Amended and Restated Operating Agreement
for
Xxxxx Creek IV, LLC
A Delaware Limited Liability Company
This AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement") for Xxxxx Creek
IV, LLC ("Company") dated as of October 31, 2001, is entered into and made
effective by Cinergy Global Xxxxx Creek IV, Inc., a Delaware corporation
("Member") with reference to the following facts:
X. Xxxxx Creek IV, LLC is a Delaware limited liability company formed by SeaWest
WindPower, Inc., a California corporation ("SeaWest Member,"and sometimes
referred to as "Initial Member"). The Certificate of Formation of the Company
was filed with the Secretary of State of Delaware on October 25, 1999. This
Agreement is an amendment to the Second Amended and Restated Operating Agreement
of Xxxxx Creek IV, LLC, effective as of October 2, 2000, (the "Prior Operating
Agreement");
B. Member now wishes to replace the Prior Operating Agreement in its entirety by
entering into this Agreement to provide for the governance of the Company and
the conduct of its business as a limited liability company. This Agreement shall
be considered the "Limited Liability Company Agreement" of the Company within
the meaning of Section 18-101(7) of the Act.
NOW THEREFORE, the Prior Operating Agreement is wholly replaced and superseded
by this Agreement in its entirety and this Agreement shall read as follows:
1. Definitions
Capitalized terms used in this Agreement shall have the meanings respectively
given thereto in this Section 1 or elsewhere in this Agreement and when not so
defined shall have the meanings set forth in the Act.
"Act" means the Delaware Limited Liability Company Act, 6 Del. C.ss.18-101 et
seq., as amended from time to time.
"Affiliate" means, with respect to any Member, any person: (i) that owns more
than 5 % of the voting interests in the Member; or (ii) in which the Member owns
more than 5% of the voting interests; or (iii) in which more than 5% of the
voting interests are owned by a Person who has a relationship with the Member
described in clause (i) or (ii) above.
"Agreement" means this Amended and Restated Operating Agreement for Xxxxx Creek
IV, LLC as may be amended from time to time.
"Capital Account" means the account to be maintained by the Company on the
Company's books and records for each Member in accordance with Section 3.6.
"Capital Contribution" means, with respect to any Member, the total amount of
cash and the Gross Asset Value of any other assets contributed or deemed
contributed to the Company by the Code (net of liabilities secured by such
contributed property that the Company is considered to assume or take "subject
to" under Code Section 752) or services rendered or a promissory note or other
binding obligation to contribute cash or assets or to render services as
permitted under the Act in consideration of Membership Rights held by such. A
Capital Contribution shall not be deemed a loan.
"Capital Proceeds" means the gross receipts received by the Company from a
Capital Transaction.
"Capital Transaction" means any transaction other than in the ordinary course of
business which results in the Company's receipt of cash or other consideration
other than Capital Contributions, including, without limitation, proceeds of
sales or exchanges or other dispositions of property other than in the ordinary
course of business, financings, refinancings, condemnations, recoveries of
damage awards and insurance proceeds.
"Cash Flow" means all cash funds derived from operations of the Company
(including interest received on reserves), without reduction for any non-cash
charges, but less cash funds used to pay current operating expenses and to pay
or establish reasonable reserves for future expenses, debt payments, capital
improvements, and replacements as determined by the Managers. Cash Flow shall
include net proceeds from all sales, refinancings, and other dispositions of
Company property that the Managers deem in excess of the amount reasonably
necessary for the operating requirements of the Company. Cash Flow shall not
include Capital Proceeds but shall be increased by the reduction of any reserve
previously established.
"Certificate of Formation" means the Certificate of Formation of the Company
filed with the Secretary of State of Delaware in accordance with the Act by the
Initial Member on October 25, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.
"Company" means Xxxxx Creek IV, LLC, a Delaware limited liability company.
"Company Assets" means all the direct and indirect interests in real and
personal property owned by the company from time to time and shall include both
tangible and intangible property (including cash).
"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an
asset for such Fiscal Year, except that if the Gross Asset Value of an asset
differs from its adjusted basis for federal income tax purposes at the beginning
of such Fiscal Year, Depreciation shall be an amount which bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to
such beginning adjusted tax basis; provided however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Members.
"EWG" means an exempt wholesale generator as such term is defined in Section 32
of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.
"Fiscal Year" shall have the meaning given in Section 2.7.
"Gross Asset Value" means with respect to any asset, the asset's adjusted basis
for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any item of property contributed by
Member to the Company shall be the gross fair market value of such
asset, as mutually agreed by the contributing Member and the Company;
(ii) The Gross Asset Values of all Company Assets shall be adjusted to
equal their respective gross fair market values (taking Code Section
7701(g) into account) in accordance with Regulation Section
1.704-1(b)(2)(iv)(f) and as determined by the Members as of the
following times: (a) the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a de
minimis Capital Contribution; (b) the distribution by the Company to a
Member of more than a de minimis amount of Company property as
consideration for an interest in the Company; and (c) the liquidation
of the Company within the meaning of Regulation Section
1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses
(a) and (b) of this paragraph shall be made only if the Members
reasonably determine that such adjustment is necessary to reflect the
relative Interests of the Members in the Company;
(iii)The Gross Asset Value of any item of Company Assets distributed to
any Member shall be adjusted to equal the gross fair market value
(taking Code Section 7701(g) into account) of such asset on the date
of distribution as mutually agreed by the receiving Member and the
Company; and
(iv) The Gross Asset Values of Company Assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Code Section 732 or Code Section 734 or Code
Section 743, subject to the limitations imposed by Code Section 755
and only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Regulation Section
1.704-1(b)(2)(iv)(m) and subparagraph (e) of the definition of "Net
Profits" or "Net Losses"; provided, however, that Gross Asset Values
shall not be adjusted pursuant to this subparagraph (iv) to the extent
that an adjustment pursuant to subparagraph (ii) is required in
connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with
respect to such asset, for purposes of computing Profits and Losses.
"Initial Member" means the SeaWest Member.
"Interest" means an Interest Holder's share of the Profits and Losses of, and
the right to receive distributions from the Company, but does not include any
other rights of a Member including, without limitation, the right to vote or to
participate in management, or any right to information concerning the business
and affairs of the Company.
"Interest Holder" means any Person who holds an Interest, whether as a Member or
as an assignee of a Member who has not been admitted to the Company as a Member.
