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EXHIBIT 3.2
AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT OF CEDAR BRAKES I, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
PREAMBLE
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") is made and entered into as of September 11, 2000 by Mesquite
Investors, L.L.C., a Delaware limited liability company (the "Member") pursuant
to and in accordance with the Delaware Limited Liability Company Act of 1992 and
any successor statute (the "Act").
WHEREAS, Cedar Brakes I, L.L.C. (the "Company") was formed by the
Member as its sole member by the filing of a Certificate of Formation and the
execution of the Cedar Brakes I, L.L.C. Limited Liability Company Agreement on
March 6, 2000 (the "Original Agreement"); and
WHEREAS, the Member desires to amend the Original Agreement;
NOW, THEREFORE, the Member agrees as follows:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. Definitions. Unless the context otherwise requires, the
following terms shall have the following meanings for the purposes of this
Agreement:
"ACT" has the meaning specified in the Preamble.
"AFFILIATE" with respect to any particular Person, means any
Person directly or indirectly controlling, controlled by or under common control
with such particular Person, including without limitation (i) a subsidiary of
such particular Person or (ii) any Person who is a spouse, parent, sibling or
child of such particular Person. For purposes of this definition, "control,"
when used with respect to any particular Person, means the power to direct the
actions and policies of such Person, directly or indirectly, whether by contract
or otherwise.
"AGREEMENT" means this Amended and Restated Limited Liability
Company Agreement, as the same may be amended from time to time.
"AMENDED AND RESTATED PPA" means the Amended and Restated
Power Purchase Agreement made and entered into on March 21, 2000 by and between
Public Service Electric and Gas Company and the Company, as the same may be
amended from time to time.
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"ASSETS" means, at any time, any real property and other
assets owned or leased by the Company from time to time.
"CAPITAL CONTRIBUTION" means a capital contribution made by
the Member pursuant to Section 3.01 or 3.02.
"CLASS A MANAGER" means a Class A Manager of the Management
Committee elected as provided in 6.01(b)(i).
"CLASS B MANAGER" means a Class B Manager of the Management
Committee elected as provided in 6.01(b)(i).
"CLOSING DATE" means the date on which the bonds are
originally issued under the Indenture.
"COMPANY" means the limited liability company formed pursuant
to this Agreement and the Certificate of Formation described in Section 2.02.
"DISTRIBUTABLE CASH" means cash (in U.S. dollars) of the
Company that the Management Committee determines is available for distribution.
"EFFECTIVE DATE" shall have the meaning set forth in Section
2.02 of this Agreement.
"INDEBTEDNESS" means with respect to any Person, (a) any
liability of such Person (1) for borrowed money, or under any reimbursement
obligation relating to a letter of credit, or (2) evidenced by a bond, not
debenture or similar instrument (including a purchase money obligation) given in
connection with the acquisition of any businesses, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business), or (3) for the payment of money relating to any obligations
under any capital lease of real or personal property which has been recorded as
a capitalized lease obligation; (b) all redeemable stock issued by such Person
(the amount of Indebtedness represented by any involuntary liquidation
preference plus accrued and unpaid dividends); (c ) any liability of others
described in the preceding clause (a) that the person has guaranteed or that is
otherwise its legal liability; and (d) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a), (b) and (c ) above. For
purposes of determining any particular amount of Indebtedness under this
definition, guarantees of (or obligation with respect to letters of credit
supporting) Indebtedness otherwise included in the determination of such amount
shall not also be included.
"INDENTURE" means the instrument as originally executed
between the Company and Bankers Trust Company as indenture trustee and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto pursuant to which the Company issues bonds secured by the
Company's right, title and interest to the Amended and Restated PPA and the
accounts receivable therefrom.
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"INTEREST" means the ownership interest of the Member in the
Company at any time, including the right of the Member to any and all benefits
to which the Member may be entitled as provided in this Agreement, together with
the obligations of the Member to comply with all the terms and provisions of
this Agreement.
