Exhibit 50.2
EXECUTION COPY
LIMITED LIABILITY COMPANY AGREEMENT
OF
HEC/CJTS Energy Center LLC,
a Delaware Limited Liability Company,
is made and is effective as of March 2, 2001
by
HEC INC.,
a Massachusetts Corporation
LIMITED LIABILITY COMPANY AGREEMENT
OF
HEC/CJTS ENERGY CENTER LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of HEC/CJTS ENERGY CENTER LLC, a Delaware
limited liability company (the "Company"), is made and is
effective as of March 2, 2001 by HEC INC., a Massachusetts
corporation, as the sole member of the Company (the "Sole
Member") and Xxxxxxxxxxx X. Xxxx and Xxxxx X. Xxxxxx as the
Special Members (as defined herein).
WHEREAS, the Sole Member has caused to be filed a
Certificate of Formation with the Secretary of State of
Delaware (the "Secretary") to organize the Company under and
pursuant to the Act (as herein defined) and desires to enter
into this Agreement to set forth the rights, powers and
interests of the Sole Member with respect to the Company and
its Membership Interest therein and to provide for the
management of the business and operations of the Company;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained and other good and
valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Sole
Member, intending to be legally bound, hereby agrees as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. Except as otherwise
herein expressly provided, the following terms and phrases
shall have the meanings as set forth below:
"Act" shall mean the Delaware Limited Liability
Company Act, Del. Code Xxx. tit. 6, Section 18-101 et seq.
(1998), as the same may hereafter be amended from time to
time.
"Affiliate" shall mean, when used with reference
to a specific Person, any other Person that, directly or
indirectly, through one or more intermediaries, Controls, is
Controlled by or is under common Control with such specific
Person.
"Agreement" shall mean this Limited Liability
Company Agreement of the Company, as amended, modified,
supplemented or restated from time to time in accordance
with the terms hereof.
"Bankruptcy" means, with respect to any Person, if such
Person (i) makes an assignment for the benefit of creditors,
(ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency
proceeding, (iv) files a petition or answer seeking for
itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief
under any statute, law or regulation, (v) files an answer or
other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding
of this nature, or (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 if 120 days after the commencement of any proceeding
against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief under any statute, law or regulation, 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, collectively, the Developer
Lease Assignment Agreement, the Company Lease Assignment
Agreement, the Contract of Purchase for the Certificates of
Participation and the Trust Indenture.
"Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions or trust
companies in New York, New York or Hartford, Connecticut are
authorized or obligated by law, regulation or executive
order to remain closed.
"Capital Contribution" shall mean, with respect to the
Sole Member, the amount of cash and the value of any
property contributed to the Company.
"Certificate of Formation" shall mean the Certificate
of Formation of the Company filed with the Secretary on
March 2, 2001 as described in Section 2.01 and as amended,
modified, supplemented, or restated from time to time.
"Certificates" shall mean the certificates at any time
issued pursuant to the Trust Indenture or any supplement
thereto.
"Company" shall have the meaning assigned to such term
in the preamble hereto.
"Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through
ownership of voting securities or general partnership or
manager interests, by contract or otherwise. "Controls" 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.
"Director" shall mean a member of the Management Committee.
"Entity" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint
venture, foundation, trust, business trust, real estate
investment trust or association.
"GAAP" shall mean generally accepted accounting principles in
effect in the United States from time to time.
"HEC Affiliated Group" shall mean the Sole Member and any
Affiliate of the Sole Member (other than the Company).
"Independent Director" shall mean a natural person who
is familiar with and has experience with asset
securitization and is not at the time of appointment, has
not been at any time preceding such appointment and is not
during the term of such appointment (other than as
incidental to such person's role as Independent Director):
(i) a member, stockholder, partner, director, manager,
officer or employee of any member of the HEC Affiliated
Group (other than the Company and any such member of the HEC
Affiliated Group that is a bankruptcy-remote special purpose
entity formed or to be formed in connection with any
securitization transaction on behalf of any member of the
HEC Affiliated Group); (ii) a customer, supplier or other
person who derives more than ten percent (10%) of its
purchases or revenues from its activities with the Company
or any member of the HEC Affiliated Group; (iii) a member of
the family of any such member, stockholder, partner,
director, manager, officer, employee, customer or supplier;
or (iv) a trustee in bankruptcy for any member of the HEC
Affiliated Group.
