LIMITED LIABILITY COMPANY AGREEMENT OF JCP&L TRANSITION FUNDING II LLC
Exhibit
4(a)
OF
JCP&L
TRANSITION FUNDING II LLC
This
Limited Liability Company Agreement (together with the schedules attached
hereto, this “Agreement”) of JCP&L Transition Funding II LLC, a Delaware
limited liability company (the “Company”), dated as of March 29, 2004, is
entered into by Jersey Central Power & Light Company, a New Jersey
corporation, as the sole member (the “Member”). Capitalized terms used herein
and not otherwise defined have the meanings set forth on Schedule
A
hereto.
The
Member, by execution of this Agreement, (i) hereby forms the Company as a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. §18-10l, et seq.), as amended from time
to time (the “Act”), and (ii) hereby agrees as follows:
1. Name.
The
name
of the limited liability company formed hereby is JCP&L Transition Funding
II LLC.
2. Principal
Business Office.
The
principal business office of the Company shall be located at such location
as
may hereafter be determined by the Member.
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is
c/o
The
Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Registered
Agent.
The
name
and address of the registered agent of the Company for service of process on
the
Company in the State of Delaware are The Corporation Trust Company, Corporation
Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Member.
The
name
and the mailing address of the Member are set forth on Schedule
B
attached
hereto.
6. Certificates.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, as an “authorized person” within the meaning of the Act, shall
execute, deliver and file the Certificate of Formation with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State
of
Delaware, his powers as an “authorized person” shall cease, and the Member and
the Managers thereupon shall become designated “authorized persons” and shall
continue as designated “authorized persons” within the meaning of the Act. The
Member or any Manager shall execute, deliver and file any other certificates
(and any amendments and/or restatements thereof) necessary for the Company
to
qualify to do business in New Jersey and in any other jurisdiction in which
the
Company may wish to conduct business.
7. Purposes.
The
Company is formed for the object and purpose of, and the nature of the business
to be conducted and promoted by the Company is, engaging in any lawful act
or
activity for which limited liability companies may be formed under the
Act.
8. Duration.
The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation of the Company as provided in
the
Act.
9. Powers.
In
furtherance of its purposes, but subject to all of the provisions of this
Agreement, the Company, and the Member or any Manager, on behalf of the Company,
acting individually or collectively, shall have the power and is hereby
authorized:
a. to
prepare and file with the Securities and Exchange Commission (the “Commission”)
and to execute, in the case of the 1933 Act Registration Statement and 1934
Act
Registration Statement (as herein defined), on behalf of the Company, (i) a
Registration Statement (the “1933 Act Registration Statement”), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the “1933 Act”), of
the transition bonds of the Company, (ii) any prospectus or prospectus
supplement thereto relating to the transition bonds of the Company required
to
be filed pursuant to the 1933 Act, and (iii) a Registration Statement on an
appropriate form (the “1934 Act Registration Statement”), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the transition bonds of the Company under the Securities
Exchange Act of 1934, as amended;
b. to
file
and execute on behalf of the Company, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents that shall be necessary or desirable to register the
transition bonds of the Company under the securities or “blue sky” laws of such
jurisdictions as the Managers, on behalf of the Company, may deem necessary
or
desirable;
c. to
execute and deliver letters or documents to, or instruments for filing with,
a
depository relating to the transition bonds of the Company;
d. to
execute, deliver and perform on behalf of the Company an underwriting or
purchase agreement with one or more underwriters or purchasers relating to
the
offering of the transition bonds of the Company;
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e. to
enter
into, perform and carry out contracts of any kind, including, without
limitation, contracts with any Person affiliated with the Member necessary
to,
in connection with, convenient to, or incidental to the accomplishment of the
purposes of the Company;
f. to
employ
or otherwise engage employees, managers, contractors, advisors, attorneys and
consultants and pay reasonable compensation for such services;
g. to
open
and maintain one or more bank accounts; rent safety deposit boxes or vaults;
sign checks, written directions or other instruments to withdraw all or part
of
funds belonging to the Company and on deposit in any savings account or checking
account; negotiate and purchase certificates of deposit; obtain access to the
Company safety deposit box or boxes, and generally sign such forms on behalf
of
the Company as may be required to conduct the banking activities of the company;
and
h. to
do
such other things and engage in such other activities related to the foregoing
as may be necessary, convenient or incidental to the conduct of the business
of
the Company, and have and exercise all of the powers and rights conferred upon
limited liability companies formed pursuant to the Act.