"MANAGEMENT COMMITTEE" has the meaning set forth in 6.01(a).
"MEMBER" means Mesquite Investors, L.L.C., a Delaware limited
liability company and any other member or members at such time.
"PERSON" means any natural person, partnership, corporation,
trust, estate, association, custodian, nominee, limited liability company or any
other individual or entity in its own or any representative capacity.
"PERSONAL REPRESENTATIVE" means, as to a natural person, the
executor, administrator, guardian, conservator or other legal representative
thereof and, as to a person other than a natural person, the legal
representative or successor thereof.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All references herein to Articles,
Sections and Exhibits shall be deemed to be references to Articles and Sections
of, and Exhibits to, this Agreement unless the context shall otherwise require.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation."
ARTICLE II
FORMATION
SECTION 2.01. Formation. The Company was formed as a limited liability
company under the Act pursuant to the filing of the Certificate and the
execution of the Original Agreement. Mesquite Investors, L.L.C., as the sole
holder of the entire interest in the Company, hereby agrees to amend and restate
the Original Agreement in its entirety upon the terms and conditions hereinafter
set forth.
SECTION 2.02. Continuation. The Member hereby agrees to continue the
Company as a limited liability company under and pursuant to the provisions of
the Act and upon the terms and conditions set forth in this Agreement. The fact
that the Certificate is on file in the Office of the Secretary of State of the
State of Delaware, shall constitute notice that the Company is a limited
liability company.
SECTION 2.03. Name. The name of the Company shall continue to be Cedar
Brakes I, L.L.C. All business of the Company shall continue to be conducted
under such name, and title to all property, real, personal, or mixed, owned by
or leased to the Company shall continue to be held in such name. Notwithstanding
the preceding sentence, the Member may change the name of the Company or adopt
such trade or fictitious names as it may determine; provided, however,
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that the Member may not change the name of the Company or adopt any trade or
fictitious name that is similar to the name, trade or fictitious name of any
Member or any Affiliate of the Company or any Member.
SECTION 2.04. Term. The term of the Company commenced on the date of
filing of the Certificate of Formation of the Company in the Office of the
Secretary of State of the State of Delaware (the "Effective Date") and, pursuant
to Section 18-201(d) of the Act, this Agreement shall be effective as of the
Effective Date. The term of the Company shall continue until terminated as
provided in Article VIII.
SECTION 2.05. Principal Place of Business. The principal place of
business of the Company shall continue to be at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇. The Management Committee may establish other offices at other locations.
SECTION 2.06. Agent for Service of Process. The Corporation Trust
Company shall continue to be the agent of the Company upon whom process against
it may be served. The address of such agent within the State of Delaware is:
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.07. Purposes of the Company. The nature of the business of
the Company and its sole purposes shall be (a) to perform its obligations and
exercise its rights under the Amended and Restated PPA and any agreement,
document or instrument related to or incidental to the performance of its
obligations and the exercise of its rights under the Amended and Restated PPA;
(b) to declare and pay dividends in cash, out of funds legally available
therefor, to Members of the Company and (c) to engage in any other activities
related or incidental to any of the foregoing, including without limitation any
activities contemplated by the Amended and Restated PPA and any other related
transaction. Except as stated above, the Company shall not engage in any
business or activity whatsoever.
ARTICLE III
CAPITAL CONTRIBUTIONS
SECTION 3.01. Capital Contribution. The Member may contribute cash or
other property to the Company as it shall decide, from time to time.
SECTION 3.02. Additional Capital Contributions. If at any time the
Member shall determine that additional funds or property are necessary or
desirable to meet the obligations or needs of the Company, the Member may make
additional Capital Contributions.
SECTION 3.03. Limitation on Liability. The liability of the Member
shall be limited to its Interest in the Company, and the Member shall not have
any personal liability to contribute money to, or in respect of, the liabilities
or the obligations of the Company, except as set forth in the Act.