"Management Agreement" shall mean the agreement or
agreements of the members of the Management Committee, each
in the form attached hereto as Exhibit A. The Management
Agreement shall be deemed incorporated into, and part of,
this Agreement.
"Management Committee" shall mean a committee composed
of at least three and no more than five Directors, at least
two of whom at all times must qualify as Independent
Directors. The Company shall be without authority to take
the actions specified herein as requiring the vote or
consent of the Management Committee absent the currently
effective appointment of at least two Independent Directors
to the Management Committee.
"Membership Interest" shall mean the limited liability
company interest of the Sole Member in the Company.
"Officer" shall mean an officer of the Company as appointed
and serving in accordance with Section 6.06.
"Person" shall mean any natural person or Entity.
"Secretary" shall have the meaning assigned to such
term in the first recital of this Agreement.
"Sole Member" shall have the meaning assigned to such
term in the preamble hereto.
"Special Member" shall mean, upon such person's
admission to the Company as a member of the Company pursuant
to Section 3.02(b), 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.
"Trust Indenture" shall mean the Trust Agreement to
be entered into by the Company and Citizens Bank of
Connecticut, as trustee, as the same may be amended,
supplemented or modified from time to time.
ARTICLE 2
FORMATION AND BUSINESS OF THE COMPANY
Section 2.01 Formation. The Company has been organized
as a Delaware limited liability company under and pursuant
to the Act by the filing of the Certificate with the
Secretary by Xxxxx X. Xxxxxx, Xx., as an "authorized person"
under the Act. Upon the filing of the Certificate with the
Secretary, his powers as an "authorized person" ceased, and
each Officer, acting singly, thereupon became and shall
continue as a designated "authorized person" of the Company.
An Officer shall execute, deliver and file any other
certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business
in any jurisdiction in which the Company may wish to conduct
business. To the extent that the rights or obligations of
the Sole Member are different by reason of any provision of
this Agreement than they would be in the absence of such
provision, this Agreement shall, to the extent permitted by
the Act, control.
Section 2.02 Name. The name of the Company shall be
"HEC/CJTS Energy Center LLC". The business of the Company
may be conducted under that name or, upon compliance with
applicable laws, any other name that the Sole Member deems
appropriate or advisable.
Section 2.03 Principal Office. The location of the principal
place of business of the Company shall be at such location as shall be
provided from time to time by the Sole Member.
Section 2.04 Registered Agent and Registered Office.
The registered agent of the Company shall be the initial
registered agent named in the Certificate or such other
Person or Persons as the Sole Member may designate from time
to time in the manner provided by the Act. The registered
office of the Company required by the Act to be maintained
in the State of Delaware shall be the initial registered
office named in the Certificate or such other office (which
need not be a place of business of the Company) as the Sole
Member may designate from time to time in the manner
provided by the Act.
Section 2.05 Purpose. The purpose for which the Company
is formed is limited solely to the following activities:
(a) to enter into, perform and comply with the Basic
Documents;
(b) to engage in any lawful act or activity and to
exercise any powers permitted to limited liability companies
formed under the laws of the State of Delaware that, in
either case, are incidental to and necessary, suitable or
convenient for the accomplishment of the above-mentioned
purpose.
The Company shall not engage in any activity other than
in connection with the foregoing or other than as required
or authorized by the terms of the Basic Documents. The
Company shall have all powers reasonably necessary or
convenient to effect the foregoing purposes, including all
powers granted under the Act. The Company, and any Officer
or Director, including any Independent Director, on behalf
of the Company, may enter into the Basic Documents and
perform their respective obligations under the Basic
Documents and all documents, agreements, certificates or
financing statements contemplated thereby or related
thereto, all without any further act, vote or approval of
the Sole Member, the Management Committee, any Director or
other person or entity, notwithstanding any other provision
of this Agreement, the Act, or other applicable law, rule or
regulation. The authorization set forth in the preceding
sentence shall not be deemed a restriction on the power and
authority of any Officer or Director, including any
Independent Director, to enter into other agreements or
documents on behalf of the Company, to the extent permitted
hereunder.
Section 2.06 Separate Existence. The Company, and the Sole
Member and the Management Committee on behalf of the Company, shall:
(a) Maintain in full effect its existence, rights and
franchises as a limited liability company under the laws of
the State of Delaware and obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this
Agreement and each other instrument or agreement necessary or
appropriate to the proper administration hereof and to permit and
effectuate the undertakings contemplated hereby.
