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Exhibit 3
AES RED OAK, L.L.C.
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") is made and entered into as of November 23, 1999 by AES Red Oak,
Inc. ("AES") pursuant to and in accordance with the Limited Liability Company
Act of 1992 of the State of Delaware and any successor statute (the "Act").
WHEREAS, AES Red Oak, L.L.C. (the "Company") was formed by the filing of a
Certificate of Formation on September 13, 1998, and the execution of the AES Red
Oak, L.L.C. Limited Liability Company Agreement on October 1, 1998, (the
"Original Agreement"); and
WHEREAS, AES, the sole Shareholder of the Company, desires to amend the
Original Agreement;
NOW, THEREFORE, AES does hereby certify and agree as follows:
ARTICLE I
ORGANIZATION
SECTION 1.1 FORMATION. The Company has been formed as a Delaware limited
liability company by the filing of a certificate of formation (the
"Certificate") under and pursuant to Section 18-201 of the Act and the filing of
a copy of the Certificate in the Office of the Secretary of State of the State
of Delaware.
SECTION 1.2 NAME. The name of the Company is AES Red Oak, L.L.C., or such
other name as the Members (as defined herein) may determine from time to time
and all Company business shall be conducted in such name or such other names
that comply with applicable law and as the Members may designate from time to
time.
SECTION 1.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE. The
registered office of the Company in the State of Delaware shall be 1013 Centre
Road, Wilmington, New Castle, Delaware 19805, or at such other location as the
Officers may from time to time agree. The registered agent at such address for
service of process on the Company in the State of Delaware shall be The
Corporation Service Company, or such other person or persons as the Officers may
designate from time to time in the manner provided by law.
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SECTION 1.4 PURPOSE. The purpose of the Company is to engage in any
business or activity that now or hereafter is not forbidden by Section 18-106 of
the Act and which it may lawfully undertake under the law of any jurisdiction in
which the Company engages in its business.
SECTION 1.5 TERM. The term of the Company shall commence on the date of
filing of the Certificate in the Office of the Secretary of State of the State
of Delaware and shall continue until terminated in accordance with the terms
hereof.
ARTICLE II
MEMBERS; OWNERSHIP; DISPOSITION OF INTERESTS
SECTION 2.1 MEMBERS. The Members of the Company shall be those persons or
entities listed on Schedule 1 hereto (each, a "Member" and, jointly, the
"Members"), all of which are hereby admitted to the Company.
SECTION 2.2 TITLE TO COMPANY PROPERTY. All property owned by the Company,
whether real or personal, tangible or intangible, and wherever located, shall be
deemed to be owned by the Company as an entity, and no Member, individually,
shall have any ownership of such property. The Company may hold its property in
its own name or in the name of a nominee, which may be one of the Members or an
affiliate thereof, or any trustee or agent designated by the Members.
SECTION 2.3 DISPOSITION OF INTERESTS.
(a) No interest in the Company of any Member (a "Membership Interest") may
be disposed of, in whole or in part, without the prior written consent of all
the Members, which consent may be granted or withheld by each such member in its
sole and absolute discretion.
(b) The person to which a Member's Membership Interest is sold, assigned,
transferred or exchanged shall have no right to be admitted as a Member of the
Company unless (i) the Membership Interest is sold, assigned, transferred or
exchanged by a Member who was properly admitted as such pursuant to the terms
hereof, (ii) each Member effecting the sale, assignment, transfer or exchange
and the person to whom the Membership Interest is sold, assigned, transferred or
exchanged executes and delivers a document to the other Members containing a
representation and warranty by each Member effecting such sale, assignment,
transfer or exchange and the person to which such Membership Interest is sold,
assigned, transferred or exchanged to the effect that such
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sale, assignment, transfer or exchange was made in accordance with all laws and
regulations, including securities laws, applicable to such Member or person, as
appropriate and (iii) all of the requirements of Section 2.3(c) are satisfied
with respect to such admission.
