EXHIBIT 3.114
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
OF
DELTA ENERGY CENTER, LLC
Dated as of
April 5, 2001
TABLE OF CONTENTS
Page
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ARTICLE 1 GENERAL TERMS ........................................................... 1
1.1 Name ............................................................. 1
1.2 Registered Agent and Office ...................................... 1
1.3 Term ............................................................. 2
1.4 Purpose .......................................................... 2
1.5 Filings .......................................................... 2
1.6 Definitions and Interpretation ................................... 2
ARTICLE 2 CAPITALIZATION .......................................................... 6
2.1 Capital Accounts ................................................. 6
2.2 Effective Time Capital Contributions ............................. 7
2.3 Additional Contributions ......................................... 7
2.4 Loans ............................................................ 7
2.5 No Interest on Capital Account Balances .......................... 8
2.6 Withdrawal ....................................................... 8
ARTICLE 3 PROFIT AND LOSS ALLOCATIONS ............................................. 8
3.1 Introduction ..................................................... 8
3.2 Allocations ...................................................... 8
3.3 Tax Allocations .................................................. 10
ARTICLE 4 DISTRIBUTIONS ........................................................... 11
4.1 Generally ........................................................ 11
4.2 Liquidating Distributions ........................................ 11
4.3 Withholding ...................................................... 11
ARTICLE 5 MANAGEMENT .............................................................. 12
5.1 Generally ........................................................ 12
5.2 Composition of Board; Meetings and Approval Requirements ......... 12
5.3 Matters Requiring Member Approval ................................ 13
5.4 Member Meeting and Approval Procedures ........................... 14
5.5 Officers ......................................................... 14
5.6 Liability and Indemnification .................................... 14
5.7 Company Funds .................................................... 15
ARTICLE 6 ACCOUNTING AND RECORDS; TAX MATTERS ..................................... 15
6.1 Fiscal Year ...................................................... 15
6.2 Method of Accounting ............................................. 15
6.3 Books and Records and Inspection ................................. 16
6.4 Tax Matters ...................................................... 16
ARTICLE 7 THE MEMBERS ............................................................. 16
7.1 Register of Members .............................................. 16
7.2 Admission of New Members Other than by Transfer .................. 17
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7.3 Transfers of Interests ........................................... 17
ARTICLE 8 DISSOLUTION AND TERMINATION ............................................. 17
8.1 No Termination ................................................... 17
8.2 Events of Dissolution ............................................ 17
8.3 Procedures Upon Dissolution ...................................... 17
8.4 Termination of Company ........................................... 18
ARTICLE 9 NATURE OF INTERESTS ..................................................... 18
9.1 Interests Shall Be Securities .................................... 18
9.2 Issuance of Certificates ......................................... 19
9.3 Registered Owner ................................................. 19
ARTICLE 10 MISCELLANEOUS PROVISIONS ............................................... 19
10.1 Disclaimer of Agency ............................................. 19
10.2 Amendment ........................................................ 19
10.3 Notices .......................................................... 19
10.4 Consequential Damages ............................................ 20
10.5 Counterparts ..................................................... 21
10.6 Governing Law .................................................... 21
10.7 Binding Effect ................................................... 21
10.8 Partial Invalidity ............................................... 21
10.9 Captions ......................................................... 21
10.10 No Rights in Third Parties ....................................... 21
10.11 No Title to Company Property ..................................... 21
10.12 Further Assurances; Additional Documents ......................... 21
10.13 Persons Not Named ................................................ 22
SCHEDULE 1 Register of Members
EXHIBIT A Form of LLC Interest Certificate
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
DELTA ENERGY CENTER, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING
AGREEMENT (the "AGREEMENT"), is dated as of April 5,2001, by and between BEn DEC
Holdings, LLC, a Delaware limited liability company ("BEn MEMBER"), and CPN
Delta Holdings LLC, a Delaware limited liability company ("CALPINE MEMBER"),
with reference to the following:
RECITALS
A. Delta Energy Center, LLC, a Delaware limited liability company
(the "COMPANY"), was formed by the filing of a Certificate of Formation (the
"CERTIFICATE") with the Secretary of State of the State of Delaware on November
12,1999.
B. Prior to the Effective Time (as defined below), BEn Member was
the sole member of the Company.
C. Calpine Member was admitted to the Company immediately prior to
the Effective Time, and Calpine Member and BEn Member (collectively, the
"MEMBERS") entered into that certain Limited Liability Company Operating
Agreement of Delta Energy Center, LLC, as of the Effective Time (the "ORIGINAL
LLC AGREEMENT").
D. The Members desire to amend, restate and supercede in its
entirety the Original LLC Agreement, and enter into this Agreement to provide
for the management of the affairs of the Company and the conduct of its
business.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, desiring to be
legally bound, hereby amend and restate the Original LLC Agreement as follows:
ARTICLE 1
GENERAL TERMS
1.1 NAME. The name of the Company shall be Delta Energy Center, LLC.
1.2 REGISTERED AGENT AND OFFICE. The name of the registered agent for
service of process on the Company within the State of Delaware, and the address
of such registered agent and the address of the registered office of the Company
within the State of Delaware shall be c/o The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.3 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 until December 31,2040, unless the Company is earlier
dissolved in accordance with the provisions of Article 8.
1.4 PURPOSE. The purpose of the Company is to develop, finance, own,
operate and otherwise deal with the Delta Energy Center project located in
Pittsburg, California, and to engage in any other activities related or
incidental thereto or in anticipation thereof.
1.5 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.
1.6 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.
"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:
(a) 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
the penultimate sentence of Treasury Regulation sections 1.704-2(g)(1) and
1.704-2(i)(5) (relating to allocations attributable to nonrecourse debt); and
(b) such Capital Account shall be deemed to be decreased by the
items described in Treasury Regulation sections 1.704-1(b)(2)(ii)(d)(4), (5) and
(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulation section 1.704-1 (b)(2)(ii)(d)
and shall be interpreted and applied consistently therewith.
