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Exhibit 3.2
LIMITED LIABILITY COMPANY
AGREEMENT
OF
PP&L MONTANA, LLC
A DELAWARE LIMITED LIABILITY COMPANY
EFFECTIVE AS OF DECEMBER 17, 1999
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TABLE OF CONTENTS
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ARTICLE I.
ORGANIZATIONAL AND OTHER MATTERS
Section 1.1 Name.......................................................................... 1
Section 1.2 Principal Business Office..................................................... 1
Section 1.3 Registered Office............................................................. 1
Section 1.4 Registered Agent.............................................................. 1
Section 1.5 Effectiveness................................................................. 1
Section 1.6 Member........................................................................ 1
Section 1.7 Certificate of Formation; By-Laws; etc........................................ 2
ARTICLE II.
PURPOSES AND POWERS
Section 2.1 Purposes...................................................................... 2
Section 2.2 Powers........................................................................ 2
ARTICLE III.
MANAGEMENT OF THE COMPANY
Section 3.1 Management.................................................................... 3
Section 3.2 Powers........................................................................ 3
Section 3.3 Quorum; Acts of the Board..................................................... 3
Section 3.4 Executive Committee........................................................... 3
Section 3.5 Managers as Agents; Interests of Certain Persons.............................. 3
ARTICLE IV.
SEPARATENESS REQUIREMENTS
Section 4.1 Limitations on the Company's Activities....................................... 4
Section 4.2 Member Covenants.............................................................. 7
Section 4.3 Independent Manager........................................................... 7
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ARTICLE V.
OFFICERS
Section 5.1 Officers...................................................................... 7
Section 5.2 Officers as Agents............................................................ 8
Section 5.3 Duties of Board and Officers.................................................. 8
Section 5.4 Member Not Agent.............................................................. 8
ARTICLE VI.
LIMITATION ON LIABILITY
Section 6.1 Limited Liability............................................................. 8
ARTICLE VII.
CAPITAL CONTRIBUTIONS; ALLOCATIONS
Section 7.1 Capital Contributions......................................................... 8
Section 7.2 Additional Contributions...................................................... 8
Section 7.3 Allocation of Profits and Losses.............................................. 9
ARTICLE VIII.
DISTRIBUTIONS
Section 8.1 Distributions................................................................. 9
ARTICLE IX.
ACCOUNTS AND REPORTING MATTERS
Section 9.1 Books and Records............................................................. 9
Section 9.2 Reports....................................................................... 9
Section 9.3 Other Business................................................................ 10
ARTICLE X.
EXCULPATION AND INDEMNIFICATION
Section 10.1 Exculpation and Indemnification............................................... 10
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ARTICLE XI.
TRANSFER OF INTEREST; RESIGNATION AND ADMISSION OF MEMBERS
Section 11.1 Assignments of Limited Liability Company Interests............................ 11
Section 11.2 Resignation................................................................... 11
Section 11.3 Admission of Additional Members............................................... 11
ARTICLE XII.
DISSOLUTION
Section 12.1 Dissolution................................................................... 12
ARTICLE XIII.
MISCELLANEOUS
Section 13.1 Waiver of Partition; Nature of Interest....................................... 12
Section 13.2 Benefits of Agreement; No Third-Party Rights.................................. 13
Section 13.3 Severability of Provisions; Inconsistency with the Act........................ 13
Section 13.4 Entire Agreement.............................................................. 13
Section 13.5 Binding Agreement............................................................. 13
Section 13.6 Governing Law................................................................. 13
Section 13.7 Amendments.................................................................... 13
Section 13.8 Counterparts.................................................................. 13
Section 13.9 Notices....................................................................... 13
ARTICLE XIV.
CERTIFICATES OF CAPITAL INTEREST
Section 14.1 Certificates of Capital Interest.............................................. 14
Schedules
Schedule A Definitions; Rules of Construction
Schedule B Management Agreement
Schedule C By-Laws
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LIMITED LIABILITY COMPANY AGREEMENT
OF
PP&L MONTANA, LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of PP&L MONTANA, LLC (the "Company") is
entered into by PP&L MONTANA HOLDINGS, LLC, a Delaware limited liability company
(the "Member"), as the sole member. Capitalized terms used and not otherwise
defined herein have the respective meanings set forth on Schedule A hereto.
The Company was heretofore formed as a limited liability company
pursuant to and in accordance with the Delaware Limited Liability Company Act, 6
Del. Code, Chapter 18, Sections 186-101 et seq., as amended from time to
time (the "Act"). The Member, by execution of this Agreement, hereby agrees as
follows:
ARTICLE I.
ORGANIZATIONAL AND OTHER MATTERS
Section 1.1 Name. The name of the limited liability company is PP&L
MONTANA, LLC.
Section 1.2 Principal Business Office. The principal business office of
the Company shall be located at 000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000, or such other location as may hereafter be determined by the Member. The
Company may have such other or additional offices, either within or outside the
State of Montana, as the Member shall deem advisable.
Section 1.3 Registered Office. The address of the registered office of
the Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the City of Wilmington, County
of New Castle.
Section 1.4 Registered Agent. The name and address of the registered
agent of the Company for service of process on the Company in the State of
Delaware is The Corporation Trust Company, in the County of New Castle.
