BACKUP CERTIFICATE AGREEMENT
Exhibit
10.1
This Backup Certificate Agreement is entered into 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, solely as to Section 5(b) below,
Covanta Energy Corporation (“Covanta”) and
Ridgewood Power Management LLC, as agent for Xxxxxxx, RPPP and
RRIG under the Agreement (as defined below)
(“RPM”), as of August 19, 2008 (this
“Backup Agreement”). Indeck Maine and Backup
Purchasers are referred to herein individually as a
“Party” and collectively, as the
“Parties.” Capitalized terms not otherwise
defined herein have the meanings given to such terms in the
Amendment or the Agreement (each defined below).
RECITALS
WHEREAS, under that certain Certificate Purchase and Sale
Agreement entered into as of April 30, 2003 by and among
Constellation Energy Commodities Group, Inc., f/k/a
Constellation Power Source, Inc.
(“Constellation”), Indeck Maine, RPPP, RRIG and
RPM, as amended by that certain letter agreement dated
January 25, 2006 and Amendment No. 1 dated as of
October 31, 2006 (the “Previously Effective
Agreement”), Indeck Maine, RPPP, RRIG and Xxxxxxx
agreed to sell Certificates to Constellation;
WHEREAS, under that certain Purchase and Sale Agreement
dated as of the date hereof among Ridgewood Maine, L.L.C.,
Indeck Energy Services, Inc., Covanta and, for certain limited
purposes, Indeck Maine (the “Purchase and Sale
Agreement”), Ridgewood Maine, L.L.C. and Indeck Energy
Services, Inc. shall sell, assign, transfer and convey to
Covanta their respective membership interests in Indeck Maine
(the “Transaction”);
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 below) (the
Previously Effective Agreement, as amended by the Amendment, is
referred to herein as the “Agreement”);
WHEREAS, as a result of the transactions contemplated by
the Agreement, Xxxxxxx, RPPP and RRIG are obligated to provide
Constellation with the Certificates required for the 2008
Optional Firm Transaction and, if Constellation so elects, the
2009 Optional Firm Transaction;
WHEREAS, in order to fulfill such obligations, Backup
Purchasers wish to purchase from Indeck Maine and Indeck Maine
wishes to sell to Backup Purchasers certain Second Standard
Certificates as contemplated in this Backup Agreement; and
WHEREAS, Indeck Maine has agreed to act as agent (the
“Agent”) for Xxxxxxx, RPPP and RRIG with
respect to Delivery of Second Standard Certificates to
Constellation and payments therefor pursuant to that certain
Agency Agreement dated as of the date hereof (the
“Agency Agreement”) among Indeck Maine, RPM,
Xxxxxxx, RPPP and RRIG.
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. This Backup Agreement shall become valid, effective and
enforceable as of the date this Backup Agreement is fully
executed by all the Parties hereto, provided that
Sections 2 through 11 shall be subject to, and not valid,
effective or enforceable until, the closing of the Transaction
(the “Effective Date”). Subject to and upon the
Effective Date, the Parties agree that they will commence the
performance of their obligations under Sections 2 through
11 of this Backup Agreement.
2. (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 208,651 such
Certificates (less Certificates Delivered pursuant to the
Agreement prior to the Effective Date). 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.
(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. 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.
(c) Notwithstanding paragraphs (a) and (b) above,
solely to the extent Indeck Maine is unable to provide
Certificates to Backup Purchasers as required by paragraphs
(a) and (b) that have been generated from the Biomass
Projects and such failure is not excused as a Force Majeure,
Indeck Maine may Deliver Certificates to Backup Purchasers
otherwise meeting all of the other terms and conditions of
paragraphs (a) and (b) above, but which have not been
generated by the Biomass Projects.
(d) For purposes of this Backup Agreement, a Certificate
shall only be deemed to be “Delivered” if
(1) such Certificate has been created on its “Creation
Date” in the NEPOOL GIS and (2) such Certificate has
subsequently been deposited in one of Backup Purchasers’
account in the NEPOOL GIS. Title to and risk of loss with
respect to the Certificates shall pass to Backup Purchasers upon
Delivery of such Certificates to Backup Purchasers as provided
herein. Notwithstanding any other provisions of this
Section 2 to the contrary, delivery of Certificates to
Constellation under the Agency Agreement shall constitute
Delivery hereunder.
