TEXAS LIQUIDS, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of December 18, 1996
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS.......................................... 1
ARTICLE 2
FORMATION AND PURPOSE................................ 1
2.1 Formation, etc.................................. 1
2.2 Name............................................ 2
2.3 Registered Office/Agent......................... 2
2.4 Term............................................ 2
2.5 Purpose......................................... 2
2.6 Powers.......................................... 2
2.7 Filing of Certificate........................... 4
2.8 Foreign Qualification .......................... 4
ARTICLE 3
MEMBERSHIP AND CAPITAL .............................. 4
3.1 Members; Initial Capital Contributions.......... 4
3.2 Maintenance of Capital Accounts................. 5
3.3 Percentage Interests............................ 5
3.4 Return of Capital Contributions................. 5
ARTICLE 4
STATUS AND RIGHTS OF MEMBERS......................... 6
4.1 Limited Liability................................ 6
4.2 No Make Up....................................... 6
4.3 Return of Distributions.......................... 6
ARTICLE 5
DESIGNATION, RIGHTS, AUTHORITIES, POWERS,
RESPONSIBILITIES, AND DUTIES OF THE MANAGER.......... 6
5.1 Manager.......................................... 6
5.2 Officers; Agents................................. 7
ARTICLE 6
DISTRIBUTIONS AND ALLOCATIONS OF PROFIT AND LOSS..... 8
6.1 Distributions................................... 8
6.2 Allocations of Net Profits...................... 9
6.3 Changes in Members' Interests................... 9
6.4 Tax Credits..................................... 9
ARTICLE 7
TAX MATTERS MEMBER ................................... 10
7.1 Tax Matters Member ............................... 10
ARTICLE 8
TRANSFER OF INTERESTS................................. 10
8.1 Transfer of Interests............................. 10
8.2 Requirements Applicable to Transfers.............. 10
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING, AND REPORTS............... 12
9.1 Books and Records................................. 12
9.2 Delivery to Member................................ 12
9.3 Financial Statements ............................. 13
9.4 Filings .......................................... 13
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PAGE
ARTICLE 10
AMENDMENTS TO AGREEMENT .............................. 13
ARTICLE 11
DISSOLUTION OF COMPANY................................ 14
11.1 Termination of Membership........................ 14
11.2 Events of Dissolution or Liquidation............. 14
11.3 Liquidation...................................... 14
11.4 Distributions to Members......................... 14
11.5 No Action for Dissolution........................ 15
11.6 No Further Claim................................. 15
ARTICLE 12
INDEMNIFICATION....................................... 15
12.1 General.......................................... 15
12.2 Persons Entitled to Indemnity.................... 16
12.3 Procedure Agreements............................. 16
12.4 Extent of Duties................................. 16
12.5 Fiduciary and Other Duties....................... 16
ARTICLE 13
MISCELLANEOUS......................................... 17
13.1 Additional Documents............................. 17
13.2 General.......................................... 17
13.3 Notices, Etc..................................... 17
13.4 Gender and Number................................. 18
13.5 Severability...................................... 18
13.6 Headings.......................................... 18
13.7 No Third Party Rights............................. 18
EXHIBIT 1
Defined Terms.......................................... 20
EXHIBIT 5.2
OFFICERS .............................................. 24
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TEXAS LIQUIDS, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of TEXAS LIQUIDS,
L.L.C. is dated as of December 18, 1996, by and between AllEnergy
Marketing Company, L.L.C., a Massachusetts limited liability
company ("AllEnergy") and AllEnergy Marketing Company, Inc., a
Massachusetts corporation ("AMCI") (each individually a "Member"
and collectively, the "Members").
WHEREAS, the Members wish to form a limited liability
company pursuant to and in accordance with the Massachusetts
Limited Liability Company Act in order to conduct the business
described herein; and
WHEREAS, the Members wish to enter into this Agreement to
provide for, among other things, the management of the business
and affairs of the Company, the allocation of profits and losses
among the Members, the respective rights and obligations of the
Members to each other and to the Company, and certain other
matters.
NOW, THEREFORE, the Members hereby agree as follows:
ARTICLE 1
DEFINITIONS
Certain capitalized terms used in this Agreement have
specifically defined meanings which are either set forth or
referred to in Exhibit 1, which is attached hereto and
incorporated herein by reference.
ARTICLE 2
FORMATION AND PURPOSE
2.1 Formation, etc. The Members hereby form a limited
liability company pursuant to and in accordance with the Act
effective upon the filing of the Certificate with the Secretary
of State of The Commonwealth of Massachusetts. The rights, duties
and liabilities of the Members shall be determined pursuant to
the Act and this Agreement. To the extent that such rights,
duties or obligations are different by reason of any provision of
this Agreement than they would be in the absence of such
provision, this Agreement shall, to the extent permitted by the
Act, control.
2.2 Name. The name of the Company shall be Texas Liquids,
L.L.C. The business of the Company may be conducted under that
name or, upon compliance with applicable laws, any other name
that the Manager deems appropriate or advisable. The Manager
shall file, or shall cause to be filed, any fictitious name
certificates and similar filings, and any amendments thereto,
that the Manager considers necessary, appropriate or advisable.
2.3 Registered Office/Agent. The registered office required
to be maintained by the Company in The Commonwealth of
Massachusetts pursuant to the Act shall initially be ▇/▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇. The name of the
registered agent of the Company pursuant to the Act shall
initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, whose address shall be that of the
registered office of the Company. The Company may, upon
compliance with the applicable provisions of the Act, change its
registered office or registered agent from time to time in the
discretion of the Manager.
2.4 Term. The term of the Company (the "Term") shall
continue until such date as shall be designated by the Manager,
unless sooner terminated as hereinafter provided.
2.5 Purpose. The Company is formed for the object and
purpose of, and the nature of the business to be conducted and
promoted by the Company is, engaging in any lawful act or
activity for which limited liability companies may be formed
under the Act and engaging in any and all activities necessary,
advisable, convenient or incidental thereto. Such object and
purpose shall include, without limitation, purchasing, marketing,
selling and distributing energy commodities (including but not
limited to propane and natural gas, electricity and other energy
sources) and related products, providing related services, and
engaging in any and all other activities necessary, advisable,
convenient or incidental to such activities.
