1
Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
SITHE PENNSYLVANIA HOLDINGS LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Sithe
Pennsylvania Holdings LLC, a Delaware limited liability company (the
"Company"), is effective as of December 28, 1998.
1. Formation. The Company has been formed as a single member limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act, 6 Del. C Section 18-101, et seq., as it may be amended
from time to time (the "Act"), by the filing of the Certificate of Formation of
the Company (the "Certificate") with the Secretary of State of the State of
Delaware on the date first written above. The rights and obligations of the
Member (as defined below) and the administration and termination of the Company
shall be governed by this Agreement and the Act. In the event of any
inconsistency between any terms and conditions contained in this Agreement and
any non-mandatory provisions of the Act, the terms and conditions contained in
this Agreement shall govern.
2. Name. The name of the Company is "Sithe Pennsylvania Holdings LLC".
3. Member. Sithe Mid-Atlantic, Inc. (the "Member") is the sole member of
the Company.
4. Registered Office and Agent. The registered office and registered
agent of the Company in the State of Delaware shall be as the Company
designates on its Certificate of Formation filed with the Secretary of State of
the State of Delaware, as such Certificate may be amended from time to time.
The Company may have such other offices as the Member may designate from time
to time. The mailing address and principal business office of the Company shall
be c/o Sithe Energies, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
5. Purpose. The purpose of the Company is to engage in any and all
lawful businesses or activities in which a limited liability company may be
engaged under applicable law.
6. Management. The Member shall be authorized to make all decisions and
to take all actions it determines necessary, advisable or desirable relating to
the business, affairs, investments, and properties of the Company including,
without limitation, the formation of or investment in, such subsidiary or
affiliate companies of the Company as it determines advisable or desirable.
7. Officers. The Member may delegate its authority to act on behalf of
the Company and to manage the business affairs of the Company to one or more
officers of the Company appointed by the Member. The Member may from time to
time create offices of the Company, designate the powers that may be exercised
by such office, and appoint, authorize and empower any person as an officer of
the Company ("Officer") to direct such office. The initial
2
offices of the Company and the initial Officers of the Company serving in such
offices are set forth in Annex 1 which is attached hereto and made a part
hereof. The Member may remove any Officer at any time and may create, empower
and appoint such other Officers of the Company as the Member may deem necessary
or advisable to manage the day-to-day business affairs of the Company. To the
extent delegated by the Member, the Officers shall have the authority to act on
behalf of, bind and execute and deliver documents in the name of and on behalf
of the Company. No such delegation shall cause the Member to cease to be a
member. Except as otherwise expressly provided in this Agreement or required by
any non-waivable provision of the Act or other applicable law, no person other
than the Member and such Officers designated by the Member shall have any
right, power, or authority to transact any business in the name of the Company
or to act for or on behalf of or to bind the Company.
8. Capital Contributions. The Member may make capital contributions to
the Company from time to time, but shall not be required to make any capital
contributions.
9. Allocations; Distributions. Each item of income, gain, loss,
deduction and credit of the Company shall be allocated 100% to the Member. Each
distribution of cash or other property by the Company shall be made 100% to the
Member. Distributions shall be made to the Member at the times and in the
amounts determined by the Member.
10. Limited Liability of the Member. The Member shall have no liability
for obligations or liabilities of the Company unless such obligations or
liabilities are expressly assumed by the Member in writing.
11. Indemnification. The Member and each person who is or has agreed to
become a director or officer of the Company, or each such person who serves or
has agreed to serve at the request of the Company as a director or officer of
another corporation, limited liability company, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Company to the full extent
permitted by the Limited Liability Company Act of the State of Delaware or any
other applicable laws as now or hereafter in effect. The right to
indemnification conferred in this Section 11 shall include the right to be paid
by the Company the expenses incurred in defending or otherwise participating in
any proceeding in advance of its final disposition. Without limiting the
generality or effect of the foregoing, the Company may enter into one or more
agreements with any person which provide for indemnification greater or
different than that provided in this Section. No amendment to this Section 11
shall apply to or have any effect on the right to indemnity permitted or
authorized hereunder for or with respect to claims asserted before or after
such amendment arising from acts or omissions occurring in whole or in part
before the effective date of such amendment.
12. Dissolution. The Company shall dissolve and its business and
affairs shall be wound up upon the written consent of the Member or the entry
of a decree of judicial dissolution under Section 18-802 of the Act. Upon the
dissolution of the Company, the affairs of the Company shall be liquidated
forthwith. The assets of the Company shall be used first to pay or provide for
the payment of all of the debts of the Company, with the balance being
distributed to
2
3
the Member.
