EX-10.5








    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 response will in any event occur not
    later than five (5) Business Days after Sellers’
    receipt of the Invoice Information and failure to respond within
    such five (5) Business Days will constitute acceptance by
    Sellers of the accuracy of the Invoice Information. Indeck Maine
    will revise the Invoice Information as Sellers shall reasonably
    request.



 



    4. Authority.  Sellers hereby agree
    that, subject to Section 5 below, Agent shall have the sole
    power and authority to administer and manage on behalf of
    Sellers directly with Constellation the Agreement and the Backup
    Agreement with respect to the subject matter of Section 2
    hereof, and that no further approval, authority or consent from
    Sellers shall be required except as set forth in Section 3
    above. Subject to Section 5 below, Sellers hereby agree
    that Agent shall have the sole power and authority to enforce,
    to the exclusion of Sellers, its rights with respect to
    Section 2 hereof, together with the right to do all things
    necessary and proper to carry out the duties and
    responsibilities hereunder.




    

    2








 






    5. Suspension Events and Suspension of Power and
    Authority.  



 



    (a) Agent will perform its duties under this Agency
    Agreement in good faith and in a commercially reasonable manner.
    If Agent fails to perform its duties under this Agreement in
    good faith and in a commercially reasonable manner, Sellers will
    provide written notice of such failure to Agent, including a
    description of such failure and the action required to correct
    such failure. If Agent fails to take such corrective action
    within five (5) Business Days after its receipt of such
    notice, Sellers may, in their sole discretion, suspend the power
    and authority of Agent hereunder and take such corrective action
    without further consent or action by Agent. Such suspension of
    Agent’s power and authority under this Section 5(a)
    shall continue for so long as Sellers reasonably determine is
    required to correct Agent’s failure to perform its duties
    under this Agreement in accordance with the standards of this
    Section 5(a).



 



    (b) For purposes of this Agency Agreement, a
    “Suspension Event” shall mean: (i) failure
    of Constellation to pay any amount due to Indeck Maine with
    respect to any Invoice Information delivered under
    Section 2(b) of this Agency Agreement by the date such
    payment is due under the Agreement and such failure is not cured
    by Constellation pursuant to Section 7.1(a) of the
    Agreement; (ii) failure of Indeck Maine to Deliver any
    Certificates under Section 2(a) of this Agency Agreement
    and in accordance with Section 2 of the Backup Agreement;
    (iii) notice by Constellation to either Sellers or Indeck
    Maine that it disputes the correctness of any Invoice
    Information provided under Section 2(b) of this Agency
    Agreement or any adjustment to any such Invoice Information or
    that it is adjusting any such Invoice Information, in each case
    pursuant to Section 5.3 of the Agreement; (iv) Indeck
    Maine or Sellers dispute any netting or offset effected by
    Constellation under Section 5.4 of the Agreement;
    (v) a withdrawal by Constellation of any amount from the
    Account other than solely as a result of an Event of Default
    caused by or with respect to Sellers; or (vi) Indeck Maine
    becoming Bankrupt. In the event that either Indeck Maine or
    Sellers becomes aware of a Suspension Event, it shall promptly,
    and in any event within five (5) Business Days after it
    first becomes aware of such Suspension Event, provide written
    notice of such Suspension Event to all of the other Parties to
    this Agency Agreement.



 



    (c) Upon any Suspension Event under Section 5(b) above
    and receipt of notice from any Party to the other Parties of
    such Suspension Event, then (i) the power and authority of
    Agent under this Agency Agreement will be suspended upon receipt
    of such notice, (ii) Sellers will immediately resume
    responsibility for the functions delegated to Agent under this
    Agreement, and (iii) the Parties will resume direct
    performance under and through the Backup Agreement. Such
    suspension of Agent’s power and authority under this
    Section 5(c) shall continue until such time as the
    applicable Suspension Event is cured to the reasonable
    satisfaction of Sellers and Indeck Maine.



 



    (d) Sellers shall promptly notify Constellation of any
    suspension and immediately notify Constellation of any
    resumption of the power and authority of Agent under this Agency
    Agreement pursuant to this Section 5.



 



    6. Sellers’ Rights.  Except as
    granted to Agent hereunder, Sellers shall retain all other
    rights under the Agreement, in particular with respect to all
    aspects of notices, invoicing, Delivery, payment and collection
    related to the delivery to Constellation of any Certificates
    under the Agreement not to be provided by Indeck Maine under the
    Backup Agreement.



 



    7. Notice to Constellation.  Upon
    the Effective Date, Sellers and Agent will jointly direct
    Constellation in writing to pay Indeck Maine directly for all
    Certificates delivered by Indeck Maine to Constellation under
    Section 2(a), 2(b) or 2(c) of the Backup Agreement, which
    direction shall include any wire transfer instructions for the
    account to which Indeck Maine’s payments are to be made
    that have not previously been provided to Constellation. Sellers
    will not change or terminate such direction to Constellation
    without the prior written consent of Agent.



 



    8. Audit Rights.  Indeck Maine,
    individually and as Agent, agrees with Sellers, for the benefit
    of Constellation, to provide to Constellation all rights
    Constellation has under Section 5.5 of the Agreement with
    respect to any invoices delivered to Constellation directly from
    Agent.



 



    9. Waiver.  Any failure or delay by
    a Party to exercise any right, in whole or in part, under this
    Agency Agreement shall not be construed as a waiver of the right
    to exercise such right or any other right at any time or from
    time to time hereunder.




