EX-10.3









    Exhibit 10.3



 




    FIRST
    AMENDMENT TO SELLERS OMNIBUS AGREEMENT



 



    This FIRST AMENDMENT TO SELLERS OMNIBUS AGREEMENT (this
    “Amendment”) is made as of November 11,
    2008, by and among Ridgewood Maine, L.L.C., a limited liability
    company formed under the laws of Delaware
    (“RM”), Indeck Energy Services, Inc., a
    corporation formed under the laws of Illinois
    (“IES”) and, solely as to Sections 2(e),
    6, 9(b), 7(d), 7(e) and 13 of the Agreement (as defined below),
    Ridgewood Renewable Power LLC, a Delaware limited liability
    company (the “Managing Shareholder”). RM, IES
    and the Managing Shareholder are collectively sometimes referred
    to herein as the “Parties.”



 




    RECITALS



 



    WHEREAS, the Parties are all of the parties to that
    certain Sellers Omnibus Agreement, dated as of August 19,
    2008, (the “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 “PSA”), by and among the
    parties thereto.



 



    WHEREAS, the parties to the PSA have agreed to certain
    amendments to the PSA pursuant to a First Amendment to Purchase
    and Sale Agreement, dated as of the date hereof (the
    “Amendment Agreement”), which amendment
    requires in part corresponding amendments to other documents,
    including the 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 preamble to the Agreement is amended to add
    Section 7(d) and Section 7(e) as additional Sections
    as to which the Managing Shareholder is signing the Agreement.



 



    2. RM and IES represent and warrant to one another that the
    representations and warranties of each set forth in
    Section 3 of the Agreement are true and correct as of the
    date of this Amendment.



 



    3. Section 7 of the Agreement is amended in its
    entirety to read as follows:



 



    7. Allocation of Proceeds; PSA Escrow.



 



    (a) In the event the transaction set forth in the PSA or an
    Alternate Definitive Agreement closes and IES participates
    therein by selling its IME Membership Interests, and
    notwithstanding anything in the IME Operating Agreement to the
    contrary, the proceeds of the transaction attributable to the
    sale of the IME Membership Interests shall be allocated between
    RM and IES and paid or utilized as set forth in this
    Section 7. The parties intend that such proceeds shall be
    disbursed promptly at the closing of such sale (the date of such
    disbursement being the “Disbursement Date”),
    except to the extent an Alternate Definitive Agreement provides
    for holdbacks, escrows or the like of a portion of the sale
    proceeds (the “Holdback”) and except in the
    event of a closing under the PSA, as provided in Section 7
    (c), Section 7 (d) and Section 7 (e). Unless an
    Alternate Definitive Agreement expressly provides otherwise, the
    portion of the Holdback attributable to the sale of the IME
    Membership Interests shall be not more than the product of
    (i) a fraction, in which the numerator is the gross
    proceeds receivable from the sale of IME Membership Interests
    pursuant to such Alternate Definitive Agreement, and the
    denominator is the aggregate gross proceeds receivable from the
    sale of all the assets sold pursuant to such Alternate
    Definitive Agreement (excluding the effect of any Holdbacks in
    each case), multiplied by (ii) the aggregate Holdback
    required under such Alternate Definitive Agreement. Sale
    proceeds subject to any Holdback which are allocated to the sale
    of the IME Membership Interests shall be distributed when and as
    provided in such Alternate Definitive Agreement. The proceeds of
    the transaction and any Holdback attributable to the sale of the
    IME Membership Interests shall be allocated among RM and IES and
    paid as follows:



 



    FIRST, to the payment of Transaction Costs (as defined below)
    attributable to the sale of the IME Membership Interests,
    allocated fifty-five percent (55%) from the proceeds otherwise
    to be received by RM and forty-five percent (45%) from the
    proceeds otherwise to be received by IES, which Transaction
    Costs will be estimated by the Managing Shareholder on the
    Disbursement Date, subject to later reallocation pursuant to
    Section 7(e) below;



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    SECOND, to RM and IES as the holders of the Senior Preferred
    Membership Units pro rata up to the fair market value of such
    units as of the Contribution Date as determined in accordance
    with Section 2 hereof;



 



    THIRD, all remaining proceeds will be paid fifty-five percent
    (55%) to RM and forty-five percent (45%) to IES.



 



    (b) As of the Contribution Date, the following amendment to
    Section 8.1(b) of the IME Operating Agreement shall become
    effective:



 



    (1) There shall be a new subsection (i) added to the
    IME Operating Agreement to read entirely as follows:



 



    “(i) FIRST, the Company shall distribute one hundred
    percent (100%) of the Net Cash Flow From Operations pro rata to
    the holders of Senior Preferred Membership Units until all such
    holders have received the full value of such units as determined
    in accordance with the Agreement dated as of August 19,
    2008 among the Members and, for certain limited purposes,
    Ridgewood Renewable Power LLC, as amended.”



 



    (2) Existing subsection (i) shall be renumbered as
    subsection (ii) and the word “FIRST” therein
    shall be amended to read “SECOND.”



 



    (3) Existing subsection (ii) shall be renumbered as
    subsection (iii) and the word “SECOND” therein
    shall be amended to read “THIRD.”



 



    (4) Existing subsection (iii) shall be renumbered as
    subsection (iv) and the word “THIRD” therein
    shall be amended to read “FOURTH.”



 



    (5) Existing subsection (iv) shall be renumbered as
    subsection (v) and the word “FOURTH” therein
    shall be amended to read “FIFTH.”



