EXHIBIT 3.4
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
SDG&E FUNDING LLC
This Amended and Restated Limited Liability Company
Agreement (together with the schedules attached hereto, this
"Agreement") of SDG&E Funding LLC (the "Company"), is
entered into by San Diego Gas & Electric Company a
California corporation, as the sole member (the "Initial
Member"). Capitalized terms used herein and not otherwise
defined have the meanings set forth on Schedule A hereto.
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The Initial Member, by execution of this Agreement, (i)
hereby continues the Company as a limited liability company
pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. (S)18-101, et seq.), as
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amended from time to time (the "Act"), and this Agreement,
(ii) hereby amends and restates in its entirety the initial
Limited Liability Company Agreement of the Company, dated as
of July 1, 1997 (the "Initial LLC Agreement"), and (iii)
hereby agrees as follows:
1. Name.
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The name of the limited liability company heretofore previously formed
and continued hereby is SDG&E Funding LLC.
2. Principal Business Office.
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The principal business office of the Company shall be located at
000 Xxx Xxxxxx, Xxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, or such other location as
may hereafter be determined by the Member.
3. Registered Office.
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The address of the registered office of the Company in the State of
Delaware is c/o RL&F Service Corp., One Xxxxxx Square, 10th Floor, Tenth and
Xxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
4. Registered Agent.
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The name and address of the registered agent of the Company for
service of process on the Company in the State of Delaware is RL&F Service
Corp., One Xxxxxx Square, 10th Floor, Tenth and Xxxx Xxxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx
00000.
5. Members.
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a. The name and the mailing address of the Initial Member are set
forth on Schedule B attached hereto.
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b. Subject to Section 9j, the Member may act by written consent.
6. Certificates.
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Xxxxx X. Xxxxxx, Xx., as an "authorized person" within the meaning of
the Act, has executed, delivered and filed the Certificate of Formation with the
Secretary of State of the State of Delaware. Upon the filing of the Certificate
of Formation with the Secretary of State of the State of Delaware, his powers as
an "authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member or an Officer shall execute, deliver
and file any other certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in California and in any
other jurisdiction in which the Company may wish to conduct business.
7. Purposes.
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Subject to Section 9j, the purposes of the Company are to engage in
the following activities:
a. (i) to acquire, own, hold, administer, service, or enter into
agreements for the servicing of, finance, manage, sell, assign,
pledge, collect amounts due on and otherwise deal with the Transition
Property and other assets to be acquired pursuant to the Basic
Documents and any proceeds or rights associated therewith;
(ii) to issue, sell, authorize and deliver the Notes and other
evidences of the Indebtedness and to enter into any agreement or
document providing for the authorization, issuance, sale and delivery
of the Notes;
(iii) to sell, exchange, pledge, encumber or otherwise dispose
of 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 and property as
collateral security for the Indebtedness;
(iv) to execute, deliver and perform the Basic Documents;
(v) 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 Board and
not inconsistent with this Section 7 or the Basic Documents; and
(vi) to do such other things and carry on any other activities
which the Board determines to be necessary, convenient or incidental
to any of the foregoing purposes, and have and exercise all of the
power and rights conferred upon limited liability companies formed
pursuant to the Act.
b. The Company, by or through any Officer on behalf of the Company,
may enter into and perform the Basic Documents, including the Note
Issuance Documents, the Notes, the Sale Documents, the Servicing
Agreement and all documents, agreements, certificates, or financing
statements contemplated thereby or related thereto, all without any
further act, vote or approval of the Member or any Director or Officer
notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization shall
not be deemed a restriction on the powers of any Officer to enter into
other agreements on behalf of the Company.
8. Powers.
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Subject to Section 9j, the Company (i) shall have and exercise all
powers necessary, convenient or incidental to accomplish its purposes as set
forth in Section 7 and (ii) shall have and exercise all of the powers and rights
conferred upon limited liability companies formed pursuant to the Act.
