EXHIBIT 4.1
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MIStS ISSUER L.L.C.
DATED AS OF SEPTEMBER 29, 1997
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
MIStS ISSUER L.L.C.
This Second Amended and Restated Limited Liability
Company Agreement of MIStS Issuer L.L.C. (the "Company") is made
as of September 29, 1997, among the Trustee (as defined below),
EEX Capital Inc., a Delaware corporation ("EEX Capital"), and UBS
Securities LLC, a Delaware limited liability company ("UBS")
acting as placement agent (the "Placement Agent") for the holders
of the Preferred Securities (as defined herein).
Recitals
A. As of August 1, 1995, EEX Capital L.L.C., a
Delaware limited liability company ("EEX LLC"), and Enserch
Preferred Capital, Inc., a Delaware Corporation ("Enserch
Preferred"), formed the Company pursuant to the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101, et seq., as
amended from time to time (the "Delaware Act"), by filing a
Certificate of Formation with the office of the Secretary of
State of the State of Delaware on August 1, 1995 and entering
into a Limited Liability Company Agreement dated as of August 1,
1995 (the "Original L.L.C. Agreement").
B. As of Xxxxxx 0, 0000, XXX LLC and Enserch
Preferred admitted Wilmington Trust Company, not in its
individual capacity, but solely as trustee (in such capacity as
trustee, together with any successors in such capacity, the
"Trustee") of the MIStS Issuer Trust I (the "Trust"), as a
preferred member.
C. In connection with the admission of the Trustee as
a preferred member, EEX LLC, Enserch Preferred and the Trustee
amended and restated the Original L.L.C. Agreement in its
entirety, dated as of August 4, 1995, (the "Amended and Restated
L.L.C. Agreement").
D. EEX LLC and Enserch Preferred have merged with
Enserch Preferred being the surviving corporation, renamed EEX
Capital.
E. EEX Capital and the Trustee desire to admit UBS to
the Company as a Preferred Member and UBS desires to become a
Preferred Member of the Company, subject to the terms and
conditions set forth herein.
F. EEX Capital, UBS and the Trustee desire to cause
the Company to redeem the Company's mandatorily redeemable
securities outstanding on the Closing Date issued August 4, 1995
(the "MIStS Securities") and terminate the Trustee's membership
in the Company.
G. EEX Capital, the Trustee and UBS desire to
continue the Company as a limited liability company under the
Delaware Act and to amend and restate the Amended and Restated
L.L.C. Agreement in its entirety.
H. Now, therefore, in consideration of the agreements
and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Members hereby agree as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1 DEFINITIONS.
The terms defined in this Article I shall, for the
purposes of this Agreement, have the meanings herein specified
and all terms defined in this Agreement in the singular have the
same meanings when used in the plural and vice versa.
"Additional Costs" shall have the meaning set forth in
the Subscription Agreement.
"Additional Dividends" shall have the meaning set forth
in Section 9.1(e) of this Agreement.
"Adjusted Capital Account" shall mean the Capital
Account established for a Member, as the same is adjusted
pursuant to Section 4.5 of this Agreement or is otherwise
specially computed to reflect the adjustments required or
permitted by the Treasury Regulations under Section 704(b) of the
Code to be taken into account in applying the second sentence of
section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
"Affiliate" shall mean with respect to any Person, any
other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Person. For purposes of the foregoing
definition, "control" means the direct or indirect ownership of
more than 50% of the outstanding capital stock or other equity
interests having ordinary voting power.
"Agreement" shall mean this Second Amended and Restated
Limited Liability Company Agreement of the Company, as amended,
modified, supplemented or restated from time to time.
"Asset Coverage Ratio" shall mean, as of any day, the
ratio of (i) the outstanding principal amount of the EEX Capital
Subordinated Note to (ii) the product of the Liquidation
Preference and the number of then issued and outstanding shares
of Preferred Interests.
"Business Day" shall mean any day other than a
Saturday, a Sunday, a federal holiday or any day on which
dealings in U.S. dollar deposits are not carried out in the
London interbank market.
"Capital Account" shall have the meaning set forth in
Section 4.5.
"Capital Lease Obligations" means, with respect to EEX
or any Subsidiary of EEX, the obligations of such Person to pay
rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a
liability for a capital lease on a balance sheet of such Person
in accordance with GAAP and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount
thereof.
"Certificate of Designations" shall mean the
certificate of designations, preferences and relative,
participating, optional and other special rights of preferred
stock and qualifications, limitations and restrictions thereof,
filed with the Secretary of State of the State of Delaware on
September 29, 1997, relating to the Preferred Stock.
"Certificate of Formation" shall mean the Certificate
of Formation of the Company, filed with the office of the
secretary of state of the State of Delaware by EEX LLC on August
1, 1995, and any and all amendments thereto and restatements
thereof filed on behalf of the Company with the office of the
secretary of state of the State of Delaware pursuant to the
Delaware Act.
"Change of Control" shall mean the acquisition by any
Person, or two or more Persons acting in concert, of beneficial
ownership (within the meaning of the Securities Act of 1934, as
amended) of 35% or more of the outstanding shares of voting stock
of EEX.
"Change of Control Offer" shall have the meaning set
forth in Section 9.4(c) below.
"Change of Control Payment" shall have the meaning set
forth in Section 9.4(c) below.
"Change of Control Payment Date" shall have the meaning
set forth in Section 9.4(c).
"Closing Date" shall mean September 29, 1996.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any corresponding federal tax
statute enacted after the date of this Agreement. A reference to
a specific section (Section) of the Code refers not only to such
specific section but also to any corresponding provision of any
federal tax statute enacted after the date of this Agreement, as
such specific section or corresponding provision is in effect on
the date of application of the provisions of this Agreement
containing such reference.
"Collection Account" shall mean the MIStS Issuer
Collection Account created pursuant to Section 4.10 of this
Agreement.
"Common Member" shall mean EEX Capital.
"Common Securities" shall mean the Interests in the
Company which represent common limited liability company
interests in the Company and are described in Section 7.1(e) of
this Agreement.
"Debt" shall mean for EEX and its Subsidiaries (except
the Company and EEX Capital) the sum of the following (without
duplication): (i) all obligations for borrowed money or
evidenced by bonds, debentures, mandatorily redeemable preferred
stock with maturities before the Revolving Credit Termination
Date (as defined in the EEX Credit Agreement), notes or other
similar instruments (excluding interest, fees and charges); (ii)
all obligations in respect of bankers' acceptances, unreimbursed
drawings on letters of credit, surety or other bonds; (iii) all
Capital Lease Obligations; (iv) all Operating Lease Obligations;
(v) all financial guaranties in respect of Indebtedness of
unconsolidated Affiliates and unrelated Persons; (vi) all
obligations secured by a Lien on any asset, whether or not such
Indebtedness is assumed, but excluding obligations secured by
Liens permitted by Sections 9.02(c), (e), (f), (h), (i), (j), (k)
and (l) of the EEX Credit Agreement; (vii) all production
payments in connection with oil and gas properties; and (viii)
all Indebtedness of Special Entities (as defined in the EEX
Credit Agreement) to the extent the Company is liable for such
Indebtedness under GAAP or such Indebtedness is reflected on the
consolidated balance sheet of EEX or any Subsidiary; provided,
however, such term shall not include Permitted Subordinated Debt.
"Distribution" shall mean any Dividend, Additional
Dividend, Liquidation Dividend or other payments, property and
distributions received by a Member from assets of the Company in
respect of its status as a member of the Company.
"Dividend" shall mean, with respect to the Preferred
Interests, any distribution due on account of yield on the
Preferred Interests under Section 9.1(c), Section 9.1(d) or
Section 9.1(e); and with respect to the Common Securities, any
amount allocated to the Common Member in excess of the amount of
its initial contribution under Section 4.1 of this Agreement plus
any subsequent contributions under Section 4.2 of this Agreement.
"Dividend Payment Date" shall mean the last Business
Day of each March, June, September and December in each year, the
first of which shall be December 31, 1997.
"Dividend Period" shall mean the period from, and
including, the Closing Date to, but not including, the first
Dividend Date and thereafter, each period from, and including,
the preceding Dividend Payment Date to, but not including the
next Dividend Payment Date.
"Dollar" or "$" shall mean lawful money of the United
States of America.
"EEX" shall mean Enserch Exploration, Inc., a Texas
corporation.
"EEX Capital Subordinated Note" shall mean the
subordinated promissory note made by EEX Capital in favor of the
Company, reevidencing $75.0 million of Indebtedness, dated as of
September 29, 1997.
"EEX Capital Subordination Agreement" shall mean the
subordination agreement dated as of September 29, 1997 issued by
the Company in favor of the administrative agent and the lenders
under the EEX Credit Agreement and subordinating the EEX Capital
Subordinated Note and the Guaranty Agreement to the "Superior
Indebtedness (as defined in such Subordination Agreement)
"EEX Capital Voting Rights Trigger Event" shall have
the meaning ascribed to "Voting Rights Trigger Event" in the
Certificate of Designations.
"EEX Credit Agreement" shall mean that certain Credit
Agreement, dated as of May 1, 1995, among EEX, as borrower, The
Chase Manhattan Bank, as Administrative Agent, and the lenders
signatory thereto, as amended by First Amendment, dated September
19, 1996, and Second Amendment, dated June 27, 1997, and as
modified by that certain letter from EEX to the Administrative
Agent and in effect on the Closing Date together with such
amendments thereto as may be both adopted in accordance therewith
and consented to by the Majority Holders.
"EEX LLC" shall mean EEX Capital L.L.C., a Delaware
limited liability company that was merged with and into EEX
Preferred pursuant to the Merger, with EEX Preferred being the
surviving corporation and renamed EEX Capital Inc.
"EEX Preferred" shall mean EEX Preferred Capital Inc.,
a Delaware corporation now known as EEX Capital Inc., into which
EEX LLC was merged pursuant to the Merger.
"EEX Subordinated Note" shall mean the subordinated
promissory note made by EEX in favor of EEX Capital, reevidencing
$150.0 million of Indebtedness, dated as of September 29, 1997.
"EEX Subordination Agreement" shall mean the
subordination agreement dated as of September 29, 1997 issued by
EEX Capital in favor of the administrative agent and the lenders
under the EEX Credit Agreement and subordinating the EEX
Subordinated Note to the "Superior Indebtedness" (as defined in
such Subordination Agreement).
"Engagement Letter" shall mean that certain engagement
letter agreement by and among UBS, EEX, EEX Preferred, EEX LLC
and the Company, dated as of September 24, 1997, as modified by
letter agreement dated September 29, 1997.
"Event of Default" shall mean (i) an "Event of Default"
as defined in the EEX Credit Agreement as in effect on the date
hereof (ii) failure by the Company to pay any scheduled Dividend
on the Preferred Securities within 30 days after the same is due,
(iii) the failure by the Company to cause either the merger of
the Company with and into EEX Capital or to cause the redemption
of all of the Preferred Interests and the Preferred Stock on the
Required Merger Date, (iv) failure to make any Change of Control
redemption within the time periods specified above in Section 9.4
hereof, (v) the occurrence of Prohibited Issuance, (vi) the
occurrence of an EEX Capital Voting Rights Trigger Event, (vii)
breach of any other provisions of this Agreement or of the other
Transaction Documents, in each case as in effect on the date
hereof or as subsequently modified with the consent of a majority
in aggregate Liquidation Preference of the Holders of the
Preferred Securities which is not cured within 60 days (except
that breach of the covenants described in Sections 12.1 and 13.1
of the Subscription Agreement shall not be entitled to any such
cure period) and (viii) any representation or warranty on the
part of EEX or any Subsidiary of EEX in any Transaction Document
shall prove to have been false or misleading in any material
respect when made, deemed made, or furnished.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Fee Letter" shall mean that certain fee letter
agreement from and EEX, EEX Capital (as successor in interest to
EEX Preferred and EEX LLC) and the Company to UBS, dated as of
September 24, 1997.
