Exhibit 3
AES Ironwood, L.L.C.
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(this "Agreement") is made and entered into as of October 4, 1999 by AES
Ironwood, Inc. ("AES") pursuant to and in accordance with the Limited Liability
Company Act of 1992 of the State of Delaware and any successor statute (the
"Act").
WHEREAS, AES Ironwood, L.L.C. (the "Company") was formed by
AES as its sole Initial Shareholder by the filing of a Certificate of Formation
on October 30, 1998, and the execution of the AES Ironwood, L.L.C. Limited
Liability Company Agreement on November 1, 1998, (the "Original Agreement"); and
WHEREAS, AES, the sole Shareholder of the Company, desires to
amend the Original Agreement;
NOW, THEREFORE, AES does hereby certify and agree as follows:
ARTICLE I
ORGANIZATION
Section 1.1 Formation. The Company has been formed as a
Delaware limited liability company by the filing of a certificate of formation
(the "Certificate") under and pursuant to Section 18-201 of the Act and the
filing of a copy of the Certificate in the Office of the Secretary of State of
the State of Delaware.
Section 1.2 Name. The name of the Company is AES Ironwood,
L.L.C., or such other name as the Members (as defined herein) may determine from
time to time and all Company business shall be conducted in such name or such
other names that comply with applicable law and as the Members may designate
from time to time.
Section 1.3 Registered Office; Registered Agent; Principal
Office. The registered office of the Company in the State of Delaware shall be
0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, Xxxxxxxx 00000, or at such other
location as the Officers may from time to time agree. The registered agent at
such address for service of process on the Company in the State of Delaware
shall be The Corporation Service Company, or such other person or persons as the
Officers may designate from time to time in the manner provided by law.
Section 1.4 Purpose. The purpose of the Company is to engage
in any business or activity that now or hereafter is not forbidden by Section
18-106 of the Act and which it may lawfully undertake under the law of any
jurisdiction in which the Company engages in its business.
Section 1.5 Term. The term of the Company shall commence on
the date of filing of the Certificate in the Office of the Secretary of State of
the State of Delaware and shall continue until terminated in accordance with the
terms hereof.
ARTICLE II
MEMBERS; OWNERSHIP; DISPOSITION OF INTERESTS
Section 2.1 Members. The Members of the Company shall be those
persons or entities listed on Schedule 1 hereto (each, a "Member" and, jointly,
the "Members"), all of which are hereby admitted to the Company.
Section 2.2 Title to Company Property. All property owned by
the Company, whether real or personal, tangible or intangible, and wherever
located, shall be deemed to be owned by the Company as an entity, and no Member,
individually, shall have any ownership of such property. The Company may hold
its property in its own name or in the name of a nominee, which may be one of
the Members or an affiliate thereof, or any trustee or agent designated by the
Members.
Section 2.3 Disposition of Interests.
(a) No interest in the Company of any Member (a "Membership
Interest") may be disposed of, in whole or in
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part, without the prior written consent of all the Members, which consent may be
granted or withheld by each such member in its sole and absolute discretion.
(b) The person to which a Member's Membership Interest is
sold, assigned, transferred or exchanged shall have no right to be admitted as a
Member of the Company unless (i) the Membership Interest is sold, assigned,
transferred or exchanged by a Member who was properly admitted as such pursuant
to the terms hereof, (ii) each Member effecting the sale, assignment, transfer
or exchange and the person to whom the Membership Interest is sold, assigned,
transferred or exchanged executes and delivers a document to the other Members
containing a representation and warranty by each Member effecting such sale,
assignment, transfer or exchange and the person to which such Membership
Interest is sold, assigned, transferred or exchanged to the effect that such
sale, assignment, transfer or exchange was made in accordance with all laws and
regulations, including securities laws, applicable to such Member or person, as
appropriate and (iii) all of the requirements of Section 2.3(c) are satisfied
with respect to such admission.
