EXHIBIT 3.2
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
WEST PENN TRANSFERRING AGENT LLC
This Limited Liability Company Agreement (together with the
schedules attached hereto, this "Agreement") of West Penn
Transferring Agent LLC (the "Company"), is entered into by WEST
PENN POWER COMPANY, a Pennsylvania corporation, as the sole
member (the "Member"). Capitalized terms used and not otherwise
defined herein have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, (i) hereby
establishes the Company as a limited liability company pursuant
to and in accordance with the Pennsylvania Limited Liability
Company Act (15 Pa. C.S. 8901 et seq.), as amended from time to
time (the "Act").
Section 1. Name.
The name of the limited liability company formed hereby is
West Penn Transferring Agent LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be
located at RD 12, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 3. Registered Agent.
The name of the registered agent of the Company for service
of process in the Commonwealth of Pennsylvania is ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, RD 12, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 4. Members.
(a) The mailing address of the Member is set forth on
Schedule B attached hereto.
(b) The Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member
to cease to be a member of the Company (other than (i) upon an
assignment by the Member of all of its limited liability company
interest in the Company and the admission of the transferee
pursuant to Section 20, or (ii) the resignation of the Member and
the admission of an additional member of the Company pursuant to
Section 20), each person acting as a Director pursuant to Section
8 shall, without any action of any Person and simultaneously with
the Member ceasing to be a member of the Company, automatically
be admitted to the Company as a Member and shall continue the
Company without dissolution.
Section 5. Existence. The existence of the Company as a
separate legal entity shall continue until the Member dissolves
the Company.
Section 6. Purposes.
(a) 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,
including, but not limited to, generating electrical power.
(b) The Company is also formed for the purpose of acting as
sole Member of Allegheny Energy Supply Company, LLC, a Delaware
limited liability company. West Penn Power Company is hereby
authorized, as Member of the Company, to execute any and all
documents necessary to form Allegheny Energy Supply Company, LLC,
as a Delaware limited liability company.
(c) The Company hereby agrees that: (1) any Officer of the
Company be, and they hereby are, authorized for and on behalf of
the Company to designate that a bank account be established to
act as depository for the funds of the Company for and during
such period as they may from time to time deem necessary or
desirable in the interests of the Company and to open or close
out from time to time such account so selected or reselected;
(2) any Officer of the Company be, and they hereby are,
authorized and directed, in the name and on behalf of the
Company, to take any and all action that they may deem necessary
or advisable in order to establish such bank account from time to
time for the efficient conduct of the Company's business;
(3) such bank account be used to initiate funds transfers and
that any Officer of the Company be, and they hereby are,
authorized to sign on such bank account any wire transfer
documents necessary, including those that will designate those
Officers of the Company who may be authorized to initiate wire
transfers by phone from such bank account to West Penn Power
Company's bank account at PNC Bank and from such bank account to
the Company's bank account; (4) any Officer of the Company be,
and they hereby are, authorized and directed, in the name and on
behalf of the Company, to take any and all action that they may
deem necessary or advisable in order to establish such account
from time to time for the efficient conduct of the Company's
business; and (5) any Officer of the Company be, and they hereby
are, authorized to designate those Officers of the Company who
may be authorized from time to time to sign checks on such bank
account.
Section 7. Powers.
Subject to Section 8, the Company, and the Board of
Directors and the Officers of the Company on behalf of the
Company, (i) shall have and exercise all powers necessary,
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convenient or incidental to accomplish its purposes as set forth
in Section 6, and (ii) shall have and exercise all of the powers
and rights conferred upon limited liability companies formed
pursuant to the Act.
Section 8. Management.
(a) Board of Directors. The business and affairs of the
Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Member. The Member may
determine at any time in its sole and absolute discretion the
number of Directors to constitute the Board. The authorized
number of Directors may be increased or decreased by the Member
at any time in its sole and absolute discretion, upon notice to
all Directors. The initial number of Directors shall be three.
Each Director elected, designated or appointed by the Member
shall hold office until a successor is elected and qualified or
until such Director's earlier death, resignation, expulsion or
removal. Directors need not be a Member. The initial Directors
designated by the Member are listed on Schedule C hereto.
(b) Powers. The Board of Directors 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. Subject to Section 6, the Board
of Directors has the authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of
Directors of the Company may hold meetings, both regular and
special, within or outside the Commonwealth of Pennsylvania.
Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined
by the Board. Special meetings of the Board may be called by the
Chief Executive Officer or President on not less than one day's
notice to each Director by telephone, facsimile, mail, telegram
or any other means of communication, and special meetings shall
be called by the Chief Executive Officer, President or Secretary
in like manner and with like notice upon the written request of
any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for
the transaction of business and, except as otherwise provided in
any other provision of this Agreement, the act of a majority of
the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present
at any meeting of the Board, the Directors present at such
meeting may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as
the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board
or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or
any committee designated by the Board, may participate in
meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all
Persons participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in Person at
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the meeting. If all the participants are participating by
telephone conference or similar communications equipment, the
meeting shall be deemed to be held at the principal place of
business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority
of the whole Board, designate one or more
committees, each committee to consist of one or
more of the Directors of the Company. The Board
may designate one or more Directors as alternate
members of any committee, who may replace any
absent or disqualified member at any meeting of
the committee.
(ii) In the absence or disqualification of a member of
a committee, the member or members thereof present
at any meeting and not disqualified from voting,
whether or not such members constitute a quorum,
may unanimously appoint another member of the
Board to act at the meeting in the place of any
such absent or disqualified member.
(iii) Any such committee, to the extent provided in
the resolution of the Board, shall have and may
exercise all the powers and authority of the Board
in the management of the business and affairs of
the Company. Such committee or committees shall
have such name or names as may be determined from
time to time by resolution adopted by the Board.
Each committee shall keep regular minutes of its
meetings and report the same to the Board when
required.
(g) Compensation of Directors; Expenses. The Board shall
have the authority to fix the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance at
meetings of the Board, which may be a fixed sum for attendance at
each meeting of the Board or a stated salary as Director. No
such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by
law, any Director or the entire Board of Directors may be removed
or expelled, with or without cause, at any time by the Member,
and any vacancy caused by any such removal or expulsion may be
filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set
forth in this Agreement and subject to Section 8, the Directors
are agents of the Company for the purpose of the Company's
business, and the actions of the Directors taken in accordance
with such powers set forth in this Agreement shall bind the
Company. Except as provided in this Agreement or in a resolution
of the Directors, a Director may not bind the Company.
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Section 9. Officers.
(a) Officers. The initial Officers of the Company shall be
designated by the Member. The additional or successor Officers
of the Company shall be chosen by the Board and shall consist of
at least a Chief Executive Officer, a President, a Secretary and
a Treasurer. The Board of Directors may also choose one or more
Vice Presidents, Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person. The Board
shall choose a Chief Executive Officer, a President, a Secretary
and a Treasurer. The Board may appoint such other Officers and
agents as it shall deem necessary or advisable who shall hold
their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by
the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their
successors are chosen and qualified. Any Officer may be removed
at any time, with or without cause, by the affirmative vote of a
majority of the Board. Any vacancy occurring in any office of
the Company shall be filled by the Board. Upon the effectiveness
of this Agreement, the Officers of the Company designated by the
Member are listed on Schedule D hereto and any persons formerly
appointed as Officers of the Company shall automatically cease to
be Officers of the Company.
(b) Chief Executive Officer. The Chief Executive Officer
of the Company shall preside at all meetings of the Board, shall
be responsible for the general and active management of the
business of the Company, shall see that all orders and
resolutions of the Board are carried into effect and shall have
and perform such other duties as from time to time may be
assigned to him by the Board.
(c) President. The President shall be the chief operating
officer of the Company, shall preside, in the absence of the
Chief Executive Officer, at all meetings of the Board, shall have
general and active management of the business of the Company and
shall see that all orders and resolutions of the Board are
carried into effect. The President or any other Officer
authorized by the President or the Board shall execute all bonds,
mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and
executed, including Section 7; (ii) where signing and execution
thereof shall be expressly delegated by the Board to some other
Officer or agent of the Company, and (iii) as otherwise permitted
in Section 10.
