2.6
LIMITED LIABILITY COMPANY AGREEMENT
OF
FISH LAKE POWER LLC,
A DELAWARE LIMITED LIABILITY COMPANY
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time
in accordance with its terms, this "Agreement") for Fish Lake Power LLC (the
"Company"), by and between Salton Sea Funding Corporation, a Delaware
corporation ("Salton Sea"), and Magma Power Company, a Nevada corporation
("Magma," and jointly with any other Person admitted to the Company as a member
in accordance with this Agreement, the "Members," with each being referred to,
individually, as a "Member"), is made effective as of February 19, 1999.
ARTICLE 1
ORGANIZATIONAL MATTERS
1.1 FORMATION.
1.1.1. Act. The Members hereby form the Company as a limited
liability company under the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et seq.), as amended from time to time (the "Act") and agree
that the rights and liabilities of the Members shall be as provided in the Act,
except as otherwise expressly provided herein. Salton Sea and Magma are hereby
admitted to the Company as members of the Company. In the event of any
inconsistency between any terms and conditions contained in this Agreement and
any non-mandatory provisions of the Act, the terms and conditions contained in
this Agreement shall govern. The Company shall commence on the date that the
Certificate of Formation is initially filed with the office of the Secretary of
State of the State of Delaware, and shall continue without dissolution until
dissolved in accordance with Section 2.13.
1.1.2. Name. The name of the Company shall be Fish Lake Power LLC.
The Company may also conduct business at the same time under one or more
fictitious names if the Board of Directors determines that such is in the best
interests of the Company. Without the need for the consent of any Member, the
Board of Directors may change the name of the Company, from time to time, and it
shall file or cause to be filed an appropriate amendment to the Certificate of
Formation of the Company, as amended or restated from time to time (the
"Certificate of Formation").
1.1.3. Place of Business; Registered Office and Agent. The
principal place of business of the Company shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place within or
outside the State of
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Delaware as the Board of Directors may from time to time designate by notice to
the Members. The Company may maintain offices and places of business at such
other place or places within or outside the State of Delaware as the Board of
Directors deems advisable. The Company shall continuously maintain a registered
office and a designated and duly qualified agent for service of process on the
Company in the State of Delaware. The address of the current registered office
and of the current registered agent for service of process is c/o The
Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
1.1.4 Definitions. When used in this Agreement, capitalized terms not
otherwise defined herein have the meanings set forth on Schedule A attached
hereto.
1.2 BUSINESS PURPOSE. The Company has been formed and is authorized to
engage in any and all lawful business, purpose, or activity in which a limited
liability company may be engaged under applicable law (including, without
limitation, the Act), as the Board of Directors may determine, including,
without limitation, developing, owning, operating and disposing of power
production facilities and related activities.
1.3 REQUIRED FILINGS. Each Officer, acting singly or jointly, is hereby
designated as an authorized person, within the meaning of the Act, to execute,
deliver and file all certificates (and any amendments and/or restatements
thereof) required or permitted by the Act to be filed in the office of the
Secretary of State of the State of Delaware. Each Officer, acting singly or
jointly, shall also execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
Each Officer, acting singly or jointly, shall cause a Certificate of Formation
to be executed and filed in the office of the Secretary of State of the State of
Delaware as required by the Act. Each Officer, acting singly or jointly, may
execute and file any duly authorized amendments or restatements to the
Certificate of Formation from time to time in a form prescribed by the Act. Each
Officer, acting singly or jointly, shall also cause to be made, on behalf of the
Company, such additional filings and recordings as the Board of Directors shall
deem necessary or advisable. Following the execution of this Agreement,
fictitious business name statements shall be filed and published when and if the
Board of Directors determines it to be necessary or advisable. Any such
statement shall be renewed as required by applicable law.
