EXHIBIT 3.48
EXECUTION COPY
LIMITED LIABILITY COMPANY AGREEMENT
OF
NRG BAYOU COVE LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of
NRG Bayou Cove LLC (the "Company"), dated as of September 10, 2001, is entered
into by NRG South Central Generating LLC, a Delaware limited liability company
(the "Member").
RECITALS
A. The Member is the sole member of the Company.
B. The Member desires to enter into this Agreement,
which is intended to constitute a limited liability company agreement within the
meaning of the Act (as defined below).
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, capitalized terms used in this
Agreement have the meanings set forth below. Capitalized terms used but not
defined in this Agreement have the meanings set forth in the Act.
1.1 "Act" means the Delaware Limited Liability Company
Act (presently 6 Delaware Code Section 18-101, et seq.), as amended from time to
time.
1.2 "Affiliate," with respect to any Person, means (a)
any Person directly or indirectly controlling, controlled by, or under common
control with such Person, (b) any Person owning or controlling 10% or more of
the outstanding voting securities of such other Person, (c) any officer,
director, or partner of such Person, and (d) if such other Person is an officer,
director, or partner, any company for which such Person acts in any such
capacity.
1.3 "Agreement" means this Limited Liability Company
Agreement, and all amendments, schedules, exhibits and modifications hereto.
1.4 "Assignee" means a transferee of an interest in the
Company who has not been admitted as a Substitute Member.
1.5 "Capital Account" means the account of a Member
established and maintained in accordance with the provisions of Section 4.1
hereof.
1.6 "Capital Contribution" means, with respect to a
Member, the total amount of cash and the agreed upon fair market value of
property contributed or agreed to be contributed by such Member to the capital
to the Company.
1.7 "Certificate of Formation" means the Certificate of
Formation of the Company filed with the Secretary of State of the State of
Delaware on September 10, 2001, as the same may be amended from time to time.
1.8 "Code" means the Internal Revenue Code of 1986, as
amended, and any successor thereto. Any reference to specific Sections of the
Code shall be to the Section as it now exists and to any successor provision.
1.9 "Company" means NRG Bayou Cove LLC.
1.10 "Distribution" means the total amount of cash and/or
the fair market value of property distributed by the Company to a Member from
time to time with respect to his, her or its interest as a Member of the
Company.
1.11 "Management Board" has the meaning set forth in
Section 6.2.
1.12 "Officer" has the meaning set forth in Section 6.2.
1.13 "Member" means a member of the Company as named
herein and any additional member or Substitute Member admitted pursuant to this
Agreement. An assignee who has not been admitted as a Substitute Member is not a
Member for any purpose.
1.14 "Membership Interest" means the interest of a Member
in the Company, including a Member's entire right, title and interest in the
Company, including the Member's financial interest and all rights to voting and
management and other rights of governance of the Company as set forth herein,
which Membership Interests are represented by Units.
1.15 "Person" means any natural person and any
corporation, partnership, trust, association, or other legal entity.
1.16 "Substitute Member" means a transferee who has been
admitted to the Company with all of the rights of membership in the Company
pursuant to the Agreement.
1.17 "Unit" means a unit of Membership Interest that
possesses rights to Distributions from the Company and to share in the profits
and losses of the Company, as provided herein, and with the management rights
provided herein.
ARTICLE 2.
FORMATION
2.1 Formation of Limited Liability Company. The Company
has been organized as a Delaware limited liability company under the Act by the
filing of the Certificate of Formation in the form and as required by the Act.
The rights and liabilities of the Members
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are as provided in the Act, except as otherwise expressly provided herein or in
the Certificate of Formation.
2.2 Members. NRG South Central Generating LLC is the
initial Member of the Company, and agrees to the terms of this Agreement and to
be fully bound hereby. The address of the Member is as follows:
901 Marquette Avenue
Suite 2300
Minneapolis, Minnesota 55402
2.3 Name. The name of the Company is NRG Bayou Cove LLC.
The Company may also conduct business under one or more assumed names.
2.4 Offices. The Company's registered office within the
State of Delaware shall be located at 1209 Orange Street, Wilmington, County of
New Castle, Delaware 19801, or such other place as the Member may from time to
time determine. The Company's principal executive office shall be located at 901
Marquette Avenue, Suite 2300, Minneapolis, Minnesota 55402, or such other place
as the Member may from time to time determine. The Company may maintain such
other offices at such other places as the Member deems advisable.
