LIMITED LIABILITY COMPANY AGREEMENT
OF
WMECO FUNDING LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
IS MADE AND IS EFFECTIVE AS OF MARCH 28, 2001
AND IS AMENDED AND RESTATED AS OF MAY 17, 2001
BY
WESTERN MASSACHUSETTS ELECTRIC COMPANY,
A MASSACHUSETTS CORPORATION
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.................................................... 1
Section 1.01 Definitions.............................................. 1
ARTICLE 2 FORMATION AND BUSINESS OF THE COMPANY.......................... 5
Section 2.01 Formation................................................ 5
Section 2.02 Name..................................................... 5
Section 2.03 Principal Office......................................... 5
Section 2.04 Registered Agent and Registered Office................... 5
Section 2.05 Purpose.................................................. 5
Section 2.06 Separate Existence....................................... 7
Section 2.07 Limitation on Certain Activities......................... 9
Section 2.08 No State Law Partnership................................. 9
Section 2.09 Address of the Sole Member............................... 9
ARTICLE 3 TERM........................................................... 10
Section 3.01 Commencement............................................. 10
Section 3.02 Continuation............................................. 10
ARTICLE 4 CAPITAL CONTRIBUTIONS.......................................... 10
Section 4.01 Capital Contribution..................................... 10
Section 4.02 Capital Account.......................................... 10
Section 4.03 Interest on and Return of Capital Account................ 10
ARTICLE 5 ALLOCATIONS; BOOKS............................................. 10
Section 5.01 Allocations of Income and Loss........................... 10
Section 5.02 Books of Account......................................... 11
Section 5.03 Distributions............................................ 11
ARTICLE 6 MANAGEMENT OF THE COMPANY...................................... 11
Section 6.01 Management of Company.................................... 11
Section 6.02 Withdrawal of Director................................... 11
Section 6.03 Duties of Directors...................................... 11
Section 6.04 Removal of Director...................................... 12
Section 6.05 Quorum: Acts of the Management Committee................. 12
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TABLE OF CONTENTS
(CONTINUED)
Page
Section 6.06 Officers................................................. 12
Section 6.07 Special Members.......................................... 12
ARTICLE 7 DISSOLUTION, LIQUIDATION AND WINDING-UP........................ 13
Section 7.01 Dissolution.............................................. 13
Section 7.02 Accounting............................................... 13
Section 7.03 Certificate of Cancellation.............................. 14
Section 7.04 Winding Up............................................... 14
Section 7.05 Order of Payment of Liabilities Upon Dissolution......... 14
Section 7.06 Limitations on Payments Made in Dissolution.............. 14
ARTICLE 8 TRANSFER AND ASSIGNMENT........................................ 14
Section 8.01 Transfer of Membership Interests......................... 14
Section 8.02 Admission of Transferee as Member........................ 15
ARTICLE 9 GENERAL PROVISIONS............................................. 15
Section 9.01 Notices.................................................. 15
Section 9.02 Controlling Law.......................................... 15
Section 9.03 Execution of Counterparts................................ 15
Section 9.04 Severability............................................. 15
Section 9.05 Entire Agreement......................................... 16
Section 9.06 Amendments to Organizational Documents................... 16
Section 9.07 Paragraph Headings....................................... 16
Section 9.08 Gender, Etc.............................................. 16
Section 9.09 Limited Liability........................................ 16
Section 9.10 Assurances............................................... 16
Section 9.11 Enforcement by Independent Director...................... 16
Section 9.12 Waiver of Partition; Nature of Interest.................. 17
ARTICLE 10 INDEMNIFICATION................................................ 17
Section 10.01 Indemnification.......................................... 17
Section 10.02 Indemnification for Suits by or in Right of Company...... 17
Section 10.03 Authorization............................................ 18
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TABLE OF CONTENTS
(CONTINUED)
Page
Section 10.04 Good Faith............................................... 18
Section 10.05 Court Action............................................. 18
Section 10.06 Expenses................................................. 19
Section 10.07 Non-Exclusivity.......................................... 19
Section 10.08 Insurance................................................ 19
Section 10.09 Consolidation/Merger..................................... 19
Section 10.10 Heirs, Executors, and Administrators..................... 20
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LIMITED LIABILITY COMPANY AGREEMENT
OF
WMECO FUNDING LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (THIS "AGREEMENT") OF WMECO
FUNDING LLC, a Delaware limited liability company (the "COMPANY"), is made and
is effective as of March 28, 2001, and is amended and restated as of May 17,
2001, by WESTERN MASSACHUSETTS ELECTRIC COMPANY, a Massachusetts 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 March 28, 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,ss.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 Transition Property Purchase
and Sale Agreement, the Indenture, the Trust Agreement, the Servicing Agreement,
the Administration Agreement, the Certificate Indenture, the Fee and Indemnity
Agreement and the Note Purchase Agreement.
