EXHIBIT 3.137
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
____________________________________,
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
______________________ (this "Agreement"), dated as of December 24, 2003 is
adopted by, and executed and agreed to, for good and valuable consideration, by
the sole Member.
WHEREAS, the sole Member is party to the Limited Liability Company
Agreement dated as of July 16, 2001, as amended from time to time (the "Original
LLC Agreement"); and
WHEREAS, the sole Member and the Independent Member (as such term is
defined in the Original LLC Agreement) have agreed to the amendment and
restatement of the Original LLC Agreement in accordance with the terms of the
Original LLC Agreement pursuant to the unanimous written consent of the sole
Member and the Independent Member dated as of December 16, 2003.
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following terms have
the following meanings:
"Act" means the Delaware Limited Liability Company Act and any
successor statute, as amended from time to time.
"Agreement" has the meaning given that term in the introductory
paragraph.
"Capital Contribution" means the aggregate contribution by a Member to
the capital of the Company.
"Certificate" has the meaning given that term in Section 2.1.
"Company" means ______________________, a Delaware limited liability
company.
"Dispose," "Disposed," "Disposing" or "Disposition" means a sale,
assignment, transfer, exchange, mortgage, pledge, grant of a security interest
or other disposition or encumbrance (including, without limitation, by operation
of law) or the acts thereof.
"Incapacity" or "Incapacitated" means (a) with respect to a natural
person, the bankruptcy, death, incompetency or insanity of such person and (b)
with respect to any other Person, the bankruptcy, liquidation, dissolution or
termination of such Person.
"Majority Members" means Members holding a majority of the Units owned
by all Members or if there is only one Member, such Member.
"Member" means any Person executing this Agreement as of the date of
this Agreement as a member or hereafter admitted to the Company as a member as
provided in this Agreement, but does not include any Person who has ceased to be
a member of the Company.
"Original LLC Agreement" has the meaning given such term in the
recitals.
"Person" means a natural person, partnership (whether general or
limited), limited liability company, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own or any
representative capacity.
"Proceeding" has the meaning given such term in Section 5.1.
"Units" means the units of each Member representing such Member's
interest in the income, gains, losses, deductions and expenses of the Company as
set forth on Schedule A hereto, as amended from time to time in accordance with
the terms of this Agreement.
1.2. Construction. Whenever the context requires, the gender of all
words used in this Agreement includes the masculine, feminine and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement, and all references to Schedules are to Schedules attached hereto,
each of which is made a part hereof for all purposes.
ARTICLE II
ORGANIZATION
2.1. Formation. The Company has been organized as a Delaware limited
liability company by the filing of a Amended and Restated Certificate of
Formation (the "Certificate") under and pursuant to the Act.
2.2. Name. The name of the Company is "______________________," and all
Company business shall be conducted in that name or such other names that comply
with applicable law as the Majority Members may select from time to time.
2.3. Registered Office; Registered Agent; Principal Office; Other
Offices. The registered office of the Company required by the Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the Company) as the Majority Members may designate
from time to time in the manner provided by law. The registered agent of the
Company in the State of Delaware shall be the initial registered agent named in
the Certificate or such other Person or Persons as the Majority Members may
designate from time to time in the manner provided by law. The principal office
of the Company shall be at such place as the Majority Members may designate from
time to time, which need not be in the State of Delaware.
2.4. Purposes. The purposes of the Company are to engage in any
business or activity that is not prohibited by the Act or the laws of the
jurisdictions in which the Company engages in such business or activity.
2.5. Foreign Qualification. Prior to the Company's conducting business
in any jurisdiction other than Delaware, the Majority Members shall cause the
Company to comply, to
-2-
the extent procedures are available and those matters are reasonably within the
control of the Majority Members, with all requirements necessary to qualify the
Company as a foreign limited liability company in that jurisdiction.
2.6. Term. The term of the Company commenced on the date the original
certificate of formation was filed with the office of the Secretary of State of
Delaware and shall continue in existence until termination and dissolution
thereof as determined under Section 8.1 of this Agreement.
2.7. No State-Law Partnership. The Members intend that the Company not
be a partnership (including, without limitation, a limited partnership) or joint
venture, and that no Member be a partner or joint venturer of any other Member,
for any purposes other than federal and, if applicable, state tax purposes, and
this Agreement shall not be construed to suggest otherwise. The Members intend
that the Company shall be treated as a partnership for federal and, if
applicable, state income tax purposes, and each Member and the Company shall
file all tax returns and shall otherwise take all tax and financial reporting
positions in a manner consistent with such treatment.
