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LIMITED LIABILITY COMPANY AGREEMENT
OF
BEC FUNDING LLC
Dated as of March 10, 1999
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS.............................................................4
Section 1.01. DEFINITIONS......................................4
ARTICLE II.
FORMATION AND BUSINESS OF THE COMPANY...................................8
Section 2.01. FORMATION........................................8
Section 2.02. NAME.............................................8
Section 2.03. PRINCIPAL OFFICE.................................8
Section 2.04. REGISTERED AGENT AND REGISTERED OFFICE...........8
Section 2.05. PURPOSE..........................................8
Section 2.06. SEPARATE EXISTENCE..............................10
Section 2.07. LIMITATION ON CERTAIN ACTIVITIES................12
Section 2.08. NO STATE LAW PARTNERSHIP........................12
Section 2.09. ADDRESS OF THE SOLE MEMBER......................13
ARTICLE III.
TERM...................................................................13
Section 3.01. COMMENCEMENT....................................13
Section 3.02. CONTINUATION....................................13
ARTICLE IV.
CAPITAL CONTRIBUTIONS..................................................13
Section 4.01. CAPITAL CONTRIBUTION............................13
Section 4.02. CAPITAL ACCOUNT.................................13
Section 4.03. INTEREST ON AND RETURN OF CAPITAL ACCOUNT.......13
ARTICLE V.
ALLOCATIONS; BOOKS.....................................................14
Section 5.01. ALLOCATIONS OF INCOME AND LOSS..................14
Section 5.02. BOOKS OF ACCOUNT................................14
Section 5.03. DISTRIBUTIONS...................................14
ARTICLE VI.
MANAGEMENT OF THE COMPANY..............................................14
Section 6.01. MANAGEMENT OF COMPANY...........................14
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Section 6.02. WITHDRAWAL OF DIRECTOR..........................15
Section 6.03. DUTIES OF DIRECTORS.............................15
Section 6.04. REMOVAL OF DIRECTORS............................15
Section 6.05. QUORUM: ACTS OF THE MANAGEMENT COMMITTEE........15
Section 6.06. OFFICERS........................................16
ARTICLE VII.
DISSOLUTION, LIQUIDATION AND WINDING-UP................................16
Section 7.01. DISSOLUTION.....................................16
Section 7.02. ACCOUNTING......................................16
Section 7.03. CERTIFICATE OF CANCELLATION.....................16
Section 7.04. WINDING UP......................................16
Section 7.05. ORDER OF PAYMENT OF LIABILITIES UPON
DISSOLUTION.....................................17
Section 7.06. LIMITATIONS ON PAYMENTS MADE IN DISSOLUTION.....17
ARTICLE VIII.
TRANSFER AND ASSIGNMENT................................................17
Section 8.01. TRANSFER OF MEMBERSHIP INTERESTS................17
Section 8.02. ADMISSION OF TRANSFEREE AS MEMBER...............18
ARTICLE IX.
GENERAL PROVISIONS.....................................................18
Section 9.01. NOTICES.........................................18
Section 9.02. CONTROLLING LAW.................................18
Section 9.03. EXECUTION OF COUNTERPARTS.......................18
Section 9.04. SEVERABILITY....................................18
Section 9.05. ENTIRE AGREEMENT................................19
Section 9.06. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS..........19
Section 9.07. PARAGRAPH HEADINGS..............................19
Section 9.08. GENDER, ETC.....................................19
Section 9.09. LIMITED LIABILITY...............................19
Section 9.10. ASSURANCES......................................19
Section 9.11. ENFORCEMENT BY INDEPENDENT DIRECTOR.............20
Section 9.12. WAIVER OF PARTITION; NATURE OF INTEREST.........20
ARTICLE X.
INDEMNIFICATION........................................................20
Section 10.01. INDEMNIFICATION.................................20
Section 10.02. INDEMNIFICATION FOR SUITS BY OR IN
RIGHT OF COMPANY................................21
Section 10.03. AUTHORIZATION...................................21
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Section 10.04. GOOD FAITH......................................21
Section 10.05. COURT ACTION....................................22
Section 10.06. EXPENSES........................................22
Section 10.07. NON-EXCLUSIVITY.................................22
Section 10.08. INSURANCE.......................................22
Section 10.09. CONSOLIDATION/MERGER............................23
Section 10.10. HEIRS, EXECUTORS, AND ADMINISTRATORS............23
SCHEDULE 6.06
OFFICERS...............................................................25
EXHIBIT A
NOTICE ADDRESS OF SOLE MEMBER..........................................26
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LIMITED LIABILITY COMPANY AGREEMENT
OF
BEC FUNDING LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of BEC
Funding LLC, a Delaware limited liability company (the "Company"), is made and
is effective as of March 10, 1999, by Boston Edison Company, a Massachusetts
corporation, as the sole member of the Company (the "Sole Member").
WHEREAS, the Sole Member has caused to be filed a Certificate of
Formation with the Secretary of State of Delaware (the "Secretary") to organize
the Company under and pursuant to the Act (as herein defined) and desires to
enter into this Agreement to set forth the rights, powers and interests of the
Sole Member with respect to the Company and its Membership Interest therein and
to provide for the management of the business and operations of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Sole Member,
intending to be legally bound, hereby agrees as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS. Except as otherwise herein expressly provided,
the following terms and phrases shall have the meanings as set forth below:
"ACT" shall mean the Delaware Limited Liability Company Act, Del. Code Ann.
tit. 6, ss. 18-101 et seq. (1998), as the same may hereafter be amended from
time to time.
