-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MgGwhSkrSpMCBcWwLqqCNopm9GXXtVTucddPoYCehkCzRxUE4ke0z6FxO0DdkusH vg4oZUjIhFe8HfB3e6GV4w== 0000899652-03-000029.txt : 20030501 0000899652-03-000029.hdr.sgml : 20030501 20030501110933 ACCESSION NUMBER: 0000899652-03-000029 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 91 CONFORMED PERIOD OF REPORT: 20021231 FILED AS OF DATE: 20030501 EFFECTIVENESS DATE: 20030501 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CINERGY CORP CENTRAL INDEX KEY: 0000899652 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 311385023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U5S SEC ACT: 1935 Act SEC FILE NUMBER: 030-00301 FILM NUMBER: 03675413 BUSINESS ADDRESS: STREET 1: 139 E FOURTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5132872644 MAIL ADDRESS: STREET 1: 139 E FOURTH STREET STREET 2: P.O BOX 960 CITY: CINCINATI STATE: OH ZIP: 45202 U5S 1 formu5s2002.htm 2002 U5S U5S

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549





FORM U5S





ANNUAL REPORT


For the Year Ended December 31, 2002





        Filed pursuant to the Public Utility Holding Company Act of 1935 by




Cinergy Corp.
139 East Fourth Street
Cincinnati, Ohio 45202


        (Name and address of each registered holding company in the system)

TABLE OF CONTENTS

   Item
Number

1      System Companies and Investments Therein as of December 31, 2002

2      Acquisitions or Sales of Utility Assets

3      Issue, Sale, Pledge, Guarantee, or Assumption of System Securities

4      Acquisition, Redemption, or Retirement of System Securities

5      Investments in Securities of Nonsystem Companies

6      Officers and Directors

  Part I. Name, principal business address, and positions held as of
December 31, 2002
     
  Part II. Financial connections as of December 31, 2002
     
  Part III. Compensation and other related information

7      Contributions and Public Relations

8      Service, Sales, and Construction Contracts

  Part I. Intercompany sales and service
     
  Part II. Contracts to purchase services or goods between any system
company and any affiliate
     
  Part III. Employment of any person by any system company for the
performance on a continuing basis of management services

9      Exempt Wholesale Generators and Foreign Utility Companies

10     Financial Statements and Exhibits

          Signatures

ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 2002 

                                                                          Number of
                                                                          Common     % of     Issuer's   Owner's
                                                                          Shares     Voting    Book       Book        Business
                               Name of Company                             Owned     Power   Value (+)  Value (+)  Classification(/)
                               ---------------                             -----     -----   ---------  ---------  -----------------
             (Indentation indicates subsidiary relationship and                                          (dollars in thousands)
             Bold represents a company that has subsidiary(ies))

Cinergy Corp. (Cinergy)                                                                                                   A

  Cinergy Services, Inc. (Services)                                            70     100   $        - $        -         B

  CC Funding Trust I (1)                                                  195,640     100            -          -         C

  Cinergy Receivables Company LLC (2)                                         N/A     100            -          -         C

  The Cincinnati Gas & Electric Company (CG&E)                         89,663,086     100    1,810,334  1,810,334       D & I
    Cinergy Power Investments, Inc. *                                         100     100            -          -         T
    CPI Allowance Management, LLC                                             N/A     100            -          -         F
    CPI Investments, LLC                                                      N/A     100            -          -         F
    The Union Light, Heat and Power Company (ULH&P)                       585,333     100      177,164    177,164         I
    Tri-State Improvement Company                                           1,000     100            -          -         E
    Lawrenceburg Gas Company (Lawrenceburg)                                10,768     100            -          -         H
    Miami Power Corporation                                                 1,000     100            -          -         G
    KO Transmission Company (KO Transmission)                                  10     100            -          -         K

  PSI Energy, Inc. (PSI) (3)                                           53,913,701     100    1,401,297  1,401,297         G
    South Construction Company, Inc. *                                         10     100            -          -         E

  Cinergy Investments, Inc. (Investments)                                     100     100            -          -         J
    Cinergy-Cadence, Inc.                                                     100     100            -          -         N
      Cadence Network, Inc. (Cadence Network)                                   -      11            -          -         N
    Cinergy Capital & Trading, Inc. (Capital & Trading)                       100     100            -          -       J & O
      Brownsville Power I, LLC                                                N/A     100            -          -         L
      Caledonia Power I, LLC                                                  N/A     100            -          -         L
      CinCap - Chippewa, LLC *                                                N/A     100            -          -         T
      CinCap - Martinsville, LLC *                                            N/A     100            -          -         T
      CinCap - Oraville, LLC *                                                N/A     100            -          -         T
      CinCap IV, LLC                                                          N/A      10            -          -         K
      CinCap V, LLC                                                           N/A      10            -          -         K
      CinCap VIII, LLC (CinCap VIII)                                          N/A     100            -          -         J
       CinCap VII, LLC                                                        N/A     100            -          -         L
       CinCap Madison, LLC                                                    N/A     100            -          -         L
      CinCap IX, LLC *                                                        N/A     100            -          -         T
      CinCap X, LLC *                                                         N/A     100            -          -         T
      CinPower I, LLC                                                         N/A     100            -          -         K
      Cinergy Canada, Inc.                                                    100     100            -          -         P
      Cinergy Limited Holdings, LLC                                           N/A     100            -          -         K
       Cinergy Marketing & Trading, LP (Marketing & Trading) (4)              N/A     100            -          -         K
         Ohio River Valley Propane, LLC #(5)                                  N/A     100            -          -         K
      Cinergy General Holdings, LLC                                           N/A     100            -          -         K
      Cinergy Retail Power Limited, Inc. *                                    100     100            -          -         K
       Cinergy Retail Power, L.P. *(6)                                        N/A     100            -          -         K
      Cinergy Retail Power General, Inc. *                                    100     100            -          -         K
      CinFuel Resources, Inc. (7)                                             100     100            -          -         K
      LH1, LLC (8)                                                            N/A     100            -          -         K
       Oak Mountain Products, LLC (9)                                         N/A     100            -          -         K
      Cinergy Transportation, LLC                                             N/A     100            -          -         K
      SynCap II, LLC #                                                        N/A     100            -          -         K
    Cinergy Telecommunications Holding Company, Inc.                          100     100            -          -         N
      Q-Comm Corporation                                                5,863,227      40            -          -         V
       QCC, Inc.                                                            1,000     100            -          -         V
       Cinergy Communications Company                                       1,000     100            -          -         V
       Kentucky Data Link, Inc.                                             1,000     100            -          -         V
         KDL Holdings, LLC *(10)                                            1,000     100            -          -         V
         Cinergy Telecommunication Networks - Indiana, Inc. *                 500     100            -          -         V
         Cinergy Telecommunication Networks - Ohio, Inc. *                    500     100            -          -         V
         Indianapolis Data Link, Inc. *(11)                                   100     100            -          -         V
         Lexington Data Link, Inc. *(12)                                      100     100            -          -         V
         Louisville Data Link, Inc. *(13)                                     100     100            -          -         V
         Cincinnati Data Link, Inc. *(14)                                     100     100            -          -         V
         Chattanooga Data Link, Inc. *(15)                                    100     100            -          -         V
         Knoxville Data Link, Inc. *(16)                                      100     100            -          -         V
         Memphis Data Link, Inc. *(17)                                        100     100            -          -         V
         Nashville Data Link, Inc. *(18)                                      100     100            -          -         V
      Lattice Communications, LLC                                             N/A      40            -          -         N
       LB Tower Company, LLC                                                  N/A       -            -          -         V
    Cinergy Engineering, Inc.                                                 100     100            -          -         K
    Cinergy-Centrus, Inc.                                                     100     100            -          -         N
    Cinergy-Centrus Communications, Inc.                                      100     100            -          -         N
    Cinergy Solutions Holding Company, Inc. (Solutions Holding)               100     100            -          -         J
      3036243 Nova Scotia Company                                             100     100            -          -         S
       Cinergy Solutions Limited Partnership (19)                             N/A     100            -          -         S
      1388368 Ontario Inc.                                                 20,020     100            -          -         S
      Vestar, Inc.                                                            100     100            -          -         R
       Vestar Limited                                                           1     100            -          -         R
         Keen Rose Technology Group Limited                                     1     100            -          -         R
         Optimira Controls, Inc.                                              900   90.83            -          -         R
      Cinergy EPCOM, LLC (Cinergy EPCOM)                                      N/A     100            -          -         K
      Cinergy EPCOM College Park, LLC                                         N/A     100            -          -         K
      Cinergy Solutions, Inc.  (Solutions)                                    100     100            -          -         K
       BSPE Holdings, LLC #                                                   N/A      50            -          -         K
         BSPE Limited, LLC #                                                  N/A      50            -          -         K
           BSPE, L.P. #(20)                                                   N/A      50            -          -         K
         BSPE General, LLC #                                                  N/A      50            -          -         K
       Cinergy Energy Solutions, Inc.                                         100     100            -          -         K
         U.S. Energy Biogas Corp.                                           4,574      20            -          -         K
           Biogas Financial Corporation (21)                                    -       -            -          -         K
             ZFC Energy Inc. (22)                                               -       -            -          -         K
              Power Generation (Suffolk), Inc. (23)                             -       -            -          -         K
                Suffolk Energy Partners, L.P. (24)                            N/A       -            -          -         K
              Suffolk Biogas, Inc. (25)                                         -       -            -          -         K
             Lafayette Energy Partners, L.P. (26)                             N/A       -            -          -         K
             Taylor Energy Partners, L.P. (27)                                N/A       -            -          -         K
           Resources Generating Systems, Inc. (28)                              -       -            -          -         K
             Illinois Electrical Generation Partners, L.P. (29)               N/A       -            -          -         K
              Zapco Illinois Energy, Inc. (30)                                  -       -            -          -         K
              Avon Energy Partners, L.L.C. (31)                               N/A       -            -          -         K
              Devonshire Power Partners, L.L.C. (32)                          N/A       -            -          -         K
              Riverside Resource Recovery, L.L.C. (33)                        N/A       -            -          -         K
             Illinois Electrical Generation Partners II L.P. *(34)            N/A       -            -          -         K
              BMC Energy, LLC (35)                                            N/A       -            -          -         K
                Brookhaven Energy Partners, LLC (36)                          N/A       -            -          -         K
                Countryside Genco, L.L.C. (37)                                N/A       -            -          -         K
                Morris Genco, L.L.C. (38)                                     N/A       -            -          -         K
              Brickyard Energy Partners, LLC (39)                             N/A       -            -          -         K
              Dixon/Lee Energy Partners, LLC (40)                             N/A       -            -          -         K
              Roxanna Resource Recovery, L.L.C. (41)                          N/A       -            -          -         K
              Streator Energy Partners, LLC (42)                              N/A       -            -          -         K
              Upper Rock Energy Partners, LLC (43)                            N/A       -            -          -         K
             Hoffman Road Energy Partners, LLC (44)                           N/A       -            -          -         K
           Barre Energy Partners, L.P. (45)                                   N/A       -            -          -         K
           Biomass New Jersey, L.L.C. (46)                                    N/A       -            -          -         K
           Brown County Energy Associates, LLC (47)                           N/A       -            -          -         K
           Burlington Energy, Inc. (48)                                         -       -            -          -         K
           Cape May Energy Associates, L.P. (49)                              N/A       -            -          -         K
           Dunbarton Energy Partners, Limited Partnership (50)                N/A       -            -          -         K
           Garland Energy Development, LLC (51)                               N/A       -            -          -         K
           Oceanside Energy Inc. (52)                                           -       -            -          -         K
           Onondaga Energy Partners, L.P. (53)                                N/A       -            -          -         K
           Oyster Bay Energy Partners, L.P. (54)                              N/A       -            -          -         K
           Smithtown Energy Partners, L.P. (55)                               N/A       -            -          -         K
           Springfield Energy Associates, Limited Partnership (56)            N/A       -            -          -         K
           Suffolk Transmission Partners, L.P. (57)                           N/A       -            -          -         K
           Tucson Energy Partners LP (58)                                     N/A       -            -          -         K
           Zapco Broome Nanticoke Corp. (59)                                    -       -            -          -         K
           Zapco Development Corporation (60)                                   -       -            -          -         K
           Zapco Energy Tactics Corporation (61)                                -       -            -          -         K
           Zapco Readville Cogeneration, Inc. (62)                              -       -            -          -         K
           ZFC Royalty Partners, A Connecticut Limited Partnership (63)       N/A       -            -          -         K
           ZMG, Inc. (64)                                                       -       -            -          -         K
       Cinergy GASCO Solutions, LLC                                           N/A     100            -          -         K
         Countryside Landfill Gasco, L.L.C.                                   N/A     100            -          -         K
         Morris Gasco, L.L.C.                                                 N/A     100            -          -         K
         Brown County Landfill Gas Associates, L.P. (65)                      N/A     100            -          -         K
       Cinergy Solutions of Boca Raton, LLC *                                 N/A     100            -          -         K
       Cinergy Solutions Operating Services of Lansing, LLC #(66)             N/A     100            -          -         K
       Cinergy Solutions Operating Services of Shreveport, LLC #(67)          N/A     100            -          -         K
       Cinergy Solutions Operating Services of Oklahoma, LLC #(68)            N/A     100            -          -         K
       Cinergy Solutions of Philadelphia, LLC                                 N/A     100            -          -         K
       Cinergy Solutions Partners, LLC #                                      N/A      50            -          -         K
         CST Limited, LLC #                                                   N/A      50            -          -         K
           CST Green Power, L.P. #(69)                                        N/A      50            -          -         K
             Green Power Holdings, LLC                                        N/A      50            -          -         K
              Green Power Limited, LLC                                        N/A      50            -          -         K
                South Houston Green Power, L.P. (70)                          N/A      50            -          -         K
              Green Power G.P., LLC                                           N/A      50            -          -         K
         CST General, LLC #                                                   N/A      50            -          -         K
       CSGP of Southeast Texas, LLC                                           N/A     100            -          -         K
       CSGP Limited, LLC                                                      N/A     100            -          -         K
         CSGP Services, L.P. (71)                                             N/A     100            -          -         K
       CSGP General, LLC                                                      N/A     100            -          -         K
       Lansing Grand River Utilities, LLC                                     N/A     100            -          -         K
       Oklahoma Arcadian Utilities, LLC                                       N/A   33.34            -          -         K
       Shreveport Red River Utilities, LLC                                    N/A      50            -          -         K
      Cinergy Solutions of Tuscola, Inc.                                      100     100            -          -         K
      Delta Township Utilities, LLC                                           N/A   57.16            -          -         K
      Energy Equipment Leasing LLC                                            N/A      50            -          -         K
      Trigen-Cinergy Solutions LLC                                            N/A      50            -          -         K
      Trigen-Cinergy Solutions of Ashtabula LLC                               N/A      50            -          -         K
      Trigen-Cinergy Solutions of Baltimore LLC                               N/A      50            -          -         K
      Trigen-Cinergy Solutions of Boca Raton, LLC                             N/A      50            -          -         K
      Trigen-Cinergy Solutions of Cincinnati LLC                              N/A      50            -          -         K
      Trigen-Cinergy Solutions of College Park, LLC                           N/A      50            -          -         K
      Trigen-Cinergy Solutions of Lansing LLC                                 N/A      50            -          -         K
       Trigen/Cinergy - USFOS of Lansing LLC                                  N/A    40.8            -          -         K
      Trigen-Cinergy Solutions of Orlando LLC                                 N/A      50            -          -         K
      Trigen-Cinergy Solutions of Owings Mills LLC                            N/A      50            -          -         K
      Trigen-Cinergy Solutions of Owings Mills Energy Equipment
         Leasing, LLC                                                         N/A      50            -          -         K
      Trigen-Cinergy Solutions of Rochester LLC                               N/A      50            -          -         K
      Trigen-Cinergy Solutions of San Diego LLC *                             N/A      50            -          -         K
      Trigen-Cinergy Solutions of Silver Grove LLC                            N/A      50            -          -         K
      Trigen-Cinergy Solutions of the Southeast LLC *                         N/A      50            -          -         K
      Trigen-Cinergy Solutions of St. Paul LLC *                              N/A      50            -          -         K
       Environmental Wood Supply, LLC                                         N/A    24.5            -          -         K
       St. Paul Cogeneration LLC                                              N/A    24.5            -          -         K
      Trigen-Cinergy Solutions of Tuscola, LLC                                N/A      50            -          -         K
    Cinergy Supply Network, Inc.                                              100     100            -          -         Q
      Reliant Services, LLC (Reliant)                                         N/A      50            -          -         Q
       MP Acquisitions Corp., Inc.                                            100      50            -          -         Q
         Miller Pipeline Corporation (Miller Pipeline)                        100      50            -          -         Q
       Fiber Link, LLC                                                        N/A      75            -          -         N
    Cinergy Technology, Inc. (Technology)                                     100     100            -          -         K

  Cinergy Global Resources, Inc. (Global Resources)                           100     100            -          -         J
    Cinergy UK, Inc.                                                          100     100            -          -         J
    Cinergy Global Power, Inc. (Global Power)                                 100     100            -          -         M
      CGP Global Greece Holdings, SA                                        9,000     100            -          -         J
       Attiki Denmark ApS                                              64,586,074      57            -          -         J
         Attiki Gas Supply Company SA                                   2,954,430    28.5            -          -         M
      Cinergy Global Chandler Holding, Inc.                                   100     100            -          -         J
       Cinergy Global Chandler I, Inc.                                        100     100            -          -         J
         Chandler Wind Partners, LLC                                          N/A     100            -          -         L
      Cinergy Global Ely, Inc.                                                100     100            -          -         M
       EPR Ely Power Limited                                              214,286      30            -          -         J
         EPR Ely Limited                                                  300,000      30            -          -         M
           Ely Power Limited *                                                  1      30            -          -         U
           Anglian Straw Limited                                              300      30            -          -         U
       Anglian Ash Limited                                                      3      30            -          -         U
      Cinergy Global Foote Creek, Inc.                                        100     100            -          -         J
       Foote Creek III, LLC                                                   N/A     100            -          -         L
      Cinergy Global Foote Creek II, Inc.                                     100     100            -          -         J
       Foote Creek II, LLC                                                    N/A     100            -          -         L
      Cinergy Global Foote Creek IV, Inc.                                     100     100            -          -         J
       Foote Creek IV, LLC                                                    N/A     100            -          -         L
      Cinergy Global Peetz Table I, Inc.                                      100     100            -          -         J
       Ridge Crest Wind Partners, LLC (Ridge Crest)                           N/A     100            -          -         L
      Cinergy Global Power Services Limited                             1,001,000     100            -          -         U
      Cinergy Global Power (UK) Limited                                 3,658,242     100            -          -         M
       Cinergy Global Trading Limited                                   8,658,242     100            -          -         U
         Commercial Electricity Supplies Limited *                      8,048,908     100            -          -         U
         Cinergy Renewable Trading Limited                                      2     100            -          -         U
         UK Electric Power Limited                                         85,000     100            -          -         U
         Cinergy Global Power Iberia, S.A. *(72)                            1,000     100            -          -         U
      Cinergy Global San Gorgonio, Inc. *                                     100     100            -          -         K
      Cinergy Global Holdings, Inc. (Global Holdings)                         100     100            -          -         J
       Cinergy Holdings B.V. (Holdings B.V.)                                7,652     100            -          -         J
         Cinergy Zambia B.V.                                                4,525     100            -          -         J
           Copperbelt Energy Corporation PLC (Copperbelt)               3,850,000      30            -          -         M
         Cinergy Turbines B.V.                                                650     100            -          -         U
         Cinergy Hydro B.V. (Hydro B.V.)                                  130,001     100            -          -         J
           Cinergy 1 B.V. *                                                    50     100            -          -         U
           Cinergy Global Resources 1 B.V.                                    400     100            -          -         M
             Moravske Teplarny a.s. (Teplarny)                                 81     100            -          -         M
             Cinergy Global Polska Sp. Z o.o. *                               N/A     100            -          -         U
             Cinergy Global Resources 1 Sp. Z o.o. *                          N/A     100            -          -         U
             Cinergy Global Resources a.s.                                      2     100            -          -         U
             Cinergetika U/L a.s. (Cinergetika)                               701     100            -          -         M
             Energy Customer Services, s.r.o.                                 N/A     100            -          -         U
           Cinergy 2 B.V.                                                     500     100            -          -         U
         Baghabari I B.V. *                                                18,152     100            -          -         J
           Baghabari Power Company Limited *(73)                                4     100            -          -         U
         Baghabari II B.V. *                                               18,152     100            -          -         J
         Cinergy South Africa Investments 1 B.V.                           18,152     100            -          -         J
           Egoli Gas (Proprietary) Limited *                                  949     100            -          -         M
         Cinergy Global 4 B.V. *                                           18,152     100            -          -         U
         Cinergy Global 5 B.V. *                                           18,000     100            -          -         U
      Cinergy Global (Cayman) Holdings, Inc.                            5,171,137     100            -          -         J
       Cinergy Global Hydrocarbons Pakistan *                                 100     100            -          -         U
       Cinergy Global Tsavo Power                                       5,171,137     100            -          -         J
         IPS-Cinergy Power Limited                                      3,968,547      50            -          -         J
           Tsavo Power Company Limited                                  8,233,500    28.5            -          -         M
       Cinergy MPI V, Inc. *                                                  100     100            -          -         U
      Cinergy Global One, Inc.                                                100     100            -          -         J
       CZECHPOL ENERGY spol, s.r.o. (74)                                      N/A     100            -          -         M
         Moravia Energo                                                        23      40            -          -         U
      eVent Resources Overseas I, LLC (75)                                    N/A     100            -          -         U
      Midlands Hydrocarbons (Bangladesh) Limited *                      4,535,000     100            -          -         U
      Powermid No. 1 (76)                                                       2     100            -          -         U
      Cinergy Global Power Africa (Proprietary) Limited                       100     100            -          -         U

  CinTec LLC (CinTec)                                                         N/A     100            -          -         J
    CinTec I LLC                                                              N/A     100            -          -         J
      eVent Resources I LLC                                                   N/A      67            -          -         J
       eVent Resources Holdings LLC (77)                                      N/A      67            -          -         N

  Cinergy Technologies, Inc. (Cinergy Technologies)                           100     100            -          -         J
    Cinergy Ventures, LLC (Ventures)                                          N/A     100            -          -         N
      CES International (78)                                                    -       ^            -          -         V
      Pentech Solutions, Inc. (79)                                              -       ^            -          -         V
      IZOIC Incorporated                                                        -       ^            -          -         V
      Kreiss Johnson Technologies, Inc.                                         -       ^            -          -         V
    Cinergy Ventures II, LLC                                                  N/A     100            -          -         K
      Catalytic Solutions, Inc.                                                 -       ^            -          -         K
    Cinergy e-Supply Network, LLC (Cinergy e-Supply)                          N/A     100            -          -         N
    Cinergy One, Inc. (Cinergy One)                                           100     100            -          -         K
    Cinergy Two, Inc.                                                         100     100            -          -         N

  Cinergy Wholesale Energy, Inc. (Wholesale Energy)                           100     100            -          -         J
    Cinergy Power Generation Services, LLC (Generation Services)              N/A     100            -          -         K
    Cinergy Origination & Trade, LLC *                                        N/A     100            -          -         K

*     This entity was inactive as of December 31, 2002.
#     This entity was in the start-up phase of operations as of December 31, 2002.
+     Cinergy’s issuer’s and owner’s book value and other amounts, at December 31, 2002, will be filed pursuant to Rule 104(b).
       The “Exhibit I” section in “Item 10. Financial Statements and Exhibits” is currently being researched and will be incorporated in
       the amended annual report at such time this information is available.
^     Cinergy’s percentage of voting power, at December 31, 2002, will be filed pursuant to Rule 104(b). The “Exhibit I” section
       in “Item 10. Financial Statements and Exhibits” is currently being researched and will be incorporated in
       the amended annual report at such time this information is available.
/     Cinergy and its affiliate companies are involved in various types of businesses, which can be classified as follows: 

 A - Registered Holding Company G - Electric Utility             M - Foreign Utility Company            S - Energy-Related Financing
                                                                                                            Services Company
 B - Service Company            H - Gas Utility                  N - Exempt Telecommunications Company  T - Inactive/Prospective Exempt
                                                                                                            Wholesale Generator
 C - Financing Company          I - Electric and Gas Utility     O - Power Marketing Company            U - Foreign Utility Company
                                                                                                            Investment
 D - Exempt Holding Company     J - Intermediate Holding Company P - Energy Commodity Marketing Company V - Exempt Telecommunications
     under Section 3(a)(2)                                                                                  Company Investment
 E - Real Estate Company        K - Rule 58 Energy-Related       Q - Infrastructure Services Company
                                    Company
 F - SO2 Emissions Allowance    L - Exempt Wholesale Generator   R - Energy-Related Consulting
     Trading Company                                                 Services Company

ITEM 1.SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 2002 (Continued)

Part A Footnotes

The following footnotes provide information relating to entities that are owned by more than one Cinergy system company, as well as descriptions of changes that occurred to Cinergy’s subsidiary structure, including changes to specific entities, as of December 31, 2002. However, information pertaining to Cinergy’s sale and/or dissolution of subsidiary companies throughout the year, is provided in the following section labeled “Part B Footnotes”.

(1) CC Funding Trust I is a business trust formed under the Delaware Business Trust Act, effective November 27, 2001, to issue and sell its preferred trust securities and common trust securities and to acquire and hold the debt securities as trust assets.

(2) Cinergy Receivables Company LLC, a Delaware limited liability company (LLC) organized on January 10, 2002, was formed for the purpose of purchasing the accounts receivable and related rights of PSI, ULH&P, and CG&E. Also, Cinergy Receivables Company LLC is responsible for securitizing such receivables through a loan agreement with certain commercial banks.

(3) PSI also has voting cumulative preferred stock outstanding at December 31, 2002, as follows:

Class
 Shares outstanding
 Vote per share
Par value $100 347,545 1 vote
Par value $ 25 303,544 1/4 vote

(4) Marketing & Trading was converted from an LLC to a limited partnership (LP), effective January 1, 2002. Marketing & Trading is owned 99% by Cinergy Limited Holdings, LLC and 1% by Cinergy General Holdings, LLC.

(5) Ohio River Valley Propane, LLC changed its name from Cinergy Propane, LLC, effective March 14, 2002.

(6) Cinergy Retail Power, L.P. is owned 99% by Cinergy Retail Power Limited, Inc. and 1% by Cinergy Retail Power General, Inc.

(7) CinFuel Resources, Inc., a Delaware corporation organized on January 10, 2002, was formed for the purpose of owning, through direct or indirect investment and/or operating, projects capable of producing synthetic fuel.

(8) LH1, LLC, a Delaware LLC organized on January 10, 2002, is a holding company formed for the purpose of holding Cinergy’s investment in Oak Mountain Products, LLC. LH1, LLC is owned 99% by Capital & Trading and 1% by CinFuel Resources, Inc.

(9) Oak Mountain Products, LLC, a Delaware LLC that was acquired by Cinergy on June 30, 2002, is a project company that will own a facility capable of producing synthetic fuel. The facility will produce synthetic fuel from coal by applying a latex or asphalt binder in order to induce a chemical change.

(10) KDL Holdings, LLC, a Delaware LLC organized on September 5, 2001, was formed to provide long- and short-haul fiber capacity to large national carriers and constructs private networks for private and public entities.

(11) Indianapolis Data Link, Inc., an Indiana corporation organized on April 16, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(12) Lexington Data Link, Inc., a Kentucky corporation organized on April 1, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(13) Louisville Data Link, Inc., a Kentucky corporation organized on April 1, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(14) Cincinnati Data Link, Inc., an Ohio corporation organized on April 17, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(15) Chattanooga Data Link, Inc., a Tennessee corporation organized on April 16, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(16) Knoxville Data Link, Inc., a Tennessee corporation organized on April 16, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(17) Memphis Data Link, Inc., a Tennessee corporation organized on April 1, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(18) Nashville Data Link, Inc., a Tennessee corporation organized on February 15, 2002, was formed to provide long- and short-haul fiber capacity to large national carriers and to construct private networks for private and public entities.

(19) Cinergy Solutions Limited Partnership is owned 99.9% by 3036243 Nova Scotia Company and .1% by 1388368 Ontario Inc.

(20) BSPE, L.P. is owned 99% by BSPE Limited, LLC and 1% by BSPE General, LLC.

(21) Biogas Financial Corporation, a Connecticut corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities.

(22) ZFC Energy Inc., a Delaware corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities and acquiring landfill gas companies.

(23) Power Generation (Suffolk), Inc., a Delaware corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities.

(24) Suffolk Energy Partners, L.P., a Virginia LP that was acquired by Cinergy in 2001, which is located in Suffolk, Virginia, was formed to own a landfill gas-fired generation facility that is a qualifying facility (QF). Suffolk Energy Partners, L.P. is owned 80% by Power Generation (Suffolk), Inc. and 20% by U.S. Energy Biogas Corp.

(25) Suffolk Biogas, Inc., a Delaware corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas companies.

(26) Lafayette Energy Partners, L.P., a New Jersey LP that was acquired by Cinergy in 2001, which is located in Lafayette, New Jersey, was formed to own a landfill gas-fired generation facility that is a QF. Lafayette Energy Partners, L.P. is owned 99% by Biogas Financial Corporation and 1% by ZFC Energy Inc.

(27) Taylor Energy Partners, L.P., a Pennsylvania LP that was acquired by Cinergy in 2001, which is located in Taylor, Pennsylvania, was formed to own a landfill gas-fired generation facility that is a QF. Taylor Energy Partners, L.P. is owned 99% by Biogas Financial Corporation and 1% by ZFC Energy Inc.

(28) Resources Generating Systems, Inc., a New York corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities.

(29) Illinois Electrical Generation Partners, L.P., a Delaware LP that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities in Illinois.

(30) Zapco Illinois Energy, Inc., a Delaware corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities.

(31) Avon Energy Partners, L.L.C., an Illinois LLC that was acquired by Cinergy in 2001, which is located in Chicago, Illinois, was formed to own a landfill gas-fired generation facility that is a QF. Avon Energy Partners, L.L.C. is owned 75% by Illinois Electrical Generation Partners, L.P. and 25% by Zapco Illinois Energy, Inc.

(32) Devonshire Power Partners, L.L.C., an Illinois LLC that was acquired by Cinergy in 2001, which is located in Dolton, Illinois, was formed to own a landfill gas-fired generation facility that is a QF. Devonshire Power Partners, L.L.C. is owned 75% by Illinois Electrical Generation Partners, L.P. and 25% by Zapco Illinois Energy, Inc.

(33) Riverside Resource Recovery, L.L.C., an Illinois LLC that was acquired by Cinergy in 2001, which is located in Romerville, Illinois, was formed to own a landfill gas-fired generation facility that is a QF. Riverside Resource Recovery, L.L.C. is owned 75% by Illinois Electrical Generation Partners, L.P. and 25% by Zapco Illinois Energy, Inc.

(34) Illinois Electrical Generation Partners II L.P., a Delaware LP that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities in Illinois.

(35) BMC Energy, LLC, a Delaware LLC that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas-fired generation facilities that are QF’s.

(36) Brookhaven Energy Partners, LLC, a New York LLC that was acquired by Cinergy in 2001, which is located in Brookhaven, New York, was formed as a leasing company for electrical generation assets.

(37) Countryside Genco, L.L.C., a Delaware LLC that was acquired by Cinergy in 2001, which is located in Grayslake, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(38) Morris Genco, L.L.C., a Delaware LLC that was acquired by Cinergy in 2001, which is located in Morris, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(39) Brickyard Energy Partners, LLC, a Delaware LLC that was acquired by Cinergy in 2001, which is located in Danville, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(40) Dixon/Lee Energy Partners, LLC, a Delaware LLC that was acquired by Cinergy in 2001, which is located in Dixon, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(41) Roxanna Resource Recovery, L.L.C., an Illinois LLC that was acquired by Cinergy in 2001, which is located in Roxanna, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(42) Streator Energy Partners, LLC, a Delaware LLC that was acquired by Cinergy in 2001, which is located in Streator, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(43) Upper Rock Energy Partners, LLC, a Delaware LLC that was acquired by Cinergy in 2001, which is located in East Moline, Illinois, was formed to own a landfill gas-fired generation facility that is a QF.

(44) Hoffman Road Energy Partners, LLC, a Delaware LLC that was acquired by Cinergy in 2001, is a landfill gas transportation company located in Toledo, Ohio.

(45) Barre Energy Partners, L.P., a Delaware LP that was acquired by Cinergy in 2001, which is located in Barre, Massachusetts, was formed to own a landfill gas-fired generation facility that is a QF. Barre Energy Partners, L.P. is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(46) Biomass New Jersey, L.L.C., a New Jersey LLC that was acquired by Cinergy in 2001, was formed to own and operate landfill gas collection systems and related assets. Biomass New Jersey, L.L.C. is owned 99% by U.S. Energy Biogas Corp. and 1% by ZFC Energy Inc.

(47) Brown County Energy Asssociates, LLC, a Delaware LLC that was acquired by Cinergy in 2001, which is located in Ledgeview, Wisconsin, was formed to own landfill gas-fired generation facilities that are QF’s.

(48) Burlington Energy, Inc., a Vermont corporation that was acquired by Cinergy in 2001, which is located in Burlington, Vermont, was formed to own a landfill gas-fired generation facility that is a QF.

(49) Cape May Energy Associates, L.P., a Delaware LP that was acquired by Cinergy in 2001, is a landfill gas transportation company located in Cape May, New Jersey. Cape May Energy Associates, L.P. is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(50) Dunbarton Energy Partners, Limited Partnership, a New Hampshire LP that was acquired by Cinergy in 2001, which is located in Manchester, New Hampshire, was formed to own a landfill gas-fired generation facility that is a QF. Dunbarton Energy Partners, Limited Partnership is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(51) Garland Energy Development, LLC, a Delaware LLC that was acquired by Cinergy in 2001, owns sledge dryer equipment at a landfill in Garland, Texas.

(52) Oceanside Energy Inc., a New York corporation that was acquired by Cinergy in 2001, which is located in Hempstead, New York, was formed to own a landfill gas-fired generation facility that is a QF.

(53) Onondaga Energy Partners, L.P., a New York LP that was acquired by Cinergy in 2001, which is located in Onondaga, New York, was formed to own a landfill gas-fired generation facility that is a QF. Onondaga Energy Partners, L.P. is owned 99% by U. S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(54) Oyster Bay Energy Partners, L.P., a New York LP that was acquired by Cinergy in 2001, which is located in Oyster Bay, New York, was formed to own a landfill gas-fired generation facility that is a QF. Oyster Bay Energy Partners, L.P. is owned 99% by U. S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(55) Smithtown Energy Partners, L.P., a New York LP that was acquired by Cinergy in 2001, which is located in Smithtown, New York, was formed to own a landfill gas-fired generation facility that is a QF. Smithtown Energy Partners, L.P. is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(56) Springfield Energy Associates, Limited Partnership, a Vermont LP that was acquired by Cinergy in 2001, is a landfill gas transportation company located in Springfield, Massachusetts. Springfield Energy Associates, Limited Partnership is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(57) Suffolk Transmission Partners, L.P., a Delaware LP that was acquired by Cinergy in 2001, is a landfill gas transportation company located in Suffolk, Virginia. Suffolk Transmission Partners, L.P. is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(58) Tucson Energy Partners LP, a Delaware LP that was acquired by Cinergy in 2001, is a landfill gas transportation company located in Tucson, Arizona. Tucson Energy Partners LP is owned 99% by U.S. Energy Biogas Corp. and 1% by Resources Generating Systems, Inc.

(59) Zapco Broome Nanticoke Corp., a New York corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring a landfill gas transportation company.

(60) Zapco Development Corporation, a Delaware corporation that was acquired by Cinergy in 2001, was formed as a landfill gas project development company.

(61) Zapco Energy Tactics Corporation, a Delaware corporation that was acquired by Cinergy in 2001, was formed to provide operation and maintenance services for landfill gas projects located outside the State of Illinois.

(62) Zapco Readville Cogeneration, Inc., a Delaware corporation that was acquired by Cinergy in 2001, which is located in Readville, Massachusetts, was formed to own a landfill gas-fired generation facility that is a QF.

(63) ZFC Royalty Partners, A Connecticut Limited Partnership, a Connecticut LP that was acquired by Cinergy in 2001, was formed as a holding company for the royalty interests of certain Genco projects in which subsidiaries of U.S. Energy Biogas Corp. are participating.

(64) ZMG, Inc., a Delaware corporation that was acquired by Cinergy in 2001, was formed for the purpose of acquiring landfill gas companies.

(65) Brown County Landfill Gas Associates, L.P. is owned 99.99% by Cinergy GASCO Solutions, LLC and .01% by ZFC Energy Inc.

(66) Cinergy Solutions Operating Services of Lansing, LLC, a Delaware LLC organized on June 25, 2002, performs oversight, management, operation and maintenance of energy/utility service facilities at a General Motors (GM) vehicle assembly plant in Lansing, Michigan.

(67) Cinergy Solutions Operating Services of Shreveport, LLC, a Delaware LLC organized on June 28, 2002, performs oversight, management, operation and maintenance of energy/utility service facilities at a GM vehicle assembly plant in Shreveport, Louisiana.

(68) Cinergy Solutions Operating Services of Oklahoma, LLC, a Delaware LLC organized on August 13, 2002, performs oversight, management, operation and maintenance of energy/utility service facilities at a GM vehicle assembly plant in Oklahoma City, Oklahoma.

(69) CST Green Power, L.P. is owned 99% by CST Limited, LLC and 1% by CST General, LLC.

(70) South Houston Green Power, L.P. is owned 99% by Green Power Limited, LLC and 1% by Green Power G.P., LLC.

(71) CSGP Services, L.P. is owned 99% by CSGP Limited, LLC and 1% by CSGP General, LLC.

(72) During the first quarter of 2002, Cinergy Global Power Iberia, S.A. became a direct subsidiary of Cinergy Global Trading Limited. Previously, this company was reflected as a subsidiary of Cinergy Renovables Ibericas, S.L., which was subsequently sold in late 2002.

(73) Baghabari Power Company Limited is owned 50% by Baghabari I B.V. and 50% by Baghabari II B.V.

(74) During the fourth quarter of 2002, a former Cinergy subsidiary, E-line Czech, s.r.o., was merged into CZECHPOL ENERGY spol, s.r.o., which continues to be a subsidiary of Cinergy, as of December 31, 2002.

(75) During the second quarter of 2002, eVent Resources Overseas I, LLC became a direct subsidiary of Cinergy Global Power, Inc. Previously, this company was held as a subsidiary of Cinergy Global Ely, Inc.

(76) Powermid No. 1 is owned 50% by Cinergy Global Power, Inc. and 50% by Cinergy Zambia B.V.

(77) eVent Resources Holdings LLC changed its name from eVent (Triple Point) LLC, effective September 24, 2002.

(78) During the second quarter of 2002, a former Cinergy subsidiary, Enermetrix, was merged into CES International, which continues to be a subsidiary of Cinergy, as of December 31, 2002.

(79) During the third quarter of 2002, Pentech Solutions, Inc. became a direct subsidiary of Ventures. Previously, this company was reflected as a subsidiary of Cinergy Ventures II, LLC.

Part B Footnotes

The following footnotes provide information, as of December 31, 2002, pertaining to the sale and/or dissolution of Cinergy subsidiary companies during the year. 

                                                                                                Effective Date of
                                                            State/Country of       Date of           Sale or
                         Company Name                         Incorporation     Incorporation      Dissolution
                         ------------                         -------------     -------------      -----------
Age Inversiones en Medio Ambiente, S.L.                    Spain                  3/17/2000        10/30/2002
Agrupacion Rubi, SA                                        Spain                  6/23/1999        10/30/2002
Aktsiaselts Narva Elektrivork                              Estonia                 9/4/1997         8/31/2002
Aplicaciones Industriales de Energies Limpias, S.L.        Spain                  7/30/2001        10/30/2002
CinCap PIC, LLC                                            Delaware               8/10/2001          4/5/2002
Cinergy Eesti OU                                           Estonia                12/5/2000         8/31/2002
Cinergy Global Maranhao                                    Cayman Islands          9/4/1997         9/30/2002
Cinergy Global Power 2 Limited                             England                10/5/2000          7/2/2002
Cinergy Global Power Limited                               England                 2/5/1998         7/16/2002
Cinergy MPI VI, Inc.                                       Cayman Islands          9/4/1997         9/30/2002
Cinergy MPI VII, Inc.                                      Cayman Islands          9/4/1997         9/30/2002
Cinergy MPI VIII, Inc.                                     Cayman Islands          9/4/1997         9/30/2002
Cinergy MPI IX, Inc.                                       Cayman Islands          9/4/1997         9/30/2002
Cinergy MPI X, Inc.                                        Cayman Islands          9/4/1997         9/30/2002
Cinergy Renovables Aragon, S.L.                            Spain                  11/6/2001        10/30/2002
Cinergy Renovables Ibericas, S.L.                          Spain                  5/23/1944        10/30/2002
Cinergy Services Iberia, S.A.                              Spain                  10/9/2001        10/30/2002
Cinergy Telecommunication Networks - Kentucky, Inc.        Kentucky                1/4/2000        12/30/2002
CinPeak Resources, LLC                                     Delaware               8/15/2001          3/8/2002
Compania Eolica Aragonesa, S.A.                            Spain                 11/10/1994        10/30/2002
Compania Productora de Energia para Consumo Interno, S.L.  Spain                  5/22/2000        10/30/2002
Corporacion Eolica, S.L.                                   Spain                  12/3/1999         6/30/2002
Desarrollo Eolico del Ebro S.A.                            Spain                  1/13/1997        10/30/2002
Desarrollos Eolicos del Valle del Ebro, S.A.               Spain                  7/22/1999        10/30/2002
Desarrollos Eolicos El Aguila, S.A.                        Spain                 10/21/1998        10/30/2002
DP Czechpol Energy Invest                                  Ukraine                4/10/1997        10/16/2002
Elecdey Ascoy, S.A.                                        Spain                   4/1/1998        10/30/2002
Elecdey Carcelen, S.A.                                     Spain                 12/14/2000        10/30/2002
E-line AG                                                  Switzerland             6/9/1995         8/14/2002
E-line Czech, s.r.o.                                       Czech Republic         1/24/2000         10/9/2002
emPowerNET, LLC                                            Delaware               3/13/2001          3/8/2002
ENCOAL OPCO, LLC                                           Delaware               2/13/2001         7/15/2002
Energetica Mataro, S.A.                                    Spain                  1/18/2001        10/30/2002
Energetika Chropyne a.s.                                   Czech Republic          2/5/1998         9/20/2002
Enermetrix                                                 Delaware               1/17/1995         5/13/2002
Enrega, S.L.                                               Spain                  11/5/2001        10/30/2002
EoloCrisa, S.L.                                            Spain                 11/10/2000         6/30/2002
EOS PAX I, S.L.                                            Spain                   8/5/1996        10/30/2002
EOS PAX IIa, S.L.                                          Spain                   4/4/1997        10/30/2002
Escambeo, S.L.                                             Spain                 12/21/1999        10/30/2002
Generacion y Abastecimiento de Energia S.L.                Spain                  7/30/2001        10/30/2002
General Eolica Aragonesa, S.A.                             Spain                  6/24/2001        10/30/2002
Intercambio de Derivados Porcinos, S.L.                    Spain                  5/22/2000        10/30/2002
MEAS Brno, a.s.                                            Czech Republic         9/15/1995         5/31/2002
MPI International Limited                                  England                 2/5/1998          7/2/2002
Northeolic Pico Gallo, S.L.                                Spain                  8/18/1999        10/30/2002
PEAS Praha, a.s.                                           Czech Republic        12/13/1994        10/16/2002
Plzenska Energetika a.s.                                   Czech Republic         2/19/1993        12/20/2002
Procrisa Servicios, S.L.                                   Spain                 12/21/2001        10/30/2002
Promociones y Servicios Hidraulicos, S.A.                  Spain                  2/23/1990        10/30/2002
Rubi Tractament Termic Eficient, SA                        Spain                  7/26/1999        10/30/2002
San Gorgonio Westwinds II, LLC                             California            10/13/1998         6/28/2002
San Juan de Bargas Eolica, S.L.                            Spain                  7/10/2001        10/30/2002
Sinergia Andaluza, S.L.                                    Spain                 10/26/2000        10/30/2002
Sinergia Aragonesa, S.L.                                   Spain                 10/28/1999        10/30/2002
SK Invest a.s.                                             Slovakia               6/27/1996         3/31/2002
S-line s.r.o.                                              Slovakia               6/25/1995         5/31/2002
Societat Anonima de Valoritzacions Agroramaderes           Spain                   2/1/2001        10/30/2002
Startekor Investeeringute OU                               Estonia                 7/6/1998         8/31/2002
Teplarna Otrokovice a.s.                                   Czech Republic         4/30/1992         6/30/2002
Tractaments de Juneda, SA                                  Spain                  9/23/1998        10/30/2002
Tratamiento y Generacion de Energia S.L.                   Spain                  7/30/2001        10/30/2002
U-line ZAT                                                 Ukraine                5/16/1997         3/31/2002
Valoritzacions Agroramaderes les Garrigues, S.L.           Spain                  3/14/2000        10/30/2002
Ventoabrego, S.L.                                          Spain                 11/17/1999        10/30/2002
ZAT Dneproline                                             Ukraine                 5/8/1998          9/3/2002

ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS

For the year ended December 31, 2002, there were no acquisitions or sales by any system company of utility assets (in service or under construction) involving a consideration of more than one million dollars.

ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES 

                                                                    Principal Amount
                                                    Name of          or Stated Value
                                                Company Issuing,     ---------------
                       Name of Issuer          Selling, Pledging,              Pledged,                                      Commission
                             and               Guaranteeing, or      Issued   Guaranteed,    Date of                        Authorization
                       Title of Issue         Assuming Securities   and Sold  or Assumed   Transaction  Proceeds           or Exemption
                       --------------         -------------------- ---------  ----------   -----------  --------           ------------
                                                                      (in thousands)                  (in thousands)
PSI

Series 2002A, Indiana Development Finance              PSI        $ 23,000        -         9/12/02    $ 22,885    Rule 52 (See certificate of notification
  Authority Environmental Refunding Revenue                                                                        on form U-6B-2 filed on October 2, 2002.)
  Bonds, due March 1, 2031.

Series 2002B, Indiana Development Finance              PSI        $ 24,600        -         9/12/02      24,502    Rule 52 (See certificate of notification
  Authority Environmental Refunding Revenue                                                                        on form U-6B-2 filed on October 2, 2002.)
  Bonds, due March 1, 2019.

CG&E

2002 Series A Ohio Air Quality Development             CG&E       $ 84,000        -         9/10/02    $ 83,664    Rule 52 (See certificate of notification
  Authority State of Ohio Air Quality                                                                              on form U-6B-2 filed on October 2, 2002.)
  Development Revenue Refunding Bonds,
  due September 1, 2037.

Fixed interest rate of 5.7%, maturing                  CG&E       $500,000        -         9/23/02     496,570    Rule 52 (See certificate of notification
  September 15, 2012.                                                                                              on form U-6B-2 filed on October 2, 2002.)

Ridge Crest

Senior term loan at a fixed interest rate          Ridge Crest    $ 13,750        -         7/17/02    $ 13,750      Section 32(e)
   of 6.97%, maturing on March 15, 2019.

Junior term loan at a fixed interest rate          Ridge Crest    $  7,100        -         7/17/02       7,100      Section 32(e)
  of 6.35%, maturing on March 15, 2012.

ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES 

                                                           Name of Company
                                                              Acquiring,      Number of   Principal                 Extinguished (E) or   Commission
                                                            Redeeming, or       Shares      Amount                   Held for Further    Authorization
                Name of Issuer and Title of Issue        Retiring Securities   Redeemed    Retired    Consideration   Disposition (D)    or Exemption
                ---------------------------------        -------------------   --------    -------    -------------   ---------------    ------------
                                                                                             (in thousands)

PSI

Secured Medium-term Notes
     7.63 % MTN Series A due January 2, 2002                    PSI              -       $ 10,000          -                E              Rule 42

     7.61% MTN Series A due January 7, 2002                     PSI              -         13,000          -                E              Rule 42

Other Long-term Debt
     6.00% Rural Utilities Service Obligation                   PSI              -            979          -                E              Rule 42

Cumulative Preferred Stock, 3.50% Series ($100 Par Value)       PSI             36              4          -                D              Rule 42

CG&E

First Mortgage Bonds:
     7 1/4% Series due September 1, 2002                        CG&E            -        $100,000          -                E              Rule 42

ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES

1.     Securities of investments operating in the retail service area: 

                        Aggregate Amount of
                 Investments in Persons (entities)   Number of
 Name of                Operating in Retail           Persons
 Company              Service Area of Owner         (Entities)             Description of Persons (Entities)
 -------              ---------------------         ----------             ---------------------------------
                         (in thousands)
                                                                  Limited partnerships which own, rehabilitate, and
 CG&E                   $       60                       3        maintain apartment buildings for low income housing.

                                                                  Limited partnerships which invest in small and
 CG&E                          103                       2        minority-or female-owned businessess.

 CG&E                           15                       2        Community improvement fund.

 ULH&P                           3                       2        Economic development.

                                                                  Limited partnership which invests in start-up
 PSI                           525                       1        companies.

                                                                  Limited partnership which invests in significant
 Ventures                    6,242                       1        local development projects.

ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES (Continued)

2.     Securities not included in Item 5, No. 1: 


         Name of                       Name of                  Description             Number of      % of              Nature of                 Owner’s
         Company                        Issuer                  of Security               Shares    Voting Power         Business                 Book Value
         -------                        ------                  -----------               ------    ------------         --------                 ----------
                                                                                                                                                (in thousands)

CG&E                         Ohio Valley Electric Corporation    Common Stock             9,000         9%          Public Utility Company        $   900

                                                                                                                    Shopping Mall in
PSI                          Circle Center Mall                  Limited Partnership        N/A         N/A         Indianapolis, IN                1,979

                                                                                                                    Invests in minority-owned
PSI                          Lynx Capital Corp.                  Stock                       25         4.90%       businesses                        127

                                                                                                                    Invests in energy-related
Ventures                     Nth Power Technology Fund I         Limited partner            N/A         N/A         technology companies            5,404

                                                                                                                    Invests in energy-related
Ventures                     Nth Power Technology Fund II, L.P.  Limited partner            N/A         N/A         technology companies            5,978

                                                                 Convertible                                        Zinc-air fuel cell
Cinergy Ventures II, LLC     Metallic Power, Inc.                Preferred Stock      7,100,578         0.0%        manufacturer                    2,500

                                                                                                                    General Venture
Ventures                     Blue Chip Capital Fund III          Limited Partner            N/A         N/A         Capital Fund                   12,795

                                                                 Convertible                                        Real-time
Ventures                     SmartSynch                          Preferred Stock      4,807,693         0.0%        smart-metering                  3,500

Cinergy Telecommunications   Pantellos                           Preferred Stock        544,206         4.96%       Internet based
Holding Company, Inc.                                                                                               technology company              5,838

Ventures                     Proton Energy Systems               Common Stock            48,349         N/A         Proton exchange membrane
                                                                                                                    (PEM) electrochemical
                                                                                                                    products                          145

Ventures                     Capstone Turbine Corporation        Common Stock            42,408         N/A         Manufacture ultra-low-emission
                                                                                                                    turbine engines with primary
                                                                                                                    applications in the stationary
                                                                                                                    power and vehicular markets        38

ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 2002

PART I 

                                                                                     POSTION HELD AT
   NAME (ADDRESS)                                                                   DECEMBER 31, 2002

   Cinergy

   James E. Rogers (a)                                                          D, CB, P, CEO
   Michael G. Browning (d)                                                      D
   Phillip R. Cox (e)                                                           D
   George C. Juilfs (h)                                                         D
   Thomas E. Petry (j)                                                          D
   Mary L. Schapiro (u)                                                         D
   John J. Schiff, Jr. (k)                                                      D
   Philip R. Sharp (l)                                                          D
   Dudley S. Taft (n)                                                           D
   Michael J. Cyrus (a)                                                         EVP
   R. Foster Duncan (a)                                                         EVP, CFO
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   James L. Turner (a)                                                          EVP
   Theodore R. Murphy II (a)                                                    SVP, CRO
   John Bryant (x)                                                              VP
   J. Joseph Hale, Jr. (a)                                                      VP
   M. Stephen Harkness (a)                                                      VP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, AS
   Timothy J. Verhagen (a)                                                      VP
   Wendy Aumiller (a)                                                           T
   Julie S. Janson (a)                                                          S
   Ronald J. Brothers (b)                                                       AS
   Kimberly S. Carlson (a)                                                      AC

   CC Funding Trust I

   CC Funding Trust I is a business trust formed under the Delaware Business Trust Act effective
   November 27, 2001, which has no officers or directors.

