EXHIBIT 3.2
EXECUTION COPY
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
WEST PENN FUNDING LLC
This Amended and Restated Limited Liability Company
Agreement (together with the schedules attached hereto, this
"Agreement") of West Penn Funding LLC (the "Company"), is entered
into by WEST PENN FUNDING CORPORATION, a Delaware corporation, as
the sole equity member (the "Member"), and Xxxx X. Xxxxxxxx and
Xxx X. Xxxxxxxx, as the Special Members (as defined on Schedule A
hereto). Capitalized terms used and not otherwise defined herein
have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, (i) hereby
continues the Company as a limited liability company pursuant to
and in accordance with the Delaware Limited Liability Company Act
(6 Del. C. ' 18-101 et seq.), as amended from time to time (the
"Act"), and this Agreement, (ii) hereby amends and restates in
its entirety the Limited Liability Company Agreement of the
Company, dated as of May 26, 1999 (the "Initial LLC Agreement"),
as amended by the Assignment of Limited Liability Company
Interest and Amendment to Limited Liability Company Agreement
dated as of October 20, 1999 (the "Assignment Agreement"), and,
together with Xxxx X. Xxxxxxxx and Xxx X. Xxxxxxxx, hereby agrees
as follows:
Section 1. Name.
The name of the limited liability company formed hereby is
West Penn Funding LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be
located at 0000X-0 Xxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000 or
such other location as may hereafter be determined by the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.
Section 4. Registered Agent.
The name and address of the registered agent of the Company
for service of process on the Company in the State of Delaware is
The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000.
Section 5. Members.
(a) The mailing address of the Member is set forth on
Schedule B attached hereto. The Member was admitted to the
Company as a member of the Company upon its execution of the
Assignment Agreement heretofore.
(b) Subject to Section 9(j), the Member may act by written
consent.
(c) Upon the occurrence of any event that causes the Member
to cease to be a member of the Company (other than (i) upon an
assignment by the Member of all of its limited liability company
interest in the Company and the admission of the transferee
pursuant to Sections 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company
pursuant to Sections 22 and 23), each person acting as an
Independent Director pursuant to Section 10 shall, without any
action of any Person and simultaneously with the Member ceasing
to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company
without dissolution. No Special Member may resign from the
Company or transfer its rights as Special Member unless (i) a
successor Special Member has been admitted to the Company as
Special Member by executing a counterpart to this Agreement, and
(ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however,
the Special Members shall automatically cease to be members of
the Company upon the admission to the Company of a substitute
Member. Each Special Member shall be a member of the Company
that has no interest in the profits, losses and capital of the
Company and has no right to receive any distributions of Company
assets. Pursuant to Section 18-301 of the Act, a Special Member
shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company
interest in the Company. A Special Member, in its capacity as
Special Member, may not bind the Company. Except as required by
any mandatory provision of the Act, each Special Member, in its
capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating
to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to
implement the admission to the Company of each Special Member,
each person acting as an Independent Director pursuant to
Section 10 shall execute a counterpart to this Agreement. Prior
to its admission to the Company as Special Member, each person
acting as an Independent Director pursuant to Section 10 shall
not be a member of the Company.
Section 6. Certificates.
Xxxxxx X. Xxxxxx, is hereby designated as an "authorized
person" within the meaning of the Act, and has executed,
delivered and filed the Certificate of Formation of the Company
with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate of Formation with the Secretary of
State of the State of Delaware, his powers as an "authorized
person" ceased, and Xxxxx Xxxx, as the initial member under the
Initial LLC Agreement thereupon became the designated "authorized
person" and after Xxxxx Xxxx'x assignment of her membership
interest in the Company to the Member pursuant to the Assignment
Agreement, the Member became and shall continue as the designated
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"authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates
(and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in Nevada, New York and in
any other jurisdiction in which the Company may wish to conduct
business.
The existence of the Company as a separate legal entity
shall continue until cancelation of the Certificate of Formation
as provided in the Act.
Section 7. Purposes. The purpose to be conducted or promoted
by the Company is to engage in the following activities:
(a)
(i) to acquire, own, hold, administer, service, or
enter into agreements for the servicing of,
finance, manage, sell, assign, pledge, collect
amounts due on and otherwise deal with the
Intangible Transition Property and other assets to
be acquired pursuant to the Basic Documents and
any proceeds or rights associated therewith;
(ii) to issue, sell, authorize and deliver the
Transition Bonds and to enter into any agreement
or document providing for the authorization,
issuance, sale and delivery of the Transition
Bonds;
(iii) to sell, exchange, pledge, encumber or
otherwise dispose of all or any part of the
Intangible Transition Property and its other
assets and property and, in connection therewith,
to accept, collect, hold, sell, exchange or
otherwise dispose of evidences of indebtedness or
other property received pursuant thereto,
including the encumbrance of all of the Intangible
Transition Property and its other assets and
property as collateral security for the Transition
Bonds;
(iv) to execute, deliver and perform the Basic
Documents;
(v) to invest proceeds from the Intangible Transition
Property and its other assets and any capital and
income of the Company in accordance with the Basic
Documents or as otherwise determined by the Board
and not inconsistent with this Section 7 or the
Basic Documents;
(vi) to acquire, own, hold, sell, transfer,
service, convey, safekeep, dispose of, pledge,
assign, borrow money against, finance, refinance
or otherwise deal with, publicly or privately and
whether with unrelated third parties or with
affiliated entities; and
(vii) to engage in any lawful act or activity and
to exercise any powers permitted to limited
liability companies organized under the laws of
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the State of Delaware that are related or
incidental to and necessary, convenient or
advisable for the accomplishment of the
above-mentioned purposes (including the entering
into of interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or
similar hedging transactions and referral,
management, servicing and administration
agreements).
