EXHIBIT 3.24
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
LOUISIANA GENERATING LLC
dated as of
March 22, 2000
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS ............................................................................. 2
ARTICLE II FORMATION OF THE COMPANY ............................................................... 4
2.1 Name ................................................................................... 4
2.2 Principal Business Office .............................................................. 4
2.3 Registered Office ...................................................................... 4
2.4 Registered Agent ....................................................................... 4
2.5 Purpose ................................................................................ 4
2.6 Company Term ........................................................................... 5
2.7 Powers ................................................................................. 5
2.8 Units; Certificates of Ownership Interest; Applicability of Article 8 of UCC ........... 5
ARTICLE III MEMBERS ............................................................................... 5
3.1 Members ................................................................................ 5
3.2 Other Business ......................................................................... 5
3.4 Admission of Additional Members ........................................................ 5
3.5 Member's Powers ........................................................................ 5
ARTICLE IV MANAGEMENT ............................................................................. 6
4 1 Management ............................................................................. 6
4.2 Officers ............................................................................... 7
4.3 Limited Liability ...................................................................... 9
4.4. Exculpation and Indemnification ........................................................ 9
ARTICLE V CAPITAL CONTRIBUTIONS, CAPITAL ACCOUNTS, DISTRIBUTIONS AND ALLOCATIONS .................. 10
5.1 Capital Contributions .................................................................. 10
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5.2 Additional Contributions ............................................................... 10
5.3 Capital Accounts ....................................................................... 10
5.4 Allocation of Profits and Losses ....................................................... 11
5.5 Distributions .......................................................................... 11
ARTICLE VI BANKING, ACCOUNTING, BOOKS AND RECORDS ................................................. 11
6.1 Banking ................................................................................ 11
6.2 Maintenance of Accounts and Accounting Method .......................................... 11
6.3 Company Tax Returns .................................................................... 11
6.4 Fiscal Year ............................................................................ 11
ARTICLE VII REPORTS TO MEMBERS .................................................................... 11
7.1 Records, Audits and Reports ............................................................ 11
7.2 Reports to Members ..................................................................... 12
ARTICLE VIII ASSIGNMENTS, DISSOLUTION AND TERMINATION OF THE COMPANY .............................. 13
8.1 Assignment ............................................................................. 13
8.2 Dissolution ............................................................................ 13
8.3 Time for Liquidation ................................................................... 14
8.4 Termination ............................................................................ 14
ARTICLE IX MISCELLANEOUS .......................................................................... 14
9.1 Notices ................................................................................ 14
9.2 Counterparts ........................................................................... 15
9.3 Severability ........................................................................... 15
9.4 Non-Waiver ............................................................................. 15
9.5 Applicable Law ......................................................................... 15
9.6 Entire Agreement ....................................................................... 15
9.7 Benefits of Agreement; No Third Party Rights ........................................... 16
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9.8 Amendments ............................................................................. 16
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THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
LOUISIANA GENERATING LLC
THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT has
been entered into as of March 22, 2000 by NRG South Central Generating LLC, a
Delaware limited liability company ("South Central") for the purpose of
providing for the operation of Louisiana Generating LLC (the "Company").
R E C I T A L S
WHEREAS, NRG Central U.S. LLC ("Central") and South Central Generation
Holding LLC ("Holdings") each own 50% of the ownership interest in South Central
and NRG Energy, Inc., a Delaware corporation ("NRG") owns 100% of each of
Central and Holdings;
WHEREAS, Zenergy, Inc. ("Zenergy"), a wholly owned subsidiary of
Zeigler Coal Holding Company, Inc., a Delaware corporation ("Zeigler") and NRG
(the "Initial Members") caused a Certificate of Formation of the Company (the
"Certificate of Formation") to be filed with the Delaware Secretary of State
under the name Louisiana Generating LLC on June 14, 1996;
WHEREAS, the Initial Members executed that certain Limited Liability
Company Agreement of the Company, dated June 14, 1996 (the "Original LLC
Agreement") as amended and restated by that certain Amended and Restated Limited
Liability Company Agreement of the Company which added Southern Energy-Cajun,
Inc. ("SEI") as a member of the Company, effective October 7, 1996 (the "First
Amended LLC Agreement");
WHEREAS, the Company and, for certain provisions thereof NRG, has
entered into the Fifth Amended and Restated Asset Purchase Agreement dated as of
September 21, 1999 ("Asset Purchase Agreement") with Ralph R. Mabey, as Chapter
11 Trustee in Bankruptcy ("Trustee") of Cajun Electric Power Cooperative, Inc.
("Cajun Electric") for the acquisition by the Company (the "Acquisition") of
substantially all of the non-nuclear assets of Cajun Electric (the "Assets");
WHEREAS, NRG, Zeigler and Southern Electric International, Inc.
