AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CPL TRANSITION FUNDING LLC
Dated and Effective as of
____________, 2000
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CPL TRANSITION FUNDING LLC.
a Delaware Limited Liability Company
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of CPL Transition Funding LLC, a Delaware limited liability company
(the "Company"), is made and entered into as of ________, 2000 by Central Power
and Light Company, a Texas corporation (including any additional or successor
members of the Company other than Special Members, the "Member").
WHEREAS, the Member has caused to be filed a Certificate of Formation
with the Secretary of State of the State of Delaware to form the Company under
and pursuant to the LLC Act and has entered into a Limited Liability Company
Agreement of the Company, dated as of _________ (the "Original LLC Agreement");
WHEREAS, in accordance with the LLC Act, the Member desires to
enter into this Agreement to amend and restate the terms of the Original LLC
Agreement and to set forth the rights, powers and interests of the 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 Member,
intending to be legally bound, hereby agrees to amend and restate in its
entirety the Original LLC Agreement as follows:
ARTICLE I
GENERAL PROVISIONS
SECTION 1.01 Definitions. (a) Unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned to them in that
certain Indenture (including Appendix A) dated as of _____________ between the
Company, as Note Issuer, and ___________, as the Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) The words "hereof," "herein," "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, Schedule,
Exhibit, Annex and Attachment references contained in this Agreement are
references to Sections, Schedules, Exhibits, Annexes and Attachments in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms.
(e) Non-capitalized terms used herein which are defined in the
Utilities Code shall, as the context requires, have the meanings assigned to
such terms in the Utilities Code, but without giving effect to amendments to the
Utilities Code.
SECTION 1.02 Sole Member; Registered Office and Agent. (a) The initial
sole member of the Company shall be Central Power and Light Company, a Texas
corporation, or any successor as sole member pursuant to Section 6.06. The
registered office and registered agent of the Company in the State of Delaware
shall be [The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]. The Member may change said registered office and
agent from one location to another in the State of Delaware.
(b) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections 6.06 and 6.07, or (ii) the resignation of
the Member and the admission of an additional member of the Company pursuant to
Sections 6.06 and 6.07), each Person acting as an Independent Manager pursuant
to the terms of this Agreement shall, without any action of any Person and
simultaneously with the Member ceasing to be a member of the Company,
automatically be admitted to the Company as a Special Member and shall continue
the Company without dissolution. No Special Member may resign from the Company
or transfer its rights as Special Member unless (i) a successor Special Member
has been admitted to the Company as Special Member by executing a counterpart to
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Manager 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 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 LLC 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 LLC 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 Manager pursuant to this Agreement shall execute a
counterpart to this Agreement. Prior to its admission to the Company as Special
Member, each Person acting as an Independent Manager pursuant to this Agreement
shall not be a member of the Company. A "Special Member" means, upon such
Person's admission to the Company as a member of the Company pursuant to this
Section 1.02(b), a Person acting as Independent Manager, 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. For purposes of this
Agreement, a Special Member is not included within the defined term "Member."
SECTION 1.03 Other Offices. The Company may have an office at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at any other offices that may at
any time be established by the Member at any place or places within or outside
the State of Delaware.
SECTION 1.04 Name. The name of the Company shall be "CPL Transition
Funding LLC." The name of the Company may be changed from time to time by the
Member with [five] days' prior written notice to the Managers and the Indenture
Trustee.
SECTION 1.05 Purpose; Nature of Business Permitted; Powers. The
purpose for which the Company is formed is limited solely to:
(a) acquire, own, hold, administer, service or enter into
agreements regarding the receipt and servicing of Transition Property
and the other Note Collateral, along with certain other related assets;
(b) manage, sell, assign, pledge, collect amounts due on or
otherwise deal with the Transition Property and the other Note
Collateral and related assets to be so acquired in accordance with the
terms of the Basic Documents;
(c) enter into, perform and comply with the Basic Documents
and to enter into, perform and comply with such other agreements as may
be necessary or desirable in connection with the Basic Documents;
(d) file with the SEC one or more registration statements,
including any pre-effective or post-effective amendments thereto and
any registration statement filed pursuant to Rule 462(b) under the
Securities Act (including any prospectus supplement, prospectus and
exhibits contained therein) and file such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents necessary or desirable to
register the Notes under the securities or "Blue Sky" laws of various
jurisdictions;
(e) execute, deliver and issue Notes from time to time;
(f) pledge its interest in Transition Property and other Note
Collateral to the Indenture Trustee under the Indenture in order to
secure the Notes; and
(g) 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, or
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 the
Basic Documents or other agreements referenced above. The Company shall have all
powers reasonably incidental, necessary, suitable or convenient to effect the
foregoing purposes, including all powers granted under the LLC Act. The Company,
and the Member, any Manager, including the Independent Managers (as defined
herein), or any officer of the Company, acting singly or collectively, on behalf
of the Company, may enter into and perform the Basic Documents and all
registration statements, documents, agreements, certificates or financing
statements contemplated thereby or related thereto, all without any further act,
vote or approval of any Member, Manager or other Person, notwithstanding any
other provision of this Agreement, the LLC 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 the Member or any Manager,
including the Independent Managers, to enter into other agreements or documents
on behalf of the Company as authorized pursuant to this Agreement and the LLC
Act. The Company shall possess and may exercise all the powers and privileges
granted by the LLC Act or by any other law or by this Agreement, together with
any powers incidental thereto, insofar as such powers and privileges are
incidental, necessary, suitable or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
SECTION 1.06 Limited Liability Company Agreement; Certificate of
Formation. This document (this "Agreement") shall constitute a "limited
liability company agreement" within the meaning of the LLC Act.
