FORM OF AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RSB BONDCO LLC Dated and Effective as of
Exhibit
3.5
FORM
OF
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
Dated
and Effective as of
______,
2007
TABLE
OF CONTENTS
Page
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ARTICLE
I
GENERAL
PROVISIONS
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SECTION
1.01 Definitions
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1
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SECTION
1.02 Sole Member; Registered Office and Agent
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2
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SECTION
1.03 Other Offices
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3
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SECTION
1.04 Name
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3
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SECTION
1.05 Purpose; Nature of Business Permitted;
Powers
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3
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SECTION
1.06 Limited Liability Company Agreement; Certificate of
Formation
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5
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SECTION
1.07 Separate Existence
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5
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SECTION
1.08 Limitation on Certain Activities
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9
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SECTION
1.09 No State Law Partnership
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10
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ARTICLE
II
CAPITAL
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SECTION
2.01 Initial Capital
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10
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SECTION
2.02 Additional Capital Contributions
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10
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SECTION
2.03 Capital Account
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11
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SECTION
2.04 Interest
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11
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ARTICLE
III
ALLOCATIONS;
BOOKS
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SECTION
3.01 Allocations of Income and Loss.
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11
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SECTION
3.02 Company to be Disregarded for Tax
Purposes
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12
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SECTION
3.03 Books of Account
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12
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SECTION
3.04 Access to Accounting Records
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12
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SECTION
3.05 Annual Tax Information
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12
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SECTION
3.06 Internal Revenue Service Communications
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13
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ARTICLE
IV
MEMBER
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SECTION
4.01 Powers
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13
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SECTION
4.02 Reimbursement of Member Expenses
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14
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SECTION
4.03 Other Ventures
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14
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SECTION
4.04 Actions by the Member
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14
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ARTICLE
V
OFFICERS
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SECTION
5.01 Designation; Term; Qualifications
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14
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i
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SECTION
5.02 Removal and Resignation
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16
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SECTION
5.03 Vacancies
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16
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SECTION
5.04 Compensation
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16
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ARTICLE
VI
MEMBERSHIP
INTEREST
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SECTION
6.01 General
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16
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SECTION
6.02 Distributions
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16
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SECTION
6.03 Rights on Liquidation, Dissolution or Winding
Up
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16
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SECTION
6.04 Redemption
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17
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SECTION
6.05 Voting Rights
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17
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SECTION
6.06 Transfer of Membership Interests
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17
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SECTION
6.07 Admission of Transferee as Member
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17
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ARTICLE
VII
MANAGERS
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SECTION
7.01 Managers
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18
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SECTION
7.02 Powers of the Managers
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19
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SECTION
7.03 Reimbursement of Expenses
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19
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SECTION
7.04 Removal of Managers
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19
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SECTION
7.05 Resignation of Manager
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19
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SECTION
7.06 Vacancies
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20
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SECTION
7.07 Meetings of the Managers
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20
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SECTION
7.08 Electronic Communications
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20
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SECTION
7.09 Committees of Managers.
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20
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SECTION
7.10 Limitations on Independent Managers
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21
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ARTICLE
VIII
EXPENSES
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SECTION
8.01 Expenses
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21
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ARTICLE
IX
PERPETUAL
EXISTENCE; DISSOLUTION, LIQUIDATION AND WINDING-UP
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SECTION
9.01 Existence
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22
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SECTION
9.02 Dissolution
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22
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SECTION
9.03 Accounting
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22
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SECTION
9.04 Certificate of Cancellation
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22
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SECTION
9.05 Winding Up
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23
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SECTION
9.06 Order of Payment of Liabilities Upon
Dissolution
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23
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SECTION
9.07 Limitations on Payments Made in
Dissolution
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23
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SECTION
9.08 Limitation on Liability
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23
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ii
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ARTICLE
X
INDEMNIFICATION
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SECTION
10.01 Indemnity
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23
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SECTION
10.02 Indemnity for Actions By or In the Right of the
Company
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24
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SECTION
10.03 Indemnity If Successful
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24
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SECTION
10.04 Expenses
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25
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SECTION
10.05 Advance Payment of Expenses
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25
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SECTION
10.06 Other Arrangements Not Excluded
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25
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ARTICLE
XI
MISCELLANEOUS
PROVISIONS
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SECTION
11.01 No Bankruptcy Petition; Dissolution
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26
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SECTION
11.02 Amendments
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26
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SECTION
11.04 Governing Law
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27
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SECTION
11.05 Headings
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27
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SECTION
11.06 Severability
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27
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SECTION
11.07 Assigns
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27
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SECTION
11.08 Enforcement by Independent Managers
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27
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SECTION
11.09 Waiver of Partition; Nature of Interest
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27
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EXHIBITS
AND SCHEDULES
Schedule
A Schedule of Capital
Contribution of Member
Schedule
B Managers
Schedule
C Officers
Exhibit
A
Management Agreement
iii
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
This
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, together with the
schedules attached hereto, (this “Agreement”) of RSB BONDCO LLC, a
Delaware limited liability company (the “Company”), is made and entered
into as of _______, 2007 by BALTIMORE GAS AND ELECTRIC COMPANY, a Maryland
corporation (including any additional or successor members of the Company
admitted to the Company as a member of the Company pursuant to the provisions
of
this Agreement other than Special Members, the “Member”) and acknowledged
and agreed to by ___________ and _____________, as the Independent Managers
(as
defined herein).
WHEREAS,
the Company was formed as a Delaware limited liability company under and
pursuant to the LLC Act (i) by the filing of the Certificate of Formation of
the
Company with the Secretary of State of the State of Delaware on March 8, 2007
(such execution and filing being hereby ratified and approved in all respects)
and (ii) by the entering into of a Limited Liability Company Agreement, dated
as
of May 2, 2007 (the “Original LLC Agreement”); and
WHEREAS,
the Member filed an Amended and Restated Certificate of Formation of the Company
with the Secretary of State of the State of Delaware on April 10, 2007 under
and
pursuant to the LLC Act (such execution and filing being hereby ratified and
approved in all respects); and
WHEREAS,
this Agreement amends and restates the Original LLC Agreement in all respects,
and from and after the date hereof constitutes the governing instrument of
the
Company;
NOW
THEREFORE, the Member (as defined below) hereby amends and restates the Original
LLC Agreement in its entirety as follows:
ARTICLE
I
GENERAL
PROVISIONS
SECTION
1.01 Definitions.
(a) Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
assigned to them in that certain Indenture (including Appendix A) dated
on or around ________, 2007 between the Company, as Issuer, and ______, a
_________ banking corporation, as indenture trustee (the “Indenture
Trustee”), as the same may be amended, restated, supplemented or otherwise
modified from time to time.
(b) All
terms defined 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.
1
(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, Schedule, Exhibit, Annex and
Attachment references contained in this Agreement are references to Sections,
Schedules, Exhibits, Annexes and Attachments in or to this Agreement unless
otherwise specified; and 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) Non-capitalized
terms used herein which are defined in the Requirements of Law shall, as the
context requires, have the meanings assigned to such terms in the Requirements
of Law, but without giving effect to amendments to the Requirements of
Law.
SECTION
1.02 Sole Member; Registered Office and
Agent.
(a) The
initial sole member of the Company shall be Baltimore Gas and
Electric Company, a Maryland corporation, or any additional or successor member
of the Company admitted to the Company pursuant to Sections 1.02(c),
6.06 and 6.07. The registered office and registered
agent of the Company in the State of Delaware shall be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. The Member continues as a member of the Company upon its
execution of a counterpart to this Agreement. The Member, without the
consent of any other Person, may change said registered office and agent from
one location to another in the State of Delaware and reflect such change as
necessary by amending this Agreement and the Certificate of Formation of the
Company. The Member shall provide notice of any such change to the
Indenture Trustee.