2.6 Powers. Without limiting the generality of Section 2.5,
the Company shall have the power and authority to take any and
all actions necessary, appropriate, proper, advisable, incidental
or convenient to or for the furtherance of the purpose set forth
in Section 2.5, including, but not limited to, the power:
2.6.1 to conduct its business, carry on its operations
and have and exercise the powers granted to a limited
liability company by the Act in any state, territory,
district or possession of the United States or in any
foreign country as may be necessary, convenient or
incidental to the accomplishment of the purpose of the
Company;
2.6.2 to enter into, perform and carry out contracts of
any kind necessary to, in connection with, in furtherance
of, convenient to, or incidental to the accomplishment of
the purpose of the Company, including without limitation,
contracts to purchase, market, sell or distribute propane,
natural gas, electricity or any other energy commodity or
related products or to provide related services, which
contracts may be with a third party, a Member or an
Affiliate of a Member;
2.6.3 to purchase or otherwise acquire, enter into,
establish, own, invest in, trade, close out, use, employ,
market, sell, mortgage, lend or otherwise dispose of
positions under options, future contracts, forward
contracts, spot contracts, swap contracts and other
financial products, whether for hedging purposes or
otherwise;
2.6.4 to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, enter into, invest in, trade,
vote, use, employ, sell, mortgage, lend, pledge, or
otherwise dispose of, and otherwise use and deal in and
with, shares and other equity interests in, obligations of,
and other financial instruments with or in respect of,
domestic and foreign corporations, associations, general,
limited and limited liability partnerships, trusts, limited
liability companies and other entities (including without
limitation corporations, associations, partnerships, trusts,
limited liability companies and other entities that engage
or propose to engage in one or more businesses similar or
related to the business of the Company, including
specifically but not by way of limitation energy services
companies), individuals, international agencies, and the
United States government and any other national, state,
regional, territorial, local or municipal government and any
agency or instrumentality of any such government;
2.6.5 to acquire by purchase, exchange, lease,
contribution of property or otherwise, own, hold, operate,
maintain, finance, improve, market, lease, sell, distribute,
convey, mortgage, encumber, transfer, demolish or dispose of
any real or personal property, including but not limited to
propane, natural gas, electricity or any other energy
commodity that may be necessary, convenient or incidental to
the accomplishment of the purpose of the Company;
2.6.6 to lend money, to invest and reinvest its funds
and to take and hold real and personal property for the
payment of funds so loaned or invested;
2.6.7 to negotiate, enter into, renegotiate, extend,
renew, terminate, modify, amend, waive, execute, acknowledge
or take any other action with respect to any lease, contract
or security agreement in respect of any assets of or the
business of the Company;
2.6.8 to borrow and issue evidences of indebtedness and
to secure the same by a mortgage, pledge or other lien on
the assets of the Company; provided, however, that without
the prior written consent of the Member in question, the
Company shall not incur any indebtedness that provides for
the liability of any Member;
2.6.9 to open, close, and to make deposits to and
withdrawals from bank and other deposit accounts;
2.6.10 to give or terminate guarantees and indemnities;
2.6.11 to hire, employ and dismiss employees, agents
and representatives, attorneys, accountants, brokers,
investment bankers, appraisers and any other advisors or
consultants of the Company or service providers to the
Company, and define their duties and fix their compensation
and benefits;
2.6.12 to indemnify any Person in accordance with this
Agreement;
2.6.13 to cease its activities and cancel its
Certificate;
2.6.14 to ▇▇▇ and be sued, complain and defend, and
participate in administrative or other proceedings, in its
name;
2.6.15 to pay, collect, compromise, litigate, arbitrate
or otherwise adjust or settle any and all other claims or
demands of or against the Company or to hold such proceeds
against the payment of contingent liabilities; and
2.6.16 to make, execute, acknowledge and file any and
all documents or instruments necessary, convenient or
incidental to the accomplishment of the purpose of the
Company.
2.7 Filing of Certificate. ▇▇▇▇ ▇▇▇▇▇▇▇ Fairfax is
designated as an authorized person within the meaning of the Act
to execute, deliver and file the Certificate, and said named
individual and any such Persons as the Manager shall designate
from time to time are each hereby designated as an authorized
person, within the meaning of the Act, to execute, deliver and
file any amendments or restatements of the Certificate and any
other certificates necessary for the Company to qualify to do
business in a jurisdiction in which the Company may wish to
conduct business.
2.8 Foreign Qualification. The Manager shall take all
necessary actions to cause the Company to be authorized to
conduct business legally in Massachusetts and any other
jurisdictions which the Manager shall determine.
ARTICLE 3
MEMBERSHIP AND CAPITAL
3.1 Members; Initial Capital Contributions. The Members of
the Company are AllEnergy and AMCI, each of which is admitted to
the Company as a Member effective upon its execution of this
Agreement. The Manager shall determine the aggregate initial
Capital Contribution to be made by the Members. AMCI shall
contribute an amount equal to 1% of such aggregate initial
Capital Contribution and AllEnergy shall contribute an amount
equal to 99% of such aggregate initial Capital Contribution.
3.2 Maintenance of Capital Accounts. A separate account
(each a "Capital Account") shall be established and maintained
for each Member and shall be credited with (a) such Member's
Capital Contributions and (b) such Member's share of the Net
Profit of the Company, and shall be charged with (c)
Distributions to such Member and (d) such Member's share of the
Net Losses of the Company. It is the intention of the Members
that the Capital Accounts be maintained in accordance with the
provisions of Section 704(b) of the Code and the Regulations
thereunder, that any liabilities be taken into account in
accordance with the provisions of Section 752 of the Code and the
Regulations thereunder, and that this Agreement be interpreted
consistently therewith.
3.3 Percentage Interests. The percentage interest of each
Member in the profits of the Company (each a "Percentage
Interest") shall initially be as follows:
AllEnergy 99%
AMCI 1%
The Percentage Interests of the Members shall be subject to
adjustment from time to time pursuant to the terms of this
Agreement.
3.4 Return of Capital Contributions. No Member shall have
the right to demand a return of all or any part of its Capital
Contributions, and any return of the Capital Contributions of any
Member shall be made solely from the assets of the Company and
only in accordance with the terms of this Agreement. No interest
shall be paid to any Member with respect to its Capital
Contributions.
3.5 Additional Capital Contributions. From time to time,
the Manager may determine that additional funds are required by
the Company. In such a case, the Manager may (but is not required
to) request that the Members (including the Manager) make Capital
Contributions ratably in accordance with the Members' Percentage
Interests, in an aggregate amount equal to all or a portion of
the funds required. The Members shall then discuss and
unanimously determine the aggregate amount of the Capital
Contributions, if any, that they are willing to make, which
Capital Contributions must be made ratably by the Members and may
not, in the aggregate, exceed the amount requested by the
Manager. If the aggregate amount of the Capital Contributions
agreed upon by the Members is acceptable to the Manager, the
Members shall make such Capital Contributions within ten (10)
business days of the date on which they are informed of the
Manager's acceptance.
