DC7889.pdf -- Converted by SEC Publisher 4.2, created by BCL Technologies Inc., for SEC Filing








	
EXHIBIT 10.2







	
FIRST AMENDMENT TO







EQUITY CAPITAL CONTRIBUTION AGREEMENT


     THIS FIRST AMENDMENT (this “Amendment”) to the Equity Capital Contribution Agreement dated as of August 31, 2008 (the
“Agreement”), by and among Intermountain Renewable Power, LLC, a Delaware limited liability company (“IRP”),
Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Delaware corporation (“MLP”), and Thermo No. 1 BE-01, LLC, a Delaware limited liability company (the “Company”),
is made and entered on the 4th day of December, 2009, by and among IRP, MLP and the Company.


	
W I T N E S S E T H :







     WHEREAS, the Company was formed by virtue of its Certificate of Formation, filed with the Secretary of State of the State of Delaware on August 29, 2007, under the name Thermo No. 1 BE-01, LLC, and
the Original Operating Agreement of the Company, dated August 29, 2007;


WHEREAS, IRP was initially the sole Member of the Company;


     WHEREAS, IRP, the Company and MLE entered into the Agreement, pursuant to which MLE made capital contributions to the Company in exchange for the Class A Interests, IRP made additional capital
contributions to the Company and the membership interest held by IRP in the Company was converted into Class B Interests;


     WHEREAS, IRP and MLE entered into the LLC Operating Agreement, pursuant to which MLE was admitted as a Member of the Company, the Class A and B Interests were issued and certain other rights and
obligations were provided for;


     WHEREAS, MLE assigned 100 percent of its Class A Interests to MLP under the Assignment and Assumption Agreement by and between MLE and MLP, and MLP made a capital contribution to the Company on
October 17, 2008 under an amendment letter in satisfaction of the obligation to make the Second Funding Capital Contribution under the Equity Capital Contribution Agreement;


     WHEREAS, the Company is developing the Project, and, in connection therewith, is party to the EPC Agreement;


     WHEREAS, in addition to Capital Contributions made by IRP under the Agreement and the terms of the LLC Operating Agreement, IRP, through one or more Affiliates, has advanced funds necessary to cover
certain cost overruns relating to the Project (the “Cost Overrun Advances”);











     WHEREAS, IRP desires to contribute to the capital of the Company the Cost Overrun Advances and the Members desire to amend the Agreement to reflect such contribution as an additional Capital
Contribution by IRP in respect of its Class B Interests and to make other changes to the Agreement; and


     WHEREAS, in connection with developing the Project, the Company will file an application for a grant from the US Treasury under Section 1603 of division B of the American Recovery and Reinvestment Act
of 2009 (a “Cash Grant”);


     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 Agreement. Any reference to Merrill Lynch L.P. Holdings, Inc. will be replaced with MLP.

	
 
		
 		
Section 2. 
		
 		
Amendments to Agreement. The Agreement is hereby amended as 
	
	
follows: 
		
 		
 
		
 		
 
		
 		
 
	
	
 
	
	
 
		
 		
2.1 
		
 		
Section 2.2.3 is hereby deleted in its entirety and replaced with the 
	
	
following: 
		
 		
 
		
 		
 
		
 		
 
	
	
 
	
	
 
		
 		
 
		
 		
“2.2.3 Not later than the Effective Date, IRP will have contributed the 
	
	
 
		
 		
Facility, Facility Site, Leases, related Assets and all other rights related to any of 
	
	
 
		
 		
the foregoing to the Company, to the extent such Property is not then owned by 
	
	
 
		
 		
the Company. 
	
	
 
	
	
 
		
 		
2.2 
		
 		
The following is added as new Section 2.2.4: 
	
	
 
	
	
 
		
 		
 
		
 		
“2.2.4 Any Cost Overrun Advance listed on Schedule 1 to the First 
	
	
 
		
 		
Amendment to Amended and Restated Limited Liability Company Agreement 
	
	
 
		
 		
that IRP caused to be paid for the benefit of the Project and the Company are 
	
	
 
		
 		
deemed to be additional Capital Contributions made by IRP in respect of its Class 
	
	
 
		
 		
B Interests.” 
	




2.3 Section 3.23 is hereby deleted in its entirety and replaced with the


	
following:







“Section 3.23 Intangible Drilling Costs. For federal income tax purposes, all intangible drilling and development costs incurred by Raser, IRP or the Company before
the Effective Date (other than those intangible drilling and development costs incurred during 2007) have been or will be capitalized by Raser pursuant to Code Section 59(e) and an election was or will be made to amortize the costs over a 60-month
period. None of Raser, IRP or the Company has elected or will elect to expense any such costs for such tax purposes.”











     2.4 Subject to the Company receiving proceeds under the Cash Grant of at least $30,000,000, Sections 6.3 and 6.4 are hereby deleted in their entirety.


Section 3. Confirmation. Except as specifically modified by this 


Amendment, the terms and provisions of the Agreement are hereby ratified and confirmed and remain in full force and effect.


     Section 4. Governing Law; Jurisdiction. This Amendment shall in all respects be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any choice of law rules thereof which may permit or require the application of the laws of another jurisdiction. The Parties hereby irrevocably submit 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 waive, 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 5. Further Assurances. In connection with this Amendment and the transactions contemplated hereby, each Member shall 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 6. 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 7. Joint Efforts. To the full extent permitted by Applicable Laws, 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.


	
[Signatures on Next Page]
















     IN WITNESS WHEREOF, each party has caused this First Amendment to the Equity Capital Contribution Agreement to be signed on its behalf as of the date first written
above.


INTERMOUNTAIN RENEWABLE POWER, LLC, a Delaware limited liability company


	
By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member







MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED a Delaware corporation


	
By: /s/ Faiz Ahmad

Name: Faiz Ahmad

Title: Director



THERMO NO. 1 BE-01, LLC,

a Delaware limited liability company






	
By: 
		
 		
Intermountain Renewable Power, LLC, 
	
	
 
		
 		
a Delaware limited liability company 
	
	
Its: 
		
 		
Managing Member 
	
	
 
	
	
 
		
 		
By: /s/ Richard D. Clayton 
	
	
 
		
 		
Name: Richard D. Clayton 
	
	
 
		
 		
Title: Member