9. Management.
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a. Board of Directors. Subject to Section 9j, the business and
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affairs of the Company shall be managed by or under the direction of a
Board of one or more Directors. Subject to Section 10, the Member may
determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of
Directors may be increased or decreased by the Member at any time in
its sole and absolute discretion, upon notice to all Directors, and
subject in all cases to Section 10. The initial number of Directors
shall be three, one of which shall be an Independent Director pursuant
to Section 10. Each Director elected, designated or appointed shall
hold office until a successor is elected and qualified or until such
Director's earlier death, resignation or removal. Each Director shall
execute and deliver the Management Agreement. Directors need not be
Members.
x. Xxxxxx. Subject to Section 9j, the Board of Directors shall have
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the power to do any and all acts necessary, convenient or incidental
to or for the furtherance of the purposes described herein, including
all powers, statutory or otherwise. Subject to Section 9j, the Board
of Directors has
the authority to bind the Company.
c. Meeting of the Board of Directors. The Board of Directors of the
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Company may hold meetings, both regular and special, within or outside
the State of Delaware. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to
time be determined by the Board. Special meetings of the Board may be
called by the President on not less than one day's notice to each
Director by telephone, facsimile, mail, telegram or any other means of
communication, and special meetings shall be called by the President
or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
d. Quorum; Acts of the Board. At all meetings of the Board, a
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majority of the Directors shall constitute a quorum for the
transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of
the Board. If a quorum shall not be present at any meeting of the
Board, the Directors present at such meeting may adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. Any action required or
permitted to be taken at any meeting of the Board or of any committee
thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
Board or committee.
e. Electronic Communications. Members of the Board, or any committee
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designated by the Board, may participate in meetings of the Board, or
any committee, by means of telephone conference or similar
communications equipment that allows all persons participating in the
meeting to hear each other, and such participation in a meeting shall
constitute presence in person at the meeting. If all the participants
are participating by telephone conference or similar communications
equipment, the meeting shall be deemed to be held at the principal
place of business of the Company.
f. Committees of Directors.
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(i) The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The Board may
designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of
the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board to act at
the meeting in the place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers
and
authority of the Board in the management of the business and affairs
of the Company. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by
the Board. Each committee shall keep regular minutes of its meetings
and report the same to the Board when required.
g. Compensation of Directors; Expenses. The Board shall have the
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authority to fix the compensation of Directors. The Directors may be
paid their expenses, if any, of attendance at meetings of the Board,
which may be a fixed sum for attendance at each meeting of the Board
or a stated salary as Director. No such payment shall preclude any
Director from serving the Company in any other capacity and receiving
compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
h. Removal of Directors. Unless otherwise restricted by law, any
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Director or the entire Board of Directors may be removed, with or
without cause, at any time by the Member, and, subject to Section 10,
any vacancy caused by any such removal may be filled by action of the
Member.
i. Directors as Agents. To the extent of their powers set forth in
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this Agreement and subject to Section 9j, the Directors are agents of
the Company for the purpose of the Company's business, and the actions
of the Directors taken in accordance with such powers set forth in
this Agreement shall bind the Company.
j. Limitations on the Company's Activities.
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(i) This Section 9j is being adopted in order to comply with
certain provisions required in order to qualify the Company as a "special
purpose entity" for the purpose of the Indebtedness.
(ii) The Member shall not, so long as any Indebtedness is
outstanding, amend, alter, change or repeal the definition of
"Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26
or 31 or Schedule A of this Agreement without the unanimous written
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consent of the Board (including the Independent Director). Subject to
this Section 9j, the Member reserves the right to amend, alter, change
or repeal any provisions contained in this Agreement in accordance
with Section 31.
(iii) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company, the
Member or the Board, neither the Member nor the Board shall be
authorized or empowered, nor shall they permit the Company, without
the prior unanimous written consent of the Member and the Board
(including the Independent Director), to take any Material Action;
provided, however, that the foregoing is subject in all cases to
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Section 843(e) of the Statute.
