EXHIBIT 3
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
PSEG ENERGY HOLDINGS L.L.C.
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, (the "Agreement") of PSEG Energy Holdings
L.L.C., a New Jersey limited liability company (the "Company"), is entered into
by Public Service Enterprise Group Incorporated, a New Jersey corporation, as
the sole member (the "Initial Member"). Capitalized terms used herein and not
otherwise defined have the meanings set forth on Schedule A hereto.
The Initial Member, by execution of this Agreement, (i) hereby forms and
continues the Company as a limited liability company pursuant to and in
accordance with the New Jersey Limited Liability Company Act, as amended from
time to time (the "Act"), and (ii) hereby agrees as follows:
1. Name.
The name of the limited liability company heretofore formed and continued
hereby is PSEG Energy Holdings L.L.C.
2. Principal Business Office.
The principal business office of the Company shall be located at such
location as may hereafter be determined by the Initial Member.
3. Registered Office.
The address of the registered office of the Company in the State of New
Jersey is ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
4. Registered Agent.
The name and address of the registered agent of the Company for service of
process on the Company in the State of New Jersey is ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., c/o
Public Service Enterprise Group Incorporated, ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
5. Members.
The name and the mailing address of the Initial Member is set forth on
Schedule B attached hereto. The Initial Member is as of the date hereof, and
after the issuance of the Units authorized herein, an owner of one Ordinary Unit
and 5,092 Preference Units.
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6. Membership Interest.
a. The interests of the Members in the Company shall be divided into
increments (each a "Unit" and collectively the "Units"). There shall
be two classes of Units: the "Ordinary Unit" and the "Preference
Units", with a par value of $100,000 per Preference Unit. The Company
is hereby authorized to issue one Ordinary Unit and 5,092 Preference
Units.
b. The Company hereby issues to the Initial Member one Ordinary Unit and
5,092 Preference Units.
7. Preference Units.
a. Distributions. A Member owning Preference Units shall be entitled to
receive, and the Company shall be obliged to pay, but only when and as
declared by the Board, cash distributions thereon, for all quarterly
calendar periods through December 31, 2002 at a rate per Preference
Unit per annum of 6.60%, and no more, and thereafter, for all
quarterly calendar periods through June 30, 2008, at a rate per
Preference Unit per annum of 4.47%, and no more, and thereafter, cash
distributions shall be paid at such rate as shall be established by
the Board. Cash distributions pursuant to this Section 7(a) shall, in
each case, be payable quarterly, with respect to each quarterly
calendar period, on or prior to the last day of each March, June,
September and December of each calendar year. Cash distributions on
each Preference Unit shall be cumulative from the date hereof.
b. Restrictions on Distributions. So long as any of the Preference Units
remain outstanding, no distribution shall be paid on or set apart for
the Ordinary Unit, nor shall any Ordinary Unit be purchased, redeemed,
or otherwise acquired by the Company or any subsidiary thereof (other
than Units acquired without cost to the Company or such subsidiary)
unless:
(i) all distributions on all outstanding Preference Units for all
past quarterly periods in which distributions shall have been
made shall have been paid in full and distributions thereon for
the then current quarterly period shall have been declared and a
sum sufficient for the payment thereof set apart; and
(ii) after giving effect to the payment of such distribution or such
purchase, redemption, or other acquisition, the capital of the
Company, shall in the aggregate exceed the aggregate of the
amounts payable in respect of all Preference Units then
outstanding on involuntary liquidation or dissolution of the
Company.
c. Rights of Preference Units. Preference Units shall not be entitled to
exercise any voting rights or rights to manage or direct the business
or
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affairs of the Company. Preference Units are entitled solely to the
rights specified in this Section 7.
d. Redemption. The Preference Units may be redeemed at the option of the
Board at any time at par value plus an amount equal to all accumulated
and unpaid distributions thereon to the date of redemption, whether or
not such distributions have been earned or declared. All Preference
Units redeemed by the Company shall be deemed to no longer exist.