ARTICLE 4
STATUS AND RIGHTS OF MEMBERS
4.1 Limited Liability. Except as otherwise provided by the
Act, the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and no
Member nor any other Indemnified Person shall be obligated
personally for any such debt, obligation or liability of the
Company. All Persons dealing with the Company shall look solely
to the assets of the Company for the payment of the debts,
obligations or liabilities of the Company.
4.2 No Make Up. In no event shall any Member be required to
pay to the Company, to any other Member or its Affiliate or to
any third party, any deficit balance that may exist from time to
time in such Member's Capital Account.
4.3 Return of Distributions. Except as otherwise expressly
required by law, a Member, in its capacity as such, shall have no
liability either to the Company or any of its creditors in excess
of (a) the amount of its Capital Contributions actually made, (b)
its share of any assets and undistributed profits of the Company,
(c) its obligation to make Capital Contributions and any other
payments expressly provided for in this Agreement, and (d) to the
extent required by law, the amount of any Distributions
wrongfully distributed to it. Except as required by law or a
court of competent jurisdiction, no Member shall be obligated by
this Agreement to return any Distribution to the Company or pay
the amount of any Distribution for the account of the Company or
to any creditor of the Company. However, if any court of
competent jurisdiction holds that, notwithstanding the provisions
of this Agreement, any Member is obligated to return or pay any
part of any Distribution, the obligation shall be that of such
Member alone, and not of any other Member unless the court so
provides. The amount of any Distribution returned to the Company
by or on behalf of a Member or paid by or on behalf of a Member
for the account of the Company or to a creditor of the Company
shall be added to the account or accounts from which it was
subtracted when it was distributed to the Member.
ARTICLE 5
DESIGNATION, RIGHTS, AUTHORITIES, POWERS,
RESPONSIBILITIES, AND DUTIES OF THE MANAGER
5.1 Manager. The Manager of the Company shall be AllEnergy.
The Manager shall have the exclusive power and authority to
manage the business and affairs of the Company and to make all
decisions with respect thereto. The Manager, to the extent of its
powers set forth in this Section 5.1, is an agent of the Company
for the purpose of the Company's business, and the actions of the
Manager taken in accordance with such powers shall bind the
Company. Except as otherwise expressly provided in this
Agreement, the Manager, acting on behalf of the Company, or
Persons designated by the Manager, including officers and agents
appointed by the Manager, shall be the only Persons authorized to
execute documents which shall be binding on the Company. To the
fullest extent permitted by Massachusetts law, but subject to any
specific provisions hereof granting rights to Members, the
Manager shall have the power to do any and all acts, statutory or
otherwise, with respect to the Company or this Agreement, which
would otherwise be possessed by the Members under the laws of The
Commonwealth of Massachusetts, and the Members, other than a
Member who is also the Manager, shall have no power whatsoever
with respect to the management of the business and affairs of the
Company or to bind the Company. Subject to the provisions of this
Agreement which require the consent or approval of one or more
Members, the powers and authority granted to the Manager
hereunder shall include all those necessary or convenient for the
furtherance of the purposes and powers of the Company and shall
include the power to make all decisions with regard to the
management, operations, assets, financing and capitalization of
the Company, including without limitation, the power and
authority to undertake and make decisions concerning: (a) hiring
and firing of employees, attorneys, accountants, brokers,
investment bankers and other advisors and consultants, (b) the
entering into of contracts or agreements, (c) opening of bank and
other deposit accounts and operations thereunder, (d) purchasing,
constructing, improving, developing and maintaining of real
property, (e) purchasing of insurance, goods, supplies,
equipment, materials and other personal property, (f) the
borrowing of money, the obtaining of credit, the issuance of
notes, debentures, securities, equity or other interests of or in
the Company and the securing of the obligations undertaken in
connection therewith with mortgages on and security interests in
all or any portion of the real or personal property of the
Company, in each case whether with a Member or another Person,
(g) the making of investments in or the acquisition of securities
of any person or entity, (h) the giving of guarantees and
indemnities, (i) entering into of leases for real or personal
property, (j) mergers with or acquisitions of other entities, (k)
dissolution, (1) the sale or lease of all or any portion of the
assets of the Company, (m) forming subsidiaries or joint
ventures, (n) compromising, arbitrating, adjusting and litigating
claims in favor of or against the Company, and (o) all other acts
or activities necessary or desirable for the carrying out of the
purpose of the Company.
5.2 Officers; Agents. The Manager by written instrument
signed by the Manager shall have the power to appoint agents (who
may be referred to as officers) to act for the Company with such
titles, if any, as the Manager deems appropriate and to delegate
to such officers or agents such of the powers to manage and
control the business and affairs of the Company as are granted to
the Manager hereunder, and as Manager may in its sole discretion
determine, including the power to execute documents on behalf of
the Company; provided, however, that no such delegation by the
Manager shall cause the Manager to cease to be the "manager" of
the Company within the meaning of the Act. The officers or agents
so appointed may include persons holding titles such as Chief
Executive Officer, President, Vice President, Chief Operating
Officer, Chief Financial Officer, Secretary, Treasurer or
Controller. Unless the authority of the agent designated as the
officer in question is limited or expanded in the document
appointing such officer or is otherwise specified by the Manager,
any officer so appointed shall have the same authority to act for
the Company as a corresponding officer of a Massachusetts
corporation would have to act for a Massachusetts corporation in
the absence of a specific delegation of authority and as more
specifically set forth in Exhibit 5.2 hereto; provided, however,
that unless such power is specifically delegated to the officer
in question either for a specific transaction or generally, no
such officer shall have the power to lease or acquire real
property, to borrow money, to issue notes, debentures,
securities, equity or other interests of or in the Company, to
make investments in (other than the temporary investment of
surplus cash in the ordinary course of business), or to acquire
securities of any Person, to give guarantees or indemnities, to
merge, consolidate, liquidate or dissolve the Company or to sell
or lease all or any substantial portion of the assets of the
Company. The Manager, in its sole discretion, may by written
instrument signed by the Manager ratify any act previously taken
by an officer or agent acting on behalf of the Company.
By its signature to this Agreement, the Manager hereby
designates the following Persons as the initial officers of the
Company:
Chairman, Chief Executive
Officer and President: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and Treasurer
(Chief Financial Officer): ▇▇▇▇▇ ▇. ▇▇▇▇
Secretary: L. ▇▇▇▇▇▇▇ ▇▇▇, Jr.
