Exhibit 10.9(i)
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ASSIGNMENT OF POWER PURCHASE CONTRACTS
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By and Between
"ZOND"
ZOND SYSTEMS, INC.
a California corporation
and
"THE PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-B,
a California Limited Partnership
as of
September 9, 1985
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TABLE OF CONTENTS
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Section Heading Page
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1 ASSIGNMENT 1
2 ACCEPTANCE 1
3 TERM
4. REPRESENTATIONS AND AGREEMENTS OF ZOND 2
4.1 Form and Status of Agreement . . . . 2
4.2 Enforcement . . . . . . . . . . . . 2
4.3 Additional Agreements. . . . . . . . 2
4.4 Encumbrances . . . . . . . . . . . . 2
5 RIGHT TO CURE 3
6 APPOINTED REPRESENTATIVE 3
AMENDMENT OF POWER AGREEMENTS 3
8. MISCELLANEOUS PROVISIONS. . 3
8.1 Notices . . . . . . . . . . . 3
8.2 Waiver. . . . . . . . . . . . 4
8.3 Assignment. . . . . . . . . . 4
8.4 Successors and Assigns. . . . 4
8.5 Further Assurances. . . . . . 4
8.6 Construction of Assignment. . 4
8.7 Attorneys' Fees . . . . . . . 5
8.8 Counterparts. . . . . . . . . 5
8.9 Effective Date. . . . . . . . 5
8.10 Entire Assignment . . . . . . 5
Exhibit A - Power Agreements
i
ASSIGNMENT OF POWER PURCHASE CONTRACTS
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THIS ASSIGNMENT OF POWER PURCHASE CONTRACTS ("Assignment") is entered into
as of September 9, 1985 by and between ZOND SYSTEMS, INC., a California
corporation ("Zond"), and ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-B, a
California, Limited Partnership (the "Partnership").
RECITALS
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A. On June 22, 1984 Zond entered into the Power Purchase Contracts
with Southern California Edison Company which are listed on the attached
Exhibit A and incorporated herein by this reference (individually a "Power
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Agreement" and collectively the "Power Agreements").
B. Zond now desires to make an assignment of the Power Agreements to
the Partnership to allow the Partnership to sell to Southern California Edison
Company all electricity generated by those Turbines purchased from Zond
Construction Corporation III, a California corporation ("ZCC 111").
NOW, THEREFORE, in consideration of the Partnership's acceptance of this
Assignment and the covnenants set forth in the Windsystem Management Agreement
between Zond and the Partnership, the parties hereto agree as follows:
1 ASSIGNMENT
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Zond hereby assigns to the Partnership the Power Agreements described on
the attached Exhibit A. This Assignment is made expressly subject to the prior
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security interest of Scandinavian Bank Limited, Western America International
Branch ("SBL") in the Power Agreements. Notwithstanding the foregoing, nothing
contained in this Assignment shall relieve Zond from performing any covenant,
agreement or obligation on the part of Zond to be performed or from observing
any condition on the part of Zond to be observed under or in respect to the
Power Agreements or from any liability thereunder.
2 ACCEPTANCE
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The Partnership hereby accepts the assignment as set forth in Section 1,
subject to the existing collateral security interests of SBL and to the terms
and conditions of this Assignment and agrees to be bound by, and comply with,
all of the terms and conditions of the Power Agreements to the extent applicable
to it as assignee of the Power Agreements under this Assignment.
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3. TERM
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This Assignment shall run from the Effective Date specified below until the
earlier to occur of December 31, 2005 and the termination of the Wind Park
Easement Agreement dated as of September 9, 1985 between the Partnership and
ZCC III. At that time, all rights in and to the Power Agreements shall revert to
Zond or its successors and assigns.
4 REPRESENTATIONS AND AGREEMENTS OF ZOND
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Zond hereby represents and warrants to the Partnership as follows:
4.1 Form and Status of Agreement
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Zond has previously delivered to the Partnership copies of the Power
Agreements. Such copies are true, correct and complete copies of the Power
Agreements which are in full force and effect without modification or amendment
of any kind and with no default existing thereunder.
