EXHIBIT 3.64
AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT OF
NRG EASTERN LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDMENT (the "Amendment") to the Limited Liability Company
Agreement of NRG Eastern LLC, a Delaware limited liability company (the
"Company"), dated as of November 15, 2002 (the "Effective Date"), is adopted,
executed and agreed to by the undersigned, NRG Energy, Inc., a Delaware
corporation and the sole member of the Company (the "Member"), and Michael G.
Morgan, the Independent Member of the Company (the "Independent Member").
WHEREAS, the Member has entered into a Limited Liability Company
Agreement dated as of April 29, 1999 in respect of the Company, which provides
that the unanimous consent of the Members and at least one Independent Member
shall be required to take certain actions; and
WHEREAS, the Member and the Independent Member deem it to be advisable
and in the best interests of the Company to amend the provision in the Limited
Liability Company Agreement requiring the unanimous consent of the Members and
the Independent Member and certain other provisions referencing such Independent
Member.
NOW THEREFORE, in consideration of the foregoing, the Member and the
Independent Member hereby amend the Limited Liability Company Agreement as
follows:
(1) Section 3.08 is hereby amended and restated in its
entirety to read as follows:
" WITHDRAWAL. A Member may not withdraw or resign from the
Company; provided, however, that the Independent Member may
resign at any time, and such resignation shall become
effective upon acceptance by the Company."
(2) Section 6.05 is hereby deleted in its entirety and is
replaced by the words "Intentionally Omitted."
Except as expressly amended hereby, all of the terms and provisions of
the Limited Liability Company Agreement are and shall remain in full force and
effect.
IN WITNESS WHEREOF, the Member and the Independent Member hereto have
caused this Amendment to be duly executed as of the date first above written.
NRG ENERGY, INC.
By: /s/ Richard C. Kelly
--------------------------------
Name: Richard C. Kelly
Its: President and Chief Operating Officer
By: /s/ Michael G. Morgan
--------------------------------
Name: Michael G. Morgan
Independent Member
LIMITED LIABILITY COMPANY AGREEMENT
OF
NRG EASTERN LLC
A Delaware Limited Liability Company
THIS LIMITED LIABILITY COMPANY AGREEMENT OF NRG EASTERN LLC (this
"Agreement"), dated as of April 29, 1999 (the "Effective Date"), is adopted,
executed and agreed to, for good and valuable consideration, by the Members (as
defined below).
RECITALS
1. NRG Energy, Inc., a Delaware corporation ("NRG"), desires to
form the Company (as defined below) for the purpose of acquiring an ownership
interest NRG Northeast Generating LLC, a Delaware limited liability company ("NE
Genco").
2. NRG now desires to enter into this Agreement with respect to
various matters relating to the Company.
ARTICLE 1
DEFINITIONS
1.01 DEFINITIONS. As used in this Agreement, the following terms
have the respective meanings set forth below or set forth in the Sections
referred to below:
ACT - the Delaware Limited Liability Company ACT.
AFFECTED MEMBER - Section 9.01.
AFFILIATE - with respect to any Person, (a) each entity that
such Person Controls; (b) each Person that Controls such Person,
including, in the case of a Member, such Member's Parent; and (c) each
entity that is under common Control with such Person, including, in the
case of a Member, each entity that is Controlled by such Member's
Parent.
AGREEMENT - introductory paragraph.
ALTERNATE REPRESENTATIVE - Section 6.02(a)(i).
ASSIGNEE - any Person that acquires a Membership Interest or
any portion thereof through a Disposition; provided, however, that, an
Assignee shall have no right to be admitted to the Company as a Member
except in accordance with Section 3.03(b)(iii).
BANKRUPTCY OR BANKRUPT - with respect to any Person, that (a)
such Person (i) makes a general assignment for the benefit of
creditors; (ii) files a voluntary bankruptcy petition; (iii) becomes
the subject of an order for relief or is declared insolvent in any
federal or state bankruptcy or insolvency proceedings; (iv) files a
petition or answer seeking for such Person a reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any Law; (v) files an answer or other pleading
admitting or failing to contest the material allegations of a petition
filed against such Person in a proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents
to, or acquiesces in the appointment of a trustee, receiver, or
liquidator of such Person or of all or any substantial part of such
Person's properties; or (b) against such Person, a proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any Law has been commenced and 60
Days have expired without dismissal thereof or with respect to which,
without such Person's consent or acquiescence, a trustee, receiver, or
liquidator of such Person or of all or any substantial part of such
Person's properties has been appointed and 60 Days have expired without
the
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appointment's having been vacated or stayed, or 60 Days have expired
after the date of expiration of a stay, if the appointment has not
previously been vacated.
BUSINESS DAY - any day other than a Saturday, a Sunday, or a
holiday on which national banking associations in Minnesota,
Massachusetts or New York are not open for business.
BUYOUT EVENT - Section 9.01.
CAPITAL ACCOUNT - the account to be maintained by the Company
for each Member in accordance with Section 4.06.
CAPITAL CONTRIBUTION - with respect to any Member, the amount
of money and the net agreed value of any property (other than money)
contributed to the Company by the Member. Any reference in this
Agreement to the Capital Contribution of a Member shall include a
Capital Contribution of its predecessors in interest.
CERTIFIED PUBLIC ACCOUNTANTS - a firm of independent public
accountants selected from time to time by the Management Committee.
CHANGE OF MEMBER CONTROL - with respect to any Member, an
event (such as a Disposition of voting securities) that causes such
Member to cease to be Controlled by such Member's Parent; provided,
however, that an event that causes any of such Member's Parents to be
Controlled by another Person shall not constitute a Change of Member
Control.
CLAIM - any and all judgments, claims, causes of action,
demands, lawsuits, suits, proceedings, Governmental investigations or
audits, losses, assessments, fines, penalties, administrative orders,
obligations, costs, expenses, liabilities and damages (whether actual,
consequential or punitive), including interest, penalties, reasonable
attorney's fees, disbursements and costs of investigations,
deficiencies, levies, duties and imposts.
CODE - the Internal Revenue Code of 1986, as amended.
COMPANY - NRG Eastern LLC, a Delaware limited liability
company.
CONFIDENTIAL INFORMATION - information and data (including all
copies thereof) that is furnished or submitted by any of the Members or
their Affiliates, whether oral (and if oral, reduced to writing and
marked "confidential" within 10 days of disclosure), written, or
electronic, on a confidential basis to the other Members or their
Affiliates in connection with the Company, and any and all of the
activities and studies performed pursuant to this Agreement or any
Asset Purchase Agreement or Loan Document, and the resulting
information and data obtained from those studies. Notwithstanding the
foregoing, the term "Confidential Information" shall not include any
information that:
(a) is in the public domain at the time of its
disclosure or thereafter (other than as a result of a
disclosure directly or indirectly by a Member or its
Affiliates in contravention of this Agreement or any Project
Agreement);
(b) as to any Member, was in the possession of
such Member or its Affiliates prior to the execution of this
Agreement; or
(c) is engineering information (for example,
heat balance and capital cost information) that has been
independently acquired or developed by a Member or its
Affiliates without violating any of the obligations of such
Member or its Affiliates under this Agreement.
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CONTROL - the possession, directly or indirectly of either of
the following:
(a) (i) in the case of a corporation, more than
50% of the outstanding voting securities thereof; (ii) in the
case of a limited liability company, partnership, limited
partnership or venture, the right to more than 50% of the
distributions therefrom (including liquidating distributions);
(iii) in the case of a trust or estate, including a business
trust, more than 50% of the beneficial interest therein; and
(iv) in the case of any other entity, more than 50% of the
economic or beneficial interest therein; or
(b) in the case of any entity, the power or
authority, through ownership of voting securities, by contract
or otherwise, to exercise a controlling influence over the
management of the entity.
DAY - a calendar day; provided, however, that if any period of
Days referred to in this Agreement shall end on a Day that is not a
Business Day, then the expiration of such period shall be automatically
extended until the end of the first succeeding Business Day.
DEFAULT - the failure of a Member to comply in any material
respect with any of its material agreements, covenants or obligations
under this Agreement; the failure of any representation or warranty
made by a Member in this Agreement to have been true and correct in all
material respects at the time it was made.
DEFAULT RATE - a rate per annum equal to the lesser of (a) a
varying rate per annum equal to the sum of (i) the prime rate as
published in The Wall Street Journal, with adjustments in that varying
rate to be made on the same date as any change in that rate is so
published, plus (ii) 3% per annum, and (b) the maximum rate permitted
by Law.
DELAWARE CERTIFICATE - Section 2.01.
