1
EXHIBIT 4.1.1
LIMITED LIABILITY COMPANY AGREEMENT
OF
WEST PENN FUNDING LLC
This Limited Liability Company Agreement (this "Agreement") of West Penn
Funding LLC (the "Company"), is entered into by ▇▇▇▇▇ ▇. ▇▇▇▇, an individual, as
the sole member (the "Initial Member"). As used in this Agreement, the term
"Member" means the Initial Member, and includes any person or entity admitted as
an additional member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement.
The Initial Member, by execution of this Agreement, hereby forms a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del.C. Section 18-101, et seq.), as amended
from time to time (the "Act"), and hereby agrees as follows:
1. Name. The name of the limited liability company formed hereby is
West Penn Funding LLC.
2. Certificates. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as an authorized person within the
meaning of the Act, shall execute, deliver and file the Certificate of Formation
with the Secretary of State of the State of Delaware. Upon the filing of the
Certificate of Formation with the Secretary of State of the State of Delaware,
his powers as an authorized person shall cease and the Member shall thereafter
be designated as an authorized person within the meaning of the Act. The Member
or an Officer (as hereinafter defined) shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in a jurisdiction in which the Company may
wish to conduct business.
3. Purpose. The Company is formed for the object and purpose of, and
the nature of the business to be conducted and promoted by the Company is,
engaging in any lawful act or activity for which limited liability companies may
be formed under the Act.
4. Powers. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to:
a. acquire by purchase, lease, contribution of property or
otherwise, own, hold, sell, convey, transfer or dispose of any real or personal
property which may be necessary, convenient or incidental to the accomplishment
of the purpose of the Company;
b. act as a trustee, executor, nominee, bailee, director,
officer, agent or in some other fiduciary capacity for any person or entity and
to exercise all of the powers, duties, rights and responsibilities associated
therewith;
2
2
c. take any and all actions necessary, convenient or
appropriate as trustee, executor, nominee, bailee, director, officer, agent or
other fiduciary, including the granting or approval of waivers, consents or
amendments of rights or powers relating thereto and the execution of appropriate
documents to evidence such waivers, consents or amendments;
d. operate, purchase, maintain, finance, improve, own, sell,
convey, assign, mortgage, lease or demolish or otherwise dispose of any real or
personal property which may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
e. borrow money and issue evidences of indebtedness in
furtherance of any or all of the purposes of the Company, and secure the same by
mortgage, pledge or other lien on the assets of the Company;
f. invest any funds of the Company pending distribution or
payment of the same pursuant to the provisions of this Agreement;
g. prepay in whole or in part, refinance, recast, increase,
modify or extend any indebtedness of the Company and, in connection therewith,
execute any extensions, renewals or modifications of any mortgage or security
agreement securing such indebtedness;
h. enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with the Member or any person or entity
affiliated with the Member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the Company;
i. employ or otherwise engage employees, managers, contractors,
advisors, attorneys and consultants and pay reasonable compensation for such
services;
j. enter into partnerships, limited liability companies,
trusts, associations, corporations or other ventures with other persons or
entities in furtherance of the purposes of the Company; and
k. do such other things and engage in such other activities
related to the foregoing as may be necessary, convenient or incidental to the
conduct of the business of the Company, and have and exercise all of the powers
and rights conferred upon limited liability companies formed pursuant to the
Act.
5. Principal Business Office. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
3
3
6. Registered Office. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
7. Registered Agent. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware is
The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
8. Members. The name and the mailing address of the Initial Member
are set forth on Schedule A attached hereto.
9. Limited Liability. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
10. Capital Contributions. The Initial Member is deemed admitted as
the Member of the Company upon its execution and delivery of this Agreement. The
Initial Member shall contribute the amount of cash to the Company as listed on
Schedule A attached hereto.
11. Additional Contributions. The Initial Member is not required to
make any additional capital contribution to the Company. However, a Member may
make additional capital contributions to the Company at any time. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule A of this Agreement.
12. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated to the Member.
13. Distributions. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
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 other applicable
law.
14. Management. In accordance with Section 18-402 of the Act,
management of the Company shall be vested in the Member. The Member shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise, possessed by members of a limited liability company
under the laws of the State of Delaware. The Member has the authority to bind
the Company. The Member may act by written consent.
4
4
15. Officers. The Member may, from time to time as it deems advisable,
appoint officers of the Company (the "Officers") and assign in writing titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 15 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
16. Other Business. The Member may engage in or possess an interest in
other business ventures (unconnected with the Company) of every kind and
description, independently or with others. The Company shall not have any rights
in or to such independent ventures or the income or profits therefrom by virtue
of this Agreement.
17. Exculpation and Indemnification. No Member or Officer shall be
liable to the Company, any other person or entity who has an interest in the
Company for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Member or Officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Member or Officer by this Agreement, except that a
Member or Officer shall be liable for any such loss, damage or claim incurred by
reason of such Member's or Officer's willful misconduct. To the full extent
permitted by applicable law, a Member or Officer shall be entitled to
indemnification from the Company for any loss, damage or claim incurred by such
Member or Officer by reason of any act or omission performed or omitted by such
Member or Officer in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Member or Officer by this Agreement, except that no Member or Officer shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Member or Officer by reason of willful misconduct with respect to such acts
or omissions; provided, however, that any indemnity under this Section 17 shall
be provided out of and to the extent of Company assets only, and no Member shall
have personal liability on account thereof.
18. Assignments. A Member may assign in whole or in part its limited
liability company interest in the Company with the written consent of the
Member. If a Member transfers all of its interest in the Company pursuant to
this Section, the transferee shall be admitted to the Company upon its execution
of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
19. Resignation. A Member may resign from the Company with the written
consent of the Initial Member. If a Member is permitted to resign pursuant to
this Section, an additional member of the Company shall be admitted to the
Company, subject to Section 20, upon its execution of an instrument signifying
its agreement to be bound by
5
5
the terms and conditions of this Agreement. Such admission shall be deemed
effective immediately prior to the resignation, and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
20. Admission of Additional Members. One (1) or more additional
members of the Company may be admitted to the Company with the written consent
of the Member.
21. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound
up upon the first to occur of the following: (i) the written consent of the
Member, (ii) the retirement, resignation or dissolution of the Member or the
occurrence of any other event which terminates the continued membership of the
Member in the Company unless the business of the Company is continued in a
manner permitted by the Act, or (iii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
b. The bankruptcy of the Member will not cause the Member to
cease to be a member of the Company and upon the occurrence of such an event,
the business of the Company shall continue without dissolution.
c. In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs (including the sale of
the assets of the Company in an orderly manner), and the assets of the Company
shall be applied in the manner, and in the order of priority, set forth in
Section 18-804 of the Act.
22. Separability of Provisions. Each provision of this Agreement shall
be considered separable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
23. Entire Agreement. This Agreement constitutes the entire agreement
of the Member with respect to the subject matter hereof.
24. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
25. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
6
6
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the ____ day of May, 1999.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
7
Schedule A
to West Penn Funding LLC Limited Liability Company Agreement
MEMBER
Agreed Value of Percentage
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- --------
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ $1 100%
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