(b) 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 the transfer or assignment by the Member of all of its limited liability
company interest in the Company and the prior or simultaneous admission of
the
transferee or an additional member of the Company pursuant to Sections
6.06 and 6.07), each Person acting as an Independent Manager pursuant
to the terms of this Agreement 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 Special Member and shall continue
the Company without dissolution. No Special Member may resign from
the Company or transfer its rights as Special Member unless (i) a successor
Special Member has been admitted to the Company as Special Member by executing
a
counterpart to this Agreement, and (ii) such successor has also accepted its
appointment as Independent Manager pursuant to this Agreement; provided,
however, the Special Members shall automatically cease to be members
of
the Company upon the admission to the Company of a substitute Member, appointed
by the personal representative of the Person that had been the last remaining
Member. Pending such admission of the personal representative or its
nominee or designee, as the case may be, as a substitute Member, such former
Member (or if such former Member no longer exists, its personal representative),
shall retain the limited liability company interest in the Company of such
former Member, including without limitation, all economic rights associated
with
such interest (which economic rights shall continue to represent the sole
economic rights associated with any ownership interest in the
Company).
2
Upon
the
admission to the Company of a substitute Member, such substitute Member shall
acquire, upon terms agreed to by the former Member (or its personal
representative) and the substitute Member, all right, title and interest in
and
to such former Member’s limited liability company interest in the
Company. Each 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 (and no Special Member
shall be treated as a member of the Company for federal income tax
purposes). Pursuant to Section 18-301 of the LLC Act, a 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. A Special Member, in its capacity as Special Member, may not
bind the Company. Except as required by any mandatory provision of
the LLC Act, each 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
each Special Member, each Person acting as an Independent Manager
pursuant to this Agreement shall execute a counterpart to this
Agreement. Prior to its admission to the Company as Special Member,
each Person acting as an Independent Manager pursuant to this Agreement shall
not be a member of the Company. A “Special Member” means, upon such
Person’s admission to the Company as a member of the Company pursuant to this
Section 1.02(b), a Person acting as Independent Manager, in such Person’s
capacity as a member of the Company. A Special Member shall only have
the rights and duties expressly set forth in this Agreement. For
purposes of this Agreement, a Special Member is not included within the defined
term “Member.”
(c) The
Company may admit additional Members with the affirmative vote of a majority
of
the Managers, which vote must include the affirmative vote of all of the
Independent Managers. Notwithstanding the preceding sentence, it
shall be a condition to the admission of any additional Member that the sole
Member shall have received an opinion of outside tax counsel (as selected by
the
Member in form and substance reasonably satisfactory to the Member and the
Indenture Trustee) that the admission of such additional Member shall not cause
the Company to be treated, for federal income tax purposes, as having more
than
a “sole owner” and that the Company shall not be treated, for federal income tax
purposes, as an entity separate from such “sole owner”.
SECTION
1.03 Other Offices. The Company may have an
office at any place or places within or outside the State of Delaware that
may
at any time be established by the Member. The Member shall provide
notice to the Indenture Trustee of the location of the Company’s office or of
any change in the location of the Company’s office.
SECTION
1.04 Name. The name of the Company shall be
“RSB BONDCO LLC”. The name of the Company may be changed from time to
time by the Member with ten (10) days’ prior written notice to the Managers and
the Indenture Trustee, and the filing of an appropriate amendment to the
Certificate of Formation with the Secretary of State as required by the LLC
Act.
SECTION
1.05 Purpose; Nature of Business Permitted;
Powers. The purposes for which the Company is formed are limited
to:
3
(a) acquire,
own, hold, administer, service or enter into agreements regarding the receipt
and servicing of Rate Stabilization Property and the other Rate Stabilization
Bond Collateral, along with certain other related assets;
(b) manage,
sell, assign, pledge, collect amounts due on or otherwise deal with the Rate
Stabilization Property and the other Rate Stabilization Bond Collateral and
related assets to be so acquired in accordance with the terms of the Basic
Documents;
(c) negotiate,
authorize, execute, deliver, assume the obligations under, and perform its
duties under, the Basic Documents and any other agreement or instrument or
document relating to the activities set forth in clauses (a) and
(b) above; provided, that each party to any such agreement under
which material obligations are imposed upon the Company, solely in its capacity
as a creditor of 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
the payment in full of each Series of the Rate Stabilization Bonds and any
other
amounts owed under the Indenture, acquiesce, petition or otherwise invoke or
cause the Company to invoke the process of any court or 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, to the fullest extent permitted by law, 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;
(d) file
with the SEC one or more registration statements, including any pre-effective
or
post-effective amendments thereto and any registration statement filed pursuant
to Rule 462(b) under the Securities Act (including any prospectus supplement,
prospectus and exhibits contained therein) and file such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents necessary or desirable to register the
Rate Stabilization Bonds under the securities or “Blue Sky” laws of various
jurisdictions;
(e) authorize,
execute, deliver and issue Rate Stabilization Bonds from time to
time;
(f) pledge
its interest in Rate Stabilization Property and other Rate Stabilization Bond
Collateral to the Indenture Trustee under the Indenture in order to secure
the
Rate Stabilization Bonds; and
(g) engage
in any lawful act or activity and exercise any powers permitted to limited
liability companies formed under the laws of the State of Delaware that, in
either case, are incidental to, or necessary, suitable or convenient for the
accomplishment of the above-mentioned purposes.
4
The
Company shall engage only in any activities related to the foregoing purposes
or
required or authorized by the terms of the Basic Documents or other agreements
referenced above. The Company shall have all powers reasonably
incidental, necessary, suitable or convenient to effect the foregoing purposes,
including all powers granted under the LLC Act. The Company, the
Member, any Manager, including the Independent Managers (as defined herein),
or
any officer of the Company, acting singly or collectively, on behalf of the
Company, may enter into and perform the Basic Documents to which it is a party
and all registration statements, prospectuses, prospectus supplements,
documents, agreements, certificates or financing statements contemplated thereby
or related thereto and any amendments thereto, all without any further act,
vote
or approval of any Member, Manager or other Person, notwithstanding any other
provision of this Agreement, the LLC Act, or other applicable Requirements
of
Law. The authorization set forth in the preceding sentence shall not
be deemed a restriction on the power and authority of the Member or any Manager,
including the Independent Managers, to enter into other agreements or documents
on behalf of the Company as authorized pursuant to this Agreement and the LLC
Act. The Company shall possess and may exercise all the powers and privileges
granted by the LLC Act or by any other law or by this Agreement, together with
any powers incidental thereto, insofar as such powers and privileges are
incidental, necessary, suitable or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
SECTION
1.06 Limited Liability Company
Agreement. This Agreement shall constitute a “limited liability
company agreement” within the meaning of the LLC Act.