"ADMINISTRATION AGREEMENT" shall mean the Administration Agreement to be
entered into by the Sole Member, as Administrator, and the Company, as amended
and supplemented from time to time.
"AFFILIATE" shall mean, when used with reference to a specific Person, any
other Person that, directly or indirectly, through one or more intermediaries,
Controls, is Controlled by or is under common Control with such specific Person.
"AGREEMENT" shall mean the Limited Liability Company Agreement of the
Company, as amended, modified, supplemented or restated from time to time in
accordance with the terms hereof.
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"BANKRUPTCY" means, with respect to any Person, if such Person (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceeding, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation, (v) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it in
any proceeding of this nature, or (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or if 120 days after the commencement of any
proceeding against the Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, the proceeding has not been dismissed, or if within 90 days after
the appointment without such Person's consent or acquiescence of a trustee,
receiver or liquidator of such Person or of all or any substantial part of its
properties, the appointment is not vacated or stayed, or within 90 days after
the expiration of any such stay, the appointment is not vacated. The foregoing
definition of "Bankruptcy" is intended to replace and shall supersede and
replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"BASIC DOCUMENTS" means, collectively, the Transition Property Purchase &
Sale Agreement, the Indenture, the Trust Agreement, the Servicing Agreement, the
Administration Agreement, the Certificate Indenture and the Note Purchase
Agreement.
"BEC AFFILIATED GROUP" shall mean the Sole Member, BEC Energy, a
Massachusetts Voluntary Association, and any Affiliate of such companies (other
than the Company).
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in New York, New York or Boston,
Massachusetts are authorized or obligated by law, regulation or executive order
to remain closed.
"CAPITAL CONTRIBUTION" shall mean, with respect to the Sole Member, the
amount of cash and the value of any property contributed to the Company.
"CERTIFICATE" shall mean the Certificate of Formation of the Company filed
with the Secretary on January 29, 1999 as described in Section 2.01 and as
amended, modified, supplemented, or restated from time to time.
"CERTIFICATE INDENTURE" shall mean the Certificate Indenture to be entered
into by the Trust, as Certificate Issuer, and a certificate trustee, as the same
may be amended, supplemented or modified from time to time.
"COMPANY" shall have the meaning assigned to such term in the preamble
hereto.
"CONTROL" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through ownership of voting
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securities or general partnership or manager interests, by contract or
otherwise. "Controls" and "Controlled" shall have correlative meanings. Without
limiting the generality of the foregoing, a Person shall be deemed to Control
any other Person in which it owns, directly or indirectly, a majority of the
ownership interests.
"DIRECTOR" shall mean a member of the Management Committee.
"ENTITY" shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, foundation, trust, business
trust, real estate investment trust or association.
"EVENT OF BANKRUPTCY" shall mean, with respect to any Person, that such
Person shall (i) institute proceedings to be adjudicated bankrupt or insolvent,
(ii) consent to the institution of bankruptcy or insolvency proceedings against
it, (iii) file a petition seeking or consenting to reorganization or relief
under any applicable federal or state law relating to bankruptcy, (iv) consent
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of such Person or a substantial part of its
property, (v) make a general assignment for the benefit of creditors or (vi)
admit in writing its inability to pay its debts generally as they become due.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States from time to time.
"INDENTURE" shall mean that certain Indenture to be entered into between
the Company, as Note Issuer, and a note trustee, as amended, supplemented or
modified from time to time.
"INDEPENDENT DIRECTOR" shall mean a natural person who is familiar with and
has experience with asset securitization and is not at the time of appointment,
has not been at any time preceding such appointment and is not during the term
of such appointment (other than as incidental to such person's role as
Independent Director): (i) a member, stockholder, partner, director, manager,
officer or employee of any member of the BEC Affiliated Group; (ii) a customer,
supplier or other person who derives more than ten percent (10%) of its
purchases or revenues from its activities with the Company or any member of the
BEC Affiliated Group; (iii) a member of the family of any such member,
stockholder, partner, director, manager, officer, employee, customer or
supplier; or (iv) a trustee in bankruptcy for any member of the BEC Affiliated
Group.
"MANAGEMENT AGREEMENT" shall mean the agreement of the members of the
Management Committee in the form attached hereto as Exhibit B. The Management
Agreement shall be deemed incorporated into, and part of, this Agreement.
"MANAGEMENT COMMITTEE" shall mean a committee composed of at least three
and no more than five Directors, at least two of whom at all times upon and
after the acquisition by the Company of Transition Property must qualify as
Independent Directors. At all times after the
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acquisition by the Company of Transition Property, the Company shall be without
authority to take the actions specified herein as requiring the vote or consent
of the Management Committee absent the currently effective appointment of at
least two Independent Directors to the Management Committee.
"MEMBERSHIP INTEREST" shall mean the limited liability company interest of
the Sole Member in the Company.
"NOTE PURCHASE AGREEMENT" shall mean the Note Purchase Agreement to be
entered into by the Company and the trust created under the Trust Agreement, as
amended and supplemented from time to time.
