Exhibit 10.15(d)
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RECORDING REQUESTED BY
XXXXXXX TITLE
And When Recorded Return to:
After Recording return to:
Xxxxx Xxxxxxx
Xxxxxxx National Title Services
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
RE:
Third Amendment
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To
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Agreement Among Co-Tenants
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(230kv line)
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This Third Amendment to Agreement Among Co-Tenants ("Amendment") is
entered into as of this 29th day of December, 2003 among ZWHC LLC, a Delaware
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limited liability company ("ZWHC LLC"), as successor to Zond Windsystems Holding
Company, a California corporation ("ZWHC"), as necessary to Zond Systems, Inc.,
a California corporation ("Zond"), 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 "Party" and collectively as the "Parties." Except as otherwise
defined in this Amendment, defined terms used herein shall have the meanings set
forth in the Co-Tenancy Agreement (as that term is defined below).
RECITALS
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A. ZWHC LLC, VG Partnership, H&S, SR Partnership, 85-A and 85-B 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
amended by the First Amendment to the 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 amended by the Second Amendment to the Agreement
Among Co-Tenants dated as of August 19, 2003 and recorded as Document No.
0203176491 of the Official Records of Xxxx County, California (as so amended and
as further amended from time to time, the "Co-Tenancy Agreement").
B. Under the terms of Section 4.3 and Section 5 of the Co-Tenancy
Agreement, Zond or a Zond affiliate has served as the Manager of the Power
Transfer System. The Parties desire to modify the Co-Tenancy Agreement, to
appoint SR Partnership as the Manager of the Power Transfer System.
Sch. B Item #55
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NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
I. Amendments.
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1.1 Section 4.1.1 of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"4.1.1. Power Transfer System Operating Costs. Subject to
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Section 3.2.2 hereof, SR Partnership shall be responsible for all
expenses, costs and liability incurred on or after the date of this
Agreement relating to the ownership, construction, operation, repair and
maintenance of the Property and the Power Transfer System, except as set
forth in Section 4.1.2 below (the "Power Transfer System Operating
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Costs"). Subject to Section 3.2.2 hereof, SR Partnership shall pay the
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Power Transfer System Operating Costs in accordance with Section 4.4 below
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prior to the time when the failure to pay any such Power Transfer System
Operating Costs shall create a lien against the Power Transfer System or
the Property, provided however that SR Partnership has the right to contest
any Power Transfer System Operating Costs in good faith and by appropriate
proceedings, provided further that in the event of any such contest, SR
Partnership shall bond or provide such other security to protect the Power
Transfer System and the Property from such lien. Power Transfer System
Operating Costs shall include all costs and expenses reasonably incurred in
the ownership, construction, operation, repair, maintenance, replacement
and removal of the Power Transfer System, costs and expenses reasonably
incurred in maintaining the Property, including without limitation, any
costs or expenses to be paid by the terms of, or for the preservation of,
the documents evidencing the Transmission Line Easements, any costs of
acquiring additional easement rights, if necessary, to preserve the
Co-Tenants' interest in the Property underlying the Power Transfer System,
taxes assessed against or allocable to the Power Transfer System, premiums
for casualty insurance thereon, capital expenses, the costs of utilities
and other services necessary to the operation of the Power Transfer System
and salaries and benefits allocable to employees of the Manger engaged in
the operation, repair and maintenance thereof (but only to the extent such
employees are actually engaged in such activities for the benefit of the
Power Transfer System), but shall not include costs and expenses set forth
in Section 4.1.2 below."
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1.2 Section 4.3 of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"4.3 Appointment of Manager. There shall, at all times during the
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term hereof, be a manager of the Power Transfer System, which entity shall
be responsible for the management of the Power Transfer System (the
"Manager"). The appointment of SR Partnership as Manager of the Power
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Transfer System is hereby acknowledged and agreed to by all Co-Tenants. The
appointed Manager shall remain the Manager until removed as provided in
Section 5.2 below."
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1.3 Section 4.4. of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"4.4 Payment of Expenses and Liabilities. The Manager shall
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calculate for each component of the Power Transfer System, the Power
Transfer System Operating Costs on a quarterly basis, within thirty (30)
days after the end of the quarter, and prepare a statement thereof. Subject
to Section 3.2.2 hereof, within thirty (30) days of preparation of such
statement, SR Partnership shall pay the Power Transfer System Operating
Costs then due and payable, as shown on such statement."
1.4 Section 4.5 of the Co-Tenancy Agreement is hereby amended by
adding a new first sentence as follows: "In the event that SR Partnership is not
the manager, the following shall apply."
1.5 The last sentence of Section 4.6 of the Co-Tenancy Agreement is
hereby amended and restated to read in its entirety as follows:
"Notwithstanding the foregoing, each Co-Tenant acknowledges that
in the even of a defect in title for which the owner's title insurance
policies of each Co-Tenant provide coverage, each Co-Tenant will take
reasonable steps to recover from the title insurer under said policy and
will apply the proceeds of any such recovery from the title insurer to the
correction of such defect by making such amounts available to SR
Partnership for such purpose."
