Amended and Restated Limited Liability Company Agreement
for
Xxxxxxxx Wind Partners, LLC
A Delaware Limited Liability Company
This AMENDED AND RESTATED Limited Liability COMPANY AGREEMENT (this "Agreement")
for Xxxxxxxx Wind Partners, LLC (the "Company") dated as of January 16, 2001, is
entered into and made effective by Cinergy Global Xxxxxxxx I, Inc., a Delaware
corporation ("Member"), as of the Effective Date, with reference to the
following facts:
X. Xxxxxxxx Wind Partners, LLC is a Delaware limited liability company formed by
FORAS Energy, Inc. (sometimes referred to as "Initial Member") by filing its
Certificate of Formation with the Secretary of State of Delaware on March 19,
1998. This Agreement is an amendment to and restatement of the Limited Liability
Company Operating Agreement of Xxxxxxxx Wind Partners, LLC, effective as of
September 25, 1998 (the "Initial Limited Liability Company Agreement");
B. Member now wishes to replace the Initial Limited Liability Company Agreement
in its entirety by entering into this Agreement to provide for the governance of
the Company and the conduct of its business as a limited liability company. This
Agreement shall be considered the "Limited Liability Company Agreement" of the
Company within the meaning of Section 18-101(7) of the Act.
NOW THEREFORE, the Initial Limited Liability Company Agreement is wholly
replaced and superseded by this Agreement in its entirety and this Agreement
shall read as follows:
1. Definitions
Capitalized terms used in this Agreement shall have the meanings respectively
given thereto in this Section 1 or elsewhere in this Agreement and when not so
defined shall have the meanings set forth in the Act.
"Act" means the Delaware Limited Liability Company Act, 6 Del. C.ss.18-101 et
seq., as amended from time to time.
"Affiliate" means, with respect to any Member, any person: (i) that owns more
than 5 % of the voting interests in the Member; or (ii) in which the Member owns
more than 5% of the voting interests; or (iii) in which more than 5% of the
voting interests are owned by a Person who has a relationship with the Member
described in clause (i) or (ii) above.
"Agreement" means this Amended and Restated Limited Liability Company Agreement
for Xxxxxxxx Wind Partners, LLC as may be amended from time to time.
"Capital Account" means the account to be maintained by the Company on the
Company's books and records for each Member in accordance with Section 3.6.
"Capital Contribution" means, with respect to any Member, the total amount of
cash and the Gross Asset Value of any other assets contributed or deemed
contributed to the Company by the Code (net of liabilities secured by such
contributed property that the Company is considered to assume or take "subject
to" under Code Section 752) or services rendered or a promissory note or other
binding obligation to contribute cash or assets or to render services as
permitted under the Act in consideration of Membership Rights held by such. A
Capital Contribution shall not be deemed a loan.
"Capital Proceeds" means the gross receipts received by the Company from a
Capital Transaction.
"Capital Transaction" means any transaction other than in the ordinary course of
business which results in the Company's receipt of cash or other consideration
other than Capital Contributions, including, without limitation, proceeds of
sales or exchanges or other dispositions of property other than in the ordinary
course of business, financings, refinancings, condemnations, recoveries of
damage awards and insurance proceeds.
"Cash Flow" means all cash funds derived from operations of the Company
(including interest received on reserves), without reduction for any non-cash
charges, but less cash funds used to pay current operating expenses and to pay
or establish reasonable reserves for future expenses, debt payments, capital
improvements, and replacements as determined by the Managers. Cash Flow shall
include net proceeds from all sales, refinancings, and other dispositions of
Company property that the Managers deem in excess of the amount reasonably
necessary for the operating requirements of the Company. Cash Flow shall not
include Capital Proceeds but shall be increased by the reduction of any reserve
previously established.
"Certificate of Formation" means the Certificate of Formation of the Company
filed with the Secretary of State of Delaware in accordance with the Act by the
Initial Member on March 19, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.
"Company" means Xxxxxxxx Wind Partners, LLC, a Delaware limited liability
company.
"Company Assets" means all the direct and indirect interests in real and
personal property owned by the company from time to time and shall include both
tangible and intangible property (including cash).
"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an
asset for such Fiscal Year, except that if the Gross Asset Value of an asset
differs from its adjusted basis for federal income tax purposes at the beginning
of such Fiscal Year, Depreciation shall be an amount which bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to
such beginning adjusted tax basis; provided however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Members.
"Effective Date" is January 16, 2001.
"EWG" means an exempt wholesale generator as such term is defined in Section 32
of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.
"Fiscal Year" shall have the meaning given in Section 2.7.
"Gross Asset Value" means with respect to any asset, the asset's adjusted basis
for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any item of property contributed by
Member to the Company shall be the gross fair market value of such
asset, as mutually agreed by the contributing Member and the Company;
(ii) The Gross Asset Values of all Company Assets shall be adjusted to
equal their respective gross fair market values (taking Code Section
7701(g) into account) in accordance with Regulation Section
1.704-1(b)(2)(iv)(f) and as determined by the Members as of the
following times: (a) the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a de
minimis Capital Contribution; (b) the distribution by the Company to a
Member of more than a de minimis amount of Company property as
consideration for an interest in the Company; and (c) the liquidation
of the Company within the meaning of Regulation Section
1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses
(a) and (b) of this paragraph shall be made only if the Members
reasonably determine that such adjustment is necessary to reflect the
relative Interests of the Members in the Company;
(iii)The Gross Asset Value of any item of Company Assets distributed to
any Member shall be adjusted to equal the gross fair market value
(taking Code Section 7701(g) into account) of such asset on the date
of distribution as mutually agreed by the receiving Member and the
Company; and
(iv) The Gross Asset Values of Company Assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Code Section 732 or Code Section 734 or Code
Section 743, subject to the limitations imposed by Code Section 755
and only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Regulation Section
1.704-1(b)(2)(iv)(m) and subparagraph (e) of the definition of "Net
Profits" or "Net Losses"; provided, however, that Gross Asset Values
shall not be adjusted pursuant to this subparagraph (iv) to the extent
that an adjustment pursuant to subparagraph (ii) is required in
connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with
respect to such asset, for purposes of computing Profits and Losses.
"Initial Member" means FORAS Energy, Inc.
"Interest" means an Interest Holder's share of the Profits and Losses of, and
the right to receive distributions from the Company, but does not include any
other rights of a Member including, without limitation, the right to vote or to
participate in management, or any right to information concerning the business
and affairs of the Company.
"Interest Holder" means any Person who holds an Interest, whether as a Member or
as an assignee of a Member who has not been admitted to the Company as a Member.
