default under any agreement,
indenture or instrument to which it is a party or by which it or its properties
may be bound or affected.
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5.2.1.3 Validity of Documents. The Documents, when duly executed
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and delivered, will constitute valid and legally binding obligations of it
enforceable in accordance with their terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or (ii) application of general
principles of equity including availability of specific performance as a remedy.
5.2.1.4 Consents. No authorization, consent, approval, license,
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exemption by, or filing a registration with, any court or governmental
department, commission, board, bureau, agency or instrumentality is or will be
necessary to the valid execution, delivery or performance by it of the
Documents.
5.2.2 Use of Power Agreement. Zond and its assignees agree that it
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will not use the Power Agreement without the prior written consent of WDI which
can be withheld in WDI's sole discretion to sell power to PG&E except for wind
turbine generators installed on the Property covered by the Ground Lease for
Wind Park Development on the Rooney Ranch as assigned to Zond by Santa ▇▇▇▇▇
Wind Leasing, Inc.
5.3 Representations and Warranties -
General
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Each party acknowledges that its representations, warranties and
covenants as set forth above will be relied upon by the other in entering into
and performing under this Agreement. The representations and warranties
contained in this Section 5 shall survive the termination of this Assignment.
Zond and WDI each shall: (a) indemnify and hold the others harmless from any
loss, damage, liability and expense arising or in any manner resulting from any
failure in connection with the representations and warranties made by one to the
other; (b) defend at its sole cost and expense, including but not limited to
counsel fees, any suits or other proceedings brought on account thereof against
the other or against any property assigned or transferred to the other
hereunder; and (c) satisfy all judgments which may in connection therewith be
incurred by or rendered against the other or against any property assigned or
transferred to the other hereunder; provided, however, that indemnity shall not
be required if the cause of the indemnity is the cause of the fault or
negligence of the party requesting indemnity.
6. MISCELLANEOUS
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6.1 Bulk Transfer Indemnification
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WDI agrees to indemnify and hold Zond harmless from any loss, damage,
liability or expense arising or in any manner resulting from WDI's failure in
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connection with the transactions described in this Agreement to have complied
fully with any applicable state law relating to bulk sales, bulk transfers or
other dispositions of substantial portions of a corporation's assets. WDI shall
defend at WDI's sole cost and expense, including, but not limited to, counsel
fees, any suits or other proceedings brought on account thereof against Zond or
against any real or personal property assigned or transferred to Zond under this
Agreement or in connection herewith. WDI shall satisfy all judgments which may,
in connection therewith, be incurred by or rendered against Zond or against any
real or personal property assigned or transferred to Zond under this Assignment
or in connection herewith.
6.2 Successors and Assigns
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Neither party may assign or otherwise transfer, pledge or hypothecate
this Assignment or the Power Agreement or any of their rights, duties or
interests hereunder without the prior written consent of the other party, which
may not be unreasonably withheld. Notwithstanding the foregoing, (1) WDI may
assign or otherwise transfer, pledge or hypothecate all or any of its rights,
duties or interests under this Assignment to any affiliate, and (2) Zond may
assign, transfer, pledge or hypothecate all or any of its rights, duties or
interests under this Assignment or the Power Agreement for the specific purpose
of securing construction and/or inventory loan(s) for the purpose of purchasing
and installing wind turbines and other portions of the Project on the Property
(as such terms are defined in the Lease Acquisition Agreement between Zond and
Santa ▇▇▇▇▇ Leasing, Inc., a whollyowned subsidiary of WDI). This Assignment
shall be binding upon, enforceable by, and shall inure to the benefit of, the
heirs, executors, administrators, successors and assigns of the parties.
6.3 Attorneys' Fees
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If either party brings any action or proceeding for the enforcement,
protection or establishment of any right or remedy under this Assignment or for
the interpretation of this Assignment, the prevailing party shall be entitled to
recover its reasonable attorneys' fees and costs in connection with such action
or proceeding, whether or not taxable, as awarded by the trier of fact in such
action or proceeding.
6.4 Further Assurances
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Each of the parties hereto agrees to perform all such acts (including,
but not limited to, executing and delivering such instruments and documents) as
reasonably may be necessary to fully effectuate each and all of the purposes and
intent of this Assignment. WDI specifically agrees to notify PG&E of this
Assignment and use its best efforts to obtain its consent as required by Section
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▇-▇▇ of the Power Agreement in such form and on such terms as are reasonably
acceptable to Zond.
6.5 Construction of Agreement
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6.5.1 Governing Law. The terms and provisions of this Assignment
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shall be interpreted in accordance with the laws of the State of California.
