EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
CL&P FUNDING LLC,
a Delaware Limited Liability Company,
is made and is effective as of January 3, 2001
and is amended and restated as of March 30, 2001
by
THE CONNECTICUT LIGHT AND POWER COMPANY,
a Connecticut Corporation
TABLE OF CONTENTS
Article 1 DEFINITIONS
Section 1.01 Definitions
Article 2 FORMATION AND BUSINESS OF THE COMPANY
Section 2.01 Formation
Section 2.02 Name
Section 2.03 Principal Office
Section 2.04 Registered Agent and Registered Office
Section 2.05 Purpose
Section 2.06 Separate Existence
Section 2.07 Limitation on Certain Activities
Section 2.08 No State Law Partnership
Section 2.09 Address of the Sole Member
Article 3 TERM
Section 3.01 Commencement
Section 3.02 Continuation
Article 4 CAPITAL CONTRIBUTIONS
Section 4.01 Capital Contribution
Section 4.02 Capital Account
Section 4.03 Interest on and Return of Capital Account
Article 5 ALLOCATIONS; BOOKS
Section 5.01 Allocations of Income and Loss
Section 5.02 Books of Account
Section 5.03 Distributions
Article 6 MANAGEMENT OF THE COMPANY
Section 6.01 Management of Company
Section 6.02 Withdrawal of Director
Section 6.03 Duties of Directors
Section 6.04 Removal of Director
Section 6.05 Quorum: Acts of the Management Committee
Section 6.06 Officers
Section 6.07 Special Members
Article 7 DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 7.01 Dissolution
Section 7.02 Accounting
Section 7.03 Certificate of Cancellation
Section 7.04 Winding Up
Section 7.05 Order of Payment of Liabilities Upon Dissolution
Section 7.06 Limitations on Payments Made in Dissolution
Article 8 TRANSFER AND ASSIGNMENT
Section 8.01 Transfer of Membership Interests
Section 8.02 Admission of Transferee as Member
Article 9 GENERAL PROVISIONS
Section 9.01 Notices
Section 9.02 Controlling Law
Section 9.03 Execution of Counterparts
Section 9.04 Severability
Section 9.05 Entire Agreement
Section 9.06 Amendments to Organizational Documents
Section 9.07 Paragraph Headings
Section 9.08 Gender, Etc
Section 9.09 Limited Liability
Section 9.10 Assurances
Section 9.11 Enforcement by Independent Director
Section 9.12 Waiver of Partition; Nature of Interest
Article 10 INDEMNIFICATION
Section 10.01 Indemnification
Section 10.02 Indemnification for Suits by or in Right of Company
Section 10.03 Authorization
Section 10.04 Good Faith
Section 10.05 Court Action
Section 10.06 Expenses
Section 10.07 Non-Exclusivity
Section 10.08 Insurance
Section 10.09 Consolidation/Merger
Section 10.10 Heirs, Executors, and Administrators
LIMITED LIABILITY COMPANY AGREEMENT
OF
CL&P FUNDING LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of CL&P
FUNDING LLC, a Delaware limited liability company (the "Company"), is
made and is effective as of January 3, 2001, and is amended and restated
as of March 30, 2001, by THE CONNECTICUT LIGHT AND POWER COMPANY, a
Connecticut corporation, as the sole member of the Company (the "Sole
Member").
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; and
WHEREAS, this Agreement was made effective as of January 3, 2001 and
the Sole Member now wishes to amend and restate this Agreement in its
entirety as of the date hereof;
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
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, Sec. 18-101 et seq., as the same may hereafter be amended
from time to time.
"Administration Agreement" shall mean the Administration Agreement
to be entered into by the Administrator and the Company, as amended and
supplemented from time to time.
"Administrator" shall mean the Sole Member, as administrator under
the Administration Agreement, together with any successor thereto as
permitted thereby.
