HomeMy WebLinkAboutHA25090 - SunWizeSunWize
TECHNOLOGIES, INC.
January 29, 2007
Missy Wightman
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
RE: Contract Assignment for Palm Village Apts Carports w/PV Solar Arrays
Ref: Contract No. HA25090
Dear Missy:
As a result of an asset purchase that occurred on 11/30/06, we would like
to formally request an assignment of the above -referenced contract from
SunWize Technologies, Inc. - Fed. ID# 16-1516867 (the "Design -Build
Entity", now known as Avalon Energy, Inc.) to SunWize Technologies, Inc. -
Fed ID# 61-1511327.
The Palm Desert Redevelopment Agency issued a Notice to Proceed on
11/9/06 to SunWize Technologies Inc. ("STI/Oldco"), a private, closely held
corporation. At the time our contract was signed, STI/Oldco was the sister
company of, and shared common ownership with, SunWize Technologies,
LLC ("STL").
On November 30, 2006, Mitsui USA purchased the assets of SunWize
Technologies LLC (not including STI/Oldco) and formed a new subsidiary.
As part of the transaction, STI/Oldco agreed that the City of Palm Desert
contract would be assigned to Mitsui USA's new subsidiary, contingent upon
approval by the City of Palm Desert.
Also as part of the transaction, it was also agreed that STI/Oldco would
simultaneously change its name to Avalon Energy, Inc., and that the Mitsui
USA subsidiary ("MUSA Solar") would take the name of SunWize
Technologies Inc. ("STI/Newco"). We know this may sound a bit
complicated, however, this was absolutely necessary as part of the asset
purchase agreement.
The new company, STI/Newco, will continue to do the same work as the old
company, and has retained the same employees. David Panico is the
qualifier/RMO (Responsible Managing Officer) on the current STI/Oldco
Reliable People...Reliable Products...Reliable Power!
Corporate Headquarters
1155 Flatbush Road • Kingston, NY 12401 • (845) 336-0146 • Fax (845) 336-0457
e-mail:sunwize@besicorp.com • www.sunwize.com
SunWize
TECHNOLOGIES. INC.
California contractor license #859006, and will also be the qualifier/RMO on
the new license application. The STI/Newco Class "B" Contractors license
has been approved and we understand from the California State Licensing
Board that it will be issued within a few days.
I understand that you have discussed this matter with your attorney and
would like to review legal documents regarding the change in company
status. I have attached the name change documentation from the
Secretary of State in the state of incorporation, and would be happy to
provide whatever additional documents are required for your review.
In summary:
On or prior to November 29, 2006:
o SunWize Technologies Inc. (STI/Oldco)
A New York company, Fed. Tax ID (FEIN) #16-1516867
California Class B license #859006
o SunWize Technologies LLC (STL)
A Delaware LLC, Fed. Tax ID (FEIN) # 02-0548105
After December 1, 2006:
o STI/Oldco 4 Avalon Energy Inc.
o Assets of STL purchased by Mitsui subsidiary MUSA Solar
MUSA Solar 4 SunWize Technologies Inc. (STI/Newco)
A Delaware company, Fed. Tax ID (FEIN) # 61-1511327
California Class B license # (to be issued)
Again, thank you for your consideration. If your attorney needs any
additional information, please contact me directly at 845-336-0146 ext.
121, or via email at dpanico@sunwize.com.
Sincerely,
2auid Peutica
David Panico
Vice President, Project Development, SunWize Technologies, Inc., and
President, Avalon Energy, Inc. (formerly SunWize Technologies, Inc.)
encl.
Reliable People...Reliable Products...Reliable Power!
Corporate Headquarters
1155 Flatbush Road • Kingston, NY 12401 • (845) 336-0146 • Fax (845) 336-0457
e-mail:sunwize@besicorp.com • www.sunwize.com
1
AMENDED STATEMENT BY
FOREIGN CORPORATION
AVALON ENERGY, INC.
(Name of Corporation)
, a corporation organized
and existing under the laws of the State of New York , and which is presently
(State or Place of Incorporation)
qualified for the transaction of intrastate business in the State of California, makes the
following statement:
That the name of the corporation has been changed to that hereinabove set forth and
that the name relinquished at the time of such change was SUNWIZE
TECHNOLOGIES. INC.
(Name of Corporation)
(Sign ' re • f Corporate Officer)
FREDERIC M. ZINN, Vice President
(Typed Name and Title of Officer Signing)
Secretary of State Form
ASDC (REV 03/2005)
New York State
Department of State
Division of Corporations, State Records
and Uniform Commercial Code
41 State Street
Albany, NY 12231
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SunWize Technologies, Inc.