SECTION 1.07 Separate Existence. The Member and the Managers shall take
all steps necessary to continue the identity of the Company as a separate legal
entity and to make it apparent to third Persons that the Company is an entity
with assets and liabilities distinct from those of the Member, Affiliates of the
Member or any other Person, and that, except for financial reporting purposes
(to the extent required by generally accepted accounting principles) and for
federal income and, to the extent consistent with applicable state tax law,
state income and franchise tax purposes, it is not a division of any of the
Affiliates or any other Person. In that regard, and without limiting the
foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from
the office space of any Affiliate, owned by the Company or evidenced by
a written lease or sublease (even if located in an office owned or
leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that
it is not costly or difficult to segregate, identify or ascertain its
individual assets from those of any other Person, including any
Affiliate;
(c) maintain a separate telephone number which will be
answered only in its own name;
(d) conduct all intercompany transactions with Affiliates on
an arm's-length basis;
(e) not guarantee, become obligated for or pay the debts of
any Affiliate or hold the credit of the Company out as being available
to satisfy the obligations of any Affiliate or other Person (nor
indemnify any Person for losses resulting therefrom), nor have any of
its obligations guaranteed by any Affiliate or hold the Company out as
responsible for the debts of any Affiliate or other Person or for the
decisions or actions with respect to the business and affairs of any
Affiliate, nor seek or obtain credit or incur any obligation to any
third-Party based upon the creditworthiness or assets of any Affiliate
or any other Person (i.e. other than based on the assets of the
Company) nor allow any Affiliate to do such things based on the credit
of the Company;
(f) except as expressly otherwise permitted hereunder or under
any of the Basic Documents, not permit the commingling or pooling of
the Company's funds or other assets with the funds or other assets of
any Affiliate;
(g) maintain separate deposit and other bank accounts and
funds to which no Affiliate has any access, which accounts shall be
maintained in the name and tax identification number of the Company;
(h) maintain full books of accounts and records
(financial or other) and financial statements separate from those of
the Affiliates or any other Person, prepared and maintained in
accordance with generally accepted accounting principals (including,
but not limited to, all resolutions, records, agreements or instruments
underlying or regarding the transactions contemplated by the Basic
Documents or otherwise) and will be audited annually by an independent
accounting firm which shall provide such audit to the Indenture
Trustee;
(i) compensate (either directly or through
reimbursement of the Company's allocable share of any shared expenses)
all employees, consultants and agents and Affiliates, to the extent
applicable, for services provided to the Company by such employees,
consultants and agents or Affiliates, in each case, from the Company's
own funds and maintain a sufficient number of employees in light of its
contemplated operations;
(j) pay from its own bank accounts for accounting and payroll
services, rent, lease and other expenses (or the Company's allocable
share of any such amounts provided by one or more other Affiliate) and
not have such operating expenses (or the Company's allocable share
thereof) paid by any Affiliates, provided, that the Member shall be
permitted to pay the initial organization expenses of the Company and
certain of the expenses related to the transactions contemplated by the
Basic Documents incurred on or prior to the closing date for such
transactions;
(k) maintain adequate capitalization to conduct its
business and affairs considering the Company's size and the nature of
its business and intended purposes and, after giving effect to the
transactions contemplated by the Basic Documents, refrain from engaging
in a business for which its remaining property represents an
unreasonably small capital;
(l) conduct all of the Company's business (whether in writing
or orally) solely in the name of the Company through the Member and the
Company's Managers, employees, officers and agents and hold the Company
out as an entity separate from any Affiliate;
(m) not make or declare any distributions of cash or property
to the Member except in accordance with appropriate corporate
formalities and only consistent with sound business judgment to the
extent that it is permitted pursuant to the Basic Documents and not
violative of any applicable law;
(n) otherwise practice and adhere to all corporate procedures
and formalities to the extent required by this Agreement or all other
appropriate constituent documents;
(o) not appoint an Affiliate or any employee of an
Affiliate as an agent of the Company, except as otherwise permitted in
the Basic Documents (although such Persons can qualify as a Manager or
as an officer of the Company);
(p) not acquire obligations or securities of or make
loans or advances to or pledge its assets for the benefit of the Member
or any Affiliate of the Member;
(q) not permit the Member or any Affiliate to acquire
obligations of or make loans or advances to the Company;
(r) not permit the Member or any Affiliate to
guarantee, pay or become liable for the debts of the Company or permit
any such Person to hold out its creditworthiness as being available to
pay the liabilities and expenses of the Company nor, except for the
indemnities in this Agreement and the Basic Documents, indemnify any
Person for losses resulting therefrom;
(s) maintain separate minutes of the actions of the
Member and the Managers, including of the transactions contemplated by
the Basic Documents;
(t) cause (i) all written and oral communications,
including, without limitation, letters, invoices, purchase orders, and
contracts, of the Company to be made solely in the name of the Company,
(ii) the Company to have its own tax identification number, stationery,
checks and business forms, separate from those of any Affiliate, (iii)
all Affiliates not to use the stationery or business forms of the
Company, and for the Company not to use the stationery or business
forms of any Affiliate, and (iv) all Affiliates not to conduct business
in the name of the Company, and the Company not to conduct business in
the name of any Affiliate;
(u) direct creditors of the Company to send invoices
and other statements of account of the Company directly to the Company
