Exhibit 3.13
EXECUTION COPY
LIMITED LIABILITY COMPANY AGREEMENT
OF
FPL RECOVERY FUNDING LLC,
a Delaware Limited Liability Company
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"), of FPL
Recovery Funding LLC, a Delaware limited liability company (the "Company"), is
made and entered into as of April 16, 2007 by Florida Power & Light Company
("FPL"), a Florida corporation, as the sole member (including any additional or
successor members of the Company other than Special Members, the "Member"), and
the Company, and agreed and consented to by ▇▇▇▇ ▇▇▇▇▇▇, as the Independent
Manager and Special Member (each as defined herein).
WHEREAS, the Member has caused to be filed a Certificate of Formation
with the Secretary of State of the State of Delaware to form the Company under
and pursuant to the Limited Liability Act of the State of Delaware (the "LLC
Act").
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Member, intending
to be legally bound, hereby agrees that this agreement constitutes the governing
instrument of the Company:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Act" shall mean the Delaware Limited Liability Company Act (currently
Chapter 18 of Title 6, Sections 18-101 through 18-1109 of the Delaware Code).
"Additional Bonds" shall mean each Series of Storm-Recovery Bonds, if
any, other than the Bonds, issued by the Company pursuant to the Financing
Order.
"Additional Indenture" shall mean any indenture entered into between
the Company and the Trustee in connection with the issuance of any Series of
Additional Bonds.
"Administration Agreement" shall mean the Administration Agreement,
between the Company and FPL, as administrator (the "Administrator"), executed in
connection with the sale of Bonds issued pursuant to the Indenture.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Limited Liability Company Agreement of the
Company, as the same may be further amended, supplemented or otherwise modified
from time to time.
"Bankruptcy" shall mean, 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, 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 if 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 Sections 18-101(1) and
18-304 of the Act.
"Basic Documents" shall mean this Agreement, the Certificate of
Formation, the Indenture, any Additional Indenture, any Sale Agreement, any ▇▇▇▇
of Sale, any Servicing Agreement, the Administration Agreement, any Bond
Purchase Agreement, any Securities Account Control Agreement and any interest
rate swap agreement.
"▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of sale, issued by FPL to the
Company pursuant to the Sale Agreement, together with any other ▇▇▇▇ of sale
delivered in accordance therewith, or any ▇▇▇▇ of sale subsequently issued by
FPL to the Company in connection with the issuance of any Additional Bonds.
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement, among
FPL, the Company and the purchaser or purchasers, or representative(s) thereof
named therein or any bond purchase agreement subsequently entered into between
FPL, the Company and any purchasers listed therein in connection with the
issuance of Additional Bonds.
"Bonds" shall mean FPL Recovery Funding LLC Senior Secured Bonds,
Series A, issued pursuant to the Indenture.
"Bondholder or Holder" shall mean the Person in whose name a
Storm-Recovery Bond is registered in the Bond Register.
"Bond Register" shall mean the bond register established pursuant to
Section 2.05(a) of the Indenture.
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"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in Juno Beach, Florida, or in New York, New
York, are required or banks are authorized by law or executive order to remain
closed.
"Certificate of Formation" shall mean the Certificate of Formation of
the Company as filed in accordance with the Act with the Secretary of State of
the State of Delaware on March 6, 2007.
"Code" shall mean the Internal Revenue Code of 1986.
"Commission" shall mean the Florida Public Service Commission.
"Common Interest" shall mean the limited liability company interest of
the Member in the Company as described in Article VI. The Company shall have one
class of Common Interest.
"Company" shall mean FPL Recovery Funding LLC, a Delaware limited
liability company.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations of the United States Securities and Exchange Commission
promulgated thereunder.
"Financing Order" shall mean the storm-recovery cost rate order, Docket
No. 060038-EI, issued by the Commission on May 30, 2006 and modified on July 21,
2006 pursuant to the Section 366.8260.
"Fiscal Year" shall mean, unless the Managers shall at any time
determine otherwise pursuant to the requirements of the Code, a calendar year.
"FPL" shall mean Florida Power & Light Company, a Florida corporation.
"GAAP" shall mean the generally accepted accounting principles
promulgated or adopted by the Financial Accounting Standards Board.
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental department, commission, board, bureau, agency,
authority, instrumentality or regulatory body.
"Indenture" shall mean the Indenture, between the Company and the
Trustee, executed in connection with the issuance and sale of the Bonds.
"Independent Manager" shall mean, with respect to the Company, a
Manager who is not, and within the previous five years was not (except solely by
virtue of such Person's serving as, or being an Affiliate of any other Person
serving as, an independent director, manager or special member, as applicable,
of the Company, FPL or any bankruptcy-remote special purpose entity that is an
Affiliate of FPL or the Company), (i) a stockholder, member, partner, director,
officer, employee, Affiliate, customer, supplier, creditor or independent
contractor of, or any Person that has received any benefit in any form whatever
from (other than in such Manager's capacity as a
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ratepayer or customer of FPL in the ordinary course of business), or any Person
that has provided any service in any form whatsoever to, or any major creditor
(or any Affiliate of any major creditor) of, the Company, FPL, or any of their
Affiliates, (ii) any Person owning beneficially, directly or indirectly, any
outstanding shares of common stock, any limited liability company interests or
any partnership interests, as applicable, of the Company, FPL or any of their
Affiliates, or of any major creditor (or any Affiliate of any major creditor) of
any of the foregoing, or a stockholder, member, partner, director, officer,
employee, Affiliate, customer, supplier, creditor or independent contractor of,
or any Person that has received any benefit in any form whatever from (other
than in such Person's capacity as a ratepayer or customer of FPL in the ordinary
course of business), or any Person that has provided any service in any form
whatever to, such beneficial owner or any of such beneficial owner's Affiliates,
or (iii) a member of the immediate family of any person described above;
provided that the indirect or beneficial ownership of stock through a mutual
fund or similar diversified investment vehicle with respect to which the owner
does not have discretion or control over the investments held by such
diversified investment vehicle shall not preclude such owner from being an
Independent Manager. For purposes of this definition, "major creditor" shall
mean a natural person or business entity to which the Company, FPL or any of
their Affiliates has outstanding indebtedness for borrowed money or credit on
open account in a sum sufficiently large as would reasonably be expected to
influence the judgment of the proposed Independent Manager adversely to the
interests of the Company when the interests of that Person are adverse to those
of the Company.
"Manager" shall mean any manager of the Company, including the
Independent Manager. Each Manager is hereby designated as a "manager" of the
Company within the meaning of 18-101(10) of the Act.
"Member" shall mean FPL, in its capacity as a member in the Company
under this Agreement, or any successor thereto as a member pursuant to Article
VI; provided, however, the term "Member" shall not include the Special Member.
"Opinion of Counsel" means one or more written opinions of counsel who
may be an employee of or counsel to the Company, FPL or any Affiliate of either
of the foregoing.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), business trust, limited liability company, unincorporated
organization or government or any agency or political subdivision thereof.
