Exhibit 10.13 (b)
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AMENDMENT TO
SUBLEASE
This Amendment to Sublease (this "Amendment") is made as of March 21, 2006 by
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and between Enron Wind Systems, LLC ("EWS"), the successor by merger to Enron
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Wind Systems, Inc., which was formerly known as Zond Systems, Inc., and Zond
Windsystem Partners, Ltd. Series 85-B, a California limited partnership (the
"Partnership").
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RECITALS
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A. WHEREAS, EWS and the Partnership are parties to that certain Sublease dated
as of August 30, 1990 (the "Sublease"), pursuant to which EWS has subleased
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to the Partnership fourteen (14) wind turbine site locations on land leased
by EWS under that certain Lease and Royalty Agreement for Meteorological
Research Sites and the Construction and Operation of Wind Energy Conversion
Systems ( the "Lease") by and between the John M. Wuerth Family Trust and
EWS, as successor by merger to Enron Wind Systems, Inc.
B. WHEREAS, the term of the Sublease expires on the later to occur of (i) the
termination of all power purchase agreements which receive power generated
on or transmitted over the land subject to the Sublease and (ii) December
21, 2021 (the "Sublease Termination Date").
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C. WHEREAS, the term of that certain Amended and Restated Wind Park Easement
Agreement dated as of March 24, 1986 (the "Wind Park Easement Agreement")
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by and between the Partnership and ZWHC LLC, the successor to Zond
Construction Corporation III, a California corporation, and an affiliate of
EWS, expires on June 30, 2006 (the "Wind Park Easement Termination Date")
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and at such time the Partnership's rights to operate 226 of its 240 wind
turbines will terminate.
D. WHEREAS, the EWS and the Partnership desire to amend the Sublease
Termination Date to be concurrent with the Wind Park Easement Termination
Date and to provide the Partnership with a period of time following the
Sublease Termination Date to remove its wind turbines from the real property
subject to the Sublease.
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AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, ZWHC and the Partnership agree as follows:
1. Amendment to Sublease. The Sublease is hereby amended as follows:
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1.1 Section 4. Term. Section 4 of the Sublease is hereby amended to delete
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the existing text of Section 4 in its entirety and replace it with the
following:
"The term of this Sublease shall be for a period commencing as of the
date hereof and ending on June 30. 2006 (the "Scheduled Expiration
Date"), provided, however, that the term of this Sublease shall
continue beyond the Scheduled Expiration Date solely for the purposes
specified in Section 18 pertaining to the removal of the Turbines
until the first to occur of (i) the date of removal of the Sublessee's
Turbines as provided in Section 18 or (ii) the date occurring eleven
(11) months from the Scheduled Expiration Date."
1.2 Section 18. Disposition of Turbines at Expiration of Term. The
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Sublease is hereby amended by adding the following new Section 18:
"18 DISPOSITION OF TURBINES AT EXPIRATION OF TERM
Upon the occurrence of the Scheduled Expiration Date, the
Sublessee shall have the right, but not the obligation, to remove
during the eleven-month period immediately following the Scheduled
Expiration Date the Turbines and/or any related turbine equipment of
the Sublessee from the Premises at the sole cost and expense of the
Sublessee. In the event that the Sublessee fails to remove any of its
Turbines or turbine-related equipment from the Premises during such
eleven-month period, then such Turbines and turbine-related equipment
shall be deemed abandoned by the Sublessee at the end of such period
and all right, title and interest of the Sublessee in such Turbines
and turbine-related equipment shall pass to the Sublessor without any
further act by Sublessee; provided, however, that the Sublessor (or
any affiliates or assigns) shall not have the right to operate any
such abandoned Turbines or turbine-related equipment unless the
Sublessor (or any affiliates or assigns) shall have paid to the
Sublessee an amount equal to the appraised fair market value of such
abandoned Turbines and turbine related equipment (valued in place
taking into account any expected revenues from operation) as
determined by a qualified independent appraiser mutually acceptable to
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the Sublessor and the Sublessee."
2. Governing Law. The terms and provisions of this Amendment shall be governed
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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
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shall be deemed an original and all of which, when taken together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties to this Amendment has executed this
Amendment on the date first set forth above.
EWS Partnership
Enron Wind Systems, LLC, Zond Windsystem Partners, Ltd. Series
a California limited liability company 85-B, a California limited partnership
By: Enron Wind LLC, By: Zond Windsystems Management
its sole member IV LLC, its General Partner
By: Enron Renewable Energy Corp., By: /s/ Jesse E. Neyman
its sole member ------------------------------------------
Name: Jesse E. Neyman
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Title: President and Chief Executive Officer
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By: /s/ Jesse E. Neyman
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Name: Jesse E. Neyman
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Title: President and Chief Executive Officer
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