Exhibit A
OPERATING AGREEMENT OF POWERTREE CARBON COMPANY, LLC
THIS OPERATING AGREEMENT OF POWERTREE CARBON COMPANY, LLC (this
"Agreement"), dated as of June 2, 2003, is made and entered into by the
undersigned organizing members to form, and be hereby admitted as members of, a
limited liability company to be named PowerTree Carbon Company, LLC, (the
"Company") under and pursuant to the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. ss. 18-101 et seq., as amended from time to
time (the "Act"). This Agreement shall be deemed effective as of immediately
prior to the filing of a certificate of formation (the "Certificate of
Formation") for the Company under the Act. This Agreement will be binding upon
additional members of the Company upon their admission as members of the Company
in the manner provided in this Agreement.
Whereas, the members intend that this Agreement memorialize the entire
limited liability company agreement (as defined in Section 18-101(7) of the Act)
of the Company as in effect at the time of formation of the Company;
NOW, THEREFORE, intending to be legally bound, the members hereby agree
as follows:
ARTICLE I - MEMBERSHIP
SECTION 1. Members. The members (each a "member") of the Company are
the following (together with any other persons or entities admitted in the
future as additional or substitute members of the Company in accordance with
this Agreement and the Act):
Ameren Corporation American Electric Power Company, Inc.
Cinergy Climate Change Investments, LLC Detroit Edison
Company Diversified Lands LLC Duke Energy Entergy
Arkansas, Inc. Exelon Generation Company LLC First Energy
Corp Great Plains Energy Incorporated Minnesota Power
Oglethorpe Power Corporation Oklahoma Gas & Electric
Peabody Energy Conectiv Energy Holding Company Arizona
Public Service Company Progress Energy, Inc.
PSEG
PNM Resources, Inc.
Reliant Energy
Tennessee Valley Authority
TXU Generation Company LLP
Virginia Electric & Power Company
We Energies
Wisconsin Public Service Corporation
Xcel Energy
SECTION 2. Interest of Members. Except as otherwise provided in Section
5 of this Article I, each member shall have a percentage interest ("Interest")
in the Company equal to a fraction the numerator of which is the net present
value discounted (using a discount rate of three (3) percent, or such other rate
as the Board subsequently establishes) to January 1, 2003 of the total
contribution commitment of such member set forth across from such member's name
on Schedule A hereto as may be amended from time to time pursuant to sections 3
and 7 through 9 of this Article I, and the denominator of which is the sum of
the net present values calculated for each of the members' total contribution
commitments set forth on Schedule A as may be amended from time to time pursuant
to sections 3, and 7 through 9 of this Article I. References hereinafter to
"Schedule A" shall mean Schedule A, as may be amended from time to time pursuant
to sections 3, 5 and 7 through 9 of this Article I.
SECTION 3. Additional Members. Except as otherwise permitted in Section
5 of this Article I, new members may be added only upon the unanimous approval
of the then existing members, pursuant to the procedures adopted by the Board of
Managers. Upon the admission of a new member, this Operating Agreement (and
Schedule A hereto) shall be amended to include the new member as a party hereto.
The percentage Interest of any new member shall be calculated under the
methodology set forth in section 2 of this Article I, and the percentage
Interests of existing members shall be reduced pro rata to reflect the Interest
of the new member.
SECTION 4.1 Members' Capital Contributions. Each organizing member
shall be required to make the capital contributions of cash to the Company at
the times and in the amounts set forth across from such member's name as shown
on Schedule A hereto, as the same may be amended from time to time pursuant to
section 7 of this Article, by paying, or causing to be paid, said amount to the
Company. Upon receipt of such payment, such amount shall be credited to the
member's Capital Account (as such term is defined in Article VI) and shall be
available to the Company to pay for the expenses associated with the Company's
business activities, pursuant to the Company's procedures for approving
expenditures. Members shall not be entitled to interest on the capital
contributions. A member's failure to make a scheduled capital contribution shall
result in a suspension of such member's voting rights until such time as the
member makes the required contribution. The Board may establish an interest
penalty for late payments, which interest penalty shall not exceed the lawful
rate. For purposes hereof, a member's payment shall not be considered late until
ten (10) business days after receipt of a notice from the Company of such
member's failure to make a scheduled payment.
SECTION 4.2 Capital Accounts. Each member shall have a Capital Account
that shall be credited with (i) the capital contributions (net of liabilities
that the Company is considered to assume or take subject to Code section 752)
contributed by such member to the Company; and (ii) allocations of Profits to it
pursuant to Article VI, Section 2. Each member's Capital Account shall be
debited with (a) the amount of cash and the Carrying Value (as defined in
Article VI hereof) of other property distributed to such member (net of
liabilities that such member is considered to assume or take under Section 752
of the Code) and (b) allocations of Losses to it pursuant to Article VI, Section
3. The provisions of this Agreement relating to the maintenance of Capital
Accounts and procedures under liquidation of the Company are intended to comply
generally with Regulations Section 1.704-1(b), and shall be interpreted and
applied in a manner consistent therewith and, to the extent the subject matter
thereof is otherwise not addressed by this Agreement, the provisions of such
Regulations are hereby incorporated by reference. The members hereby agree to be
bound by the provisions of this Article I, Section 4 (relating to Capital
Accounts) and Article VI (relating to Allocations) in reporting their shares of
Company income and loss for all tax purposes, except to the extent otherwise
required by applicable law. Notwithstanding any requirements of law, the members
agree, for purposes of maintaining their Capital Accounts, to be bound by the
allocations contained in Article VI, notwithstanding any allocations for income
tax purposes.
SECTION 4.3 Pre-formation Expenses. Each of the members shall be
required to pay its own expenses incurred in connection with formation of the
Company (collectively the "Pre-formation Expenses"). Such expenses shall
represent a deemed contribution to the capital of the Company. The Carrying
Value of the Pre-formation Expenses shall always be zero.
SECTION 5. Transfer or Sale of Interest. A member may not transfer, by
sale, gift, assignment or any other means, some or all of its Interest in the
Company to any party except with the two-thirds approval of the existing
members; except that a member may sell, transfer, or assign some or all of its
Interest without the prior approval of other members: (i) to an affiliate of the
member; and (ii) to another member. However, in the case of any such sale,
transfer, or assignment the transferring member shall not be released from its
obligations hereunder unless the transferee agrees in writing to assume all
obligations under this agreement with respect to the transferred interest in
form and substance acceptable to the Board. For purposes of this Agreement,
"affiliate" means with respect to a person or entity, any other person or entity
controlled by, controlling or under common control with such person or entity.
For purposes hereof "control" means with respect to a person or entity,
possession of fifty (50) percent or more of the (i) outstanding voting rights
entitled to vote for election of the board of directors or other governing body
of such entity, or (ii) general partnership interests in such entity, or (iii)
joint venture or other interests with respect to such entity entitled to direct
the management and affairs of such entity, by contract or otherwise. Schedule A
hereto shall be amended to reflect a transfer of Interest(s) permitted under
this Agreement. A transferee hereunder shall succeed to the Interest, voting and
other rights of transferring member. In recognition that each member has only
one vote in the management of the Company, in the case of transfer of less than
the entire Interest of a member, the transferring member and the transferee
shall mutually agree and notify the Company as to which of them shall exercise
such vote and the Company shall not be liable for relying on such notice.
SECTION 6. Proof of Membership. This Agreement shall be proof of
membership in the Company.
SECTION 7. Additional Capital Contributions. Except by a unanimous vote
of the members, no member shall be required to make any additional capital
contributions to the Company beyond those the member committed to make at the
time of such member's admission to the Company in accordance with Schedule A
hereto. Any additional capital contributions approved pursuant to this section
shall be reflected on Schedule A.
SECTION 8. Withdrawal. A member may withdraw from the Company for any
reason at any time by notifying the Secretary. Upon delivery of such notice the
member shall not be entitled to the return of any of its capital contributions
in the Company and shall have no further right, obligation or interest in, or
with respect to, the Company; except: (i) the withdrawing member shall remain
liable to the Company for any unpaid capital contributions that it agreed to pay
to the Company as set forth in Schedule A and shall remain liable to make such
contributions in accordance with the dates set forth in Schedule A; and (ii) the
withdrawing member shall remain liable for any other liabilities or obligations
that it undertook to the Company. Upon a member's withdrawal, such member's
Interest shall be allocated to the remaining members pro rata based on the
percentage Interest of each remaining member and the Board shall amend Schedule
A to reflect such allocation. A withdrawing member may retain Carbon Reductions
(as defined in Article V) associated with the withdrawing member's Interest that
accrue to the member prior to the member's withdrawal and that the Board
ratifies pursuant to Article V prior to or after the member's withdrawal. Carbon
Reductions associated with the withdrawing member's Interest which accrue after
the member's withdrawal and are ratified by the Board shall be allocated to the
remaining members pro rata based on each remaining member's percentage Interest.