(b) Hold itself out to the public and all other
persons as a legal entity separate from the Sole Member at
all times, and correct any known misunderstandings regarding
its separate identity.
(c) Maintain with commercial banking institutions its
own deposit account or accounts separate from those of any
member of the HEC Affiliated Group.
(d) Maintain an arm's length relationship with its
Affiliates and the HEC Affiliated Group.
(e) Ensure that, to the extent that it shares the same
officers or other employees with the Sole Member or any
member of the HEC Affiliated Group, the salaries of, and the
expenses related to providing benefits to, such officers and
other employees shall be fairly allocated among such
entities, and each such entity shall bear its fair share of
the salary and benefit costs associated with all such common
officers and employees.
(f) Pay all of its operating expenses incurred by it
from the assets of the Company, and ensure that, to the
extent that it jointly contracts with the Sole Member or any
member of the HEC Affiliated Group to do business with
vendors or service providers or to share overhead expenses,
the costs incurred in so doing shall be allocated fairly
among such entities, and each such entity shall bear its
fair share of such costs.
(g) Maintain a principal executive and administrative
office through which its business is conducted separate from
those of the Sole Member and any Affiliate of the HEC
Affiliated Group. To the extent that the Company and the
Sole Member or any Affiliate of the HEC Affiliated Group
have offices in contiguous space, there shall be fair and
appropriate allocation of overhead costs among them, and
each such entity shall bear its fair share of such expenses.
(h) Observe all necessary, appropriate and customary
formalities, including, but not limited to, holding all
regular and special meetings including meetings of the
Management Committee, appropriate to authorize all action on
behalf of the Company, keeping all resolutions or consents
necessary to authorize actions taken or to be taken, and
maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and
intercompany transaction accounts.
(i) Cause to have prepared and filed its own tax
returns, if any, as may be required under applicable law, to
the extent (1) not part of a consolidated group filing a
consolidated 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.
(j) At all times vest the management of the Company in
the Management Committee and ensure that its Management
Committee shall at all times include at least two
Independent Directors.
(k) Refrain from commingling its assets with those of
the Sole Member or any member of the HEC Affiliated Group.
(l) Refrain from making any loan or advance to,
owning, or acquiring any stock or securities of any Person,
including the Sole Member, except as permitted in the Basic
Documents.
(m) Act solely in its own name and through its own
Officers and agents, and no member of the HEC Affiliated
Group shall be appointed to act as agent of the Company,
except as expressly contemplated by the Basic Documents.
(n) Ensure that no member of the HEC Affiliated Group
shall advance funds to the Company, or otherwise guaranty
debts of the Company, except as provided in the Basic
Documents; provided, however, the Sole Member may contribute
to the capital of the Company funds required in connection
with the initial capitalization, organization and ongoing
operations of the Company.
(o) Not enter into any guaranty, or otherwise become
liable, with respect to any obligation of any member of the
HEC Affiliated Group and not hold itself out, or permit
itself to be held out, as having agreed to pay or as being
liable for the debts of the Sole Member or any other member
of the HEC Affiliated Group.
(p) Comply with all restrictions on its business and
operations as set forth in Sections 2.05 and 2.07.
(q) Failure of the Company, or the Sole Member or the
Management Committee 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 Sole Member or the Management Committee.
Section 2.07 Limitation on Certain Activities.
Notwithstanding any other provisions of this Agreement, the
Company, and the Sole Member or Management Committee on
behalf of the Company, shall not:
(a) engage in any business or activity other than as
set forth in Article 2 hereof;
(b) without the affirmative vote of the Sole Member and
the affirmative vote of all of the Directors, including the
Independent Directors, initiate any event of Bankruptcy with respect
to the Company or take any company action in furtherance of any such
event of Bankruptcy;
(c) merge or consolidate with any other corporation,
company, or entity or, except to the extent permitted by the
Basic Documents, sell all or substantially all of its assets
or acquire all or substantially all of the assets or capital
stock or other ownership interest of any entity;
(d) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other);
(e) incur any indebtedness (other than the indebtedness,
if any, incurred under the Basic Documents), assume or guarantee any
indebtedness of any other Person or pledge its assets for the benefit
of any other Person; or
(f) to the fullest extent permitted by law, without the affirmative
vote of the Sole Member and the affirmative vote of all Directors,
including the Independent Directors, execute any dissolution,
liquidation, or winding up of the Company.