1.4 PERCENTAGE INTERESTS AND INITIAL CAPITAL CONTRIBUTIONS. The Members
shall make the following initial capital contributions to the Company on a date
as directed by the Board of Directors and shall have the following percentage
interests in the Company's distributions, profits and losses ("Percentage
Interests"):
Member Initial Capital Contribution Percentage Interest
------ ---------------------------- -------------------
Salton Sea Funding Corporation $ 1.00 1%
Magma Power Company $99.00 99%
1.5 ADDITIONAL CAPITAL CONTRIBUTIONS. No Member has the right or
obligation to make any additional capital contributions to the Company. If the
Board of Directors determines, at any time and from time to time, that the
Company requires additional capital for its business
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and operations, the Board of Directors, with the approval of a Supermajority in
Interest of the Members, may deliver a notice (an "Additional Capital
Requirement Notice") to the Members specifying the additional amount of capital
so determined to be required from each Member. Promptly upon receipt of an
Additional Capital Requirement Notice, a Member shall make such additional
capital contribution. In the event any Member does not contribute the entire
amount required to be contributed by such Member, the shortfall may be loaned to
the Company by one or more of the other Members on terms approved by the Board
of Directors (which loans shall be considered permitted Member loans).
1.6 DISTRIBUTIONS. Distributions shall be made to the Members at the
time and in the aggregate amounts determined by the Board of Directors.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not make a distribution to a Member on account of its interest in
the Company if such distribution would violate Sections 18-607 or 18-804 of the
Act or other applicable law.
1.7 ASSIGNMENTS. A Member may assign in whole or in part its limited
liability company interest in the Company. The transferee shall be admitted to
the Company as a member of the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer, and, immediately following such admission in the case of a transferor
Member transferring its entire limited liability company interest in the
Company, the transferor Member shall cease to be a member of the Company.
Notwithstanding anything in this Agreement to the contrary, any successor to a
Member by merger, conversion or consolidation with the Member as a constituent
party in compliance with this Agreement shall, without further act, be a Member
hereunder, and such merger, conversion or consolidation shall not constitute an
assignment for purposes of this Agreement.
1.8. ADMISSION OF ADDITIONAL MEMBERS. Except as permitted by Section
1.7, one or more additional members of the Company may be admitted to the
Company only with the written consent of all of the Members.
1.9 RESIGNATION. A Member may resign from the Company if it obtains the
written consent of all other Members.
1.10 UCC. The limited liability company interests in the Company are
not securities governed by Article 8 of the Uniform Commercial Code, as in
effect in any state.
1.11 BUSINESS VENTURES. A Member or a Director, or any affiliate
thereof, may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Company, and the Company shall have no rights by virtue of
this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper. A Member
or a Director, or any affiliate thereof, shall not be obligated to present any
particular investment opportunity to the Company even if such opportunity is of
a character that, if presented to the Company, could be taken by the Company,
and
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such Member or Director, or any affiliate thereof, shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment opportunity.
ARTICLE 2
OPERATIONS
2.1 MANAGEMENT. The business and affairs of the Company shall be
managed exclusively by or under the direction of a board of one or more
directors (the "Board of Directors"). Each director of the Company (a
"Director") is not a "manager" (within the meaning of the Act) of the Company.
Each Director appointed shall hold office until a successor is appointed and
qualified in accordance with Section 2.10. The Members may, from time to time as
they deem advisable, appoint additional Directors by the affirmative vote of a
Supermajority in Interest of the Members.
The Members hereby appoint the following persons as Directors:
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
2.2 MEETINGS OF THE BOARD OF DIRECTORS. The Board of Directors shall
hold annual meetings at such time and at such place as shall be designated by
the President and stated in the notice of the meeting. Notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
Director not less than ten (10) days before the date of such annual meeting,
either personally, by telephone, by mail, by telegram or by any other means of
communication. Special meetings of the Board of Directors may be called by the
President on three (3) days' notice to each Director, either personally, by
telephone, by mail, by telegram or by any other means of communication; special
meetings shall be called by the President or Secretary in like manner and on
like notice on the written request of one or more of the Directors.
