AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ONCOR ELECTRIC DELIVERY COMPANY LLC
Exhibit
3b
Execution
Copy
AMENDED
AND RESTATED
OF
ONCOR
ELECTRIC DELIVERY COMPANY LLC
This
Amended and Restated Limited Liability Company Agreement (together with the
schedules attached hereto, this "Agreement") of ONCOR ELECTRIC DELIVERY
COMPANY LLC (the "Company"), is entered into by ONCOR ELECTRIC DELIVERY
HOLDINGS COMPANY LLC, as the sole equity member (the "Initial
Member"). Capitalized terms used and not otherwise defined herein
have the meanings set forth on Schedule A hereto.
WHEREAS,
Oncor Electric Delivery
Company (the "TX Corporation") was organized as a Texas
corporation;
WHEREAS,
the board of directors of the
TX Corporation approved the conversion of the TX Corporation to a Delaware
limited liability company and the adoption of the initial Limited Liability
Company Agreement, pursuant to and in accordance with the applicable laws
of the
State of Texas, including Article 5.17 through Article 5.20 of the Texas
Business Corporation Act (the "TX Act");
WHEREAS,
the TX Corporation was
converted to a limited liability company pursuant to Section 18-214 of the
Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as amended
from time to time (the "Act") and the TX Act by causing the filing with the
Secretary of State of the State of Delaware of a Certificate of Conversion
to
Limited Liability Company and a Certificate of Formation (the "Conversion");
and
WHEREAS,
pursuant to the Limited
Liability Company Agreement of Oncor Electric Delivery Company LLC, dated
October 9, 2007 (the “Initial LLC Agreement”), and the Conversion, the Member
was admitted as a member of the Company;
NOW
THEREFORE, the Member, by its
execution of this Agreement, hereby amends and restates the Initial LLC
Agreement, and further agrees as follows:
Section
1. Name.
The
name
of the limited liability company continued hereby is ONCOR ELECTRIC DELIVERY
COMPANY LLC.
Section
2. Principal
Business Office.
The
principal business office of the Company shall be located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or such other location as may hereafter be determined
by the
Member.
Section
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware
is c/o
RL&F Service Corp., One ▇▇▇▇▇▇ Square, in the City of Wilmington, County of
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
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 Delaware is RL&F Service Corp., One ▇▇▇▇▇▇ Square,
in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
5. Fiscal
Year.
Unless
otherwise determined by the
Board, the fiscal year of the Company shall be the calendar year.
Section
6. Members.
(a) The
mailing address of the Member is set forth on Schedule B attached
hereto. The Member was heretofore admitted to the Company as a member
of the Company, and hereby continues as such.
(b) Subject
to Section 10(i), the Member may act by written consent.
Section
7. Certificate
of Formation.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, an “authorized person” within the meaning of the Act, executed,
delivered and filed the Certificate of Conversion and the Certificate of
Formation of the Company with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Conversion and the
Certificate of Formation with the Secretary of State of the State of Delaware,
his powers as an “authorized person” ceased, and the Member thereupon became a
member of the Company and the designated “authorized person” and shall continue
as the designated “authorized person” within the meaning of the
Act. The 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 Texas and in any other 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
Act.
Section
8. Purpose.
Subject
to the provisions of Section
10(i) of this Agreement, the purposes to be conducted or promoted by the
Company are those of an electric transmission and distribution company,
including owning or operating equipment or facilities to transmit and distribute
electricity, and to engage in any other activities related or incidental
thereto
or in anticipation thereof.
Section
9. Powers.
Subject
to Section 10(i), the Company, and the Board of Directors and the
Officers of the Company on behalf of the Company, (i) shall have and exercise
all powers necessary, convenient or incidental to accomplish its purposes
as set
forth in Section 8 and (ii) shall have and exercise
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all
of
the powers and rights conferred upon limited liability companies formed pursuant
to the Act.
Section
10. Management.
(a) Board
of Directors. Subject to Section 10(i), the business and
affairs of the Company shall be managed by or under the direction of a Board
of
Directors and not by or under the direction of any TXU Group member or any
officer or employee thereof. Initially, the Board of Directors shall
have at least five (5) Directors, each elected by the Member, composed as
follows: one (1) Director shall be an officer of the Company; at least a
majority of the Directors shall be Independent Directors, and at least two
(2)
of the Independent Directors shall be Special Independent Directors; any
remaining Directors shall not be required to be independent of the Member
(such
remaining Directors, together with the Director who is an officer of the
Company, being referred to herein as the “Non-Independent
Directors”). Within 30 days after the date hereof, the Member may,
and intends to, elect additional initial Directors so that the Board will
have
nine (9) Directors, six (6) of which Directors will be Independent Directors
(two of which will be Special Independent Directors), two of which Directors
will be Non-Independent Directors associated with the Fund Advisors, and
one of
which Directors will be an officer of the Company. After the initial
election of the Independent Directors by the Member, all Independent Directors,
including the Special Independent Directors, will be nominated and appointed
by
a nominating committee of the Member’s board of directors. Each
Director elected, designated or appointed by the Member, or by the nominating
committee of the Member’s board of directors, as applicable, shall hold office
(i) until a successor is elected and qualified, (ii) in the case of an
Independent Director or a Special Independent Director, until such Director
fails to qualify as an Independent Director or Special Independent Director,
as
applicable, or (iii) until such Director’s earlier death, resignation, expulsion
or removal. Each Director shall execute and deliver the Management
Agreement. No Director shall be required to be a
Member. The initial four Directors designated by the Member are
listed on Schedule D hereto. No Director may concurrently
serve as a director of any Subsidiary of Texas Competitive Electric Holdings
Company LLC, including any entity that Luminant or TXU Energy
comprises.
(b) Powers. Subject
to Section 10(i), the Board of Directors shall have the power to do any
and all acts necessary, convenient or incidental to or for the furtherance
of
the purposes described herein, including all powers, statutory or
otherwise. The Board of Directors has the authority to bind the
Company. To the extent of their powers set forth in this Agreement and subject
to Section 10(i), the Directors are agents of the Company for the purpose
of the Company’s business, and the actions of the Directors taken in accordance
with such powers set forth in this Agreement shall bind the
Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors,
a
Director may not bind the Company.