Section 2.08 No State Law Partnership. No provisions of
this Agreement (including, without limitation, the provisions
of Article 6) shall be deemed or construed to constitute a
partnership (including, without limitation, a limited partnership)
or joint venture, or the Sole Member a partner or joint venturer of or
with any Director or the Company, for any purposes.
Section 2.09 Address of the Sole Member. The address of the Sole
Member is set forth on Exhibit B hereto, as amended from time to
time, attached hereto and made a part hereof.
ARTICLE 3
TERM
Section 3.01 Commencement. The Company's term commenced upon the
filing of the Certificate with the Secretary on March 2, 2001.
The existence of the Company as a separate legal entity shall continue
until the cancellation of the Certificate as provided in the Act.
Section 3.02 Continuation.
(a) Notwithstanding any provision of this Agreement, a Bankruptcy
of the Sole Member will not cause the Sole Member to cease to be a
member of the Company, and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
Notwithstanding any other provision of this Agreement, the Sole Member
waives any right it might have to agree in writing to dissolve the
Company upon the occurrence of a Bankruptcy of the Sole Member or the
occurrence of any other event which under the Act would otherwise cause
the Sole Member to cease to be a member of the Company.
(b) Upon the occurrence of any event that causes the Sole 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 Article 8, or (ii) the resignation of the Sole Member and the
admission of an additional member of the Company pursuant to Article 8),
each person acting as an Independent Director shall, without any action
of any Person and simultaneously with the Sole 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; 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
have 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 a 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 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 shall not be a member of the Company.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.01 Capital Contribution. The Sole Member may be required
or shall be permitted to make Capital Contributions in cash or property
to the Company on such terms and conditions as may be agreed to by the
Sole Member from time to time. The amounts so contributed by the Sole
Member shall be credited to the Sole Member's capital account, as
provided in Section 4.02 below. The Sole Member shall have a Membership
Interest of one hundred percent (100%) of the Company.
Section 4.02 Capital Account. The Company shall establish an
individual capital account for the Sole Member (the "Capital Account").
Section 4.03 Interest on and Return of Capital Account. The Sole
Member shall not be entitled to interest on its Capital Contribution.
ARTICLE 5
ALLOCATIONS; BOOKS
Section 5.01 Allocations of Income and Loss.
(a) Book Allocations. The net income and net loss of the Company
shall be allocated entirely to the CapitalAccount of the Sole Member.
(b) Tax Allocations. Because the Company is not making (and will
not make) an election to be treated as an association taxable as a
corporation under Section 301.7701-3(a) of the U.S. Treasury
Regulations, and because the Company is a business entity that has a
single owner and is not a corporation, it shall be disregarded as an
entity separate from its owner for federal income tax purposes under
Section 301.7701-3(b)(1) of the U.S. Treasury Regulations. Accordingly,
all items of income, gain, loss, deduction and credit of the Company
for all taxable periods will be treated for federal income tax
purposes, and for state and local income and other tax purposes to
the extent permitted by applicable law, as realized or incurred
directly by the Sole Member. To the extent not so permitted, all items
of income, gain, loss, deduction and credit of the Company shall be
allocated entirely to the Sole Member.
Section 5.02 Books of Account. At all times during the continuance
of the Company, the Company shall maintain or cause to be maintained
full, true, complete and correct books of account in accordance with
GAAP, using the fiscal year and taxable year of the Sole Member. In
addition, the Company shall keep all records required to be kept pursuant
to the Act.
Section 5.03 Distributions. The Company may make distributions to
the Sole Member from time to time upon the unanimous vote of the
Management Committee. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not be required to make
a distribution to the Sole Member on account of its interest in the
Company if such distribution would violate Section 18-607 of the Act or
any other applicable law or any of the Basic Documents.