SECTION 9. Termination of Membership. The Company, by a two-thirds
majority vote of the Board, may revoke a member's Interest in the Company if:
(i) within thirty (30) days after receipt of notice thereof from the Company, a
member fails to make a capital contribution to the Company as provided on
Schedule A hereto; or (ii) a member becomes the subject of a voluntary or
involuntary petition for bankruptcy that is not withdrawn within one hundred
twenty (120) days of filing. Upon revocation of a member's Interest, the member
shall not be entitled to the return of any of its capital contributions in the
Company and shall have no further right, obligation or interest in the Company;
except: (i) such member shall remain liable to the Company for any unpaid
capital contributions as provided in and in accordance with the timetable set
forth in Schedule A hereto; and (ii) the member shall remain liable for any
other liabilities or obligations it undertook to the Company. A revoked member's
Interest shall be allocated to the remaining members pro rata based on each
remaining member's percentage Interest and the Board shall amend Schedule A to
reflect such allocation.
SECTION 10. Term. The Company shall have a term of ninety-nine (99)
years.
SECTION 11. Public Utility Holding Company Act. So long as any member
is subject to regulation under the Public Utility Holding Company Act of 1935
("PUHCA") as a registered holding company or a subsidiary company thereof (each
a "PUHCA Regulated Member"), such PUHCA Regulated Member agrees that it,
together with each company that is an "associate company" (as defined in PUHCA)
thereof and that is also a member ("Associate Company"), shall not own, be
deemed to own, or acquire any voting rights in the Company (either as a member
or on the Board) which shall cause its voting rights together with its Associate
Companies to equal or exceed ten percent (10%) of the outstanding voting rights
in the Company. Any such voting right equal to or in excess of ten percent (10%)
that would be received, transferred or otherwise obtained by a member together
with its Associate Companies shall be automatically allocated in equal portions
to the other members for so long as and to the extent that the ownership of such
voting rights would cause the voting rights of the PUHCA Regulated Member
together with its Associate Companies to equal or exceed ten percent (10%) or
more of the total voting rights in the Company. The foregoing re-allocation of
voting rights shall not require the prior consent or approval of any Member. The
Board may determine an appropriate mechanism to implement the objectives of this
provision, including but not limited to the creation of fractional voting rights
or additional voting rights.
SECTION 12. Condition Precedent for PUHCA Registered Companies. As to
each of the following companies that will be a PUHCA Regulated Member once such
company becomes a member (each a "Registered Company"), the effectiveness each
Registered Company's admission as a member of the Company pursuant to this
Agreement is conditioned on the Registered Company receiving approval from the
Securities and Exchange Commission under PUHCA to perform, directly or
indirectly through any associate company (as such term is defined in PUHCA),
this Agreement. Upon such approval, such Registered Company or its designated
affiliate shall be admitted to the Company as a full "member" under this
Agreement and shall thereupon pay all unpaid Schedule A capital contributions
due through the date of such admission. The Registered Companies are:
Ameren Corporation
American Electric Power Company Inc.
Cinergy Corp.
Entergy Arkansas, Inc.
Exelon Generation Company LLC
First Energy Corp.
Great Plains Energy Incorporated
Conectiv Energy Holding Company
Progress Energy, Inc.
Virginia Electric & Power Company
Xcel Energy
SECTION 13. Additional Limitation on Voting Rights. No company that
notifies the Company of its intention to be subject to this provision, shall
own, be deemed to own, or acquire any voting rights either as a member or on the
Board in the Company (either as a member or on the Board) which shall cause its
voting rights together with any voting rights held by affiliates of such company
to equal or exceed five percent (5%) of the outstanding voting rights in the
Company. Any such voting right equal to or in excess of five percent (5%) that
would be received, transferred or otherwise obtained by such company together
with any affiliate thereof shall be automatically allocated in equal portions to
the other members for so long as and to the extent that the ownership of such
voting rights would cause the voting rights of such company together with its
affiliates to equal or exceed five percent (5%) or more of the total voting
rights in the Company. The foregoing re-allocation of voting rights shall not
require the prior consent or approval of any member. The Board may determine an
appropriate mechanism to implement the objectives of this provision, including
but not limited to the creation of fractional voting rights or additional voting
rights.
ARTICLE II - MANAGEMENT BY BOARD OF MANAGERS
SECTION 1. Board of Managers. The business and affairs of the Company
shall be managed by or under the direction of a Board of Managers (or "Board").
Each member (or any permitted transferee of such member) owning an interest
representing at least an original capital contribution commitment of One Hundred
Thousand Dollars ($100,000) as provided in Schedule A hereto shall be entitled
to appoint one representative to the position of a Manager on the Board. Each
member (together with any affiliate) having a representative on the Board shall
have one vote. Each Manager shall hold his or her seat on the Board for so long
as the respective member remains a member and complies with this Agreement and
the appointed Manager does not resign. A member may change its Manager on the
Board by providing notice thereof to the other members at their addresses as set
forth in Schedule B, attached to and made a part of this Agreement. The Board
shall have full authority and decision-making power to manage the business and
affairs of the Company without further authorization by the members except as
such authorization may be specifically required herein, and the actions of the
Board taken in accordance with this Agreement shall bind the Company. In
recognition that each member has no more than one vote in the management of the
Company, in the case of transfer of less than the entire Interest of a member
under Section 5 of Article I, the transferring member and the transferee shall
mutually agree and notify the Company as to which of them shall exercise the
corresponding voting right (if any) on the Board, and the Company shall not be
liable for relying on such notice.
SECTION 2. Meetings of the Board of Managers. The Board may hold
meetings, both regular and special, within or outside the State of Delaware.
Regular meetings of the Board may be held without notice at such time and at
such place as shall from time to time be determined by the resolution of the
Board. Special meetings of the Board may be called by the President on five (5)
business days notice to each Manager, either personally, by telephone, by mail,
by telegram or by any other means of communication; special meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of at least a quarter of the Managers.
SECTION 3. Quorum and Acts of the Board. At all Board meetings, a
quorum shall consist of those Managers present who represent at least a majority
of the total number of members that have appointed a Manager. Except as
otherwise provided in Section 7 of this Article or 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. If a quorum shall not be
present at a Board meeting, the Managers present at the meeting may adjourn the
meeting, until a quorum can be present. Any action required or permitted to be
taken at any meeting of the Board may be taken without a meeting, if a majority
of the Board members consent in writing, and the writing or writings are filed
with the minutes of Board proceedings.
SECTION 4. Electronic Communications and Proxies. Members of the Board,
or any committee designated by the Board, may participate in a Board or
committee meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting. If all the participants are participating by conference
telephone or similar communications equipment, the meeting shall be deemed to be
held at the principal place of business of the Company. A member of the Board
may vote on any matter(s) brought before the Board by providing a written proxy
to any officer or member of the Company.
SECTION 5. Committees. The Board may designate by resolution one or
more committees, each committee to consist of one or more of the Managers. Any
such committee shall have and exercise only those powers and authority in the
management of the Company's business and affairs as are delegated to it in the
Board resolution and no such committee shall have the power or authority to take
any of the actions described in section 7 of this Article unless authorized in
writing beforehand by a two-thirds majority vote of the full Board. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board. Each committee shall keep
regular minutes of its meetings and report the same to the Board when required.
SECTION 6. Compensation of Managers. No Manager shall be entitled to
receive any financial compensation for serving as a Manager of the Board.
SECTION 7. Actions Requiring Two-Thirds Approval of the Full Board.
Notwithstanding any other provision of this Agreement to the contrary, none of
the Board, any Manager, or any officer shall take any of the following actions
on behalf of the Company unless authorized to do so by a two-thirds vote of the
full Board:
(i) The sale, exchange or other disposition of any of the assets of the
Company greater than $ 20,000 (twenty-thousand dollars) in value;
(ii) The commencement of a voluntary proceeding seeking reorganization or
other relief with respect to the Company under any bankruptcy or other
similar law or seeking the appointment of a trustee, receiver,
custodian or other similar official of the Company or any substantial
part of its property, or the making by the Company of a general
assignment for the benefit of creditors;
(iii) The declaration or making of any distributions to members;
(iv) The entering into or withdrawal from by the Company of any joint
venture, partnership, subcontracting, license, sub-license,
manufacturing, marketing, distribution or other similar arrangement
with any person;
(v) The entering into by the Company of any agreement, facility,
commitment, guaranty, instrument or other undertaking providing for,
or relating to, the incurrence of any indebtedness or financing by the
Company;
(vi) The formation or organization of any subsidiary of the Company or
other restructuring of the Company and the appointment of directors of
(or persons with comparable authority with respect to) any such
subsidiary;
(vii)The Company's commitment to any material capital expenditure defined
as any expenditure exceeding $20,000 (twenty-thousand dollars);
(viii) The adoption of a business plan and annual operating budget for the
Company (or any updates to the plan or budget) pursuant to Article
XVI, Section 4 hereof;
(ix) The entering into, amendment or termination of employment contracts
with Officers of the Company or other contracts with Officers,
Managers, or members or their respective affiliates;
(x) The appointment or change of the independent auditors or deposit banks
of the Company; or
(xi) The acquisition or lease by the Company of any real property, or any
sale, donation, lease or sublease of, or similar arrangement
affecting, any real property owned or leased by the Company.
