DC10067.pdf -- Converted by SEC Publisher 4.2, created by BCL Technologies Inc., for SEC Filing








	
EXHIBIT 10.1







SECOND AMENDMENT TO


AMENDMENT, CONSENT AND FORBEARANCE AGREEMENT


     THIS SECOND AMENDMENT (this “Amendment”) TO AMENDMENT, CONSENT AND FORBEARANCE
AGREEMENT is made and entered into on the 31st day of January, 2011 (the “Effective Date”), by and among THERMO NO. 1 BE-01, LLC, a Delaware limited
liability company (the “Company”), THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as Administrative Lender (the “Administrative Lender”), THE PRUDENTIAL INSURANCE COMPANY OF AMERICA and ZURICH AMERICAN INSURANCE COMPANY (the “Lenders”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent (the “Administrative Agent”) and Collateral Agent (the “Collateral
Agent”), and (for the limited purposes set out in Sections 4, 6, 8, 10, 11, 13 and 14 of the Forbearance Agreement, as defined below and amended hereby) Raser Technologies, Inc. (“Raser”).



	
WITNESSETH:







     WHEREAS, the Company, the Administrative Agent, the Lenders and the Administrative Agent are parties to that certain Credit Agreement dated as of August 31, 2008 (as heretofore
amended, the “Agreement”) entered into for the purpose of financing certain costs for the design, development, construction, installation,
financing, testing, start-up and commissioning of the Facility; 


     WHEREAS, the Parties entered into that certain Amendment, Consent and Forbearance Agreement dated as of July 9, 2010, as amended by the First Amendment to Amendment, Consent and
Forbearance Agreement, dated as of October 26, 2010 (as so amended the “Forbearance Agreement”); 


     WHEREAS, the Company has requested that the Administrative Lender consent to the extension of the date by which the Company and Raser agree to use their commercially reasonable best
efforts to effect a Qualifying Sale, as defined in the Forbearance Agreement; 


     WHEREAS, the Administrative Lender has directed the Administrative Agent and the Collateral Agent to enter into this Amendment; 


     WHEREAS, Raser is entering into this Amendment for the limited purposes set out in the Forbearance Agreement; and 


     WHEREAS, the Company, the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent desire to amend the Forbearance Agreement in certain respects as set
forth herein. 


     NOW, THEREFORE, in consideration of the agreements and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are 











hereby acknowledged, the parties hereto agree as follows: 


     Section 1. Defined Terms. Any capitalized term used in this Amendment but not otherwise defined in this Amendment shall have the meaning
ascribed to such term in the Forbearance Agreement and the Agreement, including by reference to Schedule Z.


     Section 2. Amendment of Section 4 of the Forbearance Agreement.  Section 4 of the Forbearance Agreement is hereby deleted and replaced as
follows:


     Section 4. Forbearance. The Company and Raser acknowledge the existence of the Specified Defaults, including the failure of Facility
Substantial Completion and Final Completion to be achieved. Subject to the terms and conditions set forth herein, throughout the period commencing on the date of this Agreement and ending on the applicable date set forth in the first sentence of
Section 6 (the “Forbearance Period”), the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent (acting at the written direction of the
Administrative Lender) hereby agree to forbear from exercising any and all available default rights and remedies under the Agreement, the Notes. the Account and Security Agreement, the deeds
of trust creating the Liens described in Article XI of the Account and Security Agreement, the Class B Investors Pledge Agreement
and the Special Interest Investors Pledge Agreement and at applicable law as the result of the occurrence and continuance of the Specified Defaults. The Company and Raser acknowledge and
agree that the foregoing agreement to forbear exercising such default rights and remedies throughout the Forbearance Period shall not constitute a waiver of the Specified Defaults or a waiver of any other Credit Agreement Event of Default or Credit
Agreement Default that is not waived by Section 3 of this Forbearance Agreement, and that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent expressly reserve all such default rights and remedies. The Company
and Raser further acknowledge and agree that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent may exercise any and all such default rights and remedies at any time following the earliest to occur of (a) the
expiration of the Forbearance Period, (b) the occurrence during the Forbearance Period of any additional Credit Agreement Default or Credit Agreement Event of Default, other than those potential Credit Agreement Defaults or Credit Agreement Events
of Default expressly waived in Section 3 of this Forbearance Agreement (including, without limitation, any default under this Forbearance Agreement), (c) any of MLE, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLP”), UTC, the
Company, Raser or any of their respective Affiliates takes any action against the Facility, any other collateral for the Advances (including, without limitation, the additional collateral described in Article XI of the Account and Security Agreement), the Company or Raser or any of its Affiliates which the Administrative Lender believes would materially adversely affect the interests of the Lenders, the Administrative
Lender, the Administrative Agent or the Collateral Agent, and (d) the aggregate balance in the Security Accounts under the Account and Security Agreement being less than $175,000 at any time from February 1 through February 24, 2011 or less than
$250,000 at any time thereafter (any of the events described in clause (a), (b), (c) or (d) a “Forbearance Termination Event”).


