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EXHIBIT 10.V.1
FIRST AMENDMENT TO
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AGUAYTIA ENERGY, LLC
This FIRST AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT OF AGUAYTIA ENERGY, LLC (this "Amendment") is made and entered into as
of January 19, 1996, by and among The Maple Gas Development Corporation, a
Cayman Islands limited liability company ("Maple"), P.I.D.C Aguaytia, L.L.C., a
Delaware limited liability company ("PanEnergy"), EPED Aguaytia Company, a
Cayman Islands company ("El Paso"), IGC Aguaytia Partners, L.L.C., a Cayman
Islands limited liability company ("Illinova"), Scudder Latin American Power
I-P, L.D.C., a Cayman Islands limited duration company ("Scudder"), and PMDC
Aguaytia, Ltd., a Cayman Islands limited life company ("PMDC").
RECITALS
Effective as of November 30, 1995, The Maple Gas Corporation del Peru
Ltd., a British Virgin Islands corporation (the "Original Maple Member"), The
Maple Gas Corporation, a Delaware corporation, PanEnergy, El Paso,
Illinova,Scudder and PMDC entered into that certain Amended and Restated
Limited Liability Company Agreement of Aquaytia Energy, LLC (such agreement
being herein referred to as the "LLC Agreement"), pursuant to which such
parties formed a Delaware limited liability company known as "Aguaytia Energy,
LLC" (such limited liability company being herein referred to as the
"Company").
Maple, as the successor to the interest of the Original Maple Member
in and to the Company, PanEnergy, El Paso, Illinova, Scudder and PMDC desire to
amend the LLC Agreement as herein provided.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
rights and obligations set forth herein, the benefits to be derived therefrom,
and other good and valuable consideration, the receipt and the sufficiency of
which each party hereto acknowledges and confesses, the parties hereto agree as
follows:
1. DEFINITIONS. Any capitalized term used herein but not defined
shall have the meaning given such term in the LLC Agreement.
2. ALLOCATION OF MAPLE COMMITMENT AMONG SCUDDER, ILLINOVA AND
PMDC. The Members acknowledge and agree that, pursuant to the terms of clause
(B) of the proviso contained in the last sentence of Section 4.1(a) of the LLC
Agreement, Maple's right to receive the Units designated on Exhibit A to the
LLC Agreement as being issued to Maple in respect of its Commitment terminated
and
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Maple has no further rights or obligations with respect thereto. The Members
hereby agree that the Commitment that Maple would have been obligated to
contribute to the Company, and the Units that Maple would have been entitled to
in exchange for such Commitment, had Maple satisfied the requirements of clause
(A) of the proviso contained in the last sentence of Section 4.1(a) of the LLC
Agreement (the "Requirements"), shall be allocated among Scudder, Illinova and
PMDC as follows:
PORTION OF
COMMITMENT ADDITIONAL UNITS
ASSUMED TO BE RECEIVED
Scudder $3,001,000 3,001
Illinova 1,166,000 1,166
PMDC 1,166,000 1,166
--------- -----
Total $5,333,000 5,333
In order to give full effect to such agreement, the Members further agree as
follows:
(a) the Initial Advanced Amount required to be
contributed by each of Scudder, Illinova and PMDC to the Company shall
be increased by a portion of the Initial Advanced Amount that Maple
would have been obligated to contribute, had it satisfied the
Requirements, that bears the same ratio that the number of additional
Units to be received by such Cash Member bears to the number 5,333,
it being agreed that such Capital Contribution shall be made
contemporaneously with the next Capital Contribution required to be
made by the Cash Members pursuant to Section 4.1(b) of the LLC
Agreement;
(b) contemporaneously with the execution of this
Amendment by Scudder, Illinova and PMDC, the number of Units that the
Company shall be deemed to have issued to each of Scudder, Illinova and
PMDC pursuant to the third sentence of Section 4.1(a) of the LLC
Agreement shall be increased by the number of additional Units to
be received by such Cash Member as specified in the table set forth
above;
(c) the Commitments of Scudder, Illinova and PMDC for
purposes of the LLC Agreement shall be increased by the portion of the
Maple Commitment specified as being assumed by such Cash Member in the
table set forth above; and
(d) Exhibit A to the LLC Agreement is hereby deleted and
replaced in its entirety with the form of Exhibit A attached to this
Amendment, which exhibit has been modified to reflect (i) the fact that
Maple has succeeded to the interest of the Original Maple Member in and
to the Company and (ii) the effect of the agreements described in
subparagraphs (a)-(c) immediately above.
3. REPRESENTATIONS AND WARRANTIES. Each of Scudder,
Illinova and PMDC hereby represents and warrants to the Company and each other
Member that:
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(a) It is a duly organized, validly existing entity of
the type described in the introduction to this Amendment and is in good
standing under the laws of the jurisdiction of its formation. It has
all requisite power and authority to enter into and to perform its
obligations under this Amendment.