DISPOSE, DISPOSING OR DISPOSITION - with respect to any asset
(including a Membership Interest or any portion thereof), a sale,
assignment, transfer, conveyance, gift, exchange or other disposition
(other than the pledge or assignment to any creditor of the Company, or
any collateral agent for such creditor, of any Membership Interest as
security for the indebtedness to such creditor) of such asset, whether
such disposition be voluntary, involuntary or by operation of Law,
including the following: (a) in the case of an asset owned by a natural
person, a transfer of such asset upon the death of its owner, whether
by will, intestate succession or otherwise; (b) in the case of an asset
owned by an entity, (i) a merger or consolidation of such entity (other
than where such entity is the survivor thereof), (ii) a conversion of
such entity into another type of entity, or (iii) a distribution of
such asset, including in connection with the dissolution, liquidation,
winding-up or termination of such entity (unless, in the case of
dissolution, such entity's business is continued without the
commencement of liquidation or winding-up); and (c) a disposition in
connection with, or in lieu of, a foreclosure of an Encumbrance; but
such terms shall not include the creation of an Encumbrance.
DISPUTE - Section 10.01.
DISPUTE NOTICE - Section 10.02.
DISPUTING MEMBER - Section 10.01.
DISSOLUTION EVENT - Section 11.01 (a).
EFFECTIVE DATE - introductory paragraph.
ENCUMBER, ENCUMBERING, OR ENCUMBRANCE - the creation of a
security interest, lien, pledge, mortgage or other encumbrance, whether
such encumbrance be voluntary, involuntary or by operation of Law;
provided, however, that the pledge or assignment to any creditor of the
Company, or any collateral
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agent for such creditor, of any Membership Interest as security for the
indebtedness to such creditor shall not be deemed to be an Encumbrance
thereof.
FAIR MARKET VALUE - Section 9.03.
GOVERNMENTAL AUTHORITY (OR GOVERNMENTAL) - a federal, state,
local or foreign governmental authority; a state, province,
commonwealth, territory or district thereof; a county or parish; a
city, town, township, village or other municipality; a district, ward
or other subdivision of any of the foregoing; any executive,
legislative or other governing body of any of the foregoing; any
agency, authority, board, department, system, service, office,
commission, committee, council or other administrative body of any of
the foregoing; any court or other judicial body; and any officer,
official or other representative of any of the foregoing.
INDEPENDENT MEMBER - means a natural person who is not an
officer, director, agent, employee or representative of the Company,
NRG, NE Genco or any Affiliate of any of the foregoing.
INCLUDING - including, without limitation.
LAW - any applicable constitutional provision, statute, act,
code (including the Code), law, regulation, rule, ordinance, order,
decree, ruling, proclamation, resolution, judgment, decision,
declaration, or interpretative or advisory opinion or letter of a
Governmental Authority having valid jurisdiction.
LENDING MEMBER - Section 4.03(a)(ii).
LOAN DOCUMENTS- any and all documents relating to money
borrowed by the Company or NE Genco, including money borrowed through
public or private sales of the Company's or NE Genco's debt securities,
as the same may be amended or restated from time to time.
MANAGEMENT COMMITTEE - Section 6.02.
MEMBER - 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 such term does not include
any Person who has ceased to be a member in the Company.
MEMBERSHIP INTEREST - with respect to any Member, (a) that
Member's status as a Member; (b) that Member's share of the income,
gain, loss, deduction and credits of, and the right to receive
distributions from, the Company; (c) all other rights, benefits and
privileges enjoyed by that Member (under the Act, this Agreement, or
otherwise) in its capacity as a Member, including that Member's rights
to vote, consent and approve and otherwise to participate in the
management of the Company, including through the Management Committee;
and (d) all obligations, duties and liabilities imposed on that Member
(under the Act, this Agreement or otherwise) in its capacity as a
Member, including any obligations to make Capital Contributions.
NE GENCO - RECITAL 1.
NON-CONTRIBUTING MEMBER - Section 4.03(a). NRG - NRG Energy,
Inc., a Delaware corporation.
OFFICER - any Person designated as an officer of the Company
as provided in Section 6.02(j), but such term does not include any
Person who has ceased to be an officer of the Company.
OUTSIDE ACTIVITIES - Section 6.04.
PARENT - if applicable to a Member, the company or companies
set forth opposite the name of such Member on Exhibit A.
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PERSON - the meaning assigned that term in Section 18-101(11)
of the Act and also includes a Governmental Authority and any other
entity.
REPRESENTATIVE - Section 6.02(a)(i).
SECURITIES ACT - the Securities Act of 1933.
SHARING RATIO - subject in each case to adjustments in
accordance with this Agreement or in connection with Dispositions of
Membership Interests, (a) in the case of a Member executing this
Agreement as of the date of this Agreement or a Person acquiring such
Member's Membership Interest, the percentage specified for that Member
as its Sharing Ratio on Exhibit A, and (b) in the case of Membership
Interest issued pursuant to Section 3.04, the Sharing Ratio established
pursuant thereto; provided, however, that the total of all Sharing
Ratios shall always equal 100%.
SOLE DISCRETION - a Member's sole and absolute discretion,
with or without cause, and subject to whatever limitations or
qualifications the Member may impose.
TAX MATTERS MEMBER - Section 7.03(a).
TERM - Section 2.06.
TERMINATED MEMBER - Section 9.05.
TREASURY REGULATIONS - the regulations (including temporary
regulations) promulgated by the United States Department of the
Treasury pursuant to and in respect of provisions of the Code. All
references herein to sections of the Treasury Regulations shall include
any corresponding provision or provisions of succeeding, similar or
substitute, temporary or final Treasury Regulations.
UNIFORM COMMERCIAL CODE - means the Uniform Commercial Code as
in effect from time to time in the State of New York.
Other terms defined herein have the meanings so given them.
1.02 CONSTRUCTION. Unless the context requires otherwise: (a) the
gender (or lack of gender) of all words used in this Agreement includes the
masculine, feminine, and neuter; (b) references to Articles and Sections refer
to Articles and Sections of this Agreement; (c) references to Exhibits refer to
the Exhibits attached to this Agreement, each of which is made a part hereof for
all purposes; (d) references to Laws refer to such Laws as they may be amended
from time to time, and references to particular provisions of a Law include any
corresponding provisions of any succeeding Law; and (e) references to money
refer to legal currency of the United States of America.
ARTICLE 2
ORGANIZATION
2.01 FORMATION. The Company has been organized as a Delaware
limited liability company by the filing of a Certificate of Formation, dated as
of the Effective Date (the "Delaware Certificate "), with the Secretary of State
of Delaware pursuant to the Act.
2.02 NAME. The name of the Company is "NRG Eastern LLC" and all
Company business must be conducted in that name or such other names that comply
with Law as the Management Committee may select.
2.03 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE IN THE
UNITED STATES; 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 Delaware Certificate or such other office
(which need not be a place of business of the Company) as the Management
Committee may designate 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 Delaware
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Certificate or such other Person or Persons as the Management Committee may
designate in the manner provided by Law. The principal office of the Company in
the United States shall be at such place as the Management Committee may
designate, which need not be in the State of Delaware, and the Company shall
maintain records there or such other place as the Management Committee shall
designate and shall keep the street address of such principal office at the
registered office of the Company in the State of Delaware. The Company may have
such other offices as the Management Committee may designate.
2.04 PURPOSES. The purposes of the Company are (i) to acquire a 50%
member interest in NE Genco and a 0.5% member interest in each of Huntley Power
LLC, Dunkirk Power LLC, Astoria Gas Turbine Power LLC, Arthur Kill Power LLC,
Somerset Power LLC and Oswego Harbor Power LLC, Delaware limited liability
companies that are subsidiaries of Ne Genco, and (ii) to engage in any
activities directly relating thereto or to the businesses of any majority owned
subsidiaries of NE Genco, including obtaining financing for and contributing
required capital to NE Genco for the foregoing purposes.
2.05 FOREIGN QUALIFICATION. Prior to the Company's conducting
business in any jurisdiction other than Delaware, the Management Committee shall
cause the Company to comply, to the extent procedures are available and those
matters are reasonably within the control of the Management Committee, with all
requirements necessary to qualify the Company as a foreign limited liability
company in that jurisdiction. At the request of the Management Committee, each
Member shall execute, acknowledge, swear to, and deliver all certificates and
other instruments conforming with this Agreement that are necessary or
appropriate to qualify, continue, and terminate the Company as a foreign limited
liability company in all such jurisdictions in which the Company may conduct
business.
2.06 TERM. The period of existence of the Company (the "Term")
commenced on the Effective Date and shall end at such time as a certificate of
cancellation is filed with the Secretary of State of Delaware in accordance with
Section 11.04. Such period may be extended from time to time by Members holding
a majority of the Membership Interests.
2.07 NO STATE-LAW PARTNERSHIP. The Members intend that the Company
not be a partnership (including 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 state tax purposes, and this Agreement may not
be construed to suggest otherwise.
2.08 CERTIFICATES OF MEMBERSHIP INTEREST; APPLICABILITY OF ARTICLE
8 OF UCC. All Membership. Interests shall be represented by certificates in such
form as the Management Committee shall 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 Management Committee may from time
to time determine. Membership Interests shall be subject to the provisions of
Article 8 of the Uniform Commercial Code as may be applicable from time to time.
