Exhibit 10.1
------------
Execution Version
-----------------
ASSIGNMENT AND ▇▇▇▇ OF SALE
---------------------------
This ASSIGNMENT AND ▇▇▇▇ OF SALE, dated as of August 31, 2006, is made
by and between Zond Windsystem Partners, Ltd. Series 85-C, a California Limited
Partnership (the "Transferor"), and SeaWest Power Resources LLC ("Transferee").
---------- ----------
RECITALS
--------
WHEREAS, the Transferor owns those certain assets, including, without
limitation, the Vestas V17 wind turbines set forth on Schedule 1 attached hereto
----------
and certain related assets (including feeder transmission lines, pad mount
transformers, and the related substation equipment), in each case, installed at
the Altamont Wind Power Project located on the real property described in
Exhibit A attached hereto and incorporated herein, located in Alameda County,
---------
California (collectively the "Wind Turbine Assets"); and
-------------------
WHEREAS, Transferee desires to purchase and obtain from Transferor, and
Transferor desires to sell and assign to the Transferee, the Wind Turbine Assets
on an "AS IS, WHERE IS" basis.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENT
---------
1. Transfer of Wind Turbine Assets. The Transferor, in
-------------------------------
consideration of the Purchase Price (as defined below), does hereby transfer and
assign to the Transferee forever, and the Transferee hereby purchases and
acquires from the Transferor all of the Transferor's right, title and interest,
in, to and under all of the Wind Turbine Assets.
2. Payment of the Purchase Price. The purchase price for the
-----------------------------
Wind Turbine Assets shall be an amount equal to $1,011,650 (the "Purchase
--------
Price"). The Transferee shall pay the Purchase Price by wire transfer to the
-----
account designated in writing by Transferor upon the execution of this
Assignment and ▇▇▇▇ of Sale by each of the parties.
3. NO REPRESENTATIONS OR WARRANTIES. EXCEPT AS SET FORTH IN THE
--------------------------------
LAST SENTENCE OF THIS SECTION, THE TRANSFEROR IS NOT MAKING ANY REPRESENTATIONS
OR WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE
WIND TURBINE ASSETS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE TRANSFEREE
TAKES THE WIND TURBINE ASSETS "AS IS" AND "WHERE IS" AND THAT THE TRANSFEREE
----- --------
HEREBY EXPRESSLY WAIVES ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO THE WIND TURBINE
ASSETS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. TRANSFEREE HEREBY EXPRESSLY WAIVES AND RELINQUISHES ANY AND
ALL RIGHTS, CLAIMS AND CAUSES OF ACTION AGAINST TRANSFEREE AND ITS AFFILIATES
AND EACH OF ITS REPRESENTATIVES IN CONNECTION WITH THE ACCURACY OR COMPLETENESS
OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED TO
TRANSFEREE OR ANY OF ITS REPRESENTATIVES BY OR ON BEHALF OF TRANSFEROR, ANY OF
ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES. NOTWITHSTANDING THE
FOREGOING, THE TRANSFEROR HEREBY REPRESENTS AND WARRANTS TO THE TRANSFEREE FOR A
PERIOD OF ONE (1) YEAR FROM THE EFFECTIVE DATE HEREOF THAT ON THE EFFECTIVE DATE
THE TRANSFEROR HAS GOOD AND MARKETABLE TITLE TO THE WIND TURBINE ASSETS FREE AND
CLEAR OF ANY AND ALL LIENS, SECURITY INTERESTS, DEEDS OF TRUST, MORTGAGES AND
RIGHTS OF FIRST REFUSAL WITH RESPECT TO SUCH WIND TURBINE ASSETS AND THAT
TRANSFEROR HAS THE RIGHT TO TRANSFER SUCH WIND TURBINE ASSETS TO TRANSFEREE.
4. Taxes. Transferee shall be responsible for the payment of all
-----
sales taxes, use taxes, license fees or similar taxes imposed on the purchase of
the Wind Turbine Assets pursuant to this Assignment and ▇▇▇▇ of Sale.
5. Costs and Expenses. Except as otherwise set forth in this
------------------
Assignment and ▇▇▇▇ of Sale, each party shall bear its own costs and expenses
incurred in connection with the negotiation and execution of this Assignment and
▇▇▇▇ of Sale and the consummation of the transactions contemplated hereby.
