Exhibit B-23(d)
LIMITED LIABILITY COMPANY AGREEMENT
OF
ENTERGY INTERNATIONAL LTD LLC
This Limited Liability Company Agreement (this
"Agreement") of Entergy International Ltd LLC is entered into
by Entergy Corporation, a Delaware corporation ("Entergy
Corp."), as the sole member of the Company (as defined below)
(including any substitute member of the Company, the
"Member").
The Member, by execution of this Agreement, hereby
forms a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6
Del.C. 18-101, et seq.), as amended from time to time (the
"Act"), and hereby agrees as follows:
1. Name, Member and Certificates. The name of
the limited liability company formed hereby is Entergy
International Ltd LLC (the "Company"). Except as provided in
Section 18 of this Agreement, the sole member of the Company
is Entergy Corporation. Entergy Corporation, as the sole
member of the Company, shall own all of the limited liability
company interests in the Company (the "Shares"). The Company
is authorized to issue 1,000 Shares. The Company hereby
issues 100 Shares to Entergy Corporation. The Member, on
behalf of the Company, shall cause the Company to issue to
Entergy Corporation a certificate representing the Shares
owned by it. Such certificate (the "Entergy Corporation
Certificate") shall be signed on behalf of the Company by the
Chairman or Vice Chairman of the Board of Directors of
Entergy Corporation (who is the sole member of the Company),
if any, or the President or a Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of Entergy Corporation, certifying the
number of Shares owned by Entergy Corporation in the Company.
Any or all of the signatures on the certificate may be a
facsimile. In case any officer of Entergy Corporation shall
have ceased to be such officer before such certificate is
issued, it may be issued by the Company with the same effect
as if he or she were such officer at the date of issue.
2. Governmental Certificates. Entergy
Corporation, as an authorized person within the meaning of
the Act, shall execute, deliver and file the Certificate of
Formation with the Secretary of State of the State of
Delaware. The Member shall execute, deliver and file any
other certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business
in a jurisdiction in which the Company may wish to conduct
business.
3. Purpose. The Company is formed for the object
and purpose of, and the nature of the business to be
conducted and promoted by the Company is, engaging in any
lawful act or activity for which limited liability companies
may be formed under the Act.
4. Powers. In furtherance of its purposes, but
subject to all of the provisions of this Agreement, the
Company shall have the power and is hereby authorized to:
a. acquire by purchase, lease, contribution
of property or otherwise, own, hold, sell, convey, transfer
or dispose of any real or personal property which may be
necessary, convenient or incidental to the accomplishment of
the purpose of the Company;
b. act as a trustee, executor, nominee,
bailee, director, officer, agent or in some other fiduciary
capacity for any person or entity and to exercise all of the
powers, duties, rights and responsibilities associated
therewith;
c. take any and all actions necessary,
convenient or appropriate as trustee, executor, nominee,
bailee, director, officer, agent or other fiduciary,
including the granting or approval of waivers, consents or
amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers,
consents or amendments;
d. operate, purchase, maintain, finance,
improve, own, sell, convey, assign, mortgage, lease or
demolish or otherwise dispose of any real or personal
property which may be necessary, convenient or incidental to
the accomplishment of the purposes of the Company;
e. borrow money and issue evidences of
indebtedness in furtherance of any or all of the purposes of
the Company, and secure the same by mortgage, pledge or other
lien on the assets of the Company;
f. invest any funds of the Company pending
distribution or payment of the same pursuant to the
provisions of this Agreement;
g. prepay in whole or in part, refinance,
recast, increase, modify or extend any indebtedness of the
Company and, in connection therewith, execute any extensions,
renewals or modifications of any mortgage or security
agreement securing such indebtedness;
h. enter into, perform and carry out
contracts of any kind, including, without limitation,
contracts with any person or entity affiliated with the
Member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the
Company;
i. employ or otherwise engage employees,
managers, contractors, advisors, attorneys and consultants
and pay reasonable compensation for such services;
j. enter into partnerships, limited
liability companies, trusts, associations, corporations or
other ventures with other persons or entities in furtherance
of the purposes of the Company; and
k. do such other things and engage in such
other activities related to the foregoing as may be
necessary, convenient or incidental to the conduct of the
business of the Company, and have and exercise all of the
powers and rights conferred upon limited liability companies
formed pursuant to the Act.
5. Principal Business Office. The principal
business office of the Company shall be located at such
location as may be determined by the Member.
6. Registered Office. The address of the
registered office of the Company in the State of Delaware is
c/o The Corporation Trust Company, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. 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, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
8. Member. The name and the mailing address of
the Member are as follows:
Name Address
Entergy Corporation 000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
9. Limited Liability. Except as otherwise
provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Member shall not be
obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member
of the Company.
