SECOND ROC PROJECT DEVELOPMENT AND SERVICES AGREEMENTDevelopment Agreement |
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RIDGEWOOD POWER GROWTH FUND /NJ | CLPE ROC-2A LIMITED. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Development Agreement by:
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DATED2004 |
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(1) RIDGEWOOD ROC II 2003 LLC
(2) CLPE ROC-2 LIMITED
(3) CLPE ROC-2A LIMITED
(4) THE PROJECT COMPANIES within mentioned |
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SECOND ROC PROJECT DEVELOPMENT AND SERVICES AGREEMENT relating to the development of electricity generation plants on behalf of the Project Companies
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EVERSHEDS LLP |
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115 Colmore Row Birmingham B3 3AL Tel: +44 121 232 1000 Fax: +44 121 232 1900 |
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bir_corp\718909\6
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CONTENTS
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Clause
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Page
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Section 1 |
Interpretation |
3 |
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Section 2 |
Appointment of Agents |
8 |
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Section 3 |
Development of New Projects |
9 |
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Section 4 |
Ownership and Operation of New Projects |
10 |
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Section 5 |
Operations, Repair and Maintenance of New Projects |
11 |
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Section 6 |
Marketing Services |
12 |
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Section 7 |
Agent Services |
12 |
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Section 8 |
Payments |
12 |
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Section 9 |
Joint and Several Obligations |
15 |
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Section 10 |
Indemnity |
15 |
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Section 11 |
Assignment and Delegation |
16 |
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Section 12 |
Release, Adherence & Accession |
16 |
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Section 13 |
Conflict of Interest |
17 |
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Section 14 |
Limitation of Liability |
17 |
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Section 15 |
Relationship of the Parties |
17 |
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Section 16 |
Disputes |
18 |
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Section 17 |
Notices |
18 |
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Section 18 |
Force Majeure |
19 |
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Section 19 |
Governing Law |
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Section 20 |
Third Parties |
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Section 21 |
Counterparts |
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Schedules |
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1 |
Project Companies |
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2 |
Developer Services to be carried out |
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3 |
The Agent Services |
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4 |
Deed of Release, Adherence and Accession |
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bir_corp\718909\6
THIS AGREEMENT is made the day of 2004
BETWEEN
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(1) |
RIDGEWOOD ROC II 2003 LLC, a Delaware limited liability company trading in the U.K. whose registered address is situate at 947 Linwood Avenue, Ridgewood, NJ, 07450, USA (the "Developer"); and |
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(2) |
CLPE ROC-2 LIMITED a company incorporated in England and Wales with company number 05040534 whose registered office is Units 14 & 15 Queensbrook, Bolton Technology Exchange, Spa Road, Bolton BL1 4AY (the "Bank Agent"); |
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(3) |
CLPE ROC-2A LIMITED a company incorporated in England and Wales with company number 05188043 whose registered office is Units 14 & 15 Queensbrook, Bolton Technology Exchange, Spa Road, Bolton BL1 4AY (the "Non Bank Agent"); |
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(4) |
THOSE COMPANIES brief details of which are set out in Schedule 1 hereto (the "Project Companies" and each a "Project Company"). |
WHEREAS
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(A) |
The Bank Companies (as defined below) and the Bank Agent are all direct or indirect wholly owned subsidiaries of CLPE Projects 2 Limited (“Projects 2”) and the Non Bank Companies (as defined below) and the Non Bank Agent are all members of the CLP group. |
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(B) |
Each Project Company:- |
(i) owns an operating electricity generating plant that uses landfill gas extracted from a landfill site pursuant to an existing NFFO Power Purchase Agreement; or
(ii) has committed to build an electricity generating plant at a site in order that it may sell the output of the plant under an existing NFFO Power Purchase Agreement; or
(iii) neither owns nor has committed to build electricity generating plant pursuant to a NFFO Power Purchase Agreement but has rights to a landfill site from which landfill gas may be extracted
(and in the case of each of (i) and (ii) above such existing or proposed electricity generating plants including their associated gas extraction, collection, burning and handling equipment, transformers, switchgear and other associated plant, machinery infrastructure equipment and apparatus from time to time shall be hereinafter referred to as an “Existing Project”).