2.3 QUORUM AND ACTS OF THE BOARD OF DIRECTORS. At all meetings of the
Board of Directors a majority of the Directors shall constitute a quorum for the
transaction of business and 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 of
Directors, except as may be otherwise specifically provided by this Agreement.
If a quorum shall not be present at any meeting of the Board of Directors, the
Directors present thereat 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 of
Directors may be taken without a meeting, if all members of the Board of
Directors consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors.
2.4 ELECTRONIC COMMUNICATIONS. Directors may participate in a meeting
of the Board of Directors by means of conference telephone or similar
communications equipment by means of
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which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
2.5. COMPENSATION OF DIRECTORS; EXPENSES OF BOARD OF DIRECTORS. The
Board of Directors shall have the authority to fix the compensation of
Directors. The Directors may be paid their expenses, if any, of attendance at
such meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as a
Director. No such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefor. The Board of
Directors shall be entitled to reimbursement from the Company for all costs and
expenses (including allocable overhead, fees paid to outside consultants,
on-site personnel hired by the Board of Directors and others who are not
salaried employees of the Company at the time of the performance of such
services) incurred by it for or on behalf of the Company. No Member shall be
entitled to any compensation for its services to the Company or in the conduct
of the business of the Company.
2.6 OFFICERS. The officers of the Company (the "Officers") shall be
chosen by the Members or the Board of Directors and shall include a President,
Vice President, Secretary, and Treasurer. The Members or the Board of Directors
may also choose additional Vice Presidents and one or more Assistant Secretaries
and Assistant Treasurers. Any number of offices may be held by the same person.
2.6.1 Additional Officers. The Members or the Board of Directors at
its annual meetings may appoint such other Officers and agents as they or it
shall deem necessary 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 of Directors.
2.6.2 Compensation of Officers. The salaries of all Officers and
agents of the Company shall be fixed from time to time by the Board of
Directors. No Officer shall be prevented from receiving such salary by reason of
the fact that he is also a Director of the Company.
2.6.3 Removal of Officers; Vacancies. The Officers of the Company
shall hold office until their successors are chosen and qualified. Any Officer
elected or appointed by the Members or the Board of Directors may be removed at
any time by the Chairman of the Board or the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Company shall
be filled by the Board of Directors.
2.6.4 Initial Officers. The initial Officers are as follows:
▇▇▇▇▇ ▇. ▇▇▇▇▇ Chairman and Chief Executive Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ President and Chief Operating Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Executive Vice President, General Counsel and Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Senior Vice President and Chief Financial Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Senior Vice President, Administration
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assistant General Counsel and Assistant Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President, Project Finance
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Chief Accounting Officer
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President and Treasurer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Assistant Treasurer
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President, Legislative & Regulatory Affairs
2.6.5 The Chairman of the Board. The Chairman of the Board shall be
the Chief Executive Officer and shall have general and active supervision and
direction over the management of the Company's business and over the President
and Chief Operating Officer and all of the Company's other Officers, agents and
employees. The Chairman of the Board shall, if present, preside at each meeting
of the Members and of the Board of Directors and shall be an ex officio member
of any and all committees of the Board of Directors. The Chairman of the Board
shall perform all duties incident to the office of Chairman of the Board and
such other duties as may from time to time be assigned to him by the Board of
Directors or the Members. The Chairman of the Board shall execute bonds,
mortgages and other contracts requiring a seal, under a seal of the Company,
except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors or the Members to some other Officer or agent of the
Company.
2.6.6 The President. The President, in consultation with and
subject to the direction of the Chairman of the Board, shall have general and
active management of the business of the Company and shall see that all orders
and resolutions of the Board of Directors or the Members are carried into
effect.
2.6.7 The Vice President. In the absence of the President or in the
event of his inability or refusal to act, the Vice President (or in the event
there shall be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Vice President shall perform such other
duties and have such other powers as the Board of Directors or the Members shall
from time to time prescribe.
