Recs - exelon - 2007 (00073885.doc;2)

AGREEMENT FOR THE PURCHASE AND SALE OF RENEWABLE ENERGY CREDITS
This AGREEMENT FOR THE PURCHASE AND SALE OF RENEWABLE ENERGY CREDITS (“Agreement”) is made as of February 4, 2013 by and between Brick Township Board of Education
(“Seller”), and EDF Trading North America, LLC (“Buyer”). Seller and Buyer are sometimes referred
to individually as a “Party” and collectively as the “Parties”.
WHEREAS, the Parties desire to enter into this Agreement in order to set forth the terms and conditions relating to the renewable energy certificate purchase and sale transaction described below. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows: ARTICLE 1
DEFINITIONS
As used in this Agreement, the following defined terms have the meanings set forth below: “Applicable Standard” means the renewable portfolio standards enacted by the State of New
Jersey and set forth in Section 48:3-49 et seq. of the New Jersey Statutes Annotated and the
associated rules and regulations promulgated by the New Jersey State Board of Public Utilities,
including those regulations set forth in Sections 14:8-1.2 and 14:8-2 et seq. of the New Jersey
Administrative Code, as may be amended from time to time.
“Business Day” means a day on which Federal Reserve member banks in Houston, Texas are
open for business. A Business Day will open at 8:00 a.m. and close at 5:00 p.m. Houston, Texas
time.
“Confidential Information” means all oral and written information exchanged between the
Parties relative to the subject matter of this Agreement, including but not limited to the price, and
all other material terms hereof. Notwithstanding the foregoing, the following shall not constitute
Confidential Information: (a) information which was already in a Party’s possession on a non-
confidential basis prior to its receipt from the other Party; (b) information which is obtained from a
third person who, insofar as is known to the Party, is not prohibited from transmitting the
information to the Party by a contractual, legal or fiduciary obligation to the other Party; (c)
information which is or becomes publicly available through no fault of the Party; and (d)
information which is at any time independently developed by employees or consultants of a Party
who have not had access to Confidential Information in the possession of that Party.
“Deliver,” “Delivered” or “Delivery” means when the transfer of the RECs is properly recorded
with the Tracking System.
“Event of Default” means, with respect to each Party:
The failure of such Party to make payment as required under this Agreement (which Event of Default shall not include a delay in payment that is cured within three (3) Business Days of a demand for payment) or any other failure of performance by a Party of its material obligations under this Agreement (which Event of Default shall not include a delay in performance that is cured within five (5) Business Days of a demand for cure or other corrective action deemed satisfactory by the Performing Party in its sole discretion). is dissolved (other than pursuant to a consolidation, amalgamation or merger); becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights; or has a secured party take possession of all or substantially all of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter. The making by such Party of a materially incorrect or misleading representation or warranty under this Agreement. The failure of such Party to satisfy adequate assurance requirements set forth in Section 6.4 hereof. “Interest Rate” means a rate equal to two percent (2%) over the per annum rate of interest equal
to the prime lending rate as may from time to time be published in the Wall Street Journal under
“Money Rates”, provided such interest rate shall never exceed the maximum lawful rate permitted
by applicable law.
“RECs” means “Solar Renewable Energy Certificate” (as defined or described in and eligible
under the Applicable Standard) generated by a Renewable Generating Resource.
“Renewable Generating Resource” means a facility that is qualified as a “solar electric
generation facility” under and as defined or described in the Applicable Standard.
“Tracking System” means the Generation Attribute Tracking System (GATS) owned and
operated by PJM Environmental Information Services, Inc. for the creation, sale, transfer,
purchase, and retirement of renewable energy credits among various entities, as more specifically
described in the Generation Attribute Tracking System Operating Rules published by PJM
Environmental Information Services, Inc.
“Vintage” means, with respect to any RECs, the applicable period during which the generation of
such RECs was required to have occurred which, for purposes of this Agreement, shall be: June 1,
2012 through May 31, 2013 (“Reporting Year 2013”).