(c) Meetings
of the Board of Directors. The Board of Directors of the Company
may hold meetings, both regular and special, within or outside the State
of
Delaware. Regular meetings of the Board may be held at such time and
at such place as shall from time to time be determined by the Board and
communicated in writing to each Director; provided, that, upon
such communication to each Director of the Board’s determination of the time and
place of a regular meeting, no further notice of any regular meeting to be
held
at such time and place need
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be
given
to any Director, but if the Board determines to make any change with respect
to
the time or place of a regular meeting, five (5) days’ notice of such change
shall be communicated in writing to each Director before such change becomes
effective. Special meetings of the Board may be called by the Chief
Executive Officer on not less than five (5) days’ written notice to each
Director by facsimile, mail, telegram or any other means of written
communication, and special meetings shall be called by the Chief Executive
Officer, the President or the Secretary in like manner and with like notice
upon
the written request of any one or more of the Directors; provided,
that, notice of a special meeting shall not be required if waived
by all
Directors, which waiver shall be assumed for any Director attending such
special
meeting unless attending to object to such meeting.
(d) Quorum:
Acts of the Board. Subject to Section 10(i), at all
meetings of the Board, a majority of the Directors shall constitute a quorum
for
the transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Directors present
at
any meeting at which there is a quorum shall be the act of the
Board. If a quorum shall not be present at any meeting of the Board,
the Directors present at such meeting may adjourn the meeting from time to
time,
without notice other than announcement at the meeting, until a quorum shall
be
present. Any action required or permitted to be taken at any meeting
of the Board or of any committee thereof may be taken without a meeting if
all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) Electronic
Communications. Members of the Board, or any committee designated
by the Board, may participate in meetings of the Board, or any committee,
by
means of telephone conference or similar communications equipment that allows
all Persons participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall be deemed
to
be held at the principal place of business of the Company.
(f) Committees
of Directors.
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(i)
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The
Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of
one or more
of the Directors of the Company. The Board may designate one or
more Directors as alternate members of any committee, who may replace
any
absent or disqualified member at any meeting of the
committee.
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(ii)
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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.
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(iii)
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Any
such committee, to the extent provided in the resolution of the
Board
designating such committee, and subject to, in all cases, Sections
10(i) and 11, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs
of
the Company specified in
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the
resolution of the Board designating such committee. Such
committee or committees shall have such name or names as may be
determined
from time to time by resolution adopted by the Board. Each
committee shall keep regular minutes of its meetings and report
the same
to the Board when required.
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(g) Compensation
of Directors; Expenses. The Board shall have the authority to fix
the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a
fixed
sum for attendance at each meeting of the Board or a stated salary as
Director. No such payment shall preclude any Director from serving
the Company in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed
additional compensation for attending committee
meetings. Chairpersons of standing or special committees may receive
compensation, in their capacities as such chairpersons, in addition to any
compensation received as a member of any such committee.
(h) Removal
of Directors. Unless otherwise restricted by law, and subject to
Section 11, (i) any Director or the entire Board of Directors may be removed
or
expelled, with or without cause, at any time by the Member, and (ii) any
vacancy
caused by any such removal or expulsion, or otherwise, may be filled by action
of the Member; provided that Independent Directors, including Special
Independent Directors, may be removed or expelled, and vacancies in respect
of
any Independent Director, including any Special Independent Director, may
be
filled, by the Member only at the direction, in writing, of the nominating
committee of the Member’s board of directors.
(i) Limitations
on the Company’s Activities.
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(i)
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The
Company shall not take any of the following actions without the
prior
written consent of the Initial
Member:
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(A)
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change
the method of designating Directors on the Board of
Directors;
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(B)
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continue
the Company under the laws of another
jurisdiction;
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(C)
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enter
into or authorize any material transactions with a third party
outside the
ordinary course of business including, but not limited to, mergers
or
acquisitions, substantial dispositions or transfers, or any material
investment in any partnership, consortium, joint venture or other
similar
enterprise;
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(D)
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authorize,
issue, sell, acquire, repurchase or redeem any limited liability
company
interests or other equity interest (or option, warrant, conversion
or
similar right with respect to any equity interest) in or of the
Company;
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(E)
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unless
required by law or a change in generally accepted accounting principles
(“GAAP”), make any material change in the accounting methods of
the
Company;
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(F)
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change
the entity classification of the Company for federal income tax
purposes
under Treasury Regulations Section
301.7701-3;
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(G)
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cause
any of the Company’s facilities, assets or paper facilities in the Energy
Reliability Council of Texas region to become subject to any greater
scope
or degree of jurisdiction of the Federal Energy Regulatory Commisison
than
the scope or degree of jurisdiction exercised on January 1,
2007; or
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(H)
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enter
into any contract, arrangement, understanding or other similar
agreement
to effectuate any of the foregoing.
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(ii)
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So
long as any Obligation is outstanding, the Member shall not (A)
amend,
alter, change or repeal Sections8, 9, 10(b)
through (h), or 27 or the definitions in Schedule A
of this Agreement that relate to the foregoing Sections referred
to in
this clause (A), in each case without the written consent of a
majority of
the Board, or (B) amend, alter, change or repeal the definitions
of
“Independent Director”; “Special Independent Director”;
Sections10(a), 10(i) (except as set forth in
Section 10(i)(v)(F)), 11, 12, 13, 21,
23, 25, 26, or 30; any provision hereof that
states that it is subject to Section 10(i), if such amendment would
cause such provision no longer to be subject to Section 10(i); or
the definitions in Schedule A of this Agreement that relate to the
foregoing Sections referred to in this clause (B); in each case
without
the written consent of (1) a majority of the Board and (2) all
Independent
Directors; provided, that the Member may amend any provision hereof
reasonably required in good faith to accommodate the admission
of any
additional Member, other than an Affiliate of TXU Corp. (including
the
establishment of relative voting rights of the Members and an increase
in
the number of Directors, including Independent Directors), but
no such
amendment shall (1) limit the obligation of the Company to comply
with the
Separateness Undertakings (defined below), or (2) otherwise limit
the
rights and powers of the Independent Directors. Except as
provided in the foregoing sentence, the Member reserves the right
to
amend, alter, change or repeal any provisions contained in this
Agreement
in accordance with Section
32.
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(iii)
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Notwithstanding
any other provision of this Agreement and any provision of law
that
otherwise so empowers the Company, the Member, the Board, any Officer
or
any other Person, neither the Member nor the Board nor any Officer
nor any
other Person shall be authorized or empowered, nor shall they permit
the
Company without (a) the prior written consent of the Member and
(b) the affirmative vote of all of the Directors present and voting
(which
shall in any event include all Independent Directors), to take
any
Material Action.
