Exhibit 10.10(b)
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AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
INTERCONNECTION FACILITIES AGREEMENT
BETWEEN SOUTHERN CALIFORNIA EDISON COMPANY
AND ZOND SYSTEMS, INC.
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1. PARTIES: This Amendment No. 1 to the Amended and Restated
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Interconnection Facilities Agreement ("Agreement") between Zond
Systems, Inc. and Southern California Edison Company is entered into by
Zond Systems, Inc. ("Zond"), a California corporation, Southern
California Edison Company ("Edison"), a California corporation and
Victory Garden Phase IV Partnership (the "Partnership"), a California
general partnership (individually "Party," collectively "Parties.")
2. RECITALS: This Amendment No. 1 to the Agreement is made with reference
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to the following facts, among others:
2.1 The Agreement was executed between Zond and Edison as of the 18th
day of November, 1988.
2.2 Zond has requested, and Edison has agreed, that the Partnership
shall be listed as a Seller under the Agreement.
2.3 The Parties wish to designate Zond Systems, Inc. as the Project
Manager under the Agreement and, as the entity with sole
authority and agency to act on behalf of the Seller in all
matters relative to this Agreement.
2.4 The Parties wish to amend the Agreement to reflect the intentions
referenced in this Section 2. The changes agreed to by amendment
are set forth herein.
3. AGREEMENT: The Parties agree to amend the Agreement as follows:
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3.1 Section 1 is amended to add the Partnership as a Seller and shall
now read as follows:
"1. PARTIES: This Amended and Restated Interconnection
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Facilities Agreement ("Agreement") is entered into by
Southern California Edison Company, a California corporation
("Edison"), and Victory Garden Phase IV Partnership, a
California general partnership ("Partnership") and Zond
Systems, Inc., a California corporation, acting on its own
behalf and on behalf of any other owners or sellers, if any,
collectively referred to as "Seller". Zond Systems, Inc.,
shall act as Project Manager under this Agreement."
3.2 The following additional definition is added as section 3.7 of
the Agreement:
"3.7 Project Manager: The entity responsible for performing the
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obligations of Seller under this Agreement on behalf of the
owners or sellers thereof."
3.3 The following is added as Section 4.1.15 of the Agreement:
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"4.1.15 Project Manager Provisions.
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4.1.15.1 If the identity of the Project Manager changes for
any reason, Edison shall have the right to approve
the new Project Manager. Such approval shall be
withheld only if the assets, financial condition, or
operating capability of the proposed replacement
Project Manager gives Edison reasonable cause to
doubt such entity's ability to adequately perform
the duties of the Project Manager. To facilitate such
approval, Edison may request Seller to furnish any
material reasonably necessary for Edison to prudently
approve a change in Project Manger. Therefore, except
as in conflict with law, any financing documents,
partnership agreements, or management contracts which
specify the Project Manager's role shall specifically
provide for Edison's right of approval of any such
Project Manager. Such change in Project Manager and
the approval thereof by Edison shall not operate to
reduce the rights and obligations of the Seller under
the Agreement.
4.1.15.2 The Project Manager shall have the authority to
contract for Seller on all matters pertaining to the
implementation of this Agreement. The Project Manager
shall provide Edison with satisfactory evidence of
its authority to act on behalf of Seller. Such
evidence shall include, but not be limited to,
authenticated copies of any partnership agreement(s),
fictitious business name statement(s), certificate(s)
of partnership, and management agreement(s). The
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Project manager shall also provide Edison with
authenticated copies of the agreement(s), if any,
appointing the Project Manager for purposes of this
Agreement.
4.1.15.3 Edison's obligations to remain interconnected with
Seller's projects shall be contingent upon the
compliance by Seller and Project Manager with the
terms and conditions of this Section 4.1.15."
3.4 The following is added as Section 7 of the Agreement:
"7. Breach. In the event of a default under this Agreement by
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Seller, Edison shall notify in writing each named Seller under
this Agreement and permit each such Seller to have thirty (30)
days from the receipt of such notice to cure such default. During
such cure period, Seller and Edison shall be subject to all of
their respective obligations under this Agreement. Edison agrees
that in the event that Zond Systems, Inc. or the Partnership as
debtor-in-possession in a bankruptcy case, or the trustee in
bankruptcy for Zond Systems, Inc. or the Partnership, as the case
may be, repudiates this Agreement or any part hereof, the
non-repudiating Seller shall have the right and obligation to
continue this Agreement in full force and effect by performance
of all obligations of Seller hereunder, provided that the
non-repudiating Seller remedy any defaults under this Agreement
as provided above. The non-repudiating Seller shall also permit
all existing Monolith Power Purchase contracts subject to this
Agreement to continue to interconnect with Edison's transmission
system pursuant to this Agreement."
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4. OTHER CONTRACT TERMS AND CONDITIONS. Except as expressly amended by
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this Amendment No. 1, the terms and conditions of the Agreement shall
remain in full force and effect.
5. EFFECTIVE DATE: This Amendment No. 1 shall become effective when it
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has been duly executed by the Parties.
6. SIGNATURE CLAUSE: The signatories hereto represent that they have been
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appropriately authorized to enter into this Amendment No. 1 to the
Agreement on behalf of the Party for whom they sign.
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This Amendment No. 1 to the Agreement is hereby executed as of this 11th
day of October, 1989.
SOUTHERN CALIFORNIA EDISON COMPANY
By: /s/ Robert Dietch
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Robert Dietch
Vice President
ZOND SYSTEMS, INC.
By: /s/ Kenneth C. Karas
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Kenneth C. Karas
President
VICTORY GARDEN PHASE IV PARTNERSHIP,
a California general partnership
By its authorized general partners
ZOND VICTORY GARDEN PHASE IV
DEVELOPMENT CORPORATION
By: /s/ Kenneth C. Karas
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President
ESI VG LIMITED PARTNERSHIP, a
Delaware limited partnership
By: ESI Victory, Inc. a Florida
Corporation, its general partner
By: /s/ Larry Carpenter
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President
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