(iv) Unless otherwise provided in the Note Issuance Documents,
so long as any Indebtedness is outstanding, the Board and the Member
shall cause the Company to do or cause to be done all things necessary
to
preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the
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Company shall not be required to preserve any such right or franchise
if: (A) the Board shall determine that the preservation thereof is no
longer desirable for the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the holders
of the Indebtedness and the Company shall deliver to the Note Trustee
an Officer's Certificate to that effect and (B) the Rating Agency
Condition is satisfied. The Board also shall cause the Company to:
(1) maintain its own separate books and records and bank
accounts;
(2) at all times hold itself out to the public as a legal
entity separate from the Member and any other Person;
(3) have a Board composed differently from that of the
Member and any other Person;
(4) file its own tax returns, if any, as may be required
under applicable law, to the extent (a) not part of a
consolidated group filing a consolidated return or
returns or (b) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(5) not commingle its assets with assets of any other
Person (except as contemplated by the Basic Documents);
(6) conduct its business in its own name;
(7) maintain separate financial statements;
(8) pay its own liabilities only out of its own funds;
(9) maintain an arm's length relationship with its
Affiliates and its Member;
(10) pay the salaries of its own employees, if any;
(11) not hold out its credit as being available to satisfy
the obligations of others;
(12) allocate fairly and reasonably any overhead for shared
office space;
(13) use separate stationery, invoices and checks;
(14) not pledge its assets for the benefit of any other
Person;
(15) correct any known misunderstanding regarding its
separate identity;
(16) maintain adequate capital in light of its contemplated
business purposes;
(17) cause its Board of Directors to meet at least annually
or act pursuant to written consent and keep minutes of
such meetings and actions and observe all other
Delaware limited liability company formalities; and
(18) not acquire any obligations or securities of a Member.
(v) So long as any Indebtedness is outstanding, the Board shall
not cause or permit the Company to:
(1) guarantee any obligation of any Person, including any
Affiliate;
(2) engage, directly or indirectly, in any business other
than that arising out of the issuance of the
Indebtedness or the actions required or permitted to be
performed under Section 7, the Note Issuance Documents
or this Section 9j;
(3) incur, create or assume any indebtedness other than the
Indebtedness or as otherwise expressly permitted under
the Note Issuance Documents;
(4) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person other than the instruments constituting
part of the Collateral, except that the Company may
invest in those investments permitted under the Note
Issuance Documents and may make any advance required or
expressly permitted to be made pursuant to any
provisions of the Note Issuance Documents and permit
the same to remain outstanding in accordance with such
provisions;
(5) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Note Issuance Documents; or
(6) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or
other).
10. Independent Director.
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As long as any Indebtedness is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director who
will be appointed by the Member. To the fullest extent permitted by
Section 18-1101(c) of the Act, the Independent Director shall consider
only the interests of the Company, including its respective creditors,
in acting or otherwise voting on the matters referred to in Section
9j(iii). No resignation or removal of an Independent Director, and no
appointment of a successor Independent Director, shall be effective
until the successor Independent Director shall have accepted his or
her appointment by a written instrument, which may be a counterpart
signature page to the Management Agreement. All right, power and
authority of the Independent Directors shall be limited to the extent
necessary to exercise those rights and perform those duties
specifically set forth in this Agreement. Except as provided in the
second sentence of this Section 10, in exercising their rights and
performing their duties under this Agreement, the Independent
Directors 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.
11. Officers.
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a. Officers. The Officers of the Company shall be chosen by the
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Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any number
of offices may be held by the same person. The Board shall choose a
President, a Secretary and a Treasurer. The Board may appoint such
other Officers and agents as it shall deem necessary or advisable who
shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by
the Board. The salaries of all Officers and agents of the Company
shall be fixed by or in the manner prescribed by the Board. The
Officers of the Company shall hold office until their successors are
chosen and qualified. Any Officer elected or appointed by the Board
may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any vacancy
occurring in any office of the Company shall be filled by the Board.
b. President. The President shall be the chief executive officer of
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the Company, shall preside at all meetings of the Members, if any, and
the Board, shall be responsible for the general and active management
of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect. The President shall
execute all bonds, mortgages and other contracts, except: (i) where
required or permitted by law or this Agreement to be otherwise signed
and executed, including Section 7b; (ii) where signing and execution
thereof shall be expressly delegated by the Board to some other
Officer or agent of the Company; and (iii) as otherwise permitted in
Section 11c.