"Proceeding" shall have the meaning set forth in Section 8.1.
"Rating Agencies" shall have the meaning set forth in the Indenture.
"Sale Agreement" shall mean the Storm-Recovery Property Sale Agreement,
between FPL, as seller (the "Seller"), and the Company, in connection with the
issuance of the Bonds or any sale agreement subsequently entered into between
FPL, as seller, and the Company, in connection with the issuance of any
Additional Bonds.
"Section 366.8260" shall mean Florida Statutes ss. 366.8260.
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"Securities Account Control Agreement" shall have the meaning set forth
in the Indenture.
"Securities Act" shall mean the Securities Act of 1933 and the rules
and regulations of the United States Securities and Exchange Commission
promulgated thereunder.
"Series" shall mean each series of Storm-Recovery Bonds.
"Servicing Agreement" shall mean the Storm Recovery Property Servicing
Agreement, between the Company and FPL, as servicer (the "Servicer") executed in
connection with the issuance sale of the Bonds or any servicing agreement
subsequently entered into between the Company and the Servicer in connection
with the issuance of any Additional Bonds.
"Special Member" shall mean, upon such Person's admission to the
Company as a member of the Company pursuant to Section 5.5, a Person acting as
Independent Manager, in such Person's capacity as a member of the Company. A
"Special Member" shall have the rights and duties expressly set forth in this
Agreement.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Storm-Recovery Bonds" shall mean any Bonds and any Additional Bonds.
"Storm-Recovery Property" shall mean the property transferred by the
Seller to the Company pursuant to any Sale Agreement, consisting of the
irrevocable right of FPL to charge, collect and receive, and be paid from
collections of, the storm-recovery charges in the amount necessary to provide
for the full recovery of the storm-recovery costs and other costs which have
been determined to be chargeable in the Financing Order, all rights of FPL under
the Financing Order, including all rights to obtain periodic adjustments of the
storm-recovery bond charges pursuant to Section 366.8260, and all revenues,
collections, payments, money and proceeds arising under, or with respect to, all
of the foregoing.
"Tranche" shall mean any one of the tranches of Storm-Recovery Bonds.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trustee" shall mean the party named as such in the Indenture or any
Additional Indenture until a successor replaces it in accordance with the
applicable provisions of the Indenture or any Additional Indenture and
thereafter means the successor serving thereunder.
Section 1.2 Other Definitional Provisions.
(a) All terms in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
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(b) As used in this Agreement and in any certificate or other documents
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under GAAP. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under GAAP, the definitions contained in this Agreement
or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder," and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section references contained
in this Agreement are references to Sections in this Agreement unless otherwise
specified; "or" is not exclusive; the term "including" shall mean "including
without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
(f) References to "writing" include printing, typing, lithography and
other means of reproducing words in a visible form.
(g) The term "proceeds" has the meaning set forth in the applicable
Uniform Commercial Code.
ARTICLE II
FORMATION OF THE LIMITED LIABILITY COMPANY
Section 2.1 Formation; Filings. Pursuant to the Act and in accordance
with the further terms and provisions hereof, the Member hereby forms the
Company as a limited liability company. The Certificate of Formation of the
Company, has been executed and filed with the Secretary of State of the State of
Delaware by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as an authorized person within the meaning of the
Act. The Member shall execute or cause to be executed from time to time all
other instruments, certificates, notices and documents, and shall do or cause to
be done all such filing, recording, publishing and other acts in each case, as
may be necessary or appropriate from time to time to comply with all applicable
requirements for the formation and/or operation and, when appropriate,
termination of a limited liability company in the State of Delaware and all
other jurisdictions where the Company shall desire to conduct its business.
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Section 2.2 Name and Office.
(a) The name of the Company shall be "FPL Recovery Funding LLC". All
business of the Company shall be conducted in such name and all contracts,
property and other assets of the Company shall be held in that name and neither
the Member nor any Special Member shall have any ownership interests in such
contracts, property or other assets in its individual name.
(b) The principal business office of the Company shall be located at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; or such other location as may
hereafter be determined by the Member.
(c) The address of the registered office of the Company in the State of
Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇. The name of its registered agent at that address is The Corporation Trust
Company.
(d) The Company may also have offices at such other places both within
and without the State of Delaware as the Member may from time to time determine.
Section 2.3 Business Purpose. The nature of the business or purpose to
be conducted or promoted by the Company is to engage exclusively in the
following business and financial activities:
(a) to authorize, issue, sell and deliver in one or more
Series or Tranches of Storm-Recovery Bonds under the Indenture or an
Additional Indenture, each as permitted by and in accordance with
the terms thereof;
(b) to purchase and hold Storm-Recovery Property and pledge the
same to the applicable Trustee pursuant to the terms and conditions of
the Basic Documents;
(c) to negotiate, authorize, execute, deliver, assume the
obligations under, and perform, the Basic Documents and any other
agreement or instrument or document relating to the activities set
forth in clauses (a) and (b) above, including agreements with
third-party or swap providers relating to any Series of Storm-Recovery
Bonds; provided, that each party to any agreement with the Company
shall covenant that it shall not, prior to the date which is one year
and one day after the termination of the Indenture and any Additional
Indenture and the payment in full of any Series of Storm-Recovery Bonds
and any other amounts owed under the Indenture and any Additional
Indenture, including any amounts owed to third-party or swap providers,
acquiesce, petition or otherwise invoke or cause the Company to invoke
the process of any Governmental Authority for the purpose of commencing
or sustaining an involuntary case against the Company under any federal
or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Company or any substantial part of the
property of the Company; or ordering the winding-up or liquidation of
the affairs of the Company; and provided, further, that the Company
shall be permitted to incur additional indebtedness or other
liabilities payable to service providers and trade creditors in
the ordinary course of business in connection with the foregoing
activities; and
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(d) to engage in any activity and to exercise any powers permitted
to limited liability companies under the laws of the State of Delaware
that are related or incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing.
Section 2.4 Term. The term of the Company shall continue until the
Company is dissolved and liquidated in accordance with the Act and this
Agreement. The existence of the Company as a separate legal entity shall
continue until the cancellation of the Certificate of Formation in accordance
with the Act.
Section 2.5 No State Law Partnership. The Member and the Special Member
intend that the Company shall not be a partnership (including a general
partnership or a limited partnership) or joint venture, and that neither the
Member, the Special Member nor any Manager shall be a partner or joint venturer
of the Member, the Special Member or any Manager with respect to the business of
the Company for any purposes, and this Agreement shall not be construed to
suggest otherwise.
Section 2.6 Authority of Member. Subject to Section 3.4, the Member,
acting in such capacity, shall have the authority or power to act for or on
behalf of the Company, to do any act that would be binding on the Company, or to
incur any expenditures, debts, liabilities or obligations on behalf of the
Company.