"GAAP" shall mean generally accepted accounting
principles in the United States of America in effect from time to
time.
"Guaranty Agreement" shall mean that certain Amended
and Restated Guaranty Agreement, dated as of September 29, 1997,
issued by EEX in favor of the Company guaranteeing the
obligations of EEX Capital to the Company under the EEX Capital
Subordinated Note, as the same may be further amended, modified
or supplemented from time to time with the consent of the
Majority Holders.
"Holder" shall mean the record holder of one or more
shares of Preferred Interests, as shown on the books and records
of the Company.
"Indebtedness" of a Person shall mean such Person's (i)
obligations for borrowed money, whether or not evidenced by a
bond, note or similar instrument, (ii) obligations representing
the deferred purchase price of property other than accounts on
terms customary in the trade, (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or
production from property now or hereafter owned or acquired by
such Person, (iv) obligations which are evidenced by notes,
acceptance, or other instruments, (v) Capital Lease Obligations,
(vi) obligations for which such Person is obligated pursuant to a
Guarantee or pursuant to a letter of credit, (vii) Hedging
Obligations, and (viii) Mandatorily Redeemable Obligations.
"Indemnified Parties" shall mean each Preferred Member
and each of their Affiliates and each of their and the Common
Members' officers, directors, employees, representatives, agents,
attorneys, accountants and experts.
"Interest" shall mean a limited liability company
interest in the Company, including the right of the holder
thereof to any and all benefits to which a Member may be entitled
as provided in this Agreement, together with the obligations of a
Member to comply with all of the terms and provisions of this
Agreement.
"Investment Company Event" shall mean (a) either (i) a
change in any applicable United States law or regulation or in
the interpretation thereof (including but not limited to the
enactment or imminent enactment of any legislation, the
publication of any judicial decisions, regulatory rulings,
regulatory procedures, or notices or announcements (including
notices or announcements of intent to adopt such procedures or
regulations)) shall have occurred after September 29, 1997, or
(ii) a change in the official position or the interpretation of
any law or regulation by any legislative body, court,
governmental authority or regulatory body, irrespective of the
manner in which such change is made known) shall have occurred
after September 29, 1997, and (b) that the Company or EEX Capital
shall have received an opinion of nationally recognized
independent legal counsel experienced in practice under the
Investment Company Act of 1940, as amended (the "1940 Act"),
that, as a result of such change, there exists more than an
insubstantial risk that the Company is or will be considered an
"investment company" which is required to be registered under the
1940 Act.
"Lien" means any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on the common
law, statute or contract, and whether such obligation or claim is
fixed or contingent, and including but not limited to the lien or
security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes.
"Liquidation Dividend" shall mean, for each issued and
outstanding share of the Preferred Interests, an amount equal to
the Liquidation Preference plus its pro rata share of any and all
other payments out of the assets of the Company upon either
voluntary or involuntary liquidation, dissolution or winding up
of the Company made in accordance with the terms of Section 14.3
and 14.4 of this Agreement.
"Liquidation Preference" shall mean, with respect to
each share of the (i) Preferred Interests, $1,000.00, as set
forth in Section 7.1(b) of this Agreement and (ii) Preferred
Stock, $1,000.00, as the case may be.
"LP Act" shall mean the Delaware Revised Uniform
Limited Partnership Act, 6 Del. C. Section 17-101, et seq., as
amended from time to time.
"Majority Holders" means a majority in aggregate
Liquidation Preference of the Holders of the Preferred
Securities.
"Mandatorily Redeemable Obligation" shall mean, with
respect to any Person, an obligation of such Person or any of its
Subsidiaries to the extent that it is redeemable, payable or
required to be purchased or otherwise retired or extinguished (a)
at a fixed or determinable date, whether by operation of a
sinking fund or otherwise, (b) at the option of any Person other
than such Person or such Subsidiary, or (c) upon the occurrence
of a condition not solely within the control of such Person or
such Subsidiary, such as a redemption required to be made out of
future earnings.
"Member" shall mean any Person that holds an Interest
in the Company and is admitted as a member of the Company
pursuant to the provisions of this Agreement, in its capacity as
a member of the Company. For purposes of the Delaware Act, the
Common Member and the Preferred Members shall constitute separate
classes of Members.
"Merger" shall mean the merger of EEX LLC with and into
Enserch Preferred on September 26, 1997, with Enserch Preferred
being the surviving corporation and renamed EEX Capital Inc.
"Merger Notice" shall mean a notice issued by UBS in
accordance with the letter agreement dated September 29, 1997,
requiring the Company to merge with and into EEX Capital, with
EEX Capital being the surviving corporation.
"Net Income" and "Net Loss," respectively, for any
Dividend Period, shall mean the income and loss, respectively, of
the Company for such Dividend Period as determined in accordance
with the method of accounting followed by the Company for federal
income tax purposes, including, for all purposes, any tax-exempt
income and any expenditures of the Company which are described in
Section 705(a)(2)(B) of the Code (or treated as so described
under Section 1.704-1(b)(2)(iv)(i) of the Treasury Regulations);
provided, however, that any item allocated under Section 4.7
shall be excluded from the computation of Net Income and Net
Loss.
"Notes" shall mean the EEX Capital Subordinated Note
and any and all promissory notes that may be issued from time to
time by any Common Member evidencing loans to such Common Member
from the Company of substantially all the proceeds of the
issuance of the Common Securities or any other capital
contributions.
"Notice of Dissolution" shall mean any notice of
dissolution of the Company given pursuant to Section 14.2 of this
Agreement.
"Notice of Redemption" shall have the meaning set forth
in Section 9.4(d)(i) of this Agreement.
"Obligations" means any principal, interest, penalties,
fees (including, but not limited to, reasonable fees and expenses
of counsel), indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing and
Indebtedness.
"Operating Lease Obligations" shall mean, as to the
Company or any Subsidiary, the obligations of such person to pay
rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which
obligations are not required to be classified and accounted for
as a liability for a capital lease on a balance sheet of such
Person and, for purposes of this Agreement, the amount of such
obligations shall be the discounted present value of the lease
payments, discounted in the same manner a capital lease would be
discounted according to GAAP.
"Paying Agent" shall mean the Transfer Agent until such
time, if any, as an additional or other Paying Agent is
appointed.
"Permitted Subordinated Debt" shall mean Debt of EEX or
a Subsidiary Owing to EEX or another Subsidiary subordinated to
the "Superior Indebtedness" (as defined in the Subordination
Agreements) on terms substantially similar to the terms set forth
in the Subordination Agreements.
"Person" shall mean any individual, corporation,
company, limited liability company, voluntary association,
partnership, joint venture, trust, unincorporated organization or
government or any agency, instrumentality or political
subdivision thereof, or any other form of entity.
"Preferred Certificate" shall mean any certificate, in
substantially the form of Exhibit A to this Agreement, evidencing
the Preferred Interests.
"Preferred Interests" shall mean the $75,000,000 in
aggregate Liquidation Preference of Interests which represent
preferred limited liability company interests in the Company and
are described in Section 7.1(b) of this Agreement.
"Preferred Member" shall mean UBS and any other Person
who becomes a holder of any of the Preferred Interests under
Section 2.7 of this Agreement; and "Preferred Members" shall mean
all such Persons.
"Preferred Securities" shall mean the Preferred
Interests and the Preferred Stock.
"Preferred Stock" shall mean the Class A Cumulative
Perpetual Increasing Dividend Preferred Stock of EEX Capital.
"Prohibited Issuance" shall mean issuance by EEX, EEX
Capital, the Company or any of their respective Subsidiaries of
subordinated debt or equity securities in violation of the
provisions under Article V of the Subscription Agreement, the
proceeds of which are not used to fully redeem the Preferred
Securities.
"Redemption Price" shall mean, with respect to each
issued and outstanding share of the Preferred Interests, a cash
redemption price equal to (i) the Liquidation Preference plus
accumulated and unpaid Dividends (whether or not earned or
declared), including such share's pro rata amount of all
Additional Dividends, to the date fixed for redemption of such
share and (ii) Additional Costs.
"Required Merger Date" shall mean the first Dividend
Payment Date occurring at least thirteen (13) Business Days after
receipt by the Company of a Merger Notice.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Senior Debt" shall mean the principal (whether
denominated as principal, monthly rental or other notional
quantity), premium, if any, and unpaid interest on, and any
reasonable fees or costs related to, (a) and Debt of EEX and its
Subsidiaries (other than the Company and EEX Capital), whether
outstanding on the date hereof or hereafter created, which is
incurred, assumed, or guaranteed in compliance with the EEX
Credit Agreement, unless in the instrument creating or evidencing
the same or pursuant to which the same is outstanding it is
provided that such indebtedness is not superior in right of
payment to the Capital Subordinated Note and Guaranty Agreement,
and (b) renewals, extensions, modification and refundings of any
such Debt. For the avoidance of doubt, Debt which is created,
incurred, assumed, or guaranteed in violation of terms of the EEX
Credit Agreement shall not constitute Senior Debt, and Debt which
is created, incurred, assumed, or guaranteed in compliance with
the terms of the EEX Credit Agreement Debt shall at all times
constitute Senior Debt, notwithstanding any event or circumstance
which may subsequently occur which would constitute the creation,
incurrence, assumption or guarantee of such Debt at such time a
violation of the EEX Credit Agreement.
"Stock Registration Rights Agreement" means the stock
registration rights agreement, dated as of September 29, 1977,
between EEX Capital and the Placement Agent on behalf of the
holders of the Preferred Stock pursuant to which the Preferred
Stock is required to be registered for public sale.
"Subordinated Notes" shall mean, collectively, the EEX
Capital Subordinated Note and the EEX Subordinated Note.
"Subordination Agreements" shall mean, collectively,
the EEX Capital Subordination Agreement and the EEX Subordination
Agreement.
"Subscription Agreement" shall mean the Preferred
Interest and Preferred Stock Subscription Agreement, dated as of
September 29, 1997, among EEX, EEX Capital, the Company and UBS
as Placement Agent for the Holders of the Preferred Securities.
"Tax Event" shall mean (a) either (i) a change in any
applicable United States law or regulation or in the
interpretation thereof (including but not limited to the
enactment or imminent enactment of any legislation, the
publication of any judicial decisions, regulatory rulings,
regulatory procedures, or notices or announcements (including
notices or announcements of intent to adopt such procedures or
regulations), or (ii) a change in the official position or the
interpretation of any law or regulation by any legislative body,
court, governmental authority or regulatory body, irrespective of
the manner in which such change is made known)) shall have
occurred after September 29, 1997, and (b) that the Company or
EEX Capital shall have received an opinion of nationally
recognized independent legal counsel experienced in such matters
that, as a result of such change, there exists more than an
insubstantial risk that (i) the Company will be subject to
federal income tax with respect to the interest received on the
EEX Capital Subordinated Note, (ii) EEX Capital (or EEX on a
consolidated basis) will be precluded from deducting the interest
paid on the EEX Capital Subordinated Note for federal income tax
purposes, or (iii) the Company will be subject to more than a de
minimis amount of other taxes, duties or other governmental
charges.