c. Vice President. In the absence of the President or in the event
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of the President's inability to act, the Vice President, if any (or in
the event there be more than one Vice President, the Vice Presidents
in the order designated by the Directors, or in the absence of any
designation, then in the order of their election), shall perform the
duties of the President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the President. The Vice
Presidents, if any, shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
d. Secretary and Assistant Secretary. The Secretary shall be
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responsible for filing legal documents and maintaining records for the
Company. The Secretary shall attend all meetings of the Board and all
meetings of the Members, if any, and record all the proceedings of the
meetings of the Company and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of
all meetings of the Members, if any, and special meetings of the
Board, and shall perform such other duties as may be prescribed by the
Board or the President, under whose supervision the Secretary shall
serve. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board (or if
there be no such determination, then in order of their election),
shall, in the absence of the Secretary or i n the event of the
Secretary's inability to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
e. Treasurer and Assistant Treasurer. The Treasurer shall have the
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custody of the Company funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to
the Company and shall deposit all moneys and other valuable effects in
the name and to the credit of the Company in such depositories as may
be designated by the Board. The Treasurer shall disburse the funds of
the Company as may be ordered by the Board, taking proper vouchers for
such disbursements, and shall render to the President and to the
Board, at its regular meetings or when the Board so requires, an
account of all of the Treasurer's transactions and of the financial
condition of the Company.
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board (or if there
be no such determination, then in the order of their election), shall,
in the absence of the Treasurer or in the event of the Treasurer's
inability to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
f. Officers as Agents. The Officers, to the extent of their powers
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set forth in this Agreement or otherwise vested in them by action of
the Board not inconsistent with this Agreement, are agents of the
Company for the purpose of the Company's business, and, subject to
Section 9j, the actions of the Officers taken in accordance with such
powers shall bind the Company.
g. Duties of Board and Officers. Except to the extent otherwise
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provided herein, each Director and Officer shall have a fiduciary duty
of loyalty and care similar to that of directors and officers of
business corporations organized under the General Corporation Law of
the State of Delaware.
12. Limited Liability.
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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 any Member nor any Director shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Member or Director of the Company.
13. Capital Contributions.
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The Initial Member was deemed admitted as the Member of the Company
upon the execution and delivery of the Initial LLC Agreement. The Initial Member
has contributed the amount of cash to the Company listed on Schedule B attached
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hereto.
14. Additional Contributions.
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The Initial Member is not required to make any additional capital
contribution to the Company. However, a Member may make additional capital
contributions to the Company at any time upon the written consent of such
Member. To the extent that the Member makes an additional capital contribution
to the Company, the Member shall revise Schedule B of this Agreement. The
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provisions of this Agreement, including this Section 14, are intended solely to
benefit the Member and, to the fullest extent permitted by law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of this
Agreement) and no Member shall have any duty or obligation to any creditor of
the Company to make any contribution to the Company or to issue any call for
capital pursuant to this Agreement.
15. Allocation of Profits and Losses.
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The Company's profits and losses shall be allocated to the Member.
16. Distributions.
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Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to any 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 the Basic Documents.
17. Books and Records.
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The Board shall keep or cause to be kept complete and accurate books
of account and records with respect to the Company's business. The
books of the Company shall at all times be maintained by the Board.
Each Member and its duly authorized representatives shall have the
right to examine the Company books, records and documents during
normal business hours. The Company, and the Board on behalf of the
Company, shall not have the right to keep confidential from the Member
any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act.
The Company's books of account shall be kept using the method of
accounting determined by the Member. The Company's independent auditor
shall be an independent public accounting firm selected by the Member.
18. Reports.
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a. Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the
end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
b. The Board shall use diligent efforts to cause to be prepared and
mailed to the Members, within 90 days after the end of each fiscal
year, an audited or unaudited report setting forth as of the end of
such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of such Member's capital account.
c. The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants to prepare and
transmit to each Member as promptly as such tax information as may be
reasonably necessary to enable such Member to prepare its federal,
state and local income tax returns relating to such fiscal year.
19. Other Business.
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The Member and any Affiliate of the Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of
every kind and description, independently or with others. The Company
shall not have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement.