(d) Vice President. In the absence of the President or in
the event of the President's inability to act, the Vice
President, if any (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the
President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. The Vice
Presidents, if any, shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
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(e) Secretary and Assistant Secretary. The Secretary shall
be responsible for filing legal documents and maintaining records
for the Company. The Secretary shall attend all meetings of the
Board and record all the proceedings of the meetings of the
Company and of the Board in a book to be kept for that purpose
and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given,
notice of all meetings of the Member, if any, and special
meetings of the Board, and shall perform such other duties as may
be prescribed by the Board or the President, under whose
supervision the Secretary shall serve. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the
order determined by the Board (or if there be no such
determination, then in order of their election), shall, in the
absence of the Secretary or in the event of the Secretary's
inability to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(f) Treasurer and Assistant Treasurer. The Treasurer shall
have the custody of the Company funds and securities and shall
keep full and accurate accounts of receipts and disbursements in
books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be
ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and to the
Board, at its regular meetings or when the Board so requires, an
account of all of the Treasurer's transactions and of the
financial condition of the Company. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the
order determined by the Board (or if there be no such
determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's
inability to act, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(g) Officers as Agents. The Officers, to the extent of
their powers set forth in this Agreement or otherwise vested in
them by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the Company's
business and, subject to Section 8, the actions of the Officers
taken in accordance with such powers shall bind the Company.
(h) Duties of Board and Officers. Except to the extent
otherwise provided herein, each Director and Officer shall have a
fiduciary duty of loyalty and care similar to that of directors
and officers of business corporations organized under the General
Corporation Law of the Commonwealth of Pennsylvania.
Section 10. Limited Liability.
Except as otherwise expressly provided by the Act, the
debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be the debts,
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obligations and liabilities solely of the Company, and neither
the Member nor any Director shall be obligated personally for any
such debt, obligation or liability of the Company solely by
reason of being a Member or Director of the Company.
Section 11. Capital Contributions.
Schedule B attached hereto sets forth, among other things,
the initial and subsequent capital contributions of property the
Member has made to the Company and the agreed value of such
property.
Section 12. Additional Contributions.
The Member is not required to make any additional capital
contribution to the Company. However, the Member may make
additional capital contributions to the Company at any time upon
the written consent of such Member. To the extent that the
Member makes an additional capital contribution to the Company,
the Member shall revise Schedule B of this Agreement. The
provisions of this Agreement, including this Section 12, are
intended to benefit the Member and the Special Members and, to
the fullest extent permitted by law, shall not be construed as
conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary
of this Agreement) and the Member and the Special Members shall
not have any duty or obligation to any creditor of the Company to
make any contribution to the Company or to issue any call for
capital pursuant to this Agreement.
Section 13. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the
Member.
Section 14. Distributions.
Distributions shall be made to the Member at the times and
in the aggregate amounts determined by the Board.
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a
distribution to the Member on account of its interest in the
Company if such distribution would violate the Act or any other
applicable law or any agreement of the Company.
Section 15. Books and Records.
The Board shall keep or cause to be kept complete and
accurate books of account and records with respect to the
Company's business. The books of the Company shall at all times
be maintained by the Board. The Member and its duly authorized
representatives shall have the right to examine the Company
books, records and documents during normal business hours. The
Company, and the Board on behalf of the Company, shall not have
the right to keep confidential from the Member any information.
The Company's books of account shall be kept using the method of
accounting determined by the Member. The Company's independent
auditor, if any, shall be an independent public accounting firm
selected by the Member.
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Section 16. Reports.
(a) Within 60 days after the end of each fiscal quarter,
the Board shall cause to be prepared an unaudited report setting
forth as of the end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Company for such fiscal
quarter.
(b) The Board shall use diligent efforts to cause to be
prepared and mailed to the Member, within 90 days after the end
of each fiscal year, an audited or unaudited report setting forth
as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal
year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent
accountants, if any, to prepare and transmit to the Member as
promptly as possible any such tax information as may be
reasonably necessary to enable the Member to prepare its federal,
state and local income tax returns relating to such fiscal year.
Section 17. Other Business.
The Member and any Affiliate of 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.
Section 18. Exculpation and Indemnification.
(a) Neither the Member nor any Officer, Director, employee
or agent of the Company nor any employee, representative, agent
or Affiliate of the Member (collectively, the "Covered Persons")
shall be liable to the Company or any other Person who has an
interest in or claim against the Company for any loss, damage or
claim incurred by reason of any act or omission performed or
omitted by such Covered Person 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 Covered Person by this
Agreement, except that a Covered Person shall be liable for any
such loss, damage or claim incurred by reason of such Covered
Person's gross negligence or willful misconduct.
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(b) To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such Covered
Person by reason of any act or omission performed or omitted by
such Covered Person 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 Covered Person by this Agreement,
except that no Covered Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Covered
Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 18 by
the Company shall be provided out of and to the extent of Company
assets only, and the Member shall not have personal liability on
account thereof; and provided further, that so long as any
Obligation is outstanding, no indemnity payment from funds of the
Company (as distinct from funds from other sources, such as
insurance) of any indemnity under this Section 18 shall be
payable from amounts allocable to any other Person and, so long
as any Obligation is outstanding, all such indemnity payments
under this Section 18 shall be subordinated to any amounts
payable to any other Person.
