EXHIBIT A-4
OPERATING AGREEMENT
OF
ALLIANT ENERGY SPE LLC
A DELAWARE LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I GENERAL PROVISIONS...............................................1
1.01. Definitions......................................................1
----- -----------
1.02. Name.............................................................1
----- ----
1.03. Registered Office and Agent......................................1
----- ---------------------------
1.04. General Purpose..................................................1
----- ---------------
1.05. Term.............................................................2
----- ----
1.06. Foreign Qualification............................................2
----- ---------------------
1.07. No State Law Partnership.........................................2
----- ------------------------
1.08. Partnership Classification.......................................2
----- --------------------------
ARTICLE II CAPITAL CONTRIBUTIONS............................................3
2.01. Capital Contributions............................................3
----- ---------------------
2.02. Additional Capital Contributions.................................3
----- --------------------------------
2.03. Return of Capital Contributions..................................3
----- -------------------------------
2.04. No Interest on Capital Contributions.............................3
----- ------------------------------------
2.05. Capital Accounts.................................................3
----- ----------------
2.06. Profits and Losses...............................................3
----- ------------------
ARTICLE III DISTRIBUTIONS....................................................3
3.01. Limitation.......................................................3
----- ----------
3.02. Distributions....................................................4
----- -------------
3.03. Liquidating Distribution.........................................4
----- ------------------------
ARTICLE IV ACTIONS BY MEMBERS...............................................4
4.01. Restrictions on Members..........................................4
----- -----------------------
4.02. Manner of Acting.................................................4
----- ----------------
4.03. Notice...........................................................4
----- ------
4.04. Records..........................................................5
----- -------
i
ARTICLE V MANAGEMENT OF COMPANY............................................5
5.01. Board of Managers................................................5
----- -----------------
5.02. General Manager..................................................7
----- ---------------
5.03. Officers.........................................................7
----- --------
5.04. Restrictions on Authority of Managing Board and Officers.........7
----- --------------------------------------------------------
5.05. Limitation on Liability of Managers and Officers;
----- ------------------------------------------------
Indemnification..................................................8
---------------
5.06. Maintenance of Separate Existence................................8
----- ---------------------------------
ARTICLE VI LIMITATION ON CERTAIN ACTIONS BY THE COMPANY.....................9
6.01. Activity Limitations.............................................9
----- --------------------
ARTICLE VII TRANSFERS.......................................................10
7.01. General Restrictions on Transfers...............................10
----- ---------------------------------
7.02. Involuntary Transfer............................................10
----- --------------------
7.03. No Voluntary Withdrawal.........................................11
----- -----------------------
ARTICLE VIII DISSOLUTION, TERMINATION, AND LIQUIDATION OF COMPANY...........11
8.01. Events Causing Dissolution......................................11
----- --------------------------
8.02. Termination.....................................................11
----- -----------
8.03. Liquidation.....................................................11
----- -----------
8.04. Filing..........................................................11
----- ------
8.05. Distributions in Kind...........................................11
----- ---------------------
8.06. Limitation on Liability.........................................12
----- -----------------------
ARTICLE IX BOOKS AND RECORDS...............................................12
9.01. Books and Records...............................................12
----- -----------------
9.02. Company Funds...................................................12
----- -------------
ARTICLE X REPORTS.........................................................12
10.01. Reports.........................................................12
-------
ARTICLE XI MISCELLANEOUS...................................................12
11.01. Amendments to Operating Agreement...............................12
------ ---------------------------------
11.02. Binding Provisions..............................................13
------ ------------------
ii
11.03. Applicable Law..................................................13
------ --------------
11.04. Separability of Provisions......................................13
------ --------------------------
11.05. Headings........................................................13
------ --------
11.06. Interpretation..................................................13
------ --------------
11.07. Dispute Resolution..............................................13
------ ------------------
11.08. Third-Party Beneficiaries.......................................13
------ -------------------------
11.09. Counterparts....................................................14
------ ------------
Exhibit A DEFINITIONS.................................................1
Exhibit B CERTIFICATE OF FORMATION....................................4
Exhibit C CAPITAL CONTRIBUTIONS OF MEMBERS............................5
iii
THIS OPERATING AGREEMENT is made and entered into as of ,
-------- --
2000, by and between the undersigned members (the "Members") for the purposes of
providing the capitalization, rights, obligations, and restrictions of Alliant
Energy SPE LLC (the "Company") as set forth in this Operating Agreement with the
force of a limited liability company agreement as provided for in the Delaware
Limited Liability Company Act (the "Act"), and the Organizer, solely for the
purpose of making the acknowledgment at the end of this Operating Agreement.
In consideration of the mutual promises made in this Operating
Agreement, the Company shall be managed and operated pursuant to this Operating
Agreement as follows:
ARTICLE I
GENERAL PROVISIONS
1.01. Definitions. Capitalized terms used in this Operating Agreement
-----------
shall have the meanings set forth in Exhibit A.
