PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT made as of the 29th day of November, 1994 is between
GSF ENERGY INC., a corporation incorporated under the laws of Delaware (the
"Assignor") and BREA POWER PARTNERS, L.P., a limited partnership organized
under the laws of Delaware (the "Assignee").
RECITALS
A. Assignor and the County of Orange a political subdivision of the State
of California ("County"), are parties to an Amended and Restated Gas Lease
Agreement dated as of December 14, 1993 (the "Gas Lease Agreement"),
pursuant to which Assignor is granted certain rights to extract, process
and sell "Refuse Gas" and "Constituent Products" (each as defined in the
Gas Lease Agreement) and certain rights to use and occupy portions of the
"Landfill" (as defined in the Gas Lease Agreement).
B. On or about the date hereof, Assignor is selling and conveying to
Assignee and Assignee is purchasing certain electric generating and related
equipment located at the Landfill ("Assignee's Facility").
C. Assignor is a limited partner of Assignee and is entering into this
Agreement as a contribution to Assignee.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that, in consideration of the
premises and the mutual covenants and agreements hereinafter set forth and
contained, the parties hereto mutually covenant and agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings
given such terms in the Gas Lease Agreement.
2. The Assignor hereby assigns, transfers and conveys to the Assignee,
effective as of the date first written above, the following rights and
obligations of Assignor under the Gas Lease Agreement:
(a) all rights of Assignor under Sections 8.1 and 8.2 of the Gas Lease
Agreement with respect to the use and occupancy of that portion of the
Plant Site on which Assignee's Facility is located, as more fully described
in Exhibit A hereto ("Assignee's Facility Site") including the free right
of ingress and egress at all times to and from Assignee's Facility Site;
(b) the rights of use and ingress and egress granted Assignor pursuant to
Sections 8.1 and 8.2 of the Gas Lease Agreement to the extent reasonably
necessary or convenient for Assignee's Facility and Assignee's operations;
(c) the right to obtain rights of way and easements from County with
respect to Assignee's operations as specifically described in Section 8.5
of the Gas Lease Agreement;
(d) the right to receive cooperation from County as specifically described
in Section 8.6 of the Gas Lease Agreement;
(e) the obligation to install and maintain landscaping at Assignee's
Facility Site and Assignee's Facility, as required by Section 8.7 of the
Gas Lease Agreement;
(f) the right and obligation to remove Assignee's Facility and restore
that area of the surface of the Landfill upon which Assignee's Facility was
situated as specifically described in Sections 9.1 and 9.2 of the Gas Lease
Agreement;
(g) the right to return matter removed from Refuse Gas by Assignee's
Facility (if any) as specifically described in Section 6.6 of the Gas Lease
Agreement; and
(h) the obligation to pay taxes and assessments upon Assignee's Facility
and any other facilities, equipment and improvements constructed or
installed by Assignee in, on or adjacent to the Landfill, as specifically
described in Section 19.1 of the Gas Lease Agreement.
The rights specifically assigned and conveyed to Assignee pursuant to this
Agreement (the "Assigned Rights") and the Assignee's activities and
operations at the Landfill shall be subject to, and undertaken in
accordance with, the Gas Lease Agreement, which is hereby incorporated by
reference into this Agreement. The obligations specifically assigned and
conveyed pursuant to this Agreement, including the obligation to exercise
the Assigned
Rights and Assignee's activities and operations at the Landfill subject to,
and in accordance with, the Gas Lease Agreement, are collectively referred
to as the "Assumed Obligations."
3. Assignor represents and warrants to Assignee as of the date hereof
that: (a) attached hereto as Exhibit B is a true, correct and complete
copy of the Gas Lease Agreement; (b) the Gas Lease Agreement is in full
force and effect, free and clear of any liens or encumbrances created by or
through Assignor, and no amendments other than Modification No. 1 dated
even date herewith are pending, and (c) Assignor is not in default of the
Gas Lease Agreement and, to Assignor's knowledge, County is not in default
of the Gas Lease Agreement. Assignor shall indemnify and hold Assignee and
its successors and assigns harmless from and against any and all claims,
expenses, liabilities or losses arising out of a material inaccuracy of any
of the foregoing representations and warranties.
4. Assignee hereby accepts the assignment to it of the Assigned Rights and
agrees to assume, perform and be liable for each and every Assumed
Obligation. Assignee shall indemnify and hold Assignor and its successors
and assigns, harmless from and against any and all third party claims and
the expenses, liabilities or losses incurred in connection therewith or
resulting therefrom, to the extent arising out of the performance or non-
performance of the Assumed Obligations. If Assignor is required by county
to perform, or pay any amounts in respect of, any or all of the Assumed
Obligations, the Assignor shall be subrogated to all rights and remedies of
county against Assignee with respect to such Assumed Obligations.
5. Assignor shall be solely entitled to exercise and enjoy all rights
under the Gas Lease Agreement other than the Assigned Rights (collectively
"Assignor's Lease Rights") and shall be solely responsible for performing
all obligations under the Gas Lease Agreement other than the Assumed
Obligations (collectively, "Assignor's Lease Obligations"). Assignor shall
indemnify and hold Assignee and its successors and assigns harmless from
and against any and all third party claims and the expenses, liabilities or
losses incurred in connection therewith or resulting therefrom to the
extent arising out of the performance or non-performance of the Assignor's
Lease Obligations.
6. Assignee shall comply with all provisions of Section 15 of the Gas
Lease Agreement.
7. The term of this Agreement shall commence as of the date first above
written and shall continue until the expiration or termination of the Gas
Lease Agreement.
8. All notices, requests, consents, approvals, elections, demands, and
other communications (collectively referred to as "Notices") required or
permitted to be given under this Agreement shall be in writing and shall be
given to a party at the address set forth on the signature page hereof, or
at such other address as such party may hereafter specify for such purpose
by notice to the other parties hereto. Such Notices shall be deemed to be
delivered on the fifth business day after deposit thereof in the United
States mail, first class postage prepaid, or when received if sent by
overnight courier service, telex or telegraph or delivered by hand.
9. This Agreement shall be interpreted, governed, and construed under the
laws of the State of California as if executed and to be performed wholly
within the State of California.
10. Any amendments or waivers to this Agreement must be in writing and
signed by each of the parties.
IN WITNESS WHEREOF, the parties have executed this agreement on the
date and year first mentioned.
GSF ENERGY, INC.
By: /s/ Xxxxx X. Hinmin
Title: President
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
BREA POWER PARTNERS, L.P.
By its general partner:
Brea Power (I), Inc.
By: /s/ Xxxx X. Xxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