2.6.8 The Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the Members and record all the
proceedings of the meetings of the Company and of the Board of Directors in a
book to be kept for that purpose and shall perform like duties for any standing
committees when required. The Secretary shall give, or cause to be given, notice
of all meetings of the Members and meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or the
President, under whose supervision he shall be. The Secretary shall have custody
of the seal of the Company, and he, or an Assistant Secretary, shall have the
authority to affix the same to any instrument requiring it and, when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
Officer to affix the seal of the Company and to attest the affixing by his
signature.
2.6.9 The Assistant Secretary. The Assistant Secretary (or if there
shall be more than one, the Assistant Secretaries in the order determined by the
Board of Directors, or in the absence of any determination, then in the order of
their election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
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Secretary and shall perform such other duties and have such other powers as the
Board of Directors or the Members may from time to time prescribe.
2.6.10 The Treasurer. The Treasurer shall have the custody of the
Company funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Directors or
the Members. The Treasurer shall disburse the funds of the Company as may be
ordered by the Board of Directors or the Members, taking proper vouchers for
such disbursements, and shall render to the President and the Board of
Directors, at its annual meetings, or when the Board of Directors so requires,
an account of all of the Treasurer's transactions and of the financial condition
of the Company. If required by the Board of Directors or the Members, the
Treasurer shall give the Company a bond (which shall be renewed every six years)
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and
for the restoration to the Company, in the case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Company.
2.6.11 The Assistant Treasurer. The Assistant Treasurer (or if
there shall be more than one, the Assistant Treasurers, in the order determined
by the Board of Directors or the Members, or in the absence of any
determination, then in the order of their election) shall, in the absence of the
Treasurer or in the event of his inability or refusal 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 of Directors or the Members may from time to
time prescribe.
2.6.12 Actions of Members. All references in this Section 2.6 to
actions of the Members shall mean such Members acting by an affirmative vote of
a Supermajority in Interest of the Members.
2.7. BINDING. Unless otherwise determined by the Board of Directors or
as otherwise set forth in this Agreement, each Director and Officer has the
authority to bind the Company.
2.8 POWERS. Subject to the provisions of this Agreement, including
Sections 2.9 and 2.10, the Board of Directors shall have full and complete
charge of all the affairs and business of the Company, in all respects and in
all matters, including, without limitation, the responsibility, authority and
power, on behalf of the Company, at the Company's expense and without the
approval of any Member, to:
(a) acquire, operate, lease, encumber or dispose of any direct and
indirect interests in real and personal property (including tangible
and intangible property and cash) owned by the Company from time to
time, and any property received in exchange therefor;
(b) pay, collect, compromise, arbitrate or otherwise adjust any and
all claims or demands of or against the Company, in such amounts and
upon such terms and conditions as the Board of Directors shall
reasonably determine;
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(c) from time to time, employ, engage, hire or otherwise secure the
services of such Persons, including any of the parties hereto or any
Persons related thereto or affiliated therewith, as the Board of
Directors may reasonably deem advisable for the proper execution of its
duties as the Board of Directors hereunder, provided such services are
within the scope of the foregoing authority granted to the Board of
Directors hereunder, such employment to be for such reasonable
compensation and upon such reasonable terms and conditions as the Board
of Directors shall determine;
(d) prepare, execute, file, record, publish and deliver any and all
instruments, documents or statements necessary or convenient to
effectuate any and all actions that the Board of Directors is
authorized to take on behalf of the Company;
(e) borrow money and issue evidences of indebtedness necessary,
convenient or incidental to the accomplishment of the purposes of the
Company, and secure the same by mortgage, pledge or other lien on any
Company assets;
(f) deal with, or otherwise engage in business with, or provide
services to and receive compensation therefor from, any Person that has
provided or may in the future provide services to, lend money to, sell
property to, or purchase property from the Members or the Board of
Directors, or any affiliate thereof;
(g) establish and maintain reserves for such purposes and in such
amounts as it deems appropriate from time to time; and
(h) engage in any kind of activity and perform and carry out
contracts of any kind necessary to, in connection with or incidental to
the accomplishment of the purposes of the Company, as may be lawfully
carried on or performed by a limited liability company under the laws
of the State of Delaware.