ARTICLE III - MEMBERS
SECTION 1. Regular Meetings. The members shall meet not less
than annually at such time and place as the President determines.
SECTION 2. Special Meeting. Special meetings of the members may
be called by or at the request of the President, the Board, or any three
members. The President shall fix the place for holding any such special meeting
of the members.
SECTION 3. Notice. Notice of any regular or special meeting shall be
given at least ten (10) days previously thereto by written notice delivered
personally or mailed to each member at the business address of the person
designated by the member as its contact. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. A copy of the notice may also be sent by e-mail or
facsimile to the member. Any member may waive notice of any meeting. The
attendance of a member at a meeting shall constitute a waiver of notice of such
meeting, except where a member attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully
called or convened.
SECTION 4. Quorum. A majority of members present in person or who
participate by means of electronic communications or proxy shall constitute a
quorum for the transaction of business at any meeting of the members, but if
less than such majority is present at a meeting, a majority of the members
present may adjourn the meeting from time to time without further notice.
SECTION 5. Electronic Communications. Members may participate in any
meeting by means of conference telephone or similar communications equipment
where all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
If all the participants are participating by conference telephone or similar
communications equipment, the meeting shall be deemed to be held at the
Company's principal place of business.
SECTION 6. Manner of Acting. Except as otherwise provided in this
Agreement, the act of the majority of the members present in person or by proxy
at a meeting at which a quorum is present shall be the act of the Company. Each
member shall have one vote.
SECTION 7. Action Without a Meeting. Any action that may be taken by
the members at a meeting may be taken without a meeting if a consent in writing,
setting forth the action so to be taken, shall be signed before or after such
action by all of the members.
SECTION 8. Presumption of Assent. A member who is present at a meeting
of the members at which action on any Company matter is taken shall be presumed
to have assented to the action taken unless such member's dissent shall be
entered in the minutes of the meeting or unless such member shall file its
written dissent to such action with the person acting as the secretary of the
meeting before the meeting's adjournment or shall forward such dissent by
certified mail, return receipt requested, to the Company's Secretary as soon as
practicable after the meeting is adjourned. A member may submit its dissent
electronically via facsimile or e-mail so long as the Company acknowledges in
writing its receipt thereof. The right to dissent shall not apply to a member
who voted in favor of such action.
SECTION 9. Voting by Proxy. A member may vote on any matter(s) brought
before the members by providing a written proxy to any Company officer or
member.
SECTION 10. Actions of Members. Members, as members, have no authority
to act on behalf of or otherwise bind, the Company.
SECTION 11. Representations and Warranties. Each member hereby
represents and warrants to the Company and to the other members as follows:
A. It is duly organized and existing in good standing under the laws of
its state of organization and is duly qualified to do business in such
state. B. It possesses all requisite power and authority to enter into
and perform this Agreement and to carry out the transactions
contemplated herein.
ARTICLE IV - OFFICERS
SECTION 1. Number. The officers of the Company shall be a
President, a Chairman of the Board of Managers, a Secretary, and a Treasurer,
each of whom shall be elected by a two-thirds vote of the members.
SECTION 2. Term of Office. Each officer shall hold office until his or
her successor shall have been duly elected, until his or her death, or until he
or she shall resign or shall have been removed in the manner hereinafter
provided.
SECTION 3. Removal. Any officer may be removed by a two-thirds
vote of the members.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
members at a special meeting called for that purpose.
SECTION 5. President. The President shall be the principal executive
officer of the Company and, subject to the control of the Board, shall in
general supervise and control all of the business and affairs of the Company and
be responsible for the day-to-day operations of the Company. He or she shall,
when present, preside at all meetings of members. He or she may sign, pursuant
to authority delegated by the Board, contracts or other instruments, except in
cases where the signing and execution thereof shall be expressly delegated by
this Agreement to some other officer or agent of the Company, or shall be
required by law to be otherwise signed or executed; and in general shall perform
all duties incident to the office of President and such other duties as may be
prescribed by the Board.
SECTION 6. Chairman. The Chairman shall preside at all Board
meetings. Only a Manager may be the Chairman.
SECTION 7. Secretary. The Secretary shall: (a) keep the minutes of the
proceedings of the members in one or more books provided for that purpose; (b)
see that all notices are duly given in accordance with the provisions of this
Agreement or as required by law; (c) be custodian of the Company's records and
of the Company's seal and see that the Company's seal is affixed to all
documents the execution of which on the Company's behalf under its seal is duly
authorized; and (d) in general perform all of the duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
or her by the President or by the Board.
SECTION 8. Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the Company; (b) receive
and give receipts for moneys due and payable to the Company from any source
whatsoever, and deposit all such moneys in the Company's name in such banks,
trust companies or other depositaries as shall be selected in accordance with
the provisions of this Agreement; and (c) in general perform all of the duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him or her by the President or by the Board. If required by
the members, the Treasurer shall give a bond for the faithful discharge of his
or her duties in such sum and with such surety or sureties as the Board shall
determine.
ARTICLE V - BUSINESS PURPOSE;
CARBON REDUCTIONS AND WILDLIFE HABITAT ENHANCEMENT
The Company will have all legal powers and privileges, together with
any powers incidental thereto, to conduct, promote and attain the businesses,
purposes and activities of the Company. The Company's principal purpose shall be
to invest in and develop forestation and reforestation projects designed to
sequester carbon from the atmosphere, where such projects are not inconsistent
with the development and enhancement of wildlife habitat, and to secure the
legal rights associated with such sequestration (hereinafter the "Projects").
Members shall be entitled to claim a pro rata share of all carbon that is
determined to be sequestered by the Company's efforts to which legal rights have
been obtained ("Carbon Reductions") based on the members percentage Interest in
the Company. The Board shall take such actions as are reasonable and necessary
to: (i) ratify the amount of Carbon Reductions achieved through the Projects;
(ii) allow each member (or its designee(s) or transferee(s)) to utilize (or not
utilize) its share of Carbon Reductions in connection with the member's (or
designee(s) or transferee(s)) participation in any greenhouse gas reporting or
regulatory programs; (iii) transfer (or not transfer) the legal rights
associated with Carbon Reductions from the Company to each member (or its
designee(s) or transferees) at the member's direction; or (iv) take such other
action to use (or not to use) on behalf of or to permit use (or non-use) by one
or more members (or its or their designee(s) or transferee(s)) as the Board may
specifically authorize from time to time. In no event does the Company or any
member guarantee, warranty, or covenant to any member or any other party: (i)
that the Company's efforts will result in Carbon Reductions; (ii) that any
Carbon Reductions resulting from the Company's efforts or otherwise will have
any value regardless of whether such Carbon Reductions are held by the Company
or transferred to a member or other person; (iii) that any Carbon Reductions
resulting from the Company's efforts will be credited, certified, or otherwise
recognized under any governmental greenhouse gas voluntary reporting or
regulatory program. In addition to the principal purpose described herein, the
Company may carry on any other lawful business purpose or activity permitted by
the Agreement. So long as any member is subject to regulation under PUHCA as a
registered holding company, or a subsidiary company thereof, the Company shall
not engage in any business activity inconsistent with any exemption, advice,
rule, or order of the Securities and Exchange Commission relied upon by such
member permitting its ownership of its Interest in the Company.
ARTICLE VI - ALLOCATIONS AND DISTRIBUTIONS TO MEMBERS
SECTION 1. Defined Terms. For purposes of this Agreement, the
following shall be defined terms:
A. "Capital Account" means the separate capital account
established and maintained on behalf of each member. Such
Capital Accounts shall be maintained in accordance with the
Code, including Section 704(b) of the Code, Regulations,
capital accounting rules of Regulations Section
1.704-1(b)(2)(iv), and other applicable authority. In the
event of a permitted sale or exchange of an Interest, the
Capital Account of the transferor shall become the Capital
Account of the transferee to the extent it relates to the
transferred Interest.
B. "Code" means the Internal Revenue Code of 1986 , as amended,
and any successor statute.
