Exhibit 10.9(h)
---------------
AMENDMENT NO. 1 TO AGREEMENT ADDRESSING RENEWABLE
ENERGY PRICING AND PAYMENT ISSUES
between
ZOND WINDSYSTEMS PARTNERS, LTD. SERIES 00-X
XXXX Xx. 0000
xxx
XXXXXXXX XXXXXXXXXX EDISON COMPANY
1. PARTIES.
The Parties to this Amendment No. 1 ("Amendment") to the Agreement Addressing
Renewable Energy Pricing and Payment Issues ("Agreement") are Zond Windsystems
Partners, Ltd. Series 85-B ("SELLER"), a California limited partnership, and
Southern California Edison Company ("EDISON"), a California corporation. EDISON
and SELLER are hereinafter sometimes referred to individually as a "Party" and
jointly as the "Parties."
2. RECITALS.
This Amendment to the Agreement is entered into between the Parties with
reference to the following facts:
2.1 On or about June 22, 1984, SELLER's predecessor and EDISON executed a
power purchase agreement (the "Contract"), which establishes, among other
things, the terms and conditions pursuant to which EDISON purchases electric
power from SELLER and SELLER sells electric power to EDISON.
2.2 On or about September 20, 1985, EDISON consented to an assignment of the
Contract from [SELLER'S predecessor, as applicable] to SELLER and such
assignment was made. All rights in and to the Contract revert to Seller's
predecessor, or its successors and assigns as of December 31, 2005.
2.3 On or about June 19, 2001, EDISON and SELLER entered into the Agreement.
2.4 On or about October 2, 2001, EDISON and the California Public Utilities
Commission ("Commission") entered into a settlement agreement (the "Rate
Doctrine Settlement Agreement") pursuant to which EDISON and the Commission
agreed to settle certain litigation pending in the United States District Court
for the Central District of California, entitled "Southern California Edison
Company v. Xxxxxxx X. Xxxxx, et al.," USDC Case No. 00-12056-RSWL (Mcx) (the
"Federal Litigation").
2.5 On or about October 5, 2001, the Court in the Federal Litigation
approved the Rate
Doctrine Settlement Agreement and entered judgment for EDISON against the
Commission (the "Judgment") in accordance with the terms of the Rate Doctrine
Settlement Agreement.
2.6 The Parties desire to amend the Agreement in order to account for the
foregoing developments and circumstances.
3. AGREEMENT.
In consideration of promises, mutual covenants and agreements hereinafter set
forth, and for other good and valuable consideration, as set forth herein, the
Parties agree to amend the Agreement as follows:
3.1 In Section 3.2.1 of the Agreement, replace "Section 3.2.5" with "Section
3.2.4."
3.2 Section 3.2.3 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.2.3:
"3.2.3 PARTIAL PAYMENTS OF THE STIPULATED AMOUNT.
"3.2.3.1 On the Initial Interest Payment Date, EDISON shall also pay to
SELLER ten percent (10 %) of the Stipulated Amount (the "Initial Partial
Payment").
"3.2.3.2 Except as provided in Section 3.2.3.3, EDISON shall not be
required to make any partial payments of the Stipulated Amount other
than the Initial Partial Payment; provided, however, that nothing herein
shall preclude EDISON from, at any time, electing to make partial
payments of the Stipulated Amount that are in addition to those required
under Section 3.2.3.1, and those, if any, made pursuant to Section
3.2.3.3.