(c) A person to whom a Membership Interest is sold, assigned, transferred
or exchanged shall be admitted as a Member of the Company if (i) the existing
Members consent (which consent may be granted or withheld by each such member in
its sole and absolute discretion) to such admission, and (ii) the Company
receives a document setting forth (A) the notice and payment address and
facsimile number of the person to be admitted to the Company as a Member, (B)
the written acceptance by such person of all the terms and provisions of this
Agreement, (C) an agreement by such person to perform and discharge timely all
of the obligations and liabilities in respect of the Membership Interest being
obtained, (D) a power of attorney in the form of Section 8.1 hereof executed by
such person and (E) the effective date of the sale, assignment, transfer or
exchange.
SECTION 2.4 ADDITIONAL MEMBERS. Additional persons may be admitted as
Members in the Company, without the sale, assignment, transfer or exchange by an
existing Member of all or any part of its Membership Interest, only with the
consent of all of the existing Members and upon the making of such capital
contribution, if any, as the existing Members shall require from such person. In
such event, the percentages of the existing and additional Members shall be
adjusted pro rata or assigned, as the case may be, to reflect the capital
contribution, if any, of such additional Member. If the additional Member makes
no capital contribution, the existing Members shall assign a percentage to the
additional Member and the percentages of the existing Members shall be adjusted
accordingly.
SECTION 2.5 FORM OF CERTIFICATES. Each Member shall receive a certificate
in such form as prescribed by the Directors ("Director" defined as a member of
the Board elected as provided in Section 4.2.) and by any applicable law, which
certificate shall certify the interest of such Member in the Company.
SECTION 2.6 MEMBERSHIP INTERESTS AS SECURITIES. All Membership Interests in
the Company shall be "securities" governed by Article 8 of the Uniform
Commercial Code in any jurisdiction (a) that has adopted revisions to Article 8
of the Uniform Commercial Code substantially consistent with the 1994 revisions
to Article 8 adopted by the American Law Institute and the National Conference
of Commissioners on
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Uniform State Laws and (b) whose laws may be applicable, from time to time, to
the issues of perfection, the effect of perfection or non-perfection, and the
priority of a security interest in Membership Interests in the Company
SECTION 2.7 LIABILITY TO THIRD PARTIES. The debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall always and hereafter be solely the debts, obligations, and liabilities of
the Company and no Member shall have any personal liability for any obligation
of the Company, whether such obligations arise in contract, tort or otherwise,
except to the extent that any such obligations are expressly assumed in writing
by such Member.
SECTION 2.8 RESIGNATION. A Member does not have the right or power to
resign or withdraw from the Company as a Member unless an additional member or
members have been properly admitted in accordance with Section 2.3(c) or Section
2.4.
ARTICLE III
CAPITALIZATION, ALLOCATIONS AND DISTRIBUTIONS
SECTION 3.1 CAPITAL ISSUANCE. A total of One Thousand (1000) Units are
hereby authorized for issuance, of which Ten (10) Units shall be issued to the
Member(s) as set forth in Schedule 1.
SECTION 3.2 PERCENTAGE INTERESTS. For all purposes of this Agreement, the
term Percentage Interest with respect to a particular Member shall mean that
percentage interest set forth on Schedule 1 opposite such Member's name.
SECTION 3.3 CAPITAL CONTRIBUTIONS.
(a) Each Member has made an initial capital contribution to the Company in
the aggregate amount set forth opposite such Member's name on Schedule 1 hereto.
Except as required by law, no Member shall have an obligation to make additional
capital contributions to the Company.
(b) Except as may be required by law, at no time during the term of the
Company shall a Member with a negative balance in its Capital Account (as
defined herein) have any obligation to the Company or to the other Members to
restore such negative balance.