ARTICLE 3
MEMBERSHIP; DISPOSITIONS OF INTERESTS
3.01 INITIAL MEMBERS. The initial Member of the Company is NRG,
which is admitted to the Company as a Member effective contemporaneously with
the execution by it of this Agreement.
3.02 REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Member hereby
represents, warrants and covenants to the Company and each other Member that the
following statements are true and correct as of the Effective Date and shall be
true and correct at all times that such Member is a Member:
(a) that Member is duly incorporated, organized or formed
(as applicable), validly existing, and (if applicable) in good standing
under the Law of the jurisdiction of its incorporation, organization or
formation; to the extent required by applicable Law, that Member is
duly qualified and in good standing in the jurisdiction of its
principal place of business, if different from its jurisdiction of
incorporation, organization or formation; and that Member has full
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, and all necessary actions by the
board of directors, shareholders, managers, members, partners,
trustees, beneficiaries, or other applicable Persons necessary
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for the due authorization, execution, delivery, and performance of this
Agreement by that Member have been duly taken;
(b) that Member has duly executed and delivered this
Agreement and the other documents contemplated herein, and they
constitute the legal, valid and binding obligation of that Member
enforceable against it in accordance with their terms (except as may be
limited by bankruptcy, insolvency or similar Laws of general
application and by the effect of general principles of equity,
regardless of whether considered at law or in equity); and
(c) that Member's authorization, execution, delivery, and
performance of this Agreement does not and will not (i) conflict with,
or result in a breach, default or violation of, (A) the organizational
documents of such Member, (B) any contract or agreement to which that
Member is a party or is otherwise subject, or (C) any Law, order,
judgment, decree, writ, injunction or arbitral award to which that
Member is subject; or (ii) require any consent, approval or
authorization from, filing or registration with, or notice to, any
Governmental Authority or other Person, unless such requirement has
already been satisfied.
3.03 DISPOSITIONS AND ENCUMBRANCES OF MEMBERSHIP INTERESTS.
(a) GENERAL RESTRICTION. A Member may not Dispose of or
Encumber all or any portion of its Membership Interest except in strict
accordance with this Section 3.03. (References in this Section 3.03 to
Dispositions or Encumbrances of a "Membership Interest" shall also
refer to Dispositions or Encumbrances of a portion of a Membership
Interest.) Any attempted Disposition or Encumbrance of a Membership
Interest, other than in strict accordance with this Section 3.03, shall
be, and is hereby declared, null and void ab initio. The Members agree
that a breach of the provisions of this Section 3.03 may cause
irreparable injury to the Company and to the other Members for which
monetary damages (or other remedy at law) are inadequate in view of (i)
the complexities and uncertainties in measuring the actual damages that
would be sustained by reason of the failure of a Member to comply with
such provision and (ii) the uniqueness of the Company business and the
relationship among the Members. Accordingly, the Members agree that the
provisions of this Section 3.03 may be enforced by specific
performance.
(b) DISPOSITIONS OF MEMBERSHIP INTERESTS.
(i) GENERAL RESTRICTION. A Member may not
Dispose of all or any portion of its Membership Interest
except by complying with all of the following requirements:
(A) such Member must receive the
unanimous consent of the non- Disposing Members,
which consent shall not be unreasonably withheld by
each of such other Members; provided, however, that
such consent need not be obtained if (I) the proposed
Assignee is a Affiliate of the Disposing Member and
(II) such proposed Assignee demonstrates to the
reasonable satisfaction of the other Members that it
has the ability to meet the financial and contractual
commitments and other obligations of the Disposing
Member; and
(B) such Member must comply with the
requirements of Section 3.03(b)(iii) and, if the
Assignee is to be admitted as a Member, Section
3.03(b)(ii).
(ii) ADMISSION OF ASSIGNEE AS A MEMBER. An
Assignee has the right to be admitted to the Company as a
Member, with the Membership Interest (and attendant Sharing
Ratio) so transferred to such Assignee, only if (A) the
Disposing Member making the Disposition has granted the
Assignee either (I) the Disposing Member's entire Membership
Interest or (II) the express right to be so admitted; and (B)
such Disposition is effected in strict compliance with this
Section 3.03.
(iii) REQUIREMENTS APPLICABLE TO ALL DISPOSITIONS
AND ADMISSIONS. In addition to the requirements set forth in
Sections 3.03(b)(i) and 3.03(b)(ii), any Disposition of a
Membership
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Interest and any admission of an Assignee as a Member shall
also be subject to the following requirements, and such
Disposition (and admission, if applicable) shall not be
effective unless such requirements are complied with;
provided, however, that the Management Committee, in its sole
and absolute discretion, may waive any of the following
requirements:
(A) DISPOSITION DOCUMENTS. The
following documents must be delivered to the
Management Committee and must be satisfactory, in
form and substance, to the Management Committee:
(I) DISPOSITION INSTRUMENT. A copy of
the instrument pursuant to which the
Disposition is effected.
(II) RATIFICATION OF THIS AGREEMENT. An
instrument, executed by the Disposing Member
and its Assignee, containing the following
information and agreements, to the extent
they are not contained in the instrument
described in Section 3.03(b)(iii)(A)(I): (1)
the notice address of the Assignee; (2) if
applicable, the Parent of the Assignee; (3)
the Sharing Ratios after the Disposition of
the Disposing Member and its Assignee (which
together must total the Sharing Ratio of the
Disposing Member before the Disposition);
(4) the Assignee's ratification of this
Agreement and agreement to be bound by it,
and its confirmation that the
representations and warranties in Section
3.02 are true and correct with respect to
it; (5) the Assignee's ratification of all
of the Project Agreements and agreement by
be bound by them, to the same extent that
the Disposing Member was bound by them prior
to the Disposition; and (6) representations
and warranties by the Disposing Member and
its Assignee (aa) that the Disposition and
admission is being made in accordance with
all applicable Laws, and (bb) that the
matters set forth in Sections
3.03(b)(iii)(A)(III) and (IV) are true and
correct.
(III) SECURITIES LAW OPINION. Unless the
Membership Interest subject to the
Disposition is registered under the
Securities Act and any applicable state
securities Law, or the proposed Assignee is
a Affiliate as described in 3.03(b)(i)(A)
above, a favorable opinion of the Company's
legal counsel, or of other legal counsel
acceptable to the Management Committee, to
the effect that the Disposition and
admission is being made pursuant to a valid
exemption from registration under those Laws
and in accordance with those Laws.
(IV) TAX OPINION. A favorable opinion of
the Certified Public Accountants, or of
other certified public accountants
acceptable to the Management Committee, to
the effect that the Disposition would not
result in the Company's being considered to
have terminated within the meaning of Code
Section 708.
(B) PAYMENT OF EXPENSES. The Disposing
Member and its Assignee shall pay, or reimburse the
Company for, all reasonable costs and expenses
incurred by the Company in connection with the
Disposition and admission, including the legal fees
incurred in connection with the legal opinions
referred to in Sections 3.03(b)(iii)(A)(III) and
(IV), on or before the tenth Day after the receipt by
that Person of the Company's invoice for the amount
due.
(C) NO RELEASE. No Disposition of a
Membership Interest shall effect a release of the
Disposing Member from any liabilities to the Company
or the other Members arising from events occurring
prior to the Disposition.
(iv) CHANGE OF MEMBER CONTROL. A Change of Member
Control must also comply with the requirements of this Section
3.03.
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(c) ENCUMBRANCES OF MEMBERSHIP INTEREST. A Member may
Encumber its Membership Interest if (i) the instrument creating such
Encumbrance provides that any foreclosure of such Encumbrance (or
Disposition in lieu of such foreclosure) must comply with the
requirements of Section 3.03(b), and (ii) any such Encumbrance is not
prohibited by the Loan Documents.
(d) RIGHT OF FIRST REFUSAL. Except as otherwise expressly
permitted by this Agreement, this Section 3.03(d) shall apply to any
proposed voluntary Disposition of a Membership Interest to any
purchaser (other than a majority owned Affiliate of the disposing
party) for consideration in the form of cash or promissory notes or
other obligations to pay sums certain. The Member proposing to make
such a Distribution shall provide written notice (a "Disposition
Notice") to the remaining Members at least 90 days prior to the
proposed Disposition. The Disposition Notice must set forth the
identity of the proposed transferee, the sale price, and all other
material terms and conditions of the proposed Disposition. In the Case
of a Change of member Control, the Disposition notice must set forth
the portion, if less than 100%, of the total purchase price that is
applicable to such Member's Membership Interest. Upon receipt of a
Disposition Notice, the remaining Members shall have the option for a
period of 30 days to purchase all, but not less than all, of such
Membership Interest. Such Membership Interest shall be allocated to the
Members exercising their option under this Section 3.03(d) pro rata in
accordance with their Membership Interests. The purchase pursuant to
the exercise of this option shall be at the price and pursuant to the
terms and conditions of the proposed Disposition. If no Member
exercises such option, the Member proposing such Disposition shall be
free, for a period of 60 days after the expiration of the remaining
Members' options, to Dispose of the Membership Interests that were the
subject of the Disposition Notice, but only to the party, and for the
price and on the terms and conditions, set forth in the Disposition
Notice. If the proposed disposition does not occur within 60 days after
the expiration of the remaining Members' options, the Membership
Interest may not be Disposed of pursuant to this section 30.0(d) unless
the Member again complies with the terms of this Agreement.
