AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CALEDONIA POWER I, L.L.C.
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT ("LLC Agreement"
or "Agreement") for Caledonia Power I, L.L.C. ("Company") dated as of April 5,
2001, is entered into and made effective by Cinergy Capital & Trading, Inc., an
Indiana corporation, (the "Member") as of the Effective Date with reference to
the following facts.
A. Caledonia Power I, L.L.C. is a Delaware limited liability company formed by
Enron Capital & Trade Resources Corp. (and sometimes referred to as "Initial
Member") by filing its original Certificate of Formation with the Secretary of
State of Delaware on July 13, 1998;
B. Cinergy Capital & Trading, Inc now wishes to replace the Limited Liability
Company Agreement in its entirety by entering into this Agreement to provide for
the governance of the Company and the conduct of its business as a limited
liability company. This Agreement shall be considered the "Limited Liability
Company Agreement" of the Company within the meaning of Section 18-101(7) of the
Act.
NOW THEREFORE, the LLC Agreement is wholly replaced and superceded by this
Agreement in its entirety and this Agreement shall read as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to them in the Act.
ARTICLE II
General Provisions
Section 2.1 Company Name. The name of the Company is "Caledonia Power I,
L.L.C." The business of the Company may be conducted upon compliance with all
applicable laws under any other name designated by the member(s).
Section 2.2 Registered Office; Registered Agent.
(a) The Company shall maintain a registered office in the State of
Delaware at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx and the name and
address of the Company's registered agent in the State of Delaware is The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx. (b)
The business address of the Company is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx or such other place, as the Member shall designate.
Section 2.3 Nature of Business Permitted; Powers. The Company may carry on
any lawful business, purpose or activity. The Company shall possess and may
exercise all the powers and privileges granted by the Act or by any other law or
by this Agreement, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
Section 2.4 Business Transactions of a Member with the Company. In
accordance with Section 18-107 of the Act, a member may transact business with
the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a person who is not a member.
Section 2.5 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
shall end on December 31 of each year.
ARTICLE III
Member(s)
Section 3.1 Admission of Member(s). The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.
Section 3.2 Classes.
(a) The membership interests of the Company shall consist of common
membership interests ("Common Interests").
(b) All Common Interests shall be identical with each other in every
respect, except that, should additional member(s) be admitted, Common
Interests of each member shall reflect its capital account relative to the
other member(s).
Section 3.3 Liability of Member(s).
(a) All debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the Company, and no member shall be
obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member.
(b) Except as otherwise expressly required by law, a member shall not
have any liability in excess of (i) the amount of its capital contribution
to the Company, (ii) its share of any assets and undistributed profits of
the Company, (iii) its obligation to make other payments, if any, expressly
provided for in this Agreement or any amendment hereto and (iv) the amount
of any distributions wrongfully distributed to it.
Section 3.4 Access to and Confidentiality of Information; Records.
(a) Any member shall have the right to obtain from the Company from
time to time upon reasonable demand for any purpose reasonably related to
the member's interest as a member of the Company, the documents and other
information described in Section 18-305(a) of the Act.
(b) Any demand by a member pursuant to this Section 3.4 shall be in
writing and shall state the purpose of such demand.
Section 3.5 Meetings of Member(s).
(a) Meetings of the member(s) may be called at any time by any member.
(b) Except as otherwise provided by law, if additional member(s) are
admitted, a majority of the member(s), determined in proportion to their
respective interests in the Company, entitled to vote at the meeting shall
constitute a quorum at all meetings of the member(s).
(c) Any action required to or which may be taken at a meeting of
member(s) may be taken without a meeting, without prior notice and without
a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by all member(s).
(d) Regular meetings of the member(s) shall be held at least annually.
Member(s) may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
Section 3.6 Vote. Except as specifically set forth herein, the business and
affairs of the Company shall be managed by or under the direction of the
member(s) by majority vote.
