Exhibit 10.7
------------
L.1.c.(5)(a)
--------------------------------------------------------------------------------
WINDSYSTEM MANAGEMENT AGREEMENT
By and Between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C,
a California Limited Partnership
and
ZOND SYSTEMS, INC.,
a California corporation
dated as of
November 4, 1985
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Section Heading Page
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.........................4
4.1 Due Diligence..........................................4
4.2 Certain Management Duties .............................4
4.3 Other Activities.......................................6
5. COMPENSATION OF ZOND AND
CERTAIN REIMBURSEMENT..................................6
5.1 Management Fee.........................................6
5.2 Expense Reimbursements.................................6
6. BOOKS AND RECORDS, AUDITS,
REPORTS AND ACCOUNTINGS................................7
6.1 Books and Records......................................7
6.2 Inspections and Audits.................................7
6.3 Reports and Accountings................................8
7. INDEMNIFICATION.............................................8
8. TERMINATION OF AGREEMENT....................................8
8.1 Termination for Cause..................................8
8.2 Other Events of Termination............................9
8.3 Procedures Upon Termination............................9
8.4 Non-Waiver of Rights..................................10
9. MISCELLANEOUS..............................................10
9.1 Notices...............................................10
9.2 Attorneys' Fees.......................................10
9.3 Waiver................................................10
9.4 Assignment............................................11
9.5 Successors and Assigns................................11
9.6 Further Assurances....................................11
(i)
9.7 Governing Law.........................................11
9.8 Characterization of Agreement.........................11
9.9 Interpretation........................................11
9.10 Partial Invalidity....................................12
9.11 Headings and References...............................12
9.12 Counterparts..........................................12
9.13 Entire Agreement......................................12
(ii)
WINDSYSTEM MANAGEMENT AGREEMENT
-------------------------------
THIS WINDSYSTEM MANAGEMENT AGREEMENT ("Agreement") is made by and
between ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C, a California Limited
Partnership (the "Partnership") and ZOND SYSTEMS, INC., a California
corporation ("Zond") as of this 4th day of November, 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 IV ("ZCC IV") pursuant to the Windsystem Construction
Agreement between ZCC IV 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 PG&E).
1.5 "Infrastructural Facilities" shall mean the infrastructural
--------------------------
improvements to be constructed at the Operating Site by ZCC IV and utilized by
the Partnership in connection with its ownership and operation of the
-1-
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
transformers; a 20MW power substation; and security fencing; (ii) items owned
by Zond and made available to the Partnership under the Wind Park Easement
Agreement, including the Primary Roads and Secondary Roads.
1.6 "Operating Site" shall have the same meaning as when used in the
--------------
Wind Park Easement Agreement defined below.
1.7 "Partnership" shall mean Zond Windsystem Partners, Ltd. Series
-----------
85-C, a California Limited Partnership.
1.8 "PG&E" shall mean Pacific Gas and Electric Company.
----
1.9 "Primary Roads" shall have the same meaning as when used in the
-------------
Windsystem Construction Agreement defined below.
1.10 "Secondary Roads" shall have the same meaning as when used in
---------------
the Windsystem Construction Agreement defined below.
1.11 "Turbines" shall have the same meaning as when used 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 Zond 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 IV and the Partnership.
1.17 "Windsystem Insurance" shall mean the insurance coverages
--------------------
described in the Confidential Private Placement Memorandum of the Partnership.
-2-
1.18 "Wind Turbine Generator Purchase Agreement" shall mean that
-----------------------------------------
certain 1985 Wind Turbine Generator Purchase Agreerment by and between VNA and
Zond.
1.19 "ZCC IV" shall mean Zond Construction Corporation IV, 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, the Infrastructural Facilities, the Primary Roads and
the Secondary Roads. Zond hereby accepts such appointment and agrees to manage
the Turbines, the Infrastructural Facilities, the Primary Roads and the
Secondary Roads 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 the Infrastructural Facilities, and has the
rights to use, possess and occupy the Primary Roads and the Secondary Roads on
the terms set forth in this Agreement, and, as such, is entitled to control
the Turbines, the Infrastructural Facilities, the Primary Roads and the
Secondary Roads and their use, subject to the provisions of this Agreement and
the Wind Park Easement 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 8, the term of this
Agreement shall commence on the date hereof and terminate on the earlier to
occur of December 31, 2005, or the date the Partnership sells the Windsystem.
