THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF TXU ENERGY COMPANY LLC Dated as of September 29, 2006
Exhibit
3(a)
THIRD
AMENDED AND RESTATED
OF
TXU
ENERGY COMPANY LLC
Dated
as
of September 29, 2006
Table
of Contents
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Page
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ARTICLES
I DEFINITIONS
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2
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SECTION
1.01. Definitions
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2
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SECTION
1.02. Other Definitional Provisions
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7
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ARTICLE
II ORGANIZATION OF THE COMPANY
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8
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SECTION
2.01. FORMATION
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8
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SECTION
2.02. NAME
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8
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SECTION
2.03. REGISTERED AGENT; OFFICES
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9
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SECTION
2.04. TERM
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9
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SECTION
2.05. PURPOSES AND POWERS
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9
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SECTION
2.06. LIABILITY TO THIRD PARTIES; NO PERSONAL
LIABILITY
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9
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SECTION
2.07. LIMITED LIABILITY AND SEPARATENESS
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10
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ARTICLE
III MANAGEMENT OF THE COMPANY
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10
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SECTION
3.01. MANAGEMENT
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10
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SECTION
3.02. BOARD OF MANAGERS
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10
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SECTION
3.03. NUMBER AND QUALIFICATIONS
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10
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SECTION
3.04. LENGTH OF SERVICE
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10
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SECTION
3.05. RESIGNATION
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10
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SECTION
3.06. MEETINGS OF BOARD OF MANAGERS
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10
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SECTION
3.07. QUORUM; MAJORITY VOTE
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11
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SECTION
3.08. METHODS OF VOTING
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11
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SECTION
3.09. ACTIONS WITHOUT A MEETING
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11
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SECTION
3.10. BOARD OF MANAGERS’ POWERS
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11
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SECTION
3.11. DUTIES AND OBLIGATIONS OF THE BOARD OF
MANAGERS
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11
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SECTION
3.12. OFFICERS
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12
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SECTION
3.13. ELECTION, REMOVAL AND RESIGNATION OF
OFFICERS
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13
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SECTION
3.14. DUTY
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13
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ARTICLE
IV MEMBERS; VOTING RIGHTS
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13
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SECTION
4.01. MEETINGS OF MEMBERS
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13
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SECTION
4.02. VOTING RIGHTS
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14
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SECTION
4.03. REGISTERED MEMBERS
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14
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SECTION
4.04. WITHDRAWAL; RESIGNATION
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14
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SECTION
4.05. DEATH OR DISSOLUTION OF A MEMBER
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14
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SECTION
4.06. AUTHORITY
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15
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ARTICLE
V MEMBERSHIP INTERESTS; MEMBERSHIP
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15
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SECTION
5.01. MEMBERSHIP INTERESTS
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15
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SECTION
5.02. NEW MEMBERS
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15
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i
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Page
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ARTICLE
VI CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS;
REDEMPTIONS
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15
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SECTION
6.01. CAPITAL CONTRIBUTIONS
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15
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SECTION
6.02. CAPITAL ACCOUNTS
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16
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SECTION
6.03. NO WITHDRAWAL
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16
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SECTION
6.04. LOANS FROM MEMBERS
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16
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SECTION
6.05. STATUS OF CAPITAL CONTRIBUTIONS
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16
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ARTICLE
VII DISTRIBUTIONS
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16
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SECTION
7.01. PRIORITY OF DISTRIBUTIONS
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16
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SECTION
7.02. LIMITATIONS ON DISTRIBUTIONS
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17
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ARTICLE
VIII ALLOCATIONS
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17
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SECTION
8.01. ALLOCATIONS
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17
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SECTION
8.02. SPECIAL ALLOCATIONS
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17
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SECTION
8.03. CURATIVE ALLOCATIONS
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18
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SECTION
8.04. CODE SECTION 704(C) TAX ALLOCATIONS
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19
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SECTION
8.05. OTHER ALLOCATION RULES
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19
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ARTICLE
IX ELECTIONS AND REPORTS
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20
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SECTION
9.01. ACCOUNTING BOOKS AND RECORDS
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20
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SECTION
9.02. REPORTS
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20
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SECTION
9.03. TAX ELECTIONS
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20
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SECTION
9.04. TAX CONTROVERSIES
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21
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SECTION
9.05. TAX STATUS AND RETURNS
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21
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ARTICLE
X DISSOLUTION AND LIQUIDATION
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21
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SECTION
10.01. DISSOLUTION
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21
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SECTION
10.02. LIQUIDATION
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21
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ARTICLE
XI TRANSFER OF MEMBERSHIP INTERESTS; CONVERSIONS
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23
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SECTION
11.01. RESTRICTIONS
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23
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SECTION
11.02. GENERAL RESTRICTIONS ON TRANSFER
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23
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SECTION
11.03. PROCEDURES FOR TRANSFER
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24
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SECTION
11.04. LIMITATIONS
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24
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ARTICLE
XII INDEMNIFICATION
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24
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SECTION
12.01. RIGHT TO INDEMNIFICATION
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24
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SECTION
12.02. LIMITATION ON INDEMNIFICATION
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25
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SECTION
12.03. ADVANCEMENT OF EXPENSES
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25
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SECTION
12.04. INDEMNIFICATION OF EMPLOYEES AND AGENTS
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25
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SECTION
12.05. APPEARANCE AS A WITNESS
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26
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SECTION
12.06. NONEXCLUSIVITY OF RIGHTS
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26
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SECTION
12.07. CONTRACT RIGHTS
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26
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SECTION
12.08. INSURANCE
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26
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SECTION
12.09. SAVINGS CLAUSE
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26
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ii
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Page
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ARTICLE
XIII MISCELLANEOUS
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27
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SECTION
13.01. NOTICES
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27
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SECTION
13.02. NO ACTION FOR PARTITION
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27
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SECTION
13.03. HEADINGS AND SECTIONS
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27
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SECTION
13.04. AMENDMENTS
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27
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SECTION
13.05. BINDING EFFECT
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28
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SECTION
13.06. GOVERNING LAW
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28
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SECTION
13.07. CERTIFICATE OF FORMATION
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28
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SECTION
13.08. SEVERABILITY
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28
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SECTION
13.09 ADDITIONAL DOCUMENTS AND ACTS
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28
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SECTION
13.10. NO THIRD PARTY BENEFICIARIES
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28
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SCHEDULE
A - MEMBERS SCHEDULE
EXHIBIT
A - FORM OF JOINDER
iii
This
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement")
of TXU
Energy Company LLC, a Delaware limited liability company (the "Company"),
is
entered into and shall be effective as of September __, 2006, by and among
the
Company, TXU US Holdings Company ("US
Holdings")
and
TXU Energy Holdings Company, ("Energy
Holdings";
and
each of US Holdings and Energy Holdings, a "Member"
and
together, the "Members").
WHEREAS,
US Holdings formed the Company as a limited liability company under the laws
of
the State of Delaware by filing a Certificate of Formation (the "Original
Certificate of Formation")
with
the Secretary of State of the State of Delaware on November 5, 2001, and
in
connection therewith entered into a Limited Liability Company Agreement for
the
Company on November 12, 2001 (the "Original
Agreement");
WHEREAS
on November 21, 2002, US Holdings contributed 1% of the membership interests
in
the Company to Energy Holdings and Energy Holdings was admitted as a member
to
the Company;
WHEREAS,
on November 21, 2002, the Company and the Members entered into the First
Amended
and Restated Limited Liability Company Agreement ("First
Amendment"),
which
amended and restated the Original Agreement in its entirety in connection
with
the sale by the Company of $750 million principal amount of its 9.00%
Exchangable Subordinated Notes due 2012 (the "Notes")
to
certain entities affiliated with DLJ Merchant Banking Partners III, L.P.
(the
"DLJ
Entities");
WHEREAS,
on December 19, 2002, with the consent of the Company, the DLJ Entities
transferred $250 million principal amount of the Notes to certain entities
affiliated with Berkshire Hathaway Inc. (the "BH
Entities");
WHEREAS,
on July 1, 2003, the Company exercised its right to require holders of the
Notes
to exchange their Notes for a preferred equity interest in the Company (the
"Note
Exchange");
WHEREAS,
on July 1, 2003, the Company, the Members, the DLJ Entities, and the BH Entities
entered into the Second Amended and Restated Limited Liability Company Agreement
(the "Second
Amendment")
which
amended and restated the First Amendment in its entirety in connection with
the
Note Exchange;
WHEREAS,
as set forth in the Second Amendment, US Holdings held 99% of the Class A
Membership Interests (as defined in the Second Amendment), Energy Holdings
held
1% of the Class A Membership Interests, and the DLJ Entities and the BH Entities
held all of the Class B Preferred Membership Interests (as defined in the
Second
Amendment);
WHEREAS,
on April 26, 2004, TXU Corp. ("TXU")
purchased all of the Class B Preferred Membership Interests from the DLJ
Entities and the BH Entities and executed joinders to the Second Amendment
as
holder of the Class B Preferred Membership Interests;
WHEREAS,
on December 22, 2005, TXU contributed all of the Class B Preferred Membership
Interests to US Holdings, and US Holdings contributed 1% of the Class B
Membership Interests to Energy Holdings (collectively, the "Contributions"),
and
US Holdings and Energy Holdings executed joinders to the Second Amendment
as
holders of the Class B Membership Interests;
1
WHEREAS,
as a result of the Contributions, US Holdings and Energy Holdings hold all
of
the Membership Interests (the Class A Membership Interests and the Class
B
Preferred Membership Interests) in the Company in a ratio of 99% to 1%,
respectively;
WHEREAS,
the Members desire to recapitalize the Company by converting their Class
A
Membership Interests and their Class B Preferred Membership Interests into
a
single class of uncertificated Membership Interests to be owned 99% by US
Holdings and 1% by Energy Holdings (the "Recapitalization");
WHEREAS,
the Members desire to amend and restate the Second Amendment in its entirety
to
reflect the Recapitalization and otherwise as set forth below; and
WHEREAS,
this Agreement amends and restates the Second Amendment in all respects,
and
from and after the date hereof constitutes the governing instrument of the
Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
made
and other good and valuable consideration, the Members hereby agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
The
following terms used in this Agreement shall have the following meanings
(unless
otherwise expressly provided in this Agreement):
"Affiliate"
means
with respect to any Person, any other Person controlling, controlled by,
or
under common control with such first Person.