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SECTION 3.04. Withdrawal of Capital; Interest. The Member may not
withdraw capital or receive any distributions, except as specifically provided
herein. No interest shall be paid by the Company on any Capital Contributions.
ARTICLE IV
DISTRIBUTIONS
SECTION 4.01. Distributions. Except as otherwise provided in the Act,
all Distributable Cash of the Company or distributions in kind may be
distributed to the Member in amounts and at times determined by the Management
Committee.
ARTICLE V
BOOKS AND RECORDS
SECTION 5.01. COMPANY PROCEDURES AND RECORDS.
(a) The Company shall conduct its business in accordance with
all requisite limited liability company procedures and formalities, including
without limitation, maintaining proper limited liability company records and
books of account.
(b) Notwithstanding any provision hereof, the following shall
govern in order to preserve and ensure the Company's separate and distinct
identity, and the Company shall conduct its affairs in accordance with the
following provisions:
(i) The Company shall hold itself out to the public as a
legal entity separate and distinct from any other Person, including any Member
or any Affiliate of the Company or any Member, and shall conduct Company
business solely in its own name in order not (A) to mislead others as to the
identity with which such other party is transacting business, or (B) to suggest
that the Company is responsible for the debts of any third party (including any
Member or any Affiliate of the Company or any Member);
(ii) The Company shall maintain records, books of
account and bank accounts separate from those of any Member, any Affiliate of
the Company or any Member, or any other Person;
(iii) The Company shall allocate fairly and reasonably
any overhead expenses that are shared with any Affiliate of the Company;
(iv) The Company shall not commingle assets with those
of any Member, any Affiliate of the Company or any Member, or any other Person,
and shall hold its assets in its own name;
(v) The Company shall conduct its own business in its
own name;
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(vi) The Company shall maintain financial statements
showing its own assets as being separate from those of any Member, any Affiliate
of the Company or any Member, or any other Person;
(vii) The Company shall pay its liabilities out of its
own funds, including salaries of any employees of the Company (including,
without limitation, holding obligations or securities of such entities, unless
permitted by the terms of the Indenture), and not out of the funds of any
Member, or any Affiliate of the Company or any Member, or any other Person;
(viii) The Company shall not enter into any transaction
with any Member or any Affiliate of the Company or any Member, except upon terms
and conditions that are intrinsically fair and substantially similar to those
that would be available on an arm's-length basis with third parties other than
any Member or Affiliate of the Company or any Member;
(ix) The Company shall hold regular Management Committee
and Member meetings, as appropriate;
(x) The Company shall preserve its existence as an
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization or formation, and qualification to do
business in the states where its business is conducted;
(xi) The Company shall use separate stationery, invoices
and checks bearing its own name;
(xii) The Company shall take commercially reasonable
steps to correct any known misunderstandings regarding the separate identity of
the Company;
(xiii) The Company shall maintain adequate capital for
the normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
(xiv) The Company shall not share any common logo with
or identify itself as a department or division of any Member, or Affiliate of
the Company or any Member, or any other Person; and
(xv) The Company shall not guarantee or become obligated
for the debts of any other person or hold out its credit as being available to
satisfy the obligations of others, except, in each case, as may be permitted by
the terms of the Indenture.
ARTICLE VI
MANAGEMENT OF THE COMPANY
SECTION 6.01. Management.
