Exhibit 10.3 (a)
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WINDSYSTEM MANAGEMENT AGREEMENT
By and Between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-B,
a California Limited Partnership
and
ZOND SYSTEMS, INC.,
a California corporation
dated as of
September 9, 1985
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TABLE OF CONTENTS
Page
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1. DEFINITIONS ......................................................... 1
2. AGENCY AGREEMENT .................................................... 3
2.1 Exclusive Agency ........................................... 3
2.2 Independent Contractor Status .............................. 3
3. TERM OF AGREEMENT ................................................... 3
4. DUTIES AND RESPONSIBILITIES OF ZOND ................................. 3
4.1 Due Diligence .............................................. 3
4.2 Certain Management Duties .................................. 4
4.3 Other Activities ........................................... 5
5. COMPENSATION OF ZOND AND CERTAIN REIMBURSEMENTS ..................... 5
5.1 Management Fee ............................................. 5
5.2 Incentive Management Fee ................................... 6
5.3 Expense Reimbursements ..................................... 6
6. BOOKS AND RECORDS, AUDITS, REPORTS AND ACCOUNTINGS .................. 6
6.1 Books and Records .......................................... 6
6.2 Inspections and Audits ..................................... 7
6.3 Reports and Accountings .................................... 7
7. INDEMNIFICATION ..................................................... 7
8. TERMINATION OF AGREEMENT ............................................ 7
8.1 Termination for Cause ...................................... 7
8.2 Other Events of Termination ................................ 8
8.3 Procedures Upon Termination ................................ 8
8.4 Non-Waiver of Rights ....................................... 9
9. MISCELLANEOUS ....................................................... 9
9.1 Notices .................................................... 9
9.2 Attorneys' Fees ............................................ 9
9.3 Waiver ..................................................... 9
9.4 Assignment ................................................ 10
9.5 Successors and Assigns .................................... 10
9.6 Further Assurances ........................................ 10
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9.7 Governing Law ............................................. 10
9.8 Characterization of Agreement ............................. 10
9.9 Interpretation ............................................ 10
9.10 Partial Invalidity ........................................ 11
9.11 Headings and References ................................... 11
9.12 Counterparts .............................................. 11
9.13 Entire Agreement .......................................... 11
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WINDSYSTEM MANAGEMENT AGREEMENT
THIS WINDSYSTEM MANAGEMENT AGREEMENT ("Agreement") is made by
and between ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-B, a California Limited
Partnership (the "Partnership"), and ZOND SYSTEMS, INC., a California
corporation ("Zond") as of this 9th day of September, 1985.
WHEREAS, the Partnership desires to retain Zond to manage and
operate the Turbines constructed on the Operating Site for the Partnership by
Zond Construction Corporation III ("ZCC III") pursuant to the Windsystem
Construction Agreement between ZCC III and the Partnership.
NOW, THEREFORE, the Partnership and Zond agree as follows:
1. DEFINITIONS
As used in the Agreement, the following terms shall have the following
designated meanings:
1.1 "Affiliate" shall mean (a) any person, firm or entity directly
or indirectly controlling, controlled by or under common control with another
person, firm or entity, (b) any person, firm or entity owning or controlling 10%
or more of the outstanding voting securities of such other person, firm or
entity, (c) any officer, director or partner of such firm or entity and (d) if
such other firm or entity is an officer, director or partner, any entity for
which such firm or entity acts in any such capacity.
1.2 "Agreement" shall mean this Windsystem Management Agreement.
1.3 "Effective Date" shall mean the date upon which the Turbines are
purchased by the Partnership pursuant to the Windsystem Construction Agreement
defined below.
1.4 "Gross Operating Proceeds" shall mean all gross receipts from
the sale of electricity generated by the Turbines and all amounts paid in lieu
of receipts from the sale of electricity (including without limitation any
proceeds of systems performance or wind resource insurance, casualty loss and
business interruption insurance paid in reimbursement of lost revenues and
warranty payments in reimbursement of lost revenues), calculated without offset
or other deductions of any nature (except for such amounts as may be required to
be refunded by the Partnership to SCE).