"AFFILIATE" means when used with reference to any 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 exhibits and schedules hereto.
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"BEn MEMBER" has the meaning set forth in the preamble to this
Agreement.
"BOARD" has the meaning set forth in Section 5.1.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York or San Francisco, California
are required or authorized by law or regulation to close.
"CALPINE MEMBER" has the meaning set forth in the preamble to this
Agreement.
"CAPITAL ACCOUNT" has the meaning set forth in Section 2.1.
"CARRYING VALUE" means, with respect to any asset of the Company,
the asset's adjusted basis as of the relevant date for U.S. Federal income tax
purposes, except as follows:
(a) the initial Carrying Value of any asset contributed by a Member
to the Company shall be the gross fair market value of such asset as determined
by the Members or the Board;
(b) the Carrying Values of all Company assets (including intangible
assets such as goodwill) shall be adjusted at the election of the Board to equal
their respective fair market values (determined on a gross basis) as determined
by the Members or the Board as of 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, within the meaning of Treasury Regulation section
1.704-1(b)(2)(iv)(f)(5)(i);
(ii) the distribution by the Company to a Member of more than
a de minimis amount of money or Company property 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)(iv)(f)(5)(ii); and
(c) if the Carrying Value of an asset has been determined or
adjusted pursuant to clause (a) or (b) above, such Carrying Value thereafter
shall be adjusted by the Depreciation taken into account with respect to such
asset for purposes of computing Profits and Losses and other items allocated
pursuant to Section 3.2.
The foregoing definition of Carrying Value is intended to comply with the
provisions of Treasury Regulation Section 1.704-1(b)(2)(iv) and shall be
interpreted and applied consistently therewith.
"CERTIFICATE" has the meaning set forth in the recitals to this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
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"COMPANY" has the meaning set forth in the recitals to this
Agreement.
"CONSENT" means the prior written consent of the indicated party
(including the Board, as applicable) to the action requested, or the affirmative
vote of the required parties to the extent an action is approved pursuant to
Section 5.4(a) at a meeting of the Members.
"DEPRECIATION" means for each fiscal year or part thereof, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable for U.S. Federal income tax purposes with respect to an asset for such
year or other period, except that if the Carrying Value of an asset differs from
its adjusted basis for income tax purposes at the beginning of such year,
Depreciation shall be an amount that bears the same ratio to such Carrying Value
as the income tax depreciation, amortization or other cost recovery deduction
for such year bears to such adjusted tax basis; provided, however, that if the
income tax depreciation, amortization or other cost recovery deduction for such
year is zero. Depreciation shall be determined with reference to such Carrying
Value using any reasonable method agreed to by or under the direction of the
Board.
"DIRECTOR" has the meaning set forth in Section 5.1.
"EFFECTIVE TIME" means the time on August 8,2000 at which the
Original LLC Agreement was executed and delivered by the Members.
"FORMATION DATE" has the meaning set forth in Section 1.3.
"GAAP" means U.S. generally accepted accounting principles.
"INDEMNITEE" has the meaning set forth in Section 5.6(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 8.3{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 CERTIFICATE" means a certificate in the form of
Exhibit A attached hereto, issued by the Company pursuant to Article 9 that
evidences a Member's Interest in the Company.
"MEMBER" means BEn Member, Calpine Member and any other Person
admitted as a member of the Company pursuant to this Agreement.
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"ORIGINAL LLC AGREEMENT" has the meaning set forth in the recitals
to this Agreement.
"PERSON" means any individual, partnership, corporation,
association, business trust, limited liability company, or other entity.
"PROFITS" and "LOSSES" means, for each fiscal year or part thereof,
the Company's taxable income or loss for such year determined in accordance with
Code section 703(a) (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code section 703(a)(1)
shall be included in taxable income or loss) with the following adjustments:
(a) any income of the Company that is exempt from U.S. Federal
income tax shall be added to such taxable income or loss;
(b) any expenditures of the Company described in Code section
705(a)(2)(B) or treated as such pursuant to Treasury Regulation section
1.704-1(b)(2)(iv)(i) shall be subtracted from such taxable income or loss;
(c) Depreciation for such fiscal year shall be taken into account in
lieu of the depreciation, amortization and other cost recovery deductions taken
into account in computing such taxable income or loss;
(d) gain or loss resulting from any disposition of Company property
with respect to which gain or loss is recognized for U.S. Federal income tax
purposes shall be computed with reference to the Carrying Value of the property
disposed of, rather than the adjusted tax basis of such property;
(e) if any property is distributed in kind to any Member, the
difference between its fair market value and its Carrying Value at the time of
distribution shall be treated as Profit or Loss, as the case may be, recognized
by the Company;
(f) such taxable income or loss shall not be deemed to include items
of income, gain, loss, deduction and Code section 705(a)(2)(B) expenditures
allocated pursuant to Sections 3.2(b)(i)(A), 3.2(b)(i)(B), 3.2(b)(i)(C) or
3.2(b)(i)(D) (relating to allocations caused by the occurrence of deficit
Capital Account balances or the presence of nonrecourse debt); and
(g) the amount of any adjustment to the Carrying Value of any
Company asset pursuant to clause (c) of the definition of "Carrying Value"
herein shall be taken into account as Profit or LosS from the disposition of
such asset as a Capital Event.
"SHARING RATIO" means, unless otherwise agreed by all Members, fifty
percent (50%) for each of BEn Member and Calpine Member.
"TAX MATTERS PARTNER" has the meaning set forth in Section 6.4(b).
"TAX REGULATORY ALLOCATIONS" has the meaning set forth in Section
3.2(b)(1)(F).
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"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.