2.5 Purposes. The Company is formed for general business
purposes consistent with the Act. The Company shall have all of the powers
necessary or convenient to effect any purpose for which it is formed, including
all powers granted by the Act.
2.6 Term. The period of existence of the Company shall be
perpetual, unless dissolved in accordance with law.
2.7 Registered Agent. The Company's registered agent in
Delaware is The Corporation Trust Company. The registered agent may be changed
from time to time in accordance with the Act. If the registered agent resigns,
the Company shall promptly appoint a successor.
2.8 Title to Property. All property owned by the Company,
whether real or personal, tangible or intangible, is deemed to be owned by the
Company as an entity, and no Member, individually, has any ownership interest in
any such property.
2.9 Waiver of Partition. Each Member hereby waives any
and all rights such Member may have to a partition of any Company property or
properties.
2.10 Intention for Company. The Member has formed the
Company as a limited liability company under the Act. The Member specifically
intends that the Company not be a general or limited partnership or any other
joint or cooperative venture. No Member or Officer shall be construed to be a
partner in the Company or a partner or other joint venturer of or with any other
Member, Officer, or Person.
2.11 Units; Certificates of Membership Interest;
Applicability of Article 8. Membership Interests shall be represented by Units.
The number of authorized Units shall be one
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thousand (1,000). All Membership Interests shall be represented by certificates
in such form as the Management Board 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 Management Board may from time to
time determine. Membership Interests shall be subject to the provisions of
Article 8 of the Uniform Commercial Code of the State of Delaware as may be
applicable from time to time.
ARTICLE 3.
CAPITAL CONTRIBUTIONS
3.1 Initial Capital Contributions. As its initial Capital
Contribution to the Company, the Member agrees to contribute $1,000.00 as its
Capital Contribution for which it will receive 1,000 Units.
3.2 Additional Capital Contributions; Nonassessability.
No additional Capital Contributions are presently contemplated or will be
required. No Member will be required to make any Capital Contribution in excess
of the amount stated in Section 3.1 unless agreed by all Members.
3.3 No Right to Return of Contribution. No Member has the
right to withdraw or to receive a return of their Capital Contributions, as
reflected in their respective Capital Accounts from time to time, except upon
the dissolution and liquidation of the Company pursuant to Article 13.
3.4 Loans from Members to Company. Subject to any other
restrictions contained herein, the Company may borrow money from the Member at
such interest rate or rates and upon such other terms as are agreed upon by the
Company and the lending Member; provided that the interest rate on any such
loans may not exceed the rate that would apply to Company borrowing on similar
terms from recognized banks or financial institutions.
3.5 No Interest on Contributions. No interest shall be
paid to any Member on Capital Contributions.
ARTICLE 4.
ALLOCATIONS OF PROFITS AND LOSSES; DISTRIBUTIONS
4.1 Capital Accounts. The Company will maintain a
separate Capital Account for each Member. The Capital Account for each Member
shall be increased by such Member's Capital Contributions and decreased by
Distributions made to such Member. Each Member's Capital Account shall also be
increased or decreased, as the case may be, to account for allocations of
profits and losses to such Member. As of the date on which additional Capital
Contributions are made by any Member, or Distributions are made in liquidation
of any Member's interest in the Company, the Capital Account balances of the
Members may be restated to reflect the market values of the Company's properties
as of such date and the manner in which profits and losses would have been
allocated had the Company disposed of its properties on such date, all in
accordance with Treasury Regulations Sections 1.704-1(b)(2)(iv)(f) and
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(r), as in effect on the date hereof. Subsequent adjustments to Capital
Accounts shall be made so as to comply with the requirements of Treasury
Regulations Sections 1.704-1(b)(2)(iv) and 1.704-1(b)(4)(i), as in effect on the
date hereof. For example, appreciation and depreciation of assets reflected in
the Capital Accounts of the Members by reason of the adjustments described above
shall be taken into account in making later Capital Account adjustments for
profits and losses.
4.2 Restatement of Capital Accounts. If any additional
Capital Contributions are made to the Company, upon agreement of Members holding
seventy-five percent (75%) of all Units, the Capital Accounts of the Members may
be restated to reflect the Members' interests in Company assets. Any such
restatement shall reflect such increases or decreases in the Capital Accounts of
the Members as would reflect the manner in which income, gains, losses, etc.,
would be allocated if there were a taxable disposition of all Company property
for its fair market value on the date of such Capital Contributions.