"3.2.3.3 During the Partial Payment Period, as defined below, EDISON
shall make a further partial payment or payments, as applicable, of the
Stipulated Amount to SELLER if (i) Commission Approval, as defined in
Section 4.1.1 of Amendment No. 1 to this Agreement (hereinafter, the
"Amendment") has been either obtained or waived by EDISON, and (ii)
EDISON makes a payment of Specified Indebtedness (as defined in Schedule
I to the Amendment) that, together with all other payments, if any, of
Specified Indebtedness during the Partial Payment Period, exceeds $100
million (the "Partial Payment Threshold"). EDISON shall make any partial
payment of the Stipulated Amount required to be made to SELLER under
this Section 3.2.3.3 within five (5) business days after the later of
(a) if Commission Approval of the Amendment has already been obtained or
waived, the date on which any payment of Specified Indebtedness is made
that causes the Partial Payment Threshold to be exceeded or (b) if a
payment of Specified Indebtedness that has caused the Partial Payment
Threshold to be exceeded has previously occurred, the date on which
Commission Approval of the Amendment has been obtained or waived by
EDISON. The amount of any payment required to be made to SELLER as
specified above in this Section 3.2.3.3
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shall be calculated by (x) dividing the aggregate amount of the payments
of Specified Indebtedness made by EDISON from the commencement of the
Partial Payment Period through the date on which such aggregate payments
of Specified Indebtedness have caused the Partial Payment Threshold to
be exceeded by the total amount of the Specified Indebtedness shown on
Schedule I to Amendment No. 1 to this Agreement, and (y) multiplying the
Stipulated Amount applicable to SELLER by the ratio derived by the
calculation in (x) above.
Thereafter, should EDISON continue to make a payments of Specified
Indebtedness through the balance of the Partial Payment Period, EDISON
shall be required to make corresponding, additional partial payments of
the Stipulated Amount to SELLER as provided for in this Section 3.2.3.3
except that in calculating the required amount of such additional
partial payments, if any, and in determining the due date for payment of
such additional partial payments, EDISON shall not be required to take
into account any prior payments of Specified Indebtedness that were
previously taken into account in calculating any previous partial
payment to SELLER under this Section 3.2.3.3. Accordingly, for the
purpose of determining the amount of any additional partial payment
determined to be due SELLER under this Section 3.2.3.3, the ratio
defined in (x) above shall be calculated by dividing the aggregate
payments of Specified Indebtedness that were made subsequent to the
payments that were used in calculating all previous partial payments to
SELLER under this Section 3.2.3.3 and which have again caused the
Partial Payment Threshold to be exceeded by the total amount of
Specified Indebtedness shown on Schedule I. The "Partial Payment Period"
is the period commencing on December 1, 2001 and ending on the earlier
of (A) the Final Payment Date, as defined in Section 3.2.4 of this
Agreement, or (B) September 30, 2002. In no event shall the payments
made to SELLER pursuant to this Section 3.2.3.3 and Section 3.2.4 of
this Agreement, taken together, exceed 100% of the Stipulated Amount.
"3.2.3.4 After the date hereof, EDISON shall not make any partial
payments to one "class of qualifying facility," as defined below,
without making an equivalent (by percentage of the Stipulated Amount)
partial payment to each member of the other "class of qualifying
facility" that is a party to an agreement and amendment with EDISON that
is similar to the Agreement and the Amendment. For the purpose of
implementing this Section 3.2.3.4, the following shall constitute a
"class of qualifying facility": (i) the class of qualifying facilities
under contract with EDISON that use natural gas as their primary fuel
source; (ii) the class of qualifying facilities under contract with
EDISON that do not use natural gas as their primary fuel source."
3.3 Section 3.2.4 of the Agreement is hereby replaced in its entirety, with
the following revised Section 3.2.4:
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"3.2.4 FINAL PAYMENT.
"The Final Payment Amount, as defined below, shall become due and
payable by EDISON to SELLER on the Final Payment Date; provided,
however, that EDISON shall be permitted a grace period of five (5)
business days following the Final Payment Date to calculate the Final
Payment Amount, process the Final Payment, and wire-transfer the Final
Payment to SELLER. The "Final Payment Amount" is the amount, calculated
on the Final Payment Date, as defined herein, that is equal to (i) the
Stipulated Amount; (ii) plus all accrued but unpaid interest (if any)
pursuant to Section 3.2.2 calculated through and including the date on
which the Final Payment Amount is actually wire-transferred to SELLER;
(iii) less all partial payments of the Stipulated Amount made by EDISON
to SELLER pursuant to Section 3.2.3.1, Section 3.2.3.3 or otherwise. The
"Final Payment Date" means the earliest of (a) the date on which EDISON
makes one or more payments of the Specified Indebtedness during the
Partial Payment Period, as defined in Section 3.2.3.3, which together
with all previous payments of Specified Indebtedness during the Partial
Payment Period, causes the total amount of Specified Indebtedness paid
during the Partial Payment Period to equal or exceed $3 billion; (b) the
date on which EDISON makes payments and/or restructures the obligations
(other than the $1.65 billion of bank indebtedness) constituting the
Specified Indebtedness such that Edison is no longer in arrears or in a
condition of default with respect to 80% or more of the obligations
(other than the $1.65 billion of bank indebtedness) constituting the
Specified Indebtedness; or (c) the date on which EDISON first obtains
funds in an aggregate amount of $600 million or greater from any
financing after the commencement of the Partial Payment Period, as
defined in Section 3.2.3.3. Notwithstanding the foregoing, nothing in
this Section 3.2.4 shall be construed to require EDISON to make the
Final Payment before Commission Approval, as defined in Section 4.1.1 of
the Amendment, has been either obtained or waived by EDISON."