"Agreement"
has the
meaning set forth in the Preamble.
"Bankruptcy"
means,
with respect to a Person, (a) that such Person has (i) made an assignment
for the benefit of creditors; (ii) filed a voluntary petition in
bankruptcy; (iii) been adjudged bankrupt, or insolvent; or had entered
against such Person an order of relief in any bankruptcy or insolvency
proceeding; (iv) filed a petition or an answer seeking for such Person any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation or filed an answer
or
other pleading admitting or failing to contest the material allegations of
a
petition filed against such Person in any proceeding of such nature; or (v)
sought, consented to, or acquiesced in the appointment of a trustee, receiver
or
liquidator of such Person or of all or any substantial part of such Person's
properties; (b) 60 days have elapsed after the commencement of any
proceeding against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law
or regulation and such proceeding has not been dismissed; or (c) 60 days
have elapsed since the appointment without such Person's consent or acquiescence
of a trustee, receiver or liquidator of such Person or of all or any substantial
part of such Person's properties and such appointment has not been vacated
or
stayed or the appointment is not vacated within 60 days after the expiration
of
such stay.
2
"Board
of Managers"
has the
meaning set forth in Section
3.02.
"Business
Day"
means
any day other than a Saturday, Sunday or any other day which is a legal holiday
under the laws of the State of Texas or a day on which national banking
associations in such States are authorized or required by law or other
governmental action to close.
"Capital
Account"
means,
with respect to any Member, the account maintained for such Member as provided
in Article
VI
and in
accordance with Treasury Regulations Section 1.704-1(b)(2)(iv) and this
Agreement.
"Capital
Contribution"
means,
with respect to any Member, the aggregate amount of money and the initial
Gross
Asset Value of any property (other than money) contributed to the Company,
whenever made. In the case of a Member that acquires an interest in the Company
by virtue of a Transfer in accordance with the terms of this Agreement, "Capital
Contribution" includes the Capital Contribution of such Member's predecessor
in
interest.
"Certificate
of Formation"
means
the Original Certificate of Formation as may be amended, restated, supplemented
or otherwise modified from time to time on or after the date
hereof.
"Code"
means
the United States Internal Revenue Code of 1986, as amended from time to
time.
"Company"
has the
meaning set forth in the Preamble.
"Delaware
Act"
means
the Delaware Limited Liability Company Act, 6 Del. § 18-101 et
seq.,
as the
same may be amended from time to time.
"Depreciation"
means,
for each Fiscal Year or other period, an amount equal to the depreciation,
amortization or other cost recovery deduction allowable for federal income
tax
purposes with respect to an asset for such Fiscal Year or other period;
provided,
however,
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 or other period,
Depreciation shall be an amount that bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization or
other
cost recovery deduction with respect to such asset for such Fiscal Year or
other
period bears to such beginning adjusted tax basis; and provided
further
that, if
the federal income tax depreciation, amortization or other cost recovery
deduction for such Fiscal Year or other period is zero, Depreciation shall
be
determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the Members.
"Designee"
has the
meaning set forth in Section
3.02(a).
3
"Dissolution
Event"
has the
meaning set forth in Section 10.01(a).
"Distribute"
means
to make one or more Distributions.
"Distribution"
means,
with respect to a Member, the amount of money and the Gross Asset Value of
property other than money (net of any liabilities secured by such property
that
such Member is considered to assume or take subject to as provided in Treasury
Regulation Section 1.704-1(b)(2)(iv)(b)(5)) distributed to such Member by
the
Company (a) on account of such Member's Membership Interest as provided in
Article
VII
or (b)
in redemption or liquidation of all or any portion of such Member's Membership
Interest, but shall not include payments to a Member (i) pursuant to a loan
or
advance made by such Member to the Company or in respect of any other
transaction in which such Member acts other than in such Member's capacity
as a
partner within the meaning of Section 707(a) of the Code or (ii) which are
guaranteed payments within the meaning of Section 707(c) of the
Code.
"Encumbrance"
means
any lien, mortgage, pledge, collateral assignment, security interest,
hypothecation or other encumbrance.
"Fair
Market Value"
of any
asset as of any date means the purchase price which a willing buyer having
all
relevant knowledge would pay a willing seller for such asset in an arms'
length
transaction.
"Fiscal
Year"
means
the annual accounting period of the Company, which shall be the calendar
year or
such portion of a calendar year during which the Company is in
existence.
"GAAP"
means
generally accepted accounting principles in the United States of America
as in
effect from time to time, consistently applied.
"Gross
Asset Value"
means,
with respect to any asset, such asset's adjusted basis for federal income
tax
purposes, except as follows:
(a) the
initial Gross Asset Value of any asset (other than money) contributed by
a
Member to the Company shall be the gross Fair Market Value of such
asset;
(b) the
Gross
Asset Value of all assets of the Company shall be adjusted to equal their
respective gross Fair Market Values (taking Code section 7701(g) into account),
as determined by the Board of Managers, immediately prior to the following
times: (i) 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; (ii) the distribution by the Company to a Member of more than
a de minimis
amount
of Company assets as consideration for an interest in the Company; and
(iii) the liquidation of the Company within the meaning of Treasury
Regulation Section 1.704-1(b)(2)(ii)(g); and
(c) the
Gross
Asset Value of any Company asset distributed in kind to any Member shall
be the
gross Fair Market Value (taking Code section 7701(g) into account) of such
asset
on the date of distribution, as determined by the Board of Managers pursuant
to
Section
10.02(c).
4
If
the
Gross Asset Value of an asset has been determined or adjusted pursuant to
paragraph (a) or paragraph (b) above, such Gross Asset Value shall thereafter
be
reduced by the Depreciation taken into account with respect to such asset
for
purposes of computing Net Income and Net Losses.
"Gross
Income"
means
all items of gross income and revenues for the applicable period, including
any
proceeds of any actual or deemed asset sales.
"Invested
Capital"
means
the initial investment made by holders of Membership Interests, as may be
reduced from time to time by any redemption or return of capital.
"Joinder"
has the
meaning set forth in Section 5.02.
"Law"
means
any United States or non-United States federal, national, supranational,
state,
provincial, local or similar statute, law, ordinance, regulation, rule, code,
order, requirement or rule of law (including, without limitation, common
law).
"Liquidation
Event"
means
any liquidation, dissolution or winding up of the affairs of the Company,
whether voluntary or involuntary.
"Liquidator"
has the
meaning set forth in Section 10.02(a).
"Majority
in Interest"
means
at any time, a Member or Members that own a majority of the Membership Interests
outstanding at such time.
"Manager"
means a
member of the Board of Managers.
"Member"
or
"Member"
has the
meaning set forth in the Preamble.
"Members
Schedule"
has the
meaning set forth in Section 5.01.
"Membership
Interest"
of any
Member at any time means the entire ownership interest of such Member in
the
Company at such time, including all benefits to which the owner of such
Membership Interest is entitled under this Agreement and applicable law,
together with all obligations of such Member under this Agreement and applicable
law.
"Net
Income"
and
"Net
Losses"
mean,
for each Fiscal Year, an amount equal to the Company's taxable income or
loss
for such Fiscal Year, determined in accordance with Section 703(a) of the
Code
(but including in taxable income or loss, for this purpose, all items of
income,
gain, loss or deduction required to be stated separately pursuant to Section
703(a)(1) of the Code), with the following adjustments:
(a) any
income of the Company exempt from federal income tax and not otherwise taken
into account in computing Net Income or Net Losses pursuant to this definition
shall be added to such taxable income or loss;
5
(b) any
expenditures of the Company described in Section 705(a)(2)(B) of the Code
(or
treated as expenditures described in Section 705(a)(2)(B) of the Code pursuant
to Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken
into account in computing Net Income or Net Losses pursuant to this definition
shall be subtracted from such taxable income or loss;
(c) in
the
event the Gross Asset Value of any asset of the Company is adjusted in
accordance with paragraph (b) or paragraph (c) of the definition of "Gross
Asset
Value" above, the amount of such adjustment shall be taken into account as
gain
or loss from the disposition of such asset for purposes of computing Net
Income
or Net Losses;
(d) gain
or
loss resulting from any disposition of any asset of the Company with respect
to
which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the asset disposed of,
notwithstanding that the adjusted tax basis of such asset differs from its
Gross
Asset Value;
(e) 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 or other period, computed in
accordance with the definition of "Depreciation" above; and
(f) any
items
which are specially allocated pursuant to Sections
8.02
or
8.03
shall
not be taken into account in computing Net Income or Net Losses.