20. Exculpation and Indemnification.
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a. No Member, Officer, Director, manager, employee or agent of the
Company and no employee, representative, agent or Affiliate of the
Member (collectively, the "Covered Persons") shall be liable to the
Company or any other Person who has an interest in or claim against
the Company for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Covered Person in good
faith on behalf of the Company and in a manner reasonably believed to
be within the scope of the authority conferred on such Covered Person
by this Agreement, except that a Covered Person shall be liable for
any such loss, damage or claim incurred by reason of such Covered
Person's gross negligence or willful misconduct.
b. To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss,
damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith
on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Covered Person by
this Agreement, except that no Covered Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided,
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however, that any indemnity under this Section 20 shall be provided
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out of and to the extent of Company assets only, and no Member shall
have personal liability on account thereof; and provided further, that
no indemnity payment from such funds of the Company (as distinct from
funds from other sources, such as insurance) of any indemnity under
this Section 20 shall be payable except out of funds available for
payment of Company expenses as provided in the Indenture.
c. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Company prior to the final disposition of such claim,
demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or
on behalf of the Covered Person to repay such amount if it shall be
determined that the Covered Person is not entitled to be indemnified
as authorized in this Section 20.
d. A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to
matters the Covered Person reasonably believes are within such other
Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and
amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member
might properly be paid.
e. To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto
to the Company or to any other Covered Person, a Covered Person acting
under this Agreement shall not be liable to the Company or to any
other Covered Person for its good faith reliance on the provisions of
this Agreement or any approval or authorization granted by the Company
or any other Covered Person. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of a Covered
Person otherwise existing at law or in equity, are agreed by the
Member to replace such other duties and liabilities of such Covered
Person.
f. The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
21. Assignments.
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Subject to Section 23, the Member may assign in whole or in part its
limited liability company interest in the Company. If the Member
transfers all of its limited liability company interest in the Company
pursuant to this Section 21, the transferee shall be admitted to the
Company as a member of the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page
to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such
admission, the transferor Member shall cease to be a member of the
Company. Notwithstanding anything in this Agreement to the contrary,
any successor to a Member by merger or consolidation in compliance
with the Basic Documents shall, without further act, be a Member
hereunder, and such merger or consolidation shall not constitute an
assignment for purposes of this Agreement.
22. Resignation.
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So long as any Indebtedness is outstanding, the Initial Member may not
resign unless the Rating Agency Condition is satisfied. A Member
(other than the Initial Member) may resign from the Company with the
written consent of the Initial Member. If a Member is permitted to
resign pursuant to this Section 22, an additional member of the
Company shall be admitted to the Company, subject to Section 23, upon
its execution of an instrument signifying its agreement to be bound by
the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be
deemed effective immediately prior to the resignation, and,
immediately following such admission, the resigning Member shall cease
to be a member of the Company.
23. Admission of Additional Members.
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One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided that,
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notwithstanding the foregoing, so long as any Indebtedness remains
outstanding, no additional Members may be admitted to the Company
unless the Initial Member retains a majority interest in the Company
and the Rating Agency Condition is satisfied.
24. Dissolution.
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a. Subject to Section 9j, the Company shall be dissolved, and its
affairs shall be wound up upon the first to occur of the following:
(i) the retirement, resignation or dissolution of the Member or the
occurrence of any other event which terminates the continued
membership of the Member in the Company unless the business of the
Company is continued in a manner permitted by the Act or (ii) the
entry of a decree of judicial dissolution under Section 18-802 of the
Act.
b. The bankruptcy (as defined in Section 18-101(1) of the Act) of the
Member shall 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.
c. In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of
the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
25. Waiver of Partition; Nature of Interest.
---------------------------------------
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each Member hereby irrevocably waives
any right
or power that such 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. No Member shall have any
interest in any specific assets of the Company, and no Member shall
have the status of a creditor with respect to any distribution
pursuant to Section 16 hereof. The interest of the Members in the
Company is personal property.
26. Benefits of Agreement; No Third-Party Rights.
--------------------------------------------
None of the provisions of this Agreement shall be for the benefit of
or enforceable by any creditor of the Company or by any creditor of
any Member. Nothing in this Agreement shall be deemed to create any
right in any Person (other than Covered Persons) not a party hereto,
and this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any third Person.
27. Severability of Provisions.
--------------------------
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be
invalid, unenforceable or illegal under any existing or future law,
such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are
valid, enforceable and legal.