Except as expressly provided in this Agreement or required by law, the Members
shall have no right to vote on or consent to any other matter, act, decision or
document involving the Company or its business.
2.9 LIMITS ON AUTHORITY OF BOARD OF DIRECTORS. None of the following
actions may be taken by the Board of Directors without the affirmative approval
of Members having sixty-six percent (66%) of the Percentage Interests in the
Company (a "Supermajority in Interest of the Members"):
(a) Except as otherwise provided herein, any amendment to this
Agreement or the Certificate of Formation;
(b) The removal or replacement of any Director;
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(c) The increase or decrease of the number of Directors to a number
other than four (4);
(d) The demand for additional capital contributions to the Company;
(e) Except as otherwise provided in Section 2.14, the merger or
consolidation of the Company with, or conversion of the Company into,
any other entity or entities;
(f) The additional borrowing of money or issuing of evidences of
indebtedness beyond that which the Company has outstanding as of the
date hereof or by virtue of the Merger if such borrowing or issuance is
in excess of $1,000,000;
(g) The sale of all or any substantial part of the assets of the
Company; and
(h) The commencement of proceedings to have the Company be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Company or the filing
of 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 the 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 the
assignment for the benefit of creditors of the Company, or the
admission in writing the Company's inability to pay its debts generally
as they become due, or, to the fullest extent permitted by law, the
taking of action in furtherance of any such action.
2.10 SUCCESSOR DIRECTORS. A Director may be removed from the Board of
Directors at any time, with or without cause, by the affirmative vote of a
Supermajority in Interest of the Members. A Director may resign from the Board
of Directors at any time without prejudice to any rights of the Company or any
Member as against the resigning Director, by giving written notice to the
Members. If a Director dies, dissolves, resigns or becomes otherwise unwilling
or unable to act as a Director and if no successor Director has been selected as
provided in this Agreement, one or more successor Directors shall be selected by
the vote of a Supermajority in Interest of the Members. Each successor Director
shall have all the rights and responsibilities of its predecessors. It is the
intent of this provision to provide for effective continuity of management of
the Company.
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2.11 INDEMNIFICATION AND LIABILITY.
2.11.1 The Company shall indemnify and hold harmless each Member,
each Director and each Officer, and all affiliates, officers, directors,
shareholders, partners, members, co-trustees, employees and agents of any of the
foregoing (individually, an "Indemnitee") to the fullest extent permitted by
applicable law from and against any and all losses, claims, demands, costs,
damages, liabilities, joint and several, expenses of any nature (including
attorneys' fees and disbursements), judgments, fines, settlements and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, in which the Indemnitee may be
involved, or threatened to be involved as a party or otherwise, arising out of
or incident to the business of the Company, unless such loss, claim, demand,
cost, damage or liability was proximately caused by such Indemnitee's (i) not
acting (or failing to act) in good faith and in a manner believed to be in, or
not opposed to, the interests of the Company or (ii) gross negligence or willful
misconduct.
2.11.2 Expenses incurred by an Indemnitee in defending any claim,
demand, action, suit or proceeding subject to this Section 2.11 shall be
advanced by the Company prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Indemnitee to repay such amount if it shall be determined that such
Indemnitee is not entitled to be indemnified by the Company as authorized in
Section 2.11.1.
2.11.3 The indemnification provided by this Section 2.11 shall be
in addition to any other rights to which an Indemnitee may be entitled under any
agreement, pursuant to an affirmative vote of Members holding fifty-one percent
(51%) of the Percentage Interests in the Company, as a matter of law or equity
or otherwise, and shall inure to the benefit of the heirs, successors, assigns
and administrators of the Indemnitee.
