FIRST AMENDMENT TO BACKUP CERTIFICATE AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO BACKUP CERTIFICATE AGREEMENT
This FIRST AMENDMENT TO BACKUP CERTIFICATE AGREEMENT (this
“Amendment”) is made as of November 11,
2008, by and among Indeck Maine Energy, LLC (“Indeck
Maine”), Ridgewood Providence Power Partners, L.P.
(“RPPP”), Ridgewood Rhode Island Generation,
LLC (“RRIG”), Xxxxxxx 0708 LLC
(“Xxxxxxx”), Rhode Island LFG Genco, LLC
(“RILG,” and together with RPPP, RRIG and
Xxxxxxx, “Backup Purchasers”), and acknowledged
and consented to by Covanta Energy Corporation, for purposes of
Section 8 below only, and Ridgewood Power Management LLC,
as agent for Xxxxxxx, RPPP and RRIG under the Agreement (as
defined in Section 1 below) (“RPM”).
Indeck Maine and Backup Purchasers are referred to herein
individually as a “Party” and collectively, as
the “Parties.”
RECITALS
WHEREAS, the Parties are all of the parties to that
certain Backup Certificate Agreement, dated as of
August 19, 2008, (the “Backup Certificate
Agreement”) that was executed and delivered in
connection with the execution and delivery of that certain
Purchase and Sale Agreement, dated August 19, 2008, as
amended (the “Purchase Agreement”), by and
among the parties thereto.
WHEREAS, the parties to the Purchase Agreement have
agreed to certain amendments to the Purchase Agreement pursuant
to a First Amendment to Purchase and Sale Agreement, dated as of
the date hereof, which amendment requires in part corresponding
amendments to other documents, including the Backup Certificate
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to become
legally bound, agree as follows:
1. The third recital of the Backup Certificate Agreement is
amended to read in its entirety as follows:
WHEREAS, under that certain Assignment, Assumption,
Release and Amendment to the Agreement dated as of July 31,
2008 (the “Amendment”), Indeck Maine agreed to
assign its respective rights and obligations under the Agreement
to Xxxxxxx and Xxxxxxx agreed to assume such rights and
obligations as of the Effective Date (as defined in
Section 1 below) (the Previously Effective Agreement, as
amended by the Amendment and as further amended or modified from
time to time in accordance with Section 9 of this
Agreement, is referred to herein as the
“Agreement”);
2. Section 2(a) of the Backup Certificate Agreement is
amended to read in its entirety as follows:
(a) To the extent Xxxxxxx, RPPP and RRIG are permitted
pursuant to the terms of the Agreement to provide Constellation
with Second Standard Certificates (rather than First Standard
Certificates) for 2008 to meet their obligations under the 2008
Optional Firm Transaction, Indeck Maine shall, subject only to
Force Majeure, sell, transfer and Deliver to Backup Purchasers
and Backup Purchasers shall purchase and take from Indeck Maine,
Certificates for MWhs of generation from its biomass generating
facilities located in Jonesboro, Maine and West Enfield, Maine,
which include (a) Indeck West Enfield (NEPOOL GIS Asset
I.D. # 445) and (b) Indeck Jonesboro (NEPOOL GIS
Asset I.D. # 446) (together, the “Biomass
Projects”) in 2008 meeting the Second Standards
(“Maine Biomass 2008 Generation”), at the
times, and in amounts equal to, the Second Standard Certificates
otherwise to be Delivered by Xxxxxxx, RPPP and RRIG to
Constellation under the Agreement for the 2008 Optional Firm
Transaction, which will not in any event exceed 30,936 such
Certificates; provided, that, the obligation of Indeck Maine to
sell, transfer and Deliver to Backup Purchasers Certificates for
MWhs of generation under this Section 2(a) shall apply only
to Certificates associated with MWhs of generation occurring at
Indeck West Enfield and Indeck Jonesboro on or after the
Effective Date (“Post-Effective Date
Certificates”). Xxxxxxx, RPPP and RRIG’s agreed
schedule for the delivery of Second Standard Certificates to
Constellation, and thus, upon the Effective Date, the expected
delivery schedule for Indeck Maine hereunder, with respect to
the 2008 Optional Firm Transaction (less Certificates Delivered
pursuant to the Agreement prior to the Effective Date) is
attached hereto as Exhibit A to this Backup
Agreement.