ARTICLE 2
PURCHASE AND SALE OF RECS
Sale. Subject to the terms and conditions of this Agreement, Seller shall sell to Buyer 150 RECs
having a Reporting Year 2013 Vintage (the “Contract RECs”).
Purchase. Subject to the terms and conditions of this Agreement, Buyer shall purchase the
Contract RECs at a unit price of $117.50 per Contract REC for a total purchase price of Seventeen
Thousand Six Hundred Twenty Five Dollars ($17,625.00) (the “Purchase Price”).
ARTICLE 3
TRANSFER AND TITLE
Title/Transfer/Delivery. On or prior to July 15, 2013, Seller shall cause the Contract RECs to be
Delivered to the Buyer’s account with the Tracking System.
Further Assurances. The Parties shall cooperate fully and assist each other to obtain any and all
required approvals and/or forms which may be required to effectuate the transfer of the Contract
RECs to the Buyer’s account with the Tracking System in accordance with this Agreement, and to
comply with any and all other regulatory obligations as required by the Tracking System. Title
and interest in the Contract RECs shall transfer upon Delivery to the Buyer’s account with the
Tracking System.
Responsibility. Each Party shall be responsible for all costs, fees, brokerage commissions, taxes,
and charges of whatever kind and amount that such Party incurs in connection with the
performance of its respective obligations under this Agreement.
Cooperation. Upon notification that any transfer contemplated by this Agreement will not be
completed, the Parties shall promptly confer and shall cooperate in taking all reasonable actions
necessary to cure any defects in the proposed transfer, so that the transfer can be completed.
ARTICLE 4
BILLING AND PAYMENT
Invoice. Following each Delivery by Seller of any Contract RECs in accordance with Section 2.1,
Seller shall provide an invoice to Buyer reflecting the applicable portion of the Purchase Price
associated with such Contract RECs so Delivered (the “Invoice”). The Invoice may be furnished
to Buyer by facsimile transmission or in any other manner permitted pursuant to Section 7.1.
Payment. Within five (5) Business Days of the later of (x) Buyer’s receipt of the Invoice and (y)
Buyer’s receipt of confirmation that the applicable Contract RECs have been Delivered to the
Buyer’s account with the Tracking System, Buyer shall pay the applicable portion of the Purchase
Price to Seller. All payments made under this Agreement shall be made in immediately available
United States Dollars by electronic transfer to the following accounts:
Seller: Brick Township Board of Education Bank: [______] Bank ABA: [______] Account Number: [______] Netting. If Seller and Buyer are each required to pay any amounts in respect of purchases/sales
hereunder or under any other contracts between the Parties on the same day, then, upon notice
from one Party to the other, such amounts with respect to each Party shall be aggregated and the
Parties shall discharge their obligations to pay through netting, in which case the Party, if any,
owing the greater aggregate amount shall pay to the other Party the difference between the
amounts owed.