Section 1.5 Effectiveness. Pursuant to Section 18-201(d) of the Act,
this Agreement shall be effective as of December 17, 1999 (the "Effective
Date").
Section 1.6 Member.
(a) The mailing address of the Member is 000 Xxxxx Xxxxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000.
(b) Subject to Section 4.1, the Member may act by written
consent.
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Section 1.7 Certificate of Formation; By-Laws; etc. Xxxxxx X. Xxxxx,
Xx., as an "authorized person" within the meaning of the Act, has previously
executed, delivered and filed the Certificate of Formation of the Company with
the Secretary of State of the State of Delaware. On December 29, 1998, (i) such
authorized person approved and adopted the by-laws of the Company (the "Initial
By-Laws") and chose the managers of the Company (the "Initial Managers") to
serve until the first annual meeting of members of the Company or until
successor(s) have been duly chosen and have qualified, and (ii) the Initial
Managers, among other things, chose Officers of the Company and accepted the
Member as the sole member of the Company. The Member or 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
other jurisdiction in which the Company may wish to conduct business. By its
execution and delivery of this Agreement, the Member hereby (I) ratifies the
designation of Xxxxxx X. Xxxxx, Xx. as an "authorized person" within the meaning
of the Act and the formation of the Company under the provisions of the Act
pursuant to the filing of the Certificate of Formation with the Secretary of
State of the State of Delaware and (II) confirms its admission to the Company as
the initial sole Member. The existence of the Company as a separate legal entity
shall continue until cancellation of the Certificate of Formation as provided in
the Act.
ARTICLE II.
PURPOSES AND POWERS
Section 2.1 Purposes. Subject to Section 4.1, the purposes of the
Company are to engage in only the following activities: to acquire, own, hold,
develop, mortgage, encumber, hypothecate, transfer, lease, assign, pledge, sell,
maintain, improve, alter, remodel, expand, manage, and otherwise operate and
deal in or with the properties of the Company, in each case as acquired from one
or more of the Sellers pursuant to the Asset Purchase Agreements (whether
acquired directly by the Company or through limited liability companies in which
the Company is the sole member) (collectively, the "Properties"), including
obtaining financing and refinancing for the above purposes (including without
limitation to enter into and perform its obligations under the Financing
Documents), selling or otherwise disposing of all or any part of the Properties,
investing and reinvesting any funds held in reserve in connection with the
ownership, leasing and operation of the Properties, and to exercise all powers
enumerated in the Act and to engage in any and all activities relating to the
foregoing or arising therefrom or reasonably necessary, customary, convenient or
incidental thereto and to the conduct, promotion or attainment of the business
or purposes otherwise set forth herein. Notwithstanding anything contained
herein to the contrary, so long as any Rated Securities are outstanding, the
Company shall not engage in any business and it shall have no purpose unrelated
to the Properties and shall not acquire any real property or own assets other
than those related to the Properties or otherwise in furtherance of the purposes
of the Company.
Section 2.2 Powers. Subject to Section 4.1, in order to carry out its
purposes, the Company, and the Board and the Officers of the Company on behalf
of the Company, (i) shall have and exercise, and are hereby empowered and
authorized to exercise, all powers necessary, convenient or incidental to
accomplish its purposes as set forth in Section 2.1 and (ii) shall have
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and exercise all of the powers and rights conferred upon limited liability
companies formed pursuant to the Act.
ARTICLE III.
MANAGEMENT OF THE COMPANY
Section 3.1 Management.
(a) Subject to Section 4.1, the business and affairs of the
Company shall be managed by or under the direction of a Board of one or more
managers as specified in the By-Laws. Notwithstanding anything to the contrary
in the By-Laws, the Board shall be constituted in a manner that complies with
the requirements of Section 4.3.
Section 3.2 Powers. (a) Subject to Section 4.1, the Board (i) may
adopt, alter, amend or repeal by-laws of the Company (including the Initial
By-Laws), which by-laws shall, to the extent not inconsistent with this
Agreement, be and be deemed to be part of the limited liability agreement of the
Company for all purposes of the Act, and (ii) shall have the power to do any and
all acts necessary, convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or otherwise. Subject
to Section 2.1, the Board has the authority to bind the Company.
(b) Effective on the Effective Date, the By-Laws attached
hereto as Schedule C supersede the Initial By-Laws and shall be the By-Laws of
the Company until changed pursuant to Section 3.2(a)(i).
Section 3.3 Quorum; Acts of the Board. At all meetings of the Board, a
majority of the Managers 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 Managers present at any meeting at which
there is a quorum shall be the act of the Board.
Section 3.4 Executive Committee. Not in limitation of the powers
granted to the Board under Article III of the By-Laws, but in furtherance
thereof, the Managers other than the Independent Manager shall, acting as a
committee of the Board (the "Executive Committee"), exercise all of the right,
power and authority vested in the Board by this Agreement, the By-Laws or the
Act to manage, operate and control the business and affairs of the Company,
other than with respect to actions by the Company for which this Agreement
expressly requires the consent or approval of the Independent Manager and/or the
Member.
