Resolution No. 9510 (5)GUARANTY OF BICENT HOLDINGS LLC
BICENT HOLDINGS LLC, a Delaware limited liability company ("Guaranto ') hereby,
by execution of this Guaranty (this "Guaranty"), unconditionally and irrevocably guarantees to
the City of Vernon, California, a municipal corporation and a chartered city duly organized and
existing under and by virtue of the Constitution and laws of the State of California and its
Charter (the or "Seller") as follows. -
RECITALS
A. Seller and Beowulf (Vernon) Power LLC, a Delaware limited liability company
'), are ente g into a Purchase and Sale Agreement between Seller and
("Beowulf'or "Purchaser'
Beowulf, dated as of October 8, 2007 (as amended, supplemented or otherwise modified from
time to time, the "PSA").'
B. Guarantor and Beowulf are affiliated. Guarantor expects to derive direct and
indirect benefits from Beowulf s acquisition of the assets under the PSA. Guarantor
acknowledges that Seller is relying on this Guaranty and would not enter into the PSA without
this Guaranty.
C. Capitalized terms used and not otherwise defined herein shall have the respective
meanings ascribed to them in the PSA.
NOW THEREFORE, Guarantor agrees as follows:
1. Guaranj�� Subject to Paragraph 2 below, Guarantor hereby unconditionally and
irrevocably guarantees to Seller as primary obligor and not merely as surety, the due and
immediate payment of any and all amounts of damages, whether now in existence of hereafter
arising (including without limitation all amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the U.S. Bankruptcy Code of,1978, as amended (the
"Code")), payable under the PSA by Purchaser following the termination of the PSA arising
solely as a result of the breach by Purchaser of its obligations under- the PSA (all such amounts,
as applicable and without duplication, being the "Obligations") when and as the same shall
become due and payable according to the terms thereofi it being understood that in no event shall
the Guarantor be required to pay to any person under, in respect of, or in connection with this
Guaranty more than the Cap Amount and that the Guarantor shall not have any obligation or
liability to any person relating to, arising out of or in connection with this Guaranty or the PSA
other than as expressly set forth herein. In case of the failure of Beowulf punctually to make any
such payment� Guarantor hereby agrees to make such payment, or cause such payment to be
made, promptly upon demand made by Seller to Guarantor; provided, however that delay by
Seller in giving such demand shall in no event affect Guarantor's obligations under this
Guaranty. Guarantor's obligations under this Guaranty -are separate and independent from the
Obligations, and Seller may make demand under and enforce this Guaranty notwithstanding the
ffict that no demand is made on and no action is taken against Beowulf or any other party and
notwithstanding that any such demand or action is stayed or enjoyed in a proceeding under the
Code or otherwise. Guarantor shall make all payments due under this Guaranty without set-off,
LA\1777081.9
it
counterclaim or deduction. Guarantor hereby agrees that its obligations under this Guaranty
constitute a guaranty of payment when due and not of collection. This Guaranty becomes
effective concurrent with the effectiveness of the PSA, according to its terms.
2. Limitation on Liability; Letter of Credit.
(a) Notwithstanding any other provision of this Guaranty, Guarantor's obligations
under this Guaranty shall not exceed the sum of the Cap Amount and the amounts, if any,
that become due and payable under Paragraph 9. The "Cap Amoun ' is equal to $17.5
million; provided, however, that if the Letter of Credit (as defined below) is provided in
accordance with Paragraph 2(b), the Cap Amount shall automatically be reduced to $15
million and the amounts, if any, that are drawn by Seller against the Letter of Credit shall
further reduce the Cap Amount on a dollar for dollar basis.
(b) . Not later than December 14, 2007, Guarantor agrees that it will deliver to Seller
an irrevocable standby letter of credit in a stated amount equal to $15 million issued
substantially in the form attached hereto as Annex A (the "Letter of Credit"). The Letter
of Credit shall be issued by a bank of recognized standing located in the United States.
3. Discharge. Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of any other circumstances that might constitute a legal or equitable
discharge of a guarantor or a defense of a guarantor. This Guaranty shall continue to be effective
if Beowulf merges orconsolidates with or into another entity, loses its separate legal identity or
ceases to exist.
4. Reinstatement. This Guaranty shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in
part� is rescinded or must otherwise be returned by Seller upon the insolvency, bankruptcy or
reorganization of Beowulf or otherwise, all as though such payment had not been made.
5. Waiver of Notices. Guarantor hereby . waives notice of acceptance of this
Guaranty; notice of the Obligations; diligence; . presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy
of Beowulf, all demands whatsoever, except as rioted in Paragraph 1; and any right to require a
demand upon or a proceeding against Beowulf.
6. Waiver of Immunity. In addition Guarantor irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective
of their use or intended use), all immunity on any grounds from (A) suit, (B) jurisdiction of any
court� (C) relief by way of injunction, order for specific performance or for recovery of property,
(D) attachment of its assets (whether before or after judgment) and (E) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be entitled in any
proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by
app . licable law, that it will not claim any such immunity in any proceedings.
7. Waiver of Suretyship Defenses. Guarantor waives any applicable suretyship
defenses and agrees that Seller may at any time and from time to time without notice to or
consent of Guarantor and without impairing or releasing the obligations of Guarantor hereunder,
LAU777081.9
(A) agree with Beowulf to make any change in the terms of the Obligations (however
fundamental); (B) take or fail to take any action of any kind in respect of any security for or
other guaranty of the Obligations; (C) exercise or refrain from exercising any rights against
Beowulf or others in respect of the Obligations or grant any forebearances, waivers or extensions
in respect of the Obligations; or (D) compromise or subordinate the Obligations, including any
security therefore or other guaranties thereof
.8. Assignment. This Guaranty shall be binding upon Guarantor, its successors and
permitted assigns until all the Obligations have been satisfied in full. Neither Seller'nor
Guarantor may assign its rights nor delegate its obligations under this,Guaranty, in who] e or in
-part, without the prior written consent of Seller oi the Guarantor, as the case may be; pEQ3Lded
however that the Guarantor can assign its rights, interests and obligations hereunder, without the
prior written consent of Seller, to any affiliated entity; provided that no such assignment
shall relieve the Guarantor of its obligations hereunder. Any purported assignment or delegation
absent such consent is void.
9. F4penses and Interest. If Guarantor fails to Pay all or any of the sums due
hereunder within 15 days after demand from Seller, Guaranty shall pay to Seller on demand (a)
C4: interest at a rate Of 10% Per annurn from the date amounts are due and payable hereunder
following demand therefor and until such amounts are paid.and (b) the out-of-pocket expenses,
(including the reasonable fees and expenses of Seller's counsel) incurred by Seller in enforcing
this Guaranty.
10. Continuing Guaranty. This Guaranty shall remain in full. force a nd effect and
shall be binding on the Guarantor, its successors and assigns until all of the -Obligations and all
amounts payable under this Guaranty have been indefeasibly paid, observed, performed or
satisfied in full. Notwithstanding the foregoing, this Guaranty shall terminate and the Guarantor
shall have no further obligations under this Guaranty on the earlier of (i) the consummation of
the Closing and 1(ii) the termination of the PSA in accordance with its terms by . mutual consent of
Purchaser and SpIler.
11. No Recourse. Except for the obligations of the Guarantor under d-ds Guaranty or
of any assignee of the Guarantor Of the Guaranty, , and notwithstanding the fact that the
Guarantor may be a limited liability company, by its acceptance of the benefits of this Guaranty,
Seller acknowledges and agTees that it has no right of recovery by virtue of this Guaranty
against, and no personal liability shall attach to, the former, current or future stockholders,
directors, officers, employees, agents, affiliates, members, managers, general or limited partners
or assignees of the Guarantor or Purchaser, or any former, current or future stockholder, director,
officer, employee, general or limited partner, member, manager, affiliate, agent or assignee of
any of the fbre�oing (collectively, but not including Purchaser, any assignee of Purchaser, the
Guarantor and ahy assignee of the Guarantor, each a "Non -Recourse Partv'�. Nothing set forth
in this Guaranty shall affect or be construed to affect any liability of Purchaser to Seller or shall
confer or give or shall be construed to confer or give to any person other than Seller ( . including
any person acting in a representative capacity) any rights or remedies against any person
including the Guarantor, except as expressly set forth herein.
LAU777081.9
a,
12. Representations and Warranties. Guarantor represents, to Seller that:
(a) It is duly organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws in good standing;
(b) It has the power to execute this Guaranty and any other documentation relating to
this Guaranty to which it is a party, to deliver this Guaranty and any other documentation
relating to this Guaranty that it is required by this Guaranty to deliver and to perform its
obligations under this Guaranty and has taken all necessary action to authorize such
execution, delivery and performance;
(c) Such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment or
any court or other agenpy of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(d) All governmental and other consents that are required to have been obtained by it
with respect to this Guaranty have been obtained and are in full force and effect and all
conditions of any such consents have been complied with;
(e) 'Its obligations under this Guaranty constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws Affecting creditors'
rights generally and subject as to enforceability, to equitable principles of general
application (regar I dless of whether enforcement is sought in a proceeding , in equity or at
law)); and
(0 There is not pending or, to its knowledge, threatened against it or any of its
affiliates any action, suit or proceeding at law or in equity or before any court tribunal,
governmental body, agency or official or any arbitrator that could reasonably be expected
to affect the legality, validity or enforceability against it of this Guaranty or its ability to
perform its obligations under this Guaranty.
13. Law; Jurisdiction. This Guaranty shall he governed by, and construed in
accordance with the internal laws of the State of New York without giving effect to principles of
conflicts of law. Seller and Guarantor agree to the exclusive jurisdiction of courts located in the
State of New York, United States of America, over any disputes anising under or relating to this
Guaranty.
14. Counterparts. This Guaranty may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate -counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same instrument.
15. No Third Party Beneflelaries. Except for the rights of Non -Recourse Parties
provided under Section 12, the parties hereby agree that their respective representations,
warranties and covenants set forth herein are solely for the benefit of the other party hereto, in
accordance with. and subject to the terms of this Guaranty, and thisGuaranty is not intended to,
IM777081.9
and does not, confer upon any person other than the parties hereto any rights or remedies
hereunder, including, the right to rely upon the representations and warranties set forth herein.
16. Miscellaneous.
(a) This Guaranty contains the entire,agreement between the parties relative to the
subject matter hereof and supersedes all prior agreements and undertakings between the
parties with respect to the subject matter hereof. No modification or waiver of any
provision hereof shall be enf6recable unless approved by the parties hereto in writing.
(b) All parties acknowledge that each party and its counsel have reviewed this
Guaranty and that any rule of construction to the effect that any ambiguities are to be
resolved against the draffing party shall not be employed in the interpretation of this
Guaranty.
17. Headings. The headings in this Guaranty are for convenience only and shall not
affect interpretation.
[Signature pagefiflows]
LA11777081.9
KI
IN VaTNESS WtMREOF, 64mrantor has oamd this Guaranty to'b.c cxmuted in
its -name'by it� duly ourborizedIppresentative.
BICE HOLIXN�I&LI�C. a Oclawar.e
Iiiijited lkbifity-wtp9hy
N b� PWI Pn,'gpr'
T41q:
Accqpted and Agrctxl. to.-
bTY-:OF'-VERNON
Muc: Etic T. Fresch
Title: City Administratbr
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed in
its name by its duly authorized representative.
BICENT HOLDINGS LLC, a Delaware
limited liability company
By:
Name: Paul Prager
Title:
Accepted'and Agreed to:
CITY OF VERNON
By:
Narne: Eric T. Fresch
Title: City Administrator
M
ANNEX A
Form of Letter of Credit
Issuing Bank Letterhead Address
Date: 12007
Irrevocable Standby Letter of Credit Number -
Beneficiary: City of Vernon Applicant:
[address] Address:
[Advising Bank, if applicable]
[Confirming Bank, if applicable]
Amount: USD [Amount)
US Dollars (Spell out amount in words]
We hereby issue our Irrevocable Standby Letter of Credit at this office in your favor for
the account of [insert the appropriate party: ("Account Party") and at the
request of the Account Party by sight payment against the following documents:
1. Your sight draft drawn on us marked "drawn under [Issuing Bank]
[Letter of Credit Number] dated [Date]";
AND
2. Beneficiary's signed statement certifying one of the following:
A. "Account Party and/or Beowulf (Vernon) Power LLC has failed to
close the transactions under the Purchase and Sale Agreement (the
"PSA"), dated as of October _, 2007, between City of Vernon, as
Seller, and Beowulf (Vernon) Power LLC, as Purchaser Purchaser
in breach of the PSA;" or
B. "The Beneficiary has not received, a replacement "Letter of Credit"
(as defined in the Purchase and Sale Agreement), within five (5)
business days of the senior unsecured long-term debt rating of the
issuing bank failing below A2 from Moody's Investor Services,
Inc. or A from Standard & Poor's Rating Group;" or
C. "The date of this certificate is within thirty (30) days of the
Expiration Date and, as of the date hereof, the Beneficiary has not
received a substitute letter of credit reasonably acceptable to Seller
that replaces the expiring letter of credit."
