Common use of Management by Managing Member Clause in Contracts

Management by Managing Member. (a) The management, operation and power of the Company shall be vested exclusively in CAC (and any successor thereto in accordance with this Agreement, in such capacity, the “Managing Member”), which shall have the power by itself and shall be authorized and empowered on behalf and in the name of the Company to carry out any and all of the objects and purposes of the Company and to perform all acts and enter into and perform all contracts and other undertakings that it may in its discretion deem necessary or advisable or incidental thereto, all in accordance with and subject to the other terms of this Agreement. The Managing Member will conduct no business other than managing and operating the Company and operating as a public company and as a capital source for the Company and its Subsidiaries, businesses, properties and assets, and fulfilling its duties, in each case, under this Agreement and applicable Law, and other lawful business activities that are related or incidental to and necessary, convenient or advisable for the foregoing powers and duties. (b) Without limiting the foregoing general powers and duties, the Managing Member is hereby authorized and empowered on behalf and in the name of the Company, or on its own behalf and in its own name, or through agents, as may be appropriate, subject to the limitations contained elsewhere in this Agreement, to: (i) open, maintain and close bank accounts and draw checks or other orders for the payment of money and open, maintain and close brokerage, money market fund and similar accounts; (ii) hire for usual and customary payments and expenses consultants, brokers, prime brokers, attorneys, accountants, administrators, advisors and such other agents for the Company as it may deem necessary or advisable, and authorize any such agent to act for and on behalf of the Company; and (iii) enter into, execute, maintain and/or terminate contracts, undertakings, agreements and any and all other documents and instruments in the name of the Company, and to do or perform all such things as may be necessary or advisable in furtherance of the Company’s powers, objects or purposes or to the conduct of the Company’s activities. (c) The Managing Member shall conduct its duties and exercise its powers, as provided herein, in good faith for the benefit of the Company. Without limiting the foregoing and except as otherwise provided in this Agreement, the Managing Member shall have the same duties to the Company and its Members as does a director of a corporation incorporated under the laws of Delaware, assuming such director were protected to the maximum extent possible by the inclusion in the certificate of incorporation of such corporation of a provision contemplated by Section 102(b)(7) of the Delaware General Corporation Law, as amended from time to time. (d) The Company is hereby authorized to execute, deliver and perform, and the Managing Member on behalf of the Company is hereby authorized to execute and deliver, the Management Services Agreement and all documents, agreements or certificates contemplated thereby or related thereto, all without any further act, vote or approval of any other Person notwithstanding any other provision of this Agreement. The foregoing authorization shall not be deemed a restriction on the powers of the Managing Member to enter into other agreements on behalf of the Company. (e) Notwithstanding the foregoing, the Managing Member shall not authorize the taking of any of the following actions without the prior approval of the CAC Board: (i) any liquidation, winding up or dissolution of the Company in accordance with Section 12.1, or any of its Subsidiaries, or the initiation of any action relating to bankruptcy, reorganization or recapitalization with respect to the Company or any of its Subsidiaries; (ii) any merger, consolidation or sale of all or substantially all of the assets of the Company or any of its Subsidiaries; (iii) any acquisitions or investments outside of the ordinary course of CEC’s and/or its Subsidiaries’ business; and (iv) any material amendment to this Agreement. (f) The Managing Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Managing Member shall determine that the preservation thereof is no longer desirable for the conduct of the Company’s business and that the loss thereof is not disadvantageous in any material respect to the Company. The Managing Member shall, and shall cause the Company to, as applicable: (i) maintain its own separate books and records and bank accounts; (ii) at all times hold itself out to the public and all other Persons as a legal entity separate from the CEC Group, the Managing Member and any other Person; (iii) file its own tax returns, if any, as may be required under applicable Law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable Law; (iv) not commingle its assets with assets of any entity of the CEC Group or any other Person; (v) conduct its business (including all written and oral communications) in its own name and through its duly authorized Officers or agents, and strictly comply with all organizational formalities to maintain its separate existence; (vi) maintain separate financial statements; (vii) pay its own liabilities only out of its own funds; (viii) maintain an arm’s length relationship with any Member and with any entity of the CEC Group; (ix) enter into the Management Services Agreement with any CEC Member and/or any entity of the CEC Group on arm’s length terms or cause the services that would otherwise be provided under the Management Services Agreement to be provided by the Company or any Affiliate or Subsidiary of the Company; (x) pay the salaries of its own employees, if any (provided, that the foregoing shall not require the Managing Member to make any Additional Capital Contributions to the Company); (xi) allocate fairly and reasonably any overhead for shared office space; (xii) not hold out its credit or assets as being available to satisfy the obligations of others; (xiii) use separate invoices, checks and stationery; (xiv) not pledge its assets for the benefit of any entity of the CEC Group, the Managing Member or any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (provided, that the foregoing shall not require the Managing Member to make any Additional Capital Contributions to the Company); and (xvii) cause its Managing Member to act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities. Failure of the Company, or the Managing Member on behalf of the Company, to comply with any of the foregoing covenants shall not affect the status of the Company as a separate legal entity or the limited liability of the Managing Member.

