AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
eVENT RESOURCES OVERSEAS I, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT
(this "Agreement"), dated as of April 5, 2002, of eVENT RESOURCES OVERSEAS I,
LLC, a Delaware limited liability company (the "Company"), is made by and
between CINERGY GLOBAL POWER, INC., a Delaware corporation ("Global Power"), and
eVENT RESOURCES I LLC ("eVent"), a Delaware limited liability company, amending
and restating the Limited Liability Company Operating Agreement of the Company
dated as of June 15, 2001 (the "Original Agreement"), by and between Cinergy
Global Xxx, Inc. ("Xxx") and eVent. Global Power shall be referred to as the
"Common Member" and eVent shall be referred to as the "Preferred Member." Each
of Global Power and eVent shall be referred to individually as a "Member," and
collectively as the "Members."
RECITALS
--------
WHEREAS, the Company was duly formed on May 29, 2001 under the
Delaware Limited Liability Company Act (as amended from time to time, the
"Act");
WHEREAS, on June 15, 2001, Xxx and eVent entered into the Original
Agreement;
WHEREAS, concurrent herewith Xxx and Global Power have entered into a
Distribution and Assignment Agreement whereby Xxx is distributing to Global
Power its entire membership interest in the Company and shall no longer be
a member and Global Power is being admitted as a member in its stead;
WHEREAS, Xxx and Global Power have acknowledged and approved and eVent
by its entry into this Agreement desires to acknowledge and approve (i) the
distribution of the Common Interest in the Company from Xxx to Global
Power, (ii) the withdrawal of Xxx from the Company and (iii) the
substitution of Global Power for Xxx as the Common Member of the Company;
and
WHEREAS, the Members desire to amend and restate the Original
Agreement in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Members hereby agree as
follows:
ARTICLE I - Definitions
-----------------------
Section 1.1 Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Act.
ARTICLE II - General Provisions
-------------------------------
Section 2.1 Company Name. The name of the Company is eVent Resources
Overseas I, LLC. The business of the Company may be conducted, upon
compliance with all applicable laws, under any other name designated by the
Manager (as defined hereinafter).
Section 2.2 Registered Office; Registered Agent.
(a) The Company shall maintain a registered office in the State
of Delaware at, and the name and address of the Company's registered
agent in the State of Delaware is, Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx.
(b) The business address of the Company is 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, or such other place as the Common
Member(s) shall designate. The Company shall notify each Member of any
change in the business address of the Company and any change shall not
be considered an amendment to this Agreement.
Section 2.3 Nature of Business Permitted; Powers. The Company is
organized primarily for the object and purpose of acquiring, owning,
holding, controlling, managing, financing, building, operating, and
liquidating an investment in Saw Mill Capital Fund, III, LLC, a Delaware
limited liability company and a special purpose company that holds an
interest in Xxxxx Xxxxxxxx, and other investments in other entities
consistent with Section 2.3 of the Operating Agreement (the "Operating
Agreement") of eVent dated as of December 1, 2000 (each such investment, a
"Portfolio Investment").
Section 2.4 Business Transactions of a Member with the Company. In
accordance with Section 18-107 of the Act, any Member may transact business
with the Company and, subject to applicable law, shall have the same rights
and obligations with respect to any such matter as a person who is not a
Member.
Section 2.5 Fiscal Year. The fiscal year of the Company (the "Fiscal
Year") for financial statement purposes shall end on December 31 of each
year. Unless otherwise required by the Internal Revenue Code of 1986 (the
"Code"), as the same may be amended hereafter from time to time, the
Company shall have the same fiscal year for income tax and for financial
and accounting purposes.
Section 2.6 Company Property; Interests. No real or other property of
any kind, tangible or intangible, of the Company shall be deemed to be
owned by any Member individually, but shall be owned by, and title thereto
shall be vested solely in, the Company. Without limiting the foregoing, all
trade secrets, intellectual property and other business assets used or
developed by the Company or its subsidiaries are and shall be owned and
controlled only by the Company or its subsidiaries, as applicable. The
Interests of the Members in the Company shall constitute personal property.
