Exhibit 10.1
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WINDSYSTEM CONSTRUCTION AGREEMENT
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By and Between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-A,
a California Limited Partnership
and
ZOND CONSTRUCTION CORPORATION III,
a California corporation
as of
September 9, 1985
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TABLE OF CONTENTS
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Section Heading
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1. DEFINITIONS 1
2. CONSTRUCTION OF TURBINES, RELATED
TURBINE EQUIPMENT AND POWER SUBSTATION
3. OTHER OBLIGATIONS OF ZCC III . . . . . .4
3.1 Labor, Materials, Etc . . . . . . . . .4
3.2 Subcontractors . . . . . . . . . . . .4
3.3 Construction Safety . . . . . . . . . .5
3.4 Requirements of Authorities . . . . . .5
3.5 Certain Amounts Payable by ZCC III . .5
3.6 Mechanics' Liens . . . . . . . . . . .6
3.7 Protection of Persons and Property .6
3.8 Insurance . . . . . . . . . . . . . . .6
3.9 Clean Up . . . . . . . . . . . . . . .6
3.10 Interconnection . . . . . . . . . . . .7
3.11 Compliance With Other Agreements . . .7
3.12 Sales Taxes . . . . . . . . . . . . . .7
4. COMPLETION DATES AND TITLE TRANSFER . . . . . . .7
4.1 Completion Date and Obligation to Purchase . .7
4-2 Title Transfer . . . . . . . . . . . . . . . .9
5. PAYMENT TO ZCC III FOR CONSTRUCTION .9
9 5.1 Fixed Contract Price . . . . . . . . .9
9 5.2 Payment of Contract Price . . . . . . .9
9 5.3 Withholds by the Partnership .. . . . .10
6. WARRANTIES . . . . . . . . . . . . . . .11
6.1 Warranties of Manufacturer . . . . . . .11
6.2 Five Year Warranty of ZCC III . . . . . .11
6.3 Warranties of Contractors . . . . . . . .12
6.4 No Production Guarantee . . . . . . . . .13
6.5 Warranty Disclaimer . . . . . . . . . .13
6.6 Single Purpose Entity . . . . . . . . . .13
7. INDEMNIFICATION . 13
8. DAMAGE OR DESTRUCTION OF THE TURBINES,
RELATED TURBINE EQUIPMENT OR POWER SUBSTATION
PRIOR TO COMPLETION . . . . . . . . . . . . . . . . . . . . . . . 14
8.1 Damage or Destruction Insured . . . . . . . . . . . . . . . . . . . 14
8.2 Damage or Destruction Not Insured . . . . . . . . . . . . . . . . 14
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TABLE OF CONTENTS (Con't)
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Section Heading Page
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9. TERMINATION. . . . . . . . . . . .15
9.1 Special Event of Termination . . .15
9.2 Other Events of Termination . . .15
9.3 Remedies Upon Occurrence of
Other Events of Termination . .16
10. MISCELLANEOUS . . . . . . . . . . . . . . . . .16
10.1 Time of the Essence . . . . . . . . . . . . .16
10.2 Assignment and Transfer
to Other Parties . . . . . . . . . . . . .16
10.3 Notices . . . . . . . . . . . . . . . . . . .16
10.4 Waiver . . . . . . . . . . . . . . . . . . .17
10.5 Attorneys' Fees . . . . . . . . . . . . . . .17
10.6 Patents, Etc . . . . . . . . . . . . . . . .17
10.7 Documentation . . . . . . . . . . . . . . . .17
10.8 No Partnership, Etc . . . . . . . . . . . . .17
10.9 Dedication . . . . . . . . . . . . . . . . .18
10.10 Further Assurances . . . . . . . . . . . . .18
10.11 Binding Effect . . . . . . . . . . . . . . .18
10.12 Governing Law . . . . . . . . . . . . . . . .18
10.13 Interpretation . . . . . . . . . . . . . . .18
10.14 Partial Invalidity. . . . . . . . . . . . . .18
10.15 Headings, References and Exhibits . . . . . .19
10.16 Counterparts. . . . . . . . . . . . . . . . .19
10.17 Entire Agreement; Amendments. . . . . . . . .19
Exhibits Attached
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Exhibit A - Location Plan
Exhibit B - Legal Description of the Operating Site
Exhibit C - Form of Turbine Completion Certificate and Xxxx of
Sale
Exhibit D - Form of Power Substation Completion Certificate
and Xxxx of Sale
Exhibit E - Form of Power Transfer Facilities Completion
Certificate
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WINDSYSTEM CONSTRUCTION AGREEMENT
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THIS WINDSYSTEM CONSTRUCTION AGREEMENT ("Agreement") is made by and between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-A, a California limited partnership
("the Partnership"), and ZOND CONSTRUCTION CORPORATION III, a California
corporation ("ZCC III"), as of the 9th day of September, 1985. Unless otherwise
defined herein, terms appearing in initially capitalized letters shall have the
same meaning as that set forth in the Confidential Private Placement Memorandum
of the Partnership (the "Memorandum") dated September 9, 1985.
WHEREAS:
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A. The Partnership desires to purchase from ZCC III a system of
constructed and operational Turbines, Related Turbine Equipment and the Power
Substation all on the terms and conditions of this Agreement; and
B. ZCC III desires to construct the Turbines, the Related Turbine
Equipment pertaining thereto and the Power Substation in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE, the Partnership and ZCC III agree as follows:
1 DEFINITIONS
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As used in the Agreement the following terms shall have the ollowing
designated meaning:
1.1 "Admission Date" shall mean the date on which the Limited Partners are
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admitted to the Partnership.
1.2 "Agreement" shall mean this Windsystem Construction Agreement.
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1.3 "Authorities" shall mean all applicable Federal, state, municipal and
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local agencies or governmental bodies having jurisdiction over the Operating
Site and the construction contemplated by this Agreement which shall include,
without limitation, any applicable agency or governmental body of Xxxx County,
California.
1.4 "Contractor" shall mean any person or entity retained by ZCC III
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(including Zond acting as general contractor) in connection with the assembly,
installation and construction of the Turbines, the Related Turbine Equipment and
the Power Substation.
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1.5 "Contract Price" shall mean the total price payable by the Partnership
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to ZCC III for the purchase of (i) the Required Number of Turbines, (ii) the
Related Turbine Equipment and (iii) the Power Substation which are to be
constructed and installed pursuant to the provisions of this Agreement, and
which shall equal the product of the Required Number of Turbines and $168,000.
