LIMITED LIABILITY COMPANY AGREEMENT
OF
Cinergy Mexico General, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"), dated as of
February 17, 2004, Cinergy Mexico General, LLC, a Delaware limited liability
company (the "Company"), is entered into by Cinergy Capital & Trading, Inc., an
Indiana corporation, as the sole member of the Company (the "Member") to form a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act, Del. Code ▇▇▇. tit. 6 §§18-101, et seq. (the
"Act").
RECITALS
WHEREAS, in accordance with Section 18-201(d) of the Act, it is the
intention of the Member that this Agreement be effective as of the date of
formation, February 17, 2004; and
WHEREAS, the Member desires to set forth its understandings regarding its
rights, obligations and interests with respect to the affairs of the Company and
the conduct of its business.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Member hereby agrees as
follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to them in the Act.
ARTICLE II
General Provisions
Section 2.1 Company Name. The name of the Company is "Cinergy Mexico
General, LLC." The business of the Company may be conducted upon compliance with
all applicable laws under any other name designated by the member(s).
Section 2.2 Registered Office; Registered Agent.
(a) The Company shall maintain a registered office in the State of
Delaware at, and the name and address of the Company's registered
agent in the State of Delaware is, The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
(b) The business address of the Company is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, or such other place as the Member shall
designate.
Section 2.3 Nature of Business Permitted; Powers. The purpose of the
Company is to engage in any activity for which limited liability companies may
be organized in the State of Delaware. The Company shall possess and may
exercise all of the powers and privileges granted by the Act or by any other law
or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct, promotion
or attainment of the business purposes or activities of the Company.
Section 2.4 Business Transactions of a Member with the Company. In
accordance with Section 18-107 of the Act, a member may transact business with
the Company and, subject to applicable law and this Agreement, shall have the
same rights and obligations with respect to any such matter as a person who is
not a member.
Section 2.5 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
for financial statement purposes shall end on December 31 of each year.
Section 2.6 Effective Date. In accordance with Section 18-201(d) of the
Act, it is the intention of the Member that this Agreement be effective as of
the date of formation, February 17, 2004.
ARTICLE III
Member(s)
Section 3.1 Admission of Member(s).
(a) Simultaneously with the effectiveness of this Agreement in accordance
with Section 2.6 hereof, Cinergy Capital & Trading, Inc. is admitted
as the sole Member of the Company in respect of the Interest (as
hereinafter defined) being acquired hereunder.
(b) Additional Members may only be admitted to the Company upon the
consent of all Members, which consent may be evidenced by, among other
things, the execution of an amendment to or an amendment and
restatement of this Agreement.
Section 3.2 Interest.
(a) The Company shall be authorized to issue a single class of Limited
Liability Company Interest (as defined in the Act, the "Interest")
that shall not be certificated, and shall include any and all benefits
to which the holder of such Interest may be entitled in this
Agreement, together with all obligations of such person to comply with
the terms and provisions of this Agreement.
(b) In the event that there is more than one member, each member's
Interest in the Company shall be expressed as a percentage equal to
the ratio on any date of such member's capital contributions on such
date to the aggregate capital contributions of all members on such
date, (as to any member, his or its "Percentage Interest"). In the
event there shall only be one member, its "Percentage Interest" shall
be 100% for purposes of this Agreement.
Section 3.3 Liability of Member(s).
(a) All 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 no member shall be obligated
personally for any such debt, obligation or liability of the Company
solely by reason of being a member.
(b) Except as otherwise expressly required by law, a member shall not have
any liability in excess of (i) the amount of its aggregate capital
contributions to the Company, (ii) its share of any assets and
undistributed profits of the Company, (iii) its obligation to make
other payments, if any, expressly provided for in this Agreement or
any amendment hereto and (iv) the amount of any distributions
wrongfully distributed to it.
Section 3.4 Access to and Confidentiality of Information; Records.
(a) Any member shall have the right 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, the documents and
other information described in Section 18-305(a) of the Act.