   Cinergy Receivables Company LLC

   James E. Rogers (a)                                                          BM
   Mary S. Stawikey (aaaa)                                                      IM
   Carrie L. Tillman (aaaa)                                                     IM
   M. Stephen Harkness (a)                                                      T
   Bradley C. Arnett (a)                                                        S

   Services

   James E. Rogers (a)                                                          D, CB, P, CEO
   Michael J. Cyrus (a)                                                         D, EVP
   R. Foster Duncan (a)                                                         D, EVP, CFO
   William J. Grealis (a)                                                       D, EVP
   James L. Turner (a)                                                          D, EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Todd W. Arnold (a)                                                           VP
   Russell K. Campbell (a)                                                      VP
   Douglas F. Esamann (d)                                                       VP
   Gregory C. Ficke (a)                                                         VP
   Caryn J. Griffith (a)                                                        VP
   J. Joseph Hale, Jr. (a)                                                      VP
   M. Stephen Harkness (a)                                                      VP
   Ronald R. Jackups (a)                                                        VP
   Gary L. Lavey (a)                                                            VP
   J. Thomas Mason (a)                                                          VP
   Robert C. McCarthy (a)                                                       VP
   Leigh J. Pefley (a)                                                          VP
   John C. Procario (a)                                                         VP
   Barry E. Pulskamp (a)                                                        VP
   Leonard C. Randolph, Jr. (a)                                                 VP
   Bernard F. Roberts (a)                                                       VP, C
   John J. Roebel (a)                                                           VP
   Sherrie N. Rutherford (a)                                                    VP
   Steven E. Schrader (a)                                                       VP
   James L. Stanley (a)                                                         VP
   John P. Steffen (a)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   William F. Tyndall (a)                                                       VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Timothy J. Verhagen (a)                                                      VP
   Arturo Vivar (v)                                                             VP
   Patricia K. Walker (a)                                                       VP
   P. Craig Weida (a)                                                           VP
   James H. Willis (a)                                                          VP
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Ronald J. Brothers (b)                                                       AS
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CG&E

   James E. Rogers (a)                                                          D, CB, CEO
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L. Turner (a)                                                          D, VP
   Gregory C. Ficke (a)                                                         P
   Wendy L. Aumiller (a)                                                        T
   Michael J. Cyrus (a)                                                         EVP
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Jerome A. Vennemann (a)                                                      VP, GC, S
   J. Joseph Hale, Jr. (a)                                                      VP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Power Investments, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bernard F. Roberts (a)                                                       VP, C
   Joseph W. Toussaint (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   CPI Allowance Management, LLC

   James E. Rogers (a)                                                          BM
   Michael J. Cyrus (a)                                                         BM, P
   R. Foster Duncan (a)                                                         BM, EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S, GC
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CPI Investments, LLC

   James E. Rogers (a)                                                          BM
   R. Foster Duncan (a)                                                         BM
   Andrew Panaccione (aaaa)                                                     BM
   Michael G. Morgan (aaaa)                                                     P
   Jerome A. Vennemann (a)                                                      S

   ULH&P

   James E. Rogers (a)                                                          D, CB, CEO
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L. Turner (a)                                                          D, VP
   Gregory C. Ficke (a)                                                         P
   Wendy L. Aumiller (a)                                                        T
   Michael J. Cyrus (a)                                                         EVP
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   J. Joseph Hale, Jr. (a)                                                      VP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Tri-State Improvement Company

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L. Turner (a)                                                          D
   Gregory C. Ficke (a)                                                         P
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Kimberly S. Carlson (a)                                                      AC

   Lawrenceburg

   James E. Rogers (a)                                                          D, CB, CEO
   Vincent E. Andres (a)                                                        D
   Bernard L. Huff (a)                                                          D
   Gregory C. Ficke (a)                                                         P
   Wendy L. Aumiller (a)                                                        T
   J. Joseph Hale, Jr. (a)                                                      VP
   Michael J. Cyrus (a)                                                         EVP
   R. Foster Duncan (a)                                                         EVP, CFO
   Marc E. Manly (a)                                                            EVP, CLO
   William J. Grealis (a)                                                       EVP
   Frederick J. Newton III (a)                                                  EVP, CAO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Bernard F. Roberts (a)                                                       VP, C
   Ronald R. Reising (a)                                                        VP
   James L. Turner (a)                                                          VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Ronald J. Brothers (b)                                                       AS
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Miami Power Corporation

   James E. Rogers (a)                                                          D, CB, CEO
   Vincent E. Andres (a)                                                        D
   Bernard L. Huff (a)                                                          D
   Gregory C. Ficke (a)                                                         P
   Wendy L. Aumiller (a)                                                        T
   Michael J. Cyrus (a)                                                         EVP
   R. Foster Duncan (a)                                                         EVP, CFO
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   J. Joseph Hale, Jr. (a)                                                      VP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   James L. Turner (a)                                                          VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Ronald J. Brothers (b)                                                       AS
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   KO Transmission

   James E. Rogers (a)                                                          D, CB, CEO
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L. Turner (a)                                                          D, VP
   Gregory C. Ficke (a)                                                         P
   Michael J. Cyrus (a)                                                         EVP
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton III (a)                                                  EVP, CAO
   J. Joseph Hale, Jr. (a)                                                      VP
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Wendy L. Aumiller (a)                                                        T
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   PSI

   James E. Rogers (a)                                                          D, CB, CEO
   Michael G. Browning (d)                                                      D
   Michael J. Cyrus (a)                                                         EVP
   Douglas F. Esamann (d)                                                       D, P
   R. Foster Duncan (a)                                                         EVP, CFO
   William J. Grealis (a)                                                       EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Frederick J. Newton, III (a)                                                 EVP, CAO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   J. Joseph Hale, Jr. (a)                                                      VP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   James L. Turner (a)                                                          VP
   Jerome A. Vennemann (a)                                                      VP, GC, AS
   Julie S. Janson (a)                                                          S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Ronald J. Brothers (b)                                                       AS
   John B. Scheidler (b)                                                        AS

   South Construction Company, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CEO
   Douglas F. Esamann (d)                                                       D, P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS
   John B. Scheidler (b)                                                        AS

   Investments

   James E. Rogers (a)                                                          D, CB, P, CEO
   Michael J. Cyrus (a)                                                         D, EVP
   R. Foster Duncan (a)                                                         D, EVP, CFO
   William J. Grealis (a)                                                       D
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy-Cadence, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   William J. Grealis (a)                                                       D
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cadence Network

   Donald B. Ingle, Jr. (a)                                                     D
   Janice B. Case (sss)                                                         D
   Jeff Lieberman (rrr)                                                         D
   Glenn Osmond (ttt)                                                           D
   Doug Jaeger (uuu)                                                            D
   Madeleine Ludlow (e)                                                         D, P, CEO
   Jeffrey Hart (e)                                                             CIO
   Peter McKnight (e)                                                           VP, C

   Capital & Trading

   James E. Rogers (a)                                                          D, CB, CEO
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Douglas C. Taylor (a)                                                        VP
   Joseph W. Toussaint (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Brownsville Power I, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      COO, CFO, VP
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Julie S. Janson (a)                                                          AS
   Wendy L. Aumiller (a)                                                        T

   Caledonia Power I, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      COO, CFO, VP
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       C, VP
   Jerome A. Vennemann (a)                                                      S, VP
   Julie S. Janson (a)                                                          AS
   Wendy L. Aumiller (a)                                                        T

   CinCap-Chippewa, LLC

   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       C, VP
   Jerome A. Vennemann (a)                                                      S, VP
   Julie S. Janson (a)                                                          AS
   Wendy L. Aumiller (a)                                                        T

   CinCap-Martinsville, LLC

   Michael J. Cyrus (a)                                                         P
   Wendy L. Aumiller (a)                                                        T
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Bernard F. Roberts (a)                                                       C, VP
   Jerome A. Vennemann (a)                                                      S, VP
   Julie S. Janson (a)                                                          AS

   CinCap-Oraville, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Bernard F. Roberts (a)                                                       C, VP
   Jerome A. Vennemann (a)                                                      S, VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   CinCap IV, LLC

   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinCap V, LLC

   James E. Rogers (a)                                                          BM
   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinCap VIII

   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinCap VII, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Jerome A. Vennemann (a)                                                      VP, S
   Bernard F. Roberts (a)                                                       VP, C
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   CinCap Madison, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinCap IX, LLC

   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinCap X, LLC

   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CinPower I, LLC

   James E. Rogers (a)                                                          CM
   Michael J. Cyrus (a)                                                         P
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Canada, Inc.

   Michael J. Cyrus (a)                                                         D, P
   Clifford D. Johnson (iii)                                                    D
   Randall F. Bevis (v)                                                         VP, GC, AS
   John S. Daly (v)                                                             VP
   R. Foster Duncan (a)                                                         VP
   L.D. Hollingsworth (v)                                                       VP
   Robert C. McCarthy (a)                                                       EVP, CRO
   Douglas N. Schantz (v)                                                       VP
   Thomas K. Strickland (v)                                                     VP
   Bruce A. Sukaly (v)                                                          VP
   Joseph W. Toussaint (a)                                                      EVP
   M. Stephen Harkness (a)                                                      VP, CFO, COO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC

   Cinergy Limited Holdings, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Joseph W. Toussaint (a)                                                      EVP
   Bruce A. Sukaly (v)                                                          SVP
   John S. Daly (v)                                                             VP
   Douglas N. Schantz (v)                                                       VP
   M. Stephen Harkness (a)                                                      VP, CFO
   Randall F. Bevis (v)                                                         VP, GC, AS
   Robert C. McCarthy (a)                                                       VP, CRO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Douglas C. Taylor (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Marketing & Trading

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Joseph W. Toussaint (a)                                                      EVP
   Bruce A. Sukaly (v)                                                          SVP
   John S. Daly (v)                                                             VP
   Douglas N. Schantz (v)                                                       VP
   M. Stephen Harkness (a)                                                      VP, CFO
   Randall F. Bevis (v)                                                         VP, GC, AS
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Douglas C. Taylor (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Thomas K. Strickland (v)                                                     VP

   Ohio River Valley Propane, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP, CFO
   Joseph W. Toussaint (a)                                                      EVP
   Randall F. Bevis (v)                                                         VP, GC, AS
   John S. Daly (v)                                                             VP
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Douglas N. Schantz (v)                                                       VP
   Bruce A. Sukaly (v)                                                          SVP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Thomas K. Strickland (v)                                                     VP
   Douglas C. Taylor (a)                                                        VP

   Cinergy General Holdings, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Joseph W. Toussaint (a)                                                      EVP
   Bruce A. Sukaly (v)                                                          SVP
   John S. Daly (v)                                                             VP
   Douglas N. Schantz (v)                                                       VP
   M. Stephen Harkness (a)                                                      VP, CFO
   Randall F. Bevis (v)                                                         VP, GC, AS
   Robert C. McCarthy (a)                                                       VP, CRO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Douglas C. Taylor (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Cinergy Retail Power Limited, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   Joseph W. Toussaint (a)                                                      VP
   Douglas N. Schantz (v)                                                       VP
   Bruce A. Sukaly (v)                                                          VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP, CRO
   Douglas C. Taylor (a)                                                        VP
   Jerome A. Vennemann (a)                                                      VP, S
   Bernard F. Roberts (a)                                                       VP, C
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS
   Wendy L. Aumiller (a)                                                        T

   Cinergy Retail Power, L.P.

   Cinergy Retail Power, L.P. management is controlled by Cinergy Retail Power General, Inc.  Refer to
   Cinergy Retail Power General, Inc. for a list of officers and directors.

   Cinergy Retail Power General, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Joseph W. Toussaint (a)                                                      VP
   Douglas N. Schantz (v)                                                       VP
   Bruce A. Sukaly (v)                                                          VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP, CRO
   Douglas C. Taylor (a)                                                        VP
   Jerome A. Vennemann (a)                                                      VP, S
   Bernard F. Roberts (a)                                                       VP, C
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS
   Wendy L. Aumiller (a)                                                        T

   CinFuel Resources, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Douglas C. Taylor (a)                                                        VP
   Joseph W. Toussaint (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   LH1, LLC

   James E. Rogers (a)                                                          BM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   M. Stephen Harkness (a)                                                      CEO
   James R. Lance (a)                                                           CFO, C
   Jerome A. Vennemann (a)                                                      S
   Barry E. Pulskamp (a)                                                        COO

   Oak Mountain Products, LLC

   James E. Rogers (a)                                                          BM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   M. Stephen Harkness (a)                                                      CEO
   James R. Lance (a)                                                           CFO, C
   Barry E. Pulskamp (a)                                                        COO

   Cinergy Transportation, LLC

   Michael J. Cyrus (a)                                                         P
   Randall F. Bevis (v)                                                         VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   R. Foster Duncan (a)                                                         EVP
   Robert C. McCarthy (a)                                                       VP
   Joseph W. Toussaint (a)                                                      VP
   Rodney W. Husk (a)                                                           VP
   Barry E. Pulskamp (a)                                                        VP
   John J. Roebel (a)                                                           VP
   Bruce A. Sukaly (v)                                                          VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   SYNCAP II, LLC

   Michael J. Cyrus (a)                                                         P
   Robert C. McCarthy (a)                                                       VP
   J. Thomas Mason (a)                                                          VP
   Daniel L. Rimstidt (a)                                                       VP
   Bernard F. Roberts (a)                                                       C
   Wendy L. Aumiller (a)                                                        T
   Jerome A. Vennemann (a)                                                      S
   Douglas C. Taylor (a)                                                        AS

   Cinergy Telecommunications Holding Company, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Michael J. Cyrus (a)                                                         D
   Felicia A. Ferguson (a)                                                      VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Q-Comm Corporation

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D, P
   John C. Greenbank (qqq)                                                      D, EVP
   Cole Hawks (ppp)                                                             S
   Donald B. Ingle, Jr. (a)                                                     D
   Brian Stallman (a)                                                           D
   Lohn Weber (ppp)                                                             VP, CFO, T
   Allen Walbert III (ppp)                                                      VP

   QCC, Inc.

   Albert E. Cinelli (ppp)                                                      D, P
   John P. Cinelli (qqq)                                                        D
   Tom Shearer (ppp)                                                            D, EVP
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Robert A. Bye (ppp)                                                          S

   Cinergy Communications Company

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D, P
   Lohn H. Weber (ppp)                                                          D, CFO, VP, T
   Pat Heck (qqq)                                                               VP
   Marc Rouleau (qqq)                                                           VP
   John Johnson (qqq)                                                           VP
   Allen Walbert III (ppp)                                                      VP
   Robert A. Bye (ppp)                                                          VP, S

   Kentucky Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D, P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Cole Hawks (ppp)                                                             S, EVP

   KDL Holdings, LLC

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D, P
   John C. Greenbank (qqq)                                                      D
   Evelyn Echerarria (hhh)                                                      D
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Robert A. Bye (ppp)                                                          S

   Cinergy Telecommunication Networks - Indiana, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D, P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Cole Hawks (ppp)                                                             S

   Cinergy Telecommunication Networks - Ohio, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D, P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Cole Hawks (ppp)                                                             S

   Indianapolis Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Lexington Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Louisville Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Cincinnati Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Chattanooga Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Knoxville Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Memphis Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Nashville Data Link, Inc.

   Albert E. Cinelli (ppp)                                                      D
   John P. Cinelli (qqq)                                                        D
   John C. Greenbank (qqq)                                                      D
   Jim Collins (qqq)                                                            P
   Lohn H. Weber (ppp)                                                          CFO, VP, T
   Allen Walbert III (ppp)                                                      VP
   Anthony J. Candelario (ppp)                                                  S

   Lattice Communications, LLC

   Felicia A. Ferguson (a)                                                      D
   Donald B. Ingle, Jr. (a)                                                     D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   LB Tower Company, LLC

   R. Dean Meiszer (vvv)                                                        P, CEO
   Stephen E. Kaufmann (vvv)                                                    CFO, AS
   Mark C. Bissinger (www)                                                      S
   Lattice Communications, LLC (vvv)                                            MM

   Cinergy Engineering, Inc.

   Russell K. Campbell (a)                                                      D
   James E. Rogers (a)                                                          D
   John C. Procario (a)                                                         D
   Barry E. Pulskamp (a)                                                        D
   John J. Roebel (a)                                                           D
   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       C
   Wendy L. Aumiller (a)                                                        T
   Jerome A. Vennemann (a)                                                      S

   Cinergy-Centrus, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   William J. Grealis (a)                                                       D
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy-Centrus Communications, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   William J. Grealis (a)                                                       D
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Solutions Holding

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   3036243 Nova Scotia Company

   Michael J. Cyrus (a)                                                         D, P
   Leland D. Smith III (a)                                                      D
   Jerome A. Vennemann (a)                                                      D, S
   Ronald R. Reising (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T

   Cinergy Solutions Limited Partnership

   Cinergy Solutions Limited Partnership management is controlled by 1388368 Ontario Inc.  Refer to
   1388368 Ontario Inc. for a list of officers and directors.

   1388368 Ontario Inc.

   David M. Armstrong (a)                                                       D
   Michael J. Cyrus (a)                                                         D

   Vestar, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP
   Michael J. Cyrus (a)                                                         D, CEO
   Leland D. Smith (a)                                                          P
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Anna M. Allen (a)                                                            CFO
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Vestar Limited

   David M. Armstrong (a)                                                       D
   Michael J. Cyrus (a)                                                         D
   Leland D. Smith (a)                                                          P, CEO
   R. Foster Duncan (a)                                                         VP
   Jerome A. Vennemann (a)                                                      S
   Anna M. Allen (a)                                                            CFO
   Wendy L. Aumiller (a)                                                        T

   Keen Rose Technology Group Limited

   David M. Armstrong (a)                                                       D
   Michael J. Cyrus (a)                                                         D
   Leland D. Smith (a)                                                          P, CEO
   R. Foster Duncan (a)                                                         VP
   Jerome A. Vennemann (a)                                                      S
   Anna M. Allen (a)                                                            CFO
   Wendy L. Aumiller (a)                                                        T

   Optimira Controls, Inc.

   Jeffrey Volkers (a)                                                          D, P
   David M. Armstrong (a)                                                       D
   Michael J. Cyrus (a)                                                         D
   Leland D. Smith (a)                                                          CEO
   R. Foster Duncan (a)                                                         VP
   Jerome A. Vennemann (a)                                                      S
   Anna M. Allen (a)                                                            CFO
   Wendy L. Aumiller (a)                                                        ACT

   Cinergy EPCOM

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Ronald J. Brothers (b)                                                       AS
   Julie S. Janson (a)                                                          AS

   Cinergy EPCOM College Park, LLC

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Ronald J. Brothers (b)                                                       AS
   Julie S. Janson (a)                                                          AS

   Solutions

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, CEO
   R. Foster Duncan (a)                                                         D, EVP
   M. Stephen Harkness (a)                                                      P, COO
   Charles M. O'Donnell (a)                                                     VP
   Donna L. Robichaud (a)                                                       VP
   Allan S. Sears (a)                                                           VP
   Jeremiah J. Sullivan (b)                                                     VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS
   Ronald J. Brothers (b)                                                       AS

   BSPE Holdings, LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Powell (jjjj)                                                       AR
   Kevin Casey (s)                                                              AR

   BSPE Limited, LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Powell (jjjj)                                                       AR
   Kevin Casey (s)                                                              AR

   BSPE, L.P.

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Powell (jjjj)                                                       AR
   Kevin Casey (s)                                                              AR

   BSPE General, LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Powell (jjjj)                                                       AR
   Kevin Casey (s)                                                              AR

   Cinergy Energy Solutions, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, CEO
   R. Foster Duncan (a)                                                         D, EVP
   Donald R. Snider (a)                                                         P, COO
   Charles M. O'Donnell (a)                                                     VP
   Donna L. Robichaud (a)                                                       VP
   Allan S. Sears (a)                                                           VP
   Jeremiah J. Sullivan (b)                                                     VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Ronald J. Brothers (b)                                                       AS
   Julie J. Janson (a)                                                          AS

   U.S. Energy Biogas Corporation

   Goran Mornhed (hhhh)                                                         D, CB
   Frank Fitzgerald (f)                                                         D, T
   Henry Schneider (hhhh)                                                       D
   Barbara Farr (hhhh)                                                          D, S
   Richard J. Augustine (hhhh)                                                  P
   Mary Lou Kachnowski (hhhh)                                                   AS
   Steve Laliberty (kk)                                                         VP
   Howard Nevins (jj)                                                           CEO
   Donald R. Snider (a)                                                         D, VP

   Biogas Financial Corporation

   Richard J. Augustine (hhhh)                                                  D, P
   Howard Nevins (jj)                                                           D
   Donald R. Snider (a)                                                         D
   Steve Laliberty (kk)                                                         VP
   Frank Fitzgerald (f)                                                         T
   Barbara Farr (hhhh)                                                          S
   Mary Lou Kachnowski (hhhh)                                                   AS

   ZFC Energy Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Power Generation (Suffolk), Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Suffolk Energy Partners, L.P.

   Suffolk Energy Partners, L.P. is general partner managed and has no officers or directors.

   Suffolk Biogas, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Lafayette Energy Partners, L.P.

   Lafayette Energy Partners, L.P. is general partner managed and has no officers or directors.

   Taylor Energy Partners, L.P.

   Taylor Energy Partners, L.P. is general partner managed and has no officers or directors.

   Resources Generating Systems, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Illinois Electrical Generation Partners, L.P.

   Illinois Electrical Partners, L.P. is general partner managed and has no officers or directors.

   Avon Energy Partners, L.L.C.

   Avon Energy Partners, L.L.C. is manager-managed and has no officers or directors.

   Zapco Illinois Energy, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Devonshire Power Partners, L.L.C.

   Devonshire Power Partners, L.L.C. is manager-managed and has no officers or directors.

   Riverside Resources Recovery, L.L.C.

   Riverside Resources Recovery, L.L.C. is manager-managed and has no officers or directors.

   Illinois Electrical Generation Partners II L.P.

   Ilinois Electrical Generation Partners II L.P. is general partner managed and has no officers or
   directors.

   BMC Energy, LLC

   BMC Energy, L.L.C. is manager-managed and has no officers or directors.

   Brookhaven Energy Partners, LLC

   Brookhaven Energy Partners, LLC is manager-managed and has no officers or directors.

   Countryside Genco, L.L.C.

   Countryside Genco, L.L.C. is manager-managed and has no officers or directors.

   Morris Genco, L.L.C.

   Morris Genco, L.L.C. is manager-managed and has no officers or directors.

   Brickyard Energy Partners, LLC

   Brickyard Energy Partners, LLC is manager-managed and has no officers or directors.

   Dixon/Lee Energy Partners, LLC

   Dixon/Lee Energy Partners, LLC is manager-managed and has no officers or directors.

   Roxanna Resource Recovery, L.L.C.

   Roxanna Resource Recovery, L.L.C. is manager-managed and has no officers or directors.

   Streator Energy Partners, LLC

   Streator Energy Partners, LLC is manager-managed and has no officers or directors.

   Upper Rock Energy Partners, LLC

   Upper Rock Energy Partners, LLC is manager-managed and has no officers or directors.

   Hoffman Road Energy Partners, LLC

   Hoffman Road Energy Partners, LLC is manager-managed and has no officers or directors.

   Barre Energy Partners, L.P.

   Barre Energy Partners, L.P. is general partner managed and has no officers or directors.

   Biomass New Jersey, L.L.C.

   Biomass New Jersey, L.L.C. is manager-managed and has no officers or directors.

   Brown County Energy Associates, LLC

   Brown County Energy Associates, LLC is manager-managed and has no officers or directors.

   Burlington Energy, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Cape May Energy Associates, L.P.

   Cape May Energy Associates, L.P. is general partner managed and has no officers or directors.

   Dunbarton Energy Partners, Limited Partnership

   Dunbarton Energy Partners, Limited Partnership is general partner managed and has no officers or
   directors.

   Garland Energy Development, LLC

   Garland Energy Development, LLC is manager-managed and has no officers or directors.

   Oceanside Energy Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Onondaga Energy Partners, L.P.

   Onondaga Energy Partners, L.P. is general partner managed and has no officers or directors.

   Oyster Bay Energy Partners, L.P.

   Oyster Bay Energy Partners, L.P. is general partner managed and has no officers or directors.

   Smithtown Energy Partners, L.P.

   Smithtown Energy Partners, L.P. is general partner managed and has no officers or directors.

   Springfield Energy Associates, Limited Partnership

   Springfield Energy Associates, Limited Partnership is general partner managed and has no officers or
   directors.

   Suffolk Transmission Partners, L.P.

   Suffolk Transmission Partners, L.P. is general partner managed and has no officers or directors.

   Tucson Energy Partners LP

   Tucson Energy Partners LP is general partner managed and has no officers or directors.

   Zapco Broome Nanticoke Corp.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Zapco Development Corporation

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Zapco Energy Tactics Corporation

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Zapco Readville Cogeneration, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   ZFC Royalty Partners, A Connecticut Limited Partnership

   ZFC Royalty Partners, A Connecticut Limited Partnership is general partner managed and has no
   officers or directors.

   ZMG, Inc.

   Refer to Biogas Financial Corporation for a list of officers and directors.

   Cinergy GASCO Solutions, LLC

   Michael J. Cyrus (a)                                                         CEO
   M. Stephen Harkness (a)                                                      P, COO
   R. Foster Duncan (a)                                                         EVP, CFO
   Charles M. O'Donnell (a)                                                     VP
   Donna L. Robichaud (a)                                                       VP
   Allan S. Sears (a)                                                           VP
   Jeremiah J. Sullivan (b)                                                     VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Ronald J. Brothers (b)                                                       AS
   Julie S. Janson (a)                                                          AS

   Countryside Landfill Gasco., L.L.C.

   Countryside Landfill Gasco., L.L.C. is manager-managed and has no officers or directors.

   Morris Gasco, L.L.C.

   Morris Gasco, L.L.C. is manager-managed and has no officers or directors.

   Brown County Landfill Gas Associates, L.P.

   Brown County Landfill Gas Associates, L.P. is general partner managed and has no officers or
   directors.

   Cinergy Solutions of Boca Raton, LLC

   Michael J. Cyrus (a)                                                         CEO
   M. Stephen Harkness (a)                                                      P, COO
   R. Foster Duncan (a)                                                         EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jeremiah J. Sullivan (b)                                                     VP
   Raymond J. McCaffrey (o)                                                     VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Solutions Operating Services of Lansing, LLC

   Donald R. Snider (a)                                                         P, COO
   Drew Rankin (a)                                                              VP
   Jerome A. Vennemann (a)                                                      S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Cinergy Solutions Operating Services of Shreveport, LLC

   Donald R. Snider (a)                                                         P, COO
   David A. Ledonne (s)                                                         VP
   Jerome A. Vennemann (a)                                                      S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Cinergy Solutions Operating Services of Oklahoma, LLC

   Donald R. Snider (a)                                                         P, COO
   David A. Ledonne (s)                                                         VP
   Jerome A. Vennemann (a)                                                      S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS

   Cinergy Solutions of Philadelphia, LLC

   Michael J. Cyrus (a)                                                         CEO
   M. Stephen Harkness (a)                                                      P, COO
   R. Foster Duncan (a)                                                         EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jeremiah J. Sullivan (b)                                                     VP
   Raymond J. McCaffrey (o)                                                     VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Solutions Partners, LLC

   Cinergy Solutions Partners is member-managed and does not have officers.  It is managed by Cinergy
   Solutions, Inc.  Refer to Cinergy Solutions, Inc. for a list of officers and directors.

   CST Limited, LLC

   Michael J. Cyrus (a)                                                         CEO
   Donald R. Snider (a)                                                         P, COO
   R. Foster Duncan (a)                                                         EVP, CFO
   G. Roger Daniel (a)                                                          VP
   Bernard F. Roberts (a)                                                       VP, C
   David A. Ledonne (s)                                                         VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CST Green Power, L.P.

   CST Green Power, L.P. management is controlled by CST General, LLC.  Refer to CST General, LLC for a
   list of officers and directors.

   Green Power Holdings, LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Ledonne (s)                                                         AR
   Kevin Casey (v)                                                              AR
   Stephen J. Ridlington (jjjj)                                                 AR
   Mervyn S. Wright (jjjj)                                                      AR

   Green Power Limited, LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Ledonne (s)                                                         AR
   Kevin Casey (v)                                                              AR
   Stephen J. Ridlington (jjjj)                                                 AR
   Mervyn S. Wright (jjjj)                                                      AR

   South Houston Green Power, L.P.

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Ledonne (s)                                                         AR
   Kevin Casey (v)                                                              AR
   Stephen J. Ridlington (jjjj)                                                 AR
   Mervyn S. Wright (jjjj)                                                      AR

   Green Power G.P., LLC

   M. Stephen Harkness (a)                                                      AR
   G. Roger Daniel (a)                                                          AR
   David A. Ledonne (s)                                                         AR
   Kevin Casey (v)                                                              AR
   Stephen J. Ridlington (jjjj)                                                 AR
   Mervyn S. Wright (jjjj)                                                      AR

   CST General, LLC

   Michael J. Cyrus (a)                                                         CEO
   Donald R. Snider (a)                                                         VP, COO
   R. Foster Duncan (a)                                                         EVP, CFO
   G. Roger Daniel (a)                                                          VP
   Timothy B. Ferguson (a)                                                      VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David A. Ledonne (s)                                                         VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CSGP of Southeast Texas, LLC

   Michael J. Cyrus (a)                                                         CEO
   Barry E. Pulskamp (a)                                                        P, COO
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, CFO
   David A. Ledonne (s)                                                         VP
   Bernard F. Roberts (a)                                                       VP, C
   G. Roger Daniel (a)                                                          VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CSGP Limited, LLC

   Michael J. Cyrus (a)                                                         CEO
   R. Foster Duncan (a)                                                         EVP
   M. Stephen Harkness (a)                                                      VP, CFO
   Barry E. Pulskamp (a)                                                        P, COO
   G. Roger Daniel (a)                                                          VP
   David A. Ledonne (s)                                                         VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Bernard F. Roberts (a)                                                       VP, C
   Kimberly S. Carlson (a)                                                      AC

   CSGP Services, L.P.

   CSGP Services, L.P. management is controlled by CSGP General, LLC.  Refer to CSGP General, LLC for a
   list of officers and directors.

   CSGP General, LLC

   Michael J. Cyrus (a)                                                         CEO, P
   R. Foster Duncan (a)                                                         EVP
   Donald R. Snider (a)                                                         VP, COO, CFO
   David A. Ledonne (s)                                                         VP
   Bernard F. Roberts (a)                                                       VP, C
   G. Roger Daniel (a)                                                          VP
   Timothy B. Ferguson (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Lansing Grand River Utilities, LLC

   M. Stephen Harkness (a)                                                      P, COO
   Michael J. Cyrus (a)                                                         CEO
   R. Foster Duncan (a)                                                         EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jeremiah J. Sullivan (b)                                                     VP
   Jerome A. Vennemann (a)                                                      VP, S
   Raymond J. McCaffrey (o)                                                     VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Oklahoma Arcadian Utilities, LLC

   M. Stephen Harkness (a)                                                      CM
   John T. Lucey, Jr. (aaa)                                                     VCM
   Charles M. O'Donnell (a)                                                     BM
   Dennis A. Faust (aaa)                                                        BM
   Chibby Alloway (aaa)                                                         BM
   Wilfrid Petrie (ccc)                                                         BM
   Julie S. Janson (a)                                                          S
   Wendy L. Aumiller (a)                                                        T
   James J. Howard (nn)                                                         VP

   Shreveport Red River Utilities, LLC

   M. Stephen Harkness (a)                                                      BM
   John T. Lucey, Jr. (aaa)                                                     BM, VP
   Charles M. O'Donnell (a)                                                     BM, VP
   Dennis A. Faust (aaa)                                                        BM
   Robert W. Dohoney (aaa)                                                      BM
   Donald R. Snider (a)                                                         BM, P
   Charles Beacom (qq)                                                          VP
   Jerome A. Vennemann (a)                                                      S
   Julie S. Janson (a)                                                          AS
   Timothy R. Dunne (w)                                                         AS
   Wendy L. Aumiller (a)                                                        T

   Cinergy Solutions of Tuscola, Inc.

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Douglas F. Esamann (d)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Wendy L. Aumiller (a)                                                        T
   Jerome A. Vennemann (a)                                                      VP, S
   Julie S. Janson (a)                                                          AS
   Kimberly S. Carlson (a)                                                      AC

   Delta Township Utilities, LLC

   Donald R. Snider (a)                                                         VCM, P, CEO
   Werner E. Schattner (w)                                                      CM, EVP, COO
   M. Stephen Harkness (a)                                                      BM
   James E. Rogers (a)                                                          BM
   Michael J. Cyrus (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachael W. Kilpatrick (w)                                                    BM
   Charles M. O'Donnell (a)                                                     VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Energy Equipment Leasing LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Dennis Haines (w)                                                            AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Timothy B. Ferguson (a)                                                      P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Ashtabula LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, VP, AS
   Rachel W. Kilpatrick (w)                                                     BM, VP, T
   Donald R. Snider (a)                                                         P, CEO
   Kevin L. Hooker (a)                                                          VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Baltimore LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Charles L. Abbott (bbb)                                                      VP
   Donald R. Snider (a)                                                         P, CEO
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S
   Michelle Adams (bbb)                                                         AT
   Wendy L. Aumiller (a)                                                        AT
   Bruce McCormick (bbb)                                                        AT

   Trigen-Cinergy Solutions of Boca Raton, LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Kurt Vatsvog (a)                                                             VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Cincinnati LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Kevin A. Bright (a)                                                          VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of College Park, LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS, VP
   Rachel W. Kilpatrick (w)                                                     BM, T, VP
   Charles L. Abbott (bbb)                                                      VP
   Donald R. Snider (a)                                                         P, CEO
   Bruce McCormick (bbb)                                                        AT
   Michelle Adams (bbb)                                                         AT
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S
   David Seitzinger (pp)                                                        VP

   Trigen-Cinergy Solutions of Lansing LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen/Cinergy - USFOS of Lansing LLC

   Jerome A. Vennemann (a)                                                      S
   John T. Lucey, Jr. (aaa)                                                     COO
   Charles M. O'Donnell (a)                                                     VP
   Don Morgan (r)                                                               VP
   Donald R. Snider (a)                                                         CEO

   Trigen-Cinergy Solutions of Orlando LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Craig M. Conner (a)                                                          VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Owings Mills LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Charles L. Abbott (bbb)                                                      VP
   Donald R. Snider (a)                                                         P, CEO
   Bruce McCormick (bbb)                                                        AT
   Michele Adams (bbb)                                                          AT
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Owings Mills Energy Equipment Leasing, LLC

   Werner E. Schattner (w)                                                      CM,EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Charles L. Abbott (bbb)                                                      VP
   Donald R. Snider (a)                                                         P, CEO
   Bruce McCormick (bbb)                                                        AT
   Michele Adams (bbb)                                                          AT
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Rochester LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   James E. Rogers (a)                                                          VCM
   Rachel W. Kilpatrick (w)                                                     BM, T
   Timothy R. Dunne (w)                                                         BM, AS
   Donald R. Snider (a)                                                         P, CEO
   Robert C. Hochstetler (c)                                                    VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of Silver Grove LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Eric Sears (a)                                                               VP
   Kevin A. Bright (a)                                                          VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of San Diego LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of the Southeast LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Trigen-Cinergy Solutions of St. Paul LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S
   David Seitzinger (w)                                                         VP

   Environmental Wood Supply, LLC

   John D. Taylor (iiii)                                                        BG
   Donald R. Snider (a)                                                         BG
   Market Street Energy Company, LLC (iiii)                                     ME
   Trigen-Cinergy Solutions of St. Paul LLC (a)                                 ME

   St. Paul Cogeneration LLC

   John D. Taylor (iiii)                                                        BG
   Donald R. Snider (a)                                                         BG
   Market Street Energy Company, LLC (iiii)                                     ME
   Trigen-Cinergy Solutions of St. Paul LLC (a)                                 ME

   Trigen-Cinergy Solutions of Tuscola, LLC

   Werner E. Schattner (w)                                                      CM, EVP, COO
   James E. Rogers (a)                                                          VCM
   Michael J. Cyrus (a)                                                         BM
   R. Foster Duncan (a)                                                         BM
   Timothy R. Dunne (w)                                                         BM, AS
   Rachel W. Kilpatrick (w)                                                     BM, T
   Donald R. Snider (a)                                                         P, CEO
   Scott A. Abramson (t)                                                        VP
   Wendy L. Aumiller (a)                                                        AT
   Julie S. Janson (a)                                                          AS
   Jerome A. Vennemann (a)                                                      S

   Cinergy Supply Network, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   William J. Grealis (a)                                                       D
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Reliant

   Carl Chapman (xxx)                                                           VCM
   Michelle Davis (uu)                                                          BM
   Felicia A. Ferguson (a)                                                      CM
   Donald B. Ingle, Jr. (a)                                                     BM
   Richard Lynch (xxx)                                                          BM
   Eric Robeson (xxx)                                                           BM
   Dale R. Miller (zzz)                                                         P
   Douglas S. Banning, Jr. (zzz)                                                VP, CFO, AS
   Jerome A. Vennemann (a)                                                      S
   Julie S. Janson (a)                                                          AS

   MP Acquisitions Corp., Inc.

   Dale R. Miller (zzz)                                                         D, P
   Douglas S. Banning, Jr. (zzz)                                                D, VP, T, S

   Miller Pipeline

   Dale R. Miller (zzz)                                                         CB, CEO
   Douglas S. Banning, Jr. (zzz)                                                D, EVP, CFO, S
   David D. Watters (zzz)                                                       P, COO
   Kevin G. Miller (zzz)                                                        SVP
   Mark R. Wallbom (zzz)                                                        SVP
   Jeff Sheffield (zzz)                                                         C

   Fiber Link, LLC

   Reliant Services, LLC (vvv)                                                  M

   Technology

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, P
   William J. Grealis (a)                                                       D
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Global Resources

   James E. Rogers (a)                                                          D, CEO
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   David L. Wozny (a)                                                           D, VP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Hugh C. Hamilton (x)                                                         AS
   Julie S. Janson (a)                                                          AS
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S

   Cinergy UK, Inc.

   James E. Rogers (a)                                                          D, CEO
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   David L. Wozny (a)                                                           VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Global Power

   James E. Rogers (a)                                                          D, CEO
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   David L. Wozny (a)                                                           D, VP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Edward M. Timmins (x)                                                        VP
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   CGP Global Greece Holdings, SA

   Gerassimos Petros Antonios Michael Contomichalos (x)                         D
   Derek J. Spencer (oo)                                                        D
   David L. Wozny (a)                                                           D

   Attiki Denmark ApS

   John Bryant (x)                                                              D
   David L. Wozny (a)                                                           D
   Charles J. Winger (a)                                                        D
   Poul Lund Christensen (hh)                                                   D
   Lars Erik Clausen (hh)                                                       D
   Michael Jorgensen (hh)                                                       D
   Erik Klingert (hh)                                                           D

   Attiki Gas Supply Company SA

   Christos Fyrogenis (eee)                                                     CB
   John Bryant (x)                                                              D
   Gerassimos Petros Antonios Michael Contomichalos (x)                         D
   Eleni Vassiliadou (lll)                                                      D
   Aristidis Vakirlis (eee)                                                     D
   Theodoros Terzopoulos (eee)                                                  D
   Georgios Mastorakos (eee)                                                    D

   Cinergy Global Chandler Holding, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   John Bryant (x)                                                              D, P
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Cinergy Global Chandler I, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   John Bryant (x)                                                              D, P
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Chandler Wind Partners, LLC

   David L. Wozny (a)                                                           M
   Bradley C. Arnett (a)                                                        M

   Cinergy Global Ely, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   John Bryant (x)                                                              D, P
   David L. Wozny (a)                                                           D, VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   EPR Ely Power Limited

   Paul Anthony (x)                                                             D
   John Bryant (x)                                                              D
   Albert M. Harrison (x)                                                       D
   Malcolm D. Chilton (tt)                                                      D
   David A. McDonald (tt)                                                       D
   David A. Mason (x)                                                           AD
   Charles M. McInnes (tt)                                                      S

   EPR Ely Limited

   Paul Anthony (x)                                                             D
   John Bryant (x)                                                              D
   Malcolm D. Chilton (tt)                                                      D
   Albert M. Harrison (x)                                                       D
   David A. McDonald (tt)                                                       D
   David A. Mason (x)                                                           AD
   Charles M. McInnes (tt)                                                      S

   Ely Power Limited

   Paul Anthony (x)                                                             D
   John Bryant (x)                                                              D
   Albert M. Harrison (x)                                                       D
   Malcolm D. Chilton (tt)                                                      D
   David A. McDonald (tt)                                                       D
   David A. Mason (x)                                                           AD
   Charles M. McInnes (tt)                                                      S

   Anglian Straw Limited

   Paul Anthony (x)                                                             D
   John Bryant (x)                                                              D
   Albert M. Harrison (x)                                                       D
   Malcolm D. Chilton (tt)                                                      D
   David A. McDonald (tt)                                                       D
   David A. Mason (x)                                                           AD
   Charles M. McInnes (tt)                                                      S

   Anglian Ash Limited

   Paul Anthony (x)                                                             D
   John Bryant (x)                                                              D
   Albert M. Harrison (x)                                                       D
   Malcolm D. Chilton (tt)                                                      D
   David A. McDonald (x)                                                        D
   John F. Hewson (tt)                                                          D
   David A. Mason (x)                                                           AD
   Charles M. McInnes (tt)                                                      S

   Cinergy Global Foote Creek, Inc.

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   David L. Wozny (a)                                                           VP
   Jerome A. Vennemann (a)                                                      VP, S
   Hugh C. Hamilton (x)                                                         AS
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC

   Foote Creek III, LLC

   Joanne L. Siddell (yyy)                                                      BM
   Jeffrey D. Finan (yyy)                                                       BM

   Cinergy Global Foote Creek II, Inc.

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David L. Wozny (a)                                                           VP
   Kimberly S. Carlson (a)                                                      AC

   Foote Creek II, LLC

   Joanne L. Siddell (yyy)                                                      BM
   Jeffrey D. Finan (yyy)                                                       BM

   Cinergy Global Foote Creek IV, Inc.

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A.Vennemann (a)                                                       VP, S
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Foote Creek IV, LLC

   Joanne L. Siddell (yyy)                                                      BM
   Jeffrey D. Finan (yyy)                                                       BM
   David L. Wozny (a)                                                           BM
   Bradley C. Arnett (a)                                                        BM

   Cinergy Global Peetz Table I, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   John Bryant (x)                                                              D, P
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Ridge Crest

   Bradley C. Arnett (a)                                                        M
   David L. Wozny (a)                                                           M

   Cinergy Global Power Services Limited

   John Bryant (x)                                                              D
   Hugh C. Hamilton (x)                                                         D, S

   Cinergy Global Power (UK) Limited

   Hugh C. Hamilton (x)                                                         D, S
   John Bryant (x)                                                              D
   James E. Rogers (a)                                                          D
   David L. Wozny (a)                                                           D

   Cinergy Global Trading Limited

   John Bryant (x)                                                              D
   Peter F. Webster (x)                                                         D
   Gerassimos Petros Antonios Michael Contomichalos (x)                         D

   Commercial Electricity Supplies Limited

   Edwyn C. Cumberland (x)                                                      D
   John Bryant (x)                                                              D
   Peter F. Webster (x)                                                         D
   Julia Lees (x)                                                               D
   Hugh C. Hamilton (x)                                                         S

   Cinergy Renewable Trading Limited

   John Bryant (x)                                                              D
   Christopher P. Vanezis (x)                                                   D
   Hugh C. Hamilton (x)                                                         D, S
   Martin Alder (x)                                                             D
   Peter F. Webster (x)                                                         D

   UK Electric Power Limited

   John Bryant (x)                                                              D
   Peter F. Webster (x)                                                         D
   Julia Lees (x)                                                               D
   Edwyn C. Cumberland (x)                                                      D
   Hugh C. Hamilton (x)                                                         S

   Cinergy Global Power Iberia, S.A.

   John Bryant (x)                                                              D
   Derek J. Spencer (oo)                                                        D
   Francisco Raussell Solari (oo)                                               D

   Cinergy Global San Gorgonio, Inc.

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   David L. Wozny (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Global Holdings

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   David L. Wozny (a)                                                           D, VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Hugh C. Hamilton (x)                                                         AS
   Kimberly S. Carlson (a)                                                      AC

   Holdings B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD

   Cinergy Zambia B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Copperbelt

   Christopher Balm (dd)                                                        D
   Robert W. Cooke (x)                                                          D
   Paul Johnson (ww)                                                            D
   Gary G. Loop (jjj)                                                           D
   John Lowen (dd)                                                              D
   Charles Milupi (dd)                                                          D
   John Patterson (dd)                                                          D
   Douglas J. Schulte (a)                                                       D
   Austin C.J. Sichinga (vv)                                                    D
   Zik Zekko (dd)                                                               D
   Robert Hull (dd)                                                             AD
   John K. Kaite (dd)                                                           AD
   William S. Musama (dd)                                                       AD
   John Bryant (x)                                                              AD
   Julia Christine Zula Chaila (dd)                                             S

   Cinergy Turbines B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Hydro B.V

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Cinergy 1 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Cinergy Global Resources 1 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Teplarny

   Josef Gaba (y)                                                               CB
   Jaroslav Kulhanek (dddd)                                                     VCB
   Jan Vanecek (y)                                                              MB

   Cinergy Global Polska Sp. Z o.o.

   Petr Moravec (ee)                                                            MB

   Cinergy Global Resources 1 Sp. Z o.o.

   Petr Moravec (ee)                                                            MB

   Cinergy Global Resources a.s.

   Jan Vanecek (y)                                                              CB
   Josef Gaba (y)                                                               MB

   Cinergetika

   Jaroslav Kulhanek (dddd)                                                     VCB
   Josef Gaba (y)                                                               CB
   Jan Vanecek (y)                                                              MB

   Energy Customer Services, s.r.o.

   This company is in liquidation and the officers have been displaced by the liquidator.

   Cinergy 2 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Daelman-Geerdink (ii)                                           MD

   Baghabari I B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   ABN Amro Trust Company (Nederland) BV (ii)                                   MD

   Baghabari Power Company Limited

   John G. Hides (rr)                                                           D, S
   Peter L. Tipper (x)                                                          D

   Baghabari II B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   ABN Amro Trust Company (Nederland) BV (ii)                                   MD

   Cinergy South Africa Investments 1 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   Andreas Laurentius Maria Floris (ii)                                         MD
   Robertus Hendrikus Lukas de Groot (ii)                                       MD
   Ursula Maria Geerdink (ii)                                                   MD

   Egoli Gas (Proprietary) Limited

   Maurice Radebe (ff)                                                          D
   Robert W. Cooke (x)                                                          D, AD
   Douglas J. Schulte (a)                                                       D, AD
   Quintus Jacobus Joubert (ff)                                                 D
   Shocket Ally Khan (ff)                                                       AD
   Ian Wallace Wilson (ff)                                                      S, PO

   Cinergy Global 4 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   ABN Amro Trust Company (Nederland) BV (ii)                                   MD

   Cinergy Global 5 B.V.

   John Bryant (x)                                                              MD
   David L. Wozny (a)                                                           MD
   ABN Amro Trust Company (Nederland) BV (ii)                                   MD

   Cinergy Global (Cayman) Holdings, Inc.

   James E. Rogers (a)                                                          CB, D
   John Bryant (x)                                                              MD, D
   Jerome A. Vennemann (a)                                                      D, AS
   David L. Wozny (a)                                                           D, AC
   Hugh C. Hamilton (x)                                                         S
   Wendy L. Aumiller (a)                                                        T

   Cinergy Global Hydrocarbons Pakistan

   James E. Rogers (a)                                                          CB, D
   John Bryant (x)                                                              MD, D
   Jerome A. Vennemann (a)                                                      D, AS
   David L. Wozny (a)                                                           D, AC
   Hugh C. Hamilton (x)                                                         S
   Wendy L. Aumiller (a)                                                        T

   Cinergy Global Tsavo Power

   James E. Rogers (a)                                                          D, CB
   John Bryant (x)                                                              D, MD
   Charles J. Winger (a)                                                        D
   Jerome A. Vennemann (a)                                                      D, AS
   David L. Wozny (a)                                                           D, AC
   Hugh C. Hamilton (x)                                                         S

   IPS-Cinergy Power Limited

   John Bryant (x)                                                              CB
   Robert W. Cooke (x)                                                          D
   Lutaf Kassam (gg)                                                            D
   Nizar Juma (gg)                                                              D
   Francis O. Okello (gg)                                                       S

   Tsavo Power Company Limited

   John Bryant (x)                                                              D
   Nizar Juma (gg)                                                              CB
   Paul Kunert (gg)                                                             D
   Michael Turner (xx)                                                          D
   Paul Cole (x)                                                                AD
   Torbjorn Caesar (xx)                                                         AD
   Kevin Kariuki (gg)                                                           AD
   Karl-Erik Westo (zz)                                                         D
   Robert W. Cooke (x)                                                          D
   Lutaf Kassam (gg)                                                            D
   Francis O. Okello (gg)                                                       S

   Cinergy MPI V, Inc.

   James E. Rogers (a)                                                          D, CB
   John Bryant (x)                                                              D, MD
   David L. Wozny (a)                                                           D, AC
   Hugh C. Hamilton (x)                                                         S
   Wendy L. Aumiller (a)                                                        T
   Jerome A. Vennemann (a)                                                      AS

   Cinergy Global One, Inc.

   James E. Rogers (a)                                                          D
   John Bryant (x)                                                              D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   David L. Wozny (a)                                                           D, VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Kimberly S. Carlson (a)                                                      AC

   CZECHPOL ENERGY spol, s.r.o.

   Petr Moravec (ee)                                                            E
   Jan Vanecek (y)                                                              E

   Moravia Energo

   Bohuslav Bernatek (gggg)                                                     CB
   Oldrich Masny (ffff)                                                         VCB
   Miloslav Kuzela (gggg)                                                       MB
   Edvard Molin (gggg)                                                          MB
   Tomas Chrenek (gggg)                                                         VCS
   Jiri Cienciala (gggg)                                                        CSB
   Frantisek Heczko (mmm)                                                       MB
   Radim Fiala (nnn)                                                            MS

   eVent Resources Overseas I, LLC

   James E. Rogers (a)                                                          P, CEO
   R. Foster Duncan (a)                                                         VP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Lance A. Bakrow (m)                                                          VP
   Jerome A. Vennemann (a)                                                      S
   Robert Davis (m)                                                             VP
   Wendy L. Aumiller (a)                                                        T

   Midlands Hydrocarbons (Bangladesh) Limited

   John Bryant (x)                                                              D
   Hugh C. Hamilton (x)                                                         D, S

   Powermid No. 1

   Hugh C. Hamilton (x)                                                         D, S
   Christopher P. Vanezis (x)                                                   D

   Cinergy Global Power Africa (Proprietary) Limited

   David L. Wozny (a)                                                           D
   Ian W. Wilson (ff)                                                           S, PO

   CinTec

   James E. Rogers (a)                                                          P, CEO, SM
   R. Foster Duncan (a)                                                         EVP, CFO
   Wendy L. Aumiller (a)                                                        T
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S

   CinTec I LLC

   James E. Rogers (a)                                                          P, CEO, SM
   R. Foster Duncan (a)                                                         EVP, CFO
   Wendy L. Aumiller (a)                                                        T
   Bernard F. Roberts (a)                                                       C
   Jerome A. Vennemann (a)                                                      S

   eVent Resources I LLC

   James E. Rogers (a)                                                          D, P, CEO
   Lance A. Bakrow (m)                                                          D, VP
   Michael J. Cyrus (a)                                                         D
   Robert Davies (m)                                                            D, VP
   William J. Grealis (a)                                                       D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S
   Wendy L. Aumiller (a)                                                        T

   eVent Resources Holdings LLC

   James E. Rogers (a)                                                          P, CEO
   Robert Davies (m)                                                            VP
   Lance A. Bakrow (m)                                                          VP
   R. Foster Duncan (a)                                                         EVP, CFO
   Wendy L. Aumiller (a)                                                        T
   Bernard F. Roberts (a)                                                       C
   Jerome A. Vennemann (a)                                                      S

   Cinergy Technologies

   James E. Rogers (a)                                                          D
   William J. Grealis (a)                                                       D
   R. Foster Duncan (a)                                                         D, P
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   P. Craig Weida (a)                                                           VP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Ventures

   R. Foster Duncan (a)                                                         P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   CES International

   Kevin J. Kushman (a)                                                         D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   Pentech Solutions, Inc.

   Kevin J. Kushman (a)                                                         D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   IZOIC, Incorporated

   David A. Mulder (a)                                                          D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   Kreiss Johnson Technologies, Inc.

   Alexander W. Pardo (a)                                                       D
   David A. Mulder (a)                                                          D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   Cinergy Ventures II, LLC

   R. Foster Duncan (a)                                                         P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Catalytic Solutions, Inc.

   Kevin J. Kushman (a)                                                         D
   Brian K. Stallman (a)                                                        D

   Only Cinergy's directors have been provided.  Upon request by the SEC, Cinergy will use its best
   efforts to provide a listing of the other directors.

   Cinergy e-Supply

   R. Foster Duncan (a)                                                         P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   P. Craig Weida (a)                                                           VP
   Wendy L. Aumiller (a)                                                        T
   Julie S. Janson (a)                                                          AS
   Kimberly S. Carlson (a)                                                      AC

   Cinergy One

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L Turner (a)                                                           D, P
   Todd W. Arnold (a)                                                           VP
   Russell K. Campbell (a)                                                      VP
   John C. Procario (a)                                                         VP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Two, Inc.