    

    3








 






    10. Amendments and
    Termination.  This Agency Agreement shall
    terminate upon the termination of the Agreement or the Backup
    Agreement or the satisfaction or waiver of all rights and
    obligations under the Agreement or the Backup Agreement. In
    addition, Sellers may terminate this Agreement in the event of
    Agent’s gross negligence or willful misconduct in the
    performance of its duties hereunder. Sellers shall promptly
    notify Constellation of the termination of this Agency Agreement
    pursuant to this Section 10. No amendment, modification,
    supplementation or termination of this Agency Agreement shall be
    effective unless it is in writing and signed by each of the
    Parties.



 



    11. Assignment.  This Agency
    Agreement shall be binding upon and inure to the benefit of the
    Parties and their respective successors and permitted assigns,
    but neither this Agency 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 Agency
    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.



 



    12. Notices.  All notices,
    requests, demands or other communications given or made pursuant
    hereunder shall be made at the address of the Agent set forth
    below and to Sellers or Constellation at the addresses as set
    forth in the Agreement, in each case in the manner and with the
    effect provided in the Agreement or at such other address as
    shall have been furnished in writing by any Person described
    above to the party required to give notice hereunder.



 



    Agent’s Address:



 



    Indeck Maine Energy, LLC

    c/o Covanta
    Energy Corporation

    40 Lane Road

    Fairfield, NJ 07004

    Attn: General Counsel

    Tel:
    (973) 882-7160

    Fax:
    (973) 882-7357



 



    13. Counterparts.  Two or more
    counterparts of this Agency 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 Agency Agreement shall have the same force
    and effect as original signatures.



 



    14. Severability.  In case any one
    or more of the provisions contained in this Agency Agreement
    should be invalid, illegal or unenforceable in any respect, the
    validity, legality and enforceability of the remaining
    provisions shall not in any way be affected or impaired thereby,
    and the parties hereto shall enter into good faith negotiations
    to replace the invalid, illegal or unenforceable provision with
    a view to obtaining the same commercial effect as this Agency
    Agreement would have had if such provision had been legal, valid
    and enforceable.



 



    15. Agreement; Limitation on
    Liability.  This Agency Agreement sets out the
    entire agreement between the Parties as to the subject matter
    hereof. No Party shall have any liability under or related to
    this Agency Agreement, except to the extent of such Party’s
    gross negligence or willful misconduct in the performance of
    their duties hereunder. In no event will any Party, be liable
    for consequential, incidental, special, exemplary or other
    indirect damages.



 



    16. Governing Law.  This Agency
    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.



 




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    IN WITNESS WHEREOF, the Parties have executed this Agency
    Agreement as of the date first written above.



 


	 	 	 
	
 
	
 
	
 

	

    LINWOOD 0708 LLC


	
 
	
    INDECK MAINE ENERGY, LLC

	
 
	
 
	
 

	

    By: Ridgewood Renewable Power LLC, its Manager


	
 
	
 

	
 
	
 
	
 

	

    By:  /s/ Randall D. Holmes


    




	
 
	

    By:  /s/ Randall D. Holmes


    





	

    Name: Randall D. Holmes


	
 
	
        Name: Randall D. Holmes

	

    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/ Randall D. Holmes


    




	
 
	

    By:  /s/ Randall D. Holmes


    





	

    Name: Randall D. Holmes


	
 
	
        Name: Randall D. Holmes

	

    Title: President and Chief Executive Officer


	
 
	
        Title: President and Chief
    Executive Officer

	
 
	
 
	
 

	

    RIDGEWOOD POWER MANAGEMENT LLC


	
 
	
 

	
 
	
 
	
 

	

    By: Ridgewood Management Corporation, its Manager


	
 
	
 

	
 
	
 
	
 

	

    By:  /s/ Randall D. Holmes


    




	
 
	
 

	

    Name: Randall D. Holmes


	
 
	
 

	

    Title: President and Chief Executive Officer


	
 
	
 










    

    5








 






    Acknowledged by each party below as of the date first written
    above:



 


	 	 	 
	
 
	
 
	
 

	

    RIDGEWOOD ELECTRIC POWER TRUST IV


	
 
	
    RIDGEWOOD ELECTRIC POWER TRUST III

	
 
	
 
	
 

	

    By: Ridgewood Renewable Power LLC, its Managing Shareholder


	
 
	

    By: Ridgewood Renewable Power LLC, its Managing Shareholder



	
 
	
 
	
 

	

    By: /s/  Randall
    D. Holmes


    




	
 
	

    By: /s/  Randall
    D. Holmes


    





	

    Name: Randall D. Holmes


	
 
	
        Name: Randall D. Holmes

	

    Title: President and Chief Executive Officer


	
 
	
        Title: President and Chief
    Executive Officer

	
 
	
 
	
 

	
    RIDGEWOOD POWER B FUND/PROVIDENCE EXPANSION
	
 
	
    RIDGEWOOD ELECTRIC POWER TRUST V

	
 
	
 
	
 

	

    By: Ridgewood Renewable Power LLC, its Managing Shareholder


	
 
	

    By: Ridgewood Renewable Power LLC, its Managing Shareholder



	
 
	
 
	
 

	

    By: /s/  Randall
    D. Holmes


    




	
 
	

    By: /s/  Randall
    D. Holmes


    





	

    Name: Randall D. Holmes


	
 
	
        Name: Randall D. Holmes

	

    Title: President and Chief Executive Office


	
 
	
        Title: President and Chief
    Executive Officer










    

    6