EX-10 2 was5385ex10-1.txt EXHIBIT 10.1 Exhibit 10.1 ------------ Execution Version ----------------- ASSIGNMENT AND BILL OF SALE --------------------------- This ASSIGNMENT AND BILL OF SALE, dated as of August 31, 2006, is made by and between Zond Windsystem Partners, Ltd. Series 85-C, a California Limited Partnership (the "Transferor"), and SeaWest Power Resources LLC ("Transferee"). ---------- ---------- RECITALS -------- WHEREAS, the Transferor owns those certain assets, including, without limitation, the Vestas V17 wind turbines set forth on Schedule 1 attached hereto ---------- and certain related assets (including feeder transmission lines, pad mount transformers, and the related substation equipment), in each case, installed at the Altamont Wind Power Project located on the real property described in Exhibit A attached hereto and incorporated herein, located in Alameda County, --------- California (collectively the "Wind Turbine Assets"); and ------------------- WHEREAS, Transferee desires to purchase and obtain from Transferor, and Transferor desires to sell and assign to the Transferee, the Wind Turbine Assets on an "AS IS, WHERE IS" basis. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: AGREEMENT --------- 1. Transfer of Wind Turbine Assets. The Transferor, in ------------------------------- consideration of the Purchase Price (as defined below), does hereby transfer and assign to the Transferee forever, and the Transferee hereby purchases and acquires from the Transferor all of the Transferor's right, title and interest, in, to and under all of the Wind Turbine Assets. 2. Payment of the Purchase Price. The purchase price for the ----------------------------- Wind Turbine Assets shall be an amount equal to $1,011,650 (the "Purchase -------- Price"). The Transferee shall pay the Purchase Price by wire transfer to the ----- account designated in writing by Transferor upon the execution of this Assignment and Bill of Sale by each of the parties. 3. NO REPRESENTATIONS OR WARRANTIES. EXCEPT AS SET FORTH IN THE -------------------------------- LAST SENTENCE OF THIS SECTION, THE TRANSFEROR IS NOT MAKING ANY REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE WIND TURBINE ASSETS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE TRANSFEREE TAKES THE WIND TURBINE ASSETS "AS IS" AND "WHERE IS" AND THAT THE TRANSFEREE ----- -------- HEREBY EXPRESSLY WAIVES ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO THE WIND TURBINE ASSETS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TRANSFEREE HEREBY EXPRESSLY WAIVES AND RELINQUISHES ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION AGAINST TRANSFEREE AND ITS AFFILIATES AND EACH OF ITS REPRESENTATIVES IN CONNECTION WITH THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED TO TRANSFEREE OR ANY OF ITS REPRESENTATIVES BY OR ON BEHALF OF TRANSFEROR, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES. NOTWITHSTANDING THE FOREGOING, THE TRANSFEROR HEREBY REPRESENTS AND WARRANTS TO THE TRANSFEREE FOR A PERIOD OF ONE (1) YEAR FROM THE EFFECTIVE DATE HEREOF THAT ON THE EFFECTIVE DATE THE TRANSFEROR HAS GOOD AND MARKETABLE TITLE TO THE WIND TURBINE ASSETS FREE AND CLEAR OF ANY AND ALL LIENS, SECURITY INTERESTS, DEEDS OF TRUST, MORTGAGES AND RIGHTS OF FIRST REFUSAL WITH RESPECT TO SUCH WIND TURBINE ASSETS AND THAT TRANSFEROR HAS THE RIGHT TO TRANSFER SUCH WIND TURBINE ASSETS TO TRANSFEREE. 4. Taxes. Transferee shall be responsible for the payment of all ----- sales taxes, use taxes, license fees or similar taxes imposed on the purchase of the Wind Turbine Assets pursuant to this Assignment and Bill of Sale. 5. Costs and Expenses. Except as otherwise set forth in this ------------------ Assignment and Bill of Sale, each party shall bear its own costs and expenses incurred in connection with the negotiation and execution of this Assignment and Bill of Sale and the consummation of the transactions contemplated hereby. 