(e) Backup Purchasers shall pay Indeck Maine the same price
for the Certificates to be delivered hereunder as the xxxxx
Xxxxxxx, RPPP and RRIG are entitled to receive (without setoff)
from Constellation for such Certificates under the Agreement.
Notwithstanding the foregoing, payment of any amount by
Constellation to the Agent under the Agency Agreement shall
satisfy Backup Purchasers’ payment obligations with respect
to that same amount under this Backup Agreement.
(f) 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 actually Delivered under the Agreement prior to or
on the Effective Date. 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, except to the
extent such compensation is part of the Working Capital Payment
under the Purchase and Sale Agreement.
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(g) With respect to each sale and Delivery of Certificates
hereunder, Indeck Maine represents, warrants and agrees that it
shall convey good and marketable title to such Certificates upon
Delivery and will Deliver such Certificates, free and clear of
any and all Liens and Claims.
(h) If and to the extent that Constellation sets off any
Seller Amount against any Indeck Maine Amount under
Section 5.4 of the Agreement and Section 9 of the
Amendment and Backup Purchasers have not otherwise paid such set
off amount to Indeck Maine under Section 2 hereof, Backup
Purchasers shall immediately reimburse Indeck Maine for such set
off amount. Backup Purchasers represent and warrant to and agree
with Indeck Maine that, except with respect to the obligations
of Xxxxxxx, RPPP and RRIG under the Agreement and except as
provided in Section 9 below, Backup Purchasers have and
will have during the term hereof no other agreements, contracts
or undertakings with Constellation which could give rise to
additional rights of Constellation to so set off against the
Indeck Maine Amount.
(i) In event that either Backup Purchasers or Indeck Maine
claims the occurrence of a Force Majeure hereunder, the Party
claiming that Force Majeure shall have the same rights and
obligations and shall be subject to the same restrictions with
respect to that Force Majeure as if it were the “Claiming
Party” under Section 3.4 and under the definition of
“Force Majeure” in Article 10 of the Agreement,
and the Party or Parties not claiming that Force Majeure shall
have the same rights and obligations, and shall be subject to
the same restrictions with respect to that Force Majeure as if
it were the “non-Claiming Party” under
Section 3.4 and under the definition of Article 10 of
the Agreement. Notwithstanding the foregoing, this Backup
Agreement may not be terminated as a result of a Force Majeure
unless the Agreement has been terminated as a result of the same
Force Majeure.
(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 to be delivered under the
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.
(k) RILG consents to the arrangements set forth in the
Agency Agreement.
3. (a) As soon as practicable after the end of each
calendar month, Indeck Maine will prepare and deliver to Backup
Purchasers the invoice and other information (collectively, the
“Invoice Information”) required under
Section 5.1 of the Agreement for any Certificates Delivered
by it under Section 2(a) or 2(b) of this Backup Agreement,
which Invoice Information shall be prepared in accordance with
Section 5.1 of the Agreement and Section 9 of the
Amendment.
(b) All such invoices properly submitted by Indeck Maine to
Backup Purchasers pursuant to this Agreement and in accordance
with Section 5.1 of the Agreement shall be due and payable
by Backup Purchasers in accordance with Indeck Maine’s
invoice instructions on or before the later of the twenty-third
(23rd)
day of the calendar month in which such invoice was so
submitted, and the thirteenth
(13th)
day after receipt of the invoice or, if such day is not a
Business Day, then on the next Business Day. Each Party will
make payments by electronic funds transfer, or by other mutually
agreeable method(s), to the account designated by the other
Party in Exhibit B hereto. Any amounts not paid by the due
date therefor will be deemed delinquent and will accrue interest
at the Interest Rate, such interest to be calculated from and
including the due date to but excluding the date the delinquent
amount is paid in full.
(c) Indeck Maine will comply with the requirements of
Section 5.5 of the Agreement with respect to any Invoice
Information delivered to Constellation by Indeck Maine.
4. (a) Indeck Maine hereby agrees to retain in its own
NEPOOL GIS account Certificates relating to Maine Biomass
2008 Generation, up to 208,651 Certificates (less Certificates
Delivered pursuant to the
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Agreement prior to the Effective Date) 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 hereby agrees to retain in its own NEPOOL
GIS account all Certificates relating to Maine Biomass 2009
Generation, up to 208,651 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.