e. Rights on Dissolution. On dissolution of the Company, before any
payment or distribution shall be made to the owner of the Ordinary
Unit, if such dissolution is involuntary, each Member owning
Preference Units shall be entitled to be paid the sum of $100,000 per
Preference Unit, or, if such dissolution is voluntary, each Member
owning Preference Units shall be entitled to be paid the amount
established by the Board, plus an amount equal to all accumulated and
unpaid distributions thereon to the date of such payment, whether or
not such distributions have been earned or declared. After such
payments shall have been made in full to all Members owning Preference
Units, Preference Units shall be entitled to no further payment or
distribution. For the purposes of this Section 7(e), a consolidation
or merger to which the Company shall be a party shall not be deemed a
dissolution of the Company within the meaning of this Section 7(e).
f. Transferability. The Preference Units are not transferable.
8. Certificates.
The Initial Member has formed the Company pursuant to the Act upon
execution of this Agreement, by causing a Certificate of Formation conforming to
the requirements of the Act to be filed with the Office of the Secretary of
State of the State of New Jersey. The Initial Member or an 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
other jurisdiction in which the Company may wish to conduct business.
9. Purposes.
The Company is formed for the object and purpose of, and the nature of the
business to be conducted and promoted by the Company is, engaging in any lawful
act or activity for which limited liability companies may be formed under the
Act.
10. Powers.
The Company shall have the power and right to do any and all acts
necessary, appropriate, proper, advisable, incidental or convenient to or for
the furtherance of the purposes and business described herein or as permitted by
the Act and shall have, without limitation, the power and right to:
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a. acquire by purchase, lease, transfer, contribution of property or
otherwise, own, hold, sell, convey, transfer or dispose of any real or
personal property and all associated rights and liabilities which may
be necessary, convenient or incidental to the accomplishment of the
purpose of the Company;
b. act as a nominee, bailee, director, officer, agent or in some other
fiduciary capacity for any person or entity and to exercise all of the
powers, duties, rights and responsibilities associated therewith;
c. take any and all actions necessary, convenient or appropriate as
nominee, bailee, director, officer, agent or other fiduciary,
including the granting or approval of waivers, consents or amendments
of rights or powers relating thereto and the execution of appropriate
documents to evidence such waivers, consents or amendments;
d. operate, purchase, maintain, finance, improve, own, sell, convey,
assign, mortgage, lease or demolish or otherwise dispose of any real
or personal property which may be necessary, convenient or incidental
to the accomplishment of the purposes of the Company;
e. borrow money and issue evidences of indebtedness in furtherance of any
or all of the purposes of the Company, and secure the same by
mortgage, pledge or other lien on the assets of the Company;
f. invest any funds of the Company pending distribution or payment of the
same pursuant to the provisions of this Agreement;
g. prepay in whole or in part, refinance, recast, increase, modify or
extend any indebtedness of the Company and, in connection therewith,
execute any extensions, renewals or modifications of any mortgage or
security agreement securing such indebtedness;
h. enter into, perform and carry out contracts of any kind, including,
without limitation, contracts with any person or entity affiliated
with the Member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the Company;
i. employ or otherwise engage employees, managers, contractors, advisors,
attorneys and consultants and pay reasonable compensation for such
services;
j. form, own, acquire and dispose of wholly-owned limited liability
companies, trusts, associations, partnerships (general and limited),
corporations or other ventures in furtherance of the purposes of the
Company;
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k. enter into partnerships (general and limited), limited liability
companies, trusts, associations, corporations or other ventures with
other persons or entities, including affiliated entities, in
furtherance of the purposes of the Company; and
l. do such other things and engage in such other activities related to
the foregoing as may be necessary, appropriate, proper, advisable,
incidental or convenient to the conduct of the business of the
Company, and have and exercise all of the powers and rights conferred
upon limited liability companies formed pursuant to the Act.
The listing of powers and rights in this Section 10 shall not in any manner
be deemed a restriction on the power or right of the Company to engage in any
other activities permitted or not prohibited by the Act.