The
amounts of the items of Company income, gain, loss or deduction available
to be
specially allocated pursuant to Sections
8.02
or
8.03
shall be
determined by applying rules analogous to those set forth in subparagraphs
(a)
through (e) above.
"Officer"
means
an officer of the Company.
"Original
Certificate of Formation"
has the
meaning set forth in the Recitals.
"Person"
means
any individual, corporation, partnership, limited liability company, trust,
joint venture, governmental entity or other unincorporated entity, association
or group.
"Proceeding"
has the
meaning set forth in Section
12.01.
"Regulatory
Allocations" has
the
meaning set forth in Section
8.03.
"State"
means
any one of the 50 states of the United States of America or the District
of
Columbia.
"Tax" or
"Taxes"
means
all federal, State, local and foreign income, profits, franchise, gross
receipts, environmental, customs duty, capital stock, severance, stamp, windfall
profit, payroll, sales, use, transfer, employment, unemployment, disability,
use, property, withhold-ing, excise, production, value added, occupancy and
other taxes, duties or assessments of any nature whatsoever, together with
all
interest, penalties and additions imposed with respect thereto.
6
"Tax
Matters Member"
has the
meaning set forth in Section
9.04.
"Transfer"
means
(a) as a noun, the transfer of ownership by sale, exchange, assignment, gift,
donation, grant or other conveyance of any kind, whether voluntary or
involuntary, including Transfers by operation of law or legal process (and
hereby expressly including, with respect to a Member, assignee or other Person,
any voluntary or involuntary appointment of a receiver, trustee, liquidator,
custodian or other similar official for such Member or all or any part of
such
Member, assignee or other Person or all or any part of the property of such
Member, assignee or other Person under any bankruptcy, reorganization or
insolvency law and (b) as a verb, the act of making any voluntary or involuntary
Transfer.
"Treasury
Regulations"
means
the income tax regulations promulgated under the Code as amended.
"TXU"
has the
meaning set forth in the Preamble.
"US
Holdings"
has the
meaning set forth in the Preamble.
SECTION
1.02. Other
Definitional Provisions.
(a) All
terms
in this Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As
used
in this Agreement and in any certificate or other documents made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement
or in
any such certificate or other document, and accounting terms partly defined
in
this Agreement or in any such certificate or other document to the extent
not
defined, shall have the respective meanings given to them under GAAP. To
the
extent that the definitions of accounting terms in this Agreement or in any
such
certificate or other document are inconsistent with the meanings of such
terms
under GAAP, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The
words
"hereof", "herein", "hereunder", and words of similar import when used in
this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section references contained in this Agreement
are
references to Sections in this Agreement unless otherwise specified; and
the
term "including" shall mean "including without limitation".
(d) The
definitions contained in this Agreement are applicable to the singular as
well
as the plural forms of such terms.
(e) Common
nouns and pronouns and any variations thereof shall be deemed to refer to
masculine, feminine, or neuter, singular or plural, as the identity of the
Person, Persons or other reference in the context requires. Whenever used
herein, "or" shall include both the conjunctive and disjunctive, "any" shall
mean "one or more," and "including" shall mean "including without
limitation."
7
(f) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a
Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
OF THE COMPANY
SECTION
2.01. Formation.
(a) The
Company was formed upon the filing of the Original Certificate of Formation
with
the Secretary of State of the State of Delaware on November 5, 2001, pursuant
to
the Delaware Act and such filing is hereby approved and ratified in all
respects. The Managers and each Officer are hereinafter designated as
"authorized persons" within the meaning of the Delaware Act.
(b) Any
Person designated as an "authorized person" by the Board of Managers is
authorized to execute, deliver and file, or cause to be executed, delivered
and
filed, from time to time on behalf of the Company (i) any and all amendments
to
and restatements of the Certificate of Formation, and (ii) all other
instruments, certificates, notices and documents, as an authorized person
within
the meaning of the Delaware Act. In addition, any Person designated as an
"authorized person" by the Board of Managers is authorized to do or cause
to be
done all such filing, recording, publishing and other acts, in each case,
as may
be necessary or appropriate from time to time to comply with all applicable
requirements for the formation and/or operation and, when appropriate,
termination of a limited liability company in the State of Delaware and all
other jurisdictions where the Company shall desire to conduct its business.
This
Agreement shall constitute the "limited liability company agreement" (as
that
term is used in the Delaware Act) of the Company. The rights, powers, duties,
obligations and liabilities of the Members shall be determined pursuant to
the
Delaware Act and this Agreement. To the extent that the rights, powers, duties,
obligations and liabilities of any Member are different by reason of any
provision of this Agreement than they would be in the absence of such provision,
this Agreement shall, to the extent permitted by the Delaware Act,
control.
(c) The
Company shall, to the extent permissible, elect to be treated as a partnership
for federal income tax purposes, and the Membership Interests shall be treated
as interests in a partnership for such purposes. Each Member and the Company
shall file all tax returns and shall otherwise take all tax and financial
reporting positions in a manner consistent with such treatment and no Member
shall take any action inconsistent with such treatment.
SECTION
2.02. Name.
The
name
of the Company is "TXU Energy Company LLC", or such other name or names as
the
Board of Managers may from time to time designate; provided,
however,
that
the name shall always contain the words "Limited Liability Company", "LLC"
or
"L.L.C."
8
SECTION
2.03. Registered
Agent; Offices.
The
Company's registered agent and office within the State of Delaware shall
be The
Corporation Trust Company located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other place as the Board of Managers may from time to time
determine. The Company's principal executive office shall be located at Energy
Plaza, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other place as
the
Board of Managers may from time to time determine.
SECTION
2.04. Term.
The
term of existence of the Company shall be perpetual from the date the Original
Certificate of Formation was filed with the Secretary of State of the State
of
Delaware, unless the Company is dissolved in accordance with the provisions
of
this Agreement or the Delaware Act.
SECTION
2.05. Purposes
and Powers.
The
purpose of the Company is to engage in any activity and to exercise any powers
permitted to limited liability companies under the laws of the State of
Delaware.
SECTION
2.06. Liability
to Third Parties;
No
Personal Liability
(a) Except
as
otherwise
expressly provided by the Delaware Act, neither any Member nor any Manager
shall
be liable for the debts, obligations or liabilities of the Company (whether
arising in contract, tort or otherwise), including, without limitation, under
a
judgment, decree or order of a court, by reason of being a Member or acting
as a
Manager of the Company.
(b) Each
Member shall have the same limitation of personal lia-bility as is extended
to
stockholders of a private corporation for profit incorporated under the General
Corporation Law of the State of Delaware.
(c) No
Manager or Officer shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Company or any Member, in connection
with the assets or the affairs of the Company; and, subject to the provisions
of
Article
XII,
all
such Persons shall look solely to the assets of the Company for satisfaction
of
claims of any nature arising in connection with the affairs of the
Company.
(d) The
failure of the Company to observe any formalities or requirements relating
to
the exercise of its powers or management of the Company or its affairs under
this Agreement or the Delaware Act shall not be grounds for imposing personal
liability on the Members, Managers or the Officers for liabilities of the
Company.
(e) Such
protections from personal liability shall apply to the fullest extent permitted
by applicable law, as the same exists or may hereafter be amended (but, in
the
case of any such amendment, only to the extent that such amendment permits
the
Company to provide greater or broader indemnification rights than such law
permitted the Company to provide prior to such amendment).
9
SECTION
2.07. Limited
Liability and Separateness.
The
Company shall be operated in such a manner as the Managers deem reasonable
and
necessary or appropriate to preserve (a) the limited liability of each of
the
Members (or their successors) in the Company and (b) the separateness of
the
Company from the business of each Member of the Company or any other Affiliate
thereof.
ARTICLE
III
SECTION
3.01. Management.
The
Company shall be managed by a Board of Managers.
SECTION
3.02. Board
of Managers.
(a) The
Company shall have a "Board
of Managers",
made
up of at least one (1) member, which shall be chosen by the Majority in Interest
(each a "Designee").
(b) Any
Designee may be removed at any time, with or without cause, by the affirmative
vote of the Majority in Interest. Any Designee who is removed in accordance
with
the provisions of this Section
3.02(b),
or
resigns or otherwise ceases to hold office by reason of his death, shall
be
replaced by the affirmative vote of the Majority in Interest.
SECTION
3.03. Number
and Qualifications.
The
number
of
Managers of the Company shall be at least one (1), subject to modification
by
the Board of Managers in accordance to this Agreement, but no decrease in
the
number of Managers shall have the effect of shortening the term of any incumbent
Manager.
SECTION
3.04. Length
of Service.
Each
Manager shall hold office until his or her successor shall be selected as
provided in Section
3.02
of this
Agreement and qualified, or until his or her earlier death, resignation or
removal as provided in this Agreement.
SECTION
3.05. Resignation.
Any
Manager may resign at any time. Such resignation shall be made in writing
and
shall take effect at the time specified therein or, if no time is specified
therein, at the time of its receipt by the remaining Manager. The acceptance
of
a resignation shall not be necessary to make it effective, unless so expressly
provided in the resignation.
SECTION
3.06. Meetings
of Board of Managers.