The
Company, and any Member, Manager or officer of the Company, acting alone, on
behalf of the Company, may enter into and perform any documents contemplated
in
subsections a. through d. of this Section 9 and any other documents contemplated
thereby or related thereto and any amendments thereto without any further act,
vote or approval of any Person, including any Member, notwithstanding any other
provision of this Agreement. Each Member, Manager and officer of the Company
is
hereby authorized to enter into the documents described in the preceding
sentence on behalf of the Company, but such authorization shall not be deemed
a
restriction on the power of such Member, Manager or officer of the Company
to
enter into other documents on behalf of the Company.
10. Management.
a. Board
of Managers.
The
business and affairs of the Company shall be managed by or under the direction
of a Board comprised of one or more Managers to be elected, designated or
appointed by the Member. The Member may determine at any time in its sole and
absolute discretion the number of managers to constitute the Board. The
authorized number of Managers may be increased or decreased by the Member at
any
time in its sole and absolute discretion. The initial number of Managers shall
be three. The names and mailing addresses of the persons designated as initial
Managers are set forth in Schedule
C
attached
hereto. Each Manager elected, designated or appointed by the Member shall hold
office until his or her successor is elected and qualified or until such
Manager’s earlier death, resignation or removal. As a condition and
qualification to serving as a Manager, each Manager shall execute and deliver
to
the Company the Management Agreement set forth in Schedule
D
attached
hereto.
▇. ▇▇▇▇▇▇.
The
Board shall have the power to do any and all acts necessary, convenient or
incidental to or for the furtherance of the purpose described herein, including
all powers, statutory or otherwise.
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c. Meeting
of the Board of Managers.
The
Board of Managers of the Company may hold meetings, both regular and special,
within or outside the State of Delaware. Regular meetings of the Board may
be
held without notice at such time and at such place as shall from time to time
be
determined by the Board. Special meetings of the Board may be called by the
President on not less than 24 hours’ notice to each Manager by telephone,
facsimile, mail, telegram or any other means of communication, and special
meetings shall be called by the President or Secretary in like manner and with
like notice upon the written request of any one or more of the
Managers.
d. Quorum;
Acts of the Board.
At all
meetings of the Board, a majority of the Managers shall constitute a quorum
for
the transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Managers present
at
any meeting at which there is a quorum shall be the act of the Board. If a
quorum shall not be present at any meeting of the Board, the Managers present
at
such meeting may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. Any action
required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board
or
committee, as the case may be, consent thereto in writing, and the writing
or
writings are filed with the minutes of proceedings of the Board or
committee.
e. Electronic
Communications.
Members
of the Board, or any committee designated by the Board, may participate in
meetings of the Board, or any committee, by means of telephone conference or
similar communications equipment that allows all persons participating in the
meeting to hear each other, and such participation in a meeting shall constitute
presence in person at the meeting. If all the participants are participating
by
telephone conference or similar communications equipment, the meeting shall
be
deemed to be held at the principal place of business of the
Company.
f. Committees
of Managers.
(i) The
Board
may designate one or more committees, each committee to consist of one or more
of the Managers of the Company. The Board may designate one or more Managers
as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
(ii) In
the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not
such members constitute a quorum, may unanimously appoint another member of
the
Board to act at the meeting in the place of any such absent or disqualified
member.
(iii) Any
such
committee, to the extent provided in the resolutions of the Board, shall have
and may exercise all the powers and authority of the Board in the management
of
the business and affairs of the Company. Such committee or committees shall
have
such name or names as may be determined from time to time by resolution adopted
by the Board. Each committee shall keep regular minutes of its meetings and
report the same to the Board when required.
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g. Compensation
of Managers; Expenses.
The
Managers shall not be compensated for their services hereunder. No Manager
is
precluded from serving the Company in any other capacity and receiving
compensation therefor.
h. Removal
of Managers.
Unless
otherwise restricted by law, any Manager or the entire Board of Managers may
be
removed, with or without cause, by the Member, and, any vacancy caused by any
such removal may be filled by action of the Member.
i. Managers
as Agents.
