EXHIBIT 3.119
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LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
OF
CALPINE FREESTONE ENERGY GP, LLC
DATED AS OF
JANUARY 31, 2003
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TABLE OF CONTENTS
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ARTICLE 1 GENERAL TERMS...................................................................... 1
1.1 Limited Liability Company and Disregarded for Tax Purposes.................. 1
1.2 Filing of Certificate....................................................... 1
1.3 Name........................................................................ 1
1.4 Registered Agent and Office................................................. 1
1.5 Term........................................................................ 1
1.6 Purpose..................................................................... 1
1.7 Filings..................................................................... 1
1.8 Definitions and Interpretation.............................................. 2
ARTICLE 2 ECONOMIC PROVISIONS............................................................... 3
2.1 Contributions............................................................... 3
2.2 Loans....................................................................... 3
2.3 Allocation of Profits and Losses............................................ 4
2.4 Distributions............................................................... 4
2.5 Fiscal Year................................................................. 4
ARTICLE 3 MANAGEMENT........................................................................ 4
3.1 Generally................................................................... 4
3.2 Composition of Board; Meetings and Approval Requirements.................... 4
3.3 Matters Requiring Member Approval; Written Consents......................... 5
3.4 Officers.................................................................... 5
3.5 Liability and Indemnification............................................... 6
ARTICLE 4 THE MEMBERS....................................................................... 6
4.1 Register of Members......................................................... 6
4.2 Admission of New Members.................................................... 6
4.3 Withdrawal of Member........................................................ 6
ARTICLE 5 DISSOLUTION AND TERMINATION...................................................... 7
5.1 Events of Dissolution....................................................... 7
5.2 Procedures Upon Dissolution.,............................................... 7
5.3 Termination of Company...................................................... 8
5.4 Continuation of Company..................................................... 8
ARTICLE 6 NATURE OF LLC INTERESTS.......................................................... 8
6.1 LLC Interests Shall Be Securities........................................... 8
6.2 Issuance of Certificates.................................................... 8
6.3 Registered Owner............................................................ 8
ARTICLE 7 MISCELLANEOUS PROVISIONS......................................................... 9
7.1 Amendment................................................................... 9
7.2 Notices..................................................................... 9
7.3 Governing Law............................................................... 9
7.4 Binding Effect.............................................................. 9
7.5 Partial Invalidity.......................................................... 10
7.6 Captions.................................................................... 10
TABLE OF CONTENTS, CONT'D
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7.7 No Rights in Third Parties.................................................. 10
7.8 No Title to Company Property................................................ 10
7.9 Persons Not Named........................................................... 10
SCHEDULE 1 Register of Members
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LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
OF
CALPINE FREESTONE ENERGY GP, LLC
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (the "AGREEMENT") is
executed and entered into by CPN Freestone, Inc., a Delaware corporation, the
sole member of Calpine Freestone Energy GP, LLC, a Delaware limited liability
company (the "COMPANY") as of January 31, 2003. All capitalized terms used but
not otherwise defined herein shall have the meanings set forth in Section 1.8.
ARTICLE 1
GENERAL TERMS
1.1 LIMITED LIABILITY COMPANY AND DISREGARDED FOR TAX PURPOSES.
The Company has been formed as a limited liability company under the LLC Act for
the purposes, and subject to the other provisions, set forth herein. The Company
shall be disregarded as an entity separate from the Member solely for federal
and state tax purposes to the maximum extent permitted by law.
1.2 FILING OF CERTIFICATE. The Member caused a certificate of
formation (the "CERTIFICATE") to be executed and filed with the office of the
Delaware Secretary of State in accordance with the LLC Act on January 29, 2003.
1.3 NAME. The name of the Company shall be Calpine Freestone
Energy GP, LLC.
1.4 REGISTERED AGENT AND OFFICE. The Company shall maintain within
the State of Delaware a registered agent for service of process on the Company
and a registered office in accordance with the provisions of LLC Act.
