EXHIBIT 3.3
FORM OF
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED OPERATING AGREEMENT
OF
ELWOOD ENERGY LLC
This First Amendment ("First Amendment") to the Amended and Restated
Operating Agreement of Elwood Energy LLC, a Delaware limited liability company
(the "Company"), is made as of October 24, 2001 by and between Dominion Elwood,
Inc., a Delaware corporation ("Dominion"), and Peoples Elwood LLC, a Delaware
limited liability company ("Peoples").
RECITALS
A. Dominion and Peoples are the members of the Company and the
parties to the Company's Amended and Restated Operating Agreement dated as of
August 3, 2001 (the "Operating Agreement"). The Operating Agreement provides
for, among other things, a special allocation with respect to a certain gas-
fired combustion turbine known as "Unit #9," based upon an additional capital
contribution previously made by Peoples in the amount of $4 million to Elwood
Energy III, LLC, which merged with and into the Company on August 3, 2001.
B. The respective parent corporations of Dominion and Peoples have
settled a dispute with General Electric Company and have entered into various
agreements relating to such settlement, including an Agreement Regarding Payment
of Settlement dated as of October 24, 2001. Such agreement provides that the
parent corporation of Dominion shall cause Dominion to make a capital
contribution to the Company in the amount of $4 million and that the Operating
Agreement shall be amended accordingly.
C. The tax and fiscal year of the Company ends on September 30.
Dominion and Peoples have agreed to amend the Operating Agreement, as provided
herein, to reflect the additional capital contributions from each of them and to
address certain other matters.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, together with other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. TERMS USED. Terms that are capitalized in this First Amendment
and are not defined herein shall have the meanings set forth in the Operating
Agreement, unless the context requires otherwise.
2. AMENDMENTS RELATING TO ALLOCATIONS. Dominion and Peoples hereby
agree that the Operating Agreement is hereby amended as follows, effective as of
the date of this First Amendment:
A. The definitions for "Unit #9 Remaining Allocation" and "Unit #9
Special Allocation" are deleted from Section 1.1.
B. Section 1.1 is amended to include the following new definitions:
"Dominion Remaining Allocation" means, with respect to any date
prior to October 1, 2002, the portion of the total dollar amount of
the Dominion Special Allocation that, as of such date, remains to be
allocated in accordance with Section 9.10 and, with respect to any
date on or after October 1, 2002, zero.
"Dominion Special Allocation" has the meaning set forth in
Section 9.10.
C. Section 3.2 is amended by deleting the final two sentences to
cause such Section to read as follows in its entirety:
3.2 Member List. The Company shall maintain at its
principal office a current list (the "Member List") showing the name,
address, and percentage interest in profits and losses with respect to
each Member ("Percentage Interest"). The Member List as of the date of
this Agreement is attached as Schedule A. The Member List and the
Percentage Interest of each Member reflected thereon shall be amended
promptly to reflect any changes permitted under this Agreement,
including, without limitation, any Assignments of an interest in the
Company in accordance with Article VII and any additional capital
contributed to the Company pursuant to Article VIII.
D. Section 8.1(a)(ii) is amended by deleting the last parenthetical
reference to cause such provision to read as follows:
(ii) cash and the fair market value of property
distributions made to the owner of the account on the date of
distribution (net of liabilities secured by such distributed property
that such person is considered to assume or take subject to under Code
Section 752), the share of the net losses of the Company allocated to
the account, and the share of expenditures of the Company described in
Code Section 705(a)(2)(b) allocated to the account.