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(C) |
Each Project Company with an Existing Project is desirous of adding additional generating capacity and additional infrastructure improvements at its Site so that such Project Company might use the surplus landfill gas to generate additional electricity and each Project Company with no Existing Project is desirous of constructing, developing and operating electricity generating equipment at its Site in order to generate new electricity (in each case a “New Project”), such electricity to be sold, along with its environmental attributes, to one or more third parties pursuant to new electricity sales agreements (“Subsequent Electricity Sales Agreements”). |
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(D) |
Each of the Project Companies does not currently have available sufficient financial resources to undertake the development and operation of a New Project, and each of them has requested that the Developer fund the New Project using monies provided by the Powerbank II Fund and undertake the following services and activities as described herein: |
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(1) |
to use commercially reasonable efforts to construct, install and commission a New Project at the Site for the benefit of the Project Company as described herein; including, without limitation, the services set forth on Schedule 2 hereto |
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(2) |
after Commissioning of the New Project, to use commercially reasonable efforts to arrange for the operation and maintenance services necessary for the ongoing operation of the New Project, and |
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(3) |
after Commissioning of the New Project, to use commercially reasonable efforts to perform the marketing services necessary to arrange for the sale of electricity and environmental attributes produced by the New Project under a Subsequent Electricity Sales Agreement for the benefit of the relevant Project Company. |
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(E) |
The Developer is prepared to undertake all such services and activities (“Developer Services”) requested by the Project Companies in respect of the New Projects on the terms and conditions set forth herein, including, specifically, compensation set forth in Section 8 below. |
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(F) |
The Bank Agent and the Non Bank Agent have been established for the purpose of coordinating the activities of each of the Bank Companies and Non Bank Companies respectively in connection with the New Projects; including, without limitation, the performance on behalf of each of the relevant Project Companies of all of their respective obligations hereunder, as well as the performance of the agent services more fully described on Schedule 3 hereof (the “Agent Services”). |
NOW THEREFORE, the parties agrees as follows:
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Section 1. |
Interpretation |
(a) Definitions
In this Agreement and the Schedules hereto the following words and expressions shall, unless the context otherwise requires or is inconsistent therewith, have the following meanings:
“Agent” means either of the Bank Agent or the Non Bank Agent acting in its agent capacity pursuant to the terms of this Agreement and “Agents” shall be construed accordingly;
“Bank Company” means those Project Companies (as at the date of this Agreement listed in Part 1 of Schedule 1) which are a party or become a party to this Agreement in accordance with Section 12 and which are direct or indirect subsidiaries of Projects 2;
"Commissioning" means the stage at which the installation of the Equipment at the relevant Project Company Site has been completed and the New Project has been consistently (over a period of 7 days) exporting electricity to the National Grid and Commissioned shall have the appropriate meaning;
“Equipment” means in relation to any New Project, the electricity generating facilities installed (separate from and in addition to such electricity generating facilities installed or to be installed in relation to an Existing Project) on a relevant Site by the Developer in accordance with the terms of this Agreement;
“Facility Agreement” means the amended and restated facility agreement dated on or around the date of this Agreement between (inter alios) Projects 2 as borrower, certain of the Project Companies, the Bank Agent and Bank of Scotland, and includes all restatements amendments and variations thereof and supplements thereto from time to time in force;
an "Insolvency Event" means any of the following events:-
the Agent is deemed unable to pay its debts in accordance with Section 123(1)(b) or (c) or (2) of the Insolvency Act 1986 or becomes unable generally pay its debts as they fall due, or otherwise becomes or is declared insolvent, or suspends making payments (whether of principal or interest) with respect to all or any class of its debts or announces an intention to do so; or
an application for an administration order in relation to the Agent is presented to the court or in the case of the Bank Agent, any meeting of any Debtor Party (as defined in the Facility Agreement) is convened for the purpose of considering any resolution to present an application for such an order; or
any steps are taken with a view to proposing (under any enactment or otherwise) any kind of composition, scheme of arrangement, compromise or arrangement involving the Agent and its creditors generally (or any class of them); or
any administrative or other receiver or any manager of the Agent or any of its property is appointed or the directors of the Agent request any person to appoint such a receiver or manager; or
any steps are taken to repossess any goods in the Agent’s possession under any hire purchase, conditional sale, chattel leasing, retention or title or similar agreement or any steps are taken with a view to putting or effecting in force any kind of attachment, sequestration, distress, arrestment or execution (except in all cases where any such steps:-
(a) give rise to a claim or potential liability of less than £50,000 and the claim or liability or being contested in good faith; or
(b) are otherwise discharged within thirty days after being levied, enforced or sued out),
against the Agent or any of its property; or
any meeting of the Agent is convened for the purpose of considering any resolution for (or to petition for) its winding up, the Agent passes such a resolution, or the Agent or any other person presents any petition for the Agent’s winding up, or an order for the Agent’s winding up is made on the petition of any of its creditors; or
any steps are taken with a view to the dissolution of the Agent (other than for the purpose of any reconstruction or amalgamation which, in the case of the Bank Agent only, has been previously sanctioned in writing by the Bank of Scotland); or
anything analogous to or having a substantially similar effect to any of the events specified in this definition shall occur under the laws of any applicable jurisdiction; or
the Agent ceases, or threatens to cease, to carry on all or a substantial part of its business.