11. Management.
a. Board of Managers. The business and affairs of the Company shall be
managed by and under the direction of a Board comprised of one or more
Managers to be elected, designated or appointed by the Initial Member.
The Initial Member may determine at any time in its sole and absolute
discretion the number of Managers to constitute the entire Board. The
authorized number of Managers may be increased or decreased by the
Initial Member at any time in its sole and absolute discretion. The
initial number of Managers shall be six. The names and mailing
addresses of the persons designated as Initial Managers are set forth
in Schedule C attached hereto. Each Manager elected, designated or
appointed by the Initial Member shall hold office until his or her
successor is elected and qualified or until such Manager's earlier
death, resignation or removal. As a condition and qualification to
serving as a Manager, each Manager shall execute and deliver to the
Company the Management Agreement set forth in Schedule D attached
hereto. Managers need not be Members.
▇. ▇▇▇▇▇▇. The Board shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or
otherwise.
c. Meeting of the Board of Managers. The Board of Managers of the Company
may hold meetings, both regular and special, within or outside the
State of New Jersey. Regular meetings of the Board may be held without
notice at such time and at such place as shall from time to time be
determined by the Board. Special meetings of the Board may be called
by the Chairman of the Board or President on not less than 24 hours
notice to each Manager by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by
the Chairman of the Board, President or Secretary in like manner and
with like notice upon the written request of any one or more of the
Managers. A special
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meeting of the Board may be held without prior notice if all Managers
waive, in writing, the requirement of such notice.
d. Quorum; Acts of the Board. At all meetings of the Board, a majority of
the Managers shall constitute a quorum for the transaction of business
and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Managers present at any
meeting at which there is a quorum shall be the act of the Board. If a
quorum shall not be present at any meeting of the Board, the Managers
present at such meeting may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum
shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without
a meeting if all members of the Board or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
e. Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or
any committee, by means of telephone conference or similar
communications equipment that allows all persons participating in the
meeting to hear each other, and such participation in a meeting shall
constitute presence in person at the meeting. If all the participants
are participating by telephone conference or similar communications
equipment, the meeting shall be deemed to be held at the principal
place of business of the Company.
f. Committees of Managers.
(i) The Board may designate one or more committees, each committee to
consist of one or more of the Managers of the Company. The Board
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.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute
a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii)Any such committee, to the extent provided in the resolution of
the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and
affairs of the Company. Such committee or committees shall have
such name or names as may be determined from time to time by
resolution adopted by the Board. Each committee shall keep
regular minutes
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of its meetings and report the same to the Board when required.
If not otherwise specified by the Board, unless there is only one
member of a committee (in which case one member shall constitute
a quorum for the transaction of business), one-third of the
entire committee, or two members, whichever is greater, shall
constitute a quorum for the transaction of business.
g. Compensation of Managers; Expenses. The Board shall have the authority
to fix the compensation of Managers. The Manager may be paid their
expenses, if any, of attendance at meetings of the Board, which may be
a fixed sum for attendance at each meeting of the Board and/or a
stated retainer for each Manager. No such payment shall preclude any
Manager from serving the Company in any other capacity and receiving
compensation thereof. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
h. Removal of Managers. Unless otherwise restricted by law, any Manager
or the entire Board of Managers may be removed, with or without cause,
by the Initial Member, and, any vacancy caused by any such removal may
be filled by action of the Initial Member.
i. Managers as Agents. To the exent of their powers set forth in this
Agreement the Managers are agents of the Company for the purpose of
the Company's business, and the actions of the Managers taken in
accordance with such powers set forth in this Agreement shall bind the
Company. However, except as provided in this Agreement, no Manager
shall have the authority to bind the Company in his or her individual
capacity. Any and all actions of the Board must be taken at duly
authorized meeting of the Board or upon unanimous written consent of
the Board.
j. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board of Managers, and shall have such other powers
and perform such other duties as may be assigned to him by the Initial
Member.