(c) Within fifteen (15) days after the end of each
calendar quarter, Backup Purchasers and Indeck Maine will
provide each other with a report of (i) the number of
Certificates Delivered by Xxxxxxx, RPPP and RRIG or Indeck
Maine, as the case may be, to Constellation either under the
Agreement or under the Agency Agreement for the 2008 Optional
Firm Transaction
and/or for
the 2009 Optional Firm Transaction, (ii) the MWhs of
generation produced by its respective facilities for the current
calendar year through the end of such calendar quarter, and
(iii) a good faith forecast of the MWhs of generation it
expects its respective facilities to produce for the remainder
of the calendar year.
5. (a) Unless excused by Force Majeure (subject to
Section 2(i)) or Backup Purchasers’ failure to
perform, in the event that Indeck Maine Delivers fewer
Certificates than it is required to Deliver hereunder (the
number of Certificates that Indeck Maine fails to Deliver being
referred to herein as the “Deficiency”), Indeck
Maine shall pay to Backup Purchasers an amount equal to the
product of (x) the Deficiency and (y) the positive
difference, if any, between the price to be paid for each
Certificate under the Agreement and the Replacement Price
therefor, plus Deficiency Costs incurred by Constellation, plus
Backup Purchasers’ reasonable attorneys’ fees, each in
connection with such failure. As used in this Section 5(a),
“Deficiency Costs” means, without duplication,
any brokerage fees, commissions and similar third party
transaction costs and expenses reasonably incurred by
Constellation either in terminating a Transaction pursuant to
which Constellation hedged its obligations or entering into new
arrangements which replace such Terminated Transaction, plus all
reasonable attorneys’ fees and expenses incurred by
Constellation in connection with a Deficiency. The Parties
hereby agree that the amounts payable under this Section 5
are the only damages for the failure of Indeck Maine to perform
its obligations under this Backup Agreement.
(b) Covanta agrees to deliver to Backup Purchasers promptly
upon execution of this Backup Agreement by all of the Parties
hereto a guaranty of the obligations of Indeck Maine under this
Backup Agreement, with a guaranteed amount not to exceed at any
time an amount equal to 80% of the amount required to be funded
at such time in the Account under and pursuant to
Section 5.2 of the Agreement (but not the amount required
with respect to Section 3.6 of the Agreement), but in any
event not to exceed a maximum amount of $7,300,000, in the form
of Exhibit C attached hereto, which guaranty shall be
subject to, and its effectiveness conditioned upon, the
Effective Date.
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
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with good utility practice and industry standards. Additionally,
if the Effective Date occurs on or before September 30,
2008, Indeck Maine shall notify Backup Purchasers not later than
September 30, 2008 of Indeck Maine’s forecasted
generation at the Biomass Projects during 2009.
7. Subject to and upon the Effective Date, Indeck Maine,
without any further action required, shall transfer and assign
its entire interest in the Account, including all amounts on
deposit in the Account, to Xxxxxxx, which transfer is subject to
the rights and security interest of Constellation in such
interest in the Account.
8. If Constellation fails to exercise its option under the
Agreement with respect to the 2009 Optional Firm Transaction by
the deadline date therefor in the Agreement, then all provisions
of this Agreement related to the 2009 Optional Firm Transaction,
and the requirements of Sections 2(b) and 4(b) herein,
shall be of no further force and effect.