     Section 3. Amendment of Section 6 of the Forbearance Agreement.  Section 6 of the Forbearance Agreement is hereby deleted and replaced as
follows:











     Section 6. Sale of the Facility or the Equity Interests in the Company. The Company and Raser hereby agree to use their commercially
reasonable best efforts to sell, not later than March 15, 2011 (provided, that such date shall be extended to April 15, 2011 if, not later than March 15, 2011, the Company and Raser deliver
to the Administrative Lender a letter of intent, which is not subject to any financing or similar condition or contingency, with respect to a Qualifying Sale or other transaction that will result in the
Lenders receiving the cash payments provided for in this Section 6), the Facility and the other collateral described in Article XI
of the Account and Security Agreement as an entirety or, in the case of Raser, to use its commercially reasonable best efforts to cause the Subsidiaries of Raser that are the owners of 100%
of the Equity Interests in the Company to sell all such Equity Interests as an entirety; provided, that less than all the Facility and such other collateral, or less than all such Equity
Interests, may be sold in a transaction that otherwise qualifies as a Qualifying Sale (as defined below) so long as the Lenders receive a $6,750,000 cash payment and all other requirements of the fourth sentence of this Section 6 are satisfied.
Any such sale shall be solely for cash in Dollars and shall be made to a solvent Person that (a) is not an Affiliate of the Company, Raser, any Member in the Company, MLE, MLP, UTC or any other Person involved in the operation or development of the
Project, (b) is not described in Section 1603(g) of ARRA, or described as being ineligible to receive payments under Section 1603 of ARRA or under any guidance, terms and conditions, frequently asked questions or other materials issued by the
Department of the Treasury under Section 1603 of ARRA (“Treasury Guidance”), (c) has the requisite experience and resources to operate the Facility, and (d) agrees to operate the
Facility continuously as “specified energy property” as such term is defined in Section 1603(d) of ARRA, and under any Treasury Guidance, through at least March 31, 2014 (a sale to any such Person meeting the foregoing requirements being a
“Qualifying Sale”). Provided that no Forbearance Termination Event has occurred and is continuing at the time of any Qualifying Sale, the Lenders and the Administrative Lender
agree to instruct the Collateral Agent in writing at such time to release its Liens under the Financing Documents in respect of the Facility and the other collateral described in Article XI
of the Account and Security Agreement, or in respect of the Equity Interests in the Company, as the case may be (and any other collateral for the Obligations for which the Company has
requested a lien release), against (x) payment in cash in Dollars to the Lenders of (i) 60% of the Net Proceeds (as hereafter defined) and (ii) all expenses (including legal fees) of the Administrative Lender and the Agents, provided, that the aggregate amount payable pursuant to subclause (i) of this sentence shall not exceed $6,750,000, and (y) delivery to the Lenders, the Administrative Lender and the Agents of a release
which shall be executed by the Company, Raser and all Members in the Company and must be acceptable to the Administrative Lender and the Agents (it being understood that a release containing the terms, mutatis
mutandis, of the release set out in Section 10 of this Forbearance Agreement shall be acceptable). Upon payment, at any time prior to the occurrence of a Forbearance Termination Event and whether from the Net Proceeds
of a Qualifying Sale as described above or from a cash payment from the Company or Raser, equal to $6,750,000 plus the expenses (including legal fees) of the Administrative Lender and the Agents (and regardless of whether there has been a
Qualifying Sale) and delivery of the releases, described in the preceding sentence, all obligations of the Company and Raser to the Administrative Agent, the Lenders and the Agents (other than those in Article
IX of the Agreement and any others that expressly surv
ive repayment of the Obligations) shall be extinguished. As used in this Section 6, “Net Proceeds” shall mean the gross proceeds of the sale of the Project and the other collateral
described in Article XI of the Account and Security