("Southern Electric") or their Affiliates entered into that certain Joint
Development Agreement dated as of September 29, 1996 pursuant to which NRG,
Zeigler and Southern Electric agreed to pursue the acquisition and ownership of
the Assets (the "Joint Development Agreement");
WHEREAS, SEI, NRG, Zeigler, Southern Electric and Zenergy entered into
a Termination and Withdrawal Agreement by Zeigler Coal Holding Company dated
March 12, 1999, pursuant to which Zenergy transferred 66 2/3% of its Ownership
Interest in the Company to NRG and 33 1/3% of its Ownership Interest in the
Company to SEI, resulting in NRG and SEI each holding 50% of the Ownership
Interests of the Company;
WHEREAS, NRG has exercised its right under the Joint Development
Agreement to purchase all of SEI's Ownership Interest in the Company and has
consummated such transaction;
WHEREAS, NRG has transferred 100% of its Ownership Interest in the
Company to Central and Holdings, and Central and Holdings transferred 100% of
such Ownership Interest in the Company to South Central; and
WHEREAS, South Central as the sole member of the Company, by execution
of this Agreement, hereby continues the Company as a limited liability company
pursuant to and in accordance with the Delaware Limited Liability Company Act (6
Del.C. Section 18-101, et seq.), as amended from time to time (the "Act") and
this Agreement, hereby amends and restates in its entirety the Second Amended
LLC Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and for the
mutual agreements set forth herein, the Member, intending to be legally bound,
hereby agrees as follows:
ARTICLE I
DEFINITIONS
As used herein the following terms have the meanings set forth below:
"Act" shall have the meaning set forth in the Recitals.
"Acquisition" shall have the meaning set forth in the Recitals.
"Affiliate" shall mean any Person which, directly or indirectly,
controls, is controlled by or is under common control with another Person
(whereby "control" means the ability to elect a majority of directors of
otherwise direct the management of such Person through contract or otherwise).
"Agreement" shall mean this Third Amended and Restated Limited
Liability Company Agreement of Louisiana Generating LLC, as the same may be
amended or restated from time to time.
"Assets" shall have the meaning set forth in the Recitals.
"Asset Purchase Agreement" shall have the meaning set forth in the
Recitals.
"Cajun Electric" shall have the meaning set forth in the Recitals.
"Capital Account" shall have the meaning set forth in Section 5.3.
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"Capital Contribution" shall mean, with respect to a particular Member,
the amount of capital contributed or deemed to have been contributed by such
Member to the Company pursuant to Article V.
"Central" shall have the meaning set forth in the Recitals.
"Certificate of Formation" shall have the meaning set forth in the
Recitals.
"Code" shall mean the Internal Revenue Code of 1986, as heretofore and
hereafter amended from time to time (and/or any corresponding provision of any
superseding revenue law).
"Company" shall have the meaning set forth in the Preamble.
"Covered Person" shall have the meaning set forth in Section 4.4(a).
"Fair Market Value" shall mean the amount that an informed and willing
purchaser under no compulsion to buy would pay to acquire the relevant
interest(s) in the Company or property in an arm's-length transaction and which
an informed and willing seller under no compulsion to sell would accept for such
interest(s) or property in an arm's length transaction without taking into
account any control premium, liquidity discount or the existence of any approval
rights under this Agreement.
"First Amended LLC Agreement" shall have the meaning set forth in the
Recitals.
"Fiscal Year" shall have the meaning set forth in Section 6.4.
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time, consistently applied.
"Holdings" shall have the meaning set forth in the Recitals.
"Initial Members" shall have the meaning set forth in the Recitals.
"Joint Development Agreement" shall have the meaning set forth in the
Recitals.
"Member" means NRG and any Person admitted as an additional member of
the Company or a substitute member of the Company pursuant to the provisions of
this Agreement.
"NRG" shall have the meaning set forth in the Recitals.