The Company, and the Member, or any Manager on behalf of the Company,
may enter into and perform the Basic Documents and all documents, agreements,
certificates, or financing statements contemplated hereby or related hereto or
thereto, all without any further act, vote or approval of any Member or Manager
or other Person notwithstanding any other provision of this Agreement, the Act
or applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of the Member or any Manager to enter into
other agreements on behalf of the Company.
Section 2.7 Liability to Third Parties. Except as otherwise expressly
provided by the Act, neither the Member, the Special Member nor any Manager
shall be liable for the debts, obligations or liabilities of the Company
(whether arising in contract, tort or otherwise), including under a judgment,
decree or order of a court, solely by reason of being the Member or acting as
the Special Member or a Manager of the Company.
Section 2.8 Separateness.
(a) Except as provided in the Basic Documents, the funds and other
assets of the Company shall not be commingled with those of any other entity,
and the Company shall maintain its accounts separate from the Member and any
other Person.
(b) The Company shall not hold itself out as being liable for the debts
of any other entity, and shall conduct its own business in its own name.
(c) The Company shall not form, or cause to be formed, any
subsidiaries.
(d) The Company shall act solely in its limited liability company name
and through its duly authorized Member, Managers, officers or agents in the
conduct of its business, shall
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hold itself out as an entity separate from all other Persons, shall correct any
known misunderstandings regarding its separate identity and shall conduct its
business so as not to mislead others as to the identity of the entity or assets
with which they are concerned.
(e) The Company shall maintain separate records, books of account and
financial statements, and shall not commingle its records and books of account
with the records and books of account of the Member or any other Person,
provided that the Company may maintain and file consolidated financial
statements as permitted by GAAP.
(f) The Managers shall hold appropriate meetings or act upon written
consent to authorize all of its limited liability company actions, which
meetings may be held by telephone conference call. The Company shall observe all
formalities required by this Agreement.
(g) The Company shall at all times ensure that its capitalization is
adequate in light of its business and purpose.
(h) Neither the Member, the Special Member, the Manager nor any other
Person shall guarantee, become liable on or hold itself out as being liable for
the debts of the Company. The Company shall not guarantee or become obligated
for the debts of the Member, the Special Member or any Manager, any Affiliate
thereof or any other Person, or otherwise hold out its credit as being available
to satisfy the obligations of the Member, the Special Member, any Manager or any
other Person, shall not pledge its assets for the benefit of any Person other
than the Trustee, shall not make loans or advances to any Person, and shall not
acquire obligations or securities of the Member, the Special Member, any Manager
or any Affiliate thereof.
(i) The Company shall pay its own liabilities out of its own funds,
including fees and expenses of the Administrator pursuant to the Administration
Agreement and the Servicer pursuant to any Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its
Affiliates.
(k) The Company shall allocate fairly and reasonably any overhead for
office space shared with the Member, the Special Member, any Manager or any
other Person.
(l) The Company shall use its own separate stationery, invoices, checks
and other business forms.
(m) The Company shall correct any known misunderstanding regarding its
separate identity.
(n) Failure of the Company, the Member, the Special Member or any
Manager on behalf of the Company to comply with any of the foregoing covenants
or any of the covenants contained in this Agreement shall not affect the status
of the Company as a separate legal entity or the limited liability of the
Member, the Special Member or any Manager.
Section 2.9 Limited Liability and Bankruptcy Remoteness. Without
limiting the generality of Section 2.8, the Company shall be operated in such a
manner as the Managers deem reasonable and necessary or appropriate to preserve
(a) the limited liability of FPL (or its
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successor) as the Member in the Company and the limited liability of the Special
Member, (b) the separateness of the Company from the business of FPL (or its
successor), as the Member of the Company, or any other Affiliate thereof and (c)
until the expiration of the period of one year and one day specified in Section
9.5, the bankruptcy-remote status of the Company.
ARTICLE III
MANAGEMENT
Section 3.1 Management by Managers. The powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of, the Managers.
Section 3.2 Acts by Managers.
(a) The Managers shall be obliged to devote only as much of their time
to the Company's business as shall be reasonably required in light of the
Company's business and objectives. A Manager shall perform his or her duties as
a Manager in good faith, in a manner he or she reasonably believes to be in the
best interests of the Company, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances.
(b) Every Manager is an agent of the Company for the purpose of its
business, and the act of every Manager, including the execution in the name of
the Company of any instrument for carrying on the business of the Company, binds
the Company, unless such act is in contravention of this Agreement or unless the
Manager so acting otherwise lacks the authority to act for the Company and the
Person with whom he or she is dealing has knowledge of the fact that he or she
has no such authority.
(c) The Managers shall have the right and authority to take all actions
which the Managers deem necessary, useful or appropriate for the day-to-day
management and conduct of the Company's business.
(d) The Managers may exercise all powers of the Company and do all such
lawful acts and things as are not by the Act, other applicable law or this
Agreement directed or required to be exercised or done by the Member. All
instruments, contracts, agreements and documents providing for the acquisition
or disposition of property of the Company shall be valid and binding on the
Company if executed by one or more of the Managers. All instruments, contracts,
agreements and documents of whatsoever type executed on behalf of the Company
shall be executed in the name of the Company by one or more Managers.
Section 3.3 Number and Qualifications. The number of Managers of the
Company shall not be less than three nor more than five, as may be determined by
the Member from time to time, but no decrease in the number of Managers shall
have the effect of shortening the term of any incumbent Manager.
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Section 3.4 Independent Manager.
(a) The Company shall have at all times at least one individual who is
an Independent Manager. The Independent Manager may not delegate his or her
duties, authorities or responsibilities hereunder. If the Independent Manager
resigns, dies or becomes incapacitated, or such position is otherwise vacant, no
action requiring the unanimous affirmative vote of the Managers shall be taken
until a successor Independent Manager is appointed by the Member and such
successor Independent Manager qualifies and approves such action.
(b) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Member, any Manager
or any other Person, the Company shall not, and neither the Member nor the
Manager nor any other Person on behalf of the Company shall, without the prior
unanimous consent of the Managers, including the Independent Manager, do any of
the following: (i) engage in any business or activity other than those set forth
in Section 2.3; (ii) except as provided in the Basic Documents, incur any
indebtedness, other than the Storm-Recovery Bonds, obligations under agreements
with third party or swap providers relating to any Series of Storm-Recovery
Bonds and ordinary course expenses as set forth in Article II, or assume or
guarantee any indebtedness of any other entity; (iii) make a general assignment
for the benefit of creditors; (iv) file a petition commencing a voluntary
bankruptcy case; (v) file a petition or answer seeking reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
statute, law or regulation; (vi) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it in
any proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of it or of its
assets or any substantial portion thereof; (vii) seek, consent to or acquiesce
in the appointment of a trustee, receiver or liquidator of it or of all or any
substantial part of its assets; (viii) consolidate or merge with or into any
other entity or convey or transfer substantially all of its properties and
assets substantially as an entirety to any entity; or (ix) amend this Agreement
or take action in furtherance of any such action. With regard to any action
contemplated by the preceding sentence, or with regard to any action taken or
determination made at any time when the Company is insolvent, each Manager will,
to the fullest extent permitted by law including Section 18-1101(c) of the Act,
owe its primary fiduciary duty to the Company (including the creditors of the
Company).