1.6 "Location Plan" shall mean the site plans prepared by ZCC III,
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designating the specific locations within the Operating Site upon which the
Turbines will be constructed pursuant to this Agreement, copies of which are
attached hereto as Exhibit A, as such Location Plan may be amended from time to
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time by ZCC III prior to the date of the purchase of the Turbines by the
Partnership hereunder.
1.7 "Location Sites" shall mean up to one hundred sixty (160) of those
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certain sites which are set forth in the Location Plan, upon which ZCC III shall
designate the Required Number of Turbines to be constructed, as such sites may
change from time to time as determined by ZCC III.
1.8 "Operating Site" shall mean the real property located in Tehachapi,
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Xxxx County, California, more fully described on the attached Exhibit B.
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1.9 "Partnership" shall mean Zond Windsystem Partners, Ltd. Series 85-A,
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a California limited partnership.
1.10 "Power Agreement" shall mean those certain several Power Purchase
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Contracts between SCE and Zond which were assigned by Zond to the Partnership
pursuant to the Assignment of Power Purchase Contracts.
1.11 "Power Substation" shall mean the 30MW power substation constructed
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and installed by ZCC III at the Operating Site.
1.12 "Power Transfer Facilities" shall mean the 66KV power transfer line
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and the equipment interconnecting such 66KV power transfer line to the power
grid owned by SCE proximate to the Operating Site.
1.13 "Related Turbine Equipment" shall mean the concrete pad upon which
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each Turbine is situated; the insulated wire cable connecting each Turbine to
an intermediate step-up transformer; and the intermediate step-up transformers.
1.14 "Required Number of Turbines" shall mean the total number of Turbines
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required to be purchased by the Partnership hereunder pursuant to the provisions
of Section 2 below.
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1.15 "Turbines" shall mean the Vestas Model V17 wind turbine generator,
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each having a rated capacity of 10OKW, and each being equipped with two
generators, a controller and a supporting steel lattice tower.
1.16 "SCE" shall mean Southern California Edison Company, a California
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public utility.
1.17 "Series A Purchase Note" shall mean any note given by the Partnership
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to ZCC III in partial payment for the Turbines, Related Turbine Equipment and
Power Substation purchased by the Partnership from ZCC III hereunder.
1.18 "Vestas" shall mean Vestas Energy A/S, a Danish corporation.
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1.19 "VNA" shall mean Vestas North America Limited, a California
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corporation.
1.20 "Wind Park Easement Agreement" shall mean the Wind Park Easement
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Agreement between ZCC III and the Partnership.
1.21 "Wind Power Generating Facility Warranty Agreement" shall mean that
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certain Wind Power Generating Facility Warranty Agreement between Vestas and any
purchaser designated in accordance with the provisions of Section 5.2 thereof
and acknowledged by VNA, a copy of which is attached as Exhibit C to the Wind
Turbine Generator Purchase Agreement.
1.22 "Windsystem Management Agreement" shall mean the Windsystem Management
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Agreement between Zond and the Partnership.
1.23 "Wind Turbine Generator Purchase Agreement" shall mean that certain
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1985 Wind Turbine Generator Purchase Agreement between VNA and Zond.
1.24 "ZCC III" shall mean Zond Construction Corporation III a California
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corporation and a wholly owned subsidiary of Zond.
1.25 "Zond" shall mean Zond Systems, Inc., a California corporation.
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2. CONSTRUCTION OF TURBINES, RELATED TURBINE EQUIPMENT AND POWER SUBSTATION
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Upon execution and delivery of this Agreement by the Partnership, ZCC III
agrees to commence construction of the Turbines the Related Turbine Equipment
and the Power Substation and to pursue construction diligently to completion in
accordance with the provisions of this Agreement.
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ZCC III shall construct, and the Partnership shall purchase from ZCC III at
the Contract Price pursuant to and on the terms hereof:
(a) One hundred sixty (160) Turbines ("the Required Number of
Turbines") which shall be located on the Location Sites determined
by ZCC III; provided, however, that if the total number
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of Partnership Units available for subscription have not been
subscribed for and fully paid on the Admission Date, the following
Required Number of Turbines shall be determined in the following
manner: One Hundred (100) plus such number of Turbines as the
Partnership shall specify upon a date which is not later than ten
(10) days after the Admission Date. The Required Number of Turbines
shall in any event be constructed on those sites constituting a
portion of the Location Sites as determined by ZCC III;
(b) the Related Turbine Equipment pertaining to the Required
Number of Turbines purchased pursuant to clause (a) above; and
(c) the Power Substation.
3. OTHER OBLIGATIONS OF ZCC III
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3.1 Labor, Materials, Etc.
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ZCC III agrees to furnish, at its sole cost, all labor, materials,
tools, permits, insurance, transportation, equipment, supervision and all other
matters necessary to commence and complete the construction of the Required
Number of Turbines, the Related Turbine Equipment pertaining thereto and the
Power Substation in accordance with this Agreement.
3.2 Subcontractors
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ZCC III shall employ only competent and experienced Contractors
and shall not employ any unfit person or Contractor not skilled in discharging
its obligations hereunder. ZCC III shall at all times maintain competent
supervision of, and enforce strict discipline and good order among, its
employees and Contractors. The Partnership hereby acknowledges and consents to
the Construction Agreement between ZCC III and Zond dated as of September 9,
1985 pursuant to which Zond has agreed to construct for ZCC III the Turbines,
the Related Turbine Equipment and the Power Substation.
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Construction Safety
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ZCC III shall monitor the construction on a continuing basis to
assure that all of ZCC III's Operations (including the activities of the
Contractors) under this Agreement are conducted in a safe manner and in full
compliance with all such applicable published requirements of the Occupational
Safety and Health Administration under the Occupational Safety and Health
Act of 1970 (the "OSHA requirements") and all applicable published requirements
of the California Occupational Safety and Health Administration under the
California Health and Safety Act (the "CAL-OSHA requirements"). Any failure to
strictly comply with such OSHA requirements or CAL-OSHA requirements will be
deemed a material breach of contract such as to justify the Partnership's right
to immediately remove ZCC III from the performance of its construction
obligations under this Agreement. If, as a result of the actions or conduct of
ZCC III or its Contractors, the Partnership should become a party to or
otherwise involved in OSHA proceedings of any kind related to OSHA requirements
or in CAL-OSHA proceedings of any kind related to CAL-OSHA requirements, ZCC
III will promptly pay upon demand any attorneys' fees, costs of corrective
action and other costs incurred by the Partnership as a result thereof.