4.3 Allocations of Profit and Losses. Profits and losses
of the Company shall be allocated pro rata among the Members in proportion to
their Units.
4.4 Section 704(c) Allocation. To the extent required by
Section 704(c) of the Code, items of income, gain, loss, or deduction with
respect to contributed properties shall be allocated among the Members in such
manner as takes into account any variations between the bases of such properties
to the Company upon contribution and the fair market values of such properties
at the time of contribution. Any allocations made solely to comply with this
Section 4.4 and Section 704(c) of the Code are not to be reflected in Capital
Account adjustments.
4.5 Discretionary Distributions Prior to Liquidation.
Additional current Distributions may be made from time to time as the Members
holding a majority of the Units determine. Distributions pursuant to this
Section 4.5 are to be made among the Members in proportion to the number of
Units held by each of them. Except as provided in Section 4.8, all Distributions
to Members prior to the liquidation, winding up, and dissolution of the Company
shall be in cash.
4.6 Distributions Upon Dissolution and Winding Up. At the
time of the dissolution and winding up of the Company, following the allocation
of all net income and net losses and the payment of all Company obligations, the
remaining assets shall be distributed to the Members in accordance with Section
12.3.
4.7 No Distribution by Reason of Withdrawal. Neither
withdrawal from the Company, Transfer of any interest in the Company, nor demand
for the return of capital shall entitle any owner of an interest in the Company
to receive any Distribution from the Company.
4.8 Distributions in Kind. No Member has any right to
demand or receive a Distribution from the Company in any form other than cash,
nor may any Member be compelled to accept any distribution of property in kind
except under circumstances where all Members receive undivided interests in
property or substantially equivalent interests in property on the basis of their
Capital Accounts. If there is a Distribution of property in kind, such property
shall be assumed to have been sold at its fair market value at the time of the
Distribution, and the
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resulting gain or loss shall be allocated among the Members according to their
Capital Accounts, and their Capital Accounts shall be adjusted accordingly.
ARTICLE 5.
RIGHTS AND DUTIES OF MEMBERS
5.1 Member Voting. Members shall possess voting rights in
proportion to their number of Units.
5.2 Conflicts of Interest.
(a) Other Business Ventures. Any Member may
engage in or possess an interest in other business ventures of every
nature and description, independently or with others, whether such
ventures are competitive with the Company or otherwise; and neither the
Company nor the Members shall have any right by virtue of this
Agreement in or to such independent ventures or to the income or
profits derived therefrom, and no Member shall have the obligation to
bring any business opportunity to the Company or to any other Member.
(b) Contracts With Members and Affiliates. A
Member does not violate a duty or obligation to the Company merely
because the Member's conduct furthers the Member's own interest. A
Member (or an Affiliate of a Member) may lend money to and transact
other business with the Company. If a Member (or an Affiliate of a
Member) lends money to or transacts business with the Company, the
rights of such Member (or an Affiliate of a Member) with respect to the
loan or the transacted business are the same as those of a Person who
is not a Member, subject to other applicable law. No transaction with
the Company shall be voidable solely because a Member has a direct or
indirect interest in the transaction if either (i) the transaction is
fair to the Company or (ii) the disinterested Members, knowing the
material facts of the transaction and the Member's interest, authorize,
approve or ratify the transaction.
ARTICLE 6.
MANAGEMENT
6.1 Management. Except as otherwise specified herein, the
management of the Company is reserved to the Member. All decisions of the
Company shall be by the agreement of Members holding a majority of the Units
held by Members. Notwithstanding the foregoing, the Management Board and/or
Officers of the Company may make decisions related to the management of the
Company except to the extent the Members may otherwise limit such authority.
6.2 Management Board. The Company shall have a
"Management Board" of such number of members as Members holding a majority of
the Units held by Members shall determine from time to time, whose authority
shall be subject to the provisions of Section 6.1. Members holding a majority of
the Units held by Members may remove a member of the Management Board from that
position. The initial members of the Management Board shall be
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set forth herein at Exhibit A. The "Officers" of the Company shall consist of
the members of the Management Board and the other Officers elected or appointed
pursuant to this Article 6. All other Officers named in this Agreement or
elected or appointed pursuant to this Article 6 shall be responsible to, and
subject to the authority and direction of, the Management Board in connection
with matters over which the Management Board has authority. Except as otherwise
provided herein, whenever this Agreement contemplates action by the Management
Board, the Management Board may take or cause to be taken such action in
connection with the Company's business by the vote or agreement of a majority of
the members of the Management Board.