Section 2.7 Filings. Following the execution and delivery of this
Agreement, Global Power shall promptly prepare any documents required to be
filed and recorded under the Act, and Global Power shall promptly cause
each such document 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. Global Power
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 to the extent required by the
nature of its operations. The Company may do business under any fictitious
business name deemed necessary or desirable. The Members and the Manager
will take any and all other actions as may be reasonably necessary to
perfect and maintain the status of the Company as a limited liability
company or similar type of entity under the laws of any states or
jurisdictions other than Delaware in which the Company engages in business
and to continue the Company as a limited liability company, to protect the
limited liability of the Members as contemplated by the Act, and to
accomplish the purpose of the Company.
ARTICLE III - Members
---------------------
Section 3.1 Admission of Members. Global Power and eVent are the sole
Members of the Company. No further Members may be admitted.
Section 3.2 Classes of Interests.
(a) The membership interests of the Company shall consist of two
classes of membership interests designated respectively as the "Common
Interests" and the "Preferred Interests." The Common Interests and
Preferred Interests shall collectively be referred to as "Interests."
(b) Each class of Interests shall have separate rights, powers,
preferences and duties with respect to the property and obligations of
the Company and profits and losses associated with such property and
obligations.
(c) All Interests of a particular class shall be identical with
each other in every respect.
(d) Preferred Interests shall have no voting or consent rights,
except to the extent expressly set forth in this Agreement.
Section 3.3 Limitation of Liability of Members. Each Member's
liability shall be limited as set forth in the Act and other applicable
law. All 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 Member shall be obligated personally for
any such debt, obligation or liability of the Company solely by reason of
being a Member of the Company.
Section 3.4 Access to Information; Records.
(a) Any Member shall have the right to obtain from the Company
from time to time upon reasonable demand for any purpose reasonably
related to the Member's interest as a Member of the Company, the
documents and other information described in Section 18-305(a) of the
Act.
(b) Any demand by a Member pursuant to this Section 3.4 shall be
in writing and shall state the purpose of such demand.
Section 3.5 Meetings of Common Member(s).
(a) Meetings of the Common Member(s) may be called at any time by
any Common Member.
(b) Any action required to or which may be taken at a meeting of
Common Member(s) may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by all Common Member(s).
(c) Regular meetings of the Common Member(s) shall be held at
least annually. Common Member(s) may participate in a 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 participation in a meeting by such means shall constitute presence
in person at such meeting.
(d) Preferred Member(s) shall be entitled to notice of and to
attend meetings of the Common Member(s), but shall have no right to
participate in or vote at such meetings except as set forth in clause
(b) of Section 3.6 hereof.
Section 3.6 Quorum and Voting.
(a) With respect to meetings of the Common Member(s), the
presence in person or by proxy of Common Member(s) owning more than
fifty percent (50%) of the Common Interests shall constitute a quorum
for purposes of transacting business. Subject to clause (b) of this
Section 3.6, with respect to any matter required or permitted to be
voted upon by the Common Member(s), the affirmative vote of holders of
at least fifty percent (50%) of the Common Interests shall be required
to approve such matter, in addition to any other approval required by
this Agreement or the Act.
(b) Notwithstanding anything to the contrary in this Article III,
in addition to the vote required by clause (a) of this Section 3.6,
the affirmative vote of holders of at least fifty percent (50%) of the
Preferred Interests shall be required in order to authorize any of the
following actions by or on behalf of the Company:
(i) the dissolution, winding up or liquidation of the
Company (except as in accordance with Section 8.1 hereof);
(ii) the commencement of a voluntary bankruptcy proceeding
or admission of a material allegation in an involuntary
bankruptcy proceeding;
(iii) the sale, lease, exchange or other disposition of all,
or substantially all, of the assets of the Company;
(iv) the issuance of additional Interests or admission of
any new Members to the Company; or
(v) the incurrence of any indebtedness outside the ordinary
course of business.
Section 3.7 Notice. Meetings of the Common Member(s) may be held at
such places and at such times as the Common Member(s) may from time to time
determine. Written notice of the time, place, and purpose of such meeting
shall be served by registered or certified prepaid, first class mail, via
overnight courier using a nationally reputable courier, or by fax or cable,
upon each Member and shall be given at least two (2) business days prior to
the time of the meeting. No notice of a meeting need be given to any Member
if a written waiver of notice, executed before or after the meeting by such
Member thereunto duly authorized, is filed with the records of the meeting,
or to any Member who attends the meeting without protesting prior thereto
or at its commencement the lack of notice to him or her. A waiver of notice
need not specify the purposes of the meeting.