To the
extent of their powers set forth in this Agreement, the Managers are agents
of
the Company for the purpose of the Company’s business, and the actions of the
Managers taken in accordance with such powers set forth in this Agreement shall
bind the Company. However, except as provided in this Agreement or authorized
by
the Board, no Manager shall have the authority to bind the Company in his or
her
individual capacity. Any and all actions of the Board must be taken at a duly
authorized meeting of the Board or upon unanimous written consent of the
Board.
11. Duties
of Managers.
Except
as
provided in this Agreement, in exercising their rights and performing their
duties under this Agreement, the Managers shall have a fiduciary duty of loyalty
and care similar to that of directors of a business corporation organized under
the General Corporation Law of the State of Delaware.
12. Officers.
a. Officers.
The
initial Officers of the Company are listed on Schedule
E
attached
hereto. Except for the initial Officers, the Officers of the Company shall
be
chosen by the Board and shall consist of at least a President, a Secretary
and a
Treasurer. The Board of Managers may also choose one or more Vice Presidents,
one or more Assistant Secretaries and one or more Assistant Treasurers. Any
number of offices may be held by the same person. Each Officer shall hold office
until his or her successor is elected and qualified or until such officer’s
earlier death, resignation or removal. Any Officer may resign at any time upon
written notice to the Company. In addition, the Board may appoint such other
Officers and agents as it shall deem necessary or advisable who shall hold
their
offices for such terms and shall exercise such powers and perform such duties
as
shall be determined from time to time by the Board. The salaries of all Officers
and agents of the Company shall be fixed by or in the manner prescribed by
the
Board. Any initial Officer or any Officer elected or appointed by the Board
may
be removed at any time, with or without cause, by the affirmative vote of a
majority of the Board. Any vacancy occurring in any office of the Company shall
be filled by the Board.
b. President.
The
President shall be the chief executive officer of the Company, shall preside
at
all meetings of the Board, shall be responsible for the general and active
management of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect. The President shall execute
all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed; (ii)
where signing and execution thereof shall be expressly delegated by
the
5
Board
to
some other Officer or agent of the Company; and (iii) as otherwise permitted
in
Section 12c.
c. Vice
President.
In the
absence of the President or in the event of the President’s inability to act,
the Vice President, if any (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Managers, or
in
the absence of any designation, then in the order set forth on Schedule
E
hereto),
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, if any, shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
d. Secretary
and Assistant Secretary.
The
Secretary shall be responsible for filing legal documents and maintaining
records for the Company. The Secretary shall attend all meetings of the Board
and record all the proceedings of the meetings of the Company and of the Board
in a book to be kept for that purpose and shall perform like duties for special
and standing committees when required. The Secretary shall give, or cause to
be
given, notice of all special meetings of the Board, and shall perform such
other
duties as may be prescribed by the Board or the President, under whose
supervision the Secretary shall serve. The Assistant Secretary, or if there
be
more than one, the Assistant Secretaries in the order determined by the Board
(or if there be no such determination, then in order of their election), shall,
in the absence of the Secretary or in the event of the Secretary’s inability to
act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board may from
time
to time prescribe.
e. Treasurer
and Assistant Treasurer.
The
Treasurer shall have the custody of the Company funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Company and shall deposit all moneys and other valuable effects in the
name and to the credit of the Company in such depositories as may be designated
by the Board. The Treasurer shall disburse the funds of the Company as may
be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the President and to the Board, at its regular meetings or when the
Board so requires, an account of all of the Treasurer’s transactions and of the
financial condition of the Company. The Assistant Treasurer, or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Treasurer or in the event of the Treasurer’s
inability to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board
may
from time to time prescribe.
f. Controller
and Assistant Controller.
The
Controller shall be the chief accounting officer of the Company. The Controller
shall keep full and accurate accounts of the assets, liabilities, commitments,
receipts, disbursements and other financial transactions of the Company; shall
cause regular audits of the books and records of account of the Company and
supervise the preparation of the Company’s financial statements; and, in
general, shall discharge such other duties as may from time to time be assigned
by the Board or the President. The Assistant Controller, or if there shall
be
more than one, the Assistant Controllers in the order determined by the Board
(or if there be no such determination, then in the order set forth on
Schedule
E
hereto),
shall, in the absence of the Comptroller or in the event of the
Comptroller’s
6
inability
to act, perform the duties and exercise the powers of the Comptroller and shall
perform such other duties and have such other powers as the Board may from
time
to time prescribe.
g. Officers
as Agents.