SECTION 3.4 CAPITAL ACCOUNTS. Each Member's capital account ("Capital
Account") shall be maintained on the
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books of the Company for each Member and the balance of each Member's Capital
Account shall be equal to such Member's initial capital contribution pursuant to
Section 3.3 above, and shall be (i) increased by (A) the aggregate amount of
such Member's additional capital contributions to the Company, (B) the book
value of property contributed by such Member to the Company, net of liabilities
secured by such property that the Company is considered to assume or take
subject to under Section 752 of the Code, and (C) profits and items of income
and gain allocated to such Member, and (ii) shall be decreased by (A) cash
distributions to such Member from the Company, (B) the book value of property
distributed in kind to such Member, net of liabilities secured by such property
that such Member is deemed to assume or take subject to under Code Section 752,
and (C) losses and items of loss or deduction allocated to such Member. The
provisions of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with Section 1.704-1(b) of Treasury Regulations pursuant to
the Code and shall be interpreted and applied in a manner consistent with such
regulation. To the extent such provisions are inconsistent with such regulations
or are incomplete with respect thereto, the Capital Accounts of the Member shall
be maintained in accordance with such regulations.
SECTION 3.5 ALLOCATIONS AND DISTRIBUTIONS.
(a) Profits and losses of the Company for each fiscal year shall be
allocated pro rata to the Members according to the Percentage Interests.
(b) Every item of income, gain, loss, deduction, credit or tax preference
entering into the computation of profits and losses, or applicable to the period
during which such profits or losses were recognized, shall be considered
allocated to each Member in the same proportion as profits or losses are
allocated to such Members.
(c) Distributions to the Members shall be shared pro rata according to the
Percentage Interests. Distributions may be made from time to time in such
amounts as the Directors in their discretion shall determine. Immediately prior
to a distribution of property other than cash, the Capital Accounts shall be
adjusted as provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(f).
(d) To the extent an adjustment to the adjusted tax basis of any Company
asset pursuant to Code Section 734(b) or Code Section 743(b) is required,
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such
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adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Members in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m).
(e) The allocation of profits and losses, pursuant to Section 3.5 hereof
shall not result in any Member having an Adjusted Capital Account Deficit at the
end of any fiscal year. In the event any Member unexpectedly receives any
adjustments, allocations, or distributions described in Treasury Regulations
Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Company gross income and gain shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the Adjusted
Capital Account Deficit of such Member as quickly as possible, provided that an
allocation pursuant to this Section 3.4(e) shall be made only if and to the
extent that such Member would have an Adjusted Capital Account Deficit after
making all other allocations provided for hereunder on the basis that the
allocation provisions of this Section 3.4(e) are of no force or effect and such
allocation does not create or increase an Adjusted Capital Account Deficit of
any other Member.
(f) If a Membership Interest has been transferred during a fiscal year,
distributions shall be made, as among the transferor and the transferee, to the
person owning the Member's Membership Interest on the date of the distribution.
Profits, losses and items allocated under this Section 3.5 (other than income or
loss from a capital event) shall be allocated by the number of days each person
held the Membership Interest (except if the transferor and the transferee agree
to the contrary and so advise the other Members in writing within 10 days after
the end of the Fiscal Year in which the assignment occurs) and profits or losses
from any capital event shall be allocated to the holder of the Membership
Interest on the day the capital event occurred during such fiscal year.
(g) In connection with any distribution, whether upon winding up of the
Company or otherwise and whether or not it shall constitute a return of capital,
no Member shall have the right to demand or receive property other than cash,
although the liquidator may distribute property other than cash. No Member shall
have priority over any other Member either as to the return of its capital
contribution or as to allocation of profits or losses of the Company.
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(h) If any Company property has a book value different from its adjusted
tax basis to the Company for U.S. federal income tax purposes (whether by reason
of the contribution of such property to the Company, the revaluation of such
property hereunder, or otherwise), allocations of taxable income, gain, loss and
deductions under this Section 3.5(h) with respect to such asset shall take
account of any variation between the adjusted tax basis of such asset for
federal income tax purposes and its book value in the same manner as under Code
Section 704(c) or the principle set forth in Treasury Regulation Section
1.704-1(b)(2)(iv)(g), as the case may be. Each item of income, gain, loss,
deduction and credit and all other items governed by Code Section 702(a) shall
be allocated among the Members in proportion to the allocation of profits,
losses and other items to such Members hereunder, provided that any gain
recognized from any disposition of a Company asset which is treated as ordinary
income because it is attributable to the recapture of any depreciation or
amortization shall be allocated among the Members in the same ratio as the prior
allocations of profits, losses or other items which include such depreciation or
amortization, but not in excess of the gain otherwise allocable to each such
Member. Except as set forth in this Section 3.4(h), allocations for tax purpose
of items of income, gain, loss and deduction, and credits and basis therefor,
shall be made in the same manner as allocations for book purposes as set forth
in Section 3.5(a). Allocations pursuant to this Section 3.5(h) are solely for
purposes of federal, state and local income taxes and shall not affect, or in
any way be taken into account in computing, any Member's Capital Account or
share of profits, losses, other items or distributions pursuant to any provision
of this Agreement, or Membership Interest.