(e) RIGHTS IN MEMBERSHIP INTERESTS PLEDGED AS COLLATERAL.
Any other provision of this Agreement to the contrary notwithstanding,
by executing and delivering this Agreement, each Member shall be deemed
to have consented to (i) the pledge, assignment, hypothecation and
transfer to any creditor of the Company or NE Genco or its agents,
successors or assigns of, and the grant to such creditor or other
Person of a lien on and security interest in, as security for the
indebtedness of the Company or NE Genco to such creditor, all of such
Member's right, title and interest in, to and under its Membership
Interest and any other collateral securing such indebtedness, (ii) the
exercise by any such creditor or other Person of the rights and
remedies under any security document related to such collateral,
including, without limitation, the right to exercise the voting and
consensual rights and other powers of each Member to the extent
provided in any such security document, and (ii) the right to foreclose
upon or exercise a power of sale with respect to the Membership
Interest of each Member and any other collateral subject to such
security documents and to cause the agent or designee of such creditor
or any third party purchaser of such Membership Interest to become an
additional or substitute Member, and (c) all other provisions of the
loan and security documents relating to such indebtedness or
collateral, the issuance of new or substituted Membership Interests, or
the ownership of Membership Interests.
3.04 CREATION OF ADDITIONAL MEMBERSHIP INTEREST. Provided that the
same is not prohibited by the Loan Documents, additional Membership Interests
may be created and issued to existing Members or to other Persons, and such
other Persons may be admitted to the Company as Members, with the unanimous
consent of the existing Members, on such terms and conditions as the existing
Members may unanimously determine at the time of admission. The terms of
admission or issuance must specify the Sharing Ratios applicable thereto and may
provide for the creation of different classes or groups of Members having
different rights, powers, and duties. The Management Committee may reflect the
creation of any new class or group in an amendment to this Agreement indicating
the different rights, powers, and duties. Any such admission is effective only
after the new Member has executed and delivered to the Members an instrument
containing the notice address of the new Member, the Assignee's ratification of
this Agreement and agreement to be bound by it, and its confirmation that the
representations and warranties in Section 3.02 are true and correct with respect
to it. The provisions of this Section 3.04 shall not apply to Dispositions of
Membership Interests or admissions of Assignees in connection therewith, such
matters being governed by Section 3.03.
9
3.5 ACCESS TO INFORMATION. Each Member shall be entitled to
receive any information that it may request concerning the Company; provided,
however, that this Section 3.05 shall not obligate the Company or the Management
Committee to create any information that does not already exist at the time of
such request (other than to convert existing information from one medium to
another, such as providing a printout of information that is stored in a
computer database). Each Member shall also have the right, upon reasonable
notice, and at all reasonable times during usual business hours to inspect the
properties of the Company and to audit, examine and make copies of the books of
account and other records of the Company. Such right may be exercised through
any agent or employee of such Member designated in writing by it or by an
independent public accountant, engineer, attorney or other consultant so
designated. The Member making the request shall bear all costs and expenses
incurred in any inspection, examination or audit made on such Member's behalf.
Confidential Information obtained pursuant to this Section 3.05 shall be subject
to the provisions of Section 3.06.
3.6 CONFIDENTIAL INFORMATION.
(a) Except as permitted by Section 3.06(b), (i) each
Member shall keep confidential all Confidential Information and shall
not disclose any Confidential Information to any Person, including any
of its Affiliates, and (ii) each Member shall use the Confidential
Information only in connection with the Company.
(b) Notwithstanding Section 3.06(a), but subject to the
other provisions of this Section 3.06, a Member may make the following
disclosures and uses of Confidential Information:
(i) disclosures to another Member in connection
with the Company;
(ii) disclosures and uses that are approved by
the Management Committee;
(iii) disclosures to an Affiliate of such Member
on a "need to know" basis in connection with the Company, if
such Affiliate has agreed to abide by the terms of this
Section 3.06;
(iv) disclosures to a Person that is not a Member
or an Affiliate of a Member, if such Person has been retained
to provide services by the Member in connection with the
Company or such Member's Membership Interest and has agreed to
abide by the terms of this Section 3.06;
(v) disclosures to lenders, potential lenders or
other Persons providing financing to the Company and potential
purchasers of equity interests in the Company, if such Persons
have agreed to abide by the terms of this Section 3.06;
(vi) disclosures to any independent system
operator or its consultants and representatives in connection
with the Acquisitions or the conduct of the businesses of the
NE Genco;
(vii) disclosures to Governmental Authorities that
are necessary to operate the Projects;
(viii) disclosures that a Member is legally
compelled to make by deposition, interrogatory, request for
documents, subpoena, civil investigative demand, order of a
court of competent jurisdiction, or similar process, or
otherwise by Law or securities exchange requirements;
provided, however, that, prior to any such disclosure, such
Member shall, to the extent legally permissible:
(A) provide the Management Committee
with prompt notice of such requirements so that one
or more of the Members may seek a protective order or
other appropriate remedy or waive compliance with the
terms of this Section 3.06(b)(vii);
(B) consult with the Management
Committee on the advisability of taking steps to
resist or narrow such disclosure; and
10
(C) cooperate with the Management
Committee and with the other Members in any attempt
one or more of them may make to obtain a protective
order or other appropriate remedy or assurance that
confidential treatment will be afforded the
Confidential Information; and in the event such
protective order or other remedy is not obtained, or
the other Members waive compliance with the
provisions hereof, such Member agrees (I) to furnish
only that portion of the Confidential Information
that the other Members are advised by counsel to the
disclosing Member is legally required and (II) to
exercise all reasonable efforts to obtain assurance
that confidential treatment will be accorded such
Confidential Information.
(c) Each Member shall take such precautionary measures as
may be required to ensure (and such Member shall be responsible for)
compliance with this Section 3.06 by any of its Affiliates, and its and
their directors, officers, employees and agents, and other Persons to
which it may disclose Confidential Information in accordance with this
Section 3.06.
(d) A Terminated Member shall promptly destroy (and
provide a certificate of destruction to the Company with respect to) or
return to the Company, as directed by the Management Committee, all
Confidential Information in its possession. Notwithstanding the
immediately-preceding sentence, a Terminated Member may, subject to the
other provisions of this Section 3.06, retain and use Confidential
Information for the limited purpose of preparing such Terminated
Member's tax returns and defending audits, investigations and
proceedings relating thereto.
(e) The Members agree that no adequate remedy at law
exists for a breach or threatened breach of any of the provisions of
this Section 3.06, the continuation of which unremedied will cause the
Company and the other Members to suffer irreparable harm. Accordingly,
the Members agree that the Company and the other Members shall be
entitled, in addition to other remedies that may be available to them,
to immediate injunctive relief from any breach of any of the provisions
of this Section 3.06 and to specific performance of their rights
hereunder, as well as to any other remedies available at law or in
equity.
(f) The obligations of the Members under this Section
3.06 shall terminate on the third anniversary of the end of the Term.
3.07 LIABILITY TO THIRD PARTIES. No Member shall be liable for the
debts, obligations or liabilities of the Company.
3.08 WITHDRAWAL. A Member may not withdraw or resign from the
Company except as permitted by this Agreement.
ARTICLE 4
CAPITAL CONTRIBUTIONS
4.01 INITIAL CAPITAL CONTRIBUTIONS. Contemporaneously with the
execution by such Member of this Agreement, each Member shall make the Capital
Contributions described for that Member in Exhibit A.
4.02 SUBSEQUENT CAPITAL CONTRIBUTIONS. Without creating any rights
in favor of any third party, each Member shall contribute to the Company, in
cash, on or before the date specified as hereinafter described, that Member's
Sharing Ratio of all monies that in the unanimous judgment of the Management
Committee are necessary to enable the Company to acquire the Projects and to
cause the assets of the Operating Entities to be properly operated and
maintained and to pay and perform their respective costs, expenses, obligations
and liabilities. The Management Committee shall notify each Member of the need
for Capital Contributions pursuant to this Section 4.02 when appropriate, which
notice must include a statement in reasonable detail of the proposed uses of the
Capital Contributions and a date (which date may be no earlier than the fifth
Business Day following each Member's receipt of its notice) before which the
Capital Contributions must be made. Notices for Capital Contributions must be
made to all Members in accordance with their Sharing Ratios.