6.3 Right of Public to Rely on Authority of Members;
Signatory Authority. No person shall be required to determine the authority of
the Members or of a Member to make any undertaking on behalf of the Company, or
to see to the application or distribution of revenues or proceeds paid to the
Members or to a Member.
6.4 Officers.
(a) The Officers of the Company, as such, shall
have limited authority, and shall be subject to the provisions and
limitations of this Article 6.
(b) The Management Board may elect a Chairperson
of the Board who, if elected, shall preside at all meetings of the
Members and of the Management Board and shall perform such other duties
as may be prescribed by the Management Board from time to time.
(c) The Company shall have a Chief Executive
Officer, who shall have general active management of the business of
the Company, and in the absence of the Chairperson of the Board or if
the office of Chairperson of the Board is vacant, shall preside at
meetings of the members and Management Board, shall see that all orders
and resolutions of the Management Board are carried into effect, shall
have authority to sign and deliver in the name of the Company any
deeds, mortgages, bonds, contracts, or other instruments pertaining to
the business of the Company, except in cases in which the authority to
sign and deliver is required by law to be exercised by another person
or is expressly delegated by this Agreement, or the Management Board to
some other Officer or agent of the Company, may maintain records of and
certify proceedings of the Management Board and Members, and shall
perform such other duties as may from time to time be prescribed by the
Management Board.
(d) The Company shall have a President, who
shall be the chief operating officer of the Company, shall have
authority to exercise the power of the Chief Executive Officer in his
absence, and in the absence of the Chairperson of the Board and the
Chief Executive Officer, or if both such offices are vacant, shall
preside at meetings of the Members and Management Board. The Company
may also have one or more Vice Presidents, who shall have authority to
exercise the power of the President in his absence.
(e) The Company shall have a Treasurer, who,
unless provided otherwise by the Management Board, shall keep accurate
financial records for the Company, shall deposit all moneys, drafts,
and checks in the name of and to the credit of
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the Company in such banks and depositories as the Management Board
shall designate from time to time, shall endorse for deposit all notes,
checks, and drafts received by the Company as ordered by the Management
Board, making proper vouchers therefor, shall disburse Company funds
and issue checks and drafts in the name of the Company as ordered by
the Management Board, shall render to the President and the Management
Board, whenever requested, an account of all such Officer's
transactions as Chief Financial Officer and of the financial condition
of the Company, and shall perform such other duties as the Management
Board or the President may prescribe from time to time.
(f) The Company shall have a Secretary, who
shall have primary responsibility to maintain records of actions of,
and whenever necessary, certify all proceedings of the Members. The
Secretary shall keep the required records of the Company, when so
directed by the person or persons authorized to call such meetings,
shall give or cause to be given notice of meetings of the Members, and
shall perform such other duties and have such other powers as the
Members or the President may prescribe from time to time.
(g) A Officer, as such, shall not be obligated
to devote his or her full time to the conduct of the Company affairs,
but shall devote only as much time as he or she deems necessary for the
proper conduct thereof, and provided further, that nothing in this
Agreement shall be deemed to restrict in any way the freedom of a
Officer to conduct any other businesses or activities whatsoever
without any accountability to the Company.
(h) The Company may have additional Officers as
provided in Section 6.6.
6.5 Initial Officers. The initial Officers shall be set
forth herein at Exhibit A.
6.6 Election and Removal of Officers. Subject to the
other provisions of this Article 6, the Management Board may elect or appoint
other Officers or agents of the Company, with such titles, duties, and authority
as they shall designate. Subject to the other provisions of this Article 6, and
to any other limitations that the Management Board may impose, the President may
delegate authority and appoint other Officers and agents of the Company, with
such titles, duties, and authority as the President shall designate. The
President, at any time, may remove or terminate the authority of any Officer or
agent that was appointed by the President. The Management Board may at any time
remove or terminate the authority of any Officer or agent, whether elected or
appointed by the Management Board or the President.
ARTICLE 7.