Late Payment. If either Party fails to remit any amount payable by it when due, interest on such
unpaid amount shall accrue daily at the Interest Rate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties. Each Party represents and warrants to the other Party,
as of the date of this Agreement and as of each Delivery of the Contract RECs and payment in
respect of the Purchase Price that:
It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; It has the corporate authority and power to execute, deliver and perform the Agreement and enter into any transaction contemplated hereby; Such execution, delivery and performance of this Agreement have been duly authorized and do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; There is no pending or (to its knowledge) threatened litigation, arbitration or administrative proceeding that materially adversely affects its ability to perform under this Agreement. It is an “Eligible Contract Participant” as defined in Section 1a(18) of the Commodity Exchange Act, as amended, 7 U.S.C. § 1a(18), and it is a “forward contract merchant” and this Agreement is a “forward contract” within the meaning of the United States Bankruptcy Code. It is not relying upon any advice, reports, analyses, or representations of the other Party other than those expressly set forth in this Agreement or any written guarantee of the obligations of such other Party, and the other Party has not given to it any assurance or guarantee as to the expected financial performance or result of this transaction, and it has entered into this transaction as principal and for its own account (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of, and the ability to assume, the material terms and risks of the same, and has made its trading and investment decisions (including regarding the suitability thereof) based upon its own judgment and any advice from such advisors as it has deemed necessary. This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to bankruptcy, reorganization, and similar laws affecting creditors’ rights generally and to general principals of equity (regardless whether considered in a proceeding in equity or at law). Warranties of Title; Validity. Seller warrants contemporaneously with each Delivery of
Contract RECs made pursuant to this Agreement that (a) Buyer will have good and marketable
title to such Contract RECs, (b) such Contract RECs are not subject to specific restrictions on their
sale or transfer, (c) such Contract RECs are of the type and reporting year as set forth in this
Agreement and can be used for compliance with the Applicable Standard, (d) Seller has the power
to sell such Contract RECs, (e) such Contract RECs are Delivered free from all liens, claims, security interests, encumbrances and other defects of title arising prior to Delivery and (f) such Contract RECs have not otherwise been sold, retired, claimed, represented as part of any electricity output or sales, or otherwise used to satisfy any renewable energy, greenhouse gas or other emissions or other environmental attribute obligation elsewhere under any standard, marketplace or jurisdiction. Limitation of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 5.2,
SELLER MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED
WITH RESPECT TO THE CONTRACT RECS DELIVERED PURSUANT TO THIS
AGREEMENT, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR ANY OTHER MATTER.
Survival. This Article 5 shall survive expiration or termination of this Agreement for a period of
three (3) years following the expiration or termination of this Agreement.
ARTICLE 6
EVENTS OF DEFAULT; REMEDIES
Events of Default. If an Event of Default occurs with respect to either Party (the “Defaulting
Party”) at any time during the term of this Agreement, the other Party (the “Performing Party”)
may (a) upon two (2) Business Days’ written notice to the Defaulting Party, terminate this
Agreement, (b) suspend performance or withhold any payments or transfers of RECs due in
respect of this Agreement to the extent of its damages pursuant to this Article, (c) exercise its
rights under Section 6.2 of this Agreement, and (d) exercise such other remedies as may be
available at law or in equity or as otherwise provided in this Agreement including an action for
damages (except as limited by Section 6.3) .
Termination Payment. In the event the Performing Party terminates this Agreement in
accordance with Section 6.1 above, the Performing Party shall in good faith calculate its Gains,
Losses, and Costs resulting from the termination of this Agreement, aggregate such Gains, Losses
and Costs with respect to all terminated transactions and any other amounts due under this
Agreement into a single net amount (the “Termination Payment”), and then notify the Defaulting
Party of the Termination Payment owed or owing. The Termination Payment shall be due to or
due from the Performing Party as appropriate. Payment of the Termination Payment shall be due
within three (3) Business Days after the Defaulting Party’s receipt of notice of the Termination
Payment. The Performing Party may from time to time set off any or all amounts which the
Defaulting Party owes to it against any or all amounts which the Performing Party owes to the
Defaulting Party (in either case, under any agreement and whether or not then due), provided that any
amount not then due which is included in such set-off shall be discounted to present value as
determined by the Performing Party in a commercially reasonable manner.
For purposes of this Section, the following terms apply: “Costs” means, with respect to the Performing Party, brokerage fees, commissions and other
similar third party transaction costs and expenses reasonably incurred by the Performing Party
either in terminating any arrangement pursuant to which it has hedged its obligations or entering
into new arrangements which replace this Agreement, and all reasonable attorneys’ fees and legal
costs incurred by the Performing Party in connection with the termination of this Agreement.
“Gains” means, with respect to the Performing Party, an amount equal to the present value of the
economic benefit, if any, (exclusive of Costs) to it resulting from the termination of this
Agreement, determined in a commercially reasonable manner.
“Losses” means, with respect to the Performing Party, an amount equal to the present value of the
economic loss, if any, (exclusive of Costs) to it resulting from the termination of this Agreement,
determined in a commercially reasonable manner.