2.8. Unit Certificates; Applicability of Article 8 of UCC. The number
of authorized Units shall initially be one thousand (1,000). Units may be
represented by one or more certificates in such form as the Majority Members may
from time to time approve, shall be recorded in a register thereof maintained by
the Company, and shall be subject to such rules for the issuance thereof as the
Majority Members may from time to time determine. Units shall be subject to the
provisions of Article 8 of the Uniform Commercial Code as may be applicable from
time to time.
ARTICLE III
MEMBERS, UNITS AND DISTRIBUTIONS
3.1. Members.
(a) The names, residence, business or mailing addresses and
the Units of the Members are set forth in Schedule A, as amended from time to
time in accordance with the terms of this Agreement.
(b) No Member, as such, shall be required to lend any funds to
the Company or to make any additional contribution of capital to the Company,
except as otherwise required by applicable law or by this Agreement. Any Member
may, with the approval of the Majority Members, make loans to the Company, and
any loan by a Member to the Company shall not be considered to be a Capital
Contribution.
(c) Each Member shall execute a counterpart of this Agreement,
and when a Person is admitted as a Member, such Person shall execute a
counterpart of this Agreement and such Person shall be listed as a Member on
Schedule A with such Member's address and Units.
3.2. Liability of Members. Except as otherwise required by applicable
law and as explicitly set forth in this Agreement, no Member shall have any
personal liability whatsoever in its capacity as a Member, whether to the
Company, to any of the Members, to the creditors of the Company or to any other
third party, for the debts, liabilities, commitments or any other
-3-
obligations of the Company or for any losses of the Company, and therefore, a
Member shall be liable only to make Capital Contributions to the Company and the
other payments as provided herein. To the extent that, at law or in equity, a
Member or other Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or another Person, such Member or other Person
acting in accordance with this Agreement shall not be liable to the Company or
any other Member for its good faith reliance on the provisions of this
Agreement.
3.3. Member Units. Each Member's interest in the Company, including
such Member's interest in income, gains, losses, deductions and expenses of the
Company and the right to vote on certain matters as provided in this Agreement,
shall be represented by the Units owned by such Member.
3.4. Issuance of Additional Units and Interests. The Majority Members
shall have the right to cause the Company to create and issue or sell: (i)
additional Units or other interests in the Company (including other classes or
series thereof having different rights), (ii) obligations, evidences of
indebtedness or other securities or interests convertible or exchangeable into
Units or other interests in the Company and (iii) warrants, options or other
rights to purchase or otherwise acquire Units or other interests in the Company.
Upon the acquisition of any Units or other interests in the Company by a Person
who is not a Member, such Person shall execute and deliver a counterpart of this
Agreement and shall become a Member hereunder, and Schedule A hereto shall be
amended to reflect such issuance and new Member.
3.5. Distributions. Subject to the provision of Section 18-607 of the
Act, the Majority Members shall have sole discretion regarding the amounts and
timing of distributions to Members, in each case subject to the retention of, or
payment to third parties of, such funds as it deems necessary with respect to
the reasonable business needs of the Company which shall include (but not by way
of limitation) the payment or the making of provision for the payment when due
of Company obligations, including the payment of any management or
administrative fees and expenses or any other obligations.
ARTICLE IV
MANAGEMENT
4.1. Management by the Members. The powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of, the Majority Members, and the
Majority Members shall make all decisions and take all actions for the Company.
4.2. Actions by Members; Delegation of Authority and Duties.
(a) In managing the business and affairs of the Company and
exercising its powers, the Majority Members shall act through (i) meetings and
written consents pursuant to Sections 4.3 and 4.4, and (ii) any Person to whom
authority and duties have been delegated pursuant to Section 4.2(b).
(b) The Majority Members may, from time to time, delegate to
one or more Persons such authority and duties as the Majority Members may deem
advisable. In addition, the Majority Members may assign titles (including,
without limitation, chairman, chief executive
-4-
officer, president, vice president, secretary, assistant secretary, treasurer
and assistant treasurer) to any such Persons and delegate to such other
individuals certain authority and duties. Any number of titles may be held by
the same individual. Any delegation pursuant to this Section 4.2(b) may be
revoked at any time by the Majority Members.
4.3. Meetings.
(a) The Majority Members shall constitute a quorum for the
transaction of business of the Company, and except as otherwise provided in this
Agreement, the act of the Majority Members present at a meeting of the Members
at which a quorum is present shall be the act of the Members.