"TREASURY REGULATIONS" means the regulations issued by the Treasury
Department pursuant to the Code.
"UCC" has the meaning set forth in Section 9.1.
"U.S." means the United States of America.
(b) INTERPRETATION. Reference to a given Section, Subsection,
Exhibit or Schedule is a reference to a Section, Subsection, Exhibit 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
CAPITALIZATION
2.1 CAPITAL ACCOUNTS.
(a) ESTABLISHMENT. A separate capital account (a "CAPITAL ACCOUNT")
shall be maintained for each Member.
(b) CAPITAL ACCOUNT BALANCES. The Capital Account balance of each
Member immediately after the Formation Date shall be equal to the amount for
such Member set forth in Section 2.2, and such Capital Account shall thereafter
be further adjusted with respect to subsequent events as follows:
(i) increased by:
(A) the aggregate amount of such Member's cash
contributions to the Company;
(B) the Carrying Value of property contributed by such
Member to the Company, net of liabilities secured by such property that the
Company is considered to assume, or take subject to, under Code section 752; and
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(C) Profits and items of income and gain allocated to
such Member pursuant to Section 3.2: and
(ii) decreased by:
(A) cash distributions to such Member from the Company;
(B) the Carrying Value of property distributed in kind
to such Member, net of liabilities secured by such property that such Member is
deemed to assume, or take subject to, under Code section 752; and
(C) Losses and items of loss or deduction allocated to
such Member pursuant to Section 3.2.
(c) INTENT TO COMPLY WITH TREASURY REGULATIONS. The foregoing
provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
section 1.704-1 (b), and shall be interpreted and applied in a manner consistent
with such regulation. To the extent such provisions are inconsistent with such
regulation or are incomplete with respect thereto, the provisions in this
Agreement relating to the maintenance of Capital Accounts shall be amended (with
the Consent of the Members, which Consent shall not be unreasonably withheld) in
such manner as, in the opinion of independent recognized tax counsel for the
Company, is necessary or desirable, taking into account the economic interests
of the Members as a whole and all other relevant factors, to avoid or reduce
such inconsistency or incompleteness to the extent possible without materially
changing the amounts that otherwise would be distributable to any Member
pursuant to this Agreement.
2.2 EFFECTIVE TIME CAPITAL CONTRIBUTIONS. The Members have made capital
contributions to the Company as of the Effective Time, and shall receive Capital
Account credits therefor in equal amounts as determined by the Members.
2.3 ADDITIONAL CONTRIBUTIONS. The Members shall make capital contributions
to the Company as and when required by the Board, provided that the Board shall
make capital calls of the Members, and the Members shall be required to make
capital contributions to the Company, only in accordance with procedures to be
established by the Members by agreement between them from time to time. Except
as set forth in the immediately preceding sentence, no Member shall be required
to make any capital contribution to the Company on or after the Formation Date,
whether on liquidation of the Company, by reason of a deficit Capital Account
balance, or otherwise. A Member may, with the Consent of the Board, make
additional capital contributions to the Company, but no change in the Sharing
Ratio of such Member shall result from any such contribution without the Consent
of all Members.
2.4 LOANS. Except as otherwise agreed between the Members from time to
time or with the Consent of the Board, no Member shall be required or permitted
to lend any money to or for the benefit of the Company.
2.5 NO INTEREST ON CAPITAL ACCOUNT BALANCES. No Member shall be entitled
to receive any interest on the balance in its Capital Account.
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2.6 WITHDRAWAL. No Member may withdraw as a member of the Company without
the Consent of the non-withdrawing Member.
ARTICLE 3
PROFIT AND LOSS ALLOCATIONS
3.1 INTRODUCTION. Article 3 generally sets forth the rules for allocations
to the Members. Section 3.2 sets forth the allocations of Profits. Losses and
similar items, determined in accordance with the method of accounting set forth
in Section 6.2, which is based on U.S. Federal income tax principles as adjusted
by the allocation rules set forth in Treasury Regulation sections 1.704-1(b) and
1.704-2, rather than in accordance with either GAAP or the method used in filing
the Company's U.S. Federal income tax return. Section 3.3 sets forth the manner
in which items of income, gain, loss, deduction, credits and basis therefor will
be allocated to the Members for income tax purposes to the extent such items may
be allocated differently from the allocations referred to in the preceding
sentence.
3.2 ALLOCATIONS. Section 3.2(a) sets forth the general rule for Profit or
Loss allocations to the Members. Section 3.2(b) sets forth various special rules
that modify or clarify the general rules of Section 3.2(a).
(a) GENERAL RULE. Profits and Losses of the Company shall be
allocated to the Members in accordance with their Sharing Ratios.
(b) SPECIAL RULES. Notwithstanding the general allocation rule set
forth in Section 3.2(a), the following special allocation rules shall apply
under the circumstances described therein.
(i) DEFICIT CAPITAL ACCOUNT AND NONRECOURSE DEBT RULES. The
special rules in this Section 3.2(b)(i) apply, in the following order, to take
into account the possibility of Members having deficit Capital Account balances
for which they are not economically responsible and the effect of the Company
incurring nonrecourse debt.
(A) MINIMUM GAIN CHARGEBACK. If there is a net decrease
in minimum gain during any fiscal year of the Company, each Member shall be
allocated items of income and gain for such year (and, if necessary, for
subsequent years) equal to such Member's share of the net decrease in minimum
gain within the meaning of Treasury Regulation section 1.704-2(g)(2), except to
the extent not required by Treasury Regulation section 1.704-2(f). To the extent
that this Section 3.2(b)(i)(A) is inconsistent with Treasury Regulation section
1.704-2(f) or incomplete with respect to such regulation, the minimum gain
chargeback provided for herein shall be applied and interpreted in accordance
with such regulation.