(Insert Name of Domestk Corporation)
Under Section 805 of the Business Corporation Law
FIRST: The name of the corporation is: SunWize Technologies, Inc.
If the name of the corporation has been changed, the name under which it was formed is:
SECOND: The date of filing of the certificate of incorporation with the Department of State is:
January 15, 1997
TR1RD: (Set forth each amendment in a separate paragraph providing the subject matter and full text of each amended
paragraph.) The amendment effected by this certificate of amendment is as follows:
Paragraph 1
corporation.
of the Certificate of Incorporation relating to the name of the
is hereby amended to read in its entirety as follows: 1. The name of the
corporation is Avalon Energy, Inc.
FOURTH: The certificate of amendment was authorized by: [Check the appropriate box]
The vote ofthe board of directors followed by a vote ofa majority ofall outstanding shares entitled
to vote thereon at a meeting of shareholders.
The vote of the board of directors followed by the unanimous writtenconsent ofthe holders of all
outstanding shares.
(Signature)
DOS-1554 (5/01)
Frederic M. Zinn. Vice President
(Name and Capacity of Signer)
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SunWize Technologies, Inc.
(Insert Name of Domestic Corporation)
Under Section 805 of the Business Corporation Law
Filer Name
Robinson Brog et al
s
Address 1345 Avenue of the Americas, 31st Floor
City, State and Zip Code New York, New York 10105
NOTE: This form was prepared by the New York State Department of State. It does not contain all optional provisions under the
law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The
Department of State recommends that all documents be prepared under the guidance of an attorney. The certificate must be submitted
with a $60 filing fee, plus the required tax on shares pursuant to § 180 of the Tax Law, if applicable.
For Office Use Only
Delaware
`fie First State
PAGE 1
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF "MUSA SOLAR, INC.",
CHANGING ITS NAME FROM "MUSA SOLAR, INC." TO "SUNWIZE
TECHNOLOGIES, INC.", FILED IN THIS OFFICE ON THE TWENTY-NINTH
DAY OF NOVEMBER, A.D. 2006, AT 12:03 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNTY RECORDER OF DEEDS.
4234542 8100
061092701
Harriet Smith Windsor. Secretary of State
AUTHENTICATION: 5235 717
DATE: 11-30-06
State of Dlelaware
Secretary of State
Division of Corporations
Delivered 12:03 PM 11/30/2006
FILED 12:03 PM 11/30/2006
SRV 061092701 - 4234542 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MUSA SOLAR, INC.
Pursuant to Section 242(a)(1) of the
General Corporation Law of the State of Delaware
MUSA Solar, Inc., a corporation organized under the General Corporation Law of
the State of Delaware (the "Corporation") hereby certifies as follows:
1. The first article of the Certificate of Incorporation of the Corporation is hereby
replaced in its entirety (the "Amendment") with the following:
"FIRST: The name of the Corporation is SunWize Technologies, Inc."
2. The Amendment was duly adopted by a written consent of the holders of all of the
issued and outstanding stock of the Corporation on November 29, 2006, in accordance
with the provisions of Section 242(b) of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, being an authorized officer of the
Corporation, for the purpose of amending the Certificate of Incorporation of the
Corporation pursuant to Section 242(a)(1) of the General Corporation Law of the State of
Delaware, to make and file this Certificate, hereby declares and certifies that the facts
herein stated arc true as of this 29th day of November, 2006.
Name: Masai t Miura
Title: President
22332685v4
EXECUTION COPY
Exhibit C-5 to the Asset Purchase Agreement
FORM OF PALM DESERT ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement") is made as of
2006, by and between SunWize Technologies, Inc., a New York corporation
(the "Assignor") and MUSA Solar, Inc., a Delaware corporation (the "Assignee").
Capitalized terms used herein without definition shall have the meanings ascribed to such
terms in the Asset Purchase Agreement (as defined below).
WITNESSETH:
WHEREAS, Assignee and SunWize Technologies, LLC, a Delaware limited
liability company ("Seller") have entered into an Asset Purchase Agreement, dated as of
October , 2006 providing for the sale of substantially all of the assets of Seller to
Assignee (the "Asset Purchase Agreement");
WHEREAS, Assignor is an Affiliate of Seller and Assignor and the Palm Desert
Housing Authority have entered into a Design -Build Contract, dated as of August 15,
2006 (the "Palm Desert Contract");
WHEREAS, pursuant to the terms of the Asset Purchase Agreement the Assignor
is required to enter into this Agreement; and
WHEREAS, Assignor now wishes to assign to Assignee, and Assignee wishes to
acquire and assume from Assignor, all of Assignor's rights and obligations in, to, and
under the Palm Desert Contract.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the Assignor and the Assignee agree as
follows:
1. The Assignor hereby sells, assigns, transfers and conveys to the Assignee, all of
Assignor's right, title and interest in and to the Palm Desert Contract. From and after the
date hereof, the Assignor shall have no further interest or rights of any kind in the Palm
Desert Contract.
