EXHIBIT 4.1.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
PP&L TRANSITION BOND COMPANY LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
PP&L TRANSITION BOND COMPANY LLC,
a Delaware Limited Liability Company
(the "Company")
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated
August __, 1999 (as further amended, supplemented or otherwise modified and
in effect from time to time, the "LLC Agreement"), of PP&L TRANSITION BOND
COMPANY LLC, a Delaware limited liability company (the "Company"), having
its principal office at Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000.
WHEREAS, CEP Group, Inc., as sole Member, on March 25, 1999 filed
a Certificate of Formation of the Company with the Delaware Secretary of
State, and executed a Limited Liability Company Agreement, dated March 25,
1999, as amended on April 26, 1999 (the "Original LLC Agreement"); and
WHEREAS, on [May __, 1999], CEP Group, Inc. transferred its sole
Common Interest in the Company to its parent corporation, PP&L, Inc., as a
dividend on account of the common stock in CEP Group, Inc. held by PP&L,
Inc., such that PP&L, Inc. succeeded to the Common Interest of CEP Group,
Inc. as the sole Member of the Company; and
WHEREAS, this LLC Agreement amends and restates the Original LLC
Agreement in all respects, and from and after the date hereof constitutes
the governing instrument of the Company;
NOW THEREFORE, the Member hereby amends and restates the Original
LLC Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Act" shall mean the Delaware Limited Liability Company Act, as
amended, as in effect on the date hereof (currently Chapter 18 of Title 6,
Sections 18-101 through 18-1109 of the Delaware Code) and as it may be
amended hereafter, from time to time.
"Administration Agreement" shall mean the Administration
Agreement, dated August __, 1999, between the Company and PP&L, Inc., as
administrator.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" shall mean this Limited Liability Company Agreement
of the Company, as the same may be amended from time to time in accordance
with the provisions hereof.
"Basic Documents" shall mean this Agreement, the Certificate of
Formation of the Company, the Contribution Agreement, the Assignment, dated
May __, 1999, executed and delivered by PP&L, Inc. in favor of CEP
Securities Co. LLC pursuant to the Contribution Agreement, the Sale
Agreement, dated August __, 1999, between CEP Securities Co. LLC and the
Company, the xxxx of sale dated August __, 1999, issued by CEP Securities
Co. LLC to the Company pursuant to the Sale Agreement, the Servicing
Agreement, dated August __, 1999, between the Company and PP&L, Inc., as
servicer, the Administration Agreement, and the Indenture.
"Bonds" shall have the meaning set forth in Section 2.03(b).
"Business Day" shall mean any day other than a Saturday, Sunday
or other day on which banks are authorized or required by law to be closed
in New York City, New York or Harrisburg, Pennsylvania.
"Certificate of Formation" shall mean the Certificate of
Formation of the Company as filed with the Secretary of State of the State
of Delaware on March 25, 1999, in accordance with the Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended
(or any successor law).
"Common Interest" shall mean the interest of the Member in the
Company. The Company shall have one class of Common Interest.
"Company" shall mean PP&L Transition Bond Company LLC, a Delaware
limited liability company.
"Contribution Agreement" shall mean the Contribution Agreement,
dated as of May 13, 1999, among PP&L, Inc., CEP Group, Inc., CEP Reserves,
Inc. and CEP Securities Co. LLC.
"Fiscal Year" shall mean, unless the Managers shall at any time
determine otherwise pursuant to the requirements of the Code, a calendar
year.
"GAAP" shall mean the generally accepted accounting principles
promulgated or adopted by the Financial Accounting Standards Board and its
successors from time to time.
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental department, commission, board, bureau,
agency, authority, instrumentality or regulatory body.
"Indenture" shall mean the Indenture, dated as of August __,
1999, between the Company and the Trustee, as amended, modified or
supplemented from time to time, including any Supplement thereto creating a
new Series of Bonds.
"Independent Manager" shall mean, with respect to the Company, a
Manager who is not, and within the last five years was not (except solely
by virtue of such Person's serving as, or affiliation with any other Person
serving as, an independent director or manager, as applicable, of PP&L,
Inc., CEP Group, Inc., CEP Reserves, Inc. or CEP Securities Co. LLC or any
bankruptcy remote special purpose entity that is a subsidiary or Affiliate
of PP&L, Inc. or the Company), (i) a stockholder, member, partner,
director, officer, employee, Affiliate, customer, supplier, creditor or
independent contractor of, or any person that has received any benefit in
any form whatever from (other than in such Manager's capacity as a
ratepayer or customer of PP&L, Inc. in the ordinary course of business), or
any Person that has provided any service in any form whatever to, or any
major creditor (or any Affiliate of any major creditor) of, the Company,
PP&L, Inc., or any of their Affiliates, or (ii) any Person owning
beneficially, directly or indirectly, any outstanding shares of common
stock, any limited liability company interests or any partnership
interests, as applicable, of the Company, PP&L, Inc., or any of their
Affiliates, or of any major creditor (or any Affiliate of any major
creditor) of any of the foregoing, or a stockholder, member, partner,
director, officer, employee, Affiliate, customer, supplier, creditor or
independent contractor of, or any Person that has received any benefit in
any form whatever from (other than in such Person's capacity as a ratepayer
or customer of PP&L, Inc. in the ordinary course of business), or any
Person that has provided any service in any form whatever to, such
beneficial owner or any of such beneficial owner's Affiliates, or (iii) a
member of the immediate family of any person described above; provided that
the indirect or beneficial ownership of stock through a mutual fund or
similar diversified investment vehicle with respect to which the owner does
not have discretion or control over the investments held by such
diversified investment vehicle shall not preclude such owner from being an
Independent Manager; and provided, further, that for purposes of this
definition, "major creditor" shall mean a natural person or business entity
to which the Company, PP&L, Inc. or any of their Affiliates has outstanding
indebtedness for borrowed money or credit on open account in a sum
sufficiently large as would reasonably be expected to influence the
judgment of the proposed Independent Director adversely to the interests of
the Company when the interests of that person or entity are adverse to
those of the Company.