ARTICLE 6
MANAGEMENT OF THE COMPANY
Section 6.01 Management of Company. Except as otherwise provided
in this Agreement, the property and business of the Company shall be
controlled and managed by the Management Committee; provided, however,
that except as otherwise provided in this Agreement, the Officers acting
alone can bind or execute any instrument on behalf of the Company, and
may sign all checks, drafts, and other instruments obligating the
Company to pay money. Notwithstanding the last sentence of Section
18-402 of the Act, except as provided in this Agreement, a Director
may not bind the Company. The Sole Member shall appoint two Independent
Directors. Upon the removal or other event causing an Independent
Director to cease to act as an Independent Director, the Sole Member
shall appoint, as soon as reasonably practicable, a successor
Independent Director. The Company shall pay each Independent Director
an annual fee as may be approved from time to time by the Management
Committee, but totaling not less than $1,000 per year. Each Director,
including each Independent Director, is hereby deemed to be a "manager"
within the meaning of Section 18-101(10) of the Act.
Section 6.02 Withdrawal of Director. Notwithstanding anything
herein to the contrary, an Independent Director may not withdraw or
resign as a Director of the Company without the consent of the Sole
Member.
Section 6.03 Duties of Directors. To the fullest extent permitted by
applicable law, including without limitation Section 18-1101(c) of the
Act, the fiduciary duty of the Directors, including the Independent
Directors, in respect of any decision on any matter referred to in
this Agreement shall be owed solely to the Company (including its
creditors) and not to the Sole Member or any other holder of an equity
interest in the Company as may exist at such time. Each Director shall
execute and deliver the Management Agreement.
Section 6.04 Removal of Director. A Director (including
an Independent Director) may be removed at any time, with or without
cause, upon the written election of the Sole Member; provided,
however, that there shall, at all times, be at least one (1)
independent director.
Section 6.05 Quorum; Acts of the Management Committee. At all
meetings of the Management Committee, 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 Management Committee. If a quorum
shall not be present at any meeting of the Management Committee, 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. The Directors may participate in meetings of
the Management 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. Any action required or permitted
to be taken at any meeting of the Management Committee or any
committee thereof 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 the Directors
having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
Directors entitled to vote thereon were present and voted. Unless
otherwise provided in the Agreement, on any matter that is to be voted
on by Directors, the Directors may vote in person or by proxy.
Section 6.06 Officers. The Sole Member may, from time to time as
it deems advisable, appoint officers of the Company (the "Officers")
and assign in writing titles (including, without limitation, President,
Vice President, Secretary, and Treasurer) to any such person. Unless the
Sole Member decides otherwise, if the title is one commonly used for
officers of a business corporation formed under the Delaware General
Corporation Law the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are
normally associated with that office. Any delegation pursuant to this
Section 6.06 may be revoked at any time by the Sole Member. The Officers
shall be those individuals listed on Exhibit C from time to time
attached hereto. The Sole Member may revise Exhibit C in its sole
discretion at any time.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 7.01 Dissolution. The Company shall be dissolved and
its affairs shall be wound up upon the occurrence of the earliest of
the following events:
(a) subject to Section 2.07, the election to dissolve the Company
made in writing by the Sole Member and each Director, including without
limitation each Independent Director, as permitted by the Basic Documents;
(b) the occurrence of any event that causes the Sole Member of the
Company to cease to be a member of the Company unless the business of the
Company is continued without dissolution in a manner permitted by the Act
or this Agreement; or
(c) the entry of a decree of judicial dissolution of the Company
pursuant to 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 ninety (90) days after the
occurrence of the event that terminated the continuing 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.
Section 7.02 Accounting. In the event of the dissolution,
liquidation and winding up of the Company, a proper accounting shall be
made of the Capital Account of the Sole Member and of the net income or
net loss of the Company from the date of the last previous accounting to
the date of dissolution.
Section 7.03 Certificate of Cancellation. As soon as possible
following the occurrence of any of the events specified in Section 7.01
and the completion of the winding up of the Company, the person or entity
winding up the business and affairs of the Company shall cause to be
executed a Certificate of Cancellation of the Certificate in such form
as shall be prescribed by the Secretary and file the Certificate of
Cancellation of the Certificate as required by the Act.
Section 7.04 Winding Up. Upon the occurrence of any event
specified in Section 7.01, the Company shall continue solely for the
purpose of winding up its affairs in an orderly manner, liquidating
its assets, and satisfying the claims of its creditors. The Sole Member
shall be responsible for overseeing the winding up and liquidation of
the Company, shall take full account of the liabilities of the Company
and its assets, shall either cause its assets to be sold or distributed,
and if sold as promptly as is consistent with obtaining the fair market
value thereof, shall cause the proceeds therefrom, to the extent
sufficient therefor, to be applied and distributed as provided in
Section 7.06.