(a) All
meetings of the Board of Managers shall be held telephonically, by
videoconference (such participation in any such meeting shall constitute
presence in person at such meeting, except where a Person participates in
such
meeting for the express purpose of objecting to the transaction of any business
on the ground that such meeting is not lawfully called or convened) or at
the
principal office of the Company or at such other place within or without
the
State of Delaware, as may be determined by the Chairperson of the Board of
Managers or the member(s) of the Board of Managers calling the meeting, as
the
case may be, and set forth in the respective notice or waivers of notice
of such
meeting. A record shall be maintained of each meeting of the Board of
Managers.
10
(b) Meetings
of the Board of Managers may be called by (i) the Chairperson of the Board
of
Managers or (ii) by one or more Managers.
SECTION
3.07. Quorum;
Majority Vote.
Except
as otherwise provided herein or by applicable law, the presence in person
or by
telephone of a majority of the Managers shall constitute a quorum of the
Board
of Managers for purposes of conducting business, unless a greater number
is
required by this Agreement or by law. Once a quorum is present at a meeting
of
the Board of Managers, the subsequent withdrawal from the meeting of any
Manager
prior to adjournment or the refusal of any Manager to vote shall not affect
the
presence of a quorum at the meeting. If, however, such quorum shall not be
present at any meeting of the Board of Managers, the Managers at such meeting
shall have the power to adjourn the meeting, without notice other than
announcement at the meeting, until a majority of the Managers shall be present.
Except as otherwise provided herein or required by applicable law, resolutions
of the Managers at any meeting of Board of Managers shall be adopted by the
affirmative vote of a majority of the Managers at such meeting at which a
quorum
is present. The act of a majority of the Board of Managers present in person
or
by telephone at a meet-ing at which a quorum is present in person or by
telephone shall be the act of the Managers, except as otherwise provided
by law
or any other provision in this Agreement.
SECTION
3.08. Methods
of Voting.
A
Manager may vote either in person or by telephone.
SECTION
3.09. Actions
Without a Meeting.
Any
action required or permitted to be taken at a meeting of the Board of Managers
may be taken without a meet-ing, without prior notice, and without a vote,
if a
consent in writing, setting forth the action so taken, is signed by a majority
of the Managers entitled to vote on the action. Copies of any such consents
shall be filed with the minutes and permanent records of the Company.
SECTION
3.10. Board
of Managers' Powers.
The
Board of Managers shall have the authority on behalf and in the name of the
Company to perform all acts necessary and desirable to the objects and purposes
of the Company, subject to the rights of the Liquidator to liquidate the
Company
and take all actions incidental thereto during the period of liquidation.
SECTION
3.11. Duties
and Obligations of the Board of Managers.
(a) The
Board
of Managers may engage one or more managers or Officers to advise the Board
of
Managers and be responsible for directing the day-to-day operations of the
Company under the supervision of the Board of Managers. Each Manager shall
be
deemed a "manager" of the Company for all purposes of, and with the meaning
set
forth in, the Delaware Act.
(b) The
Board
of Managers shall have the power to delegate authority to such Managers,
Officers, employees, agents and representatives of the Company, as it may
from
time to time deem appropriate.
11
SECTION
3.12. Officers.
(a) The
Officers of the Company, as such, shall have limited authority, and shall
be
subject to the provisions and limitations of this Article
III.
All
Officers named in this Agreement or elected or appointed pursuant to this
Article
III
shall be
responsible to, and subject to the authority and direction of, the Board
of
Managers in connection with matters over which the Board of Managers has
authority.
(b) The
Board
of Managers may elect a Chairperson of the Board who, if elected, shall preside
at all meetings of the Members and of the Board of Managers and shall perform
such other duties as may be prescribed by the Board of Managers from time
to
time.
(c) The
Company may elect a Chief Executive Officer, who, if elected, shall have
general
active management of the business of the Company, and in the absence of the
Chairperson of the Board of Managers or if the office of Chairperson of the
Board of Managers is vacant, shall preside at meetings of the members and
Board
of Managers, shall see that all orders and resolutions of the Board of Managers
are carried into effect, shall have authority to sign and deliver in the
name of
the Company any deeds, mortgages, bonds, contracts, or other instruments
pertaining to the business of the Company, except in cases in which the
authority to sign and deliver is required by law to be exercised by another
person, is expressly delegated by this Agreement or the Board of Managers
to
some other Officer or agent of the Company or as may generally be delegated
in
the ordinary course of business, may maintain records of and certify proceedings
of the Board of Managers and Members, and shall perform such other duties
as may
from time to time be prescribed by the Board of Managers.
(d) The
Company may have a President, who shall be the chief operating officer of
the
Company, shall have authority to exercise the power of the Chief Executive
Officer in his absence, and in the absence of the Chairperson of the Board
of
Managers and the Chief Executive Officer, or if both such offices are vacant,
shall preside at meetings of the Members and Board of Managers. The Company
may
also have one or more Vice Presidents, who shall have authority to exercise
the
power of the President in his absence.
(e) The
Company may have a Treasurer, who, unless provided otherwise by the Board
of
Managers, shall keep accurate financial records for the Company, shall deposit
all moneys, drafts, and checks in the name of and to the credit of the Company,
shall endorse for deposit all notes, checks, and drafts received by the Company,
making proper vouchers therefor, shall disburse Company funds and issue checks
and drafts in the name of the Company, shall render to the President and
the
Board of Managers, whenever requested, an account of all such Officer's
transactions as Chief Financial Officer and of the financial condition of
the
Company, and shall perform such other duties as the Board of Managers or
the
President may prescribe from time to time.
12
(f) The
Company may have a Secretary, who shall have primary responsibility to maintain
records of actions of, and whenever necessary, certify all proceedings of
the
Members. The Secretary shall keep the required records of the Company, when
so
directed by the person or persons authorized to call such meetings, shall
give
or cause to be given notice of meetings of the Members, and shall perform
such
other duties and have such other powers as the Members or the President may
prescribe from time to time.
(g) The
Company may have additional Officers as determined by the Board of
Managers.
(h) No
Officer need be a Manager, a Member, a Delaware resident or a United States
Citizen.
SECTION
3.13. Election,
Removal and Resignation of Officers.
(a) Subject
to the other provisions of this Article
III,
the
Board of Managers may elect or appoint other Officers or agents of the Company,
with such titles, duties, and authority as they shall designate. Subject
to the
other provisions of this Article
III,
and to
any other limitations that the Board of Managers may impose, the Chief Executive
Officer may delegate authority and appoint other Officers and agents of the
Company, with such titles, duties, and authority as the Chief Executive Officer
shall designate. The Chief Executive Officer, at any time, may remove or
terminate the authority of any Officer or agent that was appointed by the
Chief
Executive Officer.
(b) Any
Officer may be removed as such, with or without cause, by the Board of Managers
at any time. Any Officer may resign as such at any time upon written notice
to
the Company. Such resignation shall be made in writing and shall take effect
at
the time specified therein or, if no time is specified therein, at the time
of
its receipt by the Board of Managers.
SECTION
3.14. Duty.
A
Manager
shall perform his or her duties as a Manager in good faith, in a manner he
or
she reasonably believes to be in the best interests of the Company and its
Members, and with such care as an ordinarily prudent person in a like position
would use under similar circumstances.
ARTICLE
IV
MEMBERS;
VOTING RIGHTS
SECTION
4.01. Meetings
of Members.
(a) Generally.
Meetings of the Members may be called by: (i) the Board of Managers or (ii)
a
Majority in Interest. All meetings of the Members shall be held telephonically,
by videoconference or at the principal office of the Company or at such other
place within or without the State of Delaware, as may be determined by the
Board
of Managers or the Member(s) calling the meeting, as the case may
be.
(b) Proxy.
Each
Member may authorize any Person or Persons to act for it by proxy on all
matters
in which a Member is entitled to participate, including waiving notice of
any
meeting, or voting or participating at a meeting.
13
Every
proxy must be signed by the Member or its attorney-in-fact. Every proxy shall
be
revocable or irrevocable at the pleasure of the Member executing
it.
(c) Quorum;
Voting.
Except
as otherwise provided herein or by applicable law, a Majority in Interest,
represented in person or by proxy, shall constitute a quorum of Members for
purposes of conducting business. Once a quorum is present at a meeting of
the
Members, the subsequent withdrawal from the meeting of any Member prior to
adjournment or the refusal of any Member to vote shall not affect the presence
of a quorum at the meeting. If, however, such quorum shall not be present
at any
meeting of the Members, the Members entitled to vote at such meeting shall
have
the power to adjourn the meeting, without notice other than announcement
at the
meeting, until a Majority in Interest shall be present or represented. Except
as
otherwise provided herein or required by applicable law, resolutions of the
Members at any meeting of Members shall be adopted by the affirmative vote
of a
Majority in Interest represented and entitled to vote at such meeting at
which a
quorum is present.
(d) Actions
Without a Meeting.
Unless
otherwise prohibited by law, any action to be taken at a meeting of the Members
may be taken without a meeting if a consent in writing, setting forth the
action
so taken, shall be signed by a Majority in Interest and such consent is
delivered to the Secretary of the Company promptly after the effective date
of
such consent. A record shall be maintained by the Secretary of the Company
of
each such action taken by written consent of the Members.
SECTION
4.02. Voting
Rights.