"Intangible Transition Property" shall mean the irrevocable right
of PP&L, Inc. or its successor or assignee to collect intangible transition
charges from customers to recover through the issuance of Bonds the
qualified transition expenses described in the final order issued by the
Pennsylvania Public Utility Commission (the "PUC") on August 27, 1998
pursuant to the Pennsylvania Electricity Generation Customer Choice and
Competition Act Chapter 28 of Title 66 of the Pennsylvania Consolidated
Statutes, 66 Pa. C.S. Section 2801, et seq., as such order has been
supplemented by the Supplemental Order issued by the PUC on May 21, 1999,
and as such order may hereafter be further supplemented by an order of the
PUC issued pursuant to paragraph 19 of the August 27, 1998 order, including
all right, title and interest of PP&L, Inc. or its successor or assignee in
such order and in all revenues, collections, claims, payments, money or
proceeds of or arising from intangible transition charges pursuant to such
order, and all proceeds of any of the foregoing.
"Manager" shall mean any manager of the Company
"Member" shall mean PP&L, Inc., in its capacity as the sole
member in the Company under this Agreement, or any successor thereto as
sale member pursuant to Article VI.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, joint stock
company, corporation, trust, unincorporated organization or Governmental
Authority.
"Proceeding" shall have the meaning set forth in Section 8.01.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the United States Securities and
Exchange Commission promulgated thereunder.
"Series" means each series of Bonds issued and authenticated
pursuant to the Indenture and a related Supplement.
"Supplement" shall mean a supplement to the Indenture complying
(to the extent applicable) with the terms of Article 9 of the Indenture.
"Treasury Regulations" shall mean regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trustee" shall mean the party named as such in the Indenture
until a successor replaces it in accordance with the applicable provisions
of the Indenture and thereafter means the successor serving thereunder.
SECTION 1.2 Other Definitional Provisions.
(a) All terms in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
documents made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such
terms under GAAP, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder", and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; Section
references contained in this Agreement are references to Sections in this
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(d) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
FORMATION OF THE LIMITED LIABILITY COMPANY
SECTION 2.1 Formation; Filings. Pursuant to the Act and in
accordance with the further terms and provisions hereof, the Member has
formed the Company as a limited liability company. The Member has executed
a Certificate of Formation of the Company, and the Member shall execute or
cause to be executed from time to time all other instruments, certificates,
notices and documents, and shall do or cause to be done all such filing,
recording, publishing and other acts, in each case, as may be necessary or
appropriate from time to time to comply with all applicable requirements
for the formation and/or operation and, when appropriate, termination of a
limited liability company in the State of Delaware and all other
jurisdictions where the Company shall desire to conduct its business.
SECTION 2.2 Name and Office.
(a) The name of the Company shall be "PP&L Transition Bond
Company LLC." All business of the Company shall be conducted in such name
and all contracts, property and other assets of the Company shall be held
in that name and the Member shall not have any ownership interests in such
contracts, property or other assets in its individual name.
(b) The address of the registered office of the Company in the
State of Delaware is the Corporation Trust Center, 0000 Xxxxxx Xxxxxx xx
xxx xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle, 19801. The name of its
registered agent at that address is The Corporation Trust Company.
(c) The Company may also have offices at such other places both
within and without the State of Delaware as the Member may from time to
time determine.
SECTION 2.3 Business Purpose. The nature of the business or
purpose to be conducted or promoted by the Company is to engage exclusively
in the following business and financial activities:
(a) to authorize, issue, sell and deliver one or more Series or
classes of transition bonds or other evidence of indebtedness
("Bonds") under the Indenture and, in connection therewith, to
execute and deliver Supplements providing for the issuance of
additional Series of Bonds, each as permitted by and in
accordance with the terms of the Indenture;
(b) to purchase and hold Intangible Transition Property and pledge
the same to the Trustee pursuant to the terms and conditions of
the Basic Documents;
(c) to negotiate, authorize, execute, deliver, assume the obligations
under, and perform, the Basic Documents and any other agreement
or instrument or document relating to the activities set forth in
clauses (a) and (b) above, including but not limited to
agreements with third-party credit enhancers and interest rate
swap agreements relating to any Series of Bonds, provided, that
the Company shall not incur any indebtedness or other liability
pursuant to any such other agreement or instrument or document
except for such indebtedness or liability that by its terms
provides that the holder thereof may not cause the filing of a
petition in bankruptcy or take any similar action against the
Company until one year and one day after every other indebtedness
or liability of the Company represented by any previously issued
Series of Bonds and amounts owed under the Indenture to third-
party credit enhancers with respect to such Bonds is paid in
full; and
(d) to engage in any activity and to exercise any powers permitted to
limited liability companies under the laws of the State of
Delaware that are related or incidental to the foregoing and
necessary, convenient or advisable to accomplish the foregoing.