(c) A person to whom a Membership Interest is sold, assigned,
transferred or exchanged shall be admitted as a Member of the Company if (i) the
existing Members consent (which consent may be granted or withheld by each such
member in its sole and absolute discretion) to such admission, and (ii) the
Company receives a document setting forth (A) the notice and payment address and
facsimile number of the person to be admitted to the Company as a Member, (B)
the written acceptance by such person of all the terms and provisions of this
Agreement, (C) an agreement by such person to perform and discharge timely all
of the obligations and liabilities in respect of the Membership Interest being
obtained, (D) a power of attorney in the form of Section 8.1 hereof executed by
such person and (E) the effective date of the sale, assignment, transfer or
exchange.
Section 2.4 Additional Members. Additional persons may be
admitted as Members in the Company, without the sale, assignment, transfer or
exchange by an existing Member of all or any part of its Membership Interest,
only with the consent
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of all of the existing Members and upon the making of such capital contribution,
if any, as the existing Members shall require from such person. In such event,
the percentages of the existing and additional Members shall be adjusted pro
rata or assigned, as the case may be, to reflect the capital contribution, if
any, of such additional Member. If the additional Member makes no capital
contribution, the existing Members shall assign a percentage to the additional
Member and the percentages of the existing Members shall be adjusted
accordingly.
Section 2.5 Form of Certificates. Each Member shall receive a
certificate in such form as prescribed by the Directors ("Director" defined as a
member of the Board elected as provided in Section 4.2.) and by any applicable
law, which certificate shall certify the interest of such Member in the Company.
Section 2.6 Membership Interests as Securities. All Membership
Interests in the Company shall be "securities" 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) whose laws may be
applicable, from time to time, to the issues of perfection, the effect of
perfection or non-perfection, and the priority of a security interest in
Membership Interests in the Company
Section 2.7 Liability to Third Parties. The debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise,
shall always and hereafter be solely the debts, obligations, and liabilities of
the Company and no Member shall have any personal liability for any obligation
of the Company, whether such obligations arise in contract, tort or otherwise,
except to the extent that any such obligations are expressly assumed in writing
by such Member.
Section 2.8 Resignation. A Member does not have the right or
power to resign or withdraw from the Company as a Member unless an additional
member or members have been
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properly admitted in accordance with Section 2.3(c) or Section 2.4.
ARTICLE III
CAPITALIZATION, ALLOCATIONS AND DISTRIBUTIONS
Section 3.1 Percentage Interests. For all purposes of this
Agreement, the term Percentage Interest with respect to a particular Member
shall mean that percentage interest set forth on Schedule 1 opposite such
Member's name.
Section 3.2 Capital Contributions.
(a) Each Member has made an initial capital contribution to
the Company in the aggregate amount set forth opposite such Member's name on
Schedule 1 hereto. Except as required by law, no Member shall have an obligation
to make additional capital contributions to the Company.
(b) Except as may be required by law, at no time during the
term of the Company shall a Member with a negative balance in its Capital
Account (as defined herein) have any obligation to the Company or to the other
Members to restore such negative balance.
Section 3.3 Capital Accounts. Each Member's capital account
("Capital Account") shall be maintained on the books of the Company for each
Member and the balance of each Member's Capital Account shall be equal to such
Member's initial capital contribution pursuant to Section 3.2 above, and shall
be (i) increased by (A) the aggregate amount of such Member's additional capital
contributions to the Company, (B) the book value of property contributed by such
Member to the Company, net of liabilities secured by such property that the
Company is considered to assume or take subject to under Section 752 of the
Code, and (C) profits and items of income and gain allocated to such Member, and
(ii) shall be decreased by (A) cash distributions to such Member from the
Company, (B) the book value of property distributed in kind to such Member, net
of liabilities secured by such property that such Member is deemed to assume or
take subject to under Code Section 752, and (C) losses and items of loss or
deduction allocated to such Member. The provisions of this Agreement relating to
the
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maintenance of Capital Accounts are intended to comply with Section 1.704-1(b)
of Treasury Regulations pursuant to the Code and shall be interpreted and
applied in a manner consistent with such regulation. To the extent such
provisions are inconsistent with such regulations or are incomplete with respect
thereto, the Capital Accounts of the Member shall be maintained in accordance
with such regulations.