The
Officers, to the extent of their powers set forth in this Agreement or otherwise
vested in them by action of the Board not inconsistent with this Agreement,
are
agents of the Company for the purpose of the Company’s business, and, the
actions of the Officers taken in accordance with such powers shall bind the
Company.
h. Duties
of Officers.
Except
as provided in this Agreement, in exercising their rights and performing their
duties under this Agreement, the Officers shall have a fiduciary duty of loyalty
and care similar to that of officers of a business corporation organized under
the General Corporation Law of the State of Delaware.
13. Limited
Liability.
Except
as
otherwise expressly provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be the
debts, obligations and liabilities solely of the Company, and neither the Member
nor any Manager shall be obligated personally for any such debt, obligation
or
liability of the Company solely by reason of being the Member or Manager of
the
Company.
14. Capital
Contributions.
The
Member shall be deemed admitted as the Member of the Company effective as of
the
date of this Agreement. The Member shall contribute the amount of cash to the
Company listed on Schedule
B
attached
hereto.
15. Additional
Contributions.
The
Member is not required to make any additional capital contribution to the
Company. To the extent that the Member makes an additional capital contribution
to the Company, the Member shall revise Schedule
B
of this
Agreement. The provisions of this Agreement, including this Section 15, are
intended solely to benefit the Member and, to the fullest extent permitted
by
law, shall not be construed as conferring any benefit upon any creditor of
the
Company (and no such creditor of the Company shall be a third-party beneficiary
of this Agreement) and the Member shall have no duty or obligation to any
creditor of the Company to make any contribution to the Company or to issue
any
call for capital pursuant to this Agreement.
16. Allocation
of Profits and Losses.
The
Company’s profits and losses shall be allocated to the Member.
17. Distributions.
Distributions
shall be made to the Member at the times and in the aggregate amounts determined
by the Board. Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a distribution to the
Member on
7
account
of its interest in the Company if such distribution would violate the Act or
any
other applicable law.
18. Books
and Records.
The
Board
shall keep or cause to be kept complete and accurate books of account and
records with respect to the Company’s business. The books of the Company shall
at all times be maintained by the Board. The Member and its duly authorized
representatives shall have the right to examine the Company books, records
and
documents during normal business hours. The Company’s books of account shall be
kept using the method of accounting determined by the Member. The Company’s
independent auditor shall be an independent public accounting firm selected
by
the Member.
19. Exculpation
and Indemnification.
a. No
Member, Officer, Manager, employee or agent of the Company and no employee,
representative, agent or Affiliate of the Member (collectively, the “Covered
Persons”) shall be liable to the Company or any other Person who is bound by
this Agreement for any loss, damage or claim incurred by reason of any act
or
omission performed or omitted by such Covered Person in good faith on behalf
of
the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred
by
reason of such Covered Person’s willful misconduct.
b. To
the
fullest extent permitted by applicable law, a Covered Person shall be entitled
to indemnification from the Company for any loss, damage or claim incurred
by
such Covered Person by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred
by
such Covered Person by reason of such Covered Person’s willful misconduct with
respect to such acts or omissions; provided,
however,
that
any indemnity under this Section 19 shall be provided out of and to the extent
of Company assets only, and no Member shall have personal liability on account
thereof.
c. To
the
fullest extent permitted by applicable law, expenses (including legal fees)
incurred by a Covered Person defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person is not entitled
to
be indemnified as authorized in this Section 19.
d. A
Covered
Person shall be fully protected in relying in good faith upon the records of
the
Company and upon such information, opinions, reports or statements presented
to
the Company by any Person as to matters the Covered Person reasonably believes
are within such other Person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or
8
statements
as to the value and amount of the assets, liabilities, or any other facts
pertinent to the existence and amount of assets from which distributions to
the
Member might properly be paid.
e. To
the
extent that, at law or in equity, a Covered Person has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other Covered Person, a Covered Person who is bound by this Agreement acting
under this Agreement shall not be liable to the Company or to any other Covered
Person for its good faith reliance on the provisions of this Agreement or any
approval or authorization granted by the Company or any other Covered Person.
The provisions of this Agreement, to the extent that they restrict the duties
and liabilities of a Covered Person otherwise existing at law or in equity,
are
agreed by the Member to replace such other duties and liabilities of such
Covered Person.
f. The
foregoing provisions of this Section 19 shall survive any termination of this
Agreement.