(b) Its execution, delivery, and performance of this
Amendment have been duly authorized, and do not and will not (A)
violate any law, rule, regulation, order, or decree applicable to it,
(B) violate its organizational documents or (C) contravene or
constitute a default or breach under any instrument, indenture,
agreement or other obligation to which it or one of its Affiliates is a
party or by which it or such Affiliate is bound.
(c) This Amendment is a legal and binding obligation of
that Member, enforceable against that Member in accordance with its
terms, except to the extent enforceability is modified by
bankruptcy, reorganization and other similar laws affecting the rights
of creditors generally and by general principles of equity.
4. MISCELLANEOUS
(a) Except to the extent amended by the terms of this
Amendment, the LLC Agreement is hereby ratified and confirmed and, as
hereby amended, shall remain in full force and effect in accordance
with its terms, conditions and provisions.
(b) This amendment may be executed in any number of
counterparts with the same effect as if all signing parties had signed
the same document. All counterparts shall be construed together and
constitute the same instrument.
(c) 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 necessary or appropriate to effectuate and perform the
provisions of this Amendment.
(d) This Amendment has been drafted and executed in
English, and the English version shall prevail over any translations.
(e) The Representative of each Member joins herein for
the purpose of evidencing its adoption, execution and agreement to the
terms of this Amendment as required by Section 14.5 of the LLC
Agreement.
(f) All references herein to dollars ($) shall mean
dollars of the United States of America.
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IN WITNESS WHEREOF, the Members and their respective
Representatives have executed this Amendment as of the date first set
forth above.
MEMBERS:
THE MAPLE GAS DEVELOPMENT CORPORATION
By: /s/ REX W. CANON
---------------------------------------
Name: Rex W. Canon
-------------------------------------
Title: Authorized Representative
------------------------------------
/s/ REX W. CANON
------------------------------------------
REX W. CANON
Management Committee Representative for
The Maple Gas Development Corporation
P.I.D.C. AGUAYTIA, L.L.C.
By: /s/ JOHN T. SICKMAN
---------------------------------------
Name: John T. Sickman
-------------------------------------
Title: Vice President
------------------------------------
/s/ JOHN T. SICKMAN
------------------------------------------
JOHN T. SICKMAN
Management Committee Representative for
P.I.D.C. Aguaytia, L.L.C.
EPED AGUAYTIA COMPANY
By: /s/ JOHN R. CUNNINGHAM
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
/s/ JOHN R. CUNNINGHAM
------------------------------------------
John R. Cunningham
Management Committee Representative for
EPED Aguaytia Company
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IGC AGUAYTIA PARTNERS, L.L.C.
By: /s/ JON C. BANCKS
-------------------------------------
Name: Jon C. Bancks
-----------------------------------
Title: Business Development Manager
----------------------------------
/s/ JON C. BANCKS
----------------------------------------
JON C. BANCKS
Management Committee Representative for
IGC Aguaytia Partners, L.L.C.
SCUDDER LATIN AMERICAN POWER I-P, L.D.C.
By: /s/ J. SCOTT SWENSEN
-------------------------------------
Name: J. Scott Swenson
-----------------------------------
Title: Head Portfolio Manager
----------------------------------
/s/ J. SCOTT SWENSON
----------------------------------------
J. SCOTT SWENSEN
Management Committee Representative for
Scudder Latin American Power I-P, L.D.C.
PMDC AGUAYTIA, LTD.
By: /s/ PAUL T. CHAMPAGNE
-------------------------------------
Name: Paul T. Champagne
-----------------------------------
Title: Vice President
----------------------------------
/s/ PAUL T. CHAMPAGNE
----------------------------------------
PAUL T. CHAMPAGNE
Management Committee Representative for
PMDC Aguaytia Ltd.
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SECOND AMENDMENT TO
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AGUAYTIA ENERGY, LLC
This SECOND AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT OF AGUAYTIA ENERGY, LLC (this "Amendment") is made and entered
into as of March 12, 1996, by and among the Maple Gas Development Corporation,
a Cayman Islands limited liability company ("Maple"), P.I.D.C. Aguaytia
L.L.C., a Delaware limited liability company ("PanEnergy") EPED Aguaytia
Company, a Cayman Islands company ("El Paso") IGC Aguaytia Partners, L.L.C., a
Cayman Islands limited liability company ("Illinova"), Scudder Latin American
Power I-P, L.D.C., a Cayman Islands limited duration company ("Scudder"), and
PMDC Aguaytia, LTD., a Cayman Islands limited life company "(PMDC").
