Exhibit 10.8(g)
---------------
AMENDMENT NO. 1 TO AGREEMENT ADDRESSING RENEWABLE
ENERGY PRICING AND PAYMENT ISSUES
BETWEEN
ZOND WINDSYSTEMS PARTNERS, LTD. SERIES 85-A
QFID No. 6043
AND
SOUTHERN CALIFORNIA 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-A ("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. Loretta M. Lynch, 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 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
2
by the total amount of the Specified Indebtedness shown on Schedule 1 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:
"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,
3
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 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:
4
"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.96-12-028, as modified by D.01-03-067 (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 ("TOD") 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 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
5
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
("TOD") 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.
"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 TOD
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:
6
"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.01-01-007, 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 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
7
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.01-06-015 and
D.01-07-031, including, 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
8
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.01-03-067 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 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.
9
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.
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
10
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
he 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 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.
11
ZOND WINDSYSTEMS PARTNERS, LTD. SERIES 85-A,
a California limited partnership
By: Zond Windsystems Management Corporation III
a California corporation
its General Partner
By: [SIGNATURE ILLEGIBLE]
---------------------------------
Name:
Title:
Date:
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
By: /s/ Stephen E. Frank
---------------------------------
Stephen E. Frank
Chairman, President and
Chief Executive Officer
Date: 11/30/01
12
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.