"NOTES" shall mean the notes of the Company at any time issued pursuant to
the Indenture or any indenture supplemental thereto.
"OFFICER" shall mean an officer of the Company as appointed and serving in
accordance with Section 6.06.
"PERSON" shall mean any natural person or Entity.
"SALE AGREEMENTS" shall have the meaning specified in Section 2.05.
"SECRETARY" shall have the meaning assigned to such term in the first
recital of this Agreement.
"SERVICING AGREEMENT" shall mean that certain Transition Property Servicing
Agreement to be entered into by the Sole Member, as Servicer, and the Company,
as Note Issuer, as amended and supplemented from time to time.
"SOLE MEMBER" shall have the meaning assigned to such term in the preamble
hereto.
"STATUTE" means Chapter 164 of the Massachusetts Acts of 1997, entitled An
Act Relative to Restructuring the Electric Utility Industry in the Commonwealth,
Regulating the Provision of Electricity and Other Services, and Promoting
Enhanced Consumer Protections Therein.
"TRANSITION PROPERTY" shall mean the property to be transferred to the
Company pursuant to the Transition Property Purchase & Sale Agreement.
"TRANSITION PROPERTY PURCHASE & SALE AGREEMENT" shall mean the Transition
Property Purchase & Sale Agreement to be entered into by the Company and the
Sole Member, as amended and supplemented from time to time.
"TRUST" shall mean the Massachusetts RRB Special Purpose Trust BEC.
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"TRUST AGREEMENT" shall mean the Declaration of Trust for the Trust,
entered or to be entered into by the Massachusetts Development Finance Agency,
the Massachusetts Health and Educational Facilities Authority and a Delaware
trustee, as the same may be amended and supplemented from time to time.
ARTICLE II.
FORMATION AND BUSINESS OF THE COMPANY
Section 2.01. FORMATION. The Company has been organized as a Delaware
limited liability company under and pursuant to the Act by the filing of the
Certificate with the Secretary by William M. Shields, as an "authorized person"
under the Act. Upon the filing of the Certificate with the Secretary, another
certificate to qualify the Company to do business in The Commonwealth of
Massachusetts, and an application for a Federal Tax Identification Number, his
powers as an "authorized person" ceased, and each Officer, acting singly,
thereupon became and shall continue as a designated "authorized person" of the
Company. An Officer shall execute, deliver and file any other certificates (and
any amendments and/or restatements thereof) necessary for the Company to qualify
to do business in any jurisdiction in which the Company may wish to conduct
business. To the extent that the rights or obligations of the Sole Member are
different by reason of any provision of this Agreement than they would be in the
absence of such provision, this Agreement shall, to the extent permitted by the
Act, control.
Section 2.02. NAME. The name of the Company shall be "BEC Funding LLC". The
business of the Company may be conducted under that name or, upon compliance
with applicable laws, any other name that the Sole Member deems appropriate or
advisable.
Section 2.03. PRINCIPAL OFFICE. The location of the principal place of
business of the Company shall be at such location as shall be provided from time
to time by the Administrator under the Administration Agreement.
Section 2.04. REGISTERED AGENT AND REGISTERED OFFICE. The registered agent
of the Company shall be the initial registered agent named in the Certificate or
such other Person or Persons as the Sole Member may designate from time to time
in the manner provided by the Act. The registered office of the Company required
by the Act to be maintained in the State of Delaware shall be the initial
registered office named in the Certificate or such other office (which need not
be a place of business of the Company) as the Sole Member may designate from
time to time in the manner provided by the Act.
Section 2.05. PURPOSE. The Company is intended to qualify as a "financing
entity" as defined in Section 1H(a) of the Statute. As such, the purpose for
which the Company is formed is limited solely to the following activities:
(a) to acquire, own, hold, administer, service, and enter into agreements
regarding the receipt and servicing of the Transition Property, along with
certain other related assets;
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(b) to enter into, perform and comply with the Transition Property Purchase
& Sale Agreement, assignment agreements, or other agreements providing for the
purchase of the Transition Property, any future "transition property" (as such
term is defined in the Statute), and related assets by the Company
(collectively, the "Sale Agreements"); and to enter into, perform and comply
with such servicing agreements, administration agreements, collection account
agreements and other similar agreements as may be necessary or desirable in
connection with such Sale Agreements;
(c) to issue, sell, authorize and deliver the Notes and other evidences of
indebtedness and to enter into any agreement or document providing for the
authorization, issuance, sale and delivery of the Notes;
(d) to manage, collect amounts due on, sell, exchange, assign, pledge,
encumber, or otherwise deal with all or any part of the Transition Property and
its other assets and property, and, in connection therewith, to accept, collect,
hold, sell, exchange or otherwise dispose of evidences of indebtedness or other
property received pursuant thereto, including the encumbrance of all of the
Transition Property and its other assets as collateral security;
(e) to invest proceeds from the Transition Property and its other assets
and any capital and income of the Company in accordance with the Basic Documents
or as otherwise determined by the Management Committee and not inconsistent with
this Agreement or the Basic Documents;
(f) to execute any registration statement, offering document or related
agreements or disclosures related to the issuance of electric rate reduction
bonds or other instruments secured by the Transition Property; and
(g) to engage in any lawful act or activity and to exercise any powers
permitted to limited liability companies formed under the laws of the State of
Delaware that, in either case, are incidental to and necessary, suitable or
convenient for the accomplishment of the above-mentioned purposes.