ARTICLE IV
MANAGEMENT AND OPERATION
ARTICLE IV
MANAGEMENT
4.1. MANAGEMENT OF COMPANY. As provided in this Agreement, all management
powers over the business and affairs of the Company shall be vested in a Board
of Directors (the "Board") and, subject to the direction of the Board, the
Officers, who shall collectively constitute "managers" of the Company within the
meaning of the Act. No Member, by virtue of having the status of a Member, shall
solely have any management power over the business and affairs of the Company or
actual or apparent authority to enter into contracts on
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behalf of, or to otherwise bind, the Company. Except as specifically provided in
this Agreement, the authority and functions of the Board on the one hand and of
the Officers on the other shall be identical to the authority and functions of
the board of directors and officers, respectively, of a corporation organized
under the Delaware General Corporation Law. Thus, except as otherwise
specifically provided in this Agreement, the business and affairs of the Company
shall be managed under the direction of the Board, and the day-to-day activities
of the Company shall be conducted on the Company's behalf by the Officers, who
shall be agents of the Company. In addition to the powers that now or hereafter
can be granted to managers under the Act and to all other powers granted under
any other provision of this Agreement, the Board (subject to Section 4.2) and
the Officers (subject to Section 4.4 and the direction of the Board) shall have
full power and authority to do all legal things on such terms as they, in their
sole discretion, may deem necessary or appropriate to conduct, or cause to be
conducted, the business and affairs of the Company
4.2 THE BOARD OF DIRECTORS.
(a) NUMBER; TERM OF OFFICE; QUALIFICATIONS; VACANCIES. The number of
Directors that shall constitute the whole Board shall be three (3). Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the Directors then in office,
although less than a quorum, or by the sole remaining Director, and the
Directors so chosen shall hold office, subject to Sections 4.2(c) and 4.2(d),
until the next meeting of Members and until their respective successors are
elected and qualified.
(B) DIRECTORS. The Board shall be those persons listed on Schedule 2
hereto, who shall serve until successor Directors are elected pursuant to
Section 4.2(a).
(c) RESIGNATION. Any Director may resign at any time by giving written
notice of such resignation to the Board or the President or the Secretary of the
Company. Any such resignation shall take effect at the time specified therein
or, if no time is specified, upon receipt thereof by the Board or one of the
above-named Officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective. When one or more
Directors shall resign from the Board, effective at a future date, a majority of
the Directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereof to take effect when
such resignation or resignations shall become effective and each
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Director so chosen shall hold office as provided in this Agreement in the
filling of other vacancies.
(d) REMOVAL. Any Director may be removed, with or without cause, by the
vote or by the written consent of the holders of a majority of the issued and
outstanding Membership Interests.
(e) REGULAR MEETINGS; NOTICE. Regular meetings of the Board shall be held
at such time and at such place as the Board may from time to time prescribe. No
notice need be given of any regular meeting and a notice, if given, need not
specify the purposes thereof.
(f) SPECIAL MEETINGS; NOTICE. A special meeting of the Board may be called
at any time by the President or any person acting in the place of the President
and shall be called by the President or by the Secretary upon receipt of a
written request to do so specifying the matter or matters appropriate for action
at such a meeting that are proposed to be presented at the meeting and signed by
at least two Directors. Any such meeting shall be held at such time and at such
place, within or without the State of Delaware, as shall be determined by the
body or person calling such meeting. Notice of such meeting stating the date,
time and place thereof shall be given by mail, telephone or personally.
