EXHIBIT 10.19
SECOND AMENDMENT
TO THE
LIMITED LIABILITY COMPANY AGREEMENT
OF
SUMMIT ENERGY VENTURES, LLC
This Second Amendment, dated as of February 27, 2002 (this
"Amendment") to the Limited Liability Company Agreement dated as of June 29,
2001 (the "LLC Agreement"), and amended by the First Amendment to the Limited
Liability Company Agreement dated August 1, 2001, and further amended by a
letter agreement dated September 24, 2001 by and among Northwest Power
Management Inc., a Washington corporation ("NPM"), in its capacity as Investment
Manager, Xxxxxx X. Xxxxxxxx, an individual, in his capacity as member, and
Commonwealth Energy Corporation, a California corporation ("Commonwealth"), in
its capacity as member, of Summit Energy Ventures, L.L.C. Capitalized terms not
defined herein shall have the meaning ascribed to them in the LLC Agreement.
WITNESSETH:
WHEREAS, Section 12.1 of the LLC Agreement requires the consent
of the Members so affected before the LLC Agreement may be amended; and
WHEREAS, the Members desire to amend the LLC Agreement;
NOW, THEREFORE, in accordance with the terms of the LLC
Agreement, the LLC Agreement is hereby amended as follows:
1. Amendment.
(a) The definition of "Percentage Interest(s)" in Article I is
deleted in its entirety and replaced with the following:
""Percentage Interest(s)" as of any date after the date
of the Second Amendment means 60% as to CEC, and 40% as to
Xxxxxx X. Xxxxxxxx (all allocations under Section 3.5 having
been previously made)."
(b) There is added to Article I the following definition:
""Second Amendment" means the Second Amendment to the
Limited Liability Company Agreement of Summit Energy Ventures,
LLC dated as of February 27, 2002."
Section 3.4 is deleted in its entirety and replaced with the
following:
"Section 3.4 Capital Contributions. Effective as the
Agreement Date, CEC and NPM are admitted to the Company
as Common Members. On the Agreement Date, CEC and the
Company shall execute a Contribution Agreement in the
form attached hereto pursuant to which CEC shall make a
Capital Contribution of $15,000,000 (fifteen million) and
a Capital
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Commitment of $10,000,000 (ten million). The funding of
the Capital Commitment shall be at the sole discretion of
CEC."
(d) Section 4.3(a) is deleted in its entirety and replaced with
the following:
"(a) The Company shall pay to the Investment Manager, as
compensation for its performance of the Investment Management
Services and the Administrative Services a semi-annual fee (the
"Management Fee") of $350,000 (three hundred fifty thousand)
payable on the second Wednesday of January and July of each
calendar year for the succeeding period commencing on the
Agreement Date; provided that the Management Fee shall be
prorated for any period less than a full six (6) Calendar Months.
The Fees shall cover all Administration Expenses set forth in
Section 43(c). Commonwealth shall have no responsibility to pay
any of the costs and expenses to operate the Company, other than
the Management Fee. Upon termination of this Agreement, any
Management Fees paid but not earned shall be returned to the
Company based on multiplying the Management Fee times the
quotient where the numerator equals the days remaining in that
half of the calendar year and the denominator equals 183.
Management Fees shall only be paid from Capital Contributions or
cash flow generated by the LLC, and CEC shall have no
responsibility for payment of any Management Fees."
(e) Schedule A to the Agreement is deleted in its entirety and
replaced with the following:
"Names, Addresses, Percentage Interests,
Capital Commitment and Capital Contributions of the Members
Name: Commonwealth Energy Corporation
Address: 000000 Xxx Xxxx Xxx., Xxxxxx, XX 00000
Preferred Percentage
Interest: One hundred percent (100%) to CEC.
Common Percentage
Interest: Sixty percent (60%) to CEC.
Capital Contribution: Fifteen million dollars ($15,000,000)
Capital Commitment: Ten million dollars ($10,000,000), whether or not
this capital commitment is funded shall be at the
sole discretion of Commonwealth Energy
Corporation.
Name: Xxxxxx X. Xxxxxxxx
Address: 000 0xx Xxx., Xxxxx 0000, Xxxxxxx, XX 00000
Percentage Interest: Forty (40) percent of Common Interest; NPM and
Xxxxxxxx own no Preferred Interest.
Capital Contribution: Zero
Capital Commitment: Zero
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(f) Schedule B to the Agreement is changed as follows:
Paragraph 1 of the RECITALS shall be deleted in its
entirety and replaced with, the following:
"I. Capital Contribution. CEC hereby makes a cash capital
contribution to the Company in an amount equal to
$15,000,000 (the "Capital Contribution") and a commitment
to make an additional cash capital contribution to the
Company in an amount equal to $10,000,000 (the "Capital
Commitment"), said Capital Commitment shall be funded at
the sole discretion of CEC."
Paragraph 3 of the RECITALS shall be deleted in its
entirety and shall not be replaced.
Paragraph 4 of the RECITALS shall be changed to read as
follows:
"forty (40) percent" shall be changed to read "sixty (60)
percent"
2. Survival of LLC Agreement. Except as otherwise amended in this
Amendment, the LLC Agreement shall remain in full force and effect. Any
reference to the LLC Agreement shall hereafter be understood as a reference to
the LLC Agreement as amended by this Amendment.
3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to a contract
executed and performed in such state without giving effect to the conflicts of
laws principles thereof.
4. Effective Date. The effective date of this Amendment shall be January
1, 2002.
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IN WITNESS WHEREOF, the undersigned Member has caused this
Amendment to Limited Liability Company Agreement of Summit Energy Ventures, LLC
to be duly executed as of the date first above written.
COMMONWEALTH ENERGY CORPORATION
By: /s/ XXX X. XXXXXX
-----------------------------------
Name: XXX X. XXXXXX
Title: CEO
IN WITNESS WHEREOF, the undersigned Investment Manager has caused
this Amendment to Limited Liability Company Agreement of Summit Energy Ventures,
LLC to be duly executed as of the date first above written.
NORTHWEST POWER MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
Its: President