SECTION 2.4 Term. The term of the Company shall continue in
existence until dissolved and liquidated in accordance with the Act,
subject to Section 6.03 hereof.
SECTION 2.5 No State Law Partnership. The Member intends that
the Company shall not be a partnership (including, without limitation, a
general partnership or a limited partnership) or joint venture, and that
neither the Member nor any Manager shall be a partner or joint venturer of
the Member or any Manager with respect to the business of the Company, for
any purposes other than federal, state and local tax purposes, and this
Agreement shall not be construed to suggest otherwise.
SECTION 2.6 Authority of Member. Subject to Section 3.04, the
Member, acting in such capacity, shall have the authority or power to act
for or on behalf of the Company, to do any act that would be binding on the
Company, or to incur any expenditures, debts, liabilities or obligations on
behalf of the Company.
SECTION 2.7 Liability to Third Parties. Neither the Member nor
any Manager shall be liable for the debts, obligations or liabilities of
the Company (whether arising in contract, tort or otherwise), including
without limitation under a judgment, decree or order of a court, by reason
of being the Member or acting as a Manager of the Company.
SECTION 2.8 No Personal Liability of Member, Managers, Etc.
(a) The Member shall not be subject in such capacity to any personal
liability whatsoever to any Person in connection with the assets or the
acts, obligations or affairs of the Company, (b) the Member shall have the
same limitation of personal liability as is extended to stockholders of a
private corporation for profit incorporated under the General Corporation
Law of the State of Delaware, and (c) no Manager or officer of the Company
shall be subject in such capacity to any personal liability whatsoever to
any Person, other than the Company or its Member, in connection with the
assets or the affairs of the Company; and, subject to the provisions of
Article VIII, all such Persons shall look solely to the assets of the
Company for satisfaction of claims of any nature arising in connection with
the affairs of the Member; provided, that such protection from personal
liability shall apply to the fullest extent permitted by applicable law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide greater or broader indemnification rights than such law permitted
the Company to provide prior to such amendment).
SECTION 2.9 Separateness.
(a) The funds and other assets of the Company shall not be
commingled with those of any other entity, and shall maintain its accounts
separate from the Member and any other person or entity.
(b) The Company shall not hold itself out as being liable for
the debts of any other entity, and shall conduct its own business in its
own name.
(c) The Company shall not form, or cause to be formed, any
subsidiaries.
(d) The Company shall act solely in its limited liability
company name and through its duly authorized Member, Managers, officers or
agents in the conduct of its business, and shall conduct its business so as
not to mislead others as to the identity of the entity or assets with which
they are concerned.
(e) The Company shall maintain separate records, books of
account and financial statements, and shall not commingle its records and
books of account with the records and books of account of any other entity
or the Member.
(f) The Managers shall hold appropriate meetings to authorize
all of its limited liability company actions, which meetings may be held by
telephone conference call. The Company shall observe all formalities
required by this Agreement.
(g) The Company shall at all times ensure that its
capitalization is adequate in light of its business and purpose.
(h) Neither the Member nor any Manager shall guaranty, become
liable on or hold itself out as being liable for the debts of the Company.
The Company shall not guarantee or become obligated for the debts of the
Member or any Manager, any Affiliate thereof or any other Person, or
otherwise hold out its credit as being available to satisfy the obligations
of the Member, any Manager or any other Person, shall not pledge its assets
for the benefit of any entity other than the Trustee, shall not make loans
or advances to any Person, and shall not acquire obligations or securities
of the Member, any Manager or any Affiliate thereof.
(i) The Company shall pay its own liabilities out of its own
funds, including and fees and expenses of the Administrator pursuant to the
Administration Agreement.
(j) The Company shall maintain an arm's-length relationship with
its Affiliates.
(k) The Company shall allocate fairly and reasonably any
overhead for office space shared with the Member or any Manager.
(l) The Company shall use its own separate stationery, invoices,
checks and other business forms.
(m) The Company shall correct any known misunderstanding
regarding its separate identity.
SECTION 2.10 Limited Liability and Bankruptcy Remoteness.
Without limiting the generality of Section 2.09, the Company shall be
operated in such a manner as the Managers deem reasonable and necessary or
appropriate to preserve (a) the limited liability of PP&L, Inc. (or its
successor) as the Member in the Company, (b) the separateness of the
Company from the business of PP&L, Inc. (or its successor) as the Member in
the Company, or any Affiliate thereof and (c) until one year and one day
after all of the Bonds are paid in full, the special purpose, bankruptcy-
remote status of the Company.
ARTICLE III
MANAGEMENT
SECTION 3.01 Management by Managers. The powers of the Company
shall be exercised by or under the authority of, and the business and
affairs of the Company shall be managed under the direction of, the
Managers.
SECTION 3.02 Acts by Managers.
(a) The Managers shall be obliged to devote only as much of
their time to the Company's business as shall be reasonably required in
light of the Company's business and objectives. A Manager shall perform
his or her duties as a Manager in good faith, in a manner he or she
reasonably believes to be in the best interests of the Company, and with
such care as an ordinarily prudent person in a like position would use
under similar circumstances.