Section 3.5 Appointment and Vacancy. The Member will appoint each
Manager, including any Manager to be appointed by reason of an increase in the
number of Managers.
Section 3.6 Term. Each Manager shall hold office until his or her
successor shall be selected by the Member and qualified, or until his or her
earlier death, resignation or removal as provided in this Agreement.
Section 3.7 Removal. Subject to Section 3.4(a) and Section 3.15 of this
Agreement, the Member may remove, with or without cause, any Manager.
Section 3.8 Resignation. Any Manager may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time is specified
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therein, at the time of its receipt by the remaining Managers; provided that the
resignation of the Independent Manager shall not be effective until a
replacement Independent Manager has been appointed. The acceptance of a
resignation shall not be necessary to make it effective, unless so expressly
provided in the resignation.
Section 3.9 Place of Meetings of Managers. Any meetings of the Managers
may be held either within or without the State of Delaware at such place or
places as shall be determined from time to time by resolution of the Managers.
Section 3.10 Meetings of Managers. Meetings of the Managers may be held
when called by any Managers or Manager. The Manager or Managers calling any
meeting shall cause notice to be given of such meeting, including therein the
time, date and place of such meeting, to each Manager at least two Business Days
before such meeting. The business to be transacted at, or the purpose of, any
meeting of the Managers shall be specified in the notice or waiver of notice of
any such meeting. If fewer than all of the Managers are present in person, by
telephone or by proxy, business transacted at any such meeting shall be confined
to the business or purposes specifically stated in the notice or waiver of
notice of such meeting.
Section 3.11 Quorum; Majority Vote. At all meetings of the Managers,
the presence in person, by telephone or by proxy of a majority of the Managers
shall be necessary and sufficient to constitute a quorum for the transaction of
business unless a greater number is required by this Agreement or by law. The
act of a majority of the Managers present in person, by telephone or by proxy at
a meeting at which a quorum is present in person, by telephone or by proxy shall
be the act of the Managers, except as otherwise provided by law or this
Agreement. If a quorum shall not be present in person, by telephone or by proxy
at any meeting of the Managers, the Managers present in person, by telephone or
by proxy at the meeting may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
in person, by telephone or by proxy.
Section 3.12 Methods of Voting; Proxies. A Manager may vote either in
person, by telephone or by proxy executed in writing by the Manager; provided
that the Person designated to act as proxy for an Independent Manager must be an
Independent Manager.
Section 3.13 Actions Without a Meeting. Any action required or
permitted to be taken at a meeting of the Managers may be taken without a
meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the Managers having not fewer
than the minimum number of votes that would be necessary to take the action at a
meeting at which all Managers entitled to vote on the action were present and
voted. Copies of any such consents shall be filed with the minutes and permanent
records of the Company.
Section 3.14 Telephone and Similar Meetings. The Managers, or members
of any committee thereof, may participate in and hold meetings by means of
conference telephone or similar communications equipment by means of which all
Persons participating in the meeting can hear each other. Such participation in
any such meeting shall constitute presence in person at such meeting, except
where a Person participates in such meeting for the express purpose of objecting
to the transaction of any business on the ground that such meeting is not
lawfully called or convened.
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Section 3.15 Managers. The Member and each Manager shall take all
actions necessary from time to time to ensure that at all times the number of
Managers shall be not less than three nor more than five; provided, however,
that pursuant to Section 3.4, the Company shall at all times have at least one
Independent Manager. The Persons identified on Schedule C are hereby designated
the initial Managers of the Company.
ARTICLE IV
OFFICERS
Section 4.1 Designation; Term; Qualifications. The Managers may, from
time to time, designate one or more Persons to be officers of the Company. Any
officer so designated shall have such title and authority and perform such
duties as the Managers may, from time to time, delegate to them. Each officer
shall hold office for the term for which such officer is designated and until
his or her successor shall be duly designated and shall qualify or until his or
her death, resignation or removal as provided in this Agreement. Any Person may
hold any number of offices. No officer need be a Manager, the Member, a Delaware
resident, or a United States citizen. The Persons identified on Schedule D are
hereby designated the initial officers of the Company.
Section 4.2 Removal and Resignation. Any officer of the Company may be
removed as such, with or without cause, by the Managers at any time. Any officer
of the Company may resign as such at any time upon written notice to the
Company. Such resignation shall be made in writing and shall take effect at the
time specified therein or, if no time is specified therein, at the time of its
receipt by the Managers.
Section 4.3 Vacancies. Any vacancy occurring in any office of the
Company may be filled by the Managers.
Section 4.4 Compensation. The compensation, if any, of the officers of
the Company shall be fixed from time to time by the Managers.
ARTICLE V
MEMBER
Section 5.1 Powers. Subject to the provisions of this Agreement and the
Act, all powers shall be exercised by or under the authority of, and the
business and affairs of the Company shall be controlled by, the Member pursuant
to Section 5.3. Pursuant to Section 3.1, the Member has delegated such powers to
the Managers. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Member shall have the
following powers, subject to Section 3.4 in all cases:
First: To select and remove the Managers and prescribe such
powers and duties for them as may be consistent with the Act and other
applicable law and this Agreement.
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Second: To conduct, manage and control the affairs and
business of the Company, and to make such rules and regulations
therefor consistent with the Act and other applicable law and this
Agreement.
Third: To change the registered office of the Company in
Delaware from one location to another; to fix and locate from time to
time one or more other offices of the Company; and to designate any
place within or without the State of Delaware for the conduct of the
business of the Company.
Section 5.2 Compensation of Member. The Company shall have authority to
pay to the Member reasonable compensation for the Member's services to the
Company. It is understood that the compensation paid to the Member under the
provisions of this Section shall be determined without regard to the income of
the Company, shall not be deemed to constitute distributions to the recipient of
any profit, loss or capital of the Company and shall be considered as an
operating expense of the Company.
Section 5.3 Actions by the Member. All actions of the Member may be
taken by written resolution of the Member which shall be signed on behalf of the
Member by an authorized officer of the Member and filed with the minutes and
permanent records of the Company.
Section 5.4 Control by Member. To the extent the Member takes any
action with respect to the Company (including by means of its appointment of any
individual Manager or its control or employment of any individual Manager in any
other capacity), the Member, or any such Manager, as applicable, will act in
good faith in accordance with the terms of this Agreement, and make decisions
with respect to the business and daily operations of the Company independent of,
and not dictated by, in the case of any such Manager, the Member, or in either
case any Affiliate of the foregoing, and, to the fullest extent permitted by
law, including Section 18-1101(c) of the Act, any such Manager shall bear a
fiduciary duty to the Company (including its creditors) under the circumstances
set forth in Section 3.4.