10. Capital Contributions. The Member is deemed
admitted as a member of the Company upon its execution and
delivery of this Agreement. The Member has contributed or
will contribute all of the outstanding shares of Entergy
Power Development International Corporation, a Delaware
corporation ("EPDIC"), to the Company. Without the need for
the consent of any person or entity, the Company, and each
Officer and the Member on behalf of the Company, acting
singly or jointly, are hereby authorized to cause the Company
to own and dispose of all of the outstanding shares of EPDIC
and to exercise all rights and to fulfill all duties
associated with the ownership of such shares.
11. Additional Contributions. The Member is not
required to make any additional capital contribution to the
Company. The Member may make additional capital
contributions to the Company in the sole discretion of the
Member.
12. Allocation of Profits and Losses. The
Company's profits and losses shall be allocated to the
Member.
13. Distributions. Distributions shall be made to
the Member at the times and in the aggregate amounts
determined by the Member. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall
not 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 or other applicable law.
14. Management. In accordance with Section 18-402
of the Act, management of the Company shall be vested in the
Member. The Member 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, possessed by members of a
limited liability company under the laws of the State of
Delaware. The Member has the authority to bind the Company.
15. Officers. The Member may, from time to time
as it deems advisable, appoint officers of the Company (the
"Officers") and assign in writing titles (including, without
limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides
otherwise, if the title is one commonly used for officers of
a business corporation formed under the Delaware General
Corporation Law, the assignment of such title shall
constitute the delegation to such person of the authorities
and duties that are normally associated with that office.
Any delegation pursuant to this Section 15 may be revoked at
any time by the Member.
16. Other Business. 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.
17. Exculpation and Indemnification. No Member or
Officer shall be liable to the Company, any other person or
entity who has an interest in the Company for any loss,
damage or claim incurred by reason of any act or omission
performed or omitted by such Member or Officer 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
Member or Officer by this Agreement, except that a Member or
Officer shall be liable for any such loss, damage or claim
incurred by reason of such Member's or Officer's willful
misconduct. To the full extent permitted by applicable law,
a Member or
Officer shall be entitled to indemnification from the Company
for any loss, damage or claim incurred by such Member or
Officer by reason of any act or omission performed or omitted
by such Member or Officer 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 Member or Officer by
this Agreement, except that no Member or Officer shall be
entitled to be indemnified in respect of any loss, damage or
claim incurred by such Member or Officer by reason of willful
misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 17 shall be
provided out of and to the extent of Company assets only, and
the Member shall not have personal liability on account
thereof.
18. Assignments.
(a) A Member may assign in whole or in part
its Shares with the written consent of the Member. If a
Member transfers all of its Shares pursuant to this Section
18, the transferee shall be admitted to the Company upon its
execution of an instrument signifying its agreement to be
bound by the terms and conditions of 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.
(b) Notwithstanding anything in this
Agreement or the Act to the contrary, including, without
limitation, Section 18(a) of this Agreement, Entergy Corp.,
as the sole member of the Company, is hereby authorized, at
such time as it determines in its sole discretion, to
transfer (the "EPIC Transfer") all of its Shares in the
Company to Entergy International Holdings Ltd LLC, a Delaware
limited liability company ("EPIC LLC"). In connection the
EPIC Transfer, without the need for any action or consent of
any other person or entity, EPIC LLC shall be deemed admitted
to the Company as a member of the Company immediately prior
to Entergy Corp.'s ceasing to be a member of the Company in
connection with the EPIC Transfer. In connection with the
EPIC Transfer and at all times thereafter, EPIC LLC, as the
sole member of the Company, is hereby authorized to and shall
continue the business of the Company without dissolution. In
connection with the EPIC Transfer, the Entergy Corporation
Certificate shall be canceled and a new certificate shall be
issued to EPIC LLC by the Company. Such certificate shall be
signed on behalf of the Company by the Chairman or Vice
Chairman of the Board of Directors of Entergy Corporation
(who is the sole member of EPIC LLC), if any, or the
President or a Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant
Secretary of Entergy Corporation, certifying the number of
Shares owned by EPIC LLC in the Company. Any or all of the
signatures on the certificate may be a facsimile. In case
any officer of Entergy Corporation shall have ceased to be
such officer before such certificate is issued, it may be
issued by the Company with the same effect as if he or she
were such officer at the date of issue.
19. Resignation. A Member may resign from the
Company with the written consent of the Member. If a Member
is permitted to resign pursuant to this Section 19, an
additional member shall be admitted to the Company, subject
to Section 20, upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective
immediately prior to the resignation, and, immediately
following such admission, the resigning Member shall cease to
be a member of the Company.
20. Admission of Additional Members. One (1) or
more additional members of the Company may be admitted to the
Company with the written consent of the Member.
21. Dissolution.
(a) The Company shall dissolve, and its
affairs shall be wound up upon the first to occur of the
following: (i) the written consent of the Member, (ii) the
retirement, resignation or dissolution of the last remaining
Member or the occurrence of any other event which terminates
the continued membership of the last remaining Member in the
Company unless the business of the Company is continued in a
manner permitted by the Act, or (iii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
(b) Except to the extent set forth in Section
21(a) of this Agreement, the occurrence of any event that
terminates the continued membership of a Member in the
Company shall not cause the dissolution 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 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.
