EX-10.1






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”), Linwood 0708 LLC
    (“Linwood”), Rhode Island LFG Genco, LLC
    (“RILG,” and together with RPPP, RRIG and
    Linwood, “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 Linwood, 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 Linwood and Linwood 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 Linwood, 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 Linwood, 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”). Linwood, 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.




1








 






    3. Section 2(b) of the Backup Certificate Agreement is
    amended to read in its entirety as follows:



 



    (b) To the extent Linwood, 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
    Linwood, 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. Linwood, 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 Linwood, 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), Linwood, 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.




2








 






    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 Linwood, 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]





3








 







    [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.



 


	 	 	 	 	 	 	 
	

    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



	
 
	
 
	
 
	
 
	
 

	

    RHODE ISLAND LFG GENCO, LLC


	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
    By:
	
 
	
    Ridgewood Renewable Power LLC, its 

    Manager
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    By:


	
 
	
    /s/  Randall
    D. Holmes

	
 
	
 
	
 
	
 

	
 
	
 
	
    

	
 
	
 
	
 
	
 

	
 
	
 
	
    Name: Randall D. Holmes
	
 
	
 
	
 
	
 

	
 
	
 
	

    Title: President and Chief Executive Officer


	
 
	
 
	
 
	
 

	
 

	

    Acknowledged and agreed to as of the date first written above
    for purposes of Section 8 only:



	
 

	
    COVANTA ENERGY CORPORATION

	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    By:


	
 
	
    /s/  Anthony
    J. Orlando

	
 
	
 
	
 
	
 

	
 
	
 
	
    

	
 
	
 
	
 
	
 

	
 
	
 
	
    Name: Anthony J. Orlando
	
 
	
 
	
 
	
 

	
 
	
 
	

    Title: President And Chief Executive Officer


	
 
	
 
	
 
	
 





 





	 	 	 	 	 	 	 
	
    RIDGEWOOD POWER MANAGEMENT LLC, as agent under the Agreement

	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
    By:
	
 
	
    Ridgewood Management Corporation, its Manager
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    By:


	
 
	
    /s/  Randall
    D. Holmes

	
 
	
 
	
 
	
 

	
 
	
 
	
    

	
 
	
 
	
 
	
 

	
 
	
 
	
    Name: Randall D. Holmes
	
 
	
 
	
 
	
 

	
 
	
 
	

    Title: President and Chief Executive Officer


	
 
	
 
	
 
	
 










4








 







    EXHIBIT A
    to First Amendment to Backup Certificate Agreement

    



 




    Exhibit A



 




    2008
    SECOND STANDARD CERTIFICATE DELIVERY SCHEDULE




    FIRST AMENDMENT TO BACKUP CERTIFICATE AGREEMENT



 


	 	 	 
	
 
	
 
	
    Indeck Maine Energy 11/08

    

	
 
	
 
	
    Forecast Certificate Delivery

    

	

    Delivery Month


	
 
	

    Constellation CPSA



	 

	

    July 2008


	
 
	
    0

	

    October/November 2008


	
 
	
    48,591

	

    January 2009


	
 
	
    89,955

	

    April 2009


	
 
	
    64,500










5