"Officers" shall have the meaning set forth in Section 4.2.
"Original LLC Agreement" shall have the meaning set forth in the
Recitals.
"Ownership Interest" shall mean each Member's equity interest in the
Company. The initial Ownership Interests of the Members are listed on Schedule 1
and may be revised from time to time as provided herein.
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"Person" shall mean any individual, entity, firm, corporation,
partnership, association, limited liability company, joint-stock company, trust,
or unincorporated organization.
"Regulations" shall include proposed, temporary and final regulations
promulgated under the Code as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"South Central" shall have the meaning set forth in the Preamble.
"Southern Electric" shall have the meaning set forth in the Recitals.
"Trustee" shall have the meaning set forth in the Recitals.
"Zeigler" shall have the meaning set forth in the Recitals.
"Zenergy" shall have the meaning set forth in the Recitals.
ARTICLE II
FORMATION OF THE COMPANY
2.1 Name.
The name of the limited liability company heretofore formed
and continued hereby is Louisiana Generating LLC.
2.2 Principal Business Office.
The principal business office of the Company shall be located
at 10719 Airline Highway, Baton Rouge, Louisiana 70895 or such other location as
may hereafter be determined by the Member.
2.3 Registered Office.
The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware
19801.
2.4 Registered Agent.
The name and address of the registered agent of the Company
for service of process on the Company in the State of Delaware is The
Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801.
2.5 Purpose. The purpose of the Company is to: (a) consummate the
Acquisition including participating in the financing of such Acquisition; (b)
own and operate the Assets; and (c) engage in any lawful business permitted by
the Act or the laws of any jurisdiction in which
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the Company may do business. The Company shall have the authority to do all
things necessary or convenient to accomplish its purposes and operate its
business as described in this Section 2.5.
2.6 Company Term. The term of the Company commenced on the date of
the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware and shall continue until the Company's
dissolution in accordance with the provisions of Article VIII of this Agreement.
2.7 Powers. The Company (i) shall have and exercise all powers
necessary, convenient or incidental to accomplish its purposes as set forth in
Section 2.5 and (ii) shall have and exercise all of the powers and rights
conferred upon limited liability companies formed pursuant to the Act.
2.8 Units; Certificates of Ownership Interest; Applicability of
Article 8 of UCC. Ownership Interests shall be represented by units ("Units").
The number of authorized Units shall be one thousand (1,000). All Ownership
Interests shall be represented by certificates in such form as the Board of
Directors shall 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 Board of Directors may from time to time determine.
Ownership Interests shall be subject to the provisions of Article 8 of the
Uniform Commercial Code as may be applicable from time to time.
ARTICLE III
MEMBERS
3.1 Members.
a. The name and the mailing address of the Member are
set forth on Schedule 1 attached hereto.
b. The Member may act by written consent.
3.3 Other Business. The Member and any Affiliate of the Member may
engage in or possess an interest in other business ventures (unconnected with
the Company) of every kind and description, independently or with others. The
Company shall not have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement.
3.4 Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company with the written consent
of the Member.
3.5 Member's Powers. Until the Directors are appointed, the Member
shall manage the business and affairs of the Company and shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise. The Member has the authority to bind the Company.
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ARTICLE IV
MANAGEMENT
4.1 Management.
a. Board of Directors. Subject to Section 3.5, the
business and affairs of the Company shall be managed by or under the direction
of a Board of one or more Directors. The Member may determine at any time in its
sole and absolute discretion the number of Directors to constitute the Board.
The authorized number of Directors may be increased or decreased by the Member
at any time in its sole and absolute discretion. The initial number of Directors
shall be three. Each Director elected, designated or appointed shall hold office
until a successor is elected and qualified or until such Director's earlier
death, resignation or removal. Directors need not be Members.
b. Powers. The Board of Directors shall have the power
to do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise. The Board of Directors has the authority to bind the Company.
c. Meeting of the Board of Directors. The Board of
Directors of the Company may hold meetings, both regular and special, within or
outside the State of Delaware. Regular meetings of the Board may be held without
notice at such time and at such place as shall from time to time be determined
by the Board. Special meetings of the Board may be called by the President on
not less than one day's notice to each Director by telephone, facsimile, mail,
telegram or any other means of communication, and special meetings shall be
called by the President or Secretary in like manner and with like notice upon
the written request of any one or more of the Directors.
d. Quorum; Acts of the Board. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for the transaction
of business and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors present at such meeting may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
e. Electronic Communications. The Directors, or any
committee designated by the Board, may participate in meetings of the Board, or
any committee, by means of telephone conference or similar communications
equipment that allows all persons participating in the meeting to hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall be deemed to
be held at the principal place of business of the Company.