Section 3.8 Adjourned Meetings and Notice Thereof. Any meeting of the
Common Member(s), whether or not a quorum is present, may be adjourned from
time to time by the vote of the Common Member(s) holding a majority of the
Common Interests present in person or represented by proxy, but, in the
absence of a quorum, no other business may be transacted at any such
meeting. Other than by announcement at the meeting at which such
adjournment is taken, it shall not be necessary to give any notice of any
adjournment or of the business to be transacted at any adjourned meeting.
When, however, any meeting of the Common Member(s) is adjourned for sixty
(60) days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting.
Section 3.9 Withdrawals and Removals of Members. None of the Members
may resign, withdraw or be removed as a Member of the Company without the
written consent of all of the Members.
Section 3.10 Other Ventures. Nothing in this Agreement shall preclude
a Member or any Affiliates (where "Affiliate" means, with respect to any
person, a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control
with, the person specified), officers, directors, managers, stockholders,
partners or employees of any Member from engaging in other business
ventures of any nature and description, independently or with others, and
neither the Company nor any Member shall have any rights in and to any
independent venture or activity or the income or profits derived therefrom.
ARTICLE IV- Management
----------------------
Section 4.1 General.
(a) The business and affairs of the Company shall be managed by
and under the direction of Global Power, who shall be deemed to be the
Managing Member, who shall continue the delegation of such management
to a manager (the "Manager") pursuant to the terms of the agreement
dated June 15, 2001, between the Company and e3Convergence LLC, now
known as Greenwich Power LLC ("Greenwich Power"), with respect
thereto; provided, that the Managing Member shall be entitled to
enforce any rights that the Company might have against the Manager.
The Manager shall serve without compensation from the Company, and the
Manager shall bear the cost of its participation in meetings and other
activities of the Company. Except as set forth in clause (b) of
Section 3.6 hereof, Preferred Member(s) shall not participate in the
management of the business and affairs of the Company. Except as
provided in the first sentence of this Section 4.1(a) and as otherwise
provided in this Agreement, the Members shall have no power to
transact any business in the Company's name nor have the power to sign
documents for or otherwise bind the Company.
(b) The day-to-day operations of the Company shall be managed by
the Manager, if any, and the Manager shall have full power and
authority to make all business decisions, enter into all commitments
and take such other actions in connection with the business and
operations of the Company as it deems appropriate, consistent with
this Agreement, prudent business practices, the Investment Management
Agreement (as defined hereinafter) and Supplement No. 1 thereto.
Section 4.2 Reliance by Third Parties. Persons dealing with the
Company are entitled to rely conclusively upon the power and authority of
the Manager and the Common Member(s) herein set forth.
Section 4.3 Expenses. Except as otherwise provided in this Agreement,
the Company shall be responsible for and shall pay all expenses out of
funds of the Company determined by the Manager to be available for such
purpose, provided that such expenses are those of the Company or are
otherwise incurred by the Members or the Manager in connection with this
Agreement, including, without limitation:
(a) all expenses related to the business of the Company and all
routine administrative expenses of the Company, including the
maintenance of books and records of the Company, the preparation and
dispatch to any Members of checks, financial reports, tax returns and
notices required pursuant to this Agreement or in connection with the
holding of any meetings of the Common Member(s);
(b) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith;
(c) all expenses for indemnity or contribution payable by the
Company to any person;
(d) all expenses incurred in connection with the collection of
amounts due to the Company from any person;
(e) all expenses incurred in connection with the preparation of
amendments to this Agreement; and
(f) expenses incurred in connection with the liquidation,
dissolution and winding up of the Company.
ARTICLE V - Finance
-------------------
Section 5.1 Capital Contributions.
(a) Except as otherwise provided in this Section 5.1, neither
Global Power nor eVent shall be obligated to make any further capital
contributions to the Company.
(b) In order to satisfy the requirements of Supplement No. 1 to
the Investment Management and Services Agreement by and between eVent
and Greenwich Power, dated as of December 1, 2000 (the "Investment
Management Agreement"), the Preferred Member(s) are responsible for
contributing sums sufficient to cover all expenses of the types set
forth in Sections 4(d) and 10(e) of the Investment Management
Agreement to the extent that they are incurred by or on behalf of the
Company.