(b) Meetings of the Members may be held at such place or
places as shall be determined from time to time by resolution of the Majority
Members. At all meetings of the Members, business shall be transacted in such
order as shall from time to time be determined by resolution of the Majority
Members. Regular meetings of the Members shall be held at such times and places
as shall be designated from time to time by resolution of the Majority Members.
Notice of such meetings shall not be required. Special meetings of the Members
may be called by the Majority Members, and notice of such meeting need not state
the purpose or purposes of, nor the business to be transacted at, such meeting,
except as may otherwise be required by law.
4.4. Action by Written Consent or Telephone Conference. Any action
permitted or required by the Act, the Certificate or this Agreement to be taken
at a meeting of the Members may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by the Majority
Members. Such consent shall have the same force and effect as a unanimous vote
at a meeting and may be stated as such in any document or instrument filed with
the Secretary of State of Delaware, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Members. Subject
to the requirements of the Act, the Certificate or this Agreement for notice of
meetings, unless otherwise restricted by the Certificate, the Members may
participate in and hold a meeting by means of a telephone conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
attendance and presence in person at such meeting.
4.5. Conflicts of Interest. Each Member and officer of the Company at
any time and from time to time may engage in and own interests in other business
ventures of any and every type and description, independently or with others
(including ones in competition with the Company) with no obligation to offer to
the Company or any other Member or officer the right to participate therein. The
Company may transact business with any Member, officer or affiliate thereof;
provided that the terms of those transactions are no less favorable than those
the Company could obtain from unrelated third parties.
4.6. Officers.
(a) The Majority Members may, from time to time, designate one
or more persons to be officers of the Company. No officer need be a resident of
the State of Delaware, or a Member. Any officers so designated shall have such
authority and perform such duties as the
-5-
Majority Members may, from time to time, delegate to them. The Majority Members
may assign titles to particular officers. Unless the Majority Members otherwise
decides, if the title is one commonly used for officers of a corporation, the
assignment of such title shall constitute the delegation to such officer of the
authority and duties that are normally associated with that office of a
corporation. Each officer shall hold office until his successor shall be duly
designated and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same individual. The salaries or other compensation,
if any, of the officers and agents of the Company shall be fixed from time to
time by the Majority Members.
(b) Any officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Majority
Members. Any officer may be removed as such, either with or without cause, by
the Majority Members. Designation of an officer shall not of itself create
contract rights. Any vacancy occurring in any office of the Company may be
filled by the Majority Members.
ARTICLE V
INDEMNIFICATION
5.1. Right to Indemnification. Subject to the limitations and
conditions as provided in this ARTICLE V, each Person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (hereinafter a
"Proceeding"), by reason of the fact that he or she is or was a Member or
officer of the Company or while a Member or officer of the Company is or was
serving at the request of the Company as a director, officer, employee, partner,
member, manager, trustee, fiduciary or agent of another foreign or domestic
limited liability company, corporation, partnership, joint venture or other
entity or enterprise, may be indemnified and held harmless by the Company to the
fullest extent permitted by the Act, as the same exists or may hereafter be
amended, against all expense, liability and loss (including attorney's fees,
judgments, fines, excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Person in connection with such
Proceeding; provided that such Person acted in good faith and in a manner such
Person reasonably believed to be in, or not opposed to, the best interests of
the Company, and indemnification under this ARTICLE V shall continue as to a
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity hereunder. If the Company elects to provide indemnification
hereunder, such rights granted pursuant to this ARTICLE V shall be a contract
right, and no amendment, modification or repeal of this ARTICLE V shall
adversely affect such rights of any Member or officer in respect of any act,
omission or condition existing or event or circumstance occurring prior to the
time of such amendment, repeal or modification. It is expressly acknowledged
that the indemnification provided in this ARTICLE V could involve
indemnification for negligence or under theories of strict liability.
5.2. Advance Payment. The right to indemnification conferred in this
ARTICLE V may include the right to be paid or reimbursed by the Company the
reasonable expenses incurred by a Person of the type entitled to be indemnified
under Section 5.1 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding in advance of the final disposition of the
-6-
Proceeding and without any determination as to the Person's ultimate entitlement
to indemnification; provided, however, that the payment of such expenses
incurred by any such Person in advance of the final disposition of a Proceeding
shall be made only upon delivery to the Company of a written affirmation by such
Person of a good faith belief that such Person has met the standard of conduct
necessary for indemnification under this ARTICLE V and a written undertaking, by
or on behalf of such Person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified Person is not entitled to be
indemnified under this ARTICLE V or otherwise.