"Tax Matters Partner" shall mean EEX Capital designated
as such in Section 11.1(b) of this Agreement.
"Third-Party Creditors" shall have the meaning-set
forth in Section 13.1 of this Agreement.
"Transaction Documents" shall mean the Subscription
Agreement, this Agreement, the Certificate of Designations, the
Preferred Stock, the Preferred Interests, the Engagement Letter,
the Fee Letter, the Stock Registration Rights Agreement, the
Subordinated Notes, the Guaranty Agreement, and the Subordination
Agreements.
"Transfer Agent" shall mean the entity designated from
time to time by the Company to act as the registrar and transfer
agent for the Preferred Interests.
"Treasury Regulations" shall mean the regulations
promulgated by the United States Department of the Treasury
pursuant to and in respect of the provisions of the Code. All
references herein to sections of the Treasury Regulations shall
included any corresponding provision or provisions of succeeding,
similar, substitute proposed or final Treasury Regulations.
"Voting Rights Trigger Event" shall have the meaning
set forth in Section 8.1(b) below.
SECTION 1.2. HEADINGS.
The headings and subheadings in this Agreement are
included for convenience and identification 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.
ARTICLE II.
CONTINUATION AND TERM; ADMISSION AND RESIGNATION OF MEMBERS
SECTION 2.1. HISTORY AND CONTINUATION.
(a) The Company has been formed as a Delaware limited
liability company by the filing of the Certificate of Formation
under and pursuant to the Act. The initial Members were EEX LLC
and Enserch Preferred, each owning 99.9% and 0.1%, respectively,
of the total common Interests in the Company. On August 4, 1995,
EEX LLC, Enserch Preferred and the Trustee (i) amended and
restated the Original L.L.C. Agreement, effective as of August
4, 1995, as the Amended and Restated L.L.C. Agreement (ii)
continued the Company as a limited liability company under and
pursuant to the provisions of the Delaware Act, (iii) agreed that
the rights, duties and liabilities of the Members were to be as
provided in the Delaware Act, except as otherwise provided
therein and (iv) admitted the Trustee as a member of the Company.
EEX LLC and Enserch Preferred each owned 99.9% and 0.1%,
respectively, of the total common Interests in the Company. On
September 26, 1997, EEX LLC and Enserch Preferred merged, with
Enserch Preferred being the surviving corporation, renamed "EEX
Capital Inc." EEX Capital, the Trustee and UBS hereby (i) amend
and restate the Amended and Restated L.L.C. Agreement in its
entirety, effective as of September 29, 1997, (ii) continue the
Company as a limited liability company under and pursuant to the
provisions of the Delaware Act, except as otherwise provided
herein, (iii) admit UBS as a member of the Company, (iv) cause
the Company to redeem the MIStS Securities and terminate the
Trustee's membership in the Company and (v) agree that the
rights, duties and liabilities of the Members shall be as
provided in the Delaware Act, except as otherwise provided
herein. EEX Capital owns 100% of the total common Interests in
the Company. EEX Capital, as an authorized person within the
meaning of the Delaware Act, shall execute, deliver and file any
and all amendments to or restatements of the Certificate of
Formation, as may be required by the Delaware Act.
(b) The Members hereby agree to continue the Company as
a limited liability company under and pursuant to the provisions
of the Delaware Act and agree that the rights, duties and
liabilities of the Members shall be as provided in the Delaware
Act, except as provided herein.
(c) Upon execution of this Agreement by the Trustee,
EEX Capital and UBS, and the receipt by the Trustee of all
amounts due for the redemption of the MIStS Securities held by
the Trustee, UBS shall be admitted to the Company as a Member
and it and the remaining Members shall continue the Company
without dissolution.
(d) Notwithstanding any other provision of this
Agreement to the contrary, upon the Trustee's execution of this
Agreement and the payment of all amounts due for the redemption
of the MIStS Securities held by the Trustee, the Trustee shall
have no further rights, duties or obligations hereunder under
this Agreement.
SECTION 2.2. NAME.
The name of the Company heretofore formed and hereby
continued is MIStS Issuer L.L.C. The business of the Company may
be conducted upon compliance with all applicable laws under any
other name designated by EEX Capital.
SECTION 2.3. TERM.
The term of the Company commenced on the date the
Certificate of Formation was filed in the office of the Secretary
of State of the State of Delaware and shall be perpetual.
SECTION 2.4. REGISTERED AGENT AND OFFICE.
The Company's registered agent, manager and office in
Delaware shall be The Corporation Trust Company, Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000. At any time, EEX Capital may designate another
registered agent and/or registered office. The name and business
address of each Member is set forth in Section 15.7 of this
Agreement.
SECTION 2.5. PRINCIPAL PLACE OF BUSINESS.
The principal place of business of the Company shall be
at The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000. EEX Capital may change the
location of the Company's principal place of business.
SECTION 2.6. QUALIFICATION IN OTHER JURISDICTIONS.
EEX Capital shall cause the Company to be qualified,
formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Company conducts
business and in which such qualification, formation or
registration is required by law or deemed advisable by EEX
Capital. EEX Capital, as an authorized person within the meaning
of the Delaware Act, shall execute, deliver and file any
certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
SECTION 2.7. ASSIGNMENT OF COMMON SECURITIES.
No Member may sell, assign, convey, give, exchange or
otherwise dispose of its Common Securities without the prior
consent of UBS, which consent may be given or withheld in its
sole discretion. Except as provided in the foregoing proviso,
any attempted disposition of any Common Securities shall be null
and void ab initio.
SECTION 2.8. ASSIGNMENT OF PREFERRED INTERESTS.
UBS and its successors and assigns may, subject to the
Securities Act and State securities laws, sell, assign, convey,
give, exchange or otherwise dispose of its Preferred Interests
without the prior consent of the other Members.
SECTION 2.9. MERGER, CONSOLIDATION, ETC. OF THE COMPANY.
The Company may not consolidate with, merge with or
into, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an
entirety to any Person; provided, however, if UBS delivers a
Merger Notice, then either (i) the Company and EEX Capital shall
merge, with EEX Capital being the surviving corporation or (ii)
redeem all of the Preferred Interest contemporaneous with the
redemption by EEX Capital of the Preferred Stock such that no
Event or Default will result from the failure to so merge or
redeem.
SECTION 2.10 SUBORDINATION.
(a) The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the Preferred
Interests, by its acceptance thereof, likewise covenants and
agrees, that payment by EEX of the principal of and premium, if
any, and interest on the EEX Capital Subordinated Note and
payment by EEX in respect of the Guaranty Agreement, and any fees
or costs related to either thereof, is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Debt. The provisions of this Section 2.10 are made for
the benefit of all holder of Senior Debt and any such holder may
proceed to enforce such provisions.
(b) During such time as any Senior Debt remains unpaid
and an Event of Default (under and as defined in the EEX Credit
Agreement) exists and is continuing, the Company will not ask
for, demand, xxx for, take, receive or accept from EEX, by set-
off or in any other manner, any payment or distribution on
account of the EEX Capital Subordinated Note or the Guaranty
Agreement, or present any instrument evidencing the EEX
Subordinated Note or the Guaranty Agreement for payment (other
than such presentment as may be necessary to prevent discharge of
EEX or other liable parties on such instrument).
(c) In the event that the Company shall receive any
payment or distribution on account of the EEX Capital
Subordinated Note or the Guaranty Agreement which the Company is
not entitled to receive under the provisions of this Section
2.10, the Company will hold any such amount so received in trust
for the holders of the Senior Debt and will forthwith turn over
such payment to any court of competent jurisdiction in the form
received by the Company (together with any necessary endorsement)
to be applied ratably to Senior Debt.
ARTICLE III.
PURPOSE AND POWERS OF THE COMPANY
SECTION 3.1. PURPOSE AND POWERS.
The purposes of the Company are (i) to issue Interests
and to receive payments on the existing EEX Capital Subordinated
Note and to use all of the proceeds from either thereof to redeem
the MIStS Securities, (ii) to amend, hold and receive payments on
the EEX Capital Subordinated Note, (iii) to pursue remedies under
the EEX Capital Subordinated Note, (iv) to hold the Guaranty
Agreement and, except as otherwise limited herein, to enter into,
make and perform all contracts and other undertakings, and to
take any and all actions necessary, appropriate, proper,
advisable, incidental or convenient to or for the furtherance of
the purposes of the Company as set forth herein. The Company may
not conduct any other business or operations except as
contemplated by the preceding sentence. The Company may not: (a)
incur, create, assume or suffer to exist any Indebtedness (other
than subordinated indebtedness owning to affiliates of up to $5.0
million in aggregate principal amount for both EEX Capital and
the Company, taken as a whole), (b) create, incur, assume or
permit to exist any lien or security interest on any of its
properties (now owned or hereafter acquired), (c) sell, lease,
abandon or otherwise dispose of any of its property, (d) sell or
otherwise discount the EEX Capital Subordinated Note, or (e)
excepted as contemplated by Sections 4.2 or 4.3, sell or issue
any other Interests (or create any new series of Interests).
ARTICLE IV.
CAPITAL CONTRIBUTIONS AND ALLOCATIONS
SECTION 4.1. AMOUNT AND FORM OF INITIAL CONTRIBUTION.
EEX LLC, as predecessor in interest to EEX Capital, has
heretofore contributed the amount of $4,640,000, in cash, and EEX
Capital (formerly known as Enserch Preferred) has heretofore
contributed the amount of $4,640, in cash, and no other property
has been contributed to the Company. EEX Capital holds 100% of
the Common Securities in the Company.
The Trustee has heretofore contributed the amount of
$150,000,000, in cash. Immediately prior to the execution of this
Agreement, the Trustee held 100% of the MIStS Securities in the
Company. Upon the initial contribution of UBS and as of the
effectiveness of this Agreement, the Company redeemed 100% of the
MIStS Securities and, pursuant to Section 2.1 (c), the Trustee
resigned as a member of the Company.
The initial contribution of UBS to the Company shall be
cash in an amount not less than $75,000,000. Upon the initial
contribution of UBS and as of the effectiveness of this
Agreement, UBS shall hold 100% of the Preferred Interests.
SECTION 4.2. ADDITIONAL CONTRIBUTIONS BY THE COMMON MEMBERS.
The Common Member shall make such additional
contributions to the Company, either in connection with the
purchase of Common Securities or otherwise, so as to cause its
Interests to be entitled to at least 3% of all interests in the
capital, income, gain, loss, deduction and credit of the Company
at all times.
The Common Member may make additional contributions to
the Company from time to time in its sole discretion. In
addition, all expenses and losses incurred by the Company shall,
as more fully set forth in Article XII, be paid by the Common
Member when due and such payments shall constitute additional
contributions of the Common Member.
SECTION 4.3. ADDITIONAL CONTRIBUTIONS BY PREFERRED MEMBERS.
The Preferred Members shall make the initial
contribution to the Company in accordance with the applicable
terms of Section 4.1 and Section 7.1 of this Agreement. Each
Preferred Member, in its capacity as a Member of the Company,
shall not be required to make any additional contributions to the
Company and shall have no additional liability solely by reason
of being a Preferred Member in excess of its share of the
Company's assets and undistributed profits.
SECTION 4.4. INVESTMENT OF CAPITAL CONTRIBUTIONS.
The Company shall invest all of the proceeds from the
issuance of the Preferred Interests and all sums received in
payment of the existing EEX Capital Subordinated Note to redeem
the MIStS Securities and amend the EEX Capital Subordinated
Notes.
SECTION 4.5. CAPITAL ACCOUNTS.