(b) Any demand by a member pursuant to this Section 3.4 shall be in
writing and shall state the purpose of such demand.
Section 3.5 Meetings of Member(s).
(a) Meetings of the member(s) may be called at any time by any member.
(b) Except as otherwise provided by law, (i) if there shall be more than
one member of the Company, a majority in Percentage Interests of the
Company, entitled to vote at the meeting shall constitute a quorum at
all meetings of the member(s), so long as at least one duly authorized
representative of each member are in attendance at such meetings of
the members or (ii) if there shall only be one member, such member
shall constitute a quorum.
(c) Any action required to or which may be taken at a meeting of member(s)
may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by all member(s). Any such written consent may
be executed in two or more counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same
document.
(d) Regular meetings of the member(s) shall be held at least annually.
Member(s) may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in
person at such meeting.
Section 3.6 Vote. Except as specifically set forth herein, any matter
requiring the vote of the members shall require (including for purposes of
actions taken by the members in order to manage the Company as provided in
Article IV hereof) a majority in Percentage Interests of the members in order to
constitute the act of the members.
Section 3.7 Notice. Meetings of the member(s) may be held at such places
and at such times as the member(s) may from time to time determine. Written
notice of the time, place, and purpose of such meeting shall be served by
registered or certified prepaid, first class mail, via overnight courier using a
nationally reputable courier, or by fax or cable, upon each member and shall be
given at least two (2) business days prior to the time of the meeting. No notice
of a meeting need be given to any member if a written waiver of notice, executed
before or after the meeting by such member thereunto duly authorized, is filed
with the records of the meeting, or to any member who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him or her. A waiver of notice need not specify the purposes of the meeting.
Section 3.8 Delegation of Powers. Subject to any limitations set forth in
the Act, the Member, or, if additional members are admitted, the member(s) may
delegate any of its or their powers to officers of the Company pursuant to
Section 4.2 hereof, or otherwise to committees consisting of persons who may or
may not be member(s). Every officer or committee shall, in the exercise of the
power so delegated, comply with any restrictions that may be imposed on them by
the member(s) and this Agreement.
Section 3.9 Withdrawals and Removals of Member(s). No member may resign,
withdraw or be removed as a member of the Company without the written consent of
all of the member(s).
ARTICLE IV
Management
Section 4.1 General. Except as specifically set forth herein, the business
and affairs of the Company shall be managed by and under the direction of the
Member, or, if additional members are admitted, the members, who shall have
full, exclusive and complete discretion to manage and control the business and
affairs of the Company, to make all decisions affecting the business and affairs
of the Company and to take all such actions as it deems necessary or appropriate
to accomplish the purposes of the Company as set forth herein. The Member or
members shall serve without compensation from the Company, and the Member or
members shall bear the cost of participation in meetings and other activities of
the Company.
Section 4.2 Officers.
(a) Election, Term of Office. Pursuant to Section 3.8 hereof, the Member
hereby creates the offices and delegates to the officers described in
this Section 4.2, the duties set forth herein. The officers shall be
elected by the member(s). Except as provided in paragraphs (b) or (c)
of this Section 4.1, each officer shall hold office until his or her
successor shall have been chosen and qualified. Any two offices,
except those of the President and the Secretary, may be held by the
same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by
law or this Agreement to be executed, acknowledged or verified by any
two or more officers.
(b) Resignations and Removals. Any officer may resign his or her office at
any time by delivering a written resignation to the member(s). Unless
otherwise specified therein, such resignation shall take effect upon
delivery. Any officer may be removed from office with or without cause
by either the member(s) or the President.
(c) Vacancies and Newly Created Offices. If any vacancy shall occur in any
office by reason of death, resignation, removal, disqualification or
other cause, or if any new office shall be created, such vacancies or
newly created offices may be filled by the President, subject to
approval and election by the member(s).