(B) MEMBER MINIMUM GAIN CHARGEBACK. If there is a net
decrease in Member nonrecourse debt minimum gain attributable to any Member
nonrecourse debt during any Company year, within the meaning of Treasury
Regulation section 1.704-2(i)(3), each Member who has a share of the Member
nonrecourse debt minimum gain attributable to such Member nonrecourse debt,
determined in accordance with Treasury Regulation section 1.704-2(i)(5), shall
be allocated items of income and gain for such year (and, if necessary,
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subsequent years) equal to such Member's share of the net decrease in Member
nonrecourse debt minimum gain, except to the extent not required by Treasury
Regulation section 1.704-2(i)(4). To the extent that this Section 3.2(b)(i)(B)
is inconsistent with Treasury Regulation section 1.704-20(i) or incomplete with
respect to such regulation, the Member nonrecourse debt minimum gain chargeback
provided for herein shall be applied and interpreted in accordance with such
regulation.
(C) LIMITATION ON LOSS ALLOCATIONS. The Losses allocated
to any Member pursuant to Section 3.2(a) with respect to any year shall not
exceed the maximum amount of Losses that can be so allocated without causing
such Member to have an Adjusted Capital Account Deficit at the end of such year.
All Losses in excess of the limitation set forth in this Section 3.2(b)(i)(C)
shall be allocated as follows and in the following order of priority:
(1) first, to those Members who will not be
subject to this limitation, in proportion to their Sharing Ratios; and
(2) second, any remaining amount to the Members
in the manner required by the Code and Treasury Regulations.
(D) DEFICIT ACCOUNT CHARGEBACK AND QUALIFIED INCOME
OFFSET. If any Member has an Adjusted Capital Account Deficit at the end of any
year, including an Adjusted Capital Account Deficit for such Member caused or
increased by an adjustment, allocation or distribution described in Treasury
Regulation sections 1.704-1(b)(2)(ii)(d)(4),(5) or (6), such Member shall be
allocated items of income and gain (consisting of a pro rata portion of each
item of Company income, including gross income and gain) in an amount and manner
sufficient to eliminate such Adjusted Capital Account Deficit as quickly as
possible.
(E) MEMBER NONRECOURSE DEDUCTIONS. Any Member
nonrecourse deductions for any year or other period shall be allocated to the
Member who bears the economic risk of loss with respect to the Member
nonrecourse debt to which such Member nonrecourse deductions are attributable in
accordance with Treasury Regulation section 1.704-2(i).
(F) CURATIVE ALLOCATIONS. The allocations provided for
in Section 3.2(b)(i)(A), (C) and (D) above (the "TAX REGULATORY ALLOCATIONS"),
will not be consistent with the manner in which the Members intend to divide
Company Profits, Losses and similar items. Accordingly, Profits, Losses and
other items will be reallocated among the Members (in the same year, and to the
extent necessary, in subsequent years) in a manner consistent with Treasury
Regulation section 1.704-1(b) and 1.704-2 so as to prevent the Tax Regulatory
Allocations from distorting the manner in which Company Profits, Losses and
other items are intended to be allocated among the Members pursuant to Section
3.2(a).
(G) CHANGE IN REGULATIONS. If the Treasury Regulations
incorporating the Tax Regulatory Allocations are hereafter changed or if new
Treasury Regulations are hereafter adopted, and such change or new regulations,
in the opinion of independent recognized tax counsel for the Company, make it
necessary to revise the Tax Regulatory Allocations or provide further special
allocation rules in order to avoid a significant
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risk that a material portion of any allocation set forth in this Article 3 would
not be respected for U.S. Federal income tax purposes, this Agreement shall be
amended (with the Consent of all Members, which Consent shall not be
unreasonably withheld) in such a manner as, in the opinion of such counsel, is
necessary or desirable, taking into account the economic interests of the
Members as a whole and all other relevant factors, to avoid or reduce
significantly such risk to the extent possible without materially changing the
amounts that otherwise would be distributable to any Member pursuant to this
Agreement.
(ii) CHANGE IN MEMBERS' INTERESTS. If there is a change in any
Member's share of the Company's Profits, Losses or other items during any year
(whether by reason of a transfer of a Member's interest or otherwise),
allocations among the Members shall be made in accordance with their interests
in the Company from time to time during such year in accordance with Code
section 706, using the closing-of-the-books method, except that depreciation,
amortization and similar items shall be deemed to accrue ratably on a daily
basis over the entire year during which the corresponding asset is owned by the
Company for the entire year, and over the portion of a year after such asset is
placed in service by the Company if such asset is placed in service during the
year.
(iii) NONRECOURSE DEDUCTIONS AND NONRECOURSE DEBT SHARING. For
purposes of this Agreement, the Members shall be deemed to be allocated
nonrecourse deductions, within the meaning of Treasury Regulation section
1.704-2, in proportion to their Sharing Ratios. Solely for purposes of
determining a Member's proportionate share of the "excess nonrecourse
liabilities" of the Company within the meaning of Treasury Regulation section
1.752-3(a)(3), the Members' interests in Company profits are their Sharing
Ratios.
3.3 TAX ALLOCATIONS.
(a) GENERALLY. Except as set forth in Section 3.3(b), allocations
for tax purposes of items of income, gain, loss and deduction, and credits and
basis therefor, shall be made in the same manner as allocations as set forth in
Section 3.2. Allocations pursuant to this Section 3.3 are solely for purposes of
U.S. Federal, state, local and foreign income taxes and shall not affect, or in
any way be taken into account in computing, any Member's Capital Account or
share of Profits, Losses, other items or distributions pursuant to any provision
of this Agreement.
(b) SPECIAL RULES.