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(iv)
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The
Board and the Member shall cause the Company to do or cause to
be done all
things necessary to preserve and keep in full force and effect
its
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existence,
rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any
such right or franchise if the Board shall determine that the preservation
thereof is no longer desirable for the conduct of its business
and that
the loss thereof is not disadvantageous in any material respect
to the
Company.
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(v)
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To
ensure separateness from the TXU Group, so long as any Obligation
is
outstanding, the Board and the Member shall use their best efforts
to
cause the Company to take or refrain from taking, as the case may
be, the
following actions (clauses (A) through (BB) below are collectively
referred to as the “Separateness
Undertakings”):
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(A)
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at
all times hold itself out to the public and all other Persons as
a legal
entity separate from the Member and any other Person;
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(B)
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use
stationery, invoices, checks, logos and other business forms separate
from
any TXU Group member;
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(C)
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not
transfer any material assets or facilities to any TXU Group member,
other
than any such transfer that is (w) both on a commercially reasonable
basis
and approved by a majority of the Directors; (x) pursuant to an
agreement
allowed, with respect to transactions with TXU Group members, under
clause
(E) below; (y) allowed, with respect to distributions, under Section
17
hereof; or (z) allowed, with respect to taxes, under clause (BB)
below;
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(D)
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not
enter into any pledge, encumbrance or guaranty, or otherwise become
intentionally liable for, or pledge or encumber its assets to secure
the
liability, debts or obligations of any TXU Group
member;
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(E)
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maintain
an arm’s-length relationship with the TXU Group members and only enter
into transactions with the TXU Group members that are both (1)
on a
commercially reasonable basis and (2) if such transaction is material,
approved by a majority of the Directors, other than (a) distributions
by
the Company in accordance with the Dividend Policy, (b) the Reimbursement
Agreements, and (c) payments by the Company pursuant to clause
(BB) below,
all of which shall in all events be permitted
hereunder;
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(F)
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not
amend or modify its Dividend Policy, except as approved by the
Member and
at least a majority of the Board of Directors present and voting,
which
approval must include a majority of the Independent Directors and
all of
the Non-Independent Directors (other than Directors appointed by
any
Member holding a minority limited liability company interest in
the
Company);
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(G)
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not
hold out its credit as being available to satisfy the debts or
obligations
of any TXU Group member;
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(H)
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Maintain
accurate books, financial records and accounts, including checking
and
other bank accounts and custodian and other securities safekeeping
accounts, that are separate and distinct from those of any other
entity,
except for other Ring-Fenced Entities;
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(I)
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maintain
its books, financial records and accounts (including inter-entity
transaction accounts) in a manner so that it will not be difficult
or
costly to segregate, ascertain or otherwise identify its assets
and
liabilities from those of the TXU Group;
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(J)
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except
with respect to the Commingled Funds, not commingle any of its
facilities,
assets, funds or liabilities with the facilities, assets, funds
or
liabilities of the TXU Group members;
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(K)
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observe
appropriate organizational procedures and formalities, including
holding
at least annual meetings or actions pursuant to written consent
of the
Board of Directors and keeping minutes of such meetings and
actions;
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(L)
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cause
all material transactions and agreements between it and any one
or more of
the TXU Group members (including transactions and agreements pursuant
to
which the assets or property of one is used or to be used by the
other) to
be entered into in the names of the entities that are parties to
the
transaction or agreement and to be formally documented in
writing;
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(M)
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except
with respect to shared expenses and corporate functions covered
by clauses
(P) through (S) below, conduct transactions with the TXU Group
members and
third parties in its name and as an entity that is separate and
distinct
from the TXU Group members;
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(N)
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except
with respect to shared expenses and corporate functions covered
by clauses
(P) through (S) below, pay its own liabilities, expenses and losses
only
from its own assets;
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(O)
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except
with respect to shared expenses and corporate functions covered
by clauses
(P) through (S) below, compensate all consultants, independent
contractors
and agents from its own funds for services provided to it by such
consultants, independent contractors and agents;
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(P)
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to
the extent that it and TXU Group members jointly contract or do
business
with vendors or service providers or share overhead expenses, allocate
fairly, appropriately and reasonably the costs and expenses incurred
in so
doing between or among such entities, with the result that each
such
entity bears its fair share of all such costs and
expenses;
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(Q)
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to
the extent that it contracts or does business with vendors or service
providers where the goods or services are wholly or partially for
the
benefit of the TXU Group members, allocate fairly, appropriately
and
reasonably the costs incurred in so doing to the entity for whose
benefit
the goods or services are provided, with the result that each such
entity
bears its fair share of all such costs;
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(R)
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to
the extent that officers or other employees of the TXU Group members
perform services for the Company, cause the Company to pay the
fair,
appropriate and reasonable costs and expenses related to providing
such
services;
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(S)
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to
the extent that it occupies any premises in the same location or
shares
the use of equipment with the TXU Group members, allocate fairly,
appropriately and reasonably any rent and overhead expenses among
and
between such entities with the result that each bears its fair
share of
all such rent and expenses;
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(T)
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cause
its employees, representatives and agents (1) to hold themselves
out to
third parties as being its employees, representatives or agents,
as the
case may be, it being understood that it need not have its own
dedicated
employees, (2) to refrain from holding themselves out as employees,
representatives or agents of any TXU Group member, and (3) with
respect to
each employee of the Company, not concurrently to be employee of
a TXU
Group member;
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(U)
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maintain
separate annual financial statements from the TXU Group prepared
in
accordance with GAAP showing its assets and liabilities separate
and
distinct from those of any other entities (other than its Subsidiaries);
provided, that these financial statements may be prepared on a
consolidated basis for all of the Ring-Fenced Entities,
collectively;
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(V)
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to
the extent its financial statements are to be consolidated with
the
financial statements of any other entities (other than its Subsidiaries),
(1) cause to be included in such consolidated financial statements
(or in
an accompanying statement) a footnote or other description of the
separateness of it and its Subsidiaries’ assets, liabilities, business
functions and operations to ensure that such separate assets, liabilities,
business functions and operations are readily distinguishable by
any
person receiving or relying upon a copy of such consolidated financial
statements, and (2) for so long as any Obligations are outstanding,
file
its separate annual financial statements with the SEC, or, if no
Obligations are outstanding, make its separate annual financial
statements
available to the public on its
website;
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(W)
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pay
or bear the cost of the preparation of its financial statements,
and have
such financial statements audited by an independent certified public
accounting firm; provided, that such audit must be conducted by
a team of
auditors from such certified public accounting firm that does not
include
any member of the team of auditors for the TXU Group
members;
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(X)
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correct
any known material misunderstanding regarding its identity as an
entity
separate from any TXU Group member;
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(Y)
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not
make any loans to any TXU Group member or buy or hold any indebtedness
or
other securities or obligations issued by any TXU Group member
(other than
(1) trade accounts receivable incurred in the ordinary course of
business
on an arm’s length commercially reasonable basis payable within 60 days,
(2) obligations incurred under the Reimbursement Agreements, and
(3) other
obligations (other than obligations for borrowed money) incurred
on an
arm’s length, commercially reasonable basis);
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(Z)
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not
permit any of its assets to be held in the name of another Person,
except
(1) in the name of a Person that is not a TXU Group member pursuant
to a
documented trust or similar arrangement, and (2) commingled funds
identified as exceptions to subsection (J) above;
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(AA)
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maintain
adequate capital and a sufficient number of employees or contractual
relationships with parties other than the TXU Group members for
the normal
obligations reasonably foreseeable in a business of its size and
character
and in light of its contemplated business operations;
and
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(BB)
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pay
its fair share of taxes determined substantially as if the Company
were a
stand-alone corporation.