Section 3.4 Allocations and Distributions.
(a) Profits and losses of the Company for each fiscal year
shall be allocated pro rata to the Members according to the Percentage
Interests.
(b) Every item of income, gain, loss, deduction, credit or tax
preference entering into the computation of profits and losses, or applicable to
the period during which such profits or losses were recognized, shall be
considered allocated to each Member in the same proportion as profits or losses
are allocated to such Members.
(c) Distributions to the Members shall be shared pro rata
according to the Percentage Interests. Distributions may be made from time to
time in such amounts as the Directors in their discretion shall determine.
Immediately prior to a distribution of property other than cash, the Capital
Accounts shall be adjusted as provided in Treasury Regulation ss.
1.704-1(b)(2)(iv)(f).
(d) To the extent an adjustment to the adjusted tax basis of
any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is
required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be
taken into account in determining Capital Accounts, the amount of such
adjustment to the 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 specially allocated to the
Members in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m).
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(e) The allocation of profits and losses, pursuant to Section
3.4 hereof shall not result in any Member having an Adjusted Capital Account
Deficit at the end of any fiscal year. In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Company gross income and gain shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the Adjusted
Capital Account Deficit of such Member as quickly as possible, provided that an
allocation pursuant to this Section 3.4(e) shall be made only if and to the
extent that such Member would have an Adjusted Capital Account Deficit after
making all other allocations provided for hereunder on the basis that the
allocation provisions of this Section 3.4(e) are of no force or effect and such
allocation does not create or increase an Adjusted Capital Account Deficit of
any other Member.
(f) If a Membership Interest has been transferred during a
fiscal year, distributions shall be made, as among the transferor and the
transferee, to the person owning the Member's Membership Interest on the date of
the distribution. Profits, losses and items allocated under this Section 3.4
(other than income or loss from a capital event) shall be allocated by the
number of days each person held the Membership Interest (except if the
transferor and the transferee agree to the contrary and so advise the other
Members in writing within 10 days after the end of the Fiscal Year in which the
assignment occurs) and profits or losses from any capital event shall be
allocated to the holder of the Membership Interest on the day the capital event
occurred during such fiscal year.
(g) In connection with any distribution, whether upon winding
up of the Company or otherwise and whether or not it shall constitute a return
of capital, no Member shall have the right to demand or receive property other
than cash, although the liquidator may distribute property other than cash. No
Member shall have priority over any other Member either as to the return of its
capital contribution or as to allocation of profits or losses of the Company.
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(h) If any Company property has a book value different from
its adjusted tax basis to the Company for U.S. federal income tax purposes
(whether by reason of the contribution of such property to the Company, the
revaluation of such property hereunder, or otherwise), allocations of taxable
income, gain, loss and deductions under this Section 3.4(h) with respect to such
asset shall take account of any variation between the adjusted tax basis of such
asset for federal income tax purposes and its book value in the same manner as
under Code Section 704(c) or the principle set forth in Treasury Regulation
Section 1.704-1(b)(2)(iv)(g), as the case may be. Each item of income, gain,
loss, deduction and credit and all other items governed by Code Section 702(a)
shall be allocated among the Members in proportion to the allocation of profits,
losses and other items to such Members hereunder, provided that any gain
recognized from any disposition of a Company asset which is treated as ordinary
income because it is attributable to the recapture of any depreciation or
amortization shall be allocated among the Members in the same ratio as the prior
allocations of profits, losses or other items which include such depreciation or
amortization, but not in excess of the gain otherwise allocable to each such
Member. Except as set forth in this Section 3.4(h), allocations for tax purpose
of items of income, gain, loss and deduction, and credits and basis therefor,
shall be made in the same manner as allocations for book purposes as set forth
in Section 3.4(a). Allocations pursuant to this Section 3.4(h) are solely for
purposes of federal, state and local income taxes and shall not affect, or in
any way be taken into account in computing, any Member's Capital Account or
share of profits, losses, other items or distributions pursuant to any provision
of this Agreement, or Membership Interest.