"Involuntary Withdrawal" means, with respect to any Member, the occurrence of
any of the following events;
(i) the Member makes an assignment for the benefit of creditors;
(ii) the Member files a voluntary petition of bankruptcy;
(iii)the Member is adjudged bankrupt or insolvent or there is entered
against the Member an order for relief in any bankruptcy or insolvency
proceeding;
(iv) the Member files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
(v) the Member seeks, consents to, or acquiesces in the appointment of a
trustee, receiver, or liquidator of the Member or of all or any
substantial part of the Member's properties;
(vi) the Member files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against the
Member in any proceeding described in Subsections (i) through (v);
(vii)within one hundred twenty days (120) days of any proceeding against
the Member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
statute, law, or regulation if the proceeding has not been dismissed,
or within ninety (90) days after the appointment of a trustee,
receiver, or liquidator for the Member or all or any substantial part
of the Member's properties without the Member's agreement or
acquiescence, which appointment is not vacated or stayed, or if the
appointment is stayed, for ninety (90) days after the expiration of
the stay which period the appointment is not vacated;
(viii) if the Member is an individual, the Member's death or adjudication
by a court of competent jurisdiction as incompetent to manage the
Member's person or property;
(ix) if the Member is acting as a Member by virtue of being a trustee of a
trust, the termination of the trust;
(x) if the Member is a partnership or another limited liability company,
the dissolution and commencement of winding up of the partnership or
limited liability company;
(xi) if the Member is a corporation, the dissolution of the corporation or
the revocation of its charter; or
(xii)if the Member is an estate, the distribution by the fiduciary of the
estate's entire interest in the limited liability company.
"Manager(s)" is the Person(s) designated as such in Article 5 of this Agreement
or who is later elected as a Manager pursuant to the terms of this Agreement.
"Member" means Cinergy Global Xxxxxxxx I, Inc. and any Person who subsequently
is admitted as a Member of the Company in accordance with the terms of this
Agreement.
"Membership Interest" means the entire ownership interest of a Member in the
Company at any particular time, including without limitation: (i) interest, (ii)
right to inspect the Company's books and records; and (iii) right to participate
in the management of and vote on matters coming before the Company.
"Minimum Gain" of the Company, as provided in Regulation Section 1.704-2(d),
means the total amount of gain the Company would realize for federal income tax
purposes if it disposed of all assets subject to their respective nonrecourse
liabilities for no consideration other than the full satisfaction thereof.
"Negative Capital Account" means a Capital Account with a balance of less than
zero.
"Nonrecourse Deduction" has the meaning set forth in Regulation Section
1.704-2(b)(1). The amount of Nonrecourse deductions for a Company fiscal year
equals the net increase in the amount of Company Minimum Gain during that fiscal
year, reduced (but not below zero) by the aggregate amount of any distributions
during that fiscal year of proceeds of a Nonrecourse Liability that are
allocable to an increase in Company Minimum Gain.
"Nonrecourse Liability" has the meaning set forth in Regulation Section
1.752-1(a)(2).
"Percentage" means, as to a Member, the percentage set forth after the Member's
name on Exhibit A of this Agreement, as amended from time to time, and as to an
Interest Holder who is not a Member, the Percentage of the Member(s) Interest
that has been acquired by such Interest Holder, to the extent the Interest
Holder has succeeded to that Member's Interest.
"Person" means an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, or other entity, whether
domestic or foreign.
"Positive Capital Account" means a Capital Account with a balance greater than
zero.
"Profit" and "Loss" means, for each Fiscal Year of the Company (or other
period), an amount equal to the Company's taxable income or loss determined in
accordance with Code Section 703(a)(for this purposes, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(i) any tax exempt income of the Company shall be included in computing
Profit and Loss;
(ii) any expenditures of the Company described in Code Section 705(a)(2)(B)
(or treated as such pursuant to Regulation Section
1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in
computing Profit or Loss, shall be subtracted from Profit or Loss;
(iii)gain or Loss resulting from any disposition of any Company Assets
where such gain or Loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the Company
Assets disposed of notwithstanding that the adjusted tax basis of such
Company Assets differs from its Gross Asset Value;
(iv) in lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal
Year;
(v) if the Gross Asset Value of any Company Asset is adjusted in
accordance with subparagraphs (ii) or (iii) of the definition thereof,
the amount of such adjustment shall be taken into account in the
taxable year of such adjustment as gain or loss from the disposition
of such asset for the purposes of computing Profit of Loss; and
(vi) notwithstanding any other provision of this definition, any items that
are specially allocated pursuant to Section 4.2.2 shall not be taken
into account in computing Profit and Loss.
"PUHCA" means the Public Utility Holding Company Act of 1935 and all rules and
regulations adopted thereunder.
"Regulation" means the income tax regulations, including any temporary
regulations, from time to time promulgated under the Code.
"Secretary of State" means the Secretary of State of the State of Delaware.
"Transfer" means, with respect to any Interest or Membership Interest in the
Company, a sale, conveyance, exchange, assignment, pledge, encumbrance gift,
bequest, hypothecation or other transfer or disposition by any other means,
whether for value or no value and whether voluntary or involuntary. 2.
Organizational Matters
2.1 Organization
The Initial Member has filed a Certificate of Formation for Xxxxxxxx Wind
Partners, LLC, a Delaware limited liability company, on March 19, 1998, and
the Company was registered to do business under the laws of the State of
Minnesota on March 24, 1998. Member has acquired all of the Membership
Interest of the Initial Member by way of Transfer. Following execution of
this Agreement, the Managers shall cause an amendment to the Certificate of
Formation, in the form attached to this Agreement as Exhibit B (which may
be executed by any one of the Managers), to be filed with the Secretary of
State. The Managers shall also cause to be made, on behalf of the Company,
such additional filings and recordings in such other states as the Members
shall deem necessary or advisable.
2.2 Name
The name of the Company shall remain Xxxxxxxx Wind Partners, LLC. The
Company may do business under that name and under any other name or names
approved by the Members.
2.3 Business
The Company may engage in any business or projects relating to wind energy
generation including the development, construction, installation,
ownership, operation, maintenance and management of wind-powered
electricity generating plant and to undertake any and all activities
related or incident thereto.
2.4 Term
The term of the Company commenced as of the date of the filing of the
Certificate of Formation and shall continue on a perpetual basis unless
dissolved pursuant to Article 7 of this Agreement.
2.5 Registered Office and Agent
The registered agent of the Company is CT Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
or such other agent as determined by the Managers. The principal business
office of the company shall be located at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, or such other location as the Managers may
determine.