and not to any Affiliate and to cause the Affiliates not to direct
their creditors to send invoices and other statements of accounts to
the Company;
(v) cause the Member to maintain as official records all
resolutions, agreements, and other instruments underlying or regarding
the transactions contemplated by the Basic Documents;
(w) disclose, and cause the Member to disclose, in
its financial statements the effects of all transactions between the
Member and the Company in accordance with generally accepted accounting
principles, and in a manner which makes it clear that (i) the Company
is a separate legal entity, (ii) the assets of the Company (including
the Transition Property transferred to the Company pursuant to the Sale
Agreement) are not assets of any Affiliate and are not available to pay
creditors of any Affiliate and (iii) neither the Member nor any other
Affiliate is liable or responsible for the debts of the Company;
(x) treat and cause the Member to treat the transfer of
Transition Property from the Member to the Company as a sale under the
Utilities Code;
(y) except as described herein with respect to tax
purposes and financial reporting, describe and cause each Affiliate to
describe the Company, and hold the Company out as a separate legal
entity and not as a division or department of any Affiliate, and
promptly correct any known misunderstandings regarding its identity
separate from any Affiliate or any Person;
(z) treat the Notes as debt obligations of the
Company, except for federal income and, to the extent consistent with
applicable state tax law, state tax purposes, for which the Notes will
be treated as debt obligations of the Member;
(aa) maintain its valid existence in good standing
under the laws of the State of Delaware and maintain its qualification
to do business under the laws of such other jurisdictions as its
operations require;
(bb) comply with all laws applicable to the transactions
contemplated by this Agreement and the Basic Documents; and
(cc) cause the Member to observe in all material respects all
corporate procedures and formalities, if any, required by its
constituent documents and the laws of its state of formation and all
other appropriate jurisdictions.
SECTION 1.08 Limitation on Certain Activities. Notwithstanding any
other provisions of this Agreement, the Company, and the Member or Managers on
behalf of the Company, shall not:
(a) engage in any business or activity other than as set
forth in Article I hereof;
(b) without the affirmative vote of its Member and the
affirmative vote of all of the Managers, including two Independent
Managers, file a voluntary petition for relief under the Bankruptcy
Code or similar law or otherwise institute insolvency or bankruptcy
proceedings with respect to the Company or take any company action in
furtherance of any such filing or institution of a proceeding;
(c) merge or consolidate with any other Person 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 other Person;
(d) incur any indebtedness or assume or guarantee any
indebtedness of any Person (other than the indebtedness incurred under
the Basic Documents); or
(e) to the fullest extent permitted by law, without the
affirmative vote of its Member and the affirmative vote of all
Managers, including two Independent Managers, execute any dissolution,
liquidation, or winding up of the Company.
To the fullest extent permitted by applicable law, including without limitation
Section 18-1101(c) of the LLC Act, the fiduciary duty of each Manager, including
two Independent Managers, in respect of any decision on any matter referred to
in this Section 1.08 shall be owed solely to the Company (including its
creditors) and not to the Member or any other holders of equity interest in the
Company as may exist at such time.
SECTION 1.09 No State Law Partnership. No provisions of this Agreement
shall be deemed or construed to constitute a partnership (including, without
limitation, a limited partnership) or joint venture, or the Member a partner or
joint venturer of or with any Manager or the Company, for any purposes.
ARTICLE II
CAPITAL
SECTION 2.01 Initial Capital. The initial capital of the Company shall
be the sum of cash contributed to the Company by the Member (the "Capital
Contribution") in the amount set out opposite the name of the Member on Schedule
A hereto, as amended from time to time and incorporated herein by this
reference.
SECTION 2.02 Additional Capital Contributions. The assets of the
Company are expected to generate a return sufficient to satisfy all obligations
of the Company under this Agreement and the Basic Documents and any other
obligations of the Company. It is expected that no capital contributions to the
Company will be necessary after the purchase of the initial Transition Property,
except for capital contributions in connection with the issuance of additional
Series of Notes. On or prior to the date of issuance of each Series of Notes,
the Member shall make an additional contribution to the Company in an amount
equal to at least 0.50% of the initial principal amount of such Series (less any
amount of the proceeds of such Series retained by the Company (deposited in an
appropriate account maintained by the Company) in substitution for such
additional contribution) or such greater amount as agreed to by the Member in
connection with the issuance by the Company of any Series of Notes. No capital
contribution by the Member to the Company will be made for the purpose of
mitigating losses on Transition Property that has previously been transferred to
the Company, and all capital contributions shall be made in accordance with all
applicable corporate procedures and requirements, including proper record
keeping by the Member and the Company. Each capital contribution will be
acknowledged by a written receipt signed by any one of the Managers. The
Managers acknowledge and agree that, notwithstanding anything in this Agreement
to the contrary, such additional contribution will be managed by an investment
manager selected by the Member who shall invest such amounts only in Eligible
Investments, and all income earned thereon shall be allocated or paid by the
Indenture Trustee in accordance with the provisions of the Indenture.
SECTION 2.03 Capital Account. A Capital Account shall be established
and maintained for the Member on the Company's books (the "Capital Account").
SECTION 2.04 Interest. No interest shall be paid or credited to the
Member on its Capital Account or upon any undistributed profits left on deposit
with the Company. Except as provided herein or by law, the Member shall have no
right to demand or receive the return of its Capital Contribution.