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ARTICLE IV
MANAGEMENT AND OPERATION
ARTICLE IV
MANAGEMENT
4.1. Management of Company. As provided in this Agreement, all
management powers over the business and affairs of the Company shall be vested
in a Board of Directors (the "Board") and, subject to the direction of the
Board, the Officers, who shall collectively constitute "managers" of the Company
within the meaning of the Act. No Member, by virtue of having the status of a
Member, shall solely have any management power over the business and affairs of
the Company or actual or apparent authority to enter into contracts on behalf
of, or to otherwise bind, the Company. Except as specifically provided in this
Agreement, the authority and functions of the Board on the one hand and of the
Officers on the other shall be identical to the authority and functions of the
board of directors and officers, respectively, of a corporation organized under
the Delaware General Corporation Law. Thus, except as otherwise specifically
provided in this Agreement, the business and affairs of the Company shall be
managed under the direction of the Board, and the day-to-day activities of the
Company shall be conducted on the Company's behalf by the Officers, who shall be
agents of the Company. In addition to the powers that now or hereafter can be
granted to managers under the Act and to all other powers granted under any
other provision of this Agreement, the Board (subject to Section 4.2) and the
Officers (subject to Section 4.4 and the direction of the Board) shall have full
power and authority to do all legal things on such terms as they, in their sole
discretion, may deem necessary or appropriate to conduct, or cause to be
conducted, the business and affairs of the Company
4.2 The Board of Directors.
(a) Number; Term of Office; Qualifications; Vacancies. The
number of Directors that shall constitute the whole Board shall be three (3).
Vacancies and newly created directorships resulting from any increase in the
authorized
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number of directors may be filled by a majority of the Directors then in office,
although less than a quorum, or by the sole remaining Director, and the
Directors so chosen shall hold office, subject to Sections 4.2(c) and 4.2(d),
until the next meeting of Members and until their respective successors are
elected and qualified.
(b) Directors. The initial Board shall be those persons listed
on Schedule 2 hereto, who shall serve until successor Directors are elected
pursuant to Section 4.2(a).
(c) Resignation. Any Director may resign at any time by giving
written notice of such resignation to the Board or the President or the
Secretary of the Company. Any such resignation shall take effect at the time
specified therein or, if no time is specified, upon receipt thereof by the Board
or one of the above-named Officers; and, unless specified therein, the
acceptance of such resignation shall not be necessary to make it effective. When
one or more Directors shall resign from the Board, effective at a future date, a
majority of the Directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereof to take
effect when such resignation or resignations shall become effective and each
Director so chosen shall hold office as provided in this Agreement in the
filling of other vacancies.
(d) Removal. Any Director may be removed, with or without
cause, by the vote or by the written consent of the holders of a majority of the
issued and outstanding Membership Interests.
(e) Regular Meetings; Notice. Regular meetings of the Board
shall be held at such time and at such place as the Board may from time to time
prescribe. No notice need be given of any regular meeting and a notice, if
given, need not specify the purposes thereof.
(f) Special Meetings; Notice. A special meeting of the Board
may be called at any time by the President or any person acting in the place of
the President and shall be called by the President or by the Secretary upon
receipt of a written request to do so specifying the matter or matters
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appropriate for action at such a meeting that are proposed to be presented at
the meeting and signed by at least two Directors. Any such meeting shall be held
at such time and at such place, within or without the State of Delaware, as
shall be determined by the body or person calling such meeting. Notice of such
meeting stating the date, time and place thereof shall be given by mail,
telephone or personally.