LIABILITY AND INDEMNIFICATION
7.1 Liability of Members. No Member shall be liable as
such for the liabilities of the Company. The failure of the Company to observe
any formalities or requirements relating to the exercise of its powers or
management of its business or affairs under this Agreement or the Act shall not
be grounds for imposing personal liability on the Members or the Officers for
liabilities of the Company.
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7.2 Liability of Officer and Employees. No Officer or
employee shall be liable to the Company for any liability suffered by the
Company on account of any action or inaction taken by him as a Officer or
employee, if such Person acted (a) in good faith, (b) with the care of a
corporate officer of like position, and (c) in a manner he reasonably believed
to be in the best interest of the Company.
7.3 Indemnification.
(a) The Company shall indemnify any current or
former Officer of the Company to the full extent permitted by law
against expenses, judgments and other losses arising out of his or her
status as Management Board, provided that the Officer has met the
appropriate standard of conduct as set forth in Section 7.2, in the
interpretation of a majority in interest of the Management Board
(excluding the Officer for whom such indemnification is proposed, if
such Officer serves on the Management Board).
(b) The Company may indemnify any current or
former employee or agent of the Company, at the discretion of the
Management Board, to the full extent permitted by law against expenses,
judgments and other losses arising out of their status as an employee,
provided that the employee has met the appropriate standard of conduct
as set forth in Section 7.2, in the interpretation of the Management
Board.
7.4 Expenses.
(a) The Company shall reimburse any Officer for
all losses and expenses, including legal fees, in connection with any
suit or action referred to in Section 7.3(a) above.
(b) In the discretion of the Officer, the
Company may advance a Officer or employee funds to defend a suit or
otherwise, provided that such Person must agree to repay such amounts
if it is determined that he is not entitled to reimbursement of the
funds.
7.5 Non-Exclusivity. The indemnification and advancement
of expenses shall not be exclusive of any other right available to an Officer or
employee.
ARTICLE 8.
BOOKS AND RECORDS; TAX MATTERS
8.1 Tax Characterization. The Members intend that the
Company be treated as a "partnership" for tax purposes during all periods when
there is more than one Person that owns an interest in the Company for federal
income tax purposes, and as a disregarded entity for tax purposes during periods
for which there is but one Person that owns an interest in the Company for
federal income tax purposes.
8.2 Accounting Method and Fiscal Year. The Company shall
keep its accounting records and shall report its income for income tax purposes
on the method of
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accounting that was used by the Company. The fiscal year of the Company shall be
the calendar year.
8.3 Books and Records. The Company's books and accounting
records and all other papers, records, and documents relating to the Company's
affairs shall be kept at the Company's principal executive office or such other
place as the Members may agree. Each Member shall have the right, subject to
applicable law and reasonable standards established by the Officer, to obtain
from the Company from time to time upon reasonable demand for any purpose
reasonably related to the Member's interest as a Member of the Company:
(a) true and full information regarding the
status of the business and financial condition of the Company;
(b) promptly after becoming available, a copy of
the Company's federal, state, and local income tax returns for each
year;
(c) a current list of the name and last known
business, residence or mailing address of each Member and Officer of
the Company;
(d) a copy of any written limited liability
company agreement and Certificate of Formation and all amendments
thereto, together with executed copies of any written powers of
attorney pursuant to which the limited liability company agreement and
any certificate and all amendments thereto have been executed; and
(e) true and full information regarding the
amount of cash and description and statement of the agreed value of any
other property or services contributed by each Member and which each
Member has agreed to contribute in the future, and the date on which
each became a Member
8.4 Annual Financial Statements. The Management Board
shall cause to be prepared and delivered to each of the Members within 120 days
after the close of each fiscal year, annual financial statements for the
Company, including statements of assets and liabilities, income statements, and
such other statements as are commonly included in financial statements, or as
may be requested by the Members. Such financial statements need not be audited.
Costs of compiling the Company's annual financial statements will be paid by the
Company. If a majority in interest of the Members deems it advisable to have the
Company's financial statements audited or reviewed, the Management Board may
engage an independent certified public accountant to do so, and the fees
therefor will be paid by the Company.
8.5 Bank Accounts. The Management Board shall select a
bank account or accounts for the funds of the Company, and all funds of every
kind and nature received by the Company shall be deposited in such account or
accounts. The Management Board shall designate from time to time the Persons
authorized to withdraw funds from such accounts. The funds of the Company will
not be commingled with funds of any other Person.
