THIRD AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
RE Retail Receivables, LLC
a Delaware Limited Liability Company
THIS THIRD AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (this
“Agreement” ) of RE Retail Receivables, LLC (the
“Company” ), dated as of October 5, 2009 is
adopted by, and executed and agreed to, for good and valuable
consideration, by the Sole Member of the Company, Reliant Energy
Retail Services, LLC, Delaware limited liability
As used in this Agreement, the
following terms have the following meanings:
“ Act ” means the
Delaware Limited Liability Company Act and any successor statute,
as amended from time to time.
“ Agreement ” has
the meaning given that term in the introductory
“ Capital Contribution
” means the aggregate contribution by a Member to the capital
of the Company.
“ Certificate ”
has the meaning given that term in Section 2.1.
“ Company ” means
RE Retail Receivables, LLC, a Delaware limited liability
“ Dispose ,”
“ Disposed ,” “ Disposing ”
or “ Disposition ” means a sale, assignment,
transfer, exchange, mortgage, pledge or other disposition
(including, without limitation, by operation of law); provided,
however, that this definition does not include the granting and/ or
perfection of a security interest lien or encumbrance.
“ Incapacity ” or
“ Incapacitated ” means (a) with respect to a
natural person, the bankruptcy, death, incompetency or insanity of
such person and (b) with respect to any other Person, the
bankruptcy, liquidation, dissolution or termination of such
“ Majority Members
” means Members holding a majority of the Units owned by all
Members or if there is only one Member, such Member.
“ Member ” means
any Person executing this Agreement as of the date of this
Agreement as a member or hereafter admitted to the Company as a
member as provided in this Agreement, but does not include any
Person who has ceased to be a member of the Company.
“ Person ” means
a natural person, partnership (whether general or limited), limited
liability company, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own or
any representative capacity.
“ Proceeding ”
has the meaning given such term in Section 5.1.
“ Units ” means
the units of each Member representing such Member’s interest
in the income, gains, losses, deductions and expenses of the
Company as set forth on Schedule A hereto, as amended from
time to time in accordance with the terms of this
Whenever the context requires, the
gender of all words used in this Agreement includes the masculine,
feminine and neuter. All references to Articles and Sections refer
to articles and sections of this Agreement, and all references to
Schedules are to Schedules attached hereto, each of which is made a
part hereof for all purposes.
The Company has been organized as a
Delaware limited liability company by the filing of a Certificate
of Formation (the “Certificate” ) under and
pursuant to the Act.
Name. The name of the Company is “RE Retail
Receivables, LLC” and all Company business shall be conducted
in that name or such other names that comply with applicable law as
the Majority Members may select from time to time.
Registered Office; Registered
Agent; Principal Office; Other Offices. The registered office of the Company required by
the Act to be maintained in the State of Delaware shall be the
office of the initial registered agent named in the Certificate or
such other office (which need not be a place of business of the
Company) as the Majority Members may designate from time to time in
the manner provided by law. The registered agent of the Company in
the State of Delaware shall be the initial registered agent named
in the Certificate or such other Person or Persons as the Majority
Members may designate from time to time in the manner provided by
law. The principal office of the Company shall be at such place as
the Majority Members may designate from time to time, which need
not be in the State of Delaware.
Purposes. The purposes of the Company are to engage in any
business or activity that is not prohibited by the Act or the laws
of the jurisdictions in which the Company engages in such business
Prior to the Company’s
conducting business in any jurisdiction other than Delaware, the
Majority Members shall cause the Company to comply, to the extent
procedures are available and those matters are reasonably within
the control of the Majority Members, with all requirements
necessary to qualify the Company as a foreign limited liability
company in that jurisdiction.
Term. The term of the Company commenced on the date
the original certificate of formation was filed with the office of
the Secretary of State of Delaware and shall continue in existence
until termination and dissolution thereof as determined under
Section 8.1 of this Agreement.
Partnership. The Members
intend that the Company not be a partnership (including, without
limitation, a limited partnership) or joint venture, and that no
Member be a partner or joint venture, of any other Member, for any
purposes other than federal and, if applicable, state tax purposes,
and this Agreement shall not be construed to suggest otherwise. The
Members intend that the Company shall be treated as a partnership
for federal and, if applicable, state income tax purposes, and each
Member and the Company shall file all tax returns and shall
otherwise take all tax and financial reporting positions in a
manner consistent with such treatment.