(c) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person
defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of
the Covered Person to repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as
authorized in this Section 18; provided, however, that any such
advance shall be subordinated to any amounts payable to any other
Person.
(d) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the
Company by any Person as to matters the Covered Person reasonably
believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or
on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets,
liabilities, or any other facts pertinent to the existence and
amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable to
the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person.
The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of a Covered Person otherwise
existing at law or in equity, are agreed by the Member and the
Special Members to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this Section 18 shall
survive any termination of this Agreement.
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Section 19. Assignments.
Subject to Section 20, the Member may assign in whole or in
part its limited liability company interest in the Company. If
the Member transfers all of its limited liability company
interest in the Company pursuant to this Section 19, the
transferee shall be admitted to the Company as a member of the
Company upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this
Agreement, which instrument may be a counterpart signature page
to 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. Notwithstanding anything in this Agreement to the
contrary, any successor to the Member by merger or consolidation
shall, without further act, be the Member hereunder, and such
merger or consolidation shall not constitute an assignment for
purposes of this Agreement and the Company shall continue without
dissolution.
Section 20. Admission of Additional Members.
One or more additional members of the Company may be
admitted to the Company with the written consent of the Member.
Section 21. Dissolution.
(a) Subject to Section 8, the Company shall be dissolved,
and its affairs shall be wound up upon the first to occur of the
following: (i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other
event which terminates the continued membership of the last
remaining member of the Company in the Company unless the
business of the Company is continued in a manner permitted by
this Agreement or the Act or (ii) the entry of a decree of
judicial dissolution under the Act. Upon the occurrence of any
event that causes the last remaining member of the Company to
cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such member is
hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership
of such member in the Company, agree in writing (i) to continue
the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as
a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership
of the last remaining member of the Company in the Company.
(b) Notwithstanding any other provision of this Agreement,
the Bankruptcy of the Member shall 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
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manner), and the assets of the Company shall be applied in the
manner, and in the order of priority, set forth in Section 8974
of the Act.
(d) The Company shall terminate when (i) all of the assets
of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company shall have been
distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been
canceled in the manner required by the Act.
Section 22. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to
the fullest extent permitted by law, each of the Member hereby
irrevocably waives any right or power that such Person might have
to cause the Company or any of its assets to be partitioned, to
cause the appointment of a receiver for all or any portion of the
assets of the Company, to compel any sale of all or any portion
of the assets of the Company pursuant to any applicable law or to
file a complaint or to institute any proceeding at law or in
equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have any
interest in any specific assets of the Company, and the Member
shall not have the status of a creditor with respect to any
distribution pursuant to Section 13 hereof. The interest of the
Member in the Company is personal property.
Section 23. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditor of the Company or by
any creditor of the Member. Nothing in this Agreement shall be
deemed to create any right in any Person (other than Covered
Persons) not a party hereto, and this Agreement shall not be
construed in any respect to be a contract in whole or in part for
the benefit of any third Person (except as provided in Section
26).
Section 24. Severability of Provisions.
Each provision of this Agreement shall be considered
severable 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.
Section 25. Entire Agreement.
This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof.
Section 26. Binding Agreement.
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Notwithstanding any other provision of this Agreement, the
Member agrees that this Agreement constitutes a legal, valid and
binding agreement of the Member, and is enforceable against the
Member by the Directors, in accordance with its terms. In
addition, the Directors shall be intended beneficiaries of this
Agreement.
Section 27. Governing Law.
This Agreement shall be governed by and construed under the
laws of the Commonwealth of Pennsylvania (without regard to
conflict of laws principles), all rights and remedies being
governed by said laws.
Section 28. Amendments.
Subject to Section 8, this Agreement may be modified,
altered, supplemented or amended pursuant to a written agreement
executed and delivered by the Member. Notwithstanding anything
to the contrary in this Agreement, so long as any Obligation is
outstanding, this Agreement may not be modified, altered,
supplemented or amended unless the Rating Agency Condition is
satisfied by all Rating Agencies other than ▇▇▇▇▇'▇ (and prior
written notice of such action shall be provided to ▇▇▇▇▇'▇)
except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent
of this Agreement and the other Basic Documents.