1.5 TERM. The term of the Company began on the date of filing of
the Certificate with the Secretary of State of the State of Delaware (the
"FORMATION DATE"), and shall continue in perpetuity, unless the Company is
earlier dissolved in accordance with the provisions of Article 5.
1.6 PURPOSE. The purpose of the Company is to develop, construct,
finance, improve, operate and maintain electrical generation facilities, and to
engage in any other activities related or incidental thereto or in anticipation
thereof. The Board may expand or limit the scope of such business as it deems
necessary or appropriate from time to time.
1.7 FILINGS. The Board shall cause to be filed all such
certificates, notices, statements or other instruments, and amendments thereto
under the laws of the State of Delaware and other
applicable jurisdictions as the Board may from time to time deem necessary or
advisable for the operation of the Company.
1.8 DEFINITIONS AND INTERPRETATION.
(a) DEFINITIONS. Unless otherwise required by the context
in which any capitalized term appears, or unless otherwise specifically defined
elsewhere in this Agreement, capitalized terms used in this Agreement shall have
the meanings set forth below.
"AFFILIATE" means, when used with reference to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Person specified.
For purposes of the foregoing, "control," "controlled by" and "under common
control with" with respect to any Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities,
partnership interests or other equity interests, or by contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement, and includes all schedules hereto.
"BOARD" has the meaning set forth in Section 3.1.
"CERTIFICATE" has the meaning set forth in Section 1.2.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"DIRECTOR" has the meaning set forth in Section 3.1.
"FORMATION DATE" has the meaning set forth in Section 1.5.
"GAAP" means U.S. generally accepted accounting principles.
"INDEMNITEE" has the meaning set forth in Section 3.5(b).
"INTEREST" means the entire legal and equitable ownership interest of a
Member in the Company at any particular time.
"LIQUIDATOR" has the meaning set forth in Section 5.2(b).
"LLC ACT" means the Delaware Limited Liability Company Act, as amended
from time to time; provided, however, that if any amendment to the LLC Act, or
any succeeding or successor law, is applicable to the Company only if the
Company has elected to be governed by the LLC Act as so amended or by such
succeeding or successor law, as the case may be, the term "LLC Act" shall refer
to the LLC Act as so amended or to such succeeding or successor law only after
the appropriate election by the Board with the Consent of the Members.
"LLC INTEREST" means the entire legal and equitable ownership interest
of a Member in the Company at any particular time.
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"LLC INTEREST CERTIFICATE" means a certificate in the form of Exhibit A
attached hereto, issued by the Company pursuant to Article 6 that evidences a
Member's interest in the Company.
"MEMBER" means CPN Freestone, Inc. and any other Person admitted as a
member of the Company pursuant to this Agreement, so long as CPN Freestone, Inc.
or such Person, as the case may be, has not ceased to be a member of the Company
hereunder.
"OFFICERS" has the meaning set forth in Section 3.4(a).
"PERSON" means any individual, partnership, corporation, association,
business trust, limited liability company, or other entity.
"TRANSFER" means any sale, assignment, conveyance, encumbrance,
mortgage or pledge by a Member of all or any portion of its Interest, whether
occurring voluntarily or by operation of law.
"UCC" has the meaning set forth in Section 6.1.
"U.S." means the United States of America.
(b) INTERPRETATION. Reference to a given Section or
Schedule is a reference to a Section or Schedule of this Agreement, unless
otherwise specified. The terms "hereof," "herein," "hereto," "hereunder" and
"herewith" refer to this Agreement as a whole. Except where otherwise expressly
provided or unless the context otherwise necessarily requires: (i) reference to
a given agreement, instrument, statute or regulation is a reference to that
agreement, instrument, statute or regulation as modified, amended, supplemented
and restated from time to time, and, as to a statute or regulation, any
successor statute or regulation, (ii) accounting terms have the meanings given
to them by GAAP applied on a consistent basis by the accounting entity to which
they refer, (iii) references to "dollars" or "$" shall mean the lawful currency
of the U.S., (iv) reference to a Person includes its successors and permitted
assigns, (v) references to any term in this Agreement when used in the singular
shall have the same meanings when used in the plural and vice versa, (vi) the
masculine shall include the feminine and neuter, and vice versa, and (vii)
"includes" or "including" means "including, for example and without limitation."