"Involuntary Withdrawal" means, with respect to any Member, the occurrence of
any of the following events;
(i) the Member makes an assignment for the benefit of creditors;
(ii) the Member files a voluntary petition of bankruptcy;
(iii)the Member is adjudged bankrupt or insolvent or there is entered
against the Member an order for relief in any bankruptcy or insolvency
proceeding;
(iv) the Member files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
(v) the Member seeks, consents to, or acquiesces in the appointment of a
trustee, receiver, or liquidator of the Member or of all or any
substantial part of the Member's properties;
(vi) the Member files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against the
Member in any proceeding described in Subsections (i) through (v);
(vii)within one hundred twenty days (120) days of any proceeding against
the Member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
statute, law, or regulation if the proceeding has not been dismissed,
or within ninety (90) days after the appointment of a trustee,
receiver, or liquidator for the Member or all or any substantial part
of the Member's properties without the Member's agreement or
acquiescence, which appointment is not vacated or stayed, or if the
appointment is stayed, for ninety (90) days after the expiration of
the stay which period the appointment is not vacated;
(viii) if the Member is an individual, the Member's death or adjudication
by a court of competent jurisdiction as incompetent to manage the
Member's person or property;
(ix) if the Member is acting as a Member by virtue of being a trustee of a
trust, the termination of the trust:
(x) if the Member is a partnership or another limited liability company,
the dissolution and commencement of winding up of the partnership or
limited liability company;
(xi) if the Member is a corporation, the dissolution of the corporation or
the revocation of its charter; or
(xii)if the Member is an estate, the distribution by the fiduciary of the
estate's entire interest in the limited liability company.
"Manager(s)" is the Person(s) designated as such in Article 5 of this Agreement
or who is later elected as a Manager pursuant to the terms of this Agreement.
"Member" means Cinergy Global Xxxxx Creek IV, Inc. and any Person who
subsequently is admitted as a Member of the Company in accordance with the terms
of this Agreement.
"Membership Interest" means the entire ownership interest of a Member in the
Company at any particular time, including without limitation: (i) Interest, (ii)
right to inspect the Company's books and records; and (iii) right to participate
in the management of and vote on matters coming before the Company.
"Minimum Gain" of the Company, as provided in Regulation Section 1.704-2(d),
means the total amount of gain the Company would realize for federal income tax
purposes if it disposed of all assets subject to their respective nonrecourse
liabilities for no consideration other than the full satisfaction thereof.
"Negative Capital Account" means a Capital Account with a balance of less than
zero.
"Nonrecourse Deduction" has the meaning set forth in Regulation Section
1.704-2(b)(1). The amount of Nonrecourse deductions for a Company fiscal year
equals the net increase in the amount of Company Minimum Gain during that fiscal
year, reduced (but not below zero) by the aggregate amount of any distributions
during that fiscal year of proceeds of a Nonrecourse Liability that are
allocable to an increase in Company Minimum Gain.
"Nonrecourse Liability" has the meaning set forth in Regulation Section
1.752-1(a)(2).
"Percentage" means, as to a Member, the percentage set forth after the Member's
name on Exhibit A of this Agreement, as amended from time to time, and as to an
Interest Holder who is not a Member, the Percentage of the Member(s) Interest
that has been acquired by such Interest Holder, to the extent the Interest
Holder has succeeded to that Member's Interest.
"Person" means an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, or other entity, whether
domestic or foreign.
"Positive Capital Account" means a Capital Account with a balance greater than
zero.
"Profit" and "Loss" means, for each Fiscal Year of the Company (or other
period), an amount equal to the Company's taxable income or loss determined in
accordance with Code Section 703(a)(for this purposes, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(i) any tax exempt income of the Company shall be included in computing
Profit and Loss;
(ii) any expenditures of the Company described in Code Section 705(a)(2)(B)
(or treated as such pursuant to Regulation Section
1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in
computing Profit or Loss, shall be subtracted from Profit or Loss;
(iii)gain or Loss resulting from any disposition of any Company Assets
where such gain or Loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the Company
Assets disposed of notwithstanding that the adjusted tax basis of such
Company Assts differs from its Gross Asset Value;
(iv) in lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal
Year;
(v) if the Gross Asset Value of any Company Asset is adjusted in
accordance with subparagraphs (ii) or (iii) of the definition thereof,
the amount of such adjustment shall be taken into account in the
taxable year of such adjustment as gain or loss from the disposition
of such asset for the purposes of computing Profit of Loss; and
(vi) notwithstanding any other provision of this definition, any items that
are specially allocated pursuant to Section 4.2.2 shall not be taken
into account in computing Profit and Loss.
"PUHCA" means the Public Utility Holding Company Act of 1935 and all rules and
regulations adopted thereunder.
"Regulation" means the income tax regulations, including any temporary
regulations, from time to time promulgated under the Code.
"Secretary of State" means the Secretary of State of the state of Delaware.
"Transfer" means, with respect to any Interest or Membership Interest in the
Company, a sale, conveyance, exchange, assignment, pledge, encumbrance gift,
bequest, hypothecation or other transfer or disposition by any other means,
whether for value or no value and whether voluntary or involuntary.
2. Organizational Matters
2.1 Organization
The Initial Member has filed a Certificate of Formation for Xxxxx Creek IV,
LLC, a Delaware limited liability company, on October 25, 1999, and the
Company was qualified within the State of Wyoming on February 25, 2000.
Member has acquired all of the Membership Interest of the Initial Member by
way of Transfer. The Managers shall cause to be made, on behalf of the
Company, such additional filings and recordings in such other states as the
Members shall deem necessary or advisable.
2.2 Name
The name of the Company shall remain Xxxxx Creek IV, LLC. The Company may
do business under that name and under any other name or names approved by
the Members.
2.3 Business
The Company may engage in any business or projects relating to wind energy
generation including the development, construction, installation,
ownership, operation, maintenance and management of wind-powered
electricity generating plant and to undertake any and all activities
related or incident thereto.
2.4 Term
The term of the Company commenced as of the date of the filing of the
Certificate of Formation and shall continue on a perpetual basis unless
dissolved pursuant to Article 7 of this Agreement.
2.5 Registered Office and Agent
The registered agent of the Company is CT Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
or such other agent as determined by the Managers. The principal business
office of the company shall be located at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, or such other location as the Managers may
determine.
2.6 Members
The name, present mailing address, taxpayer identification number, and
Percentage of each of the Members are set forth on Exhibit A attached
hereto. The Managers shall amend Exhibit A each and every time a Member is
admitted or ceases to be a Member or when the Percentage of a Member is
increased or decreased.
