Exhibit 10.5
AGENCY AGREEMENT
This Agency Agreement is
entered into among Indeck Maine Energy, LLC (“ Indeck
Maine ”), Ridgewood Providence Power Partners, L.P.
(“ RPPP ”), Ridgewood Rhode Island Generation,
LLC (“ RRIG ”), Linwood 0708 LLC (“
Linwood ” and together with RPPP, RRIG “
Sellers ”) and Ridgewood Power Management, LLC (
“ RPM ”), as Sellers’ duly authorized
agent for the purpose of administering Sellers’ rights and
obligations under the Agreement (as defined below), as of
August 19, 2008 (this “ Agency Agreement
”). This Agency Agreement is also acknowledged by Ridgewood
Electric Power Trust III, Ridgewood Electric Power
Trust IV, Ridgewood Electric Power Trust V and Ridgewood
Power B Fund/Providence Expansion (collectively, the “
Acknowledging Entities ”). Indeck Maine, Sellers and
RPM are referred to herein individually as a “ Party
” and collectively, as the “ Parties ,”
and the Acknowledging Entities are not “Parties.”
Capitalized terms not otherwise defined herein have the meanings
given to such terms in the Agreement (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
agent for Indeck Maine, RPPP and RRIG, 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 ”), the Parties 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
Energy Corporation (“ 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 Previously Effective Agreement to Linwood and
Linwood 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, Sellers 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,
Sellers and Rhode Island
LFG Genco, LLC (“RILG”) have entered into a Backup
Certificate Agreement with Indeck Maine, dated as of the date
hereof (the “ Backup Agreement ”), whereby
Indeck Maine agreed on and after the Effective Date (as defined
below) to sell and deliver to Sellers and RILG, and Sellers and
RILG agreed to buy and receive from Indeck Maine, certain Second
Standard Certificates required for Delivery to Constellation under
the Agreement for the 2008 Optional Firm Transaction and, if
Constellation so elects, the 2009 Optional Firm
Transaction; and
WHEREAS,
Sellers wish to have
Indeck Maine, on and after the Effective Date, Deliver, invoice,
receive payment and collect for the Certificates to be delivered to
Sellers under the Backup Agreement directly with Constellation as
agent for Sellers under the Agreement, Sellers have arranged with
Constellation pursuant to the Amendment for Indeck Maine to do so,
and Sellers therefore wish to appoint Indeck Maine as their agent
(the “ Agent ”) for such purposes.
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.
Effectiveness . This Agency Agreement
shall become valid, effective and enforceable as of the date this
Agency Agreement is fully executed by all the Parties hereto,
provided that Sections 2 through 8 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 8 of this Agency Agreement.
2.
Appointment and Duties . For so long as
any rights or obligations of Sellers and Indeck Maine are
outstanding under the Agreement and the Backup Agreement,
respectively, but subject in all cases to the terms and conditions
of this Agency Agreement, Sellers hereby irrevocably and absolutely
appoint the Agent as their representative and agent, with full
power and interest, for all purposes with respect to:
(a) to Deliver
directly to Constellation any Certificates which Indeck Maine is
obligated to Deliver to Sellers under the Backup Agreement and
which Sellers would otherwise Deliver to Constellation under the
Agreement;
(b) to deliver
directly to Constellation the invoice and other information
required under Section 5.1 of the Agreement (the “
Invoice Information ”) for the Certificates Delivered
by Indeck Maine directly to Constellation, provided that prior to
delivering any Invoice Information to Constellation, Agent shall
deliver a copy of such invoice to Sellers for review and revision
(if needed) pursuant to Section 3 below;
(c) to direct
Constellation to pay, by wire transfer in immediately available
funds directly to an account designated and owned by Indeck Maine,
for the Certificates Delivered by Indeck Maine to Constellation
pursuant to the invoices delivered by Indeck Maine;
(d) to collect
amounts due from Constellation under the Agreement with respect to
any unpaid invoices delivered by Indeck Maine to Constellation as
provided herein and to otherwise exercise the rights of Sellers
with respect to such amounts due and unpaid, but solely to the
extent those invoices relate to Certificates Delivered to
Constellation under Section 2 of the Backup Agreement (Sellers
shall retain all rights under the Agreement with respect to any
payments due to them under the Agreement other than with respect to
amounts due on invoices delivered by Indeck Maine relating to
Certificates Delivered to Constellation by Indeck Maine under
Section 2 of the Backup Agreement); and
(e) to deal
directly with Constellation with respect to the administration and
management of all matters associated with the performance of the
foregoing provisions.
3. Review of
Invoice Information . As soon as practicable
after the end of each calendar month, Agent will prepare and
deliver to Sellers the Invoice Information for any Certificates
Delivered by it under the Backup Agreement, which Invoice
Information shall be prepared in accordance with Section 5.1
of the Agreement. Sellers will promptly review the Invoice
Information provided by Indeck Maine and respond with any
recommended revisions in order to comply with Section 5.1 of
the Agreement. Such review and r