(b) The Company hereby authorizes and approves the issuance
and sale, from time to time, of the Transition Bonds and the
registration of such Transition Bonds under the Securities Act of
1933, as amended, and the filing by Officers of the Company of
any Registration Statement or other document as the Officers may
in their discretion deem necessary or advisable to accomplish
such registration. The Company, by or through the Member, or any
Director or Officer on behalf of the Company, may negotiate the
terms of, enter into and perform the Basic Documents (including
negotiating and approving the price at which the Transition Bonds
are sold) and all documents, agreements, certificates, or
financing statements contemplated thereby or related thereto, all
without any further act, vote or approval of any other Person
notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorizations
shall not be deemed a restriction on the powers of the Member or
any Director or Officer to enter into other agreements on behalf
of the Company.
(c) The Company hereby ratifies and approves all actions
taken by Xxxxx X. Xxxx, in her prior capacities as sole member,
principal and chief executive officer, chief financial officer
and chief accounting officer of the Company, on behalf of the
Company in connection with the execution, delivery and filing
with the Securities and Exchange Commission of the Registration
Statement on Form S-3 and Amendment No. 1 and Amendment No. 2
thereto.
(d) The Company hereby agrees that: (1) any Officer of the
Company acting in the State of Nevada be, and they hereby are,
authorized for and on behalf of the Company to designate that a
bank account be established at PNC Bank to act as depository for
the funds of the Company for and during such period as they may
from time to time deem necessary or desirable in the interests of
the Company and to open or close out from time to time such
account so selected or reselected; (2) any Officer of the Company
be, and they hereby are, authorized and directed, in the name and
on behalf of the Company, to take any and all action that they
may deem necessary or advisable in order to establish such bank
account from time to time for the efficient conduct of the
Company's business; (3) such bank account be used to initiate
funds transfers and that any Officer of the Company be, and they
hereby are, authorized to sign on such bank account any wire
transfer documents necessary, including those that will designate
those Officers of the Company who may be authorized to initiate
wire transfers by phone from such bank account to West Penn Power
Company's bank account at PNC Bank and from such bank account to
West Penn Funding Corporation's bank account at PNC Bank,
provided that the Officer initiates said wire transfers in the
State of Nevada; (4) any Officer of the Company be, and they
hereby are, authorized for and on behalf of the Company to
designate that a bank account be established at Nevada State Bank
to act as depository for the funds of the Company for and during
such period as they may from time to time deem necessary or
desirable in the interests of the Company and to open or close
out from time to time such account so selected or reselected; (5)
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any Officer of the Company be, and they hereby are, authorized
and directed, in the name and on behalf of the Company, to take
any and all action that they may deem necessary or advisable in
order to establish such account from time to time for the
efficient conduct of the Company's business; and (6) any Officer
of the Company be, and they hereby are, authorized to designate
those Officers of the Company who may be authorized from time to
time to sign checks on such bank account.
Section 8. Powers.
Subject to Section 9(j), the Company, and the Board of
Directors and the Officers of the Company on behalf of the
Company, (i) shall have and exercise all powers necessary,
convenient or incidental to accomplish its purposes as set forth
in Section 7 and (ii) shall have and exercise all of the powers
and rights conferred upon limited liability companies formed
pursuant to the Act.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the
business and affairs of the Company shall be managed by or under
the direction of a Board of one or more Directors designated by
the Member. Subject to Section 10, the Member may determine at
any time in its sole and absolute discretion the number of
Directors to constitute the Board. The authorized number of
Directors may be increased or decreased by the Member at any time
in its sole and absolute discretion, upon notice to all
Directors, and subject in all cases to Section 10. The initial
number of Directors shall be five, two of which shall be
Independent Directors pursuant to Section 10. Each Director
elected, designated or appointed by the Member shall hold office
until a successor is elected and qualified or until such
Director's earlier death, resignation, expulsion or removal.
Each Director shall execute and deliver the Management Agreement.
Directors need not be a Member. The initial Directors designated
by the Member are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of
Directors shall have the power to do any and all acts necessary,
convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or
otherwise. Subject to Section 7, the Board of Directors has the
authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of
Directors of the Company 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
Board. Special meetings of the Board may be called by the
President on not less than one day's notice to each Director by
telephone, facsimile, mail, telegram or any other means of
communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon
the written request of any one or more of the Directors.
