AMENDMENT TO TRANSACTION DOCUMENTS
This Amendment to Transaction Documents (the "Agreement") is made as
of the 31st day of May, 1997, between and among GSF Energy, L.L.C., a
Delaware limited liability company and successor by merger to the interest
of GSF Energy, Inc. ("GSF"), Brea Power Partners, L.P., a Delaware limited
partnership (the "Partnership"), and Ridgewood Electric Power Trust I, a
Delaware business trust ("Ridgewood") with respect to the following
Recitals:
WHEREAS, the Partnership was formed as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act pursuant to a Certificate
of Limited Partnership of the Partnership, as filed in the office of the
Secretary of State of the State of Delaware on October 12, 1994, and an
Agreement of Limited Partnership of the Partnership dated as of October 12,
1994 (the "Partnership Agreement") for the purpose of acquiring from GSF an
approximately 5 MW landfill gas fired electrical generating facility
located in the space above the Olinda/Olinda Alpha sanitary landfill in
Orange County, California (the "Facility");
WHEREAS, the original partners in the Partnership were Brea Power (I),
Inc., a Delaware corporation and wholly-owned subsidiary of GSF ("Brea"),
as sole general partner, and GSF and Ridgewood Electric Power Trust I, a
Delaware business trust ("Ridgewood"), as limited partners;
WHEREAS, in furtherance of the purposes for which the Partnership was
organized, the Partnership and GSF and, in certain cases third parties
entered into the following agreements:
(i) a certain Contribution Agreement dated as of November 29, 1994 by
and between GSF and the Partnership, pursuant to which GSF agreed to
contribute certain assets to the Partnership (the "Contribution
Agreement");
(ii) a certain Bill of Sale dated as of November 29, 1994 by and
between GSF and the Partnership pursuant to which GSF assigned certain
property to the Partnership (the "Bill of Sale");
(iii) a certain Assignment and Assumption Agreement dated as of
November 19, 1994 between GSF and the Partnership pursuant to which the
Parallel Generation Agreement (the "Power Contract") dated as of December
28, 1982 between GSF and Southern California Edison Company ("SCE") was
assigned to the Partnership (the "Power Contract Assignment");
(iv) a certain Consent to Assignment dated as of November 29, 1994
between and among GSF, the Partnership and SCE pursuant to which SCE
consented to the Power Contract Assignment (the "SCE Consent");
(v) a certain Partial Assignment and Assumption Agreement dated as of
November 29, 1994 between GSF and the Partnership (the "Gas Lease
Assignment") pursuant to which GSF assigned to the Partnership, and the
Partnership assumed, certain rights and obligations of GSF under a certain
Amended and Restated Gas Lease Agreement dated as of December 14, 1993 by
and between Orange County, California ("Orange County") and GSF (the "Gas
Lease");
(vi) a certain Modification No. 1 to the Gas Lease dated November 29,
1994 between GSF, the Partnership and Orange County ("Modification No. 1")
pursuant to which Orange County consented to the Gas Lease Assignment;
(vii) a certain Gas Sale and Purchase Agreement dated as of November
29, 1994 by and between GSF and the Partnership (the "Gas Sale Agreement")
pursuant to which GSF agrees to sell and the Partnership agrees to purchase
gas to be used by the Facility to generate electricity; and
(viii) a certain Operating, Maintenance and Administrative Services
Agreement dated as of November 29, 1994 by and between GSF and the
Partnership (the "O&M Agreement");
WHEREAS, in connection with the formation of the Partnership, GSF and
Ridgewood entered into a certain Support Agreement dated as of November 29,
1994 pursuant to which GSF and Ridgewood undertook certain obligations with
respect to their respective interests in the Partnership (the "Support
Agreement");
WHEREAS, the agreements and documents referred to in clauses (i)
through (viii) of the third WHEREAS clause of this Agreement and the
Support Agreement are hereinafter collectively referred to as the
"Transaction Documents";
WHEREAS, pursuant to a certain Acquisition Agreement dated as of May
31, 1997 (the "Acquisition Agreement") by and between GSF and Olinda,
L.L.C., a Delaware limited liability company which is affiliated with
Ridgewood ("Olinda"), GSF has contracted to sell the stock of Brea and the
limited partnership interest in the Partnership to Olinda;
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to Olinda's obligations to close the transactions contemplated by
the Acquisition Agreement;
WHEREAS, the parties are entering into this Agreement in order to
induce Olinda to close the transactions contemplated by the Acquisition
Agreement.