(d) Except as set forth in this Section 21,
the Company shall have perpetual existence.
22. Merger. Without the need for the consent of
any other person or entity, the Company is hereby authorized
to merge with and into EPDIC, with the Company being the
surviving entity (the "Merger"). Without the need for the
consent of any other person or entity, the Company is hereby
authorized to execute and deliver, and to consummate all of
the transactions contemplated by, the Agreement and Plan of
Merger, dated as of August 20, 1997 (the "Merger Agreement"),
between EPDIC and the Company. Any Officer and the Member,
acting singly or jointly, is hereby authorized (without the
need for the consent of any person or entity), at such time
in his or its sole discretion as he or it deems necessary or
appropriate, to execute, acknowledge, verify, deliver, and
record, for and in the name of the Company and, to the extent
necessary or appropriate, the Member, any and all documents
and instruments, including without limitation, the Merger
Agreement, the Certificate of Merger relating to the Merger
and those documents and instruments required or contemplated
by applicable law that the Officers or the Member, or any one
of them, deem necessary or appropriate to effectuate the
Merger.
After consummation of the Merger, the Company is
hereby authorized to own, dispose or otherwise deal with all
of the assets of EPDIC, including, without limitation, all of
the shares of Entergy Power UK Holdings Limited, a private
company limited by shares incorporated in England and Wales
("UK Corp").
23. Formation of Delaware Limited Liability
Companies. Without the need for the consent of any other
person or entity, the Company, and each Officer and the
Member on behalf of the Company, acting singly or jointly, is
hereby authorized to cause the Company to form two Delaware
limited liability companies to be known as Entergy
International Investments No. 1 Ltd LLC, a Delaware limited
liability company ("Sub 1"), and Entergy International
Investments No. 2 Ltd LLC, a Delaware limited liability
company ("Sub 2"). In connection with such formations, the
Company, and each Officer and the Member on behalf of the
Company, acting singly or jointly, are hereby authorized to
cause the Company to execute, deliver and perform the Limited
Liability Company Agreements of Sub 1 and Sub 2,
respectively, as amended from time to time.
24. Contribution of Interests to Delaware Limited
Liability Companies. Without the need for the consent of any
person or entity, the Company, and each Officer and the
Member on behalf of the Company, acting singly or jointly,
are hereby authorized to cause the Company (i) to contribute
a ten percent (10%) shareholding in UK Corp to Sub 1, and
(ii) to contribute a ninety percent (90%) shareholding in UK
Corp to Sub 2 (collectively, the "Transfers"). Without the
need for the consent of any person or entity, the Company,
and each Officer and the Member on behalf of the Company,
acting singly or jointly, are hereby authorized to cause the
Company to execute, deliver, and perform any and all
documents to give effect to the Transfers, including, without
limitation, stock transfer forms in favor of Sub 1 and Sub 2.
25. Borrowings and Contributions to Sub 1 and Sub
2. Without the need for the consent of any person or entity,
the Company, and each Officer and the Member on behalf of the
Company, acting singly or jointly, are hereby authorized to
cause the Company to execute and deliver, and to consummate
the transactions contemplated by, a Term Loan Facility
arranged by ABN AMRO Bank and Union Bank of Switzerland, New
York Branch (the "Bank Line"). Without the need for the
consent of any person or entity, the Company, and each
Officer and the Member on behalf of the Company, acting
singly or jointly, are hereby authorized to cause the Company
to draw down on the Bank Line and (i) to use such funds to
make contributions to Sub 1 and/or Sub 2, in such amounts and
at such times as any Officer or the Member, acting singly or
jointly, may determine, and/or (ii) to retain such funds in
and for the use of the Company.
26. Separability of Provisions. Each provision of
this Agreement shall be considered separable and if for any
reason any provision or provisions herein are determined to
be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of
this Agreement which are valid, enforceable and legal.
27. Entire Agreement. This Agreement constitutes
the entire agreement of the Member with respect to the
subject matter hereof.
28. Governing Law. This Agreement shall be
governed by, and construed under, the laws of the State of
Delaware (without regard to conflict of laws principles), all
rights and remedies being governed by said laws.
29. Amendments. This Agreement may not be
modified, altered, supplemented or amended except pursuant to
a written agreement executed and delivered by the Member.
IN WITNESS WHEREOF, the undersigned, intending
to be legally bound hereby, has duly executed this Agreement
as of the 20th day of August, 1997.
ENTERGY CORPORATION, as member
By:________________________________
Name:
Title:
AGREED AND CONSENTED TO (to reflect
its acceptance of the assignment of all of the
limited liability company interests in the Company
from Entergy Corp. in connection with the EPIC
Transfers and its admission as a member of the
Company at such time as Entergy Corp.
determines in its sole discretion in accordance
with Section 18(b) of this Agreement):
ENTERGY INTERNATIONAL HOLDINGS LTD LLC
By: Entergy Corporation, as member
By:
Name:
Title:
