EXHIBIT 4.1.1
FORM OF AMENDED AND RESTATED LIMITED LIABILITY
AGREEMENT OF CONSUMERS FUNDING LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSUMERS FUNDING LLC,
a Delaware Limited Liability Company
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT, dated [ ], 2001 (the "Agreement"), of CONSUMERS FUNDING LLC, a
Delaware limited liability company (the "Company"), having its principal
office at 212 W. Michigan Avenue, Suite M-1029, Jackson, Michigan 49201.
WHEREAS, Consumers Energy Company ("Consumers"), as sole
Member, (i) on October 11, 2000 filed a Certificate of Formation of the
Company with the Delaware Secretary of State, (ii) amended and restated
such Certificate of Formation on [ ], 2001 and filed the same with the
Secretary of State of the State of Delaware on [ ], 2001, and (iii)
executed a Limited Liability Company Agreement, dated October 11, 2000 (the
"Original LLC Agreement"); and
WHEREAS, this Agreement amends and restates the Original
LLC Agreement in all respects, and from and after the date hereof
constitutes the governing instrument of the Company;
NOW THEREFORE, the Member (as defined below) hereby
amends and restates the Original LLC Agreement as follows:
ARTICLE I
Definitions
SECTION 1.01 Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Act" shall mean the Delaware Limited Liability Company
Act, as amended (currently Chapter 18 of Title 6, Sections 18-101 through
18-1109 of the Delaware Code).
"Administration Agreement" shall mean the Administration
Agreement, dated [ ], 2001, between the Company and Consumers, as
administrator.
"Affiliate" shall mean, with respect to any specified
Person, any other Person controlling or controlled by or under common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall mean this Amended and Restated Limited
Liability Company Agreement of the Company.
"Bankruptcy" shall mean, 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 proceedings, (iv) files a petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment,
liquidation 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, (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 (vii) if one hundred and twenty (120) days after
the commencement of any proceeding against the Person seeking
reorganization, arrangement, composition, readjustment, liquidation or
similar relief under any statute, law or regulation, the proceeding has not
been dismissed, or if within ninety (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 if within ninety (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" shall mean this Agreement, the
Certificate of Formation, the Indenture, the Sale Agreement, any Bill of
Sale, the Servicing Agreement, the Administration Agreement, the
Underwriting Agreement.
"Bill of Sale" shall mean the bill of sale, issued by
Consumers to the Company as of [ ], 2001, pursuant to the Sale Agreement,
together with any other bill of sale delivered in accordance therewith.
"Bonds" shall have the meaning set forth in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banks are authorized or required by law to be
closed in New York City, New York, Jackson, Michigan or, with respect to
any payments on any Bonds listed on the Luxembourg Stock Exchange, in
Luxembourg.
"Certificate of Formation" shall mean the Certificate of
Formation of the Company as filed in accordance with the Act with the
Secretary of State of the State of Delaware on October 11, 2000, as amended
and restated and filed with the Secretary of State of the State of Delaware
on [ ], 2001.
"Code" shall mean the Internal Revenue Code of 1986, as
amended (or any successor law).
"Common Interest" shall mean the limited liability
company interest of the Member in the Company as described in Article VI.
The Company shall have one class of Common Interest.
"Company" shall mean Consumers Funding LLC, a Delaware
limited liability company.
"Consumers" shall mean Consumers Energy Company, a
Michigan corporation.
"Customer Choice Act" shall mean the Customer Choice and
Electricity Reliability Act 2000 PA 141 and 2000 PA 142.
"Financing Order" shall mean the Opinion and Order issued
on October 24, 2000 and the Order Granting Rehearing issued on January 12,
2001 by the MPSC with respect to Consumers.
"Fiscal Year" shall mean, unless the Managers shall at
any time determine otherwise pursuant to the requirements of the Code, a
calendar year.
"GAAP" shall mean the generally accepted accounting
principles promulgated or adopted by the Financial Accounting Standards
Board and its successors from time to time.
"Governmental Authority" shall mean any federal, state,
local or foreign court or governmental department, commission, board,
bureau, agency, authority, instrumentality or regulatory body.
"Indenture" shall mean the Indenture, dated as of [ ],
2001, between the Company and the Trustee, including any Supplement thereto
creating a new Series of Bonds.
"Independent Manager" shall mean, with respect to the
Company, a Manager who is not, and within the previous five years was not
(except solely by virtue of such Person's serving as, or being an Affiliate
of any other Person serving as, an independent director or manager, as
applicable, of Consumers or any bankruptcy-remote special purpose entity
that is an Affiliate of Consumers or the Company), (i) a stockholder,
member, partner, director, officer, employee, Affiliate, customer,
supplier, creditor or independent contractor of, or any Person that has
received any benefit in any form whatever from (other than in such
Manager's capacity as a ratepayer or customer of Consumers in the ordinary
course of business), or any Person that has provided any service in any
form whatsoever to, or any major creditor (or any Affiliate of any major
creditor) of, the Company, Consumers, or any of their Affiliates, or (ii)
any Person owning beneficially, directly or indirectly, any outstanding
shares of common stock, any limited liability company interests or any
partnership interests, as applicable, of the Company, Consumers or any of
their Affiliates, or of any major creditor (or any Affiliate of any major
creditor) of any of the foregoing, or a stockholder, member, partner,
director, officer, employee, Affiliate, customer, supplier, creditor or
independent contractor of, or any Person that has received any benefit in
any form whatever from (other than in such Person's capacity as a ratepayer
or customer of Consumers in the ordinary course of business), or any Person
that has provided any service in any form whatever to, such beneficial
owner or any of such beneficial owner's Affiliates, or (iii) a member of
the immediate family of any person described above; provided that the
indirect or beneficial ownership of stock through a mutual fund or similar
diversified investment vehicle with respect to which the owner does not
have discretion or control over the investments held by such diversified
investment vehicle shall not preclude such owner from being an Independent
Manager. For purposes of this definition, "major creditor" shall mean a
natural person or business entity to which the Company, Consumers or any of
their Affiliates has outstanding indebtedness for borrowed money or credit
on open account in a sum sufficiently large as would reasonably be expected
to influence the judgment of the proposed Independent Manager adversely to
the interests of the Company when the interests of that Person are adverse
to those of the Company.
"Manager" shall mean any manager of the Company,
including any Independent Manager.
"Member" shall mean Consumers, in its capacity as a
member in the Company under this Agreement, or any successor thereto as a
member pursuant to Article VI; provided, however, the term "Member" shall
not include the Special Members.
"MPSC" shall mean the Michigan Public Service Commission.
"Person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership, limited
liability company, joint stock company, corporation, trust, unincorporated
organization or Governmental Authority.
"Proceeding" shall have the meaning set forth in Section
8.01(a).