NOW therefore, the parties agree as follows:
1. Contribution Agreement. There are no amendments or modifications of
the Contribution Agreement and the Contribution Agreement continues in full
force and effect as written.
2. Bill of Sale. There are no amendments or modifications of the Bill of
Sale, and the Bill of Sale continues in effect as written; subject,
however, to the reconveyance by the Partnership to GSF of certain assets
described in the Bill of Sale pursuant to a certain Assignment and
Assumption of Contracts executed by the Partnership and GSF in connection
with the Acquisition Agreement.
3. Power Contract Assignment. There are no amendments or modifications
of the Power Contract Assignment, and the Power Contract Assignment
continues in full force and effect as written.
4. SCE Consent. There are no amendments or modifications of the SCE
Consent, and the SCE Consent continues in full force and effect as written.
5. Gas Lease Assignment. There are no amendments or modifications of the
Gas Lease Assignment, and the Gas Lease Assignment continues in full force
and effect as written.
6. Modification No. 1. There are no amendments or modifications of the
Modification No. 1, and Modification No. 1 continues in full force and
effect as written.
7. Gas Sale Agreement.
(a) Article I Term is hereby amended by deleting Section 1.01 in its
entirety and by substituting a new Section 1.01 in lieu thereof as follows:
"Section 1.01. This Agreement shall be effective from the
Effective Date and, unless terminated earlier as provided herein, shall
continue and remain in full force and effect until the later to occur of
(i) December 31, 2004 or (ii) the expiration of the stated term of the
Power Contract."
(b) Article II - Certain Definitions is hereby amended by deleting
the phrase "receiving and processing deliveries of Gas" from the second and
third lines of the definition of Buyer's Facility set forth in Section
2.01(b).
(c) Article III - Purchase and Sale is hereby amended by deleting the
second paragraph thereof in its entirety.
(d) Article IV - Delivery is hereby amended by deleting Section 4.01
in its entirety and inserting a new Section 4.01 in lieu thereof as
follows:
"Section 4.01. All Gas delivered by Seller to Buyer
pursuant to this Agreement shall be delivered at the point which is
immediately upstream of the 3" - Flange Stub with Blind Flange on the pipe
labeled 3" - P-135A-1A and which is shown as the "Delivery Point" on the
engineering drawing attached hereto as Schedule 1 (the "Delivery Point").
Delivery of Gas hereunder shall commence upon the Effective Date."
Further, any other references to "Delivery Point" which are set
forth on the engineering drawings attached to the Gas Sale Agreement as
Exhibit A are deleted in their entirety.
(e) Article V - Operation and Maintenance is hereby amended by
deleting the words "GSF Energy Inc." in the third line of Section 5.02 and
inserting the words "Ridgewood Power Management Corporation" in lieu
thereof.
(f) Article V - Operations and Maintenance is hereby amended by
adding a new Section 5.04 as follows:
Section 5.04. In the event that Seller's monthly Capacity
Factor falls below 85%, the Seller agrees that Buyer may take or may cause
the Seller to take such steps as Buyer may reasonably conclude are
necessary or appropriate to restore and maintain the ability of Seller's
Facility to provide a Monthly Capacity Factor of 100%. Seller agrees to
cooperate with Buyer in such manner as Buyer requests in order to
facilitate the improvements in Seller's Facility contemplated by this
Section 5.04, and Seller agrees that to the extent that Buyer incurs any
out-of-pocket costs in connection with any such improvements, then Buyer
may offset any such costs against amounts otherwise due Seller hereunder."
(g) Article VI - Price is hereby amended by deleting the second
paragraph of Section 6.01 in its entirety and by adding the following
sentence at the end of the first paragraph of Section 6.01:
"In addition, from and after January 1, 1997 the Buyer shall
pay the Seller an additional amount for purchase of gas equal to $12,500
per month. Commencing on January 1, 1998 and for each subsequent calendar
year, such monthly payment shall be escalated at 3.7% over the amount paid
in the corresponding month in the preceding calendar year."
(h) Article X - Default, Termination and Liability is hereby amended
by deleting Sections 10.01, 10.02, 10.03, 10.04 and 10.05 in their
entirety.
(i) Article XII - Miscellaneous is hereby amended by (i) deleting
clause (i) of Section 12.01 in its entirety, and (ii) substituting the
following addresses for the Buyer and Seller in Section 12.04(a):
To Buyer: Brea Power Partners, L.P.
c/o Ridgewood Power Management Corporation
947 Linwood Avenue
Ridgewood, New Jersey 07450
Phone: (201) 447-9000
Facsimile:(201) 447-0474
To Seller:GSF Energy, L.L.C.