(a) MANAGEMENT OF THE COMPANY. As provided in this Agreement,
all management powers over the business and affairs of the Company shall be
vested in a
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Management Committee (the "Management Committee"), who shall collectively
constitute "managers" of the Company within the meaning of the Act. No Member,
by virtue of having the status of a Member, shall have any management power over
the business and affairs of the Company or actual or apparent authority to enter
into contracts on behalf of, or to otherwise bind, the Company. Except as
specifically provided in this Agreement, the authority and functions of the
Management Committee shall be identical to the authority and functions of the
board of directors of a corporation organized under the Delaware General
Corporation Law. Except as otherwise specifically provided in this Agreement,
the business and affairs of the Company shall be managed and controlled by the
Management Committee. In addition to the powers that now or hereafter can be
granted to managers under the Act and to all other powers granted under any
other provision of this Agreement, the Management Committee (subject to Section
6.01(c)) shall have full power and authority to do all legal things on such
terms as they, in their sole discretion, may deem necessary or appropriate to
conduct, or cause to be conducted, the business and affairs of the Company,
including, without limitation:
(i) the making of any expenditures, the lending or
borrowing of money, the assumption or guarantee of, or other contracting for,
indebtedness and other liabilities, the issuance of evidences of indebtedness
and the incurring of any other obligations;
(ii) the making of tax, regulatory or other filings, and
the rendering of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the Company;
(iii) the use of the assets of the Company (including
cash on hand) for any purpose consistent with the terms of this Agreement and
the payment of obligations by the Company;
(iv) the negotiation, execution and performance of any
contracts, conveyances or other instruments;
(v) the distribution of cash by the Company;
(vi) the selection and engagement of officers,
employees, agents and contractors to act on behalf of the Company, with such
titles as the Management Committee may designate and with such power and
authority as the Management Committee may delegate from time to time to such
Persons;
(vii) the appointment of one or more Persons with the
power and authority to care for the funds and securities of the Company,
designate a bank or banks as depositories for the funds of the Company and to
designate signatories for the Company's bank accounts;
(viii) the formation of, contribution of property to, or
acquisition of an interest in, any entity;
(ix) the control of any matters affecting the rights and
obligations of the Company, including the commencement, prosecution and defense
of actions at law or in equity
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and otherwise engaging in the conduct of litigation and the incurring of legal
expense and the settlement of claims and litigation; and
(x) the appointment of the Company's independent
auditors.
(b) THE MANAGEMENT COMMITTEE.
(i) CLASSES; NUMBER; TERM OF OFFICE; QUALIFICATIONS;
VACANCIES. There shall be two classes of Managers: Class A (the "Class A
Managers") and Class B (the "Class B Managers" and together with the Class A
Managers, the "Managers"). The Management Committee shall consist of five (5)
Managers. There shall be three (3) Class A Managers and two (2) Class B
Managers. Class A Managers shall be elected at the annual meeting of Members to
hold office, subject to Section 6.01(b)(ii), until the next annual meeting of
Members and until their respective successors are elected and qualified.
Vacancies and newly created Class A Manager positions resulting from any
increase in the authorized number of Class A Managers may be filled by a
majority of the Class A Managers then in office, although less than a quorum, or
by the sole remaining Class A Manager, and the Class A Managers so chosen shall
hold office, subject to Section 6.01(b)(ii), until the next annual meeting of
Members and until their respective successors are elected and qualified. Each
Class B Manager shall be elected by the Members to hold office, subject to
Section 6.01(b)(ii), until his or her successor is elected and qualified. There
shall be acting Class B Managers at all times and upon the resignation,
termination, incapacity or death of a Class B Manager, the Members shall
promptly hold a special meeting to elect a successor. No Class B Manager (A)
shall be an Affiliate of the Company or any of the Company's Affiliates; (B)
shall be an Affiliate, employee, agent, director, partner, member or officer of
any Member; (C) shall be and shall have been within the five years immediately
prior to such Person's appointment as a Class B Manager either (1) a partner or
member of or employed as a manager (other than a Class B Manager), officer or
employee by the Company or any of its Affiliates; (2) a significant advisor or
consultant to the Company or any of its Affiliates; (3) affiliated with a
significant customer, supplier or other Person who derives more than 10% of its
purchases or revenues from its activities with the Company or any of its
Affiliates; (4) engaged under significant personal service contract(s) with the
Company or any of its Affiliates; (5) affiliated with a tax-exempt entity that
receives significant contributions from the Company or any of its Affiliates;
(D) at the time of such individual's appointment as Class B Manager or at any
time thereafter while serving as Class B Manager, shall be a legal or beneficial
owner of any direct or indirect equity interest in the Company, any Member or
any Affiliates of the Company; and (7) shall be a spouse, parent, sibling or
child of any individual described by clauses (A) through (D) above. The Class B
Manager shall have reasonable knowledge and experience in any of the following
areas: power plant facility operations, investment banking, law or accounting.