(c) All capital contributions of a Member to the Company must be
in cash.
Section 5.2 Capital Accounts.
(a) A capital account shall be maintained for each Member, to
which contributions and profits shall be credited and against which
distributions and losses shall be charged, in accordance with the tax
accounting principles prescribed by the Treasury Regulations
promulgated under Section 704 of the Code, as amended (the "Allocation
Regulations"), so that the allocations provided in this Agreement
shall, to the extent possible, have "substantial economic effect"
within the meaning of the Allocation Regulations, or, if such
allocations cannot have substantial economic effect, so that they may
be deemed to be "in accordance with the Members' interests in the
Company" within the meaning of the Allocation Regulations.
(b) Schedule A to this Agreement ("Schedule A") sets forth the
name, address, capital account balance and ownership percentage of
Common Interests or Preferred Interests of each Member as of the date
hereof. Schedule A shall be amended from time to time to reflect any
changes thereto.
(c) Except as otherwise provided in this Agreement, no Member
shall have the right to withdraw capital from the Company or to
receive or demand distributions or return of its capital contributions
until the Company is dissolved in accordance with this Agreement and
the applicable provisions of the Act. No Member shall be entitled to
demand or receive any interest on its capital account or contributions
thereto.
Section 5.3 Allocation of Profits and Losses.
(a) After giving effect to any special allocations required by
the Allocation Regulations, the profits, if any, of the Company with
respect to any Fiscal Year shall be allocated among the Members as
follows:
(1) First, to the Members, pro rata in proportion to the
cumulative amount of losses allocated to the Members pursuant to
Section 5.3(b) for all prior Fiscal Years; and
(2) Thereafter, to the Preferred Member(s), pro rata in
proportion to their respective ownership percentages.
(b) After giving effect to any special allocations required by
the Allocation Regulations, the losses, if any, of the Company with
respect to any Fiscal Year shall be allocated among the Members as
follows:
(1) First, to the Members with positive capital account
balances, pro rata in proportion to such positive capital account
balances; and
(2) Thereafter, to the Preferred Member(s), pro rata in
proportion to their respective ownership percentages.
ARTICLE VI - Distributions
--------------------------
Section 6.1 Distributions. Any distributions by the Company shall be
made to the Members in the same order and priority as losses are allocated
pursuant to Section 5.3(b). All available cash, after taking into account
appropriate reserves and expenses, shall be timely distributed.
Section 6.2 Distributions in Kind. A Member shall not be compelled to
accept a distribution of an asset in kind from the Company without such
Member's consent.
Section 6.3 Withholding Taxes. If the Company is required to withhold
taxes with respect to any allocation or distribution to any Member pursuant
to any applicable federal, state, local or foreign tax laws, the Company
may withhold such amounts and make such payments to taxing authorities as
are necessary to ensure compliance with such tax laws. Any funds withheld
by reason of this Section 6.3 shall nonetheless be deemed distributed to
the Member in question for all purposes under this Agreement. If the
Company did not withhold from actual distributions any amounts it was
required to withhold, the Company may, at its option, (i) require the
Member to which the withholding was credited to reimburse the Company for
such withholding; or (ii) reduce any subsequent distributions by the amount
of such withholding. This obligation of a Member to reimburse the Company
for taxes that were required to be withheld shall continue after such
Member transfers or liquidates its membership interest in the Company. Each
Member agrees to furnish the Company with any representations and forms as
shall reasonably be requested by the Company to assist it in determining
the extent of, and in fulfilling, any withholding obligations it may have.
ARTICLE VII - Assignment of Membership and Interests
----------------------------------------------------
Section 7.1 Assignment of Membership and Interests. No Member shall
sell, transfer, assign, convey, or otherwise dispose of, pledge, mortgage,
encumber or hypothecate (a "Transfer") all or any part of its Interest or
any interest, rights or obligations with respect thereto; provided,
however, that eVent shall have the right to make a Transfer of its
Interest, in whole or in part, to an Affiliate of eVent, provided that such
Affiliate of eVent is owned by both Greenwich Power and CinTec I LLC or an
Affiliate of CinTec I LLC and no other persons and provided further that
the Common Member may make a Transfer of its Interest, in its entirety only
and not in part, to an Affiliate of the Common Member. Any attempted
Transfer not in conformity with the first sentence of this Section 7.1
shall be null and void and of no force or effect whatsoever, and the
purported transferee shall have no rights as a Member.