Section 5.5 Special Member. Upon the occurrence of any event that
causes the Member to cease to be a member of the Company (other than upon
continuation of the Company without dissolution 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 6.1), the Person acting as the
Independent Manager pursuant to Section 3.4 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 the Special Member and shall
continue the Company without dissolution. The Special Member may not resign from
the Company nor transfer its rights as Special Member unless (a) a successor
Special Member has been admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (b) such successor has also accepted its
appointment as Independent Manager, provided, however, the Special Member shall
automatically cease to be a member of the Company upon the admission to the
Company of a substitute Member. The Special Member shall be a member of the
Company that has no interest in the profits, losses and capital of the Company
and has no right to receive any distributions of Company assets. Pursuant to
Section 18-301 of the Act, the Special Member shall not be required to make any
capital contributions to the Company and shall not receive a limited liability
company interest in the Company. The Special Member, in its capacity as Special
14
Member, may not bind the Company. Except as required by any mandatory provision
of the Act, the Special Member, in its capacity as Special Member, shall have no
right to vote on, approve or otherwise consent to any action by, or matter
relating to, the Company, including the merger, consolidation or conversion of
the Company. In order to implement the admission to the Company of the Special
Member pursuant to this Section 5.5, the Person acting as an Independent Manager
pursuant to Section 3.4 shall execute a counterpart to this Agreement. Prior to
its admission to the Company as Special Member, the Person acting as an
Independent Manager pursuant to Section 3.4 shall not be a member of the
Company.
ARTICLE VI
COMMON INTEREST
Section 6.1 General. The Common Interest constitutes personal property
and shall be freely transferable and assignable in whole but not in part upon
registration of such transfer and assignment on the books of the Company in
accordance with the procedures established for such purpose by the Managers of
the Company. Upon registration of the transfer and assignment of the Common
Interest on the books of the Company, the transferee/assignee shall be and
become the sole Member of the Company and shall have the rights and powers, and
be subject to the restrictions and liabilities, of the Member under this
Agreement and the Act, and the transferor/assignor shall cease to be the Member,
each as of the date of such registration. Notwithstanding the foregoing, the
Common Interest may not be transferred unless each Rating Agency (as defined in
the Indenture) then rating any Tranche or Series of Storm-Recovery Bonds shall
have confirmed in writing to the Trustee and the Company that such transfer will
not result in a reduction or withdrawal of the then-current rating by any such
Rating Agency of any outstanding Tranche or Series of Storm-Recovery Bonds. The
Common Interest of the Member in the Company shall be evidenced by a certificate
in the form set forth in Schedule B hereto.
Section 6.2 Distributions. The Member shall be entitled to receive, out
of the assets of the Company legally available therefor, when, as and if
declared by the Managers, distributions payable in cash in such amounts, if any,
as the Managers shall declare. 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 Section 18-607 of the Act or any other applicable law
or any Basic Document.
Section 6.3 Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or winding up of the
Company, the Member shall be entitled to all remaining assets of the Company
available for distribution to the Member after satisfaction (whether by payment
or the making of reasonable provision for the payment thereof) of all
liabilities, debts and obligations of the Company to creditors, as set forth in
Section 18-804 of the Act.
(b) Neither the sale of all or substantially all of the property or
business of the Company, nor the merger or consolidation of the Company into or
with another Company or
15
other entity, shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purpose of this Section 6.3.
(c) The commencement of a bankruptcy, insolvency, receivership or other
similar proceeding by or against the Company, the Special Member or the Member
shall not result in the dissolution of the Company or in the cessation of the
interest of the Member in the Company. The withdrawal or resignation of the
Member or the Special Member or the dissolution of the Member or the Special
Member shall not, by itself, constitute a dissolution of the Company.
(d) Subject to Section 5.5, upon the occurrence of any event that
causes the last remaining member or the Member of the Company to cease to be a
member of the Company (other than upon continuation of the Company without
dissolution 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 6.1), 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 or the Member in the Company.
(e) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or the Special Member shall not cause the Member or
Special Member, respectively, 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.
Section 6.4 Redemption. The Common Interest shall not be redeemable.
Section 6.5 Voting Rights. Except as otherwise set forth herein, the
Member shall have the sole right to vote on all matters as to which members of a
limited liability company shall be entitled to vote pursuant to the Act and
other applicable law.
Section 6.6 Company Dissolution. 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 Company is
continued without dissolution in a manner permitted by this Agreement or the Act
or (ii) the entry of a decree of judicial dissolution under Section 18-802 of
the Act.
ARTICLE VII
ALLOCATIONS; DISTRIBUTIONS; EXPENSES;
TAXES; BOOKS; RECORDS; AND BANK ACCOUNTS
Section 7.1 Allocations. Except as may be required by Section 704(c) of
the Code and Treasury Regulation ss. 1.704-1(b)(2)(iv)(f)(4), all items of
income, gain, loss, deduction, and
16
credit of the Company for each Fiscal Year shall be allocated to the Member.
Any credit available for federal income tax purposes shall be allocated to the
Member in the same manner.
Section 7.2 Distributions. All distributions shall be made to the
Member from surplus funds. Except as provided in Section 7.3, all distributions
shall be made in such amounts and at such times as determined by the Managers.
Section 7.3 Limitation Upon Distributions. No distribution shall be
declared and paid unless, after the distribution is made, the fair value of the
Company assets is in excess of all liabilities of the Company and no default has
occurred and is continuing under the Indenture or any Series of Storm-Recovery
Bonds then outstanding.
Section 7.4 Expenses. Except as otherwise provided in this Agreement,
and subject to the provisions of the Basic Documents, the Company shall be
responsible for all expenses and the allocation thereof, including:
(a) all expenses incurred by the Member or its Affiliates in
organizing the Company;
(b) all expenses related to the payment of the principal of and
interest on the Storm-Recovery Bonds issued by the Company;
(c) all expenses related to the business of the Company and all
routine administrative expenses of the Company, including any amounts
payable under the Administration Agreement and any Servicing Agreement,
the maintenance of books and records of the Company, and the
preparation and dispatch to the Member of checks, financial reports,
tax returns and notices required pursuant to this Agreement;
(d) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith;
(e) all expenses for indemnity or contribution payable by the
Company to any Person;
(f) all expenses incurred in connection with the collection of
amounts due to the Company from any Person;
(g) all expenses incurred in connection with the preparation of
amendments to this Agreement or any other Basic Document;
(h) all expenses incurred in connection with the liquidation,
dissolution and winding up of the Company; and
(i) all expenses otherwise allocated in good faith to the Company
by the Managers.
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Section 7.5 Tax Elections. The Managers shall make the following
elections on behalf of the Company:
(a) to elect the calendar year as the Company's Fiscal Year;
(b) to elect the accrual method of accounting;
(c) to elect to treat all organization and start-up costs of the
Company as deferred expenses amortizable over 60 months under Section
195 of the Code; and
(d) to elect with respect to such other federal, State and local
tax matters as the Managers shall agree upon from time to time;
provided, however, that the Managers will not cause the Company to be
treated or elect to treat the Company as other than an entity that is
disregarded as an entity separate from the Member unless the Managers
shall have first obtained an Opinion of Counsel that such action or
election will not cause any Storm-Recovery Bonds to be treated as other
than debt for purposes of the Code and will not cause any Storm
Recovery Property to be treated as received in a taxable exchange for
purposes of the Code.