C. "Deficit Capital Account" means with respect to any member,
the deficit balance, if any, in such member's Capital Account
as of the end of the taxable year, after giving effect to the
following adjustments:
(i). Credit to such Capital Account (1) any amount which such
member is obligated to restore, under Section
1.704-1(b)(2)(ii)(c) of the Regulations, including, but not
limited to, the unpaid principal balance of any promissory
note (of which the member is the maker) contributed to the
Company by the member, (2) the amount of such member's share
of Company minimum gain (as determined in accordance with
Section 1.704-2(g)(1) and (g)(3) of the Regulations), and (3)
the amount of such member's share of member nonrecourse debt
minimum gain (as determined under Section 1.704-2(i)(5) of the
Regulations); and
(ii). Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Regulations.
(iii). This definition is intended to comply with the
provisions of Treasury Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
with those provisions.
D. "Capital Contribution" means, for purposes of this Article VI,
with respect to any member, the aggregate amount of money and
the initial Carrying Value of any property (other than money)
contributed to the Company pursuant to this Article VI.
E. "Carrying Value" means (i) with respect to any Company asset
contributed to the Company by any person, the gross fair
market value of such asset, adjusted as provided in the last
sentence of this paragraph, and (ii) with respect to any other
Company asset, the adjusted basis of such asset for federal
income tax purposes as of the time of determination; provided,
however, that the Carrying Value of all Company assets shall,
at the election of the Tax Matters Member with approval of the
Board, be adjusted to equal their gross fair market value, as
determined by the Tax Matters Member with approval of the
Board, upon the occurrence of an event specified in
Treasury Regulations Section 1.704-1(b)(2)(iv)(f)(5). The
Carrying Value of Company property shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section
743(b), but only to the extent that such adjustments are taken
into account in determining Capital Accounts pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and
Subparagraph (vi) of the definition of "Profits" and "Losses".
F. "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 Carrying 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 Carrying
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 Carrying Value using any reasonable method selected
by the Tax Matters Member with the approval of the Board.
G. "Member Nonrecourse Debt" has the meaning set forth
in Treasury Regulations Section 1.704-2(b)(4).
H. "Member Nonrecourse Deductions" has the meaning set
forth in Treasury Regulations Sections 1.704-2(i)(1)
and 1.704-2(i)(2).
I. "Minimum Gain" means the amount determined pursuant
to the provisions of Treasury Regulations Section
1.704-2(d).
J. "Minimum Gain Attributable to Member Nonrecourse
Debt" means the amount determined pursuant to the
provisions of Treasury Regulations Section
1.704-2(i)(3).
K. "Nonrecourse Deductions" has the meaning set forth in
Treasury Regulations Section 1.704-2(b)(1).
L. "Nonrecourse Liability" means those liabilities
defined as such in Treasury Regulations Section
1.704-2(b)(3).
M. "Membership Interest" means, with respect to a
member, the member's Interest (as defined in Article
I, Section 2 of this Agreement), the member's rights
to distributions (liquidating or otherwise), the
member's tax allocations (if any), and the member's
information and rights to vote, consent, or approve.
N. "Profit" or "Loss" means, for any Fiscal Year, an
amount equal to the Company's taxable income or loss
for such Fiscal Year, determined in accordance with
the Code Section 703(a) (for this purpose, 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 income of the Company that is exempt from federal
income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this
definition of "Profits" and "Losses" shall be added
to such taxable income or loss;
(ii) In the event the Carrying Value of any Company
property is adjusted pursuant to the definition of
Carrying Value, the amount of such adjustment shall
be taken into account as gain or loss from the
disposition of such asset for purposes of computing
Profits or Losses;
(iii) Any expenditures of the Company described in Code
Section 705(a)(2)(B) or treated as Code Section
705(a)(2)(B) expenditures pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits or
Losses pursuant to this definition of "Profits" and
"Losses" shall be subtracted from such taxable income
or Loss;
(iv) Gain or loss resulting from any disposition of
Company property with respect to which gain or loss
is recognized for federal income tax purposes shall
be computed by reference to the Carrying Value of the
Company property disposed of, notwithstanding that
the adjusted tax basis of such Company property
differs from its Carry Value;
(v) In lieu of 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 Allocation Year,
computed in accordance with the definition of
"Depreciation";
(vi) To the extent an adjustment to the adjusted tax basis
of any Company property pursuant to Code Section
734(b) is required, pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m)(4), to be taken into
account in determining Capital Accounts as a result
of a distribution other than in liquidation of a
member's Membership Interest, the amount of such
adjustment shall be treated as an item of gain (if
the adjustment increases the basis of the asset) or
loss (if the adjustment decreases such basis) from
the disposition of such asset and shall be taken into
account for purposes of computing Profits or Losses.
O. "Tax Matters Member" has the meaning assigned to such term in
Article XIII.
P. "Regulations" means the regulations, temporary and final, of
the Treasury Department promulgated under the Code.
SECTION 2. Net Profits. Net profits for any taxable year of the Company
shall be allocated to the members in proportion to their respective Interests.
SECTION 3. Net Losses. Net losses for any taxable year shall be
allocated to the members in proportion to their respective Interests.
SECTION 4. Distributions. Except upon dissolution and liquidation as
set forth in Article XI, at such times as the Board shall determine, but no less
than annually, the distributable cash of the Company, if any, shall be
distributed to the members in proportion to their respective Interests.
SECTION 5.
A. The net Profit and net Loss of the Company, including each
item of income, gain, loss and deduction, and credit shall be
allocated with respect to each Fiscal Year (or portion
thereof) among the Members in accordance with their respective
Interest.
B. Allocations for tax purposes shall be made in the same manner
as the allocations set forth under Section 5(a); however the
following adjustments shall be made and applied, to the extent
necessary, in a manner consistent with Treasury Regulation
Section 1.704-1(b):
(1) The allocations of income, gain, loss and
deduction pursuant to Section 5(a) shall be adjusted
to comply with the qualified income offset
requirements of Treasury Regulation Section
1.704-1(b) and the nonrecourse deduction or minimum
gain charge-back requirements of Treasury Regulation
Section 1.704-2.
(2) The net Losses allocated pursuant to Section 5(a)
shall not exceed the maximum amount of net Losses
that can be so allocated without causing any Member
to have a Deficit Capital Account at the end of any
fiscal period. If some but not all Members would have
Deficit Capital Accounts as a consequence of an
allocation of net Losses pursuant to this Section
5(b)(ii), then the limitation set forth in this
Section 5(b)(ii) shall be applied on a
Member-by-Member basis so as to allocate the maximum
permissible net Losses to each Member under
Regulations ss. 1.704-1(b)(2)(ii)(d). With respect to
each allocation period thereafter, 100 percent of net
Profit shall be allocated to the Members up to the
aggregate of, and in proportion to, any net Losses
previously allocated to each Member in accordance
with this Section 5(b)(ii) in the reverse order in
which such net Losses were allocated.
(3) Any special allocations pursuant to the preceding
clause (i) required in order to comply with the
Treasury Regulations shall be taken into account, to
the extent permitted by the Treasury Regulations, in
computing subsequent allocations pursuant to this
Section 5(b) so that the net amount of any items so
allocated and all other items allocated to each
Member shall, to the extent possible, be equal to the
amount that would have been allocated to each Member
had there been no such special allocation.
C. If there is a change in any Member's share of the
distributions or other items of the Company during any Fiscal
Year as a result of the Transfer (as defined herein) of an
Interest (subject, in each case, to Article XI hereof),
allocations among the Members shall be made in accordance with
their respective Interests in the Company from time to time
during such Fiscal Year in accordance with Code Section 706,
using the closing-of-the-books method; however depreciation
shall be deemed to accrue ratably on a daily basis over the
entire year during which the corresponding asset is owned by
the Company.
D. If the Internal Revenue Service successfully asserts an
adjustment to the taxable income of a Member attributable to a
transaction between the Member and the Company and, as a
result of such adjustment, the Company is entitled to a
deduction or reduction in income for Federal income tax
purposes in excess of any gain recognized by the Company, such
excess deduction shall be allocated to such Member or such
reduced income shall be reflected in a reduction in income
allocated to such Member. If the Internal Revenue Service
successfully asserts an adjustment to the taxable income of
the Company attributable to a transaction between the
Member and the Company and, as a result of such adjustment,
any Member is entitled to a deduction or reduction in income
for Federal income tax purposes in excess of any gain
recognized by such Member, the additional Company taxable
income shall be allocated to such Member.
Notwithstanding anything to the contrary in this Section 5, the Tax
Matters Member shall not take any of the actions described in this Section 5
without the prior approval of the Board, as required by Article XIII.