13. Assignment. The Member may assign in whole or in part its
limited liability company interest in the Company.
14. Admission of Additional Members. The Member may admit
additional members in its discretion.
15. Amendment. This Agreement may be amended or modified from time
to time only by a written instrument executed by the Member.
16. No Third-Party Beneficiaries. 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.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
3
4
Sithe Mid-Atlantic, Inc.,
as sole member
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
-------------------
Title: President
-------------------
4
5
ANNEX 1
OFFICERS
NAME TITLE
---- -----
Xxxxxxx X. Xxxxxx, III President
Xxxxxxx X. Xxxxxx, III Secretary
Xxxxxx Xxxxxxx Treasurer
6
AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT
OF SITHE PENNSYLVANIA HOLDINGS LLC
This Amendment (this "Amendment") to the Limited Liability Company
Agreement (the "Agreement") of Sithe Pennsylvania Holdings LLC, a Delaware
limited liability company (the "Company"), is made and entered into effective
as of May 12, 2000.
WHEREAS, pursuant to the Purchase Agreement dated as of February 19, 2000,
among Reliant Energy Power Generation, Inc., Reliant Energy, Incorporated,
Sithe Energies, Inc., and Sithe Northeast Generating Company, Inc. (as amended
and supplemented, the "Purchase Agreement"), Reliant Energy Northeast
Generation, Inc., a Delaware corporation ("Generation") has acquired (the
"Acquisition") all of the limited liability company interests of the Company;a
and
WHEREAS, in connection with the Acquisition, Generation, as the sole holder
of all the member interests in the Company, desires to amend the Agreement as
set forth herein.
NOW THEREFORE, pursuant to Section 15 of the Agreement, Generation, as sole
member of the Company, hereby amends the following sections of the Agreement as
set forth below:
1. Section 2 of the Agreement is hereby amended in its entirety to
read as follows:
"2. Name: The name of the Company is "Reliant Energy Mid-Atlantic Power
Holdings, LLC."
2. Section 3 of this Agreement is hereby amended in its entirety to
read as follows:
"3. Member. Reliant Energy Northeast Generation, Inc. (the "Member") is
the sole member of the Company."
3. The last sentence of Section 4 of the Agreement is hereby
amended in its entirety to read as follows:
"The mailing address and principal business office of the Company shall be
c/o Reliant Energy Northeast Generation, Inc., 0000 Xxxxxxxxx, Xxxxxxx,
Xxxxx 00000."
7
IN WITNESS WHEREOF, the undersigned as sole member of the Company has
caused this Amendment to be executed on the date and year first above written.
RELIANT ENERGY NORTHEAST GENERATION, INC.
BY: /s/ X. Xxxxxxx Divine
__________________________________
X. Xxxxxxx Divine
President
8
AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
SITHE PENNSYLVANIA HOLDINGS LLC
This Amendment to Limited Liability Company Agreement (this "Amendment"),
of Sithe Pennsylvania Holdings LLC, a Delaware limited liability company (the
"Company") is effective as of November 23, 1999.
WHEREAS, Sithe Northeast Generating Company, Inc. ("Northeast Generating")
has been admitted as a member of the Company;
WHEREAS, Sithe Mid-Atlantic, Inc. is withdrawing as a member of the
Company;
WHEREAS, Northeast Generating shall thereafter be the sole member of the
Company; and
WHEREAS, pursuant to Section 15 of the Limited Liability Company Agreement
of Sithe Pennsylvania Holdings LLC (the "LLC Agreement"), the LLC Agreement may
only be amended or modified by a written instrument executed by the member;
NOW, THEREFORE:
1. Section 3 of the LLC Agreement is hereby amended by deleting Section 3
in its entirety and by replacing it with the following:
3. Member. Sithe Northeast Generating Company, Inc. (the "Member")
is the sole member of the Company.
2. Except as amended hereby, the LLC Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the
date first written above.
Sithe Northeast Generating Company, Inc.,
as sole member
By: /s/ Hyun Park
------------------------------
Name: Hyun Park
Title: Senior VP, General Counsel &
Secretary
9
AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT
OF RELIANT ENERGY MID-ATLANTIC POWER HOLDINGS, LLC
This Amendment (this "Amendment") to the Limited Liability Company
Agreement (the "Agreement") of Reliant Energy Mid-Atlantic Power Holdings, LLC,
a Delaware limited liability company (the "Company"), is made and entered into
effective as of August 1, 2000.