3.4 Section 3.2.5 of the Agreement is hereby deleted in its entirety.
3.5 The definition of "Standstill Period" contained in Section 3.3.1 of the
Agreement is hereby deleted in its entirety, and replaced with the following
revised definition:
"3.3.1 STANDSTILL.
"Standstill Period," as used herein, means the period commencing with
the date on which both the Initial Interest Payment and Initial Partial
Payment have been made and ending on the earliest of the following
dates: (i) default by EDISON under any of the payment provisions
contemplated by this Agreement (as amended by the Amendment) or the
Contract with respect to payments for energy and capacity delivered
after March 26, 2001 under the Contract; (ii) the fifth business day
after Final Payment Date if EDISON pays the Final Payment Amount; (iii)
the date on which EDISON files a petition for protection under the
bankruptcy laws or an involuntary petition for relief in bankruptcy is
filed against EDISON and an order for relief is entered with respect to
such petition; (iv) September 30, 2002 at 11:59
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p.m. Notwithstanding the foregoing, nothing in this Section 3.3.1 shall
prohibit EDISON from pursuing or participating in judicial and/or
regulatory proceedings pertaining to any other qualifying facility that
has not executed this form of Agreement or another form of agreement
providing for forbearance of claims against EDISON."
3.6 Section 3.4.1 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.4.1:
"3.4.1 INTERIM ENERGY PRICE.
"Unless otherwise established in the Contract, for the period (herein,
the "Interim Period") commencing with the date on which this Agreement
has been executed by the Parties and ending on the last minute of April
30, 2002, the SRAC upon which SELLER's energy payment is calculated
shall be determined in accordance with the SRAC formula approved by the
Commission in D.00-00-000, as modified by D.00-00-000 (hereafter
referred to as the "Monthly SRAC"), which formula, for purposes of this
Agreement, shall not be subject to further change by the Commission, by
any other regulatory authority, or by any court with jurisdiction in the
matter; provided, however, that, in lieu of payments calculated pursuant
to the SRAC formula described in the preceding sentence, SELLER may, for
energy deliveries commencing on the first day of the next calendar month
following the date that Amendment No. 1 to this Agreement has been
executed by the Parties, but no earlier than December 1, 2001, and for
the balance of the Interim Period, elect to receive an alternative fixed
price of $0.0325 per kWh (the "Alternative Interim Energy Price") for
energy delivered by SELLER to EDISON. The Alternative Interim Energy
Price shall be weight-adjusted by the Time-of-Delivery ("XXX") factors
set forth in EDISON'S Time-of-Use rate schedule "TOU-8." SELLER hereby
elects to be paid according to the following method during the balance
of the Interim Period in accordance with this section 3.4.1:
[ ] Alternative Interim Energy Price
[X] Monthly SRAC
(check one of the above).
"If SELLER elects to receive the Alternative Interim Energy Price, and
Amendment No. 1 to this Agreement is terminated pursuant to Section 4.13
of such Amendment as a result of Commission Approval not having been
timely obtained or waived, then SELLER shall not be paid for energy
deliveries at the Alternative Interim Energy Price established above and
shall instead be paid for energy deliveries during the Interim Period in
accordance with the Monthly SRAC. If such termination occurs, the net
difference in payments made by EDISON to SELLER calculated, on a monthly
basis, by subtracting the payments that were made by EDISON for the
month in question based on the Alternative Interim Energy Price from the
payments that SELLER would have received during the same month if such
payments had been based on Monthly SRAC, plus interest (calculated in
the manner described below in this section), shall, if such net
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monthly net difference is positive, be added to the first payment due
SELLER following termination of Amendment No. 1 to this Agreement, and
if such monthly net difference is negative, deducted from such payment
(and from any subsequent payments as may be necessary to fully recoup
any excess payments made at the Alternative Interim Energy Price rate).