SECTION 6. Special Allocations. The special allocations described in
Sections 7 through 12 of this Article shall be made in the same order as they
appear in this Article VI.
SECTION 7. Minimum Gain Chargeback. Notwithstanding any other portion
of this Article VI and except as provided in Section 1.704-2(f) of the
Regulations, if there is a net decrease in the Company's minimum gain as
determined under Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations during
a taxable year of the Company, then the capital accounts of each member shall be
allocated items of income (including gross income) and gain for such year (and,
if necessary, for subsequent years) in an amount equal to the total net decrease
in the Company's minimum gain multiplied by the members' percentage share of the
Company's minimum gain at the end of the preceding taxable year determined in
accordance with Section 1.704-2(g) of the Regulations. This Article VI, Section
7 is intended to comply with the minimum gain chargeback requirement of Section
1.704-2(f) of the Regulations and shall be interpreted consistently therewith.
The items to be so allocated shall be determined in accordance with Sections
1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. In any taxable year that the
Company has a net decrease in the Company's minimum gain, if the minimum gain
chargeback requirement would cause a distortion in the economic arrangement
among the members and it is not expected that the Company will have sufficient
other income to correct that distortion, the Board may in its discretion (and
shall, if requested to do so by a member) seek to have the Internal Revenue
Service waive the minimum gain chargeback requirement in accordance with
Regulation Section 1.704-2(f)(4).
SECTION 8. Chargeback of Minimum Gain Attributable to Member
Nonrecourse Debt. Except as otherwise provided in Treasury Regulations Section
1.704-2(i)(4), notwithstanding any other provision of this Agreement, if there
is a net decrease in Minimum Gain Attributable to Member Nonrecourse Debt during
any Company Allocation Year, each member who has a share of the Minimum Gain
Attributable to Member Nonrecourse Debt, determined in accordance with Treasury
Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company
income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such member's share of the net decrease
in Minimum Gain Attributable to Member Nonrecourse Debt, determined in
accordance with Treasury Regulations Section 1.704-2(i)(4). Allocations pursuant
to the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each member. The items to be so allocated shall be
determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section is intended to comply with the minimum gain
chargeback requirement in Treasury Regulations Section 1.704-2(i)(4) and shall
be interpreted consistently therewith.
SECTION 9. Qualified Income Offset. In the event any member
unexpectedly receives any adjustments, allocations, or distributions described
in Sections 1.704-1 (b)(2)(ii)(d)(4), (5), or (6) of the Regulations, which
create or increase a Deficit Capital Account of such member, then items of
Company income and gain (consisting of a pro rata portion of each item of
Company income, including gross income, and gain for such year and, if
necessary, for subsequent years) shall be specially allocated and credited to
the Capital Account of such member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Deficit Capital
Account so created as quickly as possible. It is the intent that this Article
VI, Section 9 be interpreted to comply with the alternate test for economic
effect set forth in Section 1.704-1 (b)(2)(ii)(d) of the Regulations.
SECTION 10. Gross Income Allocation. In the event any member would have
a Deficit Capital Account at the end of any Company taxable year which is in
excess of the sum of any amount that such member is obligated or deemed
obligated to restore to the Company (1) pursuant to this Agreement, (2) under
Regulations Section 1.704-2(g)(1) regarding Company minimum gain, and (3) under
Regulations Section 1.704-2(i)(5) regarding member nonrecourse minimum gain,
then the Capital Account of such member shall be specially allocated and
credited with items of Company income (including gross income) and gain in the
amount of such excess as quickly as possible.
SECTION 11. Allocation of Nonrecourse Deductions. Beginning in the
first taxable year in which there are allocations of "nonrecourse deductions"
(as described in Section 1.704-2(b) of the Regulations) attributable to
nonrecourse liabilities of the Company, and thereafter throughout the full term
of the Company, nonrecourse deductions shall be allocated to the members in
accordance with, and as a part of, the allocations of Company net losses for
such period subject to the preceding Section 3 of this Article.
SECTION 12. Allocation of Member Nonrecourse Debt Deductions. Items of
Company loss, deduction and expenditures described in Section 705(a)(2)(B) of
the Regulations which are attributable to any nonrecourse debt of the Company
and are characterized as member nonrecourse debt deductions as determined under
Section 1. 704-2(i)(2) of the Regulations shall be charged to the members'
Capital Accounts in accordance with said Section 1.704-2(i) of the Regulations.
SECTION 13. Intention of Allocations. Any credit or charge to the
Capital Accounts of the members pursuant to Sections 6 through 12 of this
Article shall be taken into account in computing subsequent allocations of net
profits and net losses pursuant to Sections 2 and 3 of this Article, so that the
net amount of any items charged or credited to Capital Accounts shall to the
extent possible, be equal to the net amount that would have been allocated to
the Capital Account of each member if the special allocations required by
Sections 6 through 12 of this Article hereof had not occurred.
A. In accordance with Section 704(c)(1)(A) of the Code and Section
1.704-1(b)(2)(iv)(d)(3) of the Regulations, if a member contributes
property with a fair market value that differs from its adjusted basis
at the time of contribution, income, gain, loss and deductions with
respect to the property shall, solely for federal income tax purposes,
be allocated among the members so as to take account of any variation
between the adjusted basis of such property to the Company and its
fair market value at the time of contribution. Allocations pursuant to
this Section 13A shall be made utilizing the remedial allocation
method described in Treasury Regulation Section 1.704-3(d).
B. Pursuant to Section 704(c)(1)(B) of the Code, if any contributed
property is distributed by the Company other than to the contributing
member within seven years of being contributed, then, except as
provided in Section 704(c)(2) of the Code, the contributing member
shall be treated as recognizing gain or loss from the sale of such
property in an amount equal to the gain or loss that would have been
allocated to such member under Section 704(c)(1)(A) of the Code if the
property had been sold at its fair market value at the time of the
distribution.
C. In the case of any distribution of property (other than cash) by the
Company to a member, such member shall be treated as recognizing gain
in an amount equal to the lesser of:
(1) the excess (if any) of (A) the fair market value of the
property received in the distribution over (B) the adjusted
basis of such member's interest in the Company immediately
before the distribution, reduced (but not below zero) by the
amount of money received in the distribution, or
(2) the Net Precontribution Gain (as defined in Section 737(b) of
the Code) of the member. The Net Precontribution Gain means the
net gain (if any) which would have been recognized by the
distributee member under Section 704(c)(1)(B) of the Code if all
property which (A) had been contributed to the Company
within seven years of the distribution, and (B) is held by the
Company immediately before the distribution, had been distributed
by the Company to another member.
If any portion of the property distributed consists of property which had
been contributed by the distributee member to the Company, then such property
shall not be taken into account under this Article and shall not be taken into
account in determining the amount of the Net Precontribution Gain. If the
property distributed consists of an interest in a general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative, association or other such entity, then the
preceding sentence shall not apply to the extent that the value of such interest
is attributable to the property contributed to such entity after such interest
had been contributed to the Company.
SECTION 14. Allocation of Income and Loss and Distributions in Respect
of Interest Transferred. Distributions of Company assets may be made only to
holders of Interests shown on the Company's books and records. Neither the
Company, the Board, nor any member (who is not a recipient of such distribution)
shall incur any liability for making distributions in accordance with the
provisions of the foregoing, whether or not the Company, the Board, or the
member has knowledge or notice of any transfer or purported transfer of
ownership of a Company Interest which has not been effected in accordance with
this Agreement. Notwithstanding any provision above to the contrary, the
Company's gain or loss realized in connection with the sale or other disposition
of any of the Company's assets shall be allocated solely to the holders of
Company Interests as of the date the sale or other disposition occurs.
SECTION 15. Revaluation of Capital Accounts. In connection with a
contribution of cash or other property (other than a de minimis amount) by a
member or existing member as consideration for the member's interest in the
Company, or in connection with the dissolution of the Company or a distribution
of money or other property (other than a de minimis amount) by the Company, to a
withdrawing member, as consideration for a membership interest, the Capital
Accounts of the members shall be adjusted to reflect a revaluation of Company
property (including intangible assets) in accordance with Regulation Section
1.704-1(b)(2)(iv)(f). If under Section 1.704-1(b)(2)(iv)(f) of the Regulations,
Company property that has been revalued is properly reflected in the Capital
Accounts and on the books of the Company at a book value that differs from the
adjusted tax basis of such property, then depreciation, depletion, amortization
and gain or loss with respect to such property shall be shared among the members
in a manner that takes account of the variation between the adjusted tax basis
of such property and its book value, in the same manner as variations between
the adjusted tax basis and fair market value of property contributed to the
Company are taken into account in determining the members' share of tax items
under Section 704(c) of the Code.
