AMENDMENT NO. 1 TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (TEXAS A WIND LLC)
AMENDMENT
NO. 1 TO AMENDED AND RESTATED
(TEXAS
A WIND LLC)
This
Amendment No. 1 to Amended and
Restated Limited Liability Company Agreement, dated as of February 12,
2010 (this “Amendment”) is
entered into by and between United States Renewable Energy Group
Wind Partners I, LLC, a Delaware limited liability company (“USREG Wind”) and
Shenyang Power
Group Company Limited, a Chinese limited liability company (“Shenyang”). USREG
Wind and Shenyang are referred to herein as the “Parties” and each as
a “Party”.
RECITALS
WHEREAS,
USREG Wind and Shenyang have entered into the Amended and Restated Limited
Liability Company Agreement, dated as of December 16, 2009 (the “LLC Agreement”) ,of
Texas A Wind LLC, a Delaware limited liability company (the “Company”);
WHEREAS,
pursuant to the LLC Agreement, the Company was authorized to enter into, and has
entered into, a Development Services Agreement, dated as of December 16, 2009,
by and between Cielo Wind Services, Inc., a Texas corporation and the Company
(the “Development
Services Agreement”); and
WHEREAS,
USREG Wind and Shenyang desire to amend the LLC Agreement on the terms and
conditions set forth herein, and desire that certain amendments be made to the
Development Services Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
Unless
otherwise defined herein, capitalized terms used in this Amendment have the
meanings provided in the LLC Agreement, and the principles of interpretation set
forth in Article 1 of the LLC Agreement shall apply to this
Amendment.
ARTICLE
2
AMENDMENTS
AND AGREEMENTS
Effective as of the Closing Date, the
Parties hereby amend the LLC Agreement and agree as follows:
2.1 Closing
Date. Effective upon the occurrence of the Closing Date,
Section 2.5(c) is deleted and is of no further force and effect.
2.2 Definitions. Section
1.1 is hereby amended by adding the following defined terms in the proper
alphabetical order:
“DOE” means the U.S.
Department of Energy.
“DOE Loan Guarantee Condition
Date” means the date on which the DOE has issued and entered into, in
connection with the American Recovery and Reinvestment Act of 2009, a definitive
and binding Loan Guarantee Agreement (as such term is defined in Title 10, Part
609 of the Code of Federal Regulations, as amended) with the Company,
guaranteeing the maximum amount of Project debt financing that may be guaranteed
by the DOE under the DOE’s applicable regulations and guidelines, and all
conditions precedent in such Loan Guarantee Agreement have been satisfied or
have been waived by the DOE.
2.3 Shenyang
Contributions.
(a) Section
2.5(b) is hereby amended by deleting the phrase “US$40,000,000” and replacing
the same with “US$36,625,000”.
(b) Section
3.2 is hereby amended by adding the following sentence at the end
thereof:
“On the
DOE Loan Guarantee Condition Date, Shenyang shall make an additional capital
contribution to the Company equal to US$3,375,000 for application by the Company
in accordance with Section 5.5(y). Such amount shall be contributed
and payable by Shenyang only upon the occurrence of the DOE Loan Guarantee
Condition Date. If such date fails to occur for any reason or cause
(including due to the status of or any action, inaction or failure of
performance of any Person) then the Company or Cielo shall not be entitled to
receive such amount or claim any damages associated therewith. Such
amount shall be delivered by wire transfer of immediately available funds to the
account of the Company specified in Section 2.5(b) on the DOE Loan Guarantee
Condition Date.”
(c) Section
4.3(e) is hereby amended by deleting the phrase “$12,970,588.24” and replacing
the same with “US$10,125,000”.
(d) Section
5.5 is hereby amended by deleting the phrase “March 1, 2010” and replacing the
same with “the DOE Loan Guarantee Condition Date”.
(e) Attachment
5.10 to the LLC Agreement (the “Initial Business
Plan”) is hereby amended by deleting the phrase “, which would occur on
or before December 28, 2009” from paragraph 2 thereof. Paragraph 2 of
the Initial Business Plan is further amended by deleting the phrase “$40
Million” and replacing the same with “$36.625 Million”.
(f) Paragraph
3 of the Initial Business Plan is hereby amended by:
(i) deleting the phrase “March
1, 2010” and replacing the same with “the DOE Loan Guarantee Condition
Date”;
(ii) deleting
the phrase “initial $40 Million” appearing in the fifth sentence thereof;
and
(iii) deleting
the phrase “$12.97 Million” appearing in the fifth sentence thereof and
replacing the same with “$10.125 Million”.