11
4.03 FAILURE TO CONTRIBUTE.
(a) If a Member does not contribute, within 10 Days of
the date required, all or any portion of a Capital Contribution that
Member is required to make as provided in this Agreement, the other
Members may cause the Company to exercise, on notice to that Member
(the "Non-Contributing Member"), one or more of the following remedies:
(i) taking such action (including court
proceedings) as the other Members may deem appropriate to
obtain payment by the Non-Contributing Member of the portion
of the Non-Contributing Member's Capital Contribution that is
in default, together with interest thereon at the Default Rate
from the date that the Capital Contribution was due until the
date that it is made, all at the cost and expense of the
Non-Contributing Member;
(ii) permitting the other Members in proportion
to their Sharing Ratios or in such other percentages as they
may agree (the "Lending Member, " whether one or more), to
advance the portion of the Non-Contributing Member's Capital
Contribution that is in default, with the following results:
(A) the sum advanced constitutes a loan
from the Lending Member to the Non-Contributing
Member and a Capital Contribution of that sum to the
Company by the Non-Contributing Member pursuant to
the applicable provisions of this Agreement,
(B) the principal balance of the loan
and all accrued unpaid interest thereon is due and
payable in whole on the tenth Day after written
demand therefor by the Lending Member to the
Non-Contributing Member,
(C) the amount lent bears interest at
the Default Rate from the Day that the advance is
deemed made until the date that the loan, together
with all interest accrued on it, is repaid to the
Lending Member,
(D) all distributions from the Company
that otherwise would be made to the Non-Contributing
Member (whether before or after dissolution of the
Company) instead shall be paid to the Lending Member
until the loan and all interest accrued on it have
been paid in full to the Lending Member (with
payments being applied first to accrued and unpaid
interest and then to principal),
(E) the payment of the loan and
interest accrued on it is secured by a security
interest in the Non-Contributing Member's Membership
Interest, as more fully set forth in Section 4.03(b),
and
(F) the Lending Member has the right,
in addition to the other rights and remedies granted
to it pursuant to this Agreement or available to it
at Law or in equity, to take any action (including
court proceedings) that the Lending Member may deem
appropriate to obtain payment by the Non-Contributing
Member of the loan and all accrued and unpaid
interest on it, at the cost and expense of the
Non-Contributing Member;
(iii) exercising the rights of a secured party
under the Uniform Commercial Code of the State of Delaware, as
more fully set forth in Section 4.03(b); or
(iv) exercising any other rights and remedies
available at Law or in equity.
In addition, the failure to make such contributions shall constitute a Default
by the Non-Contributing Member, and the other Members shall have the rights set
forth in Article 9 with respect to such Default.
12
Account of the Disposing Member that is attributable to such Membership Interest
shall carry over to the Assignee in accordance with the provisions of Treasury
Regulation Section 1.704-1 (b)(2)(iv)(l).
ARTICLE 5
DISTRIBUTIONS AND ALLOCATIONS
5.01 DISTRIBUTIONS OR BILLINGS. Distributions to the Members shall
be made only to all simultaneously in proportion to their respective Sharing
Ratios (at the time the amounts of such distributions are determined) and in
such aggregate amounts and at such times as shall be determined by the
Management Committee and as are permitted by the Loan Documents. When so
permitted, the Management Committee shall endeavor to distribute to the Members,
on or before the end of each calendar quarter, or more often if approved by the
Management Committee, the estimated amount of any cash available for such
calendar quarter (net of any adjustments, if any, made to reflect the actual
cash available for the preceding calendar quarter). Any cash in excess of the
Working Capital Requirements shall be distributed to the Members based on their
respective Sharing Ratios.
5.02 DISTRIBUTIONS ON DISSOLUTION AND WINDING UP. Upon the
dissolution and winding up of the Company, after adjusting the Capital Accounts
for all distributions made under Section 5.01 and all allocations under Article
5, all available proceeds distributable to the Members as determined under
Section 11.02 shall be distributed to all of the Members to the extent of the
Members' positive Capital Account balances.
14
5.03 ALLOCATIONS.
(a) For purposes of maintaining the Capital Accounts
pursuant to Section 4.06 and for income tax purposes, except as
provided in Section 5.03(b), each item of income, gain, loss, deduction
and credit of the Company shall be allocated to the Members in
accordance with their Sharing Ratios.
(b) For income tax purposes, income, gain, loss, and
deduction with respect to property contributed to the Company by a
Member or revalued pursuant to Treasury Regulation Section 1.704-
1(b)(2)(iv)(f) shall be allocated among the Members in a manner that
takes into account the variation between the adjusted tax basis of such
property and its book value, as required by Section 704(c) of the Code
and Treasury Regulation Section 1.704-l(b)(4)(i), using the remedial
allocation method permitted by Treasury Regulation Section 1.704-3(d).
5.04 VARYING INTERESTS. All items of income, gain, loss, deduction
or credit shall be allocated, and all distributions shall be made, to the
Persons shown on the records of the Company to have been Members as of the last
calendar day of the period for which the allocation or distribution is to be
made. Notwithstanding the foregoing, if during any taxable year there is a
change in any Member's Sharing Ratio, the Members agree that their allocable
shares of such items for the taxable year shall be determined on any method
determined by the Management Committee to be permissible under Code Section 706
and the related Treasury Regulations to take account of the Members' varying
Sharing Ratios.
ARTICLE 6
MANAGEMENT
6.01 MANAGEMENT BY MEMBERS. Except as described below in Sections
6.03 and 6.05, the management of the Company is fully vested in the Members,
acting exclusively in their membership capacities. To facilitate the orderly and
efficient management of the Company, the Members shall act (a) collectively as a
"committee of the whole" pursuant to Section 6.02 or (b) through the delegation
from time to time of certain responsibility and authority to particular Members
pursuant to Section 6.04. No Member has the right, power or authority to act for
or on behalf of the Company, to do any act that would be binding on the Company,
or to incur any expenditures on behalf of the Company, except in accordance with
the immediately preceding sentence. Decisions or actions taken in accordance
with the provisions of this Agreement shall constitute decisions or actions by
the Company and shall be binding on each Member, Representative, Officer and
employee of the Company.
6.2 MANAGEMENT COMMITTEE. The Members shall act collectively
through meetings as a "committee of the whole," which is hereby named the
"Management Committee." The Management Committee shall conduct its affairs in
accordance with the following provisions and the other provisions of this
Agreement:
(a) REPRESENTATIVES.
(i) DESIGNATION. To facilitate the orderly and
efficient conduct of Management Committee meetings, each
Member shall notify the other Members, from time to time, of
the identity of two of its officers, employees or agents who
will represent it at such meetings (each a "Representative").
In addition, each Member may (but shall have no obligation to)
notify the other Members, from time to time, of the identity
of other officers, employees or agents who will represent it
at any meeting that the Member's Representatives are unable to
attend (each an "Alternate Representative"). (The term
"Representative" shall also refer to any Alternate
Representative that is actually performing the duties of the
applicable Representative.). The initial Representatives of
each Member are set forth on Exhibit A. A Member may designate
different Representatives or Alternate Representatives for any
meeting of the Management Committee by notifying each of the
other Members at least three Business Days prior to the
scheduled date for such meeting; provided, however, that if
giving such advance notice is not feasible, then such new
Representatives or Alternate Representatives shall present
written evidence of their authority at the commencement of
such meeting.
15
(ii) AUTHORITY. Each Representative shall have
the full authority to act on behalf of the Member that
designated such Representative; the action of a Representative
at a meeting (or through a written consent) of the Management
Committee shall bind the Member that designated such
Representative; and the other Members shall be entitled to
rely upon such action without further inquiry or investigation
as to the actual authority (or lack thereof) of such
Representative. In addition, the act of an Alternate
Representative shall be deemed the act of the Representative
for which such Alternate Representative is acting, without the
need to produce evidence of the absence or unavailability of
such Representative.
(iii) DISCLAIMER OF DUTIES; INDEMNIFICATION. EACH
REPRESENTATIVE SHALL REPRESENT, AND OWE DUTIES TO, ONLY THE
MEMBER THAT DESIGNATED SUCH REPRESENTATIVE (THE NATURE AND
EXTENT OF SUCH DUTIES BEING AN INTERNAL CORPORATE AFFAIR OF
SUCH MEMBER), AND NOT TO THE COMPANY, ANY OTHER MEMBER OR
REPRESENTATIVE, OR ANY OFFICER OR EMPLOYEE OF THE COMPANY. THE
PROVISIONS OF SECTION 6.05 SHALL ALSO INURE TO THE BENEFIT OF
EACH MEMBER'S REPRESENTATIVES. THE COMPANY SHALL INDEMNIFY,
PROTECT, DEFEND, RELEASE AND HOLD HARMLESS EACH REPRESENTATIVE
FROM AND AGAINST ANY CLAIMS ASSERTED BY OR ON BEHALF OF ANY
PERSON (INCLUDING ANOTHER MEMBER), OTHER THAN THE MEMBER THAT
DESIGNATED SUCH REPRESENTATIVE, THAT ARISE OUT OF, RELATE TO
OR ARE OTHERWISE ATTRIBUTABLE TO, DIRECTLY OR INDIRECTLY, SUCH
REPRESENTATIVE'S SERVICE ON THE MANAGEMENT COMMITTEE, OTHER
THAN SUCH CLAIMS ARISING OUT OF THE FRAUD OR WILLFUL
MISCONDUCT OF SUCH REPRESENTATIVE.