---------
1.02. Name. The name of the Company is Alliant Energy SPE LLC.
----
1.03. Registered Office and Agent.
---------------------------
(a) Office and Agent. The Company's registered office shall initially
----------------
be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the Company's registered
agent shall be Corporation Trust Company, whose address is 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000. The Company's principal place of business is 000
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000. The Board of Managers may
establish additional offices or may relocate the principal or registered
offices. The Members shall be given prompt notice of any relocation of the
principal or registered offices of the Company.
(b) Filing on Change. Upon the appointment of a new registered agent
----------------
or the change of the registered office, the Board of Managers shall file or
cause the filing of the document required by section 18-104(b) of the Act as
appropriate to the circumstances.
1.04. General Purpose. The nature of the business or purposes to be
---------------
conducted or promoted by the Company is to engage in the following activities:
(a) To acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with from time to time the indebtedness of any
Obligor (i) under a Contract arising from sales by Originator, including the
right to payment of any interest or finance charges and other obligations of
such Obligor with respect thereto; or (ii) with respect to reimbursement of
expenses pursuant to a joint plant operating agreement or similar agreement, and
all proceeds thereof and rights with respect thereto, including without
limitation all rights to make claims in respect thereof under the Contract
(collectively, "Receivables");
(b) To acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with any collateral securing the Receivables,
related insurance policies and any proceeds or further rights associated with
1
any of the foregoing (including without limitation any records relating
thereto);
(c) To sell, assign, pledge or otherwise transfer the Receivables or
interests therein to any third party or parties;
(d) To negotiate, authorize, execute, deliver, assume the obligations
under, and perform, any agreement or instrument or document relating to the
activities set forth in clauses (a) through (c) above, including but not limited
to any purchase agreement, sale agreement, indenture, note, loan agreement,
security agreement, receivables purchase agreement, indemnification agreement or
underwriting agreement; and
(e) To engage in any activity and to exercise any powers permitted to
limited liability companies under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or advisable to
accomplish the foregoing.
1.05. Term. The Company's term officially began on ,
---- ----------- --
2000, and shall continue until terminated by operation of law or by some
provision of this Agreement.
1.06. Foreign Qualification. Prior to the Company's conducting
---------------------
business in any jurisdiction other than Delaware, the Members shall cause the
Company to comply, to the extent procedures are available and those matters are
reasonably within the control of the Members, with all requirements necessary to
qualify the Company as a foreign limited liability company in all applicable
jurisdictions. The Members shall execute, acknowledge, swear to, and deliver all
certificates and other instruments conforming with this Agreement that are
necessary or appropriate to qualify, continue, and terminate the Company as a
foreign limited liability company in all such jurisdictions in which the Company
may conduct business.
1.07. No State Law Partnership. The Members intend that the Company be
------------------------
operated in a manner consistent with its treatment as a partnership for federal
and state income tax purposes and not be operated or treated as a partnership
(including, without limitation, a limited partnership or joint venture) for any
other purpose and that no Member be a partner or joint venturer of any other
member for any other purpose, including, but not limited to, Section 303 of the
Federal Bankruptcy Code, and this Operating Agreement shall not be construed to
suggest otherwise. No Member shall take any action inconsistent with the express
intent of the parties hereto as set forth herein.
1.08. Partnership Classification. The Members hereby agree that the
--------------------------
Company shall not be operated as an "association" taxed as a "company" under the
Code and that no election shall be made under the Treasury Regulations by any
Member or any officer to treat the Company as an "association" taxable as a
"company" without the prior unanimous written consent of the Members.
2
ARTICLE II
CAPITAL CONTRIBUTIONS
2.01. Capital Contributions. The Members have made the Capital
---------------------
Contributions set forth in Exhibit C in exchange for the Percentage Interests
set forth opposite their names in that exhibit. Capital Contributions of
additional Members shall be made for such consideration as may be established by
the Board of Managers.
2.02. Additional Capital Contributions. The Members may make
--------------------------------
Additional Capital Contributions to the Company. Except to the extent of the
initial Capital Contributions, the Members shall not be required to make any
Additional Capital Contributions.
2.03. Return of Capital Contributions. No Member shall be entitled to
-------------------------------
a return of any portion of its Capital Contributions, except as provided in
Sections 3.02 and 8.03 below.
----------------------
2.04. No Interest on Capital Contributions. No interest shall be due
------------------------------------
from the Company on any Capital Contribution.
2.05. Capital Accounts. There shall be established and maintained with
----------------
respect to the Percentage Interests held by each Member a Capital Account in
accordance with the following:
(a) Credits. To each Member's Capital Account there shall be credited
-------
(1) the Member's Capital Contributions and Additional Capital Contributions, (2)
the Member's allocable share of profits pursuant to Section 2.07 below.
------------
(b) Debits. To each Member's Capital Account there shall be debited
------
(1) the amount of cash and the Value of any property Distributed to the Member,
(2) the Member's allocable share of losses pursuant to Section 2.07 below.
------------
2.06. Profits and Losses. The Company's profits and losses shall be
------------------
allocated among the Members in proportion to the weighted average Capital
Accounts of the Members during the Fiscal Period.