 



    (c) In the event that the transaction set forth in the PSA
    is consummated, each of RM and IES hereby agrees that, on the
    Disbursement Date, RM will receive and hold in escrow $2,500,000
    of the proceeds (the “Working Capital Holdback”) that
    otherwise would have been distributed to RM and IES in
    accordance with the Agreement on the basis of 45% for the
    account of IES and 55% for the account of RM for purposes of
    paying any amounts due to the Buyer (as defined in the PSA) in
    respect of the Net Working Capital Adjustment (as defined in the
    PSA) finally determined to be owing to the Buyer, if at all, in
    accordance with the PSA and of paying any Transaction Costs
    arising after the Disbursement Date. Any Net Working Capital
    Adjustment required to be paid to the Buyer under the PSA will
    be paid from the Working Capital Holdback (to extent of the
    amount available in the Working Capital Holdback), which
    payments will be allocated to RM and IES in amounts and
    percentages that would have the effect of reversing steps Third
    and Second in Section 7(a) of this Agreement. Any
    Transaction Costs arising after the Disbursement Date will also
    be paid from the Working Capital Holdback (to the extent of the
    amount available in the Working Capital Holdback), which
    payments will be allocated 45% for the account of IES and 55%
    for the account of RM. Once any such Net Working Capital
    Adjustment has been paid to the Buyer or it has been finally
    determined that no such Net Working Capital Adjustment is due to
    the Buyer and all Transaction Costs have been paid, RM will
    distribute any of the Working Capital Holdback not utilized as
    provided herein to RM and IES in accordance with their
    respective interests in the remaining Working Capital Holdback.
    To the extent that the aggregate of any payment due to the Buyer
    as a result of the Net Working Capital Adjustment and
    Transaction Costs paid from the Working Capital Holdback exceed
    the amount of the Working Capital Holdback, RM and IES will make
    such payments of the Net Working Capital Adjustment in amounts
    and percentages that would have the effect of reversing steps
    Third and Second in Section 7(a) of this Agreement.



 



    (d) In the event that the transaction set forth in the PSA
    is consummated, the Managing Shareholder shall cause Linwood
    0708 LLC (“Linwood”) to use commercially reasonable
    efforts to collect any amounts due with respect to any
    Pre-Closing REC Rights (as defined in the PSA) obtained by
    Linwood under the PSA and shall cause Linwood to pay forty-five
    percent (45%) of the net proceeds received by Linwood from the
    sale of any Pre-Closing REC Rights, after the payment of all
    commissions and other transaction expenses made to third parties
    (the “Net REC Proceeds”), to IES and to pay fifty-five
    percent (55%) of the Net REC Proceeds to RM. Except as set forth
    in this Section 7(d), Linwood shall have no obligation to
    sell or otherwise realize any value from any such Pre-Closing
    REC Rights, and RM and IES waive any right to contest or
    challenge any such sale or the amount of any Net REC Proceeds
    received in any such sale.



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    (e) In the event that the transaction set forth in the PSA
    is consummated, promptly after the completion of the Net Working
    Capital Adjustment and the receipt or payment by RM and IES of
    any payment due as a result of that Net Working Capital
    Adjustment, the Managing Shareholder shall recompute the
    allocation of Transaction Costs under step First in Section 7(a)
    of this Agreement, using the actual gross proceeds from the sale
    pursuant to the PSA, including any Net REC Proceeds received
    prior to the date of computation. In the event such
    recomputation results in a different allocation of Transaction
    Costs from those made in connection with the Disbursement Date,
    either RM or IES will promptly pay to the other the amount
    required to effect that correct reallocation of Transaction
    Costs resulting from the Managing Shareholder’s computation
    under this Section 7(e) which were not otherwise paid for
    as provided in Section 7(c).



 



    4. Pursuant to Section 5(a) of the Agreement, IES
    hereby consents to the modification and amendment of the PSA as
    set forth in the Amendment Agreement.



 



    5. Capitalized terms used and not otherwise defined herein
    shall have the meanings attributed thereto in the Agreement.
    Upon execution hereof, each reference in the Agreement to
    “this Agreement,” “hereby,”
    “herein,” “hereof” or words of similar
    import referring to the Agreement shall mean and refer to the
    Agreement as amended by this Amendment.



 



    6. Except as specifically amended hereby, all terms and
    provisions contained in the Agreement shall remain unchanged and
    in full force and effect. The 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.



 



    7. 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.



 



    8. This Amendment shall be governed and construed in
    accordance with the laws of the State of New York.



 




    [Signature
    Page Follows]



3









 







    [Signature
    Page to First Amendment to Sellers Omnibus Agreement]



 



    IN WITNESS WHEREOF, the Parties have executed this Amendment
    effective for all purposes as of the date first above written.



 



    RIDGEWOOD MAINE, L.L.C.



 


			
	 	    By: 
	
    Ridgewood Penobscot Management Corporation, Manager

	 
	 	    By: 
	
    /s/  Randall
    D. Holmes









    Name:     Randall D. Holmes



			
	 	    Title: 
	
    President




 



    INDECK ENERGY SERVICES, INC.



 


			
	 	    By: 
	
    /s/  Joseph
    M. Oskorep









    Name:     Joseph M. Oskorep



			
	 	    Title: 
	
    Vice President & Controller




 



    RIDGEWOOD RENEWABLE POWER, LLC,




    solely as to Sections 2(e), 6, 7(d), 9(b) and 13



 


			
	 	    By: 
	
    /s/  Douglas
    R. Wilson









    Name:     Douglas R. Wilson



			
	 	    Title: 
	
    Senior Vice President




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