"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 Transition Property
Purchase and Sale Agreement, the Indenture, the Trust Agreement, the
Servicing Agreement, the Administration Agreement, the Certificate
Indenture, the Fee and Indemnity Agreement, the Note Purchase Agreement,
the Inter-Creditor Agreement and the Swap Agreement.
"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, Hartford, Connecticut or Wilmington, Delaware 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" shall mean the Certificate of Formation of the Company
filed with the Secretary on January 3, 2001 as described in Section 2.01
and as amended, modified, supplemented, or restated from time to time.
"Certificate Indenture" shall mean the Certificate Indenture to be
entered into by the Trust, as certificate issuer, a Delaware trustee and
a certificate trustee, as the same may be amended, supplemented or
modified from time to time.
"CL&P Affiliated Group" shall mean the Sole Member and any Affiliate
of the Sole Member (other than the Company).
"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 and a
manager within the meaning of the Act.
"Entity" shall mean any general partnership, limited partnership,
limited liability company, corporation, joint venture, foundation, trust,
business trust, real estate investment trust or association.
"Event of Bankruptcy" shall mean, with respect to any Person, that
such Person shall (i) institute proceedings to be adjudicated bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency
proceedings against it, (iii) file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law
relating to bankruptcy, (iv) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of such Person or a substantial part of its property, (v) make a general
assignment for the benefit of creditors or (vi) admit in writing its
inability to pay its debts generally as they become due.
"Fee and Indemnity Agreement" shall mean the Fee and Indemnity
Agreement to be entered into by the Company, the Trust as certificate
issuer, a certificate trustee, a Delaware trustee and the State of
Connecticut acting as settlor, as amended, supplemented or modified from
time to time.
"GAAP" shall mean generally accepted accounting principles in effect
in the United States from time to time.
"Indenture" shall mean that certain Note Indenture to be entered
into between the Company, as note issuer, and a note trustee, as amended,
supplemented or modified from time to time.
"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 CL&P
Affiliated Group (other than the Company and any such member of the CL&P
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 CL&P 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 CL&P 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 CL&P Affiliated Group.
"Inter-Creditor Agreement" shall mean the Inter-Creditor Agreement
to be entered into by the Company, the Sole Member, a note trustee and
certain other parties and relating to the purchase and sale arrangement
under which the Sole Member sells a portion of its accounts receivable on
a revolving basis to investors, as amended, supplemented or modified from
time to time.
"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
upon and after the acquisition by the Company of Transition Property must
qualify as Independent Directors. At all times after the acquisition by
the Company of Transition Property, 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.
"Note Purchase Agreement" shall mean the Note Purchase Agreement to
be entered into by the Company and the trust created under the Trust
Agreement, as amended and supplemented from time to time.
"Notes" shall mean the notes of the Company at any time issued
pursuant to the Indenture or any indenture supplemental thereto.
"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.
"Sale Agreements" shall have the meaning specified in Section 2.05.
"Secretary" shall have the meaning assigned to such term in the
first recital of this Agreement.
"Servicer" shall mean the Sole Member, as servicer under the
Servicing Agreement, together with any successor thereto as permitted
thereby.
"Servicing Agreement" shall mean that certain Transition Property
Servicing Agreement to be entered into by the Servicer and the Company,
as note issuer, as amended and supplemented from time to time.
"Sole Member" shall have the meaning assigned to such term in the
preamble hereto.
"Special Member" shall have the meaning specified in Section 6.07.
"Swap Agreement" shall mean any interest rate swap agreement to be
entered into by the Trust as certificate issuer and a swap counterparty
with respect to any class of Certificates, as amended, supplemented or
modified from time to time.
"Transition Property" shall mean the property to be transferred to
the Company pursuant to the Transition Property Purchase and Sale
Agreement.
"Transition Property Purchase and Sale Agreement" shall mean the
Transition Property Purchase and Sale Agreement to be entered into by the
Company and the Sole Member, as amended and supplemented from time to
time.
"Trust" shall mean the Connecticut RRB Special Purpose Trust CL&P-1.