   James E. Rogers (a)                                                          D
   R. Foster Duncan (a)                                                         D, EVP, CFO
   James L. Turner (a)                                                          D, P
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       C
   Jerome A. Vennemann (a)                                                      S
   Wendy L. Aumiller (a)                                                        T

   Wholesale Energy

   James E. Rogers (a)                                                          D
   Michael J. Cyrus (a)                                                         D, P
   R. Foster Duncan (a)                                                         D, EVP, CFO
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Wendy L. Aumiller (a)                                                        T
   M. Stephen Harkness (a)                                                      VP
   Douglas F. Esamann (d)                                                       VP
   Robert C. McCarthy (a)                                                       VP
   Bernard F. Roberts (a)                                                       VP, C
   Joseph W. Toussaint (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Generation Services

   Michael J. Cyrus (a)                                                         P
   R. Foster Duncan (a)                                                         EVP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   M. Stephen Harkness (a)                                                      VP, COO, CFO
   Rodney W. Husk (a)                                                           VP
   Robert C. McCarthy (a)                                                       VP
   Barry E. Pulskamp (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   John J. Roebel (a)                                                           VP
   Joseph W. Toussaint (a)                                                      VP
   Jerome A. Vennemann (a)                                                      VP, GC, S
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

   Cinergy Origination & Trade, LLC

   R. Foster Duncan (a)                                                         EVP, CFO
   Michael J. Cyrus (a)                                                         P
   Robert C. McCarthy (a)                                                       VP
   Joseph W. Toussaint (a)                                                      VP
   Marc E. Manly (a)                                                            EVP, CLO
   Theodore R. Murphy II (a)                                                    SVP, CRO
   Frederick J. Newton III (a)                                                  EVP, CAO
   Ronald R. Reising (a)                                                        VP
   Bernard F. Roberts (a)                                                       VP, C
   Jerome A. Vennemann (a)                                                      VP, S, GC
   Wendy L. Aumiller (a)                                                        T
   Kimberly S. Carlson (a)                                                      AC
   Julie S. Janson (a)                                                          AS

Address codes:

      (a)         139 East Fourth Street, Cincinnati, Ohio 45202
      (b)         1000 East Main Street, Plainfield, Indiana 46168
      (c)         3400 Ridge Rd. W., Suite 5337, Rochester, NY  14626-3495
      (d)         251 North Illinois Street, Suite 1604, Indianapolis, Indiana 46204
      (e)         105 East Fourth Street, Suite 600, Cincinnati, Ohio 45202
      (f)         1 North Lexington Avenue, 6th Floor, White Plains, New York 10601
      (h)         One Riverfront Place, Newport, Kentucky 41071
      (j)         250 East Fifth Street, Suite 500, Cincinnati, Ohio 45201
      (k)         P.O. Box 145496, Cincinnati, Ohio 45250-5496
      (l)         10 Magazine Street, Spt. 611, Cambridge, Massachusetts 02138
      (m)         140 Greenwich Avenue, Greenwich, Connecticut 06830
      (n)         312 Walnut Street, Suite 3550, Cincinnati, Ohio 45202
      (o)         2000 Constitution Avenue, Philadelphia, Pennsylvania 19112
      (r)         3105 South Martin Luther King Boulevard #164, Lansing, Michigan 48910
      (s)         2401 Fifth Avenue South Power 4, Texas City, Texas 77590
      (t)         625 East U.S. Highway 36, Tuscola, Illinois 61953
      (u)         1735 K Street, N.W., Washington, D.C. 20006-1500
      (v)         616 F.M. 1960 West, Suite 900, Houston, Texas 77090
      (w)         1177 West Loop South, Suite 900, Houston, Texas 77027
      (x)         The Pavillion, Ryon Hill Park, Warwick Road, Stratford-upon-Avon, Warwickshire CV37 OUU
      (y)         Karlova 48, 110 00 Praha 1, Czech Republic
     (dd)         23rd Avenue, P.O. 20819, Nkana East Kitwe, Zambia
     (ee)         U1 Melgiewska, 7-9, 20-952, Lublin, Poland
     (ff)         9th Floor Fedsure Towers, 13 Fredman Drive, Sandton 2146, South Africa
     (gg)         P.O. Box 30500, Nairobi, Kenya
     (hh)         Parken, Oster Alle 42, 6th Floor, DK-2100 Copenhagen O, Denmark
     (ii)         Strawinskylaan 3105, 1077 ZX Amsterdam, The Netherlands
     (jj)         5722 Prospect Drive, Newburgh, Indiana 47629
     (kk)         1420 D. Chruch Street, Bohemia, New York 11716
     (nn)         P.O. Box 15219, Del City, Oklahoma 73155-5219
     (oo)         Paseo de la Castellana 23, Madrid 28046, Spain
     (pp)         Room 1300 Service Building 003, College Park, MD 20742
     (qq)         7602 GM Blvd, Shreveport, LA 71129
     (rr)         Sanarc Complex, 76 Shaheed Tajuddinn Ahmed Sarani, Dhaka 1208, Bangladesh
     (tt)         Renewables House, 330 Bristol Business Park, Coldharbour Lane, Bristol, BS16 1EJ
     (uu)         2655 Central Avenue, Columbus, Indiana 47201
     (vv)         Mulungushi House, 2nd Floor, Independence Avenue, P.O. Box 50288, Lusaka, Zambia
     (ww)         National Grid House, Kirby Corner Road, Coventry, CV48JY
     (xx)         P.O. Box 43233-00100, Nairobi, Kenya
     (zz)         Pitkakapu 20, Jarvikatu 2-4, P.O. Box 244 65101 Vaasa, Finland Suite 100
     (aaa)        600 Clubhouse Drive, Pittsburgh, Pennsylvania 15108
     (bbb)        One North Charles Street, Baltimore, Maryland 21201
     (ccc)        3 Barker Street, White Plains, New York 10601
     (eee)        2 Orfeos and Persefonis Street, 118 54 Athens, Greece
     (hhh)        6525 Morrison Blvd., Ste. 318, Charlotte, NC  47710
     (iii)        421 7th Avenue S.W., Suite 3300, Calgary, Alberta T2P4K9
     (jjj)        3 Mimosa Lane, Nkana East, Kitwe, Zambia
     (lll)        Shell Centre, London, SE1 7NA
     (mmm)        Bystrice 1221, Postal Code 73995, Czech Republic
     (nnn)        Frydek-Mistek, Zamecke nam. 49, Postal Code 73801, Czech Republic
     (ppp)        8829 Bond Street, Overland Park, Kansas 66214
     (qqq)        1419 West Lloyd Expressway, Suite 100, Evansville, Indiana 47710
     (rrr)        680 Fifth Avenue, 8th Floor, New York, New York 10022
     (sss)        205 Palm Island, N.W., Clearwater, Florida 33767
     (ttt)        410 South Wilmington Street, 18th Floor, Raleigh, North Carolina 27601
     (uuu)        414 Nicollet Mall RS4, Minneapolis, Minnesota 55401
     (vvv)        441 Vine Street, Suite 3900, Cincinnati, Ohio 45202
     (www)        1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202
     (xxx)        20 N.W. Fourth Street, Evansville, Indiana 47708
     (yyy)        1630 North Meridian Street, Indianapolis, Indiana 46202
     (zzz)        8850 Crawfordsville Road, Indianapolis, Indiana 46234
    (aaaa)        103 Foulk Road, Suite 200, Wilmington, Delaware 19809
    (dddd)        T. Balti 1970, 702 02 Zlin, Czech Republic
    (ffff)        Praha 1, Opletalova 1525/39, Post Code 11323, Czech Republic
    (gggg)        Trinec-stare mesto, Prumyslova 1018, post code 73965, Czech Republic
    (hhhh)        40 Tower Lane, Avon, Connecticut 06001
    (iiii)        444 Cedar Street, Suite 1020, St. Paul, Minnesota 55101
    (jjjj)        501 Westlake Park Boulevard, P.O. Box 3092, Houston, Texas 77253

Positions are indicated by the following symbols:

   AC       Assistant Comptroller
   ACT      Acting Treasurer
   AD       Alternate Director
   AR       Authorized Representative
   AS       Assistant Secretary
   AT       Assistant Treasurer
   BG       Board of Governors
   BM       Member of the Board of Managers
   C        Comptroller
   CAO      Chief Administrative Officer
   CB       Chairman of the Board of Directors
   CEO      Chief Executive Officer
   CFO      Chief Financial Officer
   CIO      Chief Information Officer
   CLO      Chief Legal Officer
   CM       Chairman of the Board of Managers
   COO      Chief Operating Officer
   CRO      Chief Risk Officer
   CSB      Chairman of Supervisory Board
   D        Director
   EVP      Executive Vice President
   GC       General Counsel
   IM       Independent Manager
   M        Manager
   MB       Member of the Board of Directors
   MD       Managing Director
   ME       Member
   MM       Member-Manager
   MS       Member of the Supervisory Board/Council
   P        President
   PO       Public Officer
   S        Secretary
   SM       Sole Member
   SVP      Senior Vice President
   T        Treasurer
   VCB      Vice Chairman of the Board of Directors
   VCM      Vice Chairman of the Board of Managers
   VCS      Vice Chairman of the Board of Supervisors
   VP       Vice President
   VS       Vice Secretary

ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 2002

PART II 

 Name of Officer or    Name and Location of      Position Held in        Applicable
    Director          Financial Institution   Financial Institution   Exemption Rule
    --------          ---------------------   ---------------------   --------------

Phillip R. Cox       The Federal Reserve Bank      Director                70(h)
                     of Cleveland
                     Cleveland, Ohio

Thomas E. Petry      U.S. Bancorp                  Director                70(a)
                     Minneapolis, Minnesota
                     U.S. Bank National
                     Association                   Director                70(a)
                     Minneapolis, Minnesota

James E. Rogers      Fifth Third Bancorp           Director                70(a),(c)
                     Cincinnati, Ohio                                        (e),(f)
                     The Fifth Third Bank          Director                70(a),(c)
                     Cincinnati, Ohio                                        (e),(f)

John J. Schiff, Jr.  Fifth Third Bancorp           Director                70(a)
                     Cincinnati, Ohio
                     The Fifth Third Bank          Director                70(a)
                     Cincinnati, Ohio

Dudley S. Taft       Fifth Third Bancorp           Director                70(a)
                     Cincinnati, Ohio
                     The Fifth Third Bank          Director                70(a)
                     Cincinnati, Ohio

ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 2002

PART III

(a) and (e) Directors' and Executive Officers' Compensation and Participation in Bonus and Profit-Sharing Arrangements and Other Benefits

For information concerning compensation of directors and executive officers and their participation in bonus and profit-sharing and other benefits, see the disclosures made in the:

  Cinergy Corp. 2003 Proxy Statement (Proxy Statement*) for Cinergy including Investments, Global Resources, CinTec, Cinergy Technologies, Wholesale Energy, Services, CG&E, and Cinergy Receivables Company LLC.

  2003 PSI Information Statement (Information Statement*) for PSI and its subsidiary.

(b) Directors' and Executive Officers' Interests in Securities of System Companies

For information concerning interests in system companies, see the disclosures made in the:

  Proxy Statement for Cinergy, including Investments, Global Resources, CinTec, Cinergy Technologies, Wholesale Energy, Services, and Cinergy Receivables Company LLC.

  *2002 Form 10-K, page 208 for CG&E and its subsidiaries.

  Information Statement for PSI and its subsidiary.

(c) Directors' and Executive Officers' Contracts and Transactions with System Companies

For information concerning contracts and transactions with system companies, see the disclosures made in the:

  Proxy Statement for Cinergy, including Investments, Global Resources, CinTec, Cinergy Technologies, Wholesale Energy, Services, CG&E, and Cinergy Receivables Company LLC.

  Information Statement for PSI and its subsidiary.

(d) Indebtedness of Directors or Executive Officers to System Companies

None

(f) Directors' and Executive Officers' Rights to Indemnity

The state laws under which each of Cinergy and its domestic direct and indirect subsidiaries are incorporated provide broadly for indemnification of directors and officers against claims and liabilities against them in their capacities as such. Each of such company's articles of incorporation, charters, By-laws, or regulations identifying these rights to indemnify are incorporated by reference or contained herein as exhibits.

* See Exhibit A for incorporation by reference.

ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS

1. Payments to any political party, candidate for public office or holder of such office, or any committee or agent therefor: 

      Name of
      Company             Name of Recipient or Beneficiary                 Purpose           Amount
      -------             --------------------------------                 -------           ------

       CG&E          Indiana State Republican Party                      Contribution           5,669
                     Republican National Party                           Contribution          18,895
                                                                                             --------

                     Subtotal                                                                $ 24,564

Marketing & Trading  Indiana State Republican Party                      Contribution           3,680
                     Republican National Party                           Contribution          12,265
                                                                                             --------

                     Subtotal                                                                $ 15,945

        PSI (1)      Indiana State Republican Party                      Contribution           5,652
                     Richard G. Lugar Series                             Contribution           7,500
                     Republican National Party                           Contribution          18,840
                                                                                             --------

                     Subtotal                                                                $ 31,992

    Cinergy (1)      Democratic Congressional Campaign                   Contribution           5,000
                     Democratic Senatorial Campaign                      Contribution          10,000
                     Richard H. Finan Tribute Committee                  Contribution           2,500
                     Indiana Republican Party                            Contribution           2,500
                     Richard G. Lugar Series                             Contribution           7,500
                     National Governors Association - Indiana    2003 Annual Meeting Expense   25,000
                     National Republican Congressional Campaign          Contribution          10,000
                     National Republican Senatorial Campaign             Contribution          20,000
                     Republican Governors Association                    Contribution           7,500
                     Republican Party of Kentucky Building Fund          Contribution          10,000
                     Taft Bradley Inaugural Committee                    Contribution          10,000
                                                                                             --------

                     Subtotal                                                                $110,000

                     Total                                                                   $182,501
                                                                                             ========
  (1) Cinergy and PSI have established separate segregated funds or political action committees and have incurred certain costs in the administration of these committees in accordance with the provisions of the Federal Election Campaign Act.

ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (Continued)

2.     Payments to any citizen’s group, or public relations council, and the purpose of each payment.

       Name of
       Company            Name of Recipient or Beneficiary               Purpose                 Amount
       -------            --------------------------------               -------                 ------

         CG&E            Air & Waste Management Association           Dues, fees, support       $   11,500
                         Alliance Associates Program                  Dues, fees, support           11,500
                         American Gas Association                     Dues, fees, support           78,707
                         Edison Electric Institute                    Dues, fees, support          279,843
                         Electric Power Research Institute            Dues, fees, support          144,005
                         Lobbying Expense Reimbursement               Dues, fees, support           29,564
                         National Association of Manufacturers        Dues, fees, support           32,910
                         Ohio Gas Association                         Dues, fees, support           12,101
                         Technology Network                           Dues, fees, support           15,116
                         Less than $10,000 - 29 beneficiaries         Dues, fees, support           68,726
                                                                                                ----------
                               Subtotal                                                         $  683,972

     Lawrenceburg        Less than $10,000 - 1 beneficiary            Dues, fees, support       $    4,105


        ULH&P            American Gas Association                     Dues, fees, support           34,772
                         Northern Kentucky Chamber of Commerce        Dues, fees, support           10,237
                         Less than $10,000 - 16 beneficiaries         Dues, fees, support           15,325
                                                                                                ----------
                               Subtotal                                                         $   60,334

         PSI             Air & Waste Management Association           Dues, fees, support       $   13,500
                         Alliance Associates Program                  Dues, fees, support           13,500
                         Central Indiana Corporate                    Dues, fees, support           38,550
                         Edison Electric Institute                    Dues, fees, support          332,163
                         Electric Power Research Institute            Dues, fees, support          169,049
                         Hamilton County Alliance                     Dues, fees, support           10,000
                         Hendricks County Economic Development        Dues, fees, support           15,000
                         Indiana Chamber of Commerce                  Dues, fees, support           27,690
                         Indianapolis Chamber of Commerce             Dues, fees, support           11,025
                         Indiana Electric Association                 Dues, fees, support          299,269
                         Indiana Manufacturers Association            Dues, fees, support           13,560
                         Indianapolis Reg. Econ. Dev. Partnership     Dues, fees, support           40,000
                         Johnson County Dev. Council                  Dues, fees, support           10,000
                         National Association of Manufacturers        Dues, fees, support           39,063
                         Technology Network                           Dues, fees, support           15,072
                         The Indy Partnership                         Dues, fees, support           40,000
                         Less than $10,000 - 138 beneficiaries        Dues, fees, support          203,632
                                                                                                ----------
                               Subtotal                                                         $1,291,073

 Generation Services     Edison Electric Institute                    Dues, fees, support          381,764
                         Less than $10,000 - 5 beneficiaries          Dues, fees, support            4,600
                                                                                                ----------
                               Subtotal                                                         $  386,364

Brownsville Power I LLC  Less than $10,000 - 1 beneficiary            Dues, fees, support       $      250

 Marketing & Trading     Edison Electric Institute                    Dues, fees, support          141,882
                         National Association of Manufacturers        Dues, fees, support           16,685
                         Less than $10,000 - 3 beneficiaries          Dues, fees, support           17,760
                                                                                                ----------
                               Subtotal                                                         $  176,327

    Cinergy              Indiana Environmental Institute              Dues, fees, support           12,000
                         Informed Citizens of Ohio                    Dues, fees, support           20,000
                         Less than $10,000 - 14 beneficiaries         Dues, fees, support           24,516
                                                                                                ----------
                               Subtotal                                                         $   56,516

                         Total                                                                  $2,658,941
                                                                                                ==========

ITEM 8. SERVICE, SALES, AND CONSTRUCTION CONTRACTS

Part I 

                                            Serving                     Receiving
             Transaction                    Company                      Company                       Compensation
             -----------                    -------                      -------                       ------------
                                                                                                      (in thousands)

Construction, gas transmission and
administrative and general services (1)     CG&E                     KO Transmission                      $    369

Construction, gas transmission and
administrative and general services (1)     ULH&P                    KO Transmission                            32

Line locating, meter reading, and
underground construction services (2)       Reliant                  CG&E                                    2,379

Line locating, meter reading, and
underground construction services (2)       Reliant                  PSI                                     5,560

Line locating, meter reading, and
underground construction services (2)       Reliant                  ULH&P                                     148

Operations and maintenance services (2)     Generation Services      CG&E                                  103,897

Operations and maintenance services (2)     Generation Services      PSI                                    57,983

Maintenance services (2)                    Miller Pipeline          CG&E                                    8,850

Maintenance services (2)                    Miller Pipeline          PSI                                       725

Engineering and construction services (2)   CG&E                     Cinergy EPCOM                             144

Engineering and construction services (2)   PSI                      Cinergy EPCOM                              14

Engineering and construction services (2)   ULH&P                    Cinergy EPCOM                              16

Installation and maintenance services (2)   CG&E                     Cinergy One                             1,950

Installation and maintenance services (2)   PSI                      Cinergy One                               942

Installation and maintenance services (2)   ULH&P                    Cinergy One                                32

Maintenance services (2)                    PSI                      Cinergy Solutions of Tuscola, Inc.         28

Engineering and construction services (2)   CG&E                     Solutions                                  21

Installation and maintenance services (2)   CG&E                     Technology                                  1

Operations and maintenance services (2)     PSI                      Generation Services                       292

Engineering and construction services (2)   PSI                      Solutions                                   6

Maintenance services (2)                    PSI                      Cinergy EPCOM College Park, LLC             3

Inventory services (2)                      PSI                      Marketing and Trading                       6

Construction and administrative and
general services (1)                        CG&E                     Tri State Improvement Company              16

Installation services (2)                   CG&E                     Ventures                                   38

Operations and maintenance services         Generation Services      Capital and Trading                       371

Operations and maintenance services         Generation Services      Solutions                               1,692

Operations and maintenance services         Generation Services      CSGP of Southeast Texas, LLC            1,599

Operations and maintenance services         Generation Services      Cinergy Solutions of Philadelphia, LLC    428

Operations and maintenance services         Generation Services      Vestar, Inc.                              141

Operations and maintenance services         Generation Services      Cinergy Solutions of Tuscola, Inc.        488
  (1)     Pursuant to Rel. No. 35-26146, dated October 21, 1994.
(2)     Pursuant to service agreements approved in File No. 70-9449 (see HCAR No. 27016, May 4, 1999,
         exhibits B-1, B-2, and B-3) which remained in effect as of December 31, 2002.

Part II

None

Part III

None

ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES

Part I

The following information shows the required information for Cinergy’s investment in exempt wholesale generators (EWG) and foreign utility companies (FUCO) as of December 31, 2002:

(a)      Company name, location, business address, description and interest held by each system company;
(b)      Capital invested, recourse debt, guarantees and transfer of assets between affiliates;
(c)      Debt to equity ratio and earnings;
(d)      Contracts for service, sales or construction with affiliates.

(a) EWG Subsidiaries
          Company                            Location                     Business Address                  Company Description             Interest Held
          -------                            --------                     ----------------                  -------------------             -------------

Brownsville Power I, LLC               Haywood County, Tennessee     139 East Fourth Street          Brownsville Power I, LLC is a                 1/
                                                                     Cincinnati, Ohio 45201          480-megawatt (MW) natural gas-fired
                                                                                                     generation facility.

Caledonia Power I, LLC                 Lowndes County, Mississippi   139 East Fourth Street          Caledonia Power I, LLC is a 550-MW            1/
                                                                     Cincinnati, Ohio 45201          natural gas-fired generation facility.

CinCap VII, LLC                        Henry County, Indiana         139 East Fourth Street          CinCap VII, LLC is a 129-MW natural           1/
                                                                     Cincinnati, Ohio 45201          gas-fired generation facility.

CinCap Madison, LLC                    Butler County, Ohio           139 East Fourth Street          CinCap Madison, LLC is a 680-MW               1/
                                                                     Cincinnati, Ohio 45201          natural gas-fired generation facility.

Chandler Wind Partners, LLC            Chandler, Minnesota           Corporation Trust Center        Chandler Wind Partners, LLC is a wind         1/
                                                                     1209 Orange Street              farm with an electric generating
                                                                     Wilmington, Delaware 19801      capacity of 2 MW.

Foote Creek III, LLC                   Laramie, Wyoming              Corporation Trust Center        Foote Creek III, LLC is a wind farm           1/
                                                                     1209 Orange Street              with an electric generating capacity
                                                                     Wilmington, Delaware 19801      of 25 MW.


Foote Creek II, LLC                    Laramie, Wyoming              Corporation Trust Center        Foote Creek II, LLC is a wind farm            1/
                                                                     1209 Orange Street              with an electric generating capacity
                                                                     Wilmington, Delaware 19801      of 2 MW.


Foote Creek IV, LLC                    Laramie, Wyoming              Corporation Trust Center        Foote Creek IV, LLC is a wind farm            1/
                                                                     1209 Orange Street              with an electric generating capacity
                                                                     Wilmington, Delaware 19801      of 17 MW.

Ridge Crest                            Peetz, Colorado               Corporation Trust Center        Ridge Crest is a wind farm with an            1/
                                                                     1209 Orange Street              electric generating capacity of 30 MW.
                                                                     Wilmington, Delaware 19801
(a) FUCO Subsidiaries
          Company                            Location                     Business Address                  Company Description             Interest Held
          -------                            --------                     ----------------                  -------------------             -------------

Global Power                           Wilmington, Delaware          139 East Fourth Street          Global Power is Cinergy's                     1/
                                                                     25 Atrium II                    international energy project
                                                                     Cincinnati, Ohio 45202          development arm, which owns all of the
                                                                                                     equity of Cinergy Global Power
                                                                                                     Services Limited, through which it
                                                                                                     develops and acquires power projects
                                                                                                     around the globe.  Global Power acts
                                                                                                     as an "umbrella" EWG/FUCO Project
                                                                                                     Parent with respect to numerous
                                                                                                     existing, contemplated or potential
                                                                                                     investments in Exempt Projects.

Attiki Gas Supply Company SA           Athens, Greece                2 Orfeos and Persefonis Street  Attiki Gas Supply Company SA was              1/
                                                                     118 54 Athens                   formed to supply and sell natural gas
                                                                     Greece                          to consumers located within the
                                                                                                     geographical area of Attiki, which
                                                                                                     includes Athens.

Cinergy Global Ely, Inc.               Wilmington, Delaware          139 East Fourth Street          Cinergy Global Ely, Inc. is an                1/
                                                                     25 Atrium II                    EWG/FUCO Project Parent, which holds
                                                                     Cincinnati, Ohio 45202          an interest in one FUCO, EPR Ely
                                                                                                     Limited.

EPR Ely Limited                        Ely, United Kingdom           The Pavilion                    EPR Ely Limited is a 36-MW straw-fired        1/
                                                                     Ryon Hill Park                  power plant, which generates the
                                                                     Warwick Road                    electricity supplied to approximately
                                                                     Stratford-upon-Avon             65,000 homes in the United Kingdom.
                                                                     Warwickshire CV37 0UU
                                                                     United Kingdom

Cinergy Global Power Services Limited  Warwickshire, United          Cinergy House                   Cinergy Global Power Services Limited         1/
                                       Kingdom                       Ryon Hill Park                  pursues generation, transmission, and
                                                                     Warwick Road                    distribution opportunities throughout
                                                                     Stratford-upon-Avon             the world.  This entity is devoted to
                                                                     Warwickshire CV37 0UU           the project development of EWG and
                                                                     United Kingdom                  FUCO projects, but it is not, itself,
                                                                                                     a FUCO or an EWG.

Cinergy Global Power (UK) Limited      Redditch, Worcestershire,     Cinergy House                   Cinergy Global Power (UK) Limited owns        1/
                                       United Kingdom                Ryon Hill Park                  and operates a 29-MW gas turbine
                                                                     Warwick Road                    generator, which supplies wholesale
                                                                     Stratford-upon-Avon             electricity.
                                                                     Warwickshire CV37 0UU
                                                                     United Kingdom

Copperbelt                             Copperbelt Province,          Headquarters                    Copperbelt is a bulk electric                 1/
                                       Republic of Zambia            Stand No. 3614                  transmission and distribution system,
                                                                     23rd Avenue                     acquired under the privatization of
                                                                     P.O. Box 20819                  Zambia's mining industry.  Copperbelt
                                                                     Kitwe                           provides 4,500 gigawatt-hours (GWh),
                                                                     Zambia                          per annum, within the Copperbelt
                                                                                                     Province, with assets located in and
                                                                                                     around the city of Kitwe, in north
                                                                                                     central Zambia.

Cinergy Global Resources 1 B.V.        Amsterdam, The Netherlands    Strawinskylaan 3105             Cinergy Global Resources 1 B.V. is an         1/
                                                                     1077 ZX Amsterdam               EWG/FUCO Project Parent, which holds
                                                                     The Netherlands                 interests in two FUCO companies, and
                                                                                                     two companies that are devoted to the
                                                                                                     project development of EWG and FUCO
                                                                                                     projects but are not actually EWG or
                                                                                                     FUCO companies, themselves.  The four
                                                                                                     companies include:  Teplarny,
                                                                                                     Cinergetika, Cinergy Global Polska Sp.
                                                                                                     Z o.o. and Cinergy Global Resources
                                                                                                     a.s.

Teplarny                               Zlin, Czech Republic          Tr. T. Bati 1970                Teplarny is a combined heat power             1/
                                                                     762 02 Zlin                     plant, which includes five turbine
                                                                     Czech Republic                  generators that provide up to 48 MW of
                                                                                                     electricity.  In addition, 6
                                                                                                     coal-fired and 4 gas-fired boilers
                                                                                                     provide approximately 410 MW of
                                                                                                     thermal capacity.

Cinergy Global Polska Sp. Z o.o.       Warsaw, Poland                15 Jana Pawla II Street         Cinergy Global Polska Sp.                     1/
                                                                     00 828 Warsaw                   Z o.o. is devoted to the project
                                                                     Poland                          development of EWG and FUCO projects,
                                                                                                     but it is not, itself, a FUCO or an
                                                                                                     EWG.

Cinergy Global Resources a.s.          Praha 1, Czech Republic       Karlova 27                      Cinergy Global Resources a.s. is              1/
                                                                     110 00 Praha 1                  devoted to the project development of
                                                                     Czech Republic                  EWG and FUCO projects, but it is not,
                                                                                                     itself, a FUCO or an EWG.

Cinergetika                            Usti nad Labem, Czech         P.O. Box 14C                    Cinergetika is a combined heat and            1/
                                       Republic                      Zukovova 100                    power plant, which includes three
                                                                     400 30 Usti nad Labem           turbine generators providing up to 14
                                                                     Czech Republic                  MW of electricity and four coal-fired
                                                                                                     boilers providing approximately
                                                                                                     230 MW of thermal capacity.

Egoli Gas (Proprietary) Limited        Johannesburg, South Africa    Fedsure Towers                  Egoli Gas (Proprietary) Limited is a          1/
                                                                     13 Fredman Drive                gas distribution company that owns and
                                                                     Sandton 2146                    operates 1,300 kilometers of high- and
                                                                     South Africa                    low-pressure gas mains and gas storage
                                                                                                     facilities.  The company sells gas, at
                                                                                                     retail, to approximately 11,000
                                                                                                     customers.

Tsavo Power Company Limited            Port of Mombasa, Kenya        Nation Centre                   Tsavo Power Company Limited is a 74-MW        1/
                                                                     A Tower, 13th Floor             heavy fuel oil-fired power plant,
                                                                     Kimathi Street                  which is located near the Port of
                                                                     P.O. Box 10727                  Mombasa, Kenya's main seaport.
                                                                     00 100 Nairobi
                                                                     Kenya

Czechpol Energy spol, s.r.o.           Frydek-Mistek, Czech          Farni 23                        Czechpol Energy spol, s.r.o. engages          1/
                                       Republic                      73 801 Frydek-Mistek            in structured, cross-border power
                                                                     Czech Republic                  transactions.  The company sources
                                                                                                     fuel to power plants in Central and
                                                                                                     Eastern Europe, imports and exports
                                                                                                     power throughout numerous European
                                                                                                     countries and is active in the
                                                                                                     marketing and trading of physical
                                                                                                     energy products, including excess
                                                                                                     production from Cinergy's plants in
                                                                                                     the surrounding region.

        1/ Please refer to Item 1 to identify each system company that holds an interest in this company.

(b) Cinergy’s capital investment amount at December 31, 2002, is being filed pursuant to Rule 104(b). See “Exhibit J” section in “Item 10. Financial Statements and Exhibits” for this required information.

  Refer to “Exhibit J” in “Item 10. Financial Statements and Exhibits” for Cinergy’s debt recourse or other financial obligation for the FUCO/EWG subsidiaries listed above.

  Refer to “Exhibit J” in “Item 10. Financial Statements and Exhibits” for Cinergy guarantees of securities for the FUCO/EWG subsidiaries listed in the tables above.

  No Cinergy subsidiaries that are not FUCOs or EWGs have transferred any assets to the above subsidiaries.

(c) The subsidiary ratio of debt to common equity and yearly earnings at December 31, 2002 are being filed pursuant to Rule 104(b). See “Exhibit J” section in “Item 10. Financial Statements and Exhibits” for the required information.

(d) Nonutility Service Agreement, as amended, among Cinergy, nonutility subsidiaries of Cinergy and Services (pursuant to Rel. No. 35-26662, dated 2/7/97). Pursuant to the agreement between Services and Cinergy’s domestic and foreign subsidiaries, Services allocated a proportional share of certain costs to Cinergy’s system companies, including its EWGs, foreign utility holding companies and/or FUCO subsidiaries. These transactions are reported in Cinergy’s U-13-60 for the year ended December 31, 2002.

  Services Agreements among the utility subsidiaries of Cinergy and the nonutility subsidiaries of Cinergy (other than any FUCO) dated May 14, 1999 (pursuant to Rel. No. 35-27016, dated 5/4/99). Cinergy’s utility subsidiaries and such nonutility subsidiaries are authorized to provide services to each other pursuant to such agreements. Services provided pursuant to these agreements are priced at fully allocated costs as defined by Rules 90 and 91 of the Public Utility Holding Company Act of 1935, as amended. 

           Transaction                        Serving Company               Receiving Company             Compensation
           -----------                        ---------------               -----------------             ------------
                                                                                                         (in thousands)

Operations and maintenance services (1)       PSI                           CinCap VII, LLC                    $306

Operations and maintenance services (1)       CG&E                          CinCap Madison, LLC                  33

Operations and maintenance services           Generation Services           Brownsville Power I, LLC            573

Operations and maintenance services           Generation Services           Caledonia Power I, LLC              507

Operations and maintenance services           Generation Services           CinCap VII, LLC                     238

Operations and maintenance services           Generation Services           CinCap Madison, LLC                 701

    (1)        Pursuant to service agreements approved in File No. 70-9449 (see HCAR No. 27016, May 4, 1999, exhibits B-1, and B-2).

Part II

  See “Exhibit G” section in “Item 10. Financial Statements and Exhibits” for the organizational chart information.

  See “Exhibit H” section in “Item 10. Financial Statements and Exhibits” for the financial information.

Part III

  Cinergy’s filing, pursuant to Rule 24 under the Public Utility Holding Company Act of 1935 and the Commission’s order dated June 23, 2000 (File No. 70-9577), reported a capital investment of $1,240,807 thousand ($959,627 thousand in EWGs and $281,180 thousand in FUCOs and FUCO-related subsidiaries) at December 31, 2002. The capital investment was calculated under the cost method.

  The ratio of Cinergy’s capital investment in FUCOs and EWGs to its investment in domestic public utility subsidiary companies is being filed pursuant to Rule 104(b). See “Exhibit J” section in “Item 10. Financial Statements and Exhibits” for this required information.

ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                     Previously Filed as
 Designation                             Nature of Exhibit                                         Exhibit to:
 -----------                             -----------------                                         -----------

     A-1        Annual Report of Cinergy on Form 10-K for the year ended December 31, 2002     File No. 1-11377

     A-2        2003 Proxy Statement for the year ended December 31, 2002                      File No. 1-11377

     A-3        Annual Report of CG&E on Form 10-K for the year ended December 31, 2002        File No. 1-01232

     A-4        Annual Report of PSI on Form 10-K for the year ended December 31, 2002         File No. 1-03543

     A-5        Annual Report of ULH&P on Form 10-K for the year ended December 31, 2002       File No. 2-07793

     A-6        2003 Information Statement of PSI for the year ended December 31, 2002         File No. 1-03543

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                         Previously Filed as
 Designation                                  Nature of Exhibit                                        Exhibit to:
 -----------                                  -----------------                                        -----------

     B-1        Certificate of Incorporation of Cinergy, as amended May 10, 2001               Cinergy's March 31, 2001,
                                                                                               Form 10-Q, File No. 1-11377

     B-2        By-laws of Cinergy as amended December 14, 2000                                Cinergy's 2000 Form 10-K
                                                                                               File No. 1-11377

     B-3        Amended Articles of Incorporation of CG&E effective October 23, 1996           CG&E's September 30, 1996,
                                                                                               Form 10-Q, File No. 1-01232

     B-4        Regulations of CG&E as amended, adopted April 25, 1996                         CG&E's March 31, 1996,
                                                                                               Form 10-Q, File No. 1-01232

     B-5        Amended Articles of Consolidation of PSI as amended April 20, 1995             PSI's June 30, 1995
                                                                                               Form 10-Q, File No. 1-03543

     B-6        Amendment to Article D of the Amended Articles of Consolidation of PSI         PSI's 1997 Form 10-K
                effective July 10, 1997                                                        File No. 1-03543

     B-7        By-laws of PSI as amended December 17, 1996                                    PSI's March 31, 1997
                                                                                               Form 10-Q, File No. 1-03543

     B-8        Restated Articles of Incorporation of ULH&P made effective May 7, 1976         ULH&P's May 1976,
                                                                                               Form 8-K, File No. 2-07793

     B-9        By-laws of ULH&P as amended, adopted May 8, 1996                               ULH&P's March 31, 1996,
                                                                                               Form 10-Q, File No. 2-07793

     B-10       Amendment to Restated Articles of Incorporation of ULH&P  (Article Third) and  ULH&P's 1997 Form 10-K
                Amendment to the By-laws of ULH&P (Article 1), both effective July 24, 1997    File No. 2-07793

     B-11       By-laws of ULH&P as amended, adopted May 26, 1999                              Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-12       Certificate of Incorporation of Services                                       Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-13       By-laws of Services                                                            Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-14       Articles of Incorporation of Tri-State Improvement Company                     Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-15       Regulations of Tri-State Improvement Company as amended, adopted May 28, 1999  Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-16       Articles of Incorporation of Lawrenceburg                                      Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-17       By-laws of Lawrenceburg as amended, adopted May 28, 1999                       Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-18       Articles of Incorporation of Miami Power Corporation as amended                Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-19       By-laws of Miami Power Corporation as amended, adopted May 28, 1999            Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-20       Articles of Incorporation of KO Transmission Company                           Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-21       By-laws of KO Transmission Company as amended, adopted May 28, 1999            Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-22       Certificate of Incorporation of Cinergy Power Investments, Inc.                Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-23       Regulations of Cinergy Power Investments, Inc.                                 Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-24       Articles of Incorporation of South Construction Company, Inc.                  Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-25       By-laws of South Construction Company, Inc.                                    Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-26       Certificate of Incorporation of Investments                                    Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-27       By-laws of Investments                                                         Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-28       Amended Articles of Incorporation of Cinergy-Cadence, Inc.                     Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-29       By-laws of Cinergy-Cadence, Inc.                                               Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-30       Certificate of Formation of Cadence Network                                    Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-31       Certificate of Incorporation of Cadence Network                                Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-32       By-laws of Cadence Network                                                     Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-33       Amended Articles of Incorporation of Capital & Trading                         Cinergy's Form U5S filed
                                                                                               May 1, 1997

     B-34       By-laws of Capital & Trading                                                   Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-35       Certificate of Formation of CinCap IV, LLC                                     Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-36       Certificate of Formation of CinCap V, LLC                                      Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-37       Certificate of Formation of CinCap VIII, LLC                                   Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-38       Certificate of Formation of CinCap VII, LLC                                    Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-39       Amended Agreement of Limited Liability Company of CinCap VII, LLC              Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-40       Certificate of Formation of CinCap Madison, LLC (formerly Duke Energy          Cinergy's Form U5S filed
                Madison, LLC)                                                                  May 1, 2000

     B-41       Certificate of Formation of CinCap IX, LLC                                     Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-42       Limited Liability Company Agreement of CinCap IX, LLC

     B-43       Certificate of Formation of CinCap X, LLC                                      Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-44       Limited Liability Company Agreement of CinCap X, LLC

     B-45       Certificate of Formation of CinPower I, LLC                                    Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-46       Amended Agreement of Limited Liability Agreement of CinPower I, LLC            Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-47       Certificate of Amendment to Certificate of Formation of Cinergy Marketing &    Cinergy's Form U5S filed
                Trading  (The sole purpose of the amendment was to change Producers Energy     May 1, 2000
                Marketing, LLC's name to Cinergy Marketing & Trading)

     B-48       Second Amended Agreement of Limited Liability Company of Cinergy Marketing &   Cinergy's Form U5S filed
                Trading dated June 8, 1999                                                     May 1, 2000

     B-49       Certificate of Formation of Cinergy Transportation, LLC                        Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-50       Limited Liability Company Agreement of Cinergy Transportation, LLC

     B-51       Certificate of Formation for SynCap II, LLC                                    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-52       Limited Liability Company Agreement of SynCap II, LLC

     B-53       Certificate of Incorporation of Cinergy Communications, Inc.                   Cinergy's Form U5S filed
                                                                                               May 1, 1997

     B-54       By-laws of Cinergy Communications, Inc.                                        Cinergy's Form U5S filed
                                                                                               May 1, 1997

     B-55       Certificate of Amendment of Certificate of Incorporation of Cinergy            Cinergy's Form U5S filed
                Telecommunications Holding Company, Inc.  (The sole purpose of this amendment  May 1, 2001
                was to change Cinergy Communications, Inc.'s name to Cinergy
                Telecommunications Holding Company, Inc.)

     B-56       Certificate of Formation of Lattice Communications, LLC                        Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-57       Articles of Incorporation of Cinergy Engineering, Inc.                         Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-58       Regulations of Cinergy Engineering, Inc.                                       Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-59       Certificate of Incorporation of Cinergy - Centrus, Inc.                        Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-60       By-laws of Cinergy - Centrus, Inc.                                             Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-61       Certificate of Incorporation of Cinergy - Centrus Communications, Inc.         Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-62       By-laws of Cinergy - Centrus Communications, Inc.                              Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-63       Certificate of Incorporation of Solutions Holding                              Cinergy's Form U5S filed
                                                                                               May 1, 1999

     B-64       By-laws of Solutions Holding                                                   Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-65       Certificate of Amendment of Certificate of Incorporation of Cinergy Solutions  Cinergy's Form U5S filed
                Holding Company, Inc.  (The sole purpose of the amendment was to change        May 1, 2001
                Cinergy Solutions, Inc.'s name to Cinergy Solutions Holding Company, Inc.)

     B-66       Certificate of Incorporation of 3036243 Nova Scotia Company                    Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-67       Limited Liability Company Agreement of Cinergy Solutions Limited Partnership   Refer to footnote 1

     B-68       Certificate of Incorporation of Vestar, Inc. (formerly known as Cinergy        Cinergy's Form U5S filed
                Business Solutions, Inc.)                                                      April 30, 1999

     B-69       By-laws of Vestar, Inc. (formerly known as Cinergy Business Solutions, Inc.)   Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-70       Amendment of Articles of Vestar Limited (formerly Rose Technology Group        Cinergy's Form U5S filed
                Limited)                                                                       May 1, 2000

     B-71       Certificate of Formation of Cinergy EPCOM, LLC                                 Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-72       Certificate of Formation of Cinergy EPCOM College Park, LLC                    Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-73       Certificate of Incorporation of Solutions                                      Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-74       Certificate of Incorporation of Cinergy Energy Solutions, Inc.                 Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-75       Certificate of Formation of Cinergy GASCO Solutions, LLC                       Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-76       Limited Liability Company Agreement of Cinergy GASCO Solutions, LLC            Refer to footnote 1

     B-77       Certificate of Formation of Cinergy Solutions Partners, LLC                    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-78       Limited Liability Company Agreement of Cinergy Solutions Partners, LLC         Refer to footnote 3

     B-79       Certificate of Formation of Lansing Grand River Utilities, LLC                 Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-80       Limited Liability Company Agreement of Lansing Grand River Utilities, LLC

     B-81       Certificate of Formation for Oklahoma Arcadian Utilities, LLC                  Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-82       Limited Liability Company Agreement for Oklahoma Arcadian Utilities, LLC       Refer to footnote 3

     B-83       Certificate of Formation for Shreveport Red River Utilities, LLC               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-84       Limited Liability Company Agreement for Shreveport Red River Utilities, LLC    Refer to footnote 3

     B-85       Amended and Restated Certificate of Formation for Shreveport Red River         Cinergy's Form U5S filed
                Utilities, LLC                                                                 May 1, 2001

     B-86       Certificate of Formation for Cinergy Solutions of Boca Raton, LLC              Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-87       Limited Liability Company Agreement for Cinergy Solutions of Boca Raton, LLC

     B-88       Certificate of Incorporation of Cinergy Solutions of Tuscola, Inc.             Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-89       By-laws of Cinergy Solutions of Tuscola, Inc.                                  Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-90       Certificate of Formation of Energy Equipment Leasing LLC                       Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-91       Certificate of Formation of Trigen-Cinergy Solutions LLC                       Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-92       Certificate of Formation of Trigen-Cinergy Solutions of Ashtabula, LLC         Cinergy's Form U5S filed
                                                                                               on May 1, 2000

     B-93       Limited Liability Company Agreement of Trigen-Cinergy Solutions of Baltimore   Refer to footnote 3
                LLC

     B-94       Certificate of Formation of Trigen-Cinergy Solutions of Boca Raton, LLC        Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-95       Articles of Organization of Trigen-Cinergy Solutions of Cincinnati, LLC        Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-96       Certificate of Formation of Trigen-Cinergy Solutions of College Park, LLC      Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-97       Certificate of Formation of Trigen-Cinergy Solutions of Lansing LLC            Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-98       Certificate of Formation of Trigen/Cinergy - USFOS of Lansing LLC              Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-99       Limited Liability Company Agreement for Trigen/Cinergy - USFOS of Lansing LLC  Refer to footnote 3

     B-100      Certificate of Formation of Trigen-Cinergy Solutions of Orlando LLC            Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-101      Certificate of Formation of Trigen-Cinergy Solutions of Owings Mills LLC       Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-102      Certificate of Formation of Trigen-Cinergy Solutions of Owings Mills Energy    Cinergy's Form U5S filed
                Equipment Leasing, LLC                                                         May 1, 2000

     B-103      Certificate of Formation of Trigen-Cinergy Solutions of Rochester LLC          Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-104      Certificate of Formation of Trigen-Cinergy Solutions of Silver Grove LLC       Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-105      Resolutions of Trigen-Cinergy Solutions of Silver Grove LLC                    Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-106      Limited Liability Company Agreement of Trigen-Cinergy Solutions of St. Paul    Refer to footnote 1
                LLC

     B-107      Certificate of Formation of Trigen-Cinergy Solutions of Tuscola, LLC           Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-108      Certificate of Incorporation of Cinergy Supply Network, Inc.                   Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-109      By-laws of Cinergy Supply Network, Inc.                                        Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-110      Articles of Organization of Reliant Services, LLC                              Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-111      Articles of Incorporation of Technology                                        Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-112      By-laws of Technology                                                          Cinergy's Form U5S filed
                                                                                               May 1, 1996

     B-113      Amended Articles of Incorporation of Cinergy Engineering, Inc. (formerly       Cinergy's Form U5S filed
                Enertech Associates International, Inc.)                                       May 1, 1997

     B-114      Regulations of Cinergy Engineering, Inc. (formerly Enertech Associates         Cinergy's Form U5S filed
                International, Inc.)                                                           May 1, 1996

     B-115      Certificate of Incorporation of Global Resources                               Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-116      By-laws of Global Resources                                                    Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-117      Certificate of Incorporation of Global Power  (formerly Cinergy Investments    Cinergy's Form U5S filed
                MPI, Inc.)                                                                     May 1, 1998

     B-118      By-laws of Global Power                                                        Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-119      By-laws of Cinergy Global Chandler Holding, Inc.                               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-120      Certificate of Incorporation of Cinergy Global Chandler I, Inc.                Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-121      By-laws of Cinergy Global Chandler I, Inc.                                     Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-122      Certificate of Incorporation of Cinergy Global Ely, Inc.                       Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-123      By-laws of Cinergy Global Ely, Inc.                                            Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-124      Articles of Association of EPR Ely Power Limited                               Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-125      Articles of Association of EPR Ely Limited                                     Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-126      Articles of Association of Ely Power Limited                                   Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-127      Memorandum of Association of Anglian Ash Limited                               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-128      Articles of Association of Anglian Ash Limited                                 Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-129      Articles of Association of Anglian Straw Limited                               Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-130      Certificate of Incorporation of Cinergy Global Foote Creek, Inc.               Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-131      By-laws of Cinergy Global Foote Creek, Inc.                                    Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-132      Certificate of Formation of Foote Creek III, LLC                               Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-133      Limited Liability Company Agreement of Foote Creek III, LLC                    Refer to footnote 2

     B-134      Certificate of Incorporation of Cinergy Global Foote Creek II, Inc.            Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-135      By-laws of Cinergy Global Foote Creek II, Inc.                                 Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-136      Certificate of Formation of Foote Creek II, LLC                                Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-137      By-laws of Cinergy Foot Creek IV, Inc.                                         Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-138      Articles of Association of Cinergy Global Power Services Limited               Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-139      Articles of Association of Cinergy Global Power Limited                        Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-140      Articles of Association of MPI International Limited                           Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-141      Certificate of Incorporation on name change of MPI International Limited       Cinergy's Form U5S filed
                                                                                               May 1, 1998

     B-142      Articles of Association of Cinergy Global Power (UK) Limited                   Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-143      Articles of Association of Cinergy Global Trading Limited                      Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-144      Certificate of Incorporation of Cinergy Global San Gorgonio, Inc.              Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-145      By-laws of Cinergy Global San Gorgonio, Inc.                                   Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-147      Certificate of Incorporation of Global Holdings                                Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-148      By-laws of Global Holdings                                                     Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-149      Articles of Association of Holdings B.V.                                       Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-150      Articles of Association of Cinergy Zambia B.V.                                 Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-151      Articles of Association of Copperbelt                                          Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-152      Articles of Association of Cinergy Turbines B.V.                               Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-155      Articles of Association of Hydro B.V.                                          Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-157      Certificate of Incorporation of Cinergy Global Power Iberia, S.A.              Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-158      Articles of Association of Cinergy Global Power Iberia, S.A.                   Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-165      Articles of Association of Cinergy 1 B.V.                                      Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-168      Articles of Association of Cinergy Global Resources 1 B.V.                     Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-169      Extract from the Companies Register for Teplarny                               Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-171      Articles of Association of Cinergy Global Resources a.s.                       Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-172      Articles of Association of Cinergy Global Resources 1 Sp. Z o.o.               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-173      Articles of Association of Cinergetika                                         Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-176      Articles of Association of Cinergy 2 B.V.                                      Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-184      Deed of Incorporation of Cinergy Global Baghabari I B.V.                       Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-185      Certificate of Incorporation of Cinergy Global Baghabari I B.V.                Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-186      Certificate of Incorporation of Baghabari Power Company Limited                Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-187      Articles of Association of Baghabari Power Company Limited                     Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-188      Deed of Incorporation of Cinergy Global Baghabari II B.V.                      Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-189      Certificate of Incorporation of Cinergy Global Baghabari II B.V.               Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-190      Deed of Incorporation of Cinergy South Africa Investments 1 B.V. (formerly     Cinergy's Form U5S filed
                Cinergy Global 3 B.V.)                                                         May 1, 2000

     B-191      Certificate of Incorporation of Cinergy South Africa Investments 1 B.V.        Cinergy's Form U5S filed
                (formerly Cinergy Global 3 B.V.)                                               May 1, 2000

     B-192      Certificate of Incorporation and Articles of Association of Cinergy South      Cinergy's Form U5S filed
                Africa Investments 1 B.V. (formerly Cinergy Global Power 3 B.V.)               May 1, 2001

     B-193      Certificate of Incorporation of Egoli Gas (Proprietary) Limited                Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-194      Articles of Association of Egoli Gas (Proprietary) Limited                     Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-195      Deed of Incorporation of Cinergy Global 4 B.V.                                 Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-196      Certificate of Incorporation of Cinergy Global 4 B.V.                          Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-197      Certificate of Incorporation of Cinergy Global 5 B.V.                          Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-198      Articles of Incorporation of Cinergy Global 5 B.V.                             Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-199      Memorandum of Association of Cinergy Global (Cayman) Holdings, Inc. (formerly  Cinergy's Form U5S filed
                Cinergy MPI III, Inc.)                                                         May 1, 1998

     B-200      Articles of Association of Cinergy Global (Cayman) Holdings, Inc. (formerly    Cinergy's Form U5S filed
                Cinergy MPI III, Inc.)                                                         May 1, 1998

     B-201      Memorandum of Association of Cinergy Global Hydrocarbons Pakistan (formerly    Cinergy's Form U5S filed
                Cinergy MPI I, Inc.)  (Memorandums of Association of Cinergy MPI V, Inc. is    May 1, 1998
                identical to that of Cinergy Global Hydrocarbons Pakistan and will be
                furnished upon request)

     B-202      Articles of Association of Cinergy Global Hydrocarbons Pakistan  (Articles of  Cinergy's Form U5S filed
                Association of Cinergy MPI V, Inc. is identical to that of Cinergy Global      May 1, 1998
                Hydrocarbons Pakistan and will be furnished upon request)

     B-203      Memorandum of Association of Cinergy Global Tsavo Power (formerly Cinergy MPI  Cinergy's Form U5S filed
                II, Inc.)                                                                      May 1, 1998

     B-204      Articles of Association of Cinergy Global Tsavo Power (formerly Cinergy MPI    Cinergy's Form U5S filed
                II, Inc.)                                                                      May 1, 1998

     B-205      Articles of Association of IPS - Cinergy Power Limited                         Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-206      Certificate of Incorporation of Tsavo Power Company Limited                    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-207      Articles of Association of Tsavo Power Company Limited                         Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-208      Certificate of Amendment of Certificate of Incorporation of Cinergy Global     Cinergy's Form U5S filed
                One, Inc.                                                                      May 1, 2001

     B-209      By-laws of Cinergy Global One, Inc.                                            Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-210      Articles of Association of Midlands Hydrocarbons (Bangladesh) Limited          Cinergy's Form U5S filed
                                                                                               April 30, 1999

     B-211      Certificate of Incorporation of Cinergy UK, Inc.                               Cinergy's Form U5S filed
                                                                                               May 1, 1997

     B-212      By-laws of Cinergy UK as amended, July 15, 1999                                Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-213      Memorandum of Association of Anglian Straw Limited                             Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-214      Certificate of Incorporation of Ely Power Limited                              Cinergy's Form U5S filed
                                                                                               May 1, 2000

     B-215      Amended Certificate of Formation of CinTec dated November 29, 2000             Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-216      Limited Liability Company Agreement for CinTec

     B-217      Certificate of Formation of CinTec dated November 15, 2000                     Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-218      Amended Certificate of Formation of CinTec I LLC dated November 29, 2000       Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-219      Limited Liability Company Agreement for CinTec I LLC

     B-220      Certificate of Formation of CinTec I LLC dated November 15, 2000               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-221      By-laws of Cinergy Technologies as amended September 5, 2000                   Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-222      Amended Certificate of Incorporation of Cinergy Technologies                   Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-223      Certificate of Formation of Ventures                                           Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-224      Limited Liability Company Agreement for Ventures

     B-225      Certificate of Formation of Cinergy Ventures II, LLC                           Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-226      Limited Liability Company Agreement for Cinergy Ventures II, LLC

     B-227      Certificate of Formation of Cinergy e-Supply                                   Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-228      Limited Liability Company Agreement for Cinergy e-Supply

     B-229      Certificate of Formation of Cinergy One                                        Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-230      By-laws of Cinergy One                                                         Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-231      Certificate of Incorporation of Cinergy Two, Inc.                              Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-232      Instrument of Organization for Cinergy Two, Inc.                               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-233      By-laws of Cinergy Two, Inc.                                                   Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-234      Certificate of Incorporation of Wholesale Energy                               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-235      Regulations of Wholesale Energy                                                Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-236      Certificate of Formation for Generation Services                               Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-237      Limited Liability Company Agreement for Generation Services

     B-238      By-laws of Optimira Controls, Inc. (Filed under cover of Form SE)              Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-239      Articles of Incorporation of Optimira Controls, Inc.                           Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-240      Articles of Organization for Green Power G.P., LLC                             Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-241      Limited Liability Company Agreement of Green Power G.P., LLC                   Refer to footnote 1

     B-242      Certificate of Formation of Green Power Holdings, LLC                          Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-243      Limited Liability Company Agreement of Green Power Holdings, LLC               Refer to footnote 2

     B-244      Certificate of Formation of Green Power Limited, LLC                           Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-245      Limited Liability Company Agreement of Green Power Limited, LLC                Refer to footnote 1

     B-246      Articles of Incorporation of MPI Acquisitions Corp., Inc. (formerly MPI        Cinergy's Form U5S filed
                Acquisitions)                                                                  May 1, 2001

     B-247      By-laws of MPI Acquisitions                                                    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-248      Form 10 for Cinergy Renewable Trading Limited                                  Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-249      Memorandum and Articles of Association of Cinergy Renewable Trading Limited    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-250      Certificate of Incorporation on change of name of UK Electric Power Limited    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-251      New Articles of Association of UK Electric Power Limited                       Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-262      Form 10 for Commercial Electricity Supplies Limited                            Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-263      Memorandum and Articles of Association of Commercial Electricity Supplies      Cinergy's Form U5S filed
                Limited (formerly named UK Electric Power Limited)                             May 1, 2001

     B-266      Certificate of Formation of eVent (Triple Point) LLC                           Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-267      Limited Liability Company Agreement for eVent (Triple Point) LLC               Refer to footnote 1

     B-268      Articles of Incorporation of Q-Comm Corporation (Filed under cover of Form SE) Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-269      By-laws of Incorporation of Q-Comm Corporation (Filed under cover of Form SE)  Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-270      Articles of Incorporation of Miller Pipeline Corporation (Filed under cover of Cinergy's Form U5S filed
                Form SE)                                                                       May 1, 2001

     B-271      By-laws of Miller Pipeline Corporation (Filed under cover of Form SE)          Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-272      Articles of Association of Cinergy Eesti OU                                    Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-273      Statement of Incorporation of Cinergy Eesti OU                                 Cinergy's Form U5S filed
                                                                                               May 1, 2001

     B-274      Certificate of Trust of CC Funding Trust I                                     Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-275      Certificate of Formation of CPI Allowance Management, LLC                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-276      Limited Liability Company Agreement of CPI Allowance Management, LLC

     B-277      Certificate of Formation of CPI Investments, LLC                               Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-278      Limited Liability Company Agreement of CPI Investments, LLC

     B-279      Amended and Restated Certificate of Formation of Brownsville Power I, L.L.C.   Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-280      Amended and Restated Limited Liability Company Agreement of Brownsville Power
                I, L.L.C.

     B-281      Amended and Restated Certificate of Formation of Caledonia Power I, L.L.C.     Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-282      Amended and Restated Limited Liability Company Agreement of Caledonia Power I,
                L.L.C.