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Failure
of the Company, or the Member or Board on behalf of the Company, to comply
with
any of the foregoing covenants or any other covenants contained in this
Agreement shall not affect the status of the Company as a separate legal
entity
or the limited liability of the Member or the Directors.
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(vi)
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To
ensure separateness from the TXU Group members, the Company shall
cause
each Subsidiary of the Company whose organizational documents do
not
contain separateness provisions comparable to the provisions of
Section
10(i) (other than Transition Bond Co.) of this Agreement to take
or
refrain from taking, as the case may be, actions with respect to
such
Subsidiary of the type described in Section 10(i)(v) hereof and
shall cause each such Subsidiary to take actions with respect to
itself of
the type described in clauses (ii) and (iv) of the definition of
Material
Actions only if authorized by the Directors in a
manner similar to Section
10(i)(iii).
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Section
11. Independent
Directors.
After
the
initial election of Independent Directors by the Member, the Member shall
cause
its nominating committee to appoint Directors as necessary to cause, at all
times, (i) at least six (6) (or such greater number as shall constitute a
majority of the Directors if the number of Directors is ever increased, by
amendment to this Agreement, to accommodate the admission
10
of
an
additional Member or Members) members of the Board to be Independent Directors,
at least two (2) of which Independent Directors shall be Special Independent
Directors. To the fullest extent permitted by law, including Section
18-1101(c) of the Act, the Independent Directors shall consider only the
interests of the Company, including its creditors, in acting or otherwise
voting
on any Material Action. No resignation or removal of an Independent
Director, and no appointment of a successor Independent Director, shall be
effective until such successor shall have accepted his or her appointment
as an
Independent Director by a written instrument, which may be a counterpart
signature page to the Management Agreement. In the event of a vacancy
in the position of Independent Director, the Member’s nominating committee
shall, as soon as practicable, appoint a successor Independent
Director. All right, power and authority of the Independent Directors
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 the second sentence of this Section 11, in exercising their
rights and performing their duties under this Agreement, any Independent
Director shall have fiduciary duties of loyalty and care identical to those
of a
director of a business corporation organized under the General Corporation
Law
of the State of Delaware. No Independent Director shall at any time
serve as trustee in bankruptcy for any Affiliate of the Company.
Section
12. Officers.
(a) Officers. The
initial Officers of the Company shall be designated by the Member. The Officers
of the Company shall consist of at least a Chief Executive Officer, a President,
a Secretary and a Treasurer. The appointment or removal of the Chief
Executive Officer or the Chief Financial Officer of the Company shall require
a
majority vote of the Board, which shall in any event include the unanimous
vote
of the Non-Independent Directors, other than the Director who is an officer
of
the Company. Additional or successor Officers of the Company, if any,
shall be chosen by the Board. The Board of Directors may also choose one
or more
Vice Presidents, Assistant Secretaries, and Assistant Treasurers. Any
number of offices may be held by the same person, except that the President
and
the Secretary shall not be the same person. The Board may appoint
such other Officers and agents as it shall deem necessary or advisable who
shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the
Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of
the Company shall hold office until their successors are chosen and
qualified. Any Officer, except as provided above with respect to the
Chief Executive Officer and the Chief Financial Officer, may be removed at
any
time, with or without cause, by the affirmative vote of a majority of the
Board. Any vacancy occurring in any office of the Company, except as
provided above with respect to the Chief Executive Officer and the Chief
Financial Officer, shall be filled by the Board. The Officers shall
have such powers and duties as usually pertain to their offices, respectively,
as well as such powers and duties as may from time to time be conferred by
the
Board. The initial Officers of the Company designated by the Member
are listed on Schedule E hereto. No Officer of the Company may
concurrently be an officer of any TXU Group member.
(b) Officers
as Agents. The Officers, to the extent of their powers set forth
in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose
of
the Company’s business and, subject
11
to
Section 10(i), the actions of the Officers taken in accordance with such
powers shall bind the Company.
(c) Duties
of Board and Officers. Except to the extent otherwise provided
herein, each Director and Officer shall have fiduciary duties of loyalty
and
care identical to those of directors and officers of business corporations
organized under the General Corporation Law of the State of
Delaware.
Section
13. 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 the
Member
nor any Director shall be obligated personally for any such debt, obligation
or
liability of the Company solely by reason of being a Member or Director of
the
Company.
Section
14. Capital
Contributions.
The
Member has contributed to the Company property of an agreed value as listed
on
Schedule B attached hereto.
Section
15. Additional
Contributions.
The
Member is not required to make any additional capital contribution to the
Company. However, the Member may make additional capital contributions to
the
Company at any time. To the extent that the Member makes an
additional capital contribution to the Company, the Member shall revise
Schedule B of this Agreement. The provisions of this
Agreement, including this Section 15, are intended to benefit the 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
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.