Requirements of Authorities
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ZCC III acknowledges that it has inspected and accepted the
Operating Site and existing conditions, has examined and understands the
Location Plan and is familiar with all laws, regulations, codes, ordinances
and rules pertinent to the construction contemplated in this Agreement. In
connection with the construction of the Required Number of Turbines, the
Related Turbine Equipment pertaining thereto and the Power Substation, ZCC III
shall provide all items required by the Authorities, shall obtain all approvals
and permits required by the Authorities and shall observe and comply with all
requirements of the Authorities. If any approvals or permits or requirements of
the Authorities are inconsistent with the Location Plan or any provisions of
this Agreement, the approvals or permits or requirements of the Authorities
shall control and all obligations in connection therewith shall be at the sole
cost of ZCC III.
3.5 Certain Amounts Payable by ZCC III
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3.5.1 Charges. ZCC III shall promptly pay, and shall use all
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cash payments received from the Partnership under this Agreement to pay, all
valid charges for labor (including fringe benefits).. equipment and materials
used in the construction and installation of (i) the Required Number of
Turbines, (ii) the Related Turbine Equipment pertaining thereto and (iii) the
Power Substation including, without limitation, contributions to fringe benefit
trusts required by any collective bargaining agreements to which ZCC III is a
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party or by which ZCC III is bound. ZCC III shall not use any such cash
payments for any other purpose until payment in full of all such valid
charges.
3.5.2 Fees and Taxes. ZCC III shall pay when due all Federal,
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state, county, municipal or local taxes, fees, permit fees, charges, licenses or
assessments pertaining to the construction and installation contemplated in
this, Agreement, including without limitation withholding and similar employee
taxes, and shall hold the Partnership harmless from any liability in connection
with the preceding.
Mechanics' Liens
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At all times from the date of this Agreement until and including
the date of the purchase thereof by the Partnership hereunder, ZCC III shall
keep the (i) Required Number of Turbines, (ii) the Related Turbine Equipment
pertaining thereto, (iii) the Power Substation, (iv) the Location Sites and
(v) the Operating Site free from all claims and liens arising out of labor
and materials furnished by ZCC III and its Contractors, and shall indemnify and
hold the Partnership free and harmless from any cost or expense on account of
the assertion of any such claim or lien.
3.7 Protection of Persons and Property
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ZCC III shall take (and shall cause its Contractors to take) every
practicable precaution not to damage or injure any persons or property in the
performance of its duties under this Agreement.
Insurance
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At all times from the date of this Agreement until the date of the
purchase thereof by the Partnership hereunder, ZCC III, at its sole cost,
shall obtain and maintain or cause to be maintained the property damage and
business interruption insurance coverage substantially identical to the policy
issued by Continental Insurance Company under the September 6, 1985 Insurance
Binder from Xxxxx & XxXxxxxx, covering the Required Number of Turbines, the
Related Turbine Equipment pertaining thereto and the Power Substation.
Clean Up
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Upon completion of the construction of the Required Number of
Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation, ZCC III, at its sole cost, shall remove all construction debris and
surplus material from the Operating Site.
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3.10 Interconnection
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ZCC III, at its sole cost, shall cause the interconnection of the Required
Number of Turbine and the Power Substation with the SCE power transmission
system.
3.11 Compliance With Other Agreements
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In constructing the Required Number of Turbines, the Related
Turbine Equipment pertaining thereto and the Power Substation, ZCC III shall
comply with all requirements of the Power Agreement and the Wind Park Easement
Agreement and the Project Loan.
3.12 Sales Taxes
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ZCC III shall be solely responsible for and shall pay any sales
taxes which may be owing any applicable governmental agency in connection with
the construction and delivery to the Partnership of the Required Number of
turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation.
4 COMPLETION DATES AND TITLE TRANSFER
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4.1 Completion Date and Obligation to Purchase
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The construction of a Turbine shall be deemed to be completed on the
date which is the later to occur of (i) the date upon which such Turbine is
certified to be operational by Vestas or one of its authorized representatives,
which include VNA and Zond, (ii) the date upon which the Power Substation is
certified by ZCC III or Zond to be operational, (iii) the date upon which the
Power Transfer Facilities are certified to be operational by Zond, and (iv)
the date upon which SCE provides its written approval for operation of the
Interconnection Facilities (to the extent required by the Power Agreement). ZCC
III shall use its best efforts to complete construction of the Required Number
of Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation and place the Turbines in service by November 15, 1985 but no later
than December 29, 1985.
In the event that on the Admission Date (i) the construction of 100 or
more, but less than all, of the Required Number of Turbines and the Related
Turbine Equipment pertaining thereto has been so completed, (ii) the
construction of the Power Substation has been certified by ZCC III or Zond to be
operational, (iii) the Power Transfer Facilities have been certified by Zond to
be operational, and (iv) SCE has provided its written approval for the operation
of the Interconnection Facilities (to the extent required by the Power
Agreement), the Partnership shall purchase on the Admission Date that number of
Turbines whose construction has been then completed, together with the Related
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Turbine Equipment pertaining thereto and the Power Substation. Thereafter, the
Partnership shall purchase additional Turbines, and the Related Turbine
Equipment pertaining thereto, in groups of not less than fifty (50) Turbines
upon the completion of the construction of such Turbines.
Anything above to the contrary notwithstanding, the Partnership shall
not be obligated to purchase any Turbines or Related Turbine Equipment
pertaining thereto (i) greater than the Required Number of Turbines and the
Related Turbine Equipment pertaining thereto, (ii) whose construction is not
completed by, and which are not ready to be immediately placed in service by,
December 29, 1985, (iii) in the event that the Power Substation has not been
certified by ZCC III or Zond to be operational by, and is not ready to be
immediately placed in service by, December 29, 1985; (iv) if the Power Transfer
Facilities have not been certified by Zond to be operational by, and are not
ready to be immediately placed in service by, December 29, 1985; (v) if SCE has
not provided its written approval for operation of the Interconnection
Facilities by December 29, 1985; (vi) unless at the time of such purchase there
shall be in effect insurance substantially in the form described in the
Memorandum under the caption "Windsystem Insurance - Systems Performance
Policies"; and (vii) unless at the time of such purchase, the Wind Park Easement
Agreement and the Windsystem Management Agreement are each in effect.