WHEREAS, Reliant Energy Northeast Generation, Inc., ("Generation") as the
sole holder of all the member interests in the Company, desires to amend the
Agreement as set forth herein.
NOW THEREFORE, pursuant to Section 15 of the Agreement, Generation, as
sole member of the Company, hereby amends the following sections of the
Agreement as set forth below:
1. Section 6 of the Agreement is hereby amended in its entirety to read
as follows:
"6. Management.
Member. Except as otherwise provided under this Agreement, the Member shall
not perform any act on behalf of the Company, incur any expense,
obligation or indebtedness of any nature on behalf of the Company, or in
any manner participate in the management of the Company or receive or be
credited with any amounts.
Managers. The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed
under, its Managers. In addition to the powers and authorities expressly
conferred by this Agreement upon the Managers, the Managers may exercise
all such powers of the Company and do all such lawful acts and things as
are not directed or required to be exercised or done by the Members by the
Delaware Act, the Certificate of Formation of the Company or this
Agreement.
Number and Qualifications of Managers. The Member shall have the right to
take action pursuant to a meeting of the Member or unanimous written
consent of the Member to designate one or more Managers and to remove,
replace or fill any vacancy occurring for any reason of any Manager. The
number of Managers of the Company shall be two; but the number of Managers
may be changed by unanimous agreement of the Member. Managers need not be
residents of the State of Delaware or Members of the Company. The Managers,
in their discretion, may elect a chairman of the Managers who shall preside
at any meetings of the Managers.
Powers of the Managers. Without limiting the generality of this Section 6,
the Managers shall have power and authority, acting in concert in
accordance with this Agreement, to
10
cause the Company to do and perform all acts as may be necessary or appropriate
to the conduct of the Company's business.
Delegation of Rights and Powers to Manage. The Managers shall have the power
and authority to delegate to one or more other persons the Managers' rights and
powers to manage and control the business and affairs of the Company, including
to delegate to agents, officers and employees of a member or manager of the
Company and to delegate by a management agreement or another agreement with, or
otherwise to, other persons. Without limiting the generality of the preceding
sentence, the Managers may delegate their rights and powers to manage pursuant
to resolutions adopted by the Managers.
Loans to Company. Nothing in this Agreement shall prevent any Member from
making secured or unsecured loans to the Company by agreement with the Company.
Borrowing. In the event that the Company, in order to discharge costs, expenses
or indebtedness, requires funds in excess of the funds provided by Capital
Contributions of the Members and by revenues, the Managers shall be authorized,
at any time and from time to time, to cause the Company to borrow additional
funds, as shall in the judgment of the Managers be sufficient for such purposes
and upon such terms as the Managers may deem advisable."
2. Section 7 of the Agreement is hereby amended in its entirety to read
as follows:
"7. OFFICERS. The Managers of the Company may elect the officers of the
Company, who shall hold offices specified by the Managers for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Managers; and each officer of the Company shall hold office
until his successor is chosen and qualified or until his earlier resignation or
removal. Any officer elected by the Managers may be removed at any time by the
affirmative vote of the Managers. Any vacancy occurring in any office of the
Company may be filled by the unanimous agreement of the Managers. The salaries
of all officers of the Company shall be fixed by the Managers but must be
approved by the Members."
3. Section 8 of the Agreement is hereby amended in its entirety to read
as follows:
"8. CAPITAL CONTRIBUTIONS. The Member may make capital contributions to the
Company from time to time, but shall not be required to make any capital
contributions. A class of equity interests denominated the "Common Shares" is
hereby designated as the sole class of equity interests of the Company. Each
issued and outstanding Common Share shall at any time represent that undivided
portion of all of the rights, duties, obligations and ownership interests in
the Company in proportion to the total number of Common Shares outstanding at
such time. The Company shall issue to the Member 1,000 Common Shares to reflect
the capital contribution heretofore made by the Member. Upon issuance, such
Common Shares shall be validly issued and outstanding, fully paid and
nonassessable."
2
11
IN WITNESS WHEREOF, the undersigned as sole member of the Company has
caused this Amendment to be executed on the date and year first above written.
RELIANT ENERGY NORTHEAST GENERATION, INC.
By: /s/ Xxxx X Xxxxx
--------------------------------------
3