2.7 Fiscal Year
The Fiscal Year of the Company shall begin on January 1st and end on
December 31st. The Company shall have the same fiscal year for accounting
and for income tax purposes.
2.8 Member Interest Certificates
All membership interests in the Company shall be certificated in the form
attached hereto as Exhibit C. The Company hereby irrevocably elects that
all membership interests in the Company shall be securities governed by
Article 8 of the Uniform Commercial Code as in effect in the State of
Delaware. Each certificate evidencing Membership Interests in the Company
shall bear the following legend: "This certificate evidences an interest in
Xxxxx Creek IV, LLC and shall be a security for purposes of Article 8 of
the Uniform Commercial Code as in effect in the State of Delaware." This
provision shall not be amended, and no such purported amendment to this
provision, shall be effective until all outstanding certificates have been
surrendered for cancellation.
3. Members; Capital and Capital Accounts
3.1 Capital Contributions
Member's predecessor in interest has made a Capital Contribution of $ 0
(zero dollars). The Member shall not be required to make a Capital
Contribution.
3.2 Additional Capital Contributions
The Members shall not be required to make any additional Capital
Contributions.
3.3 No Interest on Capital Contributions
The Company shall not pay any interest on Capital Contributions.
3.4 Return of Capital Contributions
Except as otherwise provided in this Agreement, neither the Members nor any
Interest Holder shall have the right to receive the return of any Capital
Contribution except upon dissolution of the Company.
3.5 [Intentionally Left Blank]
3.6 Capital Accounts
3.6.1 A separate Capital Account shall be maintained for each Member and
each Interest Holder.
3.6.2 An Interest Holder's Capital Account shall be increased with the
Interest Holder's Capital Contributions, the amount of any Company
liabilities assumed by the Interest Holder (or which are secured by Company
property distributed to the Interest Holder), the Interest Holder's
distributive share of Profit and any item in the nature of income or gain
specially allocated to such Interest Holder pursuant to the provisions of
Section 4; and
3.6.3 An Interest Holder's Capital Account shall be decreased with the
amount of money and the Gross Asset Value of any Company property
distributed to the Interest Holder, the amount of any liabilities of the
Interest Holder assumed by the Company (or which are secured by property
contributed by the Interest Holder to the Company), the interest Holder's
distributive share of Loss, and any item in the nature of expenses or
losses specially allocated to the Interest Holder pursuant to the
provisions of Section 4.
3.6.4 If any Interest is transferred pursuant to the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent the Capital Account is attributable to the
transferred Interest.
3.6.5 If the Gross Asset Value of Company Assets is adjusted pursuant to
Section 3.6.6, the Capital Account of each Member or Interest Holder shall
be adjusted to reflect the aggregate adjustment in the same manner as if
the Company had recognized gain or Loss equal to the amount of such
aggregate adjustment.
3.6.6 It is intended that the Capital Accounts of all Interest Holders
shall be maintained in compliance with the provisions of Regulation Section
1.704-1(b)(2)(iv), and all provisions of this Agreement relating to the
maintenance of Capital Accounts shall be interpreted and applied in a
manner consistent with that Regulation.
3.7 Loans and Other Business Transactions
Any Member may, at any time, make or cause to be made a non-recourse loan
to the Company in any amount and on those terms upon which the Member
making such non-recourse loan and the Company may agree in writing.
Acceptance by the Company of any such Loan provided by a Member requires
the prior unanimous consent of the Members. Any Member may also transact
other business, subject to the requirement provided in Section 5.3.4, with
the Company and be an employee or independent contractor of the Company
and, in doing so, it shall have the same rights and be subject to the same
obligations arising out of any such business transaction or employment or
consultant relationship, as would be enjoyed by and imposed upon any
Person, not a Member, engaged in a similar business transaction with the
Company.
4. Allocations of Profit and Loss and Distributions
4.1 Distributions of Cash Flow
Except as otherwise provided in Section 4.7.1 with respect to distributions
upon liquidation of the Company, Cash Flow for each Fiscal Year of the
Company shall be distributed to the Interest Holders in proportion to their
Percentages at such time or times and in such aggregate amounts as may be
determined by the Managers. Cash Flow, other than revenues or proceeds from
a Capital Transaction or the dissolution of the Company, shall be
distributed as soon as practicable following a Manager's determination that
such cash is available for distribution. The Members acknowledge that no
assurances can be given with respect to when or whether such cash will be
available for distributions to the Members.
4.2 Allocations of Profits and Losses
4.2.1 General. Except as otherwise provided in this Section 4.2, Profit and
Loss of the Company shall be allocated among the Interest Holders as
follows:
4.2.1.1 Profit and Loss of the Company shall be allocated to the
Interest Holders in proportion to their respective Percentages.
4.2.1.2 In accordance with the provisions of Regulation Section
1.704-2(i), each item of an Interest Holder's Nonrecourse Deduction
shall be allocated among the Interest Holders in proportion to the
economic risk of loss that the Interest Holder bears with respect to
the nonrecourse liability of the Company to which such item of an
Interest Holder's Nonrecourse Deduction is attributable.
4.2.2 Allocation Adjustments Required to Comply with Section 704(b) of the
Code
4.2.2.1 Limitation on Allocation of Loss. Notwithstanding Section
4.2.1.1, there shall be no allocation of Loss to any Interest Holder
that would create or increase a deficit balance in such Interest
Holder's Capital Account unless such allocation would be treated as
valued under Regulation Section 1.704-1(b)(1)(i). Any Loss that cannot
be allocated to an Interest Holder pursuant to the preceding sentence
shall be reallocated to the other Interest Holders in proportion to
their Percentages.
4.2.2.2 Qualified Income Offset. Notwithstanding Section 4.2.1.1, if
in any taxable year an Interest Holder receives (or is reasonably
expected to receive) a distribution, or an allocation or adjustment to
such Interest Holder's Capital Account, in accordance with Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), that creates or
increases (or is reasonably expected to create or increase) a deficit
balance in such interest Holder's Capital Account, there shall be
allocated to the Interest Holder such items of Company income or gain
as are necessary to satisfy the requirements of a "qualified income
offset" within the meaning of Regulation Section
1.704-1(b)(2)(ii)(d)(3).