Section
16. Tax
Classification and Allocations of Profits and Losses.
The
Board
shall take such actions as are necessary to cause the Company to be treated
as a
disregarded entity separate from its owner for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3. The profits and
losses of the Company shall be allocated to the Member.
Section
17. Distributions.
(a) Subject
to subsection (d) of this Section 17, distributions shall be made to the
Member at such times and in such aggregate amounts as may be determined by
the
Board from time to time.
(b) Subject
to subsection (d) of this Section 17, the Company shall make quarterly
distributions to the Member equal to the net income of the Company.
12
(c) Subject
to subsection (d) of this Section 17, the Company shall distribute all of
the proceeds of any issuance of limited liability company interests in the
Company, unless otherwise directed by the Member.
(d) Notwithstanding
any other provision contained in this Agreement,
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(i)
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the
Company shall not make any distribution to the Member on account
of its
interest in the Company if such distribution would violate the
Act or
other applicable law;
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(ii)
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other
than any distribution made pursuant to Section 17(c), the Company
shall not make any distribution to the Member to the extent that
the
amount of such proposed distribution, plus the sum of all prior
distributions made at any time following the first business day
after the
TEF Merger closes (the “Reference Date”), other than any distribution made
pursuant to Section 17(c), by the Company to the Member, exceeds
the cumulative net income of the Company (determined in accordance
with
GAAP) for the period beginning on the Reference Date to the date
of such
proposed distribution; provided, however, that the
restriction on distributions set forth in this section 17(d)(ii)
shall
cease to apply and shall be of no further force or effect on and
after
January 1, 2013;
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(iii)
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the
Company shall defer making any distribution to the Member so long
as and
to the extent that such distribution would cause the debt-to-equity
ratio
of the Company for regulatory purposes of the Company to be above
the
debt-to-equity ratio established from time to time by the Public
Utility
Commission of Texas for ratemaking
purposes;
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(iv)
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the
Company shall not distribute any amounts to the Member to the extent
that
the Board determines in good faith that it is necessary to retain
such
amounts to meet expected future requirements of the Company;
and
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(v)
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the
Independent Directors, acting by majority vote, shall have the
authority
to prevent the Company from making any distribution if they determine
that
it is in the best interests of the Company to retain such amounts
to meet
expected future requirements of the Company (including continuing
compliance with the debt-to-equity ratio described above in subsection
(d)(ii) of this Section 17).
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(e) Subsections
(a) through (d) of this Section 17 constitute the Company’s “Dividend
Policy.”
Section
18. Books
and Records.
The
Board
shall keep or cause to be kept complete and accurate books of account and
records with respect to the Company’s business. The books of the
Company shall at all times be maintained by the Company. The Member
and its duly authorized representatives shall have the right to examine the
Company books, records and documents during normal business
hours. The
13
Company,
and the Board on behalf of the Company, shall have the right, pursuant to
Section 18-305(c) of the Act, to keep confidential from the Member certain
information as the Board deems necessary or appropriate.
Section
19. Reports.
(a)
On such date as may be agreed by the Member and the Company, but in no event
later than (i) five (5) days with respect to quarterly statements and (ii)
ten
(10) days with respect to annual statements prior to the date on which the
TXU
Group (a) is required by law or any contractual obligation or regulatory
commitment to file consolidated financial statements with the SEC or deliver
consolidated financial statements to any other Person (which filing or delivery
date shall be communicated to the Company at least 40 days in advance of
the
Company’s obligation to deliver the same) or (b) expects to file consolidated
financial statements with the SEC or deliver consolidated financial statements
to any other Person in connection with an offering of securities (which filing
or delivery date shall be communicated to the Company at least 40 days in
advance of the Company’s obligation to deliver the same), the Board shall cause
to be prepared all annual audited or quarterly unaudited financial statements,
as applicable, and disclosures and certifications required under this Agreement
or necessary for such information to be filed or delivered, along with any
other
information reasonably requested by the Member for inclusion in the TXU Group's
consolidated financial statements or SEC filings.
(b) The
Board shall, after the end of each fiscal year, use reasonable efforts to
cause
to be prepared and transmitted to the Member as promptly as possible any
such
tax information as may be reasonably necessary to enable the Member to prepare
its federal, state and local income tax returns relating to such fiscal
year.
Section
20. Other
Business.
To
the
extent permitted by law and subject to Section 10(i), the Member and any
Affiliate of the Member may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description,
independently or with others. The Company shall not have any rights
in or to such independent ventures or the income or profits therefrom by
virtue
of this Agreement.
Section
21. Exculpation
and Indemnification.
(a) To
the fullest extent permitted by law, no Covered Person shall be liable to
the
Company or any other Person that is a party to or is otherwise bound by this
Agreement for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf
of
the Company and in a manner reasonably believed to be within the scope of
the
authority conferred on such Covered Person by this Agreement, except that
a
Covered Person shall be liable for any such loss, damage or claim incurred
by
reason of such Covered Person’s gross negligence or willful
misconduct.
(b) To
the fullest extent permitted by applicable law, an Indemnified Person shall
be
entitled to indemnification from the Company for any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Company
and
in a manner reasonably believed to be within
14
the
scope
of the authority conferred on such Indemnified Person by this Agreement,
except
that no Indemnified Person shall be entitled to be indemnified in respect
of any
loss, damage or claim incurred by such Indemnified Person by reason of such
Indemnified Person's gross negligence or willful misconduct with respect
to such
acts or omissions; provided, however, that any indemnity under
this Section 21 by the Company shall be provided out of and to the extent
of Company assets only, and the Member shall not have personal liability
on
account thereof.
(c) To
the fullest extent permitted by applicable law, expenses (including reasonable
legal fees) incurred by an Indemnified 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 Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in this Section
21.
(d) An
Indemnified Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports
or
statements presented to the Company by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or
expert
competence and who has been selected with reasonable care by or on behalf
of the
Company, including information, opinions, reports or statements as to the
value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To
the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company
or
to any other Indemnified Person, an Indemnified Person acting under this
Agreement shall not be liable to the Company or to any other Indemnified
Person
for its good faith reliance on the provisions of this Agreement or any approval
or authorization granted by the Company or any other Indemnified
Person. The provisions of this Agreement, to the extent that they
restrict or eliminate the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the Member to replace
such
other duties and liabilities of such Indemnified Person.
