Exhibit 10.15(c)
----------------
And When Recorded Return to:
Xxxxx X. Xxxxx, Esq.
c/o FPL Energy, LLC
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Second Amendment
To
Agreement Among Co-Tenants
(230kv line)
This Second Amendment to Agreement Among Co-Tenants ("Second Amendment")
is entered into as of this 19th day of August, 2003 among ZWHC LLC, a Delaware
limited liability company, as successor in interest to Zond Windsystems Holding
Company, a California corporation and assignee of Zond Systems Inc., a
California corporation ("ZWHC LLC"), Victory Garden Phase IV Partnership, a
California general partnership ("VG Partnership"), Helzel and Xxxxxxxxxxx, X.X.,
a California limited partnership ("H&S"), Sky River Partnership, a California
general partnership ("SR Partnership"), Zond Windsystem Partners, Ltd. Series
85-A, a California limited partnership ("85-A"), and Zond Windsystem Partners,
Ltd. Series 85-B, a California limited partnership ("85-B"), ZWHC LLC, VG
Partnership, H&S, SR Partnership, 85-A and 85-B are referred to herein
individually as a "Co-Tenant" and collectively as the "Co-Tenants."
RECITALS
A. The Co-Tenants entered into an Agreement Among Co-Tenants
dated as of December 13, 1990 and recorded in Book 6033, Page 1900 of the
Official Records of Xxxx County, California, as heretofore amended by First
Amendment to Agreement Among Co-Tenants dated as of June 30, 1992 and recorded
in Book 6724, Page 1934 of the Official Records of Xxxx County, California, as
so amended and as may be further amended (the "Co-Tenancy Agreement") to govern
the joint management, ownership, and use, rights and duties of the Power
Transfer System by the Co-Tenants.
B. Each Co-Tenant is a "Partner Affiliate" as such term is
defined in the Second Amended and Restated Sagebrush General Co-Ownership
Partnership Agreement dated as of September 1, 1989 by and among Alpha Mariah,
LLC, Alpha Mariah (Prime), Inc., Beta Mariah, LLC, Beta Mariah (Prime), Inc.,
Gamma Mariah, LLC, Alpha Willow,
Inc., Beta Xxxxxx, Inc., Alpha Xxxxxx, Inc., Alpha Xxxxxx (Prime), Inc., Beta
Willow, Inc., Beta Willow (Prime), Inc., Sagebrush Partner Eleven, LLC,
Sagebrush Partner Twelve, LLC, Sagebrush Partner Thirteen, LLC, Sagebrush
Partner Fourteen, LLC, Sagebrush Partner Fifteen, Inc., Sagebrush Partner
Sixteen, Inc., Sagebrush Partner Seventeen, Inc., Sagebrush Partner Eighteen,
Inc., Sagebrush Partner Nineteen, Inc., Sagebrush Partner Twenty, LLC, and
Sagebrush Partner Twenty-one, LLC, (each a "Sagebrush Partner" and collectively,
the "Sagebrush Partners") as heretofore amended by First Amendment to Second
Amended and Restated Sagebrush General Co-Ownership Partnership Agreement dated
as of December 1, 1990 (as so amended and as may be amended from time to time
the "Sagebrush Partnership Agreement").
C. Simultaneously herewith, the Sagebrush Partners are entering
into the Omnibus Amendment to Sagebrush Partnership Documents (the "Omnibus
Amendment") and certain other agreements relating thereto, in order to reflect
their agreement regarding the regulatory status of the Turbines and related
facilities, including those Turbines and related facilities owned by the
Co-Tenants and the regulatory status of the Sagebrush Transmission Line.
D. The Co-Tenants desire to amend the Co-Tenancy Agreement to
reflect the agreement of the Sagebrush Partners regarding the regulatory status
of the Turbines and related facilities, including those Turbines and related
facilities owned by the Co-Tenants and the ownership interests of the Co-Tenants
in the Power Transfer System.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Co-Tenants hereby agree as follows:
1. Definitions:
1.1 Except as otherwise defined in this Second
Amendment, defined terms used herein shall have the meanings set forth
in the Co-Tenancy Agreement after giving effect to the amendments
provided for hereby.
1.2 In addition, when used in this Second Amendment, the
term "Second Amendment Effective Date" shall mean the date upon which
the Federal Energy Regulatory Commission ("FERC") shall have issued an
order approving the Declaratory Order in Docket No. EL03-121-000, in
form and substance reasonably satisfactory to each of the Co-Tenants,
and any request for rehearing of such order has been denied or the time
for requesting rehearing of the order has expired and no request for
rehearing has been filed and no stay of the order has been granted by
FERC or a court of competent jurisdiction and no motion or other request
for stay of the order is then pending before FERC or a court of
competent jurisdiction.