4.2.2.3 Minimum Gain Chargeback. Notwithstanding Section 4.2.1, this
Section 4.2.2.3 hereby incorporates by reference the "minimum gain
chargeback" provisions of Regulation Section 1.704-2(f) and (i)(4). In
general, upon a reduction of the Company's Minimum Gain, the preceding
sentence shall require that items of income and gain be allocated
among the Interest Holders in a manner that reverses prior allocations
of Nonrecourse Deductions and Interest Holder Nonrecourse Deductions
as well as reductions in the Interest Holders' Capital Account
balances resulting from distributions that, notwithstanding Section
4.6, are allocable to increases in the Company's Minimum Gain. Subject
to the provisions of Section 704 of the Code and the regulations
thereunder, if the Managers determine at any time that operation of
such "minimum gain chargeback" provisions likely will not achieve such
a reversal by the conclusion of the liquidation of the company, the
Managers shall adjust the allocation provisions of this Section 4.2.2
as necessary to accomplish this result.
4.2.2.4 Allocations Subsequent to Certain Allocation Adjustments. Any
special allocations of items of Profit or Loss pursuant to Sections
4.2.2.1, 4.2.2.2 or 4.2.2.3 shall be taken into account in computing
subsequent allocations pursuant to Section 4.2.1 so that, for each
Interest Holder, the net amount of any such special allocations and
all allocations pursuant to Section 4.2.1 shall, to the extent
possible and taking into account prior allocations pursuant to Section
4.2.7, be equal to the net amount that would have been allocated to
such Interest Holder pursuant to Section 4.2.1 without application of
Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3.
4.2.3 Book - Tax Accounting Disparities
If the Company Assets are reflected in the Capital Accounts of the Interest
Holders at a Gross Asset Value that differs from the adjusted tax basis of
such property (whether because such property was contributed to the Company
by an Interest Holder or because of a revaluation of the Interest Holders'
Capital Accounts under Regulation Section 1.704-1(b)), allocations of
depreciation, amortization, income, gain or loss with respect to such
property shall be made among the Interest Holders in a manner which takes
such difference into account in accordance with Code Section 704(c) and
Regulation Section1.704-3(d) using the remedial method.
4.2.4 Allocation in Event of Transfer
If an Interest is Transferred, in compliance with Section 6.1, allocations
of the Company's Profit and Loss may be made by any method that is selected
by the Managers and that is permissible under Section 706 of the Code.
4.2.5 Adjustments to Capital Accounts for Distributions of Property
If property distributed in kind is reflected in the Capital Accounts of the
Interest Holders at a Gross Asset Value that differs from the fair market
value of such property on the date of distribution, the difference shall be
treated as Profit or Loss on the sale of the property and shall be
allocated to the Interest Holder who received such distribution.
4.2.6 Tax Credits and Similar Items.
Any tax credits or similar items not allocable pursuant to Sections 4.2.1
through 4.2.5 shall be allocated to the Interest Holders in proportion to
their respective Percentages. Notwithstanding the preceding sentence,
Company expenditures that give rise to tax credits attributable to such
expenditures shall be allocated in accordance with Regulation Section
1.704-1(b)(4)(ii).
4.2.7 Reallocation of Losses Related to Excess Distributions
If, as a result of an Interest Holder receiving a distribution of cash or
property that it is required to return because the distribution was not
authorized by this Agreement, Loss which otherwise would have been
allocated to the Interest Holder was allocated to one or more other
Interest Holders (and such allocation has not been reversed pursuant to
Section 4.2.2.4), then subsequent profit and Loss shall be allocated to the
Interest Holder and to the other Interest Holders so as, in connection with
the return of such cash or property (to the extent of the value thereof),
to effect a reallocation of such Loss to the Interest Holder.
4.3 Modifications to Preserve Underlying Economic Objectives
If in the opinion of counsel to the Company, there is a change in the
Federal income tax law (including the Code as well as the regulations,
rulings, and administrative practices thereunder) which makes it necessary
or prudent to modify the allocation provisions of this Section 4 in order
to preserve the underlying economic objectives of the Members as reflected
in this Agreement, the Managers shall make the minimum modification
necessary to achieve such purpose.
4.4 Withholding Taxes
The Company shall withhold taxes from distributions to and allocations
among, the Interest Holders to the extent required by law. Except as
otherwise provided in this Section 4.4, any amount withheld by the Company
with regard to an Interest Holder shall be treated for purposes of this
Agreement as an amount actually distributed to such Interest Holder. An
amount shall be considered withheld by the Company if remitted to a
governmental agency without regard to whether such remittance occurs at the
same time as the distribution or allocation to which it relates provided,
however that an amount actually withheld from a specific distribution or
designated by the Managers as withheld from a specific allocation shall be
treated as if distributed at the time such distribution or allocation
occurs. To the extent operation of the foregoing provisions of this Section
4.4 would create or increase a deficit balance in an Interest Holder's
Capital Account (excluding for this purpose any portion of such deficit
attributable to the Interest Holder's share of the Company's Minimum Gain
as determined under Section 1), the amount withheld shall be treated as a
loan by the Company to such Interest Holder, which loan shall be payable
upon demand and shall bear interest at a rate equal to the lowest rate that
will not give rise to the imputation of additional interest under
applicable federal income tax rules. At the election of the Managers, the
Company shall be entitled to withhold from any distributions otherwise
payable to an Interest Holder amounts owed to the Company by such Interest
Holder under the terms of the preceding sentence.
4.5 Nonallocation of Distributions to Increases in Minimum Gain
To the extent permitted under Regulation Section 1.704-2(h), distributions
to Interest Holders shall not be allocable to increases in the Company's
Minimum Gain. In general, and except as provided in such Regulation, the
preceding sentence is intended to ensure that reductions in an Interest
Holder's Capital Account balance resulting from distributions of money or
other property to that Interest Holder are not reversed by the minimum gain
chargeback provisions of Section 4.2.2.3.
4.6 Allocation of Liabilities
Solely for purposes of determining the Interest Holders' respective shares
of the nonrecourse liabilities of the Company within the meaning of
Regulation Section 1.752-3(a)(3), each Interest Holder's interest in
Company Profit shall be equal to such Interest Holder's Percentage.
4.7 Liquidation and Dissolution
4.7.1 Distributions. If the Company is liquidated, the assets of the
Company shall be distributed to the Interest Holders in accordance with the
positive balances in their respective Capital Accounts, after taking into
account all distributions and allocations of Profit or Loss and other items
of income, gain, loss or deduction for the Company's taxable year during
which liquidation occurs. Distributions of the Interest Holders pursuant to
this Section 4.7.1 shall be made in accordance with Regulation Section
1.704-1(b)(2)(ii)(b)(2).
4.7.2 Negative Capital Accounts. No Interest Holder shall be obligated to
restore a negative Capital Account balance.
