Common use of Independent Manager Clause in Contracts

Independent Manager. (a) The Company shall have at all times at least one individual who is an Independent Manager. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote of the Managers shall be taken until a successor Independent Manager is appointed by the Member and qualifies and approves such action. (b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Special Member, any Manager or any other Person, the Company shall not, and neither the Member nor the Special Member, Manager nor any other Person on behalf of the Company shall, without the prior unanimous consent of the Managers, including the Independent Manager, do any of the following: (i) engage in any business or activity other than those set forth in Article II; (ii) except as provided in the Basic Documents, incur any indebtedness, other than the Bonds, obligations under agreements with third party credit enhancers relating to any Series of Bonds and ordinary course expenses as set forth in Article II, or assume or guarantee any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy case; (v) file a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, or (ix) amend this Agreement or take action in furtherance of any such action. With regard to any action contemplated by the preceding sentence, or with regard to any action taken or determination made at any time when the Company is insolvent, each Manager will, to the fullest extent permitted by law including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company (including the creditors of the Company).

Independent Manager. (a) The Company shall have at all times at least one individual who is an Independent Manager. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote of the Managers shall be taken until a successor Independent Manager is appointed by the Member and qualifies and approves such action. In the event of a vacancy in the position of Independent Manager, the Member shall, as soon as practicable, appoint a successor Independent Manager. (b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the any Special Member, any Manager Manager, officer or any other Person, the Company shall not, and neither the Member nor the no Member, Special Member, Manager nor Manager, officer or any other Person on behalf of the Company shall, without the prior unanimous consent of the Managers, including the Independent Manager, do any of the following: (i) engage in any business or activity other than those set forth in Article IISection 2.03; (ii) except as provided in the Basic Documents, incur any indebtedness, other than the Bonds, obligations under agreements with third party credit enhancers relating to any Series of Transition Bonds and ordinary course expenses as set forth in Article IISection 2.03, or assume or guarantee any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy casebankruptcy; (v) file a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution (to the fullest extent permitted by law) or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution (to the fullest extent permitted by law) or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) file or otherwise initiate the filing of a motion in any Bankruptcy or other insolvency proceeding in which the Member or any of its Affiliates is a debtor to substantively consolidate the assets and liabilities of any such debtor with the assets and liabilities of the Company; (ix) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, ; or (ixx) amend this Agreement Agreement, or take action any other action, in furtherance of any such action. With regard to any action contemplated by the preceding sentence, or with regard to any action taken or determination made at any time when the Company is insolvent, each the Independent Manager will, will to the fullest extent permitted by law law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company (including the creditors of the Company). (c) The Independent Manager shall not at any time serve as trustee in bankruptcy for any Affiliate of the Company.

Independent Manager. (a) The Company shall have at all times at least one individual who is an Independent Manager. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote of the Managers shall be taken until a successor Independent Manager is appointed by the Member and qualifies and approves such action. In the event of a vacancy in the position of Independent Manager, the Member shall, as soon as practicable, appoint a successor Independent Manager. (b) Notwithstanding any other provision of this Agreement and any provision of applicable law that otherwise so empowers the Company, the Member, the any Special Member, any Manager Manager, officer or any other Person, the Company shall not, and neither the Member nor the no Member, Special Member, Manager nor Manager, officer or any other Person on behalf of the Company shall, without the prior unanimous consent of the Managers, including the Independent Manager, do any of the following: (i) engage in any business or activity other than those set forth in Article IISection 2.03; (ii) except as provided in the Basic Documents, incur any indebtedness, other than the Bonds, obligations under agreements with third party credit enhancers relating to any Series of Bonds and ordinary course expenses as set forth in Article IISection 2.03, or assume or guarantee any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy casebankruptcy; (v) file a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution (to the fullest extent permitted by law) or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution (to the fullest extent permitted by law) or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) file or otherwise initiate the filing of a motion in any Bankruptcy or other insolvency proceeding in which the Member or any of its Affiliates is a debtor to substantively consolidate the assets and liabilities of any such debtor with the assets and liabilities of the Company; (ix) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, ; or (ixx) amend this Agreement Agreement, or take action any other action, in furtherance of any such action. With regard to any action contemplated by the preceding sentence, or with regard to any action taken or determination made at any time when the Company is insolvent, each the Independent Manager will, will to the fullest extent permitted by law law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company (including the creditors of the Company). (c) The Independent Manager shall not at any time serve as trustee in bankruptcy for any Affiliate of the Company.