Section 3.5 Managers as Agents; Interests of Certain Persons. To the
extent of their powers set forth in this Agreement and the By-Laws and subject
to Section 4.1, the Managers are agents of the Company for the purpose of the
Company's business, and the actions of the Managers taken in accordance with
such powers set forth in this Agreement and By-Laws shall bind the Company.
Except as provided in this Agreement and By-Laws, a Manager may not bind the
Company. To the fullest extent permitted by law, including Section 18-1101(c) of
the Act, the Managers shall be required, in the exercise of their reasonable
business judgment, to
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consider the interests of the creditors of the Company in taking or authorizing
any action on behalf of the Company.
ARTICLE IV.
SEPARATENESS REQUIREMENTS
Section 4.1 Limitations on the Company's Activities. This Section 4.1
is being adopted in order to comply with certain provisions required in order to
qualify the Company as a "special purpose entity" for purposes of the
maintaining the ratings on the Rated Securities. So long as any Indebtedness is
outstanding:
(a) The Member shall not amend, alter, change or repeal the
definition of "Independent Manager" or Section 2.1, Article III, IV, XI
or XII or Section 13.2 or 13.7, or Schedule A of this Agreement under
conditions or in any manner expressly prohibited by the Financing
Documents. Subject to this Section 4.1, the Member reserves the right
to amend, alter, change or repeal any provisions contained in this
Agreement in accordance with Section 13.7.
(b) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company, the Member
or the Board, neither the Member nor the Board shall be authorized or
empowered, nor shall they permit the Company, without the prior
unanimous written consent of the Member and the Board (including, so
long as any Rated Security is outstanding, the Independent Manager), to
take any Material Action.
(c) The Board and the Member shall cause the Company to do or
cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Board shall determine
that the preservation thereof is no longer desirable for the conduct of
its business. So long as any Rated Security is outstanding, the Board
also shall cause the Company to:
(1) maintain its own separate books and records and
bank accounts separate from those of any other Person;
(2) at all times hold itself out to the public as a
legal entity separate from the Member, other Affiliates and
any other Person;
(3) have a Board composed differently from that of
the Member;
(4) file its own tax returns, if any, as may be
required under applicable law, to the extent (a) not part of a
consolidated group filing a consolidated return or returns, or
(b) not treated as a division for tax purposes of another
taxpayer, or (c) not disregarded for tax purposes; and pay any
taxes required to be paid by it under applicable law;
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(5) conduct its business in its own name or under any
trade name as will not be reasonably likely to cause confusion
as to its separate existence;
(6) maintain financial statements separate from those
of any other Person (except that the Company may be included
in consolidated financial statements of another Person where
required by GAAP; provided that such financial statements
contain a footnote to the effect that the Company is a
separate legal entity, the assets of which are not available
to satisfy the debts of such Person);
(7) except for certain overhead and transaction costs
that are allocated on a reasonable basis among the Company and
certain of its Affiliates, pay its own liabilities from its
own funds and pay the salaries of its own employees, if any;
(8) maintain an arm's length relationship with its
Affiliates (other than its wholly-owned subsidiaries) and the
Member and any other parties furnishing services to the
Company;
(9) participate in the fair and reasonable allocation
of any and all overhead expenses and other common expenses for
facilities, good, or services provided to multiple entities;
(10) use stationery, invoices and checks separate
from those of the Member or Affiliates;
(11) pay the salaries of its own employees and
maintain a sufficient number of employees in light of its
contemplated business operations;
(12) except as otherwise contemplated by the
Financing Documents, deposit all of its funds in checking
accounts, savings accounts, time deposits or certificates of
deposit in its own name or invest such funds in its own name;
(13) observe all limited liability company
formalities necessary to maintain its identity as an entity
separate and distinct from the Member and all of its other
Affiliates;
(14) hold title to its assets in its own name;
(15) take commercially reasonable steps to correct
any known misunderstanding regarding its separate identity;
(16) maintain adequate capital in light of its
contemplated business purposes; and
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(17) cause its Board to meet at least annually or act
pursuant to written consent and keep minutes of such meetings
and actions and observe all other Delaware limited liability
company formalities.
(d) So long as any Rated Security is outstanding, the Board
shall not cause or permit the Company to:
(1) commingle its funds or other assets with those of
any other Person (other than Persons which are wholly-owned
subsidiaries of the Company);
(2) guarantee or become obligated for the debts of
any other entity or hold its credit as being available to
satisfy the obligations of any other Person except as
permitted under the Financing Documents (provided that this
provision shall not be deemed to prohibit customary joint and
several obligations and indemnification and contribution
agreements entered into as permitted under the Financing
Documents);
(3) pledge any of its assets for the benefit of any
other Person other than the lender under the Financing
Documents (except as otherwise permitted by the Financing
Documents);
(4) engage, directly or indirectly, in any business
other than that arising out of the issuance of the
Indebtedness or the actions required or permitted to be
performed under Section 2.1, the Financing Documents or this
Section 4.1;
(5) incur, create or assume any indebtedness other
than the Indebtedness or as otherwise expressly permitted
under the Financing Documents;
(6) acquire any obligations or securities of the
Member;
(7) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities of, any
other Person (other than securities in respect of which the
Company is the obligor), except that the Company may invest in
those investments permitted under the Financing Documents and
may make any advance required or expressly permitted to be
made pursuant to any provisions of the Financing Documents and
permit the same to remain outstanding in accordance with such
provisions;
(8) to the fullest extent permitted by law, engage in
any dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Financing Documents;
(9) identify its Members or any of its Affiliates as
a division or part of it or itself as a division or part of
any of them (except for inclusion of the Company in
consolidated financial statements in accordance with GAAP or
for tax purposes);
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(10) engage (either as transferor or transferee) in
any material transaction with any Affiliate other than for
fair value and on terms similar to those obtainable in
arms'-length transactions with unaffiliated parties, or engage
in any transaction with any Affiliate involving any intent to
hinder, delay or defraud any entity; or
(11) engage in any business activity other than as
stated in this Agreement.