(iv) ATTENDANCE. Each Member shall use all
reasonable efforts to cause its Representatives or Alternate
Representatives to attend each meeting of the Management
Committee, unless its Representatives are unable to do so
because of a "force majeure" event or other event beyond his
reasonable control, in which event such Member shall use all
reasonable efforts to cause its Representatives or Alternate
Representatives to participate in the meeting by telephone
pursuant to Section 6.02(h).
(b) CHAIRMAN AND SECRETARY. One of the Representatives
will be designated as Chairman of the Management Committee, in
accordance with this Section 6.02(b), to preside over meetings of the
Management Committee. The Management Committee shall also designate a
Secretary of the Management Committee, who need not be a
Representative.
(c) PROCEDURES. The Secretary of the Management Committee
shall maintain written minutes of each of its meetings, which shall be
submitted for approval no later than the next regularly-scheduled
meeting. The Management Committee may adopt whatever rules and
procedures relating to its activities as it may deem appropriate,
provided that such rules and procedures shall not be inconsistent with
or violate the provisions of this Agreement.
(d) TIME AND PLACE OF MEETINGS. The Management Committee
shall meet quarterly, subject to more or less frequent meetings upon
approval of the Management Committee. Notice of, and an agenda for, all
Management Committee meetings shall be provided by the Chairman to all
Members at least ten Days prior to the date of each meeting, together
with proposed minutes of the previous Management Committee meeting (if
such minutes have not been previously ratified). Special meetings of
the Management Committee may be called at such times, and in such
manner, as any Member deems necessary. Any Member calling for any such
special meeting shall notify the Chairman, who in turn shall notify all
Members of the date and agenda for such meeting at least ten Days prior
to the date of such meeting. Such ten-day period may be shortened by
the Management Committee. All meetings of the Management Committee
shall be held at a location designated by the Chairman. Attendance of a
Member at a meeting of the Management Committee shall constitute a
waiver of notice of such meeting, except where such Member attends the
meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or
convened.
16
(e) QUORUM. The presence of one Representative designated
by each Member shall constitute a quorum for the transaction of
business at any meeting of the Management Committee.
(f) VOTING. Except as provided otherwise in this
Agreement, (i) voting at any meeting of the Management Committee shall
be according to the Members' respective Sharing Ratios, and (ii) the
affirmative vote of Members holding a majority of the Sharing Ratios
shall constitute the act of the Management Committee.
(g) ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at a meeting of the Management Committee may be
taken without a meeting, without prior notice, and without a vote if a
consent or consents in writing, setting forth the action so taken, is
signed by Members that could have taken the action at a meeting of the
Management Committee at which all Members entitled to vote on the
action were represented and voted.
(h) MEETINGS BY TELEPHONE. Members may participate in and
hold such meeting by means of conference telephone, video conference or
similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such
a meeting shall constitute presence in person at such meeting, except
where a Member participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
(i) SUBCOMMITTEES. The Management Committee may create
such subcommittees, delegate to such subcommittees such authority and
responsibility, and rescind any such delegations, as it may deem
appropriate.
(j) OFFICERS. The Management Committee may designate one
or more Persons to be Officers of the Company. Any Officers so
designated shall have such titles and, subject to the other provisions
of this Agreement, have such authority and perform such duties as the
Management Committee may specifically delegate to them and shall serve
at the pleasure of the Management Committee.
6.03 DELEGATION TO PARTICULAR MEMBER. The Management Committee may
delegate to one or more Members such authority and duties as the Management
Committee may deem advisable. Decisions or actions taken by any such Member in
accordance with the provisions of this Agreement shall constitute decisions or
actions by the Company and shall be binding on each Member, Representative,
Officer and employee of the Company. Any delegation pursuant to this Section
6.03 may be revoked at any time by the Management Committee. With respect to
duties discharged hereunder by a Member (a) such Member may discharge such
duties through the personnel of a Affiliate of such Member, and (b) unless the
Members otherwise agree, the Company shall compensate such Member (or its
Affiliate, as applicable) for the performance of such duties in an amount equal
to the manhours expended by the personnel of such Member (or its Affiliate)
multiplied by the applicable rate(s) shown on Exhibit B (which rates each shall
escalate on the first day of each calendar year during the term hereof by an
amount which is 5% of the rate applicable during the prior calendar year), and
shall reimburse such Member for all out of pocket costs incurred by such Member
in discharging such duties. In addition, prior to performing any such duties,
the performing Member shall provide to the other Member for approval an estimate
of man-hours and types of personnel required to perform the delegated duties and
a schedule for the performance of the delegated duties and for other costs
associated therewith, and shall promptly inform the other Member of any variance
from the budget or schedule.
6.04 AFFILIATE AGREEMENTS; CONFLICTS OF INTEREST. Subject to any
other agreement between the Members (and their respective Affiliates, as
applicable), a Member or an Affiliate of a Member may engage in and possess
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, any other Member or any Affiliate of
another Member the right to participate therein. Subject to, and in addition to,
Section 6.03(a), the Company may transact business with any Member or Affiliate
thereof, provided the terms of those transactions are approved by the Management
Committee or expressly contemplated by this Agreement. Without limiting the
generality of the foregoing, the Members recognize and agree that they and their
respective Affiliates currently engage in certain activities involving the
generation, transmission, distribution, marketing and trading of electricity
17
and other energy products (including futures, options, swaps, exchanges of
future positions for physical deliveries and commodity trading), and the
gathering, processing, storage and transportation of such products, as well as
other commercial activities related to such products, and that these and other
activities by Members and their Affiliates may be made possible or more
profitable by reason of the Company's activities (herein referred to as "Outside
Activities"). The Members agree that (i) no Member or Affiliate of a Member
shall be restricted in its right to conduct, individually or jointly with
others, for its own account any Outside Activities, and (ii) no Member or its
Affiliates shall have any duty or obligation, express or implied, to account to,
or to share the results or profits of such Outside Activities with, the Company,
any other Member or any Affiliate of any other Member, by reason of such Outside
Activities.
6.05 UNANIMOUS CONSENT REQUIRED FOR CERTAIN ACTION. Any other
provision of this Agreement to the contrary notwithstanding, the unanimous
consent of the Members, including at least one Independent Member, shall be
required to:
(a) File a bankruptcy or insolvency petition or otherwise
institute insolvency proceedings with respect to the Company, or take
any action that would result in such an event occurring with respect to
NE Genco.
(b) Cause the dissolution, liquidation, consolidation,
merger or sale of substantially all of the assets of the Company or NE
Genco.
(c) Cause or permit the Company to engage in any other
activity other than those set forth in Section 2.04.
(d) Amend this Agreement in any manner that would have a
material adverse impact on any creditor of the Company.
6.06 CERTAIN ACTIONS PROHIBITED. So long as the Company has any
indebtedness outstanding, (a) the Company shall not be dissolved, liquidated,
consolidated or merged with any other entity, nor shall this Agreement be
amended in any manner that would have a material adverse impact on the holders
of such indebtedness, and (b) notwithstanding the failure of the Members to
continue the existence of the Company as provided in Section 2.06 during such
period, no action shall be taken by the Company or any of the Members shall
cause any collateral for such indebtedness to be liquidated or that would
adversely affect the rights of the holders of such indebtedness or their agents
to exercise their rights under any security documents relating thereto or to
retain such collateral until such indebtedness is paid in full or otherwise
completely discharged.
6.07 DISCLAIMER OF DUTIES AND LIABILITIES.
(a) NO MEMBER SHALL OWE ANY DUTY (INCLUDING ANY FIDUCIARY
DUTY) TO THE OTHER MEMBERS OR TO THE COMPANY, OTHER THAN THE DUTIES
THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT.
(b) NO MEMBER SHALL BE LIABLE (WHETHER IN CONTRACT, TORT
OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES).
(c) THE OBLIGATIONS OF THE MEMBERS UNDER THIS AGREEMENT
ARE OBLIGATIONS OF THE MEMBERS ONLY, AND NO RECOURSE SHALL BE AVAILABLE
AGAINST ANY OFFICER, DIRECTOR OR AFFILIATE OF ANY MEMBER, EXCEPT AS
PERMITTED UNDER APPLICABLE LAW.