2.6 Members
The name, present mailing address, taxpayer identification number, and
Percentage of each of the Members are set forth on Exhibit A attached
hereto. The Managers shall amend Exhibit A each and every time a Member is
admitted or ceases to be a Member or when the Percentage of a Member is
increased or decreased.
2.7 Fiscal Year
The Fiscal Year of the Company shall begin on January 1st and end on
December 31st. The Company shall have the same fiscal year for accounting
and for income tax purposes.
3. Members; Capital and Capital Accounts
3.1 Capital Contributions
The Member shall not be required to make a Capital Contribution.
3.2 Additional Capital Contributions
The Members shall not be required to make any additional Capital
Contributions.
3.3 No Interest on Capital Contributions
The Company shall not pay any interest on Capital Contributions.
3.4 Return of Capital Contributions
Except as otherwise provided in this Agreement, neither the Members nor any
Interest Holder shall have the right to receive the return of any Capital
Contribution except upon dissolution of the Company.
3.5 [Intentionally Left Blank]
3.6 Capital Accounts
3.6.1 A separate Capital Account shall be maintained for each Member and
each Interest Holder.
3.6.2 An Interest Holder's Capital Account shall be increased with the
Interest Holder's Capital Contributions, the amount of any Company
liabilities assumed by the Interest Holder (or which are secured by Company
property distributed to the Interest Holder), the Interest Holder's
distributive share of Profit and any item in the nature of income or gain
specially allocated to such Interest Holder pursuant to the provisions of
Section 4; and
3.6.3 An Interest Holder's Capital Account shall be decreased with the
amount of money and the Gross Asset Value of any Company property
distributed to the Interest Holder, the amount of any liabilities of the
Interest Holder assumed by the Company (or which are secured by property
contributed by the Interest Holder to the Company), the interest Holder's
distributive share of Loss, and any item in the nature of expenses or
losses specially allocated to the Interest Holder pursuant to the
provisions of Section 4.
3.6.4 If any Interest is transferred pursuant to the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent the Capital Account is attributable to the
transferred Interest.
3.6.5 If the Gross Asset Value of Company Assets is adjusted pursuant to
Section 3.6.6, the Capital Account of each Member or Interest Holder shall
be adjusted to reflect the aggregate adjustment in the same manner as if
the Company had recognized gain or Loss equal to the amount of such
aggregate adjustment.
3.6.6 It is intended that the Capital Accounts of all Interest Holders
shall be maintained in compliance with the provisions of Regulation Section
1.704-1(b)(2)(iv), and all provisions of this Agreement relating to the
maintenance of Capital Accounts shall be interpreted and applied in a
manner consistent with that Regulation.
3.7 Loans and Other Business Transactions
Any Member may, at any time, make or cause to be made a non-recourse loan
to the Company in any amount and on those terms upon which the Member
making such non-recourse loan and the Company may agree in writing.
Acceptance by the Company of any such Loan provided by a Member requires
the prior unanimous consent of the Members. Any Member may also transact
other business, subject to the requirement provided in Section 5.3.4, with
the Company and be an employee or independent contractor of the Company
and, in doing so, it shall have the same rights and be subject to the same
obligations arising out of any such business transaction or employment or
consultant relationship, as would be enjoyed by and imposed upon any
Person, not a Member, engaged in a similar business transaction with the
Company. 4. Allocations of Profit and Loss and Distributions
4.1 Distributions of Cash Flow
Except as otherwise provided in Section 4.7.1 with respect to distributions
upon liquidation of the Company, Cash Flow for each Fiscal Year of the
Company shall be distributed to the Interest Holders in proportion to their
Percentages at such time or times and in such aggregate amounts as may be
determined by the Managers. Cash Flow, other than revenues or proceeds from
a Capital Transaction or the dissolution of the Company, shall be
distributed as soon as practicable following a Manager's determination that
such cash is available for distribution. The Members acknowledge that no
assurances can be given with respect to when or whether such cash will be
available for distributions to the Members.
4.2 Allocations of Profits and Losses
4.2.1 General. Except as otherwise provided in this Section 4.2, Profit and
Loss of the Company shall be allocated among the Interest Holders as
follows:
4.2.1.1 Profit and Loss of the Company shall be allocated to the Interest
Holders in proportion to their respective Percentages.
4.2.1.2 In accordance with the provisions of Regulation Section 1.704-2(i),
each item of an Interest Holder's Nonrecourse Deduction shall be allocated
among the Interest Holders in proportion to the economic risk of loss that
the Interest Holder bears with respect to the nonrecourse liability of the
Company to which such item of an Interest Holder's Nonrecourse Deduction is
attributable.
4.2.2 Allocation Adjustments Required to Comply with Section 704(b) of the
Code
4.2.2.1 Limitation on Allocation of Loss. Notwithstanding Section 4.2.1.1,
there shall be no allocation of Loss to any Interest Holder that would
create or increase a deficit balance in such Interest Holder's Capital
Account unless such allocation would be treated as valued under Regulation
Section 1.704-1(b)(1)(i). Any Loss that cannot be allocated to an Interest
Holder pursuant to the preceding sentence shall be reallocated to the other
Interest Holders in proportion to their Percentages.
4.2.2.2 Qualified Income Offset. Notwithstanding Section 4.2.1.1, if in any
taxable year an Interest Holder receives (or is reasonably expected to
receive) a distribution, or an allocation or adjustment to such Interest
Holder's Capital Account, in accordance with Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6), that creates or increases (or is
reasonably expected to create or increase) a deficit balance in such
interest Holder's Capital Account, there shall be allocated to the Interest
Holder such items of Company income or gain as are necessary to satisfy the
requirements of a "qualified income offset" within the meaning of
Regulation Section 1.704-1(b)(2)(ii)(d)(3).
4.2.2.3 Minimum Gain Chargeback. Notwithstanding Section 4.2.1, this
Section 4.2.2.3 hereby incorporates by reference the "minimum gain
chargeback" provisions of Regulation Section 1.704-2(f) and (i)(4). In
general, upon a reduction of the Company's Minimum Gain, the preceding
sentence shall require that items of income and gain be allocated among the
Interest Holders in a manner that reverses prior allocations of Nonrecourse
Deductions and Interest Holder Nonrecourse Deductions as well as reductions
in the Interest Holders' Capital Account balances resulting from
distributions that, notwithstanding Section 4.6, are allocable to increases
in the Company's Minimum Gain. Subject to the provisions of Section 704 of
the Code and the regulations thereunder, if the Managers determine at any
time that operation of such "minimum gain chargeback" provisions likely
will not achieve such a reversal by the conclusion of the liquidation of
the company, the Managers shall adjust the allocation provisions of this
Section 4.2.2 as necessary to accomplish this result.
