Exhibit 10.17(b)
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FIRST AMENDMENT TO SAGEBRUSH
MANAGEMENT AND MAINTENANCE AGREEMENT
THIS FIRST AMENDMENT TO SAGEBRUSH MANAGEMENT AND MAINTENANCE AGREEMENT
("Amendment") is made and entered into as of December 1, 1990 by and among
Sagebrush, a California general partnership ("Partnership"), the undersigned
partners of the Partnership, being all of the Sagebrush partners ("Partners"),
and ToyoWest Management Inc., a California corporation ("Manager"), with respect
to the following facts and circumstances:
R E C I T A L S
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A. The Partnership, all of the Partners except Alpha Mariah (Prime), Inc.
and Beta Mariah (Prime) Inc., and Manager entered into that certain Sagebrush
Management and Maintenance Agreement, dated as of September 1, 1989 (the
"Agreement").
B. Concurrently herewith, all of the Partners are entering into a First
Amendment to Second Amended and Restated Sagebrush General Co-Ownership
Partnership Agreement, by which the Partners agree, among other things, that
Alpha Mariah (Prime), Inc. and Beta Mariah (Prime), Inc. are admitted to the
Partnership.
C. The Partnership, the Partners and Manager desire to amend the Agreement
to extend the term of the Agreement and to add a new section concerning
curtailment of the LIFO Partners (as defined below), all as set forth in this
Amendment.
NOW, THEREFORE, IN CONSIDERATION of the foregoing premises, the parties
hereby agree as follows:
1. Amendment.
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(a) Section 6.1 of the Agreement shall be, and hereby is, amended by
deleting the date "September 30, 2003" where it appears therein, and inserting
in its place the date "July 20, 2006".
(b) A new Section 7.4 is hereby added to the Agreement, as follows:
"7.4 Disconnection of LIFO Partners. In addition to the other
rights provided to Manager hereunder to disconnect the Projects of the Partners
(or their Partner Affiliates), Manager shall disconnect the Projects of Alpha
Willow, SP11, SP12, SP13, SP14 and SP21 (together with their Partner Affiliates,
the "LIFO Partners") in the following circumstances.
If at any time, and for any reason other than force majeure affecting the
Transmission Line, (i) the Transmission Line is incapable of delivering power at
its designed capacity, availability or voltage and curtailment of the Projects
of the LIFO Partners would improve the capability of the transmission Line to
deliver power at its designed capacity, availability and voltage, or (ii) the
Transmission Line line losses exceed 1.14%, the excess line losses have an
adverse effect on the Projects of Alpha Mariah, Alpha Mariah (Prime), Beta
Mariah, Beta Mariah (Prime), or Gamma Mariah or their Partner Affiliates, and
curtailment of the Projects of the LIFO Partners would reduce or eliminate such
excess line losses, or (iii) the Transmission Line line losses for either of the
power purchase contracts commonly known as Desert Winds I and Desert Winds III
exceed the levels experienced immediately prior to the addition of the Projects
of the LIFO Partners to the Transmission Line, the excess line losses have an
adverse effect on the Projects of Alpha Xxxxxx, Alpha Xxxxxx (Prime), Beta
Xxxxxx, Beta Willow or Beta Willow (Prime) or their Partner Affiliates, and
curtailment of the Projects of the LIFO Partners would reduce or eliminate such
excess line losses, then the Manager shall curtail the Projects of the LIFO
Partners. Nothing contained in the preceding sentence shall affect the rights of
the Manager to curtail or disconnect the Project of a Partner under Section 4 of
that Partner's Technical Use Agreement. Any curtailment under this provision
shall be in an amount sufficient to cause the Transmission Line to deliver power
at its designed capacity, availability and voltage, or to reduce the
Transmission Line line losses, as applicable, up to and including the Projects
of all of the LIFO Partners. Such curtailment shall continue until the Manager
shall determine that reconnecting the Projects of the LIFO Partners shall not
result in the recurrence of the event giving rise to the curtailment. If the
LIFO Partners shall inform the Manager in writing of an agreement among them
concerning the priority of the curtailment of their respective Projects, the
Manager shall effect any curtailment under these provisions according to such
priority. If the LIFO Partners fail to so inform the Manager, the Manager shall
in its discretion determine which of the Projects of the LIFO Partners to
curtail. The Manager shall cooperate with the LIFO Partners to attempt to
eliminate the cause of any curtailment under this provision, provided that any
expenses in connection with such cooperation shall be paid by the LIFO Partners.
In connection with any attempt to eliminate the cause of any curtailment, no
change to the Transmission Line shall be made without the prior unanimous
consent of the Partners (excluding the LIFO Partners), which consent shall not
be unreasonably withheld."
(c) Existing Section 7.4 shall be renumbered as Section 7.5.
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(d) All references in the Agreement to Manager as "ToyoWest Management
Company" shall be interpreted as referring to "ToyoWest Management Inc.," the
correct name of Manager.
2. Continuing Validity. Except as expressly modified by Section 1 of this
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Amendment, all of the terms and conditions of the Agreement shall remain in full
force and effect. By execution of this Amendment, Alpha Mariah (Prime), Inc. and
Beta Mariah (Prime), Inc. hereby become parties to the Agreement and agree to be
bound by all of the terms of the Agreement and this Amendment.
3. Miscellaneous. The provisions contained in Article 10 of the Agreement
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are hereby incorporated herein by this cross-reference.
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IN WITNESS WHEREOF, the Partnership, the Partners, and Manager have
caused this Amendment to be executed on the dates set forth below the signatures
of their respective representatives.
TOYOWEST MANAGEMENT INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
Partners, on behalf of themselves and
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Sagebrush:
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ALPHA XXXXXX, INC.,
a California corporation
By:
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Name: Xxxxxxxx Xxxxxx
Title: President
Date: Dec 28, 1990
BETA WILLOW, INC.,
a California corporation
By:
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Name: Xxxxxxxx Xxxxxx
Title: President
Date: Dec 28, 1990
ALPHA XXXXXX (PRIME), INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
Date: Dec 28, 1990
BETA WILLOW (PRIME), INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
Date: Dec 28, 1990
BETA XXXXXX, INC.,
a California corporation
By:
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Name: Xxxxx Xxxxxxxx
Title: President
Date: Dec 28, 1990
ALPHA WILLOW, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
ALPHA MARIAH, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
ALPHA MARIAH (PRIME), INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
BETA MARIAH, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
BETA MARIAH (PRIME), INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
GAMMA MARIAH, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
DELTA MARIAH, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
SAGEBRUSH PARTNER ELEVEN, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
SAGEBRUSH PARTNER TWELVE, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
SAGEBRUSH PARTNER THIRTEEN, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
SAGEBRUSH PARTNER FOURTEEN, INC.,
a California corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
SAGEBRUSH PARTNER FIFTEEN, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER SIXTEEN, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER SEVENTEEN, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER EIGHTEEN, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER NINETEEN, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER TWENTY, INC.,
a California corporation
By:
---------------------------------
Name:
Title:
Date:
SAGEBRUSH PARTNER TWENTY-ONE, INC.,
a California corporation
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Dec 28, 1990