SECTION
1.07 Separate Existence. Except for
financial reporting purposes (to the extent required by generally accepted
accounting principles) and for federal income tax purposes and, to the extent
consistent with applicable state tax law, state income and franchise tax
purposes, the Member and the Managers shall take all steps necessary to continue
the identity of the Company as a separate legal entity and to make it apparent
to third Persons that the Company is an entity with assets, liabilities and
financial accounts distinct from those of the Member, Affiliates of the Member,
the Managers or any other Person, and that, the Company is not a division of
any
of the Member, Affiliates of the Member, the Company’s Affiliates or any other
Person. In that regard, and without limiting the foregoing in any
manner, the Company shall:
(a) maintain
office space separate and clearly delineated from the office space of any
Affiliate, owned by the Company or evidenced by a written lease or sublease
(even if located in an office owned or leased by, or shared with, an
Affiliate);
(b) maintain
the assets of the Company in such a manner that it is not costly or difficult
to
segregate, identify or ascertain its individual assets from those of any other
Person, including any Affiliate;
(c) maintain
a separate telephone number which will be answered only in its own
name;
(d) conduct
all transactions with Affiliates on an arm’s-length basis;
5
(e) not
guarantee, become obligated for or pay the debts of any Affiliate or hold the
credit of the Company out as being available to satisfy the obligations of
any
Affiliate or other Person (nor, except as contemplated in the Basic Documents,
indemnify any Person for losses resulting therefrom), nor, except as
contemplated in the Basic Documents, have any of its obligations guaranteed
by
any Affiliate or hold the Company out as responsible for the debts of any
Affiliate or other Person or for the decisions or actions with respect to the
business and affairs of any Affiliate, nor seek or obtain credit or incur any
obligation to any third Party based upon the creditworthiness or assets of
any
Affiliate or any other Person (i.e. other than based on the assets of the
Company) nor allow any Affiliate to do such things based on the credit of the
Company;
(f) except
as expressly otherwise permitted hereunder or under any of the Basic Documents,
not permit the commingling or pooling of the Company’s funds or other assets
with the funds or other assets of any Affiliate;
(g) maintain
separate deposit and other bank accounts and funds (separately identifiable
from
those of the Member or any other Person) to which no Affiliate has any access,
which accounts shall be maintained in the name and, to the extent not
inconsistent with applicable federal tax law, tax identification number of
the
Company;
(h) maintain
full books of accounts and records (financial or other) and financial statements
separate from those of its Affiliates or any other Person, prepared and
maintained in accordance with generally accepted accounting principles
(including, all resolutions, records, agreements or instruments underlying
or
regarding the transactions contemplated by the Basic Documents or otherwise)
and
audited annually by an independent accounting firm which shall provide such
audit to the Indenture Trustee;
(i) pay
its own liabilities out of its own funds, including fees and expenses of the
Administrator (as defined in the Administration Agreement) pursuant to the
Administration Agreement and the Servicer pursuant to any Servicing Agreement,
provided, however, the foregoing shall not require the Member to make any
additional capital contributions to the Company;
(j) compensate
(either directly or through reimbursement of the Company’s allocable share of
any shared expenses) all employees, consultants and agents and Affiliates,
to
the extent applicable, for services provided to the Company by such employees,
consultants and agents or Affiliates, in each case, from the Company’s own funds
and maintain a sufficient number of employees in light of its contemplated
operations;
(k) allocate
fairly and reasonably the salaries of and the expenses related to providing
the
benefits of officers or other employees shared with the Member, any Special
Member or any Manager;
(l) allocate
fairly and reasonably any overhead for office space shared with the Member,
any
Special Member or any Manager;
6
(m) pay
from its own bank accounts for accounting and payroll services, rent, lease
and
other expenses (or the Company’s allocable share of any such amounts provided by
one or more other Affiliate) and not have such operating expenses (or the
Company’s allocable share thereof) paid by any Affiliates, provided, that the
Member shall be permitted to pay the initial organization expenses of the
Company and certain of the expenses related to the transactions contemplated
by
the Basic Documents as provided therein;
(n) maintain
adequate capitalization to conduct its business and affairs considering the
Company’s size and the nature of its business and intended purposes and, after
giving effect to the transactions contemplated by the Basic Documents, refrain
from engaging in a business for which its remaining property represents an
unreasonably small capital, provided, however, the foregoing shall not require
the Member to make any additional capital contributions to the
Company;
(o) conduct
all of the Company’s business (whether in writing or orally) solely in the name
of the Company through the Member and the Company’s Managers, employees,
officers and agents and hold the Company out as an entity separate from any
Affiliate;
(p) not
make or declare any distributions of cash or property to the Member except
in
accordance with appropriate limited liability company formalities and only
consistent with sound business judgment to the extent that it is permitted
pursuant to the Basic Documents and not violative of any applicable
law;
(q) otherwise
practice and adhere to all limited liability company procedures and formalities
to the extent required by this Agreement or all other appropriate constituent
documents;
(r) not
appoint an Affiliate or any employee of an Affiliate as an agent of the Company,
except as otherwise permitted in the Basic Documents (although such Persons
can
qualify as a Manager or as an officer of the Company);
(s) not
acquire obligations or securities of or make loans or advances to or pledge
its
assets for the benefit of any Affiliate, the Member or any Affiliate of the
Member;
(t) not
permit the Member or any Affiliate to acquire obligations of or make loans
or
advances to the Company;
(u) except
as expressly provided in the Basic Documents, not permit the Member or any
Affiliate to guarantee, pay or become liable for the debts of the Company nor
permit any such Person to hold out its creditworthiness as being available
to
pay the liabilities and expenses of the Company nor, except for the indemnities
in this Agreement and the Basic Documents, indemnify any Person for losses
resulting therefrom;
(v) maintain
separate minutes of the actions of the Member and the Managers, including the
transactions contemplated by the Basic Documents;
7
(w) cause
(i) all written and oral communications, including letters, invoices, purchase
orders, and contracts, of the Company to be made solely in the name of the
Company, (ii) the Company to have its own tax identification number (to the
extent not inconsistent with applicable federal tax law), stationery, checks
and
business forms, separate from those of any Affiliate, (iii) all Affiliates
not
to use the stationery or business forms of the Company, and cause the Company
not to use the stationery or business forms of any Affiliate, and (iv) all
Affiliates not to conduct business in the name of the Company, and cause the
Company not to conduct business in the name of any Affiliate;
(x) direct
creditors of the Company to send invoices and other statements of account of
the
Company directly to the Company and not to any Affiliate and cause the
Affiliates to direct their creditors not to send invoices and other statements
of accounts of such Affiliates to the Company;
(y) cause
the Member to maintain as official records all resolutions, agreements, and
other instruments underlying or regarding the transactions contemplated by
the
Basic Documents;
(z) disclose,
and cause the Member to disclose, in its financial statements the effects of
all
transactions between the Member and the Company in accordance with generally
accepted accounting principles, and in a manner which makes it clear that (i)
the Company is a separate legal entity, (ii) the assets of the Company
(including the Rate Stabilization Property transferred to the Company pursuant
to the Sale Agreement) are not assets of any Affiliate and are not available
to
pay creditors of any Affiliate and (iii) neither the Member nor any other
Affiliate is liable or responsible for the debts of the Company;
(aa) treat
and cause the Member to treat the transfer of Rate Stabilization Property from
the Member to the Company as a sale under the Rate Stabilization
Law;
(bb) except
as described herein with respect to tax purposes and financial reporting,
describe and cause each Affiliate to describe the Company, and hold the Company
out as a separate legal entity and not as a division or department of any
Affiliate, and promptly correct any known misunderstanding regarding the
Company’s identity separate from any Affiliate or any Person;
(cc) so
long as any of the Rate Stabilization Bonds are outstanding, treat the Rate
Stabilization Bonds as debt for all purposes and specifically as debt of the
Company, other than for financial reporting or tax purposes or as required
under
the Public Utility Holding Company Act of 2005 and the Federal Power
Act;
(dd) solely
for purposes of federal taxes and, to the extent consistent with applicable
state, local and other tax law, solely for purposes of state, local and other
taxes, so long as any of the Rate Stabilization Bonds are outstanding, treat
the
Rate Stabilization Bonds as indebtedness of the Member secured by the Rate
Stabilization Bond Collateral unless otherwise required by appropriate taxing
authorities;
8
(ee) file
its own tax returns, if any, as may be required under applicable law, to the
extent (i) not part of a consolidated group filing a consolidated return or
returns or (ii) not treated as a division for tax purposes of another taxpayer,
and pay any taxes so required to be paid under applicable law;
(ff) maintain
its valid existence in good standing under the laws of the State of Delaware
and
maintain its qualification to do business under the laws of such other
jurisdictions as its operations require;
(gg) not
form, or cause to be formed, any subsidiaries;
(hh) comply
with all laws applicable to the transactions contemplated by this Agreement
and
the Basic Documents; and
(ii) cause
the Member to observe in all material respects all limited liability company
procedures and formalities, if any, required by its constituent documents and
the laws of its state of formation and all other appropriate
jurisdictions.