Upon purchase of Turbines and the Related Turbine Equipment pertaining
thereto, ZCC III shall transfer good and marketable title thereto by executing
and delivering to the Partnership a Turbine Completion Certificate and Xxxx of
Sale substantially in the form of Exhibit C attached hereto ("Turbine Completion
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Certificate"). The Partnership shall accept such completion and transfer by
executing an acknowledgment of the Turbine Completion Certificate as provided
therein. ZCC III hereby represents to the Partnership that ZCC III's execution
and delivery of each Turbine Completion Certificate affirms that Vestas, VNA or
Zond has certified the Turbines specified thereon as operational pursuant to the
provisions of Section 3 of the Wind Power Generating Facility Warranty
Agreement. In the same manner, ZCC III shall transfer title to the Power
Substation to the Partnership, by executing and delivering to the Partnership a
Power Substation Completion Certificate and Xxxx of Sale substantially in the
form of Exhibit D attached hereto (the "Power Substation Completion
Certificate"). In addition, Zond shall certify that the Power Transfer
Facilities are operational by executing and delivering to the Partnership a
Power Transfer Facilities Completion Certificate substantially in the form of
Exhibit E hereto (the "Power Transfer Facilities Completion Certificate").
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Title Transfer
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Title to the Turbines, the Related Turbine Equipment pertaining
thereto and the Power Substation, which the Partnership acquires in
accordance with this Agreement, shall pass from ZCC III to the Partnership upon
completion in accordance with Section 4.1 and execution of the Turbine
Completion Certificate and the Power Substation Completion Certificate, as the
case may be, by ZCC III and the Partnership, but not earlier than the Admission
Date, free and clear of any encumbrances, liens, security interests or other
charges (including, without limitation, any of the preceding of ZCC III, Zond,
VNA or Vestas or any lender to any of them), except any of the preceding which
are created in writing by, or with the written consent of, the Partnership. ZCC
III shall indemnify and hold the Partnership free and harmless against all such
encumbrances, liens, security interests and other charges (except any of the
preceding which are created in writing by, or with the written consent of, the
Partnership) and any damages, costs, charges and expenses (including, without
limitation, reasonable attorneys' fees) incurred by the Partnership in
connection therewith.
ZCC III agrees to indemnify and hold the Partnership harmless on an
after-tax basis against any loss or delay in the Partners' ability to claim tax
benefits derived from the ownership of Turbines, Related Turbine Equipment
pertaining thereto, and the Power Substation purchased by the Partnership
hereunder which results from the taking or omitting to take any action by ZCC
III or any of its Contractors which would cause the Turbines to be deemed to
have been placed in service prior to the date on which title to such Turbines
and the Related Turbine Equipment pertaining thereto passes from ZCC III to the
Partnership.
5. PAYMENT TO ZCC. III FOR CONSTRUCTION
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Fixed Contract Price
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The Contract Price is a fixed price. The Partnership shall not be
liable to pay more to ZCC III than the Contract Price, and the Partnership
shall not be entitled to a reduction in the Contract Price if such cost of
construction is less than the Contract Price.
5.2 Payment of Contract Price
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5.2.1 Payment by the Partnership. On the Admission Date, the
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Partnership shall pay ZCC III that portion of the Contract Price in full
payment for the number of Turbines then purchased pursuant to Section 4.1
above, together with the Related Turbine Equipment pertaining thereto and the
Power Substation, which is equal to the product of $168,000 and the number of
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Turbines then purchased. Such payment shall be made at the time of the
execution of the related Turbine Completion Certificate and the Power
Substation Completion Certificate by ZCC III and the Partnership and the Power
Transfer Facilities Completion Certificate by Zond. Upon each purchase of
additional Turbines and the Related Turbine Equipment pertaining thereto in
accordance with the provisions of Section 4.1 above, the Partnership shall pay
that portion of the Contact Price, in full payment for such Turbines and the
Related Turbine Equipment pertaining thereto, which is equal to the product of
$168,000 and the number of Turbines then purchased. Such payment shall be made
at the time of the execution of the related Turbine Completion Certificate by
ZCC III and the Partnership.
Forty-nine percent (49%) of the Contact Price payable upon each
purchase of Turbines shall be paid in~ cash or by check, with the balance of
the Contract Price being represented by a Series A Purchase Note which shall
be in such form as the parties shall agree. Each Series A Purchase Note shall
bear interest, compounded semiannually, at the greater of (i) 11.25% per annum
and (ii) the lowest rate then in effect to avoid imputed interest under the
Internal Revenue Code of 1954, as amended, and the regulations thereunder, and
shall be secured by such Turbines, the Related Turbine Equipment pertaining
thereto, the Power Substation and by such other collateral as the Partnership
and ZCC III shall agree, all as set forth in a security agreement executed by
the Partnership and ZCC III.
5.2.2 No Waiver. No payment to ZCC III shall constitute acceptance or
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approval of any defective construction previously performed by ZCC III. The
Partnership has the right to pay for construction that is defective without
correction of the defect and may back-charge ZCC III the amount of the loss
sustained due to the defect and to deduct such amounts from payments thereafter
becoming due to ZCC III.
5.3 Withholds by the Partnership
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The Partnership shall be entitled to establish reasonable reserves
from payments due or becoming due to ZCC III under the following conditions:
5.3.1 Defects. ZCC III's failure to correct or cause to be corrected
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defective work.
5.3.2 Subcontractor Claims. Receipt of information that Contractors
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or other persons entitled to do so have filed, or have threatened to
file, mechanics' liens or stop notice claims due to ZCC III's failure to make
payments when due to such Contractors or persons.
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5.3.3 Damages. Damage by ZCC III or its employees or by Contractors
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to the Required Number of Turbines, the Related Turbine Equipment pertaining
thereto or the Power Substation, purchased by the Partnership hereunder.
5.3.4 Inspection. Failure of ZCC III's construction to pass any
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required inspections.
5.3.5 Unauthorized Changes. Construction or attempted construction of
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an item different from that required by this Agreement unless ordered in
writing by the Partnership.
5.3.6 Claims Against ZCC III. Should the Partnership still have a
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claim remaining against ZCC III after offsetting against amounts owed under the
Windsystem Management Agreement or the Wind Park Easement Agreement, the
Partnership may make a claim against amounts owing to ZCC III under this
Agreement; provided that under no circumstances may the Partnership offset such
claim or any other claim against amounts owing to ZCC III under the Series A
Purchase Note.