8.6 Tax Returns. As soon as possible following the close
of each year of the Company for which the filing of a partnership tax return is
required, the partnership income tax return for the Company shall be prepared by
such accountant or firm as may be selected by the
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Management Board. In addition, within 75 days after the end of each fiscal year,
the Company will cause to be delivered to each Person who was a Member at any
time during such fiscal year a Schedule K-1 and such other information, if any,
with respect to the Company as may be necessary for the preparation of such
Member's federal or state income tax (or information) returns, including a
statement showing each Member's share of income, gain, loss, and credits for
such fiscal year for federal or state income tax purposes.
8.7 Tax Elections. In the sole discretion of the
Management Board, the Company may make or not make any and all tax elections
deemed appropriate, including, in the event of a transfer of all or part of any
Member's interest in the Company, the election under Section 754 of the Code to
adjust the bases of the assets of the Company.
8.8 Tax Matters Partner. During periods for which the
Company must have a "tax matters partner" within the meaning of Section
6231(a)(7) of the Code, the Member shall act as the tax matters partner of the
Company.
ARTICLE 9.
TRANSFERS OF MEMBERSHIP INTERESTS
9.1 Limitation on Sale or Exchange. Except as otherwise
provided in this Article 9, no Member may sell, assign, or otherwise transfer
all or any portion of his, her or its interest in the Company except as agreed
by all other Members.
9.2 Requirements for Assignment. Subject to restrictions
on transferability contained elsewhere in this Agreement or imposed by federal
or state law, a Member may assign an interest in the Company only (a) by a
written assignment that (i) is not in contravention of any of the provisions of
this Agreement; (ii) has been duly executed and acknowledged by the assignor and
assignee, subject to the reasonable approval of the Management Board; and (iii)
is to an assignee who represents that he satisfies specific suitability
standards applicable to the assigning Member as may from time to time be
established by a majority in interest of the Members; and (b) if required by the
Management Board, legal counsel for the Company has rendered its opinion, in
form and substance satisfactory to the Management Board and at the expense of
the prospective assignee or assignor, that such assignment would not cause the
termination of the Company for federal income tax purposes (unless termination
is consented to by the Management Board or the transfer is otherwise permitted
by Section 10.1) or the taxation of the Company as a corporation.
9.3 Continuation of Assignor's Status. Anything herein to
the contrary notwithstanding, the Company, its Officers, and the Members are
entitled to treat an assignor of an interest in the Company as the absolute
owner thereof in all respects, and they will incur no liability for
distributions of cash made in good faith to him, her or it until such time as a
written assignment that conforms to all requirements of this Article 10 has been
received by and recorded on the books and records of the Company.
9.4 Assignee's Rights. An assignee of any Member's
interest will be entitled to receive Distributions of cash or other property
from the Company and to receive allocations of
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the gains, profits, and losses of the Company attributable to such interest
after the effective date of the assignment. The "effective date" of an
assignment shall be the later of (a) the date set forth on the written
instrument of assignment and (b) the date upon which the requirements of this
Article 9 have been satisfied. An Assignee who has not been admitted as a
Substitute Member pursuant to Section 9.5 will have no additional rights except
as required by law.
9.5 Requirements for Admission as a Substitute or
Additional Member. An assignee of an interest in the Company, if not already a
Member, may become a Substitute Member only with the consent of Members holding
a majority of all Units held by nontransferring Members, which consent may be
granted or withheld all in each such Member's sole discretion. No assignee of
any Member's interest who is not already a Member may become a Substitute Member
with respect to such interest without such consent.
9.6 Documents and Expenses. As a condition to admission
as a Substitute Member, an assignee of all or a part of any interest in the
Company shall execute and acknowledge such instruments, in form and substance
satisfactory to the Company, as the Company deems necessary or advisable to
effectuate such admission and to confirm the agreement of the person being
admitted as such Substitute Member to be bound by all of the terms and
provisions of this Agreement. Such assignee shall pay all reasonable expenses in
connection with such admission as a Substitute Member, including, but not
limited to, legal fees and costs of preparing and filing any amendment to the
Certificate of Formation of the Company if necessary or desirable in connection
therewith.
9.7 Transfers Not in Compliance With this Article are
Void. Any attempted transfer of an interest in the Company, or any part thereof,
not in compliance with this Article 9 is null and void ab initio.