3321 Bee Caves Road
Suite 300
Austin, TX 78746
Attn: President
Phone: (512) 347-1441
Facsimile:(512) 347-1551
(j) The Gas Sale Agreement, as amended and modified by the foregoing
provisions of this Paragraph 7, continues in full force and effect.
8. The O&M Agreement is hereby terminated and is of no further force and
effect (except to the extent specifically provided therein).
9. The Support Agreement is hereby amended as follows:
(a) Section 1 - Defined Terms shall be amended by deleting the term
"Ridgewood Interest Purchase Price" in its entirety and substituting a new
definition of, "Ridgewood Damage Amount." as follows:
"Ridgewood Damage Amount shall have the meaning given such term
in Section 3(b) hereof."
(b) Subsection 2(a)(iii) is hereby amended by deleting such
subsection in its entirety and substituting the following in lieu thereof:
"(iii) GSF shall pay liquidated damages to Ridgewood in
accordance with the provisions of Section 3 hereof."
(c) Section 3 is deleted in its entirety and the following
substituted in lieu thereof:
"Ridgewood Damage Amount
(a) Ridgewood may require GSF to pay damages to Ridgewood
in an amount equal to the Ridgewood Damage Amount calculated in accordance
with Section 3(b) hereof in the following situations
(i) GSF has notified Ridgewood of its election to
terminate its Dissolution Payment obligation in accordance with Section
2(c) hereof; or
(ii) The Gas Supplier has fully expended the Maximum
Liability Cap.
Payment of the Ridgewood Damage Amount must be made
within 30 days after the occurrence of either of such events.
(b) The Ridgewood Damage Amount shall be an amount
necessary to make the sum of the discounted present values, discounted to
November 29, 1994, of the following three items equal to Three Million One
Hundred Thousand Dollars ($3,100,000):
(i) The Ridgewood Damage Amount,
(ii) Distributions made to Ridgewood (including
successors and assigns in accordance with Article V of the Partnership
Agreement); and
(iii)Distribution payments made to Ridgewood (if any).
For purposes of calculating the Ridgewood Damage
Amount, the applicable discount rate shall equal 1.17% per month, and cash
payment shall be deemed to have occurred at the end of the month in which
received."
(c) Section 4 - GSF Call Option is hereby amended by
deleting such section in its entirety.
(d) Section 6 - Notice of Claims continues in full force
and effect as written notwithstanding the termination of the Operating
Agreement upon the closing of the Acquisition Agreement.
(e) Section 7 - Notices is hereby amended by deleting the
address for GSF and substituting the following address in lieu thereof:
To GSF: GSF Energy, L.L.C.
3321 Bee Caves Road, Suite 300
Austin, Texas 78746
Attn: President
Tel: (512) 347-1441
Fax: (512) 347-1551
(f) The Support Agreement, as amended and modified by the
foregoing provision of this Paragraph 9, continues in full force and
effect.
10. The amendments, modifications, and termination of the Transaction
Documents described in the foregoing provision of this Agreement shall
become effective on the closing of the Acquisition Agreement.
11. The provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. This
Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
any choice or conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction.
In witness whereof, the parties have executed this Agreement as of the date
first above written.
GSF ENERGY, L.L.C.
By: Ecogas Corporation, as Manager
By: /s/ Jerrel Branson
Name: Jerrel Branson
Title: President
BREA POWER PARTNERS, L.P.
By BREA POWER (I), INC. - General Partner
(with respect to Transaction Documents other than
the Support Agreement)
By: /s/ Jerrel Branson
Name: Jerrel Branson
Title: President
RIDGEWOOD ELECTRIC POWER TRUST I
By RIDGEWOOD POWER CORPORATION
(with respect to the Support Agreement only)
By: /s/ Mary Louise Olin
Name: Mary Louise Olin
Title: Vice President
Each of the undersigned, in its capacity as a limited partner of Brea Power
Partners, L.P. hereby confirms that it approves and ratifies the execution
of this Agreement by Brea Power (I) Inc. as general partner, acting on
behalf of the Brea Power Partners, L.P.
GSF ENERGY, L.L.C.
By: /s/ Jerrel Branson
Name: Jerrel Branson
Title: President
Ridgewood Electric Power Trust I
By: Ridgewood Power Corporation,
its Managing Shareholder
By: /s/ Mary Louise Olin
Name: Mary Louise Olin
Title: Vice President