(ii) RESIGNATION. Any Manager may resign at any time by
giving written notice of such resignation to the Management Committee or the
President or the Secretary of the Company. Any such resignation shall take
effect at the time specified therein or, if no time is specified, upon receipt
thereof by the Management Committee; and, unless specified therein, the
acceptance of such resignation shall not be necessary to make it effective. When
one or more Class A Managers shall resign from the Management Committee,
effective at a future date, a
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majority of the Class A Managers then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereof
to take effect when such resignation or resignations shall become effective and
each Class A Manager so chosen shall hold office as provided in this Agreement
in the filling of other vacancies. If any Class B Manager resigns from the
Management Committee, the Members shall promptly hold a special meeting to elect
a successor.
(iii) QUORUM. A majority of the whole Management
Committee shall constitute a quorum for the transaction of business other than
with respect to the matters set forth in Section 6.01(c)(ii). The Class B
Managers and two or more of the Class A Managers shall constitute a quorum for
the transaction of business with respect to the matters set forth in Section
6.01(c)(ii). In the absence of a quorum, a majority of those present (or if only
one be present, then that one) may adjourn the meeting, without notice other
than announcement at the meeting, until such time as a quorum is present. Except
as otherwise required by this Agreement (including, without limitation,
6.01(c)(ii)), the vote of the majority of the Class A Managers present at a
meeting at which a quorum is present shall be the act of the Management
Committee.
(c) AUTHORITY OF CLASS B MANAGERS.
Except as provided in Section 6.01(c)(ii), the Class B Managers, in his or her
capacity as Class B Managers, shall not exercise any power over and shall not be
responsible for the following: (A) the management, conduct or control of the
business, operations or affairs of the Company; (B) the management or operation
of any Company property; or (C) any actions for or on behalf of the Company that
would bind the Company or incur any expenditures on behalf of or with respect to
the Company. When voting on those matters set forth in Section 6.01(c)(ii)
hereof, the Class B Managers shall take into account the interests of the
holders of the Indebtedness issued pursuant to the Indenture, as well as those
of any Member.
(i) The Company shall not, without the unanimous vote of
the Class A Managers present and the Class B Manager:
(A) institute or cause to be instituted any
proceeding seeking to adjudicate the Company bankrupt or insolvent, or seek a
liquidation, winding up, reorganization, dissolution, arrangement, adjustment,
protection, relief or composition of the Company or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seek or consent to the entry of an order for relief or the appointment of a
receiver, trustee, liquidator, assignee, sequestrator, custodian or other
similar official for it or for any substantial part of its property, consent to
the filing of any bankruptcy or other similar proceeding or admit in writing the
Company's inability to pay its debts generally as they become due, or seek an
assignment of property for the benefit of creditors, or take any action that
might reasonably cause the Company to become insolvent, or take any action in
furtherance of any of the foregoing;
(B) dissolve, liquidate, consolidate or merge the
Company into any other corporation, business trust or association, real estate
investment trust, limited liability company, partnership, common law trust,
unincorporated business or entity;
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(C) amend, or consent to the waiver of compliance by
the Company with, Sections 2.01, 2.02, 2.05, 5.01, 6.01(b), 6.01(c), and 8.01 of
this Agreement; or
(D) engage in any business or activity other than as
set forth in Section 2.07.