Section 7.2 Certificates. Interests may, but need not be, evidenced by
a certificate of limited liability company interest issued by the Company,
but the Interests shall be subject to the following restrictions which
shall be set forth as legends on such certificates, if any (in addition to
any legend or restriction required under applicable state securities laws):
THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE IS PROHIBITED THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE HOLDER HEREOF OR HIS PREDECESSOR IN INTEREST. COPIES
OF SUCH AGREEMENT MAY BE OBTAINED BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS SECURITY TO THE SECRETARY OF THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
ARTICLE VIII - Dissolution
--------------------------
Section 8.1 Duration and Dissolution. The duration of the Company
shall be perpetual unless the Company is sooner dissolved in accordance
with the Act or as provided in the following sentence. The Company shall be
dissolved upon (a) a vote of all Members for its dissolution; (b)
dissolution of eVent pursuant to eVent's Operating Agreement; or (c) a sale
of all or substantially all of the Company's assets (where, for purposes of
this Section 8.1, "substantially all" means all Portfolio Investments of
the Company and all other assets of the Company other than de minimis
assets held for the purposes of the Company's day-to-day operations).
Section 8.2 Winding Up. Subject to the provisions of the Act, the
Members, acting by written agreement of all Members, shall have the right
to wind up the Company's affairs in accordance with Section 18-803 of the
Act (and shall promptly do so upon dissolution of the Company in accordance
with Section 8.1) and shall also have the right to act as or appoint a
liquidating trustee in connection therewith.
Section 8.3 Distribution of Assets. Upon the winding up of the
Company, the assets shall be distributed in the following order and
priority: (a) first, to pay, satisfy or discharge all of the debts,
liabilities and obligations of the Company (including, without limitation,
all expenses incurred in winding up of the Company) or otherwise make
adequate provision for payment and discharge thereof (including, without
limitation, the establishment of a cash escrow fund for contingent
liabilities in such amount and for such term as the Members and/or any
liquidating trustee may reasonably determine) in the order of priority as
provided by the Act, and (b) thereafter, all remaining assets of the
Company shall be distributed to the Members in the order and priority set
forth in Section 6.1 after giving effect to all contributions,
distributions and allocations for all periods.
ARTICLE IX - Tax Characterization; Reports
------------------------------------------
Section 9.1 Tax Treatment. The Company shall timely make all necessary
elections and filings for federal, state, and local tax purposes such that
it will be treated as a partnership for federal, state, and local tax
purposes.
Section 9.2 Designation of Tax Matters Partner.
(a) Global Power, or a designated Affiliate thereof, is hereby
initially designated the "Tax Matters Partner" for federal income tax
purposes pursuant to Section 6231 of the Code with respect to all
taxable years of the Company.
(b) As soon as practicable after the end of each taxable year,
the Tax Matters Partner shall furnish (or cause to be furnished) to
each Member such information as necessary to timely fulfill such
Member's federal, state, local and foreign tax obligations, including
Schedule K-1, or any similar form as may be required by the Code or
the Internal Revenue Service.
(c) The Tax Matters Partner may, but shall not be required to,
make any election permitted to be made by the Company under the Code
and Treasury Regulations, including the election provided under
Section 754 of the Code.
ARTICLE X - Exculpation and Indemnification
-------------------------------------------
Section 10.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, neither any Member (which term for purposes of this Article X only
shall be deemed to include any former Member), nor any manager, officer,
director, stockholder, partner, employee, representative or agent of any
Member or any Affiliate of any Member (individually, a "Covered Person" and
collectively, the "Covered Persons") shall be liable to the Company or any
Member for any act or omission in relation to the Company or its operations
taken or omitted in good faith by a Covered Person and in the reasonable
belief that such act or omission is in or is not contrary to the best
interests of the Company and is within the scope of authority granted to
such Covered Person by the Agreement, provided that such act or omission
does not constitute fraud, willful misconduct, bad faith, or gross
negligence; provided however, that, for purposes of exculpation and
indemnification under Sections 10.1 and 10.2 respectively, a "Covered
Person" shall not include any person who would otherwise be a Covered
Person when acting as a Manager of the Company, which such person may be
provided indemnification in accordance with Section 10.4.