An individual capital account (each a "Capital Account"
and collectively, the "Capital Accounts") shall be established
and maintained on the books of the Company for each Member in
compliance with Treasury Regulation Sections 1.704-1(b)(2)(iv)
and 1.704-2, as amended. Subject to the preceding sentence, each
Capital Account will be increased by the amount of the capital
contributions made by, and the Net Income allocated to, such
Member, and reduced by the amount of Distributions made by the
Company, and Net Losses allocated to such Member. In addition, a
Member's Capital Account shall be increased or decreased, as the
case may be, for any items specially allocated to such Member
under Section 4.7 of this Agreement, and the Common Member's
Capital Account shall be increased to the extent that the Common
Member pays any costs or expenses of the Company directly out of
the Common Member's own funds.
SECTION 4.6. GENERAL ALLOCATIONS.
After giving effect to the special allocations set
forth in Section 4.7 of this Agreement:
(a) Net Income. The Company's Net Income for each Dividend
Period shall be allocated, as of the close of business for such
Dividend Period, as follows:
(i) First, pro rata, to the Adjusted Capital Account
of each Preferred Member, in accordance with the percentage equal
to the number of shares of Preferred Interests held by such
Preferred Member over the total number of issued and outstanding
shares of Preferred Interests, an amount equal to the excess of
(x) the amount of all Dividends (including Additional Dividends)
accrued on the Preferred Interests from the issuance of the
Preferred Interests through the close of business for such
Dividend Period, over (y) the amount of Net Income allocated to
the Preferred Members in respect of the Preferred Interests
pursuant to this Section 4.6(a)(i) (and amounts, if any,
allocated pursuant to Section 4.7(c) of this Agreement) for all
prior Dividend Periods.
(ii) Second, pro rata, to the Adjusted Capital Account
of each Preferred Member, in accordance with the percentage equal
to the number of shares of Preferred Interests held by such
Preferred Member over the total number of issued and outstanding
shares of Preferred Interests, an amount equal to the excess of
(x) the amount of all Net Losses allocated to the Preferred
Members from the date of issuance of the Preferred Interests
through the close of business for such Dividend Period pursuant
to Section 4.6(b)(ii) over (y) the amount of Net Income allocated
to the Preferred Members in respect of the Preferred Interests
pursuant to this Section 4.6(a)(ii) for all prior Dividend
Periods.
(iii) Any remaining Net Income shall be allocated, pro
rata, to the Adjusted Capital Account of each Common Member.
(b) Net Loss. The Company's Net Loss for each Dividend
Period shall be allocated, as of the close of business for such
Dividend Period, as follows:
(i) First, pro rata, to the Adjusted Capital Account
of each Common Member until the aggregate balance of their
Adjusted Capital Accounts is reduced to zero.
(ii) Second, pro rata, to the Adjusted Capital Account
of each Preferred Member until the aggregate balance of their
Adjusted Capital Accounts is reduced to zero.
(iii) Any remaining Net Loss shall be allocated, pro
rata, to the Common Member and borne by the Common Member solely.
(c) Liquidation Dividends. EEX Capital may make such
changes to the allocations in Sections 4.6(a) and 4.6(b) as it
deems reasonably necessary so that, immediately prior to the
Company's liquidation, the positive balances in the Capital
Account of each Preferred Member shall, to the maximum extent
possible, equal its Liquidation Dividend.
SECTION 4.7. SPECIAL ALLOCATIONS.
(a) Determinations of Net Income/Net Loss. For purposes of
determining the Net Income, Net Loss or any other items allocable
to any Dividend Period, Net Income, Net Loss and any such other
items shall be determined on a daily, monthly, quarterly or other
basis, as determined by EEX Capital using any method that is
permissible under Section 706 of the Code and the Treasury
Regulations promulgated thereunder. Unless otherwise specified,
such Net Income, Net Loss or other items shall be determined for
each Dividend Period.
(b) Expenses Allocated to Common Members. All items of
loss and deduction in respect of expenses incurred by or on
behalf of the Company and paid, pro rata, by the Common Members
shall be allocated entirely to the Common Members.
(c) Adjustments for Treasury Regulations. The Members
intend that the allocations under Section 4.6 of this Agreement
and this Section 4.7 conform to Treasury Regulations Sections
1.704-1(b) and 1.704-2 (including, without limitation and to the
extent applicable, the minimum gain chargeback, chargeback of
partner nonrecourse debt minimum gain, qualified income offset
and partner nonrecourse debt provisions of such Treasury
Regulations), and EEX Capital shall make such allocations under
this Section 4.7, or such changes in the allocations under
Section 4.6 of this Agreement, as it believes are reasonably
necessary to meet all applicable requirements of such Treasury
Regulations.
SECTION 4.8. ALLOCATIONS FOR INCOME TAX PURPOSES.
The income, gains, losses, deductions and credits of
the Company shall be allocated in the same manner as the items
entering into the computation of Net Income and Net Loss are
allocated under Section 4.6 of this Agreement or as such items
are otherwise allocated under Section 4.7 of this Agreement;
provided, however, that solely for federal, state and local
income and franchise tax purposes, but not for book or Adjusted
Capital Account purposes, income, gain, loss and deductions with
respect to any property properly carried on the Company's books
at a value other than the tax basis of such property shall be
allocated in a manner determined in EEX Capital's discretion, so
as to take into account (consistently with the principles of
Section 704(c) of the Code) the difference between such
property's book value and its tax basis.
SECTION 4.9. INTERESTS AS PERSONAL PROPERTY.
Each Member hereby agrees that its Interest shall for
all purposes be personal property. A Member has no interest in
specific Company property.
SECTION 4.10. COLLECTION ACCOUNT.
(a) Establishment of Account. EEX Capital hereby
establishes the Collection Account. The Collection Account shall
be a general account of the Company, maintained with the Fiscal
Agent, and designated the "MIStS Issuer Collection Account."
(b) Deposits and Applications. All monies, including, all
interest on past due amounts, paid by EEX Capital on account of
the EEX Capital Subordinated Note (or by EEX on account of the
Guaranty Agreement) shall be deposited into the Collection
Account as and when received by the Company. EEX Capital shall,
on each Dividend Payment Date and on each other date on which a
redemption has been elected, apply all amounts in the Collection
Account to the payment of all amounts then due and payable under
Section 9.1(c) and (d) of this Agreement, or if a date on which a
redemption is to occur, apply all amounts in the Collection
Account to the payment of all amounts due and payable under
Section 9.4 of this Agreement.
ARTICLE V.
MEMBERS
SECTION 5.1. POWERS OF MEMBERS.
The Members shall have the power to exercise any and
all rights or powers granted to the Members pursuant to the
express terms of this Agreement.
SECTION 5.2. RESIGNATION; EXPULSION.
No Common Member shall have any right to resign from
the Company; provided however that a Common Member shall have the
power to withdraw or resign at any time in violation of this
Agreement. If a Common Member exercises such power in violation
of this Agreement, (a) such Common Member shall be liable to the
Company and the Preferred Members for all monetary damages
suffered by them as a result of such resignation; and (b) such
Common Member shall not have any rights under Section 18-604 of
the Delaware Act. Any Preferred Member may resign from the
Company prior to the liquidation, dissolution and winding up of
the Company only upon the assignment of its Interest (including
any redemption, repurchase, exchange or other acquisition by the
Company of such Interest) in accordance with the provisions of
this Agreement. A resigning Member shall not be entitled to
receive any Distribution and shall not be entitled to receive
fair value of its Interest except as otherwise expressly provided
in this Agreement. No Member may be expelled as a Member.
ARTICLE VI.
MANAGEMENT
SECTION 6.1. MANAGEMENT OF THE COMPANY.
Except as otherwise provided herein, the business and
affairs of the Company shall be managed, and all actions required
under this Agreement shall be determined, solely and exclusively
by EEX Capital, which shall have all rights and powers on behalf
and in the name of the Company to perform all acts necessary and
desirable to the objects and purposes of the Company. Without
limiting the generality of the foregoing, EEX Capital, in its
capacity as the Common Member and not by virtue of any delegation
of management power from any Member, shall have, subject to the
limitations set forth in Section 3.1 and Section 8.1 of this
Agreement, the power on behalf of the Company to:
(a) authorize and engage in transactions and dealings on
behalf of the Company, including transactions and dealings with
any Preferred Member or any Affiliate of any Member;
(b) pay all expenses incurred in forming the Company;
(c) redeem the MIStS Securities and/or merge the Company
with and into EEX Capital;
(d) issue the Preferred Interests;
(e) amend the EEX Capital Subordinated Note;
(f) amend the Guaranty Agreement;
(g) determine and make Distributions, in cash or otherwise,
on Interests, in accordance with the provisions of this Agreement
and the Delaware Act;
(h) establish a record date with respect to all actions to
be taken hereunder that require a record date to be established,
including with respect to allocations, Dividends and voting
rights;
(i) incur and pay all expenses and obligations incident to
the operation and management of the Company;
(j) open accounts and deposit, maintain and withdraw funds
in the name of the Company in accordance with the terms and
conditions of this Agreement;
(k) effect a dissolution of the Company and act as
liquidating trustee or the Person winding up the Company's
affairs, all in accordance with the provisions of this Agreement
and the Delaware Act;
(l) bring and defend on behalf of the Company actions and
proceedings at law or equity before any court or governmental,
administrative or other regulatory agency, body or commission or
otherwise;
(m) prepare and cause to be prepared reports, statements
and other relevant information for distribution to Members as may
be required or determined to be necessary or desirable by EEX
Capital from time to time;
(n) prepare and file all necessary returns and statements
and pay all taxes, assessments and other impositions applicable
to the assets of the Company; and
(o) execute all other documents or instruments, perform all
duties and powers and do all things for and on behalf of the
Company in all matters necessary or desirable or incidental to
the foregoing.
EEX Capital is authorized and directed to conduct its
affairs and to operate the Company in such a way that the Company
will not be deemed to be an "investment company" required to be
registered under the Investment Company Act of 1940, as amended,
or taxed as a corporation for federal income tax purposes and so
that EEX Capital Subordinated Note will be treated as
Indebtedness of EEX Capital (or EEX on a consolidated basis). In
this connection, EEX Capital is authorized to take any action not
inconsistent with applicable law and this Agreement that EEX
Capital determines in its discretion to be necessary or desirable
for such purposes.
SECTION 6.2. RELIANCE BY THIRD PARTIES.
Persons dealing with the Company are entitled to rely
conclusively upon the power and authority of EEX Capital herein
set forth.
SECTION 6.3. NO MANAGEMENT BY PREFERRED MEMBERS.
Except as otherwise expressly provided herein, no
Preferred Member shall take any part in the day-to-day
management, operation or control of the business and affairs of
the Company. Each Preferred Member, in its capacity as Preferred
Member of the Company, shall not be an agent of the Company or
have any right, power or authority to transact any business in
the name of the Company or to act for or on behalf of or to bind
the Company.
ARTICLE VII.
COMMON SECURITIES AND PREFERRED INTERESTS
SECTION 7.1. COMMON SECURITIES AND PREFERRED INTERESTS.
(a) Classes. The Interests in the Company shall be divided
into two classes, Common Securities and Preferred Interests.
(b) Preferred Interests; Designation. A total of 75,000
Cumulative Perpetual Increasing Dividend Preferred Interests with
a liquidation preference of $1,000.00, and par value of $1.00,
per security are hereby authorized and designated as "Cumulative
Perpetual Increasing Dividend Preferred Interests" (collectively,
the "Preferred Interests"). The Preferred Interests shall not
be subject to the operation of a retirement or sinking fund.