Section 7.6 Annual Tax Information. The Managers shall cause the
Company to deliver to the Member all information necessary for the preparation
of the Member's federal or State income tax return.
Section 7.7 Tax Matters Member. The Member shall communicate and
negotiate with the Internal Revenue Service on any tax matter on behalf of the
Member and the Company.
Section 7.8 Maintenance of Books. The Company shall keep books and
records of accounts and shall keep minutes of the proceedings of the Member, the
Managers and each committee of the Managers. The Fiscal Year shall be the
accounting year of the Company.
Section 7.9 Reports. Within 60 days following the end of each Fiscal
Year during the term of the Company, the Managers shall cause to be furnished to
the Member and to the Commission a balance sheet, an income statement and a
statement of changes in Member's capital account for, or as of the end of, that
Fiscal Year. Such financial statements shall be prepared in accordance with the
accounting method selected by the Managers consistently applied (except as
therein noted), but need not be accompanied by an audit report from an
accounting firm unless otherwise required by the Basic Documents. The Managers
also may cause to be prepared or delivered such other reports as they may deem
appropriate. The Company shall bear the costs of all such financial statements
and reports.
Section 7.10 Bank and Investment Accounts. The Managers shall establish
and maintain one or more separate bank and investment accounts and arrangements
for Company funds in the Company's name with such financial institutions and
firms as the Managers determine.
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Mandatory Indemnification of the Member, the Special
Member, and the Managers. Any Person who was or is a party or is threatened to
be made a party to, or is involved in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative (each, a "Proceeding"), or any appeal in such a Proceeding or
any inquiry or investigation that could lead to such a Proceeding, by reason of
the fact that such Person is or was the Member, the Special Member or a Manager,
or by reason of the fact that the Member, such Special Member or such Manager is
or was serving at the request of the Company as a member, director, manager,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, limited liability
company, partnership, joint venture, partnership, trust, sole proprietorship,
employee benefit plan or other enterprise, shall be indemnified by the Company
to the fullest extent permitted by applicable law, as the same exists or may
hereafter be amended against judgments, penalties (including excise and similar
taxes and punitive damages), fines, settlements and reasonable expenses
(including attorneys' fees) actually incurred by such Person in connection with
such Proceeding. It is expressly acknowledged that the indemnification provided
in this Article VIII could involve indemnification for negligence or under
theories of strict liability. Notwithstanding anything herein to the contrary,
for so long as any Storm-Recovery Bonds are outstanding, no payment from funds
of the Company (as distinct from funds from other sources, such as insurance) of
any indemnity under this Article VIII shall be payable except out of funds
available for payment of Company expenses as provided in the Indenture or any
Additional Indenture.
Section 8.2 Mandatory Advancement of Expenses. To the fullest extent
permitted by law, expenses incurred by a Person of the type entitled to be
indemnified under Section 8.1 in defending any Proceeding shall be paid or
reimbursed by the Company in advance of the final disposition of the Proceeding,
without any determination as to such Person's ultimate entitlement to
indemnification under Section 8.1, upon receipt of a written affirmation by such
Person of such Person's good faith belief that such Person has met the standard
of conduct necessary for indemnification under applicable law and a written
undertaking by or on behalf of such Person to repay all amounts so advanced if
it shall ultimately be determined that such Person is not entitled to be
indemnified by the Company as authorized in Section 8.1 or otherwise. The
written undertaking shall be an unlimited general obligation of the Person but
need not be secured and shall be accepted without reference to financial ability
to make repayment.
Section 8.3 Indemnification of Officers, Employees and Agents. To the
fullest extent permitted by law, the Company shall indemnify and pay and advance
expenses to an officer, employee or agent of the Company to the same extent and
subject to the same conditions under which it may indemnify and pay and advance
expenses to the Member, the Special Member or any Manager under this Article
VIII; and the Company shall indemnify and pay and advance expenses to any Person
who is or was an officer, employee or agent of the Company and who is or was
serving at the request of the Company as a member, manager, director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic limited liability company, partnership,
corporation, partnership, joint venture, sole
19
proprietorship, trust, employee benefit plan or other enterprise against any
liability asserted against such Person and incurred by such Person in such a
capacity or arising out of such Person's status as such to the same extent and
subject to the same conditions that the Company may indemnify and pay and
advance expenses to the Member, the Special Member or any Manager under this
Article VIII.
Section 8.4 Nonexclusivity of Rights. The indemnification and
advancement and payment of expenses provided by this Article VIII (a) shall not
be deemed exclusive of any other rights to which the Member, the Special Member,
a Manager or other Person seeking indemnification may be entitled under any
statute, agreement, decision of the Member or disinterested Managers, or
otherwise both as to action in such Person's official capacity and as to action
in another capacity while holding such office, (b) shall continue as to any
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity and advancement and payment of expenses, and (c) shall inure
to the benefit of the heirs, executors, administrators, successors and assigns
of the Member, the Special Member, such Manager or such other Person.
Section 8.5 Contract Rights. The rights granted pursuant to this
Article VIII shall be deemed to be contract rights, and no amendment,
modification or repeal of this Article VIII shall have the effect of limiting or
denying any such rights with respect to actions taken or Proceedings arising
prior to any such amendment, modification or repeal.
Section 8.6 Insurance. The Company may purchase and maintain insurance
or other arrangement or both, at its expense, on behalf of itself or any Person
who is or was serving as the Member, the Special Member or a Manager, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a member, manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, partnership, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise, against
any liability, expense or loss, whether or not the Company would have the power
to indemnify such Person against such liability under the provisions of this
Article VIII.
Section 8.7 Savings Clause. If this Article VIII or any portion of this
Agreement shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify and hold harmless
the Member, the Special Member, each Manager or any other Person indemnified
pursuant to this Article VIII as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, to the fullest extent permitted by any applicable portion of this
Article VIII that shall not have been invalidated and to the fullest extent
permitted by applicable law.
Section 8.8 Other Ventures. It is expressly agreed that the Member, the
Special Member, any Manager and any Affiliates, officers, directors, managers,
stockholders, partners or employees of the Member, the Special Member or any
Manager, may engage in other business ventures of every nature and description,
whether or not in competition with the Company, independently or with others,
notwithstanding any provision to the contrary at law or in equity and the
Company shall not have any rights in and to any independent venture or activity
or the
20
income or profits derived therefrom; provided, however, that nothing in this
Section 8.8 limits the obligations of the Independent Manager under Section
3.4 or the Special Member under Section 5.5.