(i) ELIMINATION OF BOOK/TAX DISPARITIES. If any Company
property has a Carrying Value different from its adjusted tax basis to the
Company for U.S. Federal income tax purposes (whether by reason of the
contribution of such property to the Company, the revaluation of such property
hereunder, or otherwise), allocations of taxable income, gain, loss and
deduction under this Section 3.3 with respect to such asset shall take account
of any variation between the adjusted tax basis of such asset for U.S. Federal
income tax purposes and its Carrying Value in the same manner as under Code
section 704(c) or the principles set forth in Treasury Regulation section
1.704-l(b)(2)(iv)(g), as the case may be, using the remedial method set forth in
Treasury Regulation section 1.704-3(d), unless each of the Members Consents to
the use of a different method.
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(ii) ALLOCATION OF ITEMS AMONG MEMBERS. Each item of income,
gain, loss, deduction and credit and all other items governed by Code section
702(a) shall be allocated among the Members in proportion to the allocation of
Profits, Losses and other items to such Members hereunder, provided that any
gain recognized from any disposition of a Company asset which is treated as
ordinary income because it is attributable to the recapture of any depreciation
or amortization shall be allocated among the Members in the same ratio as the
prior allocations of Profits. Losses or other items that included such
depreciation or amortization, but not in excess of the gain otherwise allocable
to each such Member.
ARTICLE 4
DISTRIBUTIONS
4.1 GENERALLY. From time to time, as and when determined by the Board, the
Company shall make distributions to the Members in accordance with their Sharing
Ratios from funds legally available for such purpose.
4.2 LIQUIDATING DISTRIBUTIONS. Distributions to the Members of cash or
property arising from a liquidation of the Company shall be made in accordance
with the Capital Account balances of the Members, as provided in Section
8.3(d)(ii).
4.3 WITHHOLDING, The Company shall comply with the withholding
requirements of the laws of any taxing jurisdiction to which any Member is
subject and shall timely remit amounts withheld to, and timely file required
forms with, the applicable jurisdictions, but only to the extent the Company
knows or reasonably should know (including by virtue of being notified by such
Member) that a Member is subject to such withholding. To the extent the Company
is required to withhold and pay over any amounts to any taxing authority with
respect to distributions or allocations to any Member, the amount withheld shall
be treated as a distribution in the amount of the withholding to that Member on
the date the payment is remitted. In the event of any claimed overwithholding, a
Member shall have no right against the Company or any other Member. If the
amount of withholding tax paid by the Company was not withheld from actual
distributions, the Company may, at its option, (i) require the Member to
reimburse the Company for the amount of such withholding, or (ii) reduce any
subsequent distributions to such Member by the amount of such withholding. Each
Member shall furnish the Company with any representations and forms as shall
reasonably be requested by the Company to assist it in determining the extent
of, and in fulfilling, its withholding obligations. Each Member shall indemnify
and hold harmless the Company and all other Members from and against any and all
liabilities, obligations, damages, deficiencies and expenses (including
reasonable legal and accounting fees) resulting from any failure of the Company
to withhold taxes on distributions or allocations to such Member, unless such
failure to withhold was the result of willful malfeasance or gross negligence on
the part of the Company.
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ARTICLE 5
MANAGEMENT
5.1 GENERALLY. The Company shall have a board of directors (the "BOARD"),
comprised of an even number of members (each, a "DIRECTOR"), one-naif of whom
shall be appointed by BEn Member and one-half of whom shall be appointed by
Calpine Member. The number of Directors comprising the Board shall be set by the
Members from time to time. The management of the Company shall be vested
exclusively in the Board, which may from time to time by resolution delegate
authority to the officers of the Company or to others to act on behalf of the
Company. Except as otherwise agreed by the Members, no Member shall have any
right or authority to take any action on behalf of the Company or to bind or
commit the Company with respect to third parties or otherwise. Except as
provided in Section 5.3 or as otherwise provided in this Agreement, each Member
hereby (a) 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, and (b) revokes its right to bind
the Company, as contemplated by the provisions of Section 18-402 of the LLC Act.
5.2 COMPOSITION OF BOARD; MEETINGS AND APPROVAL REQUIREMENTS.
(a) ELECTION AND REMOVAL OF DIRECTORS. Upon election by a Member,
each Director shall hold office until death, disability, resignation or removal
at any time at the pleasure of the Member that elected him or her. If a vacancy
occurs on the Board, the Member that elected such Director shall give notice
of such vacancy to the other Member, and as soon as practicable after the
occurrence of such vacancy shall elect a successor so that the Board remains
fully constituted at all times.
(b) MEETINGS AND APPROVAL REQUIREMENTS.
(i) REGULAR MEETINGS. Unless otherwise determined by the
Board, the Board shall meet at least every calendar quarter on a date and at a
time and place established by the Board. Special meetings of the Board shall be
held at the written request of any Director. Each Member shall use its best
efforts to cause the Directors elected by it to be present at each meeting of
the Board.
(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 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.
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Notice of a special meeting shall be given in writing to each Director not less
than five (5) 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.
(iv) QUORUM. At each meeting of the Board, the presence in
person or by electronic means, as the case may be, of at least one of the
Directors appointed by BEn Member and at least one of the Directors appointed by
Calpine Member shall be necessary to constitute and maintain 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 all 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 one Director appointed by BEn
Member and at least one Director appointed by Calpine Member. Such consents
shall be filed with the minutes of the proceedings of the Board.
(c) COMPENSATION AND REIMBURSEMENT. No compensation or fees shall be
paid by the Company to any individual for serving as a Director, nor shall any
Director be entitled to reimbursement by the Company for expenses incurred in
attending meetings of the Board.
5.3 MATTERS REQUIRING MEMBER APPROVAL. 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 5.1, the following
matters shall require the approval of each Member:
(a) any merger or combination of the Company with another Person, or
any classification, recapitalization, dissolution, liquidation or winding up of
the Company,
(b) any issuance, sale or buyback by the Company of Interests, or
any other similar transactions;
(c) any issuance by the Company of an LLC Interest Certificate;
(d) any addition to or amendment or repeal of the Certificate, or
this Agreement;
(e) approval of any capital calls made to Members; and
(f) consideration of any matter specifically referred to the Members
in writing by any Director who, on the basis of oral or written advice of
counsel, has determined that such Director has a conflict of interest with
respect to such matter.