4.8 General
4.8.1 Except as otherwise provided in this Agreement, the amount of all
distributions shall be determined by the Managers and distributions shall
be made as soon as practicable following a Manager's determination. The
Members acknowledge that no assurances can be given with respect to when or
whether such distributions will be available to the Members.
4.8.2 The Company Assets may be distributed in kind to the Interest
Holders, and those assets shall be valued on the basis of their fair market
value. The fair market value of the assets shall be determined by the
Members. In the case of disagreement among the Members, an independent
appraiser, who shall be selected by a Manager, shall determine the fair
market value of the asset. The Profit or Loss for each unsold asset shall
be determined as if the asset had been sold at its fair market value, and
the Profit or Loss shall be allocated to the Interest Holders who received
such distributions and shall be properly credited or charged to the Capital
Accounts of the Interest Holders prior to the distribution of the assets in
liquidation pursuant to Section 4.7.
4.8.3 All Profit and Loss shall be allocated, and all distributions shall
be made to the Persons shown on the records of the Company to have been
Interest Holders as of the last day of the taxable year for which the
allocation or distribution is to be made. Notwithstanding the foregoing,
unless the Company's taxable year is separated into segments, if there is a
Transfer or an Involuntary Withdrawal during the taxable year, the Profit
and Loss shall be allocated between the original Interest Holder and the
successor on the basis of the number of days each was an Interest Holder
during the taxable year; provided, however, the Company's taxable year
shall be segregated into two or more segments in order to account for
Profit, Loss or proceeds attributable to a Capital Transaction or to any
other extraordinary non-recurring items of the Company.
4.8.4 The Managers are hereby authorized, upon the advice of the Company's
tax counsel, to amend this Article 4 to comply with the Code and the
Regulations promulgated under Code Section 704(b); provided, however, that
no amendment shall materially affect distributions to an Interest Holder
without the Interest Holder's prior written consent.
5. Manager(s) and Management
5.1 Management
5.1.1 Manager(s) and Appointment
The Company shall be managed by the Manager(s), who may, but need not, be a
Member. Member hereby designates Xxxxxxx X. Xxxxxx, Xxxx Xxxxxx, Xxxxxx
Xxxxxx and Xxxxx X. Xxxxx to serve as the Managers. The above individuals
shall serve as Managers until any of them resign or any of them are removed
by the Member(s); provided, however, that a Manager shall not be permitted
to resign if such Manager is, at the time, the sole Manager, unless and
until a replacement Manager shall be elected to serve as Manager.
5.1.2 General Powers
Each Manager individually shall have full, exclusive, and complete
discretion, power, and authority, subject in all cases to the other
provisions of this Agreement and the requirements of applicable law, to
manage, control, administer, and operate the business and affairs of the
Company for the Purposes herein stated, and to make all decisions affecting
such business and affairs, including without limitation, for Company
purposes, the power to:
(a) acquire by purchase, lease, or otherwise, any real or personal
property, tangible or intangible;
(b) construct, operate, maintain, finance and improve, and to own, sell,
convey, assign, mortgage, or lease any of the Company Assets;
(c) enter into agreements and contracts in connection with the Company's
business;
(d) purchase liability and other insurance to protect the Company's
properties and business;
(e) borrow money for and on behalf of the Company, and, execute any
guaranty on behalf of a third party;
(f) execute or modify agreements or contracts with respect to any part or
all of the Company's Assets;
(g) prepay, in whole or in part, refinance, amend, modify, or extend any
mortgages or deeds of trust which may affect any Company Asset and, in
connection therewith, to execute for and on behalf of the Company any
extensions, renewals, or modifications of such mortgages or deeds of
trust;
(h) execute any and all other instruments and documents which may be
necessary or in the opinion of the Manager desirable to carry out the
intent and purpose of this Agreement;
(i) make any and all expenditures which the Manager, in its sole
discretion, deems necessary or appropriate in connection with the
management of the affairs of the Company and the carrying out of its
obligations and responsibilities under this Agreement, including,
without limitation, all legal, accounting, and other related expenses
incurred in connection with the organization, financing, and operation
of the Company;
(j) enter into any kind of activity necessary to, in connection with, or
incidental to, the accomplishment of the purposes of the Company; and
(k) invest and reinvest Company reserves in short term instruments or
money market funds
5.1.3 Extraordinary Transactions
(a) Notwithstanding anything to the contrary in this Agreement, the
Managers shall not undertake any of the following without the approval
of the Members:
(i) any Capital Transaction;
(ii) to lend, assume or guaranty debt in excess of $100,000 in any one
Fiscal Year;
(iii)the admission of additional or substitute Members to the
Company;
(iv) the Company engaging in business in any jurisdiction which does
not provide for the registration of limited liability companies;
(v) to authorize any expenditure that causes the annual expenditure
budget to be exceeded by fifteen percent (15%) in any one Fiscal
Year; and
(vi) to provide loans to any Member; assume the debt of a Member;
guaranty debt of a Member; or acceptance of any loan provided by
a Member.
5.1.4 Limitation on Authority of Members
(a) No Member is an agent of the Company solely by virtue of being a
Member, and no Member has authority to act for the Company solely by
virtue of being a Member. Only the Managers are authorized to act for
the Company, and no Member has any authority to act for the Company
unless such Member is also a Manager.
(b) This Section 5.1.4 supersedes any authority granted to the Member
pursuant to Section 18-402 of the Act. Any Member who takes any action
or binds the Company in violation of this Section 5.1.4 shall be
solely responsible for any loss or expense incurred by the Company as
a result of the unauthorized action and shall indemnify and hold the
Company harmless with respect to the loss or expense.
5.1.5 Removal of Manager
The Members, at any time and from time to time and for any reason, may
remove any Manager then acting and elect a new Manager. No action to remove
a Manager may be taken without the approval of seventy-five percent (75%)
of the Members.
5.2 Meetings of and Voting by Members
5.2.1 A meeting of the Members may be called at any time by the Managers or
by those Members holding at least a majority of the Percentages then held
by Members. It shall not be necessary for the Managers to call or to hold
regular meetings of the Members. Meetings of the Members shall be held at
the Company's principal place of business or at any other place designated
by the Person calling the meeting. Not less than seven (7) nor more than
sixty (60) days before each meeting, a Manager shall give written notice of
the meeting to each Member entitled to vote at the meeting. The notice
shall state the time, place, and purpose of the meeting. Notwithstanding
the foregoing provisions, each Member who is entitled to notice may waive
notice, either before or after the meeting, by executing a waiver of such
notice or if such Member is present at the meeting in person or by proxy.