6.08 INDEMNIFICATION. Each Member shall indemnify, protect, defend,
release and hold harmless each other Member, and such other Member's
Representatives, Affiliates, and their respective directors, officers, employees
and agents from and against any Claims asserted by or on behalf of any Person
(including another Member) that arise out of, relate to or are otherwise
attributable to, directly or indirectly, a breach by the indemnifying Member of
this Agreement, or the negligence, gross negligence or willful misconduct of the
indemnifying Member in connection with the Project or this Agreement; provided,
however, that this Section 6.05
18
shall not apply to any Claim or other matter for which a Member (or its
Representative) has no liability or duty, or is indemnified or released,
pursuant to Section 6.02(a)(iii), 6.07 or 6.08.
ARTICLE 7
TAXES
7.01 TAX RETURNS. The Tax Matters Member shall prepare and timely
file (on behalf of the Company) all federal, state and local tax returns
required to be filed by the Company. Each Member shall furnish to the Tax
Matters Member all pertinent information in its possession relating to the
Company's operations that is necessary to enable the Company's tax returns to be
timely prepared and filed. The Company shall bear the costs of the preparation
and filing of its returns.
7.02 TAX ELECTIONS. The Company shall make the following elections
on the appropriate tax returns:
(a) to adopt as the Company's fiscal year the calendar
year;
(b) to adopt the accrual method of accounting;
(c) if a distribution of the Company's property as
described in Code Section 734 occurs or upon a transfer of Membership
Interest as described in Code Section 743 occurs, on request by notice
from any Member, to elect, pursuant to Code Section 754, to adjust the
basis of the Company's properties;
(d) to elect to amortize the organizational expenses of
the Company ratably over a period of 60 months as permitted by Section
709(b) of the Code; and
(e) any other election the Management Committee may deem
appropriate.
Neither the Company nor any Member shall make an election for the Company to be
excluded from the application of the provisions of subchapter K of chapter 1 of
subtitle A of the Code or any similar provisions of applicable state law and no
provision of this Agreement (including Section 2.07) shall be construed to
sanction or approve such an election.
7.03 TAX MATTERS MEMBER.
(a) NRG shall be the "tax matters partner" of the Company
pursuant to Section 6231 (a)(7) of the Code (the "Tax Matters Member").
At the request of each other Member, the Tax Matters Member shall take
such action as may be necessary to cause, to the extent possible, such
other Member to become a "notice partner" within the meaning of Section
6223 of the Code. The Tax Matters Member shall inform each other Member
of all significant matters that may come to its attention in its
capacity as Tax Matters Member by giving notice thereof on or before
the fifth Business Day after becoming aware thereof and, within that
time, shall forward to each other Member copies of all significant
written communications it may receive in that capacity.
(b) The Tax Matters Member shall take no action without
the authorization of the Management Committee, other than such action
as may be required by Law. Any cost or expense incurred by the Tax
Matters Member in connection with its duties, including the preparation
for or pursuance of administrative or judicial proceedings, shall be
paid by the Company.
(c) The Tax Matters Member shall not enter into any
extension of the period of limitations for making assessments on behalf
of the Members without first obtaining the consent of the Management
Committee. The Tax Matters Member shall not bind any Member to a
settlement agreement without obtaining the consent of such Member. Any
Member that enters into a settlement agreement with respect to any
Company item (as described in Code Section 6231(a)(3)) shall notify the
other Members of such settlement agreement and its terms within 90 Days
from the date of the settlement.
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(d) No Member shall file a request pursuant to Code
Section 6227 for an administrative adjustment of Company items for any
taxable year without first notifying the other Members. If the
Management Committee consents to the requested adjustment, the Tax
Matters Member shall file the request for the administrative adjustment
on behalf of the Members. If such consent is not obtained within 30
Days from such notice, or within the period required to timely file the
request for administrative adjustment, if shorter, any Member,
including the Tax Matters Member, may file a request for administrative
adjustment on its own behalf. Any Member intending to file a petition
under Code Sections 6226, 6228 or other Code Section with respect to
any item involving the Company shall notify the other Members of such
intention and the nature of the contemplated proceeding. In the case
where the Tax Matters Member is the Member intending to file such
petition on behalf of the Company, such notice shall be given within a
reasonable period of time to allow the other Members to participate in
the choosing of the forum in which such petition will be filed.
(e) If any Member intends to file a notice of
inconsistent treatment under Code Section 6222(b), such Member shall
give reasonable notice under the circumstances to the other Members of
such intent and the manner in which the Member's intended treatment of
an item is (or may be) inconsistent with the treatment of that item by
the other Members.
ARTICLE 8
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
8.01 MAINTENANCE OF BOOKS.
(a) The Management Committee shall keep or cause to be
kept at the principal office of the Company or at such other location
approved by the Management Committee complete and accurate books and
records of the Company, supporting documentation of the transactions
with respect to the conduct of the Company's business and minutes of
the proceedings of its Members and the Management Committee, and any
other books and records that are required to be maintained by
applicable Law.
(b) The books of account of the Company shall be (i)
maintained on the basis of a fiscal year that is the calendar year,
(ii) maintained on an accrual basis in accordance with generally
accepted accounting principles, consistently applied, and (iii) audited
by the Certified Public Accountants at the end of each calendar year.
8.02 REPORTS.
(a) With respect to each calendar year, the Management
Committee shall prepare and deliver to each Member:
(i) Within 120 Days after the end of such
calendar year, a profit and loss statement and a statement of
cash flows for such year, a balance sheet and a statement of
each Member's Capital Account as of the end of such year,
together with a report thereon of the Certified Public
Accountants; and
(ii) Such federal, state and local income tax
returns and such other accounting, tax information and
schedules as shall be necessary for the preparation by each
Member on or before July 15 following the end of each calendar
year of its income tax return with respect to such year.
(b) Within 15 Business Days after the end of each
calendar month, the Management Committee shall cause to be prepared and
delivered to each Member, with an appropriate certificate of the Person
authorized to prepare the same (provided that the Management Committee
may change the financial statements required by this Section 8.02(b) to
a quarterly basis or may make such other change therein as it may deem
appropriate):
(i) A profit and loss statement and a statement
of cash flows for such month (including sufficient information
to permit the Members to calculate their tax accruals), for
the portion of the calendar year then ended;
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(ii) A balance sheet and a statement of each
Member's Capital Account as of the end of such month and the
portion of the calendar year then ended; and
(iii) A statement comparing the actual financial
status and results of the Company as of the end of or for such
month and the portion of the calendar year then ended with the
budgeted or forecasted status and results as of the end of or
for such respective periods.
(c) The Management Committee shall also cause to be
prepared and delivered to each Member such other reports, forecasts,
studies, budgets and other information as the Management Committee may
request from time to time.
8.03 BANK ACCOUNTS. Funds of the Company shall be deposited in such
banks or other depositories as shall be designated from time to time by the
Management Committee. All withdrawals from any such depository shall be made
only as authorized by the Management Committee and shall be made only by check,
wire transfer, debit memorandum or other written instruction.
ARTICLE 9
BUYOUT OPTION
9.01 BUYOUT EVENTS. This Article 9 shall apply to any of the
following events (each a "Buyout Event"):
(a) a Member shall dissolve or become Bankrupt; or
(b) a Member shall commit a Default.
In each case, the Member with respect to whom a Buyout Event has occurred is
referred to herein as the "Affected Member."
9.02 PROCEDURE. If a Buyout Event occurs and is not cured within 30
Business Days of the Affected Member's receipt of notice thereof from another
Member (or such shorter period (not less than 10 Business Days) as may be
reasonable under the circumstances and set forth in such notice), then each of
the other Members shall have the option to acquire the Membership Interest of
the Affected Member (or to cause it to be acquired by a third party designated
by the other Members), in accordance with procedures that are substantively
equivalent to those set forth in Section 3.03(b)(iii) (and with the Members
exercising such preferential right also being referred to herein as "Purchasing
Members ").
9.03 PURCHASE PRICE; TERMS AND METHOD OF PAYMENT. The purchase
price for a Membership Interest being purchased pursuant to this Article 9 (the
"Purchase Price") shall be determined in the following manner. The Affected
Member and the Purchasing Members shall attempt to agree upon the fair market
value of the applicable Membership Interest and the terms and method of payment
of such amount. If those Members do not reach such agreement on or before the
30th Day following the exercise of the option, any such Member, by notice to the
others, may require the determination of fair market value and the terms and
method of payment to be made by the Arbitrator pursuant to Article 10.
9.04 CLOSING. If an option to purchase is exercised in accordance
with the other provisions of this Article 9, the closing of such purchase shall
occur on the 30th Day after the determination of the Fair Market Value pursuant
to Section 9.03 (or, if later, the fifth Business Day after the receipt of all
applicable regulatory and governmental approvals to the purchase), and shall be
conducted in a manner substantively equivalent to that set forth in Section
3.03.