"Trust Agreement" shall mean the Declaration of Trust for the Trust,
entered or to be entered into by the Treasurer of the State of
Connecticut and a Delaware trustee, as the same may be amended and
supplemented 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 Xxxxxx, as an
"authorized person" under the Act. Upon the filing of the Certificate
with the Secretary, another certificate to qualify the Company to do
business in the State of Connecticut, and an application for a Federal
Tax Identification Number, 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 "CL&P Funding
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 Administrator under the Administration
Agreement.
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 Company is intended to qualify as a
"financing entity" as defined in Conn. Gen. Stat. Sec 16-245e(a)(11).
As such, the purpose for which the Company is formed is limited solely to
the following activities:
(a) to acquire, own, hold, administer, service, and enter into the
Basic Documents to which it shall be a party and any other agreements
regarding the receipt and servicing of the Transition Property, along
with certain other related assets;
(b) to enter into, perform and comply with the Transition Property
Purchase and Sale Agreement, assignment agreements, or other agreements
providing for the purchase of the Transition Property, any future
"transition property" (as such term is defined in Conn. Gen. Stat. Sec 16-
245e(a)(13)), and related assets by the Company (collectively, the "Sale
Agreements"); and to enter into, perform and comply with such servicing
agreements, administration agreements, collection account agreements and
other similar agreements as may be necessary or desirable in connection
with such Sale Agreements;
(c) to issue, sell, authorize and deliver the Notes and to enter
into any agreement or document providing for the authorization, issuance,
sale and delivery of the Notes;
(d) to manage, collect amounts due on, sell, exchange, assign,
pledge, encumber, or otherwise deal with all or any part of the
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 Transition Property and its other
assets as collateral security;
(e) to invest proceeds from the 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 Management Committee
and not inconsistent with this Agreement or the Basic Documents;
(f) to execute any registration statement, offering document or
related agreements or disclosures related to the issuance of rate
reduction bonds or other instruments secured by the Transition Property;
and
(g) 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 purposes.
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 any Sale Agreement, Basic Document or other agreement
referenced above. 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 CL&P
Affiliated Group.
(d) Maintain an arm's length relationship with its Affiliates and
the CL&P Affiliated Group.
(e) Pay the salaries of its own employees, if any, and maintain a
sufficient number of employees in light of its contemplated business
operations, or, if there are no such employees, ensure that, to the
extent that it shares the same officers or other employees with the Sole
Member or any member of the CL&P Affiliated Group, the salaries of, and
the expenses related to providing benefits to, such officers and other
employees shall be separately noted in its books and records and 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 CL&P 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 CL&P Affiliated Group. To the extent
that the Company and the Sole Member or any Affiliate of the CL&P
Affiliated Group have offices in contiguous or shared 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
required by its organizational documents and applicable law, 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, maintaining accurate and
separate books, records and accounts, including, but not limited to,
payroll and intercompany transaction accounts, and keeping its financial
statements separate and apart from, and not consolidated with, those of
any other Person; provided, however, that the Company may be included in
the consolidated financial statements of the CL&P Affiliated Group so
long as it is shown as a separate member of such group.
(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, from and after the entry into any Sale
Agreement and the acquisition of any Transition Property, 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 CL&P Affiliated Group (except as contemplated
by any Sale Agreement, or any servicing agreement or administration
agreement entered into in connection therewith).
(l) Refrain from making any loan or advance to, owning, or
acquiring any stock or securities of any Person, including any member of
the CL&P Affiliated Group, 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 CL&P Affiliated Group shall be appointed to
act as agent of the Company, except as expressly contemplated by the
Basic Documents, in which case the capacity of such agent shall be
clearly identified.
(n) Ensure that no member of the CL&P Affiliated Group shall
advance funds to the Company, or otherwise guaranty debts of the Company,
except as provided in the Basic Documents; provided, however, that prior
to the acquisition by the Company of any Transition Property any member
of the CL&P Affiliated Group may lend or provide funds to the Company in
connection with the initial capitalization or organization of the Company
or, thereafter as permitted by the Basic Documents, with any subsequent
capitalization.