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(d) Quorum: Acts of the Board. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for
the transaction of business and, except as otherwise provided in
any other provision of this Agreement, the act of a majority of
the Directors 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 any meeting of the Board, the Directors present at such
meeting may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as
the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board
or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or
any committee designated by the Board, may participate in
meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all
Persons participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in Person at
the meeting. If all the participants are participating by
telephone conference or similar communications equipment, the
meeting shall be deemed to be held at the principal place of
business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority
of the whole Board, designate one or more
committees, each committee to consist of one or
more of the Directors of the Company. The Board
may designate one or more Directors as alternate
members of any committee, who may replace any
absent or disqualified member at any meeting of
the committee.
(ii) In the absence or disqualification of a
member of a committee, the member or members
thereof present at any meeting and not
disqualified from voting, whether or not such
members constitute a quorum, may unanimously
appoint another member of the Board to act at the
meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in
the resolution of the Board, shall have and may
exercise all the powers and authority of the Board
in the management of the business and affairs of
the Company. 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.
(g) Compensation of Directors; Expenses. The Board shall
have the authority to fix the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance at
meetings of the Board, which may be a fixed sum for attendance at
each meeting of the Board or a stated salary as Director. No
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such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by
law, any Director or the entire Board of Directors may be removed
or expelled, with or without cause, at any time by the Member,
and, subject to Section 10, any vacancy caused by any such
removal or expulsion may be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set
forth in this Agreement and subject to Section 9(j), the
Directors are agents of the Company for the purpose of the
Company's business, and the actions of the Directors taken in
accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section
18-402 of the Act, except as provided in this Agreement or in a
resolution of the Directors, a Director may not bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted in order to
comply with certain provisions required in order
to qualify the Company as a "special purpose"
entity.
(ii) The Member shall not, so long as any
Obligation is outstanding, amend, alter, change or
repeal the definition of "Independent Director" or
Sections 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25,
26 or 31 or Schedule A of this Agreement without
the unanimous written consent of the Board
(including all Independent Directors). Subject to
this Section 9(j), the Member reserves the right
to amend, alter, change or repeal any provisions
contained in this Agreement in accordance with
Section 31.
(iii) Notwithstanding any other provision of this
Agreement and any provision of law that otherwise
so empowers the Company, the Member, the Board,
any Officer or any other Person, neither the
Member nor the Board nor any Officer nor any other
Person shall be authorized or empowered, nor shall
they permit the Company, without the prior
unanimous written consent of the Member and the
Board (including all Independent Directors), to
take any Material Action.
(iv) The Board and the Member shall cause the
Company to do or cause to be done all things
necessary to preserve and keep in full force and
effect its existence, rights (charter and
statutory) and franchises; provided, however, that
the Company shall not be required to preserve any
such right or franchise if: (1) the Board shall
determine that the preservation thereof is no
longer desirable for the conduct of its business
and that the loss thereof is not disadvantageous
in any material respect to the Company and (2) the
Rating Agency Condition is satisfied by all Rating
Agencies other than Xxxxx'x (and prior written
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notice shall be provided to Xxxxx'x). The Board
also shall cause the Company to:
(A) maintain its own separate books and records
and bank accounts;
(B) at all times hold itself out to the public
and all other Persons as a legal entity
separate from the Member and any other
Person;
(C) have a Board of Directors separate from that
of the Member and any other Person;
(D) file its own tax returns, if any, as may be
required under applicable law, to the extent
(1) not part of a consolidated or combined
group filing a consolidated or combined
return or returns or (2) not treated as a
division for tax purposes of another
taxpayer, and pay any taxes so required to be
paid under applicable law;
(E) except as contemplated by the Basic
Documents, not commingle its assets with
assets of any other Person;
(F) conduct its business in its own name and
strictly comply with all organizational
formalities to maintain its separate
existence;
(G) maintain separate financial statements;
(H) pay its own liabilities only out of its own
funds;
(I) maintain an arm's length relationship with
its Affiliates and the Member;
(J) pay the salaries of its own employees, if
any;
(K) not hold out its credit or assets as being
available to satisfy the obligations of
others;
(L) allocate fairly and reasonably any overhead
for shared office space;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic
Documents, not pledge its assets for the
benefit of any other Person;
(O) correct any known misunderstanding regarding
its separate identity;
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(P) maintain adequate capital in light of its
contemplated business purpose, transactions
and liabilities;
(Q) cause its Board of Directors to meet at least
annually or act pursuant to written consent
and keep minutes of such meetings and actions
and observe all other Delaware limited
liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and
other representatives of the Company to act
at all times with respect to the Company
consistently and in furtherance of the
foregoing and in the best interests of the
Company.
Failure of the Company, or the Member or
Board on behalf of the Company, to comply
with any of the foregoing covenants or any
other covenants contained in this Agreement
shall not affect the status of the Company as
a separate legal entity or the limited
liability of the Member or the Directors.