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5.4 MEMBER MEETING AND APPROVAL PROCEDURES.
(a) MEETINGS. A meeting of the Members for the purpose of acting
upon any matter upon which the Members are entitled to vote may be called by the
Board at any time, and such a meeting shall be called by the Board not more than
thirty (30) days after receipt of a written request therefor signed by either of
the Members. Meetings of the Members shall be held at such location as from time
to time shall be reasonably determined by the Board The Board shall give written
notice of any such meeting to all Members, and such meeting shall be held not
less than seven (7) days nor more than thirty (30) days after the Board sends
such notice. All Members shall be entitled to attend and participate in any such
meeting, and the affirmative vote or written consent of each Member shall be
required for any action of the Members.
(b) QUORUM; NOTICE; WAIVERS; PROXIES. The presence in person or by
proxy of all of the Members shall constitute a quorum at all meetings of the
Members. No notice of the time, place or purpose of any meeting of Members need
be given to any Member entitled to such notice who, in writing, executes and
files with the records of the meeting, either before or after the time thereof,
a waiver of such notice. Any Member who attends a meeting in person or is
represented by proxy, except for a Member attending a meeting for the express
purpose of objecting at the beginning of the meeting to the transaction of any
business on the ground that the meeting is not lawfully called or convened,
shall be deemed to have waived notice of such meeting. Each Member may authorize
any Person to act for it by proxy with respect to any matter in which such
Member is entitled to participate, including waiving notice of any meeting and
voting or participating in a meeting. Every proxy must be signed by such Member
or its attorney-in-fact. No proxy shall be valid after the expiration of twelve
(12) months from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Member executing it.
(c) WRITTEN CONSENT TO ACTION. Notwithstanding the provisions of
Sections 5.4(a) and 5.4(b), on any matter that is to be voted on by the Members,
the Members 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 all of the Members. An original or copy of any such
consent shall be inserted in the record of the proceedings of the Members.
5.5 OFFICERS. The Board may appoint and remove such officers, with such
duties, as the Board shall determine in its sole discretion to be necessary or
appropriate from time to time.
5.6 LIABILITY AND INDEMNIFICATION.
(a) EXCULPATION OF DIRECTORS AND OFFICERS. No Director or officer
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 MEMBERS, DIRECTORS AND OFFICERS BY THE
COMPANY. The Company shall, solely from assets of the Company and without
recourse to any Member,
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indemnify, defend and hold harmless each Member, each Director and each officer
(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.
(c) INDEMNIFICATION OF COMPANY BY EACH MEMBER AND INDEMNITEE. If the
Company is made a party to any claim, dispute or litigation or otherwise incurs
any loss, liability, damage, cost or expense (i) as a result of or in connection
with the obligations or liabilities of an Indemnitee that are unrelated to the
Company's business, or (ii) by reason of a Member's breach of its obligations
hereunder, the Member Indemnitee or Member, as the case may be, shall indemnify
and reimburse the Company for all loss, liability, damage, cost and expense
incurred thereby (including reasonable attorneys' fees and expenses).
5.7 COMPANY FUNDS. The funds of the Company shall be deposited in such
bank account or accounts identified to the Company, or invested in such
interest-bearing or non-interest-bearing investments identified to the Company,
as shall be designated by the Board in its sole discretion. Alt withdrawals from
any such bank accounts shall be made by the Board or the duly authorized agent
or agents of the Board. Company funds shall not be commingled with those of the
Members or any other Person.
ARTICLE 6
ACCOUNTING AND RECORDS; TAX MATTERS
6.1 FISCAL YEAR. Unless otherwise determined by the Board, the fiscal year
of the Company shall be the calendar year.
6.2 METHOD OF ACCOUNTING. Unless otherwise determined by the Board, the
books of account and reports of the Company shall be maintained or prepared, as
the case may be, in accordance with GAAP; provided, however, that for purposes
of making allocations and distributions hereunder (including, without
limitation, distributions in liquidation of the Company in accordance with
Capital Account balances as required by Section 8.3(d)(2)), Capital Accounts and
Profits, Losses and other items described in Section 3.2 shall be determined in
accordance with U.S. Federal income tax accounting principles utilizing the
accrual method of accounting, with the adjustments required by Treasury
Regulation section 1.704-l(b) to properly maintain Capital Accounts. Each Member
acknowledges that the Capital Account balances of
15
the Members for the purposes described in the preceding sentence are not
computed in accordance with GAAP.
6.3 BOOKS AND RECORDS AND INSPECTION.
(a) BOOKS OF ACCOUNT AND RECORDS. Proper and complete records and
books of account of the Company, including all such transactions and other
matters as are usually entered into records and books of account maintained by
Persons engaged in businesses of like character or as are required under
applicable law, shall be maintained by the Company. The Company also shall keep
at its principal place of business all records relating to the Company required
by the LLC Act and any other applicable laws to be kept at such office.
(b) INSPECTION. All records and books of account described in
Section 6(a) above shall be open to inspection and copying by either Member or
its accredited representatives at any reasonable time during normal business
hours and at such Member's expense.
6.4 TAX MATTERS.
(a) PARTNERSHIP TAX STATUS. The Members intend that the Company
shall be treated as a partnership for U.S. Federal, state and local income tax
purposes and hereby agree, and authorize the Company and the Tax Matters
Partner to take such actions (including the making of, or refraining from
making, any relevant elections) to perfect such status. The Members further
intend that the provisions of sections 6221-6234 of the Code shall apply to the
Company and intend that, if the circumstances so require, an election under
section 6231(a)(1)(B)(ii) of the Code shall be made. The Board shall have
authority to amend or supplement the provisions of this Section 6.4 from time to
time, as it sees fit.