     B-283      Certificate of Formation of CinCap - Chippewa, LLC                             Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-284      Limited Liability Company Agreement of CinCap - Chippewa, LLC

     B-285      Certificate of Formation of CinCap - Martinsville, LLC                         Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-286      Limited Liability Company Agreement of CinCap - Martinsville, LLC

     B-287      Certificate of Formation of CinCap - Oraville, LLC                             Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-288      Limited Liability Company Agreement of CinCap - Oraville, LLC

     B-293      Certificate of Amendment of Certificate of Formation of CinCap Madison, LLC    Cinergy's Form U5S filed
                (The sole purpose of the amendment was to change the name of Duke Energy       April 30, 2002
                Madison, LLC to CinCap Madison, LLC)

     B-294      Certificate of Incorporation of Cinergy Canada, Inc.                           Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-295      By-laws of Cinergy Canada, Inc.                                                Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-296      Certificate of Formation of Cinergy Limited Holdings, LLC                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-297      Limited Liability Company Agreement of Cinergy Limited Holdings, LLC

     B-298      Certificate of Formation of Cinergy General Holdings, LLC                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-299      Limited Liability Company Agreement of Cinergy General Holdings, LLC

     B-300      Certificate of Formation of Cinergy Propane, LLC                               Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-301      Limited Liability Company Agreement of Cinergy Propane, LLC                    Refer to footnote 1

     B-302      Certificate of Incorporation of Cinergy Retail Power Limited, Inc.             Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-303      By-laws of Cinergy Retail Power Limited, Inc.                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-304      Articles of Incorporation of Cinergy Retail Power General, Inc.                Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-305      By-laws of Cinergy Retail Power General, Inc.                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-306      Certificate of Limited Partnership of Cinergy Retail Power, L.P.               Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-307      Limited Partnership Agreement of Cinergy Retail Power, L.P.                    Refer to footnote 1

     B-310      Certificate of Formation of BSPE Holdings, LLC                                 Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-311      Limited Liability Company Agreement of BSPE Holdings, LLC                      Refer to footnote 1

     B-312      Certificate of Formation of BSPE Limited, LLC                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-313      Limited Liability Company Agreement of BSPE Limited, LLC                       Refer to footnote 1

     B-314      Articles of Organization of BSPE General, LLC                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-315      Limited Liability Company Agreement of BSPE General, LLC                       Refer to footnote 1

     B-316      Certificate of Limited Partnership of BSPE, L.P.                               Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-317      Limited Partnership Agreement of BSPE, L.P.                                    Refer to footnote 1

     B-318      Amended and Restated Certificate of Incorporation of U.S. Energy Biogas        Cinergy's Form U5S filed
                Corporation (formerly named Zahren Alternative Power Corporation)              April 30, 2002

     B-319      By-laws of U.S. Energy Biogas Corporation                                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-320      Certificate of Formation of Countryside Landfill Gasco., L.L.C.                Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-321      Limited Liability Company Agreement of Countryside Landfill Gasco., L.L.C.     Refer to footnote 3

     B-322      Certificate of Formation of Morris Gasco, L.L.C.                               Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-323      Limited Liability Company Agreement of Morris Gasco, L.L.C.                    Refer to footnote 3

     B-324      Certificate of Limited Partnership of Brown County Landfill Gas Associates,    Cinergy's Form U5S filed
                L.P.                                                                           April 30, 2002

     B-325      Limited Partnership Agreement of Brown County Landfill Gas Associates, L.P.    Refer to footnote 3

     B-326      Certificate of Formation of Cinergy Solutions of Philadelphia, LLC             Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-327      Limited Liability Company Agreement of Cinergy Solutions of Philadelphia, LLC

     B-328      Certificate of Formation of CST Limited, LLC (formerly named CS Limited, LLC)  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-329      Certificate of Amendment to Certificate of Formation of CST Limited, LLC       Cinergy's Form U5S filed
                (The sole purpose of the amendment was to change the name of CS Limited,       April 30, 2002
                LLC to CST Limited, LLC)

     B-330      Limited Liability Company Agreement of CST Limited, LLC                        Refer to footnote 1

     B-331      Articles of Organization of CST General, LLC                                   Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-332      Limited Liability Company Agreement of CST General, LLC

     B-333      Agreement of Limited Partnership of CST Green Power, L.P.                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-334      Limited Partnership Agreement of CST Green Power, L.P.                         Refer to footnote 1

     B-335      Certificate of Amendment of Certificate of Limited Partnership of South        Cinergy's Form U5S filed
                Houston Green Power, L.P. (formerly named Green Power, L.P.)                   April 30, 2002

     B-336      Limited Partnership Agreement of South Houston Green Power, L.P. (formerly     Refer to footnote 1
                named Green Power, L.P.)

     B-337      Certificate of Formation of CSGP of Southeast Texas, LLC                       Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-338      Limited Liability Company Agreement of CSGP of Southeast Texas, LLC

     B-339      Certificate of Formation of CSGP Limited, LLC                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-340      Limited Liability Company Agreement of CSGP Limited, LLC

     B-341      Articles of Organization of CSGP General, LLC                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-342      Limited Liability Company Agreement of CSGP General, LLC

     B-343      Certificate of Limited Partnership of CSGP Services, L.P.                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-344      Limited Partnership Agreement of CSGP Services, L.P.                           Refer to footnote 3

     B-345      Certificate of Formation of Delta Township Utilities, LLC                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-346      Limited Liability Company Agreement of Delta Township Utilities, LLC           Refer to footnote 1

     B-347      Certificate of Formation of Trigen-Cinergy Solutions of San Diego LLC          Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-348      Limited Liability Company Agreement of Trigen-Cinergy Solutions of San Diego
                LLC

     B-349      Certificate of Formation of Trigen-Cinergy Solutions of the Southeast LLC      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-350      Limited Liability Company Agreement of Trigen-Cinergy Solutions of the
                Southeast LLC

     B-351      Articles of Organization of Environmental Wood Supply, LLC                     Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-352      Limited Liability Company Agreement of Environmental Wood Supply, LLC          Refer to footnote 3

     B-353      Articles of Organization of St. Paul Cogeneration, LLC                         Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-354      Limited Liability Company Agreement of St. Paul Cogeneration, LLC              Refer to footnote 2

     B-355      Certificate of Incorporation with respect to CGP Global Greece Holdings, SA    Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-356      Articles of Association of CGP Global Greece Holdings, SA                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-357      Certificate of Incorporation with respect to Attiki Denmark ApS                Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-358      Articles of Association for Attiki Denmark ApS                                 Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-359      Certificate of Incorporation with respect to Attiki Gas Supply Company SA      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-360      Articles of Incorporation of Attiki Gas Supply Company SA                      Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-361      Certificate of Formation of Chandler Wind Partners, LLC                        Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-362      Limited Liability Company Agreement of Chandler Wind Partners, LLC             Refer to footnote 2

     B-363      Certificate of Formation of eVent Resources Overseas I, LLC                    Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-364      Amended and Restated Limited Liability Company Agreement of eVent Resources
                Overseas I, LLC

     B-365      Certificate of Formation of Foote Creek IV, LLC and Certificate of             Cinergy's Form U5S filed
                Correction of Foote Creek IV, LLC                                              April 30, 2002

     B-366      Limited Liability Company Agreement of Foote Creek IV, LLC                     Refer to footnote 1

     B-367      Certificate of Incorporation of Cinergy Global Peetz Table I, Inc.             Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-368      By-laws of Cinergy Global Peetz Table I, Inc.                                  Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-395      Certificate of Formation of eVent (Triple Point) LLC                           Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-396      Limited Liability Company Agreement of eVent (Triple Point) LLC                Refer to footnote 1

     B-399      Amended and Restated Certificate of Incorporation of Pentech Solutions, Inc.   Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-400      By-laws of Pentech Solutions, Inc.                                             Refer to footnote 1

     B-401      Restated Articles of Incorporation of Kreiss Johnson Technologies, Inc.        Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-402      By-laws of Kreiss Johnson Technologies, Inc.                                   Refer to footnote 1

     B-403      Amended and Restated Articles of Incorporation of Catalytic Solutions, Inc.    Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-404      By-laws of Catalytic Solutions, Inc.                                           Refer to footnote 1

     B-405      Certificate of Incorporation of IZOIC, Incorporated                            Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-406      By-laws of IZOIC, Incorporated                                                 Refer to footnote 3

     B-407      Certificate of Formation of Cinergy Origination & Trade, LLC                   Cinergy's Form U5S filed
                                                                                               April 30, 2002

     B-408      Limited Liability Company Agreement of Cinergy Origination & Trade, LLC

     B-409      Amended Certificate of Formation of Ohio River Valley Propane, LLC (The sole
                purpose of this amendment was to change the name of Cinergy Propane, LLC to
                Ohio River Valley Propane, LLC.)

     B-410      Certificate of Conversion of Marketing & Trading

     B-411      Limited Partnership Agreement of Marketing & Trading

     B-412      Amended and Restated Certificate of Formation of Cinergy Receivables Company
                LLC

     B-413      Amended and Restated Limited Liability Company Agreement of Cinergy
                Receivables Company LLC

     B-414      Certificate of Incorporation of CinFuel Resources, Inc.

     B-415      By-laws of CinFuel Resources, Inc.

     B-416      Limited Liability Company Agreement of Oak Mountain Products, LLC

     B-417      Certificate of Formation of Oak Mountain Products, LLC

     B-418      Certificate of Formation of LH1, LLC

     B-419      Limited Liability Company Agreement of LH1, LLC

     B-420      Amended and Restated Limited Liability Company Agreement for Ridge Crest

     B-421      Amended and Restated Operating Agreement for Foote Creek IV, LLC

     B-422      Certificate of Formation of Cinergy Solutions Operating Services of Lansing,
                LLC

     B-423      Limited Liability Company Agreement of Cinergy Solutions Operating Services
                of Lansing, LLC

     B-424      Limited Liability Company Agreement of Cinergy Solutions Operating Services
                of Shreveport, LLC

     B-425      Certificate of Formation of Cinergy Solutions Operating Services of
                Shreveport, LLC

     B-426      Amended and Restated Limited Liabililty Company Agreement of CinCap Madison, LLC

     B-427      Amended and Restated Operating Agreement for Foote Creek II, LLC

     B-428      Limited Liability Company Agreement of Cinergy Solutions Operating Services
                of Oklahoma, LLC

     B-429      Certificate of Formation of Cinergy Solutions Operating Services of Oklahoma, LLC

     B-430      Operating Agreement of Fiber Link, LLC                                         Refer to footnote 3

     B-431      Articles of Organization of Fiber Link, LLC

     B-432      Certificate of Formation of LB Tower Company LLC

     B-433      Limited Liability Company Agreement of LB Tower Company LLC                    Refer to footnote 1

     B-434      Amended and Restated Certificate of Incorporation of CES International, Inc.

     B-435      By-laws of CES International, Inc.                                             Refer to footnote 1

     B-436      Articles of Incorporation of Chattanooga Data Link, Inc.

     B-437      By-laws of Chattanooga Data Link, Inc.

     B-438      Amended and Restated Articles of Incorporation of Catalytic Solutions, Inc.

     B-439      Restatement of Articles of Incorporation of Cinergy Telecommunication
                Networks - Indiana, Inc.

     B-440      By-laws of Cinergy Telecommunication Networks - Indiana, Inc.

     B-441      Regulations of Cinergy Telecommunication Networks - Ohio, Inc.

     B-442      Articles of Incorporation of Cinergy Telecommunication Networks - Ohio, Inc.

     B-443      Articles of Incorporation of Knoxville Data Link, Inc.

     B-444      By-laws of Knoxville Data Link, Inc.

     B-445      Articles of Incorporation of Lexington Data Link, Inc.

     B-446      By-laws of Lexington Data Link, Inc.

     B-447      Articles of Incorporation of Louisville Data Link, Inc.

     B-448      By-laws of Louisville Data Link, Inc.

     B-449      Articles of Incorporation of Memphis Data Link, Inc.

     B-450      By-laws of Memphis Data Link, Inc.

     B-451      Articles of Incorporation of Nashville Data Link, Inc.

     B-452      By-laws of Nashville Data Link, Inc.

     B-453      Articles of Incorporation of Indianapolis Data Link, Inc.

     B-454      Articles of Incorporation of Cincinnati Data Link, Inc.

     B-455      Certificate of Amendment of Articles of Incorporation of QCC, Inc.

     B-456      By-laws of QCC, Inc.

     B-457      Articles of Incorporation of Kentucky Data Link, Inc.

     B-458      By-laws of Kentucky Data Link, Inc.

     B-459      Certificate of Formation of KDL Holdings, LLC

     B-460      Operating Agreement for KDL Holdings, LLC

     B-461      Limited Liability Company Agreement of Cinergy EPCOM College Park, LLC

     B-462      Limited Liability Company Agreement of Cinergy EPCOM

     B-463      Limited Liability Company Agreement of CinCap VIII

     B-464      Amended and Restated Limited Liability Company Agreement of Cinergy Solutions
                of Philadelphia, LLC

     B-465      Amended and Restated Articles of Incorporation of Cinergy Communications
                Company (formerly Wright Businesses, Inc.)

     B-466      By-laws of Cinergy Communications Company (formerly Wright Businesses, Inc.)

     B-467      By-laws of Biogas Financial Corporation (formerly Zahren Financial             Refer to footnote 3
                Corporation)

     B-468      Certificate of Incorporation of Biogas Financial Corporation (formerly         Refer to footnote 3
                Zahren Financial Corporation)

     B-469      Certificate of Amendment of Biogas Financial Corporation (The sole purpose of  Refer to footnote 3
                this amendment was to change the name of Zahren Financial Corporation to
                Biogas Financial Corporation.)

     B-470      By-laws of ZFC Energy, Inc.                                                    Refer to footnote 3

     B-471      Certificate of Incorporation of ZFC Energy, Inc.                               Refer to footnote 3

     B-472      By-laws of Power Generation (Suffolk), Inc.                                    Refer to footnote 3

     B-473      Certificate of Incorporation of Power Generation (Suffolk), Inc.               Refer to footnote 3
                and Certificate of Amendment (The sole purpose of this amendment was to change
                the name of O'Brien Biogas Generating (Suffolk), Inc. to Power Generation
                (Suffolk), Inc.)

     B-474      Limited Partnership Agreement of Suffolk Energy Partners, L.P.                 Refer to footnote 3

     B-475      Certificate of Limited Partnership of Suffolk Energy Partners, L.P.            Refer to footnote 3

     B-476      By-laws of Suffolk Biogas, Inc.

     B-477      Certificate of Amendment of the Certificate of Incorporation of Suffolk        Refer to footnote 3
                Biogas, Inc. (The sole purpose of this amendment was to change the name of
                O'Brien Biogas Producing (Suffolk), Inc. to Suffolk Biogas, Inc.).

     B-478      Limited Partnership Agreement of Lafayette Energy Partners, L.P.               Refer to footnote 3

     B-479      Amended Limited Partnership Certificate of Lafayette Energy Partners, L.P.     Refer to footnote 3

     B-480      Limited Partnership Agreement of Taylor Energy Partners, L.P.                  Refer to footnote 3

     B-481      Amended Limited Partnership Certificate of Taylor Energy Partners, L.P.        Refer to footnote 3

     B-482      By-laws of Resources Generating Systems, Inc.                                  Refer to footnote 3

     B-483      Certificate of Incorporation of Resources Generating Systems, Inc.             Refer to footnote 3

     B-484      Limited Partnership Agreement of Illinois Electrical Generation Partners, L.P. Refer to footnote 3

     B-485      Certificate of Formation of Illinois Electrical Generation Partners, L.P.      Refer to footnote 3

     B-486      Operating Agreement of Avon Energy Partners, L.L.C.                            Refer to footnote 3

     B-487      Articles of Organization of Avon Energy Partners, L.L.C.                       Refer to footnote 3

     B-488      By-laws of Zapco Illinois Energy, Inc.                                         Refer to footnote 3

     B-489      Certificate of Incorporation of Zapco Illinois Energy, Inc., Certificate of    Refer to footnote 3
                Amendment of Certificate of Incorporation of Zapco Illinois Energy, Inc.
                dated December 31, 1996 and Certificate of Amendment of the Certificate of
                Incorporation of Zapco Illinois Energy, Inc. dated April 3, 1998.

     B-490      Operating Agreement of Devonshire Power Partners, L.L.C.                       Refer to footnote 3

     B-491      Articles of Organization of Devonshire Power Partners, L.L.C.                  Refer to footnote 3

     B-492      Operating Agreement of Riverside Resource Recovery, L.L.C.                     Refer to footnote 3

     B-493      Articles of Organization of Riverside Resource Recovery, L.L.C.                Refer to footnote 3

     B-494      Limited Partnership Agreement of Illinois Electrical Generation Partners II,   Refer to footnote 3
                L.P.

     B-495      Certificate of Limited Partnership of Illinois Electrical Generation Partners  Refer to footnote 3
                II, L.P.

     B-496      Operating Agreement of BMC Energy, LLC                                         Refer to footnote 3

     B-497      Certificate of Formation of BMC Energy, LLC                                    Refer to footnote 3

     B-498      Certificate of Articles of Organization of Brookhaven Energy Partners, LLC     Refer to footnote 3

     B-499      Operating Agreement of Brookhaven Energy Partners, LLC                         Refer to footnote 3

     B-500      Restated Operating Agreement of Countryside Genco, L.L.C.                      Refer to footnote 3

     B-501      Certificate of Formation of Countryside Genco, L.L.C.                          Refer to footnote 3

     B-502      Restated Operating Agreement of Morris Genco, L.L.C.                           Refer to footnote 3

     B-503      Certificate of Formation of Morris Genco, L.L.C., Certificate of Renewal of    Refer to footnote 3
                Morris Genco, L.L.C. and Certificate of Amendment (The sole purpose of this
                amendment was to change the name of Macon Landfill Cogen, L.L.C. to Morris
                Genco, L.L.C.)

     B-504      Operating Agreement of Brickyard Energy Partners, LLC                          Refer to footnote 3

     B-505      Certificate of Formation of Brickyard Energy Partners, LLC                     Refer to footnote 3

     B-506      Operating Agreement of Dixon/Lee Energy Partners, LLC                          Refer to footnote 3

     B-507      Certificate of Formation of Dixon/Lee Energy Partners, LLC                     Refer to footnote 3

     B-508      Operating Agreement of Roxanna Resource Recovery, L.L.C.                       Refer to footnote 3

     B-509      Articles of Organization of Roxanna Resource Recovery, L.L.C.                  Refer to footnote 3

     B-510      Operating Agreement of Streator Energy Partners, LLC                           Refer to footnote 3

     B-511      Certificate of Formation of Streator Energy Partners, LLC                      Refer to footnote 3

     B-512      Operating Agreement of Upper Rock Energy Partners, LLC                         Refer to footnote 3

     B-513      Certificate of Formation of Upper Rock Energy Partners, LLC                    Refer to footnote 3

     B-514      Operating Agreement of Hoffman Road Energy Partners, LLC                       Refer to footnote 3

     B-515      Certificate of Formation of Hoffman Road Energy Partners, LLC, Certificate     Refer to footnote 3
                of Formation, and Certificate of Amendment  (The sole purpose of this
                amendment was to change the name of Hoffman Road Energy, LLC to Hoffman
                Road Energy Partners, LLC.)

     B-516      Limited Partnership Agreement of Barre Energy Partners, L.P.                   Refer to footnote 3

     B-517      Certificate of Limited Partnership of Barre Energy Partners, L.P.              Refer to footnote 3

     B-518      Certificate of Formation of Biomass New Jersey, L.L.C.                         Refer to footnote 3

     B-519      Operating Agreement of Biomass New Jersey, L.L.C.                              Refer to footnote 3

     B-520      Operating Agreement of Brown County Energy Associates, LLC                     Refer to footnote 3

     B-521      Certificate of Formation of Brown County Energy Associates, LLC                Refer to footnote 3

     B-522      By-laws of Burlington Energy, Inc. (formerly S.G. Phillips Energy, Inc.)       Refer to footnote 3

     B-523      Articles of Amendment of Burlington Energy, Inc. (The sole purpose of the      Refer to footnote 3
                amendment was to change the name of S.G. Phillips Energy, Inc. to Burlington
                Energy, Inc.)

     B-524      Limited Partnership Agreement of Cape May Energy Associates, L.P.              Refer to footnote 3

     B-525      Certificate of Limited Partnership of Cape May Energy Associates, L.P.         Refer to footnote 3

     B-526      Limited Partnership Agreement of Dunbarton Energy Partners, Limited            Refer to footnote 3
                Partnership

     B-527      Certificate of Limited Partnership of Dunbarton Energy Partners, Limited       Refer to footnote 3
                Partnership

     B-528      Operating Agreement of Garland Energy Development, LLC                         Refer to footnote 3

     B-529      Certificate of Formation of Garland Energy Development, LLC                    Refer to footnote 3

     B-530      By-laws of Oceanside Energy Inc. (formerly ZFC Holdings II, Inc.)              Refer to footnote 3

     B-531      Certificate of Incorporation of Oceanside Energy, Inc. (formerly ZFC Holdings  Refer to footnote 3
                II, Inc.), Certificate of Merger of Energy Tactics, Inc. into ZFC Holdings
                II, Inc., and Certificate of Amendment of the Certificate of Incorporation
                (The sole purpose of this amendment was to change the name of Energy Tactics,
                Inc. to Oceanside Energy, Inc.)

     B-532      Limited Partnership Agreement of Onondaga Energy Partners, L.P.                Refer to footnote 3

     B-533      Certificate of Limited Partnership of Onondaga Energy Partners, L.P.           Refer to footnote 3

     B-534      Limited Partnership Agreement of Oyster Bay Energy Partners, L.P.              Refer to footnote 3

     B-535      Certificate of Limited Partnership of Oyster Bay Energy Partners, L.P.         Refer to footnote 3

     B-536      Limited Partnership Agreement of Smithtown Energy Partners, L.P.               Refer to footnote 3

     B-537      Certificate of Limited Partnership of Smithtown Energy Partners, L.P.          Refer to footnote 3

     B-538      Amended Limited Partnership Agreement of Springfield Energy Associates,        Refer to footnote 3
                Limited Partnership

     B-539      Certificate of Limited Partnership of Springfield Energy Associates, Limited   Refer to footnote 3
                Partnership

     B-540      Limited Partnership Agreement of Suffolk Transmission Partners, L.P.           Refer to footnote 3

     B-541      Certificate of Limited Partnership of Suffolk Transmission Partners, L.P.      Refer to footnote 3

     B-542      Limited Partnership Agreement of Tucson Energy Partners, L.P.                  Refer to footnote 3

     B-543      Certificate of Limited Partnership of Tucson Energy Partners, L.P.             Refer to footnote 3

     B-544      By-laws of Zapco Broome Nanticoke Corp. (formerly Broome Nanticoke Corp.)      Refer to footnote 3

     B-545      Certificate of Incorporation of Zapco Broome Nanticoke Corp. (formerly Broome  Refer to footnote 3
                Nanticoke Corp.)

     B-546      Certificate of Amendment of the Certificate of Incorporation of Zapco Broome   Refer to footnote 3
                Nanticoke Corp. (The sole purpose of this amendment was to change the name of
                Broome Nanticoke Corp. to Zapco Broome Nanticoke Corp.)

     B-547      By-laws of Zapco Development Corporation                                       Refer to footnote 3

     B-548      Certificate of Incorporation of Zapco Development Corporation                  Refer to footnote 3

     B-549      By-laws of Zapco Energy Tactics Corporation                                    Refer to footnote 3

     B-550      Certificate of Incorporation of Zapco Energy Tactics Corporation               Refer to footnote 3

     B-551      By-laws of Zapco Readville Cogeneration, Inc.                                  Refer to footnote 3

     B-552      Certificate of Incorporation of Zapco Readville Cogeneration, Inc.             Refer to footnote 3

     B-553      Amended and Restated Limited Partnership Agreement of ZFC Royalty Partners,    Refer to footnote 3
                A Connecticut Limited Partnership

     B-554      Certificate of Limited Partnership of ZFC Royalty Partners, A Connecticut      Refer to footnote 3
                Limited Partnership

     B-555      By-laws of ZMG, Inc.                                                           Refer to footnote 3

     B-556      Certificate of Incorporation of ZMG, Inc.                                      Refer to footnote 3

     B-557      Amended and Restated Operating Agreement for Foote Creek III, LLC              Refer to footnote 3

     B-558      Amended and Restated Operating Agreement of St. Paul Cogeneration, LLC         Refer to footnote 3

     B-559      Amended and Restated Limited Liability Company Agreement of Green Power        Refer to footnote 3
                Holdings, LLC

     B-560      Amended and Restated Certificate of Formation of Chandler Wind Partners, LLC

     B-561      Amended and Restated Limited Liability Company Agreement for Chandler Wind
                Partners, LLC

     B-562      Restated Certificate of Incorporation of IZOIC, Incorporated

     B-563      By-laws of Cinergy as amended May 2, 2002
(1)       The referenced agreement is with one or more unaffiliated third parties, contains sensitive, competitive information, and/or is subject to confidentiality restrictions. Upon request, Cinergy will use its best efforts to make such agreement available to the SEC’s staff.

(2)      The referenced agreement has been superceded. The amended agreement has been provided.

(3)       The referenced agreement is being filed by Cinergy in paper format only because submission thereof in electronic format would involve undue expense.

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                         Previously Filed as
 Designation                                  Nature of Exhibit                                        Exhibit to:
 -----------                                  -----------------                                        -----------

     C-1        Original Indenture (First Mortgage Bonds) dated September 1, 1939, between     Exhibit A-Part 3 in File
                PSI and The First National Bank of Chicago, as Trustee, and LaSalle National   No. 70-00258 and Supplemental
                Bank, as successor Trustee.                                                    Indenture dated March 30, 1984.

     C-2        Twenty-fifth Supplemental Indenture between PSI and The First National Bank    File No. 2-62543
                of Chicago dated September 1, 1978.

     C-3        Thirty-fifth Supplemental Indenture between PSI and The First National Bank    PSI's 1984 Form 10-K in
                of Chicago dated March 30, 1984.                                               File No. 1-03543

     C-4        Forty-second Supplemental Indenture between PSI and LaSalle National Bank      PSI's 1988 Form 10-K in
                dated August 1, 1988.                                                          File No. 1-03543

     C-5        Forty-fourth Supplemental Indenture between PSI and LaSalle National Bank      PSI's 1990 Form 10-K in
                dated March 15, 1990.                                                          File No. 1-03543

     C-6        Forty-fifth Supplemental Indenture between PSI and LaSalle National Bank       PSI's 1990 Form 10-K in
                dated March 15, 1990.                                                          File No. 1-03543

     C-7        Forty-sixth Supplemental Indenture between PSI and LaSalle National Bank dated PSI's 1991 Form 10-K in
                June 1, 1990.                                                                  File No. 1-03543

     C-8        Forty-seventh Supplemental Indenture between PSI and LaSalle National Bank     PSI's 1991 Form 10-K in
                dated July 15, 1991.                                                           File No. 1-03543

     C-9        Forty-eighth Supplemental Indenture between PSI and LaSalle National Bank      PSI's 1992 Form 10-K in
                dated July 15, 1992.                                                           File No. 1-03543

     C-10       Forty-ninth Supplemental Indenture between PSI and LaSalle National Bank       PSI's 1992 Form 10-K in
                dated February 15, 1993.                                                       File No. 1-03543

     C-11       Fiftieth Supplemental Indenture between PSI and LaSalle National Bank dated    PSI's 1992 Form 10-K in
                February 15, 1993.                                                             File No. 1-03543

     C-12       Fifty-first Supplemental Indenture between PSI and LaSalle National Bank       PSI's 1993 Form 10-K in
                dated February 1, 1994.                                                        File No. 1-03543

     C-13       Fifty-second Supplemental Indenture between PSI and LaSalle National Bank, as  PSI's March 31, 1999, Form
                Trustee, dated April 30, 1999.                                                 10-Q in File No. 1-03543

     C-14       Identure (Secured Medium-term Notes, Series A), dated July 15, 1991, between   PSI's Form 10-K/A,
                PSI and LaSalle National Bank, as Trustee.                                     Amendment No. 2, dated July
                                                                                               15, 1993, in File No. 1-03543

     C-15       Identure (Secured Medium-term Notes, Series B), dated July 15, 1992, between   PSI's Form 10-K/A,
                PSI and LaSalle National Bank, as Trustee.                                     Amendment No. 2, dated July
                                                                                               15, 1993, in File No. 1-03543

     C-16       Loan Agreement between PSI and the City of Princeton, Indiana dated as of      PSI's September 30, 1996,
                November 7, 1996.                                                              Form 10-Q in File No. 1-03543

     C-17       Loan Agreement between PSI and the City of Princeton, Indiana dated as of      Cinergy's 1996 Form 10-K in
                February 1, 1997.                                                              File No. 1-11377

     C-18       Indenture dated November 15, 1996, between PSI and The Fifth Third Bank, as    Cinergy's 1996 Form 10-K in
                Trustee.                                                                       File No. 1-11377

     C-19       First Supplemental Indenture dated November 15, 1996, between PSI and The      Cinergy's 1996 Form 10-K in
                Fifth Third Bank, as Trustee.                                                  File No. 1-11377

     C-20       Third Supplemental Indenture dated as of March 15, 1998, between PSI and The   Cinergy's 1997 Form 10-K in
                Fifth Third Bank, as Trustee.                                                  File No. 1-11377

     C-21       Fourth Supplemental Indenture dated as of August 5, 1998, between PSI and The  PSI's June 30, 1998 Form
                Fifth Third Bank, as Trustee.                                                  10-Q in File No. 1-03543

     C-22       Fifth Supplemental Indenture dated as of December 15, 1998, between PSI and    PSI's 1998 Form 10-K in
                The Fifth Third Bank, as Trustee.                                              File No. 1-03543

     C-23       Sixth Supplemental Indenture dated as of April 30, 1999, between PSI and       PSI's March 31, 1999, Form
                Fifth Third Bank, as Trustee.                                                  10-Q in File No. 1-03543

     C-24       Seventh Supplemental Indenture dated as of October 20, 1999, between PSI and   PSI's September 30, 1999,
                Fifth Third Bank, as Trustee.                                                  Form 10-Q in File No. 1-03543

     C-25       Unsecured Promissory Note dated as of October 14, 1998, between PSI and the    PSI's 1998 Form 10-K in
                Rural Utilities Service.                                                       File No. 1-03543

     C-26       Loan Agreement between PSI and the Indiana Development Finance Authority       PSI's June 30 1998, Form
                dated as of July 15, 1998.                                                     10-Q in File No. 1-03543

     C-27       Loan Agreement between PSI and the Indiana Development Finance Authority       PSI's June 30, 2000 Form
                dated as of May 1, 2000.                                                       10-Q in File No. 1-03543

     C-28       Original Indenture (First Mortgage Bonds) between CG&E and The Bank of New     CG&E's Registration
                York (as Trustee) dated as of August 1, 1936.                                  Statement No. 2-02374

     C-29       Fourteenth Supplemental Indenture between CG&E and The Bank of New York dated  CG&E's Registration
                as of November 2, 1972.                                                        Statement No. 2-60961

     C-30       Thirty-third Supplemental Indenture between CG&E and The Bank of New York      CG&E's Registration
                dated as of September 1, 1992.                                                 Statement No. 33-53578

     C-31       Thirty-fourth Supplemental Indenture between CG&E and The Bank of New York     CG&E's September 30, 1993,
                dated as of October 1, 1993.                                                   Form 10-Q in File No. 1-01232

     C-32       Thirty-fifth Supplemental Indenture between CG&E and The Bank of New York      CG&E's Registration
                dated as of January 1, 1994.                                                   Statement No. 33-52335

     C-33       Thirty-sixth Supplemental Indenture between CG&E and The Bank of New York      CG&E's Registration
                dated as of February 15, 1994.                                                 Statement No. 33-52335

     C-34       Thirty-seventh Supplemental Indenture between CG&E and The Bank of New York    Cinergy's 1996 Form 10-K in
                dated as of October 14, 1996.                                                  File No. 1-11377

     C-35       Loan Agreement between CG&E and the County of Boone, Kentucky dated as of      CG&E's 1984 Form 10-K in
                February 1, 1985.                                                              File No. 1-01232

     C-36       Repayment Agreement between CG&E and The Dayton Power and Light Company dated  CG&E's 1992 Form 10-K in
                as of December 23, 1992.                                                       File No. 1-01232

     C-37       Loan Agreement between CG&E and the County of Boone, Kentucky dated as of      CG&E's 1993 Form 10-K in
                January 1, 1994.                                                               File No. 1-01232

     C-38       Loan Agreement between CG&E and the State of Ohio Air Quality Development      CG&E's 1985 Form 10-K in
                Authority dated as of December 1, 1985.                                        File No. 1-01232

     C-39       Loan Agreement between CG&E and the State of Ohio Air Quality Development      CG&E's September 30, 1995,
                Authority dated as of September 13, 1995.                                      Form 10-Q in File No. 1-01232

     C-40       Loan Agreement between CG&E and the State of Ohio Water Development Authority  CG&E's 1993 Form 10-K in
                dated as of January 1, 1994.                                                   File No. 1-01232

     C-41       Loan Agreement between CG&E and the State of Ohio Air Quality Development      CG&E's 1993 Form 10-K in
                Authority dated as of January 1, 1994.                                         File No. 1-01232

     C-42       Original Indenture (Unsecured Debt Securities) between CG&E and The Fifth      CG&E's Form 8-A dated July
                Third Bank dated as of May 15, 1995.                                           24, 1995, in File No. 1-01232

     C-43       First Supplemental Indenture between CG&E and The Fifth Third Bank dated as of CG&E's June 30, 1995, Form
                June 1, 1995.                                                                  10-Q in File No. 1-01232

     C-44       Second Supplemental Indenture between CG&E and The Fifth Third Bank dated as   CG&E's Form 8-A dated July
                of June 30, 1995.                                                              24, 1995 in File No. 1-01232

     C-45       Third Supplemental Indenture between CG&E and The Fifth Third Bank dated as    CG&E's September 30, 1997,
                of October 9, 1997.                                                            Form 10-Q in File No. 1-01232

     C-46       Fourth Supplemental Indenture between CG&E and The Fifth Third Bank dated as   CG&E's March 31, 1998, Form
                of April 1, 1998.                                                              10-Q in File No. 1-01232

     C-47       Fifth Supplemental Indenture between CG&E and The Fifth Third Bank dated as of CG&E's June 30, 1998, Form
                June 9, 1998.                                                                  10-Q in File No. 1-01232

     C-48       Original Indenture (First Mortgage Bonds) between ULH&P and The Bank of New    ULH&P's Registration
                York dated as of February 1, 1949.                                             Statement No. 2-07793

     C-49       Fifth Supplemental Indenture between ULH&P and The Bank of New York dated      CG&E's Registration
                as of January 1, 1967.                                                         Statement No. 2-60961

     C-50       Thirteenth Supplemental Indenture between ULH&P and The Bank of New York       ULH&P's 1992 Form 10-K in
                dated as of August 1, 1992.                                                    File No. 2-07793

     C-51       Original Indenture (Unsecured Debt Securities) between ULH&P and The Fifth     ULH&P's June 30, 1995, Form
                Third Bank dated as of July 1, 1995.                                           10-Q in File No. 2-07793

     C-52       First Supplemental Indenture between ULH&P and The Fifth Third Bank dated as   ULH&P's June 30, 1995, Form
                of July 15, 1995.                                                              10-Q in File No. 2-07793

     C-53       Second Supplemental Indenture between ULH&P and The Fifth Third Bank dated     ULH&P's March 31, 1998 Form
                as of April 30, 1998.                                                          10-Q in File No. 2-07793

     C-54       Third Supplemental Indenture between ULH&P and The Fifth Third Bank dated as   ULH&P's 1998 Form 10-K in
                of December 8, 1998.                                                           File No. 2-07793

     C-55       Fourth Supplemental Indenture between ULH&P and The Fifth Third Bank, as       ULH&P's September 30, 1999,
                Trustee, dated as of September 17, 1999.                                       Form 10-Q in File No. 2-07793

     C-56       Base Indenture dated as of October 15, 1998, between Global Resources and The  Cinergy's September 30,
                Fifth Third Bank, as Trustee.                                                  1998, Form 10-Q in
                                                                                               File No. 1-11377

     C-57       First Supplemental Indenture dated as of October 15, 1998, between Global      Cinergy's September 30,
                Resources and The Fifth Third Bank, as Trustee.                                1998, Form 10-Q in
                                                                                               File No. 1-11377

     C-58       Indenture dated as of December 16, 1998, between Cinergy and The Fifth Third   Cinergy's 1998 Form 10-K in
                Bank.                                                                          File No. 1-11377

     C-59       Indenture between Cinergy and The Fifth Third Bank, as Trustee, dated as of    Cinergy's March 31, 1999,
                April 15, 1999.                                                                Form 10-Q in File No. 1-11377

     C-60       Agreement for Puchase and Sale of Assets, dated March 31, 1994, by and         Cinergy's Form U5B filed
                between Columbia Gas as Seller and KO Transmission as Buyer.                   January 23, 1995

     C-61       Agreement for Purchase and Sale of Line AM-4, dated March 31, 1994, by and     Cinergy's Form U5B filed
                between Columbia Gas as Seller and KO Transmission as Buyer.                   January 23, 1995

     C-62       Rights Agreement between Cinergy and The Fifth Third Bank, as Rights Agent,    Cinergy's Registration
                dated October 16, 2000.                                                        Statement on Form 8-A dated
                                                                                               October 16, 2000 in File
                                                                                               No. 1-11377

     C-63       Fifty-third Supplemental Indenture between PSI and LaSalle National Bank       Cinergy's June 30, 2001,
                dated June 15, 2001.                                                           Form 10-Q in File No. 1-11377

     C-64       Loan Agreement between CG&E and the State of Ohio Air Quality Development      Cinergy's September 30,
                Authority dated August 1, 2001.                                                2001, Form 10-Q in File No.
                                                                                               1-11377

     C-65       Indenture between Cinergy and The Fifth Third Bank, as Trustee, dated          Cinergy's September 30,
                September 12, 2001.                                                            2001, Form 10-Q in File No.
                                                                                               1-11377

     C-66       First Supplemental Indenture between Cinergy and The Fifth Third Bank, as      Cinergy's September 30,
                Trustee, dated September 12, 2001.                                             2001, Form 10-Q in File No.
                                                                                               1-11377

     C-67       Second Supplemental Indenture, dated December 18, 2001, between Cinergy and    Cinergy's Form 8-K,
                The Fifth Third Bank, as Trustee.                                              December 19, 2001 in File
                                                                                               No. 1-11377

     C-68       Purchase Contract Agreement, dated December 18, 2001, between Cinergy and The  Cinergy's Form 8-K,
                Bank of New York, as Purchase Contract Agent.                                  December 19, 2001 in File
                                                                                               No. 1-11377

     C-69       Pledge Agreement, dated December 18, 2001, among Cinergy, JP Morgan Chase      Cinergy's Form 8-K,
                Bank, as Collateral Agent, Custodial Agent and Securities Intermediary, and    December 19, 2001 in File
                The Bank of New York, as Purchase Contract Agent.                              No. 1-11377

     C-70       Thirty-eighth Supplemental Indenture between CG&E and The Bank of New York     Cinergy's March 31, 2001,
                dated as of February 1, 2001.                                                  Form 10-Q in File No. 1-11377

     C-71       Thirty-ninth Supplemental Indenture dated as of September 1, 2002, between     Cinergy's September 30,
                CG&E and the Bank of New York, as Trustee.                                     2002, Form 10-Q in File No.
                                                                                               1-11377

     C-72       Fifty-fourth Supplemental Indenture dated as of September 1, 2002, between PSI Cinergy's September 30,
                and LaSalle Bank National Association, as Trustee.                             2002, Form 10-Q in File No.
                                                                                               1-11377

     C-73       Sixth Supplemental Indenture between CG&E and Fifth Third Bank dated as of     Cinergy's September 30,
                September 15, 2002.                                                            2002, Form 10-Q in File No.
                                                                                               1-11377

     C-74       Loan Agreement between PSI and the Indiana Development Finance Authority dated Cinergy's September 30,
                as of September 1, 2002.                                                       2002, Form 10-Q in File No.
                                                                                               1-11377

     C-75       Loan Agreement between PSI and the Indiana Development Finance Authority dated Cinergy's September 30,
                as of September 1, 2002.                                                       2002, Form 10-Q in File No.
                                                                                               1-11377

     C-76       Loan Agreement between CG&E and the Ohio Air Quality Development Authority     Cinergy's September 30,
                dated as of September 1, 2002.                                                 2002, Form 10-Q in File No.
                                                                                               1-11377

     C-77       First Amendment to Rights Agreement, dated August 28, 2002, effective          Cinergy's Form 8-A/A,
                September 16, 2002, between Cinergy and The Fifth Third Bank, as Rights Agent. Amendment No. 1, filed
                                                                                               September 16, 2002 in File
                                                                                               No. 1-11377

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                         Previously Filed as
 Designation                                  Nature of Exhibit                                        Exhibit to:
 -----------                                  -----------------                                        -----------

     D-1        Agreement between Cinergy and subsidiary companies for filing                  Filed pursuant to Rule 104(b)
                consolidated income tax returns and for allocation of consolidated income tax
                liabilities and benefits

     D-2        Schedule detailing reallocation of 2002 taxes in accordance with agreement     Filed pursuant to Rule 104(b)
                filed as Exhibit D-1

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                         Previously Filed as
 Designation                                  Nature of Exhibit                                        Exhibit to:
 -----------                                  -----------------                                        -----------

     F-1        Consolidating Financial Statements of Cinergy for 2002                         Filed pursuant to Rule 104(b)

     F-2        Consolidating Financial Statements of CG&E for 2002                            Filed pursuant to Rule 104(b)

     F-3        Consolidating Financial Statements of Investments for 2002                     Filed pursuant to Rule 104(b)

     F-4        Consolidating Financial Statements of Capital & Trading for 2002               Filed pursuant to Rule 104(b)

     F-5        Consolidating Financial Statements of Cinergy Limited Holdings, LLC for 2002   Filed pursuant to Rule 104(b)

     F-6        Consolidating Financial Statements of Marketing & Trading for 2002             Filed pursuant to Rule 104(b)

     F-7        Consolidating Financial Statements of LH1, LLC for 2002                        Filed pursuant to Rule 104(b)

     F-8        Consolidating Financial Statements of Cinergy Telecommunications Holding       Filed pursuant to Rule 104(b)
                Company, Inc.

     F-9        Consolidating Financial Statements of Solutions Holding for 2002               Filed pursuant to Rule 104(b)

     F-10       Consolidating Financial Statements of 3036243 Nova Scotia Company for 2002     Filed pursuant to Rule 104(b)

     F-11       Consolidating Financial Statements of Vestar, Inc. for 2002                    Filed pursuant to Rule 104(b)

     F-12       Consolidating Financial Statements of Solutions for 2002                       Filed pursuant to Rule 104(b)

     F-13       Consolidating Financial Statements of CSGP Limited, LLC for 2002               Filed pursuant to Rule 104(b)

     F-14       Consolidating Financial Statements of Global Resources for 2002                Filed pursuant to Rule 104(b)

     F-15       Consolidating Financial Statements of Global Power for 2002                    Filed pursuant to Rule 104(b)

     F-16       Consolidating Financial Statements of Holdings B.V. for 2002                   Filed pursuant to Rule 104(b)

     F-17       Consolidating Financial Statements of Hydro B.V. for 2002                      Filed pursuant to Rule 104(b)

     F-18       Consolidating Financial Statements of Cinergy Global Resources 1 B.V. for 2002 Filed pursuant to Rule 104(b)

     F-19       Consolidating Financial Statements of CinTec for 2002                          Filed pursuant to Rule 104(b)

     F-20       Consolidating Financial Statements of CinTec I LLC for 2002                    Filed pursuant to Rule 104(b)

     F-21       Consolidating Financial Statements of Cinergy Technologies for 2002            Filed pursuant to Rule 104(b)

     F-22       Consolidating Financial Statements of Wholesale Energy for 2002                Filed pursuant to Rule 104(b)

     F-23       Financial Statements of Cinergy Receivables Company LLC for 2002               Filed pursuant to Rule 104(b)

     F-24       Financial Statements of Cadence Network for 2002                               Filed pursuant to Rule 104(b)

     F-25       Financial Statements of CinPower I, LLC for 2002                               Filed pursuant to Rule 104(b)

     F-26       Consolidating Financial Statements of Q-Comm Corporation for 2002              Filed pursuant to Rule 104(b)

     F-27       Financial Statements of Brownsville Power I, LLC for 2002                      Refer to footnote 1

     F-28       Financial Statements of Caledonia Power I, LLC for 2002                        Refer to footnote 1

     F-29       Financial Statements of CinCap IV, LLC for 2002                                Refer to footnote 1

     F-30       Financial Statements of CinCap V, LLC for 2002                                 Refer to footnote 1

     F-31       Financial Statements of CinCap VII, LLC for 2002                               Refer to footnote 1

     F-32       Financial Statements of CinCap Madison, LLC for 2002                           Refer to footnote 1

     F-33       Financial Statements of Lattice Communications, LLC for 2002                   Filed pursuant to Rule 104(b)

     F-33       Financial Statements of LB Tower Company, LLC for 2002                         Filed pursuant to Rule 104(b)

     F-34       Financial Statements of Keen Rose Technology Group Limited for 2002            Filed pursuant to Rule 104(b)

     F-34       Financial Statements of Optimira Controls, Inc. for 2002                       Filed pursuant to Rule 104(b)

     F-35       Financial Statements of Cinergy Energy Solutions, Inc. for 2002                Filed pursuant to Rule 104(b)

     F-36       Financial Statements of U.S. Energy Biogas Corporation and subsidiaries for    Refer to footnote 3
                2002

     F-37       Financial Statements of Countryside Landfill Gasco., L.L.C. for 2002           Filed pursuant to Rule 104(b)

     F-37       Financial Statements of Morris Gasco, L.L.C. for 2002                          Filed pursuant to Rule 104(b)

     F-37       Financial Statements of Brown County Landfill Gas Associates, L.P. for 2002    Filed pursuant to Rule 104(b)

     F-38       Financial Statements of South Houston Green Power, L.P. for 2002               Filed pursuant to Rule 104(b)

     F-38       Financial Statements of Green Power Holdings, LLC for 2002                     Filed pursuant to Rule 104(b)

     F-38       Financial Statements of Green Power Limited, LLC for 2002                      Filed pursuant to Rule 104(b)

     F-38       Financial Statements of Green Power G.P., LLC for 2002                         Filed pursuant to Rule 104(b)

     F-39       Financial Statements of Oklahoma Arcadian Utilities, LLC for 2002              Filed pursuant to Rule 104(b)

     F-39       Financial Statements of Shreveport Red River Utilities, LLC for 2002           Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Delta Township Utilities, LLC for 2002                 Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Energy Equipment Leasing LLC for 2002                  Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Trigen-Cinergy Solutions LLC for 2002                  Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Trigen-Cinergy Solutions of Ashtabula LLC for 2002     Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Trigen-Cinergy Solutions of Baltimore LLC for 2002     Filed pursuant to Rule 104(b)

     F-40       Financial Statements of Trigen-Cinergy Solutions of Boca Raton, LLC for 2002   Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of Cincinnati LLC for 2002    Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of College Park, LLC for 2002 Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of Lansing LLC for 2002       Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen/Cinergy - USFOS of Lansing LLC for 2002         Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of Orlando LLC for 2002       Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of Owings Mills LLC for 2002  Filed pursuant to Rule 104(b)

     F-41       Financial Statements of Trigen-Cinergy Solutions of Owings Mills Energy        Filed pursuant to Rule 104(b)
                Equipment Leasing, LLC

     F-42       Financial Statements of Trigen-Cinergy Solutions of Rochester LLC for 2002     Filed pursuant to Rule 104(b)

     F-42       Financial Statements of Trigen-Cinergy Solutions of Silver Grove LLC for 2002  Filed pursuant to Rule 104(b)

     F-42       Financial Statements of Environmental Wood Supply, LLC for 2002                Filed pursuant to Rule 104(b)

     F-42       Financial Statements of St. Paul Cogeneration LLC for 2002                     Filed pursuant to Rule 104(b)

     F-42       Financial Statements of Trigen-Cinergy Solutions of Tuscola, LLC for 2002      Filed pursuant to Rule 104(b)

     F-43       Consolidating Financial Statements of Reliant for 2002                         Filed pursuant to Rule 104(b)

     F-44       Consolidating Financial Statements of MP Acquisitions Corp., Inc. for 2002     Filed pursuant to Rule 104(b)

     F-45       Financial Statements of Global Power for 2002                                  Refer to footnote 1

     F-46       Financial Statements of Attiki Denmark ApS for 2002                            Refer to footnote 1

     F-47       Financial Statements of Attiki Gas Supply Company SA for 2002                  Refer to footnote 1

     F-48       Financial Statements of Cinergy Global Chandler Holding, Inc. for 2002         Refer to footnote 1

     F-49       Financial Statements of Chandler Wind Partners, LLC for 2002                   Refer to footnote 1

     F-50       Financial Statements of Cinergy Global Ely, Inc. for 2002                      Refer to footnote 1

     F-51       Financial Statements of EPR Ely Power Limited for 2002                         Refer to footnote 1

     F-52       Financial Statements of EPR Ely Limited for 2002                               Refer to footnote 1

     F-53       Financial Statements of Anglian Straw Limited for 2002                         Refer to footnote 1

     F-54       Financial Statements of Anglian Ash Limited for 2002                           Refer to footnote 1

     F-55       Financial Statements of Foote Creek III, LLC for 2002                          Filed pursuant to Rule 104(b)

     F-56       Financial Statements of Foote Creek II, LLC for 2002                           Filed pursuant to Rule 104(b)

     F-57       Financial Statements of Foote Creek IV, LLC for 2002                           Filed pursuant to Rule 104(b)

     F-58       Financial Statements of Cinergy Global Peetz Table I, Inc. for 2002            Refer to footnote 1

     F-59       Financial Statements of Ridge Crest for 2002                                   Refer to footnote 1

     F-60       Financial Statements of Cinergy Global Power (UK) Limited for 2002             Refer to footnote 1

     F-61       Financial Statements of Cinergy Global Trading Limited for 2002                Refer to footnote 1

     F-62       Financial Statements of Cinergy Renewable Trading Limited for 2002             Refer to footnote 1

     F-63       Financial Statements of UK Electric Power Limited for 2002                     Refer to footnote 1

     F-64       Financial Statements of Copperbelt for 2002                                    Refer to footnote 1

     F-65       Financial Statements of Cinergy Global Resources 1 B.V. for 2002               Refer to footnote 1

     F-66       Financial Statements of Teplarny for 2002                                      Refer to footnote 4

     F-67       Financial Statements of Cinergetika for 2002                                   Refer to footnote 4

     F-68       Financial Statements of Energy Customer Services, s.r.o. for 2002              Refer to footnote 1

     F-69       Financial Statements of Egoli Gas (Proprietary) Limited for 2002               Refer to footnote 1

     F-70       Financial Statements of Cinergy Global (Cayman) Holdings, Inc. for 2002        Refer to footnote 1

     F-71       Financial Statements of Cinergy Global Tsavo Power for 2002                    Refer to footnote 1

     F-72       Financial Statements of IPS-Cinergy Power Limited for 2002                     Refer to footnote 1

     F-73       Financial Statements of Tsavo Power Company Limited for 2002                   Refer to footnote 1

     F-74       Financial Statements of CZECHPOL ENERGY spol, s.r.o. for 2002                  Refer to footnote 4

     F-75       Financial Statements of Moravia Energo for 2002                                Refer to footnote 1

     F-76       Financial Statements of eVent Resources Overseas I, LLC for 2002               Filed pursuant to Rule 104(b)

     F-77       Financial Statements of Powermid No. 1 for 2002                                Refer to footnote 1

     F-78       Financial Statements of Cinergy Global Power Africa (Proprietary)              Refer to footnote 1
                Limited for 2002

     F-79       Financial Statements of eVent Resources Holdings LLC for 2002                  Filed pursuant to Rule 104(b)

     F-80       Financial Statements of CES International for 2002                             Refer to footnote 2

     F-81       Financial Statements of Pentech Solutions, Inc. for 2002                       Refer to footnote 2

     F-82       Financial Statements of Kreiss Johnson Technologies, Inc. for 2002             Refer to footnote 2

     F-83       Financial Statements of Catalytic Solutions, Inc. for 2002                     Refer to footnote 2

     F-84       Financial Statements of IZOIC, Incorporated for 2002                           Refer to footnote 2

     F-85       Classified plant accounts and related depreciation or amortization reserve     Filed under cover of Form SE
                schedules included in the 2002 FERC Form No. 1 of CG&E

     F-86       Classified plant accounts and related depreciation or amortization reserve     Filed under cover of Form SE
                schedules included in the 2002 PUCO FERC Form No. 2 of CG&E

     F-87       Classified plant accounts and related depreciation or amortization reserve     Filed under cover of Form SE
                schedules included in the 2002 FERC Form No. 1 of PSI

     F-88       Classified plant accounts and related depreciation or amortization reserve     Filed under cover of Form SE
                schedules included in the FERC Form No. 1 and FERC Form No. 2 of ULH&P

     F-89       Classified plant accounts and related depreciation or amortization reserve     Filed under cover of Form SE
                schedules included in the 2002 Annual Report of Lawrenceburg to the IURC

     F-90       The 2002 FERC Form No. 2-A for KO Transmission                                 Filed under cover of Form SE

     F-91       The 2002 Annual Report of Trigen-Cinergy Solutions of Cincinnati LLC to the    Filed under cover of Form SE
                PUCO
(1)       Cinergy has not obtained complete financial statements for this entity as of December 31, 2002, and therefore it is not in a position to provide the financial statements. Cinergy will amend this annual report with the Commission at such time this information is available.

(2)       Cinergy has not provided financial statements for this entity because they are subject to confidentiality restrictions with third parties.

(3)       These financial statements are filed pursuant to Rule 104(b). At the time of filing, the balance sheets and income statements are the only financial statements available. The attainment of cash flows and common stock equity financial statements is not reasonable without incurring undue expense.

(4)       These financial statements are filed pursuant to Rule 104(b). At the time of filing, the available financial statements are denominated in the local currency, not U.S. currency. The attainment of Audited U.S. currency financial statements is not reasonable without incurring undue expense.