(f) The
foregoing provisions of this Section 21 shall survive any termination of
this Agreement.
Section
22. Assignments.
The
Member may assign in whole or in part its limited liability company interest
in
the Company. Subject to Section 24, 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. If the Member transfers all of its limited liability
company interest in the Company pursuant to this Section 22, the
admission of the transferee shall be deemed effective immediately prior to
the
transfer and, immediately following such admission, the transferor Member
shall
cease to be a member of the Company. Notwithstanding anything in this
Agreement to the contrary, any successor to the Member by merger or
consolidation in compliance with this Agreement shall, without further act,
be
the Member hereunder, and such merger or consolidation shall not constitute
an
assignment for purposes of this Agreement and the Company shall continue
without
dissolution.
15
Section
23. Resignation.
So
long
as (i) any Obligation is outstanding, and (ii) the Member owns a majority
of the
voting limited liability company interests of the Company, the Member may
not
resign; provided, that, nothing in this Section 23 shall limit the
Member’s rights under Section 22 to assign its limited liability company
interest.
Section
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 Member.
Section
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 termination of the legal existence of the
last
remaining member of the Company or the occurrence of any other event which
terminates the continued membership of the last remaining member of the Company
in the Company unless the Company is continued without dissolution in a manner
permitted by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. Upon the occurrence of
any event that causes the last remaining member of the Company to cease to
be a
member of the Company (other than upon continuation of the Company without
dissolution upon (i) an assignment by the Member of all of its limited liability
company interest in the Company and the admission of the transferee pursuant
to
Sections 22 and 24, or (ii) the resignation of the Member and the
admission of an additional member of the Company pursuant to Sections 23 and
24), to the fullest extent permitted by law, the personal representative
of
such member is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of such
member
in the Company, agree in writing (i) to continue the Company and (ii) to
the
admission of the personal representative or its nominee or designee, as the
case
may be, as a substitute member of the Company, effective as of the occurrence
of
the event that terminated the continued membership of the last remaining
member
of the Company.
(b) Notwithstanding
any other provision of this Agreement, the Bankruptcy of the Member shall
not
cause the Member to cease to be a member of the Company and upon the occurrence
of such an event, the Company shall continue without dissolution.
(c) Notwithstanding
any other provision of this Agreement, the Member waives any right it might
have
to agree in writing to dissolve the Company upon the Bankruptcy of the Member,
or the occurrence of an event that causes the Member to cease to be a member
of
the Company.
(d) 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 in Section 18-804 of
the
Act.
(e) The
Company shall terminate when (i) all of the assets of the Company, after
payment
of or due provision for all debts, liabilities and obligations of the Company
shall have
16
been
distributed to the Member in the manner provided for in this Agreement and
(ii)
the Certificate of Formation shall have been canceled in the manner required
by
the Act.
Section
26. Waiver
of Partition; Nature of Interest.
Except
as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, the Member hereby irrevocably waives any right or power that the
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 any applicable law or to file a complaint or to institute any
proceeding at law or in equity to cause the dissolution, liquidation, winding
up
or termination of the Company. The Member shall not have any interest
in any specific assets of the Company, and the Member shall not have the
status
of a creditor with respect to any distribution pursuant to Section 17
hereof. The interest of the Member in the Company is personal
property.
Section
27. Benefits
of Agreement; No Third-Party Rights.
The
provisions of this Section shall apply notwithstanding any provision of this
Agreement to the contrary. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditor of the Company
or by
any creditor of the Member. Nothing in this Agreement shall be deemed
to create any right in any Person (other than Covered Persons and Indemnified
Persons) not a party hereto, and this Agreement shall not be construed in
any
respect to be a contract in whole or in part for the benefit of any third
Person
(except as provided in Section 30).
Section
28. Severability
of Provisions.
Each
provision of this Agreement shall be considered severable and if for any
reason
any provision or provisions herein are determined to be invalid, unenforceable
or illegal under any existing or future law, such invalidity, unenforceability
or illegality shall not impair the operation of or affect those portions
of this
Agreement which are valid, enforceable and legal.
Section
29. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to
the
subject matter hereof.
Section
30. Binding
Agreement.
Notwithstanding
any other provision of this Agreement, the Member agrees that this Agreement
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Directors, in accordance
with
its terms. In addition, the Independent Directors shall be intended
beneficiaries of this Agreement.
Section
31. Governing
Law.
17
This
Agreement shall be governed by and construed under the laws of the State
of
Delaware (without regard to conflict of laws principles), all rights and
remedies being governed by said laws.
Section
32. Amendments.
Subject
to Section 10(i)(ii), this Agreement may be modified, altered,
supplemented or amended only pursuant to a written agreement executed and
delivered by the Member.
Section
33. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement and all of which together shall constitute
one and the same instrument.
Section
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 2,
(b) in the case of the Member, to the Member at its address as listed on
Schedule B attached hereto and (c) in the case of either of the
foregoing, at such other address as may be designated by written notice to
the
other party.
[SIGNATURE
PAGE FOLLOWS]
18
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has
duly
executed this Amended and Restated Limited Liability Company Agreement as
of the
10th day of
October, 2007.
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ONCOR
ELECTRIC DELIVERY HOLDINGS COMPANY LLC
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By:
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/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Vice
President, Chief Financial Officer and
Secretary
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Signature
Page to Amended and Restated Oncor LLC Agreement
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; provided, however, that for purposes of Section
10(i)(v) of this Agreement, “Affiliate” shall not include any other Ring-Fenced
Entity.
"Agreement"
means this Amended and Restated Limited Liability Company Agreement of the
Company, together with the schedules attached hereto, as amended, restated
or
supplemented or otherwise modified from time to time.
"Bankruptcy"
means, with respect to any Person, if such Person (i) makes an assignment
for
the benefit of creditors, (ii) files a voluntary petition in bankruptcy,
(iii)
is adjudged a bankrupt or insolvent, or has entered against it an order for
relief, in any bankruptcy or insolvency proceedings, (iv) files a petition
or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation or similar relief under any statute, law or
regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all
or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute,
law
or regulation, if the proceeding has not been dismissed, or if within 90
days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial
part
of its properties, the appointment is not vacated or stayed, or within 90
days
after the expiration of any such stay, the appointment is not
vacated. The foregoing definition of "Bankruptcy" is intended to
replace and shall supersede and replace the definition of "Bankruptcy" set
forth
in Sections 18-101(1) and 18-304 of the Act.