Except
as specifically provided in this Agreement or otherwise required by applicable
law, for all purposes hereunder, including for purposes of Article
III
hereof,
the Members shall be entitled to vote pro rata in accordance with Membership
Interests.
SECTION
4.03. Registered
Members.
The
Company shall be entitled to treat the owner of record of any Membership
Interests as the owner in fact of such Membership Interest for all purposes,
and, accordingly, shall not be bound to recognize any equitable or other
claim
to or interest in such Membership Interest on the part of any other Person,
whether or not it shall have express or other notice of such claim or interest,
except as expressly provided by this Agreement or the laws of the State of
Delaware.
SECTION
4.04. Withdrawal;
Resignation.
A
Member shall not cease to be a Member as a result of the Bankruptcy of such
Member or as result of any other events specified in Section 18-304 of the
Delaware Act. So long as a Member continues to own or hold any Membership
Interests, such Member shall not have the ability to resign as a Member prior
to
the dissolution and winding-up of the Company and any such resignation or
attempted resignation by a Member prior to the dissolution or winding-up
of the
Company shall be null and void. As soon as any Person who is a Member ceases
to
own or hold any Membership Interests, such Person shall no longer be a
Member.
SECTION
4.05. Death
or Dissolution of a Member.
Except
as provided in Section
10.01,
the
death or dissolution of any Member shall not cause the dissolution of the
Company. In such event, the Company and its business shall be continued by
the
remaining Member or Members.
14
SECTION
4.06. Authority.
No
Member, in its capacity as a Member, shall have the power to act for or on
behalf of, or to bind the Company.
ARTICLE
V
MEMBERSHIP
INTERESTS; MEMBERSHIP
SECTION
5.01. Membership
Interests.
The
Membership Interests of the Company shall consist of one class of Membership
Interests, with such class having the rights and privileges, including voting
rights, if any, set forth in this Agreement. Upon issuance of any Membership
Interests as provided in this Agreement, the Membership Interests so issued
shall be deemed to be duly and validly issued. The Secretary of the Company
shall maintain a schedule of all Members from time to time, which shall include
their respective mailing addresses and the Membership Interests held by them
(as
the same may be amended, modified or supplemented from time to time, the
"Members
Schedule"),
a
copy of which as of the date hereof is attached hereto as Schedule
A.
The
Members shall have no interest in the Company other than the Membership
Interests conferred by this Agreement, which shall be deemed to be personal
property giving only the rights conferred by this Agreement. Ownership of
a
Membership Interest shall not entitle a Member to call for a partition or
division of any property of the Company.
SECTION
5.02. New
Members.
In
order for a Person to be admitted as a Member of the Company pursuant to
the
issuance of Membership Interests to such Person, such Person shall have executed
and delivered to the Secretary of the Company a written undertaking to be
bound
by the terms and conditions of this Agreement substantially in the form of
Exhibit A hereto (each, a "Joinder").
Upon
execution of a Joinder, the amendment of the Members Schedule by the Secretary
of Company and the satisfaction of any other applicable conditions, including
the receipt by the Company of payment for the issuance of the applicable
Membership Interests, such Person shall be admitted as a Member and deemed
listed as such on the books and records of the Company and thereupon shall
be
issued his or its Membership Interests. The Board of Managers shall then
adjust
the Capital Accounts of the Members as necessary in accordance with Section
6.02.
ARTICLE
VI
CAPITAL
CONTRIBUTIONS AND CAPITAL ACCOUNTS;
REDEMPTIONS
SECTION
6.01. Capital
Contributions.
Prior
to, or as of, the date hereof, each Person who is a Member as of the date
hereof
has made or is deemed to have made, Capital Contributions to the Company
and is
deemed to own the percentage of Membership Interests set forth opposite such
Member's name on the Members Schedule as in effect on the date
hereof.
15
SECTION
6.02. Capital
Accounts.
(a) Each
holder of a Membership Interest shall have a Capital Account equal to its
(i)
Invested Capital, (ii) plus
any Net
Income or items of Gross Income allocated to such holder and (iii) less
(x) any Distributions to such holder and (y) any Net Loss or items of
loss or deduction allocated to such holder.
(b) Such
Capital Accounts shall be maintained in accordance with Treasury Regulations
Section 1.704-1(b)(2)(iv).
SECTION
6.03. No
Withdrawal.
No
Member will be entitled to withdraw any part of its Capital Contribution
or
Capital Account or to receive any Distribution from the Company, except as
expressly provided in this Agreement.
SECTION
6.04. Loans
From Members.
Loans
by Members to the Company shall not be considered Capital
Contributions.
SECTION
6.05. Status
of
Capital Contributions.
(a) No
Member
shall receive any interest, salary or drawing with respect to its Capital
Contributions or its Capital Account, except as otherwise specifically provided
in this Agreement.
(b) Except
as
otherwise provided by applicable law, no Member shall be required to lend
any
funds to the Company or to make any additional Capital Contributions to the
Company.
(c) No
Member
shall have any personal liability for the repayment of any Capital Contribution
of any other Member.
ARTICLE
VII
DISTRIBUTIONS
SECTION
7.01. Priority
of Distributions.
Distributions in any form, including cash or other assets, shall be made
to the
holders of Membership Interests pro rata in accordance with their Membership
Interests at the times and in the aggregate amounts determined by the Board
of
Managers. Notwithstanding any provisions to the contrary contained in this
Agreement, the Company shall not be required to make a distribution to any
Member on account of its interest in the Company if such distribution would
violate Section 18-607 of the Act or any other applicable law. A Member shall
not be entitled to receipt of a Distribution, and, thus, shall not be deemed
a
creditor of the Company with respect to a Distribution as contemplated by
Section 18-606 of the Act, until the date specified by the Board of Managers
in
the resolution authorizing such Distribution, and if no such date is specified
by the Board of Managers, then such entitlement date shall be the payment
date
for such Distribution set forth in the resolution authorizing such
Distribution.
16
SECTION
7.02. Limitations
on Distributions.
Notwithstanding
any
provision to the contrary contained in this Agreement, the Company shall
not
make any Distribution if such Distribution would violate Section 18-607 of
the
Delaware Act or other applicable law or if such Distribution would violate
any
of the Company's debt financing agreements or any other debt financing agreement
of which the Company is a guarantor, but shall instead make such Distribution
as
soon as practicable after such time as the making of such Distribution would
not
cause such violation.
ARTICLE
VIII
ALLOCATIONS
SECTION
8.01. Allocations.
(a) Net
Income shall be allocated for each Fiscal Year
to the
holders of Membership Interests pro rata in accordance with their Membership
Interests.
(b) Net
Losses shall be allocated for each Fiscal Year
to the
holders of Membership Interests pro rata in accordance with their Membership
Interests.
SECTION
8.02. Special
Allocations.
The
following special allocations shall be made in the following order to the
extent
items of income, gain, loss or deduction are available:
(a) Partnership
Minimum Gain Chargeback.
Except
as otherwise provided in Treasury Regulation Section 1.704-2(f), notwithstanding
any other provision of this Article
VIII,
if
there is a net decrease in partnership minimum gain during any Fiscal Year,
each
Member shall be specially allocated items of Company income and gain for
such
Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal
to
such Member's share of the net decrease in partnership minimum gain, determined
in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant
to the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto. The items to be
so
allocated shall be determined in accordance with Treasury Regulation Sections
1.704-2(f)(6) and 1.704-2(j)(2). This Section
8.02(a)
is
intended to comply with the minimum gain chargeback requirement in Treasury
Regulation Section 1.704-2(f) and shall be interpreted consistently
therewith.
(b) Partner
Minimum Gain Chargeback.
Except
as otherwise provided in Treasury Regulation Section 1.704-2(i)(4),
notwithstanding any other provision of this Article VIII,
if
there is a net decrease in partner nonrecourse debt minimum gain attributable
to
a partner nonrecourse debt during any Fiscal Year, each Member who has a
share
of the partner nonrecourse debt minimum gain attributable to such partner
nonrecourse debt, determined in accordance with Treasury Regulation Section
1.704-2(i)(5), shall be specially allocated items of Company income and gain
for
such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount
equal
to such Member's share of the net decrease in partner nonrecourse debt minimum
gain attributable to such partner nonrecourse debt, determined in accordance
with Treasury Regulation Section 1.704-2(i)(4).
17
Allocations
pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Member pursuant thereto. The items
to
be so allocated shall be determined in accordance with Treasury Regulation
Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section
8.02(b)
is
intended to comply with the minimum gain chargeback requirement in Treasury
Regulation Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(c) Qualified
Income Offset.
In the
event any Member unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation
Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5)
or
1.704-1(b)(2)(ii)(d)(6),
items
of Company income and gain shall be specially allocated in an amount and
manner
sufficient to eliminate, to the extent required by the Treasury Regulations,
the
Adjusted Capital Account Deficit of such Member as quickly as possible,
provided,
that
an
allocation pursuant to this Section
8.02(c)
shall be
made only if and to the extent that such Member would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Section
8.02
have
been tentatively made as if this Section
8.02(c)
were not
contained in this Agreement. For this purpose, Adjusted Capital Account Deficit
means, with respect to any Member, the deficit balance, if any, in such Member's
Capital Account as of the end of the relevant Fiscal Year, after giving effect
to the following adjustments: (i) such Capital Account shall be deemed to
be
increased by any amounts that such Member is obligated to restore to the
Company
(pursuant to this Agreement or otherwise) or is deemed to be obligated to
restore pursuant to: (A) the penultimate sentence of Treasury Regulation
Section
1.704-2(g)(1), or (B) the penultimate sentence of Treasury Regulation Section
1.704-2(i)(5), and (ii) such Capital Account shall be deemed to be decreased
by
the items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4),
(5)
and (6).