9. (a) Xxxxxxx, RPPP, RRIG and RPM shall not amend or
modify any term, condition or covenant of the Agreement unless
(i) Xxxxxxx, RPPP, RRIG and RPM give Indeck Maine prior
written notice of any such proposed amendment or modification,
including a copy of the proposed documentation to effect such
amendment or modification, and (ii) Xxxxxxx, RPPP, RRIG and
RPM comply with the following procedures, upon Indeck
Maine’s reasonable opportunity to review such notice
(together with all necessary and appropriate documentation),
which opportunity to review will in no event be longer than ten
(10) Business Days after receipt of such notice and all
such necessary and appropriate documentation that may be
reasonably requested by Indeck Maine:
(1) in the event that Indeck Maine reasonably determines
that such proposed amendment or modification of the Agreement
could reasonably be expected to have an adverse impact on Indeck
Maine’s rights or obligations under any material term,
condition or covenant of this Backup Agreement or the Agency
Agreement on and after the Effective Date, Xxxxxxx, RPPP, RRIG
and RPM shall not amend or modify any such material term,
condition or covenant of the Agreement having such adverse
impact on Indeck Maine without obtaining Indeck Maine’s
prior written consent to any such amendment or modification,
such consent of Indeck Maine not to be unreasonably withheld,
conditioned or delayed; and
(2) in the event that Indeck Maine reasonably determines
that clause (1) above does not apply to such proposed
amendment or modification of the Agreement and that such
proposed amendment or modification could reasonably be expected
to materially reduce the contractual incentives or remedies for
performance of any terms, conditions or covenants of Xxxxxxx,
RPPP, RRIG under the Agreement on and after the Effective Date
(including any reduction in or modification to collateral, terms
of guaranties or other security arrangements other than an
immaterial reduction in or modification to collateral, terms of
guaranties or other security arrangements), Xxxxxxx, RPPP, RRIG
and RPM shall not amend or modify any such term, condition or
covenant of the Agreement without providing to Indeck Maine,
prior to execution of the first such amendment or modification,
a one-time cash deposit in the amount of $6,000,000 (the
“Escrow Deposit”) to be held as collateral
security pursuant to the Escrow Agreement dated as of the date
hereof among Indeck Maine, Backup Purchasers and Capital One,
N.A., as escrow agent (the “Escrow Agreement”)
to secure the performance of Backup Purchasers under this Backup
Agreement and the Agency Agreement. The Escrow Deposit will be
held in an interest-bearing bank account and may be drawn on by
Indeck Maine to the extent that Backup Purchasers fail to make
any payment as and when due pursuant to the terms of this Backup
Agreement or the Agency Agreement. Upon the expiration or
termination of this Backup Agreement, all amounts in the Escrow
Deposit (include all interest earned on amounts therein) at such
time will be released to Backup Purchasers absent any pending
obligation of the Backup Purchasers or any claim by Indeck Maine
under the Escrow Agreement.
(b) Xxxxxxx, RPPP and RRIG represent, warrant and agree to
comply with the terms and conditions of the Agreement at all
times during the term of the Backup Agreement.
(c) During the term hereof, Backup Purchasers shall
promptly provide to Indeck Maine a written copy of any notice or
other communication received from or delivered to Constellation
pursuant to the terms and conditions of the Agreement,
including, without limitation, any and all (i) invoices
delivered by Xxxxxxx,
5
RPPP and RRIG to Constellation, (ii) notices from
Constellation related to the amount or timing of any requests
for Delivery of Certificates meeting either First or Second
Standards, (iii) Constellation’s exercise of its
option under the Agreement with respect to the 2009 Optional
Firm Transaction, or (iv) notice from or to Constellation
of breach, default or termination.
(d) Upon the reasonable request of either Party, the other
Party shall provide to the requesting Party all reasonable
documentation and information related to the administration
and/or
performance of the Agreement, this Backup Agreement and the
Agency Agreement. The Parties further agree to provide to each
other audit rights regarding the administration and performance
of the Agreement and the Backup Agreement equivalent to the
audit rights set forth in Section 5.5 of the Agreement. In
furtherance of the purposes of this Section, Indeck Maine may
reasonably direct Xxxxxxx, RPPP and RRIG to exercise their
rights to audit the records of Constellation with respect to any
Certificates and “Invoice Information” provided by
Agent directly to Constellation under the Agency Agreement or to
Backup Purchasers hereunder and to provide Agent with reasonable
access to the information obtained with respect to such
Certificates and Invoice Information, subject to the
confidentiality provisions of Section 9.4 of the Agreement.
10. This Backup Agreement shall terminate upon any
termination of the Agreement unless such termination of the
Agreement was caused by a breach or default of Xxxxxxx, RPPP or
RRIG thereunder.
11. Except as otherwise provided herein, either Party may
terminate this Backup Agreement in the event the other Party is
in breach of any material obligation hereunder and Party in
breach fails to cure such breach within thirty days of receipt
from the other Party of written notice of such breach.
12. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice,
request, demand, claim or other communication hereunder shall be
deemed duly given (i) upon confirmation of facsimile,
(ii) one Business Day following the date sent when sent by
overnight delivery and (iii) five Business Days following
the date mailed when mailed by registered or certified mail
return receipt requested and postage prepaid at the following
address:
If to Backup Purchasers:
Ridgewood Providence Power Partners, L.P.,
Ridgewood Rhode Island Generation, LLC &
Xxxxxxx 0708 LLC
Rhode Island LFG Genco, LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Ridgewood Rhode Island Generation, LLC &
Xxxxxxx 0708 LLC
Rhode Island LFG Genco, LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn.: General Counsel
If to Indeck Maine:
Indeck Maine Energy, L.L.C.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn.: General Counsel
and, a copy to:
Covanta Energy Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have
been duly given unless and until it actually is received by the
intended recipient. Any Party may change the address to which
notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
13. Backup Purchasers represent and warrant to Indeck Maine
that as of the date of this Backup Agreement the forecasted
generation at RPPP’s and RRIG’s Facilities during 2009
will be between 130,000 MWhs and 150,000 MWhs (of
which 86,901 MWhs of generation represents vintage
production for purposes of the Massachusetts renewable energy
portfolio standard and therefore does not qualify for First
Standard Certificates under the Agreement) and there are no
planned expansions, modifications, shutdowns or other
operational issues of which Backup Purchasers are aware related
to such Facilities which are reasonably expected to materially
affect the range of such forecasted generation.
14. Two or more counterparts of this Backup Agreement may be
signed by the Parties, each of which shall be an original but
all of which together shall constitute one and the same
instrument. Facsimile signatures on this Backup Agreement shall
have the same force and effect as original signatures.
15. This Backup Agreement sets out the entire agreement
between the Parties as to the subject matter hereof. This Backup
Agreement is governed by and construed in accordance with the
laws of the State of New York without giving effect to conflict
of law principles.
16. This Backup Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors
and permitted assigns, but neither this Backup Agreement nor any
of the rights, interests or obligations hereunder shall be
assigned by any Party, including by operation of law, without
the prior written consent of the other Parties, such consent not
to be unreasonably withheld, conditioned or delayed,
provided, however, that no assignment shall in any way
affect a Party’s obligations or liabilities under this
Agreement. Any assignment in contravention of the foregoing
sentence shall be null and void and without legal effect on the
rights and obligations of the Parties hereunder.
17. The Parties acknowledge and agree that the transactions
contemplated by this Backup Agreement constitute “forward
contracts” within the meaning of the United States
Bankruptcy Code. Each of the Parties represents that it is a
“forward contract merchant” within the meaning of the
United States Bankruptcy Code.
18. A condition to the effectiveness of this Backup
Agreement shall be the execution and delivery of the Agency
Agreement by all of the parties thereto, including the parties
contemplated to acknowledge the Agency Agreement.
[The
Remainder of this Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the Parties have executed this Backup
Agreement as of the date first written above.
|
XXXXXXX 0708 LLC
|
||||||
| INDECK MAINE ENERGY, LLC | ||||||
| By: |
Ridgewood Renewable Power LLC, its Manager |
|||||
|
By:
|
/s/ Xxxxxxx
X. Xxxxxx
|
By: |
/s/ Xxxxxxx
X. Xxxxxx
|
|||
| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxx | |||||
| Title: President and Chief Executive Officer | Title: President and Chief Executive Officer | |||||
|
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 | |||
|
By:
|
/s/ Xxxxxxx
X. Xxxxxx
|
By: |
/s/ Xxxxxxx
X. Xxxxxx
|
|||
| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxx | |||||
| Title: President and Chief Executive Officer | Title: President and Chief Executive Officer | |||||
|
RHODE ISLAND LFG GENCO, LLC
|
||||||
| By: |
Ridgewood Renewable Power LLC, its Manager |
|||||
|
By:
|
/s/ Xxxxxxx
X. Xxxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
|
Acknowledged and agreed to as of the date first written above:
|
||||||
| COVANTA ENERGY CORPORATION, solely as to Section 5(b) hereof | ||||||
|
By:
|
/s/ Xxxxxxx
X. Xxxxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxxx | ||||||
| Title: President And Chief Executive Officer | ||||||
| RIDGEWOOD POWER MANAGEMENT LLC, as agent under the Agreement | ||||||
| By: | Ridgewood Management Corporation, its Manager | |||||
|
By:
|
/s/ Xxxxxxx
X. Xxxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
8