4.2.2.4 Allocations Subsequent to Certain Allocation Adjustments.
Any special allocations of items of Profit or Loss pursuant to
Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3 shall be taken into account
in computing subsequent allocations pursuant to Section 4.2.1 so
that, for each Interest Holder, the net amount of any such
special allocations and all allocations pursuant to Section 4.2.1
shall, to the extent possible and taking into account prior
allocations pursuant to Section 4.2.7, be equal to the net amount
that would have been allocated to such Interest Holder pursuant
to Section 4.2.1 without application of Sections 4.2.2.1, 4.2.2.2
or 4.2.2.3.
4.2.3 Book - Tax Accounting Disparities
If the Company Assets are reflected in the Capital Accounts of
the Interest Holders at a Gross Asset Value that differs from the
adjusted tax basis of such property (whether because such
property was contributed to the Company by an Interest Holder or
because of a revaluation of the Interest Holders' Capital
Accounts under Regulation Section 1.704-1(b)), allocations of
depreciation, amortization, income, gain or loss with respect to
such property shall be made among the Interest Holders in a
manner which takes such difference into account in accordance
with Code Section 704(c) and Regulation Section1.704-3(d) using
the remedial method.
4.2.4 Allocation in Event of Transfer
If an Interest is Transferred, in compliance with Section 6.1,
allocations of the Company's Profit and Loss may be made by any
method that is selected by the Managers and that is permissible
under Section 706 of the Code.
4.2.5 Adjustments to Capital Accounts for Distributions of Property
If property distributed in kind is reflected in the Capital
Accounts of the Interest Holders at a Gross Asset Value that
differs from the fair market value of such property on the date
of distribution, the difference shall be treated as Profit or
Loss on the sale of the property and shall be allocated to the
Interest Holder who received such distribution.
4.2.6 Tax Credits and Similar Items.
Any tax credits or similar items not allocable pursuant to
Sections 4.2.1 through 4.2.5 shall be allocated to the Interest
Holders in proportion to their respective Percentages.
Notwithstanding the preceding sentence, Company expenditures that
give rise to tax credits attributable to such expenditures shall
be allocated in accordance with Regulation Section
1.704-1(b)(4)(ii).
4.2.7 Reallocation of Losses Related to Excess Distributions
If, as a result of an Interest Holder receiving a distribution of
cash or property that it is required to return because the
distribution was not authorized by this Agreement, Loss which
otherwise would have been allocated to the Interest Holder was
allocated to one or more other Interest Holders (and such
allocation has not been reversed pursuant to Section 4.2.2.4),
then subsequent profit and Loss shall be allocated to the
Interest Holder and to the other Interest Holders so as, in
connection with the return of such cash or property (to the
extent of the value thereof), to effect a reallocation of such
Loss to the Interest Holder.
4.3 Modifications to Preserve Underlying Economic Objectives
If in the opinion of counsel to the Company, there is a change in the
Federal income tax law (including the Code as well as the regulations,
rulings, and administrative practices thereunder) which makes it
necessary or prudent to modify the allocation provisions of this
Section 4 in order to preserve the underlying economic objectives of
the Members as reflected in this Agreement, the Managers shall make
the minimum modification necessary to achieve such purpose.
4.4 Withholding Taxes
The Company shall withhold taxes from distributions to and allocations
among, the Interest Holders to the extent required by law. Except as
otherwise provided in this Section 4.4, any amount withheld by the
Company with regard to an Interest Holder shall be treated for
purposes of this Agreement as an amount actually distributed to such
Interest Holder. An amount shall be considered withheld by the Company
if remitted to a governmental agency without regard to whether such
remittance occurs at the same time as the distribution or allocation
to which it relates provided, however that an amount actually withheld
from a specific distribution or designated by the Managers as withheld
from a specific allocation shall be treated as if distributed at the
time such distribution or allocation occurs. To the extent operation
of the foregoing provisions of this Section 4.4 would create or
increase a deficit balance in an Interest Holder's Capital Account
(excluding for this purpose any portion of such deficit attributable
to the Interest Holder's share of the Company's Minimum Gain as
determined under Section 1), the amount withheld shall be treated as a
loan by the Company to such Interest Holder, which loan shall be
payable upon demand and shall bear interest at a rate equal to the
lowest rate that will not give rise to the imputation of additional
interest under applicable federal income tax rules. At the election of
the Managers, the Company shall be entitled to withhold from any
distributions otherwise payable to an Interest Holder amounts owed to
the Company by such Interest Holder under the terms of the preceding
sentence.
4.5 Nonallocation of Distributions to Increases in Minimum Gain
To the extent permitted under Regulation Section 1.704-2(h),
distributions to Interest Holders shall not be allocable to increases
in the Company's Minimum Gain. In general, and except as provided in
such Regulation, the preceding sentence is intended to ensure that
reductions in an Interest Holder's Capital Account balance resulting
from distributions of money or other property to that Interest Holder
are not reversed by the minimum gain chargeback provisions of Section
4.2.2.3.
4.6 Allocation of Liabilities
Solely for purposes of determining the Interest Holders' respective
shares of the nonrecourse liabilities of the Company within the
meaning of Regulation Section 1.752-3(a)(3), each Interest Holder's
interest in Company Profit shall be equal to such Interest Holder's
Percentage.
4.7 Liquidation and Dissolution
4.7.1 Distributions. If the Company is liquidated, the assets of the
Company shall be distributed to the Interest Holders in accordance
with the positive balances in their respective Capital Accounts, after
taking into account all distributions and allocations of Profit or
Loss and other items of income, gain, loss or deduction for the
Company's taxable year during which liquidation occurs. Distributions
of the Interest Holders pursuant to this Section 4.7.1 shall be made
in accordance with Regulation Section 1.704-1(b)(2)(ii)(b)(2).
4.7.2 Negative Capital Accounts. No Interest Holder shall be obligated
to restore a negative Capital Account balance.
4.8 General
4.8.1 Except as otherwise provided in this Agreement, the amount of
all distributions shall be determined by the Managers and
distributions shall be made as soon as practicable following a
Manager's determination. The Members acknowledge that no assurances
can be given with respect to when or whether such distributions will
be available to the Members.
4.8.2 The Company Assets may be distributed in kind to the Interest
Holders, and those assets shall be valued on the basis of their fair
market value. The fair market value of the assets shall be determined
by the Members. In the case of disagreement among the Members, an
independent appraiser, who shall be selected by a Manager, shall
determine the fair market value of the asset. The Profit or Loss for
each unsold asset shall be determined as if the asset had been sold at
its fair market value, and the Profit or Loss shall be allocated to
the Interest Holders who received such distributions and shall be
properly credited or charged to the Capital Accounts of the Interest
Holders prior to the distribution of the assets in liquidation
pursuant to Section 4.7.