ARTICLE III
ALLOCATIONS; BOOKS
SECTION 3.01 Allocations of Income and Loss.
(a) Book Allocations. The net income and net loss of the Company
shall be allocated entirely to the 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 is
expected to 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 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 Member as permitted by
applicable tax law.
SECTION 3.02 Company to be Treated as a Division for Tax Purposes. The
Company shall comply with the applicable provisions of the Code and the
applicable Treasury Regulations thereunder in the manner necessary to effect the
intention of the parties that the Company be treated as a division of the Member
for federal income tax purposes pursuant to Treasury Regulations 301.7701-1 et
seq. and that the Company be accorded such treatment until its dissolution
pursuant to Article IX hereof and shall take, or refrain form taking, any action
required by the Code or Treasury Regulations thereunder in order to maintain
such status of the Company. In addition, for federal income tax purposes the
Company may not claim any credit on, or make any deduction from the principal
and interest payable in respect of, the Notes (other than amounts properly
withheld under the Code), or assert any claim against any present or former
Noteholder because of the payment of taxes levied or assessed upon the Company.
SECTION 3.03 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 generally accepted
accounting principals, using the fiscal year and taxable year of the Member. In
addition, the Company shall keep all records required to be kept pursuant to the
LLC Act.
SECTION 3.04 Access to Accounting Records. All books and records of the
Company shall be maintained at any office of the Company or at the Company's
principal place of business, and the Member, and its duly authorized
representative, shall have access to them at such office of the Company and the
right to inspect and copy them at reasonable times.
SECTION 3.05 Tax Elections. Subject to, and to the extent not
inconsistent with, Section 3.02, the Managers shall make the following elections
on behalf of the Company:
(a) To elect the calendar year as the Company's fiscal year if
permitted by applicable law;
(b) To elect the accrual method of accounting;
(c) To elect to treat all organization and start-up costs of the
Company as deferred expenses amortizable over 60 months under Section
195 of the Code; and
(d) To elect with respect to such other federal, state and local tax
matters as the Managers shall agree from time to time.
SECTION 3.06 Annual Tax Information. The Managers shall cause the
Company to deliver to the Member all information necessary for the preparation
of the Member's federal income tax return.
SECTION 3.07 Tax Matters Member. The Member shall communicate and
negotiate with the Internal Revenue Service on any federal tax matter on behalf
of the Member and the Company.
ARTICLE IV
MEMBER
SECTION 4.01 Powers. [Subject to the provisions of this Agreement and
the LLC Act, all powers shall be exercised by or under the authority of, and the
business and affairs of the Company shall be controlled by, the Member pursuant
to Section 4.04. The Member may delegate any or all such powers to the Managers.
Without prejudice to such general powers, but subject to the same limitations,]
it is hereby expressly declared that the Member shall have the following powers:
First - To select and remove the Managers and all officers, agents and
employees of the Company, prescribe such powers and duties for them as may be
consistent with the LLC Act and other applicable law and this Agreement, fix
their compensation, and require from them security for faithful service. Prior
to issuance of any Notes, the Member shall appoint two Independent Managers. An
"Independent Manager" is a Manager that is not and has not been for at least
three years from the date of his or her or its appointment (i) a direct or
indirect legal or beneficial owner of the Company or the Member or any of their
respective Affiliates, (ii) a relative, supplier, employee, officer, director,
manager, contractor or material creditor of the Company or the Member or any of
their respective Affiliates or (iii) a Person who controls the Member or its
Affiliates. All right, power and authority of the Independent Managers shall be
limited to the extent necessary to exercise those rights and perform those
duties specifically set forth in this Agreement. Except as provided in this
Agreement, including Section 1.08, in exercising their rights and performing
their duties under this Agreement, any Independent Manager shall have a
fiduciary duty of loyalty and care similar to that of a director of a business
corporation organized under the General Corporation Law of the State of
Delaware. No Independent Manager shall at any time serve as trustee in
bankruptcy for any Affiliate of the Company. The Company shall pay the
Independent Managers annual fees totaling not less than $[7,000] per year. Each
Manager, including each Independent Manager, is hereby deemed to be a "manager"
within the meaning 18-101(10) of the LLC Act.
Second - Subject to Article VII hereof, to conduct, manage and control
the affairs and business of the Company, and to make such rules and regulations
therefor consistent with the LLC Act and other applicable law and this
Agreement.
Third - To change the registered agent and office of the Company in
Delaware from one location to another; to fix and locate from time to time one
or more other offices of the Company; and to designate any place within or
without the State of Delaware for the conduct of the business of the Company.
SECTION 4.02 Compensation of Member. The Company shall have authority
to pay to the Member reasonable compensation for the Member's services to the
Company. It is understood that the compensation paid to the Member under the
provisions of this Section 4.02 shall be determined without regard to the income
of the Company, shall not be deemed to constitute distributions to the recipient
of any profit, loss or capital of the Company and shall be considered as an
operating expense of the Company.
SECTION 4.03 Other Ventures. It is expressly agreed that the Member
and any Affiliates, officers, directors, managers, stockholders, partners or
employees of the Member, may engage in other business ventures of every nature
and description, whether or not in competition with the Company, independently
or with others, and the Company shall not have any rights in and to any
independent venture or activity or the income or profits derived therefrom.
SECTION 4.04 Actions by the Member. All actions of the Member may be
taken by written resolution of the Member which shall be signed on behalf of the
Member by an authorized officer of the Member and filed with the records of the
Company.