SECTION 16. Recapture. All recapture of income tax deductions
resulting from sale or other disposition of Company property shall be allocated
to the member or members to whom the deduction that gave rise to such recapture
was allocated hereunder to the extent that such member is allocated any gain
from the sale or other disposition of such property.
SECTION 17. Other Allocations.
A. For purposes of determining the net profits and net losses or
other items allocable to any period, net profits, net losses
and any other items shall be determined on a daily, monthly,
or other basis, as determined by the Board using any
permissible method under Code Section 706 and the Regulations
thereunder.
B. The members are aware of the income tax consequences of the
allocations made hereunder and hereby agree to be bound by the
provisions of this Agreement in reporting their shares of
Company income and loss for income tax purposes.
C. To the extent permitted by Section 1.704-2(h)(3) of the
Regulations, the Board shall endeavor to treat distributions
as having been made from the proceeds of a nonrecourse
liability or a member nonrecourse debt only to the extent that
such distributions would cause or increase the Deficit Capital
Account for any member.
ARTICLE VII - CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. Subject to the conditions set forth in Article
II, Section 7, the Board may authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver any instrument in the name of
and on behalf of the Company, and such authority may be general or confined to
specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the Company
and no evidences of indebtedness shall be issued in its name unless authorized
by the Board subject to the conditions set forth in Article II, Section 7. Such
authority may be general or confined to specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Company shall be signed by such officer or officers, agent or agents
of the Company and in such manner as shall from time to time be determined by
Board.
SECTION 4. Deposits. All funds of the Company not otherwise employed
shall be deposited from time to time to the credit of the Company in such banks,
trust companies or other depositaries as the Board may select.
ARTICLE VIII - LIMITED LIABILITY AND
EXCULPATION OF MANAGERS AND OFFICERS
SECTION 1. Limited Liability. The debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, will be solely the
debts, obligations and liabilities of the Company, and no member, Manager,
employee or agent of the Company will be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member or
acting in the capacity as a Manager, employee or agent of the Company, except as
provided under Article IX.
SECTION 2. Exculpation. Any Company Manager or officer exercising
authorities or responsibilities for or on behalf of the Company shall not be
personally liable to the Company for damages or for any breach of duty in that
capacity, provided that nothing in this Article shall eliminate or limit the
liability of any Manager or officer if a judgment or other final adjudication
adverse to him or her establishes that his or her acts or omissions were in bad
faith or involved willful misconduct or a knowing violation of law, or that he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled.
ARTICLE IX - INDEMNIFICATION OF MANAGERS AND OFFICERS
To the fullest extent permitted by law, the Company shall indemnify and
hold harmless any Manager or officer of the Company (collectively, the
"Indemnitees") from and against any and all claims and demands whatsoever;
provided that no indemnification will be made to or on behalf of any Indemnitee
if a judgment or other final adjudication adverse to such Indemnitee
establishes; (a) that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or (b) that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally entitled.
The provisions of this Article shall continue to afford protection to each
Indemnitee regardless of whether he or she remains a Manager, officer, employee
or agent of the Company. Indemnification shall be limited to the capital of the
Company, except to the extent that such indemnification is covered by the
proceeds of any insurance purchased by Company. No member shall be responsible
for this indemnification obligation.
ARTICLE X - FISCAL YEAR
The fiscal year ("Fiscal Year") of the Company shall begin on the first
day of January and end on the 31st of December in each year.
ARTICLE XI - DISSOLUTION, CANCELLATION AND TERMINATION
SECTION 1. Dissolution and Cancellation. The Company may be dissolved
only upon the earlier of the following: (a) expiration of the Company's term or
(b) a decision in writing by at least two-thirds of the members to dissolve the
Company; or (c) as otherwise provided in the Act. After the Company has
completed winding up its affairs and upon the filing with the State of Delaware
of a Certificate of Cancellation the Company shall cease to carry on its
business.
SECTION 2. Winding Up, Liquidation and Distribution of Assets.
A. Accounting. Upon the occurrence of an event of dissolution, an
accounting shall be made by the Company's independent accountants of
the Company's accounts and of the Company's assets, liabilities and
operations, from the date of the last previous accounting until the
date of dissolution. The Board shall immediately proceed to wind up
the Company's affairs.
B. Winding Up. If the Company is dissolved and its affairs are to be
wound up, the Company shall continue solely for the purpose of winding
up its affairs in an orderly manner, liquidating its assets, and
satisfying the claims of its creditors and members and no member shall
take any action that is inconsistent with or not necessary or
appropriate for winding up the Company's business and affairs. To the
extent not inconsistent with the foregoing, all covenants and
obligations in this Agreement shall continue in full force and effect
until such time as the Company's property and assets have been
distributed pursuant to this Agreement and the Certificate of
Cancellation has been filed with the State of Delaware. The Board
shall be responsible for overseeing the winding up and dissolution of
the Company, shall take full account of the Company's liabilities and
property, shall cause the property to be liquidated as promptly as is
consistent with obtaining the fair value thereof (except to the extent
the Board decides to distribute any assets to the members in kind),
shall allocate any net profit and net loss resulting from such sales
to the members as set forth in Article VI and shall cause the proceeds
therefrom, to the extent thereof, to be applied and distributed in the
following order:
(1) First, to the payment and discharge of all the Company's debts and
liabilities to creditors, including any loans advanced by the members
and all costs related to the dissolution, winding up, and liquidation
and distribution of assets;
(2) Second, to the establishment of such reserves as may reasonably be
determined by the Board to be necessary to provide for the Company's
contingent liabilities; and
(3) The balance, if any, to the members, in proportion to the members'
respective positive balances in their Capital Accounts, after giving
effect to all contributions, distributions and allocations and
adjustments for the Company's taxable year during which the
liquidation occurs. Notwithstanding anything to the contrary contained
herein, no member shall have an obligation to restore a negative
balance in its Capital Account (or a Deficit Capital Account) upon
winding up and dissolution of the Company.
C. Valuation of Distributable Assets. Assets may be distributed to
members either in cash or in kind, as determined by the Board, with
any assets distributed in kind being valued for this purpose at the
fair market value at the date of dissolution as determined by the
Board. In the event of the Company's dissolution, the Board may
request an independent appraisal of the fair market value of the
Company's assets. If such assets are distributed in kind, such assets
shall be deemed to have been sold as of the date of dissolution for
their fair market value, and the Capital Accounts shall be adjusted
pursuant to this Agreement to reflect such deemed sale.
D. Termination; Compliance with Laws. Upon completion of the winding up,
liquidation and distribution of the assets and the filing of the
Certificate of Cancellation with the State of Delaware, the Company
shall be deemed terminated. The Board shall comply with any applicable
requirements of applicable law pertaining to the winding up of the
Company's affairs and the final distribution of its assets.
SECTION 3. Certificate of Cancellation. When all debts, liabilities
and obligations have been paid and discharged or adequate provisions have been
made therefor and all the remaining property and assets have been distributed to
the members, a Certificate of Cancellation shall be executed in duplicate and
verified by the person signing the Certificate, which Certificate shall set
forth the information required by applicable law. Upon filing the Certificate of
Cancellation with the State of Delaware, the Company shall cease to exist,
except for the purpose of suits, other proceedings and appropriate actions
pursuant to applicable law. The Board shall have authority to distribute any
Company property discovered after filing of the Certificate of Cancellation with
the State of Delaware, convey real estate and take such other action as may be
necessary on behalf of and in the name of the Company.
SECTION 4. Return of Contribution Nonrecourse to Other Members. Except
as provided by law, upon dissolution, each member shall look solely to the
assets of the Company for the return of the member's capital contribution. If
the Company property remaining after the payment or discharge of the Company's
debts and liabilities is insufficient to return the cash contribution of one or
more members, such member or members shall have no recourse against any other
member or the Board.
ARTICLE XII - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be
given to any Company member or officer under the provisions of this Agreement or
pursuant to the Company's Certificate of Formation, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE XIII - TAX MATTERS
The members of the Company and the Company intend that the Company be
treated as a partnership for all income tax purposes and will file all necessary
and appropriate forms in furtherance of that position. The Board shall cause the
preparation and timely filing of all tax returns required to be filed pursuant
to the Code and all other tax returns deemed necessary in each jurisdiction in
which the Company does business. Copies of such returns (including K-1 Forms or
their equivalent), or pertinent information therefrom, shall be furnished to the
members by March 15 each year after the end of the Company's Fiscal Year. All
elections permitted to be made by the Company under the federal or state laws
shall be made by the Board in the Board's sole discretion. The Board shall
report the members' shares of net profits, net losses, income, expense,
deduction and credit for federal income tax purposes in accordance with the
terms of this Agreement.