4.8.3 All Profit and Loss shall be allocated, and all distributions
shall be made to the Persons shown on the records of the Company to
have been Interest Holders as of the last day of the taxable year for
which the allocation or distribution is to be made. Notwithstanding
the foregoing, unless the Company's taxable year is separated into
segments, if there is a Transfer or an Involuntary Withdrawal during
the taxable year, the Profit and Loss shall be allocated between the
original Interest Holder and the successor on the basis of the number
of days each was an Interest Holder during the taxable year; provided,
however, the Company's taxable year shall be segregated into two or
more segments in order to account for Profit, Loss or proceeds
attributable to a Capital Transaction or to any other extraordinary
non-recurring items of the Company.
4.8.4 The Managers are hereby authorized, upon the advice of the
Company's tax counsel, to amend this Article 4 to comply with the Code
and the Regulations promulgated under Code Section 704(b); provided,
however, that no amendment shall materially affect distributions to an
Interest Holder without the Interest Holder's prior written consent.
5. Manager(s) and Management
5.1 Management
5.1.1 Manager(s) and Appointment
The Company shall be managed by the Manager(s), who may, but need not,
be a Member. Member hereby designates Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxx, Xxxx Xxxxxx and Xxxxxxx X. Xxxxxx to serve as the Managers. The
above individuals shall serve as Managers until such individuals
resign or are removed by the Member(s); provided, however, that a
Manager shall not be permitted to resign if such Manager is, at the
time, the sole Manager, unless and until a replacement Manager shall
be elected to serve as Manager.
5.1.2 General Powers
Each Manager individually shall have full, exclusive, and complete
discretion, power, and authority, subject in all cases to the other
provisions of this Agreement and the requirements of applicable law,
to manage, control, administer, and operate the business and affairs
of the Company for the Purposes herein stated, and to make all
decisions affecting such business and affairs, including without
limitation, for Company purposes, the power to:
(a) acquire by purchase, lease, or otherwise, any real or personal
property, tangible or intangible;
(b) construct, operate, maintain, finance and improve, and to own,
sell, convey, assign, mortgage, or lease any of the Company
Assets;
(c) enter into agreements and contracts in connection with the
Company's business;
(d) purchase liability and other insurance to protect the Company's
properties and business;
(e) borrow money for and on behalf of the Company, and, execute any
guaranty on behalf of a third party;
(f) execute or modify agreements or contracts with respect to any
part or all of the Company's Assets;
(g) prepay, in whole or in part, refinance, amend, modify, or extend
any mortgages or deeds of trust which may affect any Company
Asset and, in connection therewith, to execute for and on behalf
of the Company any extensions, renewals, or modifications of such
mortgages or deeds of trust;
(h) execute any and all other instruments and documents which may be
necessary or in the opinion of the Manager desirable to carry out
the intent and purpose of this Agreement;
(i) make any and all expenditures which the Manager, in its sole
discretion, deems necessary or appropriate in connection with the
management of the affairs of the Company and the carrying out of
its obligations and responsibilities under this Agreement,
including, without limitation, all legal, accounting, and other
related expenses incurred in connection with the organization,
financing, and operation of the Company;
(j) enter into any kind of activity necessary to, in connection with,
or incidental to, the accomplishment of the purposes of the
Company; and
(k) invest and reinvest Company reserves in short term instruments or
money market funds
5.1.3 Extraordinary Transactions
(a) Notwithstanding anything to the contrary in this Agreement, the
Managers shall not undertake any of the following without the
approval of the Members:
(i) any Capital Transaction;
(ii) to lend, assume or guaranty debt in excess of $100,000 in
any one Fiscal Year;
(iii)the admission of additional or substitute Members to the
Company;
(iv) the Company engaging in business in any jurisdiction which
does not provide for the registration of limited liability
companies;
(v) to authorize any expenditure that causes the annual
expenditure budget to be exceeded by fifteen percent (15%)
in any one Fiscal Year; and
(vi) to provide loans to any Member; assume the debt of a Member;
guaranty debt of a Member; or acceptance of any loan
provided by a Member.
5.1.4 Limitation on Authority of Members
(a) No Member is an agent of the Company solely by virtue of being a
Member, and no Member has authority to act for the Company solely
by virtue of being a Member. Only the Managers are authorized to
act for the Company, and no Member has any authority to act for
the Company unless such Member is also a Manager.
(b) This Section 5.1.4 supersedes any authority granted to the Member
pursuant to Section 18-402 of the Act. Any Member who takes any
action or binds the Company in violation of this Section 5.1.4
shall be solely responsible for any loss or expense incurred by
the Company as a result of the unauthorized action and shall
indemnify and hold the Company harmless with respect to the loss
or expense.
5.1.5 Removal of Manager
The Members, at any time and from time to time and for any reason, may
remove any Manager then acting and elect a new Manager. No action to
remove a Manager may be taken without the approval of seventy-five
percent (75%) of the Members.
5.2 Meetings of and Voting by Members
5.2.1 A meeting of the Members may be called at any time by the
Managers or by those Members holding at least a majority of the
Percentages then held by Members. It shall not be necessary for the
Managers to call or to hold regular meetings of the Members. Meetings
of the Members shall be held at the Company's principal place of
business or at any other place designated by the Person calling the
meeting. Not less than seven (7) nor more than sixty (60) days before
each meeting, a Manager shall give written notice of the meeting to
each Member entitled to vote at the meeting. The notice shall state
the time, place, and purpose of the meeting. Notwithstanding the
foregoing provisions, each Member who is entitled to notice may waive
notice, either before or after the meeting, by executing a waiver of
such notice or if such Member is present at the meeting in person or
by proxy. At a meeting of Members, the presence in person or by proxy
of Members holding Percentages, which aggregate not less than
sixty-seven percent (67%), constitutes a quorum. A Member may vote
either in person or by written proxy signed by the Member or by his
duly authorized attorney-in-fact.
5.2.2 Except as otherwise provided in this Agreement, wherever this
Agreement requires the approval of the Members, the affirmative vote
of those Members holding a majority or more of the Percentages then
held by Member(s) shall be required to approve the matter.
5.2.3 In lieu of holding a meeting, the Members may vote or otherwise
take action by a written instrument indicating the consent of the
Members holding a majority of the Percentages then held. Any such
approved action shall be effective immediately. The Company shall give
prompt notice to all Members of any action approved by Members by less
than unanimous consent.