The Company shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of any Sale
Agreement or other agreement referenced above. The Company shall have all powers
reasonably necessary or convenient to effect the foregoing purposes, including
all powers granted under the Act. The Company, and any Officer or Director,
including any Independent Director, on behalf of the Company, may enter into the
Basic Documents and perform their respective obligations under the Basic
Documents and all documents, agreements, certificates or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of the Sole Member, the Management Committee, any Director or other
person or entity, notwithstanding any other provision of this Agreement, the
Act, or other applicable law, rule or regulation. The authorization set forth in
the preceding sentence shall not be deemed a restriction on the power
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and authority of any Officer or Director, including any Independent Director, to
enter into other agreements or documents on behalf of the Company, to the extent
permitted hereunder.
Section 2.06. SEPARATE EXISTENCE. The Company, and the Sole Member and the
Management Committee on behalf of the Company, shall:
(i) Maintain in full effect its existence, rights and franchises as a
limited liability company under the laws of the State of Delaware and obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and each other instrument or agreement
necessary or appropriate to the proper administration hereof and to permit and
effectuate the undertakings contemplated hereby.
(ii) Hold itself out to the public and all other persons as a legal entity
separate from the Sole Member at all times, and correct any known
misunderstandings regarding its separate identity.
(iii) Maintain with commercial banking institutions its own deposit account
or accounts separate from those of any member of the BEC Affiliated Group.
(iv) Maintain an arm's length relationship with its Affiliates and the BEC
Affiliated Group.
(v) Ensure that, to the extent that it shares the same officers or other
employees with the Sole Member or any member of the BEC Affiliated Group, the
salaries of, and the expenses related to providing benefits to, such officers
and other employees shall be fairly allocated among such entities, and each such
entity shall bear its fair share of the salary and benefit costs associated with
all such common officers and employees.
(vi) Pay all of its operating expenses incurred by it from the assets of
the Company, and ensure that, to the extent that it jointly contracts with the
Sole Member or any member of the BEC Affiliated Group to do business with
vendors or service providers or to share overhead expenses, the costs incurred
in so doing shall be allocated fairly among such entities, and each such entity
shall bear its fair share of such costs.
(vii) Maintain a principal executive and administrative office through
which its business is conducted separate from those of the Sole Member and any
Affiliate of the BEC Affiliated Group. To the extent that the Company and the
Sole Member or any Affiliate of the BEC Affiliated Group have offices in
contiguous space, there shall be fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its fair share of such
expenses.
(viii) Observe all necessary, appropriate and customary formalities,
including, but not limited to, holding all regular and special meetings
including meetings of the
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Management Committee, appropriate to authorize all action on behalf of the
Company, keeping all resolutions or consents necessary to authorize actions
taken or to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany transaction
accounts.
(ix) Cause to have prepared and filed its own tax returns, if any, as may
be required under applicable law, to the extent (1) not part of a consolidated
group filing a consolidated return or returns or (2) not treated as a division
for tax purposes of another taxpayer, and pay any taxes so required to be paid
under applicable law.
(x) At all times vest the management of the Company in the Management
Committee and, from and after the entry into any Sale Agreement and the
acquisition of any Transition Property, ensure that its Management Committee
shall at all times include at least two Independent Directors.
(xi) Refrain from commingling its assets with those of the Sole Member or
any member of the BEC Affiliated Group (except as contemplated by any Sale
Agreement, or any servicing agreement or administration agreement entered into
in connection therewith).
(xii) Refrain from making any loan or advance to, owning, or acquiring any
stock or securities of any Person, including the Sole Member, except as
permitted in the Basic Documents.
(xiii) Act solely in its own name and through its own Officers and agents,
and no member of the BEC Affiliated Group shall be appointed to act as agent of
the Company, except as expressly contemplated by the Basic Documents.
(xiv) Ensure that no member of the BEC Affiliated Group shall advance funds
to the Company, or otherwise guaranty debts of the Company, except as provided
in the Basic Documents; PROVIDED, HOWEVER, that prior to the acquisition by the
Company of any Transition Property any member of the BEC Affiliated Group may
lend or provide funds to the Company in connection with the initial
capitalization or organization of the Company or, thereafter as permitted by the
Basic Documents, with any subsequent capitalization.
(xv) Not enter into any guaranty, or otherwise become liable, with respect
to any obligation of any member of the BEC Affiliated Group and not hold itself
out, or permit itself to be held out, as having agreed to pay or as being liable
for the debts of the Sole Member or any other member of the BEC Affiliated
Group.
(xvi) Comply with all restrictions on its business and operations as set
forth in Sections 2.05 and 2.07.
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Section 2.07. LIMITATION ON CERTAIN ACTIVITIES. Notwithstanding any other
provisions of this Agreement, the Company, and the Sole Member or Management
Committee on behalf of the Company, shall not:
(i) engage in any business or activity other than as set forth in Article 2
hereof;
(ii) without the affirmative vote of the Sole Member and the affirmative
vote of all of the Directors, including the Independent Directors, initiate any
Event of Bankruptcy with respect to the Company or take any company action in
furtherance of any such Event of Bankruptcy;
(iii) merge or consolidate with any other corporation, company, or entity
or, except to the extent permitted by each Sale Agreement, sell all or
substantially all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any other corporation,
company or entity;
(iv) form, acquire or hold any subsidiary (whether corporate, partnership,
limited liability company or other);
(v) incur any indebtedness (other than the indebtedness incurred under the
Basic Documents), assume or guarantee any indebtedness of any other Person or
pledge its assets for the benefit of any other Person (other than the pledge of
assets contemplated by the Basic Documents); or
(vi) to the fullest extent permitted by law, without the affirmative vote
of the Sole Member and the affirmative vote of all Directors, including the
Independent Directors, execute any dissolution, liquidation, or winding up of
the Company.