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f. Committees of Directors.
(i) The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The Board may designate
one or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
(ii) In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such members constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided
in the resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Company. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each committee
shall keep regular minutes of its meetings and report the same to the Board when
required.
g. Compensation of Directors; Expenses. The Board shall
have the authority to fix the compensation of Directors. The Directors may be
paid their expenses, if any, of attendance at meetings of the Board, which may
be a fixed sum for attendance at each meeting of the Board or a stated salary as
Director. No such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefore. Members of special
or standing committees may be allowed like compensation for attending committee
meetings.
h. Removal of Directors. Unless otherwise restricted by
law, any Director or the entire Board of Directors may be removed, with or
without cause, by the Member, and any vacancy caused by any such removal may be
filled by action of the Member.
i. Directors as Agents. To the extent of their powers
set forth in this Agreement, the Directors are agents of the Company for the
purpose of the Company's business, and the actions of the Directors taken in
accordance with such powers set forth in this Agreement shall bind the Company.
4.2 Officers.
a. Officers. The Officers of the Company shall be chosen
by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board may appoint such other Officers and agents as
it shall deem necessary or advisable who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the Board. The Officers
of the Company shall hold office until their
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successors are chosen and qualified. Any Officer elected or appointed by the
Board may be removed at any time, with or without cause, by the affirmative vote
of a majority of the Board. Any vacancy occurring in any office of the Company
shall be filled by the Board.
b. President. The President shall be the chief executive
officer of the Company, shall preside at all meetings of the Members, if any,
and the Board, shall be responsible for the general and active management of the
business of the Company and shall see that all orders and resolutions of the
Board are carried into effect. The President shall execute all bonds, mortgages
and other contracts, except: (i) where required or permitted by law or this
Agreement to be otherwise signed and executed; (ii) where signing and execution
thereof shall be expressly delegated by the Board to some other Officer or agent
of the Company; and (iii) as otherwise permitted in Section 4.2(c).
c. Vice President. In the absence of the President or in
the event of the President's inability to act, the Vice President, if any (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated by the Directors, or in the absence of any designation, then in
the order of their election), shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Vice Presidents, if any, shall perform such
other duties and have such other powers as the Board may from time to time
prescribe.
d. Secretary and Assistant Secretary. The Secretary
shall be responsible for filing legal documents and maintaining records for the
Company. The Secretary shall attend all meetings of the Board and all meetings
of the Members, if any, and record all the proceedings of the meetings of the
Company and of the Board in a book to be kept for that purpose and shall perform
like duties for the standing committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of the Members, if any, and special
meetings of the Board, and shall perform such other duties as may be prescribed
by the Board or the President, under whose supervision the Secretary shall
serve. The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board (or if there be no such
determination, then in order of their election), shall, in the absence of the
Secretary or in the event of the Secretary's inability to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
e. Treasurer and Assistant Treasurer. The Treasurer
shall have the custody of the Company funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Company as may be ordered
by the Board, taking proper vouchers for such disbursements, and shall render to
the President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and
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exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
f. Officers as Agents. The Officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action
of the Board not inconsistent with this Agreement, are agents of the Company for
the purpose of the Company's business, and the actions of the Officers taken in
accordance with such powers shall bind the Company.
g. Duties of Board and Officers. Except to the extent
otherwise provided herein, each Director and Officer shall have a fiduciary duty
of loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
4.3 Limited Liability. Except as otherwise expressly provided by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be the debts, obligations and liabilities
solely of the Company, and neither any Member nor any Director shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member or Director of the Company.
4.4. Exculpation and Indemnification.
a. No Member, Officer, Director, employee or agent of
the Company and no employee, representative, agent or Affiliate of the Member
(collectively, the "Covered Persons") shall be liable to the Company or any
other Person who has an interest in or claim against the Company for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
b. To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the Company for any
loss, damage or claim incurred by such Covered Person by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that no
Covered Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Covered Person by reason of such Covered
Person's gross negligence or willful misconduct with respect to such acts or
omissions; provided, however, that any indemnity under this Section 4.4 shall be
provided out of and to the extent of Company assets only, and no Member shall
have personal liability on account thereof.
c. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on behalf
of the Covered Person to repay such amount if it shall be determined that the
Covered Person is not entitled to be indemnified as authorized in this Section
4.4.