12. Duties of Managers.
Except as provided in this Agreement, in exercising their rights and
performing their duties under this Agreement, the Managers shall have a
fiduciary duty of loyalty and care to the Company comparable to that of a
director of a business corporation organized under the New Jersey Business
Corporation Act.
13. Officers.
a. Officers. The initial Officers of the Company are listed on Schedule E
attached hereto. The Officers of the Company shall be chosen by the
Board and shall consist of a Chairman of the Board, President, a
Secretary
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and a Treasurer. The Board of Managers may also choose one or more
Executive Vice Presidents, Senior Vice Presidents, one or more Vice
Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers. Any number of offices may be held by the same
person. Each Officer shall hold office until his or her successor is
elected and qualified or until such officer's earlier resignation or
removal. Any Officer may resign at any time upon written notice to the
Company. In addition, the Board may appoint such other Officers and
agents as it shall deem necessary or advisable who shall hold their
offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board. The
salaries of all Officers and employees of the Company shall be fixed
by or in the manner prescribed by the Board. Any initial Officer or
any Officer elected or appointed by the Board may be removed at any
time, with or without cause, by the affirmative vote of a majority of
the Board. Any vacancy occurring in any office of the Company shall be
filled by the Board. The Chairman of the Board, the President, each
Executive Vice President, each Senior Vice President, and each Vice
President, severally, shall have the power to (i) sign deeds,
contracts and other instruments; (ii) to attend, act and vote at any
meeting of stockholders, partners, members, beneficial owners or the
substantial equivalent of any corporation, partnership (limited or
general), limited liability company, trust or any other entity in
which the Company may hold stock, partnership interests, limited
liability company interests, beneficial interests or other interests
and to appoint, if permitted by the relevant entity, one or more other
persons as proxy or proxies to attend, act, and vote at any such
meeting and such officer or such proxy or proxies shall possess and
may exercise on behalf of the Company any and all rights and powers
incident to its ownership of such stock, partnership interests,
limited liability company interests, beneficial interests or other
interests; and (iii) shall have such powers and perform such duties as
may be assigned by the Board of Managers, or any Committee of the
Board, in addition to any powers and duties that are assigned
specifically by this Agreement.
b. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board of Managers, and shall have such other powers
and perform such other duties as may be assigned to him by the Board
of Managers. The Chairman of the Board shall be the chief executive
officer of the Company with plenary powers of supervision and
direction of the business and affairs of the Company.
c. President. The President shall have charge of the coordination and
supervision of all matters of operation of the Company. In the absence
of the Chairman of the Board, the President shall have the powers and
perform the duties of the Chairman of the Board.
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d. Executive Vice President. The Executive Vice Presidents, severally, in
the order designated by the chief executive officer, shall, in the
absence of the President, have the powers and perform the duties of
the President, and in the absence of the Chairman of the Board and the
President, they shall have the powers and perform the duties of the
Chairman of the Board.
e. Senior Vice President. The Senior Vice Presidents, severally, in the
order designated by the chief executive officer, shall, in the absence
of the President and the Executive Vice Presidents, have the powers
and perform the duties of the President, and in the absence of the
Chairman of the Board , the President, and the Executive Vice
Presidents, they shall have the powers and perform the duties of the
Chairman of the Board.
f. Vice President. The Vice Presidents, severally, in the order
designated by the chief executive officer, shall, in the absence of
the President, Executive Vice Presidents and the Senior Vice
Presidents, have the powers and perform the duties of the President,
and in the absence of the Chairman of the Board, the President, the
Executive Vice Presidents and the Senior Vice Presidents, they shall
have the powers and perform the duties of the Chairman of the Board.