“Board”
or “Board of Directors” means the Board of Directors of the
Company.
“Certificate
of Conversion” means the Certificate of Conversion of the Company filed with
the Secretary of State of the State of Delaware pursuant to Section
18-214(b)(1) of the Act on October 9, 2007, as amended or amended and restated
from time to time.
“Certificate
of Formation” means the Certificate of Formation of the Company filed with
the Secretary of State of the State of Delaware pursuant to Section 18-214(b)(2)
of the Act on October 9, 2007, as amended or amended and restated from time
to
time.
A-1
“Commingled
Funds” means (1) assets or funds deposited in connection with the Plans, (2)
Transition Charges owned by Transition Bond Co., and (3) revenues received
by
the Company under Rider NDC (Nuclear Decommissioning Charge) of the Company’s
Tariff for Retail Delivery Service.
“Company”
means Oncor Electric Delivery Company LLC, a Delaware limited liability
company.
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through
the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise. “Controlling” and “Controlled” shall have
correlative meanings. Without limiting the generality of the
foregoing, a Person shall be deemed to Control any other Person in which
it
owns, directly or indirectly, a majority of the ownership
interests.
“Covered
Persons” means, collectively, each Officer, Director, and employee of the
Company, of the Member, and of each Affiliate of the Member.
“Director”
means each of the Persons elected to the Board of Directors from time to
time by
the Member or the nominating committee of the Member, including the Independent
Directors, in his or her capacity as manager of the Company. A
Director is hereby designated as a "manager" of the Company within the meaning
of Section 18-101(10) of the Act.
“Dividend
Policy” has the meaning given thereto in Section 17(e).
“Fitch”
means Fitch, Inc.
“Fund
Advisors” means, collectively, Kohlberg Kravis ▇▇▇▇▇▇▇ & Co. L.P., TPG
Capital, L.P., and ▇▇▇▇▇▇▇ Sachs & Co.
“Indemnified
Persons” means, collectively, (1) each Officer and Director of the Company,
(2) the Member and each Officer and Director of the Member, and (3) any employee
of the Company with whom the Company enters into a written agreement approved
by
a majority of the Board of Directors that includes an indemnification obligation
referencing Section 21 of this Agreement.
“Independent
Director” means any Director of the Company (i) whom the Board has
affirmatively determined to have no material relationship with the Company
or
any Non-Ring-Fenced Entity (either directly or as a partner, shareholder
or
officer of an organization that has a material relationship with the Company,
Oncor Holdings, or any Non-Ring-Fenced Entity) and (ii)
who otherwise would be considered “independent” in all material respects of the
Company and each of the Non-Ring-Fenced Entities in accordance with the criteria
set forth in Section 303A of the New York Stock Exchange Manual;
provided, that, (1) a Person’s capacity as a director of TXU
Corp. or as a shareholder of TXU Corp. prior to the date the common stock
of TXU
Corp. was acquired by Merger Sub Parent shall not preclude such Person from
being an Independent Director, if such individual otherwise satisfies the
criteria set forth above; (2) the indirect or beneficial ownership of stock
through a mutual fund or similar diversified investment vehicle with respect
to
which the owner does not have discretion or control over the investments
held by
such diversified investment vehicle (other than any such investment vehicle
which is an
A-2
Affiliate
of any of the Fund Advisors) shall not preclude such owner from being an
Independent Director; (3) the direct or indirect legal or beneficial ownership
of interests in a Non-Ring-Fenced Entity shall not preclude such owner from
being an Independent Director if such ownership is of a de minimis magnitude
that the other Independent Directors determine would not
reasonably be expected to influence the judgment of the proposed Independent
Director in determining the interests of the Company or Oncor Holdings and
(4)
with respect to a ratepayer, supplier, creditor or independent contractor
of, or
a Person who received any benefit from or provided any services to, the Company,
Oncor Holdings, or any Non-Ring-Fenced Entity, such relationship shall not
preclude such Person or any Affiliate of such Person from being an Independent
Director if the other Independent Directors determine
that such relationship is of a nature or magnitude as
would not reasonably be expected to influence the judgment of the proposed
Independent Director in determining the interests of the Company or Oncor
Holdings. Notwithstanding anything to the contrary in this definition
of “Independent Director”, a Director who also serves as an Independent Director
of another Ring-Fenced Entity and who otherwise satisfies the criteria set
forth
above for an “Independent Director”, may still be considered independent within
the meaning hereof.
“Initial
Member” means Oncor Electric Delivery Holdings Company LLC, a Delaware
limited liability company.
“Management
Agreement” means the agreement of the Directors in the form attached hereto
as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
“Material
Action” means (i) to consolidate or merge the Company with or into any
Person with the result that the Company is not the surviving entity; (ii)
to
consolidate or merge the Company with or into any TXU Group member; (iii)
to
sell, transfer or dispose of all or substantially all of the assets of the
Company (including by way of merger) without adequate provision for the payment
of all creditors of the Company; (iv) to institute proceedings to have the
Company be adjudicated bankrupt or insolvent, or consent to the institution
of
bankruptcy or insolvency proceedings against the Company or file a petition
seeking, or consent to, reorganization or relief with respect to the Company
under any applicable federal or state law relating to bankruptcy, or consent
to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or
other similar official) of the Company or a substantial part of its property,
or
make any assignment for the benefit of creditors of the Company, or admit
in
writing the Company's inability to pay its debts generally as they become
due,
or take action in furtherance of any such action; or (v) to the fullest extent
permitted by law, to dissolve or liquidate the Company without adequate
provision for the payment of all creditors of the Company.
“Member”
means Oncor Electric Delivery Holdings Company LLC, a Delaware limited liability
company, as the Initial Member of the Company, and includes any Person admitted
as an additional member of the Company or a substitute member of the Company
pursuant to the provisions of this Agreement, each in its capacity as a member
of the Company.
“Moody’s”
means ▇▇▇▇▇’▇ Investor Services, Inc.
“Non-Ring-Fenced
Entity” means each TXU Group member; each Fund Advisor; Citibank, N.A.;
▇▇▇▇▇▇ Brothers Holdings Inc.; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated;
Credit
A-3
Suisse;
▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A.; Texas Energy Future Holdings LLC and Texas
Energy
Future Holdings Limited Partnership.