Agreement as an entirety, or the proceeds of the sale of all the Equity Interests in the Company as an entirety, as the case may be, less the normal and customary costs of selling the foregoing
(with brokerage commissions not to exceed 3% of the sales price and which may be payable only to Persons that are not Affiliates of the Company, Raser, any Member in the Company, MLE or any other Person involved in the operation or development of
the Project).  Normal and customary closing costs shall consist of any legal and professional fees and, in the case of the sale of the Facility and the other collateral described in Article XI of the Account and Security Agreement, premiums for a policy of owners’ title insurance but shall not include the payment of any Debt or of any obligation secured by a
Lien against the asset being sold. The provisions of this Section 6 are in consideration for the amendments, consents, waivers forbearances and other agreements under this Forbearance Agreement, and such provisions shall not be deemed to create a
joint venture, partnership or other joint ownership arrangement or relationship between the Lenders (including the Administrative Lender) and the Agents, on the one hand, and the Company, Raser and the Members in the Company on the other hand, and
in no event do the parties intend, and in no event shall such provisions or any other portion of this Forbearance Agreement or any other Transaction Document be construed, to be an agreement by the Lenders (including the Administrative Lender) or
the Agents to share in any operating or other losses or costs incurred by the Company, Raser or the Members in the Company or to be responsible, in any manner or to any extent, for any liabilities of the Company, Raser or the Members of the Company
to any third party.


     Section 4. Representations and Warranties. In order to induce the Administrative Lender and the Agents to enter into this Amendment, each of
the Company and Raser represents and warrants (as to itself) that the following statements are true and correct as of the Effective Date:


     (a) Organization; Powers. Each of the Company and Raser is duly organized, validly existing and in good standing under the laws of the State
of Delaware and has all requisite limited liability company or corporate power and authority to carry on its business as such business is now conducted, and as proposed to be conducted. 


     (b) Authority; Enforceability. The transactions contemplated by the Forbearance Agreement, as amended hereby, are within the Company’s
or Raser’s limited liability company or corporate powers and have been duly authorized by all necessary limited liability company or corporate action.  This Amendment has been duly executed and delivered by the Company or Raser and constitutes
a legal, valid and binding obligation of the Company and Raser, enforceable in accordance with its terms except as such terms may be limited by (i) Bankruptcy, insolvency or similar laws affecting creditors’ rights generally, or (ii) general
principles of equity, whether considered in a proceeding in equity or at law. 


     (c) Approvals; No Conflicts. The transactions contemplated by the Forbearance Agreement, as amended hereby: (i) do not require any consent or
approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person, nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of the
Forbearance Agreement, as amended hereby, any of such other documents or the consummation of the transactions contemplated by the Forbearance Agreement, as amended hereby, or thereby, except such as have been











obtained or made and are in full force and effect or are not yet required to be obtained; (ii) will not violate any Applicable Law or regulation or the Organizational Documents of the Company or Raser or any order of any
Governmental Authority; (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Company, Raser or any of their respective Properties, or give rise to a right thereunder to require any payment
to be made by the Company or Raser; and (iv) will not result in the creation or imposition of any Lien on any Property of the Company (other than the Liens created by the Financing Documents) or Raser. 


     (d) Litigation. There are no claims, actions, suits, investigations or proceedings (including any arbitration proceeding) of any nature, at
law or in equity, pending or, to the knowledge of the Company and Raser, threatened by or against the Company, Raser or any of their respective Affiliates which would materially adversely affect the Company’s or Raser’s ability to execute,
deliver and perform under the Forbearance Agreement, the Agreement or this Amendment and to consummate the transactions contemplated hereby or thereby.