1.5 "Infrastructural Facilities" shall mean the infrastructural
improvements to be constructed at the Operating Site by ZCC III and utilized by
the Partnership in connection with its ownership and operation of the Turbines,
which shall include: (i) items directly owned by the Partnership, such as the
concrete pads to which each Turbine owned by the Partnership is affixed, the
insulated wire cables connecting each such Turbine to an intermediate step-up
transformer, certain of such intermediate step-up trans-formers, a 3OMW power
substation, and security fencing; (ii) items owned by ZCC III and made available
to the Partnership under the Wind Park Easement
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Agreement, including the Primary Roads and Secondary Roads, as defined in, and
as required to be constructed by Zond pursuant to, the Construction Agreement
between Zond and ZCC III; and (ii) items owned by Zond and made available to the
Partnership and Zond Windsystem Partners, Ltd. Series 85-A under the Power
Transfer Facilities Agreement, such as the 66 KV power transfer line and the
equipment interconnecting such 66 KV power transfer line to the power grid owned
by SCE proximate to the Operating Site.
1.6 "Operating Site" shall have the same meaning as in the
Windsystem Construction Agreement defined below.
1.7 "Partnership" shall mean Zond Windsystem Partners, Ltd. Series
85-B, a California Limited Partnership.
1.8 "Power Agreement" shall mean those certain several Power
Purchase Contracts between SCE and Zond which were assigned by Zond to the
Partnership pursuant to the Assignment of Power Purchase Contracts.
1.9 "Power Transfer Facilities Agreement" shall mean that certain
agreement among Zond, the Partnership and Zond Windsystem Partners, Ltd. Series
85-A pursuant to which Zond will make available to the Partnership and Zond
Windsystem Partners, Ltd. Series 85-A the 66KV power transfer line and the
equipment inter-connecting such 66KV power transfer line to the power grid owned
by SCE proximate to the Operating Site.
1.10 "SCE" shall mean Southern California Edison Company, a
California public utility.
1.11 "Turbines" shall have the same meaning as in the Windsystem
Construction Agreement defined below.
1.12 "Vestas" shall mean Vestas Energy A/S, a Danish corporation.
1.13 "VNA" shall mean Vestas North America Limited, a California
corporation.
1.14 "Wind Park Easement Agreement" shall mean the Wind Park Easement
Agreement between ZCC III and the Partnership.
1.15 "Wind Power Generating Facility Warranty Agreement" shall mean
that certain Wind Power Generating Facility Warranty Agreement between Vestas
and the purchaser designated in accordance with the provisions of Section 5.2
thereof and acknowledged by VNA, a copy of which is attached as Exhibit C to the
Wind Turbine Generator Purchase Agreement.
1.16 "Windsystem Construction Agreement" shall mean the Windsystem
Construction Agreement between ZCC III and the Partnership.
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1.17 "Windsystem Insurance" shall mean the insurance coverages
described in the confidential Private Placement Memorandum of the Partnership.
1.18 "Wind Turbine Generator Purchase Agreement" shall mean that
certain 1985 Wind Turbine Generator Purchase Agreement by and between VNA and
Zond.
1.19 "ZCC III" shall mean Zond Construction Corporation III, a
California corporation, and a wholly owned subsidiary of Zond.
1.20 "Zond" shall mean Zond Systems, Inc., a California corporation.
2. AGENCY AGREEMENT
2.1 Exclusive Agency
From and after the Effective Date, and during the term of this
Agreement, the Partnership appoints Zond as the sole and exclusive agent of the
Partnership with respect to the operation, management, maintenance and repair of
the Turbines and the Infrastructural Facilities. Zond hereby accepts such
appointment and agrees to manage the Turbines and the Infrastructural Facilities
for the Partnership in accordance with the terms of this Agreement.
2.2 Independent Contractor Status
The Partnership acknowledges that Zond, in performing its duties
hereunder, is acting as an independent contractor and, except as otherwise
expressly provided by this Agreement, the Partnership shall have no right to
control the conduct of Zond or its personnel in the proper performance of the
duties of Zond under this Agreement. Zond acknowledges that the Partnership is
the owner of the Turbines and of certain parts of the Infrastructural Facilities
(certain other parts of which are owned by ZCC III and made available to the
Partnership under the Wind Park Easement Agreement or which are owned by Zond
and made available to the Partnership and Zond Windsystem Partners, Ltd. Series
85-A under the Power Transfer Facilities Agreement) and, as such, is entitled to
control the Turbines and the Infrastructural Facilities and their use, subject
to the provisions of this Agreement, the Wind Park Easement Agreement, the Wind
Park Easement Agreement between Zond Windsystem Partners, Ltd. Series 85-A and
ZCC III and the Power Transfer Facilities Agreement. Except to the extent of
Zond's indemnity as set forth in Section 7, the Partnership will bear all risk
of loss or damage to the Turbines.