Section 10.2 Indemnification. To the fullest extent permitted by law,
the Company shall indemnify and hold harmless each Covered Person from and
against any and all losses, claims, demands, liabilities, expenses,
judgments, fines, settlements, and other amounts (including attorneys'
fees) arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative, investigative or arbitrative
(a "Proceeding"), in which the Covered Person may be involved, or
threatened to be involved, as a party or otherwise, by reason of its
management of the affairs of the Company or which relates to or arises out
of the Company or its property, business or affairs; provided, however,
that, in the event that the funds and assets of the Company are
insufficient to provide full indemnification of the Members,
indemnification of the Common Member(s) (including for the purposes of this
Article X only any former Common Member) shall take priority over
indemnification of the Preferred Member(s). A Covered Person shall not be
entitled to indemnification under this Section 10.2 with respect to any
claim, issue or matter in which it has engaged in fraud, willful
misconduct, bad faith or gross negligence.
Section 10.3 Advance Payment. The right to indemnification conferred
in this Article X shall include the right to be paid or reimbursed by the
Company the reasonable expenses incurred by a person of the type entitled
to be indemnified under Article X who was, is or is threatened to be made a
named defendant or respondent in a Proceeding in advance of the final
disposition of the Proceeding and without any determination as to the
person's ultimate entitlement to indemnification; provided, however, that
the payment of such expenses incurred by any such person in advance of the
final disposition of a Proceeding, shall be made only upon delivery to the
Company of a written affirmation by such person of his good faith belief
that he has met the standard of conduct necessary for indemnification under
this Article X and a written undertaking, by or on behalf of such person,
to repay all amounts so advanced if it shall ultimately be determined that
such indemnified person is not entitled to be indemnified under this
Article X or otherwise.
Section 10.4 Indemnification of Agents. The Company may indemnify and
advance expenses to the Manager and to persons who are or were serving at
the request of the Company as a manager, director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic limited liability company, corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit
plan or other enterprise against any liability asserted against him and
incurred by him in such a capacity or arising out of his status as such a
person to the same extent that it may indemnify and advance expenses to
Members under this Article X.
Section 10.5 Appearance as a Witness. Notwithstanding any other
provision of this Article X, the Company may pay or reimburse expenses
incurred by a Covered Person in connection with its appearance as a witness
or other participation in a Proceeding at a time when it is not a named
defendant or respondent in the Proceeding.
Section 10.6 Non-Exclusivity of Rights. The right to indemnification
and the advancement and payment of expenses conferred in this Article X
shall not be exclusive of any other right which a Member or other person
indemnified pursuant to Section 10.4 may have or hereafter acquire under
any law (common or statutory), provision of the Certificate of Formation of
the Company or this Agreement, agreement, vote of Members or otherwise.
Section 10.7 Insurance. The Company may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was
serving as a Member, officer, employee or agent of the Company or is or was
serving at the request of the Company as a member, manager, director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic limited liability company,
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise against any expense, liability or
loss, whether or not the Company would have the power to indemnify such
person against such expense, liability or loss under this Article X.
Section 10.8 Savings Clause. If this Article X or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Company shall nevertheless indemnify and hold harmless each Member
or any other person indemnified pursuant to this Article X as to costs,
charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article X that shall not have
been invalidated and to the fullest extent permitted by applicable law.
ARTICLE XI - Miscellaneous
--------------------------
Section 11.1 Amendment; Waiver. This Agreement may be amended only by
an instrument in writing executed by all Members. Compliance with any
provision of this Agreement may be waived only if such waiver is approved
in a writing signed by all Members; provided, that no such waiver shall be
deemed to be a waiver of any other or further obligation or liability of
the person or persons in whose favor the waiver was given. Except as
expressly provided to the contrary herein, no failure to exercise any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
granted hereunder.
Section 11.2 Successors; Counterparts. Subject to Article VIII, this
Agreement (a) shall be binding as to the executors, administrators,
estates, heirs and legal successors, or nominees or representatives, of the
Members and (b) may be executed in several counterparts with the same
effect as if the parties executing the several counterparts had all
executed one counterpart.