E. Section 9.10 is deleted in its entirety and replaced by the
following:
9.10 Special Allocations. Dominion and Peoples acknowledge and
agree as follows:
(a) Peoples received (with respect to its prior additional
capital contribution to Elwood III in the amount of $4 million
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relating to Unit #9) special allocations of depreciation expense and
deduction, for both book and tax purposes, for tax and fiscal years of
Elwood III and/or the Company ending on or prior to September 30,
2001;
(b) for tax or fiscal years of the Company beginning on or after
October 1, 2001, Peoples shall receive no further special allocation
of depreciation expense or deduction, for either book or tax purposes,
with respect to its additional capital contribution in the amount of
$4 million relating to Unit #9;
(c) as soon as possible, but in no event later than September 30,
2002, Dominion shall receive (with respect to its additional capital
contribution to the Company in the amount of $4 million relating to a
settlement with GE) a special allocation of depreciation expense and
deduction, for both book and tax purposes (the "Dominion Special
Allocation"), which shall equal the cumulative special allocation of
depreciation expense and deduction received by Peoples with respect to
the additional capital contribution in the amount of $4 million
previously made by Peoples relating to Unit #9;
(d) for tax or fiscal years of the Company beginning on or after
October 1, 2002, Dominion shall receive no further special allocation
of depreciation expense or deduction, for either book or tax purposes
with respect to its additional capital contribution in the amount of
$4 million relating to the GE settlement;
(e) the intended purpose of the foregoing is to cause the
respective Capital Accounts of Dominion and Peoples to be equal on
October 1, 2002, provided that no unequal adjustments, contributions,
distributions or allocations are otherwise made prior to such date;
and
(f) the Percentage Interests of the Members shall not be altered
in any way by the foregoing special allocations.
F. Section 10.2(c) is amended to cause such provision to read as
follows in its entirety:
(c) Third, between the Members in proportion to the amounts
in their Capital Accounts, after reduction for the Dominion Remaining
Allocation attributable to such Member, if any. The profits and
losses incurred in the winding up of the affairs of the Company
(including profits and losses incurred in connection with the
disposition of Company assets in liquidation) shall be credited or
charged to the Members' Capital Accounts in accordance with Articles
VIII and IX hereof.
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G. Section 15.4(c)(i)(A) is amended to cause such provision to read as
follows in its entirety:
(A) the book value of the Company's assets as carried on the
books of the Company (net of book depreciation or amortization and,
for any sale or other transfer of an interest in the Company by
Dominion pursuant to this Article 15, after reduction for the Dominion
Remaining Allocation, if any), as of the latest audited financial
statement of the Company, multiplied by ...
3. OTHER AMENDMENTS.
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A. Section 1.1 is amended to include the following new definitions:
"Dominion LLC Affiliate" means any Person that both is an
Affiliate of Dominion Resources and that has a direct or indirect
interest in the Company, whether through the ownership of voting
securities or otherwise. As of the date hereof, such term includes
each of Dominion and Dominion Energy.
"Peoples LLC Affiliate" means any Person that both is an
Affiliate of Peoples Energy and that has a direct or indirect interest
in the Company, whether through the ownership of voting securities or
otherwise. As of the date hereof, such term includes each of Peoples,
PERC Power, LLC and Peoples Energy Resources.
B. Section 7.1(b) is amended to read as follows in its entirety:
(b) Notwithstanding the foregoing, none of the following
shall constitute an "Assignment" for purposes of this Agreement: (i)
a pledge or encumbrance of all or any portion of the stock or other
equity securities of Dominion Resources or any Dominion LLC Affiliate,
or of Peoples Energy or any Peoples LLC Affiliate; (ii) a sale or
other transfer of all or any portion of the stock or other equity
securities of Dominion Resources or Peoples Energy; or (iii) a
"Permitted Transfer of Control" (as defined below).
C. Section 7.1(c) is amended to read as follows in its entirety:
(c) The term "Permitted Transfer of Control" means:
(i) a sale or other transfer of the capital stock or other
applicable common equity security of any Dominion LLC Affiliate to (A)
the public in connection with a registered public offering of such
common equity security pursuant to which such common equity security
is listed on a recognized national exchange or on NASDAQ; (B) the then
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shareholders of Dominion Resources pursuant to a distribution or other
direct or indirect transfer of the capital stock or other common
equity security of any Dominion LLC Affiliate; or (C) a Person having
Consolidated Net Worth, determined immediately prior to such transfer
in accordance with generally accepted accounting principles, of not
less than forty percent (40%) of the Consolidated Net Worth of the
assets of Dominion Resources determined as of the same date; and
(ii) a sale or other transfer of the capital stock or other
applicable common equity security of any Peoples LLC Affiliate to (A)
the public in connection with a registered public offering of such
common equtiy security pursuant to which such common equity security
is listed on a recognized national exchange or on NASDAQ; (B) the then
shareholders of Peoples Energy pursuant to a distribution or other
direct or indirect transfer of the capital stock or other common
equity security of any Peoples LLC Affiliate; or (C) a Person having
Consolidated Net Worth, determined immediately prior to such transfer
in accordance with generally accepted accounting principles, of not
less than forty percent (40%) of the Consolidated Net Worth of Peoples
Energy determined as of the same date.