2.11.4 Any indemnification provided hereunder shall be satisfied
solely out of the assets of the Company. Neither any Member nor any Director nor
any Officer shall be subject to personal liability by reason of these
indemnification provisions.
2.11.5 No Indemnitee shall be denied indemnification in whole or in
part under this Section 2.11 by reason of the fact that the Indemnitee had an
interest in the transaction with respect to which the indemnification applies if
the transaction was otherwise permitted by the terms of this Agreement.
2.11.6 The provisions of this Section 2.11 are for the benefit of
the Indemnitees and shall not be deemed to create any rights for the benefit of
any other Person.
2.11.7 Neither any Member nor any Director nor any Officer nor the
affiliates, officers, directors, shareholders, partners, members, co-trustees,
employees or agents of any of the foregoing shall be liable to the Company or to
a Member for any losses sustained or liabilities incurred as a result of any act
or omission of such Member, Director, Officer or any such other Person if (i)
such Member, Director, Officer or such other Person acted (or failed to act) in
good faith and in a manner believed to be in, or not opposed to, the
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interests of the Company and (ii) the conduct of such Member, Director, Officer
or such other Person did not constitute gross negligence or willful misconduct.
2.11.8. An Indemnitee 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
Indemnitee reasonably believes are within such other Person's professional or
expert competence and that 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 Members
might properly be paid.
2.11.9. To the extent that, at law or in equity, an Indemnitee has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Indemnitee, an Indemnitee acting under this Agreement
shall not be liable to the Company or to any other Indemnitee for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Indemnitee. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of an
Indemnitee otherwise existing at law or in equity, are agreed by the Members to
replace such other duties and liabilities of such Indemnitee.
2.11.10. The foregoing provisions of this Section 2.11 shall survive
any termination of this Agreement.
2.12 BOOKS AND RECORDS. The Board of Directors shall keep or cause to
be kept complete and accurate books of account and records with respect to the
Company's business. The books of the Company shall at all times be maintained by
the Board of Directors. Each Member and its duly authorized representatives
shall have the right to examine the Company books, records and documents during
normal business hours for any purpose reasonably related to such Member's
interest as a member of the Company. The Company's books of account shall be
kept using the method of accounting determined by the Board of Directors.
2.13 DISSOLUTION. The Company shall dissolve, and its affairs shall be
wound up upon the first to occur of the following:
(a) the written consent of all of the Members;
(b) the last remaining Member ceasing to be a member of the Company
unless the business of the Company is continued without dissolution in
accordance with the Act; and
(c) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
The bankruptcy (as defined in the Act) of a Member shall not cause such
Member to cease to be a member of the Company and shall not cause a dissolution
of
11
the Company. The Members hereby waive any right they may have to vote to
dissolve the Company under Section 18-801(b) of the Act.
2.14 AUTHORIZATION OF MERGER. Without the need for the consent of any
additional Person and notwithstanding anything in this Agreement to the
contrary, the Company is authorized to merge with Fish Lake Power Company, a
Delaware corporation ("FLPC"), with the Company being the surviving entity (the
"Merger"). Without the need for the consent of any additional Person and
notwithstanding anything in this Agreement to the contrary, the Company is
authorized to execute and deliver, and to consummate all of the transactions
contemplated by, the Agreement and Plan of Merger, between the Company and FLPC
(the "Merger Agreement"), and any Officer, on behalf of the Company, is
authorized to execute, acknowledge and verify, deliver, file and record any and
all documents and instruments, including, without limitation, the Merger
Agreement, the Certificate of Merger relating to the Merger and those documents
and instruments required or contemplated by applicable law that the Board of
Directors or the Members deem necessary or appropriate to effectuate the Merger.