28. Entire Agreement.
----------------
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
29. Binding Agreement.
-----------------
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7,
8, 9, 10, 20, 21, 22, 23, 24, 26 and 31, constitutes a legal, valid
and binding agreement of the Member, and is enforceable against the
Member by the Independent Director, in accordance with its terms.
30. Governing Law.
-------------
This Agreement shall be governed by and construed under the laws of
the State of Delaware (without regard to conflict of laws principles),
all rights and remedies being governed by said laws.
31. Amendments.
----------
Subject to Section 9j, this Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement
executed and delivered by the Member. Notwithstanding anything to the
contrary in this Agreement, so long as any Indebtedness is
outstanding, this Agreement may not be modified, altered, supplemented
or amended unless the Rating Agency Condition is satisfied, except:
(i) to cure any ambiguity or (ii) to correct or supplement any
provision in a manner consistent with the intent of this Agreement.
32. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which
together shall constitute one and the same instrument.
33. Notices.
-------
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy or other similar form of
rapid transmission, and shall be deemed to have been duly given upon
receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of a Member, to such Member at its address as
listed on Schedule B attached hereto and (c) in the case of either of the
----------
foregoing, at such other address as may be designated by written notice to
the other party.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the 6th day of
November, 1997.
MEMBER:
SAN DIEGO GAS & ELECTRIC COMPANY
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title:Chief Financial Officer of San Diego
Gas & Electric Company
SCHEDULE A
Definitions
-----------
A. Definitions
-----------
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
---
"Administrative Services Agreement" means the Administrative Services
---------------------------------
Agreement to be entered into between the Company and the Initial
Member, as administrator.
"Affiliate" means, with respect to any Person, any other Person
---------
directly or indirectly Controlling or Controlled by or under direct or
indirect common Control with such Person.
"Agreement" means this Amended and Restated Limited Liability Company
---------
Agreement, together with the schedules attached hereto, as amended,
restated or supplemented from time to time.
"Basic Documents" means the Indenture, the Trust Agreement, the Sale
---------------
Agreement, any Subsequent Sale Agreement, the Servicing Agreement, the
Administrative Services Agreement, the Note Purchase Agreement, the
DTC Agreement, the Fee and Indemnity Agreement and all other documents
and certificates delivered in connection therewith.
"Board" or "Board of Directors" means the Board of Directors of the
----- ------------------
Company.
"Certificate of Formation" means the Certificate of Formation of the
------------------------
Company filed with the Secretary of State of the State of Delaware on
July 1, 1997, as amended or amended and restated from time to time.
"Certificates" means the rate reduction certificates to be issued by
------------
California Infrastructure and Economic Development Bank Special
Purpose Trust -SDG&E-1.
"Certificate Trustee" means the institution serving as certificate
-------------------
trustee under the Trust Agreement.
"Class" means, with respect to any Series of Notes, any one of the
-----
classes of Notes of that Series.
"Collateral" means all of the Company's right, title and interest in
----------
and to (a) the Transition Property transferred by the Initial Member
to the Company pursuant to the Sale Agreement and all proceeds
thereof, (b) any Subsequent Transition Property transferred by the
Initial Member to the Company pursuant to each Subsequent Sale
Agreement and all proceeds thereof, (c) the Sale Agreement and each
Subsequent Sale Agreement, (d) the Servicing Agreement, (e) the
Collection Account (including all
subaccounts thereof) and all amounts or investment property on deposit
therein or credited thereto from time to time, (f) all other property
of whatever kind owned from time to time by the Company, (g) all
present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind, and
other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included
in proceeds of any of the foregoing and (h) all proceeds of the
foregoing.
"Collection Account" means the segregated trust account to be
------------------
established in the name of the Note Trustee into which will be
deposited the payments received in respect of the non-bypassable,
usage-based, per-kilowatt-hour FTA charges permitted to be levied on
customers pursuant to the Financing Order.
"Company" means SDG&E Funding LLC, a Delaware limited liability
-------
company.
"Control" means the possession, directly or indirectly, or the power
-------
to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities or general
partnership or managing member interests, by contract or otherwise.
"Controlling" and "Controlled" shall have correlative meanings.
Without limiting the generality of the foregoing, a Person shall be
deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 20a.
---------------
"Delaware Trustee" means the institution serving as Delaware trustee
----------------
under the Trust Agreement.