The Expiration Date shall be the earlier of- (i) [insert date that is at least 364 days] after
the Effective Date; and (ii) the date on wMch the Account Party receives the original of
this Letter of Credit is returned by the Beneficiary.
Special Conditions:
L Partial drawing(s) are permitted.
2. All banking charges associated with this Letter of Credit are for the account
of the Account Party.
3. Documents are to be presented to' this office no later than the Expiration Date.
4. This Letter of Credit is not transferable.
We hereby engage with you that draft(s) drawn under and in compliance with the terms
of this Letter of Credit will be duly honored if drawn and presented for payment at any
time before the close of business [Time] at our counters located at [address] on or before
the Expiration Date or in the event of Force Majeure, as defiried under Article 17 of the
Uniform Customs and Practice for Documentary Credits (1993 Revision) International
Chamber of Commerce Publication No. 500 CUCP"), interrupting our business, within
fifteen (15) days after resumption of our business, whichever is later.
Except as otherwise stated herein, this credit is subject to the UCP and, with respect to
matters not so covered, this Letter of Credit is subject to and governed by the laws of the
State of New York.
If you have Any questions regarding this Letter of Credit, please call (Telephone No.].
By:
Authorized Signature
Name:
Title:
W1777081.8
19
EXHIBIT 2
FIRST AMENDMENT TO
GUARANTY
This FIRST AMENDMENT TO GUARAN TY (this "Amendment") is
entered into as of Decemberij, 2007, by and between the City of Vernon, California, a
municipal corporation and a chartered city duly organized and existing under and by
virtue of the Constitution and laws of the State of California and its Charter (the "City" or
".Seller"), and Bicent Holdings LLC, a Delaware limited liability company ("guarantor").
Seller and Guarantor are referred to herein, sometimes individually as a "Party" and
collectively as the "Parties."
RECITALS
A. The City and Bicent (California) Power LLC (formerly known as
Beowulf (Vernon) Power LLC) ("Lurchaser") entered into that certain Purchase and Sale
Agreement; dated as of October 8, 21007 (the "Purchase Agreemen t").
B. Pursuant to Section 8.6(b) of the Purchase Agreement, the City . and
Guarantor entered into that certain Guaranty, dated as. of October 8, 2007 (the
"Guaranty"), pursuant to which Guarantor unconditionally, and irrevocably guaranteed
the payment of any damages payable under the Purchase Agreement by Purchaser
following the termination of the Purchase Agreement as a result of the breach by
Purchaser of its obligations under the Purchase Agreement.
C. The City and Purchaser intend to enter into that certain Amended
and Restated Purchase Agreement, dated as of even date herewith (the "A&R Purchase
Agreement").
D. In connection with the transactions contemplated by the A&R
Purchase Agreement, the Parties desire to amend the Guaranty pursuant tothe terms and
conditions set forth in this Amendment.
E. Capitalized terms used but not defined herein shall have the
meanings given to them in the Guaranty.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE 1 - AWNDURNIS AND AGREEMENTS
TS AND AG
Amendment of Guaran . The Parties hereby agree to increase the Cap
Amount and the amount of the Letter of Credit by $2,000,000 by replacing Section 2 of
the Guaranty in its entirety and replacing it with the following:
2. Limitation on Liability; Letter of Credit.
LA\1 80364 1.2
(a) Notwithstanding any, other provision of this Guaranty, Guarantor's
obligations under this Guaranty shall not exceed the sum of the Cap Amount and
the amounts, if any, that become due and payable under Paragraph 9. The "Cap
Amount" is equal to $19.5 million; provided, however, that if the Letter of Credit
(as defined below) is provided in accordance with Paragraph 2(b), the Cap
Amount shall automatically be reduced to $17 million and the amounts, if any,
that are drawn by Seller against the Letter of Credit shall further reduce the Cap
Amount on a dollar for dollar basis.
(b) Not later than December 14, 2007, Guarantor agrees that it will deliver to
Seller an irrevocable standby letter of credit in a stated amount equal to $17
million issued substantially in the form attached hereto as Annex A (the "Letter of
gKe&'). The Letter of Credit shall be issued by a bank of recognized standing
located in the United States.
(c) In the event that the senior unsecured long-term debt rating of the bank
issuing the Letter of Credit falls below A2 from Moody's Inve stor Services, Inc.
or A from Standard & Poor's Rating Group, Guarantor shall deliver to Seller a
replacement letter of credit (the "Replacement Letter of Credit"), reasonably
acceptable to Seller no later than ten (10) Business Days after such'event. The
Replacement Letter of Credit shall be issued by a bank of recognized standing
with requisite ratings located in the United States.
ARTICLE 2. MISCELLANEOUS
2.1 Governing Law. The validity, interpretation and effect of this Amendment
is governed by and shall be construed in accordance with the laws of the State of
California applicable to contracts made and performed in such State and without regard
to conflicts of law doctrines except to the extent that certain matters are preempted by
Federal law or are governed by the law of the jurisdiction of organization of the
respective Parties.
2.2 CounteEparts. This Amendment may be executed in one or more
counterparts, each of which is an original, but all of which together constitute one and.the
same instrument.
2
LA\1803641.2
2.3 Limited Effect. This Amendment is intended to be a part of, and will
serve as a valid, written amendment to, the Guaranty as required by Section I 6(a) thereof
Except as otherwise set forth in this Amendment, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the terrns,
conditions, obligations, covenants or agreements contained in the Guaranty, all of which
are ratified and affirmed in all respects and shall continue in full force and effect, and this
Amendment will not operate as an extension or waiver by the Parties of any other
condition, covenant, obligation, right, power or privilege under the Guaranty. This
Amendment relates only to the specific matters covered herein, and shall not be
considered to create a course of dealing or to otherwise obligate either Party to execute
similar amendments or grant any waivers under the same or similar circumstances in the
future.
LA\1803641.2
k
(Signature pagesfollow]
3
IN WITNESS WHEREOF, the Parties have executed this First Amendment to
Guaranty as of the date first above written.
SELLER:
CITY OF VERNON
By:
Name: Eric T. Fresch
Title: City Administrator
GUARANTOR:
BICENT HOLDfNGS LLC
By:
Name: Paul B. Prager
Title: Manager
S-I
IN W!TNESS WHEREOF, the Parties have executed this First Amendment to
Guaranty as of the date first above written.
SELLER:
CITY OF VERNON
By:
Name: Eric T. Fresch
Title: City Administrator
GUARANTOR:
B [CENT HOLDINGS LLC
By:
Name: Paul B. Pra9w
Title: Manager
S-1
The execution of this First Amendment to Guaranty by the City of Vernon is hereby affirmed
and attested to by:
CITY OF VERNON
By: L,-,,1,2
Name: HANUZLA—OIF65�'
Title: City Clerk
S-2
LIGHT & POWER DEPARTMENT
Donal O'Callaghan, Director of Light & Power
April 7, 2008
Bicent (California) Malburg LLC
103 North Washington Street
Easton, MD 21601
Attention: Douglas Halliday, Chief Operating Officer
Subject: Electric Will -Serve Letter
Dear Mr. Halliday:
The City of Vernon Light and Power Department (the "Light and Power Department")
will provide electric service to Bicent (Califomia) Malburg LLC ("Bicent Malburg") in a manner
sufficient to meet the operational needs of the Malburg Generating Station located on 5 01h Street
and Soto Street in the City of Vernon (4963 Soto Street, Vernon, CA 90058) (the "Malbur
Generating Statio
In reviewing the electric service demands for the Mal I burg Generating Station, the Light
and Power Department has determined that the City of Vernon's existing electric supply has
sufficient capacity to serve the Malburg Generating Station and hereby undertakes to provide
electric service to Bicent Malburg in a manner sufficient to meet the present operational needs of
the Malburg Generating Station, beginning as of the date hereof.
Very truly yours,
DONAL O'CAL
DIRECTOR 0 IGHT AANn PnWvi�
WER
DO:n-nt
c: Document Control
4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 Fax (323) 826-1425
E-Tfusivefy Industfiaf
M
COMMUNITY SERVICES & WATER DEPARTMENT
Samuel Kevin Wilson, Director of Community Services & Water
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811 Fax (323) 826-1435
April 7, 2008
Bicent (California) Malburg LLC
Attn: Douglas Halliday, Chief Operating Officer
103 North Washington Street
Easton, MD 21601
SUBJECT: POTABLE AND RECLAIMED WATER WILL -SERVE LETTER
Dear Mr. Halliday:
The Community Services and Water Department of the City of Vernon (the "City Wate
Department") will provide. local sewerage, potable and reclaimed water to Bicent (California) Malburg
LLC ("Bicent Malbur ") in a manner sufficient to meet the operational needs of the Malburg Generating
Station located on 50"' Street and Soto Street in the City of Vernon (4963 Soto Street, Vernon, CA 90058)
(the "Malburg Generating Station").
In reviewing the potable and reclaimed water service demands for the Malburg Generating
Station, including providing back-up water for plant make -,up on a short, term basis in the event reclaimed
water is not available, the City Water Department has determined that the City of Vernon's existing water
system has sufficient capacity to serve the Malburg Generating Station and hereby undertakes to provide
local sewerage, potable and reclaimed water service to B icent Malburg in a manner sufficient to meet the
present operational needs of the Malburg Generating Station, beginning as of the date hereof
The potable water that will be supplied by the City Water Department to Bicent Malburg meets
all of the requirements of the California Department of Health Services and is available for normal use
and fire protection.
/Since-rel , /
1. A t
K vVin Wilson, P.E.
Director of Community Services and Water.
EXcfusivefy industriaf
CITY OF VERNON
DESIGNATION BY CITY ADMINISTRATOR UNDER RESOLUTION NO. 9510
1, Eric T. Fresch, hereby certify in connection with that certain Amended and Restated
Purchase and Sale Agreement (as amended, supplemented, or otherwise modified, the "Purchas
Agreemen "), dated as of December 13, 2007, by and between the City of Vernon , a municipal
corporation and a chartered city duly organized and existing under and by virtue of the
Constitution and laws of the State of California (the "City"), and Bicent (California) Malburg
LLC, a Delaware limited liability compa�iy as follows. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to them in the Purchase
Agreement.
I am the City Administrator of the City of Vernon;
2. City of Vernon Resolution No. 95 10 by the Council of the City of Vernon (the
"Resolutio ") authorized the transaction contemplated by the Purchase
Agreement (the "Transactio ") and allows me and my designee to take all actions
necessary to consummate the Transaction;
3. In connection with the Transaction, Jeff Harrison is and was acting as my
designee, as that term is defined in the Resolution;
IN WITNESS WHEREOF, I have hereunto signed my name this 7th day of April, 2008.
6 ;A��
Eric esch
City Administrator
LA\1844371.111
CITY OF VERNON
OFFICER'S CERTIFICATE
This Certificate is delivered pursuant to Section 2.6(a)(4) of that certain Amended
and Restated Purchase and Sale Agreement (as amended, supplemented, or otherwise modified,
the "Purchase Agreement"), dated as of December 13, 2007, by and among City of Vernon, a
municipal corporation and a chartered city duly organized and existing under and by virtue of the
Constitution and laws of the State of California and its Charter (the "Seller"), and Bicent
(California) Power LLC, a Delaware limited liability company (the "Purchaser"). Capitalized
terms used herein and not otherwise d-efined herein shall have. the, respective meanings ascribed
to them in the Purchase Agreement.
The undersigned, Eric T. Fresch, in his capacity as the City Administrator of the
Seller and not in his individual capacity, does hereby certify to Purchaser, in the name of and on
behalf of the Seller, as follows:
I All representations and warranties of the Seller contained in Section 5 are
true and correct in all material respects without regard to any qualification by "materiality",
"Material Adverse Effect" or words of similar import as of the date hereof and as of the Closing
Date, with the same effect as though those representations and warranties had been made again at
and as of that time (except to the extent that any such representation or warranty is made as of a
specified date, in which case as of such specified date), except insofar as any failures to I be true
and correct that, individually or in the aggregate, do not constitute, and could not reasonably be
expected to have, a Material Adverse Effect; and
2. All of the terms, covenants and conditions to be complied with and
performed by the Seller on or prior to the Closing Date have been complied with or performed in
all material respects.
[Signature Page Follows]
LAN1842188.1
IN WITNESS WHEREOF, the Seller has caused this Certificate to be executed, in its
name and on its behalf, by the undersigned on and as of this 1041N day of 2008.