(d) SPECIAL MEETINGS. A special meeting of Members may be
called by the Management Committee or the President or holders of not less than
one-tenth (1/10) of the Membership Interests entitled to vote at the meeting. If
any Class B Manager resigns from the Management Committee, the Members shall
promptly hold a special meeting to elect a successor. Any such meeting shall be
held on such date and at such time and place as shall be determined by the body
or individual calling such meeting and as shall be stated in the notice of such
meeting.
SECTION 6.02. Officers. Such of the following officers shall be elected
as the Member deems necessary or appropriate: a President, one or more Executive
Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents, a Secretary, a Treasurer and a Controller, one or more Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant
Controllers, and such other officers with such titles and powers and/or duties
as the Member shall from time to time determine. Officers may be designated for
particular areas of responsibility and simultaneously serve as officers of
subsidiaries or divisions. Any officer so elected may resign at any time upon
written notice to the Member. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein, no acceptance of such
resignation shall be necessary to make it effective. Any officer may be removed,
with or without cause, by the Member. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the Company,
but the election or appointment of any officer shall not of itself create
contractual rights. Any number of offices may be held by the same person. Any
vacancy occurring in any office by death, resignation, removal or otherwise may
be filled for the unexpired portion of the term by the Member.
(a) President. The President shall have general control of the
business, affairs, operations and property of the Company, subject to the
Member. He may sign or execute, in the name of the Company, all deeds,
mortgages, bonds, contracts or other undertakings or instruments, except in
cases where the signing or execution thereof shall have been expressly delegated
by the Member to some other officer or agent of the Company. He shall have and
may exercise such powers and perform such duties as may be provided by law or as
are incident to the office of President of a company and such other duties as
are assigned by from time to time by the Member.
(b) Vice Presidents. Each Executive Vice President, Senior
Vice President, Vice President and Assistant Vice President shall have such
powers and perform such duties as may be provided by law or as may from time to
time be assigned to him, either generally or in specific instances, by the
Member or the President. Any Executive Vice President or Senior Vice President
may perform any of the duties or exercise any of the powers of the President at
the request of, or in the absence or disability of, the President or otherwise
as occasion may require in the administration of the business and affairs of the
Company.
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Each Executive Vice President, Senior Vice President, Vice President
and Assistant Vice President shall have authority to sign or execute all deeds,
mortgages, bonds, contracts or other instruments on behalf of the Company,
except in cases where the signing or execution thereof shall have been expressly
delegated by the Member to some other officer or agent of the Company.
(c) Secretary. The Secretary shall keep the records of the
Company, in books provided for the purpose; he shall be custodian of the
corporate seal or seals of the Company; he shall see that the corporate seal is
affixed to all documents requiring same, the execution of which, on behalf of
the Company, under its seal, is duly authorized, and when said seal is so
affixed he may attest same; and, in general, he shall perform all duties
incident to the office of the secretary of a company, and such other duties as
from time to time may be assigned to him by the Member or the President or as
may be provided by law. Any Assistant Secretary may perform any of the duties or
exercise any of the powers of the Secretary at the request of, or in the absence
or disability of, the Secretary or otherwise as occasion may require in the
administration of the business and affairs of the Company.
(d) Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Company, and shall deposit, or cause to be deposited, in the name of the
Company, all moneys or other valuable effects in such banks, trust companies or
other depositories as shall, from time to time, be selected by or under
authority of the Member; if required, he shall give a bond for the faithful
discharge of his duties, with such surety or sureties as the Member may
determine; he shall keep or cause to be kept full and accurate records of all
receipts and disbursements in books of the Company and shall render to the
Member or the President, whenever requested, an account of the financial
condition of the Company; and, in general, he shall perform all the duties
incident to the office of treasurer of a company, and such other duties as may
be assigned to him by the Member or the President or as may be provided by law.