Limitations of Liability. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE
ESSENTIAL PURPOSES HEREOF. THE REMEDIES AND MEASURES OF DAMAGES SET
FORTH IN THIS ARTICLE 6 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES
AVAILABLE TO THE PARTIES HEREUNDER. THE PARTIES CONFIRM AND AGREE
THAT UNDER THIS AGREEMENT, NO PARTY SHALL BE REQUIRED TO PAY OR BE
LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR
INDIRECT DAMAGES, LOST PROFIT OR BUSINESS INTERRUPTION DAMAGES, BY
STATUTE, IN TORT, CONTRACT OR OTHERWISE. TO THE EXTENT ANY DAMAGES
REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT
AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION
OF THE HARM OR LOSS.
Adequate Assurance. Should either Party have reasonable grounds to believe that the
creditworthiness of the other Party has become unsatisfactory or the ability of the other Party to
perform its obligations under this Agreement has become impaired, then the dissatisfied Party (the
“Requesting Party”) may require assurance of the other Party’s ability to perform any obligation
hereunder. Such assurance may include (i) posting of a letter of credit in favor of the Requesting
Party by an issuing bank reasonably acceptable to the Requesting Party, (ii) posting of cash
collateral with the Requesting Party, or (iii) providing other security reasonably acceptable to the
Requesting Party.
Waiver of Immunity. Each Party waives, to the fullest extent permitted by applicable law, with
respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity
on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court,
(iii) relief by way of injunction or order for specific performance or recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any
judgment to which it or its revenues or assets might otherwise be entitled in any suit, action, or
proceedings relating to any dispute arising out of or in connection with this Agreement.
Survival; Term. This Article 6 shall survive any expiration or termination of this Agreement.
This Agreement shall be effective as of the date first above written and shall remain effective until
the Delivery of the Contract RECs and Seller’s receipt of the Purchase Price, or upon the
termination of this Agreement pursuant to Article 6, except that, as set forth herein, certain terms
will remain effective after termination.
ARTICLE 7
Methods. All notices, invoices, other formal communications which either Party may give to the
other under or in connection with this Agreement shall be in writing and shall be sent by any of the
following methods: hand delivery; reputable overnight courier; certified mail, return receipt
requested; or, with respect to communications other than payments, by facsimile transmission.
The communications shall be sent to the following addresses, and shall be effective when received:
EDF Trading North America, LLC
4700 West Sam Houston Pkwy N.
Suite 250
Houston, TX 77041
Attn: Contract Administration
Phone: 281-781-0333
Facsimile: 281-653-1454
Email:
With an additional copy, if applicable, to the following: Attn.: Power Accounting Phone: 281-653-1683 Facsimile: 281-653-1033 Email: [email protected] Attn.: Confirmation Department Phone: 281-653-1683 Facsimile: 281-653-1033 Brick Township Board of Education
11 Hendrickson Blvd.
Brick, NJ 08724
Attn: Pam Conner
Phone: 732-785-3000 ext. 1072
Facsimile: [___-___-____]
Email: [email protected]
ARTICLE 8
GENERAL PROVISIONS
Entire Agreement, Amendments and Counterparts. The terms of this Agreement constitute
the entire agreement between the Parties with respect to the matters set forth in this Agreement and
may be changed only by written agreement executed after the date hereof by the Parties.
No Waiver. No waiver by either Party of any one or more defaults by the other Party in the
performance of any of the provisions of this Agreement shall operate or be construed as a waiver
of any other default or defaults whether of a like kind or different nature. Any delay, short of the
maximum statutory period of limitation, in asserting or enforcing any right under this Agreement shall not be deemed a waiver of such right. Confidentiality. Except as provided in this Article 8, neither Party shall publish, disclose, or
otherwise divulge Confidential Information to any person at any time during or after the term of
this Agreement, without the other Party’s prior express written consent. Each Party shall permit
knowledge of and access to Confidential Information only to those of its affiliates, attorneys,
accountants, representatives, agents and employees who have a need to know related to this
Agreement and agree to keep such information confidential. This Section 8.3 shall survive for a
period of one (1) year following the expiration or termination of this Agreement.