6. GOVERNING LAW AND JURISDICTION. THIS ASSIGNMENT AND BILL OF ------------------------------ SALE SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION). EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, NEW YORK OR THE COMMERCIAL DIVISION , CIVIL BRANCH OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES, CONTROVERSIES, CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO 2 THIS ASSIGNMENT AND BILL OF SALE AND THE SUBJECT MATTER HEREOF AND AGREES NOT TO COMMENCE ANY LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS ASSIGNMENT AND BILL OF SALE AND THE SUBJECT MATTER HEREOF IN ANY OTHER COURT. 7. Regulatory Compliance. In performing its obligations under --------------------- this Assignment and Bill of Sale, each party hereto agrees that neither it, nor its officers, directors, employees, agents or representatives will: (i) directly or indirectly, offer, give, make, promise, pay or authorize the payment of any money, gift, or anything of material value to any person that is an officer or employee of any governmental entity within the United States or an officer or employee of any department, agency or instrumentality thereof, or any person acting in an official capacity on behalf of such governmental entity, department, agency or instrumentality thereof, or any candidate for or appointee to a political or government office within the united states, or to any political party in the United States; or (ii) receive, transfer, retain, use or hide the proceeds of any criminal activity whatsoever, or employed or otherwise conducted business with a "designated person," namely a person or entity that appears on any list issued by the United States government or the United Nations as being involved in money laundering, terrorism, or drug trafficking, or as having violated economic or arms embargoes. 8. Severability. If any provision of this Assignment and ------------ Bill of Sale or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof. 9. Entire Agreement; Amendments and Waivers. This Assignment ---------------------------------------- and Bill of Sale (including the exhibit and annex hereto) represents the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Assignment and Bill of Sale signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. 3 10. Notices. All notices and other communications under this ------- Assignment and Bill of Sale shall be in writing and delivered to: (a) Transferor at the following address: Zond Windsystem Partners, Ltd. Series 85-C c/o Enron Wind Systems, LLC Four Houston Center 1221 Lamar, Suite 1600 Houston, Texas 77010 Attention: President and (b) Transferee at the following address: SeaWest Power Resources, LLC 4300 Wilson Blvd., Suite 1100 Arlington, VA 22203 Attention: Marty Crotty 11. Counterparts. This Assignment and Bill of Sale may be ------------ executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement. 12. No Consequential Damages. No party hereto (or its ------------------------ affiliates) shall, under any circumstance, be liable to the other party (or its affiliates) for any consequential, exemplary, special, incidental, indirect or punitive damages claimed by the other party under the terms of or due to any breach of this Assignment and Bill of Sale, including, but not limited to, loss of revenue, income, cost of capital, or loss of business reputation or opportunity. 