Assistant Secretary: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ARTICLE 6
DISTRIBUTIONS AND ALLOCATIONS OF PROFIT AND LOSS
6.1 Distributions.
6.1.1 In General. The Manager shall have, subject to
Article 11, the sole authority to determine the timing and
the aggregate amount of any Distributions to the Members.
Subject to the foregoing and to Section 11.4, Distributions
shall be made to the Members pro rata in accordance with the
Members' then prevailing Percentage Interests.
6.1.2 Withholding. All amounts withheld pursuant to
the Code or any provision of any federal, state, local or
foreign tax law with respect to any payment, distribution,
or allocation to the Company or the Members shall be treated
as amounts distributed to the Members pursuant to Section
6.1 for all purposes under this Agreement. The Manager
shall withhold from Distributions to, and with respect to
allocations to, the Members shall pay over to the
appropriate federal, state, local or foreign government any
amounts required to be so withheld, and shall allocate any
such amounts to the Members in respect of whose Distribution
or allocation the tax was withheld.
6.1.3 Property Distributions and Installment Sales. The
Manager may from time to time including upon liquidation
determine to distribute property other than cash to the
Members. In such a case, such in-kind Distribution shall be
made to the Members entitled thereto in the same proportions
as the Members would have been entitled to cash
distributions. The amount by which the fair market value of
any property to be distributed in kind to the Members
exceeds or is less than the tax basis of such property
shall, to the extent not otherwise recognized by the
Company, be taken into account in determining Net Profit and
Net Loss and determining the Capital Accounts of the Members
as if such property had been sold at its fair market value
immediately prior to its distribution. If any assets are
sold in transactions in which, by reason of the provisions
of section 453 of the Code or any successor thereto, gain is
realized but not recognized, such gain shall be taken into
account when realized in computing gain or loss of the
Company for purposes of allocation of Net Profit or Net Loss
under this Article 6, and, if such sales shall involve
substantially all the assets of the Company, the Company
shall be deemed to have been dissolved and terminated
notwithstanding any election by the Members to continue the
Company for purposes of collecting the proceeds of such
sales.
6.2 Allocations of Net Profits and Net Loss. Subject to
Sections 6.3 and 6.5, the Net Profit and the Net Loss of the
Company shall be allocated among the Members ratably in
accordance with their Percentage Interests.
6.3 Changes in Members' Interests. If during any Fiscal
Year of the Company there is a change in any Member's Interest in
the Company, the Manager shall confer with the tax advisors to
the Company and, in conformity with such advice allocate the Net
Profit or Net Loss to the Members so as to take into account the
varying Interests of the Members in the Company in a manner that
complies with the provisions of Section 706 of the Code and the
Regulations thereunder.
6.4 Tax Credits. All foreign tax credits of the Company for
a Fiscal Year (or portion thereof, if appropriate) shall be
allocated among the Members in the same proportion as the net
income and gains of the Company that were subject to the foreign
taxes that gave rise to such credits. All other items of federal
income tax credit shall be allocated among the Members in
accordance with their Percentage Interests.
6.5 Compliance with Capital Account Maintenance Provisions.
It is the intent of the Members that the Company be treated as a
partnership for federal income tax purposes and that the
provisions hereof relating to each Member's distributive share of
income, gain, loss, deduction, and credit (and items thereof)
comply with the provisions of Sections 704(b), 704(c), and other
relevant provisions of the Code and the applicable Regulations.
In particular, there are hereby included in the Agreement such
provisions governing the allocation of income, gain, loss,
deduction and credit (and items thereof) as may be necessary to
provide that the Company's allocation provisions contain a so-
called "Qualified Income Offset" provision and comply with all
provisions relating to the allocation of so-called "Nonrecourse
Deductions" and "Member Nonrecourse Deductions" and the
chargeback thereof as set forth in the Regulations under Section
704(b) of the Code. Allocations of Nonrecourse Deductions shall
be made ratably among the Members in accordance with their
Percentage Interests. In allocating Net Profits pursuant to
Section 6.2, the Manager shall take into account (and, if
necessary, modify the allocations to reflect) anticipated future
allocations under the minimum gain chargeback rules of
Regulations Section 1.704-2.
6.6 Tax Allocations. Except as otherwise required by Code
Section 704(c) or the Regulations thereunder, each item of
income, gain, loss and deduction, as determined for federal
income tax purposes, shall be allocated among the Members in the
same manner as its correlative item of "book" income, gain, loss
or deduction is allocated pursuant to Sections 6.2 through 6.5.
ARTICLE 7
TAX MATTERS MEMBER
7.1 Tax Matters Member. The Manager shall be the "tax
matters partner" of the Company as provided in the Regulations
under Code Section 6231 and analogous provisions of state law
(the "Tax Matters Member"). The Tax Matters Member shall
represent the Company, at the Company's expense, in connection
with all examinations of the Company's affairs by tax authorities
including any resulting administrative or judicial proceedings.
ARTICLE 8
TRANSFER OF INTERESTS
8.1 Transfer of Interests. No Member shall sell, assign,
exchange, convey, gift, pledge, mortgage, encumber, dispose of or
otherwise transfer (each, whether used as a noun or a verb, a
"Transfer") all or any part of its Interest unless such transfer
is first approved by the other Member acting in its sole
discretion.
8.2 Requirements Applicable to Transfers.
8.2.1 No Transfer of all or any part of a Member's
Interest may be made pursuant to Section 8.1 unless and
until the Manager shall have received such of the following
(to the extent applicable to the proposed Transfer) as it
may have requested:
(i) the agreement in writing of the transferee to comply
with all of the terms and provisions of this Agreement;
(ii) a duly executed and acknowledged written instrument of
Transfer, specifying the Interests being transferred
and setting forth the intention of the Member effecting
the Transfer that the transferee succeed to a portion
or all of such Member's Interest; and
(iii) an opinion of counsel (who may be counsel for the
Company), satisfactory in form and substance to the
Manager to the effect that:
(A) such proposed transferee has obtained such regulatory
and other governmental approvals as may be required to
permit it to be a Member of the Company, and the
Transfer is otherwise in compliance with all applicable
laws;
(B) such Transfer would not violate the Securities Act of
1933, as amended, or any state securities or blue sky
laws applicable to the Company or the Interest to be
transferred;
(C) such Transfer would not cause the Company to be
considered a publicly traded partnership under Section
7704(b) of the Code;
(D) such Transfer would not cause the Company to lose its
status as a partnership for federal income purposes;
and
(E) such Transfer would not cause termination of the
company for federal income tax purposes.