9.8 Acquit Company. Until such time as a written
assignment that conforms to all requirements of this Article 9 has been received
by and recorded on the books of the Company, any payment by the Company to an
assigning Member or his, her or its executors, administrators, or
representatives shall acquit the Company of liability to the extent of such
payments from any other Person who may have an interest in such payment by
reason of an assignment by the Member, such Member's death, or otherwise.
9.9 Obligations of Substitute Members or Assignees. A
Person who shall, as provided in this Article, be admitted as a Member of the
Company, or shall become an assignee of an interest in the Company or other
rights or powers of a Member to the extent assigned, shall become bound by this
Agreement:
(a) If such Person (or a representative
authorized by such Person orally, in writing or by other action such as
payment for an interest in the Company) executes the Agreement or any
other writing evidencing the intent of such Person to become a Member
or Assignee; or
(b) Without such execution, if such Person (or a
representative authorized by such Person orally, in writing or by other
action such as payment for an interest in the Company) complies with
the conditions for becoming a Member or
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Assignee as set forth in this Agreement or any other writing and
requests (orally, in writing or by other action such as payment for a
Company interest) that the records of the Company reflect such
admission or assignment; and
Such obligation shall not be unenforceable by reason of its not having been
signed by a Person being admitted as a Member or becoming an assignee as
provided in this Article, or by reason of its having been signed by a
representative as provided by the Act.
ARTICLE 10.
ADDITIONAL MEMBERS
Additional Members may be admitted to the Company upon such
terms and conditions, and for such Capital Contributions as shall be approved by
all Members. If there remain no Members because of the occurrence of an event
described in Section 12.1(c) that terminated the membership of the last
remaining Member, any or all Persons that (a) acquired all or any portion of
such Member's interest in the Company and (b) request in writing to be admitted
as a Member, shall be admitted as additional Members of the Company as of a
common date no later than 90 days after the occurrence of such Dissolution
Event.
ARTICLE 11.
RESIGNATION; WITHDRAWAL
A Member may not resign from, withdraw from, or assign an
interest in the Company, except as specifically permitted by this Agreement.
ARTICLE 12.
DISSOLUTION; CONTINUATION
12.1 Dissolution Events. The Company shall continue until
the occurrence of any of the following events (each a "Dissolution Event"):
(a) The expiration of the Company's period of
existence, as set forth in the Certificate of Formation;
(b) The written consent of all of the Members to
dissolve and terminate the Company;
(c) The death, retirement, resignation,
expulsion, bankruptcy, or dissolution of a Member, or the occurrence of
any other event which terminates the continued membership of a Member;
or
(d) The decree of a court of competent
jurisdiction that dissolution and liquidation is required.
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12.2 Continuation After Dissolution. Upon the occurrence
of a Dissolution Event defined in Section 12.1(c), the Company automatically
shall be continued (a) if there are remaining Members, unless the remaining
Members of the Company elect to dissolve pursuant to Section 12.1(b), or (b) if
there are no remaining Members of the Company, if one or more additional Members
are admitted pursuant to Article 9 within 90 days after such Dissolution Event.
12.3 Dissolution Procedure. Except as otherwise provided
by the Act and unless the Company is continued pursuant to Section 12.2, upon
the occurrence of a Dissolution Event, no further business shall be done in the
name of or on behalf of the Company except insofar as may be necessary to wind
up the business of the Company and distribute its assets to the Members or their
successors in interest, and the Company shall execute and file a certificate of
cancellation as required by the Act. Upon dissolution and termination of the
Company, except as otherwise provided in any valid business continuation
agreement and by applicable law, the Company's assets shall be applied in the
following order:
(a) To creditors, including Members or the
Officer who are creditors, to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (whether by payment or the
making of reasonable provision for payment thereof) other than
liabilities for which reasonable provision for payment has been made;
(b) Next, to the setting up of any reserves
deemed reasonably necessary by the Officer for (i) any contingent,
conditional or unmatured claims or obligations of the Company known to
the Company; and (ii) all claims and obligations which are known to the
Company but for which the identity of the claimant is unknown; and
(c) Next, to the Members first in accordance
with their respective Capital Account balances, and second respecting
their interests in the Company, in the proportions in which Members
share in Distributions pursuant to Section 4.5 of this Agreement.