(b) Every Manager is an agent of the Company for the purpose of
its business, and the act of every Manager, including the execution in the
Company name of any instrument for carrying on the business of the Company,
binds the Company, unless such act is in contravention of the Certificate
of Formation or this Agreement or unless the Manager so acting otherwise
lacks the authority to act for the Company and the person with whom he or
she is dealing has knowledge of the fact that he or she has no such
authority.
(c) The Managers shall have the right and authority to take all
actions which the Managers deem necessary, useful or appropriate for the
day-to-day management and conduct of the Company's business.
(d) The Managers may exercise all powers of the Company and do
all such lawful acts and things as are not by the Act, other applicable
law, the Certificate of Formation or this Agreement directed or required to
be exercised or done by the Member. All instruments, contracts, agreements
and documents providing for the acquisition or disposition of property of
the Company shall be valid and binding on the Company if executed by one or
more of the Managers. All instruments, contracts, agreements and documents
of whatsoever type executed on behalf of the Company shall be executed in
the name of the Company by one or more Managers.
SECTION 3.03 Number and Qualifications. The number of Managers
of the Company shall not be less than three nor more than five, as may be
determined by the Member from time to time, but no decrease in the number
of Managers shall have the effect of shortening the term of any incumbent
Manager.
SECTION 3.04 Independent Managers.
(a) The Company shall have at all times at least two individuals
who are each Independent Managers. If any Independent Manager resigns,
dies or becomes incapacitated, or such position is otherwise vacant, no
action requiring the unanimous affirmative vote of the Managers shall be
taken until a successor Independent Manager is appointed by the Member and
qualified and approves such action.
(b) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company, the Company
shall not, without the prior unanimous consent of the Managers, including
each of the Independent Managers, do any of the following: (i) engage in
any business or activity other than those set forth in Article II hereof;
(ii) incur any indebtedness, other than the Bonds and ordinary course
expenses as set forth in Article II hereof, or assume or guaranty any
indebtedness of any other entity; (iii) make a general assignment for the
benefit of creditors; (iv) file a voluntary petition in bankruptcy; (v)
file a petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation; (vi) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it
in any proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, or the entry of any order appointing a trustee,
liquidator or receiver of it or of its assets or any substantial portion
thereof; (vii) seek, consent to or acquiesce in the appointment of a
trustee, receiver or liquidator of it or of all or any substantial part of
its assets; (viii) consolidate or merge with or into any other entity or
convey or transfer substantially all of its properties and assets
substantially as an entirety to any entity, or (ix) amend this Agreement or
take action in furtherance of any such action. With regard to any action
contemplated by the preceding sentence, or with regard to any action taken
or determination made at any time when the Company is insolvent, each
Manager will owe its primary fiduciary duty to the Company (including the
creditors of the Company).
SECTION 3.05 Appointment and Vacancy. The Member will appoint
each Manager, including any Manager to be appointed by reason of an
increase in the number of Managers.
SECTION 3.06 Term. Each Manager shall hold office until his
successor shall be selected by the Member and qualified, or until his or
her earlier death, resignation or removal as provided in this Agreement.
SECTION 3.07 Removal. Subject to Section 3.04(a) and Section
9.01 of this Agreement, the Member may remove, with or without cause, any
Manager.
SECTION 3.08 Resignation. Any Manager may resign at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein or, if no time is specified therein, at the time of its
receipt by the remaining Managers; provided, that the resignation of an
Independent Manager shall not be effective until a replacement Independent
Manager has been appointed. The acceptance of a resignation shall not be
necessary to make it effective, unless so expressly provided in the
resignation.
SECTION 3.09 Place of Meetings of Managers. Any meetings of the
Managers may be held either within or without the State of Delaware at such
place or places as shall be determined from time to time by resolution of
the Managers.
SECTION 3.10 Meetings of Managers. Meetings of the Managers may
be held when called by any Managers or Manager. The Manager or Managers
calling any meeting shall cause notice to be given of such meeting,
including therein the time, date and place of such meeting, to each Manager
at least two Business Days before such meeting. The business to be
transacted at, or the purpose of, any meeting of the Managers shall be
specified in the notice or waiver of notice of any such meeting. If fewer
than all the Managers are present in person, by telephone or by proxy,
business transacted at any such meeting shall be confined to the business
or purposes specifically stated in the notice or waiver of notice of such
meeting.
SECTION 3.11 Quorum; Majority Vote. At all meetings of the
Managers, the presence in person, by telephone or by proxy of a majority of
the Managers shall be necessary and sufficient to constitute a quorum for
the transaction of business unless a greater number is required by this
Agreement or by law. The act of a majority of the Managers present in
person, by telephone or by proxy at a meeting at which a quorum is present
in person, by telephone or by proxy shall be the act of the Managers,
except as otherwise provided by law, the Certificate of Formation or this
Agreement. If a quorum shall not be present in person, by telephone or by
proxy at any meeting of the Managers, the Managers present in person, by
telephone or by proxy at the meeting may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present in person, by telephone or by proxy.
SECTION 3.12 Methods of Voting; Proxies. A Manager may vote
either in person, by telephone or by proxy executed in writing by the
Manager; provided further that the Person designated to act as proxy for an
Independent Manager must be an Independent Manager.