“NRSRO”
means each of S&P, ▇▇▇▇▇’▇, Fitch and any other nationally recognized
statistical rating organization.
“Obligations”
mean all debt obligations (whether secured or unsecured) of any Ring-Fenced
Entity rated by a NRSRO, whether now or hereafter outstanding.
“Officer”
means an officer of the Company described in Section 12.
“Officer's
Certificate” means a certificate signed by any Officer of the Company who is
authorized to act for the Company in matters relating to the
Company.
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, association, joint stock company,
trust,
unincorporated organization, or other organization, whether or not a legal
entity, and any governmental authority.
“Plans”
means those certain defined benefit pension plans maintained or contributed
to
by TXU Corp. and certain of its Affiliates (including Oncor) for the benefit
of
their employees (including executives, employee directors, former
employees and retirees), collectively with the other postretirement employee
benefit plans maintained or contributed to by TXU Corp. and certain of its
Affiliates (including Oncor).
“PUCT”
means the Public Utility Commission of Texas.
“Reimbursement
Agreements” means (1) the Reimbursement Agreement, dated January 1, 2004,
between the Company (as successor-in-interest to Oncor Electric Delivery
Company) and Luminant Generation Company LP (“Luminant Genco”) (formerly
known as TXU Generation Company LP), providing for the reimbursement of certain
interest expenses relating to the securitization of certain generation-related
regulatory assets held by the Company, together with (2) the Reimbursement
Agreement, dated January 1, 2002, between the Company (as successor-in-interest
to Oncor Electric Delivery Company) and Luminant Genco, providing for payment
by
Luminant Genco to the Company of certain federal income taxes associated
with
certain generation-related regulatory assets held by the Company.
“Ring-Fenced
Entities” means the Company, the Member and each of their
Subsidiaries.
“S&P”
means Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
“SEC”
means the United States Securities and Exchange Commission.
“Special
Independent Director” means any Director who, in addition to meeting the
requirements applicable to Independent Directors, has not been at the time
of
his or her appointment or at any time in the preceding five years, and during
the continuation of his or her service as a Director is not, (i) a direct
or
indirect legal or beneficial owner in the Company, Oncor Holdings, or any
Non-Ring-Fenced Entity, (ii) a creditor; supplier; employee;
officer;
A-4
director;
family member of any employee, officer or director; manager or contractor
of the
Company, Oncor Holdings, or any Non-Ring-Fenced Entity, or (iii) a person
who
controls (whether directly, indirectly, or otherwise) the Company, Oncor
Holdings or any Non-Ring-Fenced Entity or any creditor, supplier, employee,
officer, director, manager, or contractor of the Company, Oncor Holdings,
or any
Non-Ring-Fenced Entity; provided, that, (1) the indirect or
beneficial ownership of stock through a mutual fund or similar diversified
investment vehicle with respect to which the owner does not have discretion
or
control over the investments held by such diversified investment vehicle
(other
than any such investment vehicle which is an Affiliate of any of the Fund
Advisors) shall not preclude such owner from being a Special Independent
Director; and (2) the direct or indirect legal or beneficial ownership of
interests in a Non-Ring-Fenced Entity shall not preclude such owner from
being a
Special Independent Director if such ownership is of a “de minimis magnitude”,
which, for purposes of this definition, shall mean a fair value that does
not
exceed one percent of the net worth of such Special Independent
Director. Notwithstanding anything to the contrary in this definition
of “Special Independent Director”, a Director who also serves as an Independent
Director of another Ring-Fenced Entity and who otherwise satisfies the criteria
set forth above for a “ Special Independent Director”, may still be considered
independent within the meaning hereof.
“Subsidiary”
or “Subsidiaries” of an entity means each other entity that (a) is
Controlled by such entity, or (b) a majority of the beneficial interests
of
which are owned by such entity.
“Transition
Bond Co.” means Oncor Electric Delivery Transition Bond Company LLC, a
Delaware limited liability company.
“Transition
Charges” means those charges collected from retail electric customers to pay
the principal and interest on, and the associated costs to issue and service,
bonds issued by Transition Bond Co.
“TXU
Group” means TXU Corp., a Texas corporation, its successors, and its
Subsidiaries, and any individual or entity controlling or owning, directly
or
indirectly, more than 49% of the beneficial interests in the Company, other
than
the Ring-Fenced Entities.
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.
References to any entity shall also be deemed to be references to its successor
entities.
A-5
SCHEDULE
B
Member
|
Name
|
Mailing
Address
|
Agreed
Value of
Capital
Contribution
|
Limited
Liability Company Interest
|
|
Oncor
Electric
Delivery
Holdings
Company
LLC
|
Energy
Plaza
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
$1,000
|
100%
|
B-1
SCHEDULE
C
Management
Agreement
______________________
__, 2007
[____________________________
_____________________________
_____________________________]
Re: Management
Agreement – Oncor Electric Delivery Company LLC
Ladies
and Gentlemen:
For
good
and valuable consideration, each of the undersigned Persons, who have been
designated as Directors of Oncor Electric Delivery Company LLC, a Delaware
limited liability company (the “Company”), in accordance with the Amended
and Restated Limited Liability Company Agreement of the Company, dated as
of
October 10, 2007, 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 Director
under the LLC Agreement and agrees to perform and discharge such Person's duties
and obligations as a Director 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 Director is designated or until
such
Person's resignation or removal as a Director 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. So
long as any Obligation is outstanding, 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
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.
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.
Initially
capitalized terms used and not otherwise defined herein have the meanings
set
forth in the LLC Agreement.
C-1
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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C-2
SCHEDULE
D
DIRECTORS
1. ▇▇▇▇
▇▇▇▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇.
3. ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
4. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
5. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ III
D-1
SCHEDULE
E
|
Officers
|
Title
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Chairman
of the Board and Chief Executive
|
|
▇.▇.
▇▇▇▇▇▇▇
|
President
and Chief Operating Officer
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Senior
Vice President
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Senior
Vice President
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ III
|
Senior
Vice President
|
|
▇▇▇▇▇
▇. ▇▇▇▇
|
Senior
Vice President
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Senior
Vice President
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President and Chief Financial Officer
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Vice
President
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Vice
President
|
|
▇▇▇▇
▇. Self
|
Vice
President
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇
|
Controller
|
|
▇▇▇▇
▇. ▇▇▇▇▇
|
Treasurer
|
E-1