Section 11.3 Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflict of laws
thereof. In particular, this Agreement shall be construed to the maximum
extent possible to comply with all the terms and conditions of the Act. If,
nevertheless, it shall be determined by a court of competent jurisdiction
that any provisions or wording of this Agreement shall be invalid or
unenforceable under the Act or other applicable law, such invalidity or
unenforceability shall not invalidate the entire Agreement and this
Agreement shall be construed so as to limit any term or provision so as to
make it enforceable or valid within the requirements of applicable law,
and, in the event such term or provisions cannot be so limited, this
Agreement shall be construed to omit such invalid or unenforceable terms or
provisions. If it shall be determined by a court of competent jurisdiction
that any provisions relating to the distributions and allocations of the
Company or to any expenses payable by the Company is invalid or
unenforceable, this Agreement shall be construed or interpreted so as (a)
to make it enforceable or valid and (b) to make the distributions and
allocations as closely equivalent to those set forth in this Agreement as
is permissible under applicable law.
Section 11.4 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
Section 11.5 Further Assurances. Each of the Members 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.
Section 11.6 Notices. All notices, requests and other communications
to any Member shall be in writing (including telecopier or similar writing)
and shall be given to such Member (and any other person designated by such
Member) at its address or telecopier number set forth in a schedule filed
with the records of the Company or such other address or telecopier number
as such Member may hereafter specify for the purpose by notice. Each such
notice, request or other communication shall be effective (a) if given by
telecopier, when transmitted to the number specified pursuant to this
Section 11.6 and the appropriate written confirmation is received, (b) if
given by mail, seventy-two (72) hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or
(c) if given by any other means, when delivered at the address specified
pursuant to this Section 11.6.
Section 11.7 Books and Records; Accounting.
(a) The books and records of the Company, and a list of the
Members and their respective residence, business or mailing addresses,
and Interests shall be maintained at the principal executive offices
of the Company. The Company may maintain such other books and records
and may provide such financial or other statements as it in its
discretion deems advisable. The financial records and reports of the
Company shall be kept on the accrual basis.
(b) Within one hundred twenty (120) days from the close of each
Fiscal Year of the Company, the Members shall each be provided with
(a) annual audited financial statements for the Company; (b) a
statement of each Member's closing capital account balance as of the
end of such year; (c) a report describing the status of each
investment in the Company's portfolio, including the Member's
valuations as of the end of such year; (d) unaudited semi-annual
report of the Company financial reports showing each Member's capital
account balance and (e) such other reports and information as the
Company determines appropriate from time to time.
Section 11.8 Waiver of Partition. Each Member hereby irrevocably
waives any and all rights that such Member may have to maintain any action
for partition of any of the Company's property.
Section 11.9 Deficit Upon Liquidation. Except to the extent otherwise
provided by law with respect to third-party creditors of the Company, upon
liquidation, none of the Members shall be liable to the Company for any
deficit in its capital account, nor shall such deficits be deemed assets of
the Company.
Section 11.10 Entire Agreement. This Agreement, together with the
documents expressly referred to herein, each as amended or supplemented,
constitutes the entire agreement among the parties with respect to the
subject matter herein and therein and supersedes any prior agreement or
understanding among the parties hereto with respect to such subject matter.
Section 11.11 Currency. All payments to be made by any person under or
in connection with the terms of this Agreement shall be calculated and made
in U.S. Dollars.
Section 11.12 Survival All indemnities and reimbursement obligations
made pursuant to this Agreement shall survive dissolution and liquidation
of the Company until expiration of the longest applicable statute of
limitations (including extensions and waivers) with respect to the matter
for which a person would be entitled to be indemnified or reimbursed, as
the case may be.
* * * * *
IN WITNESS WHEREOF, the undersigned Members have duly executed this
Amended and Restated Limited Liability Company Operating Agreement of eVent
Resources Overseas I, LLC as of the date first above written.
CINERGY GLOBAL POWER, INC.
By:
Name: Xxxxx X. Xxxxx
Title: Vice President
eVENT RESOURCES I LLC
By:
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE A
Common Interests
Capital Ownership Percentage
Member/Address Account of Common Interests
-------------- ------- -------------------
Cinergy Global Power, Inc. $100 100%
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Preferred Interests
Capital Ownership Percentage
Member/Address Account of Preferred Interests
-------------- ------- ----------------------
eVent Resources I LLC $2,010,000 100%
c/o Greenwich Power LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