ARTICLE V
OFFICERS
SECTION 5.01 Designation; Term; Qualifications. (a) The [Managers] may,
from time to time, designate one or more Persons to be officers of the Company.
Any officer so designated shall have such title and authority and perform such
duties as the Managers may, from time to time, delegate to them. Each officer
shall hold office for the term for which such officer is designated and until
its successor shall be duly designated and shall qualify or until its death,
resignation or removal as provided in this Agreement. Any Person may hold any
number of offices. No officer need be a Manager, the Member, a Delaware
resident, or a United States citizen. The Member hereby appoints the Persons
identified on Schedule C to be the initial officers of the Company.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Managers, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Managers are carried into effect. The
President or any other officer authorized by the President or the Managers may
execute all contracts, except: (i) where required or permitted by law or this
Agreement to be otherwise signed and executed, including Section 1.08; and (ii)
where signing and execution thereof shall be expressly delegated by the Managers
to some other officer or agent of the Company.
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Managers, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Managers may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Managers and record all the
proceedings of the meetings of the Company and of the Managers in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. The Secretary shall give, or shall cause to be given, notice of
all meetings of the Member, if any, and special meetings of the Managers, and
shall perform such other duties as may be prescribed by the Managers or the
President, under whose supervision the Secretary shall serve. The Assistant
Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Managers (or if there be no such determination, then in order
of their election), shall, in the absence of the Secretary or in the event of
the Secretary's inability to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as
the Managers may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Manager.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Manager, taking proper vouchers for such disbursements, and shall render to the
President and to the Managers, at its regular meetings or when the Managers so
require, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Managers (or
if there be no such determination, then in the order of their election), shall,
in the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Managers may from
time to time prescribe.
(f) Officers as Agents. The officers of the Company, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action
of the Managers not inconsistent with this Agreement, are agents of the Company
for the purpose of the Company's business and, subject to Section 1.08, the
actions of the officers taken in accordance with such powers shall bind the
Company.
(g) Duties of Managers and Officers. Except to the extent otherwise
provided herein, each Manager and officer of the Company shall have a fiduciary
duty of loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
SECTION 5.02 Removal and Resignation. Any officer of the Company may be
removed as such, with or without cause, by the Managers at any time. Any officer
of the Company may resign as such at any time upon written notice to the
Company. Such resignation shall be made in writing and shall take effect at the
time specified therein or, if no time is specified therein, at the time of its
receipt by the Managers.
SECTION 5.03 Vacancies. Any vacancy occurring in any office of the
Company may be filled by the Managers.
SECTION 5.04 Compensation. The compensation, if any, of the officers of
the Company shall be fixed from time to time by the Managers.
ARTICLE VI
MEMBERSHIP INTEREST
SECTION 6.01 General. "Membership Interest" means the limited liability
company interest of the Member in the Company. The Membership Interest
constitutes personal property and, subject to Section 6.06, shall be freely
transferable and assignable in whole but not in part upon registration of such
transfer and assignment on the books of the Company in accordance with the
procedures established for such purpose by the Managers of the Company.
SECTION 6.02 Distributions. The Member shall be entitled to receive,
out of the assets of the Company legally available therefor, when, as and if
declared by the Managers, distributions payable in cash in such amounts, if any,
as the Managers shall declare.
SECTION 6.03 Rights on Liquidation, Dissolution or Winding Up. (a) In
the event of any liquidation, dissolution or winding up of the Company, the
Member shall be entitled to all remaining assets of the Company available for
distribution to the Member after satisfaction (whether by payment or reasonable
provision for payment) of all liabilities, debts and obligations of the Company.
(b) Neither the sale of all or substantially all of the property or
business of the Company, nor the merger or consolidation of the Company into or
with another Company or other entity, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purpose of this
Section 6.03.
SECTION 6.04 Redemption. The Membership Interest shall not be
redeemable.
SECTION 6.05 Voting Rights. Subject to the terms of this Agreement, the
Member shall have the sole right to vote on all matters as to which members of a
limited liability company shall be entitled to vote pursuant to the LLC Act and
other applicable law.
SECTION 6.06 Transfer of Membership Interests. (a) The Member may
transfer its Membership Interest, in whole but not in part, but the transferee
shall not be admitted as a Member except in accordance with Section 6.07. Until
the transferee is admitted as a Member, the Member shall continue to be the sole
member of the Company (subject to Section 1.02 )and to be entitled to exercise
any rights or powers of a Member of the Company with respect to the Membership
Interest transferred.
(b) To the fullest extent permitted by law, 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 and to the fullest
extent permitted by law, the 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 6.07 Admission of Transferee as Member. (a) 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, except as
permitted by paragraph (b) below, shall not be admitted without unanimous
affirmative vote of the Managers, which vote must include the affirmative vote
of two Independent Managers. Upon admission of the transferee as a Member, the
transferee shall have the rights, powers and duties and shall be subject to the
restrictions and liabilities of the Member under this Agreement and the LLC Act.
The transferee shall also be liable, to the extent of the Membership Interest
transferred, for the unfulfilled obligations, if any, of the transferor Member
to make capital contributions to the Company, but shall not be obligated for
liabilities unknown to the transferee at the time such transferee was admitted
as a Member and that could not be ascertained from this Agreement. Except as set
forth in paragraph (b) below, whether or not the transferee of a Membership
Interest becomes a Member, the Member is not released from any liability to the
Company under this Agreement or the LLC Act.