(d) Gross
Income Allocation.
In the
event any Member has a deficit Capital Account at the end of any Fiscal Year
which is in excess of the sum of: (i) the amount such Member is obligated
to
restore pursuant to any provision of this Agreement and (ii) the amount
such Member is deemed to be obligated to restore pursuant to the penultimate
sentences of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5),
each
such Member shall be specially allocated items of Gross Income in the amount
of
such excess as quickly as possible, provided,
that
an
allocation pursuant to this Section 8.02(d)
shall be
made only if and to the extent that such Member would have a deficit Capital
Account in excess of such sum after all other allocations provided for in
this
Section
8.02
have
been made as if Section
8.02(c)
and this
Section
8.02(d)
were not
contained in this Agreement.
SECTION
8.03. Curative
Allocations.
The
allocations set forth in Section
8.02
(the
"Regulatory
Allocations")
are
intended to comply with certain requirements of the Treasury Regulations.
It is
the intent of the Members that, to the extent possible, all Regulatory
Allocations shall be offset either with other Regulatory Allocations or with
special allocations of other items of Company income, gain, loss or deduction
pursuant to this Section
8.03.
18
Therefore,
notwithstanding any other provision of this Article
VIII
(other
than the Regulatory Allocations), the Members shall make such offsetting
special
allocations of Company income, gain, loss or deduction in whatever manner
the
Board of Managers determines appropriate so that, after such offsetting
allocations are made, each Member's Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Member would have had
if the
Regulatory Allocations were not contained in this Agreement and all Company
items were allocated pursuant to this Article
VIII
without
regard to the Regulatory Allocations. In exercising its discretion under
this
Section
8.03,
the
Board of Managers shall take into account future Regulatory Allocations under
Section
8.02
that,
although not yet made, are likely to offset other Regulatory Allocations
previously made under Section
8.02.
SECTION
8.04. Code
Section 704(c) Tax Allocations.
In
accordance with Code Section 704(c) and the Treasury Regulations thereunder,
income, gain, loss, and deduction with respect to any property contributed
to
the capital of the Company shall, solely for tax purposes, be allocated among
the Members so as to take account of any variation between the adjusted basis
of
such property to the Company for federal income tax purposes and its Gross
Asset
Value at the time of its contribution. In the event the Gross Asset Value
of any
Company asset reflected in the Members' Capital Accounts is adjusted pursuant
to
the provisions above, subsequent allocations of income, gain, loss and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and the adjusted
Gross Asset Value of such property as reflected in the Members' Capital Accounts
in the same manner as under Code Section 704(c) and the Treasury Regulations
thereunder. Allocations pursuant to this Section
8.04
are
solely for federal income tax purposes and shall not affect, or in any way
be
taken into account in computing, any Member's Capital Account or share of
Net
Income, Net Losses, or other items, or distributions pursuant to any provision
of this Agreement. Except as otherwise provided in this Agreement, all items
of
Company income, gain, loss, deduction and any other allocations not otherwise
provided for, shall be divided among the Members in the same proportions
as they
share Net Income, Net Losses, or amounts specially allocated pursuant to
Sections
8.03
or
8.04,
as the
case may be, for the Fiscal Year.
SECTION
8.05. Other
Allocation Rules.
(a) Except
as
otherwise provided in Section
8.04
and
Article
X,
for Tax
purposes, each item of income, gain, loss and deduction will, to the extent
appropriate, be allocated among the Members in the same manner as its
correlative item of "book" income, gain, loss or deduction has been allocated
pursuant to the other provisions of this Agreement.
(b) For
purposes of determining the Net Income and Net Losses or any other items
allocable to any period, Net Income and Net Losses and any such other items
shall be determined on a daily, monthly or other basis, as determined by
the Tax
Matters Member using any method that is permissible under Code Section 706
and
the Treasury Regulations thereunder.
19
ARTICLE
IX
ELECTIONS
AND REPORTS
SECTION
9.01. Accounting
Books and Records.
(a) The
Company shall keep on site at its principal place of business each of the
following:
(i) separate
books of account for the Company which shall show a true and accurate record
of
all costs and expenses incurred, all charges made, all credits made and
received, and all income derived in connection with the conduct of the Company
and the operation of its business in accordance with this
Agreement;
(ii) a
current
list of the full name and last known business, residence, or mailing address
of
each Member, both past and present;
(iii) a
copy of
the Certificate of Formation, together with executed copies of any powers
of
attorney pursuant to which any amendment has been executed;
(iv) copies
of
the Company's federal, State, local and foreign income Tax returns and reports,
if any;
(v) copies
of
this Agreement;
(vi) copies
of
any writings permitted or required under Section 18-502 of the Delaware Act
regarding the obligation of a Member to perform any enforceable promise to
contribute cash or property or to perform services as consideration for such
Member's Capital Contribution; and
(vii) any
written consents obtained from Members pursuant to Section 18-302 of the
Delaware Act regarding action taken by Members without a meeting.
(b) The
Company shall use the accrual method of accounting for Tax purposes and shall
use GAAP in the preparation of its financial reports and shall keep its books
and records in accordance with the foregoing.
SECTION
9.02. Reports.
The
Board of Managers shall be responsible for causing the preparation of financial
reports of the Company, including the appointment of the Company's accountants,
and the coordination of financial matters of the Company with the Company's
accountants.
SECTION
9.03. Tax
Elections.
The
taxable year will be the Fiscal Year, unless the Tax Matters Member determines
another taxable year is required in order to comply with applicable laws.
Unless
otherwise provided in this Agreement, the Tax Matters Member will determine
whether to make or revoke any available election pursuant to the Code.
20
SECTION
9.04. Tax
Controversies.
US
Holdings is designated the "Tax
Matters Member"
for the
Company, and in such capacity shall be considered to be the "tax matters
partner" within the meaning of Section 6231 of the Code. The Tax Matters
Member
is authorized and required to represent the Company (at the Company's expense)
in connection with all examinations of the Company's affairs by Tax authorities,
including resulting administrative and judicial proceedings, and to expend
Company funds for professional services and costs associated therewith.
SECTION
9.05. Tax
Status and Returns.
Each of
the parties hereto: (a) recognizes and intends that, for U.S. federal income
tax
purposes, the Company shall be treated as a partnership in which each Member
is
a partner and (b) agrees to refrain from taking or consenting to any action
the
result of which could result in the classification or treatment of the Company
as anything other than a partnership in which each Member is a partner for
U.S.
federal income tax purposes. To the extent that any of the parties hereto
is
required to report any item of income, gain, loss, deduction, or credit relating
to the Company for U.S. federal income tax purposes, such party shall report
such item in a manner consistent with the Company's tax returns and
statements.
ARTICLE
X
DISSOLUTION
AND LIQUIDATION
SECTION
10.01. Dissolution.
(a) The
Company shall be dissolved and its affairs wound up only upon the happening
of
any of the following events (each a "Dissolution
Event"):
(i) the
sale
or other disposition by the Company of all or substantially all of the assets
it
then owns in accordance with the terms of this Agreement; or
(ii) a
Liquidation Event or the Bankruptcy of the Company; or
(iii) the
entry
of a decree of judicial dissolution under Section 18-802 of the Delaware
Act;
(b) Dissolution
of the Company shall be effective on the day on which the event occurs giving
rise to such dissolution, but the Company shall not terminate until the
winding-up of the Company has been completed, the assets of the Company have
been Distributed as provided in Section
10.02
and the
Certificate of Formation shall have been canceled.
SECTION
10.02. Liquidation.
(a) Liquidator.
Upon
the occurrence of a Dissolution Event, the Board of Managers will appoint
a
Person to act as the "Liquidator", and such Person shall act as the Liquidator
unless and until a successor Liquidator is appointed as provided in this
Section
10.02.
21
The
Liquidator will agree not to resign at any time without 30 days' prior written
notice to the Board of Managers. The Liquidator may be removed at any time,
for
or without cause, by notice of removal and appointment of a successor Liquidator
approved by the Board of Managers. Any successor Liquidator will succeed
to all
rights, powers and duties of the former Liquidator. The right to appoint
a
successor or substitute Liquidator in the manner provided in this Section
10.02
will be
recurring and continuing for so long as the functions and services of the
Liquidator are authorized to continue under the provisions of this Agreement,
and every reference in this Agreement to the Liquidator will be deemed to
refer
also to any such successor or substitute Liquidator appointed in the manner
provided in this Section
10.02.
The
Liquidator shall receive reimbursement of its reasonable out-of-pocket expenses
in performing its duties.
(b) Liquidating
Actions.
The
Liquidator will liquidate the assets of the Company and apply and Distribute
the
proceeds of such liquidation, in the following order of priority, unless
otherwise required by mandatory provisions of applicable law:
(i) first,
to
the payment in full of the Company's debts and obligations to its creditors
(including Members) in order of the priority provided by law;
(ii) second,
to the establishment of and additions to such reserves as the Board of Managers
deems reasonably necessary or appropriate; and
(iii) third,
after first giving effect to the allocations described in Section
8.01
through
Section
8.03
and
Section
10.01
above,
first to settle the Capital Accounts of the holders of Membership
Interests.