-3-
4. DUTIES AND RESPONSIBILITIES OF ZOND
-----------------------------------
4.1 Due Diligence
-------------
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, the
Infrastructural Facilities, the Primary Roads and the Secondary Roads, 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 PG&E and Other Purchasers. To represent the Partnership in
-------------------------
its dealings with PG&E in connection with the Power Agreement and with such
other agreements and documents as may be required by PG&E allowing and/or
obligating the Partnership to sell electricity produced by the Turbines to
PG&E 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 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, the Infrastructural Facilities, the
Primary Roads and the Secondary Roads.
4.2.3 Operation and Maintenance. To cause the Turbines, the
-------------------------
Infrastructural Facilities, the Primary Roads and the Secondary Roads 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-
4.2.4 Government Actions. To take such action as may be necessary
------------------
to comply promptly with any orders or requirements affecting the Turbines, the
Infrastructural Facilities, the Primary Roads and the Secondary Roads imposed
by any Federal, state or local government having jurisdiction over the
Turbines, 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, the Infrastructural Facilities, the
Primary Roads and the Secondary Roads, including any damage or destruction of
the Turbines, the Infrastructural Facilities, the Primary Roads and the
Secondary Roads, and the estimated cost of repair, and to cooperate with and
make any reports required by any insurer or lender to 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, the Infrastructural Facilities,
the Primary Roads and the Secondary Roads, 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, the
Infrastructural Facilities, the Primary Roads and the Secondary Roads 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.
-5-
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 Partnership. Zond agrees with the Partnership that it
shall devote as much time to the operation, management, maintenance and repair
of the Turbines, the Infrastructural Facilities, the Primary Roads and the
Secondary Roads 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 equal to 1%; of the Gross Operating
Proceeds for such calendar year. The management fee attributable to each
calendar year (or shorter period) shall be paid to Zond no later than 90 days
after the end of such calendar year (or shorter period). 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
immediately preceding January 1 shall be paid no later than 60 days after the
termination date.
5.2 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 IV 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 IV 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.
-6-
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 Turbines, the Infrastructural Facilities, the Primary Roads and the
Secondary Roads which are the subject of the Power Transfer Facilities
Agreement shall be separately recorded in any statement rendered to the
Partnership for services performed pursuant to this Section 5.2.
Zond shall not be obligated to make any advances to or for the
account of the Partnership for the cost of any labor, materials, parts 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.
5.3 Incentive Management Fee
------------------------
The Partnership agrees to pay to Zond on December 31, 2009, 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),
provided that this Agreement shall not have been earlier terminated.
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.
-7-
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, damages, injuries,
liabilities, costs, charges and expenses of any kind 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 Agreement or to have
failed to adequately maintain and operate the Turbines or to adequately
maintain the Infrastructural Facilities, the Primary Roads and the Secondary
Roads, 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 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-
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 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, the
Infrastructural Facilities, the Primary Roads and the Secondary Roads 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 possession pertaining to the operation of the Turbines
and Zond's duties and responsibilities under this Agreement.
-9-
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 Agreerment 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
-10-
right, nor shall any such waiver be construed to be a waiver of any subsequent
right, term or provision of this Agreement.
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.
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, the Infrastructural
Facilities, the Primary Roads and the Secondary Roads 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.
-11-
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, the Infrastructural Facilities, the Primary Roads
and the Secondary Roads and may not be altered or amended except by an
instrument in writing signed by the Partnership and Zond.
-12-
IN WITNESS WHEREOF, the parties have executed this Windsystem
Management Agreement as set forth below.
ZOND
ZOND SYSTEMS, INC.,
a California corporation
Dated: 11-4-85 By /s/ XXXXX X. XXXXXXXX
------------------ ---------------------
Name: XXXXX X. XXXXXXXX
Title: Senior Vice President
General Counsel
"PARTNERSHIP"
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-C,
a California Limited
Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General
Partner:
Zond Windsystems Management
Corporation V,
a California corporation
Dated: 11-4-85 By /s/ XXXXX X. XXXXXXXX
------------------- ----------------------
Name: XXXXX X. XXXXXXXX
Title: Senior Vice President
General Counsel
-13-