6. WARRANTIES
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Warranties of Manufacturer
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Prior to the execution of any Turbine Completion Certificate by ZCC
III and the Partnership and as a condition of the Partnership's obligation to
purchase the Turbines covered thereby, ZCC III (i) shall cause the Partnership
to be designated as the "Purchaser" under Section 5.2 of the Wind Power
Generating Facility Warranty Agreement, so that all warranties in the Wind
Power Generating Facility Warranty Agreement shall run to, and in favor of,
the Partnership, with respect to the number of Turbines covered thereby and
(ii) shall cause Zond to assign and transfer to the Partnership, for the
benefit of the Partnership, all representations and warranties made by VNA in
the Wind Turbine Generator Purchase Agreement.
Five Year Warranty of ZCC III
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(a) ZCC III hereby represents and warrants to, and agrees with, the
Partnership that, for a period of five (5) years after the date of a Turbine
Completion Certificate with respect to any Turbines which are purchased by the
Partnership hereunder, that all such Turbines, and all Related Turbine
Equipment pertaining thereto, shall have been constructed under this Agreement
in a good and workmanlike manner. During each such five-year warranty period,
ZCC III, at its sole cost, shall provide for field inspection of the particular
portion of the Turbines to verify failure, establish probable cause and
determine what corrective action is required. ZCC III, at its sole cost, shall
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cause all corrective action to be taken as soon as possible as possible if
such action is required because of the breach by ZCC III of its representation,
warranty and agreement contained in this Section; provided, however, that ZCC
III shall have no obligations under this Section 6.2 with respect to any
Turbine or the Related Turbine Equipment pertaining thereto, which is moved
from its original Location Site other than by ZCC III or with the written
consent of ZCC III, or if repair or replacement thereof is required as the
result of: (i) repair, maintenance, alteration or modification of such Turbine,
or Related Turbine Equipment pertaining thereto, by persons other than Zond,
Zond-authorized personnel or other persons using procedures approved by Zond or
its authorized representative (provided that Zond shall then be ready, willing
and able to make such repair, maintenance, alteration or modification to the
reasonable satisfaction of the Partnership); (ii) misuse, neglect or abuse,
accident or alteration; (iii) normal wear or tear; or (iv) causes beyond the
reasonable control of ZCC III (including, without limitation, acts of nature
such as floods, earthquakes and storms).
(b) ZCC III hereby represents and warrants to, and agrees with the
Partnership that, for a period of five (5) years from the date of the Power
Substation Completion Certificate, the Power Substation shall have been
constructed in a good and workmanlike manner. ZCC III shall assign to the
Partnership any warranties made to ZCC III by the manufacturers of the
components of the Power Substation or, with respect to the Power Transfer
Facilities, by Zond. During such five-year warranty period, ZCC III, at its sole
cost, shall provide for field inspection of the Power Substation to verify
failure, establish probable cause and determine what corrective action is
required. ZCC III, at its sole cost, shall cause all corrective action to be
taken as soon as possible if such action is required because of the breach by
ZCC III of its representation, warranty and agreement contained in this Section.
(c) IN NO EVENT SHALL ZCC III BE LIABLE FOR ANY LOST PROFITS OR
INCIDENTAL OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE BREACH OF ANY
REPRESENTATION, WARRANTY OR AGREEMENT CONTAINED HEREIN.
6.3 Warranties of Contractors
-------------------------
ZCC III shall obtain from all Contractors, and shall assign to the
Partnership, all warranties of the Contractors against defects in materials
and workmanship to the extent such warranties are obtainable and transferable.
ZCC III shall reasonably assist the Partnership in enforcing any such
warranties.
-12-
No Production Guarantee
-----------------------
In no event shall any provisons of this Agreement be construed as a
guaranty or warranty by ZCC III that the Turbines will generate any minimum
amount of electricity in any particular period.
6.5 Warranty Disclaimer
-------------------
EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 6, ZCC III DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS OR A PARTICULAR PURPOSE, WITH RESPECT TO THE
TURBINES AND THE RELATED TURBINE EQUIPMENT.
Single Purpose Entity
---------------------
ZCC III hereby represents to the Partnership that it was formed for
the sole purpose of entering into and performing under this Agreement and the
transactions contemplated herein or in the Memorandum (and under similar
transactions with Zond Windsystem Partners, Ltd. Series 85-B) and that it will
engage in no other activities other than those contemplated hereby and
those necessary to maintain its legal existence and good standing as a
corporation, to maintain its records in the normal course of business or such
activities as may be required under the Project Loan.
7 INDEMNIFICATION
---------------
In addition to any other obligations of ZCC III under this Agreement
(including, without limitation, ZCC III's obligations to provide insurance), ZCC
III shall indemnify and hold the Partnership free and harmless against all
claims, demands, liabilities, proceedings, damages, costs, charges and expenses
(including, without limitation, reasonable attorneys' fees) resulting from or
attributable to the negligent act or omission of ZCC III, its affiliates or its
employees or its Contractors or resulting from or attributable to any activity,
work or things done, permitted or suffered by ZCC III, its affiliates or its
employees or its Contractors in, on or about the Operating Site or elsewhere or
resulting from or attributable to any failure of ZCC III, to perform its
obligations under this Agreement; provided, however, that nothing herein
-------- -------
contained shall be deemed to render ZCC III liable for or to indemnify the
Partnership against any liability or damages to the extent attributable to or
resulting from the negligent acts or omissions of the Partnership or its agents
or authorized representatives (which for purposes of this Agreement do not
include ZCC III, its affiliates or its Contractors).
-13-
The Partnership agrees to indemnify and hold ZCC III free and harmless
against any and all actions, claims, losses, damages, injuries, liabilities,
costs, charges; and expenses of any kind or nature (including the attorneys'
fees of ZCC III incurred by ZCC III in the proper performance of its duties
under this Agreement) to the extent resulting from or attributable to the
fault or neglect of the Partnership.