13. Further Assurances. After the date hereof, each of the ------------------ parties agrees to execute and deliver such other instruments of assignment and other transfer documents and to take such other actions as the other party may reasonably request from time to time to carry out the intent and purpose of this Assignment and Bill of Sale. 4 IN WITNESS WHEREOF, the Transferor and Transferee have caused this Assignment and Bill of Sale to be duly executed by their respective authorized representatives as of the day and year first above written. TRANSFEROR Zond Windsystem Partners, Ltd. Series 85-C, a California Limited Partnership By: Zond Windsystems Management V, LLC, its general partner By: /s/ Jesse E. Neyman ---------------------------------------- Name: Jesse E. Neyman -------------------------------------- Title: Chief Executive Officer ------------------------------------- TRANSFEREE SeaWest Power Resources LLC By: /s/ Martin C. Crotty ---------------------------------------- Name: Martin C. Crotty -------------------------------------- Title: President ------------------------------------- 5 EXHIBIT A --------- PARCEL 1: The south one-half of section 21, township 2 south, range 3 east, Mount Diablo Base and Meridian, according to the official plat of said land filed in the District Land Office. Excepting therefrom the past, present and future interest reserved by the Central Pacific Railroad Company in the grant deed recorded November 19, 1883 in Book 261 of Deeds, Page 184, Series No. 5-7019, Alameda County Records. Also excepting therefrom that portion described in the deed to the Western Pacific Railway Company, a California corporation, recorded December 7, 1905, in Book 1076 of Deeds, Page 406, Series No. L-1500, Alameda County Records. Also, excepting therefrom that portion described in the deed to R. H. Sherman, recorded July 8, 1907, in Book 1390 of Deeds, Page 64, Series No. L-69077, Alameda County Records. Also excepting therefrom that portion described in the deed to the County of Alameda, recorded January 4, 1915, in Book 2311 of Deeds, Page 109, Series No. P-83238, Alameda County Records. PARCEL 2: A non-exclusive easement and right of way on, over, under and across the following described real property for use as a roadway for vehicles of all kinds, pedestrians and animals, for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with all necessary poles or conduits to carry said lines, to wit: A strip of land 30 feet wide, the center line of which is described as follows: Beginning at a point on the westerly line of those lands conveyed to Roberta I. Haugh, by Decree of Partial Distribution, dated September 30, 1949, recorded in Book 5901 of official records of Alameda County at Page 37 thereof, Series No. AD/66898, said point being on the section line between Section 20 and 21, T.28., R.3E., M.D.B.6M., south 456 feet from the apparent northwest corner of the southwest quarter of said section 21 as said corner is defined by the fence corner, thence north 41 degrees 26 minutes west 492.7 feet to the southeasterly right of way line of County Road No. 818, also known as Altamont Pass Road, being a portion of the southeast quarter of Section 20, Township 2 south, Range 3 east, Mount Diablo Base and Meridian. PARCEL 3: The north one half of Section 28, Township 2 south, Range 3 east, Mount Diablo Base and Meridian, according to the official plat of said land filed in the District Land Office. Assessor's Parcel Nos. 099B-6275-002-01 (affects portion of parcel 1), 099B-6275-002-02 (affects portion of parcel 1), 099B-6275-002-03, (affects remainder of parcel 1), 099B-6500-001 (affects parcel 3). 