ARTICLE 3
OTHER PROVISIONS
3.1 ENTIRE AGREEMENT; BINDING PROVISIONS; SEPARABILITY. This Agreement
constitutes the entire agreement between and among the parties hereto pertaining
to the subject matter hereof and fully supersedes any and all prior agreements
or understandings between or among the parties hereto pertaining to the subject
matter hereof. The covenants and agreements contained in this Agreement shall be
binding upon, and inure to the benefit of, the heirs, executors, administrators,
personal representatives, successors and permitted assigns of the respective
parties hereto. Each provision of this Agreement shall be considered separable,
and, if for any reason any provision or provisions hereof are determined to be
invalid and contrary to any existing or future law, such invalidity shall not
impair the operation or effect of those portions of this Agreement that are
valid.
3.2 FURTHER ASSURANCES. Each of the parties hereto does hereby covenant
and agree on behalf of itself, its successors and its assigns, without further
consideration, to prepare, execute, acknowledge, file, record, publish and
deliver such other instruments, documents and statements, and to take such other
action as may be required by law or necessary to effectively carry out the
purposes of this Agreement.
3.3. 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 1.1.3, (b) in the case of a Member or a Director, to such
party at its address as listed on Schedule B attached hereto or (c) at such
other address as may be designated by written notice to the other parties.
12
3.4 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 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. 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 1.6. The interest of the Members
in the Company is personal property.
3.5 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 Director nor any Officer
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member, director or officer of the Company.
3.6 GOVERNING LAW. This Agreement, including its existence, validity,
construction and operating effect, and the rights of each of the parties hereto,
shall be governed by and construed in accordance with the laws of the State of
Delaware (without regard to its principles of conflict of laws).
3.7 SUCCESSORS AND ASSIGNS. The terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the successors and
assigns of the respective Members.
3.8 COUNTERPARTS. This Agreement may be executed in counterparts, all
of which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all of the parties have not signed the same counterpart.
3.9 TITLES. Article and Section titles are for descriptive purposes
only and shall not control or alter the meaning of this Agreement as set forth
in the text.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
SALTON SEA FUNDING
CORPORATION,
a Delaware corporation, as member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
MAGMA POWER COMPANY,
a Nevada corporation, as member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
14
SCHEDULE A
Definitions
-----------
A. Definitions
-----------
"Act" has the meaning set forth in Section 1.1.1.
"Additional Capital Requirement Notice" has the meaning set forth in Section
1.5.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Assistant Secretary" means the one or more persons appointed as Assistant
Secretary in accordance with the terms of this Agreement.
"Assistant Treasurer" means the one or more persons appointed as Assistant
Treasurer in accordance with the terms of this Agreement.
"Board of Directors" has the meaning set forth in Section 2.1.
"Certificate of Formation" has the meaning set forth in Section 1.1.2.
"Company" has the meaning set forth in the preamble to this Agreement.
"Directors" has the meaning set forth in Section 2.1.
"FLPC" has the meaning set forth in Section 2.14.
"Indemnitee" has the meaning set forth in Section 2.11.1.
"Magma" has the meaning set forth in the preamble to this Agreement.
"Member" has the meaning set forth in the preamble to this Agreement.
"Merger" has the meaning set forth in Section 2.14.
"Merger Agreement" has the meaning set forth in Section 2.14.
"Officers" has the meaning set forth in Section 2.6.
"Percentage Interests" has the meaning set forth in Section 1.4.
"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.
15
"President" means the person appointed as President in accordance with the
terms of this Agreement.
"Salton Sea" has the meaning set forth in the preamble to this Agreement.
"Secretary" means the person appointed as Secretary in accordance with the
terms of this Agreement.
"Supermajority in Interest of the Members" has the meaning set forth in
Section 2.9.
"Treasurer" means the person appointed as Treasurer in accordance with the
terms of this Agreement.
"Vice President" means the one or more persons appointed as Vice President
in accordance with the terms of this Agreement.
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. All Section, paragraph, clause or Schedule references not
attributed to a particular document shall be references to such parts of
this Agreement.
16
SCHEDULE B
Addresses
---------
Members:
--------
Magma Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Salton Sea Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Directors:
----------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17