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                     Previously Filed as
 Designation                                  Nature of Exhibit                                    Exhibit to:
 -----------                                  -----------------                                    -----------

     G          Organizational chart showing relationship of EWGs and FUCOs to other system    Refer to Item 1
                companies

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                     Previously Filed as
 Designation                                        Nature of Exhibit                             Exhibit to:
 -----------                                        -----------------                             -----------

     H-1        Financial Statements of Brownsville Power I, LLC for the year ended            Refer to footnote 1
                December 31, 2002

     H-2        Financial Statements of Caledonia Power I, LLC for the year ended              Refer to footnote 1
                December 31, 2002

     H-3        Financial Statements of CinCap VII, LLC for the year ended December 31, 2002   Refer to footnote 1

     H-4        Financial Statements of CinCap Madison, LLC for the year ended                 Refer to footnote 1
                December 31, 2002

     H-5        Financial Statements of Chandler Wind Partners, LLC for the year ended         Refer to footnote 1
                December 31, 2002

     H-6        Financial Statements of Foote Creek III, LLC for the year ended                Refer to Item 10 F-55
                December 31, 2002

     H-7        Financial Statements of Foote Creek II, LLC for the year ended                 Refer to Item 10 F-56
                December 31, 2002

     H-8        Financial Statements of Foote Creek IV, LLC for the year ended                 Refer to Item 10 F-57
                December 31, 2002

     H-9        Financial Statements of Ridge Crest for the year ended December 31, 2002       Refer to footnote 1

     H-10       Financial Statements of Global Power for the year ended December 31, 2002      Refer to footnote 1

     H-11       Financial Statements of Attiki Gas Supply Company SA for the year ended        Refer to footnote 1
                December 31, 2002

     H-12       Financial Statements of Cinergy Global Ely, Inc. for the year ended            Refer to footnote 1
                December 31, 2002

     H-13       Financial Statements of EPR Ely Limited for the year ended December 31, 2002   Refer to footnote 1

     H-14       Financial Statements of Cinergy Global Power (UK) Limited for the year ended   Refer to footnote 1
                December 31, 2002

     H-15       Financial Statements of Copperbelt for the year ended December 31, 2002        Refer to footnote 1

     H-16       Financial Statements of Cinergy Global Resources 1 B.V. for the year ended     Refer to footnote 1
                December 31, 2002

     H-17       Financial Statements of Teplarny for the year ended December 31, 2002          Refer to Item 10 F-66

     H-18       Financial Statements of Cinergetika for the year ended December 31, 2002       Refer to Item 10 F-67

     H-19       Financial Statements of Egoli Gas (Proprietary) Limited for the year ended     Refer to footnote 2
                December 31, 2002

     H-20       Financial Statements of Tsavo Power Company Limited for the year ended         Refer to footnote 1
                December 31, 2002

     H-21       Financial Statements of CZECHPOL ENERGY spol, s.r.o. for the year ended        Refer to Item 10 F-74
                December 31, 2002
(1)         Cinergy has not obtained complete financial statements for this entity as of December 31, 2002, and therefore it is not in a position to provide the 2002 financial statements. Cinergy will amend this annual report with the Commission at such time this information is available.

(2)         This entity was inactive as of December 31, 2002.

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                     Previously Filed as
 Designation                                  Nature of Exhibit                                    Exhibit to:
 -----------                                  -----------------                                    -----------

     I          Response to Item 1                                                             Refer to footnote 1
(1)         Cinergy's issuer's and owners book value and other amounts, at December 31, 2002, will be filed pursuant to Rule 104(b). This is currently being researched and will be incorporated at such time this information is available.

The documents listed below are being filed or have previously been filed and are incorporated herein by reference from the documents indicated and made a part hereof. Exhibits not identified as previously filed are filed herewith: 

   Exhibit                                                                                         Previously Filed as
 Designation                                  Nature of Exhibit                                        Exhibit to:
 -----------                                  -----------------                                        -----------

     J          Response to Item 9, Part I (b) and (c) and Part III for all EWGs and FUCOs     Filed pursuant to Rule 104(b)

SIGNATURE

Each undersigned system company has duly caused this annual report to be signed on its behalf by the undersigned thereunto duly authorized pursuant to the requirements of the Public Utility Holding Company Act of 1935. The signature of each undersigned company shall be deemed to relate only to matters having reference to such company or its subsidiaries.

               CINERGY CORP.



 By:     /s/     Wendy L. Aumiller
      --------------------------------

                 Treasurer
Date: May 1, 2003  
 EX-99 3 b-42.htm LLC AGREE CINCAP IX LLC Agree CinCap IX

LIMITED LIABILITY COMPANY AGREEMENT

OF

CinCap IX, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of August 14, 2000, of CinCap IX, LLC, a Delaware limited liability company (the “Company”), by Cinergy Capital & Trading, Inc., an Indiana corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on August 14, 2000 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of August 14,

2000; 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 “CinCap IX, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts unless agreed otherwise by the member(s).

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.



By: ___________________
       Arturo Vivar
       Vice President
EX-99 4 b-44.htm LLC AGREE CINCAP X LLC Agree CinCap X

LIMITED LIABILITY COMPANY AGREEMENT

OF

CinCap X, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of August 14, 2000, of CinCap X, LLC, a Delaware limited liability company (the “Company”), by Cinergy Capital & Trading, Inc., an Indiana corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on August 14, 2000 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of August 14, 2000;

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 “CinCap X, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts unless agreed otherwise by the member(s).

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.



By: ___________________
       Michael J. Cyrus
       President
EX-99 5 b-50.htm LLC AGREE CINERGY TRANSPORTATION LLC Agree Cinergy Transportation 
                       LIMITED LIABILITY COMPANY AGREEMENT

                                       OF

                           Cinergy Transportation, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
June 14, 2000,  of Cinergy  Transportation,  LLC, a Delaware  limited  liability
company  (the  "Company"),  by  Cinergy  Capital &  Trading,  Inc.,  an  Indiana
corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the  Company  was formed on June 14,  2000 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of June 14, 2000; 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:

                                    AGREEMENT

                                    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 "CinCap V, 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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, New Castle County, Delaware.

          (b)  The  business  address  of the  Company  is 139  E.  4th  Street,
     Cincinnati, OH 45202, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of Members.  New members shall be admitted only with
the approval of all members.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the members.

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 members.

                                   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(s) who shall have full,  exclusive and complete  discretion to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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(s) shall serve without compensation from
the  Company,  and the  Member(s)  shall bear the cost of its  participation  in
meetings and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the Member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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 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 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  subordinate  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)
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.  The  contribution  of a member  to the
Company  must be in cash or  property,  provided  that if there is more than one
member, all members 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
members.  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance with the members' interests in the Company" 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 members are
admitted, the members in proportion to their respective capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions of the Company
shall be  allocated  entirely  to the  Member  or,  if  additional  members  are
admitted, the members in proportion to their respective capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     Section 8.2 Winding Up.  Subject to the  provisions  of the Act, the Member
or, if additional  members are admitted,  the Members (acting by written consent
of all  members)  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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     Section  9.2 Form  K-1.  After  the end of each  Fiscal  Year for which the
Company shall have more than one member,  the members 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  members are
admitted,  the  Members  shall  cause to be  prepared  and timely  filed all tax
returns required to be filed for the Company.  The Member or the members (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 members shall be required in order for the
Company to make an election pursuant to Section 754 of the Internal Revenue Code
of 1986, as amended (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,  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 the 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  members  are  admitted,
unanimous consent of the Members.

     Section  11.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional members are admitted,  the Members 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 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 11.8 Books and Records;  Accounting.  The Member or, if  additional
members are admitted,  the Members shall keep or cause to be kept at the address
of the Company (or at such other place as the members  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 duly executed this Agreement as of
the date first above written.


                                           CINERGY CAPITAL & TRADING, INC.


                                      By:  __________________________
                                             Michael J. Cyrus
                                             President
EX-99 6 b-52.htm LLC AGREE OF SYNCAP II LLC Agreement of SYNCAP II, LLC

LIMITED LIABILITY COMPANY AGREEMENT

OF

SYNCAP II, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of October 13, 2000, of SYNCAP II, LLC, a Delaware limited liability company (the “Company”), by Cinergy Capital & Trading, Inc., a Delaware corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on October 13, 2000 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of October 13,

2000; 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 “SYNCAP II, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

        Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.



By: ___________________
       Michael J. Cyrus
       President
EX-99 7 b-80.htm LLC AGREE LANSING GRAND RIVER UTILITIES LLC Agree Lansing Grand River Utilities 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                       LANSING GRAND RIVER UTILITIES, LLC

     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
September 14, 2000, of LANSING GRAND RIVER  UTILITIES,  LLC, a Delaware  limited
liability  company  (the  "Company"),  by Cinergy  Solutions,  Inc.,  a Delaware
corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS, the Company was formed on September 14, 2000 by the Sole Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of September 14, 2000; 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 "LANSING  GRAND RIVER
UTILITIES,  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,  1209  Orange
     Street, Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati,  Ohio,  or such other  place as the  Member,  or if  additional
     member(s) are admitted, the member(s) shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of all of the then existing member(s).

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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  member(s) are admitted,  the member(s) who shall have
full,  exclusive and complete  discretion to manage and control the business and
affairs of the Company as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 member(s) shall serve without  compensation from the Company,  and the
Member or  member(s)  shall bear the cost of its  participation  in meetings and
other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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 subordinate  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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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  VII,  this
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                        Cinergy Solutions, Inc.



                                        By:  ___________________
                                               M. Stephen Harkness
                                               President and Operating Officer
EX-99 8 b-87.htm LLC AGREE SOLUTIONS OF BOCA RATON LLC Agree Cinergy Solutions Boca Raton 
                       LIMITED LIABILITY COMPANY AGREEMENT

                                       OF

                      CINERGY SOLUTIONS OF BOCA RATON, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
August 23, 2000,  of Cinergy  Solutions of Boca Raton,  LLC, a Delaware  limited
liability  company  (the  "Company"),  by Cinergy  Solutions,  Inc.,  a Delaware
corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the Company was formed on August 23, 2000, by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of August 23, 2000; 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  Solutions of
Boca Raton,  LLC." The business of the Company may be conducted upon  compliance
with all applicable  laws under any other name  designated by the member,  or if
additional members are admitted, only with the unanimous consent of the members.

     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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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, the Member, or, if additional members
are admitted,  any member may transact business with the Company and, subject to
applicable law, 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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member,  and if additional  members are admitted,  only with the
unanimous consent of the members.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 the Member shall not, and
     if additional members are admitted, 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, the Member, and if
     additional  members are  admitted,  no member  shall have any  liability in
     excess of (i) the amount of its capital  contribution 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) The Member,  and if additional  members are  admitted,  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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs of the Company shall be managed by or under the direction of the member,
and if additional members are admitted, by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member, and if additional members are admitted, each member
shall bear the cost of its participation in meetings and other activities of the
Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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 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 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 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)
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,  or if additional  members are admitted,  any member, 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. The contribution of the Member and of all
subsequently  admitted  members  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).  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.  At any time that
there  is more  than  one  member,  capital  accounts  shall  be  maintained  in
accordance  with  the  tax  accounting  principles  prescribed  by the  Treasury
Regulations  promulgated under Code Section 704 (the "Allocation  Regulations"),
so that the tax  allocations  provided in this  Agreement  shall,  to the extent
possible,   have  "substantial  economic  effect"  within  the  meaning  of  the
Allocation Regulations, or, if such allocations cannot have substantial economic
effect,  so that  they may be deemed to be "in  accordance  with the  member(s')
interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, the Member, and if additional members as admitted, any member
may receive  distributions from the Company in any form other than cash, and may
be compelled to accept a distribution of any asset in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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 In Accordance to Section 3.1.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     Section 8.2 Winding Up.  Subject to the  provisions  of the Act, the Member
or, if additional  members are admitted,  the members (acting by written consent
of a majority of members) 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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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, any member, or any officer,  director,  stockholder,  partner, employee,
representative  or agent 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 the  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 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                            CINERGY SOLUTIONS, INC.



                                            By: ________________________
                                                  M. Stephen Harkness
                                                  President
EX-99 9 b-216.htm LLC AGREEMENT CINTEC Cintec LLC 
                       LIMITED LIABILITY COMPANY AGREEMENT

                                       OF

                                   CINTEC LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
December  1, 2000,  of CinTec LLC, a Delaware  limited  liability  company  (the
"Company"), by Cinergy Corp., a Delaware corporation,  as the sole member of the
Company (the "Member");

                                    RECITALS
                                    --------

     WHEREAS,  the Company was formed on November 16, 2000 by the Sole Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS,  the Member holds 100% of the membership  interest in the Company;
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 CinTec  LLC.  The
business of the Company may be conducted  upon  compliance  with all  applicable
laws under any other name designated by the Manager.

     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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, New Castle County, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     P.O. Box 960, Cincinnati,  OH 45201-0906, or such other place as the Member
     shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.


                              ARTICLE III - Members

     Section 3.1  Admission of Members.  New members shall be admitted only with
the approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except  that,  should  additional  members  be  admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other members.

     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 capital  contribution
     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, if  additional  members are
     admitted,  a majority of the members,  determined  in  proportion  to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the members.

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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  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 members.

                             ARTICLE IV- Management

     Section 4.1 (a)  General.  Except as  specifically  set forth  herein,  the
business and affairs of the Company  shall be managed by and under the direction
of a manager  (the  "Manager")  selected  by the  Member  who shall  have  full,
exclusive and complete discretion to manage and control the business and affairs
of the  Company  as would (if the  Company  were a  corporation)  be  subject to
control by a board of directors,  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
Manager shall serve without compensation from the Company, and the Manager shall
bear the cost of its  participation  in  meetings  and other  activities  of the
Company.

          (b) Conduct of Business.  Subject to the provisions of this Agreement,
     the  day-to-day  operations  of the Company shall be managed by the Manager
     and the Manager  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 it deems
     appropriate.

          (c)  Officers.  The Manager from time to time may appoint any 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 Manager may determine in its sole discretion.  The Manager 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.

          (d) Officers as Agents;  Authority.  The officers, if appointed by the
     Manager,  to the extent of their  powers  delegated to them by the Manager,
     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 4.2 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely  conclusively  upon the power and  authority of the Manager and
the Member herein set forth.

     Section 4.3 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 Manager to be available  for such  purpose,  provided
that such  expenses  are those of the Company or are  otherwise  incurred by the
Member or the Manager 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
     members of checks,  financial  reports,  tax returns  and notices  required
     pursuant  to this  Agreement  or in  connection  with  the  holding  of any
     meetings of the members;

          (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.  The  contribution  of a member  to the
Company  must be in cash or  property,  provided  that if there is more than one
member, all members 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
members.  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed  by the Treasury  Regulations  promulgated  under  Section 704 of the
Internal  Revenue Code of 1986, as amended (the  "Allocation  Regulations"),  so
that  the tax  allocations  provided  in this  Agreement  shall,  to the  extent
possible,   have  "substantial  economic  effect"  within  the  meaning  of  the
Allocation Regulations, or, if such allocations cannot have substantial economic
effect,  so that  they may be  deemed  to be "in  accordance  with the  members'
interests in the Company" 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 members are
admitted, the members in proportion to their respective capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions of the Company
shall be  allocated  entirely  to the  Member  or,  if  additional  members  are
admitted, the members in proportion to their respective capital accounts.


                            ARTICLE VI - Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.


           ARTICLE VII - Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common Interests in the Company shall not be assignable or transferable.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.


                           ARTICLE VIII - Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     Section 8.2 Winding Up.  Subject to the  provisions  of the Act, the Member
or, if additional  members are admitted,  the members (acting by written consent
of all  members)  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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     Section  9.2 Form  K-1.  After  the end of each  Fiscal  Year for which the
Company shall have more than one member,  the Manager 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 Manager shall cause to be prepared and
timely filed all tax returns  required to be filed for the Company.  The Manager
may, in its 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.

                   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, nor any manager, officers, directors,  stockholders,
partners,  employees,  representatives or agents of any member, 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 the 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  members  are  admitted,
unanimous consent of the members.

     Section  11.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional members are admitted,  the members 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member or the  Manager  shall  promptly  prepare  any  documents
required to be filed and  recorded  under the Act, and the Member or the Manager
shall  promptly  cause each such document 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 or
the Manager 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  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  11.6  Additional  Documents.  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 11.7 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  written
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 11.8 Books and Records;  Accounting.  The Member or, if  additional
members are admitted,  the members shall keep or cause to be kept at the address
of the Company (or at such other place as the members  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 duly executed this Agreement as of
the date first above written.


                         CINERGY CORP.

                          By:     __________________________
                                 Name: James E. Rogers
                                 Title:   Vice Chairman, Chief Executive
                                          Officer and Director President
EX-99 10 b-219.htm LLC AGREE CINTEC I Cintec I LLC 
                       LIMITED LIABILITY COMPANY AGREEMENT

                                       OF

                                  CINTEC I LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
December 1, 2000,  of CinTec I LLC, a Delaware  limited  liability  company (the
"Company"),  by CinTec LLC, a Delaware limited  liability  company,  as the sole
member of the Company (the "Member");

                                    RECITALS
                                    --------

     WHEREAS,  the Company was formed on November 16, 2000 by the Sole Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS,  the Member holds 100% of the membership  interest in the Company;
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 CinTec I LLC.  The
business of the Company may be conducted  upon  compliance  with all  applicable
laws under any other name designated by the Manager.

     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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, New Castle County, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     P.O. Box 960, Cincinnati,  OH 45201-0906, or such other place as the Member
     shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.


                              ARTICLE III - Members

     Section 3.1  Admission of Members.  New members shall be admitted only with
the approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except  that,  should  additional  members  be  admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other members.

     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 capital  contribution
     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, if  additional  members are
     admitted,  a majority of the members,  determined  in  proportion  to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the members.

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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  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 members.

                             ARTICLE IV- Management

     Section 4.1 (a)  General.  Except as  specifically  set forth  herein,  the
business and affairs of the Company  shall be managed by and under the direction
of a manager  (the  "Manager")  selected  by the  Member  who shall  have  full,
exclusive and complete discretion to manage and control the business and affairs
of the  Company  as would (if the  Company  were a  corporation)  be  subject to
control by a board of directors,  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
Manager shall serve without compensation from the Company, and the Manager shall
bear the cost of its  participation  in  meetings  and other  activities  of the
Company.

          (b) Conduct of Business.  Subject to the provisions of this Agreement,
     the  day-to-day  operations  of the Company shall be managed by the Manager
     and the Manager  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 it deems
     appropriate.

          (c)  Officers.  The Manager from time to time may appoint any 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 Manager may determine in its sole discretion.  The Manager 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.

          (d) Officers as Agents;  Authority.  The officers, if appointed by the
     Manager,  to the extent of their  powers  delegated to them by the Manager,
     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 4.2 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely  conclusively  upon the power and  authority of the Manager and
the Member herein set forth.

     Section 4.3 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 Manager to be available  for such  purpose,  provided
that such  expenses  are those of the Company or are  otherwise  incurred by the
Member or the Manager 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
     members of checks,  financial  reports,  tax returns  and notices  required
     pursuant  to this  Agreement  or in  connection  with  the  holding  of any
     meetings of the members;

          (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.  The  contribution  of a member  to the
Company  must be in cash or  property,  provided  that if there is more than one
member, all members 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
members.  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance with the members' interests in the Company" 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 members are
admitted, the members in proportion to their respective capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions of the Company
shall be  allocated  entirely  to the  Member  or,  if  additional  members  are
admitted, the members in proportion to their respective capital accounts.


                            ARTICLE VI - Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.


           ARTICLE VII - Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common Interests in the Company shall not be assignable or transferable.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.


                           ARTICLE VIII - Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     Section 8.2 Winding Up.  Subject to the  provisions  of the Act, the Member
or, if additional  members are admitted,  the members (acting by written consent
of all  members)  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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     Section  9.2 Form  K-1.  After  the end of each  Fiscal  Year for which the
Company shall have more than one member,  the Manager 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 Manager shall cause to be prepared and
timely filed all tax returns  required to be filed for the Company.  The Manager
may, in its 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.

                   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, nor any manager, officers, directors,  stockholders,
partners,  employees,  representatives or agents of any member, 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 the 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  members  are  admitted,
unanimous consent of the members.

     Section  11.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional members are admitted,  the members 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member or the  Manager  shall  promptly  prepare  any  documents
required to be filed and  recorded  under the Act, and the Member or the Manager
shall  promptly  cause each such document 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 or
the Manager 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  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  11.6  Additional  Documents.  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 11.7 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  written
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 11.8 Books and Records;  Accounting.  The Member or, if  additional
members are admitted,  the members shall keep or cause to be kept at the address
of the Company (or at such other place as the members  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 duly executed this Agreement as of
the date first above written.


                                       CinTec LLC

                                       By:     __________________________
                                              Name: James E. Rogers
                                              Title:   Manager
EX-99 11 b-224.htm LLC AGREE VENTURES Cinergy Ventures 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                              Cinergy Ventures, LLC



     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
July 25, 2000, of Cinergy  Ventures,  LLC, a Delaware limited  liability company
(the  "Company"),   by  Cinergy  Ventures  Holding  Company,  Inc.,  a  Delaware
corporation, as the sole member of the Company (the "Member");

                                    RECITALS
                                    --------

     WHEREAS,  the  Company  was formed on July 25,  2000 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of July 26, 2000; 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:

                                    AGREEMENT
                                    ---------

                                    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  Ventures,
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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, New Castle County, Delaware.

          (b)  The  business  address  of the  Company  is 139  E.  4th  Street,
     Cincinnati, OH 45202, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of Members.  New members shall be admitted only with
the approval of all members.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the members.

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 members.

                                   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(s) who shall have full,  exclusive and complete  discretion to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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(s) shall serve without compensation from
the  Company,  and the  Member(s)  shall bear the cost of its  participation  in
meetings and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the Member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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 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 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  subordinate  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)
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.  The  contribution  of a member  to the
Company  must be in cash or  property,  provided  that if there is more than one
member, all members 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
members.  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance with the members' interests in the Company" 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 members are
admitted, the members in proportion to their respective capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions of the Company
shall be  allocated  entirely  to the  Member  or,  if  additional  members  are
admitted, the members in proportion to their respective capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     Section 8.2 Winding Up.  Subject to the  provisions  of the Act, the Member
or, if additional  members are admitted,  the Members (acting by written consent
of all  members)  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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     Section  9.2 Form  K-1.  After  the end of each  Fiscal  Year for which the
Company shall have more than one member,  the members 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  members are
admitted,  the  Members  shall  cause to be  prepared  and timely  filed all tax
returns required to be filed for the Company.  The Member or the members (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 members shall be required in order for the
Company to make an election pursuant to Section 754 of the Internal Revenue Code
of 1986, as amended (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,  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 the 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  members  are  admitted,
unanimous consent of the Members.

     Section  11.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional members are admitted,  the Members 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 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 11.8 Books and Records;  Accounting.  The Member or, if  additional
members are admitted,  the Members shall keep or cause to be kept at the address
of the Company (or at such other place as the members  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 duly executed this Agreement as of
the date first above written.


                                       Cinergy Ventures Holding Company, Inc.


                                       By:________________________________
                                                Larry E. Thomas
                                                President
EX-99 12 b-226.htm LLC AGREE CINERGY VENTURE II Cinergy Ventures II LLC

LIMITED LIABILITY COMPANY AGREEMENT
OF
Cinergy Ventures II, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of September 1, 2000, of Cinergy Ventures II, LLC, a Delaware limited liability company (the “Company”), by Cinergy Ventures Holding Company, Inc., a Delaware corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on September 1, 2000 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of September 1, 2000; 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:

AGREEMENT

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 Ventures II, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware.

    (b)        The business address of the Company is 139 E. 4th Street, Cincinnati, OH 45202, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Members. New members shall be admitted only with the approval of all members.

        Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

        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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the members.

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 members.

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(s) who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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(s) shall serve without compensation from the Company, and the Member(s) shall bear the cost of its participation in meetings and other activities of the Company.

        Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually by the Member(s).

Except as provided in paragraphs (b) or (c) of this Section 4.2, 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 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 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 subordinate 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) 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. The contribution of a member to the Company must be in cash or property, provided that if there is more than one member, all members 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 members. 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the members’ interests in the Company” 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 members are admitted, the members in proportion to their respective capital accounts.

        Section 5.3 Allocation of Distributions. The distributions of the Company shall be allocated entirely to the Member or, if additional members are admitted, the members in proportion to their respective capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

        Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        Section 8.2 Winding Up. Subject to the provisions of the Act, the Member or, if additional members are admitted, the Members (acting by written consent of all members) 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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        Section 9.2 Form K-1. After the end of each Fiscal Year for which the Company shall have more than one member, the members 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 members are admitted, the Members shall cause to be prepared and timely filed all tax returns required to be filed for the Company. The Member or the members (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 members shall be required in order for the Company to make an election pursuant to Section 754 of the Internal Revenue Code of 1986, as amended (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, 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 the 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 members are admitted, unanimous consent of the Members.

        Section 11.2 Successors; Counterparts. Subject to Article VIII, this Agreement (a) shall be binding as to the executors, administrators, estates, heirs and legal successors, or nominees or representatives, of the Member or, if additional members are admitted, the Members 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 Books and Records; Accounting. The Member or, if additional members are admitted, the Members shall keep or cause to be kept at the address of the Company (or at such other place as the members 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 duly executed this Agreement as of the date first above written.

  Cinergy Ventures Holding Company, Inc.


By:________________________________
         Larry E. Thomas
         President
EX-99 13 b-286.htm LLC AGREE CINCAP-MARTINSVILLE LLC Agree CinCap-Martinsville

         LIMITED LIABILITY COMPANY AGREEMENT

OF

CinCap — Martinsville, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of January 30, 2001, of CinCap — Martinsville, LLC, a Delaware limited liability company (the “Company”), by Cinergy Capital & Trading, Inc., an Indiana corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on January 30, 2001 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of January 30,

2001; 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 “CinCap — Martinsville, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.




By: ___________________
       Michael J. Cyrus
       President
EX-99 14 b-284.htm LLC AGREE CINCAP-CHIPPEWA LLC Agree CinCap Chippewa 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                             CinCap - Chippewa, LLC

     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
July 27, 2001, of CinCap - Chippewa,  LLC, a Delaware limited  liability company
(the "Company"), by Cinergy Capital & Trading, Inc., an Indiana corporation,  as
the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the  Company  was formed on July 27,  2001 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of July 27, 2001; 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 "CinCap - Chippewa,
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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may
delegate  any  of  its  powers  to  officers  of the  Company  or 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).

     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 as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 its participation in meetings and other
activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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  capital  accounts.
ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.



                                            Cinergy Capital & Trading, Inc.


                                            By:  ___________________
                                                   Michael J. Cyrus
                                                   President
EX-99 15 b-282.htm AMEND & RESTATE LLC AGREE CALEDONIA POWER I A and R LLC Agree Caledonia Power I, LLC 
                              AMENDED AND RESTATED

                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                            CALEDONIA POWER I, L.L.C.

This AMENDED AND RESTATED LIMITED  LIABILITY  COMPANY AGREEMENT ("LLC Agreement"
or "Agreement") for Caledonia Power I, L.L.C.  ("Company")  dated as of April 5,
2001, is entered into and made effective by Cinergy Capital & Trading,  Inc., an
Indiana  corporation,  (the "Member") as of the Effective Date with reference to
the following facts.

A. Caledonia Power I, L.L.C. is a Delaware limited  liability  company formed by
Enron Capital & Trade  Resources  Corp.  (and sometimes  referred to as "Initial
Member") by filing its original  Certificate  of Formation with the Secretary of
State of Delaware on July 13, 1998;

B. Cinergy  Capital & Trading,  Inc now wishes to replace the Limited  Liability
Company Agreement in its entirety by entering into this Agreement to provide for
the  governance  of the  Company  and the  conduct of its  business as a limited
liability  company.  This Agreement  shall be considered the "Limited  Liability
Company Agreement" of the Company within the meaning of Section 18-101(7) of the
Act.

NOW  THEREFORE,  the LLC  Agreement is wholly  replaced and  superceded  by this
Agreement in its entirety and this Agreement shall read 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  "Caledonia  Power I,
L.L.C." 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 1209  Orange  Street,  Wilmington,  Delaware  and the name and
     address of the Company's  registered  agent in the State of Delaware is The
     Corporation Trust Company, 1209 Orange Street,  Wilmington,  Delaware.  (b)
     The business address of the Company is 139 East Fourth Street,  Cincinnati,
     Ohio or such other place, as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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")
shall end on December 31 of each year.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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  member(s) are  admitted,  the members,  who shall have
full,  exclusive and complete  discretion to manage and control the business and
affairs of the Company as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 its participation in meetings and other
activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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 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.  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                        Cinergy Capital & Trading, Inc.



                                        By: ____________________________
                                            Michael J. Cyrus
                                            President
EX-99 16 b-280.htm AMEND & RESTATE LLC AGREE BROWNSVILLE POWER I LLC Agree Brownsville Power

AMENDED AND RESTATED

      LIMITED LIABILITY COMPANY AGREEMENT

OF

BROWNSVILLE POWER I, L.L.C.

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (“LLC Agreement” or “Agreement”) for Brownsville Power I, L.L.C. (“Company”) dated as of April 5, 2001, is entered into and made effective by Cinergy Capital & Trading, Inc., an Indiana corporation, (the “Member”) as of the Effective Date with reference to the following facts.

A.     Brownsville Power I, L.L.C. is a Delaware limited liability company formed by Enron Capital & Trade Resources Corp. (and sometimes referred to as “Initial Member”) by filing its original Certificate of Formation with the Secretary of State of Delaware on July 13, 1998;

B.     Cinergy Capital & Trading, Inc now wishes to replace the Limited Liability Company Agreement in its entirety by entering into this Agreement to provide for the governance of the Company and the conduct of its business as a limited liability company. This Agreement shall be considered the “Limited Liability Company Agreement” of the Company within the meaning of Section 18-101(7) of the Act.

NOW THEREFORE, the LL Company Agreement is wholly replaced and superceded by this Agreement in its entirety and this Agreement shall read 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 “Brownsville Power I, L.L.C.” 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 1209 Orange Street, Wilmington, Delaware and the name and address of the Company’s registered agent in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio or such other place, as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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”) shall end on December 31 of each year.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 member(s) are admitted, the members, who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration. The duration of the Company shall be perpetual.

        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 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.



By: ____________________________
    Michael J. Cyrus
    President
EX-99 17 b-278.htm LLC AGREE CPI INVESTMENTS CPI Investments LLC 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                              CPI INVESTMENTS, LLC


     This  LIMITED  LIABILITY  COMPANY  AGREEMENT  (the  "Agreement"),   of  CPI
Investments,  LLC, a Delaware  limited  liability  company (the  "Company"),  is
entered into by The Cincinnati Gas & Electric  Company (the  "Member"),  an Ohio
Corporation, as the sole member of the Company;

                                    RECITALS
                                    --------

     WHEREAS,  the Company was formed on December  14th,  2001 by an "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201  (d) of the Act,  it is the
intention  of the  Member  that the  Agreement  be  effective  as of the date of
formation, December 14th, 2001;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of December 14th, 2001; 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 CPI Investments,  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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware, 19801.

          (b) The business  address of the Company is 103 Foulk Road, Suite 118,
     Wilmington,  Delaware,  19803,  or such  other  place as the  Member  shall
     designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose  or  activity  including  holding,  managing  and
collecting payments on installment notes and other debt instruments, and loaning
funds to other members of its  affiliated  group.  The Company shall possess and
may  exercise all 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,  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 the Agreement be effective as of the
date of formation, December 14th, 2001.

                                   ARTICLE III

                                    Member(s)

     Section 3.1 Member.  The name and the business  address of the Member is as
follows:

                  Name                                 Address

The Cincinnati Gas & Electric Company         139 East Fourth Street
                                              Cincinnati, Ohio 45202

     Section 3.2  Admission of Member(s).  The Member is hereby  admitted to the
Company in respect of an Interest (as defined in Section 3.3), which is the sole
Interest  outstanding as of the effective time of this Agreement.  New member(s)
shall be admitted  only with the  approval of the Member.  The Member or members
shall serve  without  compensation  from the Company,  and the Member or members
shall bear the cost of its participation in meetings and other activities of the
Company.

     Section 3.3 Interests.

          (a) The Company shall be authorized to issue a single class of limited
     liability  company interest (as defined in the Act, the "Interest"),  which
     shall include any and all benefits to which the holder of such Interest may
     be  entitled  pursuant to this  Agreement  and the Act,  together  with all
     obligations  of such person to comply with the terms and provisions of this
     Agreement  and the Act.  Interests  may,  but need not be,  evidenced  by a
     certificate of limited liability company interest issued by the Company.

          (b) The Interests  shall be deemed  securities for purposes of Section
     8-102(c) of the Uniform Commercial Code.

     Section 3.4 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 capital  contribution
     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 3.5 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 3.5 shall be in
     writing and shall state the purpose of such demand.

     Section 3.6 Meetings of Member

          (a) An Annual  Meeting of the  member(s)  shall be held once a year on
     such date as the members shall  designate.  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.

          (b) Special Meetings of the member(s) may be called for any purpose or
     purposes, at any time, by any member or by the Board of Managers. Member(s)
     may  participate in a special  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
     special meeting by such means shall  constitute  presence in person at such
     meeting.

          (c) Except as otherwise  provided by law, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (d) 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.

     Section 3.7 Notice.  Meetings of the  member(s)  may be held at such places
and at such times as the  member(s)  or Board of Managers  may from time to time
determine. Any member or the Board of Managers may at any time call a meeting of
the member(s).  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  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.  Subject  to the  provisions  of  the  Act  and  any
limitations in this Agreement as to action required to be authorized or approved
by the Member,  the business and affairs of the Company shall be managed and all
its powers shall be exercised by or under the  direction of a Board of Managers.
Without  prejudice to such general powers,  but subject to the same limitations,
it is hereby  expressly  declared  that the  Board of  Managers  shall  have the
following powers:

          (1)  To conduct,  manage and control the  business  and affairs of the
               Company  and to make such  rules and  regulations  therefore  not
               inconsistent with law or this Agreement, as the Board of Managers
               shall deem to be in the best interest of the Company;

          (2)  To borrow money and incur  indebtedness from affiliated  entities
               for the  purposes of the Company and to cause to be executed  and
               delivered  therefore,  in the Company's name,  promissory  notes,
               bonds,   debentures,   deeds  of   trust,   mortgages,   pledges,
               hypothecations   or  other  evidences  of  debts  and  securities
               therefore;

          (3)  To  designate  an  executive   and/or  other   committees,   each
               consisting  of two or  more  members  of the  Board  of  Managers
               ("Managers"),  to serve at the pleasure of the Board of Managers,
               and  to  prescribe  the  manner  in  which  proceedings  of  such
               committees shall be conducted; and

          (4)  To acquire real and personal property,  arrange financing,  enter
               into  contracts  and  complete all other  arrangements  needed to
               effectuate the business of the Company.

     Section 4.2 The Board of Managers.

          (a) Duties. The Board of Managers shall be obligated to devote only as
     much of  their  time to the  Company's  business  as  shall  be  reasonably
     required in light of the Company's business and objectives. A member of the
     Board of Managers (a  "Manager"),  shall  perform his or her duties in good
     faith,  in a manner he or she  believes to be in the best  interests of the
     Company,  and with  such  care as an  ordinarily  prudent  person in a like
     position would use under similar circumstances.

          (b)  Board  Composition;  Removal  and  Vacancies.  The  Member  shall
     initially  appoint  three  (3)  Managers  to  the  Board  of  Managers.  If
     additional member(s) are added, the number of Managers shall be adjusted to
     that  smallest   number   possible   that  will  allow  full   proportional
     representation  of  each  member's  membership  interest  on the  Board  of
     Managers.  Each member shall vote all of its membership  interest and shall
     take all other action necessary or desirable within its control, (including
     without  limitation,  attendance  at  meetings  in  person  or by proxy and
     execution of written  consents in lieu of meetings),  so that the designees
     of other members are duly elected to the Board of Managers in proportion to
     the member's Interest percentage.

          (c) Term.  Each  Manager  shall  serve until the earlier of his or her
     removal,  resignation,  death or retirement. Upon the removal, resignation,
     death or  retirement  of a Manager,  or the vacation of office by a Manager
     for any reason,  his or her successor shall be nominated and elected by the
     same member as  originally  proposed  the former  Manager.  Any Manager may
     resign his or her office at any time by delivering a written resignation to
     the Board of Managers.  Unless a later date is specified,  such resignation
     shall take effect  thirty (30)  calendar  days from the date of delivery to
     the Board of Managers.  Any successor  Manager  elected shall retain his or
     her office  during such time as the former  Manager was  entitled to retain
     the same.

          (d) Restrictions on the Board of Managers. The Board of Managers shall
     not: (i) do any act in contravention of any applicable law or regulation or
     provision of this Agreement; (ii) possess Company property for other than a
     Company  purpose;  or (iii) admit any new  member(s)  without the unanimous
     consent of existing  members or without  compliance  with the provisions of
     this Agreement.

          (e) Meetings; Notice. Meetings of the Board of Managers may be held at
     such  places  and at such times as the Board of  Managers  may from time to
     time determine,  and if so determined by a quorum of the Board of Managers,
     no advance  notice of the meeting  need be given.  Meetings of the Board of
     Managers may be called at any time by any two (2)  Managers.  Unless notice
     is otherwise not required  pursuant to this subsection (a),  written notice
     of the  time,  place  and  purpose  of such  meeting  shall  be  served  by
     registered or certified, prepaid, first-class mail, or by fax or cable upon
     each  member  of the  Board  of  Managers  and  shall  be  given  at  least
     twenty-four (24) hours prior to the time of the meeting.  No notice need be
     given to any  Manager  if a written  waiver of notice,  executed  before or
     after the meeting by such Manager thereunto duly authorized,  is filed with
     the  records of the  meeting,  or to any  Manager  who  attends the meeting
     without  protesting prior thereto or at its commencement the lack of notice
     to him. A waiver of notice need not specify the purpose of the meeting.

          (f)  Meetings;  Electronic  Communications.  Meetings  of the Board of
     Managers  shall be held on such dates as the Board of Managers shall agree,
     but not less  frequently  than once during each fiscal year of the Company.
     Members of the Board of Managers,  or of any  committee  designated  by the
     Board of Managers,  may  participate in a meeting of such Board of Managers
     or committee  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.

          (g) Quorum and Voting.  A majority of the Managers shall  constitute a
     quorum  for the  transaction  of  business  at a  meeting  of the  Board of
     Managers.  Each  Manager  shall  have one (1) vote.  Action by the Board of
     Managers must be authorized by the unanimous  vote of the Managers  present
     at the meeting.

          (h) Action  Without a Meeting.  Any action which is required to be, or
     which may be, taken at any annual, regular, or special meeting of the Board
     of Managers or  otherwise,  may be taken  without a meeting,  without prior
     notice and without a vote if a consent in writing, setting forth the action
     so taken,  shall be signed by all the  Managers  then in  office.  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.

          (i)  Delegation of Powers.  Subject to any limitation set forth in the
     Act, the Board of Managers may delegate any of its powers to  committees or
     to officers  consisting  of persons who may or may not be  Managers.  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 Board of
     Managers.

     Section 4.3 Officers.

          (a) Election,  Term of Office.  Officers shall be elected by the Board
     of  Managers  from  time  to  time  for the  designation  of the  Company's
     day-to-day activities.  Except as provided in paragraphs (b) or (c) of this
     Section  4.3,  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 Board of
     Managers.  Unless otherwise specified therein,  such resignation shall take
     effect  upon  delivery.  Any  officer  may be removed  from  office with or
     without cause by the Board of Managers.

          (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 Board of Managers.

          (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
     as directed by the Board of Managers and such officers shall have only such
     authority and exercise only such powers and perform such duties as shall be
     determined  from  time to time by the  Managers  and shall  enter  into all
     commitments and take such other actions in connection with the business and
     operations of the Company as they deem appropriate and as are authorized by
     the Board of Managers. Such officers shall perform their duties in a manner
     consistent  with this Agreement and with  directions that may be given from
     time to time by the Board of Managers.

          (e)  President.  Subject  to the  further  directives  of the Board of
     Managers,  the  President,  if one is  designated,  shall have  general and
     active management of the business of the Company subject to the supervision
     of the Board of Managers,  shall see that all orders and resolutions of the
     Board of Managers and member(s) are carried into effect and shall have only
     such additional  powers and authority as are specified by the provisions of
     this Agreement and the Board of Managers.

          (f) Vice Presidents. Subject to the further directives of the Board of
     Managers, the Vice Presidents, if any are designated, in the order of their
     seniority,  unless  otherwise  determined  by the Managers,  shall,  in the
     absences or  disability of the  President,  perform the duties and have the
     authority and exercise the powers of the President. They shall perform such
     other duties and have such other  authority  and powers as the Managers may
     from time to time prescribe.

          (g)  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 Board of Managers.
     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 Board of Managers may from
     time to time prescribe.


          (h)  Other  Officers.  The  Board of  Managers  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 Board of Managers may determine in
     its sole  discretion.  The Board of Managers 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.

     Section 4.4 Reliance by Third  Parties.  Any person or entity  dealing with
the Company may rely upon a  certificate  signed by the Secretary of the Company
as to:

          (1)  the persons who or entities  which are  authorized to execute and
               deliver  any  instrument  or  document  of or on  behalf  of  the
               Company, and

          (2)  the  persons  who or entities  which are  authorized  to take any
               action  or  refrain  from  taking  any  action  as to any  matter
               whatsoever involving the Company.

     Section 4.5 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 Board  Manager (s) to be available for such purpose,
provided that such  expenses are those of the Company or are otherwise  incurred
by  the  Manager(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) and Board of Managers;

          (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.  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.  The
members may make  additional  contributions  in the future in the amounts and to
the extent the Board of Managers determines.

                                   ARTICLE VI

                    Allocations, Distribution and Withholding

     Section  6.1  Allocations.  The Net  Profit  and Net  Loss of the  Company,
including  each item of  income,  gain,  loss,  deduction  and  credit  shall be
allocated  with  respect to each  Fiscal  Year (or  portion  thereof)  among the
member(s) in proportion to their membership interest percentages.

     Section 6.2  Distributions.  Distributions  may be made to the member(s) at
such times as determined in the sole discretion of the Board of Managers,  or at
such other times as the members by unanimous consent shall determine.

     Section  6.3  Distributions  in Kind.  Notwithstanding  the  provisions  of
Section 18-605 of the Act, a member may receive  distributions  from the Company
in any form other than cash,  and may be compelled to accept a  distribution  of
any asset in kind from the Company.

     Section  6.4  Withholding.  The  Company is  authorized  to  withhold  from
distributions  to a member,  or with respect to allocations to a member,  and to
pay over to a federal,  state or local  government,  any amounts  required to be
withheld  pursuant to the Internal Revenue Service Code or any provisions of any
other  federal,  state or local law. Any amounts so withheld shall be treated as
having been  distributed to such member for all purposes of this Agreement,  and
shall be offset against the current or next amounts  otherwise  distributable to
such member.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto or the transferee and members execute an Amended
and Restated  LLC  Agreement of the  Company,  such  transferee  shall be deemed
admitted as a member of the Company to the extent of such transferred  Interest,
and immediately  thereafter the transferor shall be deemed withdrawn as a member
of the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.

                                   ARTICLE IX

                         Exculpation and Indemnification

     Section  9.1  Exculpation.  Notwithstanding  any other  provisions  of this
Agreement,  whether  express  or  implied,  or  obligation  or duty at law or in
equity,  no member, or any manager,  officer,  stockholder,  partner,  employee,
representative  or agent 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 the  Agreement,  provided that such
act or omission does not constitute  fraud,  willful  misconduct,  bad faith, or
gross negligence.

     Section 9.2  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 X

                                  Miscellaneous

     Section 10.1 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  10.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (i) 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 (ii) may be
executed  in  several  counterparts  with  the  same  effect  as if the  parties
executing the several counterparts had all executed one counterpart.

     Section 10.3 Governing Law; Severability.  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.

     Section 10.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company with the State of Delaware on December 14,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  10.5  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 10.6 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 10.7 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 10.8 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 duly executed this Agreement as of
the date first above written.

                                     THE CINCINNATI GAS & ELECTRIC COMPANY
                                     As sole Member of CPI Investments, LLC



                                     By:  ________________________
                                     Gregory C. Ficke
                                     President
EX-99 18 b-276.htm LLC AGREE CPI ALLOWANCE MANAGEMENT CPI Allowance Management 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                          CPI ALLOWANCE MANAGEMENT, LLC



     This  LIMITED  LIABILITY  COMPANY  AGREEMENT  (the  "Agreement"),   of  CPI
Allowance Management, LLC, a Delaware limited liability company (the "Company"),
is entered into by The Cincinnati Gas & Electric Company (the "Member"), an Ohio
Corporation, as the sole member of the Company;

                                    RECITALS
                                    --------

     WHEREAS,  the Company was formed on November  28, 2001,  by an  "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201  (d) of the Act,  it is the
intention  of the  Member  that the  Agreement  be  effective  as of the date of
formation, November 28, 2001;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of November 28, 2001; 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 CPI  Allowance
Management,  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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45202, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful business, purpose or activity; including, but not limited to, buying,
selling, holding and managing emission allowances. The Company shall possess and
may  exercise all 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,  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 the Agreement be effective as of the
date of formation, November 28, 2001.

                                   ARTICLE III

                                    Member(s)

     Section 3.1 Member.  The name and the business  address of the Member is as
follows:

           Name                                               Address

  The Cincinnati Gas & Electric Company                139 East Fourth Street
                                                       Cincinnati, Ohio  45202

     Section 3.2  Admission of Member(s).  The Member is hereby  admitted to the
Company in respect of an Interest (as defined in Section 3.3), which is the sole
Interest  outstanding as of the effective time of this Agreement.  New member(s)
shall be admitted  only with the  approval of the Member.  The Member or members
shall serve  without  compensation  from the Company,  and the Member or members
shall bear the cost of its participation in meetings and other activities of the
Company.

     Section 3.3 Interests.

          (a) The Company shall be authorized to issue a single class of limited
     liability  company interest (as defined in the Act, the "Interest"),  which
     shall include any and all benefits to which the holder of such Interest may
     be  entitled  pursuant to this  Agreement  and the Act,  together  with all
     obligations  of such person to comply with the terms and provisions of this
     Agreement  and the Act.  Interests  may,  but need not be,  evidenced  by a
     certificate of limited liability company interest issued by the Company.

          (b) The Interests  shall be deemed  securities for purposes of Section
     8-102(c) of the Uniform Commercial Code.

     Section 3.4 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 of the Company.

          (b) Except as otherwise  expressly required by law, a member shall not
     have any liability in excess of (i) the amount of its capital  contribution
     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 3.5 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 3.5(a) shall be in
     writing and shall state the purpose of such demand.

     Section 3.6 Meetings of Member(s).

          (a) An Annual  Meeting of the  member(s)  shall be held once a year on
     such date as the members shall  designate.  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.

          (b) Special Meetings of the member(s) may be called for any purpose or
     purposes, at any time, by any member or by the Board of Managers. Member(s)
     may  participate in a special  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
     special meeting by such means shall  constitute  presence in person at such
     meeting.

          (c) Except as otherwise  provided by law, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (d) 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.

     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.  Any member
may at any time call a meeting  of the  member(s).  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  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.  Subject  to the  provisions  of  the  Act  and  any
limitations in this Agreement as to action required to be authorized or approved
by the Member,  the business and affairs of the Company shall be managed and all
its powers shall be exercised by or under the  direction of a Board of Managers.
Without  prejudice to such general powers,  but subject to the same limitations,
it is hereby  expressly  declared  that the  Board of  Managers  shall  have the
following powers:

          (1)  To conduct,  manage and control the  business  and affairs of the
               Company  and to make such  rules and  regulations  therefore  not
               inconsistent with law or this Agreement, as the Board of Managers
               shall deem to be in the best interest of the Company;

          (2)  To borrow  money and incur  indebtedness  for the purposes of the
               Company and to cause to be executed and delivered  therefore,  in
               the Company's name, promissory notes, bonds, debentures, deeds of
               trust, mortgages,  pledges,  hypothecations or other evidences of
               debts and securities therefore;

          (3)  To  designate  an  executive   and/or  other   committees,   each
               consisting of two or more members of the Board of Managers  (each
               a "Managers"), to serve at the pleasure of the Board of Managers,
               and  to  prescribe  the  manner  in  which  proceedings  of  such
               committees shall be conducted; and

          (4)  To acquire real and personal property,  arrange financing,  enter
               into  contracts  and  compete  all other  arrangements  needed to
               effectuate the business of the Company.

     Section 4.2 The Board of Managers.

          (a) Duties. The Board of Managers shall be obligated to devote only as
     much of  their  time to the  Company's  business  as  shall  be  reasonably
     required in light of the Company's business and objectives. A Manager shall
     perform his or her duties in good faith,  in a manger he or she believes to
     be in the best interest of the Company, and with such care as an ordinarily
     prudent person in a like position would use under similar circumstances.

          (b) Board  Composition.  The Member shall initially  appoint three (3)
     Managers to the Board of Managers.

          (c) Term;  Removal and  Vacancies.  Each Manager shall serve until the
     earlier of his or her removal,  resignation,  death or retirement. Upon the
     removal, resignation,  death or retirement of a Manager, or the vacation of
     office by a Manger for any reason,  his or her successor shall be nominated
     and elected by the same member as originally  proposed the former  Manager.
     If a new office of Manager shall be created,  the Board of Managers  shall,
     by majority vote, appoint a new Manager.  Any Manager may resign his or her
     office  at any time by  delivering  a written  resignation  to the Board of
     Managers.  Unless a later date is specified,  such  resignation  shall take
     effect  thirty (30) calendar days from the date of delivery to the Board of
     Managers.

          (d) Restrictions on the Board of Managers. The Board of Managers shall
     not: (i) do any act in contravention of any applicable law or regulation or
     provision of this Agreement; (ii) possess Company property for other than a
     Company  purpose;  or (iii) admit any new  member(s)  without the unanimous
     consent of existing  members or without  compliance  with the provisions of
     this Agreement.

          (e) Meetings; Notice. Meetings of the Board of Managers may be held at
     such  places  and at such times as the Board of  Managers  may from time to
     time determine,  and if so determined by a quorum of the Board of Managers,
     no advance  notice of the meeting  need be given.  Meetings of the Board of
     Managers may be called at any time by any two (2)  Managers.  Unless notice
     is otherwise not required  pursuant to this subsection (e),  written notice
     of the  time,  place  and  purpose  of such  meeting,  shall be  served  by
     registered or certified, prepaid, first-class mail, or by fax or cable upon
     each  member  of the  Board  of  Managers  and  shall  be  given  at  least
     twenty-four (24) hours prior to the time of the meeting.  No notice need be
     given to any  Manager  if a written  waiver of notice,  executed  before or
     after the meeting by such Manager thereunto duly authorized,  is filed with
     the  records of the  meeting,  or to any  Manager  who  attends the meeting
     without  protesting prior thereto or at its commencement the lack of notice
     to him. A waiver of notice need not specify the purpose of the meeting.

          (f)  Meetings;  Electronic  Communications.  Meetings  of the Board of
     Managers  shall be held on such dates as the Board of Managers shall agree.
     Members of the Board of Managers,  or of any  committee  designated  by the
     Board of Managers,  may  participate in a meeting of such Board of Managers
     or committee  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.

          (g) Quorum and Voting.  A majority of the Managers shall  constitute a
     quorum  for the  transaction  of  business  at a  meeting  of the  Board of
     Managers.  Each  Manager  shall  have one (1) vote.  Action by the Board of
     Managers must be authorized by the unanimous  vote of the Managers  present
     at the meeting.

          (h) Action  Without a Meeting.  Any action which is required to be, or
     which may be, taken at any annual, regular, or special meeting of the Board
     of Managers or  otherwise,  may be taken  without a meeting,  without prior
     notice and without a vote if a consent in writing, setting forth the action
     so taken,  shall be signed by all the  Managers  then in  office.  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.

          (i)  Delegation of Powers.  Subject to any limitation set forth in the
     Act, the Board of Managers may delegate any of its powers to  committees or
     to officers  consisting  of persons who may or may not be  Managers.  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 Board of
     Managers.

     Section 4.3 Officers.

          (a) Election,  Term of Office.  Officers shall be elected by the Board
     of  Managers  from  time  to  time  for the  designation  of the  Company's
     day-to-day activities.  Except as provided in paragraphs (b) or (c) of this
     Section  4.3,  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 Board of
     Managers.  Unless otherwise specified therein,  such resignation shall take
     effect  upon  delivery.  Any  officer  may be removed  from  office with or
     without cause by the Board of Managers.

          (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 Board of Managers.

          (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
     as  directed  by the Board of Managers  and such  officers  shall have such
     authority  and  exercise  such powers and  perform  such duties as shall be
     determined  from  time to time by the  Managers  and shall  enter  into all
     commitments and take such other actions in connection with the business and
     operations of the Company as they deem appropriate and as are authorized by
     the Board of Managers. Such officers shall perform their duties in a manner
     consistent  with this Agreement and with  directions that may be given from
     time to time by the Board of Managers.

          (e)  President.  Subject  to the  further  directives  of the Board of
     Managers,  the  President,  if one is  designated,  shall have  general and
     active management of the business of the Company subject to the supervision
     of the Board of Managers,  shall see that all orders and resolutions of the
     Board of Managers and member(s) are carried into effect and shall have such
     additional  powers and authority as are specified by the provisions of this
     Agreement and the Board of Managers.

          (f) Vice Presidents. Subject to the further directives of the Board of
     Managers, the Vice Presidents, if any are designated, in the order of their
     seniority,  unless  otherwise  determined  by the Managers,  shall,  in the
     absences or  disability of the  President,  perform the duties and have the
     authority and exercise the powers of the President. They shall perform such
     other duties and have such other  authority  and powers as the Managers may
     from time to time prescribe.

          (g)  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 Board of Managers.
     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 Board of Managers may from
     time to time prescribe.

          (h) Treasurer. The Treasurer, if one is designated, shall have custody
     of the  Company's  funds and  securities  and shall keep full and  accurate
     accounts and records of receipts,  disbursements and other  transactions in
     books  belonging  to the  Company,  and shall  deposit all moneys and other
     valuable  effects  in the name and to the  credit  of the  Company  in such
     depositories  as may be designated  from time to time by the Managers.  The
     Treasurer  shall disburse the funds of the Company as may be ordered by the
     Managers,  taking proper vouchers for such disbursements,  and shall render
     the  President and the  Managers,  when so directed,  an account of all his
     transactions  as Treasurer and of the  financial  condition of the Company.
     The Treasurer shall perform such other duties and have such other powers as
     the Managers may from time to time prescribe.  If required by the Managers,
     the  Treasurer  shall give the Company a bond of such type,  character  and
     amount as the Managers may require.  The Assistant  Treasurers,  if any are
     designated, in the order of their seniority, unless otherwise determined by
     the Managers, shall, in the absence or disability of the Treasurer, perform
     the duties and exercise  the powers of the  Treasurer.  They shall  perform
     such other  duties and have such other powers as the Managers may from time
     to time prescribe.

          (i)  Other  Officers.  The  Board of  Managers  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 Board of Managers may determine in
     its sole  discretion.  The Board of Managers 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.

          (j)  Officers as Agents;  Authority.  The  officers,  to the extent of
     their powers set forth in this  Agreement  and/or  delegated to them by the
     Board of  Managers,  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 4.4 Reliance by Third  Parties.  Any person or entity  dealing with
the Company may rely upon a  certificate  signed by the Secretary of the Company
as to

          (a) the persons who or entities  which are  authorized  to execute and
     deliver any instrument or document of or on behalf of the Company, and

          (b) the  persons  who or  entities  which are  authorized  to take any
     action or  refrain  from  taking  any  action as to any  matter  whatsoever
     involving the Company.