(v) So long as any Obligation is outstanding, the
Board shall not cause or permit the Company to:
(A) except as contemplated by the Basic
Documents, guarantee any obligation of any
Person, including any Affiliate;
(B) engage, directly or indirectly, in any
business other than the actions required or
permitted to be performed under Section 7,
the Basic Documents or this Section 9(j);
(C) incur, create or assume any indebtedness
other than as expressly permitted under the
Basic Documents;
(D) make or permit to remain outstanding any loan
or advance to, or own or acquire any stock or
securities of, any Person, except that the
Company may invest in those investments
permitted under the Basic Documents and may
make any advance required or expressly
permitted to be made pursuant to any
provisions of the Basic Documents and permit
the same to remain outstanding in accordance
with such provisions;
(E) to the fullest extent permitted by law,
engage in any dissolution, liquidation,
consolidation, merger, asset sale or transfer
of ownership interests other than such
activities as are expressly permitted
pursuant to any provision of the Basic
Documents; or
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(F) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability
company or other).
Section 10. Independent Director.
As long as any Obligation is outstanding, the Member shall
cause the Company at all times to have at least two Independent
Directors who will be appointed by the Member. To the fullest
extent permitted by law, including Section 18-1101(c) of the Act,
the Independent Directors shall consider only the interests of
the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii).
No resignation or removal of an Independent Director, and no
appointment of a successor Independent Director, shall be
effective until such successor (i) shall have accepted his or her
appointment as an Independent Director by a written instrument,
which may be a counterpart signature page to the Management
Agreement, and (ii) shall have executed a counterpart to this
Agreement as required by Section 5(c). In the event of a vacancy
in the position of Independent Director, the Member shall, as
soon as practicable, appoint a successor Independent Director.
All right, power and authority of the Independent Directors shall
be limited to the extent necessary to exercise those rights and
perform those duties specifically set forth in this Agreement.
Except as provided in the second sentence of this Section 10, in
exercising their rights and performing their duties under this
Agreement, any Independent Director shall have a fiduciary duty
of loyalty and care similar to that of a director of a business
corporation organized under the General Corporation Law of the
State of Delaware. No Independent Director shall at any time
serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. The initial Officers of the Company shall be
designated by the Member. The additional or successor Officers of
the Company shall be chosen by the Board and shall consist of at
least a President, a Secretary and a Treasurer. The Board of
Directors may also choose one or more Vice Presidents, Assistant
Secretaries and Assistant Treasurers. Any number of offices may
be held by the same person. The Board shall choose a President,
a Secretary and a Treasurer. The Board may appoint such other
Officers and agents as it shall deem necessary or advisable who
shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time
to time by the Board. The salaries of all Officers and agents of
the Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their
successors are chosen and qualified. Any Officer may be removed
at any time, with or without cause, by the affirmative vote of a
majority of the Board. Any vacancy occurring in any office of
the Company shall be filled by the Board. Upon the effectiveness
of this Agreement, the Officers of the Company designated by the
Member are listed on Schedule E hereto and any persons formerly
appointed as Officers of the Company shall automatically cease to
be Officers of the Company.
(b) President. The President shall be the chief executive
officer of the Company, shall preside at all meetings of the
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Board, shall be responsible for the general and active management
of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect. The President
or any other Officer authorized by the President or the Board
shall execute all bonds, mortgages and other contracts, except:
(i) where required or permitted by law or this Agreement to be
otherwise signed and executed, including Section 7(b); (ii) where
signing and execution thereof shall be expressly delegated by the
Board to some other Officer or agent of the Company, and (iii) as
otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in
the event of the President's inability to act, the Vice
President, if any (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the
President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. The Vice
Presidents, if any, shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall
be responsible for filing legal documents and maintaining records
for the Company. The Secretary shall attend all meetings of the
Board and record all the proceedings of the meetings of the
Company and of the Board in a book to be kept for that purpose
and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given,
notice of all meetings of the Member, if any, and special
meetings of the Board, and shall perform such other duties as may
be prescribed by the Board or the President, under whose
supervision the Secretary shall serve. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the
order determined by the Board (or if there be no such
determination, then in order of their election), shall, in the
absence of the Secretary or in the event of the Secretary's
inability to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall
have the custody of the Company funds and securities and shall
keep full and accurate accounts of receipts and disbursements in
books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be
ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and to the
Board, at its regular meetings or when the Board so requires, an
account of all of the Treasurer's transactions and of the
financial condition of the Company. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the
order determined by the Board (or if there be no such
determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's
inability to act, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of
their powers set forth in this Agreement or otherwise vested in
them by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the Company's
business and, subject to Section 9(j), the actions of the
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Officers taken in accordance with such powers shall bind the
Company.
(g) Duties of Board and Officers. Except to the extent
otherwise provided herein, each Director and Officer shall have a
fiduciary duty of loyalty and care similar to that of directors
and officers of business corporations organized under the General
Corporation Law of the State of Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the
debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be the debts,
obligations and liabilities solely of the Company, and neither
the Member nor the Special Members nor any Director shall be
obligated personally for any such debt, obligation or liability
of the Company solely by reason of being a Member, Special Member
or Director of the Company.
Section 13. Capital Contributions.
The Member has contributed to the Company property of an
agreed value as listed on Schedule B attached hereto. In
accordance with Section 5(c), the Special Members shall not be
required to make any capital contributions to the Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital
contribution to the Company. However, the Member may make
additional capital contributions to the Company at any time upon
the written consent of such Member. To the extent that the
Member makes an additional capital contribution to the Company,
the Member shall revise Schedule B of this Agreement. The
provisions of this Agreement, including this Section 14, are
intended to benefit the Member and the Special Members and, to
the fullest extent permitted by law, shall not be construed as
conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary
of this Agreement) and the Member and the Special Members shall
not have any duty or obligation to any creditor of the Company to
make any contribution to the Company or to issue any call for
capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the
Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and
in the aggregate amounts determined by the Board.