ARTICLE 2
ECONOMIC PROVISIONS
2.1 CONTRIBUTIONS. The Member shall make capital contributions to
the Company as and when required by the Board, but only with the consent of the
Member. Except as set forth in the immediately preceding sentence, the Member
shall not be required to make any capital contribution to the Company, whether
on liquidation of the Company or otherwise.
2.2 LOANS. The Member shall not be required to lend any money to
or for the benefit of the Company without the Member's consent.
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2.3 ALLOCATION OF PROFITS AND LOSSES. For each fiscal year of the
Company, each item of income, gain, deduction and credit of the Company shall be
allocated entirely to the Member, and treated, solely for tax purposes, as
though earned directly by the Member.
2.4 DISTRIBUTIONS. All distributions of cash or property by the
Company shall be made entirely to the Member at such times as the Board
determines in its sole discretion.
2.5 FISCAL YEAR. Unless otherwise determined by the Board, the
fiscal year of the Company shall be the calendar year.
ARTICLE 3
MANAGEMENT
3.1 GENERALLY. The Company shall have a board of directors (the
"BOARD"), comprised of one or more members (each, a "DIRECTOR"), all of whom
shall be appointed by Member. The number of Directors comprising the Board shall
initially be two (2), and shall thereafter be set by the Member from time to
time. The overall management of the Company shall be vested exclusively in the
Board. Except as provided in Section 3.3 or as otherwise provided in this
Agreement, the Member hereby specifically delegates to the Board its rights and
powers to manage and control the business and affairs of the Company in
accordance with the provisions of Section 18-407 of the LLC Act.
3.2 COMPOSITION OF BOARD; MEETINGS AND APPROVAL REQUIREMENTS.
(a) ELECTION AND REMOVAL OF DIRECTORS. Upon election by
the Member, each Director shall hold office until his or her death, disability,
resignation or removal at any time at the pleasure of the Member. If a vacancy
occurs on the Board, the Member shall, as soon as practicable after the
occurrence of such vacancy, elect a successor so that the Board remains fully
constituted at all times.
(b) MEETINGS AND APPROVAL REQUIREMENTS.
(i) REGULAR MEETINGS. Regular meetings of the
Board shall be held as the Board, by vote, may determine and, if so determined,
no notice thereof need be given. Special meetings of the Board shall be held at
the written request of any Director.
(ii) TELEPHONIC MEETINGS. Any meeting of the
Board may be held by conference telephone call or through similar communications
equipment by means of which all Persons participating in the meeting are able to
hear each other. Participation in a telephonic or videographic meeting held
pursuant to this section shall constitute presence in person at such meeting.
(iii) NOTICES. Notices of regularly scheduled
meetings of the Board shall not be required unless the time or place of a
particular regular meeting is other than as set forth in the schedule of annual
meetings previously approved by the Board. Notices of special meetings shall be
required and shall state the place, date and hour of the meeting and the purpose
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or purposes for which the meeting is called. Special meetings shall be held at
the address specified in the notice of such meeting or at such other place as
shall be agreed by the Directors. Notice of a special meeting shall be given to
each Director not less than two (2) nor more than fifteen (15) days before the
date of the meeting. Directors may waive in writing the requirements for notice
before, at or after the special meeting involved. The presence of a Director at
a meeting shall constitute waiver of notice of such meeting unless said Director
expressly states otherwise at the outset of such meeting.
(iv) QUORUM. At each meeting of the Board, the
presence in person or by electronic means, as the case may be, of two (2) of the
Directors shall be necessary to constitute a quorum for the transaction of
business by the Board.
(v) APPROVAL REQUIREMENTS. The Board may act
either through the presence of Directors voting at a meeting or by written
consent without a meeting as described in clause (vi) below. In the case of
actions taken at a meeting, the affirmative vote of a majority of the Directors
present in person or by electronic means, as the case may be, and voting at a
duly held meeting of the Board where a quorum is present shall be necessary for
any action of the Board.