(b) TAX MATTERS PARTNER. With respect to U.S. Federal income tax
matters, a Member designated by the Board shall be the "tax matters partner"
(the "TAX MATTERS PARTNER") within the meaning of section 6231(a)(7) of the Code
and shall act in any similar capacity under state, local, foreign or provincial
tax law; provided, however, that the Tax Matters Partner shall not have the
authority to take any non-ministerial actions, including any determinations
regarding tax elections, tax reporting, withholding tax obligations and tax
controversies (e.g., tax audits, extension of statutes of limitations,
administrative and judicial proceedings and the filing of amended tax returns or
refund claims), without the approval of the Board or its designee.
ARTICLE 7
THE MEMBERS
7.1 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 7.2 or Section 7.3.
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7.2 ADMISSION OF NEW MEMBERS OTHER THAN BY TRANSFER. Except as the Members
may otherwise agree from time to time, a new Member may be admitted to the
Company (other than by Transfer, as to which Section 7.3 shall apply) only with
the Consent of each other Member, which Consent may be withheld in the sole
discretion of such other Member.
7.3 TRANSFERS OF INTERESTS. Except as the Members may otherwise agree from
time to time, a Member may not Transfer all or any part of its Interest without
the Consent of the other Member, which Consent may be withheld in the sole
discretion of such other Member.
ARTICLE 8
DISSOLUTION AND TERMINATION
8.1 NO TERMINATION. Except as expressly provided in this Agreement, no
Member shall or shall seek to dissolve, terminate or liquidate the Company, and
no Member shall petition a court for the partition, dissolution, termination or
liquidation of the Company, or its property. Each of the Members hereby
irrevocably waives any and all rights that it may have to maintain an action to
partition Company property or to compel any sale or transfer thereof.
8.2 EVENTS OF DISSOLUTION. The Company shall be dissolved upon the First
to occur of the following;
(a) expiration of the term of the Company set forth in Section 1.3;
(b) the unanimous Consent of the Members to dissolve the Company,
but only on the effective date of dissolution specified by such Members at the
time of such approval;
(c) entry of a decree of judicial dissolution under the LLC Act; or
(d) any other event that causes a dissolution of the Company because
the LLC Act mandates dissolution upon the occurrence of such other event,
notwithstanding any agreement among the Members to the contrary.
8.3 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 8.3. Notwithstanding the dissolution of the Company, prior
to the termination of the Company, the business of the Company and the affairs
of the Members, as such, shall continue to be governed by this Agreement.
(b) 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 any Member
who caused the dissolution of the Company in contravention of this Agreement
(and any Directors appointed by such Member) shall not participate in the
control of the winding up of the Company and provided further, that if the
dissolution is caused by entry of a decree of judicial dissolution pursuant to
Section 8.2(c), the winding up shall be carried out in accordance with such
decree.
17
(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
8.3(c). Upon dissolution of the Company, the Liquidator shall (i) cause to be
filed a certificate of cancellation in accordance with the LLC Act, and (ii)
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.
(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 Members) and to
Members. After payment of 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 Members or their assigns in the manner set
forth in Section 8.3(d)(ii) below.
(ii) MEMBERS. Second, to the Members in accordance with the
balances in their Capital Accounts, after as applicable, all allocations of
Profits or Losses and other items pursuant to Article 3, provided that if there
are insufficient assets available to pay to each Member the positive balance in
such Member's Capital Account, the available assets shall be distributed to the
Members with positive Capital Accounts in proportion to their respective
positive Capital Account balances. All distributions pursuant to this Section
8.3(d)(ii) shall be made no later than the end of the Company taxable year
during which the liquidation of the Company occurs (or, if later, within ninety
(90) days after the date of such liquidation).
8.4 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.
ARTICLE 9
NATURE OF INTERESTS
9.1 INTERESTS SHALL BE SECURITIES. The Interests shall be deemed to be
"securities" within the meaning of Section 8-102(a)(l5) 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 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.
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9.2 ISSUANCE OF CERTIFICATES. The Interest 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 Agreement, as applicable, and
(ii) that it is subject to the terms and conditions of this Agreement. Subject
to the restrictions set forth in Section 5.3, only the Members may issue a LLC
Interest Certificate, and only upon the execution of the same by a duly
authorized officer of each such Member. Evidence of the issuance of the LLC
Interest Certificate shall be recorded in the books of the Company as set forth
in Sections 5.3 and 7.1.
9.3 REGISTERED OWNER. The Company shall be entitled to treat the
registered owner of a LLC Interest Certificate as the owner of such Interest for
all purposes and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Interest, regardless of whether it shall have
actual or other notice thereof, by a person other than the registered owner of
such certificate.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 DISCLAIMER OF AGENCY. This Agreement does not create any relationship
beyond the scope set forth herein, and except as otherwise expressly provided
herein, this Agreement shall not constitute any of the Members or the Company
the legal representative or agent of any other, nor shall any Member or the
Company have the right or authority to assume, create or incur any liability or
obligation, express or implied, against, in the name of or on behalf of any
other Member or the Company.
10.2 AMENDMENT. Except for an amendment reflecting a permissible change in
Members in accordance with the terms of this Agreement, or as provided in
Sections 2.1(c) and 3.2(b)(i)(G) (relating to tax allocation amendments) or
otherwise herein, any amendment to this Agreement must be in writing and
executed by each Member.
10.3 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 BEn Member, to it at:
c/▇ ▇▇▇▇▇▇▇ Enterprises Holdings, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Calpine Member, to it at:
19
c/o Calpine Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Attention: Senior Vice President - Western Regional Office
with a copy to:
Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Attention: General Counsel
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.