     Section 5. Conditions Precedent. The parties hereto agree that this Amendment shall become effective upon the satisfaction of each of the
following conditions: 


     (a) Execution and Delivery of this Amendment. The Administrative Lender and each Agent shall have received a copy of this Amendment executed
and delivered by the Company and Raser. 


     (b) Resolutions. The Administrative Lender shall have received a certificate of (i) the secretary of IRP setting forth resolutions of its
managers with respect to the authorization of this Amendment, and (ii) the secretary or an assistant secretary or Raser setting forth resolutions of its board of directors with respect to the authorization of this Amendment. 


     (c) Payment of Costs, Expenses, Etc. The Company shall have paid all costs and expenses of the Agents and the Administrative Lender in
connection with the preparation, reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including the fees and expenses of counsel for the Agents and the Administrative Lender). In
addition, the Company shall have paid any and all stamp or other taxes, recordation fees and other fees payable in connection with the execution, delivery, filing or recording of this Amendment and the other instruments and documents to be delivered
hereunder, and the Company agrees to hold the Agents and the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission in paying such taxes or fees. 


     Section 6. RELEASE. IN CONSIDERATION OF THE LENDERS AND THE AGENTS ENTERING INTO THIS AMENDMENT, THE COMPANY AND RASER HEREBY
ACKNOWLEDGE THAT THEIR OBLIGATIONS UNDER THE AGREEMENT, THE FORBEARANCE AGREEMENT AND THIS AMENDMENT AND EACH OTHER FINANCING DOCUMENT EXECUTED IN CONNECTION THEREWITH OR HEREWITH ARE ABSOLUTE AND UNCONDITIONAL WITHOUT











ANY RIGHT OF RESCISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF THE COMPANY’S LIABILITY TO REPAY THE
OBLIGATIONS UNDER THE AGREEMENT, THE FORBEARANCE AGREEMENT, THIS AMENDMENT AND EACH OTHER FINANCING DOCUMENT EXECUTED IN CONNECTION THEREWITH OR HEREWITH OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM ANY RELEASED PARTY (AS
DEFINED BELOW). THE COMPANY AND RASER HEREBY INDEMNIFY ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT AGAINST ANY ACTIONS TAKEN IN CONNECTION WITH THIS AMENDMENT AND VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE THE LENDERS, THE
ADMINISTRATIVE LENDER AND THE AGENTS AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, AGENTS, ATTORNEYS-IN-FACT, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”), FROM ALL POSSIBLE CLAIMS,
DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN
PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE COMPANY OR RASER MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR
REGULATIONS, OR OTHERWISE, AND ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF THE AGREEMENT, THE FORBEARANCE AGREEMENT, THIS AMENDMENT OR ANY OTHER FINANCING DOCUMENT EXECUTED IN CONNECTION THEREWITH OR HEREWITH, INCLUDING, WITHOUT LIMITATION,
THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE AGREEMENT, THE FORBEARANCE AGREEMENT, THIS AMENDMENT AND ANY OTHER FINANCING DOCUMENT EXECUTED IN CONNECTION THEREWITH OR HEREWITH, AND THE NEGOTIATION FOR AND EXECUTION OF THE AGREEMENT, THE
FORBEARANCE AGREEMENT, THIS AMENDMENT AND THE DOCUMENTS EXECUTED IN CONNECTION THEREWITH AND HEREWITH (BUT EXCLUDING IN ALL CASES ANY OF THE FOREGOING ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE RELEASED PARTIES). THE RELEASES AND
WAIVERS CONTAINED IN THIS SECTION 6 ARE GIVEN AND MADE BY THE COMPANY AND RASER WITH THEIR FULL KNOWLEDGE AND UNDERSTANDING OF THE CIRCUMSTANCES AND EFFECT THEREOF AND AFTER THEIR HAVING CONSULTED LEGAL COUNSEL WITH RESPECT THERETO.