For purpose of determining the rights of Members to Distributions in
dissolution, in the event of a distribution of property in kind, such property
shall be assumed to have been sold at its fair market value, as determined by
the Officer, with any gain or loss allocated to the Members in accordance with
Article 4. If a Member is indebted to the Company, the Company shall, if
possible, offset such indebtedness to satisfy its obligation to make a
Distribution in dissolution to said indebted Member rather than distribute a
portion of said indebtedness to the other Members.
ARTICLE 13.
AMENDMENTS
No change, modification or amendment of this Agreement shall
be valid or binding unless such change, modification or amendment is contained
in a writing signed by all Members.
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ARTICLE 14.
PROVISIONS APPLICABLE WHEN THERE IS A SINGLE MEMBER
For all periods during which there is a single Member of the
Company, notwithstanding any contrary provision of this Agreement, such Member's
actions, for all purposes, shall be duly authorized actions by and on behalf of
the Company.
ARTICLE 15.
MISCELLANEOUS
15.1 Governing Law. Notwithstanding the fact that the
Company will conduct business in states other than Delaware, and notwithstanding
the fact that the Members are residents of states other than Delaware, this
Agreement and the rights of the parties hereunder will be governed by,
interpreted, and enforced in accordance with the laws of the State of Delaware.
15.2 Certificate of Formation. The Certificate of
Formation is incorporated by reference and hereby made a part of this Agreement.
In the event of any conflict between the Certificate of Formation and this
Agreement, the provisions of this Agreement shall govern to the extent not
contrary to law.
15.3 Binding Effect. This Agreement will be binding upon
and inure to the benefit of the Members, and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
15.4 Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under the present or future laws
effective during the term of this Agreement, such provision will be fully
severable, and this Agreement will be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
15.5 Counterparts. This Agreement may be executed in
several counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument. In making proof hereof it will be
necessary to produce only one copy hereof signed by the party to be charged.
15.6 Additional Documents and Acts. Each Member agrees to
execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
the transactions contemplated hereby.
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15.7 No Third Party Beneficiary. This Agreement is made
solely and specifically among and for the benefit of the parties hereto, and
their respective successors and assigns, and no other Person will have any
rights, interest or claim hereunder or be entitled to any benefits under or on
account of this Agreement, whether as a third party beneficiary or otherwise.
15.8 Notices. Any notice to be given or to be served by a
Member upon the Company in connection with this Agreement must be in writing and
will be deemed to have been given when delivered personally or mailed to the
Company at its registered office or its principal executive office or to the
Company's President. Notice to a Member will be deemed to have been given when
(a) delivered personally to the Member or (b) deposited in the United States
mail, postage prepaid and addressed to a Member at the address specified in
Section 2.2 hereof. At any time, by giving 5 days' prior written notice to the
Company, a Member may designate another address in substitution of the foregoing
address as the address to which notice is to be given.
15.9 Headings and Titles. Article and section headings and
titles are for descriptive purposes and convenience of reference only and shall
not control, alter or be used to interpret the meaning of this Agreement as set
forth in the text.
15.10 Entire Agreement. This Agreement is the final
integration of the agreement of the parties with respect to the matters covered
by it and supersedes any prior understanding or agreement, oral or written, with
respect thereto.
15.11 Gender, Etc. Except where the context requires
otherwise, the use of terminology of any of the masculine, feminine or neuter
genders shall include all such genders, and the use of the singular number shall
include the plural and vice versa.
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IN WITNESS WHEREOF, the Member has executed this Agreement as
of the date first above written.
NRG SOUTH CENTRAL GENERATING LLC,
a Delaware limited liability company,
as the Member
By: /s/ Craig A. Mataczynski
-------------------------------------
Name: Craig A. Mataczynski
Title: President
(Signature Page to NRG Bayou Cove LLC Agreement)
EXHIBIT A
MEMBER: NRG SOUTH CENTRAL GENERATING LLC
NUMBER OF UNITS % OWNERSHIP PARENT COMPANIES
- --------------- ----------- ----------------
1,000 100% NRG Central U.S. LLC
South Central Generation Holding LLC
INITIAL MANAGEMENT BOARD:
Craig A. Mataczynski
Alan D. Williams
INITIAL OFFICERS:
President Craig A. Mataczynski
Vice President Alan D. Williams
Treasurer Adam Carte
Secretary A. Kell McInnis
Assistant Secretary Kathryn J.Osteraas