(c) Priority of Preferred Interests. The Preferred
Interests shall rank senior to the Common Securities in respect
of the right to receive Dividends and the right to receive
Liquidation Dividends. All Preferred Interests redeemed,
purchased or otherwise acquired by the Company shall be canceled
and thereupon restored to the status of authorized but unissued
Preferred Interests.
(d) Subscription; Preemptive Rights. No Member shall be
entitled as a matter of right to subscribe for or purchase, or
have any preemptive right with respect to, any part of any new or
additional issue of Common Securities or Preferred Interests of
any series whatsoever, or of securities convertible into any
Common Securities or Preferred Interests of any series
whatsoever, whether now or hereafter authorized and whether
issued for cash or other consideration or by way of dividend.
(e) Commons Securities Uncertificated. Except as noted in
Section 2.7, Common Securities shall not be evidenced by any
certificate or other written instrument, but shall only be
evidenced by this Agreement. Common Securities shall be
non-assignable and non-transferable, and may only be issued to
and held by EEX Capital.
(f) Preferred Interests Certificated. Preferred Interests
and the notation thereon relating to the certificate of
authentication, shall be evidenced by one or more Preferred
Certificates, but in such denominations as may be requested by
the Preferred Members and with such insertions, omissions,
substitutions and variations as may be permitted by or consistent
with this Agreement and with such notations, legends and
endorsements as may be required by the Securities Act or any
governmental authority. The provisions of Exhibit A are part of
this Agreement. An authorized officer of EEX Capital, in its
capacity as managing member of the Company shall sign each
Preferred Certificate as authentication on behalf of the Company.
No seal or stamp shall be required in connection with the
authentication, but no Preferred Interest shall be valid until
its has been so executed.
SECTION 7.2. PERSONS DEEMED PREFERRED MEMBERS.
The Company may treat the Person in whose name any
Preferred Certificate shall be registered on the books and
records of the Company as a Preferred Member and the sole holder
of such Preferred Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or
other claims to or interest in any Preferred Certificate on the
part of any other Person, whether or not the Company shall have
actual or other notice thereof.
ARTICLE VIII.
VOTING AND MEETINGS
SECTION 8.1. VOTING RIGHTS OF PREFERRED MEMBERS.
(a) No Rights Generally. Except as shall be otherwise
provided herein and except as otherwise required by the Delaware
Act, the Preferred Members shall have, with respect to the
Preferred Interests, no right or power to vote on any question or
matter or in any proceeding or to be represented at, or to
receive notice of, any meeting of Members.
(b) Rights of Preferred Members. If (i) the Company fails
to declare or pay Dividends in full (including any arrearages and
Additional Dividends) on the Preferred Interests for any Dividend
Period and such failure is not cured within 30 days, (ii) the
Company fails to consummate a Change of Control offer within 60
days of the occurrence of a Change of Control (or 90 days, if a
consent is required after a Change of Control), (iii) the Company
breaches the covenant described in Section 5.6 of the
Subscription Agreement, (iv) a Prohibited Issuance occurs, (v)
EEX breaches the "Debt to Capital Ratio" covenant described in
Section 9.01 of the EEX Credit Agreement or (vi) an EEX Capital
Voting Rights Trigger Event occurs (each of (i) , (ii) , (iii),
(iv), (v) and (vi), a "Voting Rights Trigger Event") then the
Preferred Members will be entitled to assume managing control of
the Company from the Common Member. For purposes of determining
whether the Company has failed to pay Dividends in full for
Dividend Periods, Dividends shall be deemed to remain in arrears,
notwithstanding any partial payments in respect thereof, until
all accumulated and unpaid Dividends (including any Additional
Dividends) have been or contemporaneously are declared and paid
with respect to all Dividend Periods terminating on or prior to
the date of payment of such full cumulative Dividends.
In furtherance of the foregoing, and without limiting
the powers of the Preferred Members and for the avoidance of any
doubt concerning the powers of the Preferred Members, the
Preferred Members, or any Person acting as agent on behalf of the
Preferred Members, may institute a proceeding, including, without
limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the Company's
creditor rights directly against either EEX or EEX Capital to the
same extent as the Company and on behalf of the Company; and the
Preferred Members, or their agent, may prosecute such proceeding
to judgment or final decree and enforce the same against EEX or
EEX Capital and collect, out of the property, wherever situated,
of either EEX or EEX Capital, the monies adjudged or decreed to
be payable in the manner provided by law. EEX Capital agrees to
execute and deliver such documents as may be necessary or
appropriate for the Preferred Members, or their agent, to
exercise such powers.
EEX Capital shall not at any time (w) direct the time,
method and place of conducting any proceeding for any remedy
available to the Preferred Members under the EEX Capital
Subordinated Note or the Guaranty Agreement, (x) waive compliance
with, or any past default under, the EEX Capital Subordinated
Note or the Guaranty Agreement, (y) exercise any right to rescind
or annul a declaration that the principal of the EEX Capital
Subordinated Note, or any obligation under the Guaranty
Agreement, shall be due and payable, and (z) consent to any
amendment or modification or forgiveness of debt of the EEX
Capital Subordinated Note or the Guaranty Agreement without, in
each case, obtaining the prior approval of the Preferred Members
holding in excess of 50% of the issued and outstanding shares of
the Preferred Interests. EEX Capital shall not revoke any action
previously authorized or approved by a vote or the consent of the
Preferred Members without the approval of the Preferred Members.
EEX Capital shall notify the Preferred Members of any notice of
default with respect to either the EEX Capital Subordinated Note
or the Guaranty Agreement.
(c) Other Rights. If EEX Capital proposes to effect:
(i) any action that would materially adversely affect
the powers, preferences or special rights of the Preferred
Members or Preferred Interests, whether by way of amendment of
this Agreement or otherwise (including, without limitation, the
authorization or issuance of any Interests in the Company),
(ii) the liquidation, dissolution or winding up of the
Company,
(iii) the commencement of any voluntary bankruptcy,
insolvency, reorganization or other similar proceeding involving
the Company,
(iv) extend the time of payment of any Dividend,
(v) reduce the Dividend Rate or Liquidation Preference
of the Preferred Interests, or
(vi) alter the Rate Fixing Notice or Merger Notice or
redemption price of the Preferred Interests,
then the Preferred Members will be entitled to vote on such
resolution or action of EEX Capital (but not any other resolution
or action) and such amendment or action shall not be effective
except with the approval of the majority of the Liquidation
Preference with respect to the issued and outstanding shares of
the Preferred Interests. Notwithstanding any provision to the
contrary herein, this Section 8.1 may only be amended with the
consent of the majority of the Liquidation Preference with
respect to the issued and outstanding shares of the Preferred
Interests of the Preferred Members.
SECTION 8.2. VOTING RIGHTS OF COMMON MEMBERS.
Except as otherwise provided herein and except as
otherwise required by the Delaware Act, all voting rights of the
Company shall be vested exclusively in the Common Members. The
Common Members shall have the right to vote separately as a class
on any matter on which the Common Members have the right to vote
regardless of the voting rights of any other Member.
SECTION 8.3. MEETINGS OF THE MEMBERS.
(a) Meetings of the Members of any class or series or of
all classes of Interests may be called at any time by EEX
Capital. Except to the extent otherwise provided, the following
provisions shall apply to meetings of Members.
(b) Members may vote in person or by proxy at such meeting.
Whenever a vote, consent or approval of Members is permitted or
required under this Agreement, such vote, consent or approval may
be given at a meeting of Members or by written consent.
(c) Each Member may authorize any Person to act for it by
proxy on all matters in which a Member is entitled to vote,
including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the
Member or its attorney-in-fact and shall be revocable at the
pleasure of the Member executing it at any time before it is
voted.
(d) Each meeting of Members shall be conducted by EEX
Capital or by such other Person that EEX Capital may designate.
(e) Any required approval of the Preferred Members may be
given at a separate meeting convened for such purpose or at a
meeting of Members of the Company or pursuant to written
consents. EEX Capital will cause a notice of any meeting at
which the Preferred Members are entitled to vote, or of any
matter upon which action by written consent of the Preferred
Members is to be taken, to be mailed to the Preferred Members 30
days prior to such meeting. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
matter on which the Preferred Members are entitled to vote or of
such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
(f) Subject to Section 8.3(e), EEX Capital, in its sole
discretion, shall establish all other provisions relating to
meetings of Members, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by
any Members, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE IX.
DIVIDENDS AND REDEMPTION
SECTION 9.1. DIVIDENDS.
(a) Generally. Dividends on the Preferred Interests shall
be declared by EEX Capital for each Dividend Period on the Record
Date for such Dividend Period in accordance with Sections 9.1(c)
and (d), to the extent that EEX Capital reasonably anticipates
that at the time of payment the Company will have, and must be
paid by the Company to the extent that at the time of proposed
payment it has, in the Collection Account (i) funds legally
available for the payment of such Dividends and (ii) cash on hand
sufficient to make such payments. The Common Members may receive
Dividends under this Agreement as provided in Section 9.3 and in
accordance with the provisions of the Delaware Act out of funds
of the Company legally available therefor.
(b) Limitations on Preferred Dividends. A Preferred Member
shall not be entitled to receive any Dividend, irrespective of
whether such Dividend has been declared by EEX Capital, prior to
the applicable Dividend Payment Date and until such time as the
Company has received the interest payment on the EEX Capital
Subordinated Note for the interest payment date corresponding to
such Divided Payment Date and such monies are available for
Distribution to the Preferred Members pursuant to the terms of
this Agreement and the Delaware Act; and notwithstanding any
provision of Section 18-606 of the Delaware Act to the contrary,
until such time, no Preferred Member shall have the status of a
creditor of the Company or the remedies available to a creditor
of the Company.
(c) Preferred Dividends. Subject to Section 9.1(d), the
Preferred Members shall be entitled to receive cumulative cash
Dividends for each Dividend Period equal to the sum of (a) Union
Bank of Switzerland's three-month London interbank offered rate,
reset quarterly, plus (b) a spread equal to (i) 300 basis points
for the period from the Closing Date to but excluding December
31, 1997, (ii) 400 basis points for the period from December 31,
1997, to but excluding Xxxxx 00, 0000, (xxx) 500 basis points for
the period from March 31, 1998, to but excluding June 30, 1998,
(iv) 600 basis points for the period from June 30, 1998, to but
excluding September 30, 1998, and (v) 700 basis points at all
times from and after September 30, 1998, provided, however, that
upon the occurrence and during the continuance of an Event of
Default, the spread otherwise applicable under this clause (c)
shall increase by 100 basis points. Dividends shall be payable
quarterly in arrears on the last day of each Dividend Period of
each year, commencing on the initial Dividend Payment Date of
December 31, 1997 to the Holder of record as of the tenth (10th)
Business Day preceding (each, a "Record Date"). Dividends shall
accrue and be cumulative whether or not they have been earned or
declared and whether or not there are funds of the Company
legally available for the payment of Dividends. Dividends on the
Preferred Interests must be declared for each Dividend Period and
be paid on each Dividend Payment Date to the extent that the
Company has, in the Collection Account, on such date, (x) funds
legally available for the payment of such Dividends and (y) cash
on hand sufficient to make such payments, it being understood
that to the extent that funds are not available to pay in full
all accumulated and unpaid Dividends, the Company may pay partial
Dividends to the extent of funds legally available therefor.
Dividends payable on the Preferred Interests will be computed on
the basis of a 360-day year of and actual days elapsed occurring
in the period with respect to which such Dividends are payable.
(d) At any time after September 30, 1998, UBS may elect to
deliver a written notice (a "Rate Fixing Notice") fixing the
dividend rate, terms and conditions on the Preferred Interests at
the rate, terms or conditions which UBS in good faith determines
in its sole discretion would be necessary to effect a sale of the
Preferred Interests at par, whereupon the dividend rate on all of
the Preferred Interests shall become a fixed rate per annum;
provided, however, that (i) such security shall be of a perpetual
nature and (ii) upon the occurrence and during the continuance of
an Event of Default, the dividend rate specified in the Rate
Fixing Notice shall increase by 100 basis points
(e) Additional Dividends. The Company shall also declare
and pay, from time to time, upon demand of any Preferred Member,
additional amounts (but without duplication of any amounts
included in the calculation of Dividends) as follows:
(i) all out-of-pocket costs and expenses reasonably
incurred by such Preferred Member in connection with the
preparation, negotiation, execution, delivery, performance and
administration of this Agreement and the other Transaction
Documents, including, but not limited to, the following: (A) fees
and expenses of such Preferred Member, including, without
limitation, reasonable attorneys' fees and expenses; (B) all
other amounts, including, without limitation, fees, indemnities,
expenses, compensation in respect of increased costs, capital
adequacy or breakage of any kind or description payable under the
Transaction Documents; (C) out-of-pocket costs and expenses
incurred by such Preferred Member, after the date of this
Agreement (including, without limitation, reasonable attorneys'
fees and expenses and other expenses and disbursements reasonably
incurred) associated with (x) negotiating and entering into, or
the giving or withholding of, any future amendments, supplements,
waivers or consents with respect to this Agreement; (y) any
termination of this Agreement; and (z) any Event of Default and
the enforcement of the rights or remedies of the Preferred
Members under this Agreement and the other Transaction Documents;
and
(ii) all other out-of-pocket amounts that such
Preferred Member pays under the Transaction Documents other than
interest, principal, and amounts described in the first sentence
of this Section 9.1(e) and clause (i) above.
All amounts due pursuant to this Section 9.1(e) shall be
"Additional Dividends."
SECTION 9.2. LIMITATIONS ON DISTRIBUTIONS.
Notwithstanding any provision to the contrary contained
in this Agreement, the Company shall not make a Distribution
(including a Dividend) to any Member on account of its Interest
if such Distribution would violate Section 18-607 of the Delaware
Act or other applicable law.
SECTION 9.3. COMMON DISTRIBUTIONS.
EEX Capital may, from time to time, declare and pay
Dividends with respect to the common Interests of each Common
Member to the extent such Common Member's Adjusted Capital
Account exceeds the sum of such Common Member's initial capital
contribution specified in Section 4.1 plus the amount of any
additional contributions made by such Common Member pursuant to
Section 4.2; and after all of the issued and outstanding
Preferred Interests have been redeemed in full at the Liquidation
Preference and all accrued Dividends (including Additional
Dividends) have been paid in full, the Company may redeem in full
all common Interests.
SECTION 9.4. REDEMPTION AND EXCHANGE.
(a) Optional Redemption. The Preferred Interests shall be
redeemable on any Dividend Payment Date at the option of the
Company, in whole or in part from time to time, subject to ten
(10) Business Day's prior written notice, (i) in whole or (ii)
ratably between the Preferred Stock and the Preferred Interests
in part (but not in increments of less than $25.0 million in the
aggregate for both types of Preferred Securities), in either case
at the Redemption Price for the shares being so redeemed. The
Company may not redeem the Preferred Interests in part unless all
accumulated and unpaid Dividends (whether or not earned or
declared), including any Additional Dividends, have been paid in
full on all Preferred Interests for all Dividend Periods
terminating on or prior to the date of redemption. EEX Capital
shall have the right to cause the Company to exercise such
redemption option.
(b) Other Redemption Events. At any time after the
occurrence of a Tax Event, the Company may, or at any time after
the occurrence of an Investment Company Event, the Company shall,
within 30 days following the occurrence of such Investment
Company Event, redeem, in whole but not in part, the Preferred
Interests at the Redemption Price for all issued and outstanding
shares. In addition, in the event the Asset Coverage Ratio, as
of any time, fails to be at least 1.0 to 1.0, the Company shall
redeem, at the Redemption Price, a sufficient number of shares of
the Preferred Interests to restore the Asset Coverage Ratio to at
least 1.0 to 1.0.
(c) Change of Control.
(i) Upon the occurrence of a Change of Control, each
Preferred Member shall have the right to require the Company to
repurchase all or any part of such Member's shares of Preferred
Interests (a "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate Liquidation Preference thereof
plus (i) accrued and unpaid dividends, if any, thereon to the
date of purchase and (ii) any Additional Costs (together, the
"Change of Control Payment").
(ii) The Change of Control Offer shall include all
instructions and materials to enable Members to tender their
shares of Preferred Interests.
(iii) The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of
the shares of Preferred Interests as a result of a Change of
Control.
(iv) Within 30 days following any Change of Control,
the Company shall mail or deliver by facsimile transmission a
notice (the "Notice of Change Control") to each Holder stating:
(A) that the Change of Control Offer is being
made pursuant to this Section 9.4(c) and that all shares of
Preferred Interests tendered will be accepted for payment;
(B) the purchase price and the purchase date,
which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the "Change of Control
Payment Date");
(C) that any share of Preferred Interests not
tendered will continue to accrue dividends;
(D) that, unless the Company fails to pay the
Change of Control Payment, all shares of Preferred Interests
accepted for payment pursuant to the Change of Control Offer
shall cease to accrue dividends after the Change of Control
Payment Date;
(E) that Members electing to have any shares of
Preferred Interests purchased pursuant to a Change of Control
Offer will be required to surrender the shares of Preferred
Interests, with the form entitled "Option of Holder to Elect
Purchase" which shall be included with the Notice of Change of
Control completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(F) that Members will be entitled to withdraw
their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the Change
of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
name of shares of Preferred Interests delivered for purchase, and
a statement that Member is withdrawing his election to have such
shares purchased; and
(G) the circumstances and relevant facts
regarding such Change of Control (including, but not limited to,
information with respect to pro forma historical financial
information after giving effect to such Change of Control and
information regarding the Person or Persons acquiring control).
(v) On the Change of Control Payment Date, the Company
shall, to the extent lawful: (i) accept for payment all shares
of Preferred Interests properly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all shares
of Preferred Interests so tendered and (iii) deliver or cause to
be delivered to the Paying Agent shares of Preferred Interests so
accepted together with an Officers' Certificate stating the
aggregate Liquidation Preference of the shares of Preferred
Interests or portions thereof being purchased by the Company.
The Paying Agent shall promptly mail to each holder of Preferred
Interests so tendered the Change of Control Payment for such
Preferred Interests and the Paying Agent will promptly
authenticate and mail (or cause to be transferred by book-entry)
to each Member a new certificate representing the shares of
Preferred Interests equal in Liquidation Preference amount to any
unpurchased portion of the shares of Preferred Interests
surrendered, if any. The Company shall announce the results of
the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
(vi) Prior to complying with the provisions of this
Section 9.4(c), but in any event within 90 days following a
Change of Control, the Company shall either repay all outstanding
Indebtedness or obtain the requisite consents, if any, under all
agreements governing outstanding Indebtedness, in each case to
the extent required to permit the repurchase of Preferred
Interests required by this Section 9.4(c).
(vii) The Company shall not be required to make a Change
of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this
Section 9.4(c) applicable to a Change of Control Offer made by
the Company and purchases all shares of Preferred Interests
validly tendered and not withdrawn under such Change of Control
Offer.
(d) Redemption Procedures.
(i) Notice of any redemption of the Preferred
Interests (a "Notice of Redemption") shall be irrevocable and
shall be given by the Company by facsimile transmission to be
followed by U.S. mail not fewer than ten (10) Business Days nor
more than 30 calendar days prior to the date fixed for redemption
thereof to EEX Capital and the Preferred Members. For purposes
of the calculation of the date of redemption and the dates on
which notices are given pursuant to this Section 9.4(d)(i), a
Notice of Redemption shall be deemed to be given on the day such
notice is first transmitted by facsimile (with receipt confirmed
orally) with a copy mailed by first-class U.S. mail, postage
prepaid, to the Preferred Members. A Notice of Redemption shall
be transmitted and addressed to the Preferred Members at the
facsimile number and address appearing in the books and records
of the Company.
(ii) If the Company issues a Notice of Redemption,
then, by 12:00 noon, New York time, on the date fixed for
redemption of shares, EEX Capital will deposit into the
Collection Account an amount representing that portion of
principal on the EEX Capital Subordinated Note, which, together
with accrued and unpaid interest thereon, will be an amount
sufficient to pay the Redemption Price for the Preferred
Interests to be redeemed. The Company shall immediately and
irrevocably deposit such funds on the date fixed for redemption
into the Collection Account and such funds shall be paid to the
Preferred Members before 1:00 p.m. New York time on such date.
If a Notice of Redemption shall have been given and funds
irrevocably deposited as required, then immediately prior to the
close of business on the date of such deposit, all rights of the
Preferred Members with respect to the Preferred Interests so
called for redemption will cease except the right of the
Preferred Members to receive the Redemption Price. In the event
that any date fixed for redemption of the Preferred Interests is
not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a
Business Day (with any interest or other payment in respect of
any such delay), except that if such Business Day falls in the
next calendar month, such payment will be made on the immediately
preceding Business Day. In the event that payment of the
Redemption Price is improperly withheld or refused and not paid
either by the Company or by EEX Capital or EEX (pursuant to the
Guaranty Agreement), Dividends on the Preferred Interests called
for redemption (including any Additional Dividends) will continue
to accumulate at the then applicable rate, from the original
redemption date to the date that the Redemption Price is actually
paid and the Preferred Members may exercise all of their rights
under this Agreement. Any partial redemption under Section
9.4(b) shall be allocated pro rata among the Preferred Members in
accordance with the percentage equal to the number of shares of
Preferred Interests held by such Preferred Member over the total
number of issued and outstanding shares of Preferred Interests.
ARTICLE X.
BOOKS AND RECORDS
SECTION 10.01. BOOKS AND RECORDS; ACCOUNTING; ACCESS TO
RECORDS
EEX Capital shall keep or cause to be kept at the
address of EEX Capital (or at such other place as EEX Capital
shall determine) true and full books and records regarding the
status of the business and financial condition of the Company,
together with a certified copy of this Agreement and of the
Certificate of Formation. In addition to the other rights
specifically set forth in this Agreement, the Preferred Member
and/or its duly authorized representative is entitled to access
any and all documents relating to the business of the Company
during normal business hours and any and all such documents shall
be furnished to the Preferred Member or its duly authorized
representative promptly upon demand.
SECTION 10.2. FISCAL YEAR.
The fiscal year of the Company for federal income tax
and accounting purposes shall, except as otherwise required in
accordance with the Code, end on December 31 of each year.
ARTICLE XI.
TAX MATTERS
SECTION 11.1. COMPANY TAX RETURNS.
(a) EEX Capital shall cause to be prepared and timely filed
all tax returns required to be filed for the Company. EEX
Capital may, in its discretion, make or refrain from making any
federal, state or local income or other tax elections for the
Company that it deems necessary or advisable, including, without
limitation, any election under Section 754 of the Code or any
successor provision.