"Directors" means the directors elected to the Board of Directors from
---------
time to time by the Member, including the Independent Director. A
Director is hereby designated as a "manager" of the Company within the
meaning of Section 18-101(10) of the Act.
"DTC Agreement" means the agreement to be entered into between
-------------
California Infrastructure and Economic Development Bank Special
Purpose Trust -SDG&E-1, the Certificate Trustee and The Depository
Trust Company, relating to the Certificates, as the same may be
amended and supplemented from time to time.
"Fee and Indemnity Agreement" means the Fee and Indemnity Agreement to
---------------------------
be entered into among the Company, the Note Trustee, the Certificate
Trustee, the Delaware Trustee and the California Infrastructure and
Economic Development Bank, as originator.
"Financing Order" means the order of the CPUC, Decision 00-00-000,
---------------
issued as of September 3, 1997 which became effective on [October 9],
1997.
"Indebtedness" means the obligations of the Company arising under all
------------
Series of Notes.
"Indenture" means the Indenture to be entered into between the
---------
Company, as issuer, and the Note Trustee, as trustee, as the same may
be amended, supplemented or otherwise modified from time to time.
"Independent Director" means a natural person who, for the five-year
--------------------
period prior to his or her appointment as Independent Director has not
been, and during the continuation of his or her service as Independent
Director is not: (i) an employee, director, stockholder, partner or
officer of the Company or any of its Affiliates (other than his or her
service as an Independent Director of the Company); (ii) a customer or
supplier that derives more than ten percent of its revenues from the
Company or any of its Affiliates; or (iii) any member of the immediate
family of a person described in (i) or (ii).
"Initial LLC Agreement" has the meaning set forth in the preamble to
---------------------
this Agreement.
"Initial Member" means San Diego Gas & Electric Company, a California
--------------
corporation, as the sole member of the Company.
"Management Agreement" means the agreement of the Directors in the
--------------------
form attached hereto as Schedule C.
----------
"Material Action" means to consolidate or merge the Company with or
---------------
into any Person, or sell all or substantially all of the assets of the
Company, or to institute proceedings to have the Company be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Company or file a
petition seeking, or consent to, reorganization or relief with respect
to the Company under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or a substantial part of its property, or make any assignment
for the benefit of creditors of the Company, or admit in writing the
Company's inability to pay its debts generally as they become due, or,
to the fullest extent permitted by law, take action in furtherance of
any such action, or dissolve or liquidate the Company.
"Member" means the Initial Member and includes any Person admitted as
------
an additional member of the Company or a substitute member of the
Company pursuant to the provisions of this Agreement.
"Note Issuance Documents" means the collective reference to the
-----------------------
Indenture and the other governing documents relating to the
Indebtedness, as the same may be amended, supplemented or otherwise
modified from time to time.
"Note Purchase Agreement" means the Note Purchase Agreement to be
-----------------------
entered into between the Company and Bankers Trust Company, as
certificate trustee.
"Notes" means the SDG&E Funding LLC Notes at any time issued pursuant
-----
to the Indenture or any indenture supplemental thereto.
"Note Trustee" means the institution serving as note trustee under the
------------
Indenture.
"Officer" means an officer of the Company described in Section 11.
-------
"Officer's Certificate" means a certificate signed by any Officer of
---------------------
the Company who is authorized to act for the Company in matters
relating to the Company.
"Person" means any individual, corporation, partnership, joint
------
venture, limited liability company, limited liability partnership,
association, joint-stock company, trust, unincorporated organization,
or other organization, whether or not a legal entity, and any
governmental authority.
"PU Code" means the California Public Utilities Code, as amended from
-------
time to time.
"Rating Agency" means Xxxxx'x Investors Service Inc., Standard &
-------------
Poor's Rating Services, Fitch Investors Service, L.P., [and Duff &
Xxxxxx Credit Rating Company], or their respective successors or such
nationally recognized statistical rating organizations designated by
the Company with notice to the Note Trustee, the Certificate Trustee
and the Initial Member in its role as servicer under the Servicing
Agreement.
"Rating Agency Condition" means, with respect to any action, that each
-----------------------
Rating Agency shall have been given ten days prior notice thereof and
that each of the Rating Agencies shall have notified the Company in
writing that such action will not result in a reduction or withdrawal
of the then current
rating by such Rating Agency of any Series or Class of the Notes.