A. Tax Matters Member. As soon as reasonably practicable after formation
of the Company, the Board shall designate a member by two-thirds vote
(and subject to that member's approval) as Tax Matters Member (as
defined in Code Section 6231(a)(7)) on behalf of the Company. The Tax
Matters Member shall take such action as may be necessary to cause
each other member to become a "notice Member" within the meaning of
Section 6223 of the Code. The Tax Matters Member shall inform each
other member of all significant matters that may come to its attention
in its capacity as Tax Matters Member by giving notice thereof on or
before the fifth (5th) business day after becoming aware thereof and,
within that time, shall forward to each other member copies of all
significant written communications it may receive in that capacity.
The Tax Matters Member may take any action contemplated by Sections
6222 through 6232 of the Code (inclusive); provided, however, that the
Tax Matters Members shall not, without prior approval of the Board,
(i) extend the statute of limitations on any income tax return of the
Company; (ii) settle any income tax controversy; (iii) file a petition
in the United States Tax Court; or (iv) file a claim for refund. Any
reasonable cost incurred by the Tax Matters Member in connection with
performing his or her duties as Tax Matters Member, including
retaining accountants and attorneys, shall be as reimbursed expenses
of the Company. The Tax Matters Member shall not take any action on
behalf of the Company without prior approval of the Board. The Tax
Matters Member shall provide all information received in his or her
capacity to the Board.
B. Tax Status. The tax status of the Company shall not be changed without
unanimous consent of the members.
C. Tax Return Elections. The Company shall make the following elections
on the appropriate tax returns:
(i) to adopt the calendar year as the Company's
Fiscal Year;
(ii) to adopt the accrual method of accounting and to
keep the Company's books and records accordingly;
(iii) if a distribution of Company property as
described in Section 734 of the Code occurs or if a
transfer of a Company Interest as described in
Section 743 of the Code occurs, on request by notice
from any member, if the Board so approves, to elect
pursuant to Section 754 of the Code, to adjust the
basis of Company properties;
(iv) the Company shall make the election under Code
Section 709 to amortize organizational expenses over
60 months. The Pre-formation Expenses shall be
amortized in accordance with Code Section 709 and the
amortization expense shall be allocated to the
members in the ratio of the total Pre-formation
Expenses incurred by each; and
(v) any other election the Tax Matters Member may
deem appropriate and in the best interests of the
members.
D. Code Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Company property pursuant to Code Section
734(b) or Code Section 743(b) is required pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) to be taken
into account in determining Capital Accounts as the result of a
distribution to a member in complete liquidation of its Interest, the
amount of such adjustment to Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or
loss (if the adjustment decreases such basis) and such gain or loss
shall be allocated to the members in accordance with their interests
in the Company in the event Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the member to whom such
distribution was made in the event Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
ARTICLE XIV - PUBLICITY
No member shall issue publicity of any kind relating to this Agreement
or the Projects without the Board's prior written approval, which approval shall
not be unreasonably withheld. Each member shall inform the Board of any response
made to any inquiry from the news media concerning the Agreement or the
Projects. In addition, no member shall publish or release any technical paper,
article, publication, or announcement in connection with this Agreement or the
Projects, during or after the term of this Agreement, without the Board's prior
written approval, which approval shall not be unreasonably withheld. The Board
shall promptly establish a generally-applicable publicity policy.
ARTICLE XV - DISPUTE RESOLUTION
Section 1. Negotiation. In the event of any dispute between a member
and the Company regarding this Agreement, the member and the Company
(hereinafter the Parties) first shall attempt to resolve the dispute through
good faith negotiation.
Section 2. Arbitration. In the event of a dispute that is not
resolvable through such negotiation, the Parties shall promptly submit the
dispute to binding arbitration in accordance with the Rules of the American
Arbitration Association.
A. Commencement. Any Party may commence an arbitration by serving a
written request for arbitration on the other Party by at least one
method reasonably calculated to provide the other Party with actual
notice of the request. The request shall include all matters required
for a request for arbitration under the Rules of the American
Arbitration Association. The Party upon whom the request for
arbitration is served shall submit to arbitration as requested. Any
Party which shall refuse to submit to arbitration shall be liable to
the requesting Party for any award and judgment resulting from such
arbitration, together with all expenses, including reasonable
attorneys' fees and court costs, incurred by the requesting Party to
enforce or collect the arbitration award, and all expenses, including
reasonable attorneys' fees and court costs, incurred by the requesting
Party to defend any effort by the refusing Party to submit the dispute
to any forum, including any court, not designated by this Agreement.
B. Procedures. The arbitration shall be conducted in Washington, D.C., in
the English language. The proceeding shall be conducted in such a
manner as to be completed within one (1) year of the appointment of
the arbitrator. For purposes of this Article, "arbitrator" shall also
mean "arbitrators" if the Parties appoint multiple arbitrators. The
arbitrator may render partial or prehearing awards and orders. The
Parties shall exchange all documents in their respective possession
relating to the subject matter of the dispute. Each Party to the
dispute may conduct a total of two depositions of employees, officers
or agents of the other Party, at a time and place convenient to the
person to be deposed. The arbitrator may enter sanctions for, or
attach weight to, a Party's failure to disclose.
C. Technical Matters. If for any particular arbitration proceeding the
substantial portion of the matters to be arbitrated involve technical,
engineering or scientific expertise, the Parties shall endeavor to
select an arbitrator with previous relevant expertise.
D. Expenses and Costs. Each Party shall bear its own expenses and costs
of arbitration.
E. Judgment. Judgment upon the award may be entered in any court of
competent jurisdiction. Any Party seeking to enforce or collect an
award shall be entitled to payment by the Party against whom such
enforcement is sought of all expenses, including reasonable attorneys'
fees and court costs incurred in seeking to enforce or collect the
arbitration award.
F. No Limitation on Rights or Remedies. No part of this Article shall be
construed to limit any rights or remedies of a Party to bring any
action in any court of competent jurisdiction for injunctive or other
provisional relief necessary or appropriate to compel the other Party
to comply with the obligations of this Article. In addition, no part
of this Article shall be construed to limit any rights or remedies of
a Party, at its sole discretion, to bring instead of or in addition to
any arbitration under this Article, any action in any court of
competent jurisdiction for injunctive or other provisional relief
necessary or appropriate to protect its trademarks, trade names,
service marks, patents, trade secrets, confidential information or
other intellectual property.
ARTICLE XVI - Reports AND Records
SECTION 1. Books and Records; Inspection Rights. Books, records and
accounts will be maintained by the Company showing its assets, liabilities,
operations, transactions and financial condition in accordance with generally
accepted accounting principles ("GAAP"). The Company's books, budgets, analyses
(including allocation and distribution methodologies and calculations, records
(including invoices, canceled checks and other documents needed to justify costs
and expenditures) and reports, a copy of the Certificate of Formation and any
amendments thereto or restatements thereof, executed copies of any powers of
attorney pursuant to which any document has been executed, a copy of this
Agreement and any amendments thereto, and all notices related to the appointment
and removal of Managers will be maintained at the business office of the Company
(or at such other place as the Board may specify) and each member (and the
designated representatives of any member) will, at all reasonable times, during
regular business hours, and upon reasonable notice, have the right to inspect
and copy the same.
SECTION 2. Financial Reports. Within twenty (20) days following the
close of each quarter and ninety (90) days after the close of each Fiscal Year
of the Company, the Board will cause to be prepared (at the Company's expense)
and furnished to each person who was a member during the fiscal period then
ended, an income statement, balance sheet, statement of cash flows and such
other information as may be reasonably requested by a member. The Board will
cause to be prepared annual audited financial statements (at the Company's
expense) by a nationally or regionally recognized accounting firm and furnish
such financial statements to each member during the fiscal period then ended
within ninety (90) days from the end of the Fiscal Year.
SECTION 3. Audit Request by Members. Any member(s) may request the
Board to form a committee to conduct an audit of any of the activities of the
Company, including, an audit of the Company's financial statements, the
Company's risk management practices, and contracts executed by the Company. The
Board shall promptly consider such request, and shall promptly inform the
requesting member(s) of the Board's decision and the reasons for its decision
with respect to such request.
SECTION 4. Annual Business Plan and Operating Budget. The Board shall
adopt by two-thirds vote a business plan and annual operating budget for the
Company (or an updates to the plan or budget) which plan and budget shall be
presented to the Board for approval prior to the start of each Fiscal Year and
which the Board shall seek to adopt prior to the start of each Fiscal Year.
ARTICLE XVII - MISCELLANEOUS PROVISIONS
SECTION 1. Amendment. Any amendment to this Agreement must be in writing,
executed by all of the
members.
SECTION 2. Pre-Organization Costs. The Board shall pay all costs
associated with formation of the Company as soon as reasonably practicable upon
formation.