Section 4.2 Member Covenants. So long as any Rated Security remains
outstanding under the Financing Documents, the Member will:
(a) observe all customary formalities necessary to maintain
its identity as an entity separate and distinct from the Company and all of its
other Affiliates; and
(b) hold itself out as a separate and distinct entity from the
Company and not identify the Company as a division of the Member.
Section 4.3 Independent Manager. So long as any Rated Security is
outstanding, the Member shall cause the Company at all times to have at least
one Independent Manager who will be appointed by the Member. To the fullest
extent permitted by Section 18-1101(c) of the Act, the Independent Manager shall
consider only the interests of the Company, including its respective creditors,
in acting or otherwise voting on the matters referred to in Section 4.1(b). No
resignation or removal of the Independent Manager, and no appointment of a
successor Independent Manager, shall be effective until the successor
Independent Manager shall have accepted his or her appointment by a written
instrument, which may be a counterpart signature page to the Management
Agreement attached hereto as Schedule B; provided that, during any interim
period when the Company does not have one Independent Manager, the Company shall
not take any action expressly requiring the approval or consent of the
Independent Manager under this Agreement. An Independent Manager shall not
voluntarily resign until such time as his or her replacement has been selected
and taken office. All right, power and authority of an Independent Manager shall
be limited to the extent necessary to exercise those rights and perform those
duties specifically set forth in this Agreement. Except as provided in the
second sentence of this Section 4.3, in exercising his or her rights and
performing his or her duties under this Agreement, an Independent Manager shall
have a fiduciary duty of loyalty and care similar to that of a director of a
business corporation organized under the General Corporation Law of the State of
Delaware. The Independent Manager shall receive reasonable compensation for its
services under this Agreement.
ARTICLE V.
OFFICERS
Section 5.1 Officers. The Member and the Board (pursuant to the By-Laws
and actions of the Board taken pursuant to the By-Laws and actions of the
Member) have delegated to certain officers of the Company (the "Officers")
rights and powers to manage and control the
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business and affairs of the Company. The terms of such delegation are as set
forth in the By-Laws and actions of the Board taken pursuant to the By-Laws and
actions of the Member.
Section 5.2 Officers as Agents. The Officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the
Board not inconsistent with this Agreement, are agents of the Company for the
purpose of the Company's business and, subject to Section 4.1, the actions of
the Officers taken in accordance with such powers shall bind the Company.
Section 5.3 Duties of Board and Officers. Except to the extent
otherwise provided herein, each Manager and Officer shall have a fiduciary duty
of loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 5.4 Member Not Agent. The Member shall have no authority to
bind the Company or act in the name of and for the Company solely by virtue of
being a Member of the Company, but only as expressly provided in this Agreement.
ARTICLE VI.
LIMITATION ON LIABILITY
Section 6.1 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 none of the Member, the Managers, or any
stockholders, directors, partners, members, officers, agents or employees of the
Member or any Manager, shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being such Member,
Manager, stockholder, director, partner, member, officer, agent or employee. The
failure of the Company to observe any formalities or requirements relating to
the exercise of its powers or management of its business or affairs under the
Act or this Agreement shall not be grounds for imposing personal liability on
the Member, the Managers, or any stockholder, director, partner, member,
officer, agent or employee of any Member or Manager of the Company for
liabilities of the Company.
ARTICLE VII.
CAPITAL CONTRIBUTIONS; ALLOCATIONS
Section 7.1 Capital Contributions. The Member has contributed to the
Company the sum of $100.
Section 7.2 Additional Contributions. The Member is not required to
make any additional capital contribution to the Company. However, the Member may
make additional capital contributions to the Company at any time upon the
written consent of such Member. The provisions of this Agreement, including this
Section 7.2, are intended solely to benefit the Member and, to the fullest
extent permitted by law, shall not be construed as conferring any benefit upon
any creditor of the Company (and no such creditor of the Company shall be a
third-
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party beneficiary of this Agreement) and the Member shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement. No interest
shall accrue on any contribution and the Member shall not have the right to
withdraw or resign or be repaid any contribution except as provided in this
Agreement.
Section 7.3 Allocation of Profits and Losses. The Company's profits and
losses shall be allocated to the Member.
ARTICLE VIII.
DISTRIBUTIONS
Section 8.1 Distributions. Distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Board. Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall not
be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate (i) Section 18-607 of the Act or
any other applicable law or (ii) the Financing Documents.
ARTICLE IX.