6. GOVERNING LAW AND JURISDICTION. THIS ASSIGNMENT AND ▇▇▇▇ OF
------------------------------
SALE SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISION THAT
WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION). EACH PARTY
HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK SITTING IN NEW YORK COUNTY, NEW YORK OR THE COMMERCIAL DIVISION , CIVIL
BRANCH OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY,
AND ANY APPELLATE COURT THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES,
CONTROVERSIES, CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO
2
THIS ASSIGNMENT AND ▇▇▇▇ OF SALE AND THE SUBJECT MATTER HEREOF AND AGREES NOT TO
COMMENCE ANY LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS ASSIGNMENT
AND ▇▇▇▇ OF SALE AND THE SUBJECT MATTER HEREOF IN ANY OTHER COURT.
7. Regulatory Compliance. In performing its obligations under
---------------------
this Assignment and ▇▇▇▇ of Sale, each party hereto agrees that neither it, nor
its officers, directors, employees, agents or representatives will:
(i) directly or indirectly, offer, give, make, promise, pay
or authorize the payment of any money, gift, or anything of material value to
any person that is an officer or employee of any governmental entity within the
United States or an officer or employee of any department, agency or
instrumentality thereof, or any person acting in an official capacity on behalf
of such governmental entity, department, agency or instrumentality thereof, or
any candidate for or appointee to a political or government office within the
united states, or to any political party in the United States; or
(ii) receive, transfer, retain, use or hide the proceeds of
any criminal activity whatsoever, or employed or otherwise conducted business
with a "designated person," namely a person or entity that appears on any list
issued by the United States government or the United Nations as being involved
in money laundering, terrorism, or drug trafficking, or as having violated
economic or arms embargoes.
8. Severability. If any provision of this Assignment and
------------
▇▇▇▇ of Sale or the application of any such provision to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof.
9. Entire Agreement; Amendments and Waivers. This Assignment
----------------------------------------
and ▇▇▇▇ of Sale (including the exhibit and annex hereto) represents the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and can be amended, supplemented or changed, and any provision
hereof can be waived, only by written instrument making specific reference to
this Assignment and ▇▇▇▇ of Sale signed by the party against whom enforcement of
any such amendment, supplement, modification or waiver is sought. No failure on
the part of any party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
3
10. Notices. All notices and other communications under this
-------
Assignment and ▇▇▇▇ of Sale shall be in writing and delivered to: (a) Transferor
at the following address:
Zond Windsystem Partners, Ltd. Series 85-C
c/o Enron Wind Systems, LLC
Four Houston Center
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
and (b) Transferee at the following address:
SeaWest Power Resources, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
11. Counterparts. This Assignment and ▇▇▇▇ of Sale may be
------------
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
12. No Consequential Damages. No party hereto (or its
------------------------
affiliates) shall, under any circumstance, be liable to the other party (or its
affiliates) for any consequential, exemplary, special, incidental, indirect or
punitive damages claimed by the other party under the terms of or due to any
breach of this Assignment and ▇▇▇▇ of Sale, including, but not limited to, loss
of revenue, income, cost of capital, or loss of business reputation or
opportunity.
13. Further Assurances. After the date hereof, each of the
------------------
parties agrees to execute and deliver such other instruments of assignment and
other transfer documents and to take such other actions as the other party may
reasonably request from time to time to carry out the intent and purpose of this
Assignment and ▇▇▇▇ of Sale.
4
IN WITNESS WHEREOF, the Transferor and Transferee have caused this
Assignment and ▇▇▇▇ of Sale to be duly executed by their respective authorized
representatives as of the day and year first above written.
TRANSFEROR
Zond Windsystem Partners, Ltd. Series
85-C, a California Limited Partnership
By: Zond Windsystems Management V,
LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
-------------------------------------
TRANSFEREE
SeaWest Power Resources LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: President
-------------------------------------
5
EXHIBIT A
---------
PARCEL 1:
The south one-half of section 21, township 2 south, range 3 east, Mount
Diablo Base and Meridian, according to the official plat of said land
filed in the District Land Office.
Excepting therefrom the past, present and future interest reserved by
the Central Pacific Railroad Company in the grant deed recorded
November 19, 1883 in Book 261 of Deeds, Page 184, Series No. 5-7019,
Alameda County Records.