3. TERM OF AGREEMENT
Unless sooner terminated as set forth in Section 6, the term of this
Agreement shall commence on the date hereof and terminate on December 31, 2005.
4. DUTIES AND RESPONSIBILITIES OF ZOND
4.1 Due Diligence
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The duties and obligations which Zond is to discharge to the
Partnership hereunder are set forth in Sections 2.1, 4.2, 4.3, 6.1 through 6.3,
inclusive, 7, 8.3, 8.4, 9.2, 9.4 and 9.6 hereof. Zond shall exercise due
diligence in performing all of such duties and obligations assigned to it under
this Agreement and shall not be liable to the Partnership or to any other person
for the performance of any duties or obligations relating to the management,
operation, maintenance and repair of the Turbines or of the lnfrastructural
Facilities, other than as specified in the aforementioned Sections.
4.2 Certain Management Duties
Zond is hereby authorized and empowered by the Partnership, from
and after the Effective Date, and agrees with the Partnership and for its
benefit:
4.2.1 SCE and Other Purchasers. To represent the Partnership
in its dealings with SCE in connection with the Power Agreement and with such
other agreements and documents as may be required by SCE allowing and/or
obligating the Partnership to sell electricity produced by the Turbines to SCE
and to represent the Partnership in its dealings with any other purchasers of
electricity; provided, however, that any amendments or revisions to the Power
Agreement or the negotiation and execution of a new agreement for the sale of
power and any amendments thereto must be approved by the general partner or
general partners of the Partnership.
4.2.2 Personnel. To hire and supervise operating and
maintenance personnel, security guards and such other employees as it deems in
its judgment are desirable or necessary in connection with the operation,
maintenance and repair of the Turbines and the Infrastructural Facilities.
4.2.3 Operation and Maintenance. To cause the Turbines and the
Infrastructural Facilities to be operated, and maintained in good condition and
repair, in accordance with, the Power Agreement, applicable law and, with
respect to the Turbines, in accordance with the published maintenance manual and
standard maintenance practices of Vestas, the manufacturer of the Turbines, as
such manual may from time to time be amended during the term of this Agreement.
4.2.4 Government Actions. To take such action as may be
necessary to comply promptly with any orders or requirements affecting the
Turbines and the Infrastructural Facilities imposed by any Federal, state or
local government having jurisdiction over the Turbines and the Infrastructural
Facilities, unless the Partnership instructs it to the contrary in writing. Zond
shall give written notice of any such order or requirement promptly upon its
receipt thereof and the Partnership similarly shall give prompt written notice
to Zond of any such order or notice received by the Partnership
4.2.5 Damage to the Turbines or the Infrastructural
Facilities. To promptly investigate all accidents or damage relating to the
ownership, operation or maintenance of the Turbines and the Infrastructural
Facilities, including any damage or destruction of the Turbines or the
Infrastructural Facilities and the estimated cost of repair, and to cooperate
with and make any reports required by any insurer or lender to
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the Partnership (or any person having an interest in the Partnership's property)
in connection therewith.
4.2.6 Warranty and Insurance Claims. To monitor, supervise and
assist the Partnership in the enforcement of any and all warranty and insurance
claims associated with the Turbines or the Infrastructural Facilities or with
any component parts thereof.
4.2.7 Other Services. To maximize the production of electric
power from the Turbines and to perform such other services incidental to the
operation of the Turbines as it, in its reasonable judgment, may deem to be
reasonably necessary.
4.2.8 Competitive Prices. To use its best efforts to ensure
that all costs and expenses incurred by the Partnership in connection with the
operation, management, maintenance and repair of the Turbines and the
Infrastructural Facilities are, in its reasonable judgment, reasonable and
competitive with those which would prevail in dealings with unaffiliated third
parties.
4.2.9 Cooperation with Lenders. Except as otherwise directed
by the Partnership, to provide such reports and information and to take such
other actions as may be reasonably requested by lenders to the Partnership (or
any other person having an interest in the Partnership's property) in accordance
with such agreements as the Partnership may enter into with such lenders or
other persons.