5.2.4 The provisions of this Agreement are intended to replace
completely the provisions of the Act with respect to all matters
concerning a Member's voting rights, procedures for meetings of
Members, actions by Members without meetings, and the use of proxies.
5.3 Services and Duties of Members
5.3.1 No Member serving as a Manager shall be expected to devote his,
her or its full working time and efforts to the business and affairs
of the Company, and each shall only devote so much time and efforts as
is reasonably required for such purposes. The Managers shall devote
such time to the business and affairs of the Company as is necessary
to carry out the Manager's duties set forth in this Agreement.
Managers shall be reimbursed by the Company for reasonable business
expenses incurred on behalf of the company and within guidelines
established by the Members.
5.3.2 No Member other than a Member serving as a Manager shall be
expected, or entitled, to work for the Company except with the prior
written consent of the Managers.
5.3.3 Except as otherwise expressly provided in Section 5.3.4, nothing
in this Agreement shall be deemed to restrict in any way the rights of
the Managers or any Member, or to any Affiliate of any Manager or any
Member, to conduct any other business or activity whatsoever, and the
Managers or any Member shall not be accountable to the Company or to
any Member with respect to that business or activity even if the
business or activity competes with the Company's business. The
organization of the Company shall be without prejudice to their
respective rights (or the rights of their respective Affiliates) to
maintain, expand, or diversify such other interests and activities and
to receive and enjoy profits or compensation therefrom. Each Member
waives any rights the Members might otherwise have to share or
participate in such other interests or activities of the Managers or
any other Member or any Manager's or Member's Affiliates.
5.3.4 Each Member understands and acknowledges that the conduct of the
Company's business may involve business dealings and undertakings with
a Member and its Affiliates. In any of those cases, those dealings and
undertakings shall be at arm's length and on commercially reasonable
terms as determined by the Managers.
5.4 Liability and Indemnification
5.4.1 The Managers shall not be liable, responsible, or accountable,
in damages or otherwise, to any Member or to the Company for any act
performed by the Managers within the scope of the authority conferred
on the Managers by this Agreement, except for fraud, gross negligence,
willful misconduct, or an intentional breach of this Agreement.
5.4.2 The Company shall indemnify the Managers for any act performed
by the Managers within the scope of the authority conferred on the
Managers by this Agreement, unless such act is a breach of this
Agreement, or constitutes gross negligence, wilful or intentional
misconduct, or a knowing violation of law.
5.5 Power of Attorney
5.5.1 Grant of Power
The Members constitute and appoint the Managers as the Members' true
and lawful attorney-in-fact ("Attorney-in-Fact"), and in the Members'
name, place and stead, to make, execute, sign, acknowledge, and file:
(a) all documents (including amendments to the Certificate of
Formation) which the Attorney-in-Fact deems appropriate to
reflect any amendment, change, or modification of this Agreement;
(b) any and all other certificates or other instruments required to
be filed by the Company under the laws of the State of Delaware
or of any other state or jurisdiction, including, without
limitation, any certificate or other instruments necessary in
order for the Company to continue to qualify as a limited
liability company under the laws of the State of Delaware;
(c) one or more fictitious or trade name certificates; and
(d) all documents which may be required to dissolve and terminate the
Company and to cancel its Certificate of Formation.
5.5.2 Irrevocability
The foregoing power of attorney is irrevocable and is coupled with an
interest, and, to the extent permitted by applicable law, shall
survive the death or disability of a Member. It also shall survive the
Transfer of an Interest, except that if the transferee is approved for
admission as a Member, this power of attorney shall survive the
delivery of the assignment for the sole purpose of enabling the
Attorney-in-Fact to execute, acknowledge and file any documents needed
to effectuate the substitution. Each Member shall be bound by any
representations made by the Attorney-in-Fact acting in good faith
pursuant to this power of attorney, and each Member hereby waives any
and all defenses which may be available to contest, negate or
disaffirm the action of the Attorney-in-Fact taken in good faith under
this power of attorney. 6. Transfer of Interests and Withdrawals of
Members
6.1 Transfers
6.1.1 The Members and Interest Holders shall not trade or deal in any
Membership Interest and Interest on any securities exchange or
securities market.
6.1.2 No Person may Transfer all or any portion of or any interest or
rights in the Membership Interest or Interest unless the following
conditions "Conditions of Transfer") are satisfied:
(a) The Transfer will not require registration of Interests or
Membership Interests under any federal or state securities laws;
(b) The transferee delivers to the Company a written instrument
agreeing to be bound by the terms of this Agreement.
(c) The Transfer will not result in the termination of the Company
pursuant to Code Section 708;
(d) The Transfer will not result in the Company being subject to the
Investment Company Act of 1940, as amended;
(e) The transferor or the transferee delivers the following
information to the Company: (i) the transferee's taxpayer
identification number and (ii) the transferee's initial tax basis
in the Transferred Interest; and
(f) The Transfer will not result in the Company being taxed as a
corporation for purposes of federal or state income tax purposes.
6.1.3 If the Conditions of Transfer are satisfied, then a Member or
Interest Holder may Transfer all or any portion of that Person's
Interest. The Transfer of an Interest pursuant to this Section 6.1
shall not result, however, in the Transfer of any of the transferor's
other Membership Interest, if any, and the transferee of the Interest
shall have no right to: (i) become a Member without the consent of the
Members required by this Agreement; or (ii) exercise any Membership
Interest other than those specifically pertaining to the ownership of
an Interest.
6.1.4 The Members hereby acknowledge the reasonableness of the
prohibition contained in this Section 6.1 in view of the structure and
purposes of the Company. The Transfer of any Membership Rights or
Interests in violation of the prohibition contained in this Section
6.1 shall be deemed invalid, null and void, and of no force or effect
except any Transfer mandated by operation of law that cannot be waived
or varied by private agreement and then only to the extent necessary
to give effect to such Transfer by operation of law. Any Person to
whom a Membership Interest or Interest is attempted to be transferred
in violation of this Section shall not be entitled to vote on matters
coming before the Members, participate in the management of the
Company, act as an agent of the Company or have any other rights in or
with respect to the Membership Interest.
6.1.5 Right of First Offer
(a) If an Interest Holder (a "Transferor") desires to Transfer all or
any portion of, or any interest or rights in, the Transferor's
Interest (the "Transferor Interest"), the Transferor shall notify
the Company of that desire (the "Transfer Notice"). The Transfer
Notice shall describe the Transferor Interest. Each Member shall
have the option (the "Purchase Option") to purchase all of the
Transferor Interest for a price (the "Purchase Price") equal to
the amount the Transferor would receive if the Company were
liquidated and an amount equal to the Appraised Value (as
determined pursuant to Section 6.4) were available for
distribution to the Members pursuant to Section 4.4.
