AGREEMENT OF LIMITED PARTNERSHIP
OF
CINERGY MARKETING & TRADING, LP
The undersigned, Cinergy General Holdings, LLC ( the "General Partner") and
Cinergy Limited Holdings, LLC (the "Initial Limited Partner"), hereby
acknowledge that on December 14, 2001, a Certificate of Conversion was filed
with the Delaware Secretary of State, pursuant to which effective 12:00 a.m. on
January 1, 2002, Cinergy Marketing & Trading, LLC will be converted to a
Delaware limited partnership (the "Conversion") pursuant to and in accordance
with the Delaware Revised Uniform Limited Partnership Act, 6 Del. C.§ 17-101,
et seq. (the "Act"), and hereby agree as follows:
1. Name. The name of the limited partnership (the "Partnership") is Cinergy
Marketing & Trading, LP.
2. Purpose. The Partnership is organized for the object and purpose of
carrying on, and the nature of the business to be conducted or promoted by the
Partnership is to carry on, any lawful business, purpose or activity permitted
by the Act.
3. Registered Agent and Office. The registered agent and office of the
Partnership in the State of Delaware is The Corporation Trust Company, Corporate
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
4. Partners. The names and business, residence or mailing addresses of the
General Partner and the Initial Limited Partner (collectively, the "Partners")
are as follows:
General Partner: Cinergy General Holdings, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Initial Limited Partner: Cinergy Limited Holdings, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
5. Powers. The powers of the General Partner include all powers, statutory
and otherwise, possessed by general partners under the laws of the State of
Delaware, including the power to delegate the General Partner's powers to manage
and control the business and affairs of the limited partnership to agents,
officers, and employees of the General Partner. The Partnership shall have such
officers as the General Partner shall designate from time to time.
6. Delegation of Powers. Subject to any limitations set forth in the Act,
the General Partner may delegate any of its powers to officers of the
Partnership or to committees consisting of persons who may or may not be
officers. 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
General Partner.
7. Officers. Officers shall be elected annually by the General Partner.
Except as provided in Sections 8 or 9 of this Agreement 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.
8. Resignations and Removals. Any officer may resign his or her office at
any time by delivering a written resignation to the General Partner. 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
General Partner or the President.
9. 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
General Partner.
10. Conduct of Business. Subject to the provisions of this Agreement, the
day-to-day operations of the Partnership 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 Partnership 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
General Partner.
11. President. Subject to the further directives of the General Partner,
the President shall have general and active management of the business of the
Partnership subject to the supervision of the General Partner, shall see that
all orders and resolutions of the General Partner are carried into effect and
shall have such additional powers and authority as are specified by the
provisions of this Agreement.
12. Secretary. The Secretary shall attend all meetings of the
Partnership/General Partner 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 any standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the
Partnership/General Partner, and shall perform such other duties as may be
prescribed by the General Partner 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
General Partner may from time to time prescribe.
13. Other Officers. The General Partner from time to time may appoint such
other subordinate 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 General Partner may determine in its sole discretion.
The General Partner from time to time may delegate to one or more officers or
agents the power to appoint any such subordinate officers or agents and
prescribe their respective rights, terms of office, authorities and duties.
14. Officers as Agents; Authority. The officers, to the extent of their
powers set forth in this Agreement and/or delegated to them by the General
Partner, are agents and managers of the Partnership for the purpose of the
Partnership's business, and the actions of the officers taken in accordance with
such powers shall bind the Partnership.
15. Term. The Partnership shall have perpetual existence, provided,
however, that the Partnership shall dissolve, and its affairs shall be wound up,
upon such time as (a) the Partners unanimously so determine, (b) the Partnership
sells or otherwise disposes of its interest in all or substantially all of its
property, (c) an event of dissolution has occurred under the Act, or (d) upon
the removal, withdrawal or dissolution of the General Partner.
16. Capital Contributions. Prior to the Conversion, the partners
contributed the following property interests and no other property:
Cinergy General Holdings, LLC has contributed 0.1 percent of the common
interest in Cinergy Marketing & Trading, LLC; and Cinergy Limited
Holdings, LLC has contributed 99.9 percent of the common interest in
Cinergy Marketing & Trading, LLC
Effective upon the Conversion, Cinergy Limited Holdings, LLC shall
hold 99.9% of the Partnership interests as the Initial Limited Partner and
Cinergy General Holdings, LLC shall hold 0.1% of the partnership interests
as the sole General Partner.
17. Additional Contributions. No Partner is required to make any additional
capital contribution to the Partnership.
18. Allocations of Profit and Losses. The Partnership's profits and losses
shall be allocated in proportion to the capital contributions of the Partners.
19. Distributions. At the time determined by the General Partner, the
General Partner shall cause the Partnership to distribute any cash held by it
which is not reasonably necessary for the operation of the Partnership. Cash
available for distribution shall be distributed to the Partners in the same
proportion as their then capital account balances.
20. Assignments. A limited partner may assign all or any part of his or its
partnership interest only with the consent of the General Partner. A limited
partner has no right to grant an assignee of his or its partnership interest the
right to become a substituted limited partner.
21. Withdrawal. Except as provided in the following Section 22, no right is
given to any Partner to withdraw from the Partnership.
22. Additional Partners. (a) The General Partner may admit additional
limited partners subject to subsection (c). Upon the admission of any additional
limited partner, the Initial Limited Partner may, subject to the consent of the
General Partner, withdraw from the Partnership.
(b) The Partnership shall continue as a limited partnership under the
Act after the admission of any additional limited partner pursuant to this
Section 22.
(c) The admission of additional limited partners pursuant to this
Section 22 shall be accomplished by the amendment of this Agreement of
Limited Partnership and, if required by the Act, the filing of a
certificate of amendment in the Office of the Secretary of State of
Delaware.
23. The Initial Limited Partner shall be deemed admitted to the Partnership
upon the formation of the Partnership.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement of
Limited Partnership as of the 14th day of December, 2001.
CINERGY GENERAL HOLDINGS, LLC
as General Partner
By
--------------------------------
Xxxxxxx X. Cyrus
President
CINERGY LIMITED HOLDINGS, LLC
as Initial Limited Partner
By
--------------------------------
X. Xxxxxx Xxxxxx
Executive Vice President