4.2 Enforcement
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Each of the Power Agreements constitutes a valid, legal and binding
obligation between Zond and Southern California Edison Company and the
Partnership is entitled to the benefits under this Assignment and each of the
Power Agreements is enforceable in accordance with its terms.
4.3 Additional Agreements
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Zond shall, except with the prior written consent of the Partnership,
(1) observe and perform all of its obligations under the Power Agreements,
including the payment of all interconnection costs and the provision of all
required insurance, and cause the Power Agreements to be maintained in full
force and effect; (2) not cancel or terminate or consent to the cancellation or
termination of the Power Agreements; (3) not amend, modify or otherwise effect a
change in the Power Agreements or consent to any amendment, modification or
change; (4) not consent to any discount of amounts payable under the Power
Agreements; and (5) not consent, waive or approve any act which would have the
effect of impairing the value of this Assignment to the Partnership or
otherwise impair the position of the Partnership.
4.4 Encumbrances
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Zond agrees that it shall not, except with the prior written consent of
the Partnership, sell, pledge, mortgage, assign or otherwise dispose of, or
create,or suffer to be created any levies, liens or encumbrances on, its
interest in and to the
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Power Agreements if such action would have the effect of impairing the value of
this Assignment to the Partnership or otherwise impair the position of the
Partnership. Notwithstanding the foregoing, the Partnership acknowledges that
Zond has previously granted a security interest in the Power Agreements to SBL,
which security interest presently encumbers the Power Agreements. Zond agrees to
secure a release from SBL of SBL's security interest in the Power Agreements
prior to the purchase by the Partnership of any wind turbine generators from
Zond Construction Corporation III, a wholly owned subsidiary of Zond.
5 RIGHT TO CURE
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Zond agrees to furnish to the Partnership duplicates or copies of all
notices, requests and demands sent to, or received from Southern California
Edison Company and its operating representative under or relating to the
Power Agreements. Zond further agrees to notify the Partnership as soon as
possible after Zond becomes aware of any event or threatened event which
reasonably could be expected to interfere with the Partnership's rights under
this Assignment. Should the Partnership receive any such notices from Zond or
should the Partnership, otherwise become aware of any such event or
threatened event, the Partnership shall be entitled to perform such acts and to
make such payments, after giving Zond ten (10) days' prior written notice of its
intention to do so, as may be necessary or appropriate to preserve the rights of
the Partnership under this Assignment. In the event that the Partnership makes
any such payments, Zond immediately shall repay the amount thereof, together
with interest thereon at the maximum rate allowed under California law from the
date of payment to the date of repayment. In the event that Zond does not comply
with, or only partially complies with, its repayment obligation in the preceding
sentence, the Partnership shall be entitled to offset those amounts which Zond
is to repay the Partnership against any other amounts owing Zond by the
Partnership.
6. APPOINTED REPRESENTATIVE
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The Partnership hereby agrees that its managing agent shall be Zond
pursuant to the Windsystem Manageiment Agreement between the parties. The
Partnership further agrees that it will not replace Zond as its managing agent
without the prior approval of SCE given in accordance with the provisions of
Section 4.1.1 of the Power Agreements.
7 AMENDMENT OF POWER AGREEMENTS
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The Partnership hereby agrees to cooperate with Zond in Zond's efforts to
enter into an agreement with SCE to amend one or more of the Power Agreements in
order to reduce the aggregate capacity covered by the Power Agreements to a
level equal to the
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aggregate rated capacity of the Partnership's Turbines (as defined in the
Confidential Private Placement Memorandum of the Partnership dated September 9,
1985).
8 MISCELLANEOUS PROVISIONS
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Notices
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Any notice required or permitted to be given pursuant to this
Assignment shall be conclusively deemed to have been received by a party on the
day it is personally delivered to such party or, if sent by registered or
certified mail or by telegram, telex or telefax, on the third business day after
the day on which sent, addressed to such party at its address set forth on the
signature page of this Assignment or at such other address as such party may
designate by written notice given in accordance with this Section.
Waiver
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No waiver of any right under this Assignment shall be effective for
any purpose unless in writing, signed by the party hereto possessing the right,
nor shall any such waiver be construed to be a waiver of any subsequent, right,
term or provision of this Assignment.