"Sale Agreement" means the Transition Property Purchase and Sale
--------------
Agreement to be entered into between the Company and the Initial
Member, as seller.
"Sale Documents" means the collective reference to the Sale Agreement,
--------------
any Subsequent Sale Agreements and the agreements, instruments and
documents contemplated thereby, as the same may be amended,
supplemented or otherwise modified from time to time.
"Series" means each series of Notes issued and authenticated pursuant
------
to the Indenture.
"Servicing Agreement" means the Transition Property Servicing
-------------------
Agreement to be entered into between the Company and the Initial
Member, as servicer, as the same may be amended, supplemented or
otherwise modified from time to time.
"Statute" means Assembly Xxxx 1890, Chapter 854, California Statutes
-------
of 1996, as amended by Senate Xxxx 477, Chapter 275, California
Statutes of 1997, and as further amended from time to time.
"Subsequent Sale Agreement" means any sale agreement substantially
-------------------------
similar to the Sale Agreement, and entered into subsequently thereto,
pursuant to which the Initial Member will sell Subsequent Transition
Property to the Company.
"Subsequent Transition Property" means any transition property as
------------------------------
defined in Section 840 of the PU Code, created by the PU Code and the
Financing Order and specifically described in an issuance advice
letter filed with the CPUC pursuant to the Financing Order, and sold
to the Company by the Initial Member pursuant to a Subsequent Sale
Agreement.
"Transition Property" means the "Transition Property" contemplated by
-------------------
the Financing Order and to be specifically described in the issuance advice
letter filed with the CPUC pursuant to the Financing Order.
"Trust Agreement" means the Amended and Restated Declaration and
---------------
Agreement of Trust to be entered into among the California Infrastructure and
Economic Development Bank, the Certificate Trustee and the Delaware Trustee, as
the same may be further amended and supplemented from time to time.
"Underwriting Agreement" means the Underwriting Agreement to be
----------------------
entered into among the Member, the Company, the California Infrastructure and
Economic Development Bank Special Purpose Trust - SDG&E-1 and the underwriters
named therein.
B. Rules of Construction
---------------------
Definitions in this Agreement apply equally to both the singular and plural
forms of the defined terms. The words "include" and "including" shall be deemed
to be followed by
the phrase "without limitation." The terms "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole and not to
any particular Section, paragraph or subdivision. The Section titles appear as a
matter of convenience only and shall not affect the interpretation of this
Agreement. All Section, paragraph, clause, Exhibit or Schedule references not
attributed to a particular document shall be references to such parts of this
Agreement.
SCHEDULE B
Members
-------
Agreed Value of Percentage
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- ----------
San Diego 000 Xxx Xxxxxx $1,050,000 100%
Gas & Electric Room 111
Company Xxx Xxxxx, XX 00000
SCHEDULE C
Management Agreement
--------------------
---------------------, 1997
SDG&E FUNDING LLC
000 Xxx Xxxxxx
Xxxx 000
Xxx Xxxxx, XX 00000
Re: Management Agreement
SDG&E Funding LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as Directors of SDG&E 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 _____________,
1997, as it may be amended or restated from time to time (the "LLC Agreement"),
hereby agree as follows:
1. Each of the undersigned accepts such person's rights and authority as a
Director (as defined in the LLC Agreement) under the LLC Agreement and agrees to
perform and discharge such person's duties and obligations as a Director under
the LLC Agreement, and further agrees that such rights, authorities, duties and
obligations under the LLC Agreement shall continue until such person's successor
as a Director is designated or until such person's resignation or removal as a
Director in accordance with the LLC Agreement. Each of the undersigned agrees
and acknowledges that it has been designated as a "manager" of the Company
within the meaning of the Delaware Limited Liability Company Act.
2. So long as any Indebtedness (as defined in the LLC Agreement) is
outstanding, each of the undersigned agrees not to acquiesce, petition, or
otherwise involve 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
C-1
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.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
__________________________________
Name: Xxxxxxx X. XxXxxxxxx
__________________________________
Name: Xxxxx X. Xxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxx
C-2