2. The Assignee hereby accepts the assignment of the Palm Desert Contract, and the
Assignee hereby assumes and agrees to perform and to be bound by any and all of the
conditions, covenants and obligations of the Assignor from and after the date hereof with
respect to the Palm Desert Contract.
3. This Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the Assignor and the Assigmee.
I
22306375v2
EXECUTION COPY
4. This Agreement shall be governed by and construed in accordance with the Laws
of the State of New York, without giving effect to its choice or conflict of law provisions
or principles to the extent such provisions or principles are not mandatorily applicable by
statute and would require or permit the application of the Laws of another jurisdiction.
5. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
instrument. This Agreement may be executed and delivered by facsimile signature.
[remainder of page left intentionally blank]
2
22306375v2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be executed as of the day and year first above written.
ASSIGNOR:
SUNWIZE TECHNOLOGIES, INC.
(now kneon d4 Ava,Ia-n En.011 I bv►c
By:
Name:
Title:
ASSIGNEE:
MUSA SOLAR, INC.
CN . 14144,t43.n a s SuAvOn.crT.cc,(n,„,„i,o t�-2S (" .)
By: CJ
Name:
Title:
3
22306375v2
PRIM IIESERJ REEVE[OPfflENT AGENCY
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-0611
FAX: 760 341-6372
info@palm-descrt.org
February 1, 2007
Via Certified Mail
7005 0390 0005 2067 5683
SunWize Technologies, Inc.
1155 Flatbush Road
Kingston, New York 12401-7011
ATTN: David Panico
RE: Notice of Assignment
Contract No. HA25090
Carports with Photovoltaic Arrays Palm Village Apartments
We are in receipt of a request from Avalon Energy, Inc. (formerly SunWize
Technologies, Inc., A New York Company, Fed. Tax ID #16-1516867) requesting
Assignment of Contract No. HA25090 to Sunwize Technologies, Inc., a Delaware
Company, Fed. Tax ID #61-1511327.
The reason stated is that "as a result of an asset purchase that occurred on
11/30/06" wherein the referenced Contract No. HA25090 was assigned to
SunWize Technologies, Inc., a Delaware Company contingent upon approval by
the City of Pam Desert. A copy of the letter dated January 29, 2007 is attached.
You have five workdays within which to submit written objections to the awarding
authority for the Assignment of Contract. Failure to file these written objections
constitutes your consent to the substitution.
Sincerely,
e L�e
Project inistrator
mp
Enclosures (as noted)
t0 MIMI a IMMO,u[I
SunWize
TECHNOLOGIES, INC.
']'icy P).A.Jill.)ee
February 2, 2007
Bryce White
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
RE: Contract Assignment for Palm Village Apts Carports w/PV Solar Arrays
Ref: Contract No. HA25090; Contract assignment request letter 1/29/07
Dear Bryce:
We would like to formally request an assignment of the above -referenced
contract from SunWize Technologies, Inc. - Fed. ID# 16-1516867 (the
"Design -Build Entity", now known as Avalon Energy, Inc.) to SunWize
Technologies, Inc. - Fed ID# 61-1511327 (previously MUSA Solar, Inc.).
I have attached an Assignment Agreement between SunWize Technologies,
Inc. (the "Assignor", now known as Avalon Energy, Inc.) and MUSA Solar,
Inc. (the "Assignee", now known as SunWize Technologies, Inc.) that will be
executed upon approval by the City of Palm Desert.
On the date that the Assignment Agreement is executed, SunWize
Technologies, Inc. (formerly known as MUSA Solar, Inc.) assumes and
agrees to perform and be bound by any and all of the conditions, covenants
and obligations of the Assignor with respect to the City of Palm Desert
Contract No. HA25090.
Thanks for your assistance. If you need additional information, please
contact me directly at 845-336-0146 ext. 121, or via email at
dpanicosunwize.com.
Sincerely,
MAv
David Panico
Vice President, Project Development, SunWize Technologies, Inc., and
President, Avalon Energy, Inc. (formerly SunWize Technologies, Inc.)
encl.
Reliable People...Reliable Products...Reliable Power!
Corporate Headquarters
1155 Flatbush Road • Kingston, NY 12401 • (845) 336-0146 • Fax (845) 336-0457
e-mail:sunwize@besicorp.com • www.sunwize.com