ARTICLE III
DISTRIBUTIONS
3.01. Limitation. Distributions may be made only to the extent
----------
permitted by law and consistent with the Company's obligations to its creditors
as determined by the Board of Managers.
3.02. Distributions. Subject to Section 3.01, the Company shall make
-------------
Distributions of all of its funds (other than funds which are required to pay
expenses or purchase contracts) no less frequently than monthly to the Members
as follows:
3
(a) First, collections on Receivables contributed by a Member and for
which the Member has not been paid in cash by the Company, shall be distributed
to the Member contributing the Receivable.
(b) Second, to the Members in proportion to the weighted average
Capital Accounts of the Members during the Fiscal Period.
3.03. Liquidating Distribution. If the Company is liquidated pursuant
------------------------
to Article VIII below, the assets to be Distributed pursuant to Section 8.03(b)
------------ ---------------
below shall be Distributed to the Members in accordance with their Capital
Account balances.
ARTICLE IV
ACTIONS BY MEMBERS
4.01. Restrictions on Members. The Members shall not have any right or
-----------------------
power to take part in the management or control of the Company or its business
and affairs, or to act for or bind the Company in any way. Notwithstanding the
foregoing, the Members shall have all the rights and powers specifically set
forth in this Operating Agreement and, to the extent not inconsistent with this
Operating Agreement, in the Act.
4.02. Manner of Acting. The Members' consent to any act or failure to
----------------
act may be given orally or in writing. Except in the case of a written consent
signed by the requisite Members, any Member alleging that the requisite Majority
Consent was given has the burden of proof as to the validity of that Consent.
Written records kept pursuant to Section 4.03 below of a meeting at which a
------------
Majority Consent was given as to an issue shall be prima facie proof of that
Consent, if notice of the issue to be discussed at the meeting was duly given or
waived pursuant to Section 4.03 below. No person other than a Member may
------------
challenge an act taken by the Company based on the failure to obtain the
requisite Majority Consent, and any act taken by the Company with respect to a
third party having no actual knowledge of such a failure shall be binding
against the Company.
4.03. Notice. No issue shall be voted on by the Members unless
------
reasonable notice of the issue either is given to each Member or is waived by
any Member not receiving notice. Except in the case of a signed acknowledgment
of receipt of notice, or waiver of notice signed by the Members not receiving
the notice, any Member alleging that the requisite notice was given or waived
has the burden of proof as to the validity of the notice or waiver. Written
records kept pursuant to Section 4.04 below of a meeting at which a Member
------------
appeared shall be prima facie evidence that the Member was duly notified of the
issues voted on at the meeting or that the Member waived the requirement of such
notice, unless the purpose for the appearance was to contest the validity of
notice of such issues. No person other than a Member may challenge an act taken
by the Company based on the failure to give such notice, and any act taken by
the Company with respect to a third party having no actual knowledge of the
failure shall be binding against the Company. For purposes of this Section 4.03,
------------
notice shall be considered reasonable if it is given not less than 10 nor more
than 30 days before the time for the subject vote and if it identifies the
nature of the issue with sufficient specificity as to allow the Members to
prepare appropriately for the vote.
4
4.04. Records. The Company shall keep written records of all actions
-------
taken by the Members, which records shall be kept and maintained by the Managing
Board.
ARTICLE V
MANAGEMENT OF COMPANY
5.01. Board of Managers.
-----------------
(a) Board of Managers. The business and affairs of the Company shall
-----------------
be managed under the direction and control of the Board of Managers. The Board
of Managers shall consist of a minimum of three (3) individuals who shall be
elected by Majority Consent of the Members. The Board of Managers initially
shall consist of , who are hereby elected by the Members. A
---------------------
Manager shall hold office until his or her removal or resignation. A manager may
be removed by Majority Consent of the Members with or without cause. A Manager
may voluntarily resign at any time by delivering written notice to the General
Manager or to the Members. A resignation is effective when such notice is
delivered unless the notice specifies a later effective date.
The Company shall at all times, except as noted hereafter, have at
least one Manager (the "Independent Manager") on the Board of Managers who is
----------- -------
not, will not be while serving and has not at any time been in the last five
years (i) a director, manager (other than an "independent manager"), officer or
employee of any affiliate of the Company; (ii) a person related to any officer,
director, manager, or employee of any affiliate of the Company; (iii) a holder
(directly or indirectly) of more than a de minimis amount of any voting
-- -------
securities of any affiliate of the Company; (iv) a person related to a holder
(directly or indirectly) of more than a de minimis amount of any voting
-- -------
securities of any affiliate of the Company; or (v) a purchaser, customer, or any
other person who derives any of its revenues from interactions with any
affiliate of the Company or a family member of such purchaser, customer or other
person. In the event of the death, incapacity, resignation or removal of the
Independent Manager, the Board of Managers shall promptly appoint an Independent
Manager to replace the Independent Manager whose death, incapacity, resignation
or removal caused the related vacancy on the Board of Managers; provided,
--------
however, that the Board of Managers shall not vote on or consent to any matter
-------
unless and until an Independent Manager has been duly appointed to serve on the
Board. The Member hereby elects as the initial Independent
-------------------
Manager.