Section 2.08. NO STATE LAW PARTNERSHIP. No provisions of this Agreement
(including, without limitation, the provisions of Article 6) shall be deemed or
construed to constitute a partnership (including, without limitation, a limited
partnership) or joint venture, or the Sole Member a partner or joint venturer of
or with any Director or the Company, for any purposes.
Section 2.09. ADDRESS OF THE SOLE MEMBER. The address of the Sole Member is
set forth on EXHIBIT A, as amended from time to time, attached hereto and made a
part hereof.
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ARTICLE III.
TERM
Section 3.01. COMMENCEMENT. The Company's term commenced upon the filing of
the Certificate with the Secretary on January 29, 1999. The existence of the
Company as a separate legal entity shall continue until the cancellation of the
Certificate as provided in the Act.
Section 3.02. CONTINUATION. Notwithstanding any provision of this
Agreement, a Bankruptcy of the Sole Member will not cause the Sole Member to
cease to be a member of the Company, and upon the occurrence of such an event,
the business of the Company shall continue without dissolution. Notwithstanding
any other provision of this Agreement, the Sole Member waives any right it might
have under Section 18-801(b) of the Act to agree in writing to dissolve the
Company upon the occurrence of a Bankruptcy of the Sole Member or the occurrence
of any other event which under the Act would otherwise cause the Sole Member to
cease to be a member of the Company.
ARTICLE IV.
CAPITAL CONTRIBUTIONS
Section 4.01. CAPITAL CONTRIBUTION. The Sole Member may be required or
shall be permitted to make Capital Contributions in cash or property to the
Company on such terms and conditions as may be agreed to by the Sole Member from
time to time. The amounts so contributed by the Sole Member shall be credited to
the Sole Member's capital account, as provided in Section 4.02 below. The Sole
Member shall have a Membership Interest of one hundred percent (100%) of the
Company.
Section 4.02. CAPITAL ACCOUNT. The Company shall establish an individual
Capital Account for the Sole Member (the "Capital Account").
Section 4.03. INTEREST ON AND RETURN OF CAPITAL ACCOUNT. The Sole Member
shall be entitled to interest on its Capital Contribution to the extent
permitted in the Indenture and the Basic Documents.
ARTICLE V.
ALLOCATIONS; BOOKS
Section 5.01. ALLOCATIONS OF INCOME AND LOSS.
(a) BOOK ALLOCATIONS. The net income and net loss of the Company shall be
allocated entirely to the Capital Account of the Sole Member.
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(b) TAX ALLOCATIONS. Because the Company is not making (and will not make)
an election to be treated as an association taxable as a corporation under
Section 301.7701-3(a) of the U.S. Treasury Regulations, and because the Company
is a business entity that has a single owner and is not a corporation, it shall
be disregarded as an entity separate from its owner for federal income tax
purposes under Section 301.7701-3(b)(1) of the U.S. Treasury Regulations.
Accordingly, all items of income, gain, loss, deduction and credit of the
Company for all taxable periods will be treated for federal income tax purposes,
and for state and local income and other tax purposes to the extent permitted by
applicable law, as realized or incurred directly by the Sole Member. To the
extent not so permitted, all items of income, gain, loss, deduction and credit
of the Company shall be allocated entirely to the Sole Member.
Section 5.02. BOOKS OF ACCOUNT. At all times during the continuance of the
Company, the Company shall maintain or cause to be maintained full, true,
complete and correct books of account in accordance with GAAP, using the fiscal
year and taxable year of the Sole Member. In addition, the Company shall keep
all records required to be kept pursuant to the Act.
Section 5.03. DISTRIBUTIONS. The Company may make distributions to the Sole
Member from time to time upon the unanimous vote of the Management Committee.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Sole Member on
account of its interest in the Company if such distribution would violate
Section 18-607 of the Act or any other applicable law or any of the Basic
Documents.
ARTICLE VI.
MANAGEMENT OF THE COMPANY
Section 6.01. MANAGEMENT OF COMPANY. Except as otherwise provided in this
Agreement, the property and business of the Company shall be controlled and
managed by the Management Committee provided, however, that except as otherwise
provided in this Agreement, the Officers acting alone can bind or execute any
instrument on behalf of the Company, and may sign all checks, drafts, and other
instruments obligating the Company to pay money. Notwithstanding the last
sentence of Section 18-402 of the Act, except as provided in this Agreement, a
Director may not bind the Company. Prior to the entry into any Sale Agreement
and the acquisition of any Transition Property, the Sole Member shall appoint
two Independent Directors. In the event that an Independent Director withdraws,
resigns or is removed as Independent Director, the Sole Member shall appoint, as
soon as reasonably practicable, a successor Independent Director. The Company
shall pay each Independent Director an annual fee totaling not less than
$1,000 per year. Each Director, including each Independent Director, is hereby
deemed to be a "manager" within the meaning of Section 18-101(10) of the Act.