     Section 7. Confirmation. Except as specifically modified by this Amendment, the terms and provisions of the Forbearance Agreement are hereby
ratified and confirmed and remain in full force and effect.  Except as specifically modified by the Forbearance Agreement, as amended hereby, the terms and provisions of the Agreement are hereby ratified and confirmed and remain in full force and
effect. The consents, forbearance and waivers contained herein and











in the Forbearance Agreement shall be limited precisely as written and shall relate solely to the Agreement and the Financing Documents in the manner and to the extent described herein and in the Forbearance Agreement, and nothing
in this Amendment or the Forbearance Agreement shall be deemed (a) to constitute a waiver of, or deviation from, compliance by the Company, Raser or any other Person with respect to any other term, provision or condition of this Amendment, the
Forbearance Agreement, the Agreement or any other Transaction Document or with respect to any other transaction or matter, or (b) to prejudice any right or remedy that any Agent or Lender (including the Administrative Lender) may now have, or may
have in the future, under or in connection with this Amendment, the Forbearance Agreement, the Agreement or any other Transaction Document.


     Section 8. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, excluding
any conflicts of law rule or principle that might refer the governance or construction of this Amendment to the law of another jurisdiction. Each party hereby irrevocably submits to the jurisdiction of the courts of the State of New York in the
County of New York or of the United States of America in the Southern District of New York and hereby waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue in an such action or
proceeding in any such court. 


     Section 9. Further Assurances. In connection with this Amendment and the transactions contemplated hereby, upon the request of the
Administrative Lender and at the expense of the Company the parties hereto agree to execute and deliver any additional documents and instruments and perform any additional acts that may be reasonably required or useful to carry out the intent and
purpose of this Amendment and as are not inconsistent with the terms hereof.


     Section 10. Public Announcements. The parties hereto shall consult with one another before issuing any public announcement, statement or
other disclosure with respect to this Amendment or the matters contemplated hereby and no party shall issue any such public announcement, statement or other disclosure without the prior written consent of the other parties (which consent shall not
be unreasonably withheld or delayed) unless such action is required by Applicable Law. Each party, upon the request of any other party, shall provide to such other party, and such other party shall have the right to review in advance all information
relating to this Amendment or the matters contemplated hereby that appear in any filing made in connection with the transactions contemplated hereby. 


     Section 11. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original but all of which
together will constitute one instrument, binding upon all parties hereto, notwithstanding that all of such parties may not have executed the same counterpart. 


     Section 12. Joint Efforts. To the full extent permitted by Applicable Law, neither this Amendment nor any ambiguity or uncertainty in this
Amendment will be construed against any of the parties hereto, whether under any rule of construction or otherwise. On the contrary, this Amendment has been prepared by the joint efforts of the respective attorneys for, and has been reviewed by,
each of the parties hereto. 











     Section 13. Authorization of Collateral Agent. The Administrative Lender (with the consent of the Lenders) hereby directs the Collateral
Agent to enter into this Amendment.


	
[Signatures on Next Page]
















     IN WITNESS WHEREOF, each party has caused this Second Amendment to Amendment, Consent and Forbearance Agreement to be signed on its behalf as of the date first written
above (with this Amendment to Amendment, Consent and Forbearance Agreement being executed by Raser only for the limited purposes set out in the Forbearance Agreement, as amended hereby).


	
THERMO NO. 1 BE-01, LLC,

a Delaware limited liability company






	
By: 
		
 		
Intermountain Renewable Power, LLC 
	
	
Its: 
		
 		
Managing Member 
	




	 	
By: /s/ Nicholas Goodman

Name: Nicholas Goodman

Title: Manager







	
RASER TECHNOLOGIES, INC.,

a Delaware corporation







	 	
By: /s/ Nicholas Goodman

Name: Nicholas Goodman

Title: Manager







THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as Administrative Lender


	
By: /s/ Richard Carrell

Name: Richard Carrell

Title: Vice President







THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as a Lender


	
By: /s/ Richard Carrell

Name: Richard Carrell

Title: Vice President
















ZURICH AMERICAN INSURANCE COMPANY


By: Prudential Private Placement Investors, L.P., (as Investment Advisor)


By: Prudential Private Placement Investors, Inc. (as its General Partner)


	
By: /s/ Richard Carrell

Name: Richard Carrell

Title: Vice President







DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent and Collateral Agent


	
By: /s/ Li Jiang

Name: Li Jiang

Title: Associate







	
By: /s/ Li Jiang

Name: Li Jiang

Title: Associate