2. Amendments. Effective as of the Second Amendment Effective Date:
2
2.1 Section 3.2.2(i) of the Co-Tenancy Agreement is
hereby amended and restated to read in its entirety as follows:
"(i) the Excess Capacity Buyer must be a 'qualifying
facility' under PURPA (as defined in Section 7 hereof) or an 'exempt
wholesale generator' under Section 32 of PUHCA (as defined in Section 7
hereof);"
2.2 Section 3.2.2(v) of the Co-Tenancy Agreement is
hereby amended and restated to read in its entirety as follows:
"(v) the Excess Capacity Buyer shall deliver to SR
Partnership an opinion of counsel reasonably satisfactory to SR
Partnership to the effect that the acquisition of an interest in the
Power Transfer System by the Excess Capacity Buyer will not cause an
Adverse Regulatory Event (as defined in Section 7 hereof)."
2.3 Section 7 of the Co-Tenancy Agreement is hereby
amended and restated to read in its entirety as follows:
"7. Adverse Regulatory Event.
Notwithstanding any other provision of this Agreement to the
contrary, an 'Adverse Regulatory Event' shall occur if: (a) any
Co-Tenant's Turbines and other facilities shall cease to be a
'qualifying facility' under the Public Utility Regulatory Policies Act
of 1978, as amended, and the regulations thereunder ('PURPA'), and such
Co-Tenant shall not be, or shall cease to be, an 'exempt wholesale
generator' under Section 32 of the Public Utility Holding Company Act of
1935, as amended, and the regulations thereunder ('PUHCA'), or (b) any
Co-Tenant directly or indirectly causes any condition that would result
in: (i) any other Co-Tenant's Turbines and related facilities losing
their status as a 'qualifying facility' under PURPA unless such
Co-Tenant is then an 'exempt wholesale generator'; (ii) any other
Co-Tenant losing its status as an 'exempt wholesale generator' under
PUHCA; or (iii) the Power Transfer System or any portion thereof
becoming subject to regulation as an 'electric utility' or 'electric
utility holding company' (as such terms are defined in PUHCA) or as a
'public utility' as defined in the Federal Power Act, as amended, other
than as an 'exempt wholesale generator'. If an Adverse Regulatory Event
occurs, the right of the Co-Tenant's owning the Turbines or other
facility that causes such Adverse Regulatory Event (the "Impacted
Facility") to use the Power Transfer System to deliver electricity
generated by the Impacted Facility shall be suspended immediately, no
such electricity shall be delivered thereafter from the Impacted
Facility through the Power Transfer System, and the Co-Tenants owning
the other Turbines and other facilities shall be authorized to take such
action (including, without limitation, disconnecting the Impacted
Facility from the Power Transfer System) as is necessary to prevent the
use of the Power Transfer System to deliver energy generated by the
Impacted Facility. Such suspension shall remain in effect until
3
such time, if any, as the use of the Power Transfer System to deliver
electricity generated by the Impacted Facility would no longer have an
Adverse Regulatory Event. At that point the right of the Co-Tenant
owning the Impacted Facility to use the Power Transfer System to deliver
electricity generated by the Impacted Facility shall be reinstated on
the terms and conditions set forth in this Agreement."
2.4 Each reference in the Co-Tenancy Agreement and in
any other agreement to which the Co-Tenants are parties relating to the
Power Transfer System to the term "QF Result" shall be deemed to be a
reference to the term "Adverse Regulatory Event".
2.5 Section 11.1.1(ii) of the Co-Tenancy Agreement is hereby
amended by deleting the words "and a copy of which is attached hereto as
Exhibit F" after the words "(as defined in the Partnership Agreement)".
2.6 Section 12.5 of the Co-Tenancy Agreement is hereby
amended and restated to read in its entirety as follows:
"12.5 Notices. All notices or other communications
required or permitted hereunder shall, unless otherwise provided
herein, be in writing, and shall be personally delivered,
delivered by reputable overnight courier, delivered by facsimile
with confirmation received, or sent by registered or certified
mail, return receipt requested, and deposited in the United
States mail, postage prepaid, addressed to the parties at the
addresses set forth below:
ZWHC LLC: ZWHC LLC
c/o Enron Wind LLC
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
VG Partnership: Victory Gardens Phase IV Partnership
c/o FPL Energy LLC
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx, Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SR Partnership: Sky River Partnership
c/o FPL Energy LLC
000 Xxxxxxxx Xxxxxxxxx
0
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx, Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
H&S: Helzel & Xxxxxxxxxxx, X.X.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile:
85-A: Zond Windsystem Partners, Ltd. Series 85-A
c/o Enron Wind LLC
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
85-B: Zond Windsystem Partners, Ltd. Series 85-B
c/o Enron Wind LLC
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices shall be deemed given on the day that such writing is
received by the intended recipient thereof. Notice of change of address shall be
given by the written notice in the manner detailed in this Section 12.5. Any
notices given to any party shall also be given to that party's Mortgagee,
provided that such Mortgagee notifies the other parties in writing of its desire
to receive notices hereunder and of its address."