SECTION
1.08 Limitation on Certain
Activities. Notwithstanding any other provisions of this
Agreement and any applicable Requirements of Law that otherwise so empower
the
Company, the Member, the Managers, any officer of the Company or any other
Person, the Company, and the Member or the Managers, or any officer of the
Company or any other Person on behalf of the Company, shall
not:
(a) engage
in any business or activity other than as set forth in Article I
hereof;
(b) without
the affirmative vote of its Member and the affirmative vote of all of the
Managers, including all of the Independent Managers, file a voluntary petition
for relief under the Bankruptcy Code or similar law, consent to the institution
of insolvency or bankruptcy proceedings against the Company or otherwise
institute insolvency or bankruptcy proceedings with respect to the Company
or
take any company action in furtherance of any such filing or institution of
a
proceeding;
(c) without
the affirmative vote of its Member and the affirmative vote of all Managers,
including all of the Independent Managers, and then only to the extent permitted
by the Basic Documents, convert, merge or consolidate with any other Person
or
sell all or substantially all of its assets or acquire all or substantially
all
of the assets or capital stock or other ownership interest of any other
Person;
(d) take
any action, file any tax return, or make any election inconsistent with the
treatment of the Company, for purposes of federal income taxes and, to the
extent consistent with applicable state tax law, state income and franchise
tax
purposes, as a disregarded entity that is not separate from the
Member;
(e) incur
any indebtedness or assume or guarantee any indebtedness of any Person (other
than the indebtedness incurred under the Basic Documents); or
9
(f) to
the fullest extent permitted by law, without the affirmative vote of its Member
and the affirmative vote of all Managers, including all of the Independent
Managers, execute any dissolution, liquidation, or winding up of the
Company.
To
the
fullest extent permitted by applicable law, including Section 18-1101(c) of
the
LLC Act, the fiduciary duty of each Manager, including the two Independent
Managers, in respect of any decision on any matter referred to in this
Section 1.08 shall be owed solely to the Company (including its
creditors) and not to the Member or any other holders of equity interest in
the
Company as may exist at such time.
SECTION
1.09 No State Law Partnership. No provisions
of this Agreement shall be deemed or construed to constitute a partnership
(including a limited partnership) or joint venture, or the Member a partner
or
joint venturer of or with any Manager or the Company, for any
purposes.
SECTION
1.10 Authorized Person/Certificates. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ is hereby designated as an “authorized person” within the meaning
of the LLC Act, and has executed, delivered and filed the Certificate of
Formation of the Company and the Amended and Restated Certificate of Formation
of the Company with the Secretary of State of the State of Delaware, which
filings are hereby ratified and approved. Upon the filing of the
Amended and Restated Certificate of Formation with the Secretary of State of
the
State of Delaware, his powers as an “authorized person” ceased, and the Member
and each Manager thereupon became a designated “authorized person” and shall
continue as a designated “authorized person” within the meaning of the LLC
Act. The Member or Manager or officer shall execute, deliver and file
any other certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in any jurisdiction in
which
the Company may wish to conduct business.
The
existence of the Company as a
separate legal entity shall continue until cancellation of the Certificate
of
Formation as provided in the LLC Act.
ARTICLE
II
CAPITAL
SECTION
2.01 Initial Capital. The initial capital of
the Company shall be the sum of cash contributed to the Company by the Member
(the “Initial Capital Contribution”) in the amount set out opposite the
name of the Member on Schedule A hereto, as amended from time to time and
incorporated herein by this reference.
SECTION
2.02 Additional Capital Contributions. The
assets of the Company are expected to generate a return sufficient to satisfy
all obligations of the Company under this Agreement and the Basic Documents
and
any other obligations of the Company. It is expected that no capital
contributions to the Company will be necessary after the purchase of the initial
Rate Stabilization Property, except for capital contributions in connection
with
the issuance of one or more Series of Rate Stabilization Bonds. On or
prior to the date of issuance of each Series of Rate Stabilization Bonds, the
Member shall make an additional contribution to the Company in an amount equal
to at least 0.50% of the initial principal amount of such Series
(or
10
such
other amount permitted by any Subsequent Qualified Rate Order) or such greater
amount as agreed to by the Member in connection with the issuance by the Company
of any Series of Rate Stabilization Bonds which amount the Company shall deposit
into the Capital Subaccount established by the Indenture Trustee as provided
under Section 8.02 of the Indenture (the “Capital Subaccount
Contribution”). No capital contribution by the Member to the
Company will be made for the purpose of mitigating losses on Rate Stabilization
Property that has previously been transferred to the Company, and all capital
contributions shall be made in accordance with all applicable limited liability
company procedures and requirements, including proper record keeping by the
Member and the Company. Each capital contribution will be acknowledged by a
written receipt signed by any one of the Managers. The Managers
acknowledge and agree that, notwithstanding anything in this Agreement to the
contrary, such additional contribution will be managed by an investment manager
selected by the Indenture Trustee who shall invest such amounts only in Eligible
Investments, and all income earned thereon shall be allocated or paid by the
Indenture Trustee in accordance with the provisions of the
Indenture.
SECTION
2.03 Capital Account. A Capital Account
shall be established and maintained for the Member on the Company’s books (the
“Capital Account”).
SECTION
2.04 Interest. Except as provided in this
Agreement, no interest shall be paid or credited to the Member on its Capital
Account or upon any undistributed profits left on deposit with the Company,
and
the Member shall have no right to demand or receive the return of its Capital
Contribution. The Member will earn a return on its Capital Subaccount
Contribution only as provided in the Financing Credit Order.
ARTICLE
III
ALLOCATIONS;
BOOKS
SECTION
3.01 Allocations of Income and Loss.
(a) Book
Allocations. The net income and net loss of the Company shall be
allocated entirely to the Member.
(b) Tax
Allocations. Because the Company is not making (and
will not make) an election to be treated as an association taxable as a
corporation under Section 301.7701-3(a) of the Treasury Regulations, and because
the Company is a business entity that has a single owner and is not a
corporation, it is expected to be disregarded as an entity separate from its
owner for federal income tax purposes under Section 301.7701-3(b)(1) of the
Treasury Regulations. Accordingly, all items of income, gain, loss,
deduction and credit of the Company for all taxable periods will be treated
for
federal income tax purposes, and for state and local income and other tax
purposes to the extent permitted by applicable law, as realized or incurred
directly by the Member. To the extent not so permitted, all items of
income, gain, loss, deduction and credit of the Company shall be allocated
entirely to the Member as permitted by applicable tax law, and the Member shall
pay (or indemnify the Company, the Indenture Trustee and each of their officers,
managers, employees or agents for, and defend and hold harmless each such person
from and against its payment of) any taxes levied or assessed upon all or any
part of
11
the
Company’s property or assets based on existing law as of the date hereof,
including any sales, gross receipts, general corporation, personal property,
privilege, franchise or license taxes (but excluding any
taxes imposed as a result of a failure of such person to properly
withhold or remit taxes imposed with respect to payments on any Rate
Stabilization Bond). The Indenture Trustee (on behalf of the Secured
Parties) shall be third party beneficiaries of the Member’s obligations set
forth in this Section 3.01, it being understood that Bondholders shall be
entitled to enforce their rights against the Member under this Section
3.01 solely through a cause of action brought for their benefit by the
Indenture Trustee.
SECTION
3.02 Company to be Disregarded for Tax
Purposes. The Company shall comply with the applicable provisions
of the Code and the applicable Treasury Regulations thereunder in the manner
necessary to effect the intention of the parties that the Company be treated,
for federal income tax purposes, as a disregarded entity that is not separate
from the Member pursuant to Treasury Regulations Section 301.7701-1 et seq.
and
that the Company be accorded such treatment until its dissolution pursuant
to
Article IX hereof and shall take all actions, and shall refrain from
taking any action, required by the Code or Treasury Regulations thereunder
in
order to maintain such status of the Company. In addition, for
federal income tax purposes, the Company may not claim any credit on, or make
any deduction from the principal or premium, if any, or interest payable in
respect of, the Rate Stabilization Bonds (other than amounts properly withheld
from such payments under the Code or other tax laws) or assert any claim against
any present or former Bondholder by reason of the payment of the taxes levied
or
assessed upon any part of the Rate Stabilization Bond Collateral.