Interest on the net difference shall be calculated at the Federal
Reserve Board three-month prime commercial paper rate as to each monthly
payment made based on the Alternative Interim Energy Price commencing on
the day on which such payment was mailed and ending on the date on which
any statement reflecting the adjustment described in the preceding
sentence is mailed."
3.7 Sections 3.4.2 and 3.4.3 of the Agreement are hereby replaced, in their
entirety, with the following revised Sections 3.4.2 and 3.4.3:
"3.4.2 FIXED ENERGY PRICE.
"Notwithstanding any provision of the Contract to the Contrary,
commencing on the first minute of May 1, 2002, and for a period of five
(5) years thereafter (such five-year period being referred to herein as
the "Fixed Rate Period"), SELLER hereby elects that the SRAC for energy
delivered to EDISON by SELLER, if SELLER's Contract provides for payment
for energy based on SRAC, shall be a "fixed" price of 5.37 cents/kWh
(the "Fixed Rate"), in lieu of the Commission-Approved SRAC Methodology;
provided, however, that if the Contract terminates in accordance with
its own terms, or for any other lawful reason, prior to the end of the
Fixed Rate Period, then the Fixed Rate Period shall likewise terminate;
and provided further, however, that if the Contract concerns a solar
thermal facility that augments its energy input with fossil fuel, and
such SELLER's Contract provides for payment for energy based on SRAC,
EDISON shall pay for 75% of the energy delivered to EDISON by such
SELLER during the Fixed Rate Period at the Fixed Rate and 25% of the
energy delivered to EDISON by such SELLER at the rate described in
Exhibit 3.4.2 to this Agreement. During the Fixed Rate Period, the Fixed
Rate shall be weight-adjusted by Time-of-Delivery ("XXX") factors set
forth in EDISON's Time-of-Use rate schedule "TOU-8." In the event that
SELLER's Contract is still in the forecast energy payment period as of
the Effective Date of this Agreement and provided that such forecast
energy payment period expires no later than March 1, 2002, the rate for
energy delivered by SELLER to EDISON shall be (i) the applicable
forecast rate provided in the Contract through the conclusion of the
forecast energy payment period; (ii) from the conclusion of the forecast
energy payment period through the last minute of April 30, 2002, Monthly
SRAC, or, if elected by SELLER at the time it executes this Amendment,
the Alternative Interim Energy Price; and (iii) during the Fixed Rate
Period, the Fixed Rate. Any SELLER not paid the Fixed Rate in the place
of SRAC under one of the circumstances described in this Section 3.4.2
shall be paid for its energy deliveries in accordance with the
then-current Commission-approved SRAC and, if SELLER's Contract provides
for a rate other than the Commission-approved SRAC, then at such other
rate as specified in SELLER's Contract.
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"3.4.3 On the first day after the last day of the Fixed Rate Period, the
SRAC price payable to SELLER if it has received the Fixed Rate as
provided above shall, for the remaining term of the Contract, be
established in accordance with the Commission-approved SRAC methodology
then in effect and as may thereafter be updated by the Commission from
time to time, including, but not limited to, the XXX factors and energy
loss adjustment factor."
3.8 Section 3.5 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.5:
"3.5 ENERGY LOSS ADJUSTMENT FACTORS.
"Unless otherwise specifically provided in the Contract, during
the Fixed Rate Period, the energy loss adjustment factor ("ELAF")
applicable to energy deliveries to EDISON from SELLER will be 1.0.
During the Interim Period, the ELAF applicable to energy deliveries from
SELLER to EDISON for which EDISON pays SELLER Monthly SRAC shall be
determined in accordance with the methodology approved by the Commission
in D.00-00-000, and, for purposes of this Agreement, shall not be
subject to further change by the Commission, by any other regulatory
authority, or by any court with jurisdiction in the matter during the
Interim Period; provided, however, that if SELLER elects to be paid the
Alternative Interim Energy Price pursuant to Section 3.4.1, then the
ELAF applicable to energy deliveries made by SELLER to EDISON and paid
for at such Alternative Interim Energy Price shall be 1.0."