(g) Quorum. A majority of the whole Board shall constitute a
quorum for the transaction of business, but in the absence of a quorum, a
majority of those present (or if only one be present, then that one) may adjourn
the meeting, without notice other than announcing the meeting, until such time
as a quorum is present. Except as otherwise required by this Agreement, the vote
of the majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board.
(h) Informal Action By Directors. Any action required or
permitted to be taken at a meeting of the Board or of any committee thereof may
be taken without a meeting if a consent in writing setting forth the action so
taken shall be signed by all of the members of the Board or of such committee,
as the case may be, entitled to vote with respect to the subject matter thereof,
and such consent shall have the same force and effect as a unanimous vote.
(i) Indemnification of Directors and Officers. The Company
shall indemnify to the full extent permitted by the laws of the State of
Delaware, as from time to time in effect, the Directors and Officers of the
Company.
(j) Limitation of Liability. The debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and no
Officer or Director shall be obligated personally for any such debt, obligation
or liability of the Company solely by reason of being an Officer or Director of
the Company.
4.3 Meetings of Members.
(a) Special Meetings. A special meeting of Members may be
called by the Board or the President or holders of not
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less than one-tenth (1/10) of the Membership Interests entitled to vote at the
meeting. Any such meeting shall be held on such date and at such time and place
as shall be determined by the body or person calling such meeting and as shall
be stated in the notice of such meeting.
(b) Quorum. A majority of the holders of Membership Interests
present in person or represented by proxy at a meeting shall constitute a quorum
at a meeting of Members.
(c) Vote. The affirmative vote of the majority of the
Membership Interests represented at a meeting at which a quorum is present and
entitled to vote on the subject matter shall be the act of the Members.
(d) Informal Action by Members. Any action which may be taken
at a meeting of Members may be taken without a meeting if a consent in writing
setting forth the action so taken shall be signed by the Members having not less
than the minimum number of votes that would be necessary to take such action at
a meeting at which Members entitled to vote thereon were present and voted. Such
consent shall have the same force and effect as if such action had been taken at
a meeting of Members.
4.4 Officers.
(a) In General. Unless otherwise provided by resolution of the
Board, the Officers shall have the titles, powers, authority and duties
described below in this Section 4.4. Initial Officers shall be those persons
listed on Schedule 2 hereto, who shall serve until successor Officers are
elected Section 4.4(b).
(b) Election; Qualification. The Officers of the Company shall
be a President, a Vice President, a Secretary and a Treasurer, each of whom
shall be elected by the Board. The Board may elect one or more other Officers as
it may from time to time determine. Any one or more offices may be held by the
same person.
(c) Term of Office. Each Officer shall hold office from the
time of such Officer's election and qualification to
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the time at which such Officer's successor is elected and qualified, unless such
Officer shall die or resign or shall be removed pursuant to Section 4.4(d).
(d) Resignation. Any Officer may resign at any time by giving
written notice of such resignation to the Board or the President or the
Secretary of the Company. Any such resignation shall take effect at the time
specified therein or, if no time is specified, upon receipt thereof by the Board
or one of the above-named Officers; and, unless specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
(e) Removal. Any Officer may be removed at any time, with or
without cause, by the vote of a majority of the whole Board.
(f) Vacancies. A vacancy however caused in any office of the
Company may be filled for the unexpired portion of the term in the manner
provided in this Agreement for election or appointment of such office.
(g) President. The President shall be the chief executive
officer of the Company and shall have general charge of the business and affairs
of the Company subject however to the right of the Board to confer specified
powers on Officers and subject generally to the direction of the Board. The
President shall preside at all meetings of Members and of the Board.
(h) Vice President. The Vice President shall have such powers
and duties as generally pertain to the office of Vice President and as the Board
or the President may from time to time prescribe. During the absence of the
President or his inability to act, the Vice President shall exercise the powers
and shall perform the duties of the President, subject to the direction of the
Board.