"Sale Agreement" shall mean the Sale Agreement, dated as
of [ ], 2001, between Consumers, as seller, and the Company.
"Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations of the United States Securities
and Exchange Commission promulgated thereunder.
"Securitization Property" shall have the meaning assigned
to that term in the Customer Choice Act and the Financing Order.
"Series" shall mean each series of Bonds issued and
authenticated pursuant to the Indenture and a related Supplement.
"Servicing Agreement" shall mean the Securitization
Property Servicing Agreement, dated as of [ ], 2001, between the Company
and Consumers, as servicer.
"Special Member" shall mean, upon such person's admission
to the Company as a member of the Company pursuant to Section 5.05, a
person acting as Independent Manager, in such person's capacity as a member
of the Company. A "Special Member" shall have the rights and duties
expressly set forth in this Agreement.
"State" means any one of the 50 states of the United
States of America or the District of Columbia.
"Supplement" shall mean a supplement to the Indenture
complying (to the extent applicable) with the terms of Article 9 of the
Indenture.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References
herein to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other
successor Treasury Regulations.
"Trustee" shall mean the party named as such in the
Indenture until a successor replaces it in accordance with the applicable
provisions of the Indenture and thereafter means the successor serving
thereunder.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated [ ], 2001, between Consumers, the Company and Morgan
Stanley & Co. Incorporated, on behalf of itself and as representative of
the several underwriters listed therein.
SECTION 1.02 Other Definitional Provisions.
(a) Unless otherwise defined herein, all capitalized
terms herein shall have the meanings ascribed thereto in the Indenture.
(b) All terms in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other documents made or delivered pursuant hereto or thereto, accounting
terms not defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any
such certificate or other document to the extent not defined, shall have
the respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such
terms under GAAP, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder", and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; Section
references contained in this Agreement are references to Sections in this
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms.
(f) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II
Formation of the Limited Liability Company
SECTION 2.01 Formation; Filings. Pursuant to the Act and
in accordance with the further terms and provisions hereof, the Member
hereby continues the Company as a limited liability company. The
Certificate of Formation of the Company, has been executed and filed with
the Secretary of State of the State of Delaware by an authorized person
within the meaning of the Act. The Member shall execute or cause to be
executed from time to time all other instruments, certificates, notices and
documents, and shall do or cause to be done all such filing, recording,
publishing and other acts, in each case, as may be necessary or appropriate
from time to time to comply with all applicable requirements for the
formation and/or operation and, when appropriate, termination of a limited
liability company in the State of Delaware and all other jurisdictions
where the Company shall desire to conduct its business.
SECTION 2.02 Name and Office.
(a) The name of the Company shall be "Consumers Funding
LLC." All business of the Company shall be conducted in such name and all
contracts, property and other assets of the Company shall be held in that
name and the Member shall not have any ownership interests in such
contracts, property or other assets in its individual name.
(b) The address of the registered office of the Company
in the State of Delaware is the Corporation Trust Center, 1209 Orange
Street in the city of Wilmington, County of New Castle, 19801. The name of
its registered agent at that address is CT Corporation.
(c) The Company may also have offices at such other
places both within and without the State of Delaware as the Member may from
time to time determine.
SECTION 2.03 Business Purpose. The nature of the business
or purpose to be conducted or promoted by the Company is to engage
exclusively in the following business and financial activities:
(a) to authorize, issue, sell and deliver one or more Series
or classes of securitization bonds ("Bonds") under the
Indenture and, in connection therewith, to execute and
deliver Supplements, including Supplements providing for
the issuance of additional Series of Bonds, each as
permitted by and in accordance with the terms of the
Indenture;
(b) to purchase and hold Securitization Property and pledge
the same to the Trustee pursuant to the terms and
conditions of the Basic Documents;
(c) to negotiate, authorize, execute, deliver, assume the
obligations under, and perform, the Basic Documents and
any other agreement or instrument or document relating to
the activities set forth in clauses (a) and (b) above,
including but not limited to agreements with third-party
credit enhancers and [additional] swap or hedge agreement
counterparties relating to any Series of Bonds; provided,
that each party to any agreement with the Company shall
covenant that it shall not, prior to the date which is
one year and one day after the termination of the
Indenture and the payment in full of any Series of the
Bonds and any other amounts owed under the Indenture,
including, without limitation, any amounts owed to
third-party credit enhancers, and any amounts owed under
any hedge or swap agreement, acquiesce, petition or
otherwise invoke or cause the Company to invoke the
process of any court or government authority for the
purpose of commencing or sustaining a case against the
Company under any federal or State bankruptcy, insolvency
or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other
similar official of the Company or any substantial part
of the property of the Company; or ordering the winding
up or liquidation of the affairs of the Company; and
provided, further, that the Company shall be permitted to
incur additional indebtedness or other liabilities
payable to service providers and trade creditors in the
ordinary course of business in connection with the
foregoing activities; and
(d) to engage in any activity and to exercise any powers
permitted to limited liability companies under the laws
of the State of Delaware that are related or incidental
to the foregoing and necessary, convenient or advisable
to accomplish the foregoing.
SECTION 2.04 Term. The term of the Company shall continue
until the Company is dissolved and liquidated in accordance with the Act,
subject to Sections 6.03 and 9.05. The existence of the Company as a
separate legal entity shall continue until the cancellation of the
Certificate of Formation in accordance with the Act.
SECTION 2.05 No State Law Partnership. The Member and the
Special Members intend that the Company shall not be a partnership
(including, without limitation, a general partnership or a limited
partnership) or joint venture, and that neither the Member, any Special
Member nor any Manager shall be a partner or joint venturer of the Member,
any Special Member or any Manager with respect to the business of the
Company for any purposes, and this Agreement shall not be construed to
suggest otherwise.
SECTION 2.06 Authority of Member. Subject to Section
3.04, the Member, acting in such capacity, shall have the authority or
power 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, debts, liabilities or
obligations on behalf of the Company.
SECTION 2.07 Liability to Third Parties. Except as
otherwise expressly provided by the Act, neither the Member, any Special
Member nor any Manager shall be liable for the debts, obligations or
liabilities of the Company (whether arising in contract, tort or
otherwise), including, without limitation, under a judgment, decree or
order of a court, by reason of being the Member or acting as a Special
Member or Manager of the Company.