Section 7.05 Order of Payment of Liabilities Upon Dissolution.
After determining that all known debts and liabilities of the Company,
including all contingent, conditional or unmatured liabilities of the
Company, in the process of winding up, including, without limitation,
debts and liabilities to the Sole Member in the event it is a creditor
of the Company to the extent otherwise permitted by law, have been paid
or adequately provided for, the remaining assets shall be
distributed in cash or in kind to the Sole Member.
Section 7.06 Limitations on Payments Made in Dissolution. Except
as otherwise specifically provided in this Agreement, the Sole Member
shall be entitled to look solely to the assets of the Company for the
return of its positive Capital Account balance and shall have no
recourse for its Capital Contribution and/or share of net income (upon
dissolution or otherwise) against any Director or the Management
Committee.
ARTICLE 8
TRANSFER AND ASSIGNMENT
Section 8.01 Transfer of Membership Interests.
(a) The Sole Member may transfer its Membership Interest, but the
transferee shall not be admitted as a member except in accordance with
Section 8.02. Until the transferee is admitted as a member, the Sole
Member shall continue to be the sole member of the Company and to be
entitled to exercise any rights or powers of the Sole Member with
respect to the Membership Interest transferred.
(b) Any purported transfer of any Membership Interest in
violation of the provisions of this Agreement shall be wholly void
and shall not effectuate the transfer contemplated thereby.
Notwithstanding anything contained herein to the contrary, the Sole
Member may not transfer any Membership Interest in violation of any
provision of this Agreement or in violation of any applicable Federal
or state securities laws.
Section 8.02 Admission of Transferee as Member. A transferee of a
Membership Interest desiring to be admitted as a member must execute a
counterpart of, or an agreement adopting, this Agreement and shall not
be admitted without the unanimous affirmative vote of the Management
Committee, which vote must include the affirmative vote of the
Independent Directors. Upon admission of the transferee as a member, the
transferee shall have, to the extent of the Membership Interest
transferred, the rights and powers and shall be subject to the
restrictions and liabilities of the Sole Member under this Agreement
and the Act. Notwithstanding anything in this Agreement to the
contrary, any successor to the Sole Member by merger or consolidation
shall, without further act, be the Sole Member hereunder, and such
merger or consolidation shall not constitute a
transfer for purposes of this Agreement.
ARTICLE 9
GENERAL PROVISIONS
Section 9.01 Notices. Unless otherwise specifically provided
herein, all notices, directions, consents and waivers required under
the terms and provisions of this Agreement shall be in English and in
writing, and any such notice, direction, consent or waiver may be given
by United States mail, courier service, facsimile transmission or
electronic mail (confirmed by telephone, United States mail or courier
service in the case of notice by facsimile transmission or electronic
mail) or any other customary means of communication, and any such
notice, direction, consent or waiver shall be effective when delivered,
or if mailed, three days after deposit in the United States mail with
proper postage for ordinary mail prepaid, to the appropriate party at
its address set forth on Exhibit B hereto. The address of any party
hereto may be changed by a notice in writing given in accordance with
the provisions of this Section 9.01.
Section 9.02 Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions concerning limitations of
actions), shall be governed by and construed in accordance with the
laws of the State of Delaware, notwithstanding any conflict-of-laws
doctrines of such state or other jurisdiction to the contrary.
Section 9.03 Execution of Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed
to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of
all of the parties reflected hereon as the signatories.
Section 9.04 Severability. The provisions of this
Agreement are independent of and separable from each other,
and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in
whole or in part.
Section 9.05 Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral
or written, except as herein contained.
Section 9.06 Amendments to Organizational Documents.
(a) This Agreement may not be altered, amended or repealed except
pursuant to a written agreement executed and delivered by the Sole
Member. Notwithstanding the preceding sentence, the Company shall not
adopt a new Limited Liability Company Agreement or alter, amend or
repeal any provision of Sections 1.01 (including the definition of
"Independent Director"), 2.05, 2.06, 2.07, 3.02, 6.02, 7.01, 8.02 ,
9.06 and 9.11 of this Agreement without the unanimous affirmative
vote of the Management Committee, which vote must include the
affirmative vote of each Independent
Director.
(b) The Company's power to alter, amend or repeal the Certificate
shall be vested in the Sole Member.