(d) Conduct of Business. Subject to the provisions of this Agreement, the
day-to-day operations of the Company shall be managed by its officers
and such officers shall have full power and authority to make all
business decisions, enter into all commitments and take such other
actions in connection with the business and operations of the Company
as they deem appropriate. Such officers shall perform their duties in
a manner consistent with this Agreement and with directions which may
be given from time to time by the member(s).
(e) President. Subject to the further directives of the member(s), the
President shall have general and active management of the business of
the Company subject to the supervision of the member(s), shall see
that all orders and resolutions of the member(s) are carried into
effect and shall have such additional powers and authority as are
specified by the provisions of this Agreement.
(f) Secretary. The Secretary shall attend all meetings of the member(s)
and record all the proceedings of the meetings and all actions taken
thereat in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the member(s),
and shall perform such other duties as may be prescribed by the
member(s) or the President. The Assistant Secretary, if there be one,
shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have
such other powers as the member(s) may from time to time prescribe.
(g) Other Officers. The member(s) from time to time may appoint such other
officers or agents as it may deem advisable, each of whom shall have
such title, hold office for such period, have such authority and
perform such duties as the member(s) may determine in its sole
discretion. The member(s) from time to time may delegate to one or
more officers or agents the power to appoint any such officers or
agents and prescribe their respective rights, terms of office,
authorities and duties.
(h) Officers as Agents; Authority. The officers, to the extent of their
powers set forth in this Agreement and/or delegated to them by the
member(s), are agents and managers of the Company for the purpose of
the Company's business, and the actions of the officers taken in
accordance with such powers shall bind the Company.
Section 4.3 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely conclusively upon the power and authority of the member(s) or
officers herein set forth.
Section 4.4 Expenses. Except as otherwise provided in this Agreement, the
Company shall be responsible for and shall pay all expenses out of funds of the
Company determined by the member(s) to be available for such purpose, provided
that such expenses are those of the Company or are otherwise incurred by the
member(s) in connection with this Agreement, including, without limitation:
(a) all expenses related to the business of the Company and all routine
administrative expenses of the Company, including the maintenance of
books and records of the Company, the preparation and dispatch to any
member(s) of checks, financial reports, tax returns and notices
required pursuant to this Agreement or in connection with the holding
of any meetings of the member(s);
(b) All expenses incurred in connection with any litigation or arbitration
involving the Company (including the cost of any investigation and
preparation) and the amount of any judgment or settlement paid in
connection therewith;
(c) all expenses for indemnity or contribution payable by the Company to
any person;
(d) all expenses incurred in connection with the collection of amounts due
to the Company from any person;
(e) all expenses incurred in connection with the preparation of amendments
to this Agreement; and
(f) expenses incurred in connection with the liquidation, dissolution and
winding up of the Company.
ARTICLE V
Finance
Section 5.1 Form of Contribution.
(a) The contribution of a member to the Company must be in cash or
property, provided that if there is more than one member, all
member(s) must consent in writing to contributions of property. To the
extent there is more than one member, additional contributions in the
same proportion shall be made by each member, except as may be
approved by all member(s). No member is required to make any
contribution of property or money to the Company in excess of the
property or money it has agreed to contribute to the Company. The
Member shall be required to make a contribution in connection with its
admission pursuant to Section 3.1 hereof in the amount of $100.00,
effective February 17, 2004.
(b) At any time that there is more than one member, a capital account
shall be maintained for each member, to which contributions and
profits shall be credited and against which distributions and losses
shall be charged. Such capital accounts shall be maintained in
accordance with the tax accounting principles prescribed by the
Treasury Regulations (the "Allocation Regulations") promulgated under
Section 704 of the Internal Revenue Code of 1986, as amended (the
"Code"), so that the tax allocations provided in this Agreement shall,
to the extent possible, satisfy the "alternate economic effect test"
within the meaning of the Allocation Regulations.
Section 5.2 Allocation of Profits and Losses. The profits and losses of the
Company shall be allocated entirely to the Member or, if additional member(s)
are admitted, the member(s) in proportion to their respective Percentage
Interests.