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d. A Covered Person shall be fully protected in relying
in good faith upon the records of the Company and upon such information,
opinions, reports or statements presented to the Company by any Person as to
matters the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, or any other
facts pertinent to the existence and amount of assets from which distributions
to the Member might properly be paid.
e. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Company or to any other Covered Person, a Covered Person acting under
this Agreement shall not be liable to the Company or to any other Covered Person
for its good faith reliance on the provisions of this Agreement or any approval
or authorization granted by the Company or any other Covered Person. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, are
agreed by the Member to replace such other duties and liabilities of such
Covered Person.
f. The foregoing provisions of this Section 4.4 shall
survive any termination of this Agreement.
ARTICLE V
CAPITAL CONTRIBUTIONS, CAPITAL ACCOUNTS, DISTRIBUTIONS
AND ALLOCATIONS
5.1 Capital Contributions. The Member has contributed, or will
contribute, to the Company the amount listed on Schedule 1 attached hereto.
5.2 Additional Contributions. The Member is not required to make
any additional capital contribution to the Company. However, a Member may make
additional capital contributions to the Company at any time upon the written
consent of such Member. To the extent that the Member makes an additional
capital contribution to the Company, the Member shall revise Schedule 1 of this
Agreement. The provisions of this Agreement, including this Section 5.2, are
intended solely to benefit the Member and, to the fullest extent permitted by
law, shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor of the Company shall be a third-party beneficiary
of this Agreement) and no Member shall have any duty or obligation to any
creditor of the Company to make any contribution to the Company or to issue any
call for capital pursuant to this Agreement.
5.3 Capital Accounts. Each Member shall have a capital account (a
"Capital Account") which account shall be (a) increased by the amount of cash
and the Fair Market Value of any property (net of liabilities assumed by the
Company and liabilities to which the property is subject) contributed by such
Member to the Company, plus all items of income and gain of the Company
allocated to such Member and (b) decreased by the amount of cash and the Fair
Market Value of any property (net of liabilities assumed by the Member and
liabilities to which the property is subject) distributed by the Company to such
Member, plus all items of loss and deduction of the Company allocated to such
Member. The Capital Accounts shall be maintained
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in good faith, in accordance with the principles embodied in Sections 704(b) and
(c) of the Code and the Regulations.
5.4 Allocation of Profits and Losses. The net profits and net
losses of the Company for each Fiscal Year shall be allocated to the Member.
5.5 Distributions. Distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Board. Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall not
be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate Section 18- 607 of the Act.
ARTICLE VI
BANKING, ACCOUNTING, BOOKS AND RECORDS
6.1 Banking. All funds of the Company shall be deposited in such
bank or money market accounts as shall be established by the President with the
approval of the Member. Withdrawals from and checks drawn on, any such account
shall be made upon the signature of the President or such other individuals as
may be designated by the Member.
6.2 Maintenance of Accounts and Accounting Method. The Company
shall keep or cause to be kept at the office of the Company full and accurate
accounts of the transactions of the Company in proper books of account. Such
books and records shall be kept in accordance with GAAP.
6.3 Company Tax Returns. The Company shall cause to be prepared
and timely filed all tax returns required to be filed for the Company in the
jurisdictions in which the Company is required to file tax returns for all
applicable tax years, and shall furnish within a reasonable period after the end
of each Fiscal Year (but in no event later than ninety (90) days after the end
of such Fiscal Year) a statement of each Member's distributive share of income,
gains, losses, deductions and credits for such Fiscal Year and such other
information necessary for such Member to complete its applicable federal, state,
local and foreign tax returns. The Officers may make, or refrain from making,
any income or other tax elections for the Company which they deem necessary or
advisable, including an election pursuant to Section 754 of the Code.
6.4 Fiscal Year. Unless otherwise required by applicable law, the
taxable and fiscal accounting year of the Company (the "Fiscal Year") shall end
on the 31st day of December each year or such other date as agreed to in writing
by the Members and as permitted by applicable law.