(b) The approval of the Managers, including the Independent Managers,
shall not be required for the transfer of the Membership Interest from the
Member to any successor pursuant to Section 5.02 of the Sale Agreement or the
admission of such Person as a Member. Once the transferee of a Membership
Interest pursuant to this paragraph (b) becomes a Member, the Member shall be
released from any liability to the Company under this Agreement and the LLC Act.
ARTICLE VII
MANAGERS
SECTION 7.01 Managers. (a) Subject to Section 1.08, the business and
affairs of the Company shall be managed by or under the direction of two or more
Managers designated by the Member. Subject to the terms of this Agreement, the
Member may determine at any time in its sole and absolute discretion the number
of Managers to constitute the Board. The authorized number of Managers may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Managers, and subject in all cases to the terms
of this Agreement. The initial number of Managers shall be _____, two of which
shall be Independent Managers. Each Manager elected, designated or appointed by
the Member shall hold office until a successor is elected and qualified or until
such Manager's earlier death, resignation, expulsion or removal. Each Manager
shall execute and deliver the Management Agreement in the form attached hereto
as Exhibit A. Managers need not be a Member.
The initial Managers designated by the Member are listed on Schedule B hereto.
(b) Each Manager shall be elected by the Member and shall hold office
for the term for which elected and until a successor has been appointed and
qualified.
(c) The Managers shall be obliged to devote only as much of their time
to the Company's business as shall be reasonably required in light of the
Company's business and objectives. A Manager shall perform his or her duties as
a Manager in good faith, in a manner he or she reasonably believes to be in the
best interests of the Company, and with such care as an ordinarily prudent
Person in a like position would use under similar circumstances.
(d) Subject to the terms of this Agreement, the Managers shall act by
the affirmative vote of a majority of the Managers. Each Manager shall have the
authority to sign duly authorized agreements and other instruments on behalf of
the Company without the joinder of any other Manager.
(e) Subject to the terms of this Agreement, any action may be taken by
the Managers without a meeting and without prior notice if authorized by the
written consent of a majority of the Managers (or such greater number as is
required by this Agreement), which written consent shall be filed with the
records of the Company.
(f) Every Manager is an agent of the Company for the purpose of its
business, and the act of every Manager, including the execution in the Company
name of any instrument for carrying on the business of the Company, binds the
Company, unless such act is in contravention of this Agreement or unless the
Manager so acting otherwise lacks the authority to act for the Company and the
Person with whom he or she is dealing has knowledge of the fact that he or she
has no such authority.
SECTION 7.02 Powers of the Managers. The Managers shall have the right
and authority to take all actions which the Managers deem incidental, necessary,
suitable or convenient for the day-to-day management and conduct of the
Company's business.
The Managers may exercise all powers of the Company and do all such
lawful acts and things as are not by the LLC Act, other applicable law or this
Agreement directed or required to be exercised or done by the Member. All duly
authorized instruments, contracts, agreements and documents providing for the
acquisition or disposition of property of the Company shall be valid and binding
on the Company if executed by one or more of the Managers.
SECTION 7.03 Compensation. The Company may pay to any Manager
compensation for such Manager's services rendered to the Company. Such
compensation shall be treated as expenses of the Company and shall not be deemed
to constitute distributions to the recipient of any profit, loss or capital of
the Company.
SECTION 7.04 Removal of Managers. (a) The Member may remove any
Manager with or without cause at any time.
(b) Subject to Section 4.01, any removal of a Manager shall become
effective on such date as may be specified by the Member and in a notice
delivered to any remaining Managers or the Manager elected to replace the
removed Manager (except that it shall not be effective on a date earlier than
the date such notice is delivered to the remaining or newly-elected Manager).
Should a Manager be removed who is also the Member, the Member shall continue to
participate in the Company as the Member and receive its share of the Company's
income, gains, losses, deductions and credits pursuant to this Agreement.
SECTION 7.05 Resignation of Manager. A Manager may resign as a Manager
at any time by ____ days' prior notice to the Member. Notwithstanding the
preceding sentence, an Independent Manager may not resign, withdraw or resign as
a Manager of the Company without the consent of the Member. No resignation or
removal of an Independent Manager, and no appointment of a successor Independent
Manager, shall be effective until such successor (i) shall have accepted his or
her appointment as an Independent Manager by a written instrument, which may be
a counterpart signature page to the Management Agreement, and (ii) shall have
executed a counterpart to this Agreement.
SECTION 7.06 Vacancies. Subject to Section 4.01, any vacancies among
the Managers may be filled by the Member. In the event of a vacancy in the
position of Independent Manager, the Member shall, as soon as practicable,
appoint a successor Independent Manager.
SECTION 7.07 Meetings of the Managers. The Managers may hold meetings,
both regular and special, within or outside the State of Delaware. Regular
meetings of the Managers may be held without notice at such time and at such
place as shall from time to time be determined by the Managers. Special meetings
of the Managers may be called by the President on not less than one day's notice
to each Manager by telephone, facsimile, mail, telegram or any other means of
communication, and special meetings shall be called by the President or
Secretary in like manner and with like notice upon the written request of any
one or more of the Managers.
SECTION 7.08 Electronic Communications. Managers, or any committee
designated by the Managers, may participate in meetings of the Managers, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
SECTION 7.09 Committees of Managers.