Section 5.3 Distributions. The distributions of the Company shall be
distributed entirely to the Member or, if additional member(s) are admitted, the
member(s) in proportion to their respective Percentage Interests.
ARTICLE VI
Distribution
Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may be compelled to accept distributions in-kind
from the Company.
ARTICLE VII
Assignment of Limited Liability Company Interests
Section 7.1 Assignment of Limited Liability Company Interests. Interests in
the Company may be assignable and transferable. Any transferee shall not be
admitted as a member unless and until the transferee has executed a counterpart
of this Agreement and members then admitted consent unanimously to the admission
of the transferee.
ARTICLE VIII
Dissolution
Section 8.1 Dissolution. The Company shall dissolve, and its affairs shall
be wound up, upon the earliest to occur of (i) the consent of the Member, or, if
additional member(s) are admitted, the unanimous consent of the members, and
(ii) an event of dissolution of the Company under the Act.
Section 8.2 Winding Up. Subject to the provisions of the Act, the Member
or, if additional member(s) are admitted, the member(s) (acting by written
consent of all member(s)) shall have the right to wind up the Company's affairs
in accordance with Section 18-803 of the Act (and shall promptly do so upon
dissolution of the Company) and shall also have the right to act as or appoint a
liquidating trustee in connection therewith.
Section 8.3 Distribution of Assets Upon Dissolution. Upon the winding up of
the Company, the assets shall be distributed in the manner provided in Section
18-804 of the Act.
ARTICLE IX
Tax Characterization
Section 9.1 Tax Treatment. Until such time as the Company shall have more
than one member, it is the intention of the Member that the Company be
disregarded for federal and all relevant state tax purposes and that the
activities of the Company be deemed to be activities of the Member for such
purposes. In the event that that the Company shall have more than one member, it
is the intention of the members that the Company be taxed as a partnership for
federal and all relevant state tax purposes. All provisions of the Company's
Certificate of Formation and this Agreement are to be construed so as to
preserve that tax status. The Company shall timely make all necessary elections
and filings for federal, state, and local tax purposes to accomplish the
foregoing objective.
Section 9.2 Form K-1. After the end of each Fiscal Year for which the
Company shall have more than one member, the member(s) shall cause to be
prepared and transmitted, as promptly as possible, and in any event within 90
days of the close of such Fiscal Year, a federal income tax Form K-1 and any
required similar state income tax form for each member.
Section 9.3 Company Tax Returns. The Member, or if additional member(s) are
admitted, the member(s) shall cause to be prepared and timely filed all tax
returns required to be filed for the Company. The Member or the member(s) (as
the case may be) may, in their sole discretion, make or refrain from making any
federal, state or local income or other tax elections for the Company that it
deems necessary or advisable; provided that if there is more than one member,
the prior written consent of all the member(s) shall be required in order for
the Company to make an election pursuant to Section 754 of the Code.
ARTICLE X
Exculpation and Indemnification
Section 10.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, neither any member, or any officers, directors, stockholders, partners,
employees, representatives or agents of any of the foregoing, nor any officer,
employee, representative, manager or agent of the Company or any of its
affiliates (individually, a "Covered Person" and collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted
in good faith by a Covered Person and in the reasonable belief that such act or
omission is in or is not contrary to the best interests of the Company and is
within the scope of authority granted to such Covered Person by this Agreement,
provided that such act or omission does not constitute fraud, willful
misconduct, bad faith, or gross negligence.
Section 10.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative, in which
the Covered Person may be involved, or threatened to be involved, as a party or
otherwise, by reason of its management of the affairs of the Company or which
relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 10.2
with respect to any claim, issue or matter in which it has engaged in fraud,
willful misconduct, bad faith or gross negligence.
ARTICLE XI
Miscellaneous
Section 11.1 Amendment to this Agreement. Except as otherwise provided in
this Agreement, this Agreement may be amended by, and only by, a written
instrument executed by the Member or, if additional member(s) are admitted,
unanimous consent of the member(s).