CITY OF VERNON
By:
Name: Eric T. Fres6
Title: City Administrator
Signature page to Seller Officer's Certificate
LA\1842188A
Charter
of the
City of Vernon
4,
i
Article I
succession
Section 1. Name.
The municipal corporation now existing and known as the
City of Vernon shall remain and continue to exist as a municipal
corporation under its present name.
Section 2. Boundaries.
The boundaries and territory of the City of Vernon
shall continue as now established until changed in a manner
sufficient to legally alter the boundaries and territory.
Section 3. Rights and Liabilities of the City.
The City shall continue to own, possess, control, and
remain vested with all rights and property of every kind and
nature owned, possessed, controlled, or vested at the time that
this Charter takes effect. All legally enforceable debts,
obligations, liabilities, and contracts with respect to the City
and in force at the time this charter takes effect shall be
unaffected by the adoption of this Charter.
Section 4. Ordinances.
Each ordinance, code, resolution and other regulation,
or portion thereof, In force on the date that this Charter takes
effect, and not inconsistent with this Charter, shall be in force
after this Charter takes effect and shall remain in force until
amended, repealed or superseded by proper authority. If any
880111 pf A016ASW (3)
section, subsection or provision of such existing ordinance,
code, resolution or other regulation is inconsistent with this
charter and the remainder thereof is not inconsistent with this
Charter, such inconsistent portion shall be deemed to be severed
and repealed and the remainder of such ordinance, code, resolu-
tion or other regulation shall remain in force until amended,
repealed or superseded.
Section 5. Officers and Employees.
The tenure, duties and responsibilities of the officers
and employees of the city shall not be affected by the adoption
of this Charter, except as specifically provided in this
charter, but shall be.subject to such ordinances or actions as
may be duly adopted or taken by the City Council of the City
subsequent to the adoption of this charter. No provision of this
Charter shall be construed to grant a right to employment to City
employees.
Section 6. Pending Actions and Proceedings
Neither this Charter, nor its,adoption, shall affect or
abate any civil action or proceeding or criminal action or
proceeding, brought by or against the city or any officer,
office, department or agency of the City, which is pending on the
date that this Charter takes effect,
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850111 pf A016ASW (3)
Article 11
Powers of the City
Section 1. General Powers.
The city shall have full power and authority to adopt,
make, exercise and enforce all legislation, laws, and regulations
and to take all actions in.respect to municipal affairs, without
limitation, which may lawfully be adopted, made, exercised, taken
or enforced under the Constitution of the State of California
subject only to such limitations as may be provided by this
Charter. The City shall also have the power and authority to
adopt, make, exercise and enforce all legislation, laws and
regulations and to take all actions and to exercise any and all
rights, powers and privileges heretofore or hereafter
established, granted or prescribed by any law of the State of
California, or by this charter, or by other lawful authority.
The specification in this Charter of any particular
power shall not be held to be exclusive of any other specific.
power that may be exercised under the general power, or of the
general powers, provided for in this section.
Section 2. Emergency Powers.
Notwithstanding any general or special provisions of
this Charter, in order to ensure continuity of governmental
operations in periods of extreme emergency resulting from damage
or destruction from acts of war, subversion, terrorism, natural
disaster or other causes of whatever nature, the City Council, by
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8aOIII Pf A016ASW (3)
majority vote of its members in office, shall have the power and
immediate duty to declare an emergency by resolution and:
(a) To provide for prompt and temporary succession to the
powers and duties of all city offices, whether filled by election
or appointment, when the incumbent may become unavailable for
carrying on the powers and duties of such office, and
(b) To adopt such other measures as may be necessary and
proper for ensuring the continuity of City operations, including,
but not limited to the financing thereof.
Section 3. Intergovernmental Relations.
The City may exercise any of its powers, perform any of
its functions, or participate In the financing thereof, jointly
or in cooperation, by contract or otherwise, with any one or more
governmental entities or civil divisions or agencies thereof.
850111 pf A016ASW (3)
a,
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Article III
City Council
Section 1. Composition.
There shall be A City Council composed of five members
elected at large by the qualified voters of the City.
Section 2. Powers.
Subject to the provisions of this Charter, and the
valid delegation by this Charter of any power to any person,
officer, board or committee, the City Council shall have the
power and authority, in the name of the City, to exercise all of
the governmental, legislative, administrative or other power,
authority�or function of the City which a city council could
exercise under the Constitution of the State of California and
which now or hereafter would be competent for this Charter,
specifically to enumerate.
Section 3. Eligibility.
No person shall be eligible to hold the office of
councilmember unless he or she is a voter and resident of the
city of Vernon at the time of filing nomination papers or
declaring candidacy and remains a voter and resident until the
election and throughout his or her term as councilmember.
Section 4. Election and Terms.
The regular election of councilmembers shall be held on
,the second Tuesday of April in each even numbered year. The term
of each office shall be four years. Three four-year terms shall
be filled at the first general municipal election held after the
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880111 pf A016ASW (3)
adoption of this Chapter and two four-year terms at the next
general municipal election.
The City Council shall be the final judge of election
results and the qualifications of its members. The City Council
shall canvass the returns of an election on the first Tuesday
following a city council election or such other date within
fifteen (15) days of the election as may be provided by
ordinance. The term of each elected councilmember shall begin
at the hour of the completion of the canvass of the election
returns. In the absence of death, removal from office or
disqualification, eAch councilmember shall serve until expiration
of his or her term and until a successor qualifies.
Section 5. Mayor.
At the council meeting at which any councilmember is
installed following a regular municipal election, and at any time
when there is a vacancy in the office of Mayor, the City Council
shall meet and shall elect one of its members as Mayor. The
Mayor shall be the presiding officer of the City Council. The
Mayor shall be a member of the City council for all purposes and
shall have all the rights, powers and duties of a member of the
City Council in addition to those powers and duties conferred
upon the Mayor by virtue of.his or her office.
The Mayor shall be the official head of the City for
all ceremonial purposes. The Mayor shall perform such other
duties consistent with the office of Mayor as may be prescribed
by this Charter or as may be provided by the City Council. The
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Mayor shall serve in his or her capacity at the pleasure of the
City Council and -may be removed by a majority vote of the members
of the City Council.
Section 6. Mayor Pro Tempore.
At the time that a Mayor is selected, the City Council
shall also designate one of its members as Mayor Pro Tempore.
The Mayor Pro Tempore shall serve in such capacity at the
pleasure of the City Council and may be removed by a majority
vote of the members of the council. The Mayor Pro Tempore shall
perform the duties of the Mayor during the Mayor's absence or
disability.
Section 7. Vacancy.
Any vacancy occurring in the City Council for whatever
reason may be filled by appointment by the City Council. If the
City Council fails to fill the vacancy within thirty days, then
the'City Council shall Immediately call a special election to
fill the vacancy.
Any person appointed or'elected to fill a vacancy on
the City Council shall hold office for the remainder of the term
in the absence of death, removal from office or disqualification.
I If an election -occurs at which one or more full terms
and one or more unexpired terms are to be filled, no distinction
between the full terms and the unexpired terms shall be made in
nominating or voting. The person or persons elected by the
highest number of votes shall be elected for the full term or
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880111 Pf A016AW (3)
terms and the person or persons elected with the fewest votes
shall be elected for the unexpired term or terms.
Section B. Forfeiture.
The following shall be grounds for forfeiture of a
councilmember's office:
,(a) Absence from three consecutive regular meetings of
the Council without permission of, or excuse by, the council, for
absence from at least one of those meetings expressed in its
official minutes,
(b) conviction of a crime involving moral turpitude,
(c) Failure at any time during the councilmember's
term of. office to meet any qualification for office prescribed by
this Char -ter or by the Constitution of the State of California.
A vacancy caused by the forfeiture of a council-
member's office shall be filled as prescribed by Section 7 of
Article III of this Charter.
Section 9. Forfeiture Procedure.
The Council shall be the final judge of the grounds for
forfeiture of a councilmembers' office and for that purpose shall
have the power to subpoena witnesses, administer oaths and
require the production of evidence. A member charged with
forfeiture of off ice shall be entitled to a public hearing on
demand. Notice of such hearing shall be given in the manner
provided by ordinance.
An order of the City Council of forfeiture shall be
effective immediately. A petition for judicial review of such
M0111 pf A016ASW (3)
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Article IV
Ordinances and Resolutions
Section 1. Ordinances, When Required.
The following actions by the City Council shall be
taken by ordinance:
(1) Any action which this charter requires to be taken
by ordinance;
(2) Provision of a fine or other penalty or
establishment of a rule or regulation for violation of which a
fine or other penalty may be imposed;
(3) Grant of a franchise;
(4) Creation of, alteration of, or abolishment of a
commission, board or agency;
(5) Restriction on the use of property:
(6) Adoption or amendment of a code;
(7) Adoption of ordinances proposed under the
initiative power; and
(8) Amendment or repeal of any ordinance or code
previously adopted.
Actions other than those referred to above in this
section zmay be taken by ordinance, by resolution or order duly
entered in the minutes of a council meeting as may be
appropriate.
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850111 pf A016ASW (3)
Section 2. Procedure.
Every proposed ordinance shall be introduced in writing
and substantially in the form required for adoption. The
enacting clause shall be, substantially: "The City Council of
the City of Vernon hereby ordains:".
Except as provided by this Char -ter, no ordinance shall
be adopted by the City Council on the day of its introduction,
nor within five days thereafter. Upon introduction and upon
second presentation, unless at least one Councilmember requests
that an ordinance be read in full, an ordinance may be read by
title only. Unless a higher vote is required by other provi-
sions of this Charter, the affirmative votes of a majority of the
members of the City Council shall be required for the enactment
of any ordinance. Adopted ordinances shall be signed by the
Mayor and attested by the City Clerk.
In the event that any ordinance is substantially
altered after its introduction, it shall not be adopted within
five days after the date of such alteration. The correction of
typographical or clerical errors or other minor changes shall not
constitute the making of an'alteration within the meaning of this
paragraph.
The City Council may provide by ordinance for any
publication or posting of ordinances as it deems appropriate.
Section 3. Effective Date.
An ordinance shall be effective after the thirtieth day
880111 pf A016.LSW (3) r
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following its adoption with the exception of the following
ordinances which shall take effect upon adoption:
(a) An ordinance calling or otherwise relating to any
election;
(b) An ordinance relating to public improvements, the
cost of which is to be borne wholly or in part by special
assessments;
(c) An ordinance declaring the amount of money neces-
sary to be raised by taxation, or fixing the rate of property
taxation, or levying tax upon property;
(d) An ordinance fixing utility rates or charges;
(e) An emergency ordinance adopted as provided in
Section fput of this Article of this Charter.
ordinances referred to in (a) through (d) of this
section may be introduced and adopted at one and the same regular
or special meeting.
An ordinance may specify a date on which all or a
portion of its provisions shall be operative.
Section 4. Emergency ordinances.
Any ordinance declared by the City Council to be
necessary as an 'emergency 'measure for the immediate preservation
of the public peace, health, or safety, and containing a state-
ment of the reasons for its urgency, may be adopted in the
manner provided by this charter except that such emergency
ordinance may be introduced and adopted at one and the same
regular or special meeting, and shall take effect immediately.
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Section 5. Adoption By Reference.
Detailed regula tions pertaining to any subject, model
codes, and codifications of ordinances of other public agencies
may be adopted by reference, in their original form or with
amendments thereto, with the same effect as an ordinance, in the
manner set forth for adopting ordinances. Not less than three
copies of the I regulations, codes or ordinances so adopted shall
be filed and kept on file for use and examination by the public
in the office of the City Clerk.
Section 6. Codification.
The City Cou . ncil may by ordinance codify the ordinances
of the City. ordinances so codified shall be repealed as of the
effective date of the codification unless the City Council shall
otherwise provide. Amendments to a code shall be enacted by
ordinance.
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Article V
Elections
Section 1. General Municipal Elections.
General municipal elections shall be held In the City
on the second Tuesday of April in each even numbered year.
Section 2. Special Municipal Elections.
All other municipal elections shall be special
municipal elections.
Section 3. Procedure.,
The City Council is authorized to adopt by ordinance
procedures governing municipal elections. Until the City Council
adopts by ordinance provisions governing municipal elections,.all
elections shall be held in accordance with the general laws of
the State of California. if an ordinance respecting municipal
elections is adopted by the City Council thereby superseding
certain provisions of the general laws governing municipal
elections, the general laws not so superseded as they may exist
from time to time shall be applicable unless and until the City
Council shall take action otherwise.
Section 4. Initiative, Referendum and Recall.
The power of the initiative and referendum and of the
recall of municipal elective officers is reserved to the voters
of the City. The procedures for initiative, referendum and
recall shall be governed by ordinance or ordinances of the City.