ARTICLE VII
REPORTS TO MEMBERS
7.1 Records, Audits and Reports. Complete books and records
accurately reflecting the accounts, business, transactions and Members of the
Company shall be maintained by the
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Company at the Company's principal place of business. The books and records of
the Company shall be open at reasonable business hours for inspection and
copying by any Member or its duly authorized agents or representatives. The
Company, and the Board on behalf of the Company, shall not have the right to
keep confidential from the Member any information that the Board would otherwise
be permitted to keep confidential from the Member pursuant to Section 18-305(c)
of the Act. The books of account and records of the Company shall be audited as
of the end of each Fiscal Year by any nationally recognized accounting firm as
shall have been selected by the Member.
7.2 Reports to Members.
7.2.1 The Company shall cause to be prepared and mailed to
each Member:
(a) as soon as practicable and in any event
within thirty (30) days after the end of every quarterly accounting
period of each Fiscal Year, an unaudited balance sheet of the Company
as of the last day of such semi-annual period and the related statement
of income, shareholders' equity and cash flows and reports of all
distributions made to Members for such semi-annual periods and for the
portion of the Fiscal Year ending with the last day of such quarter,
setting forth in each case in comparative form corresponding unaudited
figures from the preceding Fiscal Year (if applicable), prepared in all
such cases in accordance with GAAP,
(b) as soon as practicable and in any event
within ninety (90) days after the end of each Fiscal Year, a balance
sheet of the Company as of the end of such year and the related
statements of income, shareholders' equity and cash flows, setting
forth in comparative form corresponding figures from the preceding
Fiscal Year, prepared in all such cases in accordance with GAAP, and
accompanied by an audit report thereon of a nationally recognized
accounting firm specified in Section 7.1;
(c) an audit opinion of the Company's
independent auditors selected pursuant to Sections 7.1 hereof relating
to the financial statements described in clauses (a) and (b) hereof to
the effect that such financial statements (except for the comparison to
budget) have been prepared in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise specified in such
report) and that the audit of such consolidated financial statements
has been performed in accordance with GAAP;
(d) such Member's closing Capital Account as of the
end of such Fiscal Year; and
(e) a report indicating such Member's share of
all items of income, gain, loss, deduction and credit of the Company
for such Fiscal Year on a GAAP basis for financial reporting purposes.
7.2.2 Within thirty (30) days after the end of each
quarter, the Company shall cause to be prepared and mailed to each Member a
financial report setting forth such Member's closing Capital Account as of the
end of such quarter and the manner of the calculation thereof.
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7.2.3 At such time, the Company shall deliver at the
Company's sole expense to each Member an estimate of such Member's share of all
items of income, gain, loss, deduction and credit of the Company for such
quarter and for the Fiscal Year to date for federal income tax purposes.
7.2.4 The above financial statements shall be accompanied
by a certificate of the principal accounting or financial officer of the Company
to the effect that such financial statements have been prepared under such
officer's supervision and that, although such financial statements do not
contain the footnotes and other disclosure required to be presented in interim
financial statements by GAAP, such financial statements, in such officer's
judgment, fairly present the financial condition and results of operations of
the Company as of the date and for the periods indicated, subject to normal
recurring year-end audit adjustments.
7.2.5 Each financial report delivered to the Members
pursuant to this Section 7.2 shall (i) be prepared in accordance with GAAP, and
(ii) include comparisons with the corresponding amounts of the immediately prior
Fiscal Year.
ARTICLE VIII
ASSIGNMENTS, DISSOLUTION AND TERMINATION OF THE
COMPANY
8.1 Assignment. The Member may assign in whole or in part its
Ownership Interest in the Company. If the Member transfers all of its Ownership
Interest in the Company pursuant to this Section 8.1, the transferee shall be
admitted to the Company as a Member of the Company upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer, and, immediately following such admission, the transferor Member shall
cease to be a member of the Company. Notwithstanding anything in this Agreement
to the contrary, any successor to a Member by merger or consolidation shall,
without further act, be a Member hereunder, and such merger or consolidation
shall not constitute an assignment for purposes of this Agreement.