5.3. Indemnification of Employees and Agents. The Company may indemnify
and advance expenses to an employee or agent of the Company to the same extent
and subject to the same conditions under which it may indemnify and advance
expenses to Persons who are not or were not Members or officers of the Company
but who are or were serving at the request of the Company as a manager,
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic limited liability company,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against him and
incurred by him in such a capacity or arising out of his status as such a Person
to the same extent that it may indemnify and advance expenses to Members and
officers under this ARTICLE V.
5.4. Appearance as a Witness. Notwithstanding any other provision of
this ARTICLE V, the Company may pay or reimburse expenses incurred by a Members
or officer in connection with his appearance as a witness or other participation
in a Proceeding at a time when such Person is not a named defendant or
respondent in the Proceeding.
5.5. Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this ARTICLE V shall not be
exclusive of any other right which a Member, officer or other Person indemnified
pursuant to Section 5.3 may have or hereafter acquire under any law (common or
statutory), provision of the Certificate or this Agreement, vote of Members or
otherwise.
5.6. Insurance. The Company may purchase and maintain insurance, at its
expense, to protect itself and any Person who is or was serving as a Member,
officer or agent of the Company or is or was serving at the request of the
Company as a manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic limited
ability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any expense, liability
or loss, whether or not the Company would have the power to indemnify such
Person against such expense, liability or loss under this ARTICLE V.
5.7. Savings Clause. If this ARTICLE V or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Member or any other
Person indemnified pursuant to this ARTICLE V as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative to the full extent permitted by any applicable
portion of this
-7-
ARTICLE V that shall not have been invalidated and to the fullest extent
permitted by applicable law.
5.8. Waiver of Fiduciary Duties. The provisions of this Agreement to
the extent that they expand or restrict the duties (including fiduciary duties)
and liabilities of any Member or other Person bound hereby otherwise existing at
law or in equity are agreed by the Members and such other Persons to expand or
restrict such duties and liabilities of such Member or other Person. Whenever in
this Agreement a Member is permitted to make a decision in its "sole discretion"
or in its "discretion," a Member shall be entitled to consider only such
interests and factors as it desires, including its own interests, and shall to
the fullest extent permitted by applicable law, have no duty or obligation to
give any consideration to any interest of or factors affecting the Company or
any other Member. Any such decision shall be final and binding.
ARTICLE VI
TAXES AND BOOKS
6.1. Tax Returns. The Majority Members shall cause to be prepared and
filed all necessary federal and state income tax returns for the Company,
including making any elections the Majority Members may deem appropriate and in
the best interests of the Members.
6.2. Books. The Company shall keep books and records of accounts and
shall keep minutes of the proceedings of its Members. The calendar year shall be
the accounting year of the Company.
ARTICLE VII
TRANSFERS
7.1. Assignment by Members. No Member shall sell, assign or transfer,
or offer to sell, assign or transfer or otherwise Dispose of all or any part of
such Member's Units or other interests in the Company (whether voluntarily or
involuntarily) without the prior written consent of the Majority Members.
7.2. Void Assignment. Any sale, exchange or other transfer by any
Member of any Units or other interests in the Company in contravention of this
Agreement shall be void and ineffectual and shall not bind or be recognized by
the Company or any other party.
7.3. Substituted Member.
(a) An assignee of any Units or other interests in the Company
of a Member, or any portion thereof, shall become a substituted Member entitled
to all the rights of a Member if and only if the assignor gives the assignee
such right.
(b) Upon the admission of a substituted Member, Schedule A
attached hereto shall be amended to reflect the name, address and Units and
other interests in the Company of such substituted Member and to eliminate the
name and address of and other information relating to the assigning Member with
regard to the assigned Units and other interests in the Company.
-8-
7.4. Effect of Assignment.
(a) Any Member who shall assign any Units or other interest in
the Company shall cease to be a Member of the Company with respect to such Units
or other interest and shall no longer have any rights or privileges of a Member
with respect to such Units or other interest.
(b) Any Person who acquires in any manner whatsoever any Units
or other interest in the Company, irrespective of whether such Person has
accepted and adopted in writing the terms and provisions of this Agreement,
shall be deemed by the acceptance of the benefits of the acquisition thereof to
have agreed to be subject to and bound by all the terms and conditions of this
Agreement that any predecessor in such Units or other interest in the Company of
such Person was subject to or by which such predecessor was bound.