(i) Secretary. The Secretary shall keep the minutes of all
meetings of Members and of the Board. The Secretary shall exercise the powers
and shall perform the duties incident to the office of Secretary, and those that
may otherwise from time to time be assigned to the Secretary, subject to the
direction of the Board.
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(j) Treasurer. The Treasurer shall have care of all funds and
securities of the Company and shall exercise the powers and shall perform the
duties incident to the office of Treasurer, subject to the direction of the
Board. The Board may delegate to the Treasurer the power to designate a bank or
banks as depositories for the funds of the Company and to designate signatories
for the Company's bank accounts, including authorization of the use of facsimile
signatures, and to change such signatories from time to time, and the Board may
authorize the Treasurer to delegate any of the Treasurer's powers to any other
Officer or agent of the Company.
(k) Powers of Attorney. The Company may xxxxx xxxxxx of
attorney or other authority as appropriate to establish and evidence the
authority of the Officers and other persons.
4.5. Duties of Officers and Directors. Except as otherwise
specifically provided in this Agreement, the duties and obligations owed to the
Company and to the Members by the Officers of the Company and by members of the
Board, and any such duties that may be owed by any Member or by any affiliate of
any Member, shall be the same as the respective duties and obligations owed to a
corporation organized under the Delaware General Corporation Law by its officers
and directors and any such duties that may be owed to such corporation by any
similarly situated stockholder or affiliate thereof, respectively.
ARTICLE V
TAXES
Section 5.1 Tax Returns.
(a) The Company shall file a partnership tax return in the
United States at the end of each fiscal year and for tax purposes it is the
intent of the Members that the Company be taxed as a partnership in the United
States for U.S. federal, state, and local tax purposes. The Company is hereby
designated to be the "Tax Matters Partner" for U.S. federal income tax purposes
pursuant to Section 6231 of the Code with
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respect to all taxable years of the Company. The Tax Matters Partner shall
prepare or cause to be prepared all tax returns required of the Company.
(b) The Tax Matters Partner shall, to the extent permitted by
applicable law and regulations, and upon obtaining any necessary approval of the
United States Commissioner of Internal Revenue, elect to use such methods of
depreciation, and make all other U.S. federal income tax elections in such
manner, as it determines to be most favorable to the Members. The Tax Matters
Partner shall at the Company's expense defend all tax audits and litigation with
respect to the Company's tax returns, and shall not undertake any act which
would cause the books, records, or tax returns of the Company or the Members to
be inconsistent with such acts, elections and steps taken by the Company.
(c) The Tax Matters Partner shall, upon the written request of
any Member, cause the Company to file an election under Code Section 754 and the
Treasury Regulations thereunder to adjust the basis of the Company's assets
under Code Section 734(b) or 743(b) and a corresponding election under the
applicable sections of U.S. state and local law.
ARTICLE VI
BOOKS AND REPORTS
Section 6.1 Books of Account. The Company shall maintain its
books and records and shall determine all items of profits and losses and
distributions on a cash basis in accordance with principles applicable in
determining taxable income or loss for federal income tax purposes for
partnerships and consistent with accounting methods used by the Company in
determining taxable income or loss for U.S. federal income tax purposes. The
Company shall also keep all other records necessary or convenient to record the
Company's business and affairs and sufficient to record the determination and
allocation of all profits, losses, distributions and other amounts as may be
provided for herein.
Section 6.2 Reports. As soon as practicable after the end of
each fiscal year, there shall be prepared and delivered to each Member a
financial statement for the Company
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consisting of the following: (i) income statements and balance sheets for such
fiscal year showing separately the computation of profits or losses and (ii) the
amount of the distributions to the Members and the effect of such distributions
on the balance sheet of the Company and the Capital Accounts of each Member, and
(iii) a report reviewed setting forth in sufficient detail all such information
and data with respect to the business transactions effected by or involving the
Company during such fiscal year as shall enable each Member to prepare all its
tax returns in accordance with all relevant laws, rules and regulations then
prevailing.