SECTION 3.13 Actions Without a Meeting. Any action required or
permitted to be taken at a meeting of the Managers may be taken without a
meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the Managers having not
fewer than the minimum number of votes that would be necessary to take the
action at a meeting at which all Managers entitled to vote on the action
were present and voted.
SECTION 3.14 Telephone and Similar Meetings. The Managers, or
members of any committee thereof, may participate in and hold meetings by
means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other.
Such participation in any such meeting shall constitute presence in person
at such meeting, except where a Person participates in such meeting for the
express purpose of objecting to the transaction of any business on the
ground that such meeting is not lawfully called or convened.
SECTION 3.15 Managers. The Member and each Manager shall take
all actions necessary from time to time to ensure that at all times the
number of Managers shall be not less than three nor more than five;
provided, however, that pursuant to Section 3.04, the Company shall at all
times have at least two Independent Managers. The Managers upon the
execution of this Agreement shall be __________, _________, __________,
__________ (who will serve as an Independent Manager) and __________ (who
will serve as an Independent Manager).
ARTICLE IV
OFFICERS
SECTION 4.01 Designation; Term; Qualifications. The Managers
may, from time to time, designate one or more Persons to be officers of the
Company. Any officer so designated shall have such title and authority and
perform such duties as the Managers may, from time to time, delegate to
them. Each officer shall hold office for the term for which such officer
is designated and until its successor shall be duly designated and shall
qualify or until its death, resignation or removal as provided in this
Agreement. Any Person may hold any number of offices. No officer need be a
Manager, the Member, a Delaware resident, or a United States citizen.
SECTION 4.02 Removal and Resignation. Any officer of the
Company may be removed as such, with or without cause, by the Managers at
any time. Any officer of the Company may resign as such at any time upon
written notice to the Company. Such resignation shall be made in writing
and shall take effect at the time specified therein or, if no time is
specified therein, at the time of its receipt by the Managers.
SECTION 4.03 Vacancies. Any vacancy occurring in any office of
the Company may be filled by the Managers.
SECTION 4.04 Compensation. The compensation, if any, of the
officers of the Company shall be fixed from time to time by the Managers.
ARTICLE V
MEMBER
SECTION 5.01 Powers. Subject to the provisions of the
Certificate of Formation, this Agreement and the Act, all powers shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be controlled by, the Member pursuant to Section 5.03.
Pursuant to Section 3.01 of this Agreement, the Member has delegated such
powers to the Managers. Without prejudice to such general powers, but
subject to the same limitations, it is hereby expressly declared that the
Member shall have the following powers, subject to Section 3.04 in all
cases:
First: To select and remove the Managers and prescribe such
powers and duties for them as may be consistent with the Act and other
applicable law, the Certificate of Formation and this Agreement.
Second: To conduct, manage and control the affairs and business
of the Company, and to make such rules and regulations therefor consistent
with the Act and other applicable law, the Certificate of Formation and
this Agreement.
Third: To change the registered office of the Company in
Delaware from one location to another; to fix and locate from time to time
one or more other offices of the Company; and to designate any place within
or without the State of Delaware for the conduct of the business of the
Company.
SECTION 5.02 Compensation of Member. The Company shall have
authority to pay to the Member reasonable compensation for the Member's
services to the Company. It is understood that the compensation paid to
the Member under the provisions of this Section shall be determined without
regard to the income of the Company, shall not be deemed to constitute
distributions to the recipient of any profit, loss or capital of the
Company and shall be considered as an operating expense of the Company.
SECTION 5.03 Actions by the Member. All actions of the Member
may be taken by written resolution of the Member which shall be signed on
behalf of the Member by an authorized officer of the Member and filed with
the records of the Company.
SECTION 5.04 Control by Member. To the extent the Member takes
any action with respect to the Company (including by means of its
appointment of any individual Manager or its control or employment of any
individual Manager in any other capacity), the Member, or any such Manager,
as applicable, will act in good faith in accordance with the terms of this
Agreement, and make decisions with respect to the business and daily
operations of the Company independent of, and not dictated by, the Member,
any such Manager, as applicable, or any Affiliate of the foregoing, and any
such Manager shall bear a fiduciary duty to the Company (including its
creditors) under the circumstances set forth in Section 3.04 hereof.
ARTICLE VI
COMMON INTEREST
SECTION 6.01 General. The Common Interest constitutes personal
property and shall be freely transferable and assignable in whole but not
in part upon registration of such transfer and assignment on the books of
the Company in accordance with the procedures established for such purpose
by the Managers of the Company. Upon registration of the transfer and
assignment of the Common Interest on the books of the Company, the
transferee/assignee shall be and become the sole Member of the Company and
shall have the rights and powers, and be subject to the restrictions and
liabilities, of the Member under this Agreement and the Act, and the
transferor/assignor shall cease to be the Member, each as of the date of
such registration. The Common Interest of the Member in the Company shall
be evidenced by a certificate in the form set forth in Schedule B hereto.
SECTION 6.02 Distributions. The Member shall be entitled to
receive, out of the assets of the Company legally available therefor, when,
as and if declared by the Managers, distributions payable in cash in such
amounts, if any, as the Managers shall declare.
SECTION 6.03 Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or winding up
of the Company, the Member shall be entitled to all remaining assets of the
Company available for distribution to the Member after payment of all
liabilities, debts and obligations of the Company.