(g) QUORUM. A majority of the whole Board shall constitute a quorum for the
transaction of business, but in the absence of a quorum, a majority of those
present (or if only one be present, then that one) may adjourn the meeting,
without notice other than announcing the meeting, until such time as a quorum is
present. Except as otherwise required by this Agreement, the vote of the
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
(h) INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be
taken at a meeting of the Board or of any committee thereof may be taken without
a meeting if a consent in writing setting forth the action so taken shall be
signed by all of the members of the Board or of such committee, as the case may
be, entitled to vote with respect to the subject matter thereof, and such
consent shall have the same force and effect as a unanimous vote.
(i) INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company shall indemnify
to the full extent permitted by the laws of the State of Delaware, as from time
to time in effect, the Directors and Officers of the Company.
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(j) LIMITATION OF LIABILITY. The debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Officer or Director
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being an Officer or Director of the Company.
4.3 MEETINGS OF MEMBERS.
(a) SPECIAL MEETINGS. A special meeting of Members may be called by the
Board or the President or holders of not less than one-tenth (1/10) of the
Membership Interests entitled to vote at the meeting. Any such meeting shall be
held on such date and at such time and place as shall be determined by the body
or person calling such meeting and as shall be stated in the notice of such
meeting.
(b) QUORUM. A majority of the holders of Membership Interests present in
person or represented by proxy at a meeting shall constitute a quorum at a
meeting of Members.
(c) VOTE. The affirmative vote of the majority of the Membership Interests
represented at a meeting at which a quorum is present and entitled to vote on
the subject matter shall be the act of the Members.
(d) INFORMAL ACTION BY MEMBERS. Any action which may be taken at a meeting
of Members may be taken without a meeting if a consent in writing setting forth
the action so taken shall be signed by the Members having not less than the
minimum number of votes that would be necessary to take such action at a meeting
at which Members entitled to vote thereon were present and voted. Such consent
shall have the same force and effect as if such action had been taken at a
meeting of Members.
4.4 OFFICERS.
(a) IN GENERAL. Unless otherwise provided by resolution of the Board, the
Officers shall have the titles, powers, authority and duties described below in
this Section 4.4. Officers shall be those persons listed on Schedule 2 hereto,
who shall serve until successor Officers are elected Section 4.4(b).
(b) ELECTION; QUALIFICATION. The Officers of the Company shall be a
President, a Vice President, a Secretary and a Treasurer, each of whom shall be
elected by the Board. The Board may elect one or more other Officers as it may
from
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time to time determine. Any one or more offices may be held by the same person.
(c) TERM OF OFFICE. Each Officer shall hold office from the time of such
Officer's election and qualification to the time at which such Officer's
successor is elected and qualified, unless such Officer shall die or resign or
shall be removed pursuant to Section 4.4(d).
(d) RESIGNATION. Any Officer may resign at any time by giving written
notice of such resignation to the Board or the President or the Secretary of the
Company. Any such resignation shall take effect at the time specified therein
or, if no time is specified, upon receipt thereof by the Board or one of the
above-named Officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(e) REMOVAL. Any Officer may be removed at any time, with or without cause,
by the vote of a majority of the whole Board.
(f) VACANCIES. A vacancy however caused in any office of the Company may be
filled for the unexpired portion of the term in the manner provided in this
Agreement for election or appointment of such office.
(g) PRESIDENT. The President shall be the chief executive officer of the
Company and shall have general charge of the business and affairs of the Company
subject however to the right of the Board to confer specified powers on Officers
and subject generally to the direction of the Board. The President shall preside
at all meetings of Members and of the Board.
(h) VICE PRESIDENT. The Vice President shall have such powers and duties as
generally pertain to the office of Vice President and as the Board or the
President may from time to time prescribe. During the absence of the President
or his inability to act, the Vice President shall exercise the powers and shall
perform the duties of the President, subject to the direction of the Board.
(i) SECRETARY. The Secretary shall keep the minutes of all meetings of
Members and of the Board. The Secretary shall exercise the powers and shall
perform the duties incident to the office of Secretary, and those that may
otherwise from time to time be assigned to the Secretary, subject to the
direction of the Board.