Governmental Disclosure. If required by any law, statute, ordinance, decision, order or
regulation passed, adopted, issued or promulgated, or if requested by a court, governmental agency
or authority having jurisdiction over a Party, that Party may release Confidential Information, or a
portion thereof, to the court, governmental agency or authority, as required or requested, and a
Party may disclose Confidential Information to accountants in connection with audits, provided
that, if practicable, such Party has notified the other Party of the required disclosure, such that the
other Party may attempt (if such Party so chooses) to cause that court, governmental agency,
authority or accountant to treat such information in a confidential manner and to prevent such
information from being disclosed or otherwise becoming part of the public domain.
Governing Law. This Agreement shall be governed by, construed and enforced in accordance
with the law of the State of New York without regard to principles of conflict of laws.
Change in Law. If, prior to the Delivery of the Contract RECs , any statutes, rules, or regulations
are enacted, amended or revoked which have the effect of (a) changing the transfer and sale
procedures set forth in this Agreement so that the implementation of this Agreement becomes
impossible or impracticable, (b) making this Agreement illegal or unenforceable, or (c) eliminating
the existence of the Contract RECs, the Parties hereto agree to negotiate in good faith to amend
this Agreement to conform with such new statutes, regulations, or rules in order to maintain the
original intent of the Parties under this Agreement. However, in no event will a change in law
which changes in any respect the value of the Contract RECs, have any effect on the obligations of
the Parties to purchase and sell the Contract RECs on the terms and at the Purchase Price set forth
in this Agreement. If the Parties are unable, despite such good faith efforts, to reform this
Agreement within fifteen (15) Business Days following commencement of such negotiations,
either Party may terminate this Agreement with no further payment or performance obligations
except for any such obligations that have accrued prior to such termination.
Recording. The parties agree that each Party may electronically record all telephone
conversations with respect to this Agreement between their respective employees, without any
special or further notice to the other Party. Each Party shall obtain any necessary consent of its
agents and employees to such recording. The Parties agree not to contest the validity or
enforceability of telephonic recordings entered into in accordance with the requirements of this
Agreement. However, nothing herein shall be construed as a waiver of any objection to the
admissibility of such evidence.
Headings. The Article and section titles in this Agreement are only for purposes of convenience
and do not form a part of this Agreement and will not be taken to qualify, explain or affect any
provision thereof.
Assignment. Neither Party shall assign this Agreement or its rights hereunder without the prior
written consent of the other Party, which consent shall not be unreasonable withheld, conditioned,
or delayed; provided, however, either Party may, without the consent of the other Party (and
without relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber or assign this
Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other
financial arrangements, (ii) transfer or assign this Agreement to an affiliate of such Party which
affiliate’s creditworthiness is equal to or higher than that of such Party, or (iii) transfer or assign
this Agreement to any person or entity succeeding to all or substantially all of the assets whose
creditworthiness is equal to or higher than that of such Party; provided, however, that in each case,
any such assignee shall agree in writing to be bound by the terms and conditions hereof and so
long as the transferring Party delivers such tax and enforceability assurance as the non-transferring
Party may reasonably request.
Counterparts. This Agreement may be executed in one or more counterparts and by different
Parties in separate counterparts, each of which will be deemed an original, but all of which will
together constitute one instrument. The delivery of an executed counterpart to this Agreement by
electronic means, including via email, shall be effective as the delivery of a manually executed
counterpart.
IN WITNESS WHEREOF, the Parties hereto made and executed this Agreement, signed by their duly authorized officers or individuals, as of the day and year first above written. EDF TRADING NORTH AMERICA, LLC
TOWNSHIP
EDUCATION

Source: http://mms.brickschools.org/Portals/1/MEETINGS/2013-02-21/BA/edf.pdf