(vi) WRITTEN CONSENTS. Any action required or
permitted to be taken at a meeting of the Board may be taken without a meeting,
without prior notice and without a vote if a consent or consents in writing,
setting forth the action so taken, shall be signed by at least two (2)
Directors. Such consents shall be filed with the minutes of the proceedings of
the Board.
3.3 MATTERS REQUIRING MEMBER APPROVAL; WRITTEN CONSENTS. In
addition to any other approval required by applicable law, this Agreement, or
any other written agreement of the Members, and notwithstanding the provisions
of Section 3.1, the following matters shall require the approval of the Member:
(a) the making of any capital contributions to the
Company;
(b) amendment of this Agreement;
(c) issuance of an LLC Interest Certificate; and
(d) dissolution of the Company pursuant to Section 5.1
(b).
The Member may take such action without a meeting, without prior notice
and without a vote if a consent or consents in writing, setting forth the action
so taken, shall be signed by the Member. An original or copy of any such consent
shall be inserted in the record of the proceedings of the Members.
3.4 OFFICERS. From time to time, the Board shall appoint such
officers ("OFFICERS"), including a secretary (the "SECRETARY"), with such
authority as the Board deems necessary or advisable in connection with the
affairs of the Company. The Officers shall manage the day-to-day affairs of the
Company and shall perform such other duties as may be delegated to them by
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the Board from time to time. The Board shall have the right to remove any
Officer at any time with or without cause.
3.5 LIABILITY AND INDEMNIFICATION.
(a) EXCULPATION OF DIRECTORS. No Director shall be
liable, responsible or accountable in damages or otherwise to the Company or any
of the Members for any act or omission performed or omitted (i) in good faith on
behalf of the Company, (ii) in a manner reasonably believed by such Director to
be within the scope of the authority granted to him or her by this Agreement,
and (iii) in a manner not constituting willful misconduct, fraud, or breach of
fiduciary duty of loyalty.
(b) INDEMNIFICATION OF MEMBER AND DIRECTORS BY THE
COMPANY. The Company shall, solely from assets of the Company and without
recourse to the Member, indemnify, defend and hold harmless the Member and each
Director (each, an "INDEMNITEE"), for any and all claims or threats thereof,
expenses and liabilities or threats thereof (including, without limitation,
reasonable attorneys' fees and costs of investigation and defense relating to
the Company) that such party may incur by reason of being an Indemnitee
(regardless of the disclosure or lack of disclosure of such status) or by virtue
of taking any action pursuant to this Agreement in such capacity unless such
claim, expense or liability is caused by an act or omission performed or omitted
by the Indemnitee in bad faith or in a manner constituting willful misconduct,
fraud, or breach of fiduciary duty of loyalty. Expenses incurred by an
Indemnitee in defense or settlement of any claim that may be subject to
indemnification may be advanced by the Company prior to the final disposition
thereof upon (i) receipt of an undertaking by or on behalf of such Indemnitee to
repay such amount to the extent that it shall be determined ultimately that such
Indemnitee is not entitled to indemnification and (ii) a reasonable
determination that such Indemnitee is able to repay such amounts under such
circumstances, including the provision of such security or assurance of
repayment as reasonably may be requested by the Board.
ARTICLE 4
THE MEMBERS
4.1 REGISTER OF MEMBERS. The Board shall cause the Secretary to
prepare and maintain a register of the Members of the Company, which shall be
kept with the official records of the Company at the principal place of business
of the Company. The register shall record the name and mailing address of each
Member, the date such Person became a Member, and the percentage of the
Interests held by such Member. The initial register shall be in the form
attached hereto as Schedule 1. The Secretary shall enter into the register any
Person who has become a Member in accordance with the provisions of Section 4.2
or Section 4.3.
4.2 ADMISSION OF NEW MEMBERS. A new Member may be admitted to the
Company at the sole discretion of the Member.