(o) Not enter into any guaranty, or otherwise become liable, with
respect to any obligation of any member of the CL&P 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 CL&P Affiliated Group.
(p) Comply with all restrictions on its business and operations as
set forth in Sections 2.05 and 2.07.
(q) Not pledge its assets for the benefit of any member of the CL&P
Affiliated Group.
(r) Use separate stationery, invoices and checks.
(s) Maintain adequate capital in light of its contemplated business
operations.
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 each Sale Agreement, 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
other corporation, company or entity;
(d) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other);
(e) incur any indebtedness (other than the indebtedness incurred
under the Notes and the Basic Documents), assume or guarantee any
indebtedness of any other Person or pledge its assets for the benefit of
any other Person (other than the pledge of assets contemplated by the
Basic Documents); provided, however, that the Company may issue one or
more separate series of Notes in connection with the acquisition from the
Sole Member, as seller, of additional transition property, separate from
the transition property acquired with the proceeds of any other series of
Notes, provided that the Rating Agency Condition (as defined in the
Indenture) shall have been satisfied; 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 January 3, 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. 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 under the Act 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.
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 be entitled to interest on its Capital Contribution to the
extent permitted in the Indenture and the Basic Documents.
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 Capital Account 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, composed of Directors
appointed by the Sole Member; 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. Prior
to the entry into any Sale Agreement and the acquisition of any
Transition Property, the Sole Member shall appoint two Independent
Directors. In the event that an Independent Director withdraws, resigns
or is removed as 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 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 the
Independent Director) may be removed at any time, with or without cause,
upon the written election of the Sole Member.
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.
Section 6.07 Special Members. 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 Sole Member of all of its limited
liability company interest in the Company and the admission of the
transferee pursuant to Sections 8.01 and 8.02, or (ii) the resignation of
the Sole Member and the admission of an additional member of the
Company), 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 member (the "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 this Agreement; provided,
however, the Special Members shall automatically cease to be members of
the Company upon the admission to the Company of a substitute Sole
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 shall agree
in writing to be bound by the provisions of this Section 6.07. Prior to
its admission to the Company as Special Member, each person acting as an
Independent Director shall not be a member of the Company.
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 this
Agreement or the Act; 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 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.
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 in accordance with the
Act. 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, and the transferee shall have
only the rights of an assignee to the extent such rights have been
assigned.
(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 in compliance
with the Basic Documents 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 Membership 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 the Servicer or Administrator or of another
enterprise in the course of their duties, or on the advice of legal
counsel for the Company or of the Servicer or Administrator or of another
enterprise or on information or records given or reports made to the
Company or of the Servicer or Administrator 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 the Servicer or
Administrator 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.
THE CONNECTICUT LIGHT AND POWER
By: Xxxxx X. Xxxxx
Title: Treasurer
EXHIBIT A
Management Agreement
[Date]
CL&P Funding LLC
c/o The Connecticut Light and Power Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Re: Management Agreement - CL&P Funding 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 CL&P Funding LLC, a Delaware limited liability company (the
"Company"), in accordance with the Limited Liability Company Agreement of
the Company, dated as of January 3, 2001 and amended and restated as of
March 30, 2001, as it may be further 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, 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, and, if such undersigned person is an Independent Director
(as defined in the LLC Agreement), to be bound by the provisions of
Section 6.07 of 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.
3. This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed as original and all of which
together shall constitute a single instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
Name Name
Name Name
Name
EXHIBIT B
Notice Address of Sole Member
NAME OF MEMBER NOTICE ADDRESS
The Connecticut light and The Connecticut Light and
Power Company Power Company
c/o Northeast Utilities
Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
EXHIBIT C
Officers
President
Vice President
Treasurer
Secretary
Assistant Secretary