6 SCHEDULE 1 ---------- Wind Turbines ------------- Row Pad Type WTG 1 01 2 V-17 10563 2 01 3 V-17 10547 3 01 4 V-17 10592 4 01 5 V-17 10578 5 01 6 V-17 10445 6 01 7 V-17 10581 7 01 8 V-17 10515 8 01 9 V-17 10558 9 01 10 V-17 10572 10 01 11 V-17 10549 11 01 12 V-17 10557 12 02 1 V-17 10544 13 02 2 V-17 10567 14 02 3 V-17 10520 15 02 4 V-17 10598 16 02 5 V-17 10577 17 02 6 V-17 10534 18 02 7 V-17 10573 19 02 9 V-17 10582 20 02 10 V-17 10571 21 02 11 V-17 10570 22 02 12 V-17 10556 23 02 13 V-17 10538 24 02 14 V-17 10517 25 02 15 V-17 10587 26 02 16 V-17 10568 27 02 17 V-17 10569 28 03 1 V-17 10551 29 03 2 V-17 10590 30 03 3 V-17 10540 31 03 4 V-17 10586 32 03 5 V-17 10576 7 33 03 6 V-17 15099 34 03 7 V-17 10597 35 03 8 V-17 10667 36 03 9 V-17 10596 37 03 10 V-17 10666 38 03 11 V-17 10610 39 03 12 V-17 10676 40 03 13 V-17 10579 41 03 14 V-17 10683 42 03 15 V-17 10542 43 03 17 V-17 10658 44 03 18 V-17 10575 45 03 19 V-17 10673 46 03 20 V-17 10589 47 03 21 V-17 10548 48 03 22 V-17 10690 49 03 23 V-17 10595 50 03 24 V-17 10588 51 03 25 V-17 10535 52 03 26 V-17 10585 53 03 27 V-17 10546 54 03 28 V-17 10574 55 03 29 V-17 10584 56 03 30 V-17 10633 57 03 31 V-17 10533 58 03 32 V-17 10530 59 03 33 V-17 10640 60 04 1 V-17 10529 61 04 2 V-17 10521 62 04 3 V-17 10621 63 04 4 V-17 10636 64 04 12 V-17 10641 65 04 13 V-17 10638 66 04 14 V-17 10639 67 04 15 V-17 10662 68 04 16 V-17 10672 69 04 17 V-17 10645 70 04 18 V-17 10668 71 04 19 V-17 10686 72 04 20 V-17 10642 73 04 21 V-17 10663 74 04 22 V-17 10664 75 04 23 V-17 10620 76 04 24 V-17 10553 77 04 25 V-17 10634 78 04 26 V-17 10519 79 04 27 V-17 10630 80 04 28 V-17 10655 8 81 04 29 V-17 10531 82 04 30 V-17 10537 83 04 31 V-17 10632 84 04 32 V-17 10635 85 05 1 V-17 10987 86 05 2 V-17 10754 87 05 3 V-17 10738 88 05 4 V-17 10648 89 05 5 V-17 10637 90 05 6 V-17 10559 91 05 7 V-17 10567 92 05 8 V-17 10677 93 05 9 V-17 10624 94 05 10 V-17 10688 95 05 11 V-17 10644 96 05 12 V-17 10709 97 05 13 V-17 10654 98 05 14 V-17 10680 99 05 15 V-17 10564 100 05 16 V-17 10681 101 05 17 V-17 10629 102 05 18 V-17 10653 103 05 19 V-17 10650 104 05 20 V-17 10721 105 05 21 V-17 10660 106 05 22 V-17 10622 107 05 23 V-17 10665 108 05 24 V-17 10613 109 05 25 V-17 10661 110 05 26 V-17 10609 111 05 101 V-17 10524 112 05 102 V-17 10623 113 05 103 V-17 10594 114 05 104 V-17 10684 115 05 105 V-17 10614 116 05 106 V-17 10612 117 05 107 V-17 10627 118 05 108 V-17 10583 119 05 109 V-17 10601 120 05 110 V-17 10646 121 06 1 V-17 10715 122 06 2 V-17 10649 123 06 3 V-17 10745 124 06 4 V-17 10725 125 06 5 V-17 10646 126 06 6 V-17 10615 127 06 7 V-17 10625 128 06 8 V-17 10611 9 129 06 9 V-17 10643 130 06 10 V-17 10602 131 06 11 V-17 10561 132 06 12 V-17 10580 133 06 13 V-17 10659 134 06 14 V-17 10604 135 07 1 V-17 10606 136 07 2 V-17 10691 137 07 3 V-17 10753 138 07 4 V-17 10747 139 07 5 V-17 10689 140 07 6 V-17 10732 141 07 7 V-17 10618 142 07 8 V-17 10705 143 08 1 V-17 10723 144 08 2 V-17 10736 145 08 3 V-17 10727 146 08 4 V-17 10695 147 08 5 V-17 10652 148 08 6 V-17 10657 149 08 7 V-17 10700 150 08 8 V-17 10766 151 08 9 V-17 10752 152 08 10 V-17 10749 153 08 11 V-17 10741 154 08 12 V-17 10762 155 08 13 V-17 10698 156 09 1 V-17 10670 157 09 2 V-17 10675 158 09 3 V-17 10628 159 09 4 V-17 10706 160 09 5 V-17 10701 161 09 6 V-17 10617 162 09 7 V-17 10671 163 09 8 V-17 10699 164 09 9 V-17 10707 165 09 10 V-17 10733 166 09 11 V-17 10710 167 09 12 V-17 10718 168 09 13 V-17 10626 169 09 14 V-17 10616 170 09 15 V-17 10693 171 09 16 V-17 10679 172 09 17 V-17 10743 173 09 18 V-17 10740 174 09 19 V-17 10702 175 09 20 V-17 10716 176 09 21 V-17 10682 10 177 09 22 V-17 10697 178 09 23 V-17 10703 179 09 24 V-17 10692 180 09 25 V-17 10669 181 09 26 V-17 10678 182 09 27 V-17 10674 183 09 28 V-17 10696 184 09 29 V-17 1708 185 09 30 V-17 1704 186 09 31 V-17 10734 187 09 32 V-17 10712 188 09 33 V-17 10735 189 09 34 V-17 10644 190 09 35 V-17 10720 191 09 36 V-17 10714 192 09 37 V-17 10711 193 09 38 V-17 10719 194 09 39 V-17 10729 195 09 40 V-17 10726 196 09 41 V-17 10731 197 09 42 V-17 10744 198 09 43 V-17 10764 199 09 44 V-17 10758 200 09 45 V-17 10750 11