For
the
avoidance of doubt, the allocations and Distributions provided for in this
Agreement are intended to result in the Capital Account of each Member
immediately prior to the Distribution of the Company's assets pursuant to
this
Section
10.02(b)
being
equal to the amount which such Member would be entitled to in accordance
with
the priority of Distributions under Section
7.01(a).
(c) Distribution
in Kind.
Notwithstanding the provisions of Section
10.02(b)
which
require the liquidation of the assets of the Company, but subject to the
order
of priorities set forth in Section
10.02(b),
if upon
dissolution of the Company the Board of Managers determines that an immediate
sale of part or all of the Company's assets would be impractical or could
cause
undue loss to the Members, the Board of Managers may, in its sole discretion,
defer the liquidation of any assets except those necessary to satisfy Company
liabilities and reserves, and may, in its absolute discretion, Distribute
to the
holders of the Membership Interests, in lieu of cash, as tenants in common
and
in accordance with the provisions of Section
10.02(b),
undivided interests in such Company assets as the Liquidator deems not suitable
for liquidation. Any such Distribution in kind will be subject to such
conditions relating to the disposition and management of such properties
as the
Liquidator deems reasonable and equitable and to any agreements governing
the
operating of such properties at such time. For purposes of any such
Distribution, the Fair Market Value of any property to be distributed shall
be
that value agreed to by a Majority in Interest and a majority of the Board
of
Managers.
22
(d) Time
to Wind Up.
A
reasonable time will be allowed for the orderly winding up of the business
and
affairs of the Company and the liquidation of its assets pursuant to
Section
10.02(b)
in order
to minimize any losses otherwise attendant upon such winding up. Distributions
upon liquidation of the Company (or any Member's interest in the Company)
and
related adjustments will be made by the end of the Fiscal Year of the
Liquidation (or, if later, within 90 days after the date of such liquidation)
or
as otherwise permitted by Treasury Regulation Section
1.704-1(b)(2)(ii)(b).
(e) Termination.
Upon
completion of the Distribution of the assets of the Company as provided in
Section
10.02(b)
hereof,
the Company shall be terminated and the Liquidator shall cause the cancellation
of the Certificate of Formation in the State of Delaware and of all
qualifications and registrations of the Company as a foreign limited liability
company in jurisdictions other than the State of Delaware and shall take
such
other actions as may be necessary to terminate the Company.
ARTICLE
XI
TRANSFER
OF MEMBERSHIP INTERESTS; CONVERSIONS
SECTION
11.01. Restrictions.
Each
Member acknowledges and agrees that such Member shall not Transfer, or create
or
suffer to exist any Encumbrance against, any Membership Interests except
in
accordance with the provisions of this Article XI.
Any
attempted Transfer or Encumbrance in violation of the preceding sentence
shall
be deemed void ab initio
and of
no force or effect whatsoever, and the Company will not record any such Transfer
or Encumbrance on its books or treat any purported transferee as the owner
of
such Membership Interests for any purpose.
SECTION
11.02. General
Restrictions on Transfer.
Notwithstanding anything to the contrary in this Agreement, no transferee
of any
Membership Interests received pursuant to a Transfer shall become a Member
in
respect of or be deemed to have any ownership rights in the Membership Interests
so Transferred unless the purported transferee is admitted as a
Member.
(a) Following
a Transfer of any Membership Interests that is permitted under this Article
XI,
the
transferee of such Membership Interests shall succeed to the Capital Account
associated with such Membership Interests and shall receive allocations and
Distributions hereunder in respect of such Membership Interests. Notwithstanding
the foregoing, Net Income and Net Losses and other items will be allocated
between the transferor and the transferee according to Section 706 of the
Code.
(b) Any
Member who Transfers all of its Membership Interests: (i) shall cease to
be a
Member upon such Transfer, and (ii) shall no longer possess or have the power
to
exercise any rights or powers of a Member of the Company.
23
SECTION
11.03. Procedures
for Transfer.
Subject
in all events to the general restrictions on Transfers contained in this
Article
XI,
, a
Member may Transfer all or any part of its Membership Interests in accordance
with the following conditions:
(a) No
Transfer of Membership Interests may be completed until the prospective
transferee is admitted as a Member of the Company by executing and delivering
to
the Secretary of the Company a Joinder. Upon execution of a Joinder, the
amendment of the Members Schedule by the Secretary of the Company and the
satisfaction of any other applicable conditions, such prospective transferee
shall be admitted as a Member and deemed listed as such on the books and
records
of the Company and thereupon the Company shall reissue the applicable Membership
Interests in the name of such prospective transferee.
(b) The
transferor and transferee shall furnish the Company with the transferee's
taxpayer identification number, sufficient information to determine the
transferee's initial tax basis in the Membership Interest transferred, and
any
other information reasonably necessary to permit the Company to file all
required federal and State tax returns and other legally required information
statements or returns. Without limiting the generality of the foregoing,
the
Company shall not be required to make any distribution otherwise provided
for in
this Agreement with respect to any transferred Membership Interests until
it has
received such information.
SECTION
11.04. Limitations.
Notwithstanding anything to the contrary in this Agreement, no Membership
Interest may be Transferred and the Company may not issue any Membership
Interest unless: (i) such Transfer or issuance, as the case may be, shall
not affect the Company's existence or qualification as a limited liability
company under the Delaware Act, (ii) such Transfer or issuance, as the case
may
be, shall not cause the Company to be classified as other than a partnership
for
United States federal income tax purposes and (iii) such Transfer or issuance,
as the case may be, shall not result in a termination of the Company under
Code
Section 708, unless the Board of Managers determines that any such termination
will not have a material adverse impact on the Members.
ARTICLE
XII
INDEMNIFICATION
SECTION
12.01. Right
to Indemnification .
Subject
to the limitations and conditions as provided in this Article
XII
each
Person (for purposes of this Article
XII,
the
term “Person” shall include only natural persons) who was or is made a party or
is threatened to be made a party to or is involved in any threatened, pending
or
completed action or other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, or any appeal in such a proceeding or any inquiry
or investigation that could lead to such a proceeding (hereafter a “Proceeding”)
, by
reason of the fact that such Person, or a Person of whom he or she is the
legal
representative, is or was a Manager or Officer, or while such Manager or
Officer
is or was serving at the request of the Company as a member, director, manager,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, limited liability
company, joint venture, partnership, trust,
24
sole
proprietorship, employee benefit plan or other enterprise, shall be indemnified
by the Company to the fullest extent permitted by applicable law, as the
same
exists or may hereafter be amended against judgments, penalties (including
excise and similar taxes and punitive damages), fines, settlements and
reasonable expenses (including, without limitation, attorneys' fees) actually
incurred by such Person in connection with such Proceeding and indemnification
under this Article
XII
shall
continue as to a Person who has ceased to serve in the capacity which initially
entitled such Person to indemnity hereunder. It is expressly acknowledged
that
the indemnification provided in this Article
XII
could
involve indemnification for negligence or under theories of strict
liability.
SECTION
12.02. Limitation
on Indemnification.
Subject
to applicable law, notwithstanding any language in this Article
XII
to the
contrary, in no event shall any Person be entitled to indemnification pursuant
to this Article
XII
if it is
established or admitted:
(a)
in
a
final judgment of a court of competent jurisdiction; or
(b) by
such
Person in any affidavit, sworn statement, plea arrangement or other cooperation
with any government or regulatory authority that:
(i) the
Person’s acts or omissions that would otherwise be subject to indemnification
under this Article
XII
were
committed in bad faith or were the result of active and deliberate dishonesty;
or
(ii) such
Person personally gained a profit to which he or she was not legally entitled
with an action or omission that would otherwise be subject to indemnification
pursuant to this Article
XII.
SECTION
12.03. Advancement
of Expenses.
The
right
to
indemnification conferred in this Article
XII
shall
include the right to be paid or reimbursed by the Company the reasonable
expenses incurred by a Person of the type entitled to be indemnified above
who
was, is or is threatened to be made a named defendant or respondent in a
Proceeding in advance of the final disposition of the Proceeding, without
any
determination as to such Person's ultimate entitlement to indemnification
under,
upon receipt of a written affirmation by such Person of such Person's good
faith
belief that such Person has met the standard of conduct necessary for
indemnification under applicable law and this Article
XII
and a
written undertaking by or on behalf of such Person to repay all amounts so
advanced if it shall ultimately be determined that such Person is not entitled
to be indemnified by the Company under this Article
XII
or if
such indemnification is prohibited by applicable law.
SECTION
12.04. Indemnification
of Employees and Agents.
The
Company by adoption of a
resolution by the Board of Managers, may indemnify and
advance expenses to an employee or agent of the Company to the same extent
and
subject to the same conditions under which it may indemnify and advance expenses
to any Manager or Officer under this Article
XII;
and the
Company, by adoption of a resolution by the Board of Managers, may indemnify
and advance expenses to any Person who is or was not a Manager, Officer,
employee
or agent of the Company but who is
or was
serving at the request of the Company as a member, manager, director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic limited liability company, partnership,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against such
Person and incurred by such Person in such a capacity or arising out
of
25
such
Person's status as such to the same extent and subject to the same conditions
that the Company may indemnify and pay any advance expenses to any Manager
or
Officer under this Article
XII.