Until the City Council adopts by ordinance provisions governing
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880111 pf A016ASW (3)
initiative, referendum, and recall, these procedures shall be in
accordance with the general laws of the State of California. If
an ordinance respecting initiative, referendum or recall of
municipal elective officers is adopted by the City Council,
thereby superseding certain provisions of the general laws
governing initiative, referendum and recall, the general laws not
so superseded as they may exist from time to time shall be
applicable unless and until the City Council shall take action
otherwise.
No initiative ordinance providing for the expenditure
of public money or for a change in salaries of any city officer
or employee shall take effect until the beginning of the fiscal
year next following the date of its adoption.
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880111 pf A016ASW (3)
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Article VI
city Administrator
Section 1. Appointment.
The City Council shall appoint, by majority vote, a
City Administrator who shall be the chief admini strative officer
of the City of Vernon. The, City Administrator shall serve at the
pleasure of the Council except as may otherwise be provided by
written contract; provided, however, that the City Administrator
shall not be removed from office except as provided by this
Charter.
The City Administrator shall engage in no other
business or occupation except as may be permitted by the council.
Section 2. Removal.
(a) Except as otherwise provided by this section, the
City Administrator may be removed from office by a majority vote
of the members of the city council.
(b) At least thirty (30) days before the effective
date of removal, the City Administrator shall be furnished with a
written notice stating the council's intention to remove and, if
requested by the City Administrator, the reasons therefor.
Sending a copy of such notice by United States mail, certified
and postage prepaid, addressed to the City Administrator at his
or her last known address, shall constitute notice for purposes
of this section. Within seven days after receipt of such notice,
the City Administrator may, by written notification to the City
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850111 pf A016ASW (3)
Council, request a public hearing before the City Council. Upon
such request, the Council shall fix a time.and place for public
.hearing which shall be held before the date of the City
Administrator's removal. The City Administrator may appear and
be heard at such hearing. The purpose of the hearing is to allow
the City Council and the City Administrator to present publicly
all pertinent facts prior to final action of removal. in
removing the City Administrator, the City Council shall use its
uncontrolled discretion and its action shall not depend upon any
showing or degree of proof at the hearing. The City Council
action shall be final.
(c) After furnishing the City Administrator with
written notice of intended removal, the City Council may suspend
the City Administrator from duty with regular compensation to
continue until removal as provided by this Section 2.
(d) The City Administrator shall not be removed within
ninety (90) days after the election of a councilmember unless
(i) The City Administrator has been convicted of
commission of a felony; or
(ii) The City Administrator has been convicted of
a crime prescribed by statute applicable to municipal
officials.
In either case the City Administrator may be removed by
majority vote of the members of the City Council.
Section 3. Compensation.
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Compensation for the City Administrator shall be set by
the City Council. However, compensation for the City Admin-
istrator shall not be reduced within ninety (90) days after the
election of a councilmember.
section 4. Duties.
The City Administrator shall be responsible to the City
Council for the proper and efticient management of all the
affairs of the City and those specific duties assigned to the
City Administrator by this Charter or by the City Council. The
specific duties of the City Administrator may be specified by
ordinance, resolution or order of the city Council.
Section 5. Noninterference.
The power to direct the City Administrator rests with
the Council as a governing body, not with its individual members.
no individual member of the Council, without authorization of the
Council, shall in any manner direct or request the City
Administrator to appoint any person to and/or remove any person
from any office or position of employment with the City.
No individual member of the City Council, without
authorization of the Council, shall give order6 or instructions
publicly or privately to any person under the jurisdiction of the
City Administrator or otherwise interfere with the administrative
staff of the City.
No individual member of the City Council, without
authorization of the Council, shall undertake to coerce or direct
the City Administrator with respect to any of the city
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Administrator's duties, and/or any municipal contract, and/or in
connection with the purchase of any municipal supplies.
Section 6. Eligibility.
No person shall be eligible to be appointed city
Administrator while serving as a member of the City Council or
within two years following the termination of membership on the
City Council.
Section 7. Other Positions.
The City Council may appoint the City Administrator to
any other office in the City and direct the City Administrator to
carry out the duties of that office or any other position of
employment with the City in addition to his or her duties as City
Administrator.
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880111 Prf A016ASW (3)
Article VII
Other Officers, Boards, commissions, and Employees
Section 1. City Clerk.
There shall be a City Clerk who shall be the custodian of
the City seal and shall maintain a book or books of the ordinances
and resolutions adopted by the city Council and the minutes of all
meetings and actions of the Council. The City Council shall
provide by ordinance for the method of selection of the City Clerk,
by appointment or election, and the duties and tenure of the City
Clerk. The City Clerk's compensation shall be fixed by the City
.Council.
Section 2. City Treasurer.
There shall be a City Treasurer who shall receive and
safely keep the funds of the City and shall disburse the same for
public purposes pursuant to appropriations and directions by the
city council. The City Council shall provide by ordinance for the
method of selection of the City Treasurer, by appointment or
election, and the duties and tenure of the City Treasurer. The
City Treasurer's compensation shall be fixed by the City Council.
The City Treasurer shall be bonded in an amount determined by the
city council.
Section 3. City Attorney.
There shall be a City Attorney who shall be the legal
officer of the City. The City Attorney shall serve at the pleasure
of the City Council unless otherwise provided by written contract,
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880111 Pf A016.LSW (3)
and shall perform such duties and provide such professional
services as may be assigned by the City Council unless otherwise
provided by written contract. The compensation of the City
Attorney shall be determined by the city Council subject to any
provisions of a written contract of employment.
Section 4. Other Officers.
The city Council shall provide for such other officers as
it deems appropriate, and shall fix the duties, tenure and
compensation of such officers by ordinance4
Section 5. Boards and commissions.
The City Council may, by ordinance, establish such boards
and commissions as the Council deems to be necessary, and shall
provide for the method of selection, tenure, duties and any
compensation of the boards and.commissions so established.
Section 6. Employees.
All city employees shall serve at the will and pleasure
of the city council. No City employee shall have any right to
employment with the City unless that employee and the City have
entered into a written contract which gives the employee a'property
right.to employment with the City.
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Article viii
Fiscal Administration
Section 1. Fiscal Year.
The fiscal year of the City shall begin on the first
day of July and end on the last day of June of the following
year. The Council may, by ordinance, change the fiscal year.
section 2. submission of Budget.
on or before the thirtieth (30th) day preceding the
last day,of the fiscal year, the City Administrator shall submit
to the City Council a proposed budget for the ensuing fiscal
year.
Section 3. Budget Contents.
The proposed budget shall�contain the following:
(a) An estimate of the revenues and expenditures for
each City Department for the ensuing fiscal year;
(b) A statement of comparison of expenditures for the
current fiscal year with proposed expenditures for the ensuing
fiscal year, and reasons for the proposed increase or decrease;
(c) An estimate of money needed for contingent or
emergency purposes;
(d) An estimate of all anticipated revenues;
(e) An estimate of the tax rate necessary to meet the
expenditures proposed;
(f) A recommendation for the amount of funds to be
allocated to capital outlays;
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880111 pf AGMASW (3)
(g) A recommendation for amounts to be appropriated,
with reasons therefor, in such detail as the Council may direct;
(h) Such other or further information as the City
Administrator may deem advisable to submit, subject to approval
by the City Council.
Section 4. Adoption of the Budget and Appropriations.
After receiving the budget, the City Council.shall hold
a public hearing regarding the adoption of the budget. Notice of
the hearing shall be given in such manner as the City Council may
provide by ordinance. Copies of the proposed budget shall be
made available in the City Clerk's office in City Hall for public
inspection.
At or after the public hearing, the Council shall make
any changes to the budget that it deems advisable and shall adopt
the final budget by resolution passed by the affirmative vote of
a majority of the members of the council on or before the last
day of the fiscal year preceding the fiscal year for which the
budget is adopted (the "budget year").
The resolution adopting the budget shall also operate
as an appropriation of funds in the amounts and for the purposes
set forth in the budget so adopted.
If the Council fails to adopt the budget by the last
day of such preceding fiscal year, the amounts appropriated for
the preceding fiscal year shall be deemed adopted for the budget
year on a month -to -month basis, with all items prorated
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880111 pf A016ASW (3)
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accordingly, until such time as the City Council adopts a budget
for the budget year.
section 5. Amendment of the Budget.
At any meeting of the City Council after the adoption
of the budget, the City Council may amend or supplement the
budget by the affirmative vote of a majority of the members of
the council.
Section 6. Lapse of Appropriations.
Every appropriation, except an appropriation for a
capital. expenditure, shall lapse at the end of the last day of
the fiscal year if that appropriation has not been expended or
lawfully encumbered. An appropriation for a capital expenditure
shall continue in force until the purpose for which it was made
has been accomplished or abandoned. The purpose of any such
appropriation shall be deemed abandoned if three years pass
without any disbursement from or encumbrance of the appropriation
for such purpose.
Section 7. Taxation.
The City Council may adopt all or part of a system of
taxation for the assessment, levy and collection of city taxes.
The City Council may, by ordinance, authorize the transfer to,
assumption of, and discharge by officers of the County of Los
Angeles, of any function of the City relating to assessment of
property for taxation, the equalization of such assessment, and
collection of taxes.
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Section 8. Bonded Debt Limit.
The total bonded general obligation debt of the City
shall not exceed fifteen percent (15%) of the assessed valuation
of all property taxable for municipal purposes.
Section 9. Franchises.
may be granted to persons, firms, corpor-
ations, or other entities for such consideration and upon such
terms, conditions, restrictions, or limitations as may be
prescribed by the city council by ordinance.
Section 10. Contracts.
The City Council shall have the power, by majority
vote, to enter into any contract on behalf of the City. All
contracts must be in writing, signed by the mayor or other
officer authorized by resolution, and attested by the City Clerk.
There shall be no bidding requirements for any contract unless
the City Council otherwise provides by ordinance.
Section 11.. Audit.
The City Council shall appoint a California certified
public accountant or firm of certified public accountants to
provide an independent, annual audit of all City accounts,
including the accounts of all departments, officers, and
employees who receive, handle or disburse public funds. The City
Council may require more frequent audits as it deems advisable.
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W0111 Pf A016ASW (3)
Within one hundred twenty (120) days after the end of
the fiscal year, unless the City Council extends such time, a
.final audit and report shall be submitted to each member of the
City Council and to other officers designated by the Council.
Also, copies of the final audit and report shall be provided to
such other persons or agencies as the City Council may direct,
and copies shall be made available in City Hall for public
inspection.
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Article IX
Miscellaneous Provisions
Section 1. Construction.
The general grant of power to the City under Article II
of this Charter shall be construed broadly in favor of the City.
The specific provisions enumerated in this Charter are intended
to be and shall be interpreted as limitations upon the general
grant of power and shall be construed narrowly.
Section 2. Violations.
The City Council may establish fines and penalties for
violations of ordinances.
Section 3. Definitions.
Unless the provision or the context otherwise
requires, as used in this Charter:
(a) "Shall" is mandatory, and "may" is permissive;
(b) "City" is the City of Vernon;
(c) "Council" or "City Council" is the City Council of
Vernon;
(d) "City Administrator" or "Administrator" is the
City Administrator of Vernon;
(e) "Majority" of the City Council means a majority
of a quorum of the city Council.
(f) "Majority of the members" of the Council means a
majority of the entire membership of the City Council.
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(g) The masculine includes the feminine and the
feminine includes the masculine.
(h) The singular includes the plural and the plural
includes the singular.
Section 4. Official Bonds.
The City Council shall,..by ordinance, determine which
officers or other persons in the service of the City, in addition
to the City Treasurer, shall give bonds for the faithful
performance of their duties. The Council shall fix by ordinance
or resolution the amounts and terms of the official bonds of all
officials or employees who are required to give such bonds. All
bonds shall be executed by a responsible corporate surety, and
shall be approved as to form by 'the City Attorney, and shall be
filed with the City. Premiums on official bonds shall be paid by
the City.
Section 5. Residence.
The city Council may, to the maximum extent permitted
by the Constitution of the State of California, provide by
ordinance for protection against fraud in municipal elections in
the City involving claims of residence in areas of the City in
which personal residence is not permitted by law.
Section 6. Severability.
if any provision of this Charter is held invalid, the
other provisions of the Charter shall not be affected thereby.