g. Secretary and Assistant Secretary. The Secretary shall be responsible
for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all
the meetings of the Company and of the Board and shall perform like
duties for special and standing committees when required. The
Secretary shall give, or cause to be given, notice of all meetings of
the Initial Member, if any, and special meetings of the Board, and
shall perform such other duties as may be prescribed by the Board, the
Chairman of the Board or the President, under whose supervision the
Secretary shall serve. The Assistant Secretary, or if there be more
than one, the Assistant Secretaries in the order determined by the
Board (or if there be no such determination then in order of their
election), shall, in the absence of the Secretary or in the event of
the Secretary's inability to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
h. Treasurer and Assistant Treasurer. The Treasurer shall have the
authority to open all bank accounts, including brokerage accounts, as
necessary to conduct the business of the Company, and shall have
custody of the Company funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to
the Company and shall deposit all moneys and other valuable effects in
the name and to the credit of the Company in such depositories as may
be designated by the Board or the Treasurer. The Treasurer shall
disburse the funds of the Company as may be ordered by the Board,
taking proper vouchers for such disburements, and shall render to the
Chairman of the Board, the President
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and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the
financial condition of the Company. The Assistant Treasurers, or if
there shall be more than one, the Assistant Treasurers in the order
determined by the Board (or if there be no such determination, then in
the order of their election), shall, in the absence of the Treasurer
or in the event of the Treasurer's inability to act, perform the
duties and exercise the powers of the Treasurer and shall perform such
other duties and have such other powers as the Board may from time to
time prescribe.
i. Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the
Board not inconsistent with this Agreement, are agents of the Company
for the purpose of the Company's business, and, the actions of the
Officers taken in accordance with such powers shall bind the Company.
j. Duties of Officers. Except to the extent otherwise provided herein,
each Officer shall have a fiduciary duty of loyalty and care similar
to that of officers of business corporations organized under the New
Jersey Business Corporation Act.
14. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be the debts, obligations and liabilities solely of the Company, and
neither any Member nor any Manager nor any Officer shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Member, a Manager or an Officer of the Company.
15. Capital Contributions.
The Initial Member shall be deemed admitted to the Company effective as of
the date of this Agreement. The Initial Member shall contribute the amount of
cash to the Company listed on Schedule B attached hereto.
16. Additional Contributions.
The Initial Member is not required to make any additional capital
contribution to the Company. However, the Initial Member may make additional
capital contributions to the Company at any time. To the extent that the Initial
Member makes an additional capital contribution to the Company, Schedule B of
this Agreement does not need to be revised; rather, the Secretary or Treasurer
shall modify the books and records of the Company to reflect such additional
capital contribution. The provisions of this Agreement, including this Section
16, are intended solely to benefit the Initial Member and, to the fullest extent
permitted by law, shall not be construed as conferring any benefit upon any
creditor of the Company (and no such creditor of the Company shall be a
third-party beneficiary of this Agreement) and the Initial Member shall not have
any duty or obligation to any creditor of the Company to make any contribution
to the Company or to issue any call for capital pursuant to this Agreement.
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17. Certificated Interest.
The interests of the Members in the Company shall be evidenced by
certificates issued by the Company in the form determined by the Company.
18. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Initial Member.
19. Distributions.
a. Distributions shall be made to the Members at the times and in the
aggregate amounts determined by the Board.
b. Members owning Preference Units shall be entitled to receive, and the
Company shall be obliged to pay, the distributions specified in
Section 7. To the extent that the Company has cash available for
distribution after payment of distributions due and payable to Members
owning Preference Units, the Board may elect to distribute all
remaining cash as a distribution to the Member owning the Ordinary
Unit.
c. Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a distribution to
any Member on account of its interest in the Company if such
distribution would violate the Act or any other applicable law.
20. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The Initial Member
and its duly authorized representatives shall have the right to examine the
Company books, records and documents during normal business hours. The Company,
and the Board on behalf of the Company, shall not have the right to keep
confidential from the Initial Member any information that the Board would
otherwise be permitted to keep confidential from a Member pursuant to the Act.
The Company's books of account shall be kept using the method of accounting
determined by the Board. The Company's independent auditor shall be an
independent public accounting firm selected by the Initial Member.