4.3 Other Activities
The Partnership acknowledges that Zond and its affiliates are
involved in other activities, including the operation and management of wind
turbine generating systems other than the Turbines and the Infrastructural
Facilities owned by the Partner-ship. Zond agrees with the Partnership that it
shall devote as much time to the operation, management, maintenance and repair
of the Turbines and the Infrastructural Facilities as shall be reasonably
required for the efficient operation thereof and the performance of its duties
and responsibilities under this Agreement.
5. COMPENSATION OF ZOND AND CERTAIN REIMBURSEMENTS
5.1 Management Fee
As compensation for the services rendered by Zond to the
Partnership hereunder, the Partnership agrees to pay Zond (apart from and in
addition to any amounts reimbursed to Zond pursuant to Section 5.3 below) a
management fee for each calendar year during the term hereof which is equal to
3% of the Gross Operating Proceeds during such period. Such management fee shall
be paid to Zond no later than March 1 of the succeeding year. Notwithstanding
the foregoing, in the event that this Agreement is terminated pursuant to the
provisions of Section 8 below, the management fee payable to Zond hereunder for
the period ending on the termination date and commencing on the
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immediately preceding January 1 shall be equal to 3% of the Gross Operating
Proceeds, and shall be paid no later than 60 days after the termination date.
5.2 Incentive Management Fee
The Partnership agrees to pay to Zond on December 31, 2005, in
addition to any amounts payable to Zond under Section 5.1 above, an incentive
management fee equal to the outstanding balance of the Cash Reserve (as defined
in the Confidential Private Placement Memorandum of the Partnership dated
September 9, 1985), provided that this Agreement shall not have been earlier
terminated.
5.3 Expense Reimbursements
The Partnership acknowledges and agrees that any and all
maintenance costs incurred by Zond in connection with the performance of its
maintenance obligations under this Agreement (including but not limited to the
cost of any labor, materials, parts and services provided hereunder, other than
the cost of labor, materials, parts and services provided in connection with
repair of the Turbines pursuant to warranties given to the Partnership by ZCC
Ill under the Windsystem Construction Agreement or by Vestas pursuant to the
Wind Power Generating Facility Warranty Agreement, the reimbursement of which
Zond shall seek directly from ZCC III or Vestas, as the case may be), whether
provided hereunder by Zond or by any other third party at Zond's direction,
shall be for the account and at the expense of the Partnership and the
Partnership shall reimburse Zond for same on the last day of each calendar
quarter, beginning with the last day of the calendar quarter immediately
succeeding the Effective Date hereof in an amount equal to 115% of such
maintenance costs.
The cost of any labor, materials, parts and services provided
hereunder by Zond to or by any third party at Zond's direction in respect of the
Infrastructural Facilities which are the subject of the Power Transfer
Facilities Agreement shall be separately recorded and shall be allocated between
the Partnership and Zond Windsystem Partners, Ltd. Series 85-A in the same
proportion as the aggregate rated capacity of the Turbines purchased under their
respective Windsystem Construction Agreements with ZCC III.
Zond shall not be obligated to make any advances to or for the
account of the Partnership for the cost of any labor, materials, party or
services provided by Zond or at Zond's direction hereunder, and Zond shall not
itself be obligated to incur any liability or obligation for the account of the
Partnership without assurance that the necessary funds for the discharge thereof
will be provided by the Partnership. Should Zond elect to advance its own funds
on behalf of the Partnership for such purposes, all such funds so advanced
shall, at Zond's option, bear interest at a rate of ten percent (10%) per annum.
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6. BOOKS AND RECORDS, AUDITS, REPORTS AND ACCOUNTINGS
6.1 Books and Records
Zond shall keep or shall cause to be kept full and complete
books and records for all income and revenues received with respect to the
Turbines and all expenses incurred and disbursements made by Zond pursuant to
this Agreement in sufficient detail to permit verification by the Partnership of
Zond's compliance with the provisions of this Agreement.
6.2 Inspections and Audits
From time to time the Partnership or the Partnership's
authorized representative may, upon reasonable prior notice to Zond and at the
Partnership's sole cost and expense, inspect the books and records maintained by
Zond with respect to the Turbines and cause an audit thereof to be conducted,
including but not limited to, any reports and returns prepared and filed by Zond
with any governmental agencies. Any inspection or audit shall take place only
during Zond's normal business hours.
6.3 Reports and Accountings
Zond agrees to provide the Partnership with quarterly operating
reports and accountings no later than sixty (60) days after the end of each
calendar quarter detailing the operating results of the Turbines and providing a
statement of income and expenses for such quarter.