SECTION 2.08 No Personal Liability of any Member, Special
Member, Manager, Etc. (a) Neither the Member nor any Special Member shall
be subject in such capacity to any personal liability whatsoever to any
Person in connection with the assets or the acts, obligations or affairs of
the Company, (b) the Member and each Special Member shall have the same
limitation of personal liability as is extended to stockholders of a
private corporation for profit incorporated under the General Corporation
Law of the State of Delaware, and (c) no Manager or officer of the Company
shall be subject in such capacity to any personal liability whatsoever to
any Person, other than the Company or its Member, in connection with the
assets or the affairs of the Company; and, subject to the provisions of
Article VIII, all such Persons shall look solely to the assets of the
Company for satisfaction of claims of any nature arising in connection with
the affairs of the Company; provided, that such protection from personal
liability shall apply to the fullest extent permitted by applicable law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide greater or broader indemnification rights than such law permitted
the Company to provide prior to such amendment).
SECTION 2.09 Separateness.
(a) Except as provided in the Basic Documents, the funds
and other assets of the Company shall not be commingled with those of any
other entity, and the Company shall maintain its accounts separate from the
Member and any other Person.
(b) The Company shall not hold itself out as being liable
for the debts of any other entity, and shall conduct its own business in
its own name.
(c) The Company shall not form, or cause to be formed,
any subsidiaries.
(d) The Company shall act solely in its limited liability
company name and through its duly authorized Member, Special Members,
Managers, officers or agents in the conduct of its business, and shall
conduct its business so as not to mislead others as to the identity of the
entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of
account and financial statements, and shall not commingle its records and
books of account with the records and books of account of any other entity
or the Member.
(f) The Managers shall hold appropriate meetings to
authorize all of its limited liability company actions, which meetings may
be held by telephone conference call. The Company shall observe all
formalities required by this Agreement.
(g) The Company shall at all times ensure that its
capitalization is adequate in light of its business and purpose.
(h) Neither the Member, any Special Member nor any
Manager shall guarantee, become liable on or hold itself out as being
liable for the debts of the Company. The Company shall not guarantee or
become obligated for the debts of the Member, any Special Member or any
Manager, any Affiliate thereof or any other Person, or otherwise hold out
its credit as being available to satisfy the obligations of the Member, any
Special Member, any Manager or any other Person, shall not pledge its
assets for the benefit of any entity other than the Trustee, shall not make
loans or advances to any Person, and shall not acquire obligations or
securities of the Member, any Special Member, any Manager or any Affiliate
thereof.
(i) The Company shall pay its own liabilities out of its
own funds, including fees and expenses of the Administrator pursuant to the
Administration Agreement and the Servicer pursuant to the Servicing
Agreement.
(j) The Company shall maintain an arm's-length
relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably any
overhead for office space shared with the Member, any Special Member or any
Manager.
(l) The Company shall use its own separate stationery,
invoices, checks and other business forms.
(m) The Company shall correct any known misunderstanding
regarding its separate identity.
Failure of the Company, the Member, any Special Member or
any Manager on behalf of the Company to comply with any of the foregoing
covenants or any of the covenants contained in this Agreement shall not
affect the status of the Company as a separate legal entity or the limited
liability of the Member, any Special Member or any Manager.
SECTION 2.10 Limited Liability and Bankruptcy Remoteness.
Without limiting the generality of Section 2.09, the Company shall be
operated in such a manner as the Managers deem reasonable and necessary or
appropriate to preserve (a) the limited liability of Consumers (or its
successor) as the Member in the Company and the limited liability of the
Special Members, (b) the separateness of the Company from the business of
Consumers (or its successor), as the Member of the Company, or any other
Affiliate thereof and (c) until the expiration of the period of one year
and one day specified in Section 9.05, the bankruptcy-remote status of the
Company.
ARTICLE III
Management
SECTION 3.01 Management by Managers. The powers of the
Company shall be exercised by or under the authority of, and the business
and affairs of the Company shall be managed under the direction of, the
Managers.
SECTION 3.02 Acts by Managers.
(a) The Managers shall be obliged to devote only as much
of their time to the Company's business as shall be reasonably required in
light of the Company's business and objectives. A Manager shall perform his
or her duties as a Manager in good faith, in a manner he or she reasonably
believes to be in the best interests of the Company, and with such care as
an ordinarily prudent person in a like position would use under similar
circumstances.
(b) Every Manager is an agent of the Company for the
purpose of its business, and the act of every Manager, including the
execution in the name of the Company of any instrument for carrying on the
business of the Company, binds the Company, unless such act is in
contravention of this Agreement or unless the Manager so acting otherwise
lacks the authority to act for the Company and the person with whom he or
she is dealing has knowledge of the fact that he or she has no such
authority.
(c) The Managers shall have the right and authority to
take all actions which the Managers deem necessary, useful or appropriate
for the day-to-day management and conduct of the Company's business.
(d) The Managers may exercise all powers of the Company
and do all such lawful acts and things as are not by the Act, other
applicable law or this Agreement directed or required to be exercised or
done by the Member. All instruments, contracts, agreements and documents
providing for the acquisition or disposition of property of the Company
shall be valid and binding on the Company if executed by one or more of the
Managers. All instruments, contracts, agreements and documents of
whatsoever type executed on behalf of the Company shall be executed in the
name of the Company by one or more Managers.
SECTION 3.03 Number and Qualifications. The number of
Managers of the Company shall not be less than three nor more than five, as
may be determined by the Member from time to time, but no decrease in the
number of Managers shall have the effect of shortening the term of any
incumbent Manager.
SECTION 3.04 Independent Managers.
(a) The Company shall have at all times at least two
individuals who are each Independent Managers. The Independent Managers may
not delegate their duties, authorities or responsibilities hereunder. If
any Independent Manager resigns, dies or becomes incapacitated, or such
position is otherwise vacant, no action requiring the unanimous affirmative
vote of the Managers shall be taken until a successor Independent Manager
is appointed by the Member and qualifies and approves such action.
(b) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers the Company, the
Member, any Special Member, any Manager or any other Person, the Company
shall not, and neither the Member nor any Special Member, Manager nor any
other Person on behalf of the Company shall, without the prior unanimous
consent of the Managers, including each of the Independent Managers, do any
of the following: (i) engage in any business or activity other than those
set forth in Article II; (ii) except as provided in the Basic Documents,
incur any indebtedness, other than the Bonds, obligations under agreements
with third party credit enhancers and hedge or swap agreement
counterparties relating to any Series of Bonds and ordinary course expenses
as set forth in Article II, or assume or guarantee any indebtedness of any
other entity; (iii) make a general assignment for the benefit of creditors;
(iv) file a petition commencing a voluntary bankruptcy case; (v) file a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation; (vi) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it
in any proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, or the entry of any order appointing a trustee,
liquidator or receiver of it or of its assets or any substantial portion
thereof; (vii) seek, consent to or acquiesce in the appointment of a
trustee, receiver or liquidator of it or of all or any substantial part of
its assets; (viii) consolidate or merge with or into any other entity or
convey or transfer substantially all of its properties and assets
substantially as an entirety to any entity, or (ix) amend this Agreement or
take action in furtherance of any such action. With regard to any action
contemplated by the preceding sentence, or with regard to any action taken
or determination made at any time when the Company is insolvent, each
Manager will, to the fullest extent permitted by law, owe its primary
fiduciary duty to the Company (including the creditors of the Company).
