Exhibit 3-2
LIMITED LIABILITY COMPANY AGREEMENT
OF
PSNH FUNDING LLC,
a Delaware Limited Liability Company,
is made and is effective as of January 24, 2001
and is amended and restated as of April 25, 2001
by
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
a New Hampshire Corporation
Article 1 DEFINITIONS
Section 1.01 Definitions
Article 2 FORMATION AND BUSINESS OF THE COMPANY
Section 2.01 Formation
Section 2.02 Name
Section 2.03 Principal Office
Section 2.04 Registered Agent and Registered Office
Section 2.05 Purpose
Section 2.06 Separate Existence
Section 2.07 Limitation on Certain Activities
Section 2.08 No State Law Partnership
Section 2.09 Address of the Sole Member
Article 3 TERM
Section 3.01 Commencement
Section 3.02 Continuation
Article 4 CAPITAL CONTRIBUTIONS
Section 4.01 Capital Contribution
Section 4.02 Capital Account
Section 4.03 Interest on and Return of Capital Account
Article 5 ALLOCATIONS; BOOKS
Section 5.01 Allocations of Income and Loss
Section 5.02 Books of Account
Section 5.03 Distributions
Article 6 MANAGEMENT OF THE COMPANY
Section 6.01 Management of Company
Section 6.02 Withdrawal of Director
Section 6.03 Duties of Directors
Section 6.04 Removal of Director
Section 6.05 Quorum: Acts of the Management Committee
Section 6.06 Officers
Section 6.07 Special Members.
Article 7 DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 7.01 Dissolution
Section 7.02 Accounting
Section 7.03 Certificate of Cancellation
Section 7.04 Winding Up
Section 7.05 Order of Payment of Liabilities Upon Dissolution
Section 7.06 Limitations on Payments Made in Dissolution
Article 8 TRANSFER AND ASSIGNMENT
Section 8.01 Transfer of Membership Interests
Section 8.02 Admission of Transferee as Member
Article 9 GENERAL PROVISIONS
Section 9.01 Notices
Section 9.02 Controlling Law
Section 9.03 Execution of Counterparts
Section 9.04 Severability
Section 9.05 Entire Agreement
Section 9.06 Amendments to Organizational Documents
Section 9.07 Paragraph Headings
Section 9.08 Gender, Etc
Section 9.09 Limited Liability
Section 9.10 Assurances
Section 9.11 Enforcement by Independent Director
Section 9.12 Waiver of Partition; Nature of Interest
Article 10 INDEMNIFICATION
Section 10.01 Indemnification
Section 10.02 Indemnification for Suits by or in Right of Company
Section 10.03 Authorization
Section 10.04 Good Faith
Section 10.05 Court Action
Section 10.06 Expenses
Section 10.07 Non-Exclusivity
Section 10.08 Insurance
Section 10.09 Consolidation/Merger
Section 10.10 Heirs, Executors, and Administrators
LIMITED LIABILITY COMPANY AGREEMENT
OF
PSNH FUNDING LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of PSNH
FUNDING LLC, a Delaware limited liability company (the "Company"), is made
and is effective as of January 24, 2001, and is amended and restated as of
April 25, 2001, by PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, a New Hampshire
corporation, as the sole member of the Company (the "Sole Member").
WHEREAS, the Sole Member has caused to be filed a Certificate of
Formation with the Secretary of State of Delaware (the "Secretary") to
organize the Company under and pursuant to the Act (as herein defined) and
desires to enter into this Agreement to set forth the rights, powers and
interests of the Sole Member with respect to the Company and its Membership
Interest therein and to provide for the management of the business and
operations of the Company; and
WHEREAS, this Agreement was made effective as of January 24, 2001 and
the Sole Member now wishes to amend and restate this Agreement in its
entirety as of the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Sole Member,
intending to be legally bound, hereby agrees as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. Except as otherwise herein expressly
provided, the following terms and phrases shall have the meanings as set
forth below:
"Act" shall mean the Delaware Limited Liability Company Act, Del. Code
Xxx. tit. 6, 18-101 et seq., as the same may hereafter be amended from time
to time.
"Administration Agreement" shall mean the Administration Agreement to be
entered into by the Administrator and the Company, as amended and
supplemented from time to time.
"Administrator" shall mean the Sole Member, as administrator under the
Administration Agreement, together with any successor thereto as permitted
thereby.
"Affiliate" shall mean, when used with reference to a specific Person,
any other Person that, directly or indirectly, through one or more
intermediaries, Controls, is Controlled by or is under common Control with
such specific Person.
"Agreement" shall mean this Limited Liability Company Agreement of the
Company, as amended, modified, supplemented or restated from time to time in
accordance with the terms hereof.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition
in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceeding,
(iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against it in any proceeding of this nature, or (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of the Person or of all or any substantial part of its properties,
or if 120 days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, the
proceeding has not been dismissed, or if within 90 days after the appointment
without such Person's consent or acquiescence of a trustee, receiver or
liquidator of such Person or of all or any substantial part of its
properties, the appointment is not vacated or stayed, or within 90 days after
the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall
supersede and replace the definition of "Bankruptcy" set forth in Sections
18-101(1) and 18-304 of the Act.
"Basic Documents" means, collectively, the Purchase and Sale Agreement,
the Indenture, the Servicing Agreement, the Fee and Indemnity Agreement and
the Administration Agreement.
"Bonds" shall mean the bonds of the Company at any time issued pursuant
to the Indenture or any indenture supplemental thereto.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in New York, New York,
Manchester, New Hampshire, Hartford, Connecticut or Wilmington, Delaware are
authorized or obligated by law, regulation or executive order to remain
closed.
"Capital Contribution" shall mean, with respect to the Sole Member, the
amount of cash and the value of any property contributed to the Company.
"Certificate" shall mean the Certificate of Formation of the Company
filed with the Secretary on January 24, 2001 as described in Formation. The
Company has been organized as a Delaware limited liability company under and
pursuant to the Act by the filing of the Certificate with the Secretary by
Xxxxxxxx X. Xxxxxx, as an "authorized person" under the Act. Upon the filing
of the Certificate with the Secretary, another certificate to qualify the
Company to do business in the State of New Hampshire, and an application for
a Federal Tax Identification Number, his powers as an "authorized person"
ceased, and each Officer, acting singly, thereupon became and shall continue
as a designated "authorized person" of the Company. An Officer shall
execute, deliver and file any other certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in
any jurisdiction in which the Company may wish to conduct business. To the
extent that the rights or obligations of the Sole Member are different by
reason of any provision of this Agreement than they would be in the absence
of such provision, this Agreement shall, to the extent permitted by the Act,
control. and as amended, modified, supplemented, or restated from time to
time.
"Company" shall have the meaning assigned to such term in the preamble
hereto.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through ownership of voting securities or general partnership
or manager interests, by contract or otherwise. "Controls" and "Controlled"
shall have correlative meanings. Without limiting the generality of the
foregoing, a Person shall be deemed to Control any other Person in which it
owns, directly or indirectly, a majority of the ownership interests.
"Director" shall mean a member of the Management Committee and a manager
within the meaning of the Act.
"Entity" shall mean any general partnership, limited partnership,
limited liability company, corporation, joint venture, foundation, trust,
business trust, real estate investment trust or association.
"Event of Bankruptcy" shall mean, with respect to any Person, that such
Person shall (i) institute proceedings to be adjudicated bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency
proceedings against it, (iii) file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating
to bankruptcy, (iv) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such Person or
a substantial part of its property, (v) make a general assignment for the
benefit of creditors or (vi) admit in writing its inability to pay its debts
generally as they become due.
"Fee and Indemnity Agreement" shall mean the Fee and Indemnity Agreement
to be entered into between the Company and a trustee, as amended,
supplemented or modified from time to time.
"GAAP" shall mean generally accepted accounting principles in effect in
the United States from time to time.
"Indenture" shall mean that certain Indenture to be entered into between
the Company, as issuer, and a trustee, as amended, supplemented or modified
from time to time.
"Independent Director" shall mean a natural person who is familiar with
and has experience with asset securitization and is not at the time of
appointment, has not been at any time preceding such appointment and is not
during the term of such appointment (other than as incidental to such
person's role as Independent Director): (i) a member, stockholder, partner,
director, manager, officer or employee of any member of the PSNH Affiliated
Group (other than the Company and any such member of the PSNH Affiliated
Group that is a bankruptcy-remote special purpose entity formed or to be
formed in connection with any securitization transaction on behalf of any
member of the PSNH Affiliated Group); (ii) a customer, supplier or other
person who derives more than two percent (2%) of its purchases or revenues
from its activities with the Company or any member of the PSNH Affiliated
Group; (iii) a member of the family of any such member, stockholder, partner,
director, manager, officer, employee, customer or supplier; or (iv) a trustee
in bankruptcy for any member of the PSNH Affiliated Group.
"Management Agreement" shall mean the agreement or agreements of the
members of the Management Committee, each in the form attached hereto as
Exhibit A. The Management Agreement shall be deemed incorporated into, and
part of, this Agreement.
"Management Committee" shall mean a committee composed of at least three
and no more than five Directors, at least two of whom at all times upon and
after the acquisition by the Company of RRB Property must qualify as
Independent Directors. At all times after the acquisition by the Company of
RRB Property, the Company shall be without authority to take the actions
specified herein as requiring the vote or consent of the Management Committee
absent the currently effective appointment of at least two Independent
Directors to the Management Committee.
"Membership Interest" shall mean the limited liability company interest
of the Sole Member in the Company.
"Officer" shall mean an officer of the Company as appointed and serving
in accordance with Officers. The Sole Member may, from time to time as it
deems advisable, appoint officers of the Company (the "Officers") and assign
in writing titles (including, without limitation, President, Vice President,
Secretary, and Treasurer) to any such person. Unless the Sole Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law the assignment
of such title shall constitute the delegation to such person of the
authorities and duties that are normally associated with that office. Any
delegation pursuant to this Section 6.06 may be revoked at any time by the
Sole Member. The Officers shall be those individuals listed on Exhibit C
from time to time attached hereto. The Sole Member may revise Exhibit C in
its sole discretion at any time..
"Person" shall mean any natural person or Entity.
"PSNH Affiliated Group" shall mean the Sole Member and any Affiliate of
the Sole Member (other than the Company).
"Purchase and Sale Agreement" shall mean the Purchase and Sale Agreement
to be entered into by the Company and the Sole Member, as amended and
supplemented from time to time.
"RRB Property" shall mean the property to be transferred to the Company
pursuant to the Purchase and Sale Agreement.
"Sale Agreements" shall have the meaning specified in Purpose. The
Company is intended to qualify as a "financing entity" as defined in RSA 369-
B:2, VI. As such, the purpose for which the Company is formed is limited
solely to the following activities:.
"Secretary" shall have the meaning assigned to such term in the first
recital of this Agreement.
"Servicer" shall mean the Sole Member, as servicer under the Servicing
Agreement, together with any successor thereto as permitted thereby.
"Servicing Agreement" shall mean that certain Servicing Agreement to be
entered into by the Servicer and the Company, as issuer, as amended and
supplemented from time to time.
"Sole Member" shall have the meaning assigned to such term in the
preamble hereto.
"Special Member" shall have the meaning specified in Section 6.07.
ARTICLE 2
FORMATION AND BUSINESS OF THE COMPANY
Section 2.01 Formation. The Company has been organized as a Delaware
limited liability company under and pursuant to the Act by the filing of the
Certificate with the Secretary by Xxxxxxxx X. Xxxxxx, as an "authorized
person" under the Act. Upon the filing of the Certificate with the
Secretary, another certificate to qualify the Company to do business in the
State of New Hampshire, and an application for a Federal Tax Identification
Number, his powers as an "authorized person" ceased, and each Officer, acting
singly, thereupon became and shall continue as a designated "authorized
person" of the Company. An Officer shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in any jurisdiction in which the
Company may wish to conduct business. To the extent that the rights or
obligations of the Sole Member are different by reason of any provision of
this Agreement than they would be in the absence of such provision, this
Agreement shall, to the extent permitted by the Act, control.
Section 2.02 Name. The name of the Company shall be "PSNH Funding
LLC". The business of the Company may be conducted under that name or, upon
compliance with applicable laws, any other name that the Sole Member deems
appropriate or advisable.
Section 2.03 Principal Office. The location of the principal place of
business of the Company shall be at such location as shall be provided from
time to time by the Administrator under the Administration Agreement.
Section 2.04 Registered Agent and Registered Office. The registered
agent of the Company shall be the initial registered agent named in the
Certificate or such other Person or Persons as the Sole Member may designate
from time to time in the manner provided by the Act. The registered office
of the Company required by the Act to be maintained in the State of Delaware
shall be the initial registered office named in the Certificate or such other
office (which need not be a place of business of the Company) as the Sole
Member may designate from time to time in the manner provided by the Act.
Section 2.05 Purpose. The Company is intended to qualify as a
"financing entity" as defined in RSA 369-B:2, VI. As such, the purpose for
which the Company is formed is limited solely to the following activities:
(a) to acquire, own, hold, administer, service, and enter into the
Basic Documents to which it shall be a party and any other agreements
regarding the receipt and servicing of the RRB Property, along with certain
other related assets;
(b) to enter into, perform and comply with the Purchase and Sale
Agreement, assignment agreements, or other agreements providing for the
purchase of the RRB Property, any future "RRB property" (as such term is
defined in RSA 369-B:2, XV), and related assets by the Company (collectively,
the "Sale Agreements"); and to enter into, perform and comply with such
servicing agreements, administration agreements, collection account
agreements and other similar agreements as may be necessary or desirable in
connection with such Sale Agreements;
(c) to issue, sell, authorize and deliver the Bonds and to enter
into any agreement or document providing for the authorization, issuance,
sale and delivery of the Bonds;
(d) to manage, collect amounts due on, sell, exchange, assign,
pledge, encumber, or otherwise deal with all or any part of the RRB Property
and its other assets and property, and, in connection therewith, to accept,
collect, hold, sell, exchange or otherwise dispose of evidences of
indebtedness or other property received pursuant thereto, including the
encumbrance of all of the RRB Property and its other assets as collateral
security;
(e) to invest proceeds from the RRB Property and its other assets
and any capital and income of the Company in accordance with the Basic
Documents or as otherwise determined by the Management Committee and not
inconsistent with this Agreement or the Basic Documents;
(f) to execute any registration statement, offering document or
related agreements or disclosures related to the issuance of rate reduction
bonds or other instruments secured by the RRB Property; and
(g) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies formed under the laws of the
State of Delaware that, in either case, are incidental to and necessary,
suitable or convenient for the accomplishment of the above-mentioned
purposes.
The Company shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of any Sale Agreement, Basic Document or other agreement referenced
above. The Company shall have all powers reasonably necessary or convenient
to effect the foregoing purposes, including all powers granted under the Act.
The Company, and any Officer or Director, including any Independent Director,
on behalf of the Company, may enter into the Basic Documents and perform
their respective obligations under the Basic Documents and all documents,
agreements, certificates or financing statements contemplated thereby or
related thereto, all without any further act, vote or approval of the Sole
Member, the Management Committee, any Director or other person or entity,
notwithstanding any other provision of this Agreement, the Act, or other
applicable law, rule or regulation. The authorization set forth in the
preceding sentence shall not be deemed a restriction on the power and
authority of any Officer or Director, including any Independent Director, to
enter into other agreements or documents on behalf of the Company, to the
extent permitted hereunder.
Section 2.06 Separate Existence. The Company, and the Sole Member and
the Management Committee on behalf of the Company, shall:
(a) Maintain in full effect its existence, rights and franchises
as a limited liability company under the laws of the State of Delaware and
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and each other instrument or agreement
necessary or appropriate to the proper administration hereof and to permit
and effectuate the undertakings contemplated hereby.
(b) Hold itself out to the public and all other persons as a legal
entity separate from the Sole Member at all times, and correct any known
misunderstandings regarding its separate identity.
(c) Maintain with commercial banking institutions its own deposit
account or accounts separate from those of any member of the PSNH Affiliated
Group.
(d) Maintain an arm's length relationship with its Affiliates and
the PSNH Affiliated Group.
(e) Pay the salaries of its own employees, if any, and maintain a
sufficient number of employees in light of its contemplated business
operations, or, if there are no such employees, ensure that, to the extent
that it shares the same officers or other employees with the Sole Member or
any member of the PSNH Affiliated Group, the salaries of, and the expenses
related to providing benefits to, such officers and other employees shall be
separately noted in its books and records and fairly allocated among such
entities, and each such entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and employees.
(f) Pay all of its operating expenses incurred by it from the
assets of the Company, and ensure that, to the extent that it jointly
contracts with the Sole Member or any member of the PSNH Affiliated Group to
do business with vendors or service providers or to share overhead expenses,
the costs incurred in so doing shall be allocated fairly among such entities,
and each such entity shall bear its fair share of such costs.
(g) Maintain a principal executive and administrative office
through which its business is conducted separate from those of the Sole
Member and any Affiliate of the PSNH Affiliated Group. To the extent that
the Company and the Sole Member or any Affiliate of the PSNH Affiliated Group
have offices in contiguous or shared space, there shall be fair and
appropriate allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses.
(h) Observe all necessary, appropriate and customary formalities
required by its organizational documents and applicable law, including, but
not limited to, holding all regular and special meetings including meetings
of the Management Committee, appropriate to authorize all action on behalf of
the Company, keeping all resolutions or consents necessary to authorize
actions taken or to be taken, maintaining accurate and separate books,
records and accounts, including, but not limited to, payroll and intercompany
transaction accounts, and keeping its financial statements separate and apart
from, and not consolidated with, those of any other Person; provided,
however, that the Company may be included in the consolidated financial
statements of the PSNH Affiliated Group so long as it is shown as a separate
member of such group.
(i) Cause to have prepared and filed 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.
(j) At all times vest the management of the Company in the
Management Committee and, from and after the entry into any Sale Agreement
and the acquisition of any RRB Property, ensure that its Management Committee
shall at all times include at least two Independent Directors.
(k) Refrain from commingling its assets with those of the Sole
Member or any member of the PSNH Affiliated Group (except as contemplated by
any Sale Agreement, or any servicing agreement or administration agreement
entered into in connection therewith).
(l) Refrain from making any loan or advance to, owning, or
acquiring any stock or securities of any Person, including any member of the
PSNH Affiliated Group, except as permitted in the Basic Documents.
(m) Act solely in its own name and through its own Officers and
agents, and no member of the PSNH Affiliated Group shall be appointed to act
as agent of the Company, except as expressly contemplated by the Basic
Documents, in which case the capacity of such agent shall be clearly
identified.
(n) Ensure that no member of the PSNH Affiliated Group shall
advance funds to the Company, or otherwise guaranty debts of the Company,
except as provided in the Basic Documents; provided, however, that prior to
the acquisition by the Company of any RRB Property any member of the PSNH
Affiliated Group may lend or provide funds to the Company in connection with
the initial capitalization or organization of the Company or, thereafter as
permitted by the Basic Documents, with any subsequent capitalization.
(o) Not enter into any guaranty, or otherwise become liable, with
respect to any obligation of any member of the PSNH Affiliated Group and not
hold itself out, or permit itself to be held out, as having agreed to pay or
as being liable for the debts of the Sole Member or any other member of the
PSNH Affiliated Group.
(p) Comply with all restrictions on its business and operations as
set forth in Sections Purpose. The Company is intended to qualify as a
"financing entity" as defined in RSA 369-B:2, VI. As such, the purpose for
which the Company is formed is limited solely to the following activities:
and Limitation on Certain Activities. Notwithstanding any other provisions
of this Agreement, the Company, and the Sole Member or Management Committee
on behalf of the Company, shall not:.
(q) Not pledge its assets for the benefit of any member of the
PSNH Affiliated Group.
(r) Use separate stationery, invoices and checks.
(s) Maintain adequate capital in light of its contemplated
business operations.
Section 2.07 Limitation on Certain Activities. Notwithstanding any
other provisions of this Agreement, the Company, and the Sole Member or
Management Committee on behalf of the Company, shall not:
(a) engage in any business or activity other than as set forth in
FORMATION AND BUSINESS OF THE COMPANY hereof;
(b) without the affirmative vote of the Sole Member and the
affirmative vote of all of the Directors, including the Independent
Directors, initiate any Event of Bankruptcy with respect to the Company or
take any company action in furtherance of any such Event of Bankruptcy;
(c) merge or consolidate with any other corporation, company, or
entity or, except to the extent permitted by each Sale Agreement, sell all or
substantially all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any other corporation,
company or entity;
(d) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other);
(e) incur any indebtedness (other than the indebtedness incurred
under the Bonds and the Basic Documents), assume or guarantee any
indebtedness of any other Person or pledge its assets for the benefit of any
other Person (other than the pledge of assets contemplated by the Basic
Documents); provided, however, that the Company may issue one or more
separate series of Bonds in connection with the acquisition from the Sole
Member, as seller, of additional RRB property, separate from the RRB property
acquired with the proceeds of any other series of Bonds, provided that the
Rating Agency Condition (as defined in the Indenture) shall have been
satisfied; or
(f) to the fullest extent permitted by law, without the
affirmative vote of the Sole Member and the affirmative vote of all
Directors, including the Independent Directors, execute any dissolution,
liquidation, or winding up of the Company.
Section 2.08 No State Law Partnership. No provisions of this
Agreement (including, without limitation, the provisions of MANAGEMENT OF THE
COMPANY) shall be deemed or construed to constitute a partnership (including,
without limitation, a limited partnership) or joint venture, or the Sole
Member a partner or joint venturer of or with any Director or the Company,
for any purposes.
Section 2.09 Address of the Sole Member. The address of the Sole
Member is set forth on Exhibit B hereto, as amended from time to time,
attached hereto and made a part hereof.
ARTICLE 3
TERM
Section 3.01 Commencement. The Company's term commenced upon the
filing of the Certificate with the Secretary on January 24, 2001. The
existence of the Company as a separate legal entity shall continue until the
cancellation of the Certificate as provided in the Act.
Section 3.02 Continuation. Notwithstanding any provision of this
Agreement, a Bankruptcy of the Sole Member will not cause the Sole Member to
cease to be a member of the Company, and upon the occurrence of such an
event, the business of the Company shall continue without dissolution.
Notwithstanding any other provision of this Agreement, the Sole Member waives
any right it might have under the Act to agree in writing to dissolve the
Company upon the occurrence of a Bankruptcy of the Sole Member or the
occurrence of any other event which under the Act would otherwise cause the
Sole Member to cease to be a member of the Company.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.01 Capital Contribution. The Sole Member may be required or
shall be permitted to make Capital Contributions in cash or property to the
Company on such terms and conditions as may be agreed to by the Sole Member
from time to time. The amounts so contributed by the Sole Member shall be
credited to the Sole Member's capital account, as provided in Capital
Account. The Company shall establish an individual Capital Account for the
Sole Member (the "Capital Account"). below. The Sole Member shall have a
Membership Interest of one hundred percent (100%) of the Company.
Section 4.02 Capital Account. The Company shall establish an
individual Capital Account for the Sole Member (the "Capital Account").
Section 4.03 Interest on and Return of Capital Account. The Sole
Member shall be entitled to interest on its Capital Contribution to the
extent permitted in the Indenture and the Basic Documents.
ARTICLE 5
ALLOCATIONS; BOOKS
Section 5.01 Allocations of Income and Loss.
(a) Book Allocations. The net income and net loss of the Company
shall be allocated entirely to the Capital Account of the Sole Member.
(b) Tax Allocations. Because the Company is not making (and will
not make) an election to be treated as an association taxable as a
corporation under Section 301.7701-3(a) of the U.S. Treasury Regulations, and
because the Company is a business entity that has a single owner and is not a
corporation, it shall be disregarded as an entity separate from its owner for
federal income tax purposes under Section 301.7701-3(b)(1) of the U.S.
Treasury Regulations. Accordingly, all items of income, gain, loss,
deduction and credit of the Company for all taxable periods will be treated
for federal income tax purposes, and for state and local income and other tax
purposes to the extent permitted by applicable law, as realized or incurred
directly by the Sole Member. To the extent not so permitted, all items of
income, gain, loss, deduction and credit of the Company shall be allocated
entirely to the Sole Member.
Section 5.02 Books of Account. At all times during the continuance of
the Company, the Company shall maintain or cause to be maintained full, true,
complete and correct books of account in accordance with GAAP, using the
fiscal year and taxable year of the Sole Member. In addition, the Company
shall keep all records required to be kept pursuant to the Act.
Section 5.03 Distributions. The Company may make distributions to the
Sole Member from time to time upon the unanimous vote of the Management
Committee. Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a distribution to the
Sole Member on account of its interest in the Company if such distribution
would violate Section 18-607 of the Act or any other applicable law or any of
the Basic Documents.
ARTICLE 6
MANAGEMENT OF THE COMPANY
Section 6.01 Management of Company. Except as otherwise provided in
this Agreement, the property and business of the Company shall be controlled
and managed by the Management Committee, composed of Directors appointed by
the Sole Member; provided, however, that except as otherwise provided in this
Agreement, the Officers acting alone can bind or execute any instrument on
behalf of the Company, and may sign all checks, drafts, and other instruments
obligating the Company to pay money. Notwithstanding the last sentence of
Section 18-402 of the Act, except as provided in this Agreement, a Director
may not bind the Company. Prior to the entry into any Sale Agreement and the
acquisition of any RRB Property, the Sole Member shall appoint two
Independent Directors. In the event that an Independent Director withdraws,
resigns or is removed as Independent Director, the Sole Member shall appoint,
as soon as reasonably practicable, a successor Independent Director. The
Company shall pay each Independent Director an annual fee totaling not less
than $1,000 per year. Each Director, including each Independent Director, is
hereby deemed to be a "manager" within the meaning of Section 18-101(10) of
the Act.
Section 6.02 Withdrawal of Director. Notwithstanding anything herein
to the contrary, an Independent Director may not withdraw or resign as a
Director of the Company without the consent of the Sole Member.
Section 6.03 Duties of Directors. To the fullest extent permitted by
applicable law, including without limitation Section 18-1101(c) of the Act,
the fiduciary duty of the Directors, including the Independent Directors, in
respect of any decision on any matter referred to in this Agreement shall be
owed solely to the Company (including its creditors) and not to the Sole
Member or any other holder of an equity interest in the Company as may exist
at such time. Each Director shall execute and deliver the Management
Agreement.
Section 6.04 Removal of Director. A Director (including the
Independent Director) may be removed at any time, with or without cause, upon
the written election of the Sole Member.
Section 6.05 Quorum: Acts of the Management Committee. At all
meetings of the Management Committee, a majority of the Directors shall
constitute a quorum for the transaction of business and, except as otherwise
provided in any other provision of this Agreement, the act of a majority of
the Directors present at any meeting at which there is a quorum shall be the
act of the Management Committee. If a quorum shall not be present at any
meeting of the Management Committee, the Directors present at such meeting
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. The Directors
may participate in meetings of the Management Committee by means of telephone
conference or similar communications equipment that allows all persons
participating in the meeting to hear each other, and such participation in a
meeting shall constitute presence in person at the meeting. If all the
participants are participating by telephone conference or similar
communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company. Any action required or permitted
to be taken at any meeting of the Management Committee or any committee
thereof 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 the Directors having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all Directors entitled to vote thereon were present and voted.
Unless otherwise provided in the Agreement, on any matter that is to be voted
on by Directors, the Directors may vote in person or by proxy.
Section 6.06 Officers. The Sole Member may, from time to time as it
deems advisable, appoint officers of the Company (the "Officers") and assign
in writing titles (including, without limitation, President, Vice President,
Secretary, and Treasurer) to any such person. Unless the Sole Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law the assignment
of such title shall constitute the delegation to such person of the
authorities and duties that are normally associated with that office. Any
delegation pursuant to this maybe revoked at any time by the Sole Member.
The Officers shall be those individuals listed on Exhibit C from time to
time attached hereto. The Sole Member may revise Exhibit C in its sole
discretion at any time.
Section 6.07 Special Members. Upon the occurrence of any event that
causes the Sole Member to cease to be a member of the Company (other than (i)
upon an assignment by the Sole Member of all of its limited liability company
interest in the Company and the admission of the transferee pursuant to
Sections 8.01 and 8.02, or (ii) the resignation of the Sole Member and the
admission of an additional member of the Company), each person acting as an
Independent Director shall, without any action of any Person and
simultaneously with the Sole Member ceasing to be a member of the Company,
automatically be admitted to the Company as a member (the "Special Member")
and shall continue the Company without dissolution. No Special Member may
resign from the Company or transfer its rights as Special Member unless (i) a
successor Special Member has been admitted to the Company as Special Member
by executing a counterpart to this Agreement, and (ii) such successor has
also accepted its appointment as Independent Director pursuant to this
Agreement; provided, however, the Special Members shall automatically cease
to be members of the Company upon the admission to the Company of a
substitute Sole Member. Each Special Member shall be a member of the Company
that has no interest in the profits, losses and capital of the Company and
has no right to receive any distributions of Company assets. Pursuant to
Section 18-301 of the Act, a Special Member shall not be required to make any
capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity
as Special Member, may not bind the Company. Except as required by any
mandatory provision of the Act, each Special Member, in its capacity as
Special Member, shall have no right to vote on, approve or otherwise consent
to any action by, or matter relating to the Company, including, without
limitation, the merger, consolidation or conversion of the Company. In order
to implement the admission to the Company of each Special Member, each person
acting as an Independent Director shall agree in writing to be bound by the
provisions of this Section 6.07. Prior to its admission to the Company as
Special Member, each person acting as an Independent Director shall not be a
member of the Company.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 7.01 Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of the earliest of the
following events:
(a) subject to Limitation on Certain Activities. Notwithstanding
any other provisions of this Agreement, the Company, and the Sole Member or
Management Committee on behalf of the Company, shall not:, the election to
dissolve the Company made in writing by the Sole Member and each Director,
including without limitation each Independent Director, as permitted by the
Basic Documents;
(b) the occurrence of any event that causes the Sole Member of the
Company to cease to be a member of the Company unless the business of the
Company is continued without dissolution in a manner permitted by this
Agreement or the Act; or
(c) the entry of a decree of judicial dissolution of the Company
pursuant to Section 18-802 of the Act.
Upon the occurrence of any event that causes the last remaining member
of the Company to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event
that terminated the continued membership of such member in the Company, agree
in writing (i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the case may be, as a
substitute member of the Company, effective as of the occurrence of the event
that terminated the continued membership of the last remaining member of the
Company in the Company.
Section 7.02 Accounting. In the event of the dissolution, liquidation
and winding up of the Company, a proper accounting shall be made of the
Capital Account of the Sole Member and of the net income or net loss of the
Company from the date of the last previous accounting to the date of
dissolution.
Section 7.03 Certificate of Cancellation. As soon as possible
following the occurrence of any of the events specified in Dissolution. The
Company shall be dissolved and its affairs shall be wound up upon the
occurrence of the earliest of the following events: and the completion of the
winding up of the Company, the person or entity winding up the business and
affairs of the Company shall cause to be executed a Certificate of
Cancellation of the Certificate in such form as shall be prescribed by the
Secretary and file the Certificate of Cancellation of the Certificate as
required by the Act.
Section 7.04 Winding Up. Upon the occurrence of any event specified
in Dissolution. The Company shall be dissolved and its affairs shall be
wound up upon the occurrence of the earliest of the following events:, the
Company shall continue solely for the purpose of winding up its affairs in an
orderly manner, liquidating its assets, and satisfying the claims of its
creditors in accordance with the Act. The Sole Member shall be responsible
for overseeing the winding up and liquidation of the Company, shall take full
account of the liabilities of the Company and its assets, shall either cause
its assets to be sold or distributed, and if sold as promptly as is
consistent with obtaining the fair market value thereof, shall cause the
proceeds therefrom, to the extent sufficient therefor, to be applied and
distributed as provided in Limitations on Payments Made in Dissolution.
Except as otherwise specifically provided in this Agreement, the Sole Member
shall be entitled to look solely to the assets of the Company for the return
of its positive Capital Account balance and shall have no recourse for its
Capital Contribution and/or share of net income (upon dissolution or
otherwise) against any Director or the Management Committee..
Section 7.05 Order of Payment of Liabilities Upon Dissolution. After
determining that all known debts and liabilities of the Company, including
all contingent, conditional or unmatured liabilities of the Company, in the
process of winding up, including, without limitation, debts and liabilities
to the Sole Member in the event it is a creditor of the Company to the extent
otherwise permitted by law, have been paid or adequately provided for, the
remaining assets shall be distributed in cash or in kind to the Sole Member.
Section 7.06 Limitations on Payments Made in Dissolution. Except as
otherwise specifically provided in this Agreement, the Sole Member shall be
entitled to look solely to the assets of the Company for the return of its
positive Capital Account balance and shall have no recourse for its Capital
Contribution and/or share of net income (upon dissolution or otherwise)
against any Director or the Management Committee.
ARTICLE 8
TRANSFER AND ASSIGNMENT
Section 8.01 Transfer of Membership Interests.
(a) The Sole Member may transfer its Membership Interest, but the
transferee shall not be admitted as a member except in accordance with
Admission of Transferee as Member. A transferee of a Membership Interest
desiring to be admitted as a member must execute a counterpart of, or an
agreement adopting, this Agreement and shall not be admitted without the
unanimous affirmative vote of the Management Committee, which vote must
include the affirmative vote of the Independent Directors. Upon admission of
the transferee as a member, the transferee shall have, to the extent of the
Membership Interest transferred, the rights and powers and shall be subject
to the restrictions and liabilities of the Sole Member under this Agreement
and the Act. Notwithstanding anything in this Agreement to the contrary, any
successor to the Sole Member by merger or consolidation in compliance with
the Basic Documents shall, without further act, be the Sole Member hereunder,
and such merger or consolidation shall not constitute a transfer for purposes
of this Agreement.. Until the transferee is admitted as a member, the Sole
Member shall continue to be the sole member of the Company and to be entitled
to exercise any rights or powers of the Sole Member with respect to the
Membership Interest transferred, and the transferee shall have only the
rights of an assignee to the extent such rights have been assigned.
(b) Any purported transfer of any Membership Interest in violation
of the provisions of this Agreement shall be wholly void and shall not
effectuate the transfer contemplated thereby. Notwithstanding anything
contained herein to the contrary, the Sole Member may not transfer any
Membership Interest in violation of any provision of this Agreement or in
violation of any applicable Federal or state securities laws.
Section 8.02 Admission of Transferee as Member. A transferee of a
Membership Interest desiring to be admitted as a member must execute a
counterpart of, or an agreement adopting, this Agreement and shall not be
admitted without the unanimous affirmative vote of the Management Committee,
which vote must include the affirmative vote of the Independent Directors.
Upon admission of the transferee as a member, the transferee shall have, to
the extent of the Membership Interest transferred, the rights and powers and
shall be subject to the restrictions and liabilities of the Sole Member under
this Agreement and the Act. Notwithstanding anything in this Agreement to the
contrary, any successor to the Sole Member by merger or consolidation in
compliance with the Basic Documents shall, without further act, be the Sole
Member hereunder, and such merger or consolidation shall not constitute a
transfer for purposes of this Agreement.
ARTICLE 9
GENERAL PROVISIONS
Section 9.01 Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Agreement shall be in English and in writing, and any such
notice, direction, consent or waiver may be given by United States mail,
courier service, facsimile transmission or electronic mail (confirmed by
telephone, United States mail or courier service in the case of notice by
facsimile transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid, to the
appropriate party at its address set forth on Exhibit B hereto. The address
of any party hereto may be changed by a notice in writing given in accordance
with the provisions of this self-reference..
Section 9.02 Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions concerning limitations of
actions), shall be governed by and construed in accordance with the laws of
the State of Delaware, notwithstanding any conflict-of-laws doctrines of such
state or other jurisdiction to the contrary.
Section 9.03 Execution of Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be
an original as against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the parties reflected
hereon as the signatories.
Section 9.04 Severability. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in
whole or in part.
Section 9.05 Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or
written, except as herein contained.
Section 9.06 Amendments to Organizational Documents.
(a) This Agreement may not be altered, amended or repealed except
pursuant to a written agreement executed and delivered by the Sole Member.
Notwithstanding the preceding sentence, the Company shall not adopt a new
Limited Liability Company Agreement or alter, amend or repeal any provision
of Sections Definitions. Except as otherwise herein expressly provided, the
following terms and phrases shall have the meanings as set forth below:
(including the definition of "Independent Director"), Purpose. The Company
is intended to qualify as a "financing entity" as defined in RSA 369-B:2, VI.
As such, the purpose for which the Company is formed is limited solely to the
following activities:, Separate Existence. The Company, and the Sole Member
and the Management Committee on behalf of the Company, shall:, Limitation on
Certain Activities. Notwithstanding any other provisions of this Agreement,
the Company, and the Sole Member or Management Committee on behalf of the
Company, shall not:, Continuation. Notwithstanding any provision of this
Agreement, a Bankruptcy of the Sole Member will not cause the Sole Member to
cease to be a member of the Company, and upon the occurrence of such an
event, the business of the Company shall continue without dissolution.
Notwithstanding any other provision of this Agreement, the Sole Member waives
any right it might have under the Act to agree in writing to dissolve the
Company upon the occurrence of a Bankruptcy of the Sole Member or the
occurrence of any other event which under the Act would otherwise cause the
Sole Member to cease to be a member of the Company., Withdrawal of Director.
Notwithstanding anything herein to the contrary, an Independent Director may
not withdraw or resign as a Director of the Company without the consent of
the Sole Member., Special Members. Upon the occurrence of any event that
causes the Sole Member to cease to be a member of the Company (other than (i)
upon an assignment by the Sole Member of all of its limited liability company
interest in the Company and the admission of the transferee pursuant to
Sections 8.01 and 8.02, or (ii) the resignation of the Sole Member and the
admission of an additional member of the Company), each person acting as an
Independent Director shall, without any action of any Person and
simultaneously with the Sole Member ceasing to be a member of the Company,
automatically be admitted to the Company as a member (the "Special Member")
and shall continue the Company without dissolution. No Special Member may
resign from the Company or transfer its rights as Special Member unless (i) a
successor Special Member has been admitted to the Company as Special Member
by executing a counterpart to this Agreement, and (ii) such successor has
also accepted its appointment as Independent Director pursuant to this
Agreement; provided, however, the Special Members shall automatically cease
to be members of the Company upon the admission to the Company of a
substitute Sole Member. Each Special Member shall be a member of the Company
that has no interest in the profits, losses and capital of the Company and
has no right to receive any distributions of Company assets. Pursuant to
Section 18-301 of the Act, a Special Member shall not be required to make any
capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity
as Special Member, may not bind the Company. Except as required by any
mandatory provision of the Act, each Special Member, in its capacity as
Special Member, shall have no right to vote on, approve or otherwise consent
to any action by, or matter relating to the Company, including, without
limitation, the merger, consolidation or conversion of the Company. In order
to implement the admission to the Company of each Special Member, each person
acting as an Independent Director shall agree in writing to be bound by the
provisions of this Section 6.07. Prior to its admission to the Company as
Special Member, each person acting as an Independent Director shall not be a
member of the Company., Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of the earliest of the
following events:, Admission of Transferee as Member. A transferee of a
Membership Interest desiring to be admitted as a member must execute a
counterpart of, or an agreement adopting, this Agreement and shall not be
admitted without the unanimous affirmative vote of the Management Committee,
which vote must include the affirmative vote of the Independent Directors.
Upon admission of the transferee as a member, the transferee shall have, to
the extent of the Membership Interest transferred, the rights and powers and
shall be subject to the restrictions and liabilities of the Sole Member under
this Agreement and the Act. Notwithstanding anything in this Agreement to the
contrary, any successor to the Sole Member by merger or consolidation in
compliance with the Basic Documents shall, without further act, be the Sole
Member hereunder, and such merger or consolidation shall not constitute a
transfer for purposes of this Agreement. , Amendments to Organizational
Documents. and Enforcement by Independent Director. Notwithstanding any
other provision of this Agreement, the Sole Member agrees that this
Agreement, (including without limitation, Sections 2.05, 2.06, 2.07, 3.02,
6.02, 6.07, 7.01, 8.02, 9.06 and 9.11) constitutes a legal, valid and binding
agreement of the Sole Member, and is enforceable against the Sole Member by
the Independent Directors in accordance with its terms. The Independent
Directors are intended beneficiaries of this Agreement. of this Agreement
without the unanimous affirmative vote of the Management Committee, which
vote must include the affirmative vote of each Independent Director.
(b) The Company's power to alter, amend or repeal the Certificate
shall be vested in the Sole Member.
Upon obtaining the approval of any amendment, supplement or
restatement of the Certificate, the Company shall cause a Certificate of
Amendment or Amended and Restated Certificate to be prepared, executed and
filed in accordance with the Act.
Section 9.07 Paragraph Headings. The paragraph headings in this
Agreement are for convenience and they form no part of this Agreement and
shall not affect its interpretation.
Section 9.08 Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate. The term "including"
shall mean "including, but not limited to."
Section 9.09 Limited Liability. Except as otherwise expressly
provided by the Act, the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be the debts,
obligations and liabilities solely of the Company, and neither the Sole
Member nor any Director or Officer shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being the
Sole Member or a Director or Officer of the Company. To the extent permitted
by applicable law, no Director or Officer shall be personally liable to the
Company for monetary damages for breach of the duty of care as an Officer or
a Director for any act taken or omission made in good faith and without
willful misconduct.
Section 9.10 Assurances. The Sole Member shall hereafter execute and
deliver such further instruments and do such further acts and things as may
be reasonably required or useful to carry out the intent and purpose of this
Agreement and as are not inconsistent with the terms hereof.
Section 9.11 Enforcement by Independent Director. Notwithstanding any
other provision of this Agreement, the Sole Member agrees that this
Agreement, (including without limitation, Sections Purpose. The Company is
intended to qualify as a "financing entity" as defined in RSA 369-B:2, VI.
As such, the purpose for which the Company is formed is limited solely to the
following activities:, Separate Existence. The Company, and the Sole Member
and the Management Committee on behalf of the Company, shall:, Limitation on
Certain Activities. Notwithstanding any other provisions of this Agreement,
the Company, and the Sole Member or Management Committee on behalf of the
Company, shall not:, Continuation. Notwithstanding any provision of this
Agreement, a Bankruptcy of the Sole Member will not cause the Sole Member to
cease to be a member of the Company, and upon the occurrence of such an
event, the business of the Company shall continue without dissolution.
Notwithstanding any other provision of this Agreement, the Sole Member waives
any right it might have under the Act to agree in writing to dissolve the
Company upon the occurrence of a Bankruptcy of the Sole Member or the
occurrence of any other event which under the Act would otherwise cause the
Sole Member to cease to be a member of the Company., Withdrawal of Director.
Notwithstanding anything herein to the contrary, an Independent Director may
not withdraw or resign as a Director of the Company without the consent of
the Sole Member., Special Members. Upon the occurrence of any event that
causes the Sole Member to cease to be a member of the Company (other than (i)
upon an assignment by the Sole Member of all of its limited liability company
interest in the Company and the admission of the transferee pursuant to
Sections 8.01 and 8.02, or (ii) the resignation of the Sole Member and the
admission of an additional member of the Company), each person acting as an
Independent Director shall, without any action of any Person and
simultaneously with the Sole Member ceasing to be a member of the Company,
automatically be admitted to the Company as a member (the "Special Member")
and shall continue the Company without dissolution. No Special Member may
resign from the Company or transfer its rights as Special Member unless (i) a
successor Special Member has been admitted to the Company as Special Member
by executing a counterpart to this Agreement, and (ii) such successor has
also accepted its appointment as Independent Director pursuant to this
Agreement; provided, however, the Special Members shall automatically cease
to be members of the Company upon the admission to the Company of a
substitute Sole Member. Each Special Member shall be a member of the Company
that has no interest in the profits, losses and capital of the Company and
has no right to receive any distributions of Company assets. Pursuant to
Section 18-301 of the Act, a Special Member shall not be required to make any
capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity
as Special Member, may not bind the Company. Except as required by any
mandatory provision of the Act, each Special Member, in its capacity as
Special Member, shall have no right to vote on, approve or otherwise consent
to any action by, or matter relating to the Company, including, without
limitation, the merger, consolidation or conversion of the Company. In order
to implement the admission to the Company of each Special Member, each person
acting as an Independent Director shall agree in writing to be bound by the
provisions of this Section 6.07. Prior to its admission to the Company as
Special Member, each person acting as an Independent Director shall not be a
member of the Company., Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of the earliest of the
following events:, Admission of Transferee as Member. A transferee of a
Membership Interest desiring to be admitted as a member must execute a
counterpart of, or an agreement adopting, this Agreement and shall not be
admitted without the unanimous affirmative vote of the Management Committee,
which vote must include the affirmative vote of the Independent Directors.
Upon admission of the transferee as a member, the transferee shall have, to
the extent of the Membership Interest transferred, the rights and powers and
shall be subject to the restrictions and liabilities of the Sole Member under
this Agreement and the Act. Notwithstanding anything in this Agreement to the
contrary, any successor to the Sole Member by merger or consolidation in
compliance with the Basic Documents shall, without further act, be the Sole
Member hereunder, and such merger or consolidation shall not constitute a
transfer for purposes of this Agreement., Amendments to Organizational
Documents. and self-reference.) constitutes a legal, valid and binding
agreement of the Sole Member, and is enforceable against the Sole Member
by the Independent Directors in accordance with its terms. The Independent
Directors are intended beneficiaries of this Agreement.
Section 9.12 Waiver of Partition; Nature of Interest. Except as
otherwise expressly provided in this Agreement, to the fullest extent
permitted by law, the Sole Member hereby irrevocably waives any right or
power that the Sole Member might have to cause the Company or any of its
assets to be partitioned, to cause the appointment of a receiver for all or
any portion of the assets of the Company, to compel any sale of all or any
portion of the assets of the Company pursuant to any applicable law or to
file a complaint or to institute any proceeding at law or in equity to cause
the dissolution, liquidation, winding up or termination of the Company. The
Sole Member shall not have any interest in any specific assets of the
Company, and the Sole Member shall not have the status of a creditor with
respect to any distribution pursuant to Distributions. The Company may make
distributions to the Sole Member from time to time upon the unanimous vote of
the Management Committee. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not be required to make a
distribution to the Sole Member on account of its interest in the Company if
such distribution would violate Section 18-607 of the Act or any other
applicable law or any of the Basic Documents. hereof. The Membership
Interest of the Sole Member in the Company is personal property.
ARTICLE 10
INDEMNIFICATION
Section 10.01 Indemnification. Subject to Authorization. Any
indemnification under this Article (unless ordered by a court) shall be made
by the Company only as authorized in the specific case upon a determination
that indemnification of the manager, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Section 10.01 or Section 10.02, of this Article, as the case may be.
Such determination shall be made (i) by independent legal counsel in a
written opinion or (ii) by the Sole Member. To the extent, however, that a
manager, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case. of this Article, the Company shall, to
the fullest extent permitted by law, indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company) by
reason of the fact that he is or was a director, manager, officer, employee
or agent of the Company, or is or was serving at the request of the Company
as a manager, director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit,
proceeding or in enforcing such person's right to indemnification hereunder,
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 10.02 Indemnification for Suits by or in Right of Company.
Subject to Authorization. Any indemnification under this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 10.01 or Section
10.02, of this Article, as the case may be. Such determination shall be made
(i) by independent legal counsel in a written opinion or (ii) by the Sole
Member. To the extent, however, that a manager, officer, employee or agent
of the Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper.
Section 10.03 Authorization. Any indemnification under this Article
(unless ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the
manager, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Indemnification.
Subject to Authorization. Any indemnification under this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 10.01 or Section
10.02, of this Article, as the case may be. Such determination shall be made
(i) by independent legal counsel in a written opinion or (ii) by the Sole
Member. To the extent, however, that a manager, officer, employee or agent
of the Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, manager, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a manager, director, officer,
employee or agent of another company, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, proceeding or in enforcing such
person's right to indemnification hereunder, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. or
Indemnification for Suits by or in Right of Company. Subject to
Authorization. Any indemnification under this Article (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the manager, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 10.01 or Section 10.02, of this
Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member.
To the extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper., of this Article, as the case may be.
Such determination shall be made (i) by independent legal counsel in a
written opinion or (ii) by the Sole Member. To the extent, however, that a
manager, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.
Section 10.04 Good Faith. For purposes of any determination under
Sections Authorization. Any indemnification under this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Indemnification. Subject to
Authorization. Any indemnification under this Article (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the manager, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 10.01 or Section 10.02, of this
Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member.
To the extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, manager, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a manager, director, officer,
employee or agent of another company, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, proceeding or in enforcing such
person's right to indemnification hereunder, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. or
Indemnification for Suits by or in Right of Company. Subject to
Authorization. Any indemnification under this Article (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the manager, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 10.01 or Section 10.02, of this
Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member.
To the extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper., of this Article, as the case may be.
Such determination shall be made (i) by independent legal counsel in a
written opinion or (ii) by the Sole Member. To the extent, however, that a
manager, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case. or Limited Liability. Except as
otherwise expressly provided by the Act, the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be the debts, obligations and liabilities solely of the Company, and
neither the Sole Member nor any Director or Officer shall be obligated
personally for any such debt, obligation or liability of the Company solely
by reason of being the Sole Member or a Director or Officer of the Company.
To the extent permitted by applicable law, no Director or Officer shall be
personally liable to the Company for monetary damages for breach of the duty
of care as an Officer or a Director for any act taken or omission made in
good faith and without willful misconduct. of this Agreement, a person shall
be deemed to have acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company, or, with
respect to any criminal action or proceeding, to have had no reasonable cause
to believe his conduct was unlawful, if his action is based on the records or
books of account of the Company or of the Servicer or Administrator or of
another enterprise, or on information supplied to him by the officers of the
Company or of the Servicer or Administrator or of another enterprise in the
course of their duties, or on the advice of legal counsel for the Company or
of the Servicer or Administrator or of another enterprise or on information
or records given or reports made to the Company or of the Servicer or
Administrator or of another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
by the Company or of the Servicer or Administrator or of another enterprise.
The term "another enterprise" as used in this
self-reference. shall mean any corporation, partnership, limited liability
company, joint venture, trust or other enterprise of which such person is or
was serving at the request of the Company as a manager, director, officer,
employee or agent. The provisions of this self-
reference. shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections Indemnification. Subject to
Authorization. Any indemnification under this Article (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the manager, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 10.01 or Section 10.02, of this
Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member.
To the extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, manager, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a manager, director, officer,
employee or agent of another company, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, proceeding or in enforcing such
person's right to indemnification hereunder, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. or
Indemnification for Suits by or in Right of Company. Subject to
Authorization. Any indemnification under this Article (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the manager, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 10.01 or Section 10.02, of this
Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member.
To the extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper. of this Article, as the case may be.
Section 10.05 Court Action. Notwithstanding any contrary determination
in the specific case under Authorization. Any indemnification under this
Article (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the manager, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
Indemnification. Subject to Authorization. Any indemnification under this
Article (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the manager, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section
10.01 or Section 10.02, of this Article, as the case may be. Such
determination shall be made (i) by independent legal counsel in a written
opinion or (ii) by the Sole Member. To the extent, however, that a manager,
officer, employee or agent of the Company has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case. of this Article, the Company shall, to the fullest extent
permitted by law, indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that
he is or was a director, manager, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a manager, director,
officer, employee or agent of another company, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, proceeding or in
enforcing such person's right to indemnification hereunder, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful. or Indemnification for Suits by or in Right of Company.
Subject to Authorization. Any indemnification under this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 10.01 or Section
10.02, of this Article, as the case may be. Such determination shall be made
(i) by independent legal counsel in a written opinion or (ii) by the Sole
Member. To the extent, however, that a manager, officer, employee or agent
of the Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper., of this Article, as the case may be.
Such determination shall be made (i) by independent legal counsel in a
written opinion or (ii) by the Sole Member. To the extent, however, that a
manager, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case. of this Article, and notwithstanding the
absence of any determination thereunder, any manager, officer, employee or
agent may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections Indemnification. Subject to Authorization. Any indemnification
under this Article (unless ordered by a court) shall be made by the Company
only as authorized in the specific case upon a determination that
indemnification of the manager, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 10.01 or Section 10.02, of this Article, as the case may be. Such
determination shall be made (i) by independent legal counsel in a written
opinion or (ii) by the Sole Member. To the extent, however, that a manager,
officer, employee or agent of the Company has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case. of this Article, the Company shall, to the fullest extent
permitted by law, indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that
he is or was a director, manager, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a manager, director,
officer, employee or agent of another company, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, proceeding or in
enforcing such person's right to indemnification hereunder, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful. and Indemnification for Suits by or in Right of
Company. Subject to Authorization. Any indemnification under this Article
(unless ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the
manager, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 10.01 or
Section 10.02, of this Article, as the case may be. Such determination shall
be made (i) by independent legal counsel in a written opinion or (ii) by the
Sole Member. To the extent, however, that a manager, officer, employee or
agent of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case. of this Article, the Company shall, to the fullest extent permitted by
law, indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper. of this Article. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the manager, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set
forth in Section Indemnification. Subject to Authorization. Any
indemnification under this Article (unless ordered by a court) shall be made
by the Company only as authorized in the specific case upon a determination
that indemnification of the manager, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Section 10.01 or Section 10.02, of this Article, as the case may be.
Such determination shall be made (i) by independent legal counsel in a
written opinion or (ii) by the Sole Member. To the extent, however, that a
manager, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case. of this Article, the Company shall, to
the fullest extent permitted by law, indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company) by
reason of the fact that he is or was a director, manager, officer, employee
or agent of the Company, or is or was serving at the request of the Company
as a manager, director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit,
proceeding or in enforcing such person's right to indemnification hereunder,
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful. and Indemnification for Suits by or in Right of
Company. Subject to Authorization. Any indemnification under this Article
(unless ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the
manager, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 10.01 or
Section 10.02, of this Article, as the case may be. Such determination shall
be made (i) by independent legal counsel in a written opinion or (ii) by the
Sole Member. To the extent, however, that a manager, officer, employee or
agent of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case. of this Article, the Company shall, to the fullest extent permitted by
law, indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper. of this Article, as the case may be.
Notice of any application for indemnification pursuant to this shall be
given to the Company promptly upon the filing of such application.
Section 10.06 Expenses. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid
by the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the manager,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in this Article.
Section 10.07 Non-Exclusivity. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement,
contract, vote or pursuant to the direction (howsoever embodied) of any court
of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Company that indemnification of the persons specified
in Sections Indemnification. Subject to Authorization. Any indemnification
under this Article (unless ordered by a court) shall be made by the Company
only as authorized in the specific case upon a determination that
indemnification of the manager, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 10.01 or Section 10.02, of this Article, as the case may be. Such
determination shall be made (i) by independent legal counsel in a written
opinion or (ii) by the Sole Member. To the extent, however, that a manager,
officer, employee or agent of the Company has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case. of this Article, the Company shall, to the fullest extent
permitted by law, indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that
he is or was a director, manager, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a manager, director,
officer, employee or agent of another company, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, proceeding or in
enforcing such person's right to indemnification hereunder, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful. and Indemnification for Suits by or in Right of
Company. Subject to Authorization. Any indemnification under this Article
(unless ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the
manager, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 10.01 or
Section 10.02, of this Article, as the case may be. Such determination shall
be made (i) by independent legal counsel in a written opinion or (ii) by the
Sole Member. To the extent, however, that a manager, officer, employee or
agent of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case. of this Article, the Company shall, to the fullest extent permitted by
law, indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper. of this Article shall be made to the
fullest extent permitted by law. The provisions of this Article shall not be
deemed to preclude the indemnification of any person who is not specified in
Section Indemnification. Subject to Authorization. Any indemnification
under this Article (unless ordered by a court) shall be made by the Company
only as authorized in the specific case upon a determination that
indemnification of the manager, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 10.01 or Section 10.02, of this Article, as the case may be. Such
determination shall be made (i) by independent legal counsel in a written
opinion or (ii) by the Sole Member. To the extent, however, that a manager,
officer, employee or agent of the Company has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case. of this Article, the Company shall, to the fullest extent
permitted by law, indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that
he is or was a director, manager, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a manager, director,
officer, employee or agent of another company, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, proceeding or in
enforcing such person's right to indemnification hereunder, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful. or Indemnification for Suits by or in Right of Company.
Subject to Authorization. Any indemnification under this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 10.01 or Section
10.02, of this Article, as the case may be. Such determination shall be made
(i) by independent legal counsel in a written opinion or (ii) by the Sole
Member. To the extent, however, that a manager, officer, employee or agent
of the Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case. of
this Article, the Company shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery
or such other court shall deem proper. of this Article but who the Company
has the power or obligation to indemnify under the provisions of the Act, or
otherwise.
Section 10.08 Insurance. The Company may purchase and maintain
insurance on behalf of any person who is or was a manager, officer, employee
or agent of the Company, or is or was serving at the request of the Company
as a manager, director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise against any liability
asserted against him/her and incurred by him/her in any such capacity, or
arising out of his/her status as such, whether or not the Company would have
the power or the obligation to indemnify him against such liability under the
provisions of this Article.
Section 10.09 Consolidation/Merger. For purposes of this Article,
references to "the Company" shall include, in addition to the Company, any
constituent company (including any constituent of a constituent) absorbed in
a consolidation or merger that, if its separate existence had continued,
would have had the power and authority to indemnify its managers, directors,
officers, and employees or agents, so that any person who is or was a
manager, director, officer, employee or agent of such constituent company, or
is or was serving at the request of such constituent company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article with respect to the resulting or surviving
company as he would have with respect to such constituent company if its
separate existence had continued.
Section 10.10 Heirs, Executors, and Administrators. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a manager, director,
office, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Sole Member hereto has executed this Agreement
or caused this Agreement to be executed on its behalf as of the date first
above written.
PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE
By: /S/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer- Finance
EXHIBIT A
Management Agreement
[Date]
PSNH Funding LLC
c/o Public Service Company of New Hampshire
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Management Agreement - PSNH Funding LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as members of the management committee of PSNH
Funding LLC, a Delaware limited liability company (the "Company"), in
accordance with the Limited Liability Company Agreement of the Company, dated
as of January 24, 2001 and amended and restated as of April 25, 2001, as it
may be further amended or restated from time to time (the "LLC Agreement"),
hereby agrees:
1. To accept such person's rights and authority as a member of the
Management Committee (as defined in the LLC Agreement) under the LLC
Agreement, to perform and discharge such person's duties and obligations as a
member of the Management Committee under the LLC Agreement, that such rights,
authority, duties and obligations under the LLC Agreement shall continue
until such person's successor as a member of the Management Committee is
designated or until such person's resignation or removal as a member of the
Management Committee in accordance with the LLC Agreement, and, if such
undersigned person is an Independent Director (as defined in the LLC
Agreement), to be bound by the provisions of Section 6.07 of the LLC
Agreement. A member of the Management Committee is designated as a "manager"
of the Company within the meaning of the Delaware Limited Liability Company
Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND
REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
3. This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed as original and all of which
together shall constitute a single instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
Name: Name:
Name: Name:
Name:
EXHIBIT B
Notice Address of Sole Member
NAME OF MEMBER NOTICE ADDRESS
Public Service Company of New Public Service Company of New
Hampshire Hampshire
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
(email)
with a copy to:
Public Service Company of New
Hampshire
c/o Northeast Utilities
Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant
Treasurer - Finance
Facsimile: (860) 665-
5457
Telephone: (860) 665-
3258
E-Mail: xxxxxxx@xx.xxx
EXHIBIT C
Officers
_______________________________ President
_______________________________ Vice President
_______________________________ Treasurer
_______________________________ Secretary
_______________________________ Assistant Secretary