(b) Neither the sale of all or substantially all of the property
or business of the Company, nor the merger or consolidation of the Company
into or with another Company or other entity, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purpose of this Section 6.03.
(c) The commencement of a bankruptcy, insolvency, receivership
or other similar proceeding by or against the Company or the Member shall
not result in the dissolution of the Company or in the cessation of the
interest of the Member in the Company. The withdrawal or resignation of
the Member shall not constitute a dissolution of the Company.
SECTION 6.04 Redemption. The Common Interest shall not be
redeemable.
SECTION 6.05 Voting Rights. The Member shall have the sole
right to vote on all matters as to which members of a limited liability
company shall be entitled to vote pursuant to the Act and other applicable
law.
ARTICLE VII
ALLOCATIONS; DISTRIBUTIONS; EXPENSES; TAXES;
BOOKS; RECORDS; AND BANK ACCOUNTS
SECTION 7.01 Allocations. Except as may be required by section
704(c) of the Code and Treasury Regulation section 1.704-1(b)(2)(iv)(f)(4),
all items of income, gain, loss, deduction, and credit of the Company for
each Fiscal Year shall be allocated to the Member. Any credit available
for federal income tax purposes shall be allocated to the Member in the
same manner.
SECTION 7.02 Distributions. All distributions shall be made to
the Member from surplus funds. Except as provided in Section 7.03 of this
Agreement, all distributions shall be made in such amounts and at such
times as determined by the Managers.
SECTION 7.03 Limitation Upon Distributions. No distribution
shall be declared and paid unless, after the distribution is made, the fair
value of the Company assets is in excess of all liabilities of the Company
and no default has occurred and is continuing under the Indenture or any
Series of Bonds then outstanding.
SECTION 7.04 Expenses. Except as otherwise provided in this
Agreement, and subject to the provisions of the Basic Documents, the
Company shall be responsible for all expenses and the allocation thereof
including without limitation:
(a) all expenses incurred by the Member or its Affiliates in
organizing the Company;
(b) all expenses related to the payment of the principal of and
interest on the transition bonds issued by the Company;
(i) all expenses related to the business of the Company and
all routine administrative expenses of the Company,
including any amounts payable under the Administration
Agreement, the maintenance of books and records of the
Company, the preparation and dispatch to the Member of
checks, financial reports, tax returns and notices
required pursuant to this Agreement;
(ii) all expenses incurred in connection with any litigation
or arbitration involving the Company (including the
cost of any investigation and preparation) and the
amount of any judgment or settlement paid in connection
therewith;
(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;
(f) all expenses incurred in connection with the liquidation,
dissolution and winding up of the Company; and
(g) all expenses otherwise allocated in good faith to the
Company by the Managers.
SECTION 7.05 Tax Elections. The Managers shall make the
following elections on behalf of the Company:
(a) To elect the calendar year as the Company's Fiscal Year;
(b) To elect the accrual method of accounting;
(c) To elect to treat all organization and start-up costs of the
Company as deferred expenses amortizable over 60 months under Section 195
of the Code; and
(d) To elect with respect to such other federal, state and local
tax matters as the Managers shall agree upon from time to time.
SECTION 7.06 Annual Tax Information. The Managers shall cause
the Company to deliver to the Member all information necessary for the
preparation of the Member's federal or Commonwealth income tax return.
SECTION 7.07 Tax Matters Member. The Member shall communicate
and negotiate with the Internal Revenue Service on any tax matter on behalf
of the Member and the Company.
SECTION 7.08 Maintenance of Books. The Company shall keep books
and records of accounts and shall keep minutes of the proceedings of the
Member, the Managers and each committee of the Managers. The Fiscal Year
shall be the accounting year of the Company.
SECTION 7.09 Reports. Within sixty (60) days following the end
of each Fiscal Year during the term of the Company, the Managers shall
cause the Member to be furnished with a balance sheet, an income statement
and a statement of changes in Member's capital account for, or as of the
end of, that Fiscal Year. Such financial statements must be prepared in
accordance with the accounting method selected by the Managers consistently
applied (except as therein noted), and shall be accompanied by an audit
report from a nationally recognized accounting firm. The Managers also may
cause to be prepared or delivered such other reports as they may deem
appropriate. The Company shall bear the costs of all such financial
statements and reports.
SECTION 7.10 Bank and Investment Accounts. The Managers shall
establish and maintain one or more separate bank and investment accounts
and arrangements for Company funds in the Company name with financial
institutions and firms that the Managers determine.
ARTICLE VIII
INDEMNIFICATION OF MEMBER, MANAGERS AND OFFICERS
SECTION 8.01 Mandatory Indemnification of Member and Managers.
Any Person who was or is a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative (hereafter a "Proceeding"), or any appeal in such a
Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that such Person is or was the Member or
a Manager, or while the Member or a Manager is or was serving at the
request of the Company as a director, manager, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, limited liability company or partnership,
joint venture, partnership, trust, sole proprietorship, employee benefit
plan or other enterprise, shall be indemnified by the Company to the
fullest extent permitted by applicable law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide greater or
broader indemnification rights than such law permitted the Company to
provide prior to such amendment) against judgments, penalties (including,
without limitation, excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including, without limitation,
attorneys' fees) actually incurred by such Person in connection with such
Proceeding. It is expressly acknowledged that the indemnification provided
in this Article VIII could involve indemnification for negligence or under
theories of strict liability.