SECTION 3.05 Appointment and Vacancy. The Member will
appoint each Manager, including any Manager to be appointed by reason of an
increase in the number of Managers.
SECTION 3.06 Term. Each Manager shall hold office until
his or her successor shall be selected by the Member and qualified, or
until his or her earlier death, resignation or removal as provided in this
Agreement.
SECTION 3.07 Removal. Subject to Section 3.04(a) and
Section 3.15 of this Agreement, the Member may remove, with or without
cause, any Manager.
SECTION 3.08 Resignation. Any Manager may resign at any
time. Such resignation shall be made in writing and shall take effect at
the time specified therein or, if no time is specified therein, at the time
of its receipt by the remaining Managers; provided that the resignation of
an Independent Manager shall not be effective until a replacement
Independent Manager has been appointed. The acceptance of a resignation
shall not be necessary to make it effective, unless so expressly provided
in the resignation.
SECTION 3.09 Place of Meetings of Managers. Any meetings
of the Managers may be held either within or without the State of Delaware
at such place or places as shall be determined from time to time by
resolution of the Managers.
SECTION 3.10 Meetings of Managers. Meetings of the
Managers may be held when called by any Managers or Manager. The Manager or
Managers calling any meeting shall cause notice to be given of such
meeting, including therein the time, date and place of such meeting, to
each Manager at least two Business Days before such meeting. The business
to be transacted at, or the purpose of, any meeting of the Managers shall
be specified in the notice or waiver of notice of any such meeting. If
fewer than all of the Managers are present in person, by telephone or by
proxy, business transacted at any such meeting shall be confined to the
business or purposes specifically stated in the notice or waiver of notice
of such meeting.
SECTION 3.11 Quorum; Majority Vote. At all meetings of
the Managers, the presence in person, by telephone or by proxy of a
majority of the Managers shall be necessary and sufficient to constitute a
quorum for the transaction of business unless a greater number is required
by this Agreement or by law. The act of a majority of the Managers present
in person, by telephone or by proxy at a meeting at which a quorum is
present in person, by telephone or by proxy shall be the act of the
Managers, except as otherwise provided by law or this Agreement. If a
quorum shall not be present in person, by telephone or by proxy at any
meeting of the Managers, the Managers present in person, by telephone or by
proxy at the meeting may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present in person, by telephone or by proxy.
SECTION 3.12 Methods of Voting; Proxies. A Manager may
vote either in person, by telephone or by proxy executed in writing by the
Manager; provided that the Person designated to act as proxy for an
Independent Manager must be an Independent Manager.
SECTION 3.13 Actions Without a Meeting. Any action
required or permitted to be taken at a meeting of the Managers may be taken
without a meeting, without prior notice, and without a vote, if a consent
in writing, setting forth the action so taken, is signed by the Managers
having not fewer than the minimum number of votes that would be necessary
to take the action at a meeting at which all Managers entitled to vote on
the action were present and voted. Copies of any such consents shall be
filed with the minutes and permanent records of the Company.
SECTION 3.14 Telephone and Similar Meetings. The
Managers, or members of any committee thereof, may participate in and hold
meetings by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other. Such participation in any such meeting shall constitute
presence in person at such meeting, except where a Person participates in
such meeting for the express purpose of objecting to the transaction of any
business on the ground that such meeting is not lawfully called or
convened.
SECTION 3.15 Managers. The Member and each Manager shall
take all actions necessary from time to time to ensure that at all times
the number of Managers shall be not less than three nor more than five;
provided, however, that pursuant to Section 3.04, the Company shall at all
times have at least two Independent Managers. The Managers upon the
execution of this Agreement shall be [ ], [ ], [ ], [ ] (who will serve as
an Independent Manager) and [ ] (who will serve as an Independent Manager).
ARTICLE IV
Officers
SECTION 4.01 Designation; Term; Qualifications. The
Managers may, from time to time, designate one or more Persons to be
officers of the Company. Any officer so designated shall have such title
and authority and perform such duties as the Managers may, from time to
time, delegate to them. Each officer shall hold office for the term for
which such officer is designated and until his or her successor shall be
duly designated and shall qualify or until his or her death, resignation or
removal as provided in this Agreement. Any Person may hold any number of
offices. No officer need be a Manager, the Member, a Delaware resident, or
a United States citizen. The persons identified on Schedule D are hereby
designated the initial officers of the Company.
SECTION 4.02 Removal and Resignation. Any officer of the
Company may be removed as such, with or without cause, by the Managers at
any time. Any officer of the Company may resign as such at any time upon
written notice to the Company. Such resignation shall be made in writing
and shall take effect at the time specified therein or, if no time is
specified therein, at the time of its receipt by the Managers.
SECTION 4.03 Vacancies. Any vacancy occurring in any
office of the Company may be filled by the Managers.
SECTION 4.04 Compensation. The compensation, if any, of
the officers of the Company shall be fixed from time to time by the
Managers.
ARTICLE V
Member
SECTION 5.01 Powers. Subject to the provisions of this
Agreement and the Act, all powers shall be exercised by or under the
authority of, and the business and affairs of the Company shall be
controlled by, the Member pursuant to Section 5.03. Pursuant to Section
3.01, the Member has delegated such powers to the Managers. Without
prejudice to such general powers, but subject to the same limitations, it
is hereby expressly declared that the Member shall have the following
powers, subject to Section 3.04 in all cases:
First: To select and remove the Managers and prescribe
such powers and duties for them as may be consistent with the Act
and other applicable law and this Agreement.
Second: To conduct, manage and control the affairs and
business of the Company, and to make such rules and regulations
therefor consistent with the Act and other applicable law and this
Agreement.
Third: To change the registered office of the Company in
Delaware from one location to another; to fix and locate from time
to time one or more other offices of the Company; and to designate
any place within or without the State of Delaware for the conduct
of the business of the Company.
SECTION 5.02 Compensation of Member. The Company shall
have authority to pay to the Member reasonable compensation for the
Member's services to the Company. It is understood that the compensation
paid to the Member under the provisions of this Section shall be determined
without regard to the income of the Company, shall not be deemed to
constitute distributions to the recipient of any profit, loss or capital of
the Company and shall be considered as an operating expense of the Company.
SECTION 5.03 Actions by the Member. All actions of the
Member may be taken by written resolution of the Member which shall be
signed on behalf of the Member by an authorized officer of the Member and
filed with the minutes and permanent records of the Company.