SECTION
3.03 Books of Account. At all times during
the continuance of the Company, the Company shall maintain or cause to be
maintained full, true, complete and correct books of account in accordance
with
generally accepted accounting principles, using the fiscal year and taxable
year
of the Member. In addition, the Company shall keep all records
required to be kept pursuant to the LLC Act.
SECTION
3.04 Access to Accounting Records. All books
and records of the Company shall be maintained at any office of the Company
or
at the Company’s principal place of business, and the Member, and its duly
authorized representative, shall have access to them at such office of the
Company and the right to inspect and copy them at reasonable times.
SECTION
3.05 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 income tax return.
SECTION
3.06 Internal Revenue Service
Communications. The Member shall communicate
and negotiate with the Internal Revenue Service on any federal tax
matter on behalf of the Member and the Company.
12
ARTICLE
IV
MEMBER
SECTION
4.01 Powers. Subject to the provisions of
this Agreement and the LLC 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 4.04. The Member may
delegate any or all 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:
(a) To
select and remove the Managers and all officers, agents and employees of the
Company, prescribe such powers and duties for them as may be consistent with
the
LLC Act and other applicable law and this Agreement, fix their compensation,
and
require from them security for faithful service; provided, that, at all
times the Company shall have at least two Independent Managers. The
Member shall appoint two Independent Managers pursuant to Article
VII. An “Independent Manager” is a Manager that is a natural
person and is not and has not been for at least five years from the date of
his
or her or its appointment (i) a direct or indirect legal or beneficial owner
of
the Company or the Member or any of their respective Affiliates, (ii) a
relative, supplier (other than an Independent Manager provided by a corporate
services company that provides independent managers in the ordinary course
of
its business), employee, officer, director (other than as an independent
director), manager (other than as an independent manager), contractor or
material creditor of the Company or the Member or any of their respective
Affiliates or (iii) a Person who controls (whether directly, indirectly or
otherwise) the Member or its Affiliates or any creditor, employee, officer,
director, manager or material supplier or contractor of the Member or its
Affiliates; provided, that the indirect or beneficial ownership of stock
of the Member or its Affiliates 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. All right,
power and authority of the Independent Managers shall be limited to the extent
necessary to exercise those rights and perform those duties specifically set
forth in this Agreement. Except as provided in this Agreement,
including Section 1.08, in exercising their rights and performing their
duties under this Agreement, any Independent Manager shall have a fiduciary
duty
of loyalty and care similar to that of a director of a business corporation
organized under the General Corporation Law of the State of
Delaware. No Independent Manager shall at any time serve as trustee
in bankruptcy for any Affiliate of the Company. The Company shall pay
the Independent Managers annual fees totaling not more than $[5,000] per year
(the “Independent Manager Fee”). Such fees 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 a fixed Operating Expense of the Company subject to the
limitations on such expenses set forth in the Qualified Rate
Order. Each Manager, including each Independent Manager, is hereby
deemed to be a “manager” within the meaning 18-101(10) of the LLC
Act.
(b) Subject
to Article VII hereof, to conduct, manage and control the affairs and
business of the Company, and to make such rules and regulations therefor
consistent with the LLC Act and other applicable law and this
Agreement.
13
(c) To
change the registered agent and 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
4.02 Reimbursement of Member Expenses. To
the extent permitted by applicable Requirements of Law, the Company shall have
authority to reimburse the Member for out-of-pocket expenses incurred by the
Member in connection with its service to the Company. It is
understood that the compensation paid to the Member under the provisions of
this
Section 4.02 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
4.03 Other Ventures. Not withstanding any
duty otherwise existing at law or in equity, it is expressly agreed that the
Member, the Managers and any Affiliates, officers, directors, managers,
stockholders, partners or employees of the Member, may engage in other business
ventures of any nature and description, whether or not in competition with
the
Company, independently or with others, and the Company shall not have any rights
in and to any independent venture or activity or the income or profits derived
therefrom.
SECTION
4.04 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 records of the Company.
ARTICLE
V
OFFICERS
SECTION
5.01 Designation; Term; Qualifications.
(a) Officers. The
officers of the Company as of the date hereof shall be designated by the
Member. The Managers may, from time to time, designate one or more
additional 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 its
successor shall be duly designated and shall qualify or until its 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 Member hereby appoints the
Persons identified on Schedule C to be the officers of the Company as of
the date hereof.
(b) President. The
President shall be the chief executive officer of the Company, shall preside
at
all meetings of the Managers, shall be responsible for the general and active
management of the business of the Company and shall see that all orders and
resolutions of the Managers are carried into effect. The President or
any other officer authorized by the President or the Managers may execute all
contracts, except: (i) where required or permitted by law or this
Agreement to be otherwise signed and executed, including Sections 1.05
and 1.08;
14
and
(ii)
where signing and execution thereof shall be expressly delegated by the Managers
to some other officer or agent of the Company.
(c) 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 Managers, 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 Managers may from time to time
prescribe.
(d) 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 Managers and record all the
proceedings of the meetings of the Company and of the Managers 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
Managers, and shall perform such other duties as may be prescribed by the
Managers 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 Managers (or if there
be no
such determination, then in order of their designation), 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 Managers may from time to time
prescribe.
(e) 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 Manager. The
Treasurer shall disburse the funds of the Company as may be ordered by the
Manager, taking proper vouchers for such disbursements, and shall render to
the
President and to the Managers, at its regular meetings or when the Managers
so
require, 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
Managers (or if there be no such determination, then in the order of their
designation), 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
Managers may from time to time prescribe.
(f) Officers
as Agents. The officers of the Company, to the extent their
powers as set forth in this Agreement or otherwise vested in them by action
of
the Managers are not inconsistent with this Agreement, are agents of the Company
for the purpose of the Company’s business and, subject to Section 1.08,
the actions of the officers taken in accordance with such powers shall bind
the
Company.
(g) Duties
of Managers and Officers. Except to the extent otherwise modified
herein, each Manager and officer of the Company shall have a fiduciary duty
of
loyalty and care
15
similar
to that of directors and officers of business corporations organized under
the
General Corporation Law of the State of Delaware.
SECTION
5.02 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
5.03 Vacancies. Any vacancy occurring in any
office of the Company may be filled by the Managers.
SECTION
5.04 Compensation. The compensation, if any,
of the officers of the Company shall be fixed from time to time by the
Managers. Such compensation 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
an Operating Expense of the Company.
ARTICLE
VI
MEMBERSHIP
INTEREST
SECTION
6.01 General. “Membership Interest”
means the limited liability company interest of the Member
in the Company. The
Membership Interest constitutes personal property and, subject to Section
6.06, 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.
SECTION
6.02 Distributions. The Member shall be
entitled to receive, out of the assets of the Company legally available
therefor, 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 -the LLC Act or any other applicable law or any
Basic
Document.
SECTION
6.03 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 reasonable
provision for payment) of all liabilities, debts and obligations of the
Company.
(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 Person
or
other entity, shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purpose of this Section
6.03.
16
SECTION
6.04 Redemption. The Membership Interest
shall not be redeemable.
SECTION
6.05 Voting Rights. Subject to the terms of
this Agreement, 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 LLC Act and other applicable law.
SECTION
6.06 Transfer of Membership Interests.
(a) The
Member may transfer its Membership Interest, in whole but not in part, but
the
transferee shall not be admitted as a Member except in accordance with
Section 1.02 or 6.07. Until the transferee is admitted
as a Member, the Member shall continue to be the sole member of the Company
(subject to Section 1.02) and to be entitled to exercise any rights or
powers of a Member of the Company with respect to the Membership Interest
transferred.
(b) To
the fullest extent permitted by law, any purported transfer of any Membership
Interest in violation of the provisions of this Agreement shall be wholly void
and shall not effectuate the transfer contemplated
thereby. Notwithstanding anything contained herein to the contrary
and to the fullest extent permitted by law, the Member may not transfer any
Membership Interest in violation of any provision of this Agreement or in
violation of any applicable federal or state securities laws.