Section 3.7 Notice. Meetings of the member(s) may be held at such places
and at such times as the member(s) may from time to time determine. Any member
may at any time call a meeting of the member(s). Written notice of the time,
place, and purpose of such meeting shall be served by registered or certified
prepaid, first class mail, via overnight courier using a nationally reputable
courier, or by fax or cable, upon each member and shall be given at least two
(2) business days prior to the time of the meeting. No notice of a meeting need
be given to any member if a written waiver of notice, executed before or after
the meeting by such member thereunto duly authorized, is filed with the records
of the meeting, or to any member who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him or her. A waiver
of notice need not specify the purposes of the meeting.
Section 3.8 Delegation of Powers. Subject to any limitations set forth in
the Act, the member(s) may delegate any of its powers to officers of the Company
or to committees consisting of persons who may or may not be member(s). Every
officer or committee shall, in the exercise of the power so delegated, comply
with any restrictions that may be imposed on them by the member(s).
Section 3.9 Withdrawals and Removals of Member(s). No member may resign,
withdraw or be removed as a member of the Company without the written consent of
all of the member(s).
ARTICLE IV
Management
Section 4.1 General. Except as specifically set forth herein, the business
and affairs of the Company shall be managed by and under the direction of the
Member or if additional member(s) are admitted, the members, who shall have
full, exclusive and complete discretion to manage and control the business and
affairs of the Company as would (if the Company were a corporation) be subject
to control by a board of directors, to make all decisions affecting the business
and affairs of the Company and to take all such actions as it deems necessary or
appropriate to accomplish the purposes of the Company as set forth herein. The
Member or members shall serve without compensation from the Company, and the
Member or members shall bear the cost of its participation in meetings and other
activities of the Company.
Section 4.2 Officers.
(a) Election, Term of Office. Officers shall be elected annually by
the member(s). Except as provided in paragraphs (b) or (c) of this Section
4.1, each officer shall hold office until his or her successor shall have
been chosen and qualified. Any two offices, except those of the President
and the Secretary, may be held by the same person, but no officer shall
execute, acknowledge or verify any instrument in more than one capacity if
such instrument is required by law or this Agreement to be executed,
acknowledged or verified by any two or more officers.
(b) Resignations and Removals. Any officer may resign his or her
office at any time by delivering a written resignation to the member(s).
Unless otherwise specified therein, such resignation shall take effect upon
delivery. Any officer may be removed from office with or without cause by
either the member(s) or the President.
(c) Vacancies and Newly Created Offices. If any vacancy shall occur in
any office by reason of death, resignation, removal, disqualification or
other cause, or if any new office shall be created, such vacancies or newly
created offices may be filled by the President, subject to approval and
election by the member(s).
(d) Conduct of Business. Subject to the provisions of this Agreement,
the day-to-day operations of the Company shall be managed by its officers
and such officers shall have full power and authority to make all business
decisions, enter into all commitments and take such other actions in
connection with the business and operations of the Company as they deem
appropriate. Such officers shall perform their duties in a manner
consistent with this Agreement and with directions, which may be given from
time to time by the member(s).
(e) President. Subject to the further directives of the member(s), the
President shall have general and active management of the business of the
Company subject to the supervision of the member(s), shall see that all
orders and resolutions of the member(s) are carried into effect and shall
have such additional powers and authority as are specified by the
provisions of this Agreement.
(f) Secretary. The Secretary shall attend all meetings of the
member(s) and record all the proceedings of the meetings and all actions
taken thereat in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of the member(s), and shall
perform such other duties as may be prescribed by the member(s) or the
President. The Assistant Secretary, if there be one, shall, in the absence
of the Secretary or in the event of the Secretary's inability to act,
perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the member(s) may
from time to time prescribe.
(g) Other Officers. The member(s) from time to time may appoint such
other officers or agents, as it may deem advisable, each of whom shall have
such title, hold office for such period, have such authority and perform
such duties as the member(s) may determine in its sole discretion. The
member(s) from time to time may delegate to one or more officers or agents
the power to appoint any such officers or agents and prescribe their
respective rights, terms of office, authorities and duties.
(h) Officers as Agents; Authority. The officers, to the extent of
their powers set forth in this Agreement and/or delegated to them by the
member(s), are agents and managers of the Company for the purpose of the
Company's business, and the actions of the officers taken in accordance
with such powers shall bind the Company.