(e) Controller. The Controller shall be the chief accounting
officer of the Company. He shall keep full and accurate accounts of the assets,
liabilities, commitments, receipts, disbursements and other financial
transactions of the Company; shall cause regular audits of the books and records
of account of the Company and supervise the preparation of the Company's
financial statements; and, in general, he shall perform the duties incident to
the office of controller of a company and such other duties as may be assigned
to him by the Member or the President or as may be provided by law. If no
Controller is elected by the Member, the Treasurer shall perform the duties of
the office of controller.
ARTICLE VII
INTERESTS; CERTIFICATES; TRANSFERS OF COMPANY INTERESTS
SECTION 7.01. Interests. (a) A total of ten Interests are hereby
authorized for issuance, of which ten Interests are hereby issued to the Member.
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(b) Certificates. The interest of each holder of Interests
shall be evidenced by a certificate or certificates in such form as the
Management Committee may from time to time prescribe. Each certificate shall be
signed by, or in the name of, the Company by the President or any Vice
President, and by the Secretary or any Assistant Secretary of the Company.
(c) Lost, Stolen, Destroyed or Mutilated Certificates. The
Company shall issue a new certificate to replace a certificate theretofor issued
by it alleged to have been lost, destroyed or wrongfully taken, if the owner or
the owner's legal representative (i) requests replacement before the Company has
notice that the certificate has been acquired by a bona fide purchaser; (ii)
files with the Company a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss or destruction of any such
certificate or the issuance of any such new certificate; and (iii) satisfies
such other terms and conditions as the Company may from time to time prescribe.
(d) Article 8 Election. All Interests shall be "securities"
governed by Article 8 of the Uniform Commercial Code in any jurisdiction (a)
that has adopted revisions to Article 8 of the Uniform Commercial Code
substantially consistent with the 1994 revisions to Article 8 adopted by the
American Law Institute and the National Conference of Commissioners on Uniform
State Laws and (b) the laws of which may be applicable, from time to time, to
the issues of perfection, the effect of perfection or non-perfection and the
priority of a security interest in the Interests of the Company. Each
certificate evidencing Interests shall bear the following legend: "This
certificate evidences Interests in Juniper Generation, L.L.C. and shall be a
security for purposes of Article 8 of the Uniform Commercial Code."
SECTION 7.02. Transfers. The Member may, directly or indirectly, sell,
assign, transfer, pledge, hypothecate or otherwise dispose of all or any part of
its Interest.
ARTICLE VIII
DISSOLUTION AND TERMINATION
SECTION 8.01. DISSOLUTION.
(a) The Company shall have a perpetual existence.
(b) Upon there being no members in the Company, the Company
shall not be dissolved and shall not be required to be wound up and the personal
representative of the last remaining Member shall be obligated to agree in
writing to continue the Company and to the admission of the Personal
Representative of such member or its nominee or designee to the Company as a
Member, effective as of the occurrence of the event that terminated the
continued membership of the last remaining Member.
(c) The death, retirement, resignation, expulsion, bankruptcy
or dissolution of any Member or the occurrence of any other event that
terminates the continued membership of any Member shall not cause the Company to
be dissolved or its affairs to be wound up, and upon the occurrence of any such
event, the Company shall be continued without dissolution.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.01. General. Except to the extent expressly prohibited by the
Act, the Company shall indemnify each Person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, by reason of the
fact that such Person or such Person's testator or intestate is or was a member
or officer of the Company, against judgments, fines (including excise taxes
assessed on a Person with respect to an employee benefit plan), penalties,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
actually and necessarily incurred in connection with such action or proceeding,
or any appeal therefrom; provided that no such indemnification shall be made if
a judgment or other final adjudication adverse to such Person establishes that
his conduct did not meet the then applicable minimum statutory standards of
conduct; and provided, further, that no such indemnification shall be required
to any settlement or other non-adjudicated disposition of any threatened or
pending action or proceeding unless the Company has given its prior consent to
such settlement or such other disposition, which consent shall not be
unreasonably withheld.