(b) The Purchase Option shall be and remain irrevocable for a period
(the "Transfer Period") ending at 11:59 P.M. local time at the
Company's principal office on the thirtieth (30th) day following
the Transfer Notice is given to the Company.
(c) At any time during the Transfer Period, each Member may elect to
exercise the Purchase Option by giving written notice of its
election to the Transferor. The Transferor shall not be deemed a
Member for the purpose of voting on whether the Company shall
elect to exercise the Purchase Option.
(d) If any Member elects to exercise the Purchase Option, the
Member's notice of its election shall fix a closing date (the
"Transfer Closing Date") for the purchase, which shall not be
earlier than five (5) days after the date of the notice of
election or more than thirty (30) days after the expiration of
the Transfer Period.
(e) If a Member elects to exercise the Purchase Option, the Purchase
Price shall be paid in cash on the Transfer Closing Date.
(f) If all Members fail to exercise the Purchase Option, the
Transferor shall be permitted to offer and sell for a period of
ninety (90) days (the "Free Transfer Period") after the
expiration of the Transfer Period at a price not less than the
Purchase Price. If the Transferor does not Transfer the
Transferor Interest within the Free Transfer Period, the
Transferor's right to Transfer the Transferor Interest pursuant
to this Section shall cease and terminate.
(g) Any Transfer of the Transferor Interest made after the last day
of the Free Transfer Period or without strict compliance with the
terms, provisions and conditions of this Section and other terms,
provisions, and conditions of this Agreement, shall be null,
void, and of no force or effect.
6.2 Voluntary Withdrawal Prohibited
No Members shall have the right or power to effect a voluntary
withdrawal from the Company. Any Member who effectuates a voluntary
withdrawal is in violation of this Agreement and shall not be entitled
to receive the fair value of the Member's Interest as of the date of
the voluntary withdrawal as otherwise provided by Section 18-604 of
the Act.
6.3 Involuntary Withdrawal
Immediately upon the occurrence of an Involuntary Withdrawal, the
affected Member shall cease to have a Membership Interest and the
Member's Membership Interest shall be automatically converted into
just an Interest, except that any successor-in-interest to the
Interest of a Member who has Involuntarily Withdrawn shall be entitled
to exercise such of the Member's rights as a Member as is required by
the operation of law that cannot be waived or varied by private
agreement.
6.4 Appraised Value
6.4.1 The term "Appraised Value" means the appraised value of the
equity of the Company's Assets as hereinafter provided. Within fifteen
(15) days after demand by either one or the other, the Company and any
Withdrawing Member, if applicable, shall each appoint an appraiser to
determine the value of the equity of the Company's Assets. If the two
appraisers agree upon the equity value of the Company's Assets, they
shall jointly render a single written report stating that value. If
the two appraisers cannot agree upon the equity value of the Company's
Assets, they shall each render a separate written report and shall
appoint a third appraiser, who shall appraise the Company's Assets and
determine the value of the equity therein, and shall render a written
report of his opinion thereon. Each party shall pay the fees and costs
of the appraiser appointed by that party, and the fees and other costs
of the third appraiser shall be shared equally by both parties.
6.4.2 The equity value contained in the aforesaid joint written report
or written report of the third appraiser, as the case may be, shall be
the Appraised Value; provided, however, that it the value of the
equity contained in the appraisal report of the third appraiser is
more than the higher of the first two appraisals, the higher of the
first two appraisals shall govern; and provided, further, that if the
value of the equity contained in the appraisal report of the third
appraiser is less than the lower of the first two appraisals, the
lower of the first two appraisals shall govern. 7. Dissolution,
Liquidation, and Termination of the Company
7.1 Events of Dissolution
The Company shall be dissolved upon the happening of any of the
following events:
7.1.1 on the date fixed for its termination in Section 2.4;
7.1.2 upon the decision by the Company to dissolve, as approved by the
unanimous agreement of every Member without the consent of the
Managers;
7.1.3 upon the occurrence of an Involuntary Withdrawal of a Member,
unless the remaining Members, within ninety (90) days after the
occurrence of the Involuntary Withdrawal, unanimously elect to
continue the business of the Company pursuant to the terms of this
Agreement; or
7.1.4 by operation of law that cannot be waived or varied by private
agreement.
7.2 Procedure for Winding Up and Dissolution
If the Company is dissolved, the Managers shall wind up its affairs.
If there shall be no Manager or the Managers are unable or unavailable
to perform these duties, then the Members shall elect a Person to wind
up the affairs of the Company. On winding up of the Company, the
assets of the Company shall be distributed, first, to creditors of the
Company including Interest Holders who are creditors, in satisfaction
of the liabilities of the Company, and then to the Interest Holders in
accordance with this Agreement.
7.3 Filing of Certificate of Cancellation
Upon completion of the winding up of the affairs of the Company, the
Managers shall promptly file a Certificate of Cancellation with the
Secretary of State. If there is no Manager, then the Certificate of
Cancellation shall be filed by the Members or by the last Person to be
a Member or by the legal or personal representatives of the Person who
last was a Member.
8. Books, Records, Accounting, and Tax Elections
8.1 Bank Accounts
All funds of the Company shall be deposited in a bank account or
accounts opened and maintained in the Company's name. The Managers
shall determine the institution or institutions at which the accounts
will be opened and maintained, the types of accounts, and the Persons
who will have authority with respect to the accounts and the funds
therein.
8.2 Books and Records
8.2.1 The Managers shall keep or cause to be kept complete and
accurate books and records of the Company and supporting documentation
of the transactions with respect to the conduct of the Company's
business at the Company's principal executive office. The records
shall include, but not be limited to, complete and accurate
information regarding the state of the business and financial
condition of the Company, a copy of the Certificate of Formation and
Limited Liability Company Agreement and all amendments to the
Certificate of Formation and the Limited Liability Company Agreement;
a current list of the names and last known business, residence, or
mailing addresses of each Member; and the Company's federal, state, or
local tax returns and reports, if any, for the six(6) most recent
taxable years; internal books and records for the current and three(3)
most recent years; a true copy of relevant records indicating the
amount, cost, and value of all property which the Company owns,
claims, possesses, or controls.
8.2.2 The books and records shall be maintained on the accrual method
of accounting in accordance with the requirements of the Code and
Regulation Section 1.704-1(b) and shall be available at the Company's
principal office for examination by any Member or the Member's duly
authorized representative at any and all reasonable times during
normal business hours for any purpose reasonably related to such
Member's interest as a Member of the Company.