21. Exculpation and Indemnification.
a. No Member, Officer, Manager, employee or agent of the Company and no
employee, representative, agent or Affiliate of the Member
(collectively, the "Covered Persons") shall be liable to the Company
or any other Person who has interest in or claim against the Company
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on
behalf of the Company and in an manner reasonably believed to be
within the scope of authority conferred
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on such Covered Person by this Agreement, except that a Covered Person
shall be liable for any such loss, damage or claim incurred by reason
of such Covered Person's willful misconduct.
b. To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss,
damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith
on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Covered Person by
this Agreement, except that no Covered Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Covered Person by reason of such Covered Person's willful misconduct
with respect to such acts or omissions; provided, however, that any
indemnity under this Section 21 shall be provided out of and to the
extent of Company assets only, and no Member shall have personal
liability on account thereof.
c. To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by
the Company prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay such amount
if it shall be determined that the Covered Person is not entitled to
be indemnified as authorized in this Section 21.
d. A Covered Person shall be fully protected in relying in good faith
upon records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to
matters the Covered Person reasonably believes are within such other
Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company, including
information, opinions, reports or any other facts pertinent to the
existence and amount of assets from which distributions to the Member
might properly be paid.
e. To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person acting under
this Agreement shall not be liable to the Company or to any other
Covered Person for its good faith reliance on the provisions of this
Agreement or any approval or authorization granted by the Company or
any other Covered Person. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of a Covered
Person otherwise existing at
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law or in equity, are agreed by the Member to replace such other
duties and liabilities of such Covered Person.
f. The Company may purchase and maintain insurance, to the extent and in
such amounts as the Treasurer, in his sole discretion, shall deem
reasonable, on behalf of Covered Persons and such other persons or
entities as the Treasurer shall determine, against any liability that
may be asserted against or expenses that may be incurred by any such
person or entity in connection with the activities of the Company or
such indemnities, regardless of whether the Company would have the
power to indemnify such person or entity against such liability under
the provisions of this Agreement. The Company may enter into indemnity
contracts with Covered Persons and such other persons or entities as
the Board shall determine and adopt written procedures pursuant to
which arrangements are made for the advancement of expenses and the
funding of obligations under Section 21(c) and containing such other
procedures regarding indemnification as are appropriate.
g. The foregoing provisions of this Section 21 shall survive any
termination of this Agreement.
22. Assignments.
The Member may assign in whole or in part its limited liability company
interest in the Company. If the Member transfers any or all of its limited
liability company interest in the Company pursuant to this Section 22, the
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer, and, if the interest is a transfer of the transferor
Member's entire limited liability company interest in the Company, the
transferor Member shall cease to be a member of the Company immediately
following such admission.
23. Resignation.
A Member may resign from the Company with the written consent of the
Initial Member. If a Member is permitted to resign pursuant to this Section 23,
an additional member of the Company may be admitted to the Company, subject to
Section 24, upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation, and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
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24. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Initial Members.
25. Dissolution.
a. The Company shall be dissolved, and its affairs shall be wound up upon
the first to occur of the following: (i) the retirement, resignation
or dissolution of the last remaining Member owning the Ordinary Unit
or the occurrence of any other event which terminates the continued
membership of the last remaining Member owning the Ordinary Unit in
the Company unless the business of the Company is continued in a
manner permitted by the Act or (ii) the entry of a decree of judicial
dissolution under the Act.
b. The bankruptcy (as defined in the Act) of the Initial Member shall not
cause the Initial Member to cease to be a Member of the Company and
upon the occurrence of such an event, the business of the Company
shall continue without dissolution.
c. In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of
the Company shall be applied in the manner, and in the order of
priority, set forth first, in Section 7 and second, in the Act.
26. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each Member hereby irrevocably waives any right or
power that such Member 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 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. No Member shall have any
interest in any specific assets of the Company, and no Member shall have the
status of a creditor with respect to any distribution pursuant to Section 19
hereof. The interest of the Members in the Company is personal property.
27. Benefits of Agreement: No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Initial
Member. Nothing in this Agreement shall be deemed to create any right in any
Person not a party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third
Person.