SECTION 5.04 Control by Member. To the extent the Member
takes any action with respect to the Company (including by means of its
appointment of any individual Manager or its control or employment of any
individual Manager in any other capacity), the Member, or any such Manager,
as applicable, will act in good faith in accordance with the terms of this
Agreement, and make decisions with respect to the business and daily
operations of the Company independent of, and not dictated by, in the case
of any such Manager, the Member, or in either case any Affiliate of the
foregoing, and, to the fullest extent permitted by law, any such Manager
shall bear a fiduciary duty to the Company (including its creditors) under
the circumstances set forth in Section 3.04.
SECTION 5.05 Special Member. Upon the occurrence of any
event that causes the Member to cease to be a member of the Company, each
person acting as an Independent Manager pursuant to Section 3.04 shall,
without any action of any Person and simultaneously with the Member ceasing
to be a member of the Company, automatically be admitted to the Company as
a special member (a "Special Member") and shall continue the Company
without dissolution. No Special Member may resign from the Company or
transfer its rights as Special Member unless (a) a successor Special Member
has been admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (b) such successor has also accepted its
appointment as Independent Manager, provided, however, the Special Members
shall automatically cease to be members of the Company upon the admission
to the Company of a substitute Member. Each Special Member shall be a
member of the Company that has no interest in the profits, losses and
capital of the Company and has no right to receive any distributions of
Company assets. Pursuant to Section 18-301 of the Act, a Special Member
shall not be required to make any capital contributions to the Company and
shall not receive a limited liability company interest in the Company. A
Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, each
Special Member, in its capacity as Special Member, shall have no right to
vote on, approve or otherwise consent to any action by, or matter relating
to, the Company, including, without limitation, the merger, consolidation
or conversion of the Company. In order to implement the admission to the
Company of each Special Member pursuant to this Section 5.05, each person
acting as an Independent Manager pursuant to Section 3.04 shall execute a
counterpart to this Agreement. Prior to its admission to the Company as
Special Member, each person acting as an Independent Manager pursuant to
Section 3.04 shall not be a member of the Company.
ARTICLE VI
Common Interest
SECTION 6.01 General. The Common Interest constitutes
personal property and shall be freely transferable and assignable in whole
but not in part upon registration of such transfer and assignment on the
books of the Company in accordance with the procedures established for such
purpose by the Managers of the Company. Upon registration of the transfer
and assignment of the Common Interest on the books of the Company, the
transferee/assignee shall be and become the sole Member of the Company and
shall have the rights and powers, and be subject to the restrictions and
liabilities, of the Member under this Agreement and the Act, and the
transferor/assignor shall cease to be the Member, each as of the date of
such registration. Notwithstanding the foregoing, the Common Interest may
not be transferred unless each Rating Agency (as defined in the Indenture)
then rating the Bonds of any Class or Series shall have confirmed in
writing to the Trustee and the Company that such transfer will not result
in a reduction or withdrawal of the then current rating by any such Rating
Agency of any outstanding Series of Bonds. The Common Interest of the
Member in the Company shall be evidenced by a certificate in the form set
forth in Schedule B hereto.
SECTION 6.02 Distributions. The Member shall be entitled
to receive, out of the assets of the Company legally available therefor,
when, as and if declared by the Managers, distributions payable in cash in
such amounts, if any, as the Managers shall declare. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall
not be required to make a distribution to the 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 Basic Document.
SECTION 6.03 Rights on Liquidation, Dissolution or
Winding Up.
(a) In the event of any liquidation, dissolution or
winding up of the Company, the Member shall be entitled to all remaining
assets of the Company available for distribution to the Member after
payment of all liabilities, debts and obligations of the Company to
creditors, as set forth in Section 18-804 of the Act.
(b) Neither the sale of all or substantially all of the
property or business of the Company, nor the merger or consolidation of the
Company into or with another Company or other entity, shall be deemed to be
a dissolution, liquidation or winding up, voluntary or involuntary, for the
purpose of this Section 6.03.
(c) The commencement of a bankruptcy, insolvency,
receivership or other similar proceeding by or against the Company, any
Special Member or the Member shall not result in the dissolution of the
Company or in the cessation of the interest of the Member in the Company.
The withdrawal or resignation of the Member or any Special Member or the
dissolution of the Member or any Special Member shall not, by itself,
constitute a dissolution of the Company.
(d) Subject to Section 5.05, upon the occurrence of any
event that causes the last remaining member of the Company to cease to be a
member of the Company, to the fullest extent permitted by law, the personal
representative of such member is hereby authorized to, and shall, within
ninety (90) days after the occurrence of the event that terminated the
continued membership of such member in the Company, agree in writing (i) to
continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a
substitute member of the Company, effective as of the occurrence of the
event that terminated the continued membership of the last remaining member
of the Company in the Company.
(e) Notwithstanding any other provision of this
Agreement, the bankruptcy of the Member or any Special Member shall not
cause the Member or Special Member, respectively, 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.
SECTION 6.04 Redemption. The Common Interest shall not be
redeemable.
SECTION 6.05 Voting Rights. The Member shall have the
sole right to vote on all matters as to which members of a limited
liability company shall be entitled to vote pursuant to the Act and other
applicable law.
ARTICLE VII
Allocations; Distributions; Expenses;
Taxes; Books; Records; and Bank Accounts
SECTION 7.01 Allocations. Except as may be required by
section 704(c) of the Code and Treasury Regulation ss.1.704-1(b)(2)(iv)(f)(4),
all items of income, gain, loss, deduction, and credit of the Company for
each Fiscal Year shall be allocated to the Member. Any credit available for
federal income tax purposes shall be allocated to the Member in the same
manner.
SECTION 7.02 Distributions. All distributions shall be
made to the Member from surplus funds. Except as provided in Section 7.03,
all distributions shall be made in such amounts and at such times as
determined by the Managers.
SECTION 7.03 Limitation Upon Distributions. No
distribution shall be declared and paid unless, after the distribution is
made, the fair value of the Company assets is in excess of all liabilities
of the Company and no default has occurred and is continuing under the
Indenture or any Series of Bonds then outstanding.
SECTION 7.04 Expenses. Except as otherwise provided in
this Agreement, and subject to the provisions of the Basic Documents, the
Company shall be responsible for all expenses and the allocation thereof
including without limitation:
(a) all expenses incurred by the Member or its
Affiliates in organizing the Company;
(b) all expenses related to the payment of the
principal of and interest on the Bonds issued by
the Company;
(c) all expenses related to the business of the
Company and all routine administrative expenses
of the Company, including any amounts payable
under the Administration Agreement and the
Servicing Agreement, the maintenance of books
and records of the Company, and the preparation
and dispatch to the Member of checks, financial
reports, tax returns and notices required
pursuant to this Agreement;
(d) all expenses incurred in connection with any
litigation or arbitration involving the Company
(including the cost of any investigation and
preparation) and the amount of any judgment or
settlement paid in connection therewith;
(e) all expenses for indemnity or contribution
payable by the Company to any person;
(f) all expenses incurred in connection with the
collection of amounts due to the Company from
any person;
(g) all expenses incurred in connection with the
preparation of amendments to this Agreement;
(h) all expenses incurred in connection with the
liquidation, dissolution and winding up of the
Company; and
(i) all expenses otherwise allocated in good faith
to the Company by the Managers.