2.4 Funding Request
Approvals.
(a) Section
5.4(k) is hereby amended by inserting the phrase “or waiving or refraining from
enforcing any right or remedy under” immediately after the phrase “amending the
terms of”.
(b) Section
5.4(l) is hereby amended by inserting the following phrase at the end thereof:
“to be used for the acquisition of any interest in real property; and approval
of any other Funding Request in excess of $200,000 with respect to any
particular line item in Exhibit A to the Development Services Agreement to be
used for any purpose other than for the acquisition of any interest in real
property; and, notwithstanding anything to the contrary herein, approval of any
Funding Request in any amount to be used to make a direct or indirect payment
pursuant to the Development Services Agreement (other than the Management Fees)
to any Member or Cielo or any Affiliate thereof”.
2.5 Chinese Construction
Subcontractor. Attachment 5.10 to the LLC Agreement is hereby
amended by inserting the following at the end thereof:
“7) The
Construction Contractor may subcontract a portion of the scope of work under the
Construction Contract to a Chinese enterprise owned in whole or in part by one
or more Chinese Governmental Bodies.”
ARTICLE
3
MISCELLANEOUS
PROVISIONS
3.1 Amendments to Development
Services Agreement. The Parties instruct the Company to, and
the Company is hereby authorized to enter into, execute and deliver, on the date
hereof the Amendment No. 1 to Development Services Agreement in the form of
Exhibit A
attached hereto to become effective as of the Closing Date.
3.2 Appointment of Shenyang’s
Directors to Company. USREG Wind and the Company hereby
acknowledge that, in accordance with Section 5.1(b) of the LLC Agreement,
Shenyang has appointed Xxxxxxxx Xx, Xxx Xxx and Xxxxxxx Xxxx as Directors of the
Company as of December 28, 2009.
3.3 Amendment; Entire
Agreement. The Parties hereto and the Directors of the Company
signing below have entered into this Amendment in accordance with Section
5.2(d), Section 5.4(a) and Section 17.8 of the LLC Agreement. The
Directors of the Company hereby authorize the Company to, and the Company does
hereby, acknowledge, ratify and confirm the amendments to the LLC Agreement and
the other agreements in this Amendment. The LLC Agreement, as amended
by this Amendment, constitutes the entire agreement of the Parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to the subject matter hereof. The LLC
Agreement, as amended by this Amendment, remains in full force and effect and is
hereby ratified and confirmed in all respects. All of the terms of
Sections 17.1 through 17.16 of the LLC Agreement apply to this Amendment mutatis
mutandis.
3.4 Governing
Law. The validity and interpretation of this Amendment shall
be governed by the laws of the By the laws of the State of New York including,
without limitation New York Obligations Law Sections 5-1401 (Choice of Law) and
5-1402 (Choice of Forum), applicable to contracts entered into and wholly to be
performed therein, without regard to that body of law relating to conflict of
laws.
3.5 Counterparts. This
Amendment may be executed in one or more original, facsimile or “.PDF” email
counterparts, each of which will be deemed to be an original copy of this
Amendment and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their duly
authorized representatives on the date first above written.
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UNITED
STATES RENEWABLE ENERGY
GROUP
WIND PARTNERS I, LLC
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By:
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Texas
Wind Management LLC, its Manager
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By:
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/s/ Xxxxxx Xxxxxxxx | ||
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Xxxxxx
Xxxxxxxx
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President
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| /s/ Xxxxx XxXxxx | |||
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Xxxxx
XxXxxx, as a Director of the Company
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| /s/ Xxxxxx Xxxxx | |||
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Xxxxxx
Xxxxx, as a Director of the Company
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| /s/ Xx Xxxxxxxxxx | |||
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Xx
Xxxxxxxxxx, as a Director of the Company
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SHENYANG
POWER GROUP COMPANY
LIMITED
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By:
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/s/ Xxxxxxxx Xx | ||
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Xxxxxxxx
Xx
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Chief
Executive Officer
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| /s/ Xxxxxxxx Xx | |||
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Xxxxxxxx
Xx, as a Director of the
Company
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AGREED
AND ACKNOWLEDGED
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TEXAS
A WIND LLC
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By:
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/s/ Xxxxxx Xxxxxxxx |
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Xxxxxx
Xxxxxxxx
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Chief
Executive
Offic
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