8.3 A Member has the right upon reasonable request, and for purposes reasonably
related to the interest of the Member in the Company, to do the following:
8.3.1 to inspect and copy during normal business hours any of the
records required to be maintained by the Company under this Agreement;
8.3.2 to obtain from the Company promptly after becoming available, a
copy of the Company's federal, state and local income tax or
information returns for each year;
8.3.3 the Managers shall promptly furnish to the requesting Member (i)
a copy of any amendment to the Certificate of Formation or this
Agreement pursuant to a power of attorney from the Members provided in
Section 5.5.1, and (ii) a copy of this Agreement, at the expense of
the Company, upon the reasonable request of the Member for a purpose
reasonably related to the interest of the Member in the Company; and
8.3.4 unless otherwise provided in this Agreement, a Member shall
reimburse the Company for all costs and expenses incurred by the
Company in connection with the Member's inspection and copying of the
Company's books and records.
8.4 Annual Accounting Period
The annual accounting period of the Company shall be its taxable year.
The Company's taxable year shall begin on January 1st and end on
December 31st.
8.5 Tax Matters Partner
Cinergy Global Xxxxxxxx I, Inc., a Delaware corporation, shall be the
Company's tax matters partner (the "Tax Matters Partner") under Code
Section 6231. The Tax Matters Partner shall have all powers and
responsibilities provided in Code Section 6221, et seq. The Tax
Matters Partner shall keep every Member informed of all notices from
government taxing authorities that may come to the attention of the
Tax Matters Partner. The Company shall pay and be responsible for all
reasonable third-party costs and expenses incurred by the Tax Matters
Partner in performing those duties. A Member shall be responsible for
any costs incurred by the Member with respect to any tax audit or
tax-related administrative or judicial proceeding against any Member,
even though it relates to the Company. The Tax Matters Partner may not
compromise any dispute with the Internal Revenue Service without the
approval of the Member.
8.6 Tax Elections
The Tax Matters Partner shall have the authority to make all Company
elections permitted under the Code, including, without limitation,
elections of methods of depreciation and elections under Code Section
754. The decision to make or not make an election shall be at the Tax
Matters Partner's sole and absolute discretion, subject to the Tax
Matters Partner's obligations to act in the best interest of the
Company and its Members.
8.7 Title to Company Assets
All real and personal property acquired by the Company shall be
acquired and held by the Company in its name.
9. General Provisions
9.1 Assurances
The Members shall execute all such certificates and other documents
and shall do all such filing, recording, publishing, and other acts as
the Managers deem appropriate to comply with the requirements of law
for the formation and operation of the Company and to comply with any
laws, rules and regulations relating to the acquisition, operation or
holding of the property of the Company.
9.2 Notifications
Any notice, demand, consent, election, offer, approval, request, or
other communication (collectively a "notice") required or permitted
under this Agreement must be in writing and either delivered
personally or sent by certified or registered mail, postage prepaid,
return receipt requested. Any notice to be given hereunder by the
Company shall be given by the Managers. A notice must be addressed to
an Interest Holder at the Interest Holder's last known address on the
records of the Company. All notices to the Company must be addressed
to the Company's principal office with a copy to Cinergy Global Power
Services Limited, at Cinergy House, Xxxx Xxxx Park, Warwick Road,
Stratford-upon-Avon, Xxxxxxxxxxxx, Xxxxxx Xxxxxxx, XX00 0XX, Tel: 44
0000 000 000, Fax: 00 0000 000 000.
A notice delivered personally will be deemed given only when
acknowledged in writing by the person to whom it is delivered. A
notice that is sent by mail will be deemed given three (3) business
days after it is mailed. Any party may designate, by notice to all of
the others, substitute addresses or addressees for notices; and,
thereafter, notices are to be directed to those substitute addresses
or addressees.
9.3 Complete Agreement
This Agreement constitutes the complete and exclusive statement of the
agreement by the Member(s). It supersedes all prior written and oral
statements, including any prior representation, statement, condition,
or warranty. Except as expressly provided otherwise herein, this
Agreement may not be amended without the written consent of all of the
Member(s).
9.4 Governing Law and Jurisdiction
All questions concerning the construction, validity and interpretation
of this Agreement and the performance of the obligations imposed by
this Agreement shall be governed by the internal law, not the law of
conflicts, of the State of Delaware.
9.5 Section Titles
The headings herein are inserted as a matter of convenience only, and
do not define, limit, or describe the scope of this Agreement or the
intent of the provisions hereof.
9.6 Binding Provisions
This Agreement is binding upon, and inures to the benefit of, the
parties hereto and their respective heirs, executors, administrators,
personal and legal representatives, successors, and permitted assigns.
9.7 Terms
Common nouns and pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular, and plural, as the identity of the Person
may in the context require.
9.8 Severability of Provisions
If for any reason, any provision or provisions herein are determined
to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or affect those portions
of this Agreement which are valid.
9.9 Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, and all of
which, when taken together, constitute one and the same document. The
signature of any party to any counterpart shall be deemed a signature
to, and may be appended to, any other counterparty.
IN WITNESS WHEREOF, the Member has executed, or caused this Agreement to be
executed as of the date set forth hereinabove with the intent that it be
effective as of the Effective Date.
MEMBER:
Cinergy Global Xxxxxxxx I, Inc.
a Delaware corporation
By: __________________________
Name: Xxxx Xxxxxx
Title: President
Exhibit - A
to
Amended and Restated Limited Liability Company Agreement
of
Xxxxxxxx Wind Partners, LLC
Name, Address and Taxpayer I.D. Number Percentages
Cinergy Global Xxxxxxxx I, Inc. 100 %
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Tax I.D.:
Effective as of the Effective Date:
Approved by Manager: __________________________________
Exhibit - B
Amended and Restated Limited Liability Company Agreement
of
Xxxxxxxx Wind Partners, LLC
AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
Xxxxxxxx Wind Partners, LLC
This Amended and Restated Certificate of Formation of Xxxxxxxx Wind
Partners, LLC, a Delaware limited liability company, formed on March 19, 1998,
was duly executed and is being filed in accordance with Section 18-208 of the
Delaware Limited Liability Company Act.
FIRST: The name of the limited liability company is Xxxxxxxx Wind Partners, LLC.
SECOND: The registered agent of the Company in the State of Delaware is CT
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000, or such other agent as
determined by the Managers.
THIRD: The limited liability company shall continue in existence on a perpetual
basis unless dissolved pursuant to company's limited liability company
agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of Xxxxxxxx Wind Partners, LLC effective as of _____________, 2002.
By: ________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Manager for Xxxxxxxx Wind Partners, LLC