(b) EEX Capital is hereby designated as the Company's "Tax
Matters Partner" under Code Section 6231(a)(7) and shall have all
the powers and responsibilities of such position as provided in
the Code. EEX Capital is specifically directed and authorized to
take whatever steps EEX Capital, in its discretion, deems
necessary or desirable to perfect such designation, including
filing any forms or documents with the Internal Revenue Service
and taking such other action as may from time to time be required
under the regulations issued under the Code. Expenses incurred
by the Tax Matters Partner, in its capacity as such, will be
borne by EEX Capital.
SECTION 11.2. TAX REPORTS.
EEX Capital shall, as promptly as practicable and in
any event within 120 days after the end of each fiscal year,
cause to be prepared and mailed to the Common Members and the
Preferred Members, federal income tax form K-1 and any other
forms which are necessary or advisable.
SECTION 11.3. TAXATION AS PARTNERSHIP.
The Members recognize that the Company will be treated
as a partnership for U.S. federal income tax purposes, and EEX
Capital shall operate the Company in such a manner as will
preserve its treatment as a partnership for U.S. federal income
tax purposes.
ARTICLE XII.
EXPENSES
SECTION 12.1. EXPENSES.
Except as otherwise provided in this Agreement, EEX
Capital shall be responsible for, and shall pay, all expenses and
obligations of the Company out of funds of EEX Capital, whether
such expenses or obligations are those of the Company or are
otherwise incurred by EEX Capital in connection with this
Agreement, including, without limitation:
(a) all costs and expenses related to the business of the
Company and all routine administrative expenses of the Company,
including the maintenance of books and records of the Company,
the preparation and dispatch to the Members of checks, financial
reports, tax returns and notices required pursuant to this
Agreement and the holding of any meetings of the Members;
(b) all expenses incurred in connection with any litigation
involving the Company (including the cost of any investigation
and preparation) and the amount of any judgment or settlement
paid in connection therewith (other than expenses incurred by EEX
Capital in connection with any litigation brought by or on behalf
of any Member against EEX Capital);
(c) all expenses for indemnity or contribution payable by
the Company to any Person;
(d) all expenses incurred in connection with the collection
of amounts due to the Company from any Person;
(e) all expenses incurred in connection with the
preparation of amendments to this Agreement; and
(f) all expenses incurred in connection with the
liquidation, dissolution or winding-up of the Company.
ARTICLE XIII.
LIABILITY, EXCULPATION AND INDEMNIFICATION
SECTION 13.1. LIABILITY OF COMMON MEMBERS.
Each Common Member, by acquiring its Interest and being
admitted to the Company as a Common Member, shall be liable to
the creditors of the Company (other than to any Preferred Member,
in its capacity as a Member) (hereinafter referred to
individually as a "Third-Party Creditor," and collectively as the
"Third-Party Creditors") to the same extent that a general
partner of a limited partnership formed under the LP Act is
liable under Section 17-403(b) of the LP Act to creditors of the
limited partnership (other than the other partners in their
capacity as partners), as if the Company were a limited
partnership formed under the LP Act and each Common Member was
general partner of the limited partnership. In furtherance but
not in limitation of the generality of the foregoing, each Common
Member is liable for any and all debts, obligations and other
liabilities of the Company, whether arising under contract or by
tort, statute, operation of law or otherwise, all of which shall
be enforceable directly and absolutely against each Common Member
by each Third-Party Creditor.
SECTION 13.2. LIABILITY OF PREFERRED MEMBERS.
(a) Except as otherwise provided by the Delaware Act, (i)
the debts, obligations and liabilities of the Company, whether
arising by contract, tort, statute, operation of law or
otherwise, shall be solely the debts, obligations and liabilities
of the Company and, to the extent set forth in Section 13.1 of
this Agreement, the Common Members and (ii) no Indemnified Party
shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being an Indemnified
Party or a Preferred Member of the Company.
(b) Each Preferred Member, in its capacity as such, shall
have no liability in excess of (i) the amount of its capital
contributions, (ii) its share of any assets and undistributed
profits of the Company, (iii) any amounts required to be paid by
the Preferred Members for the Preferred Interests held by it and
(iv) the amount of any Distributions wrongfully distributed to
it.
SECTION 13.3. EXCULPATION.
(a) No Indemnified Party shall be liable to the Company or
any other Indemnified Party for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Indemnified Party in good faith on behalf of the Company and
in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Party by this Agreement,
except that an Indemnified Party shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified
Party's gross negligence, bad faith, recklessness or willful
misconduct.
(b) An Indemnified Party shall be fully protected in
relying in good faith upon the records of the Company and upon
such information, opinions, reports or statements presented to
the Company by any Person as to matters the Indemnified Party
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Company, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount from which distributions to Members
might properly be paid.
SECTION 13.4. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified
Party has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any other Indemnified
Party, an Indemnified Party acting under this Agreement shall not
be liable to the Company or to any other Indemnified Party for
its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict
the duties and liabilities of an Indemnified Party otherwise
existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified
Party.
(b) Unless otherwise expressly provided herein, (i)
whenever a conflict of interest exists or arises between
Indemnified Parties, or (ii) whenever this Agreement or any other
agreement contemplated herein provides that an Indemnified Party
shall act in a manner that is, or provides terms that are, fair
and reasonable to the Company or any Member, the Indemnified
Party shall resolve such conflict of interest taking such action
or providing such terms, considering in each case the relative
interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith
by the Indemnified Party, the resolution, action or term so made,
taken or provided by the Indemnified Party shall not constitute a
breach of this Agreement or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Party at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Party is
permitted or required to make a decision (i) in its "discretion"
or under a grant of similar authority or latitude, the
Indemnified Party shall be entitled to consider only such
interests and factors as it desires, including its own interests,
and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Company or any other
Party, or (ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Agreement or other applicable law.
SECTION 13.5. INDEMNIFICATION.
To the fullest extent permitted by applicable law, an
Indemnified Party shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such
Indemnified Party by reason of any act or omission performed or
omitted by such Indemnified Party in good faith on behalf of the
Company and in a manner reasonably believed to be within the
scope of authority conferred on such Indemnified Party by this
Agreement except that no Indemnified Person shall be entitled to
be indemnified in respect of any loss damage or claim incurred by
such Indemnified Person by reason of gross negligence, bad faith,
recklessness or willful misconduct with respect to such acts or
omissions.
SECTION 13.6. EXPENSES.
To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Party
in defending any claim, demand action, suit or proceeding shall,
from time to time, be advanced by EEX Capital (which shall be
deemed to be a capital contribution) prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company (or EEX Capital) of an undertaking by
or on behalf of the Indemnified Party to repay such amount if it
shall be determined that the Indemnified Party is not entitled to
be indemnified as authorized in Section 13.5 hereof.
SECTION 13.7. OUTSIDE BUSINESS.
Any Member or its Affiliate may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Company, and the Company and the Members shall
have no rights by virtue of this Agreement in and to such
independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the
business of the Company, shall not be deemed wrongful or
improper. No Member or its Affiliate shall be obligated to
present any particular investment opportunity to the Company even
if such opportunity is of character that, if presented to the
Company, could be taken by the Company, and any Member or its
Affiliate shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to
others any such particular investment opportunity.
ARTICLE XIV.
DISSOLUTION, LIQUIDATION AND TERMINATION
SECTION 14.1. DISSOLUTION.
The Company shall be dissolved upon the first to occur
of the following: (i) the bankruptcy of the Company, (ii) the
written consent of all of the Members, (iii) any time there are
no Members, and (iv) the entry of a decree of judicial
dissolution under Section 18-802 of the Delaware Act.
With the exception of the events set forth in this
Section 14.1, the Company shall not be dissolved by any other
event or vote set forth in Section 18-801 of the Delaware Act.
SECTION 14.2. NOTICE OF DISSOLUTION.
Upon the dissolution of the Company, EEX Capital shall
promptly notify the Members of such dissolution.
SECTION 14.3. LIQUIDATION.
Upon dissolution of the Company, EEX Capital, as
liquidating trustee, shall immediately commence to wind-up the
Company's affairs; provided, however, that a reasonable time
shall be allowed for the orderly liquidation of the assets of the
Company and the satisfaction of liabilities to creditors so as to
enable the Members to minimize the normal losses attendant upon a
liquidation. The proceeds of liquidation shall be distributed,
as realized, in the manner provided in Section 18-804 of the
Delaware Act, subject to Section 14.4 of this Agreement.
SECTION 14.4. CERTAIN RESTRICTIONS ON LIQUIDATION PAYMENTS.
In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the
Preferred Members will be entitled to receive out of the assets
of the Company legally available for Distribution to Members,
after satisfaction of liabilities to creditors, including
contingent, conditional or unmatured claims or obligations, as
required by the Delaware Act but before any Distribution of
assets is made to any Common Member, for each and every Preferred
Interests then issued and outstanding, an amount equal to the
Liquidation Preference, plus all accumulated and unpaid Dividends
(whether or not earned or declared), including any Additional
Dividends, to the date of payment.
SECTION 14.5. TERMINATION.
Upon dissolution and completion of the winding-up
process, the Company shall terminate when all of the assets of
the Company have been distributed in the manner provided for in
this Article XIV, and the Certificate of Formation shall have
been canceled in the manner required by the Delaware Act.
ARTICLE XV.
MISCELLANEOUS
SECTION 15.1. AMENDMENTS.
Except as otherwise provided in this Agreement, this
Agreement may be amended by, and only by, a written instrument
executed by all of the Common Members and a majority of the
Preferred Members.
SECTION 15.2. SUCCESSORS; COUNTERPARTS.
This Agreement (a) shall be binding as to the
executors, administrators, estates, heirs and legal successors,
or nominees or representatives, of the Members and (b) may be
executed in several counterparts with the same effect as if the
parties executing the several counterparts had all executed one
counterpart. No Person other than the Members and their
respective legal successors or assigns, or their nominees or
representatives, shall obtain any rights by virtue of this
Agreement.
SECTION 15.3. GOVERNING LAW; SEVERABILITY.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving
effect to the principles of conflict of laws thereof. In
particular, this Agreement shall be construed to the maximum
extent possible to comply with all of the terms and conditions of
the Delaware Act. If, nevertheless, it shall be determined by a
court of competent jurisdiction that any provisions or wording of
this Agreement shall be invalid or unenforceable under the
Delaware Act or other applicable law, such invalidity or
unenforceability shall not invalidate the entire Agreement. In
that case, this Agreement shall be construed so as to limit any
term or provision so as to make it enforceable or valid within
the requirements of applicable law, and, in the event such term
or provisions cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions. If
it shall be determined by a court of competent jurisdiction that
any provision relating to the Distributions and allocations of
the Company or to any fee payable by the Company is invalid or
unenforceable, this Agreement shall be construed or interpreted
so as (a) to make it enforceable or valid and (b) to make the
Distributions and allocations as closely equivalent to those set
forth in this Agreement as is permissible under applicable law.
SECTION 15.4. FILINGS.
Following the execution and delivery of this Agreement,
EEX Capital shall promptly prepare any documents required to be
filed and recorded under the Delaware Act, and EEX Capital shall
promptly cause each such document to be filed and recorded in
accordance with the Delaware Act and, to the extent required by
local law, to be filed and recorded or notice thereof to be
published in the appropriate place in each jurisdiction in which
the Company may hereafter establish a place of business. EEX
Capital shall also promptly cause to be filed, recorded and
published such statements or other instruments required by any
provision of any applicable law of the United States or any state
or other jurisdiction which governs the conduct of its business
from time to time.
SECTION 15.5. POWER OF ATTORNEY.