D. Section 7.1(d) is amended to read as follows in its entirety:
(d) The term "Permitted Assignment" means (i) an Assignment
of an interest in the Company to a Member or its Affiliate at least
fifty-one percent (51%) of which is wholly-owned, directly or
indirectly, by Dominion Resources or any Dominion LLC Affiliate with
respect to Dominion, or by Peoples Energy or any Peoples LLC Affiliate
with respect to Peoples; provided, however, that such assignment does
not result in a Prohibited Transfer of Control or a violation of any
agreement or obligation under this Agreement or otherwise relating to
the ownership or operation of the Company or the Facility, (ii) a
Permitted Transfer of Control; or (iii) a transfer to an Offeror
pursuant to Section 15.4(d).
E. The first paragraph of Section 15.4 and Section 15.4(a) are
amended to read as follows in their entirety:
15.4 Purchase Right for Prohibited Transfer of Control.
If Dominion Resources or Peoples Energy or any Dominion LLC Affiliate
or Peoples LLC Affiliate (the "Selling Entity"), as the case
may be, receives an Offer to purchase fifty percent (50%) or more of
the Selling Entity's interest in any Dominion LLC Affiliate or Peoples
LLC Affiliate, respectively, whether in one transaction or a series of
related transactions, in an Assignment which would qualify as a
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Prohibited Transfer of Control, and if the Selling Entity desires to
transfer such interest, the Selling Entity may transfer such interest
only after first offering to the other Member of the Company the right
to purchase all of the ownership interests in the Company owned by the
Selling Entity and its Affiliates (the "Offered Company Interest") as
provided herein.
(a) The Selling Entity shall deliver to the Company and the
other Member a written notice (the "Offer Notice") indicating (i) the
name and address of the Offeror, (ii) the interest in the Dominion LLC
Affiliate or Peoples LLC Affiliate, as the case may be, included in
the proposed Prohibited Transfer of Control and (iii) whether the
purchase price for the Offered Company Interest shall be based on the
book value of the Company's assets (as more particularly described in
Section 15.4(c)(i)) or the Applicable Appraised Value (as defined
below);
F. Section 15.4(d) is amended to read in its entirety as follows:
(d) If the Eligible Member fails to give the Acceptance Notice to
the Selling Entity within twenty (20) days after receipt of the Offer
Notice, then the Eligible Member shall be deemed to have elected not to
purchase the Offered Company Interest, in which case the Selling Entity
shall be free to sell its interest in the applicable Dominion LLC
Affiliate(s) or Peoples LLC Affiliate(s), as the case may be, to the
Offeror on such terms as it deems appropriate free and clear of any
right of the Eligible Member to purchase the Offered Company Interest
pursuant to this Section 15.4.
4. GENERAL.
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A. Except as amended by this First Amendment, the Operating Agreement
is hereby ratified and confirmed in its entirety. Except as set forth above,
there are no other amendments of, or modifications to, the provisions of the
Operating Agreement.
B. The laws of the State of Delaware (without regard to provisions or
principles involving choice of law or conflicts of law) shall govern this First
Amendment and all matters relating to its interpretation or enforcement.
C. This First Amendment may be executed in counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute a single instrument.
D. Each party shall take such further actions, including but not
limited to the execution and delivery of additional documents, as may be
reasonably requested by another party or the Company to effectuate this First
Amendment.
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WITNESS the following signatures:
Dominion: Dominion Elwood, Inc.
a Delaware corporation
By: _________________________________
James P. O'Hanlon, President
Peoples: Peoples Elwood, LLC
a Delaware limited liability company
By: Peoples Energy Resources Corp.
Its: Manager
By: ___________________________
William E. Morrow, President