SECTION 7.05 Tax Elections. The Managers shall make the
following elections on behalf of the Company:
(a) To elect the calendar year as the Company's Fiscal
Year;
(b) To elect the accrual method of accounting;
(c) To elect to treat all organization and start-up costs
of the Company as deferred expenses amortizable over sixty (60) months
under Section 195 of the Code; and
(d) To elect with respect to such other federal, state
and local tax matters as the Managers shall agree upon from time to time.
SECTION 7.06 Annual Tax Information. The Managers shall
cause the Company to deliver to the Member all information necessary for
the preparation of the Member's federal or state income tax return.
SECTION 7.07 Tax Matters Member. The Member shall
communicate and negotiate with the Internal Revenue Service on any tax
matter on behalf of the Member and the Company.
SECTION 7.08 Maintenance of Books. The Company shall keep
books and records of accounts and shall keep minutes of the proceedings of
the Member, the Managers and each committee of the Managers. The Fiscal
Year shall be the accounting year of the Company.
SECTION 7.09 Reports. Within sixty (60) days following
the end of each Fiscal Year during the term of the Company, the Managers
shall cause to be furnished to the Member a balance sheet, an income
statement and a statement of changes in Member's capital account for, or as
of the end of, that Fiscal Year. Such financial statements shall be
prepared in accordance with the accounting method selected by the Managers
consistently applied (except as therein noted), and shall be accompanied by
an audit report from a nationally recognized accounting firm. The Managers
also may cause to be prepared or delivered such other reports as they may
deem appropriate. The Company shall bear the costs of all such financial
statements and reports.
SECTION 7.10 Bank and Investment Accounts. The Managers
shall establish and maintain one or more separate bank and investment
accounts and arrangements for Company funds in the Company name with such
financial institutions and firms as the Managers determine.
ARTICLE VIII
Indemnification
SECTION 8.01 Mandatory Indemnification of the Member, the
Special Members, and the Managers. Any Person who was or is a party or is
threatened to be made a party to, or is involved in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (hereafter a "Proceeding"), or
any appeal in such a Proceeding or any inquiry or investigation that could
lead to such a Proceeding, by reason of the fact that such Person is or was
the Member, a Special Member or a Manager, or by reason of the fact that
the Member, such Special Member or such Manager is or was serving at the
request of the Company as a member, director, manager, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, limited liability company,
partnership, joint venture, partnership, trust, sole proprietorship,
employee benefit plan or other enterprise, shall be indemnified by the
Company to the fullest extent permitted by applicable law, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide
greater or broader indemnification rights than such law permitted the
Company to provide prior to such amendment) against judgments, penalties
(including, without limitation, excise and similar taxes and punitive
damages), fines, settlements and reasonable expenses (including, without
limitation, attorneys' fees) actually incurred by such Person in connection
with such Proceeding. It is expressly acknowledged that the indemnification
provided in this Article VIII could involve indemnification for negligence
or under theories of strict liability. Notwithstanding anything herein to
the contrary, for so long as any Bonds are outstanding, no payment from
funds of the Company (as distinct from funds from other sources, such as
insurance) of any indemnity under this Article VIII shall be payable except
out of funds available for payment of Company expenses as provided in the
Indenture.
SECTION 8.02 Mandatory Advancement of Expenses. Expenses
incurred by a Person of the type entitled to be indemnified under Section
8.01 in defending any Proceeding shall be paid or reimbursed by the Company
in advance of the final disposition of the Proceeding, without any
determination as to such Person's ultimate entitlement to indemnification
under Section 8.01, upon receipt of a written affirmation by such Person of
such Person's good faith belief that such Person has met the standard of
conduct necessary for indemnification under applicable law and a written
undertaking by or on behalf of such Person to repay all amounts so advanced
if it shall ultimately be determined that such Person is not entitled to be
indemnified by the Company as authorized in Section 8.01 or otherwise. The
written undertaking shall be an unlimited general obligation of the Person
but need not be secured and shall be accepted without reference to
financial ability to make repayment.
SECTION 8.03 Indemnification of Officers, Employees and
Agents. The Company shall indemnify and pay and advance expenses to an
officer, employee or agent of the Company to the same extent and subject to
the same conditions under which it may indemnify and pay and advance
expenses to the Member, any Special Member or any Manager under this
Article VIII; and the Company shall indemnify and pay and advance expenses
to any Person who is or was an officer, employee or agent of the Company
and who is or was serving at the request of the Company as a member,
manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic
limited liability company, partnership, corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other
enterprise against any liability asserted against such Person and incurred
by such Person in such a capacity or arising out of such Person's status as
such to the same extent and subject to the same conditions that the Company
may indemnify and pay and advance expenses to the Member, any Special
Member or any Manager under this Article VIII.
SECTION 8.04 Nonexclusivity of Rights. The
indemnification and advancement and payment of expenses provided by this
Article VIII (a) shall not be deemed exclusive of any other rights to which
the Member, a Special Member, a Manager or other Person seeking
indemnification may be entitled under any statute, agreement, decision of
the Member or disinterested Managers, or otherwise both as to action in
such Person's official capacity and as to action in another capacity while
holding such office, (b) shall continue as to any Person who has ceased to
serve in the capacity which initially entitled such Person to indemnity and
advancement and payment of expenses, and (c) shall inure to the benefit of
the heirs, executors, administrators, successors and assigns of the Member,
such Special Member, such Manager or such other Person.
SECTION 8.05 Contract Rights. The rights granted pursuant
to this Article VIII shall be deemed to be contract rights, and no
amendment, modification or repeal of this Article VIII shall have the
effect of limiting or denying any such rights with respect to actions taken
or Proceedings arising prior to any such amendment, modification or repeal.
SECTION 8.06 Insurance. The Company may purchase and
maintain insurance or other arrangement or both, at its expense, on behalf
of itself or any Person who is or was serving as the Member, a Special
Member or a Manager, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a member, manager, director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic limited liability company,
partnership, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, against any liability,
expense or loss, whether or not the Company would have the power to
indemnify such Person against such liability under the provisions of this
Article VIII.