     Section 4.5 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 Board of Managers to be available  for such purpose,
provided that such  expenses are those of the Company or are otherwise  incurred
by the  member(s)  or Managers 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.  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.  The
members may make  additional  contributions  in the future in the amounts and to
the extent the Board of Managers determines.

                                   ARTICLE VI

                    Allocations, Distribution and Withholding

     Section  6.1  Allocations.  The Net  Profit  and Net  Loss of the  Company,
including  each item of  income,  gain,  loss,  deduction  and  credit  shall be
allocated  with  respect to each  Fiscal  Year (or  portion  thereof)  among the
member(s) in proportion to their membership interest percentages.

     Section 6.2  Distributions.  Distributions  may be made to the member(s) at
such times as determined in the sole discretion of the Board of Managers,  or at
such other times as the members by unanimous consent shall determine.

     Section  6.3  Distributions  in Kind.  Notwithstanding  the  provisions  of
Section 18-605 of the Act, a member may receive  distributions  from the Company
in any form other than cash,  and may be compelled to accept a  distribution  of
any asset in kind from the Company.

     Section  6.4  Withholding.  The  Company is  authorized  to  withhold  from
distributions  to a member,  or with respect to allocations to a member,  and to
pay over to a federal,  state or local  government,  any amounts  required to be
withheld  pursuant to the Internal Revenue Service Code or any provisions of any
other  federal,  state or local law. Any amounts so withheld shall be treated as
having been  distributed to such member for all purposes of this Agreement,  and
shall be offset against  current or future amounts  otherwise  distributable  to
such member.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A Member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto,  such transferee  shall be deemed admitted as a
member  of  the  Company  to  the  extent  of  such  transferred  Interest,  and
immediately  thereafter the transferor  shall be deemed withdrawn as a member of
the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.

                                   ARTICLE IX

                         Exculpation and Indemnification

     Section  9.1  Exculpation.  Notwithstanding  any other  provisions  of this
Agreement,  whether  express  or  implied,  or  obligation  or duty at law or in
equity, no member, or any officer,  director,  stockholder,  partner,  employee,
representative  or agent 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 the  Agreement,  provided that such
act or omission does not constitute  fraud,  willful  misconduct,  bad faith, or
gross negligence.

     Section 9.2  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 9.2
with  respect  to any claim,  issue or matter in which it has  engaged in fraud,
willful misconduct, bad faith or gross negligence.

                                    ARTICLE X

                                  Miscellaneous

     Section 10.1 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  10.2  Successors;  Counterparts.  Subject  to Article  VIII,  this
Agreement  (i) 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 (ii) may be
executed  in  several  counterparts  with  the  same  effect  as if the  parties
executing the several counterparts had all executed one counterpart.

     Section 10.3 Governing Law; Severability.  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.

     Section 10.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company with the State of Delaware on November 28,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  10.5  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 10.6 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 10.7 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 10.8 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 duly executed this Agreement as of
the date first above written.



                             THE CINCINNATI GAS & ELECTRIC COMPANY
                             As sole Member of CPI Allowance Management, LLC



                             By: ______________________
                             Gregory C. Ficke
                             President
EX-99 19 b-237.htm LLC AGREE GENERATION SERVICES Cinergy Power Generation Services 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                     Cinergy Power Generation Services, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
November 28, 2000, of Cinergy Power Generation Services, LLC, a Delaware limited
liability company (the "Company"),  by Cinergy  Wholesale Energy,  Inc., an Ohio
corporation, as the sole member of the Company (the "Member");

                                    RECITALS
                                    --------

     WHEREAS, the Company was formed on November 22, 2000, by the Sole Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of November 28, 2000; 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  Power
Generation  Services,  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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)
                                    ---------

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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 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 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  subordinate  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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution
                                  ------------

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests
                  ---------------------------------------------

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution
                                   -----------

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports
                          -----------------------------

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.



                                                Cinergy Wholesale Energy, Inc.



                                                By:      /s/ Michael J. Cyrus
                                                         Michael J. Cyrus
                                                         President
EX-99 20 b-228.htm LLC AGREE CINERGY E-SUPPLY Cinergy e-Supply Network 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                          Cinergy e-Supply Network, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
August 10, 2000, of Cinergy e-Supply Network,  LLC, a Delaware limited liability
company (the "Company"),  by Cinergy Ventures Holding Company,  Inc., a Delaware
corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the Company  was formed on August 10, 2000 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of August 10, 2000; 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  e-Supply
Network, 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,  1209  Orange
     Street, Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).


     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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 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 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  subordinate  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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration and Dissolution.  The duration of the Company shall be
perpetual.

     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 in accordance  with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.

     Section 8.3 Distribution of Assets. 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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 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.  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 validate 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 is invalid or  unenforceable,  this  Agreement  shall be
construed or  interpreted  so as (a) to make it  enforceable or valid and (b) to
make the distributions and allocations as closely  equivalent to those set forth
in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.



                                        Cinergy Ventures Holding Company, Inc.



                                        By:  ___________________
                                               Larry E. Thomas
                                               President
EX-99 21 b-288.htm LLC AGREE CINCAP-ORAVILLE LLC Agree CinCap Oraville 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                             CinCap - Oraville, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
March 6, 2001, of CinCap - Oraville,  LLC, a Delaware limited  liability company
(the "Company"), by Cinergy Capital & Trading, Inc., an Indiana corporation,
as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the  Company  was  formed on March 6, 2001 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of March 6, 2001; 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 "CinCap - Oraville,
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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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 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.  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.



                                            Cinergy Capital & Trading, Inc.



                                            By:  ___________________
                                                   Michael J. Cyrus
                                                   President
EX-99 22 b-297.htm LLC AGREE CINERGY LIMITED HOLDINGS LLC Agree Cinergy Limited Holdings 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                          CINERGY LIMITED HOLDINGS, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
December  14,  2001,  of Cinergy  Limited  Holdings,  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");

                                    RECITALS

     WHEREAS,  the Company was formed on December  14, 2001,  by an  "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201(d)  of the  Act,  it is the
intention  of the  Member  that the  Agreement  be  effective  as of the date of
formation, December 14, 2001;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of December 14, 2001; 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  Limited
Holdings,  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,  1209  Orange
     Street, Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45202, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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 the Agreement be effective as of the
date of formation, December 14, 2001.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of Member(s).  The Member is hereby  admitted to the
Company in respect of an Interest (as defined in Section 3.2), which is the sole
Interest  outstanding as of the effective time of this Agreement.  New member(s)
shall be admitted only with the approval of the Member.

     Section 3.2  Interests.  The Company  shall be authorized to issue a single
class of  limited  liability  company  interest  (as  defined  in the  Act,  the
"Interest"),  which 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.
Interests may, but need not be, evidenced by a certificate of limited  liability
company interest issued by the Company.

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 its participation in meetings and other
activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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)
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 members

          (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.  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).

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto,  such transferee  shall be deemed admitted as a
member  of  the  Company  to  the  extent  of  such  transferred  Interest,  and
immediately  thereafter the transferor  shall be deemed withdrawn as a member of
the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.

                                   ARTICLE IX

                         Exculpation and Indemnification

     Section  9.1  Exculpation.  Notwithstanding  any other  provisions  of this
Agreement,  whether  express  or  implied,  or  obligation  or duty at law or in
equity,  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 the Agreement,
provided  that  such  act  or  omission  does  not  constitute  fraud,   willful
misconduct, bad faith, or gross negligence.

     Section 9.2  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 9.2
with  respect  to any claim,  issue or matter in which it has  engaged in fraud,
willful misconduct, bad faith or gross negligence.

                                    ARTICLE X

                                  Miscellaneous

     Section 10.1 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  10.2  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 10.3 Governing Law; Severability.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section 10.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company with the State of Delaware on December 14,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  10.5  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 10.6 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 10.7 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 10.8 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 duly executed this Agreement as of
the date first above written.


                                            CINERGY CAPITAL & TRADING, INC.



                                            By:  _______________________________
                                                   Charles J. Winger
                                                   Vice President
EX-99 23 b-299.htm LLC AGREE CINERGY GENERAL HOLDINGS LLC Agree Cinergy General Holdings 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                          CINERGY GENERAL HOLDINGS, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
December  14,  2001,  of Cinergy  General  Holdings,  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").

                                    RECITALS

     WHEREAS,  the Company was formed on December  14, 2001,  by an  "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201(d)  of the  Act,  it is the
intention  of the  Member  that the  Agreement  be  effective  as of the date of
formation, December 14, 2001;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of December 14, 2001; 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  General
Holdings,  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,  1209  Orange
     Street, Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45202, or such other place as the Member shall designate.

                  Section 2.3  Nature of Business Permitted; Powers.  The Company may carry on any lawful
business, purpose or activity.  The Company shall possess and may exercise all 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,  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 the Agreement be effective as of the
date of formation, December 14, 2001.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of Member(s).  The Member is hereby  admitted to the
Company in respect of an Interest (as defined in Section 3.2), which is the sole
Interest  outstanding as of the effective time of this Agreement.  New member(s)
shall be admitted only with the approval of the Member.

     Section 3.2  Interests.  The Company  shall be authorized to issue a single
class of  limited  liability  company  interest  (as  defined  in the  Act,  the
"Interest"),  which 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.
Interests may, but need not be, evidenced by a certificate of limited  liability
company interest issued by the Company.

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 its participation in meetings and other
activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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)
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 members

          (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.  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).

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto,  such transferee  shall be deemed admitted as a
member  of  the  Company  to  the  extent  of  such  transferred  Interest,  and
immediately  thereafter the transferor  shall be deemed withdrawn as a member of
the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.

                                   ARTICLE IX

                         Exculpation and Indemnification

     Section  9.1  Exculpation.  Notwithstanding  any other  provisions  of this
Agreement,  whether  express  or  implied,  or  obligation  or duty at law or in
equity,  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 the Agreement,
provided  that  such  act  or  omission  does  not  constitute  fraud,   willful
misconduct, bad faith, or gross negligence.

     Section 9.2  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 9.2
with  respect  to any claim,  issue or matter in which it has  engaged in fraud,
willful misconduct, bad faith or gross negligence.

                                    ARTICLE X

                                  Miscellaneous

     Section 10.1 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  10.2  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 10.3 Governing Law; Severability.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section 10.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company with the State of Delaware on December 14,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  10.5  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 10.6 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 10.7 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 10.8 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 duly executed this Agreement as of
the date first above written.

                                             CINERGY CAPITAL & TRADING, INC.



                                             By: ____________________________
                                                   Charles J. Winger
                                                   Vice President
EX-99 24 b-327.htm LLC AGREE CINERGY SOLUTIONS OF PHILADELPHIA LLC Agree Cinergy Solutions Philadelphia 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                     CINERGY SOLUTIONS OF PHILADELPHIA, LLC

     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
May 11, 2001,  of Cinergy  Solutions of  Philadelphia,  LLC, a Delaware  limited
liability  company  (the  "Company"),  by Cinergy  Solutions,  Inc.,  a Delaware
corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS, the Company was formed on May 11, 2001 by the Sole Organizer under
the Delaware  Limited  Liability  Company Act (as amended from time to time, the
"Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of May 11, 2001; 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  Solutions of
Philadelphia, 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,  1209  Orange
     Street, Wilmington, New Castle County, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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  capital  accounts.
ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will be treated as a separate entity for federal, state, and local tax purposes.
The Company has elected to  Check-the-Box  for purposes of federal taxation such
that the  Company  shall be treated as a  separate  corporation  and will not be
subject to the default provision,  which would disregard the entity, or if there
were two or more members hereof, would tax the Company as a partnership.

     Section 9.2 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.

                                    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, none of 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 the 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 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.  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 Notices. All notices, requests and other communications to any
member  shall be in writing (and  delivered  via first class  overnight  mail or
telecopier  or similar  method) 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                           Cinergy Solutions, Inc.



                                       By: _____________________________
                                           M. Stephen Harkness
                                           President and Chief Operating Officer
EX-99 25 b-332.htm LLC AGREE CST GENERAL CST General LLC

LIMITED LIABILITY COMPANY AGREEMENT

OF

CST GENERAL, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of May 22, 2001, of CST General, LLC, a Texas limited liability company (the “Company”), by Cinergy Solutions, Inc., a Delaware corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on May 22, 2001 by the Sole Organizer under the Texas Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of May 22, 2001; 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 “CST 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 Texas at, and the name and address of the Company’s registered agent in the State of Texas is, CT Corporation System, 1021 Main Street, Suite 1150, Houston, Texas 77002.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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 Article 2.21 of the Act, a member may transact business with the Company and, subject to applicable law, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

         Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

         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 capital contribution 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 Article 2.22 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

         Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually by the member(s).

Except as provided in paragraphs (b) or (c) of this Section 4.2, 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704’ (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Article 5.07 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

        Section 8.1 Duration. The duration of the Company shall be perpetual.

        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 Article 2.23D(4) 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 the winding up of the Company, the assets shall be distributed in the manner provided in Article 6.05A(3) of the Act.

ARTICLE IX

Tax Characterization; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, none of 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 the 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 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. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 Notices. All notices, requests and other communications to any member shall be in writing (and delivered via first class mail, overnight mail or telecopier or similar method) 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 11.8 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 duly executed this Agreement as of the date first above written.

      Cinergy Solutions, Inc.



By: ____________________________
    M. Stephen Harkness
    President and Chief Operating Officer
EX-99 26 b-338.htm LLC AGREE CSGP OF SE TEXAS LLC Agree CSGP of Southeast Texas 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                          CSGP OF SOUTHEAST TEXAS, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
February 22, 2001, of CSGP OF SOUTHEAST TEXAS, LLC, a Delaware limited liability
company (the "Company"), by Cinergy Solutions, Inc., a Delaware corporation,  as
the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the Company was formed on February 22, 2001 by the Sole Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of February 22, 2001; 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 "CSGP OF  SOUTHEAST
TEXAS,  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,  1209  Orange
     Street, Wilmington, Delaware.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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,  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 the 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 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.  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                        Cinergy Solutions, Inc.



                                    By: _____________________________
                                        M. Stephen Harkness
                                        President and Chief Operating Officer
EX-99 27 b-340.htm LLC AGREE CSGP LIMITED LLC Agree CSGP Limited 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                                CSGP LIMITED, LLC

          This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"),  dated as
     of April 5,  2001,  of CSGP  Limited,  LLC, a  Delaware  limited  liability
     company  (the   "Company"),   by  Cinergy   Solutions,   Inc.,  a  Delaware
     corporation, as the sole member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the  Company  was  formed on April 5, 2001 by the Sole  Organizer
under the Delaware Limited  Liability Company Act (as amended from time to time,
the "Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of April 5, 2001; 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 "CSGP  Limited,  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, 1209
          Orange Street, Wilmington, New Castle County, Delaware.

               (b) The  business  address  of the  Company  is 139  East  Fourth
          Street,  Cincinnati,  Ohio,  or such other  place as the Member  shall
          designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

               (a) The  membership  interests  of the Company  shall  consist of
          common membership interests ("Common Interests").

               (b) All Common  Interests  shall be identical  with each other in
          every respect,  except that, should additional  member(s) be admitted,
          Common  Interests  of each member  shall  reflect its capital  account
          relative to the other member(s).

     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 capital  contribution  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, if additional  member(s)
          are admitted, a majority of the member(s), determined in proportion to
          their  respective  interests in the  Company,  entitled to vote at the
          meeting shall constitute a quorum at all meetings of the member(s).

               (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).

               (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

               (a) Election,  Term of Office. Officers shall be elected annually
          by the member(s).  Except as provided in paragraphs (b) or (c) of this
          Section 4.2, 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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, none of 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 the 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 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.  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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  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  11.6  Additional  Documents.  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 11.7 Notices. All notices, requests and other communications to any
member  shall be in writing (and  delivered  via first class  overnight  mail or
telecopier  or similar  method) 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                           Cinergy Solutions, Inc.



                                       By: _____________________________
                                           M. Stephen Harkness
                                           President and Chief Operating Officer
EX-99 28 b-342.htm LLC AGREE CSGP GENERAL LLC Agree CSGP General 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                                CSGP GENERAL, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
April 5, 2001, of CSGP  General,  LLC, a Texas  limited  liability  company (the
"Company"),  by Cinergy  Solutions,  Inc., a Delaware  corporation,  as the sole
member of the Company (the "Member");

                                    RECITALS

     WHEREAS,  the  Company  was  formed on April 5, 2001 by the Sole  Organizer
under the Texas Limited Liability Company Act (as amended from time to time, the
"Act");

     WHEREAS, the Member holds 100% of the membership interest in the Company as
of April 5, 2001; 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 "CSGP  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
     Texas at, and the name and address of the Company's registered agent in the
     State of Texas is, CT  Corporation  System,  1021 Main Street,  Suite 1150,
     Houston, Texas 77002.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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 Article 2.21 of the Act, a member may transact business with the
Company  and,  subject  to  applicable  law,  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.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.

     Section 3.2 Classes.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Common Interests").

          (b) All Common  Interests  shall be identical with each other in every
     respect,  except that,  should  additional  member(s)  be admitted,  Common
     Interests of each member shall reflect its capital account  relative to the
     other member(s).

     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 capital  contribution
     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 Article 2.22 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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 who shall have full,  exclusive  and  complete  discretion  to manage and
control the  business and affairs of the Company as would (if the Company were a
corporation)  be  subject  to  control  by a board  of  directors,  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 shall serve without  compensation  from
the Company, and the Member shall bear the cost of its participation in meetings
and other activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the member(s).  Except as provided in paragraphs (b) or (c) of this Section
     4.2, 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)
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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury Regulations  promulgated under Code Section 704` (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" 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 capital accounts.

     Section 5.3 Allocation of  Distributions.  The distributions 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 capital accounts.

                                   ARTICLE VI

                                  Distribution

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Article
5.07 of the Act, a member may receive distributions from the Company in any form
other than cash, and may be compelled to accept a  distribution  of any asset in
kind from the Company.

                                   ARTICLE VII

                  Assignment of Membership and Common Interests

     Section 7.1 Assignment of Membership and Common  Interests.  Membership and
Common  Interests  in the Company  shall 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.

     Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited  liability  company interest issued by
the Company.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 Article  2.23D(4) 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 the winding up of the Company, the
assets shall be  distributed in the manner  provided in Article  6.05A(3) of the
Act.

                                   ARTICLE IX

                          Tax Characterization; Reports

     Section 9.1 Tax  Treatment.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.

     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 Internal Revenue
Code of 1986, as amended (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, none of 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 the 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 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.  This Agreement shall be governed
by and  construed  in  accordance  with the laws of the  State of Texas  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 is  invalid  or  unenforceable,  this
Agreement  shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section  11.4  Filings.  Following  the  execution  and  delivery  of  this
Agreement,  the Member shall promptly prepare any documents required to be filed
and  recorded  under the Act,  and the  Member  shall  promptly  cause each such
document 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 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  11.6  Additional  Documents.  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 11.7 Notices. All notices, requests and other communications to any
member shall be in writing (and  delivered via first class mail,  overnight mail
or  telecopier  or similar  method)  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 11.8 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 duly executed this Agreement as of
the date first above written.


                                          Cinergy Solutions, Inc.



                                      By: ____________________________
                                          M. Stephen Harkness
                                          President and Chief Operating Officer
EX-99 29 b-348.htm LLC AGREE TRIGEN-CINERGY SOLUTIONS OF SAN DIEGO Trigen-Cinergy Solutions of San Diego LLC

TRIGEN-CINERGY SOLUTIONS OF SAN DIEGO LLC

LIMITED LIABILITY COMPANY AGREEMENT

DATED AS OF NOVEMBER 18, 1999

TABLE OF CONTENTS
ARTICLE I ORGANIZATION

   Section 1.1. Name
   Section 1.2. Term
   Section 1.3. Registered Agent and Office
   Section 1.4. Principal Places of Business
   Section 1.5. Qualifications in Other Jurisdictions
   Section 1.6. Fiscal Year

ARTICLE II PURPOSE AND POWERS

   Section 2.1. Purpose of the Company
   Section 2.2. Powers of the Company

ARTICLE III MEMBERS

   Section 3.1. Members
   Section 3.2. Powers of Members
   Section 3.3. Meetings of Members
   Section 3.4. Member Representations

ARTICLE IV MANAGEMENT

   Section 4.1. The Board of Managers
   Section 4.2. Notice
   Section 4.3. Meetings; Electronic Communications
   Section 4.4. Quorum and Voting
   Section 4.5. Action Without a Meeting
   Section 4.6. Delegation of Powers
   Section 4.7. Executive Committee
   Section 4.8. Chairperson and Vice Chairperson
   Section 4.9. Officers
   Section 4.10. Matters for Board Determination

ARTICLE V DEADLOCK RESOLUTION

   Section 5.1. Deadlocks
   Section 5.2. Resolution Mechanism

ARTICLE VI SERVICE ARRANGEMENTS, CAPITAL CONTRIBUTIONS, MATERIAL APPROVALS, ETC

   Section 6.1. Initial Operations; Service Arrangements
   Section 6.2. Budget; Capitalization; Material Approvals
   Section 6.3. Status of Capital Contributions
   Section 6.4. Capital Accounts
   Section 6.5. Advances
   Section 6.6. Negative Capital Accounts

ARTICLE VII ALLOCATIONS, DISTRIBUTIONS AND WITHHOLDING

   Section 7.1. Allocations of Net Profit and Net Loss
   Section 7.2. Distributions
   Section 7.3. Limitations on Distribution
   Section 7.4. Withholding Taxes

ARTICLE VII TAX MATTERS

   Section 8.1. Tax Matters
   Section 8.2. Taxation as Partnership

ARTICLE IX BANKING; ACCOUNTING; BOOKS AND RECORDS

   Section 9.1. Banking
   Section 9.2. Maintenance of Books and Records; Accounts and Accounting Method
   Section 9.3. Financial Statements
   Section 9.4. Additional Information
   Section 9.5. Minutes of Meetings

ARTICLE X LIABILITY, EXCULPATION AND INDEMNIFICATION

   Section 10.1. Liability
   Section 10.2. Exculpation
   Section 10.3. Indemnification

ARTICLE XI TRANSFER OF INTERESTS

   Section 11.1. Personal Property; Consent for Transfers
   Section 11.2. Issue and Replacement of Certificates
   Section 11.3 Interest Certificate Legend

ARTICLE XII DISSOLUTION AND TERMINATION OF THE COMPANY

   Section 12.1. Dissolution
   Section 12.2. Liquidation
   Section 12.3. Time for Liquidation, etc
   Section 12.4. Claims of the Members

ARTICLE XIII CERTAIN DEFINITIONS

   Section 13.1. Definitions

ARTICLE XIV MISCELLANEOUS PROVISIONS

   Section 14.1. Amendments Generally
   Section 14.2. Entire Agreement
   Section 14.3. Notices
   Section 14.4. Table of Contents and Headings
   Section 14.5. Assignment
   Section 14.6. Severability
   Section 14.7. Extension; Waiver
   Section 14.8. Governing Law
   Section 14.9. Names and Logos
   Section 14.10. Further Actions
   Section 14.11. Counterparts


LIST OF ATTACHMENTS
Schedule 1 - Interest Percentages, Etc.

Schedule 2 - Matters Requiring Action of the board of Managers of the Company
INDEX OF DEFINED TERMS
TERM
 SECTION NUMBER
1935 Act 5.2(b)(i)
Acceptance Date 5.2(b)(i)
Affiliate 13.1
Agreement Preamble
Applicable Interest 5.2(b)(i)
Board of Managers 3.2
Business Day 13.1
Capital Account 13.1
Capital Contribution 13.1
Certificate 1.2
Cinergy Managers 4.1(c)
Cinergy Service Agreement 6.1
Cinergy Solutions Preamble
Claims 10.3(a)
Code 13.1
Company Preamble
Covered Person 13.1
Damages 10.3(a)
Deadlock 5.1
Delaware Act Recitals
Disabling Conduct 13.1
Executive Committee 4.7
First Offer 11.1(b)
First Offer Price 11.1(b)
Fiscal Year 1.6
Interest 13.1
Interest Percentage 13.1
HSR Act 6.2(c)
Joint Venture Agreement Recitals
Lien 5.2(b)(i)
Liquidating Trustee 12.1
Manager 13.1
Material Approvals 6.2(c)
Member Recitals, 13.1
Members Recitals
Net Loss 13.1
Net Profit 13.1
Offeree 5.2(b)(i)
Offered Interest 11.1(b)
Monsanto Project Recitals
Person 13.1
Proceeding 10.3(a)
Proponent 5.1(i)
Proposal 5.1(i)
Regulatory Approval 5.2(b)(i)
SEC 6.2(c)
Second Member 11.1(b)
Selling Member 11.1(b)
Settlement Date 5.2(b)(i)
Service Arrangements 6.1
Subsidiary or Subsidiaries 13.1
Tax Matters Partner 8.1
Transfer 11.1(a)
Treasury Regulations 13.1
Trigen Preamble
Trigen Managers 4.1(c)
Trigen Service Agreement 6.1

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRIGEN-CINERGY SOLUTIONS OF SAN DIEGO LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Trigen-Cinergy Solutions of San Diego LLC, a Delaware limited liability company (the “Company”), dated November 18, 1999 between Cinergy Solutions, Inc., a Delaware corporation (“Cinergy Solutions”), and Trigen Solutions, Inc., a Delaware corporation (“Trigen”) contain certain capitalized terms used herein without definition having the meanings specified in Section 13.1;

W I T N E S S E T H:

        WHEREAS, Cinergy Solutions and Trigen are parties to that certain Joint Venture and Project Development Agreement dated as of December 9, 1996 (the “Joint Venture Agreement”) and, pursuant thereto, have formed and are the sole members of Trigen-Cinergy Solutions of San Diego LLC, a Delaware limited liability company (“Trigen-Cinergy Solutions”);

        WHEREAS, pursuant to the Joint Venture Agreement, Trigen-Cinergy Solutions has been engaged in discussions with Monsanto Corporation (“Monsanto”) concerning the Company installing, operating and maintaining energy facilities to be located at Monsanto’s plant in San Diego, California and used to provide energy services to such plant (the “Monsanto Project”);

        WHEREAS, pursuant to those discussions, and to assist in implementing and performing the Monsanto Project, Cinergy Solutions and Trigen have formed the Company under the Delaware Limited Liability Company Act (the “Delaware Act”);

        WHEREAS, pursuant to Article III of the Joint Venture Agreement and as contemplated by the Delaware Act, Cinergy Solutions and Trigen, as the sole initial members of the Company (each in such capacity, a “Member”), are entering into this Agreement to govern 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 Members hereby agree as follows:

ARTICLE I ORGANIZATION

        Section 1.1. Name.

        The name of the Company is Trigen-Cinergy Solutions of San Diego LLC. The business of the Company may be conducted upon compliance with all applicable laws under any other name designated by the Company.

        Section 1.2. Term.

        The existence of the Company commenced on November 18, 1999, the date of the filing of the Certificate of Formation (the “Certificate”) with the office of the Secretary of State of the State of Delaware, and shall continue until the Company is dissolved in accordance with the provisions of this Agreement.

        Section 1.3. Registered Agent and Office.

        The registered office of the Company in Delaware shall be c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware. At any time, the Company may designate another registered agent and/or registered office. The registered agent for service of process on the Company in the State of Delaware shall be c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware.

        Section 1.4. Principal Places of Business.

        The principal places of business of the Company shall be at One Water Street, White Plains, NY 10601 and 139 E. Fourth Street, Cincinnati, OH 45202. Upon agreement of its Members, the Company may change the location of the Company’s principal place of business.

        Section 1.5. Qualifications in Other Jurisdictions.

        The Company shall be qualified or registered to do business in California and in such other jurisdictions, if any, in which the Company transacts business and in which such qualification or registration is required by law or deemed advisable by the Company. The Secretary of the Company, as an authorized person within the meaning of the Delaware Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any such jurisdiction.

        Section 1.6. Fiscal Year.

        The fiscal year of the Company (the “Fiscal Year”) shall end on the 31st day of December in each year. The Company shall have the same fiscal year for income tax and for financial and accounting purposes.

ARTICLE II PURPOSE AND POWERS

        Section 2.1. Purpose of the Company.

        The purpose of the Company is to participate in the Monsanto Project in accordance with the terms of the applicable agreements with Monsanto, and any other purpose decided upon by the Board of Managers of the Company by unanimous vote.

        Section 2.2. Powers of the Company.

        Subject to the terms and conditions of this Agreement, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in Section 2.1.

ARTICLE III MEMBERS

        Section 3.1. Members.

        The name, initial Capital Contributions and initial Interest Percentage of each Member are listed on Schedule 1 attached hereto. The Company shall be required to update Schedule 1 from time to time as necessary to reflect accurately the information therein. Any reference in this Agreement to Schedule 1 shall be deemed to be a reference to Schedule 1 as amended and in effect from time to time.

        Section 3.2. Powers of Members.

        Except as otherwise provided herein, the Members shall have no power to transact any business in the Company’s name nor have the power to sign documents for or otherwise bind the Company. Additional Members may only be added to the Company upon the unanimous consent of existing Members and otherwise in compliance with Article XI hereof. Subject to the provisions of the Delaware Act, the Certificate and this Agreement, the Members hereby delegate any or all such powers to the Board of Managers of the Company (the “Board of Managers”) to carry out the business affairs of the Company on the Members’ behalf. Any power not reserved to the Members or delegated to the officers shall remain with the Board of Managers. The Board of Managers shall be appointed in accordance with the provisions of Article IV.

        Section 3.3. Meetings of Members.

    (a)        Annual Meeting. An annual meeting of the Members shall be held once a year on such date as the Board of Managers shall designate.

    (b)        Special Meetings. Special meetings of the Members, for any purpose or purposes, may be called by the Board of Managers or at the request of any Member. Business transacted at any special meeting of Members shall be limited to the purposes stated in the notice, unless otherwise agreed by the Members attending the meeting.

    (c)        Place of Meeting. All meetings of Members shall be held at such place within or without the State of Delaware as the Board of Managers shall designate.

    (d)        Notice of Meetings. Notice of all meetings of Members, stating the time, place and purpose of the meeting, shall be given at least two (2) days and not more than sixty (60) days before the meeting. Any adjourned meeting may be held as adjourned without further notice, provided that any adjourned session or sessions are held within sixty (60) days after the date set for the original meeting. No notice need be given to any Member if a written waiver of notice, executed before or after the meeting by such Member or his representative 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. A waiver of notice need not specify the purposes of the meeting.

    (e)        Quorum and Voting. The presence of at least one duly authorized representative of each Member shall constitute a quorum for purposes of transacting business at any meeting of Members. Except as otherwise provided by this Agreement, any question brought before any meeting shall be decided by the Members who, at the time in question and in the aggregate, hold, or hold proxies with respect to, one hundred percent (100%) of Interest Percentages. Interests of Members may be voted in person or by proxy.

    (f)        Electronic Communications. Members may participate in any meeting of Members by means of conference telephone or similar communications equipment, whereby all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting.

    (g)        Actions of Members Without a Meeting. Any action required to be taken at any meeting of Members or otherwise, or any action which may be taken at any meeting of Members or otherwise, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by Members having one hundred percent (100%) of the Interest Percentages. 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.

        Section 3.4. Member Representations.

    (a)        Each Member represents and warrants to the other Member and the Company that (i) its Interest has been acquired for its own account, for investment, and not with an intent or a present view to participating, directly or indirectly, in or for the resale in connection with any distribution (as interpreted under any applicable law) thereof, nor with any present intention of dividing its participation, distribution, reselling, assigning or otherwise disposing of all or part of such Interest, and (ii) it will not make or offer to make a transfer of its Interest in violation of the Securities Act of 1933, as amended, or any other applicable Federal or state securities laws.

    (b)        Each Member represents and warrants to the other Members and the Company that this Agreement has been duly authorized, executed and delivered on behalf of such Member and is the legal, valid and binding obligation of such Member, enforceable against it in accordance with its terms.

ARTICLE IV MANAGEMENT

        Section 4.1. The Board of Managers.

    (a)        General. Except as specifically set forth herein, the business and affairs of the Company shall be managed by or under the direction of the Board of Managers. Other than rights and powers expressly reserved to Members by this Agreement of the Delaware Act, the Board of Managers 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.

    (b)        Duties. The Board of Managers shall be obligated to devote only as much of their time to the Company’s business as shall be reasonably required in light of the Company’s business and objectives. A Manager shall perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.

    (c)        Board Composition; Removal and Vacancies. Cinergy Solutions shall be entitled to designate one-half of the Managers to the Board of Managers and Trigen shall be entitled to designate the remaining half of the Managers to the Board of Managers. Those Managers designated to the Board of Managers by Cinergy Solutions are referred to herein as the “Cinergy Managers” and those Managers designated to the Board of Managers by Trigen are referred to herein as the “Trigen Managers”. Each Manager shall serve until his or her removal, resignation, death or retirement. Each Member shall vote all of its Interest and shall take all other action necessary or desirable, within its control (including, without limitation, attendance at meetings in person or by proxy and execution of written consents in lieu of meetings), so that the designees of the other Member are duly elected to the Board of Managers. Upon the removal, resignation, death or retirement of a Manager, or vacation of office by any Manager for any reason, his or her successor shall be nominated and elected by the same Member as originally proposed by the former Manager. Any successor so elected shall retain his or her office during such time only as the former Manager was entitled to retain the same. Trigen shall have the exclusive right to remove any Trigen Manager at any time and for any reason whatsoever and to fill the vacancy of the Trigen Managers, and Cinergy Solutions shall have the exclusive right to remove any Cinergy Manager at any time and for any reason whatsoever and to fill the vacancy of the Cinergy Managers.

    (d)        Restrictions on the Board. The Board of Managers shall not: (i) do any act in contravention of any applicable law or regulation, or provision of this Agreement; (ii) possess Company property for other than a Company purpose; or (iii) admit any new Members without the unanimous consent of existing Members or without compliance with Article XI hereof.

        Section 4.2. Notice.

        Meetings of the Board of Managers may be held at such places and at such times as the Board of Managers may from time to time determine and, if so determined by a quorum of the Board of Managers, no advance notice of meeting need be given. Any three (3) Managers may at any time call a meeting of the Board of Managers. Written notice of the time, place, and purpose of such meeting shall be served by registered or certified, prepaid first class, mail, or by fax or cable, upon each member of the Board of Managers and shall be given at least twenty-four (24) hours prior to the time of the meeting. No notice need be given to any Manager if a written waiver of notice, executed before or after the meeting by such Manager thereunto duly authorized, is filed with the records of the meeting, or to any Manager who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him. A waiver of notice need not specify the purposes of the meeting.

        Section 4.3. Meetings; Electronic Communications.

        Regular meetings of the Board of Managers shall be held on such dates as the Board of Managers shall agree but not less frequently than once during each fiscal year of the Company. Members of the Board of Managers, or of any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at such meeting.

        Section 4.4. Quorum and Voting.

        A majority of the Managers shall constitute a quorum for the transaction of business at a meeting of the Board of Managers, provided, that at least one Cinergy Manager and one Trigen Manager are present. Action by the Board of Managers must be authorized by the unanimous vote of the Managers present at the meeting.

        Section 4.5. Action Without a Meeting.

        Any action which is required to be, or which may be, taken at any annual, regular or special meeting of the Board of Managers or otherwise, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all of the Managers in office. 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.

        Section 4.6. Delegation of Powers.

        Subject to any limitation set forth in the Delaware Act, the Board of Managers may delegate any of its powers to committees or to officers consisting of persons who may or may not be Managers. 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 Board of Managers.

        Section 4.7. Executive Committee.

        The Board of Managers shall have an Executive Committee consisting of two (2) Managers, one Cinergy Manager and one Trigen Manager (the “Executive Committee”). Actions of the Executive Committee shall require unanimous consent of both Managers. Meetings of the Executive Committee may be called by any member thereof upon twenty-four (24) hours’ prior notice. The Executive Committee shall be empowered to act on such matters as may be from time to time delegated to it by the Board of Managers and in accordance with the terms and conditions of any such delegation.

        Section 4.8. Chairperson and Vice Chairperson.

        The Board of Managers shall designate one of its members as the Chairperson and another as the Vice Chairperson. The Cinergy Managers shall have the right to designate the Chairperson to serve for a three-year term commencing at the formation of the Company. The next Chairperson shall be designated by the Trigen Managers and shall serve for a term of three (3) years, with the position thereafter alternating for three-year terms between the designees of each of the Cinergy Managers and the Trigen Managers. A Vice Chairperson shall be designated by the Managers whose designee is not serving as the Chairperson. Neither the Chairperson nor the Vice Chairperson shall have any additional or special voting rights and either may be replaced at any time during his or her term by the Manager by whom initially designated. The Chairperson shall preside over all meetings of the Board of Managers. In the absence of the Chairperson, the Vice Chairperson shall preside over a meeting of the Board of Managers. The Chairperson and Vice Chairperson shall have such other authority and perform such other duties as the Board of Managers may determine in its sole discretion.

        Section 4.9. Officers.

    (a)        General. The Trigen Managers shall have the right to annually appoint the President/Chief Executive Officer of the Company, subject to the consent of Cinergy Solutions (which consent shall not be unreasonably withheld) for a three year period, commencing at the formation of the Company. The Cinergy Managers shall have the right to annually appoint each of the Executive Vice President/Chief Operating Officer and the Secretary of the Company, subject to the consent of Trigen (which consent shall not be unreasonably withheld) for three years commencing with the formation of the Company. Upon completion of the initial three-year period, the Board of Managers shall determine whether to continue such officer-appointment procedure or adopt another procedure.

    (b)        Election, Term of Office, Qualifications, and Compensation. Except as provided in Section 4.9(a), the officers shall be appointed by the Board of Managers. Except as provided in paragraphs (c) or (d) of this Section 4.9, each Officer shall hold office until his or her successor shall have been chosen and qualified. Any two (2) offices, except those of the Chief Executive Officer, the Chief Operating Officer 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 (2) or more officers.

    (c)        Resignations and Removals. Any Officer may resign his or her office at any time by tendering his or her resignation to the Chief Executive Officer or to the Secretary. Unless otherwise specified therein, such resignation shall take effect upon delivery. Except as set forth in Section 4.9(a), any Officer may be removed from office with or without cause by the Board of Managers.

    (d)        Vacancies and Newly Created Offices. Except as set forth in Section 4.9(a), if any vacancy shall occur in any office by reason of death, resignation, removal, disqualification or any other cause, or if any new office shall be created, such vacancies or newly created offices may be filled by the Board of Managers.

    (e)        Conduct of Business. Subject to the provisions of the Certificate and this Agreement (including without limitation Section 6.1), the day-to-day operations of the Company shall be managed by its officers. 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 the Certificate and this Agreement, and with directions which may be given from time to time by the Board of Managers.

    (f)        Chief Executive Officer. Subject to the further directive of the Board of Managers, the Chief Executive Officer shall have general and active management of the business of the Company subject to the supervision of the Board of Managers, and shall ensure that all orders and resolutions of the Board of Managers are implemented and shall have such additional powers and authority as are specified by the provisions of this Agreement.

    (g)        Chief Operating Officer. The Chief Operating Officer shall have such authority and perform such duties as the Board of Managers may determine in its sole discretion.

    (h)        The Secretary. The Secretary shall attend all meetings of the Members and the Board of Managers and record all the proceedings and 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 Members or the Board of Managers, and shall perform such other duties as may be prescribed by the Board of Managers or the Chief Executive Officer, under whose supervision the Secretary shall be. 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 Board of Managers may from time to time prescribe.

    (i)        Other Officers. The Board of Managers from time to time may appoint such other officers or agents as it deems advisable, each of whom shall have such title, hold office for such period, have such authority and perform such duties as the Board of Managers may determine in its sole discretion. The Board of Managers from time to time may delegate to one or more offices or agents the power to appoint any such officers or agents and prescribe their respective rights, terms of office, authorities and duties.

    (j)        Officers as Agents; Authority. The officers, to the extent of their powers set forth in this Agreement, are agents 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 4.10. Matters for Board Determination.

        Notwithstanding anything to the contrary contained in this Agreement, the Company shall not take any action with respect to matters identified on Schedule 2 hereto without first obtaining the approval of the Board of Managers.

ARTICLE V DEADLOCK RESOLUTION

        Section 5.1. Deadlocks.

        A “Deadlock” shall be a fundamental breakdown in the relationship between the parties as evidenced by the sequence of events described below.

    (a)        A Member or a Manager (the “Proponent”), advances a proposal (the “Proposal”) for consideration at a meeting of the Board of Managers or Members of the Company; and

    (b)        Prior to the meeting at which the Proposal is advanced, the Proponent notifies the Board of Managers and/or Members that it considers the Proposal to be essential to the continuance of the Proponent’s investment in the Company, specifying the reasons therefore; and

    (c)        The Proposal is not approved at that meeting (as a result of either a rejection thereof or a failure to consider it) or the meeting is canceled by reason of a lack of a quorum resulting from the non-attendance of the non-Proponent Member’s designees, at which time a Deadlock will be deemed to have occurred.

        Section 5.2. Resolution Mechanism.

    (a)        Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of each of the Member’s respective U.S. parent company (i.e., Trigen Energy Corporation, a Delaware corporation, in the case of Trigen and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement.

    (b)        (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“Purchase Offer”) all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “Applicable Interest”) owned by the other Member (“Offeree”), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash, and other terms and conditions of the Purchase Offer), (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “Acceptance Date”) and (z) a proposed settlement date (the “Settlement Date”) therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either Member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “Regulatory Approval”) including, without limitation, under the Public Utility Holding Company Act of 1935 (the “1935 Act”), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “Lien”), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension.

    (ii)        On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by written notice to the Proponent elect to purchase all (but not less than all) of the Proponent’s Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer.

    (iii)        In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s Applicable Interest or the Offeree’s Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder.

      ARTICLE VI SERVICE ARRANGEMENTS, CAPITAL CONTRIBUTIONS, MATERIAL APPROVALS, ETC.

        Section 6.1. Initial Operations; Service Arrangements.

The Members intend to operate the Company initially with minimal staff and committed overhead and for the Company to purchase operational and other support services, technical assistance and intellectual property rights, where available, from the Members and/or their respective Affiliates at cost in accordance with the terms of (i) in the case of Cinergy Solutions and its Affiliates, (a) that certain Nonutility Service Agreement, amended and restated, effective as of February 18, 1997, nonutility Affiliates thereof, including Cinergy Solutions and the Company (the “Service Agreement”), a complete copy of which Cinergy Solutions has provided to Trigen, and (ii) in the case of Trigen and its Affiliates that certain Service Agreement between the Company and Trigen Energy Services, Inc. (the “Trigen Service Agreement” and collectively with the Cinergy Service Agreement, the “Service Arrangements”), a complete copy of which Trigen has provided to Cinergy Solutions. Each Member and any Affiliate thereof which provides services to the Company pursuant to the Service Arrangements shall permit the Company reasonable access to its accounts and records, including the basis and computation of cost allocations.

        Section 6.2. Budget; Capitalization; Material Approvals.

    (a)        A complete copy of the Company’s first and, thereafter, every annual budget shall be provided to each Member.

    (b)        Cinergy Solutions shall commit to contribute forty-nine percent (49%) of the amount of the capital funding portion of the Company’s annual budget and Trigen shall commit to contribute fifty-one percent (51%) of the Company’s annual budget, to be paid to the Company at such times as the Members shall mutually agree. All capital contributions, when made, shall be in cash, unless the Members shall otherwise mutually agree. The Members shall be liable only to make their Capital Contributions pursuant to this Section 6.2 and no Members shall be required to lend any funds to the Company or to make any additional Capital Contributions to the Company.

    (c)        The capitalization of the Company shall be subject to the receipt by the Members of all requisite Regulatory Approvals and all other consents, licenses, approvals or other authorizations (together with such Regulatory Approvals, “Material Approvals”) necessary to permit the establishment and operation of the Company as contemplated herein, including, to the extent applicable, (i) expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), if applicable, (ii) the approval of the Securities and Exchange Commission (“SEC”) under the 1935 Act, if applicable, and (iii) any Material Approval of any state, municipality, utility commission, regulatory body or governmental or other agency or authority thereof (each, a “Material Approval”).

    (d)        With reference to paragraph (c) above, Cinergy Solutions represents and warrants that no approval or other action of the SEC under the 1935 Act is required to be obtained by Cinergy Solutions, the Company or any other direct or indirect subsidiary of Cinergy Corp. in connection with the formation of the Company and the transactions contemplated by this Agreement and the Monsanto Project Agreements.

        Section 6.3. Status of Capital Contributions.

    (a)        Except as otherwise expressly provided in Article VII and XI, no Member shall have the right to withdraw capital from the Company or to receive any distribution or return of such Member’s Capital Contributions.

    (b)        No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise in its capacity as a Member, except as otherwise specifically provided in this Agreement.

    (c)        No Member shall have priority over any other Member as to the return of the amount of its Capital Contribution to the Company or as to any allocation of Net Profit and Net Loss.

        Section 6.4. Capital Accounts.

    (a)        There shall be established on the books and records of the Company a Capital Account for each Member. The initial Capital Account balance of each Member shall be the respective amounts of such Member’s initial Capital Contribution.

    (b)        Each Member’s Capital Account shall be adjusted by (a) increasing such balance by such member’s (I) allocable shares of Net Profit (allocated in accordance with Article VII) and (ii) Capital Contributions, if any, and (b) decreasing such balance by (i) the amount of cash or the fair market value of distributions to such Member pursuant to Article VII and (ii) such Member’s allocable share of Net Loss (allocated in accordance with Article VII). The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulation.

    (c)        Any Capital Contributions made in a form other than cash shall be valued at the fair market value of such property as determined by the mutual consent of the Members.

        Section 6.5. Advances.

        If any Member, upon reasonable advance notice to the other Member and only to the extent reasonably necessary to meet short-term working capital requirements, shall advance any funds to the Company in excess of its Capital Contributions, the amount of such advance shall neither increase its Capital Account nor entitle it to any increase in its share of the distributions of the Company. The amount of any such advance shall be a debt obligation of the Company to such Member and shall be repaid to it by the Company at a reasonable interest rate, not to exceed the market rate, as soon as practicable. Any such advance shall be payable and collectible only out of Company assets, and the other Members shall not be personally obligated to repay any part thereof. No Person who makes any loan to the Company shall have or acquire, as a result of making such loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a creditor.

        Section 6.6. Negative Capital Accounts.

        No Member shall be required to make up a negative balance in its Capital Account.

ARTICLE VII ALLOCATIONS, DISTRIBUTIONS AND WITHHOLDING

        Section 7.1. Allocations of Net Profit and Net Loss.

    (a)        The Net Profit and Net Loss of the Company, including each item of income, gain, loss and deduction, and credit shall be allocated with respect to each Fiscal Year (or portion thereof) among the Members in accordance with their respective Interest Percentages.

    (b)        Allocations for tax purposes shall be made in the same manner as the allocations set forth under Section 7.1(a); however, the following adjustments shall be made and applied, to the extent necessary, in a manner consistent with Treasury Regulation Section 1.704-1(b):

    (i)        The allocations of income, gain, loss and deduction pursuant to Section 7.1(a) shall be adjusted to comply with the qualified income offset requirements of Treasury Regulation Section 1.704-1(b) and the nonrecourse deduction or minimum gain charge-back requirements of Treasury Regulation Section 1.704-2.

    (ii)        Any special allocations pursuant to the preceding clause (i) required in order to comply with the Treasury Regulations shall be taken into account, to the extent permitted by the Treasury Regulations, in computing subsequent allocations pursuant to this Section 7.1(b) so that the net amount of any items so allocated and all other items allocated to each Member shall, to the extent possible, be equal to the amount that would have been allocated to each Member had there been no such special allocation.

    (c)        If there is a charge in any Member’s share of the distributions or other items of the Company during any Fiscal Year as a result of the Transfer (as defined herein) of an Interest, allocations among the Members shall be made in accordance with their Interests in the Company from time to time during such Fiscal Year in accordance with Code Section 706, using the closing-of-the-books method; however, depreciation shall be deemed to accrue ratably, on a daily basis, over the entire year during which the corresponding asset is owned by the Company.

        Section 7.2. Distributions.

        Distributions may be made to the Members in accordance with their Interest Percentages at such times as determined in the sole discretion of the Board of Managers, or at such other times as the Members by unanimous consent shall determine.

        Section 7.3. Limitations on Distribution.

        Notwithstanding any provisions of this Article VII to the contrary, no distribution shall be made (i) if such distribution would violate any contract or agreement to which the Company is then a party or any law then applicable to the Company, including the provisions of Section 18-607 of the Delaware Act, or (ii) to the extent that the Board of Managers determines that any amount otherwise distributable should be retained by the Company to pay, or to establish a reserve for the payment of, any liability or obligation of the Company, including obligations to pay or withhold Federal, state or local income, franchise or other taxes or levies, whether liquidated, fixed, or contingent.

        Section 7.4. Withholding Taxes.

        The Company is authorized to withhold from distributions to a Member, or with respect to allocations to a Member, and to pay over to a Federal, state or local government, any amounts required to be withheld pursuant to the Code or any provisions of any other Federal, state or local law. Any amounts so withheld shall be treated as having been distributed to such Member for all purposes of this Agreement, and shall be offset against the current or next amounts otherwise distributable to such Member.

ARTICLE VII TAX MATTERS

        Section 8.1. Tax Matters.

        Cinergy Solutions is hereby designated as “Tax Matters Partner” of the Company under Section 6231 of the Code and the Treasury Regulations thereunder. Notwithstanding the foregoing designation, the Tax Matters Partner shall not take any action in its capacity as Tax Matters Partner in connection with any tax audit, contest or other similar proceeding involving the Company without the consent or approval of the other Member. The Tax Matters Partner shall keep the other Party fully apprised of its activities in its capacity as the Tax Matters Partner.

        Section 8.2. Taxation as Partnership.

        The Members intend that the Company shall be treated as a partnership for United States Federal income tax purposes and the Members agree not to take any action inconsistent with the Company’s classification as a partnership for United States Federal income tax purposes.

ARTICLE IX BANKING; ACCOUNTING; BOOKS AND RECORDS

        Section 9.1. Banking.

        All funds of the Company may be deposited in such bank, brokerage or money market accounts as shall be established by the Board of Managers. Withdrawals from and checks drawn on any such account shall be made upon such signature or signatures as the Board of Managers may designate.

        Section 9.2. Maintenance of Books and Records; Accounts and Accounting Method.

        Trigen shall keep or cause to be kept at the address of the Company (or at such other place as the Company shall advise the Members in writing) full and accurate accounts of the transactions of the Company, in proper books and records of account, which shall set forth all information required by the Delaware Act. Such books and records shall be maintained on the basis of United States generally accepted accounting principles. Such books and records shall be available, upon two (2) Business Days’ notice to the Board of Managers, for inspection and copying at reasonable times during business hours by a Member, or by its duly authorized agents or representatives, for any purpose reasonably related to such Member’s interest as a member in the Company.

        Section 9.3. Financial Statements.

        As soon as available and in any event within 45 days after the end of each fiscal quarter, the Company shall have prepared, and delivered to each Member, a quarterly set of primary financial statements for the Company. This set of primary financial statements shall include: (i) a balance sheet reflecting the assets, liabilities and capital accounts of the Company, comparative to the prior year and the prior year-end; and (ii) quarterly and year-to-date statements of operations, comparative to the prior year. The Board of Managers shall cause the annual financial statements of the Company to be examined by the Company’s independent auditor and submitted for adoption at the annual meeting of Members.

        Section 9.4. Additional Information.

        Upon the request of a Member, the Company shall prepare additional periodic or special reports of the Company’s accounts and/or business activity considered necessary by such Member, including but not limited to, detailed reports of sales by location, detailed expense reports, reports of capital expenditures, details of assets and liabilities, and non-financial and ratio data.

        Section 9.5. Minutes of Meetings.

        The Managers shall cause minutes of all proceedings and copies of resolutions adopted at meetings of Members or Managers to be duly entered in the minute books which shall be kept at the executive offices of the Company. Any such minutes must be signed by either the Chairperson or Vice Chairperson, and one other person (such as the Secretary), who was present at the meeting at which such resolutions were passed.

ARTICLE X LIABILITY, EXCULPATION AND INDEMNIFICATION

        Section 10.1. Liability.

        Except as otherwise provided by the Delaware 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 no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person.

        Section 10.2. Exculpation.

    (a)        Generally. No Covered Person shall be liable to the Company or any Member for any act or omission taken or suffered by such Covered Person in good faith 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 is not in material violation of this Agreement and does not constitute Disabling Conduct by the Covered Person. No Member shall be liable to the Company or any Member for any action taken by any other Member.

    (b)        Reliance Generally. A Covered Person shall incur no liability in acting upon any signature or writing reasonably believed by it to be genuine, and may rely on a certificate signed by an executive officer of any Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge and may rely on an opinion of counsel selected by such Covered Person with respect to legal matters, except to the extent that such Covered Person engaged in Disabling Conduct. Each Covered Person may act directly or through its agents or attorneys. Each Covered Person may consult with counsel, appraisers, engineers, accountants and other skilled Persons of its choosing, and shall not be liable for anything done, suffered or omitted in good faith in reasonable reliance upon the advice of any of such Persons, except to the extent that such Covered Person engaged in Disabling Conduct. No Covered Person shall be liable to the Company or any Member for any error of judgment ,made in good faith, by a responsible officer or officers of the Covered Person, except to the extent that such Covered Person engaged in Disabling Conduct. Except as otherwise provided in this Section 10.2, no Covered Person shall be liable to the Company or any Member for any mistake of fact or judgment by the Covered Person in conducting the affairs of the Company or otherwise acting in respect of and within the scope of this Agreement, except to the extent that such Covered Person engaged in Disabling Conduct. No Covered Person shall be liable for the return to any Member of all or any portion of any Member’s Capital Account or Capital Contributions, except to the extent that such Covered Person engaged in Disabling Conduct.

    (c)        Reliance on this Agreement. To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to the Members, any Covered Person acting under this Agreement or otherwise shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Covered Person.

    (d)        Standard of Care. Whenever in this Agreement a Person is permitted or required to make a decision (i) in his or her “sole and absolute discretion,” “sole discretion,” “discretion” or under a grant of similar authority or latitude, the Person shall be entitled to consider such interests or factors as he or she desires, including his or her own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person, or (ii) in its “good faith” or under another express standard, the Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Agreement or other applicable law.

        Section 10.3. Indemnification.