(i) The Managers may, by resolution passed by a majority
of the Managers, designate one or more committees,
each committee to consist of one or more of the
Managers. The Managers may designate one or more
Managers as alternate members of any committee, who
may replace any absent or disqualified member at any
meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at
any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may
unanimously appoint another Manager to act at the
meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Managers, shall have and may
exercise all the powers and authority of the Managers
in the management of the business and affairs of the
Company. Such committee or committees shall have such
name or names as may be determined from time to time
by resolution adopted by the Managers. Each committee
shall keep regular minutes of its meetings and report
the same to the Managers when required.
ARTICLE VIII
EXPENSES
Except as otherwise provided in this Agreement, the Company shall be
responsible for all expenses and the allocation thereof including without
limitation:
(a) all expenses incurred by the Member or its Affiliates in
organizing the Company;
(b) all expenses related to the business of the Company and all routine
administrative expenses of the Company, including the maintenance of books and
records of the Company, the preparation and dispatch to the Member of checks,
financial reports, tax returns and notices required pursuant to this Agreement;
(c) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any investigation and
preparation) and the amount of any judgment or settlement paid in connection
therewith;
(d) all expenses for indemnity or contribution payable by the Company
to any Person;
(e) all expenses incurred in connection with the collection of amounts
due to the Company from any Person;
(f) all expenses incurred in connection with the preparation of
amendments to this Agreement;
(g) all expenses incurred in connection with the liquidation,
dissolution and winding up of the Company; and
(h) all expenses otherwise allocated in good faith to the Company by
the Managers.
ARTICLE IX
PERPETUAL EXISTENCE; DISSOLUTION, LIQUIDATION AND WINDING-UP
SECTION 9.01 Existence. (a) The Company shall have a perpetual
existence. So long as any of the Company's Notes shall remain outstanding, the
Member shall not be entitled to consent to the dissolution of the Company.
(b) Notwithstanding any provision of this Agreement, the bankruptcy (as
defined in the LLC Act) of the Member will not cause the 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. 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 9.02 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 1.07, the election to dissolve the Company made
in writing by the Member and each Manager, including the Independent
Managers, as permitted by the Basic Documents;
(b) the occurrence of any event that causes the last remaining 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 LLC Act or this Agreement; or
(c) the entry of a decree of judicial dissolution of the Company
pursuant to Section 18-802 of the LLC Act.
SECTION 9.03 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 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 9.04 Certificate of Cancellation. As soon as possible following
the occurrence of any of the events specified in Section 9.02 and the completion
of the winding up of the Company, the Person winding up the business and affairs
of the Company, as an authorized Person, 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 LLC Act.
SECTION 9.05 Winding Up. Upon the occurrence of any event specified in
Section 9.02, 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 Member, or if there is no Member, the Managers,
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 9.07.
SECTION 9.06 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
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 Member.
SECTION 9.07 Limitations on Payments Made in Dissolution. Except as
otherwise specifically provided in this Agreement, the Member shall only be
entitled to look solely to the assets of 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 Manager.
SECTION 9.08 Limitation on Liability. Except as otherwise provided by
the LLC Act, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Member or Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or a Manager.
ARTICLE X
INDEMNIFICATION
SECTION 10.01 Indemnity. Subject to the provisions of Section 10.04
hereof, to the fullest extent permitted by law, the Company shall 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, except an action by or in the right
of the Company, by reason of the fact that such Person is or was a Manager,
Member, officer, controlling person, employee, legal representative or agent of
the Company, or is or was serving at the request of the Company as a member,
manager, director, officer, partner, shareholder, controlling person, employee,
legal representative or agent of another limited liability company, partnership,
corporation, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Person in connection with the action,
suit or proceeding if such Person acted in good faith and in a manner which such
Person reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to a criminal action or proceeding, had no reasonable
cause to believe such Person's conduct was unlawful.
SECTION 10.02 Indemnity for Actions By or In the Right of the Company.
Subject to the provisions of Section 10.04 hereof, to the fullest extent
permitted by law, the Company shall 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 rights of the Company to procure a judgment in its
favor by reason of the fact that he is or was a Member, Manager, officer,
controlling person, employee, legal representative or agent of the Company, or
is or was serving at the request of the Company as a member, manager, director,
officer, partner, shareholder, controlling person, employee, legal
representative or agent of another limited liability company, corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by such Person in connection with the defense or settlement of the
actions or suit if such Person acted in good faith and in a manner which such
Person reasonably believed to be in or not opposed to the best interests of the
Company. Indemnification may not be made for any claim, issue or matter as to
which such Person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the Company or for amounts
paid in settlement to the Company, unless and only to the extent that the court
in which the action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the case,
the Person is fairly and reasonably entitled to indemnity for such expenses as
the court deems proper.
SECTION 10.03 Indemnity If Successful. The Company may indemnify any
Person who is or was a Manager, Member, officer, controlling person, employee,
legal representative or agent of the Company, or is or was serving at the
request of the Company as a member, manager, director, officer, partner,
shareholder, controlling person, employee, legal representative or agent of
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise against expenses, including attorneys' fees, actually
and reasonably incurred by him or her in connection with the defense of any
action, suit or proceeding referred to in Sections 10.01 and 10.02 or in defense
of any claim, issue or matter therein, to the extent that such Person has been
successful on the merits.
SECTION 10.04 Expenses. Any indemnification under Sections 10.01 and
10.02, as well as the advance payment of expenses permitted under Section 10.05
unless ordered by a court or advanced pursuant to Section 10.05 below, must be
made by the Company only as authorized in the specific case upon a determination
that indemnification of the Manager, Member, officer, controlling person,
employee, legal representative or agent is proper in the circumstances. The
determination must be made:
(a) By the Member if the Member was not a party to the act, suit or
proceeding; or
(b) If the Member was a party to the act, suit or proceeding by
independent legal counsel in a written opinion.
