RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxx X. Xxxx
President
Xxxx Xxxxxxxxx Management LLC
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(Space above this line for Recorders use only
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AMENDMENT TO WIND PARK
EASEMENT AGREEMENT
This Amendment to Wind Park Easement Agreement (the "Amendment") is made by
and between Mesa Wind Developers, a California joint venture ("MWD") and
Zond PanAero Windsystem Partners I, a California Limited Partnership (the
"Partnership").
RECITALS
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WHEREAS, MWD and the Partnership are parties to that certain Wind Park
Easement Agreement dated as of September 30, 1984 (the "Wind Park Easement
Agreement"), pursuant to which MWD has granted to the Partnership the right
to use a portion of the Operating Site (as defined in the Wind Park
Easement Agreement) for the purposes of constructing, operating,
maintaining, repairing and restoring the Partnership's Turbines (as defined
in the Wind Park Easement).
WHEREAS, the term of the Wind Park Easement Agreement expires on December
31, 2004 (the "Wind Park Easement Termination Date") and the parties desire
to extend the term of the Wind Park Easement Termination Date under the
Wind Park Easement Agreement until June 23, 2005 and to modify certain
other provisions of the Wind Park Easement Agreement as set forth in this
Amendment.
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AGREEMENT
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NOW, THEREFORE, MWD and the Partnership agree as follows:
1. Amendments to Wind Park Easement.
--------------------------------
(a) Section 3 Term of Easement. Section 3 of the Wind Park Easement
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Agreement is hereby amended by deleting the date "December 31,
2004" that appears in the first sentence thereof and replacing it
in its entirety with the date "June 23, 2005"
(b) Section 7 Default. Section 7.2.1(a) of the Wind Park Easement
-----------------
Agreement is hereby further amended to add the following sentence
immediately at the end thereof: "The Partnership shall use
commercially reasonable efforts to ensure that the removal of the
Turbines by the Partnership or at its direction does not
materially interfere with any other party's use of the Operating
Site or Access Routes for the production of electrical energy
from wind generation equipment."
Section 7.2.1(b) of the Wind Park Easement Agreement is hereby
amended to delete and replace in its entirety the second
parenthetical occurring in the last sentence thereof with the
parenthetical "(valued in place using commercially reasonable
assumptions taking into account, inter alia, any expected
revenues from operation and costs of operation, maintenance and
repair, including, without limitation, an assumed rental or
easement fee for use of the existing infrastructure and land
rights held by Mesa even if Mesa would itself be the owner and
operator of the Turbines)".
(c) Section 8.1 Removal by Partnership. Section 8.1 of the Wind Park
----------------------------------
Easement Agreement is hereby amended as follows: the section
reference "Section 9.2" is deleted and replaced with "Section
8.2" and the section reference "Section 10.1" is deleted and
replaced with "Section 9.1".
Section 8.1 of the Wind Park Easement Agreement is hereby further
amended to add the following sentence immediately at the end
thereof: "The Partnership shall use commercially reasonable
efforts to ensure that the removal of the Turbines by the
Partnership or at its direction does not materially interfere
with any other party's use of the Operating Site or Access Routes
for the production of electrical energy from wind generation
equipment."
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(d) Section 8.2 Abandonment by Partnership. Section 8.2 of the Wind
--------------------------------------
Park Easement Agreement is hereby amended by deleting the section
reference "Section 10 " and replacing it with the section
reference "Section 9".
Section 8.2 of the Wind Park Easement Agreement is hereby further
amended to delete and replace in its entirety the second
parenthetical occurring in the last sentence thereof with the
parenthetical "(valued in place using commercially reasonable
assumptions taking into account, inter alia any expected revenues
from operation and costs of operation, maintenance and repair,
including, without limitation, an assumed rental or easement fee
for use of the existing infrastructure and land rights held by
Mesa even if Mesa would itself be the owner and operator of the
Turbines)".
(e) Section 9.1 Mesa Rights of First Refusal. Section 9.1 of the Wind
----------------------------------------
Park Easement Agreement is hereby amended by deleting the section
reference "Section 10.2" and replacing it with the section
reference "Section 9.2".
Section 9.1 of the Wind Park Easement Agreement is hereby further
amended to delete and replace in its entirety the second
parenthetical occurring in the first sentence thereof with the
parenthetical: "(valued in place using commercially reasonable
assumptions taking into account, inter alia, any expected
revenues from operation costs of operation, maintenance and
repair, including, without limitation, an assumed rental or
easement fee for use of the existing infrastructure and land
rights held by Mesa even if Mesa would itself be the owner and
operator of the Turbines)".
2. Governing Law. The terms and provisions of this Amendment shall be
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governed by and construed in accordance with the laws of the state of
California.
3. Counterparts. This Amendment may be executed in counterparts, each of
------------
which shall be deemed an original and all of which, when taken
together, shall constitute one and the same document.
4. Recordation. MWD shall record this Amendment as permitted by
-----------
applicable law.
5. Effective Date. This Amendment shall be effective and the Wind Park
--------------
Easement Agreement shall be amended pursuant to this Amendment as of
December 31, 2004.
IN WITNESS WHEREOF, each of the parties to this Amendment have executed
this Amendment on the date set forth below.
MWD Partnership
Mesa Wind Developers Zond-PanAero Windsystems Partners I,
a California Joint Venture a California Limited Partnership
By: Enron Wind Systems, LLC By: Zond Windsystems Management LLC
its General Partner
By: ------------------- By: ---------------------
Name: ----------------- Name: -------------------
Title: ---------------- Title: ------------------
Date: ----------------- Date: -------------------
By: PanAero California Ltd.
By: -------------------
Name: -----------------
Title: ----------------
Date: -----------------
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NOTARIAL ACKNOWLEDGMENT
-----------------------
State of ---------------------- )
County of ---------------------- )
On --------------, 20---, before me, the undersigned Notary Public, 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.
(SEAL)
My commission Expires / /
-------------- ------- --------
5
NOTARIAL ACKNOWLEDGMENT
-----------------------
State of ---------------------- )
County of ---------------------- )
On --------------, 20---, before me, the undersigned Notary Public, 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.
(SEAL)
My commission Expires / /
-------------- ------- --------
6
NOTARIAL ACKNOWLEDGMENT
-----------------------
State of ---------------------- )
County of ---------------------- )
On --------------, 20---, before me, the undersigned Notary Public, 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.
(SEAL)
My commission Expires / /
-------------- ------- --------
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