1.6 Section 4.7 of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"4.7 Insurance Policies. The Manager shall cause each Co-Tenant
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to be named as the loss payee in respect of casualty loss insurance
maintained by the Manager, or SR Partnership if it is not the Manager, with
respect to the Power Transfer System. Notwithstanding the foregoing, each
Co-Tenant hereby acknowledges that the Manager, and SR Partnership if it is
not the Manager, may use the proceeds of any casualty loss insurance to
repair the Power Transfer System."
1.7 Section 5.2 of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"5.2 Replacement Manager. If the Manager is SR Partnership, the
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Manager may be removed by the Paying Co-Tenants (as defined below) due to
its negligence or willful misconduct; otherwise the Manager may be removed
by SR Partnership and the Paying Co-Tenants due to its negligence or
3
willful misconduct. Any Excess Capacity Buyer that is or becomes party to
this Agreement as well as any Existing Project Owner that is or becomes
obligated to pay its pro rata share of the Power Transfer System Operating
Costs in accordance with the provisions of Section 1.2 shall be deemed a
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"Paying Co-Tenant." The Paying Co-Tenants shall jointly determine any such
replacement Manager and the compensation to be paid such replacement
Manager, which compensation shall be in a reasonable amount not to exceed
industry standards. The Paying Co-Tenants shall act reasonably in making
such determination. If the Paying Co-Tenants cannot agree on the party or
parties who will manage the Power Transfer System, or the compensation for
the Manager, or the removal of the Manager, the Paying Co-Tenants shall
submit the matter to arbitration in accordance with Section 12.2 below."
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1.8 Section 5.3 of the Co-Tenancy Agreement is hereby amended and
restated to read in its entirety as follows:
"5.3 Intentionally deleted."
1.9 Section 12.5 of the Co-Tenancy Agreement is hereby amended by (a)
deleting the notice information for VG Partnership and inserting the following
notice information and (b) deleting the notice information for SR Partnership
and inserting the following notice information:
"VG Partnership: Victory Garden Phase IV Partnership
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c/o ESI VG Limited Partnership
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
"SR Partnership: Sky River Partnership
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c/o ESI Sky River Limited Partnership
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000."
2. Miscellaneous
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2.1 Counterparts. This Amendment may be executed in one or more
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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.
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2.2 Entire Agreement. Except as expressly amended by this Amendment,
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the remaining terms, conditions and provisions of the Co-Tenancy Agreement
shall be and remain in full force and effect.
2.3 Governing Law. This Amendment and the rights and obligations of
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the parties hereto shall be governed by and constructed 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.]
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IN WITNESS WHEREOF, the Parties have caused this 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 Xxxx
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Name: Xxxx Xxxx
Title: President
VICTORY GARDEN PHASE IV PARTNERSHIP,
a California general partnership
By: FPL Energy VG Wind LLC, a general partner
By:
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: ESI VG Limited Partnership, a general partner
By: ESI Victory, Inc., its general partner
By:
----------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
HELZEL AND XXXXXXXXXXX, X.X.
A California limited partnership
By:
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Name:
Title:
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
IN WITNESS WHEREOF, the Parties have caused this 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:
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Name: Xxxx Xxxx
Title: President
VICTORY GARDEN PHASE IV PARTNERSHIP,
a California general partnership
By: FPL Energy VG Wind LLC, a general partner
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: ESI VG Limited Partnership, a general partner
By: ESI Victory, Inc., its general partner
By: /s/ Xxxx Xxxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
HELZEL AND XXXXXXXXXXX, X.X.
A California limited partnership
By:
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Name:
Title:
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
IN WITNESS WHEREOF, the Parties have caused this 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:
-------------------------------
Name: Xxxx Xxxx
Title: President
VICTORY GARDEN PHASE IV PARTNERSHIP,
a California general partnership
By: FPL Energy VG Wind LLC, a general partner
By:
------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: ESI VG Limited Partnership, a general partner
By: ESI Victory, Inc., its general partner
By:
----------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
HELZEL AND XXXXXXXXXXX, X.X.
A California limited partnership
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: General Partner
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
SKY RIVER PARTNERSHIP,
a California limited liability company
By: FPL Energy Sky River Wind, LLC,
a general partner
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: ESI Sky River Limited Partnership,
a general partner
By: ESI Sky River, Inc., its general partner
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-A, a California limited partnership
By: Zond Windsystems Management III LLC,
its general partner
By:
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Name: Xxxx Xxxx
Title: President and Chief Executive Officer
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-B, a California limited partnership
By: Zond Windsystems Management IV LLC,
its general partner
By:
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Name: Xxxx Xxxx
Title: President and Chief Executive Officer
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
SKY RIVER PARTNERSHIP,
a California limited liability company
By: FPL Energy Sky River Wind, LLC,
a general partner
By:
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: ESI Sky River Limited Partnership,
a general partner
By: ESI Sky River, Inc., its general partner
By:
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-A, a California limited partnership
By: Zond Windsystems Management III LLC,
its general partner
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: President and Chief Executive Officer
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-B, a California limited partnership
By: Zond Windsystems Management IV LLC,
its general partner
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: President and Chief Executive Officer
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF ZWHC LLC
STATE OF Texas )
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) ss.