SECTION
6.07 Admission of Transferee as Member.
(a) A
transferee of a Membership Interest desiring to be admitted as a Member must
execute a counterpart of, or an agreement adopting, this Agreement and, except
as permitted by paragraph (b) below, shall not be admitted without unanimous
affirmative vote of the Managers, which vote must include the affirmative vote
of two Independent Managers. Upon admission of the transferee as a
Member, the transferee shall have the rights, powers and duties and shall be
subject to the restrictions and liabilities of the Member under this Agreement
and the LLC Act. The transferee shall also be liable, to the extent
of the Membership Interest transferred, for the unfulfilled obligations, if
any,
of the transferor Member to make capital contributions to the Company, but
shall
not be obligated for liabilities unknown to the transferee at the time such
transferee was admitted as a Member and that could not be ascertained from
this
Agreement. Except as set forth in paragraph (b) below, whether or not
the transferee of a Membership Interest becomes a Member, the Member
transferring the Membership Interest is not released from any liability to
the
Company under this Agreement or the LLC Act.
(b) The
approval of the Managers, including the Independent Managers, shall not be
required for a transfer under Section 1.02 or for the transfer of the
Membership Interest from the Member to any successor pursuant to Section
5.02 of the Sale Agreement or the admission of such Person as a
Member. Once the transferee of a Membership Interest pursuant to this
paragraph (b) becomes a Member, the prior Member shall be released from any
liability to the Company under this Agreement and the LLC Act. The
transferee of the Membership Interest pursuant to Section 5.02 of the
Sale Agreement shall be admitted to the Company as a Member of the Company
upon
its execution of a counterpart to this Agreement.
(c) If
the Member transfers all of its Membership Interest in accordance with this
Agreement, the admission of the transferee shall be deemed effective immediately
prior to the
17
transfer
and, immediately following such admission, the transferor Member shall cease
to
be a member of the Company.
ARTICLE
VII
MANAGERS
SECTION
7.01 Managers.
(a) Subject
to Section 1.08 and Article VII, the business and affairs of the Company
shall be managed by or under the direction of two or more Managers designated
by
the Member. Subject to the terms of this Agreement, the Member may
determine at any time in its sole and absolute discretion the number of
Managers. Subject in all cases to the terms of this Agreement, the
authorized number of Managers may be increased or decreased by the Member at
any
time in its sole and absolute discretion, upon notice to all Managers;
provided, that, at all times the Company shall have at least two
Independent Managers. The number of Managers as of the date hereof
shall be five, two of which shall be Independent
Managers.
(b) Each
Manager shall be designated by the Member and shall hold office for the term
for
which designated and until a successor has been designated or until such
Manager’s earlier death, resignation, expulsion or removal. Each
Manager shall execute and deliver the management agreement in the form attached
hereto as Exhibit A (such management agreement to be deemed incorporated
into, and part of, this Agreement. Managers need not be a
Member. The Managers designated by the Member are listed on
Schedule B hereto.
(c) 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.
(d) Except
as otherwise provided in this Agreement, the Managers shall act by the
affirmative vote of a majority of the Managers. Each Manager shall
have the authority to sign duly authorized agreements and other instruments
on
behalf of the Company without the joinder of any other Manager.
(e) Subject
to the terms of this Agreement, any action may be taken by the Managers without
a meeting and without prior notice if authorized by the written consent of
a
majority of the Managers (or such greater number as is required by this
Agreement), which written consent shall be filed with the records of the
Company.
(f) 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 Company name 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.
18
SECTION
7.02 Powers of the Managers. Subject to the
terms of this Agreement, the Managers shall have the right and authority to
take
all actions which the Managers deem incidental, necessary, suitable or
convenient for the day-to-day management and conduct of the Company’s
business.
The
Independent Managers may not delegate their duties, authorities or
responsibilities hereunder. If any 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 qualifies and
approves such action.
Each
Independent Manager will, to the fullest extent permitted by law, including
Section 18-1101(c) of the LLC Act, owe its primary fiduciary duty to the Company
(including the creditors of the Company).
No
Independent Manager shall at any time serve as trustee in bankruptcy for any
Affiliate of the Company.
Subject
to the terms of this Agreement, the Managers may exercise all powers of the
Company and do all such lawful acts and things as are not prohibited by the
LLC
Act, other applicable law or this Agreement directed or required to be exercised
or done by the Member. All duly authorized 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.
SECTION
7.03 Reimbursement of Expenses. To the
extent permitted by applicable Requirements of Law, the Company may reimburse
any Manager, directly or indirectly, for out-of-pocket expenses incurred by
such
Manager in connection with its services rendered to the Company. Such
reimbursement shall be determined by the Managers 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 an
Operating Expense of the Company.
SECTION
7.04 Removal of Managers.
(a) Subject
to Sections 4.01 and 7.01, the Member may remove any Manager with
or without cause at any time.
(b) Subject
to Sections 4.01 and 7.05, any removal of a Manager shall become
effective on such date as may be specified by the Member and in a notice
delivered to any remaining Managers or the Manager designated to replace the
removed Manager (except that it shall not be effective on a date earlier than
the date such notice is delivered to the remaining or newly-elected
Manager). Should a Manager be removed who is also the
Member, the Member shall continue to participate in the Company as the Member
and receive its share of the Company’s income, gains, losses, deductions and
credits pursuant to this Agreement.
SECTION
7.05 Resignation of Manager. A Manager other
than an Independent Manager may resign as a Manager at any time by thirty (30)
days’ prior notice to the Member.
19
An
Independent Manager may not withdraw or resign as a Manager of the Company
without the consent of the Member. No resignation or removal of an
Independent Manager, and no appointment of a successor Independent Manager,
shall be effective until such successor (i) shall have accepted his or her
appointment as an Independent Manager by a written instrument, which may be
a
counterpart signature page to the Management Agreement, and (ii) shall have
executed a counterpart to this Agreement as required by Section
1.02(b).
SECTION
7.06 Vacancies. Subject to Section
4.01, any vacancies among the Managers may be filled by the
Member. In the event of a vacancy in the position of Independent
Manager, the Member shall, as soon as practicable, appoint a successor
Independent Manager.
SECTION
7.07 Meetings of the Managers. The Managers
may hold meetings, both regular and special, within or outside the State of
Delaware. Regular meetings of the Managers may be held without notice
at such time and at such place as shall from time to time be determined by
the
Managers. Special meetings of the Managers may be called by the
President on not less than one day’s notice to each Manager by telephone,
facsimile, mail, telegram or any other means of communication, and special
meetings shall be called by the President or Secretary in like manner and with
like notice upon the written request of any one or more of the
Managers.
SECTION
7.08 Electronic Communications. Managers, or
any committee designated by the Managers, may participate in meetings of the
Managers, 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 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.
SECTION
7.09 Committees of Managers.
(a) The
Managers may, by resolution passed by a majority of the Managers, designate
one
or more committees, each committee to consist of one or more of the
Managers. The Managers may designate one or more Managers as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
(b) 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 Manager
to act at the meeting in the place of any such absent or disqualified
member.
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|
(i)
|
Any
such committee, to the extent provided in the resolution of the Managers,
shall have and may exercise all the powers and authority of the Managers
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
Managers. Each committee shall keep regular minutes of its
meetings and report the same to the Managers when
required.
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20
SECTION
7.10 Limitations on Independent
Managers. All right, power and authority of the Independent
Managers shall be limited to the extent necessary to exercise those rights
and
perform those duties specifically set forth in this Agreement.
ARTICLE
VIII
EXPENSES
SECTION
8.01 Expenses. Except as otherwise provided
in this Agreement or the Basic Documents, the Company shall be responsible
for
all expenses and the allocation thereof including without
limitation:
(a) all
expenses incurred by the Member or its Affiliates in organizing the
Company;
(b) all
expenses related to the business of the Company and all routine administrative
expenses of the Company, including the maintenance of books and records of
the
Company, the preparation and dispatch to the Member of checks, financial
reports, tax returns and notices required pursuant to this
Agreement;
(c) 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;
(d) all
expenses for indemnity or contribution payable by the Company to any
Person;
(e) all
expenses incurred in connection with the collection of amounts due to the
Company from any Person;
(f) all
expenses incurred in connection with the preparation of amendments to this
Agreement;
(g) all
expenses incurred in connection with the liquidation, dissolution and winding
up
of the Company; and
(h) all
expenses otherwise allocated in good faith to the Company by the
Managers.