8.2.2 The transferring Member and its transferee shall
pay, or reimburse the Company for, all reasonable costs and
expenses incurred by the Company in connection with the
Transfer and admission of the transferee as a Member,
including any legal fees incurred in connection with the
legal opinions referred to in Section 8.2.1, on or before
the tenth business day after the receipt by such Persons of
the Company's invoice for the amount due. If payment is not
made by the date due, the Person owing that amount shall pay
interest on the unpaid amount from the date due until paid
at a rate per annum equal to the prime rate, as announced
from time to time in the Wall Street Journal, plus one
percentage point.
8.2.3 Each Member hereby severally agrees that it will
not Transfer all or any part of its Interest in the Company
except as permitted by this Agreement.
8.2.4 The transferee of an Interest shall be admitted
as a Member of the Company provided that the Transfer is
effected in compliance with this Article 8. Each transferee
shall succeed to the same portion of the balance of the
Capital Account of the transferor, as of the effective date
of the Transfer, as the transferred Interest bears to the
entire Interest of the transferor immediately prior to such
Transfer, and shall otherwise become subject to and be bound
by all of the provisions of this Agreement as a Member of
the Company.
8.2.5 If a Member Transfers its entire Interest, such
Transfer shall be treated as a withdrawal of such Member,
but the Company shall not dissolve if the business of the
Company is continued without dissolution in accordance with
clause (b) of Section 11.2 hereof.
8.2.6 No Transfer of an Interest shall effect a release
of the transferring Member from any liabilities to the
Company or the other Members arising from events occurring
prior to the Transfer.
ARTICLE 9
BOOKS. RECORDS, ACCOUNTING, AND REPORTS
9.1 Books and Records. The Company shall maintain at its
principal office all of the following:
9.1.1 A current list of the full name and last known
business address of each Member together with true and full
information regarding the amount of cash and a description
and statement of the agreed value of any other property or
services contributed by each Member and which each Member
has agreed to contribute in the future, and the date on
which each Member became a member of the Company;
9.1.2 A copy of the Certificate, this Agreement,
including any and all amendments to either thereof, together
with executed copies of any powers of attorney pursuant to
which the Certificate, this Agreement or any amendment has
been executed;
9.1.3 Copies of the Company's federal, state, and local
income tax or information returns and reports, if any, for
the six most recent taxable years;
9.1.4 The audited financial statements of the Company
for the six most recent Fiscal Years; and
9.1.5 The Company's books and records for at least the
current and past five Fiscal Years.
9.2 Delivery to Members; Inspection. Upon the request of
any Member for any purpose reasonably related to such Member's
Interest as a Member of the Company:
9.2.1 The Company shall promptly deliver to the
requesting Member, at the expense of the Company, a copy of
the information required to be maintained by Sections 9.1.1.
through 9.1.4.
9.2.2 The Members may review, at the Company's office
during normal business hours, the Company's federal, state
and local income tax or information returns prior to the
filing thereof and the Company's books and records referred
to in Section 9.1.5.
9.2.3 The Company will provide any Member at such
Member's expense such other information regarding the
business affairs of the Company as the Member shall
reasonably request.
9.3 Financial Statements. The Manager shall maintain or
cause to be maintained books of account reflecting the operations
of the Company on an annual basis and shall prepare or cause to
be prepared for the Members at least annually, at the Company's
expense, financial statements of the Company prepared in
accordance with generally accepted accounting principles.
9.4 Filings. At the Company's expense the Manager shall
cause the income tax and information returns for the Company to
be prepared and timely filed with the appropriate authorities and
to have prepared and to furnish to each Member such information
with respect to the Company as is necessary to enable the Members
to prepare and timely file their federal and state income tax
returns. The Manager, at the Company's expense, shall also cause
to be prepared and timely filed, with appropriate federal and
state regulatory and administrative bodies, all reports required
to be filed by the Company with those entities under then current
applicable laws, rules, and regulations. The reports shall be
prepared on the accounting or reporting basis required by the
regulatory bodies.
ARTICLE 10
AMENDMENTS TO AGREEMENT
This Agreement may be amended or modified with the prior
written consent of the Manager; provided, that, the Members
expressly agree that in the event of a Transfer of all or a
portion of a Member's Interest or the admission of a new Member,
this Agreement shall be revised to reflect such Transfer or such
admission, as the case may be, and to amend such provisions of
this Agreement as the Members shall determine to be appropriate,
it being contemplated that in the event that either Member
Transfers all of its Interest to another Person and such Person
is admitted as a Member, such Person shall be subject to all of
the provisions of this Agreement to which the transferor Member
was previously subject. The Manager shall cause to be prepared
and filed any amendment to the Certificate that may be required
to be filed under the Act as a consequence of any amendment to
this Agreement. Any modification or amendment to this Agreement
pursuant to this Article 10 shall be binding on all Members.
ARTICLE 11
DISSOLUTION OF COMPANY
11.1 Termination of Membership. No Member shall resign or
withdraw from the Company except that, subject to the
restrictions set forth in Article 8, any Member may Transfer its
Interest in the Company and the transferee may become a Member in
place of the Member which transferred its Interest. If any Member
ceases to be a Member for any reason, the business of the Company
may be continued by the remaining Members (so long as there are
two such remaining Members) as provided in clause (b) of Section
11.2.
11.2 Events of Dissolution or Liquidation. The Company shall
be dissolved upon the happening of any of the following events:
(a) the written determination of the Manager, (b) the withdrawal,
bankruptcy or dissolution of any Member, unless there are at
least two remaining Members and the business of the Company is
continued (and if the Manager is no longer a Member, a new
manager is selected) by the consent of the remaining Members
holding Interests that together represent more than a 50%
Percentage Interest within 90 days following the occurrence of
any such event, or (c) the entry of a decree of judicial
dissolution under Section 44 of the Act.
11.3 Liquidation. If the Company is dissolved and not
continued, the Company shall immediately commence to wind up its
affairs. A reasonable period of time shall be allowed for the
orderly termination of the Company's business, discharge of its
liabilities, and distribution or liquidation of the remaining
assets so as to enable the Company to minimize the normal losses
attendant to the liquidation process. The Company's property and
assets or the proceeds from the liquidation thereof shall,
subject to the requirements of the Act, be distributed in
accordance with Section 11.4. A full accounting of the assets and
liabilities of the Company shall be taken and a statement thereof
shall be furnished to each Member within 30 days after the
distribution of all of the assets of the Company. Such accounting
and statements shall be prepared under the direction of the
Manager. Upon such final accounting, the Company shall terminate
and an authorized person, appointed pursuant to Section 2.7,
shall cancel the Certificate in accordance with the Act.