SECTION 10.05 Advance Payment of Expenses. The expenses of each Person
who is or was a Manager, Member, officer, controlling Person, employee, legal
representative or agent, or is or was serving at the request of the Company as a
member, manager, director, officer, partner, shareholder, controlling person,
employee, legal representative or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise, incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
Company as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
such Person to repay the amount if it is ultimately determined by a court of
competent jurisdiction that such Person is not entitled to be indemnified by the
Company. The provisions of this Section 10.05 shall not affect any rights to
advancement of expenses to which personnel other than [the Member or the
Managers] may be entitled under any contract or otherwise by law.
SECTION 10.06 Other Arrangements Not Excluded. The indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Article X:
(a) Does not exclude any other rights to which a Person seeking
indemnification or advancement of expenses may be entitled under any agreement,
decision of the Member or otherwise, for either an action of any Person who is
or was a Manager, Member, officer, controlling Person, employee, legal
representative or agent, or is or was serving at the request of the Company as a
member, manager, director, officer, partner, shareholder, controlling person,
employee, legal representative or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise, in the
official capacity of such Person or an action in another capacity while holding
such position, except that indemnification and advancement, unless ordered by a
court pursuant to Section 10.05 above, may not be made to or on behalf of such
Person if a final adjudication established that its acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and were
material to the cause of action; and
(b) Continues for a Person who has ceased to be a Member, Manager,
officer, employee, legal representative or agent and inures to the benefit of
the successors, heirs, executors and administrators of such a Person.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendments. (a) The power to alter, amend or repeal this
Agreement shall be only on the consent of the Member, provided, that the Company
shall not alter, amend or repeal any provision of Sections 1.05, 1.07, 1.08,
3.02, 6.06, 6.07, 7.05, 9.01(b), 9.02, 11.01 and 11.06 of this Agreement or the
definition of an Independent Manager contained herein without the affirmative
vote of a majority of the Managers, which vote must include the affirmative vote
of all of the Independent Managers.
(b) The Company's power to alter or amend the Certificate of
Formation shall be vested in the Member. Upon obtaining the approval of any
amendment, supplement or restatement as to the Certificate of Formation, the
Member on behalf of the Company shall cause a Certificate of Amendment or
Amended and Restated Certificate of Formation to be prepared, executed and filed
in accordance with the LLC Act.
SECTION 11.02 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.03 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.04 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remainder of such provision (if any) or the remaining
provisions hereof (unless such construction shall be unreasonable), and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.05 Assigns. Each and all of the covenants, terms, provisions
and agreements contained in this Agreement shall be binding upon and inure to
the benefit of the Member, and its successors and assigns.
SECTION 11.06 Enforcement by Independent Managers. Notwithstanding any
other provision of this Agreement, the Member agrees that this Agreement
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Managers in accordance with
its terms. The Independent Managers are intended beneficiaries of this
Agreement.
SECTION 11.07 Waiver of Partition; Nature of Interest. Except as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, each of the Member and the Special Members hereby irrevocably waives any
right or power that such Person might have to cause the Company or any of its
assets to be partitioned, to cause the appointment of a receiver for all or any
portion of the assets of the Company, to compel any sale of all or any portion
of the assets of the Company pursuant to any applicable law or to file a
complaint or to institute any proceeding at law or in equity to cause the
dissolution, liquidation, winding up or termination of the Company. The Member
shall not have any interest in any specific assets of the Company, and the
Member shall not have the status of a creditor with respect to any distribution
pursuant to this Agreement.
IN WITNESS WHEREOF, this Agreement is hereby executed by the
undersigned as the sole Member of the Company and is effective as of _______.
CENTRAL POWER AND LIGHT COMPANY
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
--------------,
as Independent Manager
---------------------------------
--------------,
as Independent Manager
---------------------------------
SCHEDULE A
Schedule of Capital Contributions of Member
Membership Interest
MEMBER'S CAPITAL Membership Interest CAPITAL
NAME CONTRIBUTION PERCENTAGE ACCOUNT
Central Power and Light Company $[1,000] 100% $[1,000]
SCHEDULE B
Initial Managers
Names
1)
2)
3)
SCHEDULE C
Initial Officers
Names Office
EXHIBIT A
Management Agreement
_________________ ___, ____
[____________________________
_____________________________
_____________________________]
Re: Management Agreement -- CPL Transition Funding LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as managers of CPL Transition Funding LLC, a Delaware
limited liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of
______________________ __, ____, as it may be amended or restated from time to
time (the "LLC Agreement"), hereby agree as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Manager under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Manager under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Manager is
designated or until such Person's resignation or removal as a Manager in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any obligation is outstanding under the Basic Documents,
to the fullest extent permitted by law, each of the undersigned agrees, solely
in its capacity as a creditor of the Company on account of any indemnification
or other payment owing to the undersigned by the Company, not to acquiesce,
petition or otherwise invoke or cause the Company to invoke the process of any
court or governmental authority for the purpose of commencing or sustaining a
case against the Company under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or any substantial part of
the property of the Company, or ordering the winding up or liquidation of the
affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Capitalized terms used and not otherwise defined herein have the
meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
[SIGNATURE BLOCKS]
