FIRST AMENDMENT TO SELLERS OMNIBUS AGREEMENT
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;
1
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 Xxxxxxx
0708 LLC (“Xxxxxxx”) 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
Xxxxxxx under the PSA and shall cause Xxxxxxx to pay forty-five
percent (45%) of the net proceeds received by Xxxxxxx 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), Xxxxxxx 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.
2
(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/ Xxxxxxx
X. Xxxxxx
|
Name: Xxxxxxx X. Xxxxxx
| Title: | President |
INDECK ENERGY SERVICES, INC.
| By: |
/s/ Xxxxxx
X. Xxxxxxx
|
Name: Xxxxxx X. Xxxxxxx
| Title: | Vice President & Controller |
RIDGEWOOD RENEWABLE POWER, LLC,
solely as to Sections 2(e), 6, 7(d), 9(b) and 13
| By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Name: Xxxxxxx X. Xxxxxx
| Title: | Senior Vice President |
4