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a
distribution to the Member on account of its interest in the
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Company if such distribution would violate Section 18-607 of the
Act or any other applicable law or any Basic Document.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and
accurate books of account and records with respect to the
Company's business. The books of the Company shall at all times
be maintained by the Board. The Member and its duly authorized
representatives shall have the right to examine the Company
books, records and documents during normal business hours. The
Company, and the Board on behalf of the Company, shall not have
the right to keep confidential from the Member any information
that the Board would otherwise be permitted to keep confidential
from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of
accounting determined by the Member. The Company's independent
auditor, if any, shall be an independent public accounting firm
selected by the Member.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter,
the Board shall cause to be prepared an unaudited report setting
forth as of the end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal
quarter, an income statement of the Company for
such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be
prepared and mailed to the Member, within 90 days after the end
of each fiscal year, an audited or unaudited report setting forth
as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such
fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent
accountants, if any, to prepare and transmit to the Member as
promptly as possible any such tax information as may be
reasonably necessary to enable the Member to prepare its federal,
state and local income tax returns relating to such fiscal year.
Section 19. Other Business.
13
The Member, the Special Members and any Affiliate of the
Member or the Special Members may engage in or possess an
interest in other business ventures (unconnected with the
Company) of every kind and description, independently or with
others. The Company shall not have any rights in or to such
independent ventures or the income or profits therefrom by virtue
of this Agreement.
Section 20. Exculpation and Indemnification.
(a) Neither the Member nor the Special Members nor any
Officer, Director, employee or agent of the Company nor any
employee, representative, agent or Affiliate of the Member or the
Special Members (collectively, the "Covered Persons") shall be
liable to the Company or any other Person who has an interest in
or claim against the Company for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement,
except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross
negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such Covered
Person by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement,
except that no Covered Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Covered
Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 20 by
the Company shall be provided out of and to the extent of Company
assets only, and the Member and the Special Members shall not
have personal liability on account thereof; and provided further,
that so long as any Obligation is outstanding, no indemnity
payment from funds of the Company (as distinct from funds from
other sources, such as insurance) of any indemnity under this
Section 20 shall be payable from amounts allocable to any other
Person pursuant to the Basic Documents, and, so long as any
Obligation is outstanding, all such indemnity payments under this
Section 20 shall be subordinated to any amounts payable to any
other Person under the Basic Documents.
(c) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person
defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of
the Covered Person to repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as
authorized in this Section 20; provided, however, that any such
advance shall be subordinated to any amounts payable to any other
Person under the Basic Documents.
14
(d) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the
Company by any Person as to matters the Covered Person reasonably
believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or
on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets,
liabilities, or any other facts pertinent to the existence and
amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable to
the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person.
The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of a Covered Person otherwise
existing at law or in equity, are agreed by the Member and the
Special Members to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this Section 20 shall
survive any termination of this Agreement.
Section 21. Assignments.
Subject to Section 23, the Member may assign in whole or in
part its limited liability company interest in the Company. If
the Member transfers all of its limited liability company
interest in the Company pursuant to this Section 21, the
transferee shall be admitted to the Company as a member of the
Company upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this
Agreement, which instrument may be a counterpart signature page
to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such
admission, the transferor Member shall cease to be a member of
the Company. Notwithstanding anything in this Agreement to the
contrary, any successor to the Member by merger or consolidation
in compliance with the Basic Documents shall, without further
act, be the Member hereunder, and such merger or consolidation
shall not constitute an assignment for purposes of this Agreement
and the Company shall continue without dissolution.
Section 22. Resignation.
So long as any Obligation is outstanding, the Member may not
resign, except as permitted under the Basic Documents and if the
Rating Agency Condition is satisfied by all Rating Agencies other
than Xxxxx'x (and prior written notice of such action shall be
provided to Xxxxx'x). If the Member is permitted to resign
pursuant to this Section 22, an additional member of the Company
shall be admitted to the Company, subject to Section 23, upon its
execution of an instrument signifying its agreement to be bound
by the terms and conditions of this Agreement, which instrument
15
may be a counterpart signature page to this Agreement. Such
admission shall be deemed effective immediately prior to the
resignation and, immediately following such admission, the
resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
One or more additional members of the Company may be
admitted to the Company with the written consent of the Member;
provided, however, that, notwithstanding the foregoing, so long
as any Obligation remains outstanding, no additional Member may
be admitted to the Company unless the Rating Agency Condition is
satisfied by all Rating Agencies other than Xxxxx'x (and prior
written notice of such action shall be provided to Xxxxx'x).
Section 24. Dissolution.
