Exhibit B-23(a)
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:
AMENDMENT NO. 1
LIMITED LIABILITY COMPANY
OF
ENTERGY INTERNATIONAL LTD LLC
Effective August 20, 1997
Entergy International Holding LTD LLC as sole member of
Entergy International LTD LLC hereby amends the Limited Liability
Agreement of Entergy International LTD LLC (this "Agreement").
Section 13 is amended and restated is its entirety as
follows:
Distributions. Distributions shall be made to the Member at
the times and in the aggregate amounts as determined by any
officer of the Company. 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.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has executed this Amendment No. 1 as of the 12th
day of March 1998.
ENTERGY INTERNATIONAL HOLDING LTD, LLC,
as Member
By: Entergy Corporation, as Member
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