COUNTY OF Xxxxxx )
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On Dec 18 2003, before me, Xxxxxxxxxx Xxxxxx, a Notary Public in
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and for said County and State, personally appeared Xxxx Xxxx, personally known
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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.
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/s/ Xxxxxxxxxx Xxxxxx | XXXXXXXXXX X. XXXXXX |
-------------------------- | -------------------- |
Signature of Notary Public | MY COMMISSION EXPIRES |
| November 5, 2006 |
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THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF FPL Energy VG Wind, LLC
STATE OF Florida )
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) ss.
COUNTY OF Palm Beach )
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On December 12, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public
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in and for said County and State, personally appeared Xxxx Xxxxxxxxxx,
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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.
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/s/ Xxxxxxx X. Xxxxxxx | XXXXXXX X. XXXXXXX |
-------------------------- | ------------------ |
Signature of Notary Public | MY COMMISSION #CC 934891
| EXPIRES: June 2, 2004 |
| Bonded Thru Notary |
| Public Underwriters |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF ESI VG Limited Partnership
STATE OF Florida )
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) ss.
COUNTY OF Palm Beach )
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On December 12, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public
----------------- ------------------
in and for said County and State, personally appeared Xxxx Xxxxxxxxxx,
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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.
-------------------------
/s/ Xxxxxxx X. Xxxxxxx | XXXXXXX X. XXXXXXX |
-------------------------- | ------------------ |
Signature of Notary Public | MY COMMISSION #CC 934891
| EXPIRES: June 2, 2004 |
| Bonded Thru Notary |
| Public Underwriters |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF Helzel and Xxxxxxxxxxx, X.X.
STATE OF California )
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) ss.
COUNTY OF Riverside )
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On Dec. 29, 2003, before me, Tahzsa X. Xxxxxxxxx, a Notary Public
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in and for said County and State, personally appeared Xxx X. Xxxxxx, personally
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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.
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/s/ Tahzsa X. Xxxxxxxxx | TAHZSA X. XXXXXXXXX |
-------------------------- | -------------------- |
Signature of Notary Public | Commission # 1261317 |
| Notary Public - California |
| Riverside County |
| My Comm Expires: May 1, 2004|
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THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF FPL Energy Sky River Wind, LLC
STATE OF Florida )
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) ss.
COUNTY OF Palm Beach )
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On December 12, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public
----------------- ------------------
in and for said County and State, personally appeared Xxxx Xxxxxxxxxx,
---------------
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.
-------------------------
/s/ Xxxxxxx X. Xxxxxxx | XXXXXXX X. XXXXXXX |
-------------------------- | ------------------ |
Signature of Notary Public | MY COMMISSION #CC 934891
| EXPIRES: June 2, 2004 |
| Bonded Thru Notary |
| Public Underwriter's |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF ESI Sky River Limited Partnership
STATE OF Florida )
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) ss.
COUNTY OF Palm Beach )
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On December 12, 2003, before me, Xxxxxxx X. Xxxxxxx, a Notary Public
----------------- ------------------
in and for said County and State, personally appeared Xxxx Xxxxxxxxxx,
---------------
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.
-------------------------
/s/ Xxxxxxx X. Xxxxxxx | XXXXXXX X. XXXXXXX |
-------------------------- | ------------------ |
Signature of Notary Public | MY COMMISSION #CC 934891
| EXPIRES: June 2, 2004 |
| Bonded Thru Notary |
| Public Underwriter's |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF Zond Windsystem Partners, Ltd. Series 00-X
XXXXX XX Xxxxx )
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) ss.
COUNTY OF Xxxxxx )
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On Dec. 18, 2003, before me, Xxxxxxxxxx Xxxxxx, a Notary Public in
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and for said County and State, personally appeared Xxxx 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.
-------------------------
/s/ Xxxxxxxxxx Xxxxxx | XXXXXXXXXX X. XXXXXX |
-------------------------- | -------------------- |
Signature of Notary Public | MY COMMISSION EXPIRES |
| November 5, 2006 |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
ACKNOWLEDGEMENT OF Zond Windsystem Partners, Ltd. Series 00-X
XXXXX XX Xxxxx )
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) ss.
COUNTY OF Xxxxxx )
---------
On Dec. 18 2003, before me, Xxxxxxxxxx Xxxxxx, a Notary Public in
------------ -----------------
and for said County and State, personally appeared Xxxx 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.
-------------------------
/s/ Xxxxxxxxxx Xxxxxx | XXXXXXXXXX X. XXXXXX |
-------------------------- | -------------------- |
Signature of Notary Public | MY COMMISSION EXPIRES |
| November 5, 2006 |
-------------------------
THIRD AMENDMENT TO AGREEMENT AMONG CO-TENANTS (230 KV LINE)