11.4 Distributions to Members. Distributions to Members upon
liquidation shall be made in accordance with the Members' Capital
Account balances (after adjustment pursuant to Section 6.2).
Notwithstanding Section 11.3 or the first sentence of this
Section 11.4, the Company shall not make any Distribution
pursuant to this Section 11.4 unless the Manager shall have
determined that the Company has sufficient assets to pay all
accrued and contingent liabilities of which the Manager is aware
after making reasonable inquiry.
11.5 No Action for Dissolution. The Members acknowledge that
irreparable damage would be done to the goodwill and reputation
of the Company if any Member should bring an action in court to
dissolve the Company under circumstances where dissolution is not
required by Section 11.2. This Agreement has been drawn carefully
to provide fair treatment of all parties and equitable payment in
liquidation of the Interests of all Members. Accordingly, except
where the Manager has failed to liquidate the Company as required
by Section 11.2 and except as specifically provided in Section 44
of the Act, each Member hereby waives and renounces its right to
initiate legal action to seek dissolution or to seek the
appointment of a receiver or trustee to liquidate the Company.
11.6 No Further Claim. Upon dissolution, each Member shall
look solely to the assets of the Company for the return of its
Capital Contributions, and if the Company's property remaining
after payment or discharge of the debts and liabilities of the
Company, including debts and liabilities owed to one or more of
the Members, is insufficient to return the aggregate Capital
Contributions of each Member, a Member shall have no recourse
against the Company or any other Member except to the extent that
the other Member has received Distributions in excess of those to
which such Member was entitled to under the terms of this
Agreement.
ARTICLE 12
INDEMNIFICATION
12.1 General. To the maximum extent permitted by law, the
Company shall indemnify, defend, and hold harmless, each Manager
and each Member, including the Tax Matters Member, and each
Member's officers, trustees, directors, partners, members,
shareholders, and employees (and each such Person's officers,
trustees, directors, partners, members, shareholders, and
employees), and the employees and officers of the Company (all
indemnified persons being referred to as "Indemnified Persons"),
from any liability, loss, or damage incurred by the Indemnified
Person by reason of any act performed or omitted to be performed
by the Indemnified Person in connection with the business of the
Company and from liabilities or obligations of the Company
imposed on such Person by virtue of such Person's position with
the Company, including attorneys' fees and costs and any amounts
expended in the settlement of any such claims of liability, loss,
or damage; provided, however, that, if the liability, loss,
damage, or claim arises out of any action or inaction of an
Indemnified Person, indemnification under this Section 12.1 shall
be available only if (a) either (i) the Indemnified Person, at
the time of such action or inaction, determined, in good faith,
that its or his course of conduct was in, or not opposed to, the
best interests of the Company, or (ii) in the case of inaction by
the Indemnified Person, the Indemnified Person did not intend its
or his inaction to be harmful or opposed to the best interests of
the Company, and (b) the action or inaction did not constitute
fraud or a Violation of the Business Judgment Rule by the
Indemnified Person, and provided, further, that indemnification
under this Section 12.1 shall be recoverable only from the assets
of the Company and not from any assets of the Members. The
Company may pay or reimburse attorneys' fees of an Indemnified
Person as incurred, if such Indemnified Person executes an
undertaking to repay the amount so paid or reimbursed if there is
a final determination by a court of competent jurisdiction that
such Indemnified Person is not entitled to indemnification under
this Article 12. The Company may pay for insurance covering
liability of the Indemnified Persons for negligence in operation
of the Company's affairs.
12.2 Persons Entitled to Indemnity. Any Person who is within
the definition of "Indemnified Person" at the time of any action
or inaction in connection with the business of the Company shall
be entitled to the benefits of this Article 12 as an "Indemnified
Person" with respect thereto, regardless whether such Person
continues to be within the definition of "Indemnified Person" at
the time of such Person's claim for indemnification or
exculpation hereunder.
12.3 Procedure Agreements. The Company may enter into an
agreement with any of its officers and employees setting forth
procedures consistent with applicable law for implementing the
indemnities provided in this Article 12.
12.4 Extent of Duties. No Indemnified Person shall be
liable, in damages or otherwise, to the Company or to any Member
for any loss that arises out of any act performed or omitted to
be performed by it or him pursuant to the authority granted by
this Agreement if (a) either (i) the Indemnified Person, at the
time of such action or inaction, determined, in good faith, that
such Person's course of conduct was in, or not opposed to, the
best interests of the Company, or (ii) in the case of inaction by
the Indemnified Person, the Indemnified Person did not intend
such Person's inaction to be harmful or opposed to the best
interests of the Company, and (b) the conduct of the Indemnified
Person did not constitute fraud or a Violation of the Business
Judgment Rule by such Indemnified Person.
12.5 Fiduciary and Other Duties.
12.5.1 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. The provisions of this
Agreement, to the extent that they restrict the duties
(including fiduciary duties) of an Indemnified Person
otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties of such
Indemnified Person. The provisions of this Section 12.5.1
shall not be construed to relieve any Indemnified Person
from liability for such Person's fraud or a Violation of the
Business Judgment Rule.
12.5.2 Whenever in this Agreement an Indemnified Person
is permitted or required to make a decision (a) in its
"discretion" (without qualification as to how the discretion
is to be exercised) or under a grant of similar authority or
latitude, the Indemnified Person shall act reasonably and in
good faith based on facts known to the Person at the time,
(b) in its "sole discretion" or under a grant of similar
authority or latitude, the Indemnified Person shall be
entitled to consider only such interests and factors as it
desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of
or factors affecting the Company or any other Person, and
(c) under any other express standard, the Indemnified Person
shall act under such express standard and shall not be
subject to any other general standard imposed by this
Agreement or applicable law.
ARTICLE 13
MISCELLANEOUS
13.1 Additional Documents. At any time and from time to time
after the date of this Agreement, upon the request of the
Manager, each Member shall do and perform, or cause to be done
and performed, all such additional acts and deeds, and shall
execute, acknowledge, and deliver, or cause to be executed,
acknowledged, and delivered, all such additional instruments and
documents, as may be required to effectuate the purposes and
intent of this Agreement.