Assignment
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Neither Zond nor the Partnership may assign its rights or duties
under this Assignment without the prior written consent of the other. Any
assignment which is made without such consent shall be null and void. However,
the parties hereby acknowledge and agree that the Partnership may collaterally
assign all or any portion of its rights hereunder to lenders to secure loans
made to the Partnership.
Successors and Assigns
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All of the terms and provisions of this Assignment shall be binding
upon and shall inure to the benefit of and be enforceable by the successors and
permitted assigns of the parties hereto.
Further Assurances
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Zond and the Partnership agree to perform all such acts (including
without limitation executing and delivering instruments and documents) as
reasonably may be necessary to fully effectuate the intent and each and all of
the purposes of this Assignment. Zond further agrees to cooperate with any
lenders to
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the Partnership and to provide such information and to take such actions as
such lenders may reasonably request in connection with this Assignment and the
Power Agreements.
Construction of Assignment
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8.6.1 Governing Law. The terms and provisions of this Assignment
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shall be construed in accordance with the laws of the State of California.
8.6.2 Interpretation. Zond and the Partnership agree that the terms
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and provisions of this Assignment embody their mutual intent and that such terms
and conditions are not to be construed more liberally in favor of, nor more
strictly against, Zond or the Partnership.
8.6.3 Partial Invalidity. If any term or provision of this
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Assignment, or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Assignment or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each remaining term and provision of this Assignment shall be valid
and enforceable to the fullest extent permitted by law.
8.6.4 Headings and References. The headings contained in this
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Assignment are for purposes of reference and convenience only and shall
not limit or otherwise affect in any way the meaning of this Assignment. Unless
otherwise indicated, all references to Sections are to Sections in this
Assignment.
Attorneys' Fees
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If either the Partnership or Zond brings any action or proceeding for
the enforcement, protection or establishment of any right or remedy under this
Assignment or for the interpretation of this Assignment, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and costs in
connection with such action or proceeding.
Counterparts
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This Assignment may be executed and recorded in counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
Effective Date
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The Effective Date of this Assignment is September 9, 1985
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8.10 Entire Assignment
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The provisions of this Assignment constitute the entire
understanding and agreement between Zond and the Partnership regarding the Power
Agreements and may not be altered or amended except by an instrument in writing
signed by Zond and the Partnership. Zond and the Partnership each acknowledge
and agree that no representation, warranty or inducement has been made to it
regarding the Power Agreements which is not expressly set forth in this
Assignment.
Signatures on following page
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IN WITNESS WHEREOF, Zond and the Partnership have executed this
Assignment as set forth below.
"ZOND"
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ZOND SYSTEMS, INC., a California
corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx,
Senior Vice President
General Counsel
"PARTNERSHIP"
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ZOND WINDSYSTEM
PARTNERS, LTD. SERIES 85-B,
a California Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General
Partner:
ZOND WINDSYSTEMS MANAGEMENT
CORPORATION IV, a California
corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx,
Senior Vice President
General Counsel
Southern California Edison Company hereby consents to the foregoing Assignment
of Power Purchase Contracts.
SOUTHERN CALIFORNIA EDISON COMPANY,
A CALIFORNIA PUBLIC UTILITY
Dated: 9/20/85 By /s/ Xxxxxx X. Xxxxx, Xx.
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Its Vice President
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POWER AGREEMENTS
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1. Power Purchase Contract dated June 22, 0000 xxxxxxx Xxxxxxxx
Xxxxxxxxxx Edison Company and Zond Systems, Inc. designated as Monolith II.
Exhibit A
to Series B Assignment of
Power Purchase Contracts
A-1
GUARANTY
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Zond Systems, Inc. hereby guarantees the full performance of Zond
Windsystem Partners, Ltd. Series 85-B, a California limited partnership (the
"Partnership"), under the following agreement assigned to the Partnership under
the Assignment of Power Purchase Contracts to which this Guaranty is attached:
1. Power Purchase Contract dated June 22, 0000 xxxxxxx Xxxxxxxx
Xxxxxxxxxx Edison Company and Zond Systems, Inc. designated as Monolith II.
ZOND SYSTEMS, INC.,
a California corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
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Date Xxxxx X. Xxxxxxxx,
Senior Vice President
General Counsel