20. Assignments.
The
Member may assign in whole or in part its limited liability company interest
in
the Company. Subject to Section 21, if the Member transfers any or all of its
limited liability company interest in the Company pursuant to this Section
20,
the transferee shall be admitted to the Company as a member of the Company
upon
its execution of an instrument signifying its agreement to be bound by the
terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. If the Member transfers all of its limited
liability company interest in the Company, such admission shall be deemed
effective immediately prior to the transfer, and, immediately following such
admission, the transferor Member shall cease to be a member of the
Company.
21. Admission
of New Members.
No
new
Member shall be admitted, either by a transfer of a portion of the Member’s
interest, or in any other manner, which causes the Company to have two or more
Members, until this Agreement has been amended to provide for such admission,
including amendments relating to the governance of the Company, and such
amendment has been accepted by the existing Member and the new
Member.
22. Tax
Characterization.
The
Member acknowledges that at all times that two or more persons or entities
hold
equity interests in the Company for federal income tax purposes (i) it is the
intention of the Company to be treated as a “partnership” for federal and all
relevant state tax purposes, and (ii) the Company will be treated as a
“partnership” for federal and all relevant state tax purposes and shall make all
available elections to be so treated. Until such time, however, it is the
intention of the Member that the Company be disregarded for federal and all
relevant state tax purposes and that the activities of the Company be deemed
to
be activities of the Member for such purposes. All provisions of the Company’s
certificate of formation and this Agreement are to be construed so as to
preserve that tax status under those circumstances.
9
23. Tax
Elections.
In
accordance with the provisions of Treasury Regulations section 301.7701-3,
the
Company will not elect to be treated as a corporation for Federal income tax
purposes, and therefore will be treated as either a disregarded entity or a
division of the Member. Any other election under any provision of any tax law
shall be made only by the Board or by a person authorized to do so by the
Board.
24. Dissolution.
a. The
Company shall be dissolved, and its affairs shall be wound up, upon the first
to
occur of the following: (i) the retirement, resignation or dissolution of the
Member or the occurrence of any other event which terminates the continued
membership of the Member unless the business of the Company is continued in
a
manner permitted by the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
b. The
bankruptcy (as defined in Sections 18-101(1) and 18-304 of the Act) of the
Member shall not cause the Member to cease to be a member of the Company and
upon the occurrence of such an event, the Company shall continue without
dissolution.
c. In
the
event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied
in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
25. Waiver
of Partition; Nature of Interest.
Except
as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, the Member hereby irrevocably waives any right or power that it might
have to cause the Company or any of its assets to be partitioned, to cause
the
appointment of a receiver for all or any portion of the assets of the Company,
to compel any sale of all or any portion of the assets of the Company pursuant
to any applicable law or to file a complaint or to institute any proceeding
at
law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have any interest in any
specific assets of the Company, and the Member shall not have the status of
a
creditor with respect to any distribution pursuant to Section 17 hereof. The
interest of the Member in the Company is personal property.
26. Benefits
of Agreement; No Third-Party Rights.
None
of
the provisions of this Agreement shall be for the benefit of or enforceable
by
any creditor of the Company or by any creditor of the Member. Nothing in this
Agreement shall be deemed to create any right in any Person (other than Covered
Persons) not a party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third
Person.
10
27. Other
Business.
The
Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently
or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this
Agreement.
28. Severability
of Provisions.
Each
provision of this Agreement shall be considered severable and if for any reason
any provision or provisions herein are determined to be invalid, unenforceable
or illegal under any existing or future law, such invalidity, unenforceability
or illegality shall not impair the operation of or affect those portions of
this
Agreement which are valid, enforceable and legal.
29. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
30. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware (without regard to conflicts of law principles), all rights and
remedies being governed by said laws.
31. Amendments.
This
Agreement may not be modified, altered, supplemented or amended except pursuant
to a written agreement executed and delivered by the Member.
32. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement and all of which together shall constitute
one and the same instrument.
33. 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, by the Company at its address in Section 3, (b)
in
the case of the Member, by the Member at its address as listed on Schedule
B
attached
hereto and (c) in the case of either party, by such party at such other address
as may be designated by written notice to the other party.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has
duly
executed this Agreement as of the date first written above.