ACCOUNTS AND REPORTING MATTERS
Section 9.1 Books and Records. The Board shall keep or cause to be kept
complete and accurate books of account and records with respect to the Company's
business. The books of the Company shall at all times be maintained by the
Board. The Member and its duly authorized representatives shall have the right
to examine the Company books, records and documents during normal business
hours. The Company, and the Board on behalf of the Company, shall not have the
right to keep confidential from the Member any information that the Board would
otherwise be permitted to keep confidential from the Member pursuant to Section
18-305(c) of the Act. The Company's books of account shall be kept using the
method of accounting determined by the Member. The Company's independent auditor
shall be an independent public accounting firm selected by the Member.
Section 9.2 Reports.
(a) Within 60 days after the end of each fiscal quarter, the
Board shall cause to be prepared an unaudited report setting forth as of the end
of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter,
an income statement of the Company for such fiscal quarter.
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(b) The Board shall use diligent efforts to cause to be
prepared and mailed to the Member, within 120 days after the end of each fiscal
year, an audited or unaudited report setting forth as of the end of such fiscal
year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such
fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent accountants to prepare and
transmit to the Member as promptly as possible such tax information as may be
reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
Section 9.3 Other Business. The Member and any Affiliate of the Member
may engage in or possess an interest in other business ventures (unconnected
with the Company) of every kind and description, independently or with others.
The Company shall not have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement.
ARTICLE X.
EXCULPATION AND INDEMNIFICATION
Section 10.1 Exculpation and Indemnification.
(a) Notwithstanding any other provisions of this Agreement,
whether expressed or implied, or obligation or duty at law or in equity, none of
the Member, Managers, or any officers, directors, stockholders, partners,
employees, representatives, members or agents of any of the foregoing, nor any
officer, employee, representative or agent of the Company or any of its
Affiliates (individually, a "Covered Person" and, collectively, the "Covered
Persons") shall be liable to the Company or any other Person for any act or
omission (in relation to the Company, this Agreement, any related document
(including, but without limitation, any Financing Document or any Asset Purchase
Agreement) or any transaction or Properties contemplated hereby or thereby)
taken or omitted by a Covered Person in the reasonable belief that such act or
omission is in, or is not contrary to, the best interests of the Company and is
within the scope of authority granted to such Covered Person by, or pursuant to,
the Agreement, provided such act or omission does not constitute willful fraud
or misconduct, bad faith or gross negligence.
(b) To the fullest extent permitted by law, the Company shall
indemnify and hold harmless each Covered Person from and against any and all
losses, claims, demands, liabilities, expenses, judgments, fines, settlements
and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative ("Claims"), in
which the Covered Person may be involved, or threatened to be involved, as a
party or otherwise, by reason of its management of the affairs of the Company or
which relates to
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or arises out of the Company or its property, business or affairs. A Covered
Person shall not be entitled to indemnification under this Section 10.1 with
respect to (i) any Claim with respect to which such Covered Person has engaged
in fraud, willful misconduct, bad faith or gross negligence or (ii) any Claim
initiated by such Covered Person unless such Claim (or part thereof) (A) was
brought to enforce such Covered Person's rights to indemnification hereunder or
(B) was authorized or consented to by the Board. Expenses incurred by a Covered
Person in defending any Claim shall be paid by the Company in advance of the
final disposition of such Claim upon receipt by the Company of an undertaking by
or on behalf of such Covered Person to repay such amount if it shall be
ultimately determined that such Covered Person is not entitled to be indemnified
by the Company as authorized by this Section 10.1.
(c) Any repeal or modification of this Article X by the Member
shall not adversely affect any rights of such Covered Person pursuant to this
Article X, including the right to indemnification and to the advancement of
expenses of a Covered Person existing at the time of such repeal or modification
with respect to any acts or omissions occurring prior to such repeal or
modification.
ARTICLE XI.
TRANSFER OF INTEREST; RESIGNATION AND ADMISSION OF MEMBERS
Section 11.1 Assignments of Limited Liability Company Interests.
Subject to Section 11.3 hereof or any limitations imposed on the Member by the
Financing Documents, the Member may assign in whole or in part its limited
liability company interest in the Company. If the Member transfers all of its
limited liability company interest in the Company pursuant to this Section 11.1,
the transferee shall be admitted to the Company as a member of the Company upon
its execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such admission, the
transferor Member shall cease to be a member of the Company to the extent that
such Member has transferred its entire interest. Notwithstanding anything in
this Agreement to the contrary, any successor to the Member by merger or
consolidation in compliance with the Financing Documents shall, without further
act, be the Member hereunder, and such merger or consolidation shall not
constitute an assignment for purposes of this Agreement.
Section 11.2 Resignation. So long as any Rated Security is outstanding,
the Member may not resign except in accordance with the Financing Documents. If
the Member is permitted to resign pursuant to this Section 11.2, an additional
member of the Company shall be admitted to the Company, subject to Section 11.3
hereof, upon its execution of an instrument signifying its agreement to be bound
by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 11.3 Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company with the written consent
of the Member;
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provided that, notwithstanding the foregoing, so long as any Rated Security
remains outstanding, no additional Member may be admitted to the Company unless
the Member retains at least a fifty percent interest in the Company.
ARTICLE XII.
DISSOLUTION
Section 12.1 Dissolution.