(a) Subject to Section 9(j), the Company shall be
dissolved, and its affairs shall be wound up upon the first to
occur of the following: (i) the termination of the legal
existence of the last remaining member of the Company or the
occurrence of any other event which terminates the continued
membership of the last remaining member of the Company in the
Company unless the business of the Company is continued in a
manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the
Act. Upon the occurrence of any event that causes the last
remaining member of the Company to cease to be a member of the
Company, to the fullest extent permitted by law, the personal
representative of such member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated
the continued membership of such member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of
the personal representative or its nominee or designee, as the
case may be, as a substitute member of the Company, effective as
of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company in the
Company.
(b) Notwithstanding any other provision of this Agreement,
the Bankruptcy of the Member or a Special Member shall not cause
the Member or Special Member, respectively, to cease to be a
member of the Company and upon the occurrence of such an event,
the business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs
(including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the
manner, and in the order of priority, set forth in Section 18-804
of the Act.
(d) The Company shall terminate when (i) all of the assets
of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company shall have been
distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been
canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
16
Except as otherwise expressly provided in this Agreement, to
the fullest extent permitted by law, each of the Member and the
Special Members hereby irrevocably waives any right or power that
such Person might have to cause the Company or any of its assets
to be partitioned, to cause the appointment of a receiver for all
or any portion of the assets of the Company, to compel any sale
of all or any portion of the assets of the Company pursuant to
any applicable law or to file a complaint or to institute any
proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The
Member shall not have any interest in any specific assets of the
Company, and the Member shall not have the status of a creditor
with respect to any distribution pursuant to Section 16 hereof.
The interest of the Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditor of the Company or by
any creditor of the Member or a Special Member. Nothing in this
Agreement shall be deemed to create any right in any Person
(other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract
in whole or in part for the benefit of any third Person (except
as provided in Section 29).
Section 27. Severability of Provisions.
Each provision of this Agreement shall be considered
severable and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal
under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of
or affect those portions of this Agreement which are valid,
enforceable and legal.
Section 28. Entire Agreement.
This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof.
Section 29. Binding Agreement.
Notwithstanding any other provision of this Agreement, the
Member agrees that this Agreement, including, without limitation,
Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26, 29 and 31,
constitutes a legal, valid and binding agreement of the Member,
and is enforceable against the Member by the Independent
Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this
Agreement.
Section 30. Governing Law.
This Agreement shall be governed by and construed under the
laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
17
Section 31. Amendments.
Subject to Section 9(j), this Agreement may be modified,
altered, supplemented or amended pursuant to a written agreement
executed and delivered by the Member. Notwithstanding anything
to the contrary in this Agreement, so long as any Obligation is
outstanding, this Agreement may not be modified, altered,
supplemented or amended unless the Rating Agency Condition is
satisfied by all Rating Agencies other than Xxxxx'x (and prior
written notice of such action shall be provided to Xxxxx'x)
except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent
of this Agreement and the other Basic Documents.
Section 32. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the
same instrument.
Section 33. Notices.
Any notices required to be delivered hereunder shall be in
writing and personally delivered, mailed or sent by telecopy,
electronic mail or other similar form of rapid transmission, and
shall be deemed to have been duly given upon receipt (a) in the
case of the Company, to the Company at its address in Section 2,
(b) in the case of the Member, to the Member at its address as
listed on Schedule B attached hereto and (c) in the case of
either of the foregoing, at such other address as may be
designated by written notice to the other party.
Section 34. Effectiveness.
Pursuant to Section 18-201 (d) of the Act, this Agreement
shall be effective as of November 3, 1999.
18
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Amended and Restated Limited
Liability Company Agreement as of the 3rd day of November, 1999.
MEMBER:
WEST PENN FUNDING CORPORATION
By: /S/ XXXXXXXX XXXXX
Name: Xxxxxxxx Xxxxx
Title:
SPECIAL MEMBERS:
/S/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
/S/ XXX X. XXXXXXXX
Name: Xxx X. Xxxxxxxx
S-1
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not
otherwise defined herein have the following meanings:
"Act" has the meaning set forth in the preamble to this
Agreement.
"Administrative Services Agreement" means the Service
Agreement to be dated as of November 16, 1999, between the
Company and Allegheny Energy Service Corporation, as
administrative agent, as the same may be amended or supplemented
from time to time.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or
under direct or indirect common Control with such Person.
"Agreement" means this Amended and Restated Limited
Liability Company Agreement of the Company, together with the
schedules attached hereto, as amended, restated or supplemented
or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such
Person (i) makes an assignment for the benefit of creditors, (ii)
files a voluntary petition in bankruptcy, (iii) is adjudged a
bankrupt or insolvent, or has entered against it an order for
relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer
or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of
this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or
of all or any substantial part of its properties, or (vii) if 120
days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or
regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of
such Person or of all or any substantial part of its properties,
the appointment is not vacated or stayed, or within 90 days after
the expiration of any such stay, the appointment is not vacated.
The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of"Bankruptcy" set
forth in Sections 18-101(1) and 18-304 of the Act.
"Basic Documents" means this Agreement, the Certificate of
Formation, the Management Agreement, the Sale Agreement, the Xxxx
of Sale, the Servicing Agreement, the Indenture (including any
Series Supplement), the Administrative Services Agreement, the
Transition Bonds, the Underwriting Agreement and all documents
and certificates contemplated thereby or delivered in connection
therewith.