"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, Boston,
Massachusetts, 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 March 28, 2001 as described in Section 2.01 and as
amended, modified, supplemented, or restated from time to time.
"CERTIFICATE INDENTURE" shall mean the Certificate Indenture to be
entered into by the Trust, as certificate issuer, a Delaware trustee and a
certificate trustee, as the same may be amended, supplemented or modified 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.
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"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 by the Company, the Trust as certificate issuer, a
certificate trustee, a Delaware trustee and the Massachusetts Development
Finance Agency and Massachusetts Health and Educational Facilities Authority,
acting jointly as settlors, 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 note issuer, and a note 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 WMECO Affiliated Group (other
than the Company and any such member of the WMECO 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 WMECO
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 WMECO 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 WMECO 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
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Company of Transition Property must qualify as Independent Directors. At all
times after the acquisition by the Company of Transition 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.
"NOTE PURCHASE AGREEMENT" shall mean the Note Purchase Agreement to be
entered into by the Company and the trust created under the Trust Agreement, as
amended and supplemented from time to time.
"NOTES" shall mean the notes of the Company at any time issued pursuant
to the Indenture or any indenture supplemental thereto.
"OFFICER" shall mean an officer of the Company as appointed and serving
in accordance with Section 6.06.
"PERSON" shall mean any natural person or Entity.
"SALE AGREEMENTS" shall have the meaning specified in Section 2.05.
"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 Transition Property
Servicing Agreement to be entered into by the Servicer and the Company, as note
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.
"STATUTE" shall mean Chapter 164 of the Massachusetts Acts of 1997,
entitled An Act Relative to Restructuring the Electric Utility Industry in the
Commonwealth, Regulating the Provision of Electricity and Other Services, and
Promoting Enhanced Consumer Protections Therein.
"TRANSITION PROPERTY" shall mean the property to be transferred to the
Company pursuant to the Transition Property Purchase and Sale Agreement.
"TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT" shall mean the
Transition Property Purchase and Sale Agreement to be entered into by the
Company and the Sole Member, as amended and supplemented from time to time.
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"TRUST" shall mean the Massachusetts RRB Special Purpose Trust WMECO-1.
"TRUST AGREEMENT" shall mean the Declaration of Trust for the Trust,
entered or to be entered into by the Massachusetts Development Finance Agency,
the Massachusetts Health and Educational Facilities Authority and a Delaware
trustee, as the same may be amended and supplemented from time to time.
"WMECO AFFILIATED GROUP" shall mean the Sole Member and any Affiliate
of the Sole Member (other than the Company).
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 Commonwealth of
Massachusetts, 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 "WMECO 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 Section 1H(a) of the Statute. As such, the
purpose for which the Company is formed is limited solely to the following
activities:
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(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 Transition Property, along with
certain other related assets;
(b) to enter into, perform and comply with the Transition
Property Purchase and Sale Agreement, assignment agreements, or other agreements
providing for the purchase of the Transition Property, any future "transition
property" (as such term is defined in Section 1H(a) of the Statute), 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 Notes and
enter into any agreement or document providing for the authorization, issuance,
sale and delivery of the Notes;
(d) to manage, collect amounts due on, sell, exchange,
assign, pledge, encumber, or otherwise deal with all or any part of the
Transition 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 Transition Property and its other assets as
collateral security;
(e) to invest proceeds from the Transition 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
electric rate reduction bonds or other instruments secured by the Transition
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
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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 WMECO
Affiliated Group.