Each Preferred Member does hereby constitute and
appoint EEX Capital as its true and lawful representative and
attorney-in-fact, in its name, place and stead to make, execute,
sign, deliver and file (a) any amendment of the Certificate of
Formation required because of an amendment to this Agreement or
in order to effectuate any change in the membership of the
Company, and (b) all such other instruments, documents and
certificates which may from time to time be required by the laws
of the United States of America, the State of Delaware or any
other jurisdiction, or any political subdivision of agency
thereof, to effectuate, implement and continue the valid and
subsisting existence of the Company or to dissolve the Company or
for any other purpose expressly provided in this Agreement.
The power of attorney granted hereby is coupled with an
interest and shall (a) survive and not be affected by the
subsequent death, incapacity, disability, dissolution,
termination or bankruptcy of any Preferred Member and (b) extend
to such Preferred Member's legal successors and assigns.
SECTION 15.6. ADDITIONAL DOCUMENTS.
Each Preferred Member, upon the request, and at the
expense, of EEX Capital, agrees to perform all further acts and
execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this
Agreement.
SECTION 15.7. NOTICES.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall
be delivered, telecopied to be followed by a copy mailed by
registered or certified mail, as follows:
(i) If given to the Company, in care of EEX Capital at
the Company's mailing address set forth below:
EEX Capital L.L.C.
c/o Enserch Exploration, Inc.
0000 Xxxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(ii) If given to any Member, at the address set forth
on the registration books maintained by or on behalf of the
Company.
Each such notice, request or other communication shall be
effective (a) if given by telecopier, when transmitted to the
number specified in such registration books and the appropriate
confirmation is received, (b) if given by mail, 72 hours after
such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in such
registration books.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above stated.
EEX Capital Inc.
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President,
Finance and Treasurer
MIStS Issuer LLC
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title:
EEX Capital Inc.,
As Common Member
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President,
Finance and Treasurer
UBS Securities LLC
By:/s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
CONSENTING to this Agreement and as evidence of the
redemption and payment in full of the MIStS Securities.
MIStS Issuer Trust I
By: Wilmington Trust Company, not
in its individual capacity, but
solely as trustee of the MIStS
Issuer Trust I
By:________________________________
Name:
Title:
Exhibit A
[Form of]
Certificate Evidencing the MIStS Issuer L.L.C.
Cumulative Perpetual Increasing Dividend Preferred Interest
Liquidation Preference: $1,000.00 per share
_________ Shares Certificate No. _____
THIS CERTIFIES THAT _________________________________,
is the registered holder of ______ shares of fully paid and
non-assessable shares of the Cumulative Perpetual Increasing
Dividend Preferred Interest $1.00 par value per share,
transferable on the books of MIStS Issuer L.L.C. (the "Company")
by the holder hereof, in person or by a duly authorized attorney,
upon surrender of this Certificate properly endorsed and
accompanied by a properly executed application for transfer for
the Preferred Interests represented by this Certificate.
IN WITNESS WHEREOF, EEX Capital has caused this
Certificate to be signed by its duly authorized officers, this
______ day of _______________, 199__.
MIStS Issuer L.L.C.
By:________________________________
Name:
Title:
[Reverse of Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NEITHER BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH ACT AND THE RULES AND
REGULATIONS THEREUNDER AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS NOR BE OFFERED, SOLD OR OTHERWISE TRANSFERRED TO
ANY PERSON OR ENTITY PRINCIPALLY ENGAGED, DIRECTLY OR INDIRECTLY,
IN THE OIL AND GAS EXPLORATION INDUSTRY OTHER THAN THE COMPANY OR
ANY OF ITS AFFILIATES. WITHOUT SUCH REGISTRATION, THE COMPANY
WILL NOT TRANSFER SUCH SECURITIES EXCEPT UPON RECEIPT OF A
REPRESENTATION FROM THE HOLDER AND/OR OTHER EVIDENCE REASONABLY
SATISFACTORY TO THE COMPANY THAT THE REGISTRATION PROVISIONS OF
SUCH ACT HAVE BEEN COMPLIED WITH OR THAT SUCH REGISTRATION IS NOT
REQUIRED AND THAT SUCH TRANSFER WILL NOT VIOLATE ANY APPLICABLE
STATE SECURITIES LAWS.
THE COMPANY IS AUTHORIZED TO ISSUE SHARES OF BOTH
COMMON AND PREFERRED INTERESTS. A FULL STATEMENT OF ALL OF THE
DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF
THE SHARES OF BOTH CLASS AND ANY SERIES THEREOF TO THE EXTENT
THAT THEY HAVE BEEN FIXED AND DETERMINED AND THE AUTHORITY OF THE
COMMON MEMBERS OF THE COMPANY TO FIX AND DETERMINE THE RELATIVE
RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES IS SET FORTH IN THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE
COMPANY ON FILE IN THE OFFICE OF EEX CAPITAL. THE COMPANY WILL
FURNISH A COPY OF SUCH STATEMENT TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE ON WRITTEN REQUEST TO THE COMPANY AT
ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
FOR VALUE RECEIVED, _____________________________
hereby assigned, conveys, sells and transfers unto
_________________________________________________________________
(Please print or typewrite (Please insert Social
name and address of Security or other
Assignee) identifying number of
Assignee)
_______________________________ shares of a Cumulative
Perpetual Increasing Dividend Preferred Interest evidenced by
this Certificate and does hereby irrevocably constitute and
appoint ____________________ as its attorney-in-fact with full
power of substitution to transfer the same on the books of MIStS
Issuer L.L.C.
Date:__________________
NOTE: The signature to any endorsement hereon must
correspond with the name as written upon the face of
this Certificate in every particular, without
alteration, enlargement or change.
In presence of:
Schedule 1
List of Operative Documents
1. Limited Liability Company Agreement for Issuer.
2. Certificate No. 2 of MIStS Issuer Preferred Interests
in name of Placement Agent.
3. EEX Capital Subordinated Note issued by EEX Capital to
the order of Issuer.
4. Guaranty Agreement executed by EEX in favor of Issuer
guarantying payment of EEX Capital Subordinated Note.
Table of Contents
ARTICLE I. DEFINED TERMS 2
SECTION 1.1. DEFINITIONS. 2
SECTION 1.2. HEADINGS. 11
ARTICLE II. CONTINUATION AND TERM; ADMISSION OF MEMBERS 11
SECTION 2.1. HISTORY AND CONTINUATION. 11
SECTION 2.2. NAME. 12
SECTION 2.3. TERM. 13
SECTION 2.4. REGISTERED AGENT AND OFFICE. 13
SECTION 2.5. PRINCIPAL PLACE OF BUSINESS. 13
SECTION 2.6. QUALIFICATION IN OTHER JURISDICTIONS. 13
SECTION 2.7. ASSIGNMENT OF COMMON SECURITIES. 13
SECTION 2.8. ASSIGNMENT OF PREFERRED INTERESTS. 13
SECTION 2.9. MERGER, CONSOLIDATION, ETC. OF THE COMPANY. 13
ARTICLE III. PURPOSE AND POWERS OF THE COMPANY 14
SECTION 3.1. PURPOSE AND POWERS. 14
ARTICLE IV. CAPITAL CONTRIBUTIONS AND ALLOCATIONS 15
SECTION 4.1. AMOUNT AND FORM OF INITIAL CONTRIBUTION. 15
SECTION 4.2. ADDITIONAL CONTRIBUTIONS BY THE COMMON MEMBERS. 15
SECTION 4.3. ADDITIONAL CONTRIBUTIONS BY PREFERRED MEMBERS. 16
SECTION 4.4. INVESTMENT OF CAPITAL CONTRIBUTIONS. 16
SECTION 4.5. CAPITAL ACCOUNTS. 16
SECTION 4.6. GENERAL ALLOCATIONS. 16
SECTION 4.7. SPECIAL ALLOCATIONS. 17
SECTION 4.8. ALLOCATIONS FOR INCOME TAX PURPOSES. 18
SECTION 4.9. INTERESTS AS PERSONAL PROPERTY. 18
SECTION 4.10. COLLECTION ACCOUNT. 18
ARTICLE V. MEMBERS 19
SECTION 5.1. POWERS OF MEMBERS. 19
SECTION 5.2. RESIGNATION; EXPULSION. 19
ARTICLE VI. MANAGEMENT 19
SECTION 6.1. MANAGEMENT OF THE COMPANY. 19
SECTION 6.2. RELIANCE BY THIRD PARTIES. 21
SECTION 6.3. NO MANAGEMENT BY PREFERRED MEMBERS. 21
ARTICLE VII. COMMON SECURITIES AND PREFERRED INTERESTS 21
SECTION 7.1. COMMON SECURITIES AND PREFERRED INTERESTS. 21
SECTION 7.2. PERSONS DEEMED PREFERRED MEMBERS. 22
ARTICLE VIII. VOTING AND MEETINGS 22
SECTION 8.1. VOTING RIGHTS OF PREFERRED MEMBERS. 22
SECTION 8.2. VOTING RIGHTS OF COMMON MEMBERS. 24
SECTION 8.3. MEETINGS OF THE MEMBERS. 24
ARTICLE IX. DIVIDENDS AND REDEMPTION 25
SECTION 9.1. DIVIDENDS. 25
SECTION 9.2. LIMITATIONS ON DISTRIBUTIONS. 27
SECTION 9.3. COMMON DISTRIBUTIONS. 27
SECTION 9.4. REDEMPTION AND EXCHANGE. 27
ARTICLE X. BOOKS AND RECORDS 31
SECTION 10.1. BOOKS AND RECORDS; ACCOUNTING;
ACCESS TO RECORDS 31
SECTION 10.2. FISCAL YEAR. 31
ARTICLE XI. TAX MATTERS 31
SECTION 11.1. COMPANY TAX RETURNS. 31
SECTION 11.2. TAX REPORTS. 32
SECTION 11.3. TAXATION AS PARTNERSHIP. 32
ARTICLE XII. EXPENSES 32
SECTION 12.1. EXPENSES. 32
ARTICLE XIII. LIABILITY, EXCULPATION AND INDEMNIFICATION 33
SECTION 13.1. LIABILITY OF COMMON MEMBERS. 33
SECTION 13.2. LIABILITY OF PREFERRED MEMBERS. 33
SECTION 13.3. EXCULPATION. 33
SECTION 13.4. FIDUCIARY DUTY. 34
SECTION 13.5. INDEMNIFICATION. 34
SECTION 13.6. EXPENSES. 35
SECTION 13.7. OUTSIDE BUSINESS. 35
ARTICLE XIV. DISSOLUTION, LIQUIDATION AND TERMINATION 35
SECTION 14.1. DISSOLUTION. 35
SECTION 14.2. NOTICE OF DISSOLUTION. 35
SECTION 14.3. LIQUIDATION. 36
SECTION 14.4. CERTAIN RESTRICTIONS ON LIQUIDATION PAYMENTS. 36
SECTION 14.5. TERMINATION. 36
ARTICLE XV. MISCELLANEOUS 36
SECTION 15.1. AMENDMENTS. 36
SECTION 15.2. SUCCESSORS; COUNTERPARTS. 36
SECTION 15.3. GOVERNING LAW; SEVERABILITY. 37
SECTION 15.4. FILINGS. 37
SECTION 15.5. POWER OF ATTORNEY. 37
SECTION 15.6. ADDITIONAL DOCUMENTS. 38
SECTION 15.7. NOTICES. 38
Exhibit A - Form of Preferred Security
Schedule 1 - List of Operative Documents