SECTION 8.07 Savings Clause. If this Article VIII or any
portion of this Agreement shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
and hold harmless the Member, each Special Member, each Manager or any
other Person indemnified pursuant to this Article VIII as to costs, charges
and expenses (including, without limitation, attorneys' fees), judgments,
fines and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to
the fullest extent permitted by any applicable portion of this Article VIII
that shall not have been invalidated and to the fullest extent permitted by
applicable law.
SECTION 8.08 Other Ventures. It is expressly agreed that
the Member, any Special Member, any Manager and any Affiliates, officers,
directors, managers, stockholders, partners or employees of the Member, any
Special Member or any Manager, may engage in other business ventures of
every nature and description, whether or not in competition with the
Company, independently or with others, and the Company shall not have any
rights in and to any independent venture or activity or the income or
profits derived therefrom.
SECTION 8.09 Other Arrangements Not Excluded. The
indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this Article VIII:
(a) Does not exclude any other rights to which a
Person seeking indemnification or advancement of
expenses may be entitled under any agreement,
decision of the Member or otherwise, for either
an action of the Member, any Special Member or
any Manager, officer, employee or agent in the
official capacity of such Person or an action in
another capacity while holding such position,
except that indemnification, unless ordered by a
court, may not be made to or on behalf of the
Member, any Special Member or any Manager if a
final adjudication established that its acts or
omissions involved intentional misconduct, fraud
or a knowing violation of the law and was
material to the cause of action; and
(b) Continues for a person who has ceased to be the
Member, a Special Member or a Manager, officer,
employee or agent and inures to the benefit of
the successors, heirs, executors and
administrators of such a person.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01 Offset. Whenever the Company is to pay any
sum to the Member, any amounts the Member owes the Company may be deducted
from such sum before payment.
SECTION 9.02 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 shall be in writing and
shall be given either by depositing such writing in the United States mail,
addressed to the recipient, postage paid, and registered or certified with
return receipt requested or by delivering such writing to the recipient in
person, by reputable overnight courier, or by facsimile transmission; and a
notice, request or consent given under this Agreement shall be effective on
receipt by the Person to whom sent. All notices, requests, and consents to
be sent to the Member shall be sent to or made to 212 W. Michigan Avenue,
Jackson, Michigan 49201, Attention: Treasurer or such other address as the
Member may specify by notice to the Company and the Managers. Any notice,
request, or consent to the Company or the Managers must be given to the
Managers at the following address: 212 W. Michigan Avenue, Suite M-1029,
Jackson, Michigan 49201, Attention: Managers. Whenever any notice is
required to be given by law 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.
SECTION 9.03 Effect of Waiver or Consent. A waiver or
consent, express or implied, to or of any breach or default by any Person
in the performance by such Person of its obligations with respect to the
Company shall not be a consent or waiver to or of any other breach or
default in the performance by such Person of the same or any other
obligations of such Person with respect to the Company.
SECTION 9.04 Governing Law; Severability. THIS AGREEMENT
SHALL BE 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 provision of the Act,
then the applicable provision of the Act shall control. If any provision of
this Agreement or the application thereof to any Person or circumstance is
held invalid or unenforceable to any extent, the remainder of this
Agreement and the application of that provision to other Persons or
circumstances shall not be affected thereby and such provision shall be
enforced to the fullest extent permitted by law.
SECTION 9.05 No Bankruptcy Petition; No Dissolution. (a)
The Member, each Special Member and each Manager hereby covenants and
agrees (or shall be deemed to have hereby covenanted and agreed) that,
prior to the date which is one year and one day after the termination of
the Indenture and the payment in full of any Series of the Bonds, any other
amounts owed under the Indenture, including, without limitation, any
amounts owed to third-party credit enhancers, and any amounts owed under
any hedge or swap agreement, the Member, such Special Member and such
Manager will acquiesce, petition or otherwise invoke or cause the Company
to invoke the process of any court or government authority for the purpose
of commencing or sustaining a case against the Company under any federal or
State bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Company or any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of the
Company; provided, however, that nothing in this Section 9.05 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from the Company pursuant to this Agreement.
(b) To the fullest extent permitted by law, the Member,
each Special Member and each Manager hereby covenants and agrees (or shall
be deemed to have hereby covenanted and agreed) that, until the termination
of the Indenture and the payment in full of any Series of the Bonds, any
other amounts owed under the Indenture, including without limitation, any
amounts owed to third-party credit enhancers, and any amounts owed under
any hedge or swap agreement, the Member, such Special Member and such
Manager will not consent to, or make application for, or institute or
maintain any action for, the dissolution of the Company under Section
18-801 or 18-802 of the Act or otherwise.
(c) In the event that the Member, any Special Member or
any Manager takes action in violation of this Section 9.05, the Company
agrees that it will file an answer with the court or otherwise properly
contest the taking of such action and raise the defense that the Member,
the Special Member or the Manager, as the case may be, has agreed in
writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as its counsel advises that it
may assert.
(d) The provisions of this Section 9.05 shall survive the
termination of this Agreement and the resignation, withdrawal or removal of
the Member, any Special Member or any Manager. Nothing herein contained
shall preclude participation by the Member, any Special Member or a Manager
in assertion or defense of its claims in any such proceeding involving the
Company.
SECTION 9.06 Amendment. This Agreement may not be
amended, except in writing by the Member and the Company, upon prior
approval of the Trustee and with prior notice to the Rating Agencies (as
defined in the Indenture) and notification from each of Fitch, Inc. and
Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies,
to the Company, that such amendment will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any
outstanding series or class of Bonds.
SECTION 9.07 Headings and Sections. The headings in this
Agreement are inserted for convenience only and are in no way intended to
describe, interpret, define, or limit the scope, extent or intent of this
Agreement or any provision hereof.
SECTION 9.08 Binding Agreement. Notwithstanding any other
provision of this Agreement, the Member agrees that this Agreement
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Mangers, in accordance
with its terms. In addition, the Independent Managers shall be intended
beneficiaries of this Agreement.
IN WITNESS WHEREOF, this Agreement is hereby executed by
the undersigned as of [ ], 2001.
MEMBER:
CONSUMERS ENERGY COMPANY
By:
--------------------------------------------
Name: David A. Mikelonis
Title: Senior Vice-President and
General Counsel
COMPANY:
CONSUMERS FUNDING LLC
By:
-------------------------------------------
Name:
Title: Manager
Agreed and Consented to by the
Independent Mangers:
----------------------------------------------
----------------------------------------------
SCHEDULE A
SCHEDULE OF CAPITAL CONTRIBUTIONS OF MEMBER
COMMON INTEREST
CAPITAL COMMON INTEREST CAPITAL
MEMBER'S NAME CONTRIBUTION PERCENTAGE ACCOUNT
------------- --------------- ------------ -------
Consumers Energy 100%
Company
---------------
* [ ]% of original principal amount of the Bonds.