Section 11.2 Successors; Counterparts. Subject to Article VIII, this
Agreement (a) shall be binding as to the executors, administrators, estates,
heirs, assigns and legal successors, or nominees or representatives, of the
Member or, if additional member(s) are admitted, the member(s) and (b) may be
executed in several counterparts with the same effect as if the parties
executing the several counterparts had all executed one counterpart.
Section 11.3 Governing Law; Severability.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof. In particular, this Agreement
shall be construed to the maximum extent possible to comply with all
the terms and conditions of the Act. If, nevertheless, it shall be
determined by a court of competent jurisdiction that any provisions or
wording of this Agreement shall be invalid or unenforceable under the
Act or other applicable law, such invalidity or unenforceability shall
not invalidate the entire Agreement and this Agreement shall be
construed so as to limit any term or provision so as to make it
enforceable or valid within the requirements of applicable law, and,
in the event such term or provisions cannot be so limited, this
Agreement shall be construed to omit such invalid or unenforceable
terms or provisions. If it shall be determined by a court of competent
jurisdiction that any provisions relating to the distributions and
allocations of the Company or to any expenses payable by the Company
are invalid or unenforceable, this Agreement shall be construed or
interpreted so as (i) to make it enforceable or valid and (ii) to make
the distributions and allocations as closely equivalent to those set
forth in this Agreement as is permissible under applicable law.
(b) Each party hereto (i) irrevocably submits to the non-exclusive
jurisdiction of any Delaware State court or Federal court sitting in
Wilmington, Delaware in any action arising out of this Agreement and
(ii) consents to the service of process by mail. Nothing herein shall
affect the right of any party to serve legal process in any manner
permitted by law or affect his or its right to bring any action in any
other court.
Section 11.4 Filings. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, is hereby designated as an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, her powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member shall, as an "Authorized Person"
within the meaning of the Act, prepare or cause to be prepared any documents
required to be filed and recorded under the Act, and the Member shall promptly
cause each such document required to be filed and recorded in accordance with
the Act and, to the extent required by local law, to be filed and recorded or
notice thereof to be published in the appropriate place in each jurisdiction in
which the Company may hereafter establish a place of business. The Member shall
also promptly cause to be filed, recorded and published such statements of
fictitious business name and any other notices, certificates, statements or
other instruments required by any provision of any applicable law of the United
States or any state or other jurisdiction which governs the conduct of its
business from time to time.
Section 11.5 Voting Securities Owned by the Company. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities, membership interests or partnership interests owned by the
Company may be executed in the name of and on behalf of the Company by the Chief
Executive Officer, the President, any Vice President, the Secretary, or any
Assistant Secretary, and any such officer may, in the name of and on behalf of
the Company, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders, members or partners of
any business entity in which the Company may own securities, membership
interests, or partnership interests and at any such meeting shall possess and
may exercise any and all rights and power incident to the ownership of such
securities, membership interests or partnership interests and which, as the
owner thereof, the Company might have exercised and possessed if present. The
member(s) may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 11.6 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
Section 11.7 Further Assurances. Each member agrees to perform all further
acts and execute, acknowledge and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
Section 11.8 Notices. All notices, requests and other communications to any
member shall be in writing (including telecopier or similar writing) and shall
be given to such member (and any other person designated by such member) at its
address or telecopier number set forth in a schedule filed with the records of
the Company or such other address or telecopier number as such member may
hereafter specify for the purpose by notice. Each such notice, request or other
communication shall be effective (a) if given by telecopier, when transmitted to
the number specified pursuant to this Section and the appropriate confirmation
is received, (b) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid,
or (c) if given by any other means, when delivered at the address specified
pursuant to this Section.
Section 11.9 Books and Records; Accounting. The Member or, if additional
member(s) are admitted, the member(s) shall keep or cause to be kept at the
address of the Company (or at such other place as the member(s) shall determine
in their discretion) true and full books and records regarding the status of the
business and financial condition of the Company.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
Cinergy Capital & Trading, Inc.
By: _________________________
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Chief Financial Officer,
and Chief Operating Officer