(a) Subject to Section 4.1, the Company shall be dissolved,
and its affairs shall be wound up, upon the first to occur of the following: (i)
the retirement, resignation or dissolution of the Member or the occurrence of
any other event which terminates the continued membership of the Member in the
Company unless the business of the Company is continued in a manner permitted by
the Act, or (ii) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
(b) Notwithstanding any other provision of this Agreement, (i)
the Bankruptcy or dissolution of the Member shall not cause the 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, and (ii) the Member
waives any right it might have under Section 18-801(b) of the Act to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or the
occurrence of any other event that causes the Member to cease to be a member of
the Company.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 18-804 of the Act.
(d) The Company shall terminate when (i) all of the remaining
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Member in the manner provided for in this Agreement and (ii) the Certificate of
Formation shall have been canceled in the manner required by the Act.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1 Waiver of Partition; Nature of Interest. Except as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, the Member hereby irrevocably waives any right or power that the 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
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Member shall not have any interest in any specific assets of the Company, and
the Member shall (solely by virtue of its status as Member) not have the status
of a creditor with respect to any distribution pursuant to Section 8.1 hereof.
The interest of the Member in the Company is personal property.
Section 13.2 Benefits of Agreement; No Third-Party Rights. None of the
provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of the Member. Except as otherwise
provided in Section 13.5, nothing in this Agreement shall be deemed to create
any right in any Person (other than Covered Persons) not a party hereto, and
this Agreement shall not be construed in any respect to be a contract in whole
or in part for the benefit of any third Person.
Section 13.3 Severability of Provisions; Inconsistency with the Act.
Each provision of this Agreement shall be considered severable and if for any
reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal. It is the
intention of the parties that any provision hereof that is inconsistent with the
provisions of the Act be given effect to the maximum extent permitted under the
Act.
Section 13.4 Entire Agreement. This Agreement and the By-Laws
constitute the entire agreement of the parties with respect to the subject
matter hereof.
Section 13.5 Binding Agreement. Notwithstanding any other provision of
this Agreement, the Member agrees that this Agreement, including without
limitation Articles 2, 3, 4, 10, 11 and 12 and Sections 13.2 and 13.7,
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Manager, in accordance with
its terms. The Independent Manager is an intended beneficiary of this Section
13.5.
Section 13.6 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware (without regard to conflict of
laws principles), all rights and remedies being governed by said laws.
Section 13.7 Amendments. Subject to Section 4.1, this Agreement may not
be modified, altered, supplemented or amended except pursuant to a written
agreement executed and delivered by the Member.
Section 13.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original of this Agreement and
all of which together shall constitute one and the same instrument.
Section 13.9 Notices. Any notices required to be delivered hereunder
shall be in writing and personally delivered, mailed or sent by telecopy or
other similar form of rapid transmission, and shall be deemed to have been duly
given upon receipt (a) in the case of the Company, to the Company at its address
in Section 1.2, (b) in the case of the Member, to the Member at its address in
Section 1.5(a), and (c) in the case of either of the foregoing, at such other
address as may be designated by written notice to the other party.
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ARTICLE XIV.
CERTIFICATES OF CAPITAL INTEREST
Section 14.1 Certificates of Capital Interest. Article V of the By-Laws
makes provision for the issuance by the Company of a certificate to evidence
capital interests in the Company. In the event that (i) the Member shall request
such a certificate and, (ii) upon receipt of such certificate (the "Capital
Interest Certificate") the Member shall pledge the same to secure some or all of
the Member's indebtedness, then the Capital Interest Certificate shall be a
"security" governed by Article 8 of the Uniform Commercial Code in any
jurisdiction (a) that has adopted revisions to Article 8 of the Uniform
Commercial Code substantially consistent with the 1994 revisions to Article 8
adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and (b) the laws of which may be applicable,
from time to time, to matters of perfection, the effect of perfection or
non-perfection and the priority of a security interest in the Capital Interest
Certificate. The Capital Interest Certificate shall conspicuously bear the
following legend: "This certificate evidences the entire member interest in PP&L
Montana, LLC and shall be a security for all purposes of Article 8 of the
Uniform Commercial Code."
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the 17
day of December, 1999.
MEMBER:
PP&L MONTANA HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxx, Xx.
Vice President
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SCHEDULE A
DEFINITIONS; RULES OF CONSTRUCTION
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, (i) any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person, and (ii) if such Person is a natural Person,
any spouse, parent, sibling or child of such particular Person.
"Agreement" means this Limited Liability Company Agreement, together
with the schedules attached hereto, as amended, restated, or supplemented or
otherwise modified from time to time. Notwithstanding Section 3.2(a)(i), the
By-Laws shall not comprise part of the Agreement for the purposes for which such
term is used in the Agreement.
"Asset Purchase Agreements" means the three Asset Purchase Agreements
(as amended from time to time) each between PP&L Global, Inc. and one of the
Sellers.
"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 the foregoing nature, (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
(vii) 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, if 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.
"Board" means the Board of Managers of the Company.
"By-Laws" means the Initial By-Laws of the Company, as the same may be
altered, amended and repealed, and any replacement or substitution therefor, in
each case in effect from time to time.