Independent Manager. Without limiting Section 4.2 above, the Independent Manager shall have the qualifications, duties, and authority set forth below: (a) The Company shall have at all times at least one individual who is an Independent Manager. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote of the Managers shall be taken until a successor Independent Manager is appointed nominated by the Member and qualifies and approves such actionTrustee in its sole discretion. (b) Notwithstanding anything to the contrary contained herein and until the Repayment Date, the prior consent of the Independent Manager shall be required for the Company to, or to cause or permit any subsidiary to, engage in any of the following (and failure to obtain prior consent of the Independent Manager with respect to any of the following shall render any related actions by the Company void ab initio): (a) institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or any similar official for the Company or a substantial part of its property, (e) make any assignment for the benefit of the Company’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, (g) effect any merger, consolidation, other business combination of the Company with any other provision entity, dissolve, terminate, wind up, or liquidate the Company in whole or in part, or transfer, sell or otherwise dispose of this Agreement and any provision all or substantially all of law that otherwise so empowers the Company’s assets, (h) approve any other transaction material to the Company (as determined by the Independent Manager in his or her sole discretion), approve the budget for all expenditures, and approve any expenditures not provided for in such an approved budget or (i) enter into any transaction with an affiliate of the Company. The Independent Manager shall also have consent rights as to the dissolution of the Company in accordance with the provisions of Section 7.1. Other than the matters described in the preceding two sentences (which matters are referred to herein as the “Independent Manager Consent Matters”), the MemberIndependent Manager shall not have any voting rights with respect to any action to be taken by the Manager. Notwithstanding anything to the contrary contained herein, as of the Repayment Date, all voting and consent rights of the Independent Manager shall cease. For the avoidance of doubt, prior to the Repayment Date, the Special Member, Manager may not authorize the taking of any Independent Manager or any other PersonConsent Matter if at such time the position of Independent Manager is vacant. (c) Notwithstanding anything to the contrary contained herein and until the Repayment Date, the Company Independent Manager shall nothave the rights to direct and manage the sale of the Company’s direct or indirect assets in accordance with the order of sales set forth in Appendix to the Deed of Trust, and neither the Member nor the Special Member, Manager nor shall have all rights and authority to execute and deliver any other Person and all documents on behalf of the Company shallnecessary for such sale, without including but not limited to any purchase and sale agreements, bills of sale, assignments, releases, certificates, affidavits and any other document or instrument the prior unanimous consent Independent Manager deems appropriate to effectuate such sale. The Manager and any Officer shall cooperate with all instructions, directives and requests of the Managers, including Independent Manager in connection with such sale and shall have no right or authority to sign any document or issue any instruction or directive that is contrary to the actions of the Independent Manager, do any of the following: . (id) engage in any business or activity other than those set forth in Article II; The Independent Manager shall not resign without delivering thirty (ii30) except as provided in the Basic Documents, incur any indebtedness, other than the Bonds, obligations under agreements with third party credit enhancers relating to any Series of Bonds and ordinary course expenses as set forth in Article II, or assume or guarantee any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy case; (v) file a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, or (ix) amend this Agreement or take action in furtherance of any such action. With regard to any action contemplated by the preceding sentence, or with regard to any action taken or determination made at any time when the Company is insolvent, each Manager will, to the fullest extent permitted by law including Section 18-1101(c) of the Act, owe its primary fiduciary duty days’ prior written notice to the Company (including and the creditors Company shall provide immediate written notice to the Trustee). Subject to the prior sentence, any such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Only the Trustee may remove the Independent Manager; provided that upon repayment of the Company)Bond Obligations, the Independent Manager shall be automatically removed. 9. Section 7.1 is hereby amended and restated in its entirety as follows:

Independent Manager. (a) The Company shall have at all times at least one individual who is have an Independent Manager. An AIndependent Manager@ shall be a Person who is not, and for at least 2 years prior to such appointment has not been, (i) a director, officer, employee, partner, member or stockholder of any Person owning beneficially, directly or indirectly, any of the outstanding Membership Interests in the Company, or (ii) a director, officer, employee, partner, member or a stockholder, member or partner owning more than 1% of any such beneficial owner=s parent, subsidiaries or Affiliates (in each case other than such person=s capacity as Independent Manager or independent director of the Company or another direct or indirect special purpose finance subsidiary of the Member or its Affiliates). The initial Independent Manager shall be [_____________]. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If shall consider the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote interests of the Managers shall be taken until a successor Independent Manager is appointed by creditors of the Member and qualifies and approves such actionCompany in making his determinations hereunder. (b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, without the Member, consent of the Special Member, any Independent Manager or any other Person, the Company shall not, and neither the Member nor shall not consent to the Special Memberinstitution of bankruptcy or insolvency proceedings against the Company, Manager nor any other Person or file a petition on behalf of the Company shallor consent to a petition seeking reorganization, without liquidation or relief under any applicable federal or state law relating to bankruptcy, or consent to the prior unanimous consent appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Managers, including the Independent Manager, do any Company or a substantial part of the following: (i) engage in any business or activity other than those set forth in Article II; (ii) except as provided in property of the Basic Documents, incur any indebtedness, other than the Bonds, obligations under agreements with third party credit enhancers relating to any Series of Bonds and ordinary course expenses as set forth in Article IICompany, or assume or guarantee make any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy case; (v) file a petition or answer seeking reorganizationthe creditors of the Company, arrangementor, compositionexcept as required by law, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing admit in writing the inability of the Company to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulationpay its debts generally as they become due, or declare or effect a moratorium on the entry debt, if any, of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, or (ix) amend this Agreement Company or take any corporate action in furtherance of any such action. With regard to In addition, the Member shall not institute or prosecute any legal, arbitration or administrative action contemplated by or proceeding against the preceding sentenceCompany. (c) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, without the affirmative consent of the Member and Independent Manager, the Company: (i) will not liquidate or dissolve, or with regard consolidate, merge, convey, transfer or lease its assets substantially as an entirety except as provided in Section 2.04; (ii) will not admit one or more additional Members; and (iii) will not amend the Delaware Certificate or this Agreement. (d) Upon the death, retirement, resignation, expulsion, bankruptcy or dissolution of the Independent Manager, the Member shall appoint a successor Independent Manager. No voluntary or involuntary retirement, resignation, expulsion, bankruptcy or dissolution of the Independent Manager shall be effective until the date upon which a successor Independent Manager has accepted its appointment hereunder. (e) The Company shall indemnify the Independent Manager from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to any action taken or determination made at any time when the operations of the Company as set forth in this Agreement in which the Independent Manager may be involved, or is insolventthreatened to be involved, each as a party or otherwise, unless it is established that: (i) the act or omission of such Manager will, was material to the fullest extent permitted matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the Independent Manager actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Independent Manager had reasonable cause to believe that the act or omission was unlawful. The termination of any proceeding by law including judgment, order or settlement does not create a presumption that the Independent Manager did not meet the requisite standard of conduct set forth in this Section 18-1101(c6.03(e). The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Independent Manager acted in a manner contrary to that specified in this Section 6.03(e). Any indemnification pursuant to this Section 6.03(e) shall be made only out of the Act, owe its primary fiduciary duty to the Company (including the creditors assets of the Company), including insurance proceeds, if any, owned by the Company at the time of such satisfaction. (f) The Company shall reimburse the Independent Manager on a monthly basis for reasonable expenses incurred by the Independent Manager who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Company of a written affirmation by the Independent Manager of the Independent Manager=s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized in this Section 6.03 has been met. (g) The indemnification provided by Section 6.03(e) shall be in addition to any other rights to which the Independent Manager may be entitled under any agreement, as a matter of law or otherwise. (h) In no event may the Independent Manager subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

Independent Manager. (a) The Company shall have at all times at least one individual who is an Independent Manager. The Independent Manager may not delegate his or her duties, authorities or responsibilities hereunder. If the Independent Manager resigns, dies or becomes incapacitated, or such position is otherwise vacant, no action requiring the unanimous affirmative vote of the Managers shall be taken until a successor Independent Manager is appointed by the Member and such successor Independent Manager qualifies and approves such action. (b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Special Member, any Manager or any other Person, the Company shall not, and neither the Member nor the Special Member, Manager nor any other Person on behalf of the Company shall, without the prior unanimous consent of the Managers, including the Independent Manager, do any of the following: (i) engage in any business or activity other than those set forth in Article IISection 2.3; (ii) except as provided in the Basic Documents, incur any indebtedness, other than the Storm-Recovery Bonds, obligations under agreements with third party credit enhancers or swap providers relating to any Series of Storm-Recovery Bonds and ordinary course expenses as set forth in Article II, or assume or guarantee any indebtedness of any other entity; (iii) make a general assignment for the benefit of creditors; (iv) file a petition commencing a voluntary bankruptcy case; (v) file a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (vi) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of it or of its assets or any substantial portion thereof; (vii) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets; (viii) consolidate or merge with or into any other entity or convey or transfer substantially all of its properties and assets substantially as an entirety to any entity, ; or (ix) amend this Agreement or take action in furtherance of any such action. With regard to any action contemplated by the preceding sentence, or with regard to any action taken or determination made at any time when the Company is insolvent, each Manager will, to the fullest extent permitted by law including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company (including the creditors of the Company).