3.9 Section 3.6 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.6:
"3.6 MUTUAL RELEASES; DISMISSAL OF LITIGATION.
"Effective upon and subject to EDISON paying the Final Payment Amount to
SELLER:
"(a) The Parties release and discharge each other and their
respective affiliates, parents, officers, directors, employees, agents,
insurers, attorneys and assigns from any and all claims, debts, liens,
causes of action or damages of any kind whatsoever existing at any time
on or before the date on which this Agreement has been executed by the
Parties (or, in the case of claims, debts, etc., arising from EDISON's
suspension of payments for energy and capacity delivered by SELLER
during the period November 1, 2000 through March 26, 2001, existing at
any time on or before the Final Payment Date), whether in law or in
equity, whether known or unknown, arising from or related to either
Party's performance or non-performance under the Contract; provided,
however, that, except with respect to claims arising from or related to
EDISON's suspension of payments as referenced above, nothing herein
shall be deemed to release or waive any claim arising from or related to
either Party's performance or non-performance under the Contract from
and after the day following the date on which this Agreement has been
executed by the Parties regardless of whether such
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performance or non-performance, insofar as it also existed before the
date on which this Agreement has been executed by the Parties, is
released pursuant to this Section 3.6 for such prior period.
Notwithstanding the foregoing, nothing contained in this Agreement shall
release any person or entity other than SELLER itself from any claims,
causes of action, or rights EDISON may now have, or may obtain in the
future, for illegal or otherwise actionable conduct that resulted in
increases in the prices EDISON paid or was required to pay for
electricity, natural gas, or both.
"(b) As to claims that are released pursuant to this Section
3.6, SELLER and EDISON waive the application of California Civil Code
Section 1542, which provides: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by him must have
materially affected the settlement with the debtor.
"(c) The Parties shall promptly cause to be dismissed with
prejudice all claims in the Litigation [if applicable] that would be
barred by the foregoing mutual release."
3.10 Section 4.13 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 4.13:
"4.13 TERMINATION.
"Except as provided herein, this Agreement shall terminate automatically
on September 30, 2002 at 11:59 p.m. if the Final Payment Amount, as
defined in Section 3.2.4, has not yet been paid to SELLER.
Notwithstanding the foregoing, the second sentence of Section 3.2.1 and
the entirety of Sections 3.3.2, 3.3.3, 3.4.1, 3.4.2, 3.4.3, 3.5 and 4.11
shall survive any termination of this Agreement (assuming that all
conditions precedent to the effectiveness of such Sections, including,
but not limited to, Commission Approval, have been satisfied)."
4. OTHER TERMS AND CONDITIONS.
4.1 COMMISSION APPROVAL.
4.1.1 With the exception of Sections 3.5 and 4.1.2 of this Amendment,
this Amendment, or in the alternative, the form amendment upon which
this Amendment is based if EDISON submits that form instead to the
Commission, is subject to Commission Approval as to reasonableness for
purposes of rate recovery by EDISON, and shall not become effective
until Commission Approval has been obtained or waived by EDISON, as
provided herein. "Commission Approval," as used in this Amendment, shall
mean that the Commission has issued a final decision, no longer subject
to appeal, approving this Amendment or the standardized form, as
appropriate, without condition or modification unacceptable to the
Parties and containing findings and conclusions confirming the
reasonableness of this Amendment (or the standardized form) comparable
to those pertaining to the Agreement set forth in D.00-00-000 and
D.00-00-000, including,
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but not limited to, findings that EDISON's entry into this Amendment (or
any amendment based substantially on the standardized form) are
reasonable and prudent for all purposes, including, but not limited to,
recovery of all payments made pursuant hereto in rates, subject only to
review with respect to the reasonableness of EDISON's future
administration of the Contract, the Agreement, and this Amendment.
EDISON shall file with the Commission the appropriate request for
approval of this Amendment or the standardized form, as appropriate, and
seek such approval expeditiously. SELLER shall use reasonable efforts in
cooperation with EDISON for the purpose of obtaining Commission
Approval.