JERSEY
CENTRAL POWER & LIGHT COMPANY,
as
sole
member
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice President and Chief Financial Officer
12
SCHEDULE
A
Definitions
A. Definitions
When
used
in this Agreement, the following terms not otherwise defined herein have the
following meanings:
“Act”
has
the
meaning set forth in the preamble to this Agreement.
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with such
Person.
“Agreement”
means
this Limited Liability Company Agreement of the Company, together with the
schedules attached hereto, as amended, restated or supplemented from time to
time.
“Board”
or
“Board
of Managers”
means
the Board of Managers of the Company.
“Certificate
of Formation”
means
the Certificate of Formation of the Company to be filed with the Secretary
of
State of the State of Delaware on March 29, 2004, as amended or amended and
restated from time to time.
“Control”
means
the possession, directly or indirectly, or the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise. “Controlling” and “Controlled” shall have
correlative meanings. Without limiting the generality of the foregoing, a Person
shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
“Company”
means
JCP&L Transition Funding II LLC, a Delaware limited liability
company.
“Management
Agreement”
means
the agreement of the Managers substantially in the form attached hereto as
Schedule D. The Management Agreement shall be deemed to be and constitute part
of this Agreement.
“Managers”
means
the Managers elected to the Board of Managers from time to time by the Member.
A
Manager is hereby designated as a “manager” of the Company within the meaning of
Section 18-101(10) of the Act.
“Member”
means
Jersey Central Power & Light Company and includes any Person admitted as an
additional member of the Company or a substitute member of the Company pursuant
to the provisions of this Agreement, each in its capacity as a member of the
Company.
A-1
“Officer”
means
an officer of the Company described in Section 12.
“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.
B. Rules
of Construction
Definitions
in this Agreement apply equally to both the singular and plural forms of the
defined terms. The words “include” and “including” shall be deemed to be
followed by the phrase “without limitation.” The terms “herein,” “hereof’ and
“hereunder” and other words of similar import refer to this Agreement as a whole
and not to any particular Section, paragraph or subdivision. The Section titles
appear as a matter of convenience only and shall not affect the interpretation
of this Agreement. All Section, paragraph, clause, Exhibit or Schedule
references not attributed to a particular document shall be references to such
parts of this Agreement.
A-2
SCHEDULE
B
Member
|
Name
|
Mailing
Address
|
Agreed
Value of
Capital Contribution |
Percentage
Interest |
|
Jersey
Central Power & Light Company
|
c/o
FirstEnergy Service Company
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$1,000
|
100%
|
B-1
SCHEDULE
C
Managers
|
Name
|
Address
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
c/o
FirstEnergy Service Company
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
c/o
FirstEnergy Service Company
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
c/o
FirstEnergy Service Company
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
C-1
SCHEDULE
D
Management
Agreement
________
__, 200_
JCP&L
Transition Funding II LLC
c/o
FirstEnergy Service Company
▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇
▇▇▇▇▇
Re: Management
Agreement
JCP&L
Transition Funding II LLC
Ladies
and Gentlemen:
For
good
and valuable consideration, each of the undersigned persons, who have been
designated as managers of JCP&L Transition Funding II LLC, a Delaware
limited liability company (the “Company”), in accordance with the Limited
Liability Company Agreement of the Company, dated as of March 29, 2004, as
it
may be amended or restated from time to time (the “LLC Agreement”), hereby agree
as follows:
1. Each
of
the undersigned accepts such person’s rights and authority as a Manager (as
defined in the LLC Agreement) under the LLC Agreement and agrees to perform
and
discharge such person’s duties and obligations as a Manager under the LLC
Agreement, and further agrees that such rights, authorities, duties and
obligations under the LLC Agreement shall continue until such person’s successor
as a Manager is designated or until such person’s resignation or removal as a
Manager in accordance with the LLC Agreement. Each of the undersigned agrees
and
acknowledges that he has been designated as a “manager” of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. THIS
MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED
BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
D-1
IN
WITNESS WHEREOF, the undersigned have executed this Management Agreement as
of
the day and year first above written.
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
D-2
SCHEDULE
E
|
Officers
|
Title
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
President
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Senior
Vice President and Chief Financial Officer
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Senior
Vice President and General Counsel
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Vice
President and Controller
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
Corporate
Secretary
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Treasurer
|
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Assistant
Controller
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Assistant
Controller
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
Assistant
Treasurer
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Assistant
Corporate Secretary
|
E-1