4.3 WITHDRAWAL OF MEMBER. Notwithstanding anything to the contrary
herein, the Member shall not withdraw as a member of the Company, and no event
set forth in Section 5.4
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shall cause or be deemed to cause the withdrawal of the Member from the Company.
Any purported withdrawal by the Member shall be null and void.
ARTICLE 5
DISSOLUTION AND TERMINATION
5.1 EVENTS OF DISSOLUTION. The Company shall be dissolved upon the
first to occur of the following:
(a) the written consent of the Member to dissolve the
Company, but only on the effective date of dissolution specified by the Member
in such writing at the time of such approval;
(b) entry of a decree of judicial dissolution under the
LLC Act; or
(c) any other event that causes a dissolution of the
Company because the LLC Act mandates dissolution upon the occurrence of such
other event.
5.2 PROCEDURES UPON DISSOLUTION.
(a) GENERAL. If the Company dissolves, it shall commence
winding up pursuant to the appropriate provisions of the LLC Act and the
procedures set forth in this Section 5.2. Notwithstanding the dissolution of the
Company, prior to the termination of the Company, the business of the Company
shall continue to be governed by this Agreement.
(c) CONTROL OF WINDING UP. The winding up of the Company
shall be conducted under the direction of the Board (the Board in such capacity
hereinafter referred to as the "LIQUIDATOR"); provided, however, that if the
dissolution is caused by entry of a decree of judicial dissolution pursuant to
Section 5.1(d), the winding up shall be carried out in accordance with such
decree.
(c) MANNER OF WINDING UP. The Company shall engage in no
further business following dissolution other than that necessary for the orderly
winding up of the business and distribution of assets. The maintenance of
offices shall not be deemed a continuation of the business for purposes of this
Section 5.2(c). Upon dissolution of the Company, the Liquidator shall determine
the time, manner and terms of any sale or sales of Company property pursuant to
such winding up, consistent with its fiduciary responsibility and having due
regard to the activity and condition of the relevant market and general
financial and economic conditions. Upon completion of winding up of the Company,
the Liquidator shall cause to be filed a certificate of cancellation in
accordance with the LLC Act.
(d) APPLICATION OF ASSETS. In the case of a dissolution
of the Company, the Company's assets shall be applied as follows:
(i) CREDITORS. First, to payment of the
liabilities of the Company owing to third parties (including Affiliates of the
Member) and to the Member. After payment of
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any such known liabilities, the liquidator shall set up such reserves as are
reasonably necessary for any contingent or unforeseen liabilities or obligations
of the Company. Such reserves may be paid over by the Liquidator to an escrow
holder or trustee, to be held in escrow or trust for the purpose of paying any
such contingent or unforeseen liabilities or obligations, and, at the expiration
of such period as the Liquidator may deem advisable, such reserves shall be
distributed to the Member or its assigns in the manner set forth in Section
5.2(d)(ii) below.
(ii) MEMBER. Second, to the Member.
5.3 TERMINATION OF COMPANY. Upon the completion of the liquidation
of the Company and the distribution of all Company assets, the Company's affairs
shall terminate and the Liquidator shall cause to be executed and filed an
appropriate certificate, if required, to such effect in the proper governmental
office or offices, as well as any and all other documents required to effectuate
the termination of the Company.
5.4 CONTINUATION OF COMPANY. Notwithstanding anything to the
contrary set forth in this Agreement, the Company (a) shall not dissolve upon
the bankruptcy, dissolution or dissociation of the Member and (b) shall continue
to exist even with no remaining members.
ARTICLE 6
NATURE OF LLC INTERESTS
6.1 LLC INTERESTS SHALL BE SECURITIES. The LLC Interests shall be
deemed to be "securities" within the meaning of Section 8-102(a)(15) of the
Uniform Commercial Code as in effect from time to time in the State of New York
("UCC"), including for purposes of the grant, pledge, attachment or perfection
of a security interest in the LLC Interests. The law of the State of New York is
hereby designated as the issuer's jurisdiction within the meaning of Section 8-
110(d) of the UCC for purposes of the matters specified therein.