Section 8.9 Other Arrangements Not Excluded. The indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Article VIII:
(a) does not exclude any other rights to which a Person seeking
indemnification or advancement of expenses may be entitled under any
agreement, decision of the Member or otherwise, for either an action of
the Member, the Special Member or any Manager, officer, employee or
agent in the official capacity of such Person or an action in another
capacity while holding such position, except that indemnification,
unless ordered by a court, may not be made to or on behalf of the
Member, the Special Member or any Manager if a final adjudication
established that its acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to the cause
of action; and
(b) continues for a Person who has ceased to be the Member, the
Special Member or a Manager, officer, employee or agent and inures to
the benefit of the successors, heirs, executors and administrators of
such a Person.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Offset. Whenever the Company is to pay any sum to the
Member, any amounts the Member owes the Company may be deducted from such sum
before payment.
Section 9.2 Notices. Except as expressly set forth to the contrary in
this Agreement, all notices, requests, or consents provided for or permitted to
be given under this Agreement shall be in writing and shall be given either by
depositing such writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering such writing to the recipient in person, by reputable overnight
courier, or by facsimile transmission; and a notice, request or consent given
under this Agreement shall be effective on receipt by the Person to whom sent.
All notices, requests, and consents to be sent to the Member shall be sent to or
made to Florida Power & Light Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer or such other address as the Member may
specify by notice to the Company and the Managers. Any notice, request, or
consent to the Company or the Managers must be given to the Managers at the
following address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Managers. Any notice, request or consent to the Commission shall be sent or made
to Florida Public Service Commission; ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Executive Director and General Counsel. Whenever
any notice is required to be given by law or this Agreement, a written waiver
thereof, signed by the Person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
21
Section 9.3 Effect of Waiver or Consent. A waiver or consent, express
or implied, to or of any breach or default by any Person in the performance by
such Person of its obligations with respect to the Company shall not be a
consent or waiver to or of any other breach or default in the performance by
such Person of the same or any other obligations of such Person with respect to
the Company.
Section 9.4 Governing Law; Severability. THIS AGREEMENT SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION. In the event of a direct conflict between the provisions of this
Agreement and any mandatory provision of the Act, then the applicable provision
of the Act shall control. If any provision of this Agreement or the application
thereof to any Person or circumstance is held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of that provision to
other Persons or circumstances shall not be affected thereby and such provision
shall be enforced to the fullest extent permitted by law.
Section 9.5 No Dissolution. (a) To the fullest extent permitted by law,
the Member, the Special Member and each Manager hereby covenants and agrees (or
shall be deemed to have hereby covenanted and agreed) that, until the period
that is one year and one day after the termination of the Indenture, any
Additional Indenture and the payment in full of any Series of the Storm-Recovery
Bonds, any other amounts owed under the Indenture and any Additional Indenture,
including any amounts owed to third-party or swap providers, the Member, the
Special Member and such Manager will not consent to, or make application for, or
institute or maintain any action for, the dissolution of the Company under
Section 18-801 or 18-802 of the Act or otherwise.
(b) The provisions of this Section 9.5 shall survive the termination of
this Agreement and the resignation, withdrawal or removal of the Member, the
Special Member or any Manager. Nothing herein contained shall preclude
participation by the Member, the Special Member or a Manager in assertion or
defense of its claims in any such proceeding involving the Company.
Section 9.6 Amendment.
(a) Subject to Section 9.6(b), this Agreement may be amended by the
Member and the Company, with the consent of each Trustee and the satisfaction of
the Rating Agency Condition. Promptly after the execution of any such amendment
or consent, the Company shall furnish written notification of the substance of
such amendment or consent to each of the Rating Agencies. Prior to the execution
of any amendment to this Agreement, the Company and each Trustee shall be
entitled to receive and rely upon (i) an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
(ii) the Opinion of Counsel referred to in Section 3.06 of the Servicing
Agreement.
(b) Notwithstanding anything to the contrary in this Section 9.6, no
amendment or modification of this Agreement shall be effective except upon
satisfaction of the conditions precedent in this paragraph (b).
22
(1) At least 15 days prior to the effectiveness of any such
amendment or modification and after obtaining the other necessary
approvals set forth in Section 9.6(a) (except that the consent of each
Trustee may be subject to the consent of Bondholders if such consent is
required or sought by the Trustee in connection with such amendment or
modification), the Administrator shall have delivered to the
Commission's executive director and general counsel written
notification of any proposed amendment, which notification shall
contain:
(A) a reference to Docket No. 060038-EI;
(B) an officer's certificate stating that the proposed
amendment or modification has been approved by all parties to this
Agreement; and
(C) a statement identifying the person to whom the Commission
is to address any response to the proposed amendment or to request
additional time.
(2) If the Commission or its staff, within 15 days (subject to
extension as provided in clause (3)) of receiving a notification
complying with subparagraph (1), shall have delivered to the office of
the person specified in clause (1)(C) a written statement that the
Commission might object to the proposed amendment or modification,
then, subject to clause (4) below, such proposed amendment or
modification shall not be effective unless and until the Commission
subsequently delivers a written statement that it does not object to
such proposed amendment or modification.
(3) If the Commission or an authorized representative of the
Commission, within 15 days of receiving a notification complying with
subparagraph (1), shall have delivered to the office of the person
specified in clause (1)(C) a written statement requesting an additional
amount of time not to exceed thirty days in which to consider such
proposed amendment or modification, then such proposed amendment or
modification shall not be effective if, within such extended period,
the Commission shall have delivered to the office of the person
specified in clause (1)(C) a written statement as described in
subparagraph (2), unless and until the Commission subsequently delivers
a written statement that it does not object to such proposed amendment
or modification.
(4) If (a) the Commission or an authorized representative of the
Commission, shall not have delivered written notice that the Commission
might object to such proposed amendment or modification, within the
time periods described in subparagraphs (2) or (3), whichever is
applicable, or (b) the Commission or an authorized representative of
the Commission, has delivered such written notice but does not within
60 days of the delivery of the notification in (A) above, provide
subsequent written notice confirming that it does in fact object and
the reasons therefor or advise that it has initiated a proceeding to
determine what action it might take with respect to the matter, then
the Commission shall be conclusively deemed not to have any objection
to the proposed amendment or modification and such amendment or
modification may subsequently become effective upon satisfaction of the
other conditions specified in Section 9.6(a).
23
(5) Following the delivery of a statement from the Commission or an
authorized representative of the Commission to the Administrator under
subparagraph (2), the Administrator and the Company shall have the
right at any time to withdraw from the Commission further consideration
of any proposed amendment.
(6) For purpose of this Section 9.6, an "authorized representative
of the Commission" means any person authorized to act on behalf of the
Commission, as evidenced by an Opinion of Counsel (which may be the
general counsel) to the Commission.
Section 9.7 Headings and Sections. The headings in this Agreement are
inserted for convenience only and are in no way intended to describe, interpret,
define, or limit the scope, extent or intent of this Agreement or any provision
hereof.
Section 9.8 Binding Agreement. 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 Independent Mangers, in accordance with its terms. In addition, the
Independent Manager shall be an intended beneficiary of this Agreement.
Section 9.9 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 taken together shall constitute one and the same instrument.