7.5. Effect of Incapacity. Except as otherwise provided herein, the
Incapacity of a Member shall not dissolve or terminate the Company. In the event
of such Incapacity, the executor, administrator, guardian, trustee or other
personal representative of the Incapacitated Member shall be deemed to be the
assignee of such Member's Units or other interests in the Company and may,
subject to Section 7.1, become a substituted Member upon the terms and
conditions set forth in Section 7.3.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION
8.1. Dissolution. The Company shall be dissolved and its affairs shall
be wound up on the first to occur of the following:
(a) the written consent of the Majority Members; and
(b) the entry of a decree of judicial dissolution of the
Company under Section 18-802 of the Act.
8.2. Liquidation and Termination. On dissolution of the Company, the
Majority Members may appoint one or more Members as liquidator. The liquidators
shall proceed diligently to wind up the affairs of the Company and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a Company expense. Until final distribution, the liquidators shall
continue to operate the Company properties with all of the power and authority
of the Members. The steps to be accomplished by the liquidators are as follows:
(a) the liquidator shall pay, satisfy or discharge from
Company funds all of the debts, liabilities and obligations of the
Company (including, without limitation, all expenses incurred in
liquidation) or otherwise make adequate provision for payment and
discharge thereof; and
(b) all remaining assets of the Company shall be distributed
to the Members in accordance with Section 3.5 by the end of the taxable
year of the Company during which the liquidation of the Company occurs
(or, if later, 90 days after the date of the liquidation).
-9-
All distributions in kind to the Members shall be made subject to the liability
of each distributee for costs, expenses and liabilities theretofore incurred or
for which the Company has committed prior to the date of termination, and those
costs, expenses and liabilities shall be allocated to the distributees pursuant
to this Section 8.2. The distribution of cash and/or property to a Member in
accordance with the provisions of this Section 8.2 constitutes a complete return
to the Member of its Capital Contributions and a complete distribution to the
Member of its interest in the Company and all of the Company's property and
constitutes a compromise to which all Members have consented within the meaning
of the Act. To the extent that a Member returns funds to the Company, it has no
claim against any other Member for those funds.
8.3. Cancellation of Certificate. On completion of the distribution of
Company assets as provided herein, the Company shall be terminated, and the
Majority Members (or such other Person or Persons as the Act may require or
permit) shall file a certificate of cancellation with the Secretary of State of
Delaware, cancel any other filings made pursuant to Section 2.5 and take such
other actions as may be necessary to terminate the Company.
ARTICLE IX
GENERAL PROVISIONS
9.1. Notices. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents provided for or permitted to be
given under this Agreement must be in writing and must be given either by
depositing that writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering that writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement is
effective on receipt by the Person to receive it. All notices, requests, and
consents to be sent to a Member must be sent to or made at the address given for
that Member on Schedule A, or such other address as that Member may specify by
notice to the other Members. Whenever any notice is required to be given by law,
the Certificate or this Agreement, a written waiver thereof, signed by the
Person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
9.2. Entire Agreement. This Agreement constitutes the entire agreement
of the Members and their affiliates relating to the Company and supersedes all
prior contracts or agreements among the Members with respect to the Company,
whether oral or written.
9.3. Effect of Waiver or Consent. A waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by that
Person of its obligations with respect to the Company is not a consent or waiver
to or of any other breach or default in the performance by that Person of the
same or any other obligations of that Person with respect to the Company.
Failure on the part of a Person to complain of any act of any Person or to
declare any Person in default with respect to the Company, irrespective of how
long that failure continues, does not constitute a waiver by that Person of its
rights with respect to that default until the applicable statute-of-limitations
period has run.
9.4. Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument executed and agreed to
by the Majority Members.
-10-
9.5. Binding Effect. Subject to the restrictions on Dispositions set
forth in this Agreement, this Agreement is binding on and inure to the benefit
of the Members and their respective heirs, legal representatives, successors and
permitted assigns.
9.6. Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the
event of a direct conflict between the provisions of this Agreement and any
provision of the Certificate or any mandatory provision of the Act, the
applicable provision of the Certificate or the Act shall control. If any
provision of this Agreement or the application thereof to any Person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other Persons or
circumstances is not affected thereby and that provision shall be enforced to
the greatest extent permitted by law.
9.7. Counterparts. This Agreement may be executed in multiple
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
* * * * * *
-11-
IN WITNESS WHEREOF, the sole Member has executed this Agreement as of
the date first set forth above.
SOLE MEMBER:
NRG ENERGY, INC.
By:
---------------------------------------------
Name: Scott J. Davido
Title: Senior Vice President, General Counsel
and Secretary
SCHEDULE A
<Table>
<Caption>
MEMBERS UNITS
- --------------------------------------- ---------------------------------------
1,000
---------------------------------------
TOTAL 1,000
</Table>
A-1