Section 6.3 Access to Books. The books and records of the
Company shall be available to each Member or its representatives for inspection
and audit upon reasonable notice during normal business hours at the principal
office of the Company. The Company shall cause the auditors to cooperate in such
inspection and audit and to provide any of their work papers requested in
connection therewith.
Section 6.4 Fiscal Year. The fiscal year of the Company shall
end on the 31st day of December of each year.
ARTICLE VII
DISSOLUTION, LIQUIDATION, AND TERMINATION
Section 7.1 Dissolution. The Company shall be dissolved and
its affairs shall be wound up upon the first to occur of any of the following:
(a) the written consent of all the Members; or
(b) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Section 7.2 Liquidation and Termination. On dissolution of the
Company, the Members shall appoint one or more persons as liquidators of the
Company. The liquidators shall forthwith commence the winding up of the
Company's business and the liquidation of its property. All proceeds from the
sale or disposition of the property of the Company
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shall, to the maximum extent permitted by law, be applied as follows:
(a) All of the Company's debts and liabilities shall be paid
and discharged in the order of priority provided by law; and
(b) The balance shall be distributed to the Members in
accordance with their relative respective positive Capital Account balances
until such balances, if any, are reduced to zero and then the balance shall be
distributed to each Member in accordance with their Percentage Interests.
The liquidator(s) may make distributions of the Company's
assets in kind. The choice of which, if any, Company assets are to be
distributed in kind shall be within the sole discretion of the liquidator(s) and
shall be binding upon all Members. Unless otherwise agreed by the Members,
distributions of property in kind shall be shared by all the Members in
accordance with their Percentage Interests. The costs of liquidation shall be
borne as a Company expense. Until final distribution, the liquidator(s) shall
continue to operate the Company properties with all the power and authority of
the Officers hereunder.
Section 7.3 No Restoration of Negative Capital Accounts.
Except as required under applicable laws of the State of Delaware, or in respect
of any negative balance resulting from a distribution in contravention of this
Agreement, at no time shall a Member with a negative balance in its Capital
Account have an obligation to restore such negative balance.
Section 7.4 Cancellation of Filings. Upon completion of the
distribution of Company assets as provided in Section 8.2 hereof, the Company is
terminated, and the Officers shall file a certificate of cancellation with the
Secretary of State of the State of Delaware and shall take such other actions as
may be necessary to terminate the Company.
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ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Power of Attorney. Each Member, by execution of
this Agreement or a counterpart hereof, irrevocably constitutes and appoints the
Officers, with full power of substitution, its agent and attorney-in-fact in its
name, place and stead to make, execute, swear to, verify, acknowledge, amend,
file, record, deliver and publish (a) any certificate of limited liability
company or amendments to any certificate of limited liability company required
to be filed on behalf of the Company pursuant to the Act, (b) a counterpart of
any amendment to this Agreement for the purpose of substituting as a Member an
assignee or assignees of a Member or for the purpose of admitting an additional
Member, (c) a counterpart of this Agreement for the purpose of filing or
recording such counterpart in any jurisdiction in which the Company may own
property or transact business, (d) all certificates and other instruments
necessary to qualify or continue the Company as a limited liability company in
the jurisdictions where the Company may own property or transact business, (e)
any other instrument which is now or which may hereafter be required by law to
be filed on behalf of the Company which does not increase the obligations of any
Member, and (f) any other certificates or instruments necessary, advisable or
appropriate to conduct the business and affairs of the Company which do not
increase the obligations of any Member. The power of attorney granted by this
Section 8.1 is irrevocable and shall survive the assignment or transfer by any
Member of all or any part of his interest in the Company and, being coupled with
an interest, shall survive the incapacity or other legal disability of each such
Member. Any person dealing with the Company may, without further inquiry,
conclusively presume and rely upon the fact that any certificate or instrument
described in this Section 8.1 and executed by such agent and attorney-in-fact is
authorized, valid and binding.