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3. Section 2(b) of the Backup Certificate Agreement is
amended to read in its entirety as follows:
(b) To the extent Xxxxxxx, RPPP and RRIG are permitted
pursuant to the terms of the Agreement to provide Constellation
with Second Standard Certificates (rather than First Standard
Certificates) for 2009 to meet their obligations under the 2009
Optional Firm Transaction, Indeck Maine shall, subject only to
Force Majeure, sell, transfer and Deliver to Backup Purchasers
and Backup Purchasers shall purchase and take from Indeck Maine,
Certificates for MWhs of generation from its Biomass Projects in
2009 meeting the Second Standards (“Maine Biomass 2009
Generation”), at the times, and in an amounts equal to,
the Second Standard Certificates otherwise to be Delivered by
Xxxxxxx, RPPP and RRIG to Constellation under the Agreement for
the 2009 Optional Firm Transaction, which will not in any event
exceed 208,651 such Certificates; provided, that, the obligation
of Indeck Maine to sell, transfer and Deliver to Backup
Purchasers Certificates for MWhs of generation under this
Section 2(b) shall apply only to Post-Effective Date
Certificates. Xxxxxxx, RPPP and RRIG will provide Indeck Maine
with the schedule for the delivery of First and Second Standard
Certificates to Constellation, and thus, upon the Effective
Date, the expected delivery schedule for Indeck Maine for Second
Standard Certificates hereunder, with respect to the 2009
Optional Firm Transaction promptly after Xxxxxxx, RPPP and RRIG
and Constellation reach agreement upon any such schedule.
4. Section 2(f) of the Backup Certificate Agreement is
amended to read in its entirety as follows:
(f) (i) Indeck Maine shall be entitled to reduce its
obligations to Deliver Certificates under Section 2(a) of
this Backup Agreement by the amount equal (without duplication
of any reduction) to the Maine Biomass 2008 Generation
Certificates that are or will be created in a NEPOOL GIS account
in the name of any of the Backup Purchasers associated with MWhs
of generation occurring at Indeck West Enfield and Indeck
Jonesboro during the month of December 2008 that have and that
would otherwise satisfy the Backup Purchasers’ obligations
under the 2008 Optional Firm Transaction (the Certificates
described in this Section 2(f)(i) are referred to herein as
“2008 Purchaser Certificates”).
(ii) Indeck Maine shall be entitled to reduce its
obligations to Deliver Certificates under Section 2(b) of
this Backup Agreement by the amount equal (without duplication
of any reduction) to the Maine Biomass 2009 Generation
Certificates that are or will be created in a NEPOOL GIS account
in the name of any of the Backup Purchasers associated with MWhs
of generation occurring at Indeck West Enfield and Indeck
Jonesboro prior to or on the Effective Date and that would
otherwise satisfy the Backup Purchasers’ obligations under
the 2009 Optional Firm Transaction (the Certificates described
in this Section 2(f)(ii) are referred to herein as
“2009 Purchaser Certificates”).
(iii) For the avoidance of doubt, nothing herein shall
entitle Indeck Maine to receive compensation from Backup
Purchasers for any Certificates Delivered to Constellation prior
to or on the Effective Date or for any Certificates associated
with MWhs of generation occurring prior to the Effective Date.