(d) Maintain an arm's length relationship with its
Affiliates and the WMECO 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 WMECO 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 WMECO 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 WMECO Affiliated Group. To the extent that the
Company and the Sole Member or any Affiliate of the WMECO 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
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all action on behalf of the Company, keeping all resolutions or consents
necessary to authorize actions taken or to be taken, and 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 WMECO 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 Transition 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 WMECO 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
WMECO 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 WMECO 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 WMECO 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 Transition Property any member of the WMECO
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 WMECO 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 WMECO Affiliated Group.
(p) Comply with all restrictions on its business and
operations as set forth in Sections 2.05 and 2.07.
(q) Not pledge its assets for the benefit of any member of
the WMECO Affiliated Group.
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(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 Article 2 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 Notes 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 Notes in connection with the acquisition from the Sole Member, as
seller, of additional transition property, separate from the transition property
acquired with the proceeds of any other series of Notes, 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 Article 6) 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.
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ARTICLE 3
TERM
SECTION 3.01 COMMENCEMENT. The Company's term commenced upon the
filing of the Certificate with the Secretary on March 28, 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 Section 4.02 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
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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 Transition
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.
-11-
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 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.
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
-12-
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 Section 2.07, 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
-13-
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 Section 7.01 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 Section 7.01, 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 Section 7.06.
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
Section 8.02. 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
-14-
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
Section 9.01.
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.
-15-
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 1.01 (including the definition of "Independent Director"), 2.05,
2.06, 2.07, 3.02, 6.02, 6.07, 7.01, 8.02 , 9.06 and 9.11 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 2.05, 2.06, 2.07, 3.02, 6.02,
6.07, 7.01, 8.02, 9.06 and 9.11) constitutes a
-16-
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 Section 5.03 hereof. The Membership Interest of the Sole Member in
the Company is personal property.
ARTICLE 10
INDEMNIFICATION
SECTION 10.01 INDEMNIFICATION. Subject to Section 10.03 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 Section 10.03 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
-17-
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 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.
SECTION 10.04 GOOD FAITH. For purposes of any determination under
Sections 10.03 or 9.09 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 Section
10.04 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 Section 10.04 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 10.01 or 10.02 of this
Article, as the case may be.
SECTION 10.05 COURT ACTION. Notwithstanding any contrary
determination in the specific case under Section 10.03 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 10.01 and 10.02 of this Article. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the manager, officer,
-18-
employee or agent is proper in the circumstances because he has met the
applicable standards of conduct set forth in Section 10.01 and 10.02 of this
Article, as the case may be. Notice of any application for indemnification
pursuant to this Section 10.05 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 10.01 and
10.02 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 10.01 or 10.02 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.
-19-
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]
-20-
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.
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By:
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
- S-1 -
EXHIBIT A
MANAGEMENT AGREEMENT
[Date]
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
RE: MANAGEMENT AGREEMENT - WMECO 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 WMECO Funding
LLC, a Delaware limited liability company (the "COMPANY"), in accordance with
the Limited Liability Company Agreement of the Company, dated as of March 28,
2001 and amended and restated as of May 17, 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.
- A-1 -
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
------------------------------------- -------------------------------------
Name: Name:
------------------------------------- -------------------------------------
Name: Name:
-------------------------------------
Name:
- A-2 -
EXHIBIT B
NOTICE ADDRESS OF SOLE MEMBER
NAME OF MEMBER NOTICE ADDRESS
-------------- --------------
Western Massachusetts Electric Company Western Massachusetts Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attention: Assistant Treasurer - Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
with a copy to:
Western Massachusetts Electric Company
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: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
- B-1 -
EXHIBIT C
OFFICERS
President
------------------------------------------------
Vice President
------------------------------------------------
Treasurer
------------------------------------------------
Secretary
------------------------------------------------
Assistant Secretary
------------------------------------------------
- C-1 -