Upon obtaining the approval of any amendment, supplement or
restatement of the Certificate, the Company shall cause a Certificate
of Amendment or Amended and Restated Certificate to be prepared,
executed and filed in accordance with the Act.
Section 9.07 Paragraph Headings. The paragraph headings in this
Agreement are for convenience and they form no part of this Agreement
and shall not affect its interpretation.
Section 9.08 Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed
to include any other number, singular or plural, and any other gender,
masculine, feminine or neuter, as the context indicates is appropriate.
The term "including" shall mean "including, but not limited to."
Section 9.09 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 Sole Member nor any Director or Officer shall be obligated
personally for any such debt, obligation or liability of the Company
solely by reason of being the Sole Member or a Director or Officer of
the Company. To the extent permitted by applicable law, no Director or
Officer shall be personally liable to the Company for monetary damages
for breach of the duty of care as an Officer or a Director for any act
taken or omission made in good faith and without willful misconduct.
Section 9.10 Assurances. The Sole Member shall hereafter execute
and deliver such further instruments and do such further acts and things
as may be reasonably required or useful to carry out the intent and
purpose of this Agreement and as are not inconsistent with the terms
hereof.
Section 9.11 Enforcement by Independent Director. Notwithstanding
any other provision of this Agreement, the Sole Member agrees that this
Agreement, (including without limitation, Sections 2.05, 2.06, 2.07,
3.02, 6.02, 7.01, 8.02, 9.06 and 9.11) constitutes a legal, valid and
binding agreement of the Sole Member, and is enforceable against the
Sole Member by the Independent Directors in accordance with its terms.
The Independent Directors are intended beneficiaries of this Agreement.
Section 9.12 Waiver of Partition; Nature of Interest. Except as
otherwise expressly provided in this Agreement, to the fullest extent
permitted by law, the Sole Member hereby irrevocably waives any right
or power that the Sole Member might have to cause the Company or any of
its assets to be partitioned, to cause the appointment of a receiver
for all or any portion of the assets of the Company, to compel any
sale of all or any portion of the assets of the Company pursuant to
any applicable law or to file a complaint or to institute any proceeding
at law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Sole Member shall not have any interest
in any specific assets of the Company, and the Sole Member shall not
have the status of a creditor with respect to any distribution pursuant
to Section 5.03 hereof. The interest of the Sole Member in the Company
is personal property.
ARTICLE 10
INDEMNIFICATION
Section 10.01 Indemnification. Subject to Section 10.03 of this
Article, the Company shall, to the fullest extent permitted by law,
indemnify any Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of
the fact that he is or was a director, manager, officer, employee or
agent of the Company, or is or was serving at the request of the Company
as a manager, director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit, proceeding or in enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 10.02 Indemnification for Suits by or in Right of Company.
Subject to Section 10.03 of this Article, the Company shall, to the
fullest extent permitted by law, indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Company to procure
a judgment in its favor by reason of the fact that he is or was a
director, manager, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a manager, director,
officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit or enforcing such
person's right to indemnification hereunder, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company; except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the Court of Chancery or such other court shall deem
proper.
Section 10.03 Authorization. Any indemnification under this
Article (unless ordered by a court) shall be made by the Company only
as authorized in the specific case upon a determination that
indemnification of the manager, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in Section 10.01 or Section 10.02, of this Article,
as the case may be. Such determination shall be made (i) by independent
legal counsel in a written opinion or (ii) by the Sole Member. To the
extent, however, that a manager, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 10.04 Good Faith. For purposes of any determination under
Sections 10.03 or 9.09 of this Agreement, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, or, with respect
to any criminal action or proceeding, to have had no reasonable cause to
believe his conduct was unlawful, if his action is based on the records
or books of account of the Company or of the Servicer or Administrator
or of another enterprise, or on information supplied to him by the
officers of the Company or of another enterprise in the course of their
duties, or on the advice of legal counsel for the Company or of another
enterprise or on information or records given or reports made to the
Company or of another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable
care by the Company or of another enterprise. The term "another
enterprise" as used in this Section 10.04 shall mean any corporation,
partnership, limited liability company, joint venture, trust or other
enterprise of which such person is or was serving at the request of the
Company as a manager, director, officer, employee or agent. The
provisions of this Section 10.04 shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed
to have met the applicable standard of conduct set forth in Sections
10.01 or 10.02 of this Article, as the case may be.