21
ARTICLE
IX
PERPETUAL
EXISTENCE; DISSOLUTION, LIQUIDATION AND WINDING-UP
SECTION
9.01 Existence.
(a) The
Company shall have a perpetual existence. So long as any of the
Company’s Rate Stabilization Bonds shall remain Outstanding, to the fullest
extent permitted by law, the Member shall not be entitled to consent to the
dissolution of the Company.
(b) Notwithstanding
any provision of this Agreement, the bankruptcy (as defined in the LLC Act)
of
the Member or a Special Member will not cause such Member or Special 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. Upon
the occurrence of any event that causes the last remaining member of the Company
to cease to be a member of the Company or that causes the Member of the Company
to cease to be a member of the Company (other than upon continuation of the
Company without dissolution upon the transfer or assignment by the Member of
all
of its limited liability company interest in the Company and the prior or
simultaneous admission of the transferee as a member of the Company pursuant
to
Section 6.06 and 6.07), to the fullest extent permitted by law,
the personal representative of such member is hereby authorized to, and shall,
within ninety (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.
SECTION
9.02 Dissolution. The Company shall be
dissolved and its affairs shall be wound up upon the occurrence of the earliest
of the following events:
(a) subject
to Sections 1.07, 1.08 and 9.01(a), the election to
dissolve the Company made in writing by the Member and each Manager, including
the Independent Managers, as permitted under the Basic Documents and after
the
discharge in full of the Rate Stabilization Bonds;
(b) the
occurrence of any event that causes the last remaining member of the Company
to
cease to be a member of the Company unless the business of the Company is
continued without dissolution in a manner permitted by the LLC Act or this
Agreement; or
(c) the
entry of a decree of judicial dissolution of the Company pursuant to Section
18-802 of the LLC Act.
SECTION
9.03 Accounting. In the event of the
dissolution, liquidation and winding-up of the Company, a proper accounting
shall be made of the Capital Account of the Member and of the net income or
net
loss of the Company from the date of the last previous accounting to the date
of
dissolution.
22
SECTION
9.04 Certificate of Cancellation. As soon as
possible following the occurrence of any of the events specified in Section
9.02 and the completion of the winding up of the Company, the Person winding
up the business and affairs of the Company, as an authorized person within
the
meaning of the LLC Act, shall cause to be executed a Certificate of Cancellation
of the Certificate of Formation and file the Certificate of Cancellation of
the
Certificate of Formation as required by the LLC Act.
SECTION
9.05 Winding Up. Upon the occurrence of any
event specified in Section 9.02, the Company shall continue solely
for the purpose of winding up its affairs in an orderly manner, liquidating
its
assets, and satisfying the claims of its creditors. The Member, or if
there is no Member, the Managers, shall be responsible for overseeing the
winding up and liquidation of the Company, shall take full account of the
liabilities of the Company and its assets, shall either cause its assets to
be
sold or distributed, and if sold as promptly as is consistent with obtaining
the
fair market value thereof, shall cause the proceeds therefrom, to the extent
sufficient therefor, to be applied and distributed as provided in Section
9.06.
SECTION
9.06 Order of Payment of Liabilities Upon
Dissolution. After determining that all debts and liabilities of
the Company, including all contingent, conditional or unmatured liabilities
of
the Company, in the process of winding-up, including, without limitation, debts
and liabilities to the Member in the event it is a creditor of the Company
to
the extent otherwise permitted by law, have been satisfied or adequately
provided for, the remaining assets shall be distributed in cash or in kind
to
the Member.
SECTION
9.07 Limitations on Payments Made in
Dissolution. Except as otherwise specifically provided in this
Agreement, the Member shall only be entitled to look solely to the assets of
Company for the return of its positive Capital Account balance and shall have
no
recourse for its Capital Contribution and/or share of net income (upon
dissolution or otherwise) against any Manager.
SECTION
9.08 Limitation on Liability. Except as
otherwise provided by the LLC Act and except as otherwise characterized for
tax
and financial reporting purposes, the debts, obligations and liabilities of
the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member or Manager
shall be obligated personally for any such debt, obligation or liability of
the
Company solely by reason of being a Member or a Manager.
ARTICLE
X
INDEMNIFICATION
SECTION
10.01 Indemnity. Subject to the provisions of
Section 10.04 hereof, to the fullest extent permitted by law,
the Company shall indemnify any Person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except
an
action by or in the right of the Company, by reason of the fact that such Person
is or was a Manager, Member, Special Member, officer, controlling Person,
employee, legal representative or agent of the Company, or is or was serving
at
the request of the Company as a member, manager, director,
23
officer,
partner, shareholder, controlling Person, employee, legal representative or
agent of another limited liability company, partnership, corporation, joint
venture, trust or other enterprise, against expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Person in connection with the action, suit or proceeding if such Person
acted in good faith and in a manner which such Person reasonably believed to
be
in or not opposed to the best interests of the Company, and, with respect to
a
criminal action or proceeding, had no reasonable cause to believe such Person’s
conduct was unlawful; providedthat such Person shall not be entitled to
indemnification if such judgment, penalty, fine or other expense was directly
caused by such Person’s fraud, gross negligence or willful
misconduct.
SECTION
10.02 Indemnity for Actions By or In the Right of the
Company. Subject to the provisions of Section 10.04
hereof, to the fullest extent permitted by law, the Company shall indemnify
any
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the rights of the
Company to procure a judgment in its favor by reason of the fact that such
Person is or was a Member, Manager, Special Member, officer, controlling Person,
employee, legal representative or agent of the Company, or is or was serving
at
the request of the Company as a member, manager, director, officer, partner,
shareholder, controlling Person, employee, legal representative or agent of
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise, against expenses, including amounts paid in
settlement and attorneys’ fees actually and reasonably incurred by such Person
in connection with the defense or settlement of the actions or suit if such
Person acted in good faith and in a manner which such Person reasonably believed
to be in or not opposed to the best interests of the Company; provided
that such Person shall not be entitled to indemnification if such judgment,
penalty, fine or other expense was directly caused by such Person’s fraud, gross
negligence or willful misconduct. Indemnification may not be made for
any claim, issue or matter as to which such Person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the Company or for amounts paid in settlement to the Company, unless
and only to the extent that the court in which the action or suit was brought
or
other court of competent jurisdiction determines upon application that in view
of all the circumstances of the case, the Person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
SECTION
10.03 Indemnity If Successful. To the
fullest extent permitted by law, the Company shall indemnify any Person who
is
or was a Manager, Member, Special Member, officer, controlling Person, employee,
legal representative or agent of the Company, or is or was serving at the
request of the Company as a member, manager, director, officer, partner,
shareholder, controlling Person, employee, legal representative or agent of
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise against expenses, including attorneys’ fees, actually
and reasonably incurred by him or her in connection with the defense of any
action, suit or proceeding referred to in Sections 10.01 and 10.02
or in defense of any claim, issue or matter therein, to the extent that such
Person has been successful on the merits.
SECTION
10.04 Expenses. Any indemnification under
Sections 10.01 and 10.02, as well as the advance payment of
expenses permitted under Section 10.05 unless ordered by a court or
advanced pursuant to Section 10.05 below, must be made by the Company
only as
24
authorized
in the specific case upon a determination that indemnification of the Manager,
Member, Special Member, officer, controlling Person, employee, legal
representative or agent is proper in the circumstances. The
determination must be made:
(a) by
the Member if the Member was not a party to the act, suit or proceeding;
or
(b) if
the Member was a party to the act, suit or proceeding by independent legal
counsel in a written opinion.