A-1
"Xxxx of Sale" means the Xxxx of Sale to be dated as of
November 16, 1999, between the Company and the Seller relating to
the sale of the Intangible Transition Property from the Seller to
the Company.
"Board" or "Board of Directors" means the Board of Directors
of the Company.
"Bond Trustee" means Bankers Trust Company, a New York
banking corporation, as bond trustee under the Indenture, or any
successors to the foregoing.
"Certificate of Formation" means the Certificate of
Formation of the Company filed with the Secretary of State of the
State of Delaware on May 26, 1999, as amended or amended and
restated from time to time.
"Class" means, with respect to any Series, any one of the
classes of Transition Bonds of that Series.
"Company" means West Penn Funding LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting
securities or general partnership or managing member interests,
by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of
the foregoing, a Person shall be deemed to Control any other
Person in which it owns, directly or indirectly, a majority of
the ownership interests.
"Covered Persons" has the meaning set forth in Section
20(a).
"Customers" means each person that (i) was a customer of
West Penn located within West Penn's retail electric service
territory on January 1, 1997 or that became a customer of
electric services within such territory after January 1, 1997,
(ii) is still located within such territory, and (iii) is in a
Rate Schedule that has been assigned stranded cost
responsibility.
"Directors" means the Persons elected to the Board of
Directors from time to time by the Member, including the
Independent Directors, in their capacity as managers of the
Company. A Director is hereby designated as a "manager" of the
Company within the meaning of Section 18-101(10) of the Act.
"Indenture" means the indenture to be dated as of
November 16, 1999, between the Company and the Bond Trustee, as
the same may be amended and supplemented from time to time,
including by any Series Supplement.
"Independent Director" means a natural person who, for the
five-year period prior to his or her appointment as Independent
Director has not been, and during the continuation of his or her
service as Independent Director is not: (i) an employee,
A-2
director, stockholder, partner or officer of the Company or any
of its Affiliates (other than his or her service as an
Independent Director of the Company); (ii) a customer or supplier
of the Company or any of its Affiliates; or (iii) any member of
the immediate family of a person described in (i) or (ii).
"Intangible Transition Charges" means the amounts authorized
by the PUC to be imposed on all Customer bills with respect to
the Intangible Transition Property and collected, through a non-
bypassable mechanism, by West Penn or its successor or by any
other entity which provides electric service to Customers, to
recover Qualified Transition Expenses pursuant to the Qualified
Rate Order.
"Intangible Transition Property" means the irrevocable right
of West Penn or its successor or assignee to collect Intangible
Transition Charges from Customers to recover the Qualified
Transition Expenses described in the Qualified Rate Order,
including all right, title and interest of West Penn or its
successor or assignee in such order and in all revenues,
collections, claims, payments, money or proceeds of or arising
from Intangible Transition Charges pursuant to such order, and
all proceeds of any of the foregoing.
"Management Agreement" means the agreement of the Directors
in the form attached hereto as Schedule C. The Management
Agreement shall be deemed incorporated into, and a part of, this
Agreement.
"Material Action" means to consolidate or merge the Company
with or into any Person, or sell all or substantially all of the
assets of the Company, or to institute proceedings to have the
Company be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the
Company or file a petition seeking, or consent to, reorganization
or relief with respect to the Company under any applicable
federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the
benefit of creditors of the Company, or admit in writing the
Company's inability to pay its debts generally as they become
due, or, to the fullest extent permitted by law, take action in
furtherance of any such action, or dissolve or liquidate the
Company.
"Member" means West Penn Funding Corporation, as the member
of the Company, and includes any Person admitted as an additional
member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement, each in its
capacity as a member of the Company; provided, however, the term
"Member" shall not include the Special Members.
"Obligations" shall mean the indebtedness, liabilities and
obligations of the Company under or in connection with this
Agreement, the other Basic Documents or any related document in
effect as of any date of determination.
"Officer" means an officer of the Company described in
Section 11.
A-3
"Officer's Certificate" means a certificate signed by any
Officer of the Company who is authorized to act for the Company
in matters relating to the Company.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, limited liability
partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or
not a legal entity, and any governmental authority.
"PUC" means the Pennsylvania Public Utility Commission or
any successor.
"Qualified Rate Order" means the order of the PUC issued on
November 19, 1998, as supplemented by a supplemental qualified
rate order of the PUC issued on August 12, 1999, adopted in
accordance with the Statute, which, among other things, creates
the Intangible Transition Property and authorizes the imposition
and collection of the Intangible Transition Charges by West Penn
or its assignee.
"Qualified Transition Expenses" has the meaning assigned to
that term in the Qualified Rate Order.
"Rate Schedule" means each of the rate schedules into which
Customers are divided as of the date hereof, as such rate
schedules may be reconfigured from time to time.
"Rating Agency" means any rating agency rating the
Transition Bonds of any Class or Series at the time of issuance
thereof at the request of the Company. If no such organization
or successor is any longer in existence, "Rating Agency" shall be
a nationally recognized statistical rating organization or other
comparable Person designated by the Company, notice of which
designation shall be given to the Bond Trustee under the
Indenture and the Servicer.