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Section 6.02. WITHDRAWAL OF DIRECTOR. Notwithstanding anything herein to
the contrary, an Independent Director may not withdraw or resign as a Director
of the Company without the consent of the Sole Member.
Section 6.03. DUTIES OF DIRECTORS. To the fullest extent permitted by
applicable law, including without limitation Section 18-1101(c) of the Act, the
fiduciary duty of the Directors, including the Independent Directors, in respect
of any decision on any matter referred to in this Agreement shall be owed solely
to the Company (including its creditors) and not to the Sole Member or any other
holder of an equity interest in the Company as may exist at such time. Each
Director shall execute and deliver the Management Agreement.
Section 6.04. REMOVAL OF DIRECTOR. A Director (including the Independent
Director) may be removed at any time, with or without cause, upon the written
election of the Sole Member.
Section 6.05. QUORUM: ACTS OF THE MANAGEMENT COMMITTEE. At all meetings of
the Management Committee, a majority of the Directors shall constitute a quorum
for the transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Management
Committee. If a quorum shall not be present at any meeting of the Management
Committee, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. The Directors may participate in meetings of the
Management Committee by means of telephone conference or similar communications
equipment that allows all persons participating in the meeting to hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall be deemed to
be held at the principal place of business of the Company. Any action required
or permitted to be taken at any meeting of the Management Committee or any
committee thereof 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 shall be signed by the Directors having not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting.
Unless otherwise provided in the Agreement, on any matter that is to be voted on
by Directors, the Directors may vote in person or by proxy.
Section 6.06. OFFICERS. The Sole Member may, from time to time as it deems
advisable, appoint officers of the Company (the "Officers") and assign in
writing titles (including, without limitation, President, Vice President,
Secretary, and Treasurer) to any such person. Unless the Sole Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law the assignment of
such title shall constitute the delegation to such person of the authorities and
duties that are normally associated with that office. Any delegation pursuant to
this Section 6.06 may be revoked at any time by the Sole Member. The Officers
shall be those individuals listed on Schedule 6.06 from
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time to time attached hereto. The Sole Member may revise Schedule 6.06 in its
sole discretion at any time.
ARTICLE VII.
DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 7.01. DISSOLUTION. The Company shall be dissolved and its affairs
shall be wound up upon the occurrence of the earliest of the following events:
(a) subject to Section 2.07, the election to dissolve the Company made in
writing by the Sole Member and each Director, including without limitation each
Independent Director, as permitted by the Basic Documents;
(b) the occurrence of any event that causes the Sole Member of the Company
to cease to be a member of the Company unless the business of the Company is
continued without dissolution in a manner permitted by the Act; or
(c) the entry of a decree of judicial dissolution of the Company pursuant
to Section 18-802 of the Act.
Section 7.02. ACCOUNTING. In the event of the dissolution, liquidation and
winding-up of the Company, a proper accounting shall be made of the Capital
Account of the Sole Member and of the net income or net loss of the Company from
the date of the last previous accounting to the date of dissolution.
Section 7.03. CERTIFICATE OF CANCELLATION. As soon as possible following
the occurrence of any of the events specified in Section 7.01 and the completion
of the winding up of the Company, the person or entity winding up the business
and affairs of the Company shall cause to be executed a Certificate of
Cancellation of the Certificate in such form as shall be prescribed by the
Secretary and file the Certificate of Cancellation of the Certificate as
required by the Act.
Section 7.04. WINDING UP. Upon the occurrence of any event specified in
Section 7.01, the Company shall continue solely for the purpose of winding up
its affairs in an orderly manner, liquidating its assets, and satisfying the
claims of its creditors. The Sole Member shall be responsible for overseeing the
winding up and liquidation of the Company, shall take full account of the
liabilities of the Company and its assets, shall either cause its assets to be
sold or distributed, and if sold as promptly as is consistent with obtaining the
fair market value thereof, shall cause the proceeds therefrom, to the extent
sufficient therefor, to be applied and distributed as provided in Section 7.06.
Section 7.05. ORDER OF PAYMENT OF LIABILITIES UPON DISSOLUTION. After
determining that all known debts and liabilities of the Company, including all
contingent, conditional or unmatured liabilities of the Company, in the process
of winding-up, including, without
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limitation, debts and liabilities to the Sole Member in the event it is a
creditor of the Company to the extent otherwise permitted by law, have been paid
or adequately provided for, the remaining assets shall be distributed in cash or
in kind to the Sole Member.
Section 7.06. LIMITATIONS ON PAYMENTS MADE IN DISSOLUTION. Except as
otherwise specifically provided in this Agreement, the Sole Member shall be
entitled to look solely to the assets of the Company for the return of its
positive Capital Account balance and shall have no recourse for its Capital
Contribution and/or share of net income (upon dissolution or otherwise) against
any Director or the Management Committee.
ARTICLE VIII.
TRANSFER AND ASSIGNMENT
Section 8.01. TRANSFER OF MEMBERSHIP INTERESTS.
(a) The Sole Member may transfer its Membership Interest, but the
transferee shall not be admitted as a member except in accordance with Section
8.02. Until the transferee is admitted as a member, the Sole Member shall
continue to be the sole member of the Company and to be entitled to exercise any
rights or powers of the Sole Member with respect to the Membership Interest
transferred.