At a meeting of Members, the presence in person or by proxy of Members
holding Percentages, which aggregate not less than sixty-seven percent
(67%), constitutes a quorum. A Member may vote either in person or by
written proxy signed by the Member or by his duly authorized
attorney-in-fact.
5.2.2 Except as otherwise provided in this Agreement, wherever this
Agreement requires the approval of the Members, the affirmative vote of
those Members holding a majority or more of the Percentages then held by
Member(s) shall be required to approve the matter.
5.2.3 In lieu of holding a meeting, the Members may vote or otherwise take
action by a written instrument indicating the consent of the Members
holding a majority of the Percentages then held. Any such approved action
shall be effective immediately. The Company shall give prompt notice to all
Members of any action approved by Members by less than unanimous consent.
5.2.4 The provisions of this Agreement are intended to replace completely
the provisions of the Act with respect to all matters concerning a Member's
voting rights, procedures for meetings of Members, actions by Members
without meetings, and the use of proxies.
5.3 Services and Duties of Members
5.3.1 No Member serving as a Manager shall be expected to devote his, her
or its full working time and efforts to the business and affairs of the
Company, and each shall only devote so much time and efforts as is
reasonably required for such purposes. The Managers shall devote such time
to the business and affairs of the Company as is necessary to carry out the
Manager's duties set forth in this Agreement. Managers shall be reimbursed
by the Company for reasonable business expenses incurred on behalf of the
company and within guidelines established by the Members.
5.3.2 No Member other than a Member serving as a Manager shall be expected,
or entitled, to work for the Company except with the prior written consent
of the Managers.
5.3.3 Except as otherwise expressly provided in Section 5.3.4, nothing in
this Agreement shall be deemed to restrict in any way the rights of the
Managers or any Member, or to any Affiliate of any Manager or any Member,
to conduct any other business or activity whatsoever, and the Managers or
any Member shall not be accountable to the Company or to any Member with
respect to that business or activity even if the business or activity
competes with the Company's business. The organization of the Company shall
be without prejudice to their respective rights (or the rights of their
respective Affiliates) to maintain, expand, or diversify such other
interests and activities and to receive and enjoy profits or compensation
therefrom. Each Member waives any rights the Members might otherwise have
to share or participate in such other interests or activities of the
Managers or any other Member or any Manager's or Member's Affiliates.
5.3.4 Each Member understands and acknowledges that the conduct of the
Company's business may involve business dealings and undertakings with a
Member and its Affiliates. In any of those cases, those dealings and
undertakings shall be at arm's length and on commercially reasonable terms
as determined by the Managers.
5.4 Liability and Indemnification
5.4.1 The Managers shall not be liable, responsible, or accountable, in
damages or otherwise, to any Member or to the Company for any act performed
by the Managers within the scope of the authority conferred on the Managers
by this Agreement, except for fraud, gross negligence, wilful misconduct,
or an intentional breach of this Agreement.
5.4.2 The Company shall indemnify the Managers for any act performed by the
Managers within the scope of the authority conferred on the Managers by
this Agreement, unless such act is a breach of this Agreement, or
constitutes gross negligence, wilful or intentional misconduct, or a
knowing violation of law.
5.5 Power of Attorney
5.5.1 Grant of Power
The Members constitute and appoint the Managers as the Members' true and
lawful attorney-in-fact ("Attorney-in-Fact"), and in the Members' name,
place and stead, to make, execute, sign, acknowledge, and file:
(a) all documents (including amendments to the Certificate of Formation)
which the Attorney-in-Fact deems appropriate to reflect any amendment,
change, or modification of this Agreement;
(b) any and all other certificates or other instruments required to be
filed by the Company under the laws of the State of Delaware or of any
other state or jurisdiction, including, without limitation, any
certificate or other instruments necessary in order for the Company to
continue to qualify as a limited liability company under the laws of
the State of Delaware;
(c) one or more fictitious or trade name certificates; and
(d) all documents which may be required to dissolve and terminate the
Company and to cancel its Certificate of Formation.
5.5.2 Irrevocability
The foregoing power of attorney is irrevocable and is coupled with an
interest, and, to the extent permitted by applicable law, shall survive the
death or disability of a Member. It also shall survive the Transfer of an
Interest, except that if the transferee is approved for admission as a
Member, this power of attorney shall survive the delivery of the assignment
for the sole purpose of enabling the Attorney-in-Fact to execute,
acknowledge and file any documents needed to effectuate the substitution.
Each Member shall be bound by any representations made by the
Attorney-in-Fact acting in good faith pursuant to this power of attorney,
and each Member hereby waives any and all defenses which may be available
to contest, negate or disaffirm the action of the Attorney-in-Fact taken in
good faith under this power of attorney.
6. Transfer of Interests and Withdrawals of Members
6.1 Transfers
6.1.1 The Members and Interest Holders shall not trade or deal in any
Membership Interest and Interest on any securities exchange or securities
market.
6.1.2 No Person may Transfer all or any portion of or any interest or
rights in the Membership Interest or Interest unless the following
conditions "Conditions of Transfer") are satisfied:
(a) The Transfer will not require registration of Interests or Membership
Interests under any federal or state securities laws;
(b) The transferee delivers to the Company a written instrument agreeing
to be bound by the terms of this Agreement.
(c) The Transfer will not result in the termination of the Company
pursuant to Code Section 708;
(d) The Transfer will not result in the Company being subject to the
Investment Company Act of 1940, as amended;
(e) The transferor or the transferee delivers the following information to
the Company: (i) the transferee's taxpayer identification number and
(ii) the transferee's initial tax basis in the Transferred Interest;
and
(f) The Transfer will not result in the Company being taxed as a
corporation for purposes of federal or state income tax purposes.
6.1.3 If the Conditions of Transfer are satisfied, then a Member or
Interest Holder may Transfer all or any portion of that Person's Interest.
The Transfer of an Interest pursuant to this Section 6.1 shall not result,
however, in the Transfer of any of the transferor's other Membership
Interest, if any, and the transferee of the Interest shall have no right
to: (i) become a Member without the consent of the Members required by this
Agreement; or (ii) exercise any Membership Interest other than those
specifically pertaining to the ownership of an Interest.
