Exhibit 10.8(j)
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RESERVATION OF RIGHTS ACKNOWLEDGEMENT
This RESERVATION OF RIGHTS ACKNOWLEDGEMENT (this "Acknowledgement") dated
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as of February 1, 2006 (the "Effective Date") is hereby entered into between
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Zond Windsystem Partners, Ltd. Series 85-A, a California limited partnership
("ZWP 85-A") and Zond Windsystem Partners, Ltd. Series 85-B, a California
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limited partnership ("ZWP 85-B").
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W I T N E S S E T H
A. WHEREAS, prior to December 31, 2005 ZWP 85-A and Southern California
Edison ("SCE") were parties to that certain Power Purchase Agreement dated June
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14, 1984 (the "Monolith I PPA"), which provides for the sale of capacity and
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associated energy from ZWP 85-A's wind power project (the "85-A Wind Power
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Project") to SCE; and
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B. WHEREAS, prior to December 31, 2005 ZWP 85-B and SCE were parties to
that certain Power Purchase Agreement dated June 14, 1984 (the "Monolith II PPA"
and together with the Monolith I PPA, the "Power Purchase Agreements"), which
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provides for the sale of capacity and associated energy from ZWP 85-B's wind
power project (the "85-B Wind Power Project") to SCE.
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C. WHEREAS, ZWP 85-B has permitted ZWP 85-A to deliver power produced by
certain of ZWP 85-A's wind turbines to SCE under the Monolith II PPA and ZWP
85-A has permitted ZWP 85-B to deliver power produced by certain of ZWP 85-B's
wind turbines to SCE under the Monolith I PPA; and
D. WHEREAS, the parties each desire to memorialize the arrangement between
the parties described in the above recitals all on the terms and conditions of
this Acknowledgement.
NOW, THEREFORE, it is hereby acknowledged and confirmed as follows:
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ACKOWLEDGEMENT
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Section 1. Reservation of Rights.
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Through December 31, 2005 (i) ZWP 85-A reserved to ZWP 85-B a portion
of the entitlement to sell capacity and associated energy to SCE under the
Monolith I PPA aggregating approximately 1.35 MWs at any one time (the "85-B
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Reserved Interest") and (ii) ZWP 85-B reserved to ZWP 85-A a portion of the
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entitlement to sell capacity and associated energy to SCE under the Monolith II
PPA aggregating approximately 1 MW at any one time (the "85-A Reserved Interest"
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and together with the 85-B Reserved Interest, the "Reserved Interests"). The
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reservation of the Reserved Interests did not constitute an assignment of any of
the party's rights, duties, responsibilities and obligations under the Power
Purchase Agreements. Such reservation only permitted each party to deliver to
SCE certain limited capacity and associated energy under the other party's Power
Purchase Agreement.
Section 2. Disposition of Revenues under the Power Purchase Agreements.
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In connection with such reservation of rights, each party was entitled to
the portion of the revenues and other payments received by each of the parties
from the sale of capacity and energy to SCE through December 31, 2005 under each
of the Power Purchase Agreements (collectively, the "Revenues") equal to (i) the
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Revenues multiplied by (ii) a fraction (A) the numerator of which equaled the
aggregate metered production of such seller's wind turbines that delivered power
to SCE under the applicable Power Purchase Agreement during the period
applicable to such Revenues and (B) the denominator of which equaled the
aggregate metered production of the wind turbines of all the sellers that
delivered power to SCE under such Power Purchase Agreement during the period
applicable to such Revenues.
Section 3. Allocation of Expenses relating to the Power
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Purchase Agreements.
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All fees, expenses and costs incurred by each party through December 31,
2005 under its respective Power Purchase Agreement, including back feed
electricity, maintenance costs any other costs incurred by such party under such
Power Purchase Agreement, were allocated among the sellers under the Power
Purchase Agreement as follows: (i) the fees, expenses and costs multiplied by
(ii) a fraction (A) the numerator of which equaled the aggregate installed
nameplate capacity of the wind turbines of each such seller that delivered power
to SCE under the applicable Power Purchase Agreement during the applicable
period which such cost or expense is incurred and (B) the denominator of which
equaled the aggregate installed nameplate capacity of all the sellers that
delivered power to SCE under such Power Purchase Agreement during the applicable
period which such fees, expenses and costs were incurred.
Section 4. Miscellaneous Provisions.
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Section 4.1. Further Assurances. The parties hereby agree to execute and
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deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transaction contemplated by this
Acknowledgement.
Section 4.2. Governing Law. This Acknowledgement shall be governed by and
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construed in accordance with the laws of the State of California.
Section 4.3 Successors and Assigns. This Acknowledgement shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 4.4 Counterparts. This Acknowledgement may be executed in any
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number of counterparts, each of which shall constitute one and the same
instrument, and each of the parties hereto may execute this Acknowledgement by
signing any such counterpart.
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IN WITNESS WHEREOF, the Parties hereto have executed this Acknowledgement
as of the date first above written.
Zond Windsystem Partners, Ltd. Series
85-A, a California limited partnership
By: Zond Windsystems Management III
LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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