5. Section 2(j) of the Backup Certificate Agreement is
amended to read in its entirety as follows:
(j) So long as the Agency Agreement is in effect and
Agent’s power and authority to act thereunder has not been
suspended pursuant to Section 5 of the Agency Agreement,
Indeck Maine will Deliver directly to Constellation all of the
Second Standard Certificates consisting of Post-Effective Date
Certificates to be delivered to Backup Purchasers pursuant to
Section 2 of this Backup Agreement, invoice and receive
payment from Constellation and collect payment from
Constellation for such Second Standard Certificates (subject to
the terms of the Agency Agreement). So long as the Agency
Agreement is in effect, Agent’s power and authority to act
thereunder has not been suspended pursuant to Section 5 of
the Agency Agreement, and Indeck Maine complies with the first
sentence of this Section 2(j), Xxxxxxx, RPPP and RRIG will
not deliver Second Standard Certificates to Constellation under
the Agreement (or invoice, receive payment or collect amounts
related thereto) in place of the Second Standard Certificates to
be delivered by Indeck Maine under Sections 2(a), 2(b) and
2(c) of this Backup Agreement.
6. Section 2(k) of the Backup Certificate Agreement is
amended to read in its entirety as follows:
(k) RILG consents to the arrangements set forth in the
Agency Agreement, as amended.
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7. Sections 4(a) and 4(b) of the Backup Certificate
Agreement are amended to read in their entirety as follows:
4. (a) If the Effective Date occurs prior to
January 1, 2009, Indeck Maine will retain in its own NEPOOL
GIS account Certificates relating to Maine Biomass 2008
Generation occurring after the Effective Date, up to 30,936
Certificates (less any 2008 Purchaser Certificates) meeting the
Second Standards (the “2008 Hold Back”), until
the sooner of (x) the date on which Indeck Maine has
received written notice from Backup Purchasers indicating that
Linwood’s, RPPP’s and RRIG’s obligations to
Constellation under the Agreement for the balance of the 2008
Optional Firm Transaction have been satisfied or
(y) April 30, 2009; provided Indeck Maine shall be
entitled to reduce the amount of its 2008 Hold Back by an amount
equal to the Maine Biomass 2008 Generation Certificates actually
Delivered under this Backup Agreement as and when such amounts
are Delivered. Backup Purchasers shall promptly provide to
Indeck Maine written notice of Linwood’s, RPPP’s and
RRIG’s satisfaction of the obligations to Constellation
under the Agreement for the balance of the 2008 Optional Firm
Transaction upon such satisfaction
(b) Indeck Maine will retain in its own NEPOOL GIS account
all Certificates relating to Maine Biomass 2009 Generation
occurring after the Effective Date, up
to 208,651 Certificates (less any 2009 Purchaser
Certificates) meeting the Second Standards (the “2009
Hold Back”), until the sooner of (x) the date on
which Indeck Maine has received written notice from Backup
Purchasers indicating that Linwood’s, RPPP’s and
RRIG’s obligations to Constellation under the Agreement for
the balance of the 2009 Optional Firm Transaction have been
satisfied or (y) April 30, 2010; provided Indeck Maine
shall be entitled to reduce the amount of its 2009 Hold Back by
an amount equal to the Maine Biomass 2009 Generation
Certificates actually Delivered under this Backup Agreement as
and when such amounts are Delivered; and, provided, further,
that Indeck Maine’s obligation to hold back up to 208,651
Certificates as the 2009 Hold Back shall be reduced Certificate
for Certificate to the extent that Xxxxxxx, RPPP and RRIG commit
to provide to Constellation greater than 51,349 Certificates in
2009 meeting the First Standards.
8. Section 5(b) of the Backup Certificate Agreement is
amended to delete the number “$7,300,000” and insert
in its place the number “$3,000,000.”
Exhibit C to the Backup Agreement is amended so that
the number “$7,300,000” in the second paragraph is
deleted, and the number “$3,000,000” is inserted in
its place.
9. Section 6 of the Backup Certificate Agreement is
amended to read in its entirety as follows:
6. Indeck Maine agrees to operate the Biomass Projects so
as to maximize the MWhs of generation in respect of which
Certificates are to be Delivered under Sections 2(a) and
2(b) above; provided, however, that in no event shall Indeck
Maine be required to operate the Biomass Projects in a manner
not in accordance with good utility practice and industry
standards.
