"Guaranteed Final Completion Date" means the earlier of (i) one hundred and eighty (180) calendar daysafter the Facility Substantial Completion Date and (ii) December 3, 2009. [ASA, CA, EPC, O&M, Schedule Z]
| SCHEDULE Z AMENDMENT |
THIS SCHEDULE Z AMENDMENT AGREEMENT, dated as of November 30, 2009 (the "Schedule Z Amendment Agreement"), is entered into by and among the signatories hereto.
| RECITALS |
WHEREAS, the Parties hereto have entered into one or more documents (the "Schedule Z Documents") to which a cumulative definitions annex has been attached as Schedule Z thereto
("Schedule Z"); and
WHEREAS, the Parties have previously amended Schedule Z pursuant to the Schedule Z Amendment dated May 8, 2009,a second Schedule Z Amendment dated September 15, 2009, a third Schedule Z Amendment dated October 1, 2009, a fourth Schedule Z Amendment dated October 16, 2009, and a fifth Schedule Z Amendment dated November 2, 2009; and
WHEREAS, the Parties hereto desire to again amend Schedule Z attached to each Schedule Z Document.
NOW THEREFORE in consideration of the foregoing and the mutual agreements herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be bound hereby, agree that:
A. The definition in Schedule Z for "Guaranteed Final Completion Date" shall be deleted in its entirety and replaced in its entirety with the amended definition below, effective for all purposes under any Schedule Z Document from and after the date hereof, including as to the interpretation or application of these definitions with respect to historical matters arising under or otherwise relating to any terms and conditions of any Schedule Z Document:
"Guaranteed Final Completion Date" means the earlier of (i) one hundred and eighty (180) calendar days after the Facility Substantial Completion Date and (ii) December 3, 2009. [ASA, CA, EPC, O&M, Schedule Z]
| B. General Provisions: |
| 1. | This Schedule Z Amendment Agreement is deemed effective as of and from the date first above written. |
| 2. | All capitalized terms used herein which are not defined herein shall have the meaning set forth in Schedule Z unless the contrary intent appears. |
| 3. | Except as specifically amended hereby, each Schedule Z Document shall continue in full force and effect in accordance with the provisions of such Schedule Z Document, and nothing contained herein shall be construed as a waiver or modification of any existing rights and claims under such documents except as such Schedule Z Documents are expressly modified hereby. |
| 4. | From and after the effectiveness of this Schedule Z Amendment Agreement, all references in each Schedule Z Document and in Schedule Z to Schedule Z shall be deemed to be references to Schedule Z as currently amended. |
| 5. | This Schedule Z Amendment Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
| 6. | The Parties shall cooperate in good faith to amend such Schedule Z Documents necessary to apply for the grant of monies available from the U.S. Treasury under Section 1603 of the American Reinvestment and Recovery Act. |
| 7. | This Schedule Z Amendment Agreement shall in all respects be governed by and construed in accordance with the laws 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. |
| 8. | The Parties agree that the effectiveness of this Schedule Z Amendment requires the signature and delivery of all Parties set forth on the signature pages hereto and shall be ineffective as to any individual party absent such signatures. |
| [remainder of this page left intentionally blank] |
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
| PARTIES TO CREDIT AGREEMENT |
THERMO NO. 1 BE-01, LLC, a Delaware limited liability company, as Company
| By: | Intermountain Renewable Power, LLC | |
| Its: | Managing Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Manager | ||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent
| By:/s/ Yana Kislenko __________________ Name: Yana Kislenko Title: Assistant Vice President |
| By: /s/ Randy Kahn____________________ Name: Randy Kahn Title: Vice President |
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
| By: /s/ Yana Kislenko __________________ Name: Yana Kislenko Title: Assistant Vice President |
| By: /s / Randy Kahn ___________________ Name: Randy Kahn Title: Vice President |
| PARTIES TO CREDIT AGREEMENT |
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey company, as Lender
By: /s/ Richard Carrell________________________________
Name: Richard Carrell Title:Vice President
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
PARTIES TO ACCOUNT AND SECURITY AGREEMENT
THERMO NO. 1 BE-01, LLC, a Delaware limited liability company
| By: | Intermountain Renewable Power, LLC | |
| Its: | Managing Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Manager | ||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
| By:/s/ Yana Kislenko __________________ Name: Yana Kislenko Title: Assistant Vice President |
| By: /s/ Randy Kahn____________________ Name: Randy Kahn Title: Vice President |
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Account Bank
| By:/s/ Yana Kislenko __________________ Name: Yana Kislenko Title: Assistant Vice President |
| By: /s/ Randy Kahn____________________ Name: Randy Kahn Title: Vice President |
PARTIES TO ACCOUNT AND SECURITY AGREEMENT
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Securities Intermediary
| By:/s/ Yana Kislenko __________________ Name: Yana Kislenko Title: Assistant Vice President |
| By: /s/ Randy Kahn____________________ Name: Randy Kahn Title: Vice President ACKNOWLEDGED: |
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey company, as Administrative Lender
By: /s/ Richard Carrell________________________________
Name: Richard Carrell Title:Vice President
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
PARTIES TO LLC OPERATING AGREEMENT
INTERMOUNTAIN RENEWABLE POWER, LLC, a Delaware limited liability company
| By:/s/ Richard D. Clayton Name: Richard D. Clayton Title: Manager |
MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, a Delaware corporation, as Class A Investor
| By: /s/ Faiz Ahmad ____________________ Name: Faiz Ahmad Title: Director |
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
PARTIES TO EQUITY CAPITAL CONTRIBUTION AGREEMENT
INTERMOUNTAIN RENEWABLE POWER, LLC, a Delaware limited liability company
| By:/s/ Richard D. Clayton Name: Richard D. Clayton Title: Manager |
THERMO NO. 1 BE-01, LLC, a Delaware limited liability company, as Company
| By: | Intermountain Renewable Power, LLC, a Delaware limited liability company | |
| Its: | Managing Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Manager | ||
MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as Class A Investor
| By: /s/ Faiz Ahmad ____________________ Name: Faiz Ahmad Title: Director |
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
PARTIES TO ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
THERMO NO. 1 BE-01, LLC, a Delaware limited liability company, as Owner
| By: | Intermountain Renewable Power, LLC | |
| Its: | Managing Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Manager | ||
RASER TECHNOLOGIES, INC., a Delaware corporation, as Contractor
| By:/s/ Richard D. Clayton ________ Name: Richard D. Clayton Title: Principal Executive Officer |
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused this Schedule Z Amendment Agreement to be executed by their duly authorized officers and to be effective as of the day and year first above written.
PARTIES TO OPERATION AND MAINTENANCE AGREEMENT
THERMO NO. 1 BE-01, LLC, a Delaware limited liability company, as Owner
| By: | Intermountain Renewable Power, LLC | |
| Its: | Managing Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Manager | ||
RASER POWER SYSTEMS, LLC, a Delaware limited liability company, as Operator
| By: | Raser Technologies, Inc. | |
| Its: | Sole Member | |
| By:/s/ Richard D. Clayton | ||
| Name: Richard D. Clayton | ||
| Title: Principal Executive Officer | ||