6.1.4 The Members hereby acknowledge the reasonableness of the prohibition
contained in this Section 6.1 in view of the structure and purposes of the
Company. The Transfer of any Membership Rights or Interests in violation of
the prohibition contained in this Section 6.1 shall be deemed invalid, null
and void, and of no force or effect except any Transfer mandated by
operation of law that cannot be waived or varied by private agreement and
then only to the extent necessary to give effect to such Transfer by
operation of law. Any Person to whom a Membership Interest or Interest is
attempted to be transferred in violation of this Section shall not be
entitled to vote on matters coming before the Members, participate in the
management of the Company, act as an agent of the Company or have any other
rights in or with respect to the Membership Interest.
6.1.5 Right of First Offer
(a) If an Interest Holder (a "Transferor") desires to Transfer all or any
portion of, or any interest or rights in, the Transferor's Interest
(the "Transferor Interest"), the Transferor shall notify the Company
of that desire (the "Transfer Notice"). The Transfer Notice shall
describe the Transferor Interest. Each Member shall have the option
(the "Purchase Option") to purchase all of the Transferor Interest for
a price (the "Purchase Price") equal to the amount the Transferor
would receive if the Company were liquidated and an amount equal to
the Appraised Value (as determined pursuant to Section 6.4) were
available for distribution to the Members pursuant to Section 4.4.
(b) The Purchase Option shall be and remain irrevocable for a period (the
"Transfer Period") ending at 11:59 P.M. local time at the Company's
principal office on the thirtieth (30th) day following the Transfer
Notice is given to the Company.
(c) At any time during the Transfer Period, each Member may elect to
exercise the Purchase Option by giving written notice of its election
to the Transferor. The Transferor shall not be deemed a Member for the
purpose of voting on whether the Company shall elect to exercise the
Purchase Option.
(d) If any Member elects to exercise the Purchase Option, the Member's
notice of its election shall fix a closing date (the "Transfer Closing
Date") for the purchase, which shall not be earlier than five (5) days
after the date of the notice of election or more than thirty (30) days
after the expiration of the Transfer Period.
(e) If a Member elects to exercise the Purchase Option, the Purchase Price
shall be paid in cash on the Transfer Closing Date.
(f) If all Members fail to exercise the Purchase Option, the Transferor
shall be permitted to offer and sell for a period of ninety (90) days
(the "Free Transfer Period") after the expiration of the Transfer
Period at a price not less than the Purchase Price. If the Transferor
does not Transfer the Transferor Interest within the Free Transfer
Period, the Transferor's right to Transfer the Transferor Interest
pursuant to this Section shall cease and terminate.
(g) Any Transfer of the Transferor Interest made after the last day of the
Free Transfer Period or without strict compliance with the terms,
provisions and conditions of this Section and other terms, provisions,
and conditions of this Agreement, shall be null, void, and of no force
or effect.
6.2 Voluntary Withdrawal Prohibited
No Members shall have the right or power to effect a voluntary withdrawal
from the Company. Any Member who effectuates a voluntary withdrawal is in
violation of this Agreement and shall not be entitled to receive the fair
value of the Member's Interest as of the date of the voluntary withdrawal
as otherwise provided by Section 18-604 of the Act.
6.3 Involuntary Withdrawal
Immediately upon the occurrence of an Involuntary Withdrawal, the affected
Member shall cease to have a Membership Interest and the Member's
Membership Interest shall be automatically converted into just an Interest,
except that any successor-in-interest to the Interest of a Member who has
Involuntarily Withdrawn shall be entitled to exercise such of the Member's
rights as a Member as is required by the operation of law that cannot be
waived or varied by private agreement.
6.4 Appraised Value
6.4.1 The term "Appraised Value" means the appraised value of the equity of
the Company's Assets as hereinafter provided. Within fifteen (15) days
after demand by either one or the other, the Company and any Withdrawing
Member, if applicable, shall each appoint an appraiser to determine the
value of the equity of the Company's Assets. If the two appraisers agree
upon the equity value of the Company's Assets, they shall jointly render a
single written report stating that value. If the two appraisers cannot
agree upon the equity value of the Company's Assets, they shall each render
a separate written report and shall appoint a third appraiser, who shall
appraise the Company's Assets and determine the value of the equity
therein, and shall render a written report of his opinion thereon. Each
party shall pay the fees and costs of the appraiser appointed by that
party, and the fees and other costs of the third appraiser shall be shared
equally by both parties.
6.4.2 The equity value contained in the aforesaid joint written report or
written report of the third appraiser, as the case may be, shall be the
Appraised Value; provided, however, that it the value of the equity
contained in the appraisal report of the third appraiser is more than the
higher of the first two appraisals, the higher of the first two appraisals
shall govern; and provided, further, that if the value of the equity
contained in the appraisal report of the third appraiser is less than the
lower of the first two appraisals, the lower of the first two appraisals
shall govern.
7. Dissolution, Liquidation, and Termination of the Company
7.1 Events of Dissolution
The Company shall be dissolved upon the happening of any of the following
events:
7.1.1 on the date fixed for its termination in Section 2.4;
7.1.2 upon the decision by the Company to dissolve, as approved by the
unanimous agreement of every Member without the consent of the Managers;
7.1.3 upon the occurrence of an Involuntary Withdrawal of a Member, unless
the remaining Members, within ninety (90) days after the occurrence of the
Involuntary Withdrawal, unanimously elect to continue the business of the
Company pursuant to the terms of this Agreement; or
7.1.4 by operation of law that cannot be waived or varied by private
agreement.
7.2 Procedure for Winding Up and Dissolution
If the Company is dissolved, the Managers shall wind up its affairs. If
there shall be no Manager or the Managers are unable or unavailable to
perform these duties, then the Members shall elect a Person to wind up the
affairs of the Company. On winding up of the Company, the assets of the
Company shall be distributed, first, to creditors of the Company including
Interest Holders who are creditors, in satisfaction of the liabilities of
the Company, and then to the Interest Holders in accordance with this
Agreement.
7.3 Filing of Certificate of Cancellation
Upon completion of the winding up of the affairs of the Company, the
Managers shall promptly file a Certificate of Cancellation with the
Secretary of State. If there is no Manager, then the Certificate of
Cancellation shall be filed by the Members or by the last Person to be a
Member or by the legal or personal representatives of the Person who last
was a Member.
8. Books, Records, Accounting, and Tax Elections
8.1 Bank Accounts
All funds of the Company shall be deposited in a bank account or accounts
opened and maintained in the Company's name. The Managers shall determine
the institution or institutions at which the accounts will be opened and
maintained, the types of accounts, and the Persons who will have authority
with respect to the accounts and the funds therein.