SECTION 9.02. Reimbursement. The Company shall advance or promptly
reimburse upon request any Person entitled to indemnification hereunder for all
expenses, including attorneys' fees, reasonably incurred in defending any action
or proceeding in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such Person (in form and substance satisfactory
to the Company) to repay such amount if such Person is ultimately found not to
be entitled to indemnification or, where indemnification is granted, to the
extent the expenses so advanced or reimbursed exceed the amount to which such
Person is entitled; provided that such Person shall cooperate in good faith with
any request by the Company that common counsel be utilized by the parties to an
action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential conflicts of interest between or among
such parties; and provided, further, that the Company shall only advance
attorneys' fees in respect of legal counsel approved by the Company, such
approval not to be unreasonably withheld.
SECTION 9.03. Availability. The right to indemnification and
advancement of expenses under this provision is intended to be retroactive and
shall be available with respect to any action or proceeding which relates to
events prior to the effective date of this provision.
SECTION 9.04. Indemnification Agreement. The Company is authorized to
enter into agreements with any of its members or officers extending rights to
indemnification and advancement of expenses to such Person to the fullest extent
permitted by applicable law, but the failure to enter into any such agreement
shall not affect or limit the rights of such Person pursuant to this provision.
SECTION 9.05. Enforceability. In case any provision in this Article IX
shall be determined at any time to be unenforceable in any respect, the other
provisions shall not in any way be affected or impaired thereby, and the
affected provisions shall be given the fullest possible enforcement in the
circumstances, it being the intention of the Company to provide
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indemnification and advancement of expenses to its members and officers, acting
in such capacities, to the fullest extent permitted by law.
SECTION 9.06. No Amendments. No amendment or repeal of this provision
shall apply to or have any effect on the indemnification of, or advancement of
expenses to, any member or officer of the Company for, or with respect to, acts
or omissions of such member or officer occurring prior to such amendment or
repeal.
SECTION 9.07. Not Exclusive. The foregoing shall not be exclusive of
any other rights to which any member or officer may be entitled as a matter of
law and shall not affect any rights to indemnification which Company personnel
other than members or officers may be entitled to by contract or otherwise.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments. Subject to Section 6.01(c), this Agreement
may be amended only upon the written consent of all Members.
SECTION 10.02. Benefits of Agreement. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any creditor of the
Company or the Member.
SECTION 10.03. Integration. This Agreement constitutes the entire
agreement pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements in connection therewith. No covenant, representation
or condition not expressed in this Agreement shall affect, or be effective to
interpret, change or restrict, the express provisions of this Agreement.
SECTION 10.04. Headings. The titles of Articles and Sections of this
Agreement are for convenience only and shall not be interpreted to limit or
amplify the provisions of this Agreement.
SECTION 10.05. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument, which may be
sufficiently evidenced by one counterpart.
SECTION 10.06. Severability. Each provision of this Agreement shall be
considered separable and if for any reason any provision or provisions hereof
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.
SECTION 10.07. Applicable Law. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Delaware, without
regard to its conflict of law principles.
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SECTION 10.08. Non-Executory Contract. This Agreement is the governing
instrument of the Company and shall not be deemed to be an executory contract or
otherwise subject to section 365 of Title 11 of the United States Code.
SECTION 10.09. Bankruptcy Events. Notwithstanding anything herein to
the contrary, a Member shall not cease to be a Member of the Company upon the
happening of any event listed in section 18-304 of the Act.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Member
as of the 11th day of September, 2000.
By: MESQUITE INVESTORS, L.L.C.
its Sole Member
By: CHAPARRAL INVESTORS, L.L.C.
its Sole Member
By: El PASO CHAPARRAL INVESTORS, L.L.C.
its Managing Member
By: El PASO CHAPARRAL
HOLDING COMPANY
its Sole Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and
Senior Managing Director
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