the "Kilowatt Hour Rate" 5.3 pence;
“NFFO Power Purchase means contracts with The Non Fossil Purchasing
Agreements” Agency Limited and those in connection with Scottish renewable orders including any replacement contract with The Non Fossil Purchasing Agency Limited concluded in connection with the implementation of the new British Electricity Trading and Transmission Arrangements in Scotland presently targeted for on or around April 2005;
“Non Bank Company” means those Project Companies (as at the date of this Agreement listed in Part 2 of Schedule 1) which are a party or become a party to this Agreement in accordance with Section 12 and which are not Bank Companies ;
"Relevant Project for each Project Company the later of (i) the date
Company Long Stop Date" (if any) shown in Schedule 1, (ii) the date twelve months after the first payment under the Development Services Agreement and (iii) the date when the Developer (or its subcontractors) acknowledge that Commissioning will not take place for a particular site/or removes the Equipment being itself no later than eighteen months after the first payment under the Development Services Agreement;
“Site” means in relation to any New Project the landfill site on which the new or additional (as the case may be) electricity generating equipment is to be constructed and/or installed pursuant to this Agreement;
"Term" means in respect of a New Project the period of time commencing on Commissioning and ending on the later of (i) the tenth anniversary of Commissioning and (ii) the date when the Developer exercises its right to take away any New Project Equipment from the Site in accordance with its rights under Section 4;
“Third Amendment and means the third amendment and restatement
Restatement Agreement” agreement made between inter alios, (1) Projects 2, (2) CLPE 1999 Limited, (3) CLPE Projects 1 Limited, (4) CLPE ROC 1 Limited (4) the Bank Agent, (5) certain Project Companies and (6) the Bank of Scotland on or around the date of this Agreement;
and each of the following shall have the meaning set forth in the recitals to this Agreement:
“Agent Services”
“Developer Services”
“an Existing Project”
“a New Project”
“Projects 2”
“a Subsequent Electricity Sales Contract”
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(b) |
Words and expressions defined in the Companies Act 1985 (as amended) (the "Companies Act") shall (unless the context clearly does not so permit) bear the same meanings where used in this Agreement. |
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(c) |
The ejusdem generis rule of construction shall not apply to this Agreement and accordingly general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class or examples of acts matters or things. |
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(d) |
Words importing the singular shall include the plural and vice versa and words importing any gender shall include all other genders and references to persons shall include corporations and unincorporated associations. |
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(e) |
References in this Agreement to statutory provisions shall be construed as references to those provisions as respectively amended consolidated extended or re-enacted from time to time and shall include the corresponding provisions of any earlier legislation (whether repealed or not) and any orders regulations instruments or other subordinate legislation made from time to time under the statute concerned. |
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(f) |
References to this Agreement shall include the Schedules hereto which shall form part hereof and shall have the same force and effect as if expressly set out in the body of this Agreement. |
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(g) |
The Clause headings in this Agreement are for convenience only and shall not affect the interpretation hereof. |
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(h) |
References to a document being in the agreed terms shall be reference to a document the form of which has been agreed and initialled by or on behalf of all the parties hereto. |
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Section 2. |
Appointment of Agent. Each of the Bank Companies hereby appoints the Bank Agent as its agent and each of the Non Bank Companies hereby appoints the Non Bank Agent as its agent, for all purposes in connection with the activities and transaction contemplated by this Agreement. Each Agent hereby accepts such appointment, and agrees to use commercially reasonable efforts to perform the Agent Services for and on behalf of each relevant Project Company in respect of its New Project as set out in this Agreement or as otherwise may be agreed in writing between such Project Company and such Agent, with the approval of the Developer provided that each Agent shall be entitled to recover from the relevant Project Companies all costs incurred by it in delivering the Agent Services. Each Agent shall be the sole authorized representative of each of the relevant Project Companies in connection with the development of the New Projects and the execution of any Subsequent Electricity Sales Agreements, and shall have the authority to enter into binding legal obligations on behalf of each of the relevant Project Companies in connection therewith. The Developer and other third parties may rely on such authority of the Agent without further inquiry. Each of the Project Companies will execute on the date hereof a power of attorney in the agreed terms which shall appoint the relevant Agent as its attorney in accordance with this Section 2. The Bank Companies shall jointly and severally indemnify and hold the Bank Agent harmless and the Non Bank Companies shall jointly and severally indemnify and hold the Non Bank Agent harmless, from all loss, cost or expense arising out of the operation of the Agent Services and each Agent shall be entitled to reimbursement from the relevant Project Companies in respect of any expenses incurred in the operation of the Agent Services. Each Agent will use commercially reasonable endeavours to perform the Agent Services within the time agreed and to the standard agreed and, if no time or standard is agreed, then within a reasonable time and to a reasonable standard. If despite those endeavours an Agent is unable for any reason other than that Agent’s negligence or wilful default, to perform such services and activities such Agent will be deemed not to have breached this Agreement. |
It is agreed that neither Agent will have any liability to the Developer or the Project Companies for indirect or consequential loss (which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused save that neither Agent excludes its liability (if any) to the Developer or the Project Companies for loss arising from the Agent’s wilful default or for personal injury or death resulting from that Agent’s negligence, fraud or for any matter which it would be illegal for such Agent to exclude or to attempt to exclude its liability.
The Developer agrees that it shall not enforce or seek to enforce any of its rights against the Project Companies and shall have recourse only to the relevant Agents, save in relation to the Developer’s right of indemnity pursuant to Section 4.
If an Insolvency Event occurs