6.5.2 Interpretation. The parties agree that the terms and
--------------
provisions of this Assignment embody their mutual intent and that they are not
to be construed more liberally in favor of, nor more strictly against, any party
hereto.
6.5.3 Partial Invalidity. If any term or provision of this Assignment
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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 effected
thereby, and each term and provision of this Assignment shall be valid and
enforceable to the fullest extent permitted by law.
6.5.4 Headings. The Article and Section headings contained in this
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Assignment are for purposes of reference and convenience only and shall not
limit or other otherwise affect the meaning hereof.
6.6 Notices
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All notices or other communication required or permitted hereunder
shall, unless otherwise provided herein, be in writing, shall be personally
delivered or sent by registered or certified mail, return receipt requested, and
deposited in the United States mail, postage prepaid, addressed to the parties
at the addresses set forth below and shall be deemed received on the third
business day following the mailing date.
TO ZOND: Zond Systems, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior
Vice President - Resources
With Copy To: Zond Systems, Inc.
------------ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President -
General Counsel
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TO WDI: Wind Developers, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With Copy To: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Attorney-at-Law
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice of change of address shall be given by written notice in the manner
detailed in this Section.
6.7 Cumulative Remedies
-------------------
Subject to the mandatory arbitration provisions of Section 6.10, every
right and remedy of the parties provided for in this Assignment shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Assignment or now or hereafter existing at law or in equity or by
statute or otherwise. The exercise or the beginning of the exercise by the
parties of any one or more of the rights or remedies provided for in this
Assignment, or now or hereafter existing at law or in equity or by statute or
otherwise, shall not preclude the simultaneous or later exercise by the parties
of any or all other rights or remedies provided for in this Assignment or now or
hereafter existing at law or in equity or by statute or otherwise.
6.8 No Waiver
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No waiver of any of the covenants, terms or conditions of this
Assignment shall be effective unless set forth in writing by the party making
the waiver and delivered to the other party and such waiver shall be effective
only for the time and to the extent therein stated. No omission or act (other
than the delivery of the foregoing written waiver) by a party shall constitute
or be deemed to constitute a waiver of any default in the performance of or
breach of any agreement, duty, responsibility, representation, warranty or
covenant of the other party contained in this Assignment.
6.9 Action by a Party
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Whenever under the terms of this Assignment any action is required or
permitted to be taken by any party, such action may be taken and performed by
any duly authorized officer or director of the party.
6.10 Arbitration
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Upon the written request of any party, any controversy or dispute
between the parties concerning any portion of this Assignment shall be subject
to binding arbitration in accordance with the provisions of the California
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Arbitration Act, Sections 1280, et. seq. of the California Code of Civil
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Procedure except as provided otherwise in this Section. Either party may demand
arbitration by first giving written notice of the existence of a dispute and
then within 30 days of such notice giving a second written notice of the demand
for arbitration.
Within ten days after receipt of the demand for arbitration, each
party shall appoint one person, who shall not be an employee of either party, to
hear and determine the dispute. After both arbitrators have been appointed, they
shall within five (5) days select a third arbitrator.
The arbitration hearing shall take place in Los Angeles, California,
within 30 days of the appointment of the arbitrators, at such time and place as
they select. The arbitrators shall give written notice of the time of the
hearing to all parties at least ten (10) days prior to the hearing. The
arbitrators shall not be authorized to alter, extend, or modify the terms of
this Agreement. At the hearing, each party shall submit a proposed written
decision, and any relevant evidence may be presented. The decision of any two
arbitrators shall be binding and conclusive. Upon determining the matter, the
arbitrators shall promptly execute and acknowledge their decision and deliver a
copy to each Party. A judgment confirming the award may be rendered by any
Superior Court having jurisdiction. Each party shall bear its own arbitration
costs and expenses, including the cost of the arbitrator it selected, and the
costs and expenses of the third arbitrator shall be divided equally between both
parties, except as provided otherwise elsewhere in this Agreement.
Pending resolution of any controversy or dispute hereunder,
performance by each party shall continue so as to maintain the status quo prior
to notice of such controversy or dispute. Resolution of the controversy or
dispute shall include payment of any interest accrued in the escrow account.
6.11 Force Majeure
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Any prevention, delay, non-performance or stoppage due to Force
Majeure shall excuse non-performance or failure to cure a default for a period
equal to any such prevention, delay, non-performance, or stoppage except for
the obligations imposed by this Assignment and under the Power Agreement for the
payment of sums due. Force Majeure means causes beyond the reasonable control of
the party affected thereby whether such causes exist on the date of this
Assignment or not which are not the fault or caused by the conduct of such party
and its successors and assigns and includes acts of God, strikes, lockouts or
other industrial disturbances, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, washouts, governmental laws, regulations,
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proclamations, or order of any government, governmental agency or court,
cancellation or withdrawal of permits by governmental agencies, arrests and
restraints of governments and people, civil disturbances and explosions.