SECTION 8.02 Mandatory Advancement of Expenses. Expenses
incurred by a Person of the type entitled to be indemnified under Section
8.01 of this Agreement in defending any Proceeding shall be paid or
reimbursed by the Company in advance of the final disposition of the
Proceeding, without any determination as to such Person's ultimate
entitlement to indemnification under Section 8.01 of this Agreement, upon
receipt of a written affirmation by such Person of such Person's good faith
belief that such Person has met the standard of conduct necessary for
indemnification under applicable law and a written undertaking by or on
behalf of such Person to repay all amounts so advanced if it shall
ultimately be determined that such Person is not entitled to be indemnified
by the Company as authorized in Section 8.01 of this Agreement or
otherwise. The written undertaking shall be an unlimited general
obligation of the Person but need not be secured and shall be accepted
without reference to financial ability to make repayment.
SECTION 8.03 Indemnification of Officers, Employees and Agents.
The Company shall indemnify and pay and advance expenses to an officer,
employee or agent of the Company to the same extent and subject to the same
conditions under which it may indemnify and pay and advance expenses to the
Member or any Managers under this Article VIII; and the Company shall
indemnify and pay and advance expenses to any Person who is not or was not
the Member, a Manager, officer, employee or agent of the Company but who is
or was serving at the request of the Company as a manager, director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic limited liability company or
partnership, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any liability
asserted against such Person and incurred by such Person in such a capacity
or arising out of such Person's status as such to the same extent and
subject to the same conditions that the Company may indemnify and pay and
advance expenses to the Member or any Manager under this Article VIII.
SECTION 8.04 Nonexclusivity of Rights. The indemnification and
advancement and payment of expenses provided by this Article VIII (i) shall
not be deemed exclusive of any other rights to which the Member, a Manager
or other Person seeking indemnification may be entitled under any statute,
provision of the Certificate of Formation, agreement, decision of the
Member or disinterested Managers, or otherwise both as to action in such
Person's official capacity and as to action in another capacity while
holding such office, (ii) shall continue as to any Person who has ceased to
serve in the capacity which initially entitled such Person to indemnity and
advancement and payment of expenses, and (iii) shall inure to the benefit
of the heirs, executors, administrators, successors and assigns of the
Member, such Manager or other Person.
SECTION 8.05 Contract Rights. The rights granted pursuant to
this Article VIII shall be deemed to be contract rights, and no amendment,
modification or repeal of this Article VIII shall have the effect of
limiting or denying any such rights with respect to actions taken or
Proceedings arising prior to any such amendment, modification or repeal.
SECTION 8.06 Insurance. The Company may purchase and maintain
insurance or other arrangement or both, at its expense, on behalf of itself
or any Person who is or was serving as the Member, a Manager, officer,
employee or agent of the Company, or is or was serving at the request of
the Company as a manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or
domestic limited liability company, partnership, corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise, against any liability, expense or loss, whether or not the
Company would have the power to indemnify such Person against such
liability under the provisions of this Article VIII.
SECTION 8.07 Savings Clause. If this Article VIII or any
portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify and hold
harmless the Member, each Manager or any other Person indemnified pursuant
to this Article VIII as to costs, charges and expenses (including, without
limitation, attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to the fullest extent permitted
by any applicable portion of this Article VIII that shall not have been
invalidated and to the fullest extent permitted by applicable law.
SECTION 8.08 Other Ventures. It is expressly agreed that the
Member, any Manager and any Affiliates, officers, directors, managers,
stockholders, partners or employees of the Member or any Manager, may
engage in other business ventures of every nature and description, whether
or not in competition with the Company, independently or with others, and
the Company shall not have any rights in and to any independent venture or
activity or the income or profits derived therefrom.
SECTION 8.09 Other Arrangements Not Excluded. The
indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this Article VIII:
(a) Does not exclude any other rights to which a Person seeking
indemnification or advancement of expenses may be entitled
under the Certificate of Formation or any agreement,
decision of the Member or otherwise, for either an action of
the Member or any Manager, officer, employee or agent in the
official capacity of such Person or an action in another
capacity while holding such position, except that
indemnification, unless ordered by a court pursuant to
Section 8.05 above, may not be made to or on behalf of the
Member or any Manager if a final adjudication established
that its acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to
the cause of action; and
(b) Continues for a person who has ceased to be the Member,
Manager, officer, employee or agent and inures to the
benefit of the successors, heirs, executors and
administrators of such a person.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Offset. Whenever the Company is to pay any sum to
the Member, any amounts the Member owes the Company may be deducted from
such sum before payment.
SECTION 9.02 Notices. Except as expressly set forth to the
contrary in this Agreement, all notices, requests, or consents provided for
or permitted to be given under this Agreement shall be in writing and shall
be given either by depositing such writing in the United States mail,
addressed to the recipient, postage paid, and registered or certified with
return receipt requested or by delivering such writing to the recipient in
person, by courier, or by facsimile transmission; and a notice, request, or
consent given under this Agreement shall be effective on receipt by the
Person to whom sent. All notices, requests, and consents to be sent to the
Member shall be sent to or made to Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: [________] or such other address as the
Member may specify by notice to the Company and the Managers. Any notice,
request, or consent to the Company or the Managers must be given to the
Managers at the following address: x/x Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: [________]. Whenever any notice is required
to be given by law, the Certificate of Formation or this Agreement, a
written waiver thereof, signed by the Person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice.