If the application of this Charter or any of its provisions to
any person or circumstance is held invalid, the application of
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880111 Pf A016ASW (3)
the Charter and its provisions to other persons or circumstances
shall not be affected thereby.
e80111 Pf A016ASW (3)
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RESOLUTION No. 9.511
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF A
4 PURCHASE AND SALE AGREEMENT AND RELATED DOCUMENTS
BY AND BETWEEN THE CITY OF VERNON AND STARWOOD
5 ENERGY INFRASTRUCTURE FUND, LP REGARDING
TRANSMISSION ASSETS
7 WHEREAS, the City Of Vernon (the "City,,) is a municipal
8 corporation and a chartered city 'of the Statd of California organized
9 and existing under its Charter and the Constitution of the State of
10 California; and
11 WHEREAS, the City owns'and operates a system f I or the
12 generation, Purchase, transmission, distribution and sal . e of electric
13 capacity and energy; and
14 WHEREAS, the City -has a participation interest in the Mead-
151 Phoenix and Mead-Adelanto transmission projects (c011ecti vely, the
1-6 "Meads"); and
17 WHEREAS, the City desires to sell its . entitlement, right,-
18 title and interest in the Meads to Starwood Energy Infrastructure
19 Fund, LP ("Starwood") under the terms and conditions of a Purchase and
20 Sale Agreement and other related documents; and
21 WHEREAS, in order to meet the urgent need to facili.tate the
22 purchase and sale, the City Administrator signed the Purchase and Sale
23 Agreement and related documents on December 13, 2007, subject to
.24 �1 ratification by the City Council; and
2 5 WHEREAS, the City Council of the City of Vernon has
261 determined . that, pursuant to the provisions of subsection (a) of
271 Section 2.27 of the Vernon City Code, it was in the public interest
28 and necessity to enter into the Purchase and Sale Agreement and other
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1 related documents, with Starwood.
2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
3 CITY OFVERNON AS FOLLOWS:
I SECTION 1: The City Council of
the City of Vernon hereby
3 finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and ratifies the execution of the Purchase and Sale Agreement
and other related documents (collectively, the "Purchase Documents")
with Starwood Energy Infrastructure Fund, LP at a sale Price of not
less than $39,500,000, a copy of which are being Presented to the city
Council concurrently with this Resolution, . and the City Council hereby
orders said Purchase Documents to be received and filed by the City
Clerk.
SECTION 3: The City Council
of the City of Vernon hereby
approves and authorizes the City Administrator, or his designee, to
perform such acts and deeds as may be . necessary or convenient to
effect the Purpos I es of this . Resolution and the transactions herein
approved, ratified or authorized and to execute any and all documents
as shall be required to complete the sale of the Meads and to
accomplish the close of.escrow consistent with the terms of the
Purchase Documents herein.
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1 SECTION 4: The City Clerk of the City of Vernon shall
2 certify to the passag . e of this resolution, and thereuPon and.
3 thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 17th day of December, 2007.
1 7
Name: Leonis C. Malburg
Title: Mayor
AT ST:
ELA GIRON, cit lerk
- 3 -
STATE OF CALIFORNIA
2 ss
COUNTY OF LOS ANGELES
3
4
I, MANDELA GIRON, City Clerk of the City of Vernon, do hereby
5 certify that the foregoing Resolution, being Resolution No. 9511, was
6 duly adopted by the 1
C'ty Council of the City of Vernon at a regular
7 meeting of the City Council duly held on,Monday,. De ember 17, 2007
Llec
8 and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the
9 City Of Vernon.
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12 LELA GIR ItY Clerk
13 (SEAL)
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- 4 -
I
RESOLUTION NO. 9510
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 VERNON AMENDING RESOLUTION NO. 9431 AND APPROVING
AND RATIFYING THE EXECUTION OF AN AMENDED AND
RESTATED PURCHASE AND SALE AGREEMENT AND RELATED
5 DOCUMENTS BY AND BETWEEN THE CITY OF VERNON AND
BICENT (CALIFORNIA) POWER, LLC, FORMERLY KNOWN.AS
6 BEOWULFAVERNON) POWER LLC, REGARDING THE MALBURG
GENERATING STATION AND OTHER POWER GENERATION
7 ASSETS
8 WHEREAS, the City of Vernon (the "City") is a municipal
9 corporation and a chartered city of the State Of California org . anized
10 and existing under its Charter and the Co 'titution of the State of
ns
11 California; and
12 WHEREAS, the City.owns and operates a system for the
13 generation, purchase, transmission, distribution an d sale of electric
14 capacity and energy; and
15 WHEREAS, on October 2, 2007, the City Council of the City of
16 Vernon adopted Resolution No. 9431 approving the sale of the Malburg
17 Generation Station ("MGS") , an 11 megawatt -entitlement interest in the
18 Output of the Palo Verde Nuclear Generating Station, a 22 megawatt .
19 entitlement to energy from the Hoover Uprating Proj ect ("Hoover") and
20 participation interest in the Mead -Phoenix and Mead-Adelanto
21 transmission projects to Beowulf (Vernon) Power Company LLC
22 (-Beowulf"); and
23 WHEREAS, Beowulf has recently.changed its name to Bicent
24 (California) Power LLC ("Bicen I t"); and
25 WHEREAS, the City desires to amend Resolution No. 9431 and
26 the Purchase and Sale Agreement and related documents as it is no
27 longerselling its entitlement interest in the output of
the Palo
28 Verde Nuclear Generating Station, and it desires to sell its
I participation interest in the Mead -Phoenix and Mead-Adelanto
2 transmission projects to Starwood Energy . Infrastructure Fund, LP; and
3 WHEREAS, the City is the owner of the Malburg Generating
4 Station and has a 22 megawatt entitlement to energy�from the Hoover
5 Uprating Project ("Hoover") (collectively, the . 'Assets"); and
6 WHEREAS, the City desires to sell its entitlement, right,
7 title and interest in the 'Assets to Bicent (California) Power LLC
8 ("Bicent"), formerly known as Beowulf, under the terms and conditions
9 of an Amended and Restated Purchase and Sale Agreement and other
101 related documents including, but not limit . ed to, the Power Purchase
11 Tolling Agreement, the Ground Lease and other related documents; and
12 WHEREAS, in order to meet the urgent need to facilitate the
13 purchase and sale, the City Administrator signed the Amended and
14 Restated Purchase and Sale Agreement and related documents on
15, December 13, 2007, subject to ratification by the City Council; and
16 WHEREAS, the City Council of the City of Vernon has
17 determined that, pursuant to the Provisions of subsection . (a) of
18 Section 2.27of the Vernon city Code, it was in the public interest
191 and necessity ' to enter into the Amended and Restated Purchase . and Sale
20 Agreement and other related documents including, but not limited to,
211 the Power Purchase Tolling Agreement, the Ground Lease and other
221 related documents, with Bicent.
23 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
24 CITY OF VERNON AS FOLLOWS:
25 SECTION 1-: The City Council of the City of Vernon hereby
26 finds and determines that the recitals contained hereinabove are true
27 and correct.
281 SECTION�2: The City Council of the C . ity of Vernon h�reby
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approves and ratifies the execution of the Amended and Restated
Purchase and Sale Agreement.,with Bicent at a sale price of not less
than $287,500,000 and other related documents including, but not
limited to, the Power Purchase Tolling Agreement, the Ground Lease and
other related documents (collectively, the "Purchase Documents"), a
copy of which are being presented.to the City Council concurrently
with this Resolution, and the City Council hereby orders said Purchase
Documents to be received and filed by the City Clerk.
SECTION 3: The City Council of the City of Vernon hereby'
approves and authorizes the City.Administrator, or his designee, to
perform such acts and deeds as may be necessary or convenient to
effect the purposes of this Resolution and the transactions herein
approved, ratified or authorized and to execute any and all documents
as shall be required to complete the sale of the Assets and to
accomplish the close of escrow consistent with the terms of the
Purchase Documents herein.
SECTION 6: The provisions of Resolution No. 9431 not
consistent with or in conflict with this Resolution are hereby
repealed; in all other respects, Resolution' No. 9431 shall remain in
full force and effect.
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SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, . and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 17th day of December, 2007.
Name: Leonis C. Malbury
A 'EST: Title: Mayor
ELA GIRO ity Clei7-k
- 4 -
STATE OF CALIFORNIA
ss
2 COUNTY OF LOS ANGELES
3
4 1, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
5 certify that the foregoing Resolution, being Res olution No. 9510, was
6 duly adopted by the City Council of the City of Vernon at a regular
7 meeting of the City Council duly held on Monday, December 17, 2007,
8 and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the
9 City of Vernon.
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LAL—AG41N, City Clerk
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ASEAL)
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- 5 -
CERTIFICATE I
STATE OF CALIFORNIA
ss
COUNTY OF LOS ANGELES)
I, Manuela Giron, Acting City Clerk of the City of Vernon,
County of Los Angeles, State of California, hereby certify that
the attached is a full and complete copy of:
RESOLUTION NO. 9420 - A Resolution of the City Council of
the City of Vernon Approving and Authorizing the Execution
of a Purchase and Sale Agreement By and Between the City of
Vernon and Transmission Agency of Northern California
Regarding the California. -Oregon Transmission Project
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official Seal of the City of Vernon, County of Los Angeles,
State of California, on this 25th day of September 2007.
SEAL:
Manuela Giron
City Clerk -
EXHIBI
T 26
CITY OF VERNON
SECRETARY'S CERTIFICATE
This Certificate i
s delivered pursuant to Section 2.6(a)(15) of that certain
Amended and Restated Purchase and Sale Agreement (as amended, supplemented, or
otherwise modified, the "Purchase Agreement"), dated as of December 13, 2007, by and
between the City of Vernon , a municipal corporation and a chartered city duly organized
and existing under and by virtue of the Constitution and laws of the State of California
(the "Seller"), and Bicent (California) Power LLC, a Delaware limited liability company
(the "Purchaser"). Capitalized tenris used herein and not otherwise defincd herein shall
have the respective meanings ascribed to them in the Purchase Agreement.
The undersigned, Manuela Giron, hereby certifies in her capacity as the
City Clerk of the Seller and on behalf of the Seller and not in her individual capacity as
follows:'
LA\ 1842174.1
El
1. the Seller's charter, delivered to the Purchaser pursuant to Section
2.6(a)(I 3) of the Purchase Agreement and attached hereto as Exhibit
A, is true and complete and in full force and effect as of the date
thereof,
2. the resolutions of the City Council of the Seller, delivered to the
Purchaser pursuant to Section 2.6(a)(I 4) and attached hereto as Exhibit
are true and complete and in full force and effect; and
3. the officer(s) or representative(s) of the Seller executing and delivering
the Purchase Agreement, the Related Agreements and any other
documents delivered by the Seller in connection with the Closing have
been duly authorized to execute and 'deliver such document on behalf
of the Seller. I
[Signature Page Follows]
IN WITNESS WHEREOF, the Seller has caused this Certificate to be executed,
in its name and on its behalf, by the undersigned on and as of thisl*day of
2008,
CITY OF VERNON
By:.
Manucla Giron'-
City Clerk
2
LM 1842174.1
EXHIBIT A
Charter
[See Tab 24]
El
EXHIBIT B
Resolutions
[See Tab 25]
EXHIBIT 27
EXECUTION VERSION
BICENT (CALIFORNIA) POWER LLC
OFFICER'S CERTIFICATE
This Certificate is delivered pursuant to Section 2.6(b)(13) of the Amended and
Restated Purchase and Sale Agreement (as amended, supplemented, or otherwise modified, the
"Purchase Agreement"), dated as of December 13, 2007, by and among Bicent (California)
Power LLC, a Delaware limited liability company (the "Piuchaser"), and City of Vernon, a
municipal corporation and a chartered city duly organized and existing under and by virtue of the
Constitution and laws of the State of California and its Charter (the "Seller"). Capitalized terms
used herein and not otherwise defined herein shall have the respective meanings ascribed to them
in the Purchase Agreement.
The undersigned, Paul B. Prager, in his capacity as the President of Purchaser and
not in his individual capacity, does hereby certify to Seller, in the name of and on behalf of
Purchaser, as follows:
1. All representations and warranties of Purchaser contained in Article 6 are
true and correct in all material respects without regard to any qualification by "materiality",
"Material Adverse Effect" or words of similar import as of the date of.the Purchase Agreement
and as of the Closing Date, with the same effect.as though those representations and warranties
had been made again at and as of that time (except to the extent that any such representation or
warranty is made as of a specified date, in which case as of such specified date), except insofar
as any failures to be true and correct, individually or in the aggregate, do not constitute, and
could not reasonably be expected to have, a Material Adverse Effect; and
2. All of the terms, covenants and conditions to be complied with and
performed by Purchaser on or prior to the Closing Date have been complied with or performed in
all material respects.
[Signature Page Follows]
Dock USI:5114487v8
2
IN WITNESS WHEREOF, Purchaser has caused this Certificate to be executed, in its
name and on its behalf, by the undersigned on and as of this lot,) day ofkr�lj 2008.