13.2 General. This Agreement: (a) shall be binding upon the
executors, administrators, estates, heirs, and legal successors
of the Members; (b) shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts;
(c) may be executed in more than one counterpart as of the day
and year first above written; and (d) contains the entire
contract among the Members as to the subject matter hereof. The
waiver of any of the provisions, terms, or conditions contained
in this Agreement shall not be considered as a waiver of any of
the other provisions, terms, or conditions hereof.
13.3 Notices. Etc. Any notice, demand or other communication
given to a Manager or Member under this Agreement shall be deemed
to be given if given in writing (including telex, telecopy or
similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have
specified by notice actually received by the addressor), and if
either (a) actually delivered in fully legible form to such
address (evidenced, in the case of a telex, by receipt of the
correct answer back and, in the case of delivery by overnight
courier, by confirmation of delivery from the overnight courier
service making such delivery) or (b) in the case of a letter,
five days shall have elapsed after the same shall have been
deposited in the United States mails, with first-class postage
prepaid and registered or certified.
If to AllEnergy, to it at 3 University Office Park, ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to AMCI, to it at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
13.4 Gender and Number. Whenever required by the context, as
used in this Agreement, the singular number shall include the
plural, the plural shall include the singular, and all words
herein in any gender shall be deemed to include the masculine,
feminine and neuter genders.
13.5 Severability. If any provision of this Agreement is
determined by a court to be invalid or unenforceable, that
determination shall not affect the other provisions hereof, each
of which shall be construed and enforced as if the invalid or
unenforceable portion were not contained herein. That invalidity
or unenforceability shall not affect any valid and enforceable
application thereof, and each said provision shall be deemed to
be effective, operative, made, entered into or taken in the
manner and to the full extent permitted by law.
13.6 Headings. The headings used in this Agreement are used
for administrative convenience only and do not constitute
substantive matter to be considered in construing the terms of
this Agreement.
13.7 No Third Party Rights. The provisions of this Agreement
are for the benefit of the Company, the Manager and the Members
and no other Person, including creditors of the Company shall
have any right or claim against the Company, the Manager or any
Member by reason of this Agreement or any provision hereof or be
entitled to enforce any provision of this Agreement.
[The remainder of this page has deliberately been left blank.]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first set forth above.
ALLENERGY MARKETING COMPANY, L.L.C.
By: /s/ ▇. ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and
Chief Executive Officer
ALLENERGY MARKETING COMPANY, INC.
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇, Jr.
Name: L. ▇▇▇▇▇▇▇ ▇▇▇, Jr.
Title: Vice President & Clerk
EXHIBIT 1
Defined Terms
"Act" shall mean the Massachusetts Limited Liability Company
Act (MGL c. 156C), as amended and in effect from time to time.
"Affiliate" shall mean, with respect to any specified
Person, any Person that directly or through one or more
intermediaries controls or is controlled by or is under common
control with the specified Person. As used in this definition,
the term "control" means the possession, directly or indirectly,
of the power or authority to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting securities, by contract or otherwise.
"Agreement" shall mean the Limited Liability Company
Agreement of the Company dated as of December 18, 1996, as
amended from time to time.
"AllEnergy" is defined in the preamble of the Agreement.
"AMCI" is defined in the preamble of the Agreement.
"Business Day" shall mean a day when national banks are open
for business in Boston, Massachusetts.
"Capital Account" is defined in Section 3.2.
"Capital Contribution" shall mean with respect to any
Member, the amount of cash and the fair market value of any other
property contributed to the Company with respect to the Interest
held by such Member (net of liabilities secured by such
contributed property or that the Company is considered to assume
or take the property subject to pursuant to Code section 752).
"Certificate" shall mean the Certificate of Organization of
the Company and any and all amendments thereto and restatements
thereof filed on behalf of the Company as permitted hereunder
with the office of the Secretary of State of The Commonwealth of
Massachusetts.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the corresponding provisions of
any future federal tax law.
"Company" shall mean the limited liability company formed
under and pursuant to the Act and this Agreement.
"Distribution" shall mean the amount of cash and the fair
market value of any other property distributed to a Member in
respect of the Member's Interest in the Company (net of
liabilities secured by such distributed property or that the
Member is considered to assume or take the property subject to
pursuant to Code section 752).
"Effective Date" shall mean December 18, 1996.
"Energy Commodity" shall mean propane, natural gas,
electricity, oil and any other energy source, as well as all
options, futures contracts, forward contracts, collars, spot
contracts or swap contracts related to the choice, purchase or
consumption of any energy commodity and any other financial
products marketed or used in connection therewith.
"Energy Related Products and Services" shall mean products
and services related to the choice, purchase or consumption of
any Energy Commodity, whether or not sold or provided on a
bundled basis with such natural gas, electricity, oil or other
energy source.
"Fair Value" as applied to all or any portion of the
Interest of any Member or to the non-cash consideration proposed
to be paid as all or a portion of the Offered Price for an
Interest by a third-party offeror, shall mean the fair market
value of the relevant portion of the Interest or of such
consideration as agreed upon by the Members or as shown by an
appraisal performed by an independent appraiser satisfactory to
all Members. In the event that the Members do not agree on such
fair market value or on the selection of an independent appraiser
within 10 days after the event which gives rise to the need to
determine Fair Value, each Member shall select an appraiser
within 20 days of such event and those two appraisers shall
select within 30 days of such event another independent appraiser
to perform the appraisal. The three appraisers so selected shall
then have 15 days from the date of the selection of the third
appraiser to determine the fair market value of the relevant
portion of the Interest or consideration in question. When
determining the fair market value of an Interest, the appraisers
shall consider, among other factors, book value, liquidation
value, replacement value and the value of future cash flows of
the Company as a going concern and shall make no deduction,
discount or other subtraction whatsoever for the possible
minority status or limited voting rights of any Member. If the
single appraiser has been appointed, such appraiser's
determination of value shall be final and binding. If three
appraisers shall have been appointed as hereinabove set forth,
the values determined by the three appraisers shall be averaged,
the determination which shall differ most from such average shall
be disregarded, the remaining two determinations shall be
averaged, and such average shall be final and binding. If one
independent appraiser is selected, the Members shall each bear
one-half of the expenses of the independent appraiser. If the
Members have each selected an appraiser, each Member shall bear
the expenses of its own appraiser and one-half the expenses of
the independent appraiser selected by the two appraisers.
"Fiscal Year" shall mean the fiscal year of the Company
which shall end on December 31 in each year or on such other date
in each year as the Manager shall otherwise elect.
"Indemnified Persons" is defined in Section 12.1.