    (a)        Indemnification Generally. The Company shall and hereby does, to the fullest extent permitted by applicable law, indemnify, hold harmless and release each Covered Person from and against all claims, demands, liabilities, costs, expenses, damages, losses, suits, proceedings and actions, whether juridical, administrative, investigative or otherwise, of whatever nature, known or unknown, liquidated or unliquidated (“Claims”), that may accrue to or be incurred by any Covered Person, or in which any Covered Person may become involved, as a party or otherwise, or with which any Covered Person may be threatened, relating to or arising out of the business and affairs of, or activities undertaken in connection with, the Company, or otherwise relating to or arising out of this Agreement, including, but not limited to, amounts paid in satisfaction of judgments, in compromise or as fines or penalties and counsel fees and expenses incurred in connection with the preparation for or defense or disposition of any investigation, action, suit, arbitration or other proceeding (a “Proceeding”), whether civil or criminal (all of such Claims and amounts covered by this Section 10.3 and all expenses referred to in Section 10.3(c), are referred to as “Damages”), except to the extent that it shall have been determined ultimately that such Damages arose from Disabling Conduct of such Covered Person or that such Covered Person committed a material breach of this Agreement. The termination of any Proceeding by settlement shall not, of itself, create a presumption that any Damages relating to such settlement arose from a material violation of this Agreement by, or Disabling Conduct of, any Covered Person.

    (b)        No Direct Member Indemnity. Members shall not be required directly to indemnify any Covered Person.

    (c)        Expenses, etc. Expenses incurred by a Covered Person in the defense of or settlement of any Claim that may be subject to a right of indemnification hereunder may be advanced by the Company, prior to the final disposition thereof, upon receipt of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined ultimately that the Covered Person is not entitled to be indemnified hereunder. The right of any Covered Person to the indemnification provided herein shall be cumulative with, and in addition to, any and all rights to which such Covered Person may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Covered Person’s successors, assigns and legal representatives.

    (d)        Notices of Claims, etc. Promptly after receipt by a Covered Person of notice of the commencement of any Proceeding, such Covered Person shall, if a claim for indemnification in respect thereof is to be made against the Company, give written notice to the Company of the commencement of such Proceeding, provided that the failure of any Covered Person to give notice as provided herein shall not relieve the Company of its obligations under this Section 10.3 except to the extent that the Company is actually prejudiced by such failure to give notice. If a Proceeding is brought against a Covered Person (other than a derivative suit in right of the Company), the Company will be entitled to participate in and to assume the defense thereof to the extent that the Board of Managers may wish, with counsel reasonably satisfactory to such Covered Person. After notice from the Board of Managers to such Covered Person of the Company’s election to assume the defense thereof, the Company will not be liable for expenses subsequently incurred by such Covered Person in connection with the defense thereof. The Company will not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Covered Person a release from all liability in respect to such Claim.

    (e)        No Waiver. Nothing contained in this Section 10.3 shall constitute a waiver by any Member of any right that it may have against any party under United States Federal or state securities laws.

    (f)        Authorization. Any indemnification under Section 10.3, as well as the advance payment of expenses permitted under Section 10.3(c), unless ordered by a court, must be made by this Company only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper under those circumstances. The determination must be made:

    (1)        by the Board of Managers by a majority of a quorum consisting of Managers who were not parties to the act or Proceeding;

    (2)        if a majority vote of a quorum consisting of those Managers who were not parties to the act or Proceeding so orders, by independent legal counsel in a written opinion; or

    (3)        if a quorum consisting of Managers who were not parties to the act or Proceeding cannot be obtained, by independent legal counsel in a written opinion.

ARTICLE XI TRANSFER OF INTERESTS

        Section 11.1. Personal Property; Consent for Transfers.

    (a)        Restrictions on Transfer. A Member shall not transfer, sell, assign, convey, exchange, pledge, encumber or otherwise dispose of (each, a “Transfer”) any of its Interest unless: (i) the other Member has been afforded a right of first offer in accordance with the procedures set forth in paragraph (b) of this Section 11.1; (ii) the contemplated Transfer will not adversely affect the regulatory status of the Company or the Tuscola Project; (iii) all requisite Regulatory Approvals have been duly obtained and are in full force and effect; and (iv) the contemplated Transfer will not result in adverse tax treatment for the Company, the Tuscola Project or either of the Members.

    (b)        Right of First Offer. In the event a Member desires to Transfer all or any part of its Interest, such Members (the “Selling Member”) shall first deliver a written notice (the “Section 11.1 Notice”) to the other Member (the “Second Member”) which notice shall specify the portion of the Selling Member’s Interest to be sold (the “Offered Interest”). Within thirty (30) days after its receipt of the Section 11.1 Notice, the Second Member shall have the right to offer to purchase (the “First Offer”) all, but not less than all, the Offered Interest at a price payable only in cash (the “First Offer Price”) and on such other terms and conditions as shall be set forth in the First Offer. Within thirty (30) days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member’s acceptance of the First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Selling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).

    (c)        Proportionate Sales Rights. If the Second Member does not elect to purchase the Offered Interest pursuant to Section 11.1(b) above, the Second Member shall have the right, but not he obligation, to sell to the prospective purchaser identified in the First Offer the same proportion of the Second Member’s Interest as the proportion of the Selling Member’s Interest proposed to be sold by the Selling Member at the same price and otherwise on the same terms and conditions on which, and at the same time as, the Selling Member wishes to sell its Interest. The proportionate sale right specified in this Section 11.1(c) shall be exercisable by written notice given by the Second Member to the Selling Member during the same thirty (30) day period in which the Second Member may make the First Offer contemplated under Section 11.1(b). The Selling Member shall not sell any of its Interest to the prospective purchaser unless such purchaser honors its obligation to purchase a proportionate Interest from the Second Member as provided herein. Any purported Transfer inconsistent with this Section 11.1(c) shall be null and void and of no effect.

        Section 11.2. Issue and Replacement of Certificates.

        Upon the request of any Member, an Interest certificate shall be delivered to such Member for the Interest held by it. Every certificate shall be signed by one Cinergy Manager and one Trigen Manager. In the case of loss, mutilation, or destruction of a share certificate a new certificate may be issued upon such terms as the Board of Managers may prescribe.

        Section 11.3. Interest Certificate Legend.

        All certificates representing Interests shall bear the following legend (in addition to any other legend required by applicable law):

        “These interests have not been registered under the Securities Act of 1933, as amended, or any state securities laws and may not be sold, offered for sale, pledged, assigned, hypothecated or otherwise transferred in violation of any applicable securities law. These interests are subject to the terms and conditions, including restrictions on transfers, pledges or other dispositions, of a Joint Venture and Project Development Agreement, dated as of December 9, 1996, and a Limited Liability Company Agreement, dated as of November 18, 1999, each as amended from time to time, copies of which are on file with the Secretary of the Company.”

ARTICLE XII DISSOLUTION AND TERMINATION OF THE COMPANY

        Section 12.1. Dissolution.

        The Company shall dissolve upon and in accordance with the mutual agreement of the Members.

        Section 12.2. Liquidation.

        Upon dissolution of the Company, the Person or Persons approved by the Board of Managers shall carry out the winding up of the Company (in such capacity, the “Liquidating Trustee”) and shall proceed, subject to the provisions herein, to liquidate the Company and apply the proceeds of such liquidation, or in its sole discretion to distribute Company assets, in the following order of priority:

          First, to creditors in satisfaction of debts and liabilities of the Company, whether by payment or the making of reasonable provision for payment (other than any loans or advances that may have been made by any of the Members to the Company), and the expenses of liquidation, whether by payment or the making of reasonable provisions for payments, any such reasonable reserves (which may be funded by a liquidating trust) to be established by the Liquidating Trustee, as the case may be, in amounts deemed by it to be reasonably necessary for the payment of the Company’s expenses, liabilities and other obligations (whether fixed or contingent);

          Second, to the Members in satisfaction of any loans or advances that may have been made by any of the Members to the Company, whether by payment or the making of reasonable provision for payment; and

          Third, to the Members in proportion to, and to the extend of, each Member’s Capital Account, as such Capital Account has been adjusted pursuant to Article VI.

        Section 12.3. Time for Liquidation, etc.

    (a)        A reasonable time period shall be allowed for the orderly winding up and liquidation of the assets of the Company and the discharge of liabilities to creditors as to enable the Liquidating Trustee to seek to minimize potential losses upon such liquidation. The provisions of this Agreement shall remain in full force and effect during the period of winding up and until the filing of a certificate of cancellation of the Company with the Secretary of State of the State of Delaware.

    (b)        Upon completion of the foregoing, the Liquidating Trustee shall execute, acknowledge and cause to be filed a certificate of cancellation of the Company with the Secretary of State of the State of Delaware.

        Section 12.4. Claims of the Members.

        The Members and any former Members shall look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provisions of all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members and former Members shall have no recourse against any Member, or any Manager or their Affiliates.

ARTICLE XIII CERTAIN DEFINITIONS

        Section 13.1. Definitions.

        Unless the context otherwise requires, the terms defined in this Section shall, for the purposes of this Agreement, have the meanings herein specified.

        “Affiliate” shall mean, with respect to any specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified.

        “Business Day” shall mean any day on which banks located in New York City are not required or authorize by law to remain closed.

        “Capital Account” shall mean, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 6.4 hereof.

        “Capital Contribution” shall mean, with respect to any Member, the amount set forth opposite the name of such Member on Schedule I under the column “Capital Contribution”.

        “Code” shall mean the Internal Revenue Code of 1986, as amended.

        “Covered Person” shall mean a Member, a Manager, or any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Company, a Member, or a Manager; any officers, directors, shareholders, controlling persons, partners, employees, representatives or agents of a Member, a Manager or their respective Affiliates; or any officer, employee or agent of the Company or its Affiliates; or any Person who was, at the time of the act or omission in question, such a Person.

        “Disabling Conduct” shall mean conduct that constitutes fraud, a willful violation of law, gross negligence or reckless disregard of duty in the conduct of the duties of the Person referred to.

        “Interest” shall mean a Member’s limited liability company interest in the Company which represents such Member’s share of the profits and losses of the Company and such Member’s rights to receive distributions of the Company’s assets and to participate in the management of the Company in accordance with the provisions of this Agreement and the Delaware Act.

        “Interest Percentage” shall mean the percentage shown on Schedule 1 hereto under the heading “Interest Percentage”.

        “Manager” shall mean a “manager” within the meaning of the Delaware Act and a member of the Board of Managers.

        “Member” shall mean any Person named as a member of the Company on Schedule 1 and “Members” shall mean two (2) or more of such Persons when acting in their capacities as members of the Company.

        “Net Profit” or “Net Loss” shall mean, for any Fiscal Year, the net income or net loss of the Company for such Fiscal Year, determined in accordance with Section 703(a) of the Code, including any items that are separately stated for purposes of Section 702(a) of the Code, as determined in accordance with Federal income tax accounting principles with the following adjustments:

    (a)        any income of the Company that is exempt from Federal income tax shall be included as income;

    (b)        any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(1) shall be treated as current expenses;

    (c)        no effect shall be given to any adjustments made pursuant to Section 734 or 743 of the Code; and

    (d)        the basis of property contributed to the Company shall initially be treated as equal to the agreed upon valuation of such property, and all gain, loss, depreciation and amortization on such property shall be determined based on such agreed upon value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g).

        “Person” shall mean any individual, corporation, association, partnership (general or limited), joint venture, trust, joint-stock company, estate, limited liability company, unincorporated organization or other legal entity or organization.

        “Subsidiary” or “Subsidiaries” or any Person means any corporation, partnership, joint venture or other legal entity of which such Person (either alone or through or together with any other subsidiary), owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests the holder of which is generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, joint venture or other legal entity.

        “Treasury Regulations” shall mean the Regulations of the Treasury Department of the United States issued pursuant to the Code.

ARTICLE XIV MISCELLANEOUS PROVISIONS

        Section 14.1. Amendments Generally.

        The terms and provisions of this Agreement shall not be modified or amended at any time except by the unanimous consent of the Members; provided, that, without the consent of any of the Members, the Board of Managers may amend Schedule 1 attached hereto to reflect changes validly made, pursuant to the terms of this Agreement.

        Section 14.2. Entire Agreement.

        This Agreement (including all attachments hereto) constitutes the entire agreement between the Members with respect to the Company and supersedes all other prior agreements and understandings, both written and oral, between the Members or their respective Affiliates with respect to the Company.

        Section 14.3. Notices.

        All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or by registered or certified mail (postage prepaid, return receipt requested), to the other Member as follows:

      If to Cinergy Solutions:

      Cinergy Solutions, Inc.
      139 East Fourth Street
      Cincinnati, Ohio 45202
      Attention: Donald B. Ingle, Jr.
      Facsimile: 513-287-3044

        with a copy to:

      Cinergy Corp.
      139 East Fourth Street
      Cincinnati, Ohio 45202
      Attention: General Counsel
      Facsimile: 513-287-3044

      and

      if to Trigen:

      Trigen Solutions, Inc.
      One Water Street
      White Plains, New York 10601
      Attention: General Counsel
      Facsimile: 914-948-9157

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

        Section 14.4. Table of Contents and Headings.

        The table of contents and the headings and subheadings of the sections of this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision thereof.

        Section 14.5. Assignment.

        This Agreement shall not be assigned by either Member or by operation of law or otherwise.

        Section 14.6. Severability.

        The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity and enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid and unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

        Section 14.7. Extension; Waiver.

        Each Member may (i) extend the time for the performance of any of the obligations or other acts of the other Members, (ii) waive any inaccuracies in the representations and warranties of the other Member contained herein, or (iii) waive compliance by the other Member with any of the agreements or conditions contained herein. Any agreement on the part of any Member to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Member. The failure of any Member hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.

        Section 14.8. Governing Law.

        This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the principles of conflicts of law thereof.

        Section 14.9. Names and Logos.

        To further the objectives of this Agreement and the Company, the Members acknowledge and agree that the Company shall have the non-exclusive right to use the names and logos of the Members to the extent such use is reasonable and in connection with the implementation of this Agreement.

        Section 14.10. Further Actions.

        Each Member shall execute and deliver such other certificates, agreements and documents, and take such other actions, as may reasonably be requested by the Company in connection with the formation of the Company and the achievement of its purposes, including, without limitation, (a) any documents that the Company deems necessary or appropriate to form, qualify or continue the Company as a limited liability company in all jurisdictions in which the Company conducts or plans to conduct business and (b) all such agreements, certificates, tax statements and other documents as may be required to be filed in respect of the Company.

        Section 14.11. Counterparts.

        This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute a single agreement.

        IN WITNESS WHEREOF, the undersigned have duly executed this Limited Liability Company Agreement of Trigen-Cinergy Solutions of San Diego LLC as of the 18th day of November, 1999.

  CINERGY SOLUTIONS, INC.


By: __________________________
         Name: Donald B. Ingle, Jr.
         Title: President


TRIGEN SOLUTIONS, INC.


By: __________________________
         Name:
         Title:
SCHEDULE 1
Members'
Names
 Capital
Contribution
 Interest
Percentage
Cinergy Solutions, Inc.     $ 49 .00  49 .0%
Trigen Solutions, Inc.   $ 51 .00  51 .0%

SCHEDULE 2

MATTERS REQUIRING ACTION OF THE BOARD OF MANAGERS OF THE COMPANY

(a) Demand for capital contributions from the Members.

(b) Borrowing money or guaranteeing the obligations of any Person not in the ordinary course of business, or mortgaging, pledging or granting a security interest in assets not in the ordinary course of business, in any one transaction or a series of related transactions.

(c) Entering into a transaction or agreement with an Affiliate of a Member other than as specifically set forth in this Agreement.

(d) Unbudgeted acquisitions not in the ordinary course of business.

(e) Disposition of assets not in the ordinary course of business.

(f) Entering into any contract not in the ordinary course of business which requires unbudgeted expenditures, commitments or liabilities.

(g) Amendments to governing documents of the Company.

(h) Issuance of Interests to third parties.

(i) Engaging in a business activity other than the Monsanto Project.

(j) Commencing the process of dissolution, liquidation, insolvency or voluntary bankruptcy.

(k) Approving any merger or consolidation of the Company.

(l) Forming any subsidiary.

(m) Execution of any material credit agreement or any amendment or modification thereof or implementation of any material change in capital structure.

(n) Commencing or settling any material litigation.

(o) Engaging or terminating principal auditors or attorneys.

(p) Any amendment or modification of terms or provisions of the Service Arrangements.

(q) Such other matters as the Parties or their designated Managers shall by mutual consent determine as being appropriate.

EX-99 30 b-350.htm LLC AGREE OF TRIGEN-CINERGY SOLUTIONS OF SE Trigen-Cinergy Solutions of the Southeast LLC

TRIGEN-CINERGY SOLUTIONS OF THE SOUTHEAST LLC

LIMITED LIABILITY COMPANY AGREEMENT

DATED AS OF NOVEMBER 19, 1999

TABLE OF CONTENTS
ARTICLE I ORGANIZATION

   Section 1.1. Name
   Section 1.2. Term
   Section 1.3. Registered Agent and Office
   Section 1.4. Principal Places of Business
   Section 1.5. Qualifications in Other Jurisdictions
   Section 1.6. Fiscal Year

ARTICLE II PURPOSE AND POWERS

   Section 2.1. Purpose of the Company
   Section 2.2. Powers of the Company

ARTICLE III MEMBERS

   Section 3.1. Members
   Section 3.2. Powers of Members
   Section 3.3. Meetings of Members
   Section 3.4. Member Representations

ARTICLE IV MANAGEMENT

   Section 4.1. The Board of Managers
   Section 4.2. Notice
   Section 4.3. Meetings; Electronic Communications
   Section 4.4. Quorum and Voting
   Section 4.5. Action Without a Meeting
   Section 4.6. Delegation of Powers
   Section 4.7. Executive Committee
   Section 4.8. Chairperson and Vice Chairperson
   Section 4.9. Officers
   Section 4.10. Matters for Board Determination

ARTICLE V DEADLOCK RESOLUTION

   Section 5.1. Deadlocks
   Section 5.2. Resolution Mechanism

ARTICLE VI SERVICE ARRANGEMENTS, CAPITAL CONTRIBUTIONS, MATERIAL APPROVALS, ETC

   Section 6.1. Initial Operations; Service Arrangements
   Section 6.2. Budget; Capitalization; Material Approvals
   Section 6.3. Status of Capital Contributions
   Section 6.4. Capital Accounts
   Section 6.5. Advances
   Section 6.6. Negative Capital Accounts

ARTICLE VII ALLOCATIONS, DISTRIBUTIONS AND WITHHOLDING

   Section 7.1. Allocations of Net Profit and Net Loss
   Section 7.2. Distributions
   Section 7.3. Limitations on Distribution
   Section 7.4. Withholding Taxes

ARTICLE VII TAX MATTERS

   Section 8.1. Tax Matters
   Section 8.2. Taxation as Partnership

ARTICLE IX BANKING; ACCOUNTING; BOOKS AND RECORDS

   Section 9.1. Banking
   Section 9.2. Maintenance of Books and Records; Accounts and Accounting Method
   Section 9.3. Financial Statements
   Section 9.4. Additional Information
   Section 9.5. Minutes of Meetings

ARTICLE X LIABILITY, EXCULPATION AND INDEMNIFICATION

   Section 10.1. Liability
   Section 10.2. Exculpation
   Section 10.3. Indemnification

ARTICLE XI TRANSFER OF INTERESTS

   Section 11.1. Personal Property; Consent for Transfers
   Section 11.2. Issue and Replacement of Certificates
   Section 11.3 Interest Certificate Legend

ARTICLE XII DISSOLUTION AND TERMINATION OF THE COMPANY

   Section 12.1. Dissolution
   Section 12.2. Liquidation
   Section 12.3. Time for Liquidation, etc
   Section 12.4. Claims of the Members

ARTICLE XIII CERTAIN DEFINITIONS

   Section 13.1. Definitions

ARTICLE XIV MISCELLANEOUS PROVISIONS

   Section 14.1. Amendments Generally
   Section 14.2. Entire Agreement
   Section 14.3. Notices
   Section 14.4. Table of Contents and Headings
   Section 14.5. Assignment
   Section 14.6. Severability
   Section 14.7. Extension; Waiver
   Section 14.8. Governing Law
   Section 14.9. Names and Logos
   Section 14.10. Further Actions
   Section 14.11. Counterparts
LIST OF ATTACHMENTS
Schedule 1 - Interest Percentages, Etc.

Schedule 2 - Matters Requiring Action of the Board of Managers of the Company
INDEX OF DEFINED TERMS
TERM
 SECTION NUMBER
1935 Act
Acceptance Date
Affiliate
Agreement
Applicable Interest
Board of Managers
Business Day
Capital Account
Capital Contribution
Certificate
Cinergy Managers
Cinergy Service Agreement
Cinergy Solutions
Claims
Code
Company
Covered Person
Damages
Deadlock
Delaware Act
Disabling Conduct
Executive Committee
First Offer
First Offer Price
Fiscal Year
                          
Interest
Interest Percentage
HSR Act
Joint Venture Agreement
Lien
Liquidating Trustee
Manager
Material Approvals
Member
Members
Net Loss
Net Profit
Offeree
Offered Interest
                          
Millennium Project
                          
Person
Proceeding
Proponent
Proposal
Regulatory Approval
SEC
Second Member
Selling Member
Settlement Date
Service Arrangements
Subsidiary or Subsidiaries
Tax Matters Partner
Transfer
Treasury Regulations
Trigen
Trigen Managers
Trigen Service Agreement 		       5.2(b)(i)
       5.2(b)(i)
            13.1
        Preamble
       5.2(b)(i)
             3.2
            13.1
            13.1
            13.1
             1.2
          4.1(c)
             6.1
        Preamble
         10.3(a)
            13.1
        Preamble
            13.1
         10.3(a)
             5.1
        Recitals
            13.1
             4.7
         11.1(b)
         11.1(b)
             1.6
                
            13.1
            13.1
          6.2(c)
        Recitals
       5.2(b)(i)
            12.1
            13.1
          6.2(c)
  Recitals, 13.1
        Recitals
            13.1
            13.1
       5.2(b)(i)
         11.1(b)
                
        Recitals
                
            13.1
         10.3(a)
          5.1(i)
          5.1(i)
       5.2(b)(i)
          6.2(c)
         11.1(b)
         11.1(b)
       5.2(b)(i)
             6.1
            13.1
             8.1
         11.1(a)
            13.1
        Preamble
          4.1(c)
             6.1

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRIGEN-CINERGY SOLUTIONS OF THE SOUTHEAST LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Trigen-Cinergy Solutions of the Southeast LLC, a Delaware limited liability company (the “Company”) dated as of November 19, 1999, between Cinergy Solutions, Inc., a Delaware corporation (“Cinergy Solutions”), and Trigen Solutions, Inc., a Delaware corporation (“Trigen”), contain certain capitalized terms used herein without definition having the meanings specified in Section 13.1;

W I T N E S S E T H:

        WHEREAS, Cinergy Solutions and Trigen are parties to that certain Joint Venture and Project Development Agreement dated as of December 9, 1996 (the “Joint Venture Agreement”) and, pursuant thereto, have formed and are the sole members of Trigen-Cinergy Solutions of the Southeast LLC, a Delaware limited liability company (“Trigen-Cinergy Solutions”);

        WHEREAS, pursuant to the Joint Venture Agreement, Trigen-Cinergy Solutions has been engaged in discussions with Millennium Specialty Chemicals Inc. (“Millennium”) concerning the Company installing, operating and maintaining energy facilities to be located at Millennium’s plant in Jacksonville, Florida and used to provide energy services to such plant (the “Millennium Project”);

        WHEREAS, pursuant to those discussions, and to assist in implementing and performing the Millennium Project, Cinergy Solutions and Trigen have formed the Company under the Delaware Limited Liability Company Act (the “Delaware Act”);

        WHEREAS, pursuant to Article III of the Joint Venture Agreement and as contemplated by the Delaware Act, Cinergy Solutions and Trigen, as the sole initial members of the Company (each in such capacity, a “Member”), are entering into this Agreement to govern 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 Members hereby agree as follows:

ARTICLE I ORGANIZATION

        Section 1.1. Name.

        The name of the Company is Trigen-Cinergy Solutions of the Southeast LLC. The business of the Company may be conducted upon compliance with all applicable laws under any other name designated by the Company.

        Section 1.2. Term.

        The existence of the Company commenced on November 19, 1999, the date of the filing of the Certificate of Formation (the “Certificate”) with the office of the Secretary of State of the State of Delaware, and shall continue until the Company is dissolved in accordance with the provisions of this Agreement.

        Section 1.3. Registered Agent and Office.

        The registered office of the Company in Delaware shall be c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware. At any time, the Company may designate another registered agent and/or registered office. The registered agent for service of process on the Company in the State of Delaware shall be c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware.

        Section 1.4. Principal Places of Business.

        The principal places of business of the Company shall be at One Water Street, White Plains, NY 10601 and 139 E. Fourth Street, Cincinnati, OH 45202. Upon agreement of its Members, the Company may change the location of the Company’s principal place of business.

        Section 1.5. Qualifications in Other Jurisdictions.

        The Company shall be qualified or registered to do business in Florida and in such other jurisdictions, if any, in which the Company transacts business and in which such qualification or registration is required by law or deemed advisable by the Company. The Secretary of the Company, as an authorized person within the meaning of the Delaware Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any such jurisdiction.

        Section 1.6. Fiscal Year.

        The fiscal year of the Company (the “Fiscal Year”) shall end on the 31st day of December in each year. The Company shall have the same fiscal year for income tax and for financial and accounting purposes.

ARTICLE II PURPOSE AND POWERS

        Section 2.1. Purpose of the Company.

        The purpose of the Company is to participate in the Millennium Project in accordance with the terms of the Operation & Maintenance Agreement with Millennium and related agreements, and any other purpose decided upon by the Board of Managers of the Company by unanimous vote.

        Section 2.2. Powers of the Company.

        Subject to the terms and conditions of this Agreement, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in Section 2.1.

ARTICLE III MEMBERS

        Section 3.1. Members.

        The name, initial Capital Contributions and initial Interest Percentage of each Member are listed on Schedule 1 attached hereto. The Company shall be required to update Schedule 1 from time to time as necessary to reflect accurately the information therein. Any reference in this Agreement to Schedule 1 shall be deemed to be a reference to Schedule 1 as amended and in effect from time to time.

        Section 3.2. Powers of Members.

        Except as otherwise provided herein, the Members shall have no power to transact any business in the Company’s name nor have the power to sign documents for or otherwise bind the Company. Additional Members may only be added to the Company upon the unanimous consent of existing Members and otherwise in compliance with Article XI hereof. Subject to the provisions of the Delaware Act, the Certificate and this Agreement, the Members hereby delegate any or all such powers to the Board of Managers of the Company (the “Board of Managers”) to carry out the business affairs of the Company on the Members’ behalf. Any power not reserved to the Members or delegated to the officers shall remain with the Board of Managers. The Board of Managers shall be appointed in accordance with the provisions of Article IV.

        Section 3.3. Meetings of Members.

    (a)        Annual Meeting. An annual meeting of the Members shall be held once a year on such date as the Board of Managers shall designate.

    (b)        Special Meetings. Special meetings of the Members, for any purpose or purposes, may be called by the Board of Managers or at the request of any Member. Business transacted at any special meeting of Members shall be limited to the purposes stated in the notice, unless otherwise agreed by the Members attending the meeting.

    (c)        Place of Meeting. All meetings of Members shall be held at such place within or without the State of Delaware as the Board of Managers shall designate.

    (d)        Notice of Meetings. Notice of all meetings of Members, stating the time, place and purpose of the meeting, shall be given at least two (2) days and not more than sixty (60) days before the meeting. Any adjourned meeting may be held as adjourned without further notice, provided, that any adjourned session or sessions are held within sixty (60) days after the date set for the original meeting. No notice need be given to any Member if a written waiver of notice, executed before or after the meeting by such Member or his representative 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. A waiver of notice need not specify the purposes of the meeting.

    (e)        Quorum and Voting. The presence of at least one duly authorized representative of each Member shall constitute a quorum for purposes of transacting business at any meeting of Members. Except as otherwise provided by this Agreement, any question brought before any meeting shall be decided by the Members who, at the time in question and in the aggregate, hold, or hold proxies with respect to, one hundred percent (100%) of Interest Percentages. Interests of Members may be voted in person or by proxy.

    (f)        Electronic Communications. Members may participate in any meeting of Members by means of conference telephone or similar communications equipment, whereby all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting.

    (g)        Actions of Members Without a Meeting. Any action required to be taken at any meeting of Members or otherwise, or any action which may be taken at any meeting of Members or otherwise, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by Members having one hundred percent (100%) of the Interest Percentages. 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.

        Section 3.4. Member Representations.

    (a)        Each Member represents and warrants to the other Member and the Company that (i) its Interest has been acquired for its own account, for investment, and not with an intent or a present view to participating, directly or indirectly, in or for the resale in connection with any distribution (as interpreted under any applicable law) thereof, nor with any present intention of dividing its participation, distribution, reselling, assigning or otherwise disposing of all or part of such Interest, and (ii) it will not make or offer to make a transfer of its Interest in violation of the Securities Act of 1933, as amended, or any other applicable Federal or state securities laws.

    (b)        Each Member represents and warrants to the other Members and the Company that this Agreement has been duly authorized, executed and delivered on behalf of such Member and is the legal, valid and binding obligation of such Member, enforceable against it in accordance with its terms.

ARTICLE IV MANAGEMENT

        Section 4.1. The Board of Managers.

    (a)        General. Except as specifically set forth herein, the business and affairs of the Company shall be managed by or under the direction of the Board of Managers. Other than rights and powers expressly reserved to Members by this Agreement of the Delaware Act, the Board of Managers 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.

    (b)        Duties. The Board of Managers shall be obligated to devote only as much of their time to the Company’s business as shall be reasonably required in light of the Company’s business and objectives. A Manager shall perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.

    (c)        Board Composition; Removal and Vacancies. Cinergy Solutions shall be entitled to designate one-half of the Managers to the Board of Managers and Trigen shall be entitled to designate the remaining half of the Managers to the Board of Managers. Those Managers designated to the Board of Managers by Cinergy Solutions are referred to herein as the “Cinergy Managers” and those Managers designated to the Board of Managers by Trigen are referred to herein as the “Trigen Managers”. Each Manager shall serve until his or her removal, resignation, death or retirement. Each Member shall vote all of its Interest and shall take all other action necessary or desirable within its control (including, without limitation, attendance at meetings, in person or by proxy, and execution of written consents in lieu of meetings), so that the designees of the other Member are duly elected to the Board of Managers. Upon the removal, resignation, death or retirement of a Manager, or vacation of office by any Manager for any reason, his or her successor shall be nominated and elected by the same Member as originally proposed by the former Manager. Any successor so elected shall retain his or her office during such time only as the former Manager was entitled to retain the same. Trigen shall have the exclusive right to remove any Trigen Manager at any time and for any reason whatsoever and to fill the vacancy of the Trigen Managers, and Cinergy Solutions shall have the exclusive right to remove any Cinergy Manager at any time and for any reason whatsoever and to fill the vacancy of the Cinergy Managers.

    (d)        Restrictions on the Board. The Board of Managers shall not: (i) do any act in contravention of any applicable law or regulation, or provision of this Agreement; (ii) possess Company property for other than a Company purpose; or (iii) admit any new Members without the unanimous consent of existing Members or without compliance with Article XI hereof.

        Section 4.2. Notice.

        Meetings of the Board of Managers may be held at such places and at such times as the Board of Managers may from time to time determine and, if so determined by a quorum of the Board of Managers, no advance notice of meeting need be given. Any three (3) Managers may at any time call a meeting of the Board of Managers. Written notice of the time, place, and purpose of such meeting shall be served by registered or certified, prepaid first class, mail, or by fax or cable, upon each member of the Board of Managers and shall be given at least twenty-four (24) hours prior to the time of the meeting. No notice need be given to any Manager if a written waiver of notice executed before or after the meeting by such Manager thereunto duly authorized, is filed with the records of the meeting, or to any Manager who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him. A waiver of notice need not specify the purposes of the meeting.

        Section 4.3. Meetings; Electronic Communications.

        Regular meetings of the Board of Managers shall be held on such dates as the Board of Managers shall agree but not less frequently than once during each fiscal year of the Company. Members of the Board of Managers, or of any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other. Such participation in a meeting by such means shall constitute presence in person at such meeting.

        Section 4.4. Quorum and Voting.

        A majority of the Managers shall constitute a quorum for the transaction of business at a meeting of the Board of Managers, provided, that at least one Cinergy Manager and one Trigen Manager are present. Action by the Board of Managers must be authorize by the unanimous vote of the Managers present at the meeting.

        Section 4.5. Action Without a Meeting.

        Any action which is required to be, or which may be, taken at any annual, regular or special meeting of the Board of Managers or otherwise, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all of the Managers in office. 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.

        Section 4.6. Delegation of Powers.

        Subject to any limitation set forth in the Delaware Act, the Board of Managers may delegate any of its powers to committees or to officers consisting of persons who may or may not be Managers. 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 Board of Managers.

        Section 4.7. Executive Committee.

        The Board of Managers shall have an Executive Committee consisting of two (2) Managers, one Cinergy Manager and one Trigen Manager (the “Executive Committee”). Actions of the Executive Committee shall require unanimous consent of both Managers. Meetings of the Executive Committee may be called by any member thereof upon twenty-four (24) hours prior notice. The Executive Committee shall be empowered to act on such matters as may be from time to time delegated to it by the Board of Managers and in accordance with the terms and conditions of any such delegation.

        Section 4.8. Chairperson and Vice Chairperson.

        The Board of Managers shall designate one of its members as the Chairperson and another as the Vice Chairperson. The Cinergy Managers shall have the right to designate the Chairperson to serve for a three-year term commencing at the formation of the Company. The next Chairperson shall be designated by the Trigen Managers and shall serve for a term of three (3) years, with the position thereafter alternating for three-year terms between the designees of each of the Cinergy Managers and the Trigen Managers. A Vice Chairperson shall be designated by the Managers whose designee is not serving as the Chairperson. Neither the Chairperson nor the Vice Chairperson shall have any additional or special voting rights and either may be replaced at any time by the Board of Managers from his or her respective Company. The Chairperson shall preside over all meetings of the Board of Managers. In the absence of the Chairperson, the Vice Chairperson shall preside over a meeting of the Board of Managers. The Chairperson and Vice Chairperson shall have such other authority and perform such other duties as the Board of Managers may determine in its sole discretion.

        Section 4.9. Officers.

    (a)        General. The Trigen Managers shall have the right to annually appoint the President/Chief Executive Officer of the Company, subject to the prior consent of Cinergy Solutions (which consent shall not be unreasonably withheld) for a three year period commencing with the formation of the Company. The Cinergy Managers shall have the right to annually appoint each of the Executive Vice President/Chief Operating Officer and the Secretary of the Company, subject to the prior consent of Trigen (which consent shall not be unreasonably withheld) for a three year period commencing with the formation of the Company. Upon completion of the initial three-year period, the Board of Managers shall determine whether to continue such officer-appointment procedure or adopt another procedure.

    (b)        Election, Term of Office, Qualifications, and Compensation. Except as provided in Section 4.9(a), the officers shall be appointed by the Board of Managers. Except as provided in paragraphs (c) or (d) of this Section 4.9, each Officer shall hold office until his or her successor shall have been chosen and qualified. Any two (2) offices, except those of the Chief Executive Officer, the Chief Operating Officer 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 (2) or more officers.

    (c)        Resignations and Removals. Any Officer may resign his or her office at any time by tendering his or her written resignation to the Chief Executive Officer or to the Secretary. Unless otherwise specified therein, such resignation shall take effect upon delivery. Except as set forth in Section 4.9(a), any Officer may be removed from office with or without cause by the Board of Managers.

    (d)        Vacancies and Newly Created Offices. Except as set forth in Section 4.9(a), if any vacancy shall occur in any office by reason of death, resignation, removal, disqualification or any other cause, or if any new office shall be created, such vacancies or newly created offices may be filled by the Board of Managers.

    (e)        Conduct of Business. Subject to the provisions of the Certificate and this Agreement (including without limitation Section 6.1), the day-to-day operations of the Company shall be managed by its officers. 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 the Certificate and this Agreement, and with directions which may be given from time to time by the Board of Managers.

    (f)        Chief Executive Officer. Subject to the further directive of the Board of Managers, the Chief Executive Officer shall have general and active management of the business of the Company subject to the supervision of the Board of Managers, shall ensure that all orders and resolutions of the Board of Managers are implemented and shall have such additional powers and authority as are specified by the provisions of this Agreement.

    (g)        Chief Operating Officer. The Chief Operating Officer shall have such authority and perform such duties as the Board of Managers may determine in its sole discretion.

    (h)        The Secretary. The Secretary shall attend all meetings of the Members and the Board of Managers and record all the proceedings and 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 Members or the Board of Managers, and shall perform such other duties as may be prescribed by the Board of Managers or the Chief Executive Officer, under whose supervision the Secretary shall be. 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 Board of Managers may from time to time prescribe.

    (i)        Other Officers. The Board of Managers from time to time may appoint such other officers or agents as it deems advisable, each of whom shall have such title, hold office for such period, have such authority and perform such duties as the Board of Managers may determine in its sole discretion. The Board of Managers from time to time may delegate to one or more offices or agents the power to appoint any such officers or agents and prescribe their respective rights, terms of office, authorities and duties.

    (j)        Officers as Agents; Authority. The officers, to the extent of their powers set forth in this Agreement, are agents 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 4.10. Matters for Board Determination.

        Notwithstanding anything to the contrary contained in this Agreement, the Company shall not take any action with respect to matters identified on Schedule 2 hereto without first obtaining the approval of the Board of Managers.

ARTICLE V DEADLOCK RESOLUTION

        Section 5.1. Deadlocks.

        A “Deadlock” shall be a fundamental breakdown in the relationship between the parties as evidenced by the sequence of events described below.

    (a)        A Member or a Manager (the “Proponent”), advances a proposal (the “Proposal”) for consideration at a meeting of the Board of Managers or Members of the Company; and

    (b)        Prior to the meeting at which the Proposal is advanced, the Proponent notifies the Board of Managers and/or Members that it considers the Proposal to be essential to the continuance of the Proponent’s investment in the Company, specifying the reasons therefore; and

    (c)        The Proposal is not approved at that meeting (as a result of either a rejection thereof or a failure to consider it) or the meeting is canceled by reason of a lack of a quorum resulting from the non-attendance of the non-Proponent Member’s designees, at which time a Deadlock will be deemed to have occurred.

        Section 5.2. Resolution Mechanism.

    (a)        Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of each of the Member’s U.S. parent companies (i.e., Trigen Energy Corporation, a Delaware corporation, in the case of Trigen, and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement.

    (b)        (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“Purchase Offer”) all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “Applicable Interest”) owned by the other Member (“Offeree”), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash, and other terms and conditions of the Purchase Offer), (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “Acceptance Date”) and (z) a proposed settlement date (the “Settlement Date”) therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either Member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “Regulatory Approval”) including, without limitation, under the Public Utility Holding Company Act of 1935 (the “1935 Act”), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “Lien”), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension.

    (ii)        On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by, written notice to the Proponent, elect to purchase all (but not less than all) of the Proponent’s Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer.

    (iii)        In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s Applicable Interest or the Offeree’s Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder.

      ARTICLE VI SERVICE ARRANGEMENTS, CAPITAL CONTRIBUTIONS, MATERIAL APPROVALS, ETC.

        Section 6.1. Initial Operations; Service Arrangements.

The Members intend to operate the Company initially with minimal staff and committed overhead and for the Company to purchase operational and other support services, technical assistance and intellectual property rights, where available, from the Members and/or their respective Affiliates at cost in accordance with the terms of (i) in the case of Cinergy Solutions and its Affiliates, (a) that certain Nonutility Service Agreement, amended and restated, effective as of February 18, 1997, nonutility Affiliates thereof, including Cinergy Solutions and the Company (the “Service Agreement”), a complete copy of which Cinergy Solutions has provided to Trigen, and (ii) in the case of Trigen and its Affiliates that certain Service Agreement between the Company and Trigen Energy Services, Inc. (the “Trigen Service Agreement” and collectively with the Cinergy Service Agreement, the “Service Arrangements”), a complete copy of which Trigen has provided to Cinergy Solutions. Each Member and any Affiliate thereof which provides services to the Company, pursuant to the Service Arrangements, shall permit the Company reasonable access to its accounts and records, including the basis and computation of cost allocations.

        Section 6.2. Budget; Capitalization; Material Approvals.

    (a)        A complete copy of the Company’s first and, thereafter, every annual budget shall be provided to each Member.

    (b)        Cinergy Solutions shall commit to contribute forty-nine percent (49%) of the amount of the capital funding portion of the Company’s annual budget and Trigen shall commit to contribute fifty-one percent (51%) of the Company’s annual budget, to be paid to the Company at such times as the Members shall mutually agree. All capital contributions, when made, shall be in cash, unless the Members shall otherwise mutually agree. The Members shall be liable only to make their Capital Contributions pursuant to this Section 6.2 and no Members shall be required to lend any funds to the Company or to make any additional Capital Contributions to the Company.

    (c)        The capitalization of the Company shall be subject to the receipt by the Members of all requisite Regulatory Approvals and all other consents, licenses, approvals or other authorizations (together with such Regulatory Approvals, “Material Approvals”) necessary to permit the establishment and operation of the Company as contemplated herein, including, to the extent applicable, (i) expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), if applicable, (ii) the approval of the Securities and Exchange Commission (“SEC”) under the 1935 Act, if applicable, and (iii) any Material Approval of any state, municipality, utility commission, regulatory body or governmental or other agency or authority thereof (each, a “Material Approval”).

    (d)        With reference to paragraph (c) above, Cinergy Solutions represents and warrants that no approval or other action of the SEC under the 1935 Act is required to be obtained by Cinergy Solutions, the Company or any other direct or indirect subsidiary of Cinergy Corp. in connection with the formation of the Company and the transactions contemplated by this Agreement and the Millennium Project Agreements.

        Section 6.3. Status of Capital Contributions.

    (a)        Except as otherwise expressly provided in Article VII and XI, no Member shall have the right to withdraw capital from the Company or to receive any distribution or return of such Member’s Capital Contributions.

    (b)        No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise in its capacity as a Member, except as otherwise specifically provided in this Agreement.

    (c)        No Member shall have priority over any other Member either as to the return of the amount of its Capital Contribution to the Company or as to any allocation of Net Profit and Net Loss.

        Section 6.4. Capital Accounts.

    (a)        There shall be established on the books and records of the Company a Capital Account for each Member. The initial Capital Account balance of each Member shall be the respective amounts of such Member’s initial Capital Contribution.

    (b)        Each Member’s Capital Account shall be adjusted by (a) increasing such balance by such member’s (I) allocable shares of Net Profit (allocated in accordance with Article VII) and (ii) Capital Contributions, if any, and (b) decreasing such balance by (i) the amount of cash or the fair market value of distributions to such Member pursuant to Article VII and (ii) such Member’s allocable share of Net Loss (allocated in accordance with Article VII). The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulation.

    (c)        Any Capital Contributions made in a form other than cash shall be valued at the fair market value of such property as determined by the mutual consent of the Members.

        Section 6.5. Advances.

        If any Member, upon reasonable advance notice to the other Member and only to the extent reasonably necessary to meet short-term working capital requirements, shall advance any funds to the Company in excess of its Capital Contributions, the amount of such advance shall neither increase its Capital Account nor entitle it to any increase in its share of the distributions of the Company. The amount of any such advance shall be a debt obligation of the Company to such Member and shall be repaid to it by the Company at a reasonable interest rate not to exceed the market rate, as soon as practicable. Any such advance shall be payable and collectible only out of Company assets, and the other Members shall not be personally obligated to repay any part thereof. No Person who makes any loan to the Company shall have or acquire, as a result of making such loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a creditor.

        Section 6.6. Negative Capital Accounts.

        No Member shall be required to make up a negative balance in its Capital Account.

ARTICLE VII ALLOCATIONS, DISTRIBUTIONS AND WITHHOLDING

        Section 7.1. Allocations of Net Profit and Net Loss.

    (a)        The Net Profit and Net Loss of the Company, including each item of income, gain, loss and deduction, and credit shall be allocated with respect to each Fiscal Year (or portion thereof) among the Members in accordance with their respective Interest Percentages.

    (b)        Allocations for tax purposes shall be made in the same manner as the allocations set forth under Section 7.1(a); however, the following adjustments shall be made and applied, to the extent necessary, in a manner consistent with Treasury Regulation Section 1.704-1(b):

    (i)        The allocations of income, gain, loss and deduction pursuant to Section 7.1(a) shall be adjusted to comply with the qualified income offset requirements of Treasury Regulation Section 1.704-1(b) and the nonrecourse deduction or minimum gain charge-back requirements of Treasury Regulation Section 1.704-2.

    (ii)        Any special allocations pursuant to the preceding clause (i) required in order to comply with the Treasury Regulations shall be taken into account, to the extent permitted by the Treasury Regulations, in computing subsequent allocations pursuant to this Section 7.1(b) so that the net amount of any items so allocated and all other items allocated to each Member shall, to the extent possible, be equal to the amount that would have been allocated to each Member had there been no such special allocation.

    (c)        If there is a charge in any Member’s share of the distributions or other items of the Company during any Fiscal Year as a result of the Transfer (as defined herein) of an Interest, allocations among the Members shall be made in accordance with their Interests in the Company from time to time during such Fiscal Year in accordance with Code Section 706, using the closing-of-the-books method; however, depreciation shall be deemed to accrue ratably on a daily basis over the entire year during which the corresponding asset is owned by the Company.

        Section 7.2. Distributions.

        Distributions may be made to the Members in accordance with their Interest Percentages at such times as determined in the sole discretion of the Board of Managers, or at such other times as the Members by unanimous consent shall determine.

        Section 7.3. Limitations on Distribution.

        Notwithstanding any provisions of this Article VII to the contrary, no distribution shall be made (i) if such distribution would violate any contract or agreement to which the Company is then a party or any law then applicable to the Company, including the provisions of Section 18-607 of the Delaware Act, or (ii) to the extent that the Board of Managers determines that any amount otherwise distributable should be retained by the Company to pay, or to establish a reserve for the payment of, any liability or obligation of the Company, including obligations to pay or withhold Federal, state or local income, franchise or other taxes or levies, whether liquidated, fixed, or contingent.

        Section 7.4. Withholding Taxes.

        The Company is authorized to withhold from distributions to a Member, or with respect to allocations to a Member, and to pay over to a Federal, state or local government, any amounts required to be withheld pursuant to the Code or any provisions of any other Federal, state or local law. Any amounts so withheld shall be treated as having been distributed to such Member for all purposes of this Agreement, and shall be offset against the current or next amounts otherwise distributable to such Member.

ARTICLE VII TAX MATTERS

        Section 8.1. Tax Matters.

        Cinergy Solutions is hereby designated as “Tax Matters Partner” of the Company under Section 6231 of the Code and the Treasury Regulations thereunder. Notwithstanding the foregoing designation, the Tax Matters Partner shall not take any action in its capacity as Tax Matters Partner in connection with any tax audit, contest or other similar proceeding involving the Company without the consent or approval of the other Member. The Tax Matters Partner shall keep the other Party fully apprised of its activities in its capacity as the Tax Matters Partner.

        Section 8.2. Taxation as Partnership.

        The Members intend that the Company shall be treated as a partnership for United States Federal income tax purposes and the Members agree not to take any action inconsistent with the Company’s classification as a partnership for United States Federal income tax purposes.

ARTICLE IX BANKING; ACCOUNTING; BOOKS AND RECORDS

        Section 9.1. Banking.

        All funds of the Company may be deposited in such bank, brokerage or money market accounts as shall be established by the Board of Managers. Withdrawals from and checks drawn on any such account shall be made upon such signature or signatures as the Board of Managers may designate.

        Section 9.2. Maintenance of Books and Records; Accounts and Accounting Method.

        Trigen shall keep or cause to be kept at the address of the Company (or at such other place as the Company shall advise the Members in writing) full and accurate accounts of the transactions of the Company, in proper books and records of account, which shall set forth all information required by the Delaware Act. Such books and records shall be maintained on the basis of United States generally accepted accounting principles. Such books and records shall be available, upon two (2) Business Days’ notice to the Board of Managers, for inspection and copying at reasonable times during business hours by a Member or its duly authorized agents or representatives for any purpose reasonably related to such Member’s interest as a member in the Company.

        Section 9.3. Financial Statements.

        As soon as available and in any event within 45 days after the end of each fiscal quarter, the Company shall have prepared, and delivered to each Member, a quarterly set of primary financial statements for the Company. This set of primary financial statements shall include: (i) a balance sheet reflecting the assets, liabilities and capital accounts of the Company, comparative to the prior year and the prior year-end; and (ii) quarterly and year-to-date statements of operations, comparative to the prior year. The Board of Managers shall cause the annual financial statements of the Company to be examined by the Company’s independent auditor and submitted for adoption at the annual meeting of Members.

        Section 9.4. Additional Information.

        Upon the request of a Member, the Company shall prepare additional periodic or special reports of the Company’s accounts and/or business activity considered necessary by such Member, including but not limited to, detailed reports of sales by location, detailed expense reports, reports of capital expenditures, details of assets and liabilities, and non-financial and ratio data.

        Section 9.5. Minutes of Meetings.

        The Managers shall cause minutes of all proceedings and copies of resolutions adopted at meetings of Members or Managers to be duly entered in the minute books which shall be kept at the executive offices of the Company. Any such minutes must be signed by either the Chairperson or Vice Chairperson, and one other person (such as the Secretary) who was present at the meeting at which such resolutions were passed.

ARTICLE X LIABILITY, EXCULPATION AND INDEMNIFICATION

        Section 10.1. Liability.

        Except as otherwise provided by the Delaware 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 no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person.

        Section 10.2. Exculpation.

    (a)        Generally. No Covered Person shall be liable to the Company or any Member for any act or omission taken or suffered by such Covered Person in good faith 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 is not in material violation of this Agreement and does not constitute Disabling Conduct by the Covered Person. No Member shall be liable to the Company or any Member for any action taken by any other Member.

    (b)        Reliance Generally. A Covered Person shall incur no liability in acting upon any signature or writing reasonably believed by it to be genuine, and may rely on a certificate signed by an executive officer of any Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge and may rely on an opinion of counsel selected by such Covered Person with respect to legal matters, except to the extent that such Covered Person engaged in Disabling Conduct. Each Covered Person may act directly or through its agents or attorneys. Each Covered Person may consult with counsel, appraisers, engineers, accountants and other skilled Persons of its choosing, and shall not be liable for anything done, suffered or omitted in good faith in reasonable reliance upon the advice of any of such Persons, except to the extent that such Covered Person engaged in Disabling Conduct. No Covered Person shall be liable to the Company or any Member for any error of judgment made in good faith by a responsible officer or officers of the Covered Person, except to the extent that such Covered Person engaged in Disabling Conduct. Except as otherwise provided in this Section 10.2, no Covered Person shall be liable to the Company or any Member for any mistake of fact or judgment by the Covered Person in conducting the affairs of the Company or otherwise acting in respect of and within the scope of this Agreement, except to the extent that such Covered Person engaged in Disabling Conduct. No Covered Person shall be liable for the return to any Member of all or any portion of any Member’s Capital Account or Capital Contributions, except to the extent that such Covered Person engaged in Disabling Conduct.

    (c)        Reliance on this Agreement. To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to the Members, any Covered Person acting under this Agreement or otherwise shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Covered Person.

    (d)        Standard of Care. Whenever in this Agreement a Person is permitted or required to make a decision (i) in his or her “sole and absolute discretion,” “sole discretion,” “discretion” or under a grant of similar authority or latitude, the Person shall be entitled to consider such interests and factors as he or she desires, including his or her own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person, or (ii) in its “good faith” or under another express standard, the Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Agreement or other applicable law.

        Section 10.3. Indemnification.

    (a)        Indemnification Generally. The Company shall and hereby does, to the fullest extent permitted by applicable law, indemnify, hold harmless and release each Covered Person from and against all claims, demands, liabilities, costs, expenses, damages, losses, suits, proceedings and actions, whether juridical, administrative, investigative or otherwise, of whatever nature, known or unknown, liquidated or unliquidated (“Claims”), that may accrue to or be incurred by any Covered Person, or in which any Covered Person may become involved, as a party or otherwise, or with which any Covered Person may be threatened, relating to or arising out of the business and affairs of, or activities undertaken in connection with, the Company, or otherwise relating to or arising out of this Agreement, including, but not limited to, amounts paid in satisfaction of judgments, in compromise or as fines or penalties and counsel fees and expenses incurred in connection with the preparation for or defense or disposition of any investigation, action, suit, arbitration or other proceeding (a “Proceeding”), whether civil or criminal (all of such Claims and amounts covered by this Section 10.3 and all expenses referred to in Section 10.3(c), are referred to as “Damages”), except to the extent that it shall have been determined ultimately that such Damages arose from Disabling Conduct of such Covered Person or that such Covered Person committed a material breach of this Agreement. The termination of any Proceeding by settlement shall not, of itself, create a presumption that any Damages relating to such settlement arose from a material violation of this Agreement by, or Disabling Conduct of, any Covered Person.

    (b)        No Direct Member Indemnity. Members shall not be required directly to indemnify any Covered Person.

    (c)        Expenses, etc. Expenses incurred by a Covered Person in defense of or settlement of any Claim that may be subject to a right of indemnification hereunder may be advanced by the Company, prior to the final disposition thereof , upon receipt of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined ultimately that the Covered Person is not entitled to be indemnified hereunder. The right of any Covered Person to the indemnification provided herein shall be cumulative with, and in addition to, any and all rights to which such Covered Person may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Covered Person’s successors, assigns and legal representatives.

    (d)        Notices of Claims, etc. Promptly after receipt by a Covered Person of notice of the commencement of any Proceeding, such Covered Person shall, if a claim for indemnification in respect thereof is to be made against the Company, give written notice to the Company of the commencement of such Proceeding, provided,that the failure of any Covered Person to give notice as provided herein shall not relieve the Company of its obligations under this Section 10.3, except to the extent that the Company is actually prejudiced by such failure to give notice. If a Proceeding is brought against a Covered Person (other than a derivative suit in right of the Company), the Company will be entitled to participate in and to assume the defense thereof to the extent that the Board of Managers may wish, with counsel reasonably satisfactory to such Covered Person. After notice from the Board of Managers to such Covered Person of the Company’s election to assume the defense thereof, the Company will not be liable for expenses subsequently incurred by such Covered Person in connection with the defense thereof. The Company will not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Covered Person of a release from all liability in respect to such Claim.

    (e)        No Waiver. Nothing contained in this Section 10.3 shall constitute a waiver by any Member of any right that it may have against any party under United States Federal or state securities laws.

    (f)        Authorization. Any indemnification under Section 10.3, as well as the advance payment of expenses permitted under Section 10.3(c), unless ordered by a court, must be made by this Company only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper under those circumstances. The determination must be made:

    (1)        by the Board of Managers by a majority of a quorum consisting of Managers who were not parties to the act or Proceeding;

    (2)        if a majority vote of a quorum consisting of those Managers who were not parties to the act or Proceeding so orders, by independent legal counsel in a written opinion; or

    (3)        if a quorum consisting of Managers who were not parties to the act or Proceeding cannot be obtained, by independent legal counsel in a written opinion.

