Exhibit 10.7
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THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
(TEHACHAPI PASS WIND PROJECT)
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This THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (TEHACHAPI
PASS WIND PROJECT) (this "Third Amendment") is executed as of September 7, 2006,
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among ENRON WIND SYSTEMS, LLC, a California limited liability company ("EWS"),
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ZWHC, LLC, a Delaware limited liability company ("ZWHC"), ZOND WINDSYSTEM
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PARTNERS, LTD. SERIES 85-A, a California Limited Partnership ("ZWP 85-A"), ZOND
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WINDSYSTEM PARTNERS, LTD. SERIES 85-B, a California Limited Partnership ("ZWP
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85-B", and, together with EWS, ZWHC and ZWP 85-A, collectively "Sellers"), AES
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TEHACHAPI WIND, LLC, a Delaware limited liability company ("Purchaser"), and
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SEAWEST HOLDINGS, INC., a California corporation ("Purchaser Parent").
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WITNESSETH:
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WHEREAS, Sellers, Purchaser and Purchaser Parent entered into that
certain Purchase and Sale Agreement (Tehachapi Pass Wind Project) dated April
12, 2006 (the "Agreement"), as amended by that certain First Amendment to
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Purchase and Sale Agreement (Tehachapi Pass Wind Project, dated as of July 31,
2006 (the "First Amendment") and that certain Second Amendment to Purchase and
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Sale Agreement dated as of August 31, 2007 (the "Second Amendment" and together
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with the Agreement, herein collectively referred to as the "Purchase Agreement"
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for the sale of certain property located in Kern County, California, as more
particularly described in the Purchase Agreement; and
WHEREAS, Sellers, Purchaser and Purchaser Parent again desire to
modify certain provisions of the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sellers, Purchaser and Purchaser Parent agree as follows:
1. Defined Terms. All capitalized terms used herein and not defined shall
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have the meaning set forth in the Purchase Agreement.
2. Effective Date Definition. The defined term "Effective Date" appearing
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in Section 1.1 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following definition: "'Effective Date' means August 31,
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2006."
3. Purchase Price Amount. Section 3.1 of the Purchase Agreement is hereby
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amended by deleting the amount "Fifteen Million Eight Hundred Thousand Dollars
($15,800, 000) that appears therein and replacing it with the amount "Fifteen
Million Three Hundred Twelve Thousand Five Hundred Dollars ($15,312,500.00)."
4. ZWHC LLC. ZWHC LLC is a limited liability company, duly organized and in
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good standing under the laws of the State of Delaware. In this regard, the
Purchase Agreement is revised as follows:
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(a) The identification of ZWHC as a California limited liability
in both the introductory paragraph and the signatory block in the Agreement and
the First Amendment is hereby amended to reflect that ZWHC is a Delaware limited
liability company.
(b) Section 6.1 of the Purchase Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:
"6.1 Organization and Good Standing. EWS is a limited liability
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company, duly organized, validly existing and in good standing under
the laws of the State of California. ZWHC is a limited liability
company, duly organized, validly existing and in good standing under
the laws of the State of Delaware. ZWP 85-A and ZWP 85-B are limited
partnerships, duly organized, validly existing and in good standing
under the laws of the State of California. With respect to EWS and
ZWHC subject to the limitations (if any) imposed on such Seller as a
result of having filed a petition for relief under the Bankruptcy
Code, or pursuant to any Order entered by the Bankruptcy Court, each
Seller has the requisite power and authority to own, lease and operate
its properties and to carry on its business as now conducted,
provided, however, that ZWHC is not qualified to do business in the
State of California."
5. Allocation of Purchase Price. Section 11.4 of the Agreement is
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hereby deleted in its entirety.
6. Counterparts. This Third Amendment may be executed in multiple
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counterparts, each of which, when assembled to include an original or faxed
signature for each party contemplated to sign this Third Amendment, will
constitute a complete and fully executed agreement. All such fully executed
original or faxed counterparts will collectively constitute a single agreement.
7. Full Force and Effect. Except as modified hereby, the Purchase
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Agreement shall remain in full effect and this Third Amendment shall be binding
upon Sellers, Purchaser and Purchaser Parent and their respective successors and
assigns. If any inconsistency exists or arises between the terms of this Third
Amendment and the terms of the Purchase Agreement, this Third Amendment shall
prevail.
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Executed on the day and year set forth above.
SELLERS:
ENRON WIND SYSTEMS, LLC,
a California limited liability company
By: Enron Wind LLC,
its sole member
By: Enron Renewable Energy Corp.,
its sole member
By: /s/Jesse E. Neyman
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Jesse E. Neyman, President and
Chief Executive Officer
ZWHC, LLC,
a Delaware limited liability company
By: Enron Wind Systems, LLC,
its sole member
By: Enron Wind LLC,
its sole member
By: Enron Renewable Energy Corp.,
its sole member
By: /s/Jesse E. Neyman
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Jesse E. Neyman, President
and Chief Executive Officer
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-A,
a California Limited Partnership
By: Zond Windsystems Management III LLC,
its general partner
By: /s/Jesse E. Neyman
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Jesse E. Neyman, President
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ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-B,
a California Limited Partnership
By: Zond Windsystems Management IV LLC,
its general partner
By: /s/Jesse E. Neyman
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Jesse E. Neyman, President
PURCHASER:
AES TEHACHAPI WIND, LLC,
a Delaware limited liability company
By: /S/Martin C. Crotty
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Martin C. Crotty, Vice President
PURCHASER PARENT:
SEAWEST HOLDINGS, INC.,
a California corporation
By: /s/Martin C. Crotty
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Martin C. Crotty, Vice President