"Interest" shall mean the entire interest of a Member in the
capital and profits of the Company, including the right of such
Member to any and all benefits to which a Member may be entitled
as provided in this Agreement, together with the obligations of
such Member to comply with all the terms and provisions of this
Agreement.
"Manager" shall mean AllEnergy. The Manager shall be the
manager of the Company under the Act.
"Member Nonrecourse Deductions" shall mean "partner non-
recourse deductions" as defined in Regulations Section 1.704-
2(i)(1).
"Members" shall mean the Persons listed as members on the
signature page to the Agreement and any other Person that both
acquires an Interest in the Company and is admitted to the
Company as a Member pursuant to the Agreement.
"Net Profit" and "Net Loss" shall mean, for each Fiscal Year
or other period, an amount equal to the Company's taxable income
or loss, respectively, for such year or period, determined in
accordance with Section 703(a) of the Code (taking into account
all items of income, gain, loss, or deduction required to be
stated separately pursuant to Section 703(a)(1) of the Code),
with the following adjustments:
(a) any income of the Company that is exempt from
federal income tax and not otherwise taken into account in
computing Net Profit or Net Loss pursuant to this provision
shall be added to such taxable income or reduce such taxable
loss; and
(b) any expenditures of the Company described in
Section 705(a)(2)(B) of the Code (relating to expenditures
which are neither deductible nor properly chargeable to
capital) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Section 1.704-l(b)(2)(iv)(i) of the
Regulations, and not otherwise taken into account in
computing Net Profit or Net Loss pursuant to this provision,
shall be subtracted from such taxable income or increase
such taxable loss.
"Nonrecourse Deduction" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1).
"Percentage Interests" is defined in Section 3.3.
"Person" shall mean an individual, partnership, joint
venture, association, corporation, trust, estate, limited
liability company, limited liability partnership, or any other
legal entity.
"Qualified Income Offset" shall have the meaning set forth
in Regulations Section 1.704-l(b)(2)(ii)(d).
"Regulations" shall mean the Treasury regulations, including
temporary regulations, promulgated under the Code, as such
regulations may be amended from time to time (including the
corresponding provisions of any future regulations).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Tax Matters Member" is defined in Section 7.1.
"Term" is defined in Section 2.4.
"Transfer" is defined in Section 7.1.1.
"Violation of the Business Judgment Rule" means conduct
which is materially inconsistent with the obligation to be
reasonably informed and to act in good faith or which is
reckless, grossly negligent, willful misconduct or constitutes a
knowing violation of law.
EXHIBIT 5.2
OFFICERS
5.2.1. Officers. Officers and agents of the Company, if any,
shall be appointed by the Manager from time to time in its sole
discretion. An officer may be but none need be a Member. Any two
or more offices may be held by the same person. Any officer may
be required by the Manager to secure the faithful performance of
the officer's duties to the Company by giving bond in such amount
and with sureties or otherwise as the Manager may determine.
5.2.2. Powers. Subject to the limitations set forth in
Section 5.2 of the Agreement, each officer shall have, in
addition to the duties and powers herein set forth, the duties
and powers set forth in Section 5.2 of the Agreement or delegated
to such officer as provided in said Section 5.2.
5.2.3. Election. Officers may be appointed by the Manager at
any time. At any time or from time to time the Manager may
delegate to any officer its power to appoint any other officer or
any agents.
5.2.4. Tenure. Each officer shall hold office until such
officer's respective successor is chosen and qualified unless a
shorter period shall have been specified by the terms of such
officer's appointment, or in each case until such officer sooner
dies, resigns, is removed or becomes disqualified. Each agent
shall retain its authority at the pleasure of the Manager, or the
officer by whom such agent was appointed or by the officer who
then holds agent appointive power.
5.2.5. Resignation: Removal; Vacancies. Any officer or agent
may resign by delivering a written letter of resignation to the
Manager, which resignation shall not require acceptance and,
unless otherwise specified in the letter of resignation, shall be
effective upon receipt. The Manager or the officer appointing the
officer or agent may remove any officer or agent at any time
without giving any reason for such removal and no officer or
agent or shall be entitled to any damages by virtue of such
officer's removal from office or such position as agent. If any
office becomes vacant, the position may be filled by the Manager
or in such other manner as the officer in question was appointed.
5.2.6. President and Vice President. Unless the Manager
otherwise specifies, the President shall be the chief executive
officer and shall have direct charge of all business operations
of the Company and, subject to the control of the Manager, shall
have general charge and supervision of the business of the
Company.
Any vice presidents shall have duties as shall be designated
from time to time by the Manager or the President.
5.2.7. Treasurer and Assistant Treasurers. Unless the
Manager otherwise specifies, the Treasurer shall be the chief
financial officer of the Company and shall be in charge of its
funds and valuable papers, and shall have such other duties and
powers as may be designated from time to time by the Manager or
the President. If no Controller is elected, the Treasurer shall,
unless the Manager otherwise specifies, also have the duties and
powers of the Controller.
Any Assistant Treasurers shall have such duties and powers
as shall be designated from time to time by the Manager, the
President or the Treasurer.
5.2.8. Controller and Assistant Controllers. If a Controller
is elected, the Controller shall, unless the Manager otherwise
specifies, be the chief accounting officer of the Company and be
in charge of its books of account and accounting records, and of
its accounting procedures. The Controller shall have such other
duties and powers as may be designated from time to time by the
Manager, the President or the Treasurer.
Any Assistant Controller shall have such duties and powers
as shall be designed from time to time by the Manager, the
President, the Treasurer or the Controller.
5.2.9. Secretary and Assistant Secretaries. The Secretary
shall record all proceedings of the Members in a book or series
of books to be kept therefor and shall file therein all actions
by written consent of the Members. In the absence of the
Secretary from any meeting, an Assistant Secretary, or if there
be one or no Assistant Secretary is present, a temporary
secretary chosen at the meeting, shall record the proceedings
thereof. The Secretary shall keep or cause to be kept records,
which shall contain the names and record addresses of all
Members. The Secretary shall have such other duties and powers as
may from time to time be designated by the Manager or the
President.
Any Assistant Secretaries shall have such duties and powers
as shall be designated from time to time by the Manager, the
President or the Secretary.
5.2.10. Execution of Papers. Except as the Manager may
generally or in particular cases authorize the execution thereof
in some other manner, and subject to the limitations set forth in
Sections 5.2 of the Agreement, all deeds, leases, transfers,
contracts, bonds, notes, checks, drafts or other obligations
made, accepted or endorsed by the corporation shall be signed by
the President, a Vice President or the Treasurer.