SECTION 3. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the members and their
respective heirs, executors, administrators, successors and assigns, subject to
the restrictions on assignment in this Agreement.
SECTION 4. Severability. In the event that any provision of this
Agreement is declared by a court of competent jurisdiction to be void or
unenforceable, the remainder of this Agreement shall not be affected thereby and
shall remain in full force and effect to the extent feasible in the absence of
the void and unenforceable provision. The members furthermore agree to execute
and deliver such amendatory provisions to this Agreement to accomplish as nearly
as possible the goals and purposes of the provision so held to be void or
unenforceable.
SECTION 5. Law Applied. This Agreement shall be governed under the laws
of the State of Delaware, without giving effect to the State of Delaware's
conflicts of law principles.
SECTION 6. Entire Agreement. There are no other agreements or
understandings, either oral or in writing, pertaining to the subject matter of
this Agreement. This Agreement supersedes all previous agreements among the
members relating to the subject matters of this Agreement.
SECTION 7. No Third-Party Beneficiaries. No third-party beneficiaries
are intended by this Agreement.
SECTION 8. Loans. If a member loans money to the Company, such loans
shall be on terms and subject to conditions, that are, in the judgment of the
Board, fair and reasonable to the Company.
SECTION 9. Intellectual Property. Unless otherwise decided by the
Company, intellectual property created by the Company or acquired thereby shall
be owned by the Company, not by members or any third parties. Notwithstanding
the foregoing, the Company hereby grants each of the members, for as long as
such member is a member of the Company, at no additional cost, a nonexclusive,
nonassignable, nontransferable license to use any such intellectual property
owned by the Company.
SECTION 10. Confidentiality. Unless otherwise decided by the Company,
confidential Company information given to members that is marked with the legend
"CONFIDENTIAL" or any other legend indicating the confidentiality of such
information shall be held confidential by such members. Confidential Company
information shall not be deemed to include any: (i) information in the public
domain through no fault or breach of this Agreement or other confidentiality
obligations by any member; (ii) information previously and lawfully known by a
member prior to disclosure by Company; (iii) information rightfully learned from
a third party not under restriction of disclosure; (iv) information
independently developed by a member without access to, or use of, Company's
confidential information; (v) information approved in writing by the Company for
disclosure by the member(s), provided such approval is given prior to any
disclosure; (vi) information required to be disclosed by any judicial,
administrative, or similar body before whom a member(s) seeks to enforce its
rights under this Agreement (subject to any restrictions agreed to by such
member and the Company, or any restrictions sought by the Company and imposed by
the authority before whom the matter is pending); or (vii) is required to be
disclosed by law or by the order of any judicial, administrative, or similar
body with enforcement powers; provided, however, that the member shall make
reasonable efforts to notify the Company of this requirement as soon as
practicable, and shall cooperate reasonably with the Company, at the Company's
expense, in challenging the disclosure, including, if requested, the obtaining
of a protective or similar order with respect thereto. If disclosure is required
under (vii) above, the member will provide only that portion of Company's
confidential information which it is advised by the member is legally required
to be disclosed and will exercise all reasonable efforts to obtain a reliable
assurance that the Company's confidential information will be treated as
strictly confidential by any recipient of it.
SECTION 11. Insurance. The Company shall acquire general liability
insurance and directors and officers insurance as soon as reasonably practicable
after formation of the Company, and acquire such other insurance as may be
appropriate to the operations of the Company.
SECTION 12. Environmental Assessments. Before the Company takes title
to any real property or any interest therein, the Board shall consider if there
are any actual or potential environmental or other liabilities with respect to
such real property, perform or engage a third party to perform a chain of title
search, and consider the need for an environmental assessment regarding such
real property.
SECTION 13. Related Party Transactions. The Board may, on behalf and at
the expense of the Company, engage themselves, any Manager or member, or any
firm in which a member or Manager has an interest, to render services to the
Company on such terms as the Board determines to be reasonable and appropriate.
Any such interest will be disclosed by the member which holds such interest (or
the Manager who holds such interest) to the other members or Managers prior to
the authorization of such transaction by the Company. Compensation payable to a
member or its affiliates will be treated as a Code Section 707(a) or 707(c)
payment, as the case may be, and will be treated as an operating expense of the
Company and will not be treated as cash available for distribution. The Board
may elect to reimburse any member or manager, and their respective affiliates,
for any and all reasonable out-of-pocket costs and expenses incurred by them in
connection with the activities and operations of the Company. The Company will
not hire or pay any compensation to any family member of any individual
affiliate of a member without the consent of all of the members. If and to the
extent members render services to the Company pursuant to this Article XVII,
Section 8, the terms and conditions applicable to such services, and the
compensation therefor, will be set forth in a written contract between the
Company and the service provider, which contract will be subject to approval of
the Board in accordance with the procedures herein set forth, including the
provisions of this Article XVII, Section 13.
SECTION 14. Filings. The members hereby appoint Delaware Corporate
Services Inc., a Delaware corporation ("DCS") as the initial registered agent of
the Company in Delaware and hereby designate DCS's offices in Delaware as the
Company's initial registered office within the State of Delaware. At any time
after the formation of the Company, the members may change the registered agent
and office of the Company in Delaware. DCS is hereby further appointed to be an
"authorized person" within the meaning of the Act, and is hereby authorized and
instructed to execute and file the Company's original Certificate of Formation
of the Company with the State of Delaware pursuant to Section 18-201(a) of the
Act. Following the filing of the Certificate of Formation, the Secretary shall
be an "authorized person" within the meaning of the Act, and shall prepare any
documents required to be filed and recorded under the Act, and the Secretary
shall promptly cause each such document required to be filed and recorded in
accordance with the Act and, to the extent required by local law, to be filed
and recorded or notice thereof to be published in the appropriate place in each
jurisdiction in which the Company may hereafter establish a place of business.
The Secretary shall also promptly cause to be filed, recorded and published such
statements of fictitious business name and any other notices, certificates,
statements or other instruments required by any provision of any applicable law
of the United States or any state or other jurisdiction which governs the
conduct of its business from time to time.
SECTION 15. Further Assurances. Each member agrees to perform all
further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
IN WITNESS OF WHICH THE UNDERSIGNED HAVE DULY EXECUTED THIS AGREEMENT:
Ameren Corporation:
By:____________________________
Its:____________________________
Date:__________________________
American Electric Power Company, Inc.:
By:____________________________
Its:____________________________
Date:__________________________
Cinergy:
By:____________________________
Its:____________________________
Date:__________________________
Detroit Edison Company:
By:____________________________
Its:____________________________
Date:__________________________
Diversified Lands LLC:
By:____________________________
Its:____________________________
Date:__________________________
Duke Energy:
By:____________________________
Its:____________________________
Date:__________________________
Entergy Arkansas, Inc.:
By:____________________________
Its:____________________________
Date:__________________________
Exelon Generation Company LLC:
By:____________________________
Its:____________________________
Date:__________________________
First Energy Corp:
By:____________________________
Its:____________________________
Date:__________________________
Great Plains Energy Incorporated:
By:____________________________
Its:____________________________
Date:__________________________
Minnesota Power:
By:____________________________
Its:____________________________
Date:__________________________
Oglethorpe Power Corporation:
By:____________________________
Its:____________________________
Date:__________________________
Oklahoma Gas & Electric:
By:____________________________
Its:____________________________
Date:__________________________
Peabody Energy:
By:____________________________
Its:____________________________
Date:__________________________
Conectiv Energy Holding Company:
By:____________________________
Its:____________________________
Date:__________________________
Arizona Public Service Company:
By:____________________________
Its:____________________________
Date:__________________________
Progress Energy, Inc.:
By:____________________________
Its:____________________________
Date:__________________________
PSEG:
By:____________________________
Its:____________________________
Date:__________________________
PNM Resources, Inc.:
By:____________________________
Its:____________________________
Date:__________________________
Reliant Energy:
By:____________________________
Its:____________________________
Date:__________________________
Tennessee Valley Authority:
By:____________________________
Its:____________________________
Date:__________________________
TXU Generation Company LLP:
By:____________________________
Its:____________________________
Date:__________________________
Virginia Electric & Power Company:
By:____________________________
Its:____________________________
Date:__________________________
We Energies:
By:____________________________
Its:____________________________
Date:__________________________
Wisconsin Public Service Corporation:
By:____________________________
Its:____________________________
Date:__________________________
Xcel Energy:
By:____________________________
Its:____________________________
Date:__________________________
SCHEDULE B
NAMES AND ADDRESSES OF POWERTREE CARBON COMPANY, LLC MEMBERS
Note: This Schedule is to be complete by the Board of the Company after Company
Formation upon receipt of applicable information from each member.