10. Exhibit A to the Backup Certificate
Agreement is amended in its entirety to read as set forth in
Exhibit A to this Amendment.
11. Capitalized terms used and not otherwise defined herein
shall have the meanings attributed thereto in the Backup
Certificate Agreement. Upon execution hereof, each reference in
the Backup Certificate Agreement to “this Agreement,”
“hereby,” “herein,” “hereof” or
words of similar import referring to the Backup Certificate
Agreement shall mean and refer to the Backup Certificate
Agreement as amended by this Amendment.
12. Except as specifically amended hereby, all terms and
provisions contained in the Backup Certificate Agreement shall
remain unchanged and in full force and effect. The Backup
Certificate Agreement, as amended by this Amendment, constitutes
the entire understanding of the Parties regarding the subject
matter thereof and cannot be modified except by written
agreement of the Parties
13. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more
counterparts have been signed by each of the Parties and
delivered to the other Parties, it being understood that all
Parties need not sign the same counterpart.
14. This Amendment is governed by and construed in
accordance with the laws of the State of New York without giving
effect to conflict of law principles
[Signature
Page Follows]
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[Signature
Page to First Amendment to Backup Certificate
Agreement]
IN WITNESS WHEREOF, the Parties have executed this Amendment
effective for all purposes as of the date first above written.
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XXXXXXX 0708 LLC
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| INDECK MAINE ENERGY, LLC | ||||||
| By: |
Ridgewood Renewable Power LLC, its Manager |
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By:
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/s/ Xxxxxxx
X. Xxxxxx
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By: |
/s/ Xxxxxxx
X. Xxxxxx
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| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxx | |||||
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Title: President and Chief Executive Officer
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Title: President and Chief Executive Officer
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RIDGEWOOD RHODE ISLAND GENERATION, LLC |
RIDGEWOOD PROVIDENCE POWER PARTNERS, L.P. | |||||
| By: | Ridgewood Management Corporation, its Manager | By: | Ridgewood Providence Power Corporation, its General Partner | |||
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By:
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/s/ Xxxxxxx
X. Xxxxxx
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By: |
/s/ Xxxxxxx
X. Xxxxxx
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| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxx | |||||
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Title: President and Chief Executive Officer
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Title: President and Chief Executive Officer
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RHODE ISLAND LFG GENCO, LLC
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| By: |
Ridgewood Renewable Power LLC, its Manager |
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By:
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/s/ Xxxxxxx
X. Xxxxxx
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| Name: Xxxxxxx X. Xxxxxx | ||||||
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Title: President and Chief Executive Officer
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Acknowledged and agreed to as of the date first written above
for purposes of Section 8 only:
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| COVANTA ENERGY CORPORATION | ||||||
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By:
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/s/ Xxxxxxx
X. Xxxxxxx
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| Name: Xxxxxxx X. Xxxxxxx | ||||||
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Title: President And Chief Executive Officer
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| RIDGEWOOD POWER MANAGEMENT LLC, as agent under the Agreement | ||||||
| By: | Ridgewood Management Corporation, its Manager | |||||
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By:
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/s/ Xxxxxxx
X. Xxxxxx
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|||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
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Title: President and Chief Executive Officer
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EXHIBIT A
to First Amendment to Backup Certificate Agreement
Exhibit A
2008
SECOND STANDARD CERTIFICATE DELIVERY SCHEDULE
FIRST AMENDMENT TO BACKUP CERTIFICATE AGREEMENT
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Indeck Maine Energy 11/08 |
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Forecast Certificate Delivery |
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Delivery Month
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Constellation CPSA
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July 2008
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0 | |
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October/November 2008
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48,591 | |
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January 2009
|
89,955 | |
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April 2009
|
64,500 |
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