8.2 Books and Records
8.2.1 The Managers shall keep or cause to be kept complete and accurate
books and records of the Company and supporting documentation of the
transactions with respect to the conduct of the Company's business at the
Company's principal executive office. The records shall include, but not be
limited to, complete and accurate information regarding the state of the
business and financial condition of the Company, a copy of the Certificate
of Formation and Limited Liability Company Agreement and all amendments to
the Certificate of Formation and the Limited Liability Company Agreement; a
current list of the names and last known business, residence, or mailing
addresses of each Member; and the Company's federal, state, or local tax
returns and reports, if any, for the six(6) most recent taxable years;
internal books and records for the current and three(3) most recent years;
a true copy of relevant records indicating the amount, cost, and value of
all property which the Company owns, claims, possesses, or controls.
8.2.2 The books and records shall be maintained on the accrual method of
accounting in accordance with the requirements of the Code and Regulation
Section 1.704-1(b) and shall be available at the Company's principal office
for examination by any Member or the Member's duly authorized
representative at any and all reasonable times during normal business hours
for any purpose reasonably related to such Member's interest as a Member of
the Company.
8.3 A Member has the right upon reasonable request, and for purposes reasonably
related to the interest of the Member in the Company, to do the following:
8.3.1 to inspect and copy during normal business hours any of the records
required to be maintained by the Company under this Agreement; and
8.3.2 to obtain from the Company promptly after becoming available, a copy
of the Company's federal, state and local income tax or information returns
for each year.
8.3.3 The Managers shall promptly furnish to the requesting Member (i) a
copy of any amendment to the Certificate of Formation or this Agreement
pursuant to a power of attorney from the Members provided in Section 5.5.1,
and (ii) a copy of this Agreement, at the expense of the Company, upon the
reasonable request of the Member for a purpose reasonably related to the
interest of the Member in the Company.
8.3.4 Unless otherwise provided in this Agreement, a Member shall reimburse
the Company for all costs and expenses incurred by the Company in
connection with the Member's inspection and copying of the Company's books
and records.
8.4 Annual Accounting Period
The annual accounting period of the Company shall be its taxable year. The
Company's taxable year shall begin on January 1st and end on December 31st.
8.5 Tax Matters Partner
Cinergy Global Xxxxx Creek IV, Inc., a Delaware corporation, shall be the
Company's tax matters partner ("Tax Matters Partner") under Code Section
6231. The Tax Matters Partner shall have all powers and responsibilities
provided in Code Section 6221, et seq. The Tax Matters Partner shall keep
every Member informed of all notices from government taxing authorities
that may come to the attention of the Tax Matters Partner. The Company
shall pay and be responsible for all reasonable third-party costs and
expenses incurred by the Tax Matters Partner in performing those duties. A
Member shall be responsible for any costs incurred by the Member with
respect to any tax audit or tax-related administrative or judicial
proceeding against any Member, even though it relates to the Company. The
Tax Matters Partner may not compromise any dispute with the Internal
Revenue Service without the approval of the Member.
8.6 Tax Elections
The Tax Matters Partner shall have the authority to make all Company
elections permitted under the Code, including, without limitation,
elections of methods of depreciation and elections under Code Section 754.
The decision to make or not make an election shall be at the Tax Matters
Partner's sole and absolute discretion, subject to the Tax Matters
Partner's obligations to act in the best interest of the Company and its
Members.
8.7 Title to Company Assets
All real and personal property acquired by the Company shall be acquired
and held by the Company in its name.
9. General Provisions
9.1 Assurances
The Members shall execute all such certificates and other documents and
shall do all such filing, recording, publishing, and other acts as the
Managers deem appropriate to comply with the requirements of law for the
formation and operation of the Company and to comply with any laws, rules
and regulations relating to the acquisition, operation or holding of the
property of the Company.
9.2 Notifications
Any notice, demand, consent, election, offer, approval, request, or other
communication (collectively a "notice") required or permitted under this
Agreement must be in writing and either delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested.
Any notice to be given hereunder by the Company shall be given by the
Managers. A notice must be addressed to an Interest Holder at the Interest
Holder's last known address on the records of the Company. All notices to
the Company must be addressed to the Company's principal office with a copy
to Cinergy Global Power Services Limited, at Cinergy House, Xxxx Xxxx Park,
Warwick Road, Stratford-upon-Avon, Xxxxxxxxxxxx, Xxxxxx Xxxxxxx, XX00 0XX,
Tel: 00 0000 000 000, Fax: 00 0000 000 000.
A notice delivered personally will be deemed given only when acknowledged
in writing by the person to whom it is delivered. A notice that is sent by
mail will be deemed given three (3) business days after it is mailed. Any
party may designate, by notice to all of the others, substitute addresses
or addressees for notices; and, thereafter, notices are to be directed to
those substitute addresses or addressees.
9.3 Complete Agreement
This Agreement constitutes the complete and exclusive statement of the
agreement by the Member(s). It supersedes all prior written and oral
statements, including any prior representation, statement, condition, or
warranty. Except as expressly provided otherwise herein, this Agreement may
not be amended without the written consent of all of the Member(s).
9.4 Governing Law and Jurisdiction
All questions concerning the construction, validity and interpretation of
this Agreement and the performance of the obligations imposed by this
Agreement shall be governed by the internal law, not the law of conflicts,
of the State of Delaware.
9.5 Section Titles
The headings herein are inserted as a matter of convenience only, and do
not define, limit, or describe the scope of this Agreement or the intent of
the provisions hereof.
9.6 Binding Provisions
This Agreement is binding upon, and inures to the benefit of, the parties
hereto and their respective heirs, executors, administrators, personal and
legal representatives, successors, and permitted assigns.
9.7 Terms
Common nouns and pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular, and plural, as the identity of the Person may
in the context require.
9.8 Severability of Provisions
If for any reason, any provision or provisions herein are determined to be
invalid and contrary to any existing or future law, such invalidity shall
not impair the operation of or affect those portions of this Agreement
which are valid.
IN WITNESS WHEREOF, the Member has executed, or caused this Agreement to be
executed as of the date set forth hereinabove with the intent that it be
effective on such date.
MEMBER:
Cinergy Global Xxxxx Creek IV, Inc.
a Delaware corporation
By __________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
Exhibit A
to
Amended and Restated Operating Agreement
Of
Xxxxx Creek IV, LLC
Name, Address and Taxpayer I.D. Number Capital Contribution Percentages
Cinergy Global Xxxxx Creek IV, Inc. $ 0 100 %
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Tax I.D.: 00-0000000
Total Capital Contribution $ 0 100%
Effective as of October 31, 2001:
Approved by Manager:__________________________________