SECTION
12.05. Appearance
as a Witness.
Notwithstanding any
other
provision of this Article
XII,
the
Company may pay or reimburse expenses incurred by a Manager, Officer, employee,
agent or other Person in connection with his or her appearance as a witness
or
other participation in a Proceeding at a time when he or she is not a named
defendant or respondent in the Proceeding.
SECTION
12.06. Nonexclusivity
of Rights.
The
indemnification
and advancement and payment of expenses provided by this Article
XII
shall
not be deemed exclusive of any other rights to which a Manager, Officer or
other
Person indemnified pursuant to this Article
XII
may have
or hereafter acquire under any law (common or statutory), provision of this
Agreement, any agreement or otherwise.
SECTION
12.07. Contract
Rights.
The
rights granted pursuant to this Article
XII
shall be
deemed to be contract rights, and no amendment, modification or repeal of
this
Article
XII
shall
have the effect of limiting or denying any such rights with respect to actions
taken or Proceedings arising prior to any such amendment, modification or
repeal.
SECTION
12.08. Insurance.
The
Company may purchase and maintain insurance or another arrangement, at its
expense, on behalf of itself or any Person who is or was serving as a Manager,
Officer, employee or agent of the Company, or is or was serving at the request
of the Company as a member, manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, partnership, corporation, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise, against
any liability, expense or loss, whether or not the Company would have the
power
to indemnify such Person against such liability, expense or loss under the
provisions of this Article
XII.
SECTION
12.09. Savings
Clause.
If this
Article
XII
or any
portion of this Agreement shall be invalidated on any ground by any court
of
competent jurisdiction, then the Company shall nevertheless indemnify and
hold
harmless each Manager, Officer or any other Person indemnified pursuant to
this
Article
XII
as to
costs, charges and expenses (including attorneys' fees), judgments, fines
and
amounts paid in settlement with respect to any action, suit or Proceeding,
whether civil, criminal, administrative or investigative, to the fullest
extent
permitted by any applicable portion of this Article
XII
that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
For
purposes of this Article
XII,
the
terms “Company” shall include any predecessor of the Company and any constituent
entity (including any constituent of a constituent) absorbed by the Company
in a
consolidation or merger; the terms “other enterprise” shall include any
corporation, limited liability company, partnership, joint venture, trust
or
employee benefit plan; service “at the request of the Company” shall include
service as an Officer, Manager, Member or employee of the Company which imposes
duties on, or involves
26
services
by, such Officer, Manager, Member or employee with respect to an employee
benefit plan, its participants or beneficiaries; any excise taxes assessed
on a
Person with respect to an employee benefit plan shall be deemed to be
indemnifiable expenses; and action by a Person with respect to an employee
benefit plan which such Person reasonably believes to be in the interest
of the
participants and beneficiaries of such plan shall be deemed to be action
not
opposed to the best interests of the Company.
ARTICLE
XIII
MISCELLANEOUS
SECTION
13.01. Notices
(a) All
notices, requests, claims, demands and other communications under or in
connection with this Agreement shall be given to or made upon: (i) any Member,
at such Member's address set forth on the Members Schedule and (ii) the Company
at the following addresses (or in any case to such other address as the
addressee may from time to time designate in writing to the
sender):
TXU
Energy Company LLC
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(b) All
notices, requests, claims, demands and other communications under or in
connection with this Agreement shall be in writing and shall be deemed
effectively given: (i) upon personal delivery or delivery by courier to the
party to be notified, (ii) three Business Days after deposit with the United
States Post Office, by registered or certified mail, return receipt requested,
postage prepaid and addressed as provided in Section
13.01(a)
and
(iii) one Business Day after receipt of confirmation if such notice is sent
by
facsimile.
SECTION
13.02. No
Action for Partition.
No
Member shall have any right to maintain any action for partition with respect
to
any property of the Company.
SECTION
13.03. Headings
and Sections.
The
descriptive headings in this Agreement are inserted for convenience only
and are
in no way intended to describe, interpret, define, or limit the scope, extent
or
intent of this Agreement or any provision of this Agreement. Unless the context
requires otherwise, all references in this Agreement to Sections, Articles,
Exhibits or Schedules shall be deemed to mean and refer to Sections, Articles,
Exhibits or Schedules of or to this Agreement.
SECTION
13.04. Amendments.
This
Agreement may not be amended, supplemented, modified or restated nor may
any
provision herein be waived without the express unanimous written consent
of the
Board of Managers. In addition, any amendment to this Section
13.04
shall
also require the prior written consent of each Member. Any waiver of any
term or
condition shall not be construed as a waiver of any subsequent breach or
a
subsequent waiver of the same term or condition, or a waiver of any other
term
or condition of this Agreement.
27
The
failure of any Member to assert any of their respective rights hereunder
shall
not constitute a waiver of any of such rights. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights
or
remedies otherwise available.
SECTION
13.05. Binding
Effect.
Except
as otherwise provided in this Agreement, every covenant, term and provision
of
this Agreement shall be binding upon and inure to the benefit of the Members
and
their respective distributees, heirs, legal representatives, executors,
administrators, successors and permitted assigns.
SECTION
13.06. Governing
Law.
This
Agreement will be governed by, and construed in accordance with, the laws
of the
State of Delaware.
SECTION
13.07. Certificate
of Formation.
The
Certificate of Formation is incorporated by reference and hereby made a part
of
this Agreement. In the event of any conflict between the Certificate of
Formation and this Agreement, the provisions of this Agreement shall govern
to
the extent not contrary to law.
SECTION
13.08. Severability.
If any
term or provision of this Agreement is held to be illegal, invalid or
unenforceable under the present or future laws effective during the term
of this
Agreement, such term or provision will be fully severable, and this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
term
or provision had never comprised a part of this Agreement, and the all other
terms and provisions of this Agreement will nevertheless remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
term or provision or by its severance from this Agreement. Upon such
determination that any term or provision is invalid, illegal or unenforceable,
the Members shall negotiate in good faith to modify this Agreement so as
to
effect the original intent of the Members as closely as possible in an
acceptable manner in order that the transactions contemplated by this Agreement
are consummated as originally contemplated to the greatest extent
possible.
SECTION
13.09. Additional
Documents and Acts.
Each
Member agrees to execute and deliver such additional documents and instruments
and to perform such additional acts as may be reasonably necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions
and conditions of this Agreement and the transactions contemplated
hereby.
SECTION
13.10. No
Third Party Beneficiaries.
Except
for the provisions of Article
XII
relating
to indemnification, this Agreement shall be binding upon and inure solely
to the
benefit of the Members and their respective successors and assigns, nothing
herein, express or implied, is intended to or shall confer upon any other
Person
any legal or equitable right, interest, claim or benefit, of any nature
whatsoever, under or on account of this Agreement.
28
IN
WITNESS WHEREOF, the Member has caused this Agreement to be executed by its
officer or other representatives thereunto duly authorized, as of the date
first
above written.
|
TXU
US HOLDINGS COMPANY
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|||
|
Title:
Treasurer & Assistant Treasurer
|
|||
|
TXU
ENERGY HOLDINGS COMPANY
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|||
|
Title:
Treasurer & Assistant Treasurer
|
29
Schedule
A
MEMBERS
SCHEDULE
|
Name,
Address and Facsimile Number of Member
|
Percentage
of Membership Interests Owned
|
|
|
TXU
US Holdings Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
99%
|
|
|
TXU
Energy Holdings Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
1%
|
EXHIBIT
A
FORM
OF JOINDER TO
THIS
JOINDER to the Third Amended and Restated Limited Liability Company Agreement
of
TXU Energy Company LLC, a Delaware limited liability company (the "Company"),
dated
as of September 29, 2006, as amended or restated from time to time, by and
among
and the Members of the Company (the "Agreement"),
is
made and entered into as of _________ by and between the Company and
_______________ ( the "Holder").
Capitalized terms used herein but not otherwise defined shall have the meanings
set forth in the Agreement.
WHEREAS,
on the date hereof, the Holder has acquired Membership
Interests from
_______________ and the Agreement and the Company require the Holder, as
the
holder of such Membership
Interests,
to
become a party to the Agreement, and the Holder agrees to do so in accordance
with the terms hereof.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties of this Joinder hereby agree as follows:
|
1.
|
Agreement
to be Bound.
The Holder hereby: (a) acknowledges that it has received and reviewed
a
complete copy of the Agreement and (b) agrees that upon execution
of this
Joinder, it shall become a party to the Agreement and shall be
fully bound
by, and subject to, all of the covenants, terms and conditions
of the
Agreement as though an original party thereto and shall be deemed,
and is
hereby admitted as, a Member for all purposes thereof and entitled
to all
the rights incidental thereto.
|
|
2.
|
Members
Schedule.
For purposes of the Members Schedule, the address of the Holder
is as
follows:
|
[Name]
[Address]
[Facsimile
Number]
|
3.
|
Governing
Law.
This Agreement and the rights of the parties hereunder shall be
interpreted in accordance with the laws of the State of Delaware,
and all
rights and all remedies shall be governed by such
laws.
|
|
4.
|
Descriptive
Headings.
The descriptive headings of this Joinder are inserted for convenience
only
and do not constitute a part of this
Joinder
|
|
|
||
|
[ ]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|