SECTION 9.03 Effect of Waiver or Consent. A waiver or consent,
express or implied, to or of any breach or default by any Person in the
performance by such Person of its obligations with respect to the Company
shall not be a consent or waiver to or of any other breach or default in
the performance by such Person of the same or any other obligations of such
Person with respect to the Company.
SECTION 9.04 Governing Law; Severability. This Agreement shall
be governed by and shall be construed in accordance with the law of the
State of Delaware, excluding any conflict-of-laws rule or principle that
might refer the governance or the construction of this Agreement to the law
of another jurisdiction. In the event of a direct conflict between the
provisions of this Agreement and (i) any provision of the Certificate of
Formation, or (ii) any mandatory provision of the Act, then the applicable
provision of the Certificate of Formation or the Act shall control. If any
provision of this Agreement or the application thereof to any Person or
circumstance is held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of that provision to other Persons or
circumstances shall not be affected thereby and such provision shall be
enforced to the fullest extent permitted by law.
SECTION 9.05 Waiver of Certain Rights; No Bankruptcy Petition.
The Member irrevocably waives any right it may have to maintain any action
for dissolution of the Company or for partition of any Company asset. The
Member and each Manager (by agreeing to act in such capacity) hereby
covenants and agrees (or shall be deemed to have hereby covenanted and
agreed) that, prior to the date which is one year and one day after the
payment in full of every other indebtedness or liability of the Company
represented by any previously issued Series of Bonds and amounts owed under
the Indenture to third-party credit enhancers or hedge agreement
counterparties with respect to such Bonds, it will not institute against,
or join with any other Person in instituting against, the Company, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any Federal or state bankruptcy or
similar law, provided, however, that nothing in this Section 9.05 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from the Company pursuant to this Agreement. In the event that the
Member or any Manager takes action in violation of this Section 9.05, the
Company agrees that it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition or the commencement
of such action and raise the defense that the Member or Manager, as the
case may be, has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its
counsel advises that it may assert. The provisions of this Section 9.05
shall survive the termination of this Agreement and the resignation or
removal of any Manager. Nothing herein contained shall preclude
participation by the Member or a Manager in assertion or defense of its
claims in any such proceeding involving the Company.
SECTION 9.06 Amendment. This Agreement may not be amended,
except in writing by the Member and the Company, upon prior approval of the
Trustee and receipt of notification in writing by each Rating Agency (as
defined in the Indenture) then rating the Bonds of any Class or Series, to
the Trustee and the Company that such amendment will not result in a
reduction or withdrawal of the then current rating by any such Rating
Agency of any outstanding Series or Class of Bonds.
SECTION 9.07 Headings and Sections. The headings in this
Agreement are inserted for convenience only and are in no way intended to
describe, interpret, define, or limit the scope, extent or intent of this
Agreement or any provision hereof.
IN WITNESS WHEREOF, this Limited Liability Company Agreement is
hereby executed by the undersigned as the Member of the Company as of
August __, 1999.
PP&L, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
SCHEDULE A
Schedule of Capital Contributions of Member
COMMON INTEREST
CAPITAL COMMON INTEREST CAPITAL
MEMBER'S NAME CONTRIBUTION PERCENTAGE ACCOUNT
------------- ------------ --------------- -------
PP&L, Inc. $12,000,000 100% $12,000,000
SCHEDULE B
CERTIFICATE OF COMMON INTEREST
of
PP&L TRANSITION BOND COMPANY LLC
A Limited Liability Company
Organized under the Laws of the State of Delaware
This Certificate is issued and shall be held subject to the provisions
of the Certificate of Formation of PP&L TRANSITION BOND COMPANY LLC, a
Limited Liability Company organized under the laws of the State of Delaware
(the "Company"), filed on March 25, 1999 with the Secretary of State of the
State of Delaware, and the Limited Liability Company Agreement dated March
25, 1999 of the Company, as each may be amended from time to time.
This Certificate of Common Interest certifies that PP&L, Inc. is the
registered holder of the entire Common Interest of the Company, which
Common Interest shall be transferable only on the books of the Company by
the holder hereof in person or by a duly authorized attorney upon surrender
of this Certificate with a proper endorsement.
IN WITNESS WHEREOF, this Company has caused this Certificate to be
signed by one of its duly authorized Managers this __ day of July, 1999.
/s/ Xxxx X. Xxxxxx
---------------------------
Title: Manager
PP&L TRANSITION BOND COMPANY LLC
For Value Received the undersigned hereby sells, assigns and transfers unto
___________________________________________________________________________
the entire Common Interest of the Company represented by the within
Certificate and does hereby irrevocably constitute and appoint
___________________________________________________________________________
Attorney, to transfer said Common Interest on the books of the Company with
full power of substitution in the premises.
Dated: __________________
_____________________________
SCHEDULE C
Names Managers
----- --------
1) Xxxx X. Xxxxxx
2) Xxxxx X. Xxxx
3) Xxxxx X. Xxxxxxxxxx
[4) Independent Manager]
[5) Independent Manager]