"Rating Agency Condition" means, with respect to any action,
the notification in writing by each Rating Agency to West Penn,
the Seller, the Servicer, the Bond Trustee and the Company that
such action will not result in a reduction or withdrawal of the
then current rating by such Rating Agency of any outstanding
Series or Class of Transition Bonds issued by the Company.
"Sale Agreement" means the Intangible Transition Property
Sale Agreement to be dated as of November 16, 1999, between the
Seller and the Company, relating to the sale of Intangible
Transition Property to the Company, as the same may be amended or
supplemented from time to time.
"Seller" means West Penn Funding Corporation and its
successors in interest to the extent permitted under the Sale
Agreement.
"Series" means any series of Transition Bonds issued by the
Company.
A-4
"Series Supplement" means an indenture supplemental to the
Indenture that authorizes a particular Series of Transition
Bonds.
"Servicer" means West Penn, as the servicer of the
Intangible Transition Property, and each successor to West Penn
(in the same capacity) pursuant to Section 5.03 or 6.04 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement to be
dated as of November 16, 1999, between the Company and the
Servicer, as the same may be amended and supplemented from time
to time.
"Special Member" means, upon such person's admission to the
Company as a member of the Company pursuant to Section 5(c), a
person acting as Independent Director, in such person's capacity
as a member of the Company. A Special Member shall only have the
rights and duties expressly set forth in this Agreement.
"Statute" means the Pennsylvania Electricity Generation
Customer Choice and Competition Act, Chapter 28 of Title 66 of
the Pennsylvania Consolidated Statutes, 66 Pa. C.S., '2801, et
seq.
"Transition Bonds" means "transition bonds" (as defined in
the Statute) issued by the Company.
"Underwriting Agreement" means the Underwriting Agreement to
be dated as of November 3, 1999, among West Penn, the Seller, the
Company and the underwriters named therein.
"West Penn" means West Penn Power Company, a Pennsylvania
corporation.
B. Rules of Construction
Definitions in this Agreement apply equally to both the
singular and plural forms of the defined terms. The words
"include" and "including" shall be deemed to be followed by the
phrase "without limitation." The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph
or subdivision. The Section titles appear as a matter of
convenience only and shall not affect the interpretation of this
Agreement. All Section, paragraph, clause, Exhibit or Schedule
references not attributed to a particular document shall be
references to such parts of this Agreement.
A-5
SCHEDULE B
Member
Agreed Value Membership
Name Mailing Address of Capital Interest
Contribution
West Penn 0000X Xxxxxxxxxxx Xx.
Xxxxxxx Xxx Xxxxx, Xxxxxx $3,000,000 100%
Corporation 89119
B-1
SCHEDULE C
Management Agreement
November 3, 1999
Management Agreement --West Penn Funding LLC
For good and valuable consideration, each of the undersigned
Persons, who have been designated as directors of West Penn
Funding LLC, a Delaware limited liability company (the
"Company"), in accordance with the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of
November 3, 1999, as it may be amended or restated from time to
time (the "LLC Agreement"), hereby agree as follows:
1. Each of the undersigned accepts such Person's rights
and authority as a Director under the LLC Agreement and agrees to
perform and discharge such Person's duties and obligations as a
Director under the LLC Agreement, and further agrees that such
rights, authorities, duties and obligations under the LLC
Agreement shall continue until such Person's successor as a
Director is designated or until such Person's resignation or
removal as a Director in accordance with the LLC Agreement. Each
of the undersigned agrees and acknowledges that it has been
designated as a "manager" of the Company within the meaning of
the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the
undersigned agrees, solely in its capacity as a creditor of the
Company on account of any indemnification or other payment owing
to the undersigned by the Company, not to acquiesce, petition or
otherwise invoke or cause the Company to invoke the process of
any court or governmental authority for the purpose of commencing
or sustaining a case against the Company under any federal or
state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Company or any substantial part
of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Initially capitalized terms used and not otherwise defined
herein have the meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Management Agreement and all of which together shall constitute
one and the same instrument.
C-1
IN WITNESS WHEREOF, the undersigned have executed this
Management Agreement as of the day and year first above written.
/S/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
/S/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
/S/ XXXXXX X. XXXXXXXX, XX.
Xxxxxx X. Xxxxxxxx, Xx.
/S/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
/S/ XXX X. XXXXXXXX
Xxx X. Xxxxxxxx
C-2
SCHEDULE D
DIRECTORS
1. Xxxxx X. Xxxxxxx
2. Xxxxxxx X. Xxxxx
3. Xxxxxx X. Xxxxxxxx, Xx.
4. Xxxx X. Xxxxxxxx
5. Xxx X. Xxxxxxxx
C-3
SCHEDULE E
OFFICERS TITLE
Xxxxxxx X. Xxxxxxx President
Xxxxxxx Xxxxxx Vice President
Xxxxx X. Xxxxxxx Treasurer
Xxxxxx Xxxx Secretary
Xxxxxx X. Xxxxx Vice President and
Assistant Treasurer
Xxxxxxxx X. Xxxxx Vice President and
Assistant Secretary
Xxxxxx X. Xxxxxxxx, Xx. Assistant Secretary
C-4