8.2 Dissolution.
a. The Company shall be dissolved, and its affairs shall
be wound up upon the first to occur of the following: (i) the retirement,
resignation or dissolution of the Member or the occurrence of any other event
which terminates the continued membership of the Member in the Company unless
the business of the Company is continued in a manner permitted by the Act or
(ii) the entry of a decree of judicial dissolution under Section 18-802 of the
Act.
b. The bankruptcy (as defined in Section 18-101(1) of
the Act) of the Member shall not cause the Member to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company
shall continue without dissolution.
c. In the event of dissolution, the Company shall
conduct only such activities as are necessary to wind up its affairs (including
the sale of the assets of the Company in an
13
orderly manner), and the assets of the Company shall be applied in the manner,
and in the order of priority, set forth in Section 18-804 of the Act.
8.3 Time for Liquidation. A reasonable time period shall be
allowed for the orderly liquidation of the assets of the Company and the
discharge of liabilities to creditors so as to enable the Members to minimize
the losses attendant upon such liquidation; provided, that, if reasonably
practicable, the Company will make any liquidating distributions to the Members
by the end of the Fiscal Year in which the liquidation occurs (or, if later,
within ninety (90) days after the date of such liquidation).
8.4 Termination. Upon compliance with the foregoing distribution
plan, the Company shall cease to be such and the Member shall execute,
acknowledge and cause to be filed with the Secretary of State of the State of
Delaware a certificate of cancellation of the Company.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given: (i) upon
delivery if delivered in person; (ii) upon delivery if delivered by registered
first class mail, return receipt requested; (iii) upon delivery if delivered by
facsimile, telegram, or cable (if the day of receipt is a business day or if not
on the next succeeding business day, and if written confirmation is immediately
sent by reputable overnight delivery service); or (iv) on the first business day
after sending by reputable overnight delivery service, to the addresses set
forth below or to such other address as the Member may give notice of to the
Company:
(a) if to the Company:
Louisiana Generating, LLC
10719 Airline Highway
Baton Rouge, Louisiana 70895
With a copy to the Member.
With a copy to:
Gibson, Dunn & Crutcher, LLP
200 Park Avenue
New York, New York 10166
Attention: Steven P. Buffone
Facsimile: (212)351-4035
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(b) if to South Central:
NRG South Central Generating LLC
1221 Nicollet Mall, Suite 700
Minneapolis, Minnesota 55403-2445
Attention: Craig A. Mataczynski
Facsimile: (612) 373-5430
With a copy to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, Minnesota 55403-2445
Attention: Vice President and General Counsel
Facsimile: (612) 373-5392
9.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original.
9.3 Severability. Every provision of this Agreement is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever such term or provision will be enforced to the maximum extent
permitted by law and, in any event, such illegality or invalidity shall not
affect the validity of the remainder of the Agreement.
9.4 Non-Waiver.
(a) The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act, that would have
originally constituted a violation, from having the effect of an original
violation.
(b) The rights and remedies provided by this Agreement
are cumulative and the use of any one right or remedy by any party shall not
preclude or waive the right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the Member may have by law,
statute, ordinance or otherwise.
9.5 Applicable Law. This Agreement and the rights and obligations
of the parties hereto shall be interpreted and enforced in accordance with and
governed by the laws of the State of Delaware (without regard to conflict of
laws principles), all rights and remedies being governed by said laws.
9.6 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior or contemporaneous oral or written agreements.
15
9.7 Benefits of Agreement; No Third Party Rights. None of the
provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of the Member. Nothing in this
Agreement shall be deemed to create any right in any Person (other than Covered
Persons) not a party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third
Person.
9.8 Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
16
IN WITNESS WHEREOF, the undersigned has duly executed this Third
Amended and Restated Limited Liability Company Agreement of LOUISIANA GENERATING
LLC, as of the day and year first above written.
NRG SOUTH CENTRAL GENERATING LLC
By: NRG Central U.S. LLC
By: NRG Energy, Inc.
/s/ Craig A. Mataczynski
-----------------------------------
Name: Craig A. Mataczynski
Title: Senior Vice President
By: South Central Generation Holding LLC
By: NRG Energy, Inc.
/s/ Craig A. Mataczynski
-----------------------------------
Name: Craig A. Mataczynski
Title: Senior Vice President
17
SCHEDULE I
Amount of Capital
Member's Name and Address Ownership Interests Contribution
- ------------------------- ------------------- -----------------
NRG South Central Generating, LLC 100% $ 1,000
1221 Nicollet Mall, Suite 700
Minneapolis, Minnesota 55403-2445