Section 8.2 Notices. Except as otherwise expressly provided in
this Agreement, all notices, demands, requests, or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be
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given either (a) in person, (b) by United States mail, certified or registered,
return receipt requested, postage prepaid, (c) by prepaid telegram, telex,
cable, telecopy, or similar means (with signed confirmed copy to follow by mail
in the same manner as prescribed by clause (b) above) or (d) by expedited
delivery service (charges prepaid) with proof of delivery to the following:
AES Ironwood, L.L.C.
0000 Xxxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxxx
Section 8.3 Amendment. This Agreement may be changed, modified
or amended only by an instrument in writing duly executed by all the Members.
Section 8.4 Partition. Each of the Members hereby irrevocably
waives, to the extent it may lawfully do so, any right that such Member may have
to maintain any action for partition with respect to the Company property.
Section 8.5 Entire Agreement; Waivers and Modifications.
(a) This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior and contemporaneous contracts, understandings, negotiations and
agreements with respect to the Company and the subject matter hereof, whether
oral or written.
(b) Any waiver or consent, express, implied or deemed, to or
of any breach or default by any person in the performance by that person of its
obligations with respect to the Company or any action inconsistent with this
Agreement is not a consent or waiver to or of any other breach or default in the
performance by that person of the same or any other obligations of that person
with respect to the Company or any other such action. Failure on the part of a
person to complain of any act of any person or to declare any person in default
with respect to the Company, irrespective of how long
19
that failure continues, does not constitute a waiver by that person of its
rights with respect to that person or its rights with respect to that default
until the applicable statute of limitations period has lapsed. All waivers and
consents hereunder shall be in writing and shall be delivered to the other
Member in the manner set forth in Section 8.2 A Member may grant or withhold any
waiver or consent in its absolute sole discretion.
Section 8.6 Severability. Every provision in this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this Agreement.
Section 8.7 Binding Effect; No Third-Party Beneficiaries.
Subject to the restrictions set forth in Section 2.3 herein, this Agreement is
binding on and inures to the benefit of the Members and their respective heirs,
legal representatives, successors and assigns. Nothing in this Agreement shall
provide any benefit to any third party or entitle any third party to any claim,
cause of action, remedy or right of any kind, it being the intent of the parties
that this Agreement shall not be construed as a third-party beneficiary
contract.
Section 8.8 Governing Law. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. If any
provision of this Agreement or the application thereof to any person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other persons or
circumstances is not affected thereby, and that provision shall be enforced to
the greatest extent permitted by law.
Section 8.9 Recourse Only to Member. The sole recourse of the
Company or any Member for performance of the obligations of a particular Member
hereunder shall be against such Member and its assets and not against any assets
or property of any present or future Member, officer, employee,
20
servant, executive, director, agent, authorized representative or affiliate of
such Member.
8.10 Multiple Counterparts. This Agreement may be executed in
multiple counterparts with the same effect as if all signing parties had signed
the same document. All
21
counterparts shall be construed together and constitute the same instrument.
IN WITNESS WHEREOF, the Member, intending to be legally bound,
has executed this Agreement as of the date first set forth above.
AES Ironwood, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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Schedule 1
Initial capital Percentage
Members contribution Interest
--------------------------------------------------------------------------------
AES Ironwood, Inc. $10.00 100%
23
Schedule 2
Name Title
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx Director
Vice President and Chief
Financial Officer
Xxxx X. Xxxxxxxxxx Director
President
Xxxxx X. Xxxxx Director
Xxxxxxxx X. Xxxxxx Vice President
Xxxx Xxxxx Vice President
Xxxxxxx X. Xxxx Vice President
Xxxxxxx Xxxxxx Vice President
Xxx Xxxxxx Vice President
Xxxxx X. Xxxxxxx Vice President
Xxxxxxx X. Xxxxxxxx Vice President
Xxxxxxx X. Xxxxxxxx III Treasurer
Xxxxxxx X. Xxxxxxx Secretary
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