7. INDEMNIFICATION
Zond hereby indemnifies and holds the Partnership free and harmless of
and from any and all actions, claims, losses, dam-ages, injuries, liabilities,
costs, charges and expenses of any }rind or nature (including the reasonable
attorneys' fees of the Partnership) directly or indirectly resulting from or
attributable to the fault or neglect of Zond or its officers or employees in the
performance of Zond's duties under this Agreement; provided however, that no
indemnification by Zond hereunder shall extend to the Partnership for any
failure to act by Zond in accordance with any written instruction from the
Partnership as contemplated in the first sentence of Section 4.2.4 above. The
Partnership hereby indemnifies and holds Zond free and harmless against any and
all actions, claims, losses, damages, injuries, liabilities, costs, charges and
expenses of any kind or nature (including the reasonable attorneys' fees of
Zond) incurred by Zond (i) in the proper performance of its duties under this
Agreement to the extent directly or indirectly resulting from or attributable to
the fault or neglect of the Partnership and (ii) on account of any failure to
act by Zond in accordance with any written instructions from the Partnership as
contemplated in the first sentence of Section 4.2.4 above.
8. TERMINATION OF AGREEMENT
8.1 Termination for Cause
The Partnership shall have the right to terminate this Agreement
prior to the expiration of its term without the consent of Zond in the event
that the Partnership, in good faith and on a reasonable basis, has determined
Zond to be guilty of negligence, fraud or willful misconduct in the performance
of its duties and responsibilities under this
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Agreement or to have failed to adequately maintain and operate the Turbines or
to adequately maintain the Infrastructural Facilities, as required hereby.
Notice of removal, specifying the cause and grounds upon which such cause is
based, shall be given to Zond by the Partnership at least thirty (30) days prior
to the effective date thereof; provided, however, that such notice need not be
given in the case of an immediate and material danger to the Turbines caused by
a breach by Zond of its duties hereunder, and this Agreement shall terminate on
the effective date stated in the aforementioned notice.
8.2 Other Events of Termination
This Agreement may be terminated prior to the expiration of its
term upon the occurrence of any of the following events:
8.2.1 Written Agreement. The written agreement of the
Partnership and Zond to terminate this Agreement.
8.2.2 Destruction of the Turbines. The complete destruction of
all or of substantially all of the Turbines, unless the Partnership elects to
rebuild the Turbines and commences construction within one year after the date
of destruction.
8.2.3 Seizure of Property. The subjection of all or
substantially all of the Turbines to any levy, seizure, attachment or sale for
or by any creditor or government agency, which subjection is not removed within
ninety (90) days after the date of subjection.
8.2.4 Bankruptcy or Insolvency. At the option of the other
party, (i) the petition by a party to this Agreement seeking liquidation of its
assets or its reorganization under Chapters 7 or 11, respectively, of the United
States Bankruptcy Code; (ii) the appointment of a receiver, trustee or other
officer with similar powers to govern the affairs of such party; (iii) the
assignment by such party for the benefit of creditors; or (iv) the admission in
writing by such party of its general inability to pay its debts as they come
due.
8.2.5 Dissolution of the Partnership. The dissolution of the
Partnership.
8.3 Procedures Upon Termination
Upon the termination of this Agreement as set forth in Section
8.1 or Section 8.2, the following shall occur;
8.3.1 Dismissal. Zond shall be relieved of all responsibility
for and shall perform no further acts with respect to the Turbines and the
Infrastructural Facilities, and shall have no further duties and obligations
under this Agreement except as specified in Sections 7, 8.3.2, 8.3.3 and 8.3.4.
8.3.2 Records. As soon as practicable after termination, Zond
shall, upon the request of the Partnership, make available to the Partnership at
Zond's principal place of business, all documents, books and records of the
Partnership in Zond's
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possession pertaining to the operation of the Turbines and Zond's duties and
responsibilities under this Agreement.
8.3.3 Expenses. The Partnership shall reimburse Zond for all
unreimbursed expenses referred to in Section 5.3 which are incurred by Zond in
the performance of its duties under this Agreement prior to the effective date
of termination, shall pay Zond any compensation then due and owing to Zond under
this Agreement and shall reimburse Zond for all unreimbursed advances (together
with interest accrued as provided herein) made by Zond on behalf of the
Partnership prior to the effective date of termination.
8.3.4 Partnership Funds. Zond shall forthwith remit to the
Partnership the amount, if any, of the Partnership funds held by Zond pursuant
to this Agreement.