Section 29. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the
same instrument.
Section 30. Notices.
Any notices required to be delivered hereunder shall be in
writing and personally delivered, mailed or sent by telecopy,
electronic mail or other similar form of rapid transmission, and
shall be deemed to have been duly given upon receipt (a) in the
case of the Company, to the Company at its address in Section 2,
(b) in the case of the Member, to the Member at its address as
listed on Schedule B attached hereto and (c) in the case of
either of the foregoing, at such other address as may be
designated by written notice to the other party.
Section 31. Effectiveness.
This Agreement shall be effective as of November 18, 1999.
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Limited Liability Company
Agreement as of the 17th day of November, 1999.
MEMBER:
WEST PENN POWER COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not
otherwise defined herein have the following meanings:
"Act" has the meaning set forth in the preamble to this
Agreement.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or
under direct or indirect common Control with such Person.
"Agreement" means this Amended and Restated Limited
Liability Company Agreement of the Company, together with the
schedules attached hereto, as amended, restated or supplemented
or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such
Person (i) makes an assignment for the benefit of creditors,
(ii) files a voluntary petition in bankruptcy, (iii) is adjudged
a bankrupt or insolvent, or has entered against it an order for
relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer
or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of
this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or
of all or any substantial part of its properties, or (vii) if 120
days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or
regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of
such Person or of all or any substantial part of its properties,
the appointment is not vacated or stayed, or within 90 days after
the expiration of any such stay, the appointment is not vacated.
The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of 'Bankruptcy"
set forth in Section 8903 of the Act.
"Board" or "Board of Directors" means the Board of Directors
of the Company.
"Certificate of Formation" means the Certificate of
Formation of the Company filed with the Secretary of State of the
Commonwealth of Pennsylvania on November 12, 1999, as amended or
amended and restated from time to time.
"Company" means West Penn Transferring Agent LLC, a
Pennsylvania limited liability company.
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"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting
securities or general partnership or managing member interests,
by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of
the foregoing, a Person shall be deemed to Control any other
Person in which it owns, directly or indirectly, a majority of
the ownership interests.
"Covered Persons" has the meaning set forth in Section
18(a).
"Directors" means the Persons elected to the Board of
Directors from time to time by the Member, including the
Independent Directors, in their capacity as managers of the
Company. A Director is hereby designated as a "manager" of the
Company within the meaning of Section 1841(b) of the Act.
"Material Action" means to consolidate or merge the Company
with or into any Person, or sell all or substantially all of the
assets of the Company, or to institute proceedings to have the
Company be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the
Company or file a petition seeking, or consent to, reorganization
or relief with respect to the Company under any applicable
federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the
benefit of creditors of the Company, or admit in writing the
Company's inability to pay its debts generally as they become
due, or, to the fullest extent permitted by law, take action in
furtherance of any such action, or dissolve or liquidate the
Company.
"Member" means West Penn Power Company, as the member of the
Company, and includes any Person admitted as an additional member
of the Company or a substitute member of the Company pursuant to
the provisions of this Agreement, each in its capacity as a
member of the Company.
"Obligations" shall mean the indebtedness, liabilities and
obligations of the Company under or in connection with this
Agreement or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in
Section 9.
"Officer's Certificate" means a certificate signed by any
Officer of the Company who is authorized to act for the Company
in matters relating to the Company.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, limited liability
partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or
not a legal entity, and any governmental authority.
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B. Rules of Construction
Definitions in this Agreement apply equally to both the
singular and plural forms of the defined terms. The words
"include" and "including" shall be deemed to be followed by the
phrase "without limitation." The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph
or subdivision. The Section titles appear as a matter of
convenience only and shall not affect the interpretation of this
Agreement. All Section, paragraph, clause, Exhibit or Schedule
references not attributed to a particular document shall be
references to such parts of this Agreement.
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SCHEDULE B
Member
Name Mailing Address Membership
Interest
West Penn Power ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 100%
Company ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agreed Value of
Initial Capital Contribution: $200,000
Agreed Value of
Subsequent Capital Contribution: See following
pages to this Schedule B.
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SCHEDULE C
DIRECTORS
▇▇▇▇ ▇. ▇▇▇▇, Chairman
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SCHEDULE D
OFFICERS TITLE
▇▇▇▇ ▇. ▇▇▇▇ Chairman of the Board &
Chief Executive Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇ Secretary
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Assistant Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Treasurer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Assistant Treasurer
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