6.12 Time of Essence
---------------
The parties agree that time is of the essence in the performance of
all of the terms, conditions, covenants and agreements contained herein.
6.13 Indemnification and
Limitation on Damages
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6.13.1 Indemnification. Each party agrees to indemnify and hold the
---------------
other free and harmless and at the option of the party entitled to indemnity,
defend the party claiming indemnity against all claims, demands, liabilities,
proceedings, damages, costs, charges and expenses (including, without
limitation, reasonable attorneys' fees) resulting from or attributable to their
willful or negligent act or omission or the willful or negligent act or omission
of their affiliates or employees resulting from or attributable to any failure
of the party to perform its obligations under this Assignment; provided,
---------
however, that nothing herein contained shall be deemed to render a party liable
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for or to indemnify the other party against any liability or damages to the
extent attributable to or resulting from the willfull or negligent acts or
omissions of the other party or its agents or authorized representatives and
provided, further, that except for claims raised by third parties against SCWL
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for which SCWL has a right to indemnify under this Section 6.13.1, in no event
shall Zond's aggregate liability and/or obligations to both Wind Developers,
Inc. and Santa ▇▇▇▇▇ Leasing, Inc. under the provisions of this Assignment and
of the Lease Acquisition Agreement and the Installation and Production Payment
Agreement between Zond and Santa ▇▇▇▇▇ Wind Leasing, Inc. exceed the amount
calculated by Section 4 of the Installation and Production Payment Agreement
between Zond and Santa ▇▇▇▇▇ Wind Leasing, Inc.
6.13.2 Limitation on Damages. The parties hereby acknowledge that a
---------------------
fundamental and material issue in Zond's decision to enter into this Assignment
and commit the funds and other resources necessary to develop the Property under
the extremely tight time constraints imposed by the Lease Agreement and the
scheduled expiration of the Federal tax credits is SCWL's agreement to limit the
damages it could receive in the event of a breach of the Assignment by Zond.
Accordingly, SCWL agrees that in no event shall it and WDI, in the aggregate, be
entitled to receive damages (either punitive or compensatory; foreseeable or
unforeseeable) in excess of the amount calculated by Section 4 of the
Installation and Production Payment Agreement between Zond and SCWL plus
reasonable attorneys fees.
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6.14 Specific Performance
--------------------
Because this Agreements involves the transfer of personal property
rights, the parties expressly acknowledge and agree that any breach, violation
of evasion of the terms and conditions of this Agreement by a party could result
in immediate and irreparable injury and harm to the other and shall entitle the
other party to injunctive relief and/or specific performance of this Agreement,
as well to any other legal or equitable remedy to which the other party may be
entitled.
6.15 Effective Date
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The Effective Date of this Assignment shall be September 17, 1985.
6.16 Entire Agreement
----------------
This Assignment contains the entire agreement between the parties
hereto with respect to the assignment of the Power Agreement and any prior
agreements, discussions or understandings, written or oral, are superseded by
this Assignment and shall be of no force or effect. The parties specifically
understand and agree that this Assignment shall be enforced independent of the
Lease Acquisition Agreement and the Installation and Production Payment
Agreement between Zond and Santa ▇▇▇▇▇ Wind Leasing, Inc. notwithstanding the
fact that this Assignment was simultaneously negotiated and executed with such
agreements and relates to the development of the same real property in Alameda
County, California. A default or breach by a party under this Assignment shall
not constitute a default or breach of these other agreements unless specifically
set forth to the contrary in this Assignment or the other agreements. No
addition or modification of any term or provision of this Assignment shall be
effective unless set forth in writing and signed by the authorized
representatives of the parties.
[Signatures to this Assignment of Power Purchase Assignment
appear on the following page]
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IN WITNESS WHERHOF, the parties have executed this Assignment as set forth
below. The undersigned individually represent and warrant that they have the
power and authority to execute this Assignment on behalf of their respective
corporation, that no additional approvals from any person or entity are
required, that the representations made by their respective corporation in
Section 4 are true and correct and that this Assignment will be binding upon
their respective corporation.
"ZOND"
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ZOND SYSTEMS, INC.,
a California corporation
Date: October 5, 1985 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
"WDI"
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WIND DEVELOPERS, INC.,
a California corporation
Date: October 5, 1985 By: /s/ [Illegible]
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Name Title
-12-
PACIFIC GAS & ELECTRIC
ENERGY AND CAPACITY
POWER PURCHASE AGREEMENT
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Exhibit A
to the
Assignment of Power Purchase Agreement