Also excepting therefrom that portion described in the deed to the
Western Pacific Railway Company, a California corporation, recorded
December 7, 1905, in Book 1076 of Deeds, Page 406, Series No. L-1500,
Alameda County Records.
Also, excepting therefrom that portion described in the deed to ▇. ▇.
▇▇▇▇▇▇▇, recorded July 8, 1907, in Book 1390 of Deeds, Page 64, Series
No. L-69077, Alameda County Records.
Also excepting therefrom that portion described in the deed to the
County of Alameda, recorded January 4, 1915, in Book 2311 of Deeds,
Page 109, Series No. P-83238, Alameda County Records.
PARCEL 2:
A non-exclusive easement and right of way on, over, under and across
the following described real property for use as a roadway for vehicles
of all kinds, pedestrians and animals, for water, gas, oil and sewer
pipe lines, and for telephone, electric light and power lines, together
with all necessary poles or conduits to carry said lines, to wit:
A strip of land 30 feet wide, the center line of which is described as
follows:
Beginning at a point on the westerly line of those lands conveyed to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, by Decree of Partial Distribution, dated September
30, 1949, recorded in Book 5901 of official records of Alameda County
at Page 37 thereof, Series No. AD/66898, said point being on the
section line between Section 20 and 21, T.28., R.3E., M.D.B.6M., south
456 feet from the apparent northwest corner of the southwest quarter of
said section 21 as said corner is defined by the fence corner, thence
north 41 degrees 26 minutes west 492.7 feet to the southeasterly right
of way line of County Road No. 818, also known as Altamont Pass Road,
being a portion of the southeast quarter of Section 20, Township 2
south, Range 3 east, Mount Diablo Base and Meridian.
PARCEL 3:
The north one half of Section 28, Township 2 south, Range 3 east, Mount
Diablo Base and Meridian, according to the official plat of said land
filed in the District Land Office.
Assessor's Parcel Nos. 099B-6275-002-01 (affects portion of parcel 1),
099B-6275-002-02 (affects portion of parcel 1), 099B-6275-002-03,
(affects remainder of parcel 1), 099B-6500-001 (affects parcel 3).
6
SCHEDULE 1
----------
Wind Turbines
-------------
Row Pad Type WTG
1 01 2 V-17 10563
2 01 3 V-17 10547
3 01 4 V-17 10592
4 01 5 V-17 10578
5 01 6 V-17 10445
6 01 7 V-17 10581
7 01 8 V-17 10515
8 01 9 V-17 10558
9 01 10 V-17 10572
10 01 11 V-17 10549
11 01 12 V-17 10557
12 02 1 V-17 10544
13 02 2 V-17 10567
14 02 3 V-17 10520
15 02 4 V-17 10598
16 02 5 V-17 10577
17 02 6 V-17 10534
18 02 7 V-17 10573
19 02 9 V-17 10582
20 02 10 V-17 10571
21 02 11 V-17 10570
22 02 12 V-17 10556
23 02 13 V-17 10538
24 02 14 V-17 10517
25 02 15 V-17 10587
26 02 16 V-17 10568
27 02 17 V-17 10569
28 03 1 V-17 10551
29 03 2 V-17 10590
30 03 3 V-17 10540
31 03 4 V-17 10586
32 03 5 V-17 10576
7
33 03 6 V-17 15099
34 03 7 V-17 10597
35 03 8 V-17 10667
36 03 9 V-17 10596
37 03 10 V-17 10666
38 03 11 V-17 10610
39 03 12 V-17 10676
40 03 13 V-17 10579
41 03 14 V-17 10683
42 03 15 V-17 10542
43 03 17 V-17 10658
44 03 18 V-17 10575
45 03 19 V-17 10673
46 03 20 V-17 10589