4.1.2 During the period commencing on the date that this Amendment has
been executed by each of the Parties and ending on the earliest of (i)
March 1, 2002 if Commission Approval has not then been obtained or
waived by EDISON, (ii) the date, if any, on which the Commission issues
a decision that expressly denies Commission Approval or (iii) the
expiration of the Standstill Period, as defined in Section 3.5 above,
the Parties, and each of them, shall refrain from asserting any claim or
demand against the other or from commencing any litigation or other
proceeding against the other, including, but not limited to claims for
declaratory relief, specific performance, and breach of contract, (a)
concerning or arising from the issue of whether the "MOU Effective
Date," as defined in Section 3.2.3 of the Agreement, has occurred and/or
(b) which would be rendered moot upon the amending of the Agreement in
accordance with this Amendment if Commission Approval of this Amendment
is either timely obtained or waived within the period established in
Section 4.13 below.
4.2 WAIVER OF COMMISSION APPROVAL.
In its sole discretion, EDISON may waive Commission Approval as to all or any
individual aspect of this Amendment requiring Commission Approval at any time by
giving notice of such waiver in writing to SELLER.
4.3 SEMI-MONTHLY PAYMENTS WAIVER.
Notwithstanding any provisions to the contrary in the Agreement concerning the
timing or method of payments for energy and capacity delivered by SELLER to
EDISON, the first payment due SELLER for energy and capacity delivered to EDISON
after it pays the Final Payment Amount shall be paid in accordance with the
payment provisions of the Contract or the Agreement, as applicable, and SELLER
hereby waives, commencing with such first payment, any right that it might have
pursuant to D.00-00-000 to receive accelerated or semi-monthly payments in lieu
of monthly payments pursuant to the Contract.
4.4 EFFECT ON CONTRACT AND THE AGREEMENT.
Except as expressly provided herein, all provisions of the Agreement and the
Contract, as modified by the Agreement, including but not limited to the
capacity payment provisions, shall remain in effect and unchanged and shall not
be affected by the terms and conditions
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of this Amendment. Nothing herein shall be read to extend the term of the
Contract.
4.5 NO WAIVER.
None of the provisions of this Amendment, including this paragraph, shall be
considered waived by either Party unless such waiver is given in writing. The
failure of either Party to insist in any one or more instances upon strict
performance of any of the provisions of this Amendment or to take advantage of
any of its rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of any such rights for the future, but the same
shall continue and remain in full force and effect.
4.6 FURTHER AGREEMENTS.
This Amendment shall not be amended, changed, modified, abrogated or superseded
by a subsequent agreement unless such subsequent agreement is in the form of a
written instrument signed by the Parties.
4.7 ENTIRE AGREEMENT.
This Amendment, taken together with those provisions of the Agreement that have
not been amended by this Amendment, constitutes the entire agreement of the
Parties as to the matters set forth herein and in the Agreement, and supersedes
any and all prior negotiations, correspondence, undertakings, and agreements
between the Parties concerning the subject matter of this Amendment and
Agreement.
4.8 SUCCESSORS AND ASSIGNS; NO PRIOR ASSIGNMENTS.
This Amendment shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns. SELLER hereby warrants and
represents that prior to its entry into this Amendment, it has not assigned or
otherwise transferred, directly or indirectly, voluntarily, involuntarily by or
operation of law, any rights, claims or causes of action it may have against
EDISON, or any damages, liabilities, losses and costs that would be released
pursuant to the Agreement upon the satisfaction of the conditions stated
therein.
4.9 CONSTRUCTION.
This Amendment is the result of negotiation and each Party has participated in
the preparation of this Amendment. Accordingly, any rules of construction to the
effect that an ambiguity is to be resolved against the drafting Party shall not
be employed in the interpretation of this Amendment. Furthermore, the underlined
headings used in this Agreement are for reference purposes only and do not
themselves constitute any of the terms of this Amendment.
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4.10 GOVERNING LAW.
This Amendment 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.