RECITALS
Effective as of November 30, 1995, The Maple Gas Corporation del Peru
Ltd., a British Virgin Islands corporation (the "Original Maple Member"), The
Maple gas Corporation, Delaware corporation, PanEnergy, El Paso, Illinova,
Scudder and PMDC entered into that certain Amended and Restated Limited
Liability Company Agreement of Aguaytia Energy, LLC (such agreement being
herein referred to as the "LLC Agreement"), pursuant to which such parties
formed a Delaware limited liability company known as "Aguaytia Energy, LLC"
(such limited liability company being herein referred to as the "Company").
Maple, as the successor to the interest of the Original Maple Member
in and to the Company, PanEnergy, El Paso, Illinova, Scudder and PMDC desire to
amend the LLC Agreement as herein provided.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
rights and obligations set forth herein, the benefits to be derived therefrom,
and other good and valuable consideration, the receipt and the sufficiency of
which each party hereto acknowledges, and confesses, the parties hereto agree
as follows:
1. Definitions. Any Capitalized term used herein but not defined
shall have the meaning given such term in the LLC agreement.
2. Amendments. The LLC Agreement is hereby amended as follows:
(a) Delete subparagraph(i) of Section 2.4(a) of the
Agreement and substitute the following subparagraph:
"(i) through one or more Entities, invest in, own and dispose
of interest in the Project
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and manage assets and supervise the operation of facilities in connection
therewith, provided that the natural gas produced in connection with the Gas
Project shall, unless the Management Committee otherwise directs, at all times
be use predominantly in connection with the Power Project,"
(b) Delete exhibit 4.1 (b) of the Agreement and
substitute the attached new Exhibit 4.1(b).
3. Miscellaneous.
(a) Except to the extent amended by the terms of
this Amendment, the LLC Agreement is hereby ratified and confirmed and, as
hereby amended, shall remain in full force and effect in accordance with its
terms, conditions and provisions.
(b) This Amendment may be executed in any number
of counterparts with the same effect as if all signing parties had signed the
same document. All counterparts shall be construed together and constitute the
same instrument.
(c) 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 necessary or appropriate to effectuate and perform the provisions of this
Amendment.
(d) This Amendment has been drafted and executed
in English, and the English version shall prevail over any translations.
(e) The Representative of each Member joins
herein for the purpose of evidencing its adoption, execution and agreement to
the terms of this Amendment as required by Section 14.5 of the LLC Agreement.
(f) All references herein to dollars ($) shall
mean dollars of the United States of America.
IN WITNESS WHEREOF, the Members and their respective Representatives
have executed this Amendment as of the date first set forth above.
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IN WITNESS WHEREOF, the Members and their respective Representatives
have axecuted this Amendment as of th date first set forth above.
MEMBERS:
THE MAPLE GAS DEVELOPMENT CORPORATION
BY:/s/ REX W. CANON
---------------------------------------
Name: Rex W. Canon
-------------------------------------
Title: Authorized Representative
------------------------------------
/s/ REX W. CANON
------------------------------------------
REX W. CANON
Management Committee Representative for
The Maple Gas Developement Corporation
P.I.D.C. AGUAYTIA, L.L.C.
By: /s/ JOHN T. SICKMAN
---------------------------------------
Name: John T. Sickman
-------------------------------------
Title: Vice President
------------------------------------
JOHN T. SICKMAN
Management Committee Representative for
P.I.D.C. Aguaytia L.L.C.
EPED AGUAYTIA COMPANY
BY:/s/ JOHN R. CUNNINGHAM
---------------------------------------
Name: John R. Cunningham
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Title: Authorized Representative
------------------------------------
/s/ JOHN R. CUNNINGHAM
------------------------------------------
John R. Cunningham
Management Committee representattive for
EPED Aguaytia Company
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IGC AGUAYTIA PARTNERS, L.L.C.
By: /s/ JON BANCKS
-------------------------------------
Name: Jon Bancks
-----------------------------------
Title: AUTHORIZED REPRESENTATIVE
----------------------------------
/s/ JON BANCKS
----------------------------------------
JOHN C. BANCKS
Management Committee Representative for
IGC Aquaytia Partners, L.L.C.
SCUDDER LATIN AMERICAN POWER I-P, L.D.C.
BY:/s/ JOHN H. NORTHRUP
-------------------------------------
Name: JOHN H. NORTHRUP
-----------------------------------
Title: AUTHORIZED REPRESENTATIVE
----------------------------------
/s/ JOHN H. NORTHRUP
----------------------------------------
JOHN H. NORHTRUP
Alternate Management Committee
Representative for Scudder Latin
American Power I-P, L.D.C.
PMDC AGUAYTIA, LTD.
By: /s/ ROGERT D. FAGAN
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Name: Robert D. Fagan
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Title: President and Director
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/s/ ROBERT D. FAGAN
----------------------------------------
for PAUL T. CHAMPAGNE
Management Committee Representative for
PMDC Aguaytia Ltd.