8.4 Non-Waiver of Rights
The termination of this Agreement shall be without prejudice to
any other rights or remedies which the Partnership or Zond may have against the
other (including, without limitation, under Section 7), and no termination of
this Agreement shall constitute a waiver, release or estoppel by either the
Partnership or Zond of any right, action or cause of action it may have against
the other.
9. MISCELLANEOUS
9.1 Notices
Any notice required or permitted to be given pursuant to this
Agreement shall be conclusively deemed to have been received by a party on the
day it is personally delivered to such party or, if sent by registered or
certified mail, on the third business day after the day on which it is mailed,
addressed to such party at the address set forth on the signature page of this
Agreement or at such other address as such party may designate by written notice
in accordance with this Section.
9.2 Attorneys' Fees
If either the Partnership or Zond brings any action or
proceeding for the enforcement, protection or establishment of any right or
remedy under this Agreement or for the interpretation of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs in connection with such action or proceeding, whether or not taxable, as
awarded by the trier of fact in such action or proceeding.
9.3 Waiver
No waiver of any right under this Agreement shall be effective
for any purpose unless in writing, signed by the party hereto possessing the
right, nor shall any such waiver be construed to be a waiver of any subsequent
right, term or provision of this Agreement.
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9.4 Assignment
(a) Neither party may assign its rights and duties under
this Agreement without the prior written consent of the other. Any assignment
which is made without such consent shall be null and void. Zond and the
Partnership agree that any assignee of any amounts owing under this Agreement
shall take subject to the rights of the Partnership against Zond hereunder,
including the right of the Partnership to offset claims it may have against such
payments to Zond.
(b) In addition to the requirements of paragraph (a) above,
Zond may not delegate its duties hereunder and the Partnership may not appoint
an additional or successor agent to Zond with respect to the operation,
maintenance or repair of the Turbines or the Infrastructural Facilities without
the prior approval of SCE given in accordance with the provisions of Section
4.1.1 of the Power Agreement.
9.5 Successors and Assigns
Subject to the provisions of Section 9.4, all of the terms and
provisions of this Agreement shall be binding upon and shall inure to the
benefit of and shall be enforceable by the successors and permitted assigns of
the parties hereto.
9.6 Further Assurances
The Partnership and Zond agree to perform all such acts
(including, without limitation, executing and delivering instruments and
documents) as reasonably may be necessary to fully effectuate the intent and
each and all of the purposes of this Agreement.
9.7 Governing Law
The terms and provisions of this Agreement shall be construed in
accordance with laws of the State of California.
9.8 Characterization of Agreement
By appointing Zond as the Partnership's agent with limited
duties and responsibilities in connection with the Turbines and the
Infrastructural Facilities as set forth in this Agreement, the Partnership and
Zond specifically intend that this Agreement shall be interpreted as a
management agreement and not as a joint venture, partnership or lease. All
questions of interpretation arising under this Agreement shall be resolved
consistent with this specific intent.
9.9 Interpretation
The Partnership and Zond agree that the terms and provisions of
this Agreement embody their mutual intent and that such terms and conditions are
not to be construed more liberally in favor of, nor more strictly against, the
Partnership or Zond.
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9.10 Partial Invalidity
If any term or provision of this Agreement, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each remaining term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
9.11 Headings and References
The headings contained in this Agreement are for purposes of
reference and convenience only and shall not limit or otherwise affect in any
way the meaning or interpretation of this Agreement. Unless otherwise indicated,
all references to Sections are to Sections in this Agreement.
9.12 Counterparts
This Agreement 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 instrument.
9.13 Entire Agreement
The provisions of this Agreement constitute the entire
understanding and agreement between the Partnership and Zond regarding the
management of the Turbines and the Infrastructural Facilities and may not be
altered or amended except by an instrument in writing signed by the Partnership
and Zond.
IN WITNESS WHEREOF, the parties have executed this Windsystem
Management Agreement as set forth below.
"ZOND"
ZOND SYSTEMS, INC.,
a California corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
------------------ ----------------------------
XXXXX X. XXXXXXXX
Senior Vice President-
General Counsel
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"PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-B,
a California Limited
Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General
Partner:
Zond Windsystems Management
Corporation IV,
a California corporation
Dated: September 11, 1985 By /s/ Xxxxx X. Xxxxxxxx
------------------ ----------------------------
XXXXX X. XXXXXXXX
Senior Vice President-
General Counsel
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