4.11 NO PRECEDENT; USE IN LITIGATION.
Each Party agrees that this Amendment arises from unique facts and circumstances
and, as such, without limiting the effect of this Section 4.11, various
provisions of this Amendment, such as, but not limited to, the Fixed Rate, the
Alternative Interim Energy Price, Energy Loss Adjustment Factors, and the
Stipulated Amount, shall not be used as evidence, or the basis for disputing the
validity or appropriateness of such values, rates or prices, or for
determination of avoided costs before FERC, the Commission, or any court or
other judicial or quasi-judicial body, and nothing herein may be used as an
admission against any Party. Further, nothing herein shall constitute or be
deemed an admission by either Party with respect to whether the conditions set
forth in the Agreement that would obligate EDISON to make the Second Partial
Payment or to pay the Final Payment Amount, as each of those terms is defined in
the Agreement, have been satisfied, it being expressly understood that this
Amendment is the result of negotiation and compromise and further that, in the
event that Commission Approval of this Amendment has not been either obtained or
waived within the period of time specified in Section 4.1.2 of this Amendment,
the Parties shall be restored to their respective positions vis-a-vis the
interpretation of and performance under the Agreement without regard to this
Amendment. Except as provided in Section 4.1.1 of this Amendment, neither Party
will introduce or otherwise use this Amendment or any of its terms or conditions
in any judicial or administrative proceeding or to influence any governmental
action, other than for the purpose of enforcing the terms and conditions of this
Amendment.
4.12 AUTHORIZED SIGNATURES; NOTICES.
Each Party represents and warrants that the person who signs below on behalf of
that Party has received all requisite authorizations required to execute this
Amendment on behalf of such Party and to bind such Party to this Amendment. All
notices given under this Amendment shall be in writing and shall be effective on
the same day if delivered by personal delivery or facsimile transmission, one
day after sending if delivered by overnight delivery service, or five days after
sending if delivered by first class U.S. mail. Notices shall be directed to the
individual or individuals who are designated to receive notices under the
Contract.
4.13 TERMINATION.
Except as provided herein, this Amendment shall terminate automatically one
hundred twenty (120) days from the date on which this Amendment has been
executed by the Parties if Commission Approval, as defined in Section 4.1.1 of
this Amendment, has not been obtained or waived by EDISON; otherwise, this
Amendment shall terminate concurrently with the termination of the Agreement.
Termination of this Amendment as the result of failure to obtain Commission
Approval, as provided above, shall not itself
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cause the termination of the Agreement, which shall instead continue in
accordance with its own terms as though this Amendment had not been entered
into. Notwithstanding the foregoing, the provisions of this Amendment that are
not subject to Commission Approval, the provisions in Section 3.6 providing for
a payment adjustment in the event the Alternative Interim Energy Price is not
approved by the Commission, and the entirety of Section 4.11 shall survive any
termination of this Amendment.
4.14 EFFECTIVE DATE; COUNTERPARTS.
This Amendment shall be effective on the date has been executed by the duly
authorized representatives of the Parties. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original document and
which together shall constitute a single instrument.
ZOND WINDSYSTEMS PARTNERS, LTD. SERIES 85-A,
a California limited partnership
By: Zond Windsystems Management Corporation IV,
a California corporation,
its General Partner
By: /s/
Name:
Title:
Date:
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Date: 11/30/01
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SCHEDULE I
SPECIFIED INDEBTEDNESS
For purposes of Section 3.2.3.3 of this Agreement, as modified by Amendment
No. 1 to this Agreement, the term "Specified Indebtedness" shall mean the
outstanding principal of the following obligations of EDISON:
Obligation Principal Amount (approx.)
----------------------------------- --------------------------
Bank Credit Facilities $ 1,650,000,000
Overdue PX/ISO Obligations 940,000,000
Defaulted Commercial Paper 531,000,000
Defaulted Senior Unsecured Notes 400,000,000
Overdue ESP Payments 231,000,000
Defaulted Preferred Stock Dividends 17,000,000
Total: $ 3,769,000,000
Specified Indebtedness does not include imbalance energy payments to the
California Department of Water Resources.
The principal amounts shown above are stated solely for the purpose of
determining if partial payments of the Stipulated Amount are to be made under
this Agreement and do not constitute an admission that any amounts are legally
owed to any party by Southern California Edison Company or its affiliates.
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