ARTICLE XI TRANSFER OF INTERESTS

        Section 11.1. Personal Property; Consent for Transfers.

    (a)        Restrictions on Transfer. A Member shall not transfer, sell, assign, convey, exchange, pledge, encumber or otherwise dispose of (each, a “Transfer”) any of its Interest unless: (i) the other Member has been afforded a right of first offer in accordance with the procedures set forth in paragraph (b) of this Section 11.1; (ii) the contemplated Transfer will not adversely affect the regulatory status of the Company or the Tuscola Project; (iii) all requisite Regulatory Approvals have been duly obtained and are in full force and effect; and (iv) the contemplated Transfer will not result in adverse tax treatment for the Company, the Tuscola Project or either of the Members.

    (b)        Right of First Offer. In the event a Member desires to Transfer all or any part of its Interest, such Members (the “Selling Member”) shall first deliver a written notice (the “Section 11.1 Notice”) to the other Member (the “Second Member”), which notice shall specify the portion of the Selling Member’s Interest to be sold (the “Offered Interest”). Within thirty (30) days after its receipt of the Section 11.1 Notice, the Second Member shall have the right to offer to purchase (the “First Offer”) all, but not less than all, the Offered Interest at a price payable only in cash (the “First Offer Price”) and on such other terms and conditions as shall be set forth in the First Offer. Within thirty (30) days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member’s acceptance of the First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Selling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).

    (c)        Proportionate Sales Rights. If the Second Member does not elect to purchase the Offered Interest pursuant to Section 11.1(b) above, the Second Member shall have the right, but not he obligation, to sell to the prospective purchaser identified in the First Offer the same proportion of the Second Member’s Interest as the proportion of the Selling Member’s Interest proposed to be sold by the Selling Member at the same price and otherwise on the same terms and conditions on which, and at the same time as, the Selling Member wishes to sell its Interest. The proportionate sale right specified in this Section 11.1(c) shall be exercisable by written notice given by the Second Member to the Selling Member during the same thirty (30) day period in which the Second Member may make the First Offer contemplated under Section 11.1(b). The Selling Member shall not sell any of its Interest to the prospective purchaser unless such purchaser honors its obligation to purchase a proportionate Interest from the Second Member as provided herein. Any purported Transfer inconsistent with this Section 11.1(c) shall be null and void and of no effect.

        Section 11.2. Issue and Replacement of Certificates.

        Upon the request of any Member, an Interest certificate shall be delivered to such Member for the Interest held by it. Every certificate shall be signed by one Cinergy Manager and one Trigen Manager. In the case of loss, mutilation, or destruction of a share certificate a new certificate may be issued upon such terms as the Board of Managers may prescribe.

        Section 11.3. Interest Certificate Legend.

        All certificates representing Interests shall bear the following legend (in addition to any other legend required by applicable law):

        “These interests have not been registered under the Securities Act of 1933, as amended, or any state securities laws and may not be sold, offered for sale, pledged, assigned, hypothecated or otherwise transferred in violation of any applicable securities law. These interests are subject to the terms and conditions, including restrictions on transfers, pledges or other dispositions, of a Joint Venture and Project Development Agreement, dated as of December 9, 1996, and a Limited Liability Company Agreement, dated as of November 19, 1999, each as amended from time to time, copies of which are on file with the Secretary of the Company.”

ARTICLE XII DISSOLUTION AND TERMINATION OF THE COMPANY

        Section 12.1. Dissolution.

        The Company shall dissolve upon and in accordance with the mutual agreement of the Members.

        Section 12.2. Liquidation.

        Upon dissolution of the Company, the Person or Persons approved by the Board of Managers shall carry out the winding up of the Company (in such capacity, the “Liquidating Trustee”) and shall proceed, subject to the provisions herein, to liquidate the Company and apply the proceeds of such liquidation, or in its sole discretion to distribute Company assets, in the following order of priority:

          First, to creditors in satisfaction of debts and liabilities of the Company, whether by payment or the making of reasonable provision for payment (other than any loans or advances that may have been made by any of the Members to the Company), and the expenses of liquidation, whether by payment or the making of reasonable provisions for payments, any such reasonable reserves (which may be funded by a liquidating trust) to be established by the Liquidating Trustee, as the case may be, in amounts deemed by it to be reasonably necessary for the payment of the Company’s expenses, liabilities and other obligations (whether fixed or contingent);

          Second, to the Members in satisfaction of any loans or advances that may have been made by any of the Members to the Company, whether by payment or the making of reasonable provision for payment; and

          Third, to the Members in proportion to, and to the extend of, each Member’s Capital Account, as such Capital Account has been adjusted pursuant to Article VI.

        Section 12.3. Time for Liquidation, etc.

    (a)        A reasonable time period shall be allowed for the orderly winding up and liquidation of the assets of the Company and the discharge of liabilities to creditors as to enable the Liquidating Trustee to seek to minimize potential losses upon such liquidation. The provisions of this Agreement shall remain in full force and effect during the period of winding up and until the filing of a certificate of cancellation of the Company with the Secretary of State of the State of Delaware.

    (b)        Upon completion of the foregoing, the Liquidating Trustee shall execute, acknowledge and cause to be filed a certificate of cancellation of the Company with the Secretary of State of the State of Delaware.

        Section 12.4. Claims of the Members.

        The Members and any former Members shall look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provisions of all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members and former Members shall have no recourse against any Member or any Manager or their Affiliates.

ARTICLE XIII CERTAIN DEFINITIONS

        Section 13.1. Definitions.

        Unless the context otherwise requires, the terms defined in this Section shall, for the purposes of this Agreement, have the meanings herein specified.

        “Affiliate” shall mean, with respect to any specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified.

        “Business Day” shall mean any day on which banks located in New York City are not required or authorized by law to remain closed.

        “Capital Account” shall mean, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 6.4 hereof.

        “Capital Contribution” shall mean, with respect to any Member, the amount set forth opposite the name of such Member on Schedule I under the column “Capital Contribution”.

        “Code” shall mean the Internal Revenue Code of 1986, as amended.

        “Covered Person” shall mean a Member, a Manager, or any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Company, a Member, or a Manager; any officers, directors, shareholders, controlling persons, partners, employees, representatives or agents of a Member, a Manager or their respective Affiliates; or any officer, employee or agent of the Company or its Affiliates; or any Person who was, at the time of the act or omission in question, such a Person.

        “Disabling Conduct” shall mean conduct that constitutes fraud, a willful violation of law, gross negligence or reckless disregard of duty in the conduct of the duties of the Person referred to.

        “Interest” shall mean a Member’s limited liability company interest in the Company which represents such Member’s share of the profits and losses of the Company and such Member’s rights to receive distributions of the Company’s assets and to participate in the management of the Company in accordance with the provisions of this Agreement and the Delaware Act.

        “Interest Percentage” shall mean the percentage shown on Schedule 1 hereto under the heading “Interest Percentage”.

        “Manager” shall mean a “manager” within the meaning of the Delaware Act and a member of the Board of Managers.

        “Member” shall mean any Person named as a member of the Company on Schedule 1 and “Members” shall mean two (2) or more of such Persons when acting in their capacities as members of the Company.

        “Net Profit” or “Net Loss” shall mean, for any Fiscal Year, the net income or net loss of the Company for such Fiscal Year, determined in accordance with Section 703(a) of the Code, including any items that are separately stated for purposes of Section 702(a) of the Code, as determined in accordance with Federal income tax accounting principles with the following adjustments:

    (a)        any income of the Company that is exempt from Federal income tax shall be included as income;

    (b)        any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(1) shall be treated as current expenses;

    (c)        no effect shall be given to any adjustments made pursuant to Section 734 or 743 of the Code; and

    (d)        the basis of property contributed to the Company shall initially be treated as equal to the agreed upon valuation of such property, and all gain, loss, depreciation and amortization on such property shall be determined based on such agreed upon value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g).

        “Person” shall mean any individual, corporation, association, partnership (general or limited), joint venture, trust, joint-stock company, estate, limited liability company, unincorporated organization or other legal entity or organization.

        “Subsidiary” or “Subsidiaries” or any Person means any corporation, partnership, joint venture or other legal entity of which such Person (either alone or through or together with any other subsidiary), owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests the holder of which is generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, joint venture or other legal entity.

        “Treasury Regulations” shall mean the Regulations of the Treasury Department of the United States issued pursuant to the Code.

ARTICLE XIV MISCELLANEOUS PROVISIONS

        Section 14.1. Amendments Generally.

        The terms and provisions of this Agreement shall not be modified or amended at any time except by the unanimous consent of the Members; provided, that, without the consent of any of the Members, the Board of Managers may amend Schedule 1 attached hereto to reflect changes validly made, pursuant to the terms of this Agreement.

        Section 14.2. Entire Agreement.

        This Agreement (including all attachments hereto) constitutes the entire agreement between the Members with respect to the Company and supersedes all other prior agreements and understandings, both written and oral, between the Members or their respective Affiliates with respect to the Company.

        Section 14.3. Notices.

        All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or by registered or certified mail (postage prepaid, return receipt requested), to the other Member as follows:

      If to Cinergy Solutions:

      Cinergy Solutions, Inc.
      139 East Fourth Street
      Cincinnati, Ohio 45202
      Attention: Donald B. Ingle, Jr.
      Facsimile: 513-287-3044

      with a copy to:

      Cinergy Corp.
      139 East Fourth Street
      Cincinnati, Ohio 45202
      Attention: General Counsel
      Facsimile: 513-287-3044

            and

      if to Trigen:

      Trigen Solutions, Inc.
      One Water Street
      White Plains, New York 10601
      Attention: General Counsel
      Facsimile: 914-948-9157

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

        Section 14.4. Table of Contents and Headings.

        The table of contents and the headings and subheadings of the sections of this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision thereof.

        Section 14.5. Assignment.

        This Agreement shall not be assigned by either Member or by operation of law or otherwise.

        Section 14.6. Severability.

        The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity and enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid and unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

        Section 14.7. Extension; Waiver.

        Each Member may (i) extend the time for the performance of any of the obligations or other acts of the other Members, (ii) waive any inaccuracies in the representations and warranties of the other Member contained herein, or (iii) waive compliance by the other Member with any of the agreements or conditions contained herein. Any agreement on the part of any Member to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Member. The failure of any Member hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.

        Section 14.8. Governing Law.

        This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the principles of conflicts of law thereof.

        Section 14.9. Names and Logos.

        To further the objectives of this Agreement and the Company, the Members acknowledge and agree that the Company shall have the non-exclusive right to use the names and logos of the Members to the extent such use is reasonable and in connection with the implementation of this Agreement.

        Section 14.10. Further Actions.

        Each Member shall execute and deliver such other certificates, agreements and documents, and take such other actions, as may reasonably be requested by the Company in connection with the formation of the Company and the achievement of its purposes, including, without limitation, (a) any documents that the Company deems necessary or appropriate to form, qualify or continue the Company as a limited liability company in all jurisdictions in which the Company conducts or plans to conduct business and (b) all such agreements, certificates, tax statements and other documents as may be required to be filed in respect of the Company.

        Section 14.11. Counterparts.

        This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute a single agreement.

        IN WITNESS WHEREOF, the undersigned have duly executed this Limited Liability Company Agreement of Trigen-Cinergy Solutions of the Southeast LLC as of the 19th day of November, 1999.

  CINERGY SOLUTIONS, INC


By: __________________________
         Name: Donald B. Ingle, Jr.
         Title: President


TRIGEN SOLUTIONS, INC.


By: __________________________
         Name:
         Title:
  SCHEDULE 1
  
Members'
Names
 Capital
Contribution
 Interest
Percentage
  Cinergy Solutions, Inc.   $ 49 .00  49 .0%
 Trigen Solutions, Inc.  $ 51 .00  51 .0%

SCHEDULE 2

MATTERS REQUIRING ACTION OF THE BOARD OF MANAGERS OF THE COMPANY

(a) Demand for capital contributions from the Members.

(b) Borrowing money or guaranteeing the obligations of any Person not in the ordinary course of business, or mortgaging, pledging or granting a security interest in assets not in the ordinary course of business, in any one transaction or a series of related transactions.

(c) Entering into a transaction or agreement with an Affiliate of a Member other than as specifically set forth in this Agreement.

(d) Unbudgeted acquisitions not in the ordinary course of business.

(e) Disposition of assets not in the ordinary course of business.

(f) Entering into any contract not in the ordinary course of business which requires unbudgeted expenditures, commitments or liabilities.

(g) Amendments to governing documents of the Company.

(h) Issuance of Interests to third parties.

(i) Engaging in a business activity other than the Millennium Project.

(j) Commencing the process of dissolution, liquidation, insolvency or voluntary bankruptcy.

(k) Approving any merger or consolidation of the Company.

(l) Forming any subsidiary.

(m) Execution of any material credit agreement or any amendment or modification thereof or implementation of any material change in capital structure.

(n) Commencing or settling any material litigation.

(o) Engaging or terminating principal auditors or attorneys.

(p) Any amendment or modification of terms or provisions of the Service Arrangements.

(q) Such other matters as the Parties or their designated Managers shall be mutual consent determine as being appropriate.

EX-99 31 b-364.htm A&R LLC AGREE EVENT RESOURCES OVERSEAS I eVent Resources Overseas I 
                              AMENDED AND RESTATED

                  LIMITED LIABILITY COMPANY OPERATING AGREEMENT

                                       OF

                         eVENT RESOURCES OVERSEAS I, LLC


     This AMENDED AND RESTATED LIMITED  LIABILITY  COMPANY  OPERATING  AGREEMENT
(this  "Agreement"),  dated as of April 5, 2002, of eVENT RESOURCES  OVERSEAS I,
LLC,  a Delaware  limited  liability  company  (the  "Company"),  is made by and
between CINERGY GLOBAL POWER, INC., a Delaware corporation ("Global Power"), and
eVENT RESOURCES I LLC ("eVent"), a Delaware limited liability company,  amending
and restating the Limited Liability  Company Operating  Agreement of the Company
dated as of June 15, 2001 (the  "Original  Agreement"),  by and between  Cinergy
Global Ely,  Inc.  ("Ely") and eVent.  Global  Power shall be referred to as the
"Common  Member" and eVent shall be referred to as the "Preferred  Member." Each
of Global Power and eVent shall be referred to  individually  as a "Member," and
collectively as the "Members."

                                    RECITALS
                                    --------

          WHEREAS,  the  Company  was duly  formed  on May 29,  2001  under  the
     Delaware Limited  Liability  Company Act (as amended from time to time, the
     "Act");

          WHEREAS,  on June 15,  2001,  Ely and eVent  entered into the Original
     Agreement;

          WHEREAS,  concurrent herewith Ely and Global Power have entered into a
     Distribution and Assignment Agreement whereby Ely is distributing to Global
     Power its entire membership  interest in the Company and shall no longer be
     a member and Global Power is being admitted as a member in its stead;

          WHEREAS, Ely and Global Power have acknowledged and approved and eVent
     by its entry into this Agreement desires to acknowledge and approve (i) the
     distribution  of the  Common  Interest  in the  Company  from Ely to Global
     Power,  (ii)  the  withdrawal  of  Ely  from  the  Company  and  (iii)  the
     substitution  of Global Power for Ely as the Common  Member of the Company;
     and

          WHEREAS,  the  Members  desire  to  amend  and  restate  the  Original
     Agreement in its entirety.

          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 Members hereby agree 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 eVent  Resources
     Overseas  I, LLC.  The  business  of the  Company  may be  conducted,  upon
     compliance with all applicable laws, under any other name designated by the
     Manager (as defined hereinafter).

          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,  Corporation  Trust  Company,  1209
          Orange Street, Wilmington, New Castle County, Delaware.

               (b) The  business  address  of the  Company  is 139  East  Fourth
          Street,  Cincinnati,  OH  45202,  or such  other  place as the  Common
          Member(s) shall designate. The Company shall notify each Member of any
          change in the business address of the Company and any change shall not
          be considered an amendment to this Agreement.

          Section  2.3 Nature of  Business  Permitted;  Powers.  The  Company is
     organized  primarily  for the object  and  purpose  of  acquiring,  owning,
     holding,  controlling,   managing,  financing,   building,  operating,  and
     liquidating  an investment  in Saw Mill Capital Fund,  III, LLC, a Delaware
     limited  liability  company  and a special  purpose  company  that holds an
     interest  in Clyde  Bergeman,  and  other  investments  in  other  entities
     consistent  with Section 2.3 of the  Operating  Agreement  (the  "Operating
     Agreement") of eVent dated as of December 1, 2000 (each such investment,  a
     "Portfolio Investment").

          Section 2.4 Business  Transactions  of a Member with the  Company.  In
     accordance with Section 18-107 of the Act, any Member may transact business
     with the Company and, subject to applicable law, 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.  Unless otherwise  required by the Internal Revenue Code of 1986 (the
     "Code"),  as the same  may be  amended  hereafter  from  time to time,  the
     Company  shall have the same fiscal  year for income tax and for  financial
     and accounting purposes.

          Section 2.6 Company Property;  Interests. No real or other property of
     any kind,  tangible or  intangible,  of the  Company  shall be deemed to be
     owned by any Member individually,  but shall be owned by, and title thereto
     shall be vested solely in, the Company. Without limiting the foregoing, all
     trade  secrets,  intellectual  property and other  business  assets used or
     developed  by the  Company or its  subsidiaries  are and shall be owned and
     controlled  only by the Company or its  subsidiaries,  as  applicable.  The
     Interests of the Members in the Company shall constitute personal property.

          Section 2.7  Filings.  Following  the  execution  and delivery of this
     Agreement, Global Power shall promptly prepare any documents required to be
     filed and recorded  under the Act, and Global  Power shall  promptly  cause
     each such document 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. Global Power
     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 to the extent required by the
     nature of its operations.  The Company may do business under any fictitious
     business name deemed  necessary or  desirable.  The Members and the Manager
     will take any and all  other  actions  as may be  reasonably  necessary  to
     perfect  and  maintain  the status of the  Company  as a limited  liability
     company  or  similar  type  of  entity  under  the  laws of any  states  or
     jurisdictions  other than Delaware in which the Company engages in business
     and to continue the Company as a limited liability company,  to protect the
     limited  liability  of the  Members  as  contemplated  by the  Act,  and to
     accomplish the purpose of the Company.

                              ARTICLE III - Members
                              ---------------------

          Section 3.1 Admission of Members.  Global Power and eVent are the sole
     Members of the Company. No further Members may be admitted.

          Section 3.2 Classes of Interests.

               (a) The membership  interests of the Company shall consist of two
          classes of membership interests designated respectively as the "Common
          Interests" and the  "Preferred  Interests."  The Common  Interests and
          Preferred Interests shall collectively be referred to as "Interests."

               (b) Each class of Interests shall have separate  rights,  powers,
          preferences and duties with respect to the property and obligations of
          the Company and profits and losses  associated  with such property and
          obligations.

               (c) All Interests of a particular  class shall be identical  with
          each other in every respect.

               (d) Preferred  Interests  shall have no voting or consent rights,
          except to the extent expressly set forth in this Agreement.

          Section  3.3  Limitation  of  Liability  of  Members.   Each  Member's
     liability  shall be  limited  as set forth in the Act and other  applicable
     law. 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 of the Company.

          Section 3.4 Access to 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 Common Member(s).

               (a) Meetings of the Common Member(s) may be called at any time by
          any Common Member.

               (b) Any action  required to or which may be taken at a meeting of
          Common 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 Common Member(s).

               (c)  Regular  meetings of the Common  Member(s)  shall be held at
          least annually. Common 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.

               (d)  Preferred  Member(s)  shall be  entitled to notice of and to
          attend  meetings of the Common  Member(s),  but shall have no right to
          participate in or vote at such meetings  except as set forth in clause
          (b) of Section 3.6 hereof.

          Section 3.6 Quorum and Voting.

               (a)  With  respect  to  meetings  of the  Common  Member(s),  the
          presence  in person or by proxy of Common  Member(s)  owning more than
          fifty percent (50%) of the Common  Interests shall constitute a quorum
          for purposes of  transacting  business.  Subject to clause (b) of this
          Section 3.6,  with  respect to any matter  required or permitted to be
          voted upon by the Common Member(s), the affirmative vote of holders of
          at least fifty percent (50%) of the Common Interests shall be required
          to approve such matter,  in addition to any other approval required by
          this Agreement or the Act.

               (b) Notwithstanding anything to the contrary in this Article III,
          in addition to the vote  required by clause (a) of this  Section  3.6,
          the affirmative vote of holders of at least fifty percent (50%) of the
          Preferred Interests shall be required in order to authorize any of the
          following actions by or on behalf of the Company:

                    (i)  the  dissolution,  winding  up or  liquidation  of  the
               Company (except as in accordance with Section 8.1 hereof);

                    (ii) the commencement of a voluntary  bankruptcy  proceeding
               or  admission  of  a  material   allegation  in  an   involuntary
               bankruptcy proceeding;

                    (iii) the sale, lease, exchange or other disposition of all,
               or substantially all, of the assets of the Company;

                    (iv) the  issuance of  additional  Interests or admission of
               any new Members to the Company; or

                    (v) the incurrence of any indebtedness  outside the ordinary
               course of business.

          Section 3.7 Notice.  Meetings of the Common  Member(s)  may be held at
     such places and at such times as the Common 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 Adjourned Meetings and Notice Thereof.  Any meeting of the
     Common Member(s), whether or not a quorum is present, may be adjourned from
     time to time by the vote of the Common Member(s)  holding a majority of the
     Common  Interests  present in person or represented  by proxy,  but, in the
     absence  of a  quorum,  no other  business  may be  transacted  at any such
     meeting.   Other  than  by  announcement  at  the  meeting  at  which  such
     adjournment  is taken,  it shall not be necessary to give any notice of any
     adjournment  or of the business to be transacted at any adjourned  meeting.
     When,  however,  any meeting of the Common Member(s) is adjourned for sixty
     (60) days or more, notice of the adjourned meeting shall be given as in the
     case of an original meeting.

          Section 3.9 Withdrawals  and Removals of Members.  None of the Members
     may resign,  withdraw or be removed as a Member of the Company  without the
     written consent of all of the Members.

          Section 3.10 Other Ventures.  Nothing in this Agreement shall preclude
     a Member or any Affiliates  (where  "Affiliate"  means, with respect to any
     person,  a  person  that  directly  or  indirectly,  through  one  or  more
     intermediaries,  controls,  is  controlled  by, or is under common  control
     with, the person specified),  officers, directors, managers,  stockholders,
     partners  or  employees  of any  Member  from  engaging  in other  business
     ventures of any nature and description,  independently or with others,  and
     neither  the  Company  nor any  Member  shall have any rights in and to any
     independent venture or activity or the income or profits derived therefrom.

                             ARTICLE IV- Management
                             ----------------------

          Section 4.1 General.

               (a) The business  and affairs of the Company  shall be managed by
          and under the direction of Global Power, who shall be deemed to be the
          Managing Member,  who shall continue the delegation of such management
          to a manager (the  "Manager")  pursuant to the terms of the  agreement
          dated June 15, 2001,  between the Company and  e3Convergence  LLC, now
          known  as  Greenwich  Power  LLC  ("Greenwich  Power"),  with  respect
          thereto;  provided,  that the  Managing  Member  shall be  entitled to
          enforce any rights that the Company  might have  against the  Manager.
          The Manager shall serve without compensation from the Company, and the
          Manager shall bear the cost of its participation in meetings and other
          activities  of the  Company.  Except  as set  forth in  clause  (b) of
          Section 3.6 hereof,  Preferred  Member(s) shall not participate in the
          management  of the  business  and  affairs of the  Company.  Except as
          provided in the first sentence of this Section 4.1(a) and as otherwise
          provided  in this  Agreement,  the  Members  shall  have no  power  to
          transact any business in the Company's name nor have the power to sign
          documents for or otherwise bind the Company.

               (b) The day-to-day  operations of the Company shall be managed by
          the  Manager,  if any,  and the  Manager  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 it deems  appropriate,  consistent  with
          this Agreement,  prudent business practices, the Investment Management
          Agreement (as defined hereinafter) and Supplement No. 1 thereto.

          Section  4.2  Reliance  by Third  Parties.  Persons  dealing  with the
     Company are entitled to rely  conclusively  upon the power and authority of
     the Manager and the Common Member(s) herein set forth.

          Section 4.3 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 Manager to be  available  for such
     purpose,  provided  that  such  expenses  are those of the  Company  or are
     otherwise  incurred by the Members or the Manager 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 Members of checks,  financial reports, tax returns and
          notices required  pursuant to this Agreement or in connection with the
          holding of any meetings of the Common 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 Capital Contributions.

               (a) Except as otherwise  provided in this  Section  5.1,  neither
          Global Power nor eVent shall be obligated to make any further  capital
          contributions to the Company.

               (b) In order to satisfy the  requirements  of Supplement No. 1 to
          the Investment  Management and Services Agreement by and between eVent
          and  Greenwich  Power,  dated as of December 1, 2000 (the  "Investment
          Management  Agreement"),  the Preferred  Member(s) are responsible for
          contributing  sums  sufficient  to cover all expenses of the types set
          forth  in  Sections  4(d)  and  10(e)  of  the  Investment  Management
          Agreement  to the extent that they are incurred by or on behalf of the
          Company.

               (c) All capital  contributions of a Member to the Company must be
          in cash.

          Section 5.2 Capital Accounts.

               (a) 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,  in accordance with the tax
          accounting   principles   prescribed   by  the  Treasury   Regulations
          promulgated under Section 704 of the Code, as amended (the "Allocation
          Regulations"),  so that the  allocations  provided  in this  Agreement
          shall, to the extent  possible,  have  "substantial  economic  effect"
          within  the  meaning  of  the  Allocation  Regulations,  or,  if  such
          allocations cannot have substantial  economic effect, so that they may
          be deemed to be "in  accordance  with the  Members'  interests  in the
          Company" within the meaning of the Allocation Regulations.

               (b) Schedule A to this  Agreement  ("Schedule  A") sets forth the
          name,  address,  capital account  balance and ownership  percentage of
          Common Interests or Preferred  Interests of each Member as of the date
          hereof.  Schedule A shall be amended  from time to time to reflect any
          changes thereto.

               (c) Except as  otherwise  provided in this  Agreement,  no Member
          shall  have the  right to  withdraw  capital  from the  Company  or to
          receive or demand distributions or return of its capital contributions
          until the Company is dissolved in accordance  with this  Agreement and
          the  applicable  provisions of the Act. No Member shall be entitled to
          demand or receive any interest on its capital account or contributions
          thereto.

          Section 5.3 Allocation of Profits and Losses.

               (a) After giving  effect to any special  allocations  required by
          the Allocation  Regulations,  the profits, if any, of the Company with
          respect to any Fiscal  Year shall be  allocated  among the  Members as
          follows:

                    (1) First,  to the Members,  pro rata in  proportion  to the
               cumulative  amount of losses allocated to the Members pursuant to
               Section 5.3(b) for all prior Fiscal Years; and

                    (2)  Thereafter,  to the  Preferred  Member(s),  pro rata in
               proportion to their respective ownership percentages.

               (b) After giving  effect to any special  allocations  required by
          the Allocation  Regulations,  the losses,  if any, of the Company with
          respect to any Fiscal  Year shall be  allocated  among the  Members as
          follows:

                    (1) First,  to the Members  with  positive  capital  account
               balances, pro rata in proportion to such positive capital account
               balances; and

                    (2)  Thereafter,  to the  Preferred  Member(s),  pro rata in
               proportion to their respective ownership percentages.

                           ARTICLE VI - Distributions
                           --------------------------

          Section 6.1  Distributions.  Any distributions by the Company shall be
     made to the Members in the same order and priority as losses are  allocated
     pursuant to Section 5.3(b).  All available cash,  after taking into account
     appropriate reserves and expenses, shall be timely distributed.

          Section 6.2  Distributions in Kind. A Member shall not be compelled to
     accept a  distribution  of an asset in kind from the Company  without  such
     Member's consent.

          Section 6.3 Withholding  Taxes. If the Company is required to withhold
     taxes with respect to any allocation or distribution to any Member pursuant
     to any applicable  federal,  state,  local or foreign tax laws, the Company
     may withhold such amounts and make such payments to taxing  authorities  as
     are necessary to ensure  compliance  with such tax laws. Any funds withheld
     by reason of this Section 6.3 shall  nonetheless  be deemed  distributed to
     the  Member in  question  for all  purposes  under this  Agreement.  If the
     Company  did not  withhold  from  actual  distributions  any amounts it was
     required  to  withhold,  the Company  may,  at its option,  (i) require the
     Member to which the  withholding  was credited to reimburse the Company for
     such withholding; or (ii) reduce any subsequent distributions by the amount
     of such  withholding.  This obligation of a Member to reimburse the Company
     for taxes that were  required  to be  withheld  shall  continue  after such
     Member transfers or liquidates its membership interest in the Company. Each
     Member agrees to furnish the Company with any  representations and forms as
     shall  reasonably  be requested by the Company to assist it in  determining
     the extent of, and in fulfilling, any withholding obligations it may have.

              ARTICLE VII - Assignment of Membership and Interests
              ----------------------------------------------------

          Section 7.1 Assignment of Membership  and  Interests.  No Member shall
     sell, transfer,  assign, convey, or otherwise dispose of, pledge, mortgage,
     encumber or hypothecate  (a "Transfer")  all or any part of its Interest or
     any  interest,  rights  or  obligations  with  respect  thereto;  provided,
     however,  that  eVent  shall  have  the  right  to make a  Transfer  of its
     Interest, in whole or in part, to an Affiliate of eVent, provided that such
     Affiliate of eVent is owned by both Greenwich  Power and CinTec I LLC or an
     Affiliate of CinTec I LLC and no other  persons and  provided  further that
     the Common Member may make a Transfer of its Interest, in its entirety only
     and not in part,  to an  Affiliate  of the  Common  Member.  Any  attempted
     Transfer  not in  conformity  with the first  sentence of this  Section 7.1
     shall  be null and void  and of no  force  or  effect  whatsoever,  and the
     purported transferee shall have no rights as a Member.

          Section 7.2 Certificates. Interests may, but need not be, evidenced by
     a certificate of limited  liability company interest issued by the Company,
     but the  Interests  shall be subject to the  following  restrictions  which
     shall be set forth as legends on such certificates,  if any (in addition to
     any legend or restriction required under applicable state securities laws):

          THE SALE,  TRANSFER OR ASSIGNMENT OF THE SECURITIES  EVIDENCED BY THIS
          CERTIFICATE  IS  PROHIBITED  THE  TERMS OF AN  AGREEMENT  BETWEEN  THE
          COMPANY AND THE HOLDER HEREOF OR HIS  PREDECESSOR IN INTEREST.  COPIES
          OF SUCH  AGREEMENT  MAY BE  OBTAINED  BY WRITTEN  REQUEST  MADE BY THE
          HOLDER OF RECORD OF THIS SECURITY TO THE SECRETARY OF THE COMPANY.

          THE SECURITIES  EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
          UNDER THE  SECURITIES  ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
          SOLD OR  OTHERWISE  TRANSFERRED,  ASSIGNED,  PLEDGED  OR  HYPOTHECATED
          UNLESS AND UNTIL  REGISTERED  UNDER THE ACT OR UNLESS THE  COMPANY HAS
          RECEIVED  AN OPINION OF COUNSEL  SATISFACTORY  TO THE  COMPANY AND ITS
          COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

                           ARTICLE VIII - Dissolution
                           --------------------------

          Section 8.1  Duration  and  Dissolution.  The  duration of the Company
     shall be perpetual  unless the Company is sooner  dissolved  in  accordance
     with the Act or as provided in the following sentence. The Company shall be
     dissolved  upon  (a) a  vote  of  all  Members  for  its  dissolution;  (b)
     dissolution of eVent pursuant to eVent's Operating Agreement; or (c) a sale
     of all or substantially all of the Company's assets (where, for purposes of
     this Section 8.1,  "substantially  all" means all Portfolio  Investments of
     the  Company  and all other  assets of the  Company  other  than de minimis
     assets held for the purposes of the Company's day-to-day operations).

          Section 8.2  Winding Up.  Subject to the  provisions  of the Act,  the
     Members,  acting by written agreement of all Members,  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 in accordance
     with  Section  8.1) and shall  also  have the right to act as or  appoint a
     liquidating trustee in connection therewith.

          Section  8.3  Distribution  of  Assets.  Upon  the  winding  up of the
     Company,  the  assets  shall be  distributed  in the  following  order  and
     priority:  (a)  first,  to pay,  satisfy  or  discharge  all of the  debts,
     liabilities and obligations of the Company (including,  without limitation,
     all  expenses  incurred  in winding up of the  Company) or  otherwise  make
     adequate  provision for payment and discharge thereof  (including,  without
     limitation,  the  establishment  of  a  cash  escrow  fund  for  contingent
     liabilities  in such  amount  and for such term as the  Members  and/or any
     liquidating  trustee may reasonably  determine) in the order of priority as
     provided  by the Act,  and (b)  thereafter,  all  remaining  assets  of the
     Company shall be  distributed  to the Members in the order and priority set
     forth  in  Section   6.1  after   giving   effect  to  all   contributions,
     distributions and allocations for all periods.

                   ARTICLE IX - Tax Characterization; Reports
                   ------------------------------------------

          Section 9.1 Tax Treatment. The Company shall timely make all necessary
     elections and filings for federal,  state, and local tax purposes such that
     it will be treated  as a  partnership  for  federal,  state,  and local tax
     purposes.

          Section 9.2 Designation of Tax Matters Partner.

               (a) Global Power, or a designated  Affiliate  thereof,  is hereby
          initially  designated the "Tax Matters Partner" for federal income tax
          purposes  pursuant  to  Section  6231 of the Code with  respect to all
          taxable years of the Company.

               (b) As soon as  practicable  after the end of each taxable  year,
          the Tax Matters  Partner  shall  furnish (or cause to be furnished) to
          each Member such  information  as  necessary  to timely  fulfill  such
          Member's federal, state, local and foreign tax obligations,  including
          Schedule  K-1, or any  similar  form as may be required by the Code or
          the Internal Revenue Service.

               (c) The Tax Matters  Partner  may,  but shall not be required to,
          make any election  permitted to be made by the Company  under the Code
          and  Treasury  Regulations,  including  the  election  provided  under
          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 (which term for purposes of this Article X only
     shall be deemed to include any former  Member),  nor any manager,  officer,
     director,  stockholder,  partner, employee,  representative or agent of any
     Member or any Affiliate of any Member (individually, a "Covered Person" and
     collectively,  the "Covered Persons") shall be liable to the Company or any
     Member for any act or omission in relation to the Company or its operations
     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 the  Agreement,  provided that such act or omission
     does  not  constitute  fraud,  willful  misconduct,  bad  faith,  or  gross
     negligence;  provided  however,  that,  for  purposes  of  exculpation  and
     indemnification  under  Sections  10.1 and 10.2  respectively,  a  "Covered
     Person"  shall not  include  any  person who would  otherwise  be a Covered
     Person  when acting as a Manager of the  Company,  which such person may be
     provided indemnification in accordance with Section 10.4.

          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  (including  attorneys'
     fees)  arising  from  any  and  all  claims,  demands,  actions,  suits  or
     proceedings, civil, criminal, administrative,  investigative or arbitrative
     (a  "Proceeding"),  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;  provided,  however,
     that,  in  the  event  that  the  funds  and  assets  of  the  Company  are
     insufficient   to   provide   full    indemnification   of   the   Members,
     indemnification of the Common Member(s) (including for the purposes of this
     Article  X  only  any  former  Common  Member)  shall  take  priority  over
     indemnification of the Preferred  Member(s).  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.

          Section 10.3 Advance Payment.  The right to indemnification  conferred
     in this Article X shall  include the right to be paid or  reimbursed by the
     Company the reasonable  expenses  incurred by a person of the type entitled
     to be indemnified under Article X who was, is or is threatened to be made a
     named  defendant  or  respondent  in a  Proceeding  in advance of the final
     disposition  of the  Proceeding  and  without any  determination  as to the
     person's ultimate entitlement to indemnification;  provided,  however, that
     the payment of such expenses  incurred by any such person in advance of the
     final disposition of a Proceeding,  shall be made only upon delivery to the
     Company of a written  affirmation  by such person of his good faith  belief
     that he has met the standard of conduct necessary for indemnification under
     this Article X and a written  undertaking,  by or on behalf of such person,
     to repay all amounts so advanced if it shall  ultimately be determined that
     such  indemnified  person is not  entitled  to be  indemnified  under  this
     Article X or otherwise.

          Section 10.4  Indemnification of Agents. The Company may indemnify and
     advance  expenses to the Manager and to persons who are or were  serving at
     the  request  of the  Company  as a manager,  director,  officer,  partner,
     venturer,  proprietor,  trustee,  employee, agent or similar functionary of
     another  foreign  or  domestic  limited  liability  company,   corporation,
     partnership,  joint venture,  sole proprietorship,  trust, employee benefit
     plan or other  enterprise  against any liability  asserted  against him and
     incurred  by him in such a capacity  or arising out of his status as such a
     person to the same extent  that it may  indemnify  and advance  expenses to
     Members under this Article X.

          Section  10.5  Appearance  as a  Witness.  Notwithstanding  any  other
     provision  of this  Article X, the  Company may pay or  reimburse  expenses
     incurred by a Covered Person in connection with its appearance as a witness
     or other  participation  in a  Proceeding  at a time when it is not a named
     defendant or respondent in the Proceeding.

          Section 10.6  Non-Exclusivity  of Rights. The right to indemnification
     and the  advancement  and payment of expenses  conferred  in this Article X
     shall not be  exclusive  of any other right which a Member or other  person
     indemnified  pursuant to Section 10.4 may have or hereafter  acquire  under
     any law (common or statutory), provision of the Certificate of Formation of
     the Company or this Agreement, agreement, vote of Members or otherwise.

          Section  10.7  Insurance.   The  Company  may  purchase  and  maintain
     insurance,  at its expense,  to protect itself and any person who is or was
     serving as a Member, officer, employee or agent of the Company or is or was
     serving at the  request  of the  Company  as a member,  manager,  director,
     officer, partner, venturer, proprietor, trustee, employee, agent or similar
     functionary  of another  foreign or  domestic  limited  liability  company,
     corporation,   partnership,  joint  venture,  sole  proprietorship,  trust,
     employee benefit plan or other enterprise against any expense, liability or
     loss,  whether or not the Company  would have the power to  indemnify  such
     person against such expense, liability or loss under this Article X.

          Section 10.8 Savings  Clause.  If this Article X or any portion hereof
     shall be invalidated on any ground by any court of competent  jurisdiction,
     then the Company shall nevertheless indemnify and hold harmless each Member
     or any other  person  indemnified  pursuant to this  Article X as to costs,
     charges and expenses  (including  attorneys'  fees),  judgments,  fines and
     amounts paid in settlement with respect to any action,  suit or proceeding,
     whether civil, criminal, administrative or investigative to the full extent
     permitted by any  applicable  portion of this Article X that shall not have
     been invalidated and to the fullest extent permitted by applicable law.

                           ARTICLE XI - Miscellaneous
                           --------------------------

          Section 11.1 Amendment;  Waiver. This Agreement may be amended only by
     an  instrument  in writing  executed by all  Members.  Compliance  with any
     provision of this  Agreement  may be waived only if such waiver is approved
     in a writing signed by all Members;  provided, that no such waiver shall be
     deemed to be a waiver of any other or further  obligation  or  liability of
     the  person or persons  in whose  favor the  waiver  was  given.  Except as
     expressly  provided to the  contrary  herein,  no failure to  exercise  any
     right, power or privilege hereunder shall operate as a waiver thereof,  nor
     shall any single or partial  exercise thereof preclude any other or further
     exercise  thereof or the  exercise of any other  right,  power or privilege
     granted hereunder.

          Section 11.2 Successors;  Counterparts.  Subject to Article VIII, this
     Agreement  (a)  shall  be  binding  as to  the  executors,  administrators,
     estates, heirs and legal successors, or nominees or representatives, of the
     Members  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.  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  is  invalid  or
     unenforceable,  this Agreement  shall be construed or interpreted so as (a)
     to make it  enforceable  or  valid  and (b) to make the  distributions  and
     allocations  as closely  equivalent to those set forth in this Agreement as
     is permissible under applicable law.

          Section 11.4 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 11.5 Further Assurances. Each of the Members 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 11.6 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 11.6 and the appropriate written  confirmation is received,  (b) if
     given by mail, seventy-two (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 11.6.

          Section 11.7 Books and Records; Accounting.

               (a) The  books  and  records  of the  Company,  and a list of the
          Members and their respective residence, business or mailing addresses,
          and Interests shall be maintained at the principal  executive  offices
          of the Company.  The Company may maintain such other books and records
          and may  provide  such  financial  or  other  statements  as it in its
          discretion deems advisable.  The financial  records and reports of the
          Company shall be kept on the accrual basis.

               (b) Within one hundred  twenty  (120) days from the close of each
          Fiscal Year of the Company,  the Members  shall each be provided  with
          (a)  annual  audited  financial  statements  for  the  Company;  (b) a
          statement of each Member's  closing  capital account balance as of the
          end  of  such  year;  (c) a  report  describing  the  status  of  each
          investment  in  the  Company's   portfolio,   including  the  Member's
          valuations  as of the  end of such  year;  (d)  unaudited  semi-annual
          report of the Company  financial reports showing each Member's capital
          account  balance  and (e) such other  reports and  information  as the
          Company determines appropriate from time to time.

          Section  11.8  Waiver of  Partition.  Each Member  hereby  irrevocably
     waives any and all rights that such Member may have to maintain  any action
     for partition of any of the Company's property.

          Section 11.9 Deficit Upon Liquidation.  Except to the extent otherwise
     provided by law with respect to third-party  creditors of the Company, upon
     liquidation,  none of the  Members  shall be liable to the  Company for any
     deficit in its capital account, nor shall such deficits be deemed assets of
     the Company.

          Section  11.10 Entire  Agreement.  This  Agreement,  together with the
     documents  expressly  referred to herein,  each as amended or supplemented,
     constitutes  the entire  agreement  among the parties  with  respect to the
     subject  matter herein and therein and  supersedes  any prior  agreement or
     understanding among the parties hereto with respect to such subject matter.

          Section 11.11 Currency. All payments to be made by any person under or
     in connection with the terms of this Agreement shall be calculated and made
     in U.S. Dollars.

          Section 11.12 Survival All indemnities and  reimbursement  obligations
     made pursuant to this Agreement  shall survive  dissolution and liquidation
     of the  Company  until  expiration  of the  longest  applicable  statute of
     limitations  (including  extensions and waivers) with respect to the matter
     for which a person would be entitled to be indemnified  or  reimbursed,  as
     the case may be.


                                    * * * * *

          IN WITNESS  WHEREOF,  the undersigned  Members have duly executed this
     Amended and Restated Limited Liability Company Operating Agreement of eVent
     Resources Overseas I, LLC as of the date first above written.


                                          CINERGY GLOBAL POWER, INC.



                                          By:
                                                   Name:  David L. Wozny
                                                   Title:    Vice President


                                          eVENT RESOURCES I LLC


                                          By:
                                                   Name:  Lance Bakrow
                                                   Title:    Vice President


                                   SCHEDULE A

                                Common Interests

                                           Capital          Ownership Percentage
Member/Address                             Account          of Common Interests
- --------------                             -------          -------------------

Cinergy Global Power, Inc.                  $100                   100%
139 East Fourth Street
Cincinnati, OH  45202
Attention:  David L. Wozny

                               Preferred Interests

                                           Capital       Ownership Percentage
Member/Address                             Account      of Preferred Interests
- --------------                             -------      ----------------------

eVent Resources I LLC                    $2,010,000             100%
c/o Greenwich Power LLC
140 Greenwich Avenue
Greenwich, CT  06830
Facsimile Number: (203) 861-7815
Attention: Robert M. Davies
EX-99 32 b-408.htm LLC AGREE CINERGY ORIGINATION & TRADE Cinergy Origination and Trade 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                        CINERGY ORIGINATION & TRADE, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
October 19, 2001, a Delaware  limited  liability  company  (the  "Company"),  is
entered into by Cinergy  Wholesale  Energy,  Inc., an Ohio  corporation and sole
member of the Company (the "Member");

                                    RECITALS
                                    --------

     WHEREAS,  the  Company was formed on October 19,  2001,  by an  "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201  (d) of the Act,  it is the
intention  of the  Member  that the  Agreement  be  effective  as of the date of
formation, October 19, 2001;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of October 19, 2001; 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 Origination &
Trade,  Inc." 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,  Corporation  Trust Company,  1209 Orange Street,
     Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45201, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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 the Agreement be effective as of the
date of formation, October 19, 2001.

                                   ARTICLE III

                                    Member(s)
                                    ---------

     Section 3.1  Admission of Member(s).  The Member is hereby  admitted to the
Company in respect of an Interest (as defined in Section 3.2), which is the sole
Interest  outstanding as of the effective time of this Agreement.  New member(s)
shall be admitted only with the approval of the Member.

     Section 3.2  Interests.  The Company  shall be authorized to issue a single
class of  limited  liability  company  interest  (as  defined  in the  Act,  the
"Interest"),  which 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.
Interests may, but need not be, evidenced by a certificate of limited  liability
company interest issued by the Company.

     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 capital  contribution
     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, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (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).

          (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, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     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.  Any member
may at any time call a meeting  of the  member(s).  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(s) may delegate any of its powers to officers of the Company
or 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).

     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 as would (if the Company were a  corporation)  be subject
to control by a board of directors, 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 its participation in meetings and other
activities of the Company.

     Section 4.2 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually 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)
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.  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).

                                   ARTICLE VI

                                  Distribution
                                  ------------

     Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

                                   ARTICLE VII

                             Assignment of Interests
                             -----------------------

     Section 7.1  Assignment of Interests.  A Member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto,  such transferee  shall be deemed admitted as a
member  of  the  Company  to  the  extent  of  such  transferred  Interest,  and
immediately  thereafter the transferor  shall be deemed withdrawn as a member of
the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution
                                   -----------

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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.  The Company shall make all necessary  elections
and filings for federal, state, and local tax purposes.

                                    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,  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 the 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.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section 11.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company  with the State of Delaware on October 19,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  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 11.6 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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.



                                             CINERGY WHOLESALE ENERGY, INC.



                                             By:  __________________________
                                                      Michael J. Cyrus
                                                      President
EX-99 33 b-409.htm CERT OF FORMATION OHIO RIVER VALLEY PROPANE Amend Cert Form Cinergy Propane 
                           CERTIFICATE OF AMENDMENT TO

                            CERTIFICATE OF FORMATION

                                       OF

                              CINERGY PROPANE, LLC


1.   The name of the limited liability company is Cinergy Propane, LLC.

2.   The  Certificate  of Formation of the limited  liability  company is hereby
     amended by changing  Article  FIRST  thereof so that,  as amended,  Article
     FIRST shall be and read as follows:

     FIRST: The name of the Company shall be: Ohio River Valley Propane, LLC.

3.   This  Certificate  of Amendment to the  Certificate  of Formation  shall be
     effective as of March 14, 2002.


     IN WITNESS  WHEREOF,  the  undersigned  has executed  this  Certificate  of
Amendment of Cinergy Propane, LLC effective as of March 14, 2002.




                                              By:      /s/ Michael J. Cyrus
                                                      -------------------------
                                                       Michael J. Cyrus
                                                       President
EX-99 34 b-410.htm CERT OF CONVERSION MARKETING & TRADING Cinergy Marketing and Trading 
                            CERTIFICATE OF CONVERSION

                       OF CINERGY MARKETING & TRADING, LLC

                                      INTO

                         CINERGY MARKETING & TRADING, LP

                 (Pursuant to Sections 17-206 and 17-217 of the
                Delaware Revised Uniform Limited Partnership Act)

     Cinergy Marketing & Trading,  LLC, a limited liability company (the "LLC"),
does hereby certify to the following facts relating to the conversion of the LLC
into a Delaware limited  partnership (the  "Conversion")  under the name Cinergy
Marketing & Trading, LP (the "Partnership"):

          1.  The  name  of the  LLC  immediately  prior  to the  filing  of the
     Certificate of Conversion to Limited  Partnership  (the  "Certificate")  is
     Cinergy Marketing & Trading, LLC.

          2. The date the LLC was  originally  formed is October 27,  1995.  The
     jurisdiction where the LLC was originally formed is Delaware.

          3. The  LLC's  jurisdiction  immediately  prior to the  filing of this
     Certificate is Delaware.

          4. The name of the  Partnership  as set  forth in its  Certificate  of
     Limited Partnership is Cinergy Marketing & Trading, LP.

          5. The effective  date of the  Conversion to a limited  partnership is
     12:00a.m. on January 1, 2002.

                                                   CINERGY GENERAL HOLDINGS, LLC
                                                   as General Partner



                                                   By:
                                                       ------------------------
                                                        R. Foster Duncan
                                                        Executive Vice President

Dated:  December 14, 2001
EX-99 35 b-411.htm LP AGREE MARKETING & TRADING Agreement Cinergy Marketing and Trading 
                        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, 1209 Orange Street, Wilmington, Delaware 19801.

     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
                              139 East Fourth Street
                              Cincinnati, Ohio  45202

Initial Limited Partner:      Cinergy Limited Holdings, LLC
                              139 East Fourth Street
                              Cincinnati, Ohio  45202

     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
                                               --------------------------------
                                                 Michael J. Cyrus
                                                 President


                                            CINERGY LIMITED HOLDINGS, LLC
                                            as Initial Limited Partner


                                            By
                                               --------------------------------
                                                 R. Foster Duncan
                                                 Executive Vice President
EX-99 36 b-412.htm A&R CERT OF FORMATION CINERGY RECEIVABLES Cinergy Receivables-March 
                              AMENDED AND RESTATED


                            CERTIFICATE OF FORMATION

                                       OF

                         CINERGY RECEIVABLES COMPANY LLC

     This Amended and Restated  Certificate of Formation of Cinergy  Receivables
Company LLC, a Delaware limited liability  company,  formed on January 10, 2002,
was duly  executed and is being filed in accordance  with Section  18-208 of the
Delaware Limited Liability Company Act.

FIRST: The name of the limited liability company is Cinergy  Receivables Company
     LLC.

SECOND: The  registered  agent of the  Company in the State of  Delaware  is The
     Corporation Trust Company,  Corporation  Trust Center,  1209 Orange Street,
     Wilmington, County of New Castle, Delaware 19801.


     IN WITNESS WHEREOF,  the undersigned has executed this Amended and Restated
Certificate  of Formation  of Cinergy  Receivables  Company LLC  effective as of
March 5, 2002.




                         By:  /s/ Bradley C. Arnett
                              ---------------------
                         Name: Bradley C. Arnett
                         Title:   Secretary for Cinergy Receivables Company LLC
EX-99 37 b-413.htm A&R LLC AGREE CINERGY RECEIVABLES Cinergy Receivable Company 

            AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                         CINERGY RECEIVABLES COMPANY LLC

                           DATED AS OF MARCH 31, 2002


     This Amended and Restated Limited  Liability  Company  Agreement of Cinergy
Receivables  Company LLC (this  "Agreement") is entered into by Cinergy Corp., a
Delaware  corporation,  as the sole  member  and the sole  holder  of an  equity
interest.  Capitalized  terms used and not  otherwise  defined  herein  have the
meanings set forth on Schedule A hereto.

     The Member, by execution of this Agreement, (i) hereby forms the Company as
a limited  liability  company  pursuant to and in  accordance  with the Delaware
Limited Liability  Company Act (6 Del.  C.ss.ss.18-101 et seq.), as amended from
time to time (the "Act"), and this Agreement, and (ii) hereby agrees as follows:

Section 1. Name.
           -----

     The  name  of the  limited  liability  company  formed  hereby  is  Cinergy
Receivables Company LLC.

Section 2. Principal Business Office.
           --------------------------

     The principal  business  office of the Company shall be located at 221 East
Fourth Street, Suite 2500, Cincinnati, OH 45202.

Section 3. Registered Office.
           ------------------

     The  address  of the  registered  office  of the  Company  in the  State of
Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, County of New Castle, Delaware 19801.

Section 4. 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, Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle, Delaware 19801.

Section 5. Member.
           -------

     (a) The  mailing  address of the Member is set forth on Schedule B attached
hereto.

     (b) Subject to Section 10(k), the Member may act by written consent.

     (c) 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 the
Agreement.

     (d) In the event 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  account (such  capital  accounts to be determined  after
giving  effect to all  contributions  of  property  or money,  distributions  or
allocations for all periods ending on or prior to such date) on such date to the
aggregate capital accounts of all members on such date ("Percentage  Interest").
If there is only one member, its Percentage  Interest shall be 100% for purposes
of this Agreement.

     (e) 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  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.

     (f) The profits and losses of the Company  shall be  allocated  entirely to
the Member or, if additional members are admitted,  to the members in proportion
to their respective Percentage Interests.

     (g) The  distributions of the Company shall be distributed  entirely to the
Member, or if additional  members are admitted,  to the members in proportion to
their respective Percentage Interests.

     (h) Meetings of the Member may be called at any time by any member.  Except
as provided by law,  if there  shall be more than one member of the  Company,  a
majority of Percentage  Interests of the Company,  entitled to vote at a meeting
shall constitute a quorum at all meeting of the members, or if there is only one
member of the Company, such member shall constitute a quorum.

     (i) Except as specifically set forth herein,  any matter requiring the vote
of the Member shall require an affirmative  vote by a majority of the Percentage
Interests of the members in order to constitute an act of the members.

Section 6. Certificates.
           -------------

     Stephen M. Griffith,  Jr., 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,  his 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 or an Officer shall execute,  deliver and file any other certificates
(and  amendments  and/or  restatements  thereof)  necessary  for the  Company to
qualify  to do  business  in Ohio and in any  other  jurisdiction  in which  the
Company may wish to conduct business.

Section 7. Purposes.
           ---------

     Company is  intended  to and shall  operate  and  function  as a  Qualified
Special  Purpose  Entity  ("QSPE") as that term is defined in the  Statement  of
Financial  Accounting  Standards No. 140 ("FASB  140").  In order to satisfy the
requirements of FASB 140 for QSPEs, the nature of the business or purposes to be
conducted or promoted by the Company are limited solely to the following:

     (a) to purchase or  otherwise  acquire  from time to time any or all right,
title and  interest  in, to and under any  obligation,  whether now or hereafter
acquired,  of any obligor to pay the Cincinnati Gas & Electric Company,  an Ohio
corporation ("CG&E),  PSI Energy, Inc. ("PSI"), an Indiana  corporation,  or The
Union  Light,  Heat and Power  Company,  a  Kentucky  corporation  ("ULHP")  for
merchandise  sold or  services  rendered  by  CG&E,  PSI,  or  UHLP in a  retail
transaction,  including  the  rights  of  CG&E,  PSI or ULHP to  payment  of any
interest or finance charges