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"Certificate of Formation" means the Certificate of Formation of the
Company dated December 23, 1998 filed with the Secretary of State of the State
of Delaware on December 29, 1999, as amended or amended and restated from time
to time.
"Company" means PP&L Montana, LLC, a Delaware limited liability
company.
"Control" means the possession, directly or indirectly, or the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" 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.
"Covered Persons" has the meaning set forth in Section 10.1(a).
"Effective Date" has the meaning specified in Section 1.5.
"Executive Committee" has the meaning set forth in Section 3.6(d).
"Financing Documents" means the Loan Documents, as defined in the
Credit Agreement, the Lease Documents, as defined in the Credit Agreement, and
any other documents pursuant to which PP&L Montana incurs indebtedness to the
re-finance indebtedness incurred under the Loan Documents and Lease Documents.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with prior periods.
"Indebtedness" means the indebtedness (including the re-financing
thereof) incurred by the Company or its Subsidiaries in connection with the
ownership, expansion and operation of the project.
"Independent Manager" means a natural person who, for the five-year
period prior to his or her appointment as Independent Manager, has not been, and
during the continuation of his or her service as Independent Manager is not: (i)
an employee, director, manager, more than 10% equity holder, partner or officer
of the Company or any of its Affiliates (other than his or her service as an
Independent Manager of the Company); provided that a person shall not be
disqualified from being an Independent Manager solely by reason of serving as an
independent director or manager of another single purpose entity that is an
Affiliate of the Company; (ii) a professional retained by the Company or the
Member; or (iii) a Person controlling any such equity holder or professional.
"Initial By-Laws" has the meaning set forth in Section 1.7.
"Initial Managers" has the meaning set forth in Section 1.7.
"Management Agreement" means the agreement of the Managers in the form
attached hereto as Schedule B. The Management Agreement, when executed, shall be
deemed incorporated into, and part of, this agreement."
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"Managers" means the managers elected to the Board from time to time by
the Member, including the Independent Managers. A Manager is hereby designated
as a "manager" of the Company within the meaning of Section 18-101(10) of the
Act.
"Material Action" means any action to (i) consolidate or merge the
Company into any Person, or sell all or substantially all of the assets of the
Company (except for a sale of substantially all of the Company's assets
simultaneously with the repayment of all outstanding Rated Securities), or (ii)
institute proceedings to have the Company be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings against
the Company, or file a petition seeking, or consent to, reorganization or relief
with respect to the Company under any applicable federal or state law relating
to bankruptcy or insolvency, or otherwise seek relief under any laws relating to
the relief from debts or the protection of debtors generally, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or a substantial part of its property, or make
any assignment for the benefit of creditors of the Company, or, except as
required by applicable law, admit in writing the Company's inability to pay its
debts generally as they become due, or, to the fullest extent permitted by law,
take action in furtherance of any such action, or dissolve or liquidate the
Company, or [(iii) engage in any business activity unrelated to the Properties
of the Company and not in furtherance of the purposes of the Company as
expressed in Section 2.1].
"Member" means PP&L Montana Holdings, LLC, a Delaware limited liability
company, as the sole member of the Company, together with any Person admitted as
an additional member or a substitute member of the Company pursuant to the terms
of this Agreement.
"Officer" means an officer of the Company described in Section 5.1.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association,
joint-stock company, trust (including any beneficiary thereof), unincorporated
organization or other organization, whether or not a legal entity, or any
governmental authority.
"Properties" has the meaning ascribed thereto in Section 2.1(a) hereof.
"Rated Securities" means any Indebtedness that has been rated by
Standard & Poor's, Xxxxx'x Investors Service or another similar rating agency.
"Sellers" means The Montana Power Company, Puget Sound Energy, Inc. and
Portland General Electric Company.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause
or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
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SCHEDULE B
MANAGEMENT AGREEMENT
________________ __, 1999
PP&L MONTANA, LLC
[ADDRESS]
Re: Management Agreement -- PP&L Montana, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as managers of PP&L Montana, LLC, a Delaware limited
liability company (the "Company"), in accordance with the Limited Liability
Company Agreement of the Company, effective as of _______________ __, 1999 (as
it may be amended or restated from time to time, together with the By-Laws of
the Company in effect from time to time, the "LLC Agreement"), hereby agree as
follows:
1. Each of the undersigned accepts such person's rights and authority
as a Manager (as defined in the LLC Agreement) under the LLC Agreement and
agrees to perform and discharge such person's duties and obligations as a
Manager under the LLC Agreement, and further agrees that such rights,
authorities, duties and obligations under the LLC Agreement shall continue until
such person's successor as a Manager is designated or until such person's
resignation, expulsion or removal as a Manager in accordance with the LLC
Agreement. Each of the undersigned agrees and acknowledges that it has been
designated as a "manager" of the Company within the meaning of the Delaware
Limited Liability Company Act.
2. So long as any Rated Security (as defined in the LLC Agreement) is
outstanding, each of the undersigned agrees, solely in its capacity as a
creditor of the Company on account of any indemnification or other payment owing
to the undersigned by the Company, not to acquiesce, petition or otherwise
invoke or cause the Company to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of the
Company. Nothing in this Paragraph 2 shall be deemed to prevent or restrict any
of the undersigned from performing such person's duties and obligations as a
Manager under the LLC Agreement, including without limitation any fiduciary
duties provided therein or arising under applicable law.