BICENT (CALIFORNIA) POWER LLC
By
Name: Paul B. Pragerd
Title: President
[Signature page to Purchaser Officer's Certificate]
��
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/ /
EXECUTION VERSION
BICENT (CALIFORNIA) MALBURG LLC
OFFICER'S CERTIFICATE
This Certificate is delivered by Bicent (California) Malburg LLC (the
"Company") pursuant to Section 2.6(b)(I 3) o f the Amended and Restated Purchase and Sale
Agreement (as amended, supplemented, or otherwise modified, the "Purchase Agreement "),
dated as of December 13, 2007, by and among Bicent (California) Power LLC, a Delaware
limited liability company (the "Purchaser"), and City of Vernon, a municipal corporation and a
chartered city duly organized and existing under and by virtue of the.Constitution and laws of the
State of California and its Charter (the "Seller I'), as amended pursuant to the First Amendment to
Amended and Restated Purchase and Sale Agreement (the "First Amendment"), dated as of
February 8, 2008, by and among the Purchaser, the Seller, the Company and Bicent (Califomia)
Hoover LLC, whereby, among other things, Purchaser assigned its rights to purchase the Facility
Assets and Miscellaneous Assets as defined in the Purchase Agreement to the Company.
Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings ascribed to them in the Purchase Agreement.
The undersigned, Paul B. Prager, in his capacity as the President of the Company
and not in his individual capacity, does hereby certify to Seller, in the, name of and on behalf of
the Company, as follows: I
I . All representations and warranties of the Company contained in Section 6,
as may be applicable to the Company pursuant to Section 1.4 of the First Amendment are true
and correct in all material respects without regard to any qualification by "materiality", "Material
Adverse Effect" or words of similar import as of the date of the Purchase Agreement and as of
the Closing Date, with the same effect as though those representations and warranties had been
made again at and as of that time (except to the extent that any such representation or warranty is
made as of a specified date, in which case as of such specified date), except insofar as any
failures to be true and correct, individually or in the aggregate, do not constitute, and could not
reasonably be expected to have, a Material Adverse Effect; and
2. All of the terms, covenants and conditions to be complied with and
performed by the Company on or prior to the Closing Date have been complied with or
performed in all material respects.
[Signature Page Follows]
Doc#: US1:51979680
2
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed, in its
name and on its behalf, by the undersigned on and as of this JOAV) day of April, 2008.
BICENT (CALIFORNIA) MALBURG LLC
By:
Name: Paul B. Pra#
Title: President
[Signature page to Malburg Officer's Certificate)
EXECUTION VERSION
BICENT (CALIFORNIA) HOOVER LLC
OFFICER'S CERTIFICATE
This Certificate is delivered by Bicent (California) Hoover LLC (the "Company'
pursuant to Section 2.6(b)(I 3) of the Amended and Restated Purchase and Sale Agreement (as
amended, supplemented, or otherwise modified, the "Purchase Agreement"), dated as of
December 13, 2007, by and among Bicent (California) Power LLC, a Delaware limited liability
company (the "Purchasef'), and City of Vernon, a municipal corporation and a chartered city
duly organized and existing under and by virtue of the Constitution and laws of the State of
California and its Charter (the "Seller"), as amended pursuant to the First Amendment to
Amended and Restated Purchase and Sale Agreement (the "First Amendment"), dated as of
February 8, 2008, by and among the Purchaser, the Seller, the Company and Bicent (California)
Malburg LLC, whereby, among other things, Purchaser assigned its rights to purchase the
Hoover Interest as defined in the Purchase Agreement to the Company. Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings ascribed to them in
the Purchase Agreement.
The undersigned, Paul B. Prager, in his capacity as the President of the Company
and not in his individual capacity, does hereby certify to Seller, in the name of and on behalf of
the Company, as follows:
I All representations and warranties of the Purchaser contained in Section 61
as may be applicable to the Company pursuant to Section 1.4 of the First Amendment are true
and correct in all material respects without regard to any qualification by "materiality", "Material
Adverse Effect" or words of similar import as of the date of the Purchase Agreement and as of
the Closing Date, with the same effect as though those representations and warranties had been
made again at and as of that time (except to the extent that any such representation or warranty is
made as of a specified date, in which case as of such specified date), except insofar as any
failures to be true and correct, individually or in the aggregate, do not constitute, and could not
reasonably be expected to have, a Material Adverse Effect; and
2. All of the terms, covenants and conditions to be complied with and
performed by the Company on or prior to the Closing Date have been complied with or
performed in all material respects.
[Signature Page Follows]
NO: US 1 -51979620
2
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed, in its
name and on its beh I alf, by the undersigned on and as of this jDjh day of April, 2008,
BICENT (CALIFORNIA) HOOVER LLC
By:
Name:
Paul B. P er
Title: President
[Signature page to Hoover Officer's. Certificate]
Defaware PAGE I
qhe First State
1, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT
COPIES OF ALL DOCUMENTS ON FILE OF "BICENT (CALIFORNIA) POWER
LLC" AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCU14ENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY—FOURTH DAY OF
AUGUST, A.D. 2007, AT 12:05 O'CLOCK P-M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "BEOWULF
(VERNON) POWER LLC" TO "BICENT (CALIFORNIA) POWER LLC", FILED
THE TWENTY—NINTH DAY OF OCTOBER, A.D. 2007, AT 6:34 O'CLOCK P.M -
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID
CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPANY, "BICENT (CALIFORNIA) POWER
LLC".
4412678 8100H
080374556
u may verify this certificate on.Line
at corp . delaware.gov/authver.shtml
Harriet Smith Windsor, Secretary of State
AUTHENTICATION: 6488065
DATE: 03-31-08
State of Delaware
Secretary of State
Division of Corporations
Delivered 12:22 PM 0812412007
CERTIFICATE OF FORMATION FMD 12:05 PM 0812412007
SRV 070954751 - 4412678 FILE
OF
BEOWULF (VERNON) POWER LLC
The undersigned, an authorized natural person, for the purpose of forn-drig
a limited liability company, under the provisions and subject to the requirements of the
State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts
amendatory thereof and supplemental thereto, and known, identified, and referred to as
the "Delaware Limited Liability Company Act"), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the
"limited liability company") is BEOWULF (VERNON) POWER LLC.
SECOND: The address of the registered office and the name and the
address of the registered agent of the limited liability company required to be maintained
by Section 18-104 of the Delaware Limited Liability Company Act arc,National
Corporate Research, Ltd., 615 South DuPont Highway, Dover, County of Kent,
Delaware, 19901.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Formation on August 24, 2007.
J
Name: Ste ie C. Fleischmarm
Title: Authorized Person
Doe CUS 1:5050050.1
State of Dglaware
Secretary of State
Division of Coxporations
Delivered 07:15 PM 1012912007
FTLKD 06:34 PM 1012912007
SRV 071166950 - 4412678 F7LE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
BEOWULF (VERNON) POWER LLC
PURSUANT TO SECTION 18-202 OF THE
DELAWARE LIMITED LIABILITY COMPANY ACT
1) The name of the Limited Liability Company is Beowulf (Vernon) Power LLC.
2) The Certificate of Amendment is hereby amended to change Article "FIRST"of
the Certificate of Formation to read as follows:
"FIRST: The name of the limited liability company is Bicent (California) Power
LLC". I
The undersigned, an authorized person or the limited liability company,
executes this Certificate of Amendment on October 29, 2007.
Paul B. Prager
Authorized Pe;40n(�T
Dom U51.5D94J45v1
Delaware PAGE 1
qhe First State
1, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT
COPIES OF ALL DOCUMENTS ON FILE OF "BICENT (CALIFORNIA) MALBURG
LLC" AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE THIRTIETH DAY OF
NOVEMBER, A.D. 2007, AT 3:25 O'CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THATTHE AFORESAID
CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPANY, "BICENT (CALIFORNIA)
MALBURG LLC"-
4465756 8100H
080374551
4
ii noy ver ty t—s certificate oniine
at Corp. delaware.govlauthver.shtml
Harriet Smith Windsor, Secretary of State
AUTHENTICATION: 6488061
DATE: 03-31-08
State of Delaware
Secretaxy of State
Division of Coxporations
Delivered 03:30 PM 1113012007
FTLFD 03:25 PM 1113012007
SRV 071272399 - 4465756 FILE CERTIFICATE OF FORMATION
OF
BICENT (CALIFORNIA) MALBURG LLC
The undersigned, an authorized natural person, for the purpose of forming
a limited liability company, tinder the provisionsand subject to the requirements of the
State of Delaware (particularly Chapter 18,Title 6 of the Delaware Codeand the acts
amendalory thereof and supplemental thereto and k-no%vn, identified.and referred to as
the "Delaware Limited liability Company Act"), hereby certifies (hilt:
FIRST: Tile name of the limited liability company (hereinafterealled [lie
"limited liability company") is .1310ENT(CALIFORNIA) MALBURG LLC.
SECOND: Tile addrass of the registered officeand the name and (lie
address ofthe registered agent of the limited liability company re(lidred to be maintained
by Section 18-104 of the Delaware Limited Liability Company Act are National
Corporate Rcsearcli, Ltd., 615 South DuPont Highway, Dover, County of Kent,
Delaware. 1990 1.
IN Wrl'NESS WI-IL-REOF, the undersigned has executed this, Certificate
of Formation oil November 30, 2007.
Name; Stefanie C. Ficischniann
Title: Authorized Pei -son
INW11: LJSJ�51 13VIVI
Defaware PAGE I
ghe First State
1, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT
COPIES OF ALL DOCUMENTS ON FILE OF "BICENT (CALIFORNIA) HOOVER
LLC" AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE FIFTH DAY OF DECEMBER,
A.D. 2007, AT 3:21 O'CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID
CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD 0 F THE
AFORESAID LIMITED LIABILITY COMPANY, "BICENT (CALIFORNIA) HOOVER
LLC".
4468186 8100H
080374550
—u my verify this certifica te on-L-ine
at co�p. delaware.gov/authver.shtml
Harriet Smith Windsor, Secretary of State
AUTHENTICATION: 6488059
DATE: 03-31-08
141,
State of Delaware
Secretary of State
Division of Cozporations
Delivered 03:26 PM 1210512007
FnED 03.21 PM 1210512007
SRV 071287970 - 4468186 FILE
CERTIFICATE OF FORMATION
OF
BICENT (CALIFORNIA) HOOVER LLC
The undersigned, an authorized natural person, for the purpose of forming
a limited liability company, under the provisions and subject to the requirements of the
State of Delaware (particularly Chapter 18. Title 6 of the Delaware Code and the act%
amendatory thereof and supplemental thereto, and known, identified, and rereffed to as
the "Delaware Limited Liability Company Ael"), hereby certifies that:
FIRS 'Me name of the limited liability company (hereinafter called the
"limited liability company") is BICENT (CALIFORNIA) HOOVER LLC.
SECOND: The address of the registered office and the name and the
address of the registered agent of the limited liability company required to be maintained
by Section IS- 104 of the Delaware Limited Liability Company Act are National
Corporate Research, Ltd., 615 South DuPont Highway, Dover, County of Kent,
Delaware, 1990 1.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Formation on December 5, 2007.
L
2 1 UWA AA
Name: Stefanie C. Fleischmann
Title: Authorized Person
Dom US1151 16fi-VV1
EXECUTION COPY
AMENDED AND RESTATED OPERATING AGREEMENT
of
BICENT (CALIFORNIA) POWER LLC
This Amended and Restated Operating Agreement (this "Agreement') of
Bicent (California) Power LLC, a Delaware limited liability company (the "Company'), is
adopted and entered into by Bicent (California) Holdings LLC, as the Company's sole
member ("Bicent (Californial Holding ' or the "Member") and Paul B. Prager as the
resigning sole member.
RECITALS:
A. Ile Company was formed on August 24. 2007 as a limited liability
company pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-10
10- M.) (the "Delaware Act") under the name of "Beowulf (Vernon) Holdings LLC" by
executing and I sling of a Certificate of Formation for the Company with the Secretary of
State of the State of Delaware, and the entry into by the re-signing sole member Paul B.
Prager of that -certain Operating Agreement, dated as of September 26, 2007 (the
"Original LLC Agreement").
B. For and in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the adequacy, receipt and sufficiency of
which are hereby acknowledged, the Member and Paul B. Prager as the resigning sole
member hereby agree as follows:
6
oo- 1. Name and Forination. The name of the Company as set forth in its
Certificate of Formation was "Beowulf (Vernon) Power LLC". By Certificate of
Amendment filed with the Secretary of State of the State of Delaware on October 29, 2007,
such name was changed to "Biccrit (California) Power LLC", This Agreement completely
amends and restatm the Original LLC Agreement.