(b) Authority and Powers. All powers of the Company shall be exercised
--------------------
by or under the authority of the Board of Managers. Subject to applicable legal
requirements, decisions of the Board of Managers within its scope of authority
shall be binding upon the Company and the Members. Such powers shall
specifically include but shall not be limited to:
(i) Purchase and sell Receivables and take such other actions as
are consistent with the Company's business and purpose under Section 1.04 of
this Operating Agreement;
(ii) Insure the Company's activities and property;
5
(iii) Enter into agreements with persons, which may be Members or
affiliates of Members, for management services, accounting and legal services,
data processing services, and all other contracts or agreements that the Board
of Managers deems reasonable and necessary, and pay from the Company's funds the
consideration required under the contracts or agreements; provided, that the
Company shall not pay or contract to pay any amount for such services which
exceeds the amount which would be paid by the Originators for similar services
under the service contracts filed with or approved by state and federal
regulatory authorities;
(iv) Pay out of the Company's funds all fees and expenses incurred
in the organization and operation of the Company;
(v) Authorize the execution of all documents, instruments, and
agreements reasonably deemed by the Board of Managers to be necessary,
appropriate, or needed for the performance of its duties and the exercise of its
powers under this Operating Agreement;
(vi) Appoint a Registered Agent or change the Registered Office
pursuant to Section 1.03 above; and
(vii) Retain attorneys, accountants, and other professionals in
the course of the performance of the Managers' duties and exercise of their
powers.
(c) Actions by Board of Managers. Any actions of the Board of Managers
----------------------------
shall be taken on the consent of a majority by number of the Managers obtained
pursuant to this Section 5.01(c).
(i) Manner of Acting. The Managers' consent to any act or failure
----------------
to act may be given orally or in writing. Any person alleging that the requisite
consent was given has the burden of proving the validity of that consent, except
in the case of a written consent unanimously signed by the Managers. Written
records kept pursuant to Section 5.01(c)(ii) below of a meeting at which
Managers voted on an issue shall be prima facie proof of such consent, if notice
of the issue to be discussed at the meeting was duly given or waived pursuant to
Section 5.01(c)(iv) below. Such meetings may be conducted in person, by
telephone, or both.
(ii) Records. The Company shall keep written records of all
-------
actions taken by the Board of Managers, which records shall be kept and
maintained by the General Manager.
(iii) Voting. Each Manager shall be entitled to one vote. Any
------
Manager abstaining from voting on a given issue will be deemed to have voted in
the same manner as the majority, if any, of the Managers not abstaining from
voting on that issue.
(iv) Notice. No issue shall be voted on by the Board of Managers
------
unless reasonable notice of the meeting of the Board of Managers and the issue
is given or such notice is waived by any Manager not receiving it. Notice shall
be deemed to be reasonable if given to each Manager not less than twenty-four
(24) hours prior to the meeting orally, telephonically or in writing, including
in person or by telecopy. Any person alleging that the requisite notice was
given or waived has the burden of proving the validity of the notice or waiver,
6
except in the case of (1) a signed acknowledgment of receipt of notice or (2) a
waiver of notice signed by the Managers not receiving the notice. Written
records kept pursuant to Section 5.01(c)(ii) above of a meeting at which a
Manager appeared shall be prima facie evidence that the Manager was duly
notified of the meeting and the issues voted on at the meeting or that the
Manager waived the requirement of such notice, unless the purpose for the
appearance was to contest the validity of notice of such issues.
5.02. General Manager. The Board of Managers shall, as soon as
---------------
practicable, appoint one of the Managers, who is not the Independent Manager, as
the General Manager to personally supervise the day-to-day operations of the
Company. The General Manager shall be subject to the general supervision and
control of the Board of Managers and shall carry out the policy decisions made
by the Board of Managers. At the direction of the Board of Managers, the General
Manager shall have the full power to execute, for and on behalf of the Company,
any and all documents and instruments which may be necessary to carry on the
business of the Company. No person dealing with the General Manager need inquire
into the validity or propriety of any document or instrument executed in the
name of the Company by the General Manager, or as to the authority of the
General Manager in executing the same.
5.03. Officers. If necessary or convenient to carry out the business
--------
of the Company, the Board of Managers may appoint one or more individuals as
president, secretary and treasurer of the Company, and may appoint one or more
vice presidents. Such appointees may hold more than one office and need not be
Managers of the Company. Unless the Board of Managers decides otherwise, the
appointment of an individual to an office shall constitute the delegation to
that individual of the authority and duties that are normally associated with
the holder of that office in a stock corporation organized under the General
Corporation Law of the State of Delaware. Any appointment made pursuant to this
Section 5.03 may be revoked by the Board of Managers at any time.