SCHEDULE B
CERTIFICATE OF COMMON INTEREST
of
CONSUMERS FUNDING LLC
A Limited Liability Company
Organized under the Laws of the State of Delaware
This Certificate is issued and shall be held subject to the
provisions of the Certificate of Formation of CONSUMERS FUNDING LLC, a
Limited Liability Company organized under the laws of the State of Delaware
(the "Company"), filed on October 11, 2000 with the Secretary of State of
the State of Delaware, and the Limited Liability Company Agreement dated
October 11, 2000 of the Company, as each may be amended from time to time.
This Certificate of Common Interest certifies that Consumers
Energy Company is the registered holder of the entire Common Interest of
the Company, which Common Interest shall be transferable only on the books
of the Company by the holder hereof in person or by a duly authorized
attorney upon surrender of this Certificate with a proper endorsement.
IN WITNESS WHEREOF, this Company has caused this Certificate to be
signed by one of its duly authorized Managers this __ day of _____, 2001.
----------------------------------
Title: Manager
CONSUMERS FUNDING LLC
For Value Received the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------------
the entire Common Interest of the Company represented by the within
Certificate and does hereby irrevocably constitute and appoint
-----------------------------------------------------------------------
Attorney, to transfer said Common Interest on the books of the
Company with full power of substitution in the premises.
Dated:
-----------------------
----------------------------------
SCHEDULE C
MANAGERS
Names
1) Alan M. Wright
2) David A. Mikelonis
3) Thomas A. McNish
4)
5)
SCHEDULE D
OFFICERS
Laura L. Mountcastle President, Chief Executive Officer, Chief Financial
Officer and Treasurer
Glenn P. Barba Controller
TABLE OF CONTENTS
Page
ARTICLE I
Definitions...................................................1
SECTION 1.01 Capitalized Terms..............................................................................1
SECTION 1.02 Other Definitional Provisions..................................................................7
ARTICLE II
Formation of the Limited Liability Company....................................8
SECTION 2.01 Formation; Filings.............................................................................8
SECTION 2.02 Name and Office................................................................................8
SECTION 2.03 Business Purpose...............................................................................8
SECTION 2.04 Term...........................................................................................9
SECTION 2.05 No State Law Partnership......................................................................10
SECTION 2.06 Authority of Member...........................................................................10
SECTION 2.07 Liability to Third Parties....................................................................10
SECTION 2.08 No Personal Liability of any Member, Special Member, Manager, Etc.............................10
SECTION 2.09 Separateness..................................................................................11
SECTION 2.10 Limited Liability and Bankruptcy Remoteness...................................................12
ARTICLE III
Management...................................................12
SECTION 3.01 Management by Managers........................................................................12
SECTION 3.02 Acts by Managers..............................................................................13
SECTION 3.03 Number and Qualifications.....................................................................13
SECTION 3.04 Independent Managers..........................................................................13
SECTION 3.05 Appointment and Vacancy.......................................................................14
SECTION 3.06 Term..........................................................................................14
SECTION 3.07 Removal.......................................................................................15
SECTION 3.08 Resignation...................................................................................15
SECTION 3.09 Place of Meetings of Managers.................................................................15
SECTION 3.10 Meetings of Managers..........................................................................15
SECTION 3.11 Quorum; Majority Vote.........................................................................15
SECTION 3.12 Methods of Voting; Proxies....................................................................16
SECTION 3.13 Actions Without a Meeting.....................................................................16
SECTION 3.14 Telephone and Similar Meetings................................................................16
SECTION 3.15 Managers......................................................................................16
ARTICLE IV
Officers....................................................16
SECTION 4.01 Designation; Term; Qualifications.............................................................16
SECTION 4.02 Removal and Resignation.......................................................................17
SECTION 4.03 Vacancies.....................................................................................17
SECTION 4.04 Compensation..................................................................................17
ARTICLE V
Member.....................................................17
SECTION 5.01 Powers........................................................................................17
SECTION 5.02 Compensation of Member........................................................................18
SECTION 5.03 Actions by the Member.........................................................................18
SECTION 5.04 Control by Member.............................................................................18
SECTION 5.05 Special Member................................................................................18
ARTICLE VI
Common Interest................................................19
SECTION 6.01 General.......................................................................................19
SECTION 6.02 Distributions.................................................................................19
SECTION 6.03 Rights on Liquidation, Dissolution or Winding Up..............................................20
SECTION 6.04 Redemption....................................................................................20
SECTION 6.05 Voting Rights.................................................................................21
ARTICLE VII
Allocations; Distributions; Expenses;
Taxes; Books; Records; and Bank Accounts....................................21
SECTION 7.01 Allocations...................................................................................21
SECTION 7.02 Distributions.................................................................................21
SECTION 7.03 Limitation Upon Distributions.................................................................21
SECTION 7.04 Expenses......................................................................................21
SECTION 7.05 Tax Elections.................................................................................22
SECTION 7.06 Annual Tax Information........................................................................22
SECTION 7.07 Tax Matters Member............................................................................23
SECTION 7.08 Maintenance of Books..........................................................................23
SECTION 7.09 Reports.......................................................................................23
SECTION 7.10 Bank and Investment Accounts..................................................................23
ARTICLE VIII
Indemnification................................................23
SECTION 8.01 Mandatory Indemnification of the Member,
the Special Members, and the Managers...................................................................23
SECTION 8.02 Mandatory Advancement of Expenses.............................................................24
SECTION 8.03 Indemnification of Officers, Employees and Agents.............................................24
SECTION 8.04 Nonexclusivity of Rights......................................................................25
SECTION 8.05 Contract Rights...............................................................................25
SECTION 8.06 Insurance.....................................................................................25
SECTION 8.07 Savings Clause................................................................................25
SECTION 8.08 Other Ventures................................................................................26
SECTION 8.09 Other Arrangements Not Excluded...............................................................26
ARTICLE IX
Miscellaneous Provisions............................................26
SECTION 9.01 Offset........................................................................................26
SECTION 9.02 Notices.......................................................................................27
SECTION 9.03 Effect of Waiver or Consent...................................................................27
SECTION 9.04 Governing Law; Severability...................................................................27
SECTION 9.05 No Bankruptcy Petition; No Dissolution........................................................27
SECTION 9.06 Amendment.....................................................................................28
SECTION 9.07 Headings and Sections.........................................................................29
SECTION 9.08 Binding Agreement.............................................................................29
SCHEDULE A: SCHEDULE OF CAPITAL CONTRIBUTIONS OF MEMBER.........................................................A-1
SCHEDULE B: CERTIFICATE OF COMMON INTEREST......................................................................B-1
SCHEDULE C: MANAGERS............................................................................................C-1
SCHEDULE D: OFFICERS............................................................................................D-1