Section 10.05 Court Action. Notwithstanding any contrary
determination in the specific case under Section 10.03 of this Article,
and notwithstanding the absence of any determination thereunder, any
manager, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 10.01 and 10.02 of this Article.
The basis of such indemnification by a court shall be a determination
by such court that indemnification of the manager, officer, employee or
agent is proper in the circumstances because he has met the applicable
standards of conduct set forth in Section 10.01 and 10.02 of this
Article, as the case may be. Notice of any application for
indemnification pursuant to this Section 10.05 shall be given to the
Company promptly upon the filing of such application.
Section 10.06 Expenses. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be
paid by the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
manager, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Company as authorized in this Article.
Section 10.07 Non-Exclusivity. The indemnification and advancement
of expenses provided by or granted pursuant to this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by-law, agreement, contract, vote or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of
the Company that indemnification of the persons specified in Sections
10.01 and 10.02 of this Article shall be made to the fullest extent
permitted by law. The provisions of this Article shall not be deemed to
preclude the indemnification of any person who is not specified in
Section 10.01 or 10.02 of this Article but who the Company has the power
or obligation to indemnify under the provisions of the Act, or
otherwise.
Section 10.08 Insurance. The Company may purchase and maintain
insurance on behalf of any person who is or was a manager, officer,
employee or agent of the Company, or is or was serving at the request
of the Company as a manager, director, officer, employee or agent of
another company, partnership, joint venture, trust or other enterprise
against any liability asserted against him/her and incurred by him/her
in any such capacity, or arising out of his/her status as such, whether
or not the Company would have the power or the obligation to indemnify
him against such liability under the provisions of this Article.
Section 10.09 Consolidation/Merger. For purposes of this Article,
references to "the Company" shall include, in addition to the Company,
any constituent company (including any constituent of a constituent)
absorbed in a consolidation or merger that, if its separate existence
had continued, would have had the power and authority to indemnify
its managers, directors, officers, and employees or agents, so that
any person who is or was a manager, director, officer, employee or
agent of such constituent company, or is or was serving at the request
of such constituent company as a manager, director, officer, employee
or agent of another company, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Article with respect to the resulting or surviving company as he
would have with respect to such constituent company if its separate
existence had continued.
Section 10.10 Heirs, Executors, and Administrators. The
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be
a manager, director, office, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Sole Member hereto has executed this
Agreement or caused this Agreement to be executed on its behalf as
of the date first above written.
HEC INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
SPECIAL MEMBERS:
/s/ Xxxxxxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
EXHIBIT A
Management Agreement
March 13, 2001
HEC/CJTS Energy Center LLC
c/o HEC Energy Services
00 Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Re: Management Agreement - HEC/CJTS Energy Center LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned
persons, who have been designated as members of the management committee
of HEC/CJTS Energy Center LLC, a Delaware limited liability company
(the "Company"), in accordance with the Limited Liability Company
Agreement of the Company, dated as of March 2, 2001, as it may be
amended or restated from time to time (the "LLC Agreement"), hereby
agrees:
1. To accept such person's rights and authority as a member
of the Management Committee (as defined in the LLC Agreement) under
the LLC Agreement, to perform and discharge such person's duties
and obligations as a member of the Management Committee under the
LLC Agreement, and that such rights, authority, duties and obligations
under the LLC Agreement shall continue until such person's successor
as a member of the Management Committee is designated or until such
person's resignation or removal as a member of the Management Committee
in accordance with the LLC Agreement. A member of the Management
Committee is designated as a "manager" of the Company within the
meaning of the Delaware Limited Liability Company Act.
2. 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.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxxxxxx X. Xxxx
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Agreed to and Acknowledged as of the date first written above:
HEC/CJTS ENERGY CENTER LLC
By: HEC Inc.,
Its Member
By: --------------------------------
Xxxxx X. Xxxxxx President
EXHIBIT B
Notice Address of Sole Member
NAME OF MEMBER NOTICE ADDRESS
HEC Inc. by U.S. Mail or Courier:
HEC Inc.
00 Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Vice President Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 x0000
Email: xxxxxxx@xxxxxxxxx.xxx
EXHIBIT C
Officers
/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx President
/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx Vice President
/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx Treasurer
/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx Secretary
/s/ Xxxxxxxx X. Xxxxx Xxxxxxxx X. Xxxxx Assistant Secretary