47 03 21 V-17 10548
48 03 22 V-17 10690
49 03 23 V-17 10595
50 03 24 V-17 10588
51 03 25 V-17 10535
52 03 26 V-17 10585
53 03 27 V-17 10546
54 03 28 V-17 10574
55 03 29 V-17 10584
56 03 30 V-17 10633
57 03 31 V-17 10533
58 03 32 V-17 10530
59 03 33 V-17 10640
60 04 1 V-17 10529
61 04 2 V-17 10521
62 04 3 V-17 10621
63 04 4 V-17 10636
64 04 12 V-17 10641
65 04 13 V-17 10638
66 04 14 V-17 10639
67 04 15 V-17 10662
68 04 16 V-17 10672
69 04 17 V-17 10645
70 04 18 V-17 10668
71 04 19 V-17 10686
72 04 20 V-17 10642
73 04 21 V-17 10663
74 04 22 V-17 10664
75 04 23 V-17 10620
76 04 24 V-17 10553
77 04 25 V-17 10634
78 04 26 V-17 10519
79 04 27 V-17 10630
80 04 28 V-17 10655
8
81 04 29 V-17 10531
82 04 30 V-17 10537
83 04 31 V-17 10632
84 04 32 V-17 10635
85 05 1 V-17 10987
86 05 2 V-17 10754
87 05 3 V-17 10738
88 05 4 V-17 10648
89 05 5 V-17 10637
90 05 6 V-17 10559
91 05 7 V-17 10567
92 05 8 V-17 10677
93 05 9 V-17 10624
94 05 10 V-17 10688
95 05 11 V-17 10644
96 05 12 V-17 10709
97 05 13 V-17 10654
98 05 14 V-17 10680
99 05 15 V-17 10564
100 05 16 V-17 10681
101 05 17 V-17 10629
102 05 18 V-17 10653
103 05 19 V-17 10650
104 05 20 V-17 10721
105 05 21 V-17 10660
106 05 22 V-17 10622
107 05 23 V-17 10665
108 05 24 V-17 10613
109 05 25 V-17 10661
110 05 26 V-17 10609
111 05 101 V-17 10524
112 05 102 V-17 10623
113 05 103 V-17 10594
114 05 104 V-17 10684
115 05 105 V-17 10614
116 05 106 V-17 10612
117 05 107 V-17 10627
118 05 108 V-17 10583
119 05 109 V-17 10601
120 05 110 V-17 10646
121 06 1 V-17 10715
122 06 2 V-17 10649
123 06 3 V-17 10745
124 06 4 V-17 10725
125 06 5 V-17 10646
126 06 6 V-17 10615
127 06 7 V-17 10625
128 06 8 V-17 10611
9
129 06 9 V-17 10643
130 06 10 V-17 10602
131 06 11 V-17 10561
132 06 12 V-17 10580
133 06 13 V-17 10659
134 06 14 V-17 10604
135 07 1 V-17 10606
136 07 2 V-17 10691
137 07 3 V-17 10753
138 07 4 V-17 10747
139 07 5 V-17 10689
140 07 6 V-17 10732
141 07 7 V-17 10618
142 07 8 V-17 10705
143 08 1 V-17 10723
144 08 2 V-17 10736
145 08 3 V-17 10727
146 08 4 V-17 10695
147 08 5 V-17 10652
148 08 6 V-17 10657
149 08 7 V-17 10700
150 08 8 V-17 10766
151 08 9 V-17 10752
152 08 10 V-17 10749
153 08 11 V-17 10741
154 08 12 V-17 10762
155 08 13 V-17 10698
156 09 1 V-17 10670
157 09 2 V-17 10675
158 09 3 V-17 10628
159 09 4 V-17 10706
160 09 5 V-17 10701
161 09 6 V-17 10617
162 09 7 V-17 10671
163 09 8 V-17 10699
164 09 9 V-17 10707
165 09 10 V-17 10733
166 09 11 V-17 10710
167 09 12 V-17 10718
168 09 13 V-17 10626
169 09 14 V-17 10616
170 09 15 V-17 10693
171 09 16 V-17 10679
172 09 17 V-17 10743
173 09 18 V-17 10740
174 09 19 V-17 10702
175 09 20 V-17 10716
176 09 21 V-17 10682
10
177 09 22 V-17 10697
178 09 23 V-17 10703
179 09 24 V-17 10692
180 09 25 V-17 10669
181 09 26 V-17 10678
182 09 27 V-17 10674
183 09 28 V-17 10696
184 09 29 V-17 1708
185 09 30 V-17 1704
186 09 31 V-17 10734
187 09 32 V-17 10712
188 09 33 V-17 10735
189 09 34 V-17 10644
190 09 35 V-17 10720
191 09 36 V-17 10714
192 09 37 V-17 10711
193 09 38 V-17 10719
194 09 39 V-17 10729
195 09 40 V-17 10726
196 09 41 V-17 10731
197 09 42 V-17 10744
198 09 43 V-17 10764
199 09 44 V-17 10758
200 09 45 V-17 10750
11