Section 4.3 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely conclusively upon the power and authority of the member(s)
herein set forth.
Section 4.4 Expenses. Except as otherwise provided in this Agreement, the
Company shall be responsible for and shall pay all expenses out of funds of the
Company determined by the member(s) to be available for such purpose, provided
that such expenses are those of the Company or are otherwise incurred by the
member(s) in connection with this Agreement, including, without limitation:
(a) all expenses related to the business of the Company and all
routine administrative expenses of the Company, including the maintenance
of books and records of the Company, the preparation and dispatch to any
member(s) of checks, financial reports, tax returns and notices required
pursuant to this Agreement or in connection with the holding of any
meetings of the member(s);
(b) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any investigation
and preparation) and the amount of any judgment or settlement paid in
connection therewith;
(c) all expenses for indemnity or contribution payable by the Company
to any person;
(d) all expenses incurred in connection with the collection of amounts
due to the Company from any person;
(e) all expenses incurred in connection with the preparation of
amendments to this Agreement; and
(f) expenses incurred in connection with the liquidation, dissolution
and winding up of the Company.
ARTICLE V
Finance
Section 5.1 Form of Contribution. The contribution of a member to the
Company must be in cash or property, provided that if there is more than one
member, all member(s) must consent in writing to contributions of property. To
the extent there is more than one member, additional contributions in the same
proportion shall be made by each member, except as may be approved by all
member(s). A capital account shall be maintained for each member, to which
contributions and profits shall be credited and against which distributions and
losses shall be charged. At any time that there is more than one member, capital
accounts shall be maintained in accordance with the tax accounting principles
prescribed by the Treasury Regulations promulgated under Code Section 704 (the
"Allocation Regulations"), so that the tax allocations provided in this
Agreement shall, to the extent possible, have "substantial economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have substantial economic effect, so that they may be deemed to be "in
accordance with the member(s') interests in the Company" within the meaning of
the Allocation Regulations.
Section 5.2 Allocation of Profits and Losses. The profits and losses of the
Company shall be allocated entirely to the Member or, if additional member(s)
are admitted, the member(s) in proportion to their respective capital accounts.
Section 5.3 Allocation of Distributions. The distributions of the Company
shall be allocated entirely to the Member or, if additional member(s) are
admitted, the member(s) in proportion to their respective capital accounts.
ARTICLE VI
Distribution
Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may receive distributions from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.
ARTICLE VII
Assignment of Membership and Common Interests
Section 7.1 Assignment of Membership and Common Interests. Membership and
Common Interests in the Company shall be assignable and transferable. Any
transferee shall not be admitted as a member unless and until the transferee has
executed a counterpart of this Agreement.
Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited liability company interest issued by
the Company.
ARTICLE VIII
Dissolution
Section 8.1 Duration. The duration of the Company shall be perpetual.
Section 8.2 Winding Up. Subject to the provisions of the Act, the Member
or, if additional member(s) are admitted, the member(s) (acting by written
consent of all member(s)) shall have the right to wind up the Company's affairs
in accordance with Section 18-803 of the Act (and shall promptly do so upon
dissolution of the Company) and shall also have the right to act as or appoint a
liquidating trustee in connection therewith.
Section 8.3 Distribution of Assets. Upon the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.
ARTICLE IX
Tax Characterization; Reports
Section 9.1 Tax Treatment. The Company shall timely make all necessary
elections and filings for federal, state, and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.
Section 9.2 Form K-1. After the end of each Fiscal Year for which the
Company shall have more than one member, the member(s) shall cause to be
prepared and transmitted, as promptly as possible, and in any event within 90
days of the close of such Fiscal Year, a federal income tax Form K-1 and any
required similar state income tax form for each member.
Section 9.3 Company Tax Returns. The Member, or if additional member(s) are
admitted, the member(s) shall cause to be prepared and timely filed all tax
returns required to be filed for the Company. The Member or the member(s) (as
the case may be) may, in their sole discretion, make or refrain from making any
federal, state or local income or other tax elections for the Company that it
deems necessary or advisable; provided that if there is more than one member,
the prior written consent of all the member(s) shall be required in order for
the Company to make an election pursuant to Section 754 of the Internal Revenue
Code of 1986, as amended (the "Code").