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(j) TREASURER. The Treasurer shall have care of all funds and securities of
the Company and shall exercise the powers and shall perform the duties incident
to the office of Treasurer, subject to the direction of the Board. The Board may
delegate to the Treasurer the power to designate a bank or banks as depositories
for the funds of the Company and to designate signatories for the Company's bank
accounts, including authorization of the use of facsimile signatures, and to
change such signatories from time to time, and the Board may authorize the
Treasurer to delegate any of the Treasurer's powers to any other Officer or
agent of the Company.
(k) POWERS OF ATTORNEY. The Company may grant powers of attorney or other
authority as appropriate to establish and evidence the authority of the Officers
and other persons.
4.5. DUTIES OF OFFICERS AND DIRECTORS. Except as otherwise specifically
provided in this Agreement, the duties and obligations owed to the Company and
to the Members by the Officers of the Company and by members of the Board, and
any such duties that may be owed by any Member or by any affiliate of any
Member, shall be the same as the respective duties and obligations owed to a
corporation organized under the Delaware General Corporation Law by its officers
and directors and any such duties that may be owed to such corporation by any
similarly situated stockholder or affiliate thereof, respectively.
ARTICLE V
TAXES
SECTION 5.1 TAX RETURNS.
(a) The Company shall file a partnership tax return in the United States at
the end of each fiscal year and for tax purposes it is the intent of the Members
that the Company be taxed as a partnership in the United States for U.S.
federal, state, and local tax purposes. The Company is hereby designated to be
the "Tax Matters Partner" for U.S. federal income tax purposes pursuant to
Section 6231 of the Code with respect to all taxable years of the Company. The
Tax Matters Partner shall prepare or cause to be prepared all tax returns
required of the Company.
(b) The Tax Matters Partner shall, to the extent permitted by applicable
law and regulations, and upon obtaining any necessary approval of the United
States Commissioner of Internal Revenue, elect to use such methods of
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depreciation, and make all other U.S. federal income tax elections in such
manner, as it determines to be most favorable to the Members. The Tax Matters
Partner shall at the Company's expense defend all tax audits and litigation with
respect to the Company's tax returns, and shall not undertake any act which
would cause the books, records, or tax returns of the Company or the Members to
be inconsistent with such acts, elections and steps taken by the Company.
(c) The Tax Matters Partner shall, upon the written request of any Member,
cause the Company to file an election under Code Section 754 and the Treasury
Regulations thereunder to adjust the basis of the Company's assets under Code
Section 734(b) or 743(b) and a corresponding election under the applicable
sections of U.S. state and local law.
ARTICLE VI
BOOKS AND REPORTS
SECTION 6.1 BOOKS OF ACCOUNT. The Company shall maintain its books and
records and shall determine all items of profits and losses and distributions on
a cash basis in accordance with principles applicable in determining taxable
income or loss for federal income tax purposes for partnerships and consistent
with accounting methods used by the Company in determining taxable income or
loss for U.S. federal income tax purposes. The Company shall also keep all other
records necessary or convenient to record the Company's business and affairs and
sufficient to record the determination and allocation of all profits, losses,
distributions and other amounts as may be provided for herein.
SECTION 6.2 REPORTS. As soon as practicable after the end of each fiscal
year, there shall be prepared and delivered to each Member a financial statement
for the Company consisting of the following: (i) income statements and balance
sheets for such fiscal year showing separately the computation of profits or
losses and (ii) the amount of the distributions to the Members and the effect of
such distributions on the balance sheet of the Company and the Capital Accounts
of each Member, and (iii) a report reviewed setting forth in sufficient detail
all such information and data with respect to the business transactions effected
by or involving the Company during such fiscal year as shall enable each Member
to prepare all its tax returns in accordance with all relevant laws, rules and
regulations then prevailing.
SECTION 6.3 ACCESS TO BOOKS. The books and records of the Company shall be
available to each Member or its representatives for inspection and audit upon
reasonable
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notice during normal business hours at the principal office of the
Company. The Company shall cause the auditors to cooperate in such inspection
and audit and to provide any of their work papers requested in connection
therewith.