3. Representations. Each Co-Tenant hereby represents to each other
Co-Tenant as follows:
(a) Such Co-Tenant is a corporation, general partnership,
limited liability company or limited partnership, as the case may be,
duly organized and validly existing under the laws of its state of
organization and has the power and authority to own its property and to
carry on its business as now being conducted and as currently proposed
to be conducted and to execute, deliver and perform this Second
Amendment.
(b) Such Co-Tenant has taken all action necessary to
authorize it to execute, deliver and perform this Second Amendment, and
assuming the due
5
authorization by the other parties hereto, this Second Amendment, when
executed and delivered by all Co-Tenants, will constitute the valid and
binding obligations of such Co-Tenant enforceable against such Co-Tenant
in accordance with its terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally
and (ii) general equitable principles regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
(c) No consent, approval, waiver, authorization or any other
action by or with any person, lender or other entity or governmental
body is required to be obtained by such Co-Tenant in connection with the
execution, delivery or performance of this Second Amendment by such
Co-Tenant, other than those that have been obtained and are in full
force and effect and until the Second Amendment Effective Date, the FERC
Declaratory Order referred to in Section 1.2 hereof.
4. Miscellaneous
4.1 Reference to and Effect on Co-Tenancy Agreement. (a)
Upon the effectiveness of this Second Amendment, each reference in the
Co-Tenancy Agreement to "this Agreement", "hereunder", "hereof',
"herein" or words of like import, and each reference in any other
agreement to the Co-Tenancy Agreement shall mean a reference to the
Co-Tenancy Agreement as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time to
time.
(b) Except as expressly provided herein, the Co-Tenancy
Agreement shall remain unchanged and in full force and effect.
4.2 Counterparts. This Second Amendment may be executed in
one or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have
been signed by each of the Co-Tenants and delivered to each of them.
4.3 Governing Law. This Second Amendment and the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of California without giving
effect to choice of law rules.
[The next pages are the signature pages]
6
IN WITNESS WHEREOF, the Co-Tenants have caused this Second Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the date first written above.
ZWHC LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
VICTORY GARDEN PHASE IV PARTNERSHIP,
a California general partnership
By: Victory Garden LLC, a general partner
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
By: ESI VG Limited Partnership,
a general partner
By: ESI Victory Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
HELZEL AND XXXXXXXXXXX, X.X.
a California limited partnership
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: General Parther
SKY RIVER PARTNERSHIP,
A California general partnership
By: Sky River LLC, a general partner
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
By: ESI Sky River Limited Partnership,
A general partner
By: ESI Sky River, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-A, a California limited
partnership
By: Zond Windsystems Management III LLC
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-B, a California limited
partnership
By: Zond Windsystems Management IV LLC
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
ACKNOWLEDGMENT OF ZWHC LLC
STATE OF Texas )
) ss.
COUNTY OF Xxxxxx )
On July 2, 2003, before me, X. Xxxxxx Xxxx, a Notary Public in and for
said County and State, personally appeared Xxxx X. Xxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument, and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ X. Xxxxxx Xxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF Victory Garden LLC
STATE OF Texas )
) ss.
COUNTY OF Xxxxxx )
On July 2, 2003, before me, X. Xxxxxx Xxxx, a Notary Public in and for
said County and State, personally appeared Xxxx X. Xxxx, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument, and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ X. Xxxxxx Xxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF ESI VG Limited Partnership
STATE OF FLORIDA )
ss.
COUNTY OF PALM BEACH )
On June 13, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public in and
for said County and State, personally appeared Xxxxxx X. Xxxxxx, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument, and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF Helzel and Xxxxxxxxxxx, X.X.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ALAMEDA )
On June 16, 2003, before me, Xxxxxxxx Xxxx, a Notary Public in and for
said County and State, personally appeared Xxx X. Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument, and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ Xxxxxxxx Xxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF Sky River LLC
STATE OF Texas )
) ss.
COUNTY OF Xxxxxx )
On July 2, 2003, before me, X. Xxxxxx Xxxx, a Notary Public in and for
said County and State, personally appeared Xxxx X. Xxxx, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument, and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ X. Xxxxxx Xxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF ESI Sky River Limited Partnership
STATE OF FLORIDA )
) ss.
COUNTY OF PALM BEACH )
On June 13, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public in and
for said County and State, personally appeared Xxxxxx X. Xxxxxx, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument, and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF Zond Windsystems Partners, Ltd., Series 00-X
XXXXX XX Xxxxx )
) ss.
COUNTY OF Xxxxxx )
On July 2, 2003, before me, X. Xxxxxx Xxxx, a Notary Public in and for
said County and State, personally appeared _________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument, and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ X. Xxxxxx Xxxx
-------------------------------------
Signature of Notary Public
ACKNOWLEDGMENT OF Zond Windsystems Partners, Ltd., Series 00-X
XXXXX XX Xxxxx )
) ss.
COUNTY OF Xxxxxx )
On _____________________, before me, ____________________, a Notary
Public in and for said County and State, personally appeared _________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ X. Xxxxxx Xxxx
-------------------------------------
Signature of Notary Public