(b) Any purported transfer of any Membership Interest in violation of the
provisions of this Agreement shall be wholly void and shall not effectuate the
transfer contemplated thereby. Notwithstanding anything contained herein to the
contrary, the Sole Member may not transfer any Membership Interest in violation
of any provision of this Agreement or in violation of any applicable Federal or
state securities laws.
Section 8.02. ADMISSION OF TRANSFEREE AS MEMBER. A transferee of a
Membership Interest desiring to be admitted as a member must execute a
counterpart of, or an agreement adopting, this Agreement and shall not be
admitted without the unanimous affirmative vote of the Management Committee,
which vote must include the affirmative vote of the Independent Directors. Upon
admission of the transferee as a member, the transferee shall have, to the
extent of the Membership Interest transferred, the rights and powers and shall
be subject to the restrictions and liabilities of the Sole Member under this
Agreement and the Act. Notwithstanding anything in this Agreement to the
contrary, any successor to the Sole Member by merger or consolidation in
compliance with the Basic Documents shall, without further act, be the Sole
Member hereunder, and such merger or consolidation shall not constitute a
transfer for purposes of this Agreement.
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ARTICLE IX.
GENERAL PROVISIONS
Section 9.01. NOTICES. All notices or other communications required or
permitted to be delivered pursuant to this Agreement shall be in writing and may
be personally delivered, mailed or sent by telephonic facsimile or other similar
form of rapid transmission, and shall be deemed to have been duly given upon
receipt by the appropriate party at its address set forth on Exhibit A hereto.
The address of any party hereto may be changed by a notice in writing given in
accordance with the provisions of this Section 9.01.
Section 9.02. CONTROLLING LAW. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Delaware,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
Section 9.03. EXECUTION OF COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
Section 9.04. SEVERABILITY. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Section 9.05. ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained.
Section 9.06. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS.
(a) This Agreement may not be altered, amended or repealed except pursuant
to a written agreement executed and delivered by the Sole Member.
Notwithstanding the preceding sentence, the Company shall not adopt a new
Limited Liability Company Agreement or alter, amend or repeal any provision of
Sections 1.01 (including the definition of "Independent Director"), 2.05, 2.06,
2.07, 3.02, 6.02, 7.01, 8.02 , 9.06 and 9.11 of this Agreement without the
unanimous affirmative vote of the Management Committee, which vote must include
the affirmative vote of each Independent Director.
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(b) The Company's power to alter, amend or repeal the Certificate shall be
vested in the Sole Member.
Upon obtaining the approval of any amendment, supplement or restatement of the
Certificate, the Company shall cause a Certificate of Amendment or Amended and
Restated Certificate to be prepared, executed and filed in accordance with the
Act.
Section 9.07. PARAGRAPH HEADINGS. The paragraph headings in this Agreement
are for convenience and they form no part of this Agreement and shall not affect
its interpretation.
Section 9.08. GENDER, ETC. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate. The term "including" shall mean
"including, but not limited to."
Section 9.09. LIMITED LIABILITY. Except as otherwise expressly provided by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be the debts, obligations and liabilities
solely of the Company, and neither the Sole Member nor any Director or Officer
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being the Sole Member or a Director or Officer of
the Company. To the extent permitted by applicable law, no Director or Officer
shall be personally liable to the Company for monetary damages for breach of the
duty of care as an Officer or a Director for any act taken or omission made in
good faith and without willful misconduct.
Section 9.10. ASSURANCES. The Sole Member shall hereafter execute and
deliver such further instruments and do such further acts and things as may be
reasonably required or useful to carry out the intent and purpose of this
Agreement and as are not inconsistent with the terms hereof.
Section 9.11. ENFORCEMENT BY INDEPENDENT DIRECTOR. Notwithstanding any
other provision of this Agreement, the Sole Member agrees that this Agreement,
(including without limitation, Sections 2.05, 2.06, 2.07, 3.02, 6.02, 7.01,
8.02, 9.06 and 9.11) constitutes a legal, valid and binding agreement of the
Sole Member, and is enforceable against the Sole Member by the Independent
Directors in accordance with its terms. The Independent Directors are intended
beneficiaries of this Agreement.
Section 9.12. WAIVER OF PARTITION; NATURE OF INTEREST. Except as otherwise
expressly provided in this Agreement, to the fullest extent permitted by law,
the Sole Member hereby irrevocably waives any right or power that the Sole
Member might have to cause the Company or any of its assets to be partitioned,
to cause the appointment of a receiver for all or any portion of the assets of
the Company, to compel any sale of all or any portion of the assets of the
Company pursuant to any applicable law or to file a complaint or to institute
any proceeding at law or in equity to cause the dissolution, liquidation,
winding up or termination of the Company. The Sole
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Member shall not have any interest in any specific assets of the Company, and
the Sole Member shall not have the status of a creditor with respect to any
distribution pursuant to Section 5.3 hereof. The interest of the Sole Member in
the Company is personal property.
ARTICLE X.