2. Pufpo . The purpose of the Company is (i) to engage in any lawful
act or activity for which limited liability companies may be organized under the Act as
determined by the Mernber(s). and (ii) to engage in any and all activities necessary or
incidental to the foregoing as determined by the Member(s). The Company shall have the
authority to take all actions necessary orconvenient to accomplish it% purpose and operate its
business as described in this Section 2.
3. Registered Office and Agent. Thc Company shall maintain a
A-1
Delaware registered office and have National Corporate Research. Ltd., 615 South DuPont
Highway, Dover, Kent County, Delaware 19901 serve as the registered agent for the service
of process as required by the Act. In the event the registered agent ccascs to act as such for
any reason or the registered office shall change, the Company shall promptly designate a
registered agent or file a notice of change of address, as the case may be.
4. Principal Office. The Company shall have a single principal office
which shall at all times be located within the United States. The principal office shall be
located at such place as shall be designated by the Member(s) of the Company, which may
thereafter be changed from time to time.
5. Tenn. The Company commenced upon the f iling of the Certificate of
Formation with the Secretary of State of the State of Delaware on August 24, 2007 and shall
3
op- I continue in existence until dissolved in accordance with the Act and this Agreement. The
100-
Member hereby adopts and ratifies the Certificate of Formation, as amended, and all acts
taken by the organizer and Paul B. Prager in connection therewith.
6. Member-, Simultaneously with the execution of this Agreemem Paul
B. Prager as the resigning sole member contributes and transfers 100% of his limited liability
company interest in the Company as constituted under the Original LLC Agreement to
Bicent (California) Holdings for no consideration. Contemporaneously with such
contribution and transfer, Bicent (California) Holdings is admitted to the Company as its sole
member in respect of its limited liability company interest, immediately whereafter Paul B.
Prager as the resigning sole member is deemed resigned and withdrawn from the Company
in exchange for no consideration in respect of his limited liability company interest. 'Me
name and the mailing address of the Member is as follows:
Biccnt (California) Holding-, LLC
103 North Washington St.
Easton, MD 21601
7. Management and Officers. T'he management and control of the
business and affairs of the Company shall be vested exclusively and completely in the
Member. The Member shall have the power and authority, in the management and control of
the business and affairs of the Company, to do or cause to be done, at the expense of the
Company, any and all acts deemed by the Member to be necessaryorappropriatc tocarryout
and implement any and all of the business, objects and purposes of the Company in
accordance with this Agreement, and the actions of the Member taken in such capacity and
in accordance with this Agreement shall bind the Company. The Member shall have and be
subject to all of the duties and liabilities of a manager provided in the Act.
a
4
The Member shall appoint officers of the Company, which may include a
President, one or more Executive Vice Presidents, one or more Vice Presidents, a Treasurer
or one or more Assistant Treasurers, or a Secretary or one or more Assistant Secretaries, who
shall hold their office.% for such terms and shall exercise such positions and perform such
duties as shall be determined by the Member. Any individual may hold more than one
office. The Member may designate additional offices and assign thereto such duties as it
may determine. Ile initial officers of the Company shall be as set forth below:
. Name
Title
Paul B. Prager
President
Douglas Halliday
Chief Operating Officer
Christopher L. Ryan
Chief Financial Officer
Nazar Khan
Senior Vice President of
Development
Mila Kramme
Secretary
All officers shall have such authority and perform such duties as may be
provided in this Agreement or, to the ex(cnt not so provided, by a written instrument duly
executed and delivered by the Member. The day to day operations of the Company shall be
the responsibility of the officers of the Company who shall be designated by the Member.
Capital Contributions. Thc Member(s) shall contribute capital to the
Company from fime to time as the Membcr(s) shall require with such capital contribution
being made by the Member(s) pro rata in accordance with its (their) membership interests.
10� 9. Allocation of Profits and Losse�. All income, gains and losses will be
allocated to the capital accounts of each of the Member(s) in accordance with its (their)
membership interest(s).
10. Distributions. The Member(s) will receive distributions if, upon
winding up of the Company, the, assets or proceeds available exceed. the amount required for
the payment and discharge of all of the Company's debts and liabilities. Other than as stated
above, distributions to the Member(s) shall be in the discretion of the Member(s). The
Member(s) may, in its (their) discretion, make distributions to a Member which include a
return of all or any part of such Member's contribution. The Member(s) has (have) no right
to demand or receive property other than cash from,the Company in return for its (their)
capital contributions.
11. Amendments. Amendments to this Agreement may be made only
with the consent of the Memberor, if at such time there shall be more than one Member, all
the Members.
12. Assianments of Interest of a Member. A Member may assign in
whole or part such Member's membership interest in the Company; provided, however, that
if at such time there shall be more than one Member, an assignee of a membership interest
may not become a Member without the vote or written consent of at least a majority in
interest of the Members. other than the Member who assigns or proposes to assign such
membership interest.
13. Withdrawal or Resignation. A Member may withdraw from the
Company in accordance with the Act.
6
10-1 14. Admission of Additional Members. One or more additional
Member(s) of the Company may be admitted to the Company with the consent of the
Member or, if at such time there shall be more than one Member, a of the Members.
15. Liability of Members.
(a) The Member(s) shall not have any liability for the obligations
or liabilities of the Company except to the extent provided in the Act.
(b) The Member exercising management powers or
responsibilities for or on behalf of the Company shall not have personal liability to the
Company or its members for damages for any breach of duty in such capacity, provided that
nothing in this Section 15(b) shall eliminate or limit the liability of the Member if ajudgment
or other final adjudication adverse to the Member establishes that the Member's acts or
omissions were in bad faith or involved intentional misconduct or a knowing violation of
law, or that the Member personally gained through such act or omission a financial profit or
other advantage to which the Member was not legally entitled, or that with respect to a
distribution to the Member(s) under Section 18-607 of the Act the Member's acts were not
performed in accordance with Section 18-302(d) of the Act.
16. Indemnification. To the fullest extent permitted by law, the Company
shall indemnify, hold harmless, protect and defend each Member, and each of the officers,
employees and agents. if any, of the Company (collectively, the "Indemnitees"), against any
losses, claims, damages or liabilities, including, without limitation, legal and other expenses
incurred in investigating or defending against any such loss. claim, damages or liabilities,
and any amounts expended in settlement of any claim (collectively, "Liabilities'), to which
any Indemnitee may become subject by reason of any act or omission (even if negligent or
7
10� grossly negligent) performed or omitted to be performed on behalf of the Company or by
reason of the fact that such Indemnitce is or was a Member, or officer, employee, or agent of
the Company or is or was serving at the request of the Company as a director, trustee,
manager, officer, employee or agent of another corporation, partnership, joint venture,
limited liability company, trust or other enterpfise, provided, however, that no
indemnification may be made to or on behalf of any Indemnitee if ajudgment or other final
adjudication adverse to such Indernni tee establishes (a) that his or her acts or ornissions were
committed in bad faith or involved intentional misconduct or a knowing violation of law or
(b) that he or she personally gained through such an act or omission a financial profit or
other advantage to which he or she was not legally entitled. The provisions of this Section
16 shall continue to afford protection to each Indemnitee regardless of whether such
Inderanitee remains a Member, officer, employee, or agent of the Company. Anyindemnity
under this Section 16 or otherwise shall be paid out of and to the extent of the Company's
assets only.
17. Dissolution. The Company shall dissolve, and its affairs shall be
wound up (unless the Member or, if at such time there shall be more than one Member, a
majority in interest of the Members, agrees to continue the business), upon the first to occur
of the following:
(a) The distribution of all of the interests of the Member(s) in the
Company, or the occurrence of any other eventwhich terminates the continued membership
of any Member in the Company (by operation of law or otherwise);
Company; or
(b) The unanimous consent of all the Members to dissolve the
a,
8
(c) Ile assignment, sale, transfer orother disposition, (including
dispositions by operation of law) of all of the Company's assets.
18. Governing Law. 'Mis Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements made and to
be performed entirely within such State, without regard to the principles of conflicts orlaws
of such State.
A-
A-
0-
IN 'WITiNESS W]I EREOF, I I ic undcl-siL Ile( I. i m ell d in to lic lcuml IN. boll I), I
I
I I cre I IN" I in'. t I I I I v L!xcc I It et I I I I is A-n-cemen I ;IN of Oc I ober .1 1, 2007.
M L`i\ I BF: I z :
1-101-I)IN(;S LLC
By: Paill B.Prager
Prosident
ACKNOWLEDGE-D AND A(;Rl1--1l;D:
(for purpows ofSuclimi 6 only)
(7 — I -
Paul It.
S�1:11aluye Pog'. I., Birem Pm Ul *;%.1:1-.,d-1j),-)t1 -
1-
I
EXECUTION COPY
OPERATING AGREEMENT
of
BICENT (CALIFORNIA) MALBURG LLC
11tis Operating Agreement (this "Auccmcn ')ofBicent(CaIifiomia)MaIburg
LLC, a Delaware limited liability company (the "Company'), is adopted and entered into by
Biccnt (California) Power LLC (f/k/a Beowulf (Vernon) Power LLQ, a Delaware limited
liability company, as the Company's sole member (the "Mernbc
For the purpose of forming a -limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (as amended from time to
time, the "Act"), the Member hereby agrees and states as follows:
I Name. The name of the Company is Biccrit (California) Malburg,
LLC.
2. PuWpse. The purposes of the Company are as follows:
(i) owning that certain 134 MW full load combined cycle. natural gas -
fired, electric power plant located at 2715 East 50th Street in the City of Vernon, California
known as the Malburg Generating Station; and
(ii) engaging in any lawful act or activity and exercising any powers
pennitted to limited liability companies organized under the laws of the State of Delaware
that are related or incidental to and necessary, convenient or advisable for the
accomplislunent of the abovc-mentioned purposes ror which limited liability companies may
be organized under the Act as determined by the Member(s).
2
The Company shall have the authority to take all actions necessary or
convenient to accomplish its purpose and operate its business as described in this Section 2.
3. RcRiSICTcd Officc and Agent. The Company shall maintain a
Delaware registered office and have National Corporate Research, Ltd.. 615 South DuPont
Highway. Dovcr, Kent County, Delaware 19901 serve as the registered agent ror the service
of process as required by the Act. In the event the registered ageni ceases to act as such for
any reason or the registered office shall change, the Company shall promptly designate a
registered agent or f i Ic a notice of change of address, as the case may be.
4. Principal Office. The Company shall have a single principal office
which shall at all limes be located within the United States. The principal office shall be
located at such place as shall be designated by the Member(s) of the Company, which may
thereafter be changed from time to time.
5. 1m. The Company shall commence upon the filing of the
Certificate of Formation substantially in the form of Exhibit A annexed hereto with the
Secrclary of State of the State of Delaware and shall continue in existence until dissolved in
accordance with the Act and this Agreement.
6. Mcmbc . The Company presently has one member. The name and
the mailing address of the Member is as follows:
j' Bicent (California) Power LLC
103 North Washington St.
Easton, MD 21601
7. Manapcment and Officers. The management and control of the
business and affairs of (he Company shall be vested exclusively and completely in the
Member. The Member shall have the power and authority, in the management and control of
3
A�'
the business and affairs of the Company, to do or cause to be done, at the expense of the
Company, any and all acts deemed by the Member to benecessary or appropriate to carryout
and implement any and all of the business, objects and purposes of the Company in
accordance with this Agreement, and the acdons of the Member taken in such capacity and
in accordance with this Agreement shall bind the Company. The Member shall have and be
subject to all of the duties and liabilities of a manager provided in the Act.
. The Member shall appoint officers of the Company, which may include a
President, one or more Executive Vice Presidents, one or more Vice Presidents, a Treasurer
or one or more Assistant Treasurers, or a Secretary or one or more Assistant Secretaries, who
shall hold their offices for such terms and shall exercise such positions and perrorm such
duties as shall be determined by the Member. Any individual may hold more than one
office. The Member may designate additional offices and assign thereto such duties as it
may determine. The initial officcrs ofthe Company shall be as set rorth below:
Name
Title
Paul B. Prager
President
Douglas Halliday
Chief Operating Officer
Christopher L. Ryan
Chief Financial Officer
Nazar Khan
Senior Vice President of
Development
Mila Kramme
Secretary
All officers shall have such authority and perform such duties as may be
provided in this Agreement or, to the extent not so provided, by a written instrument duly
A-
4
executed and delivered by the Member. The day to day operations of the Company shall be
the responsibility of the officers of the Company who shall be designated by the Member.
8. Capital Contributions. The Member(s) shall contribute capital to the
Company from time to time as the Mcmber(s) shall require with such capital contribution
being made by the Member(s) pro rata in accordance with its (their) membership interests.
9. Allocation of Profits and Losses. All income, gains and losses will be
allocated to the capital accounts of each of the Member(s) in accordance with its (their)
membership interest(s).