Management by Managing Member. (a) The management, operation and power of the Company shall be vested exclusively in CAC Panda Power Generation Infrastructure Fund GP, L.P. (and any successor thereto in accordance with this Agreement, in such capacity, the “Managing Member”), which shall have the power by itself and shall be authorized and empowered on behalf and in the name of the Company to carry out any and all of the objects and purposes of the Company and to perform all acts and enter into and perform all contracts and other undertakings that it may in its sole discretion deem necessary or advisable or incidental thereto, all in accordance with and subject to the other terms of this Agreement. The Managing Member will conduct no business other than managing and operating the Company and operating as a public company and as a capital source for the Company and its Subsidiaries, businesses, properties and assets, and fulfilling its duties, in each case, under this Agreement and applicable Law, and other lawful business activities that are related or incidental to and necessary, convenient or advisable for the foregoing powers and duties. (b) Without limiting the foregoing general powers and duties, the Managing Member is hereby authorized and empowered on behalf and in the name of the Company, or on its own behalf and in its own name, or through agents, as may be appropriate, subject to the limitations contained elsewhere in this Agreement, to: (i) open, maintain and close bank accounts and draw checks or other orders for the payment of money and open, maintain and close brokerage, money market fund and similar accounts; (ii) hire for usual and customary payments and expenses consultants, brokers, prime brokers, attorneys, accountants, administrators, advisors and such other agents for the Company as it may deem necessary or advisable, and authorize any such agent to act for and on behalf of the Company; and (iii) enter into, execute, maintain and/or terminate contracts, undertakings, agreements and any and all other documents and instruments in the name of the Company, and to do or perform all such things as may be necessary or advisable in furtherance of the Company’s powers, objects or purposes or to the conduct of the Company’s activities. (c) The Managing Member Manager shall conduct its duties and exercise its powers, as provided herein, in good faith for the benefit of the Company. Without limiting the foregoing and except as otherwise provided in this Agreement, the Managing Member shall have the same duties to the Company and its Members as does a director of a corporation incorporated under the laws of Delaware, assuming such director were protected to the maximum extent possible by the inclusion in the certificate of incorporation of such corporation of a provision contemplated by Section 102(b)(7) of the Delaware General Corporation Law, as amended from time to time. (d) The Company is hereby authorized to execute, deliver and perform, and the Managing Member on behalf of the Company is hereby authorized to execute and deliver, the Management Services Agreement Transaction Documents and all documents, agreements or certificates contemplated thereby or related thereto, all without any further act, vote or approval of any other Person notwithstanding any other provision of this Agreement. The foregoing authorization shall not be deemed a restriction on the powers of the Managing Member to enter into other agreements on behalf of the Company. (e) Notwithstanding the foregoing, the Managing Member shall not authorize the taking of any of the following actions without the prior approval of the CAC Board: (i) any liquidation, winding up or dissolution of the Company in accordance with Section 12.1, or any of its Subsidiaries, or the initiation of any action relating to bankruptcy, reorganization or recapitalization with respect to the Company or any of its Subsidiaries; (ii) any merger, consolidation or sale of all or substantially all of the assets of the Company or any of its Subsidiaries; (iii) any acquisitions or investments outside of the ordinary course of CEC’s and/or its Subsidiaries’ business; and (iv) any material amendment to this Agreement. (f) The Managing Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Managing Member shall determine that the preservation thereof is no longer desirable for the conduct of the Company’s business and that the loss thereof is not disadvantageous in any material respect to the Company. The Managing Member shall, and shall cause the Company to, as applicable: (i) maintain its own separate books and records and bank accounts; (ii) at all times hold itself out to the public and all other Persons as a legal entity separate from the CEC Group, the Managing Member and any other Person; (iii) file its own tax returns, if any, as may be required under applicable Law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable Law; (iv) not commingle its assets with assets of any entity of the CEC Group or any other Person; (v) conduct its business (including all written and oral communications) in its own name and through its duly authorized Officers or agents, and strictly comply with all organizational formalities to maintain its separate existence; (vi) maintain separate financial statements; (vii) pay its own liabilities only out of its own funds; (viii) maintain an arm’s length relationship with any Member and with any entity of the CEC Group; (ix) enter into the Management Services Agreement with any CEC Member and/or any entity of the CEC Group on arm’s length terms or cause the services that would otherwise be provided under the Management Services Agreement to be provided by the Company or any Affiliate or Subsidiary of the Company; (x) pay the salaries of its own employees, if any (provided, that the foregoing shall not require the Managing Member to make any Additional Capital Contributions to the Company); (xi) allocate fairly and reasonably any overhead for shared office space; (xii) not hold out its credit or assets as being available to satisfy the obligations of others; (xiii) use separate invoices, checks and stationery; (xiv) not pledge its assets for the benefit of any entity of the CEC Group, the Managing Member or any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (provided, that the foregoing shall not require the Managing Member to make any Additional Capital Contributions to the Company); and (xvii) cause its Managing Member to act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities. Failure of the Company, or the Managing Member on behalf of the Company, to comply with any of the foregoing covenants shall not affect the status of the Company as a separate legal entity or the limited liability of the Managing Member.