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3. 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.
4. This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
[Independent Manager]
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SCHEDULE C
BY-LAWS
BY-LAWS
OF
PP&L MONTANA, LLC
ARTICLE I
Members' Consent
Section 1.1. Actions by the Member; Meetings. The member may approve a
matter or take any action at a meeting or without a meeting by the written
consent of the member pursuant to Section 1.2.
Section 1.2. Action by Written Consent. Any action may be taken by the
member without a meeting if authorized by a written consent of the member. In no
instance where action is authorized by a written consent of the member will a
meeting of the member be called or notice be given. A copy of the action taken
by written consent shall, however, be filed with the records of the Company.
Section 1.3. Power to Bind the Company. The member (acting in its
capacity as such) shall have the authority to bind the Company to any third
party with respect to any matter.
ARTICLE II
Board of Managers
Section 2.1. Powers; Number; Qualifications. The business and affairs
of the Company shall be managed by or under the direction of the Board of
Managers, except as may be otherwise provided by law or in the certificate of
formation. The number of Managers which shall constitute the whole Board of
Managers shall not be less than one (1) nor more than nine (9). Within such
limits, the number of managers may be fixed from time to time by the Board of
Managers.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies;
Special Elections. Except as otherwise provided in this Section 2.2, the
managers shall be elected by the member. Each manager (whenever elected) shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal, except as provided in the certificate of formation. Any
manager may resign at any time upon written notice to the Board
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of Managers or to the President of the Company. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. Any
manager may be removed with or without cause at any time upon the affirmative
vote of the holders of a majority of the capital interest of the Company
entitled to vote for the election of such manager, given at a special meeting of
such members called for the purpose. If any vacancies shall occur in the Board
of Managers, by reason of death, resignation, removal or otherwise, or if the
authorized number of managers shall be increased, the managers then in office
shall continue to act, and such vacancies may be filled by a majority of the
managers then in office.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Managers may be held at such places within or outside the State of Delaware and
at such times as the Board may from time to time determine, and if so determined
notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
Managers may be held at any time or place within or outside the State of
Delaware whenever called by the President or by any two managers. Reasonable
notice thereof shall be given by the person or persons calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Unless otherwise restricted
by these by-laws, any member of the Board of Managers, or any committee
designated by the Board, may participate in a meeting of the Board or of such
committee, as the case may be, by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the
Board of Managers the presence of a majority of the total number of managers
shall constitute a quorum for the transaction of business. The vote of at least
a majority of the managers present at any meeting at which a quorum is present
shall be necessary to constitute and shall be the act of the Board unless these
by-laws shall otherwise provide. In case at any meeting of the Board a quorum
shall not be present, the members of the Board present may adjourn the meeting
from time to time until a quorum shall attend.
Section 2.7. Organization. Meetings of the Board of Managers shall be
presided over by the President, or in his absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his absence
the President of the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 2.8. Action by Managers Without a Meeting. Unless otherwise
restricted by these by-laws, any action required or permitted to be taken at any
meeting of the Board of Managers, or of any committee thereof, may be taken
without a meeting if all members of the Board or such committee, as the case may
be, consents thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
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ARTICLE III
Committees
Section 3.1. Committees. The Board of Managers may, by resolution
passed by a majority of the total number of managers, designate one or more
committees in addition to the Executive Committee, each such committee to
consist of one or more of the managers of the Company. Any such committee, to
the extent provided in the resolution of the Board, and unless otherwise
restricted by its limited liability company agreement or these by-laws, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company, to the full extent
permitted by law.
Section 3.2. Committee Rules. Unless the Board of Managers otherwise
provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, the entire
authorized number of members of such committee shall constitute a quorum for the
transaction of business, the vote of all such members present at a meeting shall
be the act of such committee, and in other respects each committee shall conduct
its business pursuant to Article II of these by-laws.
ARTICLE IV
Officers; etc.
Section 4.1. Subject to the terms of employment agreements to which the
Company is party, the Board of Managers shall have the authority to appoint and
terminate officers of the Company and retain and terminate employees, agents and
consultants of the Company and delegate such duties to any such officers,
employees, agents and consultants as the Board deems appropriate, including the
power, acting individually or jointly, to represent and bind the Company in all
matters, in accordance with the scope of their respective duties.
ARTICLE V
Capital Interest
Section 5.1. Certificates. Every holder of capital interest in the
Company shall be entitled to have a certificate signed by or in the name of the
Company by the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Company,
certifying the amount of capital interest owned by him in the Company. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Company with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
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Section 5.2. Lost, Stolen or Destroyed Certificates, Issuance of New
Certificates. The Company may issue a new certificate of capital interest in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Company may require the owner of the lost, stolen
or destroyed certificate, or his legal representative, to give the Company a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Seal. The Company may have a company seal which shall have
the name of the Company inscribed thereon and shall be in such form as may be
approved from time to time by the Board of Managers. The company seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 6.2. Waiver of Notice of Meetings of Members, Managers and
Committees. Whenever notice is required to be given by law or under any
provision of the certificate of formation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the members, managers, or
members of a committee of managers need be specified in any written waiver of
notice unless so required by the certificate of formation or these by-laws.
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