14
28. Other Business.
The Initial Member may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description,
independently or with others. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
29. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
30. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof.
31. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of New Jersey (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
32. Amendments.
This Agreement may not be modified, altered, supplemented or amended except
pursuant to a written instrument executed and delivered by the Initial Member.
33. Counterparts.
This Agreement may be executed in any number of counterparts, each which
shall be deemed an original of this Agreement and all of which together shall
constitute one and the same instrument.
34. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail, or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 3, (b) in the case of a Member, to such Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Agreement as of the 31st day of October, 2002.
MEMBER:
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
16
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means with respect to any Person, any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented form time to time.
"Board" or "Board of Managers" means the Board of Managers of the Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of New Jersey on
July 24, 2002, as amended or amended and restated from time to time. For
the purposes of this Agreement, the term "Certificate of Formation"
incorporates the Certificate of Amendment of the Certificate of Formation
of the Company filed with the Secretary of the State of New Jersey on
October 2, 2002. The Certificate of Amendment changed the Company's name
from it's prior name, PSEGH LLC, to its current name.
"Control" means the posession, directly or indirectly, or the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or general partnership
or managing member interests, by contract or otherwise. "Controlling" and
"Controlled" shall have correlative meanings. Without limiting the
generality of the foregoing, a Person shall be deemed to Control any other
Person in which it owns, directly or indirectly, a majority of the
ownership interests.
"Covered Persons" has the meaning set forth in Section 21 (a).
"Initial Member" means Public Service Enterprise Group Incorporated, a New
Jersey Corporation, as the sole member of the Company.
"Management Agreement" means the agreement of the Managers in the form
attached hereto as Schedule D. The Management Agreement shall be deemed to
be and constitute part of this Agreement.
"Managers" means the managers elected to the Board of Managers from time to
time by the Member.
17
"Member" means the Initial Member and includes any Person admitted as an
additional member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement.
"Officer" means an officer of the Company described in Section 13.
"Ordinary Unit" has the meaning set forth in Section 6.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association,
joint-stock company, trust, unincorporated organization, or other
organization, whether or not a legal entity, and any governmental
authority.
"Preference Unit" has the meaning set forth in Section 6.
"Unit" has the meaning set forth in Section 6.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and plural
forms of the defined terms. The words "include" and "including" shall be deemed
to be followed by the phrase "without limitation." The terms "herein," "hereof"'
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Section, paragraph or subdivision. The Section
titles appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All Section, paragraph, clause, Exhibit or
Schedule references not attributed to a particular document shall be references
to such parts of this Agreement.
18
SCHEDULE B
Members
Agreed Value of
Capital Percentage
Name Mailing Address Contribution Interest
Public Service Enterprise ▇▇ ▇▇▇▇ ▇▇▇▇▇ $1,000 100%
Group Incorporated ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
19
SCHEDULE C
Managers
Name Address
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
E. ▇▇▇▇▇ ▇▇▇▇▇▇▇ c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇ c/o Public Service Enterprise
Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
20
SCHEDULE D
Management Agreement
October 31, 2002
PSEG Energy Holdings L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Management Agreement
PSEG Energy Holdings L.L.C.
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as managers of PSEG Energy Holdings L.L.C., a New Jersey
limited liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of October
31, 2002, as it may be amended or restated 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 (as defined in the LLC Agreement) 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 he or she has been designated as a "manager" of
the Company within the meaning of the New Jersey Limited Liability
Company Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, AND ALL RIGHTS
AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the undersigned have executed this Management Agreement
as of the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
/s/ E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE E
Officers
Elective Officers
-----------------
Name Title
----- ---------
E. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Chairman of the Board and Chief Executive Officer
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ Executive Vice President and Chief Financial Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. President and Chief Operating Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President-Finance and Treasurer
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Assistant Treasurer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Assistant Treasurer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Secretary
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Assistant Secretary
Appointed Officers
------------------
Name
-----
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Controller
▇▇▇▇▇▇ ▇. ▇▇▇▇ Assistant Controller