10. Distribution . The Member(s) "I receive distributions if, upon
winding up of the Company, the assets or proceeds available exceed the amount required for
the payment and discharge of all of the Company's debts and liabilities. Other than as stated
above. distributions to the Member(s) shall be in the discretion of the Mcmbcr(s). The
Mcmber(s) may, in its (their) discretion, make distributions to a Member which include a
return of all or any part of such Member's contribution. The Member(s) has (have) no right
to demand or receive property other than cash from the Company in return for its (their)
capital contributions.
11. Amendmcn.1 . Amendments to this Agreement may be made only
with the consent of the Member or, if at such time there shall be more than one Member, all
the Members.
12. Assignments of Interest of a Member. A Member may assign in
whole or part such Member's membership interest in the Company; provided, howcvc that
if at such time there shall be more than one Member. an assignee of a membership interest
may not become a Member without the vote or written consent of at least a majority in
5
interest of the Members, other than the Member who assigns or proposes to assign such
membership interest.
13. Withdrawal or Resignation. A Member may withdraw from the
Company in accordance with the Act.
14. Admission of Additional Members. One or more additional
Member(s) of the Company may be admitted to the Company with the consent of the
Member or, if at such time there shall be more than one Member. all of the Members.
15. Liability of Members.
(a) The Membcr(s) shall not have any liability for the obligations
or liabilities of the Company except to the extent provided in the Act.
(b) The Member exercising management powers or
responsibilities for or on behalf of the Company shall not have personal liability' to the
Company or its members for damages for any breach of duty in such capacity, provided that
nothing in this Section 15(b) shall eliminate or limit the liability of the Member ifaiudgment
or other final adjudication adverse to the Member establishes ihat the Member's acts or
omissions were in bad faith or involved intentional misconduct or a knowing violation of
law, or that the Member personally gained through such act or omission a financial profit or
other advantage to which the Member was not legally entitled, or that with respect to a
distribution to the Member(s) under Section 18-607 of the Act the Member's acts were not
performed in accordance with Section 18-302(d) of the Act.
16. Indemnification. To the fullest extent pcn-nitted by law, the Company
shall indemnify, hold harmless, protect and defend each Member, and each of the officers,
employees and agents, if any. of the Company (collectively. the "Indgmnitec "), against any
6
losses, claims, damages or liabilities, including, without limitation, legal and other expenses
incurred in investigating or defending against any such loss, claim, damages or liabilities,
and any amounts expended in settlement of any claim (collectively, "Liabilitie "), to which
any Indeninitee may become subject by reason of any act or omission (even if negligent or
grossly negligent) performed or omitted to be performed on behalf of the Company or by
reason of the fact that such Indemnitee is or was a Member, or officer, employee, or agent of
the Company or is or was serving at the request of the Company as a director, trus(ee,
manager, officer, employee or agent of another corporation., partnership, joint venture.
limited liability company, trust or other enterprise, Drovided however. that no
indemni fication may be made to or on behalf of any Indemnitce if ajudgment or other final
adjudication adverse to such Indemnitee establishes (a) that his or her acts or omissions were
committed in bad faith or involved intentional misconduct or a knowing violation of law or
(b) that he or she personally gained through such an act or omission a financial profit or
other advantage to which he or she was not legally entitled. The provisions of this Section
16 shall continue to afford protection to each Indemnitce regardless of whether such
I ndemnitee remains a Member, officer, employee, or agent of the Company. Any indemnity
under this Section 16 or otherwise shall be paid out of and to the extent of the Company's
assets only.
17. 12issolution. The Company shall dissolve, and its affairs shall be
wound up (unless the Member or, if at such time there shall be more than one Member, a
majority in interest, of the Members, agrees to continue the business), upon the first to occur
of the following:
7
AS-,
(a) The distribution of all of the interests of the Mcmber�s) in the
Company, or the occurrence of any other event which terminates the continued membership
or any Member in the Company (by operation of law or otherwise);
(b) The unanimous consent of all the Members to dissolve the
Company; or
(c) The assignment, sale, transfer or other disposition, (including
dispositions by operation of law) of all of the Company's assets.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements made and to
be performed entirely within such State, without regard to the principles of conflicts of laws
of such State.
IN W"ESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of November 30, 2007.
MEMBER:
DICENT (CALIFORNIA) POWER LLC
qlwa���
Name: Paul Ef. Praiger
Title: President
EXQCUnON CO
OPERATING AGREEMENT
of
BICENT (CALIFORNIA) HOOVER LLC
This Operating Agreement (this "Agreement) of Bicent (California) Hoover
LLC, a Delaware limited liability company (the "Company'), is adopted an d entered into by
Bicent (California) Power LLC (f/k/a Beowulf (Vernon) Power LLQ. a Delaware limited
liability company, as the Company's sole member (the "Mcmbc
For the purpose of forming a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (as amended from time to
time, the the Member hereby agrees and states as follows:
I . Name. The name of the Company'is Biccnt (California) Hoover LUC.
2. PUMQse 'Me purpose of the Company is (i) to engage in any lawful
act or activity for which limited liability companies may be organized under the Act as
determined by the Membcr(s). and (ii) to engage in any and all activities necessary or
incidental to the foregoing as determined by the Mcmber(s). The Company shall have the
authority to take all actions necessary orconvenient to accomplish its purpose and operate its
business as described in this Section 2.
The Company -hall have the authority to take all actions necessary or
convenient to accomplish its purpose and operate its business as described in this Section 2.
3. Registered Officc and Agent. The Company shall maintain a
Delaware registered office and have National Corporate Research, Ltd.. 615 South DuPont
2
Highway, Dover, Kent County, Delaware 19901 serve as the registered agent for the service
of process as required by the AcL In the event the registered agent ceases to act as such for
any mason or the registered office shall change, the Company shall promptly designate a
registered agent or file a notice of change o f address, as the case may be.
4. Principgl Office. Tle Company shall have a single principal office
which shall at all times be located within the United States. The principal office shall be
located at such place as shall be designated by the Member(s) of the Company. which may
thereafter be changed from time to time.
5. Term. The Company shall commence upon the filing of the
Certificate of Formation substantially in the form of Exhibit A annexed hereto with the
Secretary of State of the Stateof Delaware and shall continue in existence until dissolved in
accordance with the Act and this Agreement.
6. Members. The Company presently has one member. The name and
the mailing ad&ess of the Member is as follows:
Bicent (California) Power LLC
103 1 North Washington St.
Easton, MD 21601
7. ManaRmcnt and Officers The management and control of the
business and affairs of the Company shall be vested exclusively and completely in the
Member. The Member shal I have the power and authority, in the management and control of
the business and affairs of the Company, to do or cause to be done, at the expense of the
Company, any and all acts deemed by the Member to be necessary or appropriate to carry out
and implement any and all of the business, objects and purposes of the Company in
accordance with this Agreement, and the actions of the Member taken in such capacity and
3
In accordance with this Agreement shall bind the Company. Ile Member shall have and be
subject to all of the duties and liabilities of a manager provided in the Act.
The Member shall appoint officers of the Company, which may include a
President, one or more Executive Vice Presidents, one or more Vice Presidents, a Treasurer
or one or more Assistant Tr=urcrs, or a Secretary or one or more Assistant Secretaries, who
shall hold their offices for such terms and shall exercise such positions and perform such
dudes as shall be determined by the Member. Any individual may hold more than one
office. The Member may designate additional offices and assign thereto such duties as it
may determine. Tbe initial officers of the Company sWl be as set forth below:
Name
Title
Paul B. Prager
President
Douglas Halliday
Chief Operating Officer
Christopher L Ryan
Chief Financial Officer
Nazar Khan
Senior Vice Presf dent of
Development
Mlla Kramme
Se=tary
All, officers shall have such authority and perform such duties as may be
provided in this Agreement or, to the extent not so provided, by a written instrument duly
executed and delivered by the Member. The day to day operations of the Company shall be
the responsibility of the officers of the Company who shall be designated by the M . ember.
8. Capital Contributions. ne Member(s) shall contribute capital to the
Company from time to time as the Member(s) shall require with such capital contribution
being made by the Membcr(s) pro rata in accordance with its (their) membership interests.
4
9. Allocation of Prof W% and Losses. All income. gains and losses will be
allocated to the capital accounts of each of the Mcmber(s) in accordance with its (their)
membership interest(s). ,
10. Distributions. Ile Member(s) will receive distributions if. upon
winding up of the Company, the assets or proceeds available exceed the amount required for
the payment and discharge of all or the Company's debts and liabilities. Otherthanasstated
above, distributions to (he Member(s) shall be in the discretion of the Member(s). Ile
Membcr(s) may, in its (their) discretion. make distributions to a Member which include a
return of all or any part of such Member's contribution. 77he Member(s) has (have) no right
to demand or receive property other than cash from the Company in return for its (their)
capital contributions.
11. Amendments. Amendments to this Agreement may be made only
with the consent of the Member or. if at such time there shall be more than one Member. all
the Members.
12. Assignments. of Interest of a Member. A Member may assign in
whole or pail such Member's membership interest in the Company; provided. howove , that
if at such time there shall be more than one Member, an assignee of a membership interest
may not become a Member without the vote or written consent of at least a majority in
interest of th I e Members. other than the Member who assigns or proposes to assign such
membership interest.
13. Withdrawal or Resignation. A Member may withdraw from the
Company in accordance with the Act-
14. Admission of Additional Member%. One or more additional
MembWs.) of the, Company may be admitted to the Company with the consent of the
Member or, if at Such time there shall be more than one Member, all of the Members.
15. Liability of Member,-,.
(a) Ile Member(s) shal I not have any liability for the obligations
or liabilities of the Company except to the extent provided in the Act.
(b) 'Me Member exercising management powers or
responsibilities for or on, behalf of the Company shall not have personal liability to the
Company or its members fordamages for any breach ofdutyinsuch capacity, providedWi
nothing in this Section 15(b) shall eliminate or limit the liability of the Member if ajudgment
or other final adjudicationadverse to the Member establishes that the Member's acts or
orrussions were in bad faith or involved intentional misconduct or a knowing violation of
law, or that the Member personally gained through such act or ontission a financial pmfit or
other advantage to which the Member was not legally entitled, or that with respect to a
distribution to the Mcmber(s) under Section 18-607 of the Act the Member's acts were . not
performed in accordance with Section 18-302(d) of the Act.
16. Indemnification. To the fullest extent permitted bylaw, the Company
shall indeinnify, hold harmless, protect and defend each Member, and each of the officers,
employees and agents, if any, of the Company (collectively. the
against any
losses, cWms,,damages or liabilities, including, without limitation, legal and othcrcxpcnscs
incurred in investigating or defending against any such loss, claim, damages or liabilities,
and any amounts expended in settlement of any claim (collectively, "ILabilitie's *). to which
any Indemnitee may become subject by reason of any act or omission (even if negligent or
grossly negligent) performed or omitted to be performed on behalf of the Company or by
reason of the fact that such Indemnitee is or was a Member, or officer, employee, or agent of
the Company or is or was serving at the request of the Company as a director, trustee,
manager, officer. employee or agent of another corporation, partnership, joint venture,
limited liability company, trust or other enterprise, provided howevSr, that no
indemnification may be made to or on behalf of any Indemnitee if ajudgment or other final
adjudication adverse to such Indemnitec establishes (a) that his or her acts oromissions were
committed in bad faith or involved intentional misconduct or a knowing violation of law or
(b) that he or she personally gained through such an act or omission a financial profit or
other advantage to which he or she was not legally entitled. The provisions of this Section
16 shall continue to afford protection to each Indemnitce regardless of whether such
Indemnitec remains a Member, officer, employee. or agent of the Company. Any indemnity
under this Section 16 or otherwise shall be paid out of and to the extent of the Company's
assets only.
17. P:i—ss—olution. The Company shall dissolve, and its affairs shall be
wound up (unless the Member or, if at such time there shall be mom than one Member, a
majority in interest of the Members, agrees tocontinue the business), upon the first to occur
of the following:
(a) 'Me distribution of all of the intemsts of the Mcmber(s) in the
Company, or.the occurrence of any other event which terminates the continued membership
of any Member in the Company (by operation of law or otherwise);
(b) 'Me unanimous consent of all the Members to dissolve the
Company; or
7
(c) 7he assignment, sale, transferorother disposition, (including
dispositions by operation of law) of all of the Company's assets.
18. Governina Law. Ilis Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements made and to
be performed entirely within such State, without regard to the principles of conflicts of laws
of such State.
8
IN WITNESS WI-Ir-,REOF, the undersigned, intending to be legally bound
hereby, hLs (IIJIY CXCCL]tcd this Agreement as of December 5, 2007.
MEMBER:
BICENT (CALIFORNIA) POW17IR I..I-c
Nmic.- Paul �. pr. r
Title: President