8. DAMAGE OR DESTRUCTION OF THE TURBINES, RELATED TURBINE
------------------------------------------------------
EQUIPMENT OR POWER SUBSTATION PRIOR TO COMPLETION
-------------------------------------------------
8.1 Damage or Destruction Insured
-----------------------------
Should all or any portion of the Required Number of Turbines, the
Related Turbine Equipment pertaining thereto, or the Power Substation be
damaged or destroyed prior to execution of a Completion Certificate by ZCC III
and the Partnership with respect to such Turbines, the Related Turbine Equipment
pertaining thereto, or the Power Substation, with or without the fault or
neglect of ZCC III or any of its employees or agents or Contractors, and the
damage or destruction is covered by any of the insurance policies described in
Section 3.8, the Partnership shall have the option to either (i) terminate this
Agreement with respect to the damaged or destroyed Turbines, the Related Turbine
Equipment pertaining thereto, or the Power Substation and have no further
liability therefor to ZCC III hereunder, in which event ZCC III shall be paid
all insurance proceeds pertaining to such Turbines, the Related Turbine
Equipment pertaining thereto, or the Power Substation or (ii) direct ZCC III to
cause the repair and restoration of such Turbines, the Related Turbine Equipment
pertaining thereto, or the Power Substation utilizing all insurance proceeds
pertaining to such Turbines, the Related Turbine Equipment pertaining thereto,
or the Power Substation and with any cost in excess of such proceeds to be paid
for by ZCC III. In the event the Partnership directs ZCC III to cause such
repair and restoration, ZCC III shall commence forthwith such repair and
restoration and complete same as soon as possible and in any event not later
than ninety (90) days after the date the Partnership so directs ZCC III.
8.2 Damage or Destruction Not Insured
---------------------------------
Should all or any portion of the Turbines, the Related Turbine
Equipment pertaining thereto, or the Power Substation be damaged or destroyed
prior to execution of a Completion Certificate with respect to such
Turbines, the Related Turbine Equipment pertaining thereto, or the Power
Substation with or without the fault or neglect of ZCC III or any of its
employees or agents or Contractors, and the damage or destruction is not covered
by any of the insurance policies described in Section 3.8 (provided that such
non-coverage by such insurance policies shall not have resulted from ZCC III's
-14-
failure to obtain such insurance or to make required and timely premium
payments upon such insurance), the Partnership shall have the option
to either (i) terminate this Agreement with respect to the damaged or
destroyed Turbines, the Related Turbine Equipment pertaining thereto, or the
Power Substation and have no obligation to acquire the same or (ii) direct ZCC
III to cause the repair and restoration of such Turbines, the Related Turbine
Equipment pertaining thereto, or the Power Substation with the cost thereof to
be paid for by the Partnership; provided, however, that the per Turbine cost of
-------- -------
such repair or restoration shall in no event exceed $168,000. In the event the
Partnership directs ZCC III to cause such repair and restoration, ZCC III shall
commence forthwith such repair and restoration and complete the same as soon as
possible and in any event not later than ninety (90) days after the date the
Partnership so directs ZCC III.
9 TERMINATION
-----------
Special Event of Termination
------------------------------
If the minimum number of Partnership Units required to be sold has
not been subscribed for and the offering is terminated, the Partnership
thereafter may terminate this Agreement by written notice to ZCC III. In the
event of such termination, neither the Partnership nor ZCC III shall have any
obligations whatsoever (other than as set forth in Section 6 of this Agreement,
which obligations shall survive the termination of this Agreement) to the other
and ZCC III shall be entitled to retain all Turbines, the Related Turbine
Equipment, pertaining thereto and the Power Substation then constructed or in
the process of construction.
Other Events of Termination
---------------------------
In addition to any other termination rights in this Agreement, the
Partnership may, by giving at least seventy-two (72) hours prior written
notice to ZCC III, specifying the reason therefor, terminate this Agreement
for any of the following causes:
9.2.1 Default. If ZCC III fails to perform its obligations
-------
substantially in accordance with the terms of this Agreement and, after
seventy-two (72) hours prior written notice from the Partnership specifying
the nature of the alleged default, fails to cure such default (or, in the case
of a default which cannot with due diligence be cured within a period of 72
hours, if ZCC III fails to proceed promptly to prosecute the curing of such
default with all due diligence).
-15-
9.2.2 Dissolution. If ZCC III dissolves or the legal existence of ZCC
-----------
III is terminated, unless a successor entity reasonably satisfactory to the
Partnership agrees to be bound by and to perform all of the duties and
obligations of ZCC III under this Agreement.
9.3 Remedies Upon Occurrence of Other Events of Termination
-------------------------------------------------------
Should the Partnership terminate this Agreement as provided in Section
9.2, such termination of this Agreement shall be without prejudice to any other
rights or remdies which either the Partnership or ZCC III may have against the
other.
10. MISCELLANEOUS
-------------
10.1 Time of the Essence
-------------------
Time for performance by ZCC III of each and all of its obligations
under this Agreement is of the essence.
10.2 Assignment and Transfer to Other Parties
----------------------------------------
Neither ZCC III nor the Partnership shall transfer or assign this
Agreement or any benefit or interest herein, without the prior written consent
of the other, which consent shall not be unreasonably withheld; provided,
however, that ZCC III may collaterally assign its rights under this Agreement as
security for loans made by unaffiliated lenders which are incurred for the
purpose of meeting its obligations hereunder and ZCC III is authorized to
subcontract any portion of its duties under this Agreement to a third party who
shall be reasonably acceptable to the Partnership or to delegate its obligations
hereunder, in the ordinary course of its business, without reducing the scope of
ZCC III's undertakings, obligations and commitments to the Partnership. The
Partnership hereby acknowledges that ZCC III has appointed Zond as general
contractor to ZCC III for the construction of the Turbines, the Related Turbine
Equipment and the Power Substation pursuant to the terms of a certain Con-
struction Agreement between Zond and ZCC III, and consents to Zond's acting as
general contractor pursuant thereto.
10.3 Notices
-------
Any notice permitted or required to be given to either party shall be
deemed to have been given upon personal delivery or on the second business day
after the date of deposit in the United States mail, first-class registered or
certified, postage prepaid, addressed to the party for whom intended at the
address appearing on the signature page of this Agreement, or at such other
address of which notice has been given as provided by this Section.
-16-
10.4 Waiver
------
Neither party hereto shall be deemed to have waived any of its
rights or remedies hereunder unless such waiver be in writing and signed by
said party or its duly authorized representative, and then only to the extent
specifically set forth therein. A waiver of one event shall not be construed
as constituting a bar or waiver of any right or remedy with respect to a
subsequent event.
10.5 Attorneys' Fees
---------------
If either the Partnership or ZCC III brings any action or
proceeding for the enforcement, protection establishment of any right or
remedy under this Agreement or for the interpretation of this Agreement, 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.