The number of authorized Units shall
initially be one thousand (1,000). Units may be represented by one
or more certificates in such form as the Majority Members may from
time to time approve, shall be recorded in a register thereof
maintained by the Company, and shall be subject to such rules for
the issuance thereof as the Majority Members may from time to time
MEMBERS, UNITS AND DISTRIBUTIONS
The names, residence, business or
mailing addresses and the Units of the Members are set forth in
Schedule A , as amended from time to time in accordance with
the terms of this Agreement.
No Member, as such, shall be
required to lend any funds to the Company or to make any additional
contribution of capital to the Company, except as otherwise
required by applicable law or by this Agreement. Any Member may,
with the approval of the Majority Members, make loans to the
Company, and any loan by a Member to the Company shall not be
considered to be a Capital Contribution.
Each Member shall execute a
counterpart of this Agreement, and when a Person is admitted as a
Member, such Person shall execute a counterpart of this Agreement
and such Person shall be listed as a Member on Schedule A
with such Member’s address and Units.
Liability of Members.
Except as otherwise required by
applicable law and as explicitly set forth in this Agreement, no
Member shall have any personal liability whatsoever in its capacity
as a Member, whether to the Company, to any of the Members, to the
creditors of the Company or to any other third party, for the
debts, liabilities, commitments or any other
obligations of the Company or for any losses of
the Company, and therefore, a Member shall be liable only to make
Capital Contributions to the Company and the other payments as
provided herein. To the extent that, at law or in equity, a Member
or other Person has duties (including fiduciary duties) and
liabilities relating thereto to the Company or another Person, such
Member or other Person acting in accordance with this Agreement
shall not be liable to the Company or any other Member for its good
faith reliance on the provisions of this Agreement.
Each Member’s interest in the
Company, including such Member’s interest in income, gains,
losses, deductions and expenses of the Company and the right to
vote on certain matters as provided in this Agreement, shall be
represented by the Units owned by such Member.
Issuance of Additional Units and
Interests. The Majority
Members shall have the right to cause the Company to create and
issue or sell: (i) additional Units or other interests in the
Company (including other classes or series thereof having different
rights), (ii) obligations, evidences of indebtedness or other
securities or interests convertible or exchangeable into Units or
other interests in the Company and (iii) warrants, options or other
rights to purchase or otherwise acquire Units or other interests in
the Company. Upon the acquisition of any Units or other interests
in the Company by a Person who is not a Member, such Person shall
execute and deliver a counterpart of this Agreement and shall
become a Member hereunder, and Schedule A hereto shall be
amended to reflect such issuance and new Member.
Subject to the provision of the Act,
the Majority Members shall have sole discretion regarding the
amounts and timing of distributions to Members, in each case
subject to the retention of, or payment to third parties of, such
funds as it deems necessary with respect to the reasonable business
needs of the Company which shall include (but not by way of
limitation) the payment or the making of provision for the payment
when due of Company obligations, including the payment of any
management or administrative fees and expenses or any other
Management by the
Members. The powers of
the Company shall be exercised by or under the authority of, and
the business and affairs of the Company shall be managed under the
direction of, the Majority Members, and the Majority Members shall
make all decisions and take all actions for the Company.
Actions by Members; Delegation of
Authority and Duties.
In managing the business and affairs
of the Company and exercising its powers, the Majority Members
shall act through (i) meetings and written consents pursuant to
Sections 4.3 and 4.4 , and (ii) any Person to whom
authority and duties have been delegated pursuant to Section
The Majority Members may, from time
to time, delegate to one or more Persons such authority and duties
as the Majority Members may deem advisable. In addition, the
Majority Members may assign titles (including, without limitation,
chairman, chief executive officer, president, vice president,
secretary, assistant secretary, treasurer and assistant treasurer)
to any such Persons and delegate to such other individuals certain
authority and duties. Any number of titles may be-held by the same
individual. Any delegation pursuant to this Section 4.2(b)
may be revoked at any time by the Majority Members.
The Majority Members shall
constitute a quorum for the transaction of business of the Company,
and except as otherwise prov