10.4 CONSEQUENTIAL DAMAGES. Notwithstanding any provision in this
Agreement to the contrary, no Member or any Affiliate thereof shall be liable to
any other Member or the Company or to their respective Affiliates under this
Agreement for consequential, incidental, special, indirect or punitive damages
of any nature, including lost profits or revenues, the cost of capital or lost
business opportunity. The Members intend that the waivers and disclaimers of
liability, releases from liability, and limitations and apportionments of
liability expressed herein shall apply, whether in contract or in tort, even in
the event of the application of strict liability or in the event of the fault or
negligence (in whole or in part) of or breach of contract by a Member or its
Affiliate released or whose liability is waived, disclaimed, limited,
apportioned or fixed, and shall extend to such Member's Affiliates and its and
their constituent partners, shareholders, directors, officers, employees,
representatives and agents. The Members also intend and agree that such
provisions shall continue in full force and effect notwithstanding the
termination, suspension, cancellation or rescission of this Agreement, or the
dissolution and termination of the Company.
10.5 COUNTERPARTS. The Members may execute this Agreement in two or more
counterparts, which shall, in the aggregate, be signed by all the Members, and
each counterpart shall be deemed an original instrument as against any Member
who has signed it.
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10.6 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).
10.7 BINDING EFFECT. This Agreement shall be binding on all successors and
assigns of the Members and inure to the benefit of the respective successors and
permitted assigns of the Members, except to the extent of any express contrary
provision in this Agreement.
10.8 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.
10.9 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 the scope of this Agreement or
the intent of any provision hereof.
10.10 NO RIGHTS IN THIRD PARTIES. The provisions of this Agreement are for
the exclusive benefit of the Members and their respective 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 either 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 (or any other Agreement to which the Members are
parties), including rights with respect to enforcing the payment of capital
contributions.
10.11 NO TITLE TO COMPANY PROPERTY. 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.
10.12 FURTHER ASSURANCES; ADDITIONAL DOCUMENTS. Each Member shall, and
shall use its reasonable efforts to cause its Affiliates to, take such further
actions as are reasonably requested by any other Member, including the execution
and delivery of documents, as are necessary or expedient to carry out the intent
of this Agreement. Without limiting the generality of the foregoing, each party
hereto agrees to execute, with acknowledgment or affidavit, if required or
deemed appropriate, any and all documents and writings that may be necessary or
expedient in connection with the creation of the Company and the achievement of
its purposes, specifically including (i) such certificates and other documents
as may be necessary or appropriate to form, qualify or continue the Company as a
limited liability company (or a company in which the Members have limited
liability) in all jurisdictions in which the Company conducts or plans to
conduct business and (ii) all such agreements, certificates, tax statements, tax
returns and other documents as may be required of the Company or its Members by
the laws of the U.S. or any state or province in which the Company conducts or
plans to conduct business, or any political subdivision or agency thereof.
21
10.13 PERSONS NOT NAMED. Unless named in this Agreement, of unless
admitted to the Company as a member by Consent of the Members as provided
herein, no Person shall be considered a Member. The Company and the Members 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 PAGE INTENTIONALLY LEFT BLANK.]
22
IN WITNESS WHEREOF, the parties hereto, by their respective duly
authorized officers or directors, have executed this Amended and Restated
Limited Liability Company Operating Agreement as of the date first above
written.
BEn DEC Holdings, LLC.
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CPN Delta Holdings LLC.
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
23
SCHEDULE 1 TO
AMENDED AND RESTATED
LLC OPERATING AGREEMENT
REGISTER OF MEMBERS
DELTA ENERGY CENTER, LLC
NAME AND MAILING DATE ADMITTED PERCENTAGE OF
ADDRESS OF MEMBER AS MEMBER INTERESTS HELD
BEn DEC Holdings. LLC November 12,1999 50 Percent
c/▇ ▇▇▇▇▇▇▇ Enterprises Holdings. Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇
CPN Delta Holdings LLC August 8,2000 50 Percent
c/o Calpine Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇
Exhibit A to
Amended and Restated
LLC Operating Agreement
LLC INTEREST CERTIFICATE
DELTA ENERGY CENTER, LLC
A DELAWARE LIMITED LIABILITY COMPANY
NO._______
THIS CERTIFIES THAT. _________________ is the owner of a fully paid and
non-assessable ___ % Interest (as defined in the LLC Agreement referred to
herein) in Delta Energy Center, LLC (the "COMPANY") and certain other rights in
connection therewith in the Company, as set forth in the Amended and Restated
Limited Liability Company Operating Agreement of Delta Energy Center, LLC, dated
as of April 5, 2001, as amended, modified and supplemented from time to time
(the "LLC AGREEMENT"). Such 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 Company and
shall constitute direction by the registered owner of this Certificate to the
Company 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 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 Interest.
IN WITNESS WHEREOF, the Company has caused this Certificate to be signed
by the duly authorized officers of its Members and the issuance recorded in its
limited liability company books this ________ day of _________ , ____________.
BEN DEC HOLDINGS, LLC, CPN DELTA HOLDINGS LLC,
a Delaware limited liability company a Delaware limited liability company
By:_________________________________ By:_________________________________
Name:_______________________________ Name:_______________________________
Title:._____________________________ 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)
OWNERSHIP POWER
FOR VALUE RECEIVED.___________________________________ hereby assigns,
conveys, sells and transfers unto______________________________all of its
ownership interests in DELTA ENERGY CENTER, LLC, a Delaware limited liability
company, standing in its name on the books of DELTA ENERGY CENTER, LLC, a
Delaware limited liability company, represented by the following certificate(s):
______________ and irrevocably appoints_____ as its attorney-in-fact to transfer
the ownership interest(s) with full power of substitution in the premises.
Dated:____________________ By:______________________________
In the presence of:
__________________________
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.