INDEMNIFICATION
Section 10.01. INDEMNIFICATION. Subject to Section 10.03 of this Article,
the Company shall, to the fullest extent permitted by law, indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company) by reason of the fact that he is or was a director, manager, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a manager, director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit,
proceeding or in enforcing such person's right to indemnification hereunder, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 10.02. INDEMNIFICATION FOR SUITS BY OR IN RIGHT OF COMPANY. Subject
to Section 10.03 of this Article, the Company shall, to the fullest extent
permitted by law, indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Company to procure a judgment in its favor by reason of the
fact that he is or was a director, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit or enforcing such person's right to
indemnification hereunder, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or such other court shall deem proper.
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Section 10.03. AUTHORIZATION. Any indemnification under this Article
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the manager,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 10.01 or Section 10.02, of
this Article, as the case may be. Such determination shall be made (i) by
independent legal counsel in a written opinion or (ii) by the Sole Member. To
the extent, however, that a manager, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.
Section 10.04. GOOD FAITH. For purposes of any determination under Sections
10.03 or 9.09 of this Agreement, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action or proceeding,
to have had no reasonable cause to believe his conduct was unlawful, if his
action is based on the records or books of account of the Company or another
enterprise, or on information supplied to him by the officers of the Company or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Company or another enterprise or on information or records given
or reports made to the Company or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Company or another enterprise. The term "another enterprise" as used
in this Section 10.04 shall mean any corporation, partnership, limited liability
company, joint venture, trust or other enterprise of which such person is or was
serving at the request of the Company as a manager, director, officer, employee
or agent. The provisions of this Section 10.04 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Sections
10.01 or 10.02 of this Article, as the case may be.
Section 10.05. COURT ACTION. Notwithstanding any contrary determination in
the specific case under Section 10.03 of this Article, and notwithstanding the
absence of any determination thereunder, any manager, officer, employee or agent
may apply to any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 10.01 and
10.02 of this Article. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the manager, officer,
employee or agent is proper in the circumstances because he has met the
applicable standards of conduct set forth in Section 10.01 and 10.02 of this
Article, as the case may be. Notice of any application for indemnification
pursuant to this Section 10.05 shall be given to the Company promptly upon the
filing of such application.
Section 10.06. EXPENSES. Expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding may be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of
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the manager, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company as authorized in this Article.
Section 10.07. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, contract,
vote or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Company that indemnification of the persons specified in Sections 10.01 and
10.02 of this Article shall be made to the fullest extent permitted by law. The
provisions of this Article shall not be deemed to preclude the indemnification
of any person who is not specified in Section 10.01 or 10.02 of this Article but
who the Company has the power or obligation to indemnify under the provisions of
the Act, or otherwise.
Section 10.08. INSURANCE. The Company may purchase and maintain insurance
on behalf of any person who is or was a manager, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise against any liability asserted against
him/her and incurred by him/her in any such capacity, or arising out of his/her
status as such, whether or not the Company would have the power or the
obligation to indemnify him against such liability under the provisions of this
Article.
Section 10.09. CONSOLIDATION/MERGER. For purposes of this Article,
references to "the Company" shall include, in addition to the Company, any
constituent company (including any constituent of a constituent) absorbed in a
consolidation or merger that, if its separate existence had continued, would
have had the power and authority to indemnify its managers, directors, officers,
and employees or agents, so that any person who is or was a manager, director,
officer, employee or agent of such constituent company, or is or was serving at
the request of such constituent company as a manager, director, officer,
employee or agent of another company, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving company as he would have with
respect to such constituent company if its separate existence had continued.
Section 10.10. HEIRS, EXECUTORS, AND ADMINISTRATORS. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a manager, director, office, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Sole Member hereto has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first above
written.
BOSTON EDISON COMPANY
By: /s/ EMILIE G. O'NEIL
-------------------------
Name: Emilie G. O'Neil
Title: Manager-Corporate
Finance
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SCHEDULE 6.06
OFFICERS
Robert Weafer, Jr. President, Treasurer
Emilie O'Neil Vice President
Theodora Convisser Secretary
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EXHIBIT A
NOTICE ADDRESS OF SOLE MEMBER
NAME OF MEMBER NOTICE ADDRESS
Boston Edison Company 800 Boylston Street
Boston, MA 02199
Attn: Corporate Finance
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EXHIBIT B
MANAGEMENT AGREEMENT
[ ], 1999
BEC Funding LLC
800 Boylston Street, 35th Floor
Boston, MA 02119
Re: Management Agreement -- BEC Funding LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as members of the management committee of BEC Funding LLC,
a Delaware limited liability company (the "Company"), in accordance with the
Limited Liability Company Agreement of the Company, dated as of [ ], 1999,
as it may be amended or restated from time to time (the "LLC Agreement"), hereby
agrees:
1. To accept such person's rights and authority as a member of the
Management Committee (as defined in the LLC Agreement) under the LLC Agreement,
to perform and discharge such person's duties and obligations as a member of the
Management Committee under the LLC Agreement, and that such rights, authority,
duties and obligations under the LLC Agreement shall continue until such
person's successor as a member of the Management Committee is designated or
until such person's resignation or removal as a member of the Management
Committee in accordance with the LLC Agreement. A member of the Management
Committee is designated as a "manager" of the Company within the meaning of the
Delaware Limited Liability Company Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
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IN WITNESS WHEREOF, the undersigned have executed this Management Agreement
as of the day and year first above written.
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Name:
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Name:
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Name:
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Name:
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Name:
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