SECTION
10.05 Advance Payment of Expenses. The
expenses of each Person who is or was a Manager, Member, Special Member,
officer, controlling Person, employee, legal representative or agent, or is
or
was serving at the request of the Company as a member, manager, director,
officer, partner, shareholder, controlling Person, employee, legal
representative or agent of another limited liability company, corporation,
partnership, joint venture, trust or other enterprise, incurred in defending
a
civil or criminal action, suit or proceeding may be paid by the Company as
they
are incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such Person to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that such Person is not entitled to be indemnified by the
Company. The provisions of this Section 10.05 shall not affect
any rights to advancement of expenses to which personnel other than the Member
or the Managers (other than the Independent Managers) may be entitled under
any
contract or otherwise by law.
SECTION
10.06 Other Arrangements Not Excluded. The
indemnification and advancement of expenses authorized in or ordered by a court
pursuant to this Article X:
(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 any Person who is or was a Manager,
Member, Special Member, officer, controlling Person, employee, legal
representative or agent, or is or was serving at the request of the Company
as a
member, manager, director, officer, partner, shareholder, controlling Person,
employee, legal representative or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise, in the
official capacity of such Person or an action in another capacity while holding
such position, except that indemnification and advancement, unless ordered
by a
court pursuant to Section 10.05 above, may not be made to or on behalf of
such Person if a final adjudication established that its acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law and
were material to the cause of action; and
(b) continues
for a Person who has ceased to be a Member, Manager, Special Member, officer,
employee, legal representative or agent and inures to the benefit of the
successors, heirs, executors and administrators of such a Person.
25
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
SECTION
11.01 No Bankruptcy Petition; Dissolution.
(a) To
the fullest extent permitted by law, the Member, each Special Member and each
Manager, solely in its capacity as a creditor of the Company, hereby covenant
and agree (or shall be deemed to have hereby covenanted and agreed) that, prior
to the date which is one year and one day after the termination of the Indenture
and the payment in full of every Series of Rate Stabilization Bonds and any
other amounts owed under the Indenture, it will not acquiesce, petition or
otherwise invoke or cause the Company to invoke the process of any court or
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; provided, however, that nothing
in
this Section 11.01 shall constitute a waiver of any right to
indemnification, reimbursement or other payment from the Company pursuant to
this Agreement. This Section 11.01 is not intended to apply to
the filing of a voluntary bankruptcy petition on behalf of the Company which
is
governed by Sections 1.08 and 7.02 of this Agreement.
(b) To
the fullest extent permitted by law, the Member, each Special Member and each
Manager hereby covenants and agrees (or shall be deemed to have hereby
covenanted and agreed) that, until the termination of the Indenture and the
payment in full of any Series of the Rate Stabilization Bonds and any other
amounts owed under the Indenture, the Member, such 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 LLC Act or otherwise.
(c) In
the event that the Member, any Special Member or any Manager takes action in
violation of this Section 11.01, the Company agrees that it shall file an
answer with the court or otherwise properly contest the taking of such action
and raise the defense that the Member, the Special Member or Manager, as the
case may be, has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its counsel
advises that it may assert.
(d) The
provisions of this Section 11.01 shall survive the termination of this
Agreement and the resignation, withdrawal or removal of the Member, any Special
Member or any Manager. Nothing herein contained shall preclude
participation by the Member, any Special Member or a Manager in assertion or
defense of its claims in any such proceeding involving the Company.
SECTION
11.02 Amendments.
(a) The
power to alter, amend or repeal this Agreement shall be only on the consent
of
the Member, provided, that the Company shall not alter, amend or repeal
any
26
provision
of Sections 1.02(b), 1.05, 1.07, 1.08,
3.01(b), 3.02, 6.06, 6.07, 7.02, 7.05,
9.01, 9.02, 11.01, 11.02 and 11.07 of this
Agreement or the definition of an Independent Manager contained herein or the
requirement that at all times the Company have at least two Independent Managers
without, in each case, the affirmative vote of a majority of the Managers,
which
vote must include the affirmative vote of all of the Independent Managers;
and
(b) The
Company’s power to alter or amend the Certificate of Formation shall be vested
in the Member. Upon obtaining the approval by the Member of any
amendment, supplement or restatement as to the Certificate of Formation, the
Member on behalf of the Company shall cause a Certificate of Amendment or
Amended and Restated Certificate of Formation to be prepared, executed and
filed
in accordance with the LLC Act.
SECTION
11.03 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
11.04 Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not
define or limit any of the terms or provisions hereof.
SECTION
11.05 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision (if any)
or the remaining provisions hereof (unless such construction shall be
unreasonable), and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION
11.06 Assigns. Each and all of the covenants,
terms, provisions and agreements contained in this Agreement shall be binding
upon and inure to the benefit of the Member, and its permitted successors and
assigns.
SECTION
11.07 Enforcement by Independent
Managers. 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 Managers in accordance with its terms. The Independent
Managers are intended beneficiaries of this Agreement.
SECTION
11.08 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 and the
Special Members 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
27
the
Company, and the Member shall not have the status of a creditor with respect
to
any distribution pursuant to this Agreement.
SECTION
11.09 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.
[SIGNATURE
PAGE
FOLLOWS]
28
IN
WITNESS WHEREOF, this Agreement is hereby executed by the undersigned and is
effective as of the date first written above.
|
BALTIMORE
GAS AND ELECTRIC COMPANY
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
ACKNOWLEDGED
AND AGREED:
______________,
as
Independent Manager
|
|
|
______________,
as
Independent Manager
|
|
SCHEDULE
A
SCHEDULE
OF CAPITAL CONTRIBUTIONS OF MEMBER
|
MEMBER’S
NAME
|
INITIAL
CAPITAL
CONTRIBUTION
|
MEMBERSHIP
INTEREST
PERCENTAGE
|
CAPITAL
ACCOUNT
|
|
Baltimore
Gas and Electric Company
|
$[
]
|
100%
|
$[
]
|
SCHEDULE
A
1
SCHEDULE
B
MANAGERS
SCHEDULE
B
1
SCHEDULE
C
OFFICERS
|
Name
|
Office
|
|
President
|
|
|
Vice
President and Treasurer
|
|
|
Secretary
|
|
|
Assistant
Treasurer
|
|
|
Assistant
Secretary
|
|
|
Assistant
Secretary
|
SCHEDULE
C
1
EXHIBIT
A
MANAGEMENT
AGREEMENT
________,
2007
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re:
Management Agreement — RSB BONDCO LLC
Ladies
and Gentlemen:
For
good
and valuable consideration, each of the undersigned Persons, who have been
designated as managers of RSB BONDCO LLC, a Delaware limited liability company
(the “Company”), in accordance with the Limited Liability Company
Agreement of the Company, dated as of __________, 200_ (as it may be amended,
restated, supplemented or otherwise modified from time to time, the “LLC
Agreement”), hereby agree as follows:
1. Each
of the undersigned accepts such Person’s rights and authority as a Manager under
the LLC Agreement and agrees to perform and discharge such Person’s duties and
obligations as a Manager under the LLC Agreement, and further agrees that such
rights, authorities, duties and obligations under the LLC Agreement shall
continue until such Person’s successor as a Manager is designated or until such
Person’s resignation or removal as a Manager in accordance with the LLC
Agreement. Each of the undersigned agrees and acknowledges that it
has been designated as a “manager” of the Company within the meaning of the
Delaware Limited Liability Company Act.
2. Until
a year and one day has passed since the date that the last obligation under
the
Basic Documents was paid, to the fullest extent permitted by law, each of the
undersigned agrees, solely in its capacity as a creditor of the Company on
account of any indemnification or other payment owing to the undersigned by
the
Company, not to acquiesce, petition or otherwise invoke or cause the Company
to
invoke the process of any court or governmental authority for the purpose of
commencing or sustaining an involutary 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.
3. THIS
MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED
BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
EXHIBIT
A
1
Capitalized
terms used and not otherwise defined herein have the meanings set forth in
the
LLC Agreement.
This
Management Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Management Agreement and all of which
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the undersigned have executed this Management Agreement as
of
the day and year first above written.
___________________
___________________
___________________
___________________
___________________
EXHIBIT
A
2