6.2 ISSUANCE OF CERTIFICATES. The Interest in the Company of each
Member shall be evidenced by a LLC Interest Certificate in the form attached
hereto as Exhibit A issued to each such Member. The LLC Interest Certificate
shall state on its face (i) the restrictions of transfer set forth in this
Limited Liability Company Agreement, as applicable, and (ii) that it is subject
to the terms and conditions of this Limited Liability Company Agreement. Subject
to the restrictions set forth in Section 3.3, only the Members may issue a LLC
Interest Certificate, and only upon the execution of the same by the President
and a Vice President of such Members. Evidence of the issuance of the LLC
Interest Certificate shall be recorded in the books of the Company as set forth
in Sections 3.3 and 4.1.
6.3 REGISTERED OWNER. The Company shall be entitled to treat the
registered owner of a LLC Interest Certificate as the owner of such LLC Interest
for all purposes and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such LLC Interest, regardless of whether it
shall have actual or other notice thereof, by a person other than the registered
owner of such certificate.
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ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 AMENDMENT. Except as otherwise provided herein, any amendment
to this Agreement must be in writing and approved by the Member.
7.2 NOTICES. Any notice, demand, offer, or other instrument
required or permitted to be given pursuant to this Agreement shall be in writing
signed by the party giving such notice and shall, to the extent reasonably
practicable, be sent by telecopy, and if not reasonably practicable to send by
telecopy, then by hand delivery, overnight courier, telegram or certified mail
(return receipt requested), to the other parties at the addresses set forth
below:
(a) If to CPN Freestone, Inc., to it at:
c/o Calpine Corporation
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Attention: Legal Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Company, to it at:
c/o Calpine Corporation
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Attention: Legal Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Each party may change the place to which notice shall be sent or delivered or
specify one additional address to which copies of notices may be sent, in either
case by similar notice sent or delivered in like manner to the other parties.
Without limiting any other means by which a party may be able to prove that a
notice has been received by the other party, a notice shall be deemed to be duly
received: (i) if sent by hand, overnight courier or telegram, the date when duly
delivered at the address of the recipient; (ii) if sent by certified mail, the
date of the return receipt; or (iii) if sent by telecopy, upon receipt by the
sender of an acknowledgment or transmission report generated by the machine from
which the telecopy was sent indicating that the telecopy was sent in its
entirety to the recipient's telecopy number.
7.3 GOVERNING LAW. This Agreement shall be governed by, construed,
interpreted and applied in accordance with the laws of the State of Delaware
(excluding any conflict of law rules that would refer the matter to be decided
to the laws of another jurisdiction).
7.4 BINDING EFFECT. This Agreement shall be binding on all
successors and assigns of the Member and inure to the benefit of the respective
successors and permitted assigns of the Member, except to the extent of any
express contrary provision in this Agreement.
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7.5 PARTIAL INVALIDITY. If any term, provision, covenant, or
condition of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions of this Agreement
shall remain in full force and effect and in no way shall be affected, impaired,
or invalidated by reason of such holding.
7.6 CAPTIONS. Titles or captions of Sections or Articles contained
in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe me scope of this
Agreement or the intent of any provision hereof.
7.7 NO RIGHTS IN THIRD PARTIES. The provisions of this Agreement
are for the exclusive benefit of the Member and its successors and permitted
assigns. This Agreement is not intended to benefit or create rights in any other
Person (including any governmental Person), including (a) the Company, (b) any
Person (including any governmental Person) to whom any debts, liabilities or
obligations are owed by the Company, or any Member or (c) any liquidator,
trustee or creditor acting on behalf of the Company. No such creditor or any
other Person (including any governmental Person) shall have any rights under
this Agreement, including rights with respect to enforcing the payment of
capital contributions, unless specifically set forth herein or therein.
7.8 NO TITLE TO COMPANY PROPERLY. All property owned by the
Company, whether real, personal or mixed, and whether tangible or intangible,
shall be deemed to be owned by the Company as an entity, and no Member,
individually, shall have any ownership interest or title in such property except
indirectly through such Member's ownership of Interests.