9.05 TERMINATED MEMBER. Upon the occurrence of a closing under
Section 9.04, the following provisions shall apply to the Affected Member (now a
"Terminated Member"):
(a) The Terminated Member shall cease to be a Member
immediately upon the occurrence of the closing.
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(b) As the Terminated Member is no longer a Member, it
will no longer be entitled to receive any distributions (including
liquidating distributions) or allocations from the Company, and neither
it nor its Representative shall be entitled to exercise any voting or
consent rights or to receive any further information (or access to
information) from the Company.
(c) The Terminated Member must pay to the Company all
amounts owed to it by such Member.
(d) The Terminated Member shall remain obligated for all
liabilities it may have under this Agreement or otherwise with respect
to the Company that accrue prior to the closing.
(f) The Sharing Ratio of the Terminated Member shall be
allocated among the purchasing Members in the proportion of the total
Purchase Price paid by each.
ARTICLE 10
DISPUTE RESOLUTION
10.01 DISPUTES. This Article 10 shall apply to any dispute arising
under or related to this Agreement (whether arising in contract, tort or
otherwise, and whether arising at law or in equity), including (a) any dispute
regarding the construction, interpretation, performance, validity or
enforceability of any provision of this Agreement or whether any Person is in
compliance with, or breach of, any provisions of this Agreement, and (b) the
applicability of this Article 10 to a particular dispute. Notwithstanding the
foregoing, this Article 10 shall not apply to any matters that, pursuant to the
provisions of this Agreement, are to be resolved by a vote of the Members
(including through the Management Committee); provided, however, that if a vote,
approval, consent, determination or other decision must, under the terms of this
Agreement, be made (or withheld) in accordance with a standard other than Sole
Discretion (such as a reasonableness standard), then the issue of whether such
standard has been satisfied may be a dispute to which this Article 10 applies.
Any dispute to which this Article 10 applies is referred to herein as a
"Dispute." With respect to a particular Dispute, each Member that is a party to
such Dispute is referred to herein as a "Disputing Member." The provisions of
this Article 10 shall be the exclusive method of resolving Disputes.
10.02 NEGOTIATION TO RESOLVE DISPUTES. If a Dispute arises, either
Disputing Member may initiate the dispute-resolution procedures of this Article
10 by delivering a notice (a "Dispute Notice") to the other Disputing Members.
Within 10 Days of delivery of a Dispute Notice, each Disputing Member shall
designate a representative, and such representatives shall promptly meet
(whether by phone or in person) in a good faith attempt to resolve the Dispute.
If such representatives can resolve the Dispute, such resolution shall be
reported in writing and shall be binding upon the Disputing Members. If such
representatives are unable to resolve the Dispute within 30 Days following the
delivery of the Dispute Notice (or such other period as such representatives may
agree), or if a Disputing Member fails to appoint a representative within 10
Days of delivery following the delivery of the Dispute Notice, then any
Disputing Member may take such Dispute to litigation.
ARTICLE 11
DISSOLUTION, WINDING-UP AND TERMINATION
11.01 DISSOLUTION. The Company shall dissolve and its affairs shall
be wound up on the first to occur of the following events (each a "Dissolution
Event"):
(a) the unanimous consent of the Members; or
(b) entry of a decree of judicial dissolution of the
Company under Section 18-802 of the Act.
11.02 WINDING-UP AND TERMINATION.
(a) On the occurrence of a Dissolution Event, the
Management Committee shall select one Member to act as liquidator. The
liquidator shall proceed diligently to wind up the affairs of the
Company
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and make final distributions as provided herein and in the Act. The
costs of winding up shall be borne as a Company expense. Until final
distribution, the liquidator shall continue to operate the Company
properties with all of the power and authority of the Members. The
steps to be accomplished by the liquidator are as follows:
(i) as promptly as possible after dissolution
and again after final winding up, the liquidator shall cause a
proper accounting to be made by a recognized firm of certified
public accountants of the Company's assets, liabilities, and
operations through the last calendar day of the month in which
the dissolution occurs or the final winding up is completed,
as applicable;
(ii) the liquidator shall discharge from Company
funds all of the Indebtedness and other debts, liabilities and
obligations of the Company (including all expenses incurred in
winding up and any loans described in Section 4.03) or
otherwise make adequate provision for payment and discharge
thereof (including the establishment of a cash escrow fund for
contingent liabilities in such amount and for such term as the
liquidator may reasonably determine); and
(iii) all remaining assets of the Company shall be
distributed to the Members as follows:
(A) the liquidator may sell any or all
Company property, including to Members, and any
resulting gain or loss from each sale shall be
computed and allocated to the Capital Accounts of the
Members in accordance with the provisions of Article
5;
(B) with respect to all Company
property that has not been sold, the fair market
value of that property shall be determined and the
Capital Accounts of the Members shall be adjusted to
reflect the manner in which the unrealized income,
gain, loss, and deduction inherent in property that
has not been reflected in the Capital Accounts
previously would be allocated among the Members if
there were a taxable disposition of that property for
the fair market value of that property on the date of
distribution; and
(C) Company property (including cash)
shall be distributed among the Members in accordance
with Section 5.02; and those distributions shall be
made 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).
(b) The distribution of cash or property to a Member in
accordance with the provisions of this Section 11.02 constitutes a
complete return to the Member of its Capital Contributions and a
complete distribution to the Member of its Membership Interest and all
the Company's property and constitutes a compromise to which all
Members have consented pursuant to Section 18-502(b) 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.
11.03 DEFICIT CAPITAL ACCOUNTS. No Member will be required to pay to
the Company, to any other Member or to any third party any deficit balance that
may exist from time to time in the Member's Capital Account.
11.04 CERTIFICATE OF CANCELLATION. On completion of the distribution
of Company assets as provided herein, the 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 2.05, and take such other actions as may be necessary
to terminate the existence of the Company. Upon the filing of such certificate
of cancellation, the existence of the Company shall terminate (and the Term
shall end), except as may be otherwise provided by the Act or other applicable
Law.
ARTICLE 12
GENERAL PROVISIONS
12.01 OFFSET. Whenever the Company is to pay any sum to any Member,
any amounts that Member owes the Company may be deducted from that sum before
payment.
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12.02 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 delivered to the
recipient in person, by courier or mail or by facsimile or other electronic
transmission. A notice, request or consent given under this Agreement is
effective on receipt by the Member to receive it; provided, however, that a
facsimile or other electronic transmission that is transmitted after the normal
business hours of the recipient shall be deemed effective on the next Business
Day. All notices, requests and consents to be sent to a Member must be sent to
or made at the addresses given for that Member on Exhibit A or in the instrument
described in Section 3.03(b)(iv)(A)(II) or 3.04, or such other address as that
Member may specify by notice to the other Members. Any notice, request or
consent to the Company must be given to all of the Members. Whenever any notice
is required to be given by Law, the Delaware 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.
12.03 ENTIRE AGREEMENT; SUPERSEDING EFFECT. This Agreement
constitutes the entire agreement of the Members and their Affiliates relating to
the Company and the transactions contemplated hereby and supersedes all
provisions and concepts contained in all prior contracts or agreements between
the Members or any of their Affiliates with respect to the Company and the
transactions contemplated hereby, whether oral or written, except for the
Preliminary Agreement as specifically provided herein, and for liabilities
accrued under the Preliminary Agreement.
12.04 PRESS RELEASES. Each Member agrees that it shall not (and
shall cause its Affiliates not to), without the other Members' consent, issue a
press release or have any contact with or respond to the news media with any
sensitive or Confidential Information, except as required by securities or
similar laws applicable to a Member and its Affiliates. Any press release by a
Member or its Affiliates with respect to any sensitive or Confidential
Information shall be subject to review and approval by the other Party, which
approval shall not be unreasonably withheld.
12.05 EFFECT OF WAIVER OR CONSENT. Except as otherwise provided in
this Agreement, a waiver or consent, express or implied, to or of any breach or
default by any Member in the performance by that Member 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 Member of the same or any other obligations
of that Member with respect to the Company. Except as otherwise provided in this
Agreement, failure on the part of a Member to complain of any act of any Member
or to declare any Member in default with respect to the Company, irrespective of
how long that failure continues, does not constitute a waiver by that Member of
its rights with respect to that default until the applicable
statute-of-limitations period has run.
12.06 AMENDMENT OR RESTATEMENT. This Agreement or the Delaware
Certificate may be amended or restated only by a written instrument executed
(or, in the case of the Delaware Certificate, approved) by all of the Members.
12.07 BINDING EFFECT. Subject to the restrictions on Dispositions
set forth in this Agreement, this Agreement is binding on and shall inure to the
benefit of the Members and their respective successors and permitted assigns.
12.08 GOVERNING LAW; CONSTRUCTION. 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
mandatory, non-waivable provision of the Act, such provision of the Act shall
control.
NRG ENERGY, INC.
By: /s/ David H. Peterson
--------------------------
Name: David H. Peterson
Title: Chairman, President & CEO
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