10.6 Patents, Etc
------------
The construction of the Turbines, the Related Turbine Equipment
and the Power Substation shall not be construed as granting to the
Partnership any license or other right therein or to any patent, copyright,
trademark or other similar proprietary right now or hereafter applicable
thereto. ZCC III hereby indemnifies and holds the Partnership free and harmless
against any and all actions, claims, losses, damages, injuries, liabilities,
costs, charges and expenses of any kind or nature (including the attorneys' fees
of the Partnership) resulting from any claim or infringement of any patent,
copyright, trademark or other proprietary right now or hereafter applicable to
the Turbines, the Related Turbine Equipment and the Power Substation based upon
the Partnership's ownership and operation thereof.
10.7 Documentation
-------------
All documentation with respect to the Turbines which is furnished
to the Partnership is solely for the Partnership's internal use. All such
documentation shall be maintained in a safe place by the Partnership and the
Partnership shall take appropriate measures to prevent the unauthorized
disclosure thereof.
10.8 No Partnership, Etc.
-------------------
The relationship of the Partnership and ZCC III under this
Agreement is that of independent contractors. Nothing in this Agreement shall be
deemed to constitute the Partnership or ZCC III a partner of the other. The
employees and any Contractors of ZCC III in performing the obligations of ZCC
III under
-17-
this Agreement shall not be deemed to be the agents or employees or Contractors
of the Partnership, and ZCC III hereby assumes all responsibility for the acts
or omissions of such employees and Contractors.
10.9 Dedication
The undertakings of ZCC III in this Agreement are for the sole benefit
of the Partnership and nothing in this Agreement shall constitute the dedication
of ZCC III's or the Partnership's property or services to the public nor affect
ZCC III's or the Partnership's status as an independent entity and not as a
public utility.
10.10 Further Assurances
------------------
Each party agrees to do, execute, acknowledge and deliver all and
every such further acts, assurances, documents and instruments as may be
reasonably requested by the other to effect the purpose and intent of this
Agreement. The parties further agree to cooperate with any lenders to each other
and to provide such information and to take such actions as such lenders may
reasonably request in connection with this Agreement.
10.11 Binding Effect
--------------
This Agreement shall be binding upon the parties and their respective
permitted assignees, successors-in-interest and legal representatives.
10.12 Governing Law
-------------
The terms and provisions of this Agreement shall be construed in
accordance with the laws of the State of California.
10.13 Interpretation
--------------
The Partnership and ZCC III agree that the terms and provisions of
this Agreement embody their mutual intent and that they are not to be construed
more liberally in favor of, nor more strictly against, any party hereto.
10.14 Partial Invalidity
------------------
If any term or provision of this Agreement, or the application thereof
to any person or circumstance shall, to any extent, be invalid or enforceable,
the remainder of this Agreement 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 Agreement shall be valid and enforceable to the fullest extent
permitted by law.
-18-
10.15 Headings, References and Exhibits
---------------------------------
The headings contained in this Agreement are for purposes of reference
and convenience only and shall not limit or otherwise affect the meaning of this
Agreement. Unless otherwise indicated, all references to Sections are to
Sections in this Agreement. All exhibits attached to this Agreement are
incorporated herein by this reference.
10.16 Counterparts
------------
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which, when taken together, shall constitute one
and the same instrument.
10.17 Entire Agreement; Amendments
----------------------------
This Agreement supersedes all previous agreements, understandings,
negotiations and proposals between the Partnership and ZCC III relating to the
subject matter of this Agreement. This Agreement may not be altered or amended
except by an instrument in writing signed by ZCC III and the Partnership. ZCC
III and the Partnership each acknowledge and agree that no representation,
warranty or inducement has been made to it regarding the subject matter of this
Agreement which is not expressly set forth in this Agreement.
-19-
IN WITNESS WHEREOF, the parties h4ve executed this Windsystem Construction
Agreement as set forth below.
"ZCC III"
ZOND CONSTRUCTION CORPORATION
III, a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
------------------ --------------------------
XXXXX X. XXXXXXXX
Senior Vice President
General Counsel
"PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD
SERIES 85-A,
a California Limited
Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General
Partner:
Zond Windsystems Management
Corporation III, a California
corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
--------------------- --------------------------
XXXXX X. XXXXXXXX
Senior Vice President
General Counsel
-20-
GUARANTY
--------
The undersigned corporation hereby guarantees the performance of Zond
Construction Corporation III under the Windsystem Construction Agreement between
Zond Construction Corporation III and Zond Windsystem Partners, Ltd. Series 85-A
to which this Guaranty is attached.
ZOND SYSTEMS, INC.,
a California corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
--------------------- --------------------------
XXXXX X. XXXXXXXX
Senior Vice President
General Counsel
-21-
LOCATION PLAN
-------------
Exhibit A
to the
Windsystem Construction Agreement
A-1
EXHIBIT B
---------
LEGAL DESCRIPTION OF THE OPERATING SITE
---------------------------------------
ALL OF SECTION 33, TOWNSHIP 32 SOUTH, RANGE 34 EAST, MOUNT DIABLO MERIDIAN, IN
THE UNINCORPORATED AREA OF THE COUNTY OF XXXX, STATE OF CALIFORNIA, ACCORDING TO
THE OFFICIAL PLAT THEREOF.
EXCEPT THAT PORTION OF SAID SECTION 33, THAT INCLUDED WITHIN THE LAND DESCRIBED
AS PARCEL IF IN THE FINAL 0RDER OF CONDEMNATION HAD IN XXXX COUNTY SUPERIOR
COURT, CASE No. 101028, A CERTIFIED COPY THEREOF WAS RECORDED JULY 23, 1970 IN
B00K 4420 PAGE 123, OFFICIAL RECORDS.
ALSO EXCEPT ALL THAT PORTION WITHIN THE RIGHT OF WAY, 200 FEET WIDE OF THE
SOUTHERN PACIFIC RAILROAD COMPANY AS GRANTED BY ACT OF CONGRESS OF JULY 27,
1866.
B-1
EXHIBIT C
---------
FORM OF TURBINE COMPLETION CERTIFICATE AND XXXX OF SALE
-------------------------------------------------------
ZOND CONSTRUCTION CORPORATION III ("ZCC III") hereby certifies to ZOND
WINDSYSTEM PARTNERS, LTD. SERIES 85-A (the "Partnership") that the construction
and installation of the (i) Turbines whose serial numbers are listed on the
attached Annex 1, and (ii) the Related Turbine Equipment pertaining thereto, a
description of which is set forth on such Annex 1, was completed on
-----------,
1985 (the "Completion Date") in accordance with Section 4.1 of the Windsystem
Construction Agreement between the Partnership and ZCC III ("Construction
Agreement"). ZCC III further certifies to the Partnership that such Turbines
have not been placed in service as of the date hereof.
KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of payments
made by the Partnership to ZCC III pursuant to the Construction Agreement and
other good and valuable consideration, receipt of which is hereby acknowledged,
ZCC III hereby sells, assigns and transfers to the Partnership all of ZCC III's
right, title and interest (i) in and to the Turbines and all components thereof,
and (ii) in and to the Related Turbine Equipment pertaining thereto (together
with all rights of ZCC III in respect of the warranties or other claims against
the manufacturer or vendor to ZCC III of the Turbines and the Related Turbine
Equipment pertaining thereto), to have and to hold for itself and for its
successors and assigns to their own use and benefit forever.
ZCC III hereby warrants to the Partnership that the Turbines, all
components of the Turbines and the Related Turbine Equipment pertaining thereto,
are, as of the date hereof, free from any mortgage, pledge, lien, charge,
encumbrance, lease or security interest arising by, through or under ZCC III
(other than the Series A Purchase Note(s) made by the Partnership in favor of
ZCC III and issued in respect of the purchase of the Turbines, the Related
Turbine Equipment pertaining thereto and the Power Substation as contemplated by
the Construction Agreement, or such other interests as have been approved by the
Partnership) and that ZCC III has full right, title and authority as to all
persons to sell the same as aforesaid; and ZCC III hereby covenants with the
Partnership that ZCC III will, to the extent of the foregoing warranty, warrant
and defend all such components against the claims and demands of all persons.
ZCC III hereby warrants to the Partnership that all amounts due and payable
as of the date hereof to any other party or ZCC III with respect to the Turbines
and the Related Turbine Equipment pertaining thereto have been duly paid and no
further amounts are owed or will be owing to any party or ZCC III with respect
thereto.
C-1
IN WITNESS WHEREOF, ZCC III has caused this instrument to be executed this
day of , 1985.
---- -----------------
"ZCC III"
ZOND CONSTRUCTION CORPORATION III,
a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By
------------------------
The Partnership hereby accepts the Turbines and the Related Turbine
Equipment pertaining thereto, described above, and the passage of title thereto,
all as set forth above; provided, however, that by doing so, the Partnership
does not waive any rights or remedies it may have against ZCC III or others
under the Construction Agreement or otherwise.
"PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD
SERIES 85-A,
a California Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General Partner:
Zond Windsystems Management
Corporation III,
a California corporation
Dated: By
-------------------- ------------------------
C-2
EXHIBIT D
---------
FORM OF COMPLETION CERTIFICATE AND XXXX OF SALE
-----------------------------------------------
ZOND CONSTRUCTION CORPORATION III ("ZCC III") hereby certifies to ZOND
WINDSYSTEM PARTNERS, LTD. SERIES 85-A (the "Partnership") that the construction
and installation of the Power Substation was completed on 1985
----------------,
(the "Completion Date") in accordance with Section 4.1 of the Windsystem
Construction Agreement between the Partnership and ZCC III ("Construction
Agreement"). ZCC III further certifies to the Partnership that the Power
Substation has not been placed in service as of the date hereof.
KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of payments
made by the Partnership to ZCC III pursuant to the Construction Agreement and
other good and valuable consideration, receipt of which is hereby acknowledged,
ZCC III hereby sells, assigns and transfers to the Partnership all of ZCC III's
right, title and interest in and to the Power Substation (together with all
rights of ZCC III in respect of the warranties or other claims against the
manufacturer or vendor to ZCC III of the Power Substation and, with respect to
the Power Transfer Facilities, against Zond), to have and to hold for itself and
for its successors and assigns to their own use and benefit forever.
ZCC III hereby warrants to the Partnership that the Power Substation is, as
of the date hereof, free from any mortgage, pledge, lien, charge, encumbrance,
lease or security interest arising by, through or under ZCC III (other than the
Series A Purchase Note(s) made by the Partnership in favor of ZCC III and issued
in respect of the purchase of the Turbines, the Related Turbine Equipment
pertaining thereto and the Power Substation as contemplated by the Construction
Agreement, or such other interests as have been approved by the Partnership) and
that ZCC III has full right, title and authority as to all persons to sell the
same as aforesaid; and ZCC III hereby covenants with the Partnership that ZCC
III will, to the extent of the foregoing warranty, warrant and defend all such
components against the claims and demands of all persons.
ZCC III hereby warrants to the Partnership that all amounts due and payable
as of the date hereof to any other party or ZCC III with respect to the Power
Substation, have been duly paid and no further amounts are owed or will be owing
to any party or ZCC III with respect thereto.
D-1
IN WITNESS WHEREOF, ZCC III has caused this instrument to be executed this
day of , 1985.
---- -----------------
"ZCC III"
---------
ZOND CONSTRUCTION CORPORATION III,
a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By
------------------------
The Partnership hereby accepts the Power Substation, described above, and the
passage of title thereto, all as set forth above; provided, however, that by
doing so, the Partnership does not waive any rights or remedies it may have
against ZCC III or others under the Construction Agreement or otherwise.
"PARTNERSHIP"
-------------
ZOND WINDSYSTEM PARTNERS, LTD
SERIES 85-A,
a California Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General Partner:
Zond Windsystems Management
Corporation III,
a California corporation
Dated: By
-------------------- ------------------------
D-2
Exhibit E
FORM OF POWER TRANSFER FACILITIES COMPLETION CERTIFICATE
--------------------------------------------------------
Zond Systems, Inc. ("Zond") hereby certifies to each of Zond
Windsystem Partners, Ltd. Series 85-A and Zond Windsystem Partners, Ltd. Series
85-B that the construction of the Power Transfer Facilities (as defined in the
hereinafter defined Construction Agreement) was completed on , 1985
-------------
in accordance with Section 5.2 of that certain Construction Agreement dated as
of September 9, 1985, between Zond and ZCC III ("Construction Agreement").
ZOND
----
ZOND SYSTEMS, INC.,
a California corporation
State License No. 414292
Dated: By
-------------------- ------------------------
Xxxxxxx X. Xxxxx
Executive Vice President -
Chief Operating and Chief
Financial Officer
E-1