24
IN WITNESS WHEREOF, this Agreement is hereby executed by the
undersigned as of _________, 2007.
MEMBER:
FLORIDA POWER & LIGHT COMPANY
By:
---------------------------------------
Name:
SPECIAL MEMBER AND INDEPENDENT
MANAGER:
By:
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
25
SCHEDULE A
----------
SCHEDULE OF CAPITAL CONTRIBUTIONS OF MEMBER
COMMON INTEREST
---------------
CAPITAL COMMON INTEREST
MEMBER'S NAME CONTRIBUTION PERCENTAGE CAPITAL ACCOUNT
------------- ------------ ---------------- ---------------
Florida Power & Light $* 100% $*
Company
---------------------
* 0.50% of original principal amount of the Bonds.
A-1
SCHEDULE B
----------
CERTIFICATE OF COMMON INTEREST
of
FPL RECOVERY FUNDING LLC
A Limited Liability Company
Formed under the Laws of the State of Delaware
This Certificate is issued and shall be held subject to the provisions
of the Limited Liability Company Agreement of FPL Recovery Funding LLC, a
limited liability company formed under the laws of the State of Delaware (the
"Company") dated as of April 16, 2007 of the Company, as amended from time to
time.
This Certificate of Common Interest certifies that Florida Power &
Light Company is the registered holder of the entire Common Interest of the
Company, which Common Interest shall be transferable only on the books of the
Company by the holder hereof in person or by a duly authorized attorney upon
surrender of this Certificate with a proper endorsement.
IN WITNESS WHEREOF, this Company has caused this Certificate to be
signed by one of its duly authorized Managers this __ day of April, 2007.
----------------------------------
Name:
Title: Manager
B-1
----------
For Value Received the undersigned hereby sells, assigns and transfers
unto the entire Common Interest of the Company represented by the within
Certificate and does hereby irrevocably constitute and appoint Attorney, to
transfer said Common Interest on the books of the Company with full power of
substitution in the premises.
Dated: ___________
B-2
SCHEDULE C
----------
MANAGERS
Names
-----
1) ▇▇▇▇ ▇. ▇▇▇▇▇▇
2) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
3) R. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
4) ▇▇▇▇ ▇▇▇▇▇▇ (Independent Manager)
C-1
SCHEDULE D
----------
OFFICERS
Names Office
----- ------
Moray ▇. ▇▇▇▇▇▇▇▇ President
▇▇▇▇ ▇. ▇▇▇▇▇▇ Treasurer
K. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chief Accounting Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assistant Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Assistant Treasurer
R. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Assistant Secretary
D-1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms...........................................................................1
Section 1.2 Other Definitional Provisions...............................................................5
ARTICLE II
FORMATION OF THE LIMITED LIABILITY COMPANY
Section 2.1 Formation; Filings..........................................................................6
Section 2.2 Name and Office.............................................................................7
Section 2.3 Business Purpose............................................................................7
Section 2.4 Term........................................................................................8
Section 2.5 No State Law Partnership....................................................................8
Section 2.6 Authority of Member.........................................................................8
Section 2.7 Liability to Third Parties..................................................................8
Section 2.8 Separateness................................................................................8
Section 2.9 Limited Liability and Bankruptcy Remoteness.................................................9
ARTICLE III
MANAGEMENT
Section 3.1 Management by Managers.....................................................................10
Section 3.2 Acts by Managers...........................................................................10
Section 3.3 Number and Qualifications..................................................................10
Section 3.4 Independent Manager........................................................................11
Section 3.5 Appointment and Vacancy....................................................................11
Section 3.6 Term.......................................................................................11
Section 3.7 Removal....................................................................................11
Section 3.8 Resignation................................................................................11
Section 3.9 Place of Meetings of Managers..............................................................12
Section 3.10 Meetings of Managers......................................................................12
Section 3.11 Quorum; Majority Vote.....................................................................12
Section 3.12 Methods of Voting; Proxies................................................................12
Section 3.13 Actions Without a Meeting.................................................................12
Section 3.14 Telephone and Similar Meetings............................................................12
Section 3.15 Managers..................................................................................13
ARTICLE IV
OFFICERS
Section 4.1 Designation; Term; Qualifications..........................................................13
Section 4.2 Removal and Resignation....................................................................13
Section 4.3 Vacancies..................................................................................13
Section 4.4 Compensation...............................................................................13
ARTICLE V
MEMBER
Section 5.1 Powers.....................................................................................13
Section 5.2 Compensation of Member.....................................................................14
Section 5.3 Actions by the Member......................................................................14
Section 5.4 Control by Member..........................................................................14
Section 5.5 Special Member.............................................................................14
ARTICLE VI
COMMON INTEREST
Section 6.1 General....................................................................................15
Section 6.2 Distributions..............................................................................15
Section 6.3 Rights on Liquidation, Dissolution or Winding Up...........................................15
Section 6.4 Redemption.................................................................................16
Section 6.5 Voting Rights..............................................................................16
Section 6.6 Company Dissolution........................................................................16
ARTICLE VII
ALLOCATIONS; DISTRIBUTIONS; EXPENSES; TAXES; BOOKS; RECORDS;
AND BANK ACCOUNTS
Section 7.1 Allocations................................................................................16
Section 7.2 Distributions..............................................................................17
Section 7.3 Limitation Upon Distributions..............................................................17
Section 7.4 Expenses...................................................................................17
Section 7.5 Tax Elections..............................................................................18
Section 7.6 Annual Tax Information.....................................................................18
Section 7.7 Tax Matters Member.........................................................................18
Section 7.8 Maintenance of Books.......................................................................18
Section 7.9 Reports....................................................................................18
Section 7.10 Bank and Investment Accounts..............................................................18
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Mandatory Indemnification of the Member, the Special Member, and the Managers..............19
Section 8.2 Mandatory Advancement of Expenses..........................................................19
Section 8.3 Indemnification of Officers, Employees and Agents..........................................19
Section 8.4 Nonexclusivity of Rights...................................................................20
Section 8.5 Contract Rights............................................................................20
Section 8.6 Insurance..................................................................................20
Section 8.7 Savings Clause.............................................................................20
Section 8.8 Other Ventures.............................................................................20
Section 8.9 Other Arrangements Not Excluded............................................................21
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Offset.....................................................................................21
Section 9.2 Notices....................................................................................21
Section 9.3 Effect of Waiver or Consent................................................................22
Section 9.4 Governing Law; Severability................................................................22
Section 9.5 No Dissolution.............................................................................22
Section 9.6 Amendment..................................................................................22
Section 9.7 Headings and Sections......................................................................24
Section 9.8 Binding Agreement..........................................................................24
Section 9.9 Counterparts...............................................................................24
SCHEDULE A: SCHEDULE OF CAPITAL CONTRIBUTIONS OF MEMBER................................................A-1
SCHEDULE B: CERTIFICATE OF COMMON INTEREST.............................................................B-1
SCHEDULE C: MANAGERS...................................................................................C-1
SCHEDULE D: OFFICERS...................................................................................D-1