ARTICLE X
Exculpation and Indemnification
Section 10.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, any member, or any officers, directors, stockholders, partners,
employees, representatives or agents of any of the foregoing, nor any officer,
employee, representative, Manager or agent of the Company or any of its
affiliates (individually, a "Covered Person" and collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted
in good faith by a Covered Person and in the reasonable belief that such act or
omission is in or is not contrary to the best interests of the Company and is
within the scope of authority granted to such Covered Person by the Agreement,
provided that such act or omission does not constitute fraud, willful
misconduct, bad faith, or gross negligence.
Section 10.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative, in which
the Covered Person may be involved, or threatened to be involved, as a party or
otherwise, by reason of its management of the affairs of the Company or which
relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 10.2
with respect to any claim, issue or matter in which it has engaged in fraud,
willful misconduct, bad faith or gross negligence.
ARTICLE XI
Miscellaneous
Section 11.1 Amendment to this Agreement. Except as otherwise provided in
this Agreement, this Agreement may be amended by, and only by, a written
instrument executed by the Member or, if additional member(s) are admitted,
unanimous consent of the member(s).
Section 11.2 Successors; Counterparts. Subject to Article VIII, this
Agreement (a) shall be binding as to the executors, administrators, estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional member(s) are admitted, the member(s) and (b) may be executed in
several counterparts with the same effect as if the parties executing the
several counterparts had all executed one counterpart.
Section 11.3 Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflict of laws thereof. In particular, this
Agreement shall be construed to the maximum extent possible to comply with all
the terms and conditions of the Act. If, nevertheless, it shall be determined by
a court of competent jurisdiction that any provisions or wording of this
Agreement shall be invalid or unenforceable under the Act or other applicable
law, such invalidity or unenforceability shall not invalidate the entire
Agreement and this Agreement shall be construed so as to limit any term or
provision so as to make it enforceable or valid within the requirements of
applicable law, and, in the event such term or provisions cannot be so limited,
this Agreement shall be construed to omit such invalid or unenforceable terms or
provisions. If it shall be determined by a court of competent jurisdiction that
any provisions relating to the distributions and allocations of the Company or
to any expenses payable by the Company is invalid or unenforceable, this
Agreement shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.
Section 11.4 Filings. Following the execution and delivery of this
Agreement, the Member shall promptly prepare any documents required to be filed
and recorded under the Act, and the Member shall promptly cause each such
document to be filed and recorded in accordance with the Act and, to the extent
required by local law, to be filed and recorded or notice thereof to be
published in the appropriate place in each jurisdiction in which the Company may
hereafter establish a place of business. The Member shall also promptly cause to
be filed, recorded and published such statements of fictitious business name and
any other notices, certificates, statements or other instruments required by any
provision of any applicable law of the United States or any state or other
jurisdiction which governs the conduct of its business from time to time.
Section 11.5 Headings. Section and other headings contained in this Agreement
are for reference purposes only and are not intended to describe, interpret,
define or limit the scope or intent of this Agreement or any provision hereof.
Section 11.6 Additional Documents. Each member agrees to perform all
further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
Section 11.7 Notices. All notices, requests and other communications to any
member shall be in writing (including telecopier or similar writing) and shall
be given to such member (and any other person designated by such member) at its
address or telecopier number set forth in a schedule filed with the records of
the Company or such other address or telecopier number as such member may
hereafter specify for the purpose by notice. Each such notice, request or other
communication shall be effective (a) if given by telecopier, when transmitted to
the number specified pursuant to this Section and the appropriate confirmation
is received, (b) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid,
or (c) if given by any other means, when delivered at the address specified
pursuant to this Section.
Section 11.8 Books and Records; Accounting. The Member or, if additional
member(s) are admitted, the member(s) shall keep or cause to be kept at the
address of the Company (or at such other place as the member(s) shall determine
in their discretion) true and full books and records regarding the status of the
business and financial condition of the Company.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
the date first above written.
Cinergy Capital & Trading, Inc.
By: ____________________________
Xxxxxxx X. Cyrus
President
