AMENDMENT NO. 1, DATED AS OF OCTOBER 17, 2006, OF THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF FRONT RANGE ENERGY, LLC TO ADD A SUBSTITUTE MEMBER AND FOR CERTAIN OTHER PURPOSES
EXHIBIT
10.5
AMENDMENT
NO. 1, DATED AS OF OCTOBER 17, 2006,
OF
THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT
OF
FRONT
RANGE ENERGY, LLC
TO
ADD A SUBSTITUTE MEMBER AND FOR CERTAIN OTHER PURPOSES
By
this
amendment, dated as of the 17th day of October, 2006, the undersigned parties
amend that certain agreement (the “Agreement”),
entitled “Second Amended and Restated Operating Agreement of Front Range Energy,
LLC,” dated as of October 20, 2005, as follows:
Section
1
ADMISSION
OF NEW MEMBER
Pacific
Ethanol California, Inc., a California corporation (“Pacific”)
is
hereby admitted as a member of Front Range Energy, LLC. By signing this
Agreement, Pacific shall be bound by all of the terms and conditions of the
Agreement as amended by this Amendment.
Section
2
AMENDMENT
OF PROVISIONS OF AGREEMENT
The
following provisions of the Agreement are amended as follows:
SECTION
6.14 Confidential
Information.
Without
limiting the applicability of any other agreement to which any Member may be
subject, a Manager and/or Member shall not, directly or indirectly disclose,
either during his, her or its association or employment with the Company or
thereafter, any Confidential Information of which such Manager or Member is
or
becomes aware. A Manager or Member in possession of Confidential Information
shall take all appropriate steps to safeguard such information and to protect
it
against disclosure, misuse, espionage, loss and theft. Notwithstanding the
above, a Manager and/or Member may disclose Confidential Information to the
extent (i) the disclosure is necessary for the Manager, Member and/or the
Company’s agents, representatives, and advisors to fulfill their duties to the
Company pursuant to this Agreement and/or other written agreements, (ii) the
disclosure is required by law or a court order, (iii) to the extent necessary
to
enforce rights hereunder and (iv) the disclosure is of a general nature
regarding general financial information, return on investment and similar
information, including without limitation, in connection with communications
to
direct and indirect beneficial owners of Units and controlling Persons and
general marketing efforts. Notwithstanding the foregoing, (a) this Section
6.14
shall not prohibit the disclosure of Confidential Information by a Member or
an
affiliate of a Member to the extent such disclosure is reasonably determined
to
be required under applicable securities laws or under the terms of an applicable
listing agreement between any Member or an affiliate of a Member and a national
stock exchange,
-1-
(b)
for
all agreements entered into prior to the date hereof between the Company and
a
Member, or an affiliate of a Member which contain individual provisions
concerning the disclosure of confidential information, including but not limited
to, Confidential Information as defined herein, which conflict with this Section
6.14, such agreements shall be governed by their individual provisions
concerning the disclosure of confidential information, and (c) to the extent
that the Company and a Member, or an affiliate of a Member enter into agreements
prior to the date hereof which do not contain individual provisions concerning
the disclosure of Confidential Information, this Section 6.14 shall control
the
disclosure of Confidential Information with respect to such agreements and
each
Member shall cause its affiliates to abide by the terms of this Section 6.14.
For purposes of this Section 6.14, “affiliate” has the meaning set forth in Rule
12b-2 of the regulations promulgated under the Securities Exchange Act of 1934,
as amended.
Section
3
AMENDMENT
OF EXHIBITS
The
following exhibits of the Agreement are amended as follows:
See
attached Exhibit
A
hereto
and by this reference incorporated herein.
Section
4
NO
OTHER AMENDMENTS
Except
as
amended by this Amendment, all provisions and exhibits of the Agreement shall
remain in full force and effect.
[signature
page to follow]
-2-
SIGNATURES
OF THE PARTIES
|
/s/
Xxxxxx X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx
|
|
|
Eagle
Energy, LLC
By:
/s/
Xxxxx X.
Xxxx
Its:
Xxxxx
X. Xxxx - President
|
|
|
ICM
Inc.
By:
/s/
Xxxxx
Xxxxx
Its:
CFO
|
|
|
Pacific
Ethanol California, Inc.
By:
/s/
Xxxx X.
Xxxxxxx
Its:
Xxxx
X. Xxxxxxx
|
-3-
Exhibit
A
As
of
October 17, 2006
NOTE:
Exhibit A may be amended from time to time to reflect adjustments to Members’
Accounts.
|
Member
|
Units
|
Cash
Capital
Contribution
|
%
|
|
Xxxxxx
X. Xxxxxxx
0000
Xxxxx Xxxx
Xxxxxxx,
XX 00000
|
50.000
Class A Units
|
$-0-
|
.1%
|
|
Xxxxxx
X. Xxxxxxx
0000
Xxxxx Xxxx
Xxxxxxx,
XX 00000
|
12,880.405
Class B Units
|
$12,880,405
|
53.72%
|
|
Pacific
Ethanol California, Inc.
0000
X. Xxxx Xxxxxx
Xxxxxx,
XX 00000
|
10,094.595
Class B Units
|
$10,094,595
|
42.10%
|
|
ICM
Inc.
000
X. Xxxxx
Xxxxxxx,
XX 00000x
|
1,000.000
Class B Units
|
$1,000,000
|
4.17%
|
|
Total
|
24,025.000
Units
|
$23,975,000
|
100.00%
|
A-1