7.9 PERSONS NOT NAMED. Unless named in this Agreement, or unless
admitted to the Company as a member by consent of the Member, no Person shall be
considered a Member. The Company and the Member need deal only with Persons so
named or admitted as Members; provided, however, that any distribution by the
Company to the Person shown on the Company records as a Member or its legal
representative or the assignee of the right to receive Company distributions as
herein provided, shall relieve the Company and the Member of all liability to
any other Person who may be interested in such distribution by reason of any
other assignment by the Member, bankruptcy of the Member or any other reason.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, CPN Freestone, Inc., by its duly authorized officer
has executed this Limited Liability Operating Agreement as of the date first
above-written.
CPN FREESTONE, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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NAME: ▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: EXECUTIVE VICE PRESIDENT
Schedule 1 to Limited
Liability Company Operating Agreement
REGISTER OF MEMBERS
OF
CALPINE FREESTONE ENERGY GP, LLC
Name and Mailing Date Admitted Percentage of
Address of Member as Member Interests Held
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CPN Freestone, Inc. January 31, 2003 100%
c/o Calpine Corporation
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EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT
FORM OF LLC INTEREST CERTIFICATE
LLC INTEREST CERTIFICATE
CALPINE FREESTONE ENERGY GP, LLC
A DELAWARE LIMITED LIABILITY COMPANY
NO.____________
THIS CERTIFIES THAT________________________________________________ is
the owner of a fully paid and non-assessable___% LLC Interest (as defined in the
LLC Agreement referred to herein) in the above Limited Liability Company and
certain other rights in connection therewith in the above Limited Liability
Company, as set forth in the Limited Liability Company Operating Agreement of
Calpine Freestone Energy GP, LLC, dated as of January 31, 2003, as amended,
modified and supplemented from time to time (the "LLC Agreement"). Such LLC
Interest is not transferable except as provided in the LLC Agreement and is
otherwise subject to the terms and conditions of the LLC Agreement.
THIS CERTIFICATE is not negotiable or transferable except in connection
with the transfer of the limited liability company interest evidenced hereby as
provided in the LLC Agreement; provided, however, that this Certificate, when
coupled with an assignment in the form set forth on the reverse hereof or
otherwise sufficient to convey an interest in the Company, duly executed in
blank or assigned to the named assignee, may be deposited with the Member and
shall constitute direction by the registered owner of this Certificate to such
Member to register the change of ownership of the limited liability company
interest evidenced hereby to such assignee and to issue a new Certificate
reflecting such change of ownership to such assignee. The LLC Interest evidenced
by this Certificate shall be deemed to be a security within the meaning of
Section 8-102(a)(15) of the Uniform Commercial Code as in effect from time to
time in the State of New York, including for purposes of the grant, pledge,
attachment or perfection of a security interest in the LLC Interest.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
signed by the duly authorized officers of its sole Member and the issuance
recorded in its limited liability company books this______day of
____________________,______________.
CPN Freestone, Inc.,
a Delaware corporation, its sole Member
By:_________________________________
Name:_______________________________
Title:______________________________
By:_________________________________
Name:_______________________________
Title:______________________________
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE OFFERED AND SOLD ONLY
IF SO REGISTERED AND QUALIFIED OR IF AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION EXISTS.
(REVERSE OF CERTIFICATE)
ASSIGNMENT OF LLC INTEREST
FOR VALUE RECEIVED, the undersigned (the "Assignor") hereby assigns,
conveys, sells and transfers unto
______________________________________ _______________________________
(Please insert taxpayer identification (Please print name and address)
number of Assignee)
all rights and interest of the Assignor in________________LLC Interest
represented by the within Certificate and irrevocably constitutes and
appoints_________________, a Delaware limited liability company (the "Company")
as its attorney-in-fact with full power of substitution in the premises to
transfer the same on the books of the Company.
Dated:____________ By:_____________________________
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE OFFERED AND SOLD ONLY
IF SO REGISTERED AND QUALIFIED OR IF AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION EXISTS.