5.04. Restrictions on Authority of Managing Board and Officers. None
--------------------------------------------------------
of the Managing Board or the Officers shall have the authority to:
(a) Do any act in contravention of applicable law or this Operating
Agreement or that would make it impossible to carry on the Company's activities;
(b) Possess Company property, or assign rights in specific Company
property, for other than a purpose of the Company;
(c) Perform any act that would subject the Members to liability in any
jurisdiction except as expressly provided in this Operating Agreement;
(d) Change, convert or reorganize the Company into any other legal
form; or
(e) Except as permitted expressly by this Operating Agreement, take
any action that will cause the dissolution of the Company.
5.05. Limitation on Liability of Managers and Officers;
-------------------------------------------------
Indemnification. No Manager, General Manager or Officer shall be liable,
---------------
responsible, or accountable in damages or otherwise to the Members or the
Company for any act or omission pursuant to the authority granted by this
Operating Agreement if the Manager, General Manager or Officer acted (1) in good
faith and in a manner he or she reasonably believed to be within the scope of
7
the authority granted to him or her by this Operating Agreement and (2) in the
best interests, or not opposed to the best interests, of the Company; provided
that the Manager, General Manager or Officer shall not be relieved of liability
for any claim, issue, or matter as to which the Manager, General Manager or
Officer shall have been fully adjudicated to have breached this Section 5.05 or
committed fraud or willful misconduct. Subject to this limitation in the case of
any such judgment of liability, the Company shall indemnify or allow expenses to
the Managers and Officers to the fullest extent permitted or required by the Act
as though they were members of the Company.
5.06. Maintenance of Separate Existence. The Company shall:
---------------------------------
(a) Enter into transactions with affiliates only on an arm's length
basis on commercially reasonable terms.
(b) Maintain its books and records separate and apart from any other
person.
(c) Maintain its bank accounts separate and apart from any other
person.
(d) Not commingle its assets with those of any other entity and hold
all of its assets in its own name.
(e) Conduct its own business in its own name.
(f) Maintain separate financial statements, showing its assets and
liabilities separate and apart from those of any other entity and shall not have
its assets listed on the financial statement of any other entity.
(g) File its tax returns (if required to file returns) separate and
apart from those of any other entity.
(h) Pay its own liabilities and expenses from out of its own funds.
(i) Observe all limited liability company formalities.
(j) Pay the salaries of its own employees out of its own funds and
maintain a sufficient number of employees in light of its contemplated business
purposes.
(k) Not guarantee or become obligated for the debts of any other
entity or person.
(l) Not hold out its credit as being able to satisfy the obligations
of any other entity.
(m) Not acquire the obligations or securities of its affiliates,
owners or members.
8
(n) Allocate fairly and reasonably any overhead expenses that are
shared with affiliates, including the paying for office space.
(o) Use separate stationery, invoices and checks bearing its own name.
(p) Not pledge its assets for the benefit of any other person.
(q) Hold itself out as a separate entity, correct any known
misunderstandings regarding its separate identity, and not identify itself as a
division of any other person or entity.
(r) Maintain adequate capital in light of its contemplated business
operations.
(s) Not form, acquire or hold any subsidiaries.
ARTICLE VI
LIMITATION ON CERTAIN ACTIONS BY THE COMPANY
6.01. Activity Limitations. Notwithstanding any other provision of
--------------------
this Operating Agreement and any provision of law, the Company shall not do any
of the following:
(a) Engage in any business or activity other than as set forth in
Section 1.04 hereof;
(b) Without the unanimous affirmative vote of the members of the Board
of Managers of the Company, including the Independent Manager, (i) dissolve or
liquidate, in whole or in part, or 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 consent to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, (iv) seek or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, (v) make a general assignment for the benefit
of creditors, (vi) admit in writing its inability to pay its debts generally as
they become due, (vii) take any corporate action in furtherance of the actions
set forth in clauses (i) through (vi) of this paragraph, or (viii) in its
capacity as shareholder, certificateholder, partner, member or other equity
owner, cause or consent to the taking of any of the actions set forth in clauses
(i) through (vii) of this paragraph by any affiliate; provided, however, that no
Manager may be required by any Member to consent to the institution of
bankruptcy or insolvency proceedings against the Company so long as it is
solvent;
(c) Without the unanimous affirmative vote of the members of the Board
of Managers of the Company, including the Independent Manager, merge or
consolidate with any other corporation, company or entity or sell, lease or
otherwise transfer (except as contemplated by Section 1.04 hereof) all or
substantially all of its assets to, or acquire all or substantially all of the
assets or capital stock or other ownership interests of, any other corporation,
company or entity (except as contemplated by this Agreement);
(d) Without the unanimous affirmative vote of the members of the Board
of Managers of the Company, including the Independent Manager, create, incur, or
9
assume or in any manner become liable in respect of any indebtedness other than
(i) accounts payable and expense accruals incurred in the ordinary course of
business and which are incident to the single business purpose of the Company as
stated in Section 1.04, and (ii) any liability in respect of the unpaid purchase
price of Receivables; or
(e) Invest in obligations of, or lend money to, Alliant Energy
Corporation.
ARTICLE VII
TRANSFERS
7.01. General Restrictions on Transfers. A Member may not Transfer all
---------------------------------
or any portion of its Percentage Interest. Any Transfer, attempted Transfer, or
purported Transfer in violation of this Operating Agreement's terms and
conditions shall be null and void. It is the intent of the Members that there be
an absolute bar on transfer and, if this Section 7.01 is construed by any court,
law or regulation so as to permit a Transfer, such Transfer shall be an event of
dissolution.
7.02. Involuntary Transfer. In the event of an Involuntary Transfer of
--------------------
a Member's Percentage Interest, the Creditor Transferee shall only be entitled
to receive the distribution in liquidation of the Company resulting from the
Transfer, reduced by the amount of damages incurred by the Company as a result
of the breach of this Article VII. No Involuntary Transfer shall be effective
unless and until the Creditor Transferee, the Transferor, or both send a Notice
of Transfer to the Company.
7.03. No Voluntary Withdrawal. No Member shall have the power to
-----------------------
withdraw from the Company, and no Member shall demand or receive a return of its
Capital Contributions, except as described in Section 8.03 below.
ARTICLE VIII
DISSOLUTION, TERMINATION, AND LIQUIDATION OF COMPANY
8.01. Events Causing Dissolution. The Company shall be dissolved only
--------------------------
in accordance with Section 6.01(b) and the effective date determined in
accordance therewith.
8.02. Termination. The Company's dissolution shall be effective on the
-----------
date determined under Section 8.01, but the Company shall not terminate until
articles of dissolution have been duly filed under the Act, the Company's
affairs have been wound up, and the Company's assets have been distributed as
provided in Section 8.03 below. Notwithstanding the Company's dissolution, this
Operating Agreement shall continue to govern the Company's business until the
Company is terminated and liquidated.
8.03. Liquidation. The Members shall appoint a liquidator of the
-----------
Company, who may but need not be a Manager or officer. The liquidator shall have
the same authority granted to the Managing Board in Section 5.01(b) above and
shall proceed with the winding up of the Company by applying and distributing
its assets as follows:
10
(a) Payment of Debts. The assets shall first be applied to the payment
----------------
of the Company's liabilities and the liquidation expenses. A reasonable time
shall be allowed for the orderly liquidation of the Company's assets and the
discharge of liabilities to creditors so as to enable the liquidator to minimize
any losses resulting from the liquidation.
(b) Payment of Distributions to Members. The remaining assets shall be
-----------------------------------
Distributed to the Members pursuant to Section 3.03 above.
(c) Reserve. Notwithstanding the provisions of Sections 8.03(a) and
-------
8.03(b) above, the liquidator may retain any amount that the liquidator
reasonably deems necessary as a reserve for any contingent liabilities or
obligations of the Company. These funds shall, after the passage of a reasonable
period of time, be distributed in accordance with the provisions of this Article
VIII.
8.04. Filing. Upon completion of the winding up of the Company, the
------
liquidator shall promptly execute and file on the Company's behalf a certificate
of cancellation as provided in Section 18-203 of the Act.
8.05. Distributions in Kind. If any of the Company's assets are to be
---------------------
distributed in kind, those assets shall be distributed on the basis of their
value, and any Member entitled to an interest in the assets shall receive the
interest as a tenant-in-common with all other Members so entitled.
8.06. Limitation on Liability. Each holder of a Percentage Interest
-----------------------
shall look solely to the Company's assets for all Distributions from the Company
and the return of its Capital Contribution to the Company and shall have no
recourse (upon dissolution or otherwise) against any other Member or any of
their affiliates.
ARTICLE IX
BOOKS AND RECORDS
9.01. Books and Records. The Company's books and records shall be
-----------------
maintained at the Company's principal office and shall be available for
examination by any Member or its duly authorized representative(s) at any
reasonable time. The Company shall insure at all times that it maintains
corporate records and books of accounts which are separate from those of any
other corporation, company or entity, including its affiliates.
9.02. Company Funds. The Company's funds may be deposited in such
-------------
banking institutions as the Managing Board determines, and withdrawals shall be
made only in the regular course of the Company's business on such signature or
signatures of the Officers as the Managing Board determines. All deposits and
other funds not needed in the operation of the business may be invested in
certificates of deposit, short-term money market instruments, government
securities, money market funds, or similar investments as the Managing Board may
determine.
11
ARTICLE X
REPORTS
10.01. Reports. Within 60 days after the end of each Fiscal
-------
Period, the Officers shall send to each person who was a Member at any time
during the Fiscal Period then ended (1) a balance sheet as of the end of the
period, (2) statements of income, Members' equity, changes in financial
position, and a cash flow statement for the period, and (3) such tax information
as is necessary or appropriate for the preparation by the Member of its federal
and state income tax returns. In addition, the Managing Board shall provide
reports on a more frequent basis to a requesting member to the extent reasonably
requested by the Member.
ARTICLE XI
MISCELLANEOUS
11.01. Amendments to Operating Agreement. The Members reserve the
---------------------------------
right to amend, alter, change or repeal any provision contained in this
Operating Agreement in any manner now or hereafter provided herein or by
statute; and, except as provided with respect to the indemnification of
Managers, all rights, preference and privileges conferred by this Operating
Agreement upon the Members, Managers, or any other person are granted subject to
such right; provided, however, that the Members shall not amend, alter, change
or repeal any provision of Sections 1.04, 5.01(a), 5.06, 8.01, 11.01 or Article
VI (such Sections and Article, the "Restricted Articles") without the unanimous
affirmative vote of the members of the Board of Managers and provided, further,
that the Members shall not amend or change any Article so as to be inconsistent
with the Restricted Articles.
11.02. Binding Provisions. The agreements contained in this
------------------
Operating Agreement shall be binding on and inure to the benefit of the
successors and assigns of the parties to this Operating Agreement.
11.03. Applicable Law. This Operating Agreement shall be governed
--------------
by and construed in accordance with the laws of the State of Delaware without
regard to its choice of law provisions.
11.04. Separability of Provisions. Each provision of this
--------------------------
Operating Agreement shall be considered separable, and if for any reason any
provision or provisions are determined to be invalid and contrary to any
existing or future law, the invalidity shall not impair the operation of those
portions of this Operating Agreement that are valid.
11.05. Headings. Section headings are for descriptive purposes
--------
only and shall not control or alter the meaning of this Operating Agreement as
set forth in the text.
11.06. Interpretation. When the context in which words are used
--------------
in this Operating Agreement indicates that such is the intent, words in the
singular shall include the plural, and vice versa, and pronouns in the masculine
shall include the feminine and neuter, and vice versa.
12
11.07. Dispute Resolution.
------------------
(a) Confidentiality. This Operating Agreement, the Company's business
---------------
and affairs, the Company's books and records, and any information relating to
the foregoing are confidential and private. Each person holding any Percentage
Interests agrees to maintain the confidentiality and privacy of, and not to
disclose, any such information.
(b) Costs. If any proceedings are instituted by any person with
-----
respect to any dispute arising under this Operating Agreement or to collect any
benefits due under this Operating Agreement, the prevailing party in the
proceedings shall be entitled to recover the costs of the proceedings and
reasonable attorneys fees from the other party; provided, however, that the
Company may offset any amounts owed by it to another person by reason of this
Section 11.07(b) against any funds or other property that are in the Company's
possession and that are owed by the Company to, or owned by, that other person.
11.08. Third-Party Beneficiaries. The agreements contained in
-------------------------
this Operating Agreement inure solely to the benefit of the parties to this
Operating Agreement. Except in an action brought by, but not on behalf of, a
Member, no provision of this Operating Agreement is specifically enforceable,
and no provision of this Operating Agreement shall be construed to create any
third-party beneficiaries.
11.09. Counterparts. This Operating Agreement may be executed in
------------
counterparts, all of which shall constitute the same agreement.
IN WITNESS WHEREOF, the Members have executed this Operating Agreement
as of , 2000.
------------ --
MEMBERS:
WPL SPE LLC
By:
-------------------------------
Title:
----------------------------
IESU SPE LLC
By:
-------------------------------
Title:
----------------------------
IPC SPE LLC
By:
-------------------------------
Title:
----------------------------
13
Agreed to on behalf of the Company
By:
-------------------------------
Manager
14
ACKNOWLEDGMENT
I acknowledge that Exhibit B contains a true and correct copy of the
Certificate of Formation filed by me with the Delaware Secretary of State to
organize the Company.
,
---------------------------------
Organizer
15
EXHIBIT A
DEFINITIONS
For purposes of the Operating Agreement, the following terms shall
have the meanings ascribed to them, and any derivatives of these terms shall
have correlative meanings (except as noted, references to "Sections" and
"Articles" are references to Sections and Articles of the Operating Agreement):
-------- --------
"Act" means the Delaware Limited Liability Company Act.
---
"Additional Capital Contribution" means the amount contributed to the
-------------------------------
Company's capital pursuant to Section 2.02.
"Board of Managers" or "Managing Board" means the board that will
----------------- --------------
manage the Company's business and affairs as described in the Operating
Agreement.
"Capital Account" means the account established and maintained for
---------------
each Member pursuant to Article II.
"Capital Contribution" means the gross amount of cash, property,
--------------------
services rendered, or promissory notes or other written obligations to provide
cash or property or to perform services, in each case at its Value, contributed
to the Company by any Member with respect to its Percentage Interest as
reflected in the Company's books and records.
"Company" means Alliant Energy SPE LLC.
-------
"Code" means the Internal Revenue Code of 1986, and any successor
----
provisions or codes thereto.
"Contract" means, collectively, (i) any of the Tariffs; (ii) any
--------
contract between an Originator and an Obligor which is a class A utility
pursuant to which the Originator provides electricity (or commits to provide
electricity) to such Obligor from time to time and such Obligor shall be
obligated to pay the Originator therefor; and (iii) any joint plant operating
agreement (or other similar agreement) between an Originator and an Obligor
which is a joint owner of a utility plant pursuant to which the Originator pays
operating and/or capital expenses from time to time and such Obligor shall be
obligated to reimburse the Originator for its allocated portion thereof.
"Creditor Transferee" means any creditor, receiver, trustee, or
-------------------
similar person to whom a Percentage Interest is Transferred by Involuntary
Transfer.
"Distribution" means the aggregate amount of any payment pursuant to
------------
Article IV to the Member with respect to its Percentage Interest of cash,
property, services rendered, or promissory notes or other obligations to provide
cash or property or to perform services, in each case at its value.
1-A
"Fiscal Period" means any 12-month period ending on December 31 or any
-------------
portion of that period for which the Company is required to allocate profits,
losses, and other items of income, gain, loss, or deduction for federal income
tax purposes.
"General Manager" means the Manager appointed under Section 5.02.
---------------
"Held" means, when applied to Percentage Interests, owned and
----
controlled.
"Independent Manager" means the independent manager appointed under
-------------------
Section 5.01.
"Involuntary Transfer" means any Transfer by operation of law or in
--------------------
any transaction, proceeding, or action by or in which a Member would, but for
the provisions of Section 7.02 above, be involuntarily deprived or divested of
any right, title, or interest in or to any of its Percentage Interest.
"Majority Consent" means the consent of Members Holding more than a
----------------
50% Percentage Interest at the time of the consent.
"Manager(s)" means a member or the members of the Board of Managers
----------
elected as provided in Section 5.01(a) for the purpose of vesting management of
the Company in one or more managers as contemplated by section 18-402 of the
Act.
"Member" means each person signing the Operating Agreement as a
------
Member.
"Notice of Transfer" means the written notice to be sent by a
------------------
Transferor and a Creditor Transferee to the Company pursuant to Section 7.02
describing the event giving rise to the Involuntary Transfer, the date on which
it occurred, the reason or reasons for the Transfer, and the name, address and
capacity of the Creditor Transferee.
"Obligor" means a Person obligated to make payments pursuant to a
-------
Contract.
"Officer" means any of the persons holding a Company office pursuant
-------
to Section 5.03.
"Operating Agreement" means this Operating Agreement of Alliant Energy
-------------------
SPE LLC, as the same may be amended from time to time in accordance with the
provisions hereof.
"Originators" means Wisconsin Power & Light Company, IES Utilities,
-----------
Inc., and Interstate Power Company.
"Organizer" means , who has organized the Company
--------- --------------------
in the manner prescribed in the Act and has executed this Operating Agreement
solely for the purpose of making the acknowledgment at the end of this Operating
Agreement.
"Percentage Interest" means a Member's interest in the Company,
-------------------
expressed as a percentage, as initially determined in accordance with Section
2.01 and as may be subsequently adjusted in accordance with the provisions of
this Operating Agreement and the Act.
2-A
"Person" means an individual, partnership. corporation (including a
------
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
"Tariff" means each of the tariffs pursuant to which the Originator
------
shall provide electricity, gas or water to certain Obligors from time to time
and pursuant to which such Obligors shall be obligated to pay for such
electricity, gas or water from time to time, which tariffs are in each case
approved by (i) a municipal regulatory authority within the State of Wisconsin,
Illinois or Minnesota, the Public Service Commission of Wisconsin, the Minnesota
Public Utilities Commission, or the Illinois Commerce Commission, or (ii) in the
case of sales on a wholesale basis, the Federal Energy Regulatory Commission.
"Transfer" means sell, give, assign, pledge or otherwise encumber,
--------
divest, dispose of, or transfer ownership or control of all, any part of, or any
interest in, whether voluntarily or by operation of law, but does not include a
purchase or redemption of Percentage Interests by the Company.
"Transferor" means a Member that proposes to Transfer any of its Units
----------
pursuant to the terms of Section 7.02.
3-A
Exhibit B
CERTIFICATE OF FORMATION
OF
ALLIANT ENERGY SPE LLC
In accordance with the provisions of ss.18-201 of the Delaware
Limited Liability Company Act, the undersigned, sole organizer of a Delaware
limited liability company, hereby certifies as follows:
(1) The name of the limited liability company is Alliant Energy
SPE LLC.
(2) The address of the registered office of the limited
liability company in the State of Delaware is The Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the name of its registered agent
at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation in his capacity as Sole Organizer this day of
---
, 2000.
------------
----------------------------------
Xxxxxx X. Xxxx, Xx.
1-B
EXHIBIT C
CAPITAL CONTRIBUTIONS OF MEMBERS
WPL SPE LLC:
Cash Contributed $
-----------------------
Receivables Contributed $
-----------------------
Cash Received $
-----------------------
Capital Contribution $
-----------------------
Initial Percentage Interest %
-----------------------
IESU SPE LLC:
Cash Contributed $
-----------------------
Receivables Contributed $
-----------------------
Cash Received $
-----------------------
Capital Contribution $
-----------------------
Initial Percentage Interest %
-----------------------
IPC SPE LLC:
Cash Contributed $
-----------------------
Receivables Contributed $
-----------------------
Cash Received $
-----------------------
Capital Contribution $
-----------------------
Initial Percentage Interest %
-----------------------
1-C