SECTION 6.4 FISCAL YEAR. The fiscal year of the Company shall end on the
31st day of December of each year.
ARTICLE VII
DISSOLUTION, LIQUIDATION, AND TERMINATION
SECTION 7.1 DISSOLUTION. The Company shall be dissolved and its affairs
shall be wound up upon the first to occur of any of the following:
(a) the written consent of all the Members; or
(b) the entry of a decree of judicial dissolution under Section 18-802 of
the Act.
SECTION 7.2 LIQUIDATION AND TERMINATION. On dissolution of the Company, the
Members shall appoint one or more persons as liquidators of the Company. The
liquidators shall forthwith commence the winding up of the Company's business
and the liquidation of its property. All proceeds from the sale or disposition
of the property of the Company shall, to the maximum extent permitted by law, be
applied as follows:
(a) All of the Company's debts and liabilities shall be paid and discharged
in the order of priority provided by law; and
(b) The balance shall be distributed to the Members in accordance with
their relative respective positive Capital Account balances until such balances,
if any, are reduced to zero and then the balance shall be distributed to each
Member in accordance with their Percentage Interests.
The liquidator(s) may make distributions of the Company's assets in kind.
The choice of which, if any, Company assets are to be distributed in kind shall
be within the sole discretion of the liquidator(s) and shall be binding upon all
Members. Unless otherwise agreed by the Members, distributions of property in
kind shall be shared by all the Members in accordance with their Percentage
Interests. The costs of liquidation shall be borne as a Company expense. Until
final distribution, the liquidator(s) shall continue to operate the Company
properties with all the power and authority of the Officers hereunder.
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SECTION 7.3 NO RESTORATION OF NEGATIVE CAPITAL ACCOUNTS. Except as required
under applicable laws of the State of Delaware, or in respect of any negative
balance resulting from a distribution in contravention of this Agreement, at no
time shall a Member with a negative balance in its Capital Account have an
obligation to restore such negative balance.
SECTION 7.4 CANCELLATION OF FILINGS. Upon completion of the distribution of
Company assets as provided in Section 8.2 hereof, the Company is terminated, and
the Officers shall file a certificate of cancellation with the Secretary of
State of the State of Delaware and shall take such other actions as may be
necessary to terminate the Company.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 POWER OF ATTORNEY. Each Member, by execution of this Agreement
or a counterpart hereof, irrevocably constitutes and appoints the Officers, with
full power of substitution, its agent and attorney-in-fact in its name, place
and stead to make, execute, swear to, verify, acknowledge, amend, file, record,
deliver and publish (a) any certificate of limited liability company or
amendments to any certificate of limited liability company required to be filed
on behalf of the Company pursuant to the Act, (b) a counterpart of any amendment
to this Agreement for the purpose of substituting as a Member an assignee or
assignees of a Member or for the purpose of admitting an additional Member, (c)
a counterpart of this Agreement for the purpose of filing or recording such
counterpart in any jurisdiction in which the Company may own property or
transact business, (d) all certificates and other instruments necessary to
qualify or continue the Company as a limited liability company in the
jurisdictions where the Company may own property or transact business, (e) any
other instrument which is now or which may hereafter be required by law to be
filed on behalf of the Company which does not increase the obligations of any
Member, and (f) any other certificates or instruments necessary, advisable or
appropriate to conduct the business and affairs of the Company which do not
increase the obligations of any Member. The power of attorney granted by this
Section 8.1 is irrevocable and shall survive the assignment or transfer by any
Member of all or any part of his interest in the Company and, being coupled with
an interest, shall survive the incapacity or other legal disability of each such
Member. Any person dealing with the Company may, without further inquiry,
conclusively presume and rely upon the fact that any
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certificate or instrument described in this Section 8.1 and executed by such
agent and attorney-in-fact is authorized, valid and binding.
SECTION 8.2 NOTICES. Except as otherwise expressly provided in this
Agreement, all notices, demands, requests, or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be given either (a) in person, (b) by United States mail, certified or
registered, return receipt requested, postage prepaid, (c) by prepaid telegram,
telex, cable, telecopy, or similar means (with signed confirmed copy to follow
by mail in the same manner as prescribed by clause (b) above) or (d) by
expedited delivery service (charges prepaid) with proof of delivery to the
following:
AES Red Oak, L.L.C.
1001 North 19th Street, Suite 2000
Arlington, VA 22209
Attn.: William R. Luraschi
SECTION 8.3 AMENDMENT. This Agreement may be changed, modified or amended
only by an instrument in writing duly executed by all the Members.
SECTION 8.4 PARTITION. Each of the Members hereby irrevocably waives, to
the extent it may lawfully do so, any right that such Member may have to
maintain any action for partition with respect to the Company property.
SECTION 8.5 ENTIRE AGREEMENT; WAIVERS AND MODIFICATIONS.
(a) This Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes any and all prior and
contemporaneous contracts, understandings, negotiations and agreements with
respect to the Company and the subject matter hereof, whether oral or written.
(b) Any waiver or consent, express, implied or deemed, to or of any breach
or default by any person in the performance by that person of its obligations
with respect to the Company or any action inconsistent with this Agreement is
not a consent or waiver to or of any other breach or default in the performance
by that person of the same or any other obligations of that person with respect
to the Company or any other such action. Failure on the part of a person to
complain of any act of any person or to declare any person in
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default with respect to the Company, irrespective of how long that failure
continues, does not constitute a waiver by that person of its rights with
respect to that person or its rights with respect to that default until the
applicable statute of limitations period has lapsed. All waivers and consents
hereunder shall be in writing and shall be delivered to the other Member in the
manner set forth in Section 8.2 A Member may grant or withhold any waiver or
consent in its absolute sole discretion.
SECTION 8.6 SEVERABILITY. Every provision in this Agreement is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
SECTION 8.7 BINDING EFFECT; NO THIRD-PARTY BENEFICIARIES. Subject to the
restrictions set forth in Section 2.3 herein, this Agreement is binding on and
inures to the benefit of the Members and their respective heirs, legal
representatives, successors and assigns. Nothing in this Agreement shall provide
any benefit to any third party or entitle any third party to any claim, cause of
action, remedy or right of any kind, it being the intent of the parties that
this Agreement shall not be construed as a third-party beneficiary contract.
SECTION 8.8 GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. 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 is not affected thereby, and that provision shall be enforced to
the greatest extent permitted by law.
SECTION 8.9 RECOURSE ONLY TO MEMBER. The sole recourse of the Company or
any Member for performance of the obligations of a particular Member hereunder
shall be against such Member and its assets and not against any assets or
property of any present or future Member, officer, employee, servant, executive,
director, agent, authorized representative or affiliate of such Member.
8.10 MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts with the same effect as if all signing parties had signed the same
document. All
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counterparts shall be construed together and constitute the same instrument.
IN WITNESS WHEREOF, the Member, intending to be legally bound, has executed
this Agreement as of the date first set forth above.
AES Red Oak, Inc.
By: /s/ William R. Luraschi
-------------------------------------------
Name: William R. Luraschi
Title: Vice President
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Dated: November 23, 1999
AES Red Oak, L.L.C.
Schedule 1
<TABLE>
<CAPTION>
Initial capital Units Percentage
Members contribution Issued Interest
----------------------- --------------------- ----------- -------------
<S> <C> <C> <C>
AES Red Oak, Inc. $10.00 10 100%
</TABLE>
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<PAGE>
Dated: November 23, 1999
AES Red Oak, L.L.C.
Schedule 2
<TABLE>
<CAPTION>
Name Title
--------------------------------- -----------------------------
<S> <C>
John R. Ruggirello Director and President
Barry J. Sharp Director
Vice President and Chief
Financial Officer
Roger F. Naill Director
Steven V. Hase Vice President
Edward C. Hall Vice President
Kevin L. Polchow Vice President
Joel Abramson Vice President
Charles Falter Vice President
Patricia Rollin Vice President
Louis J. Anatrella Vice President
Bart Rossi Vice President
Robert A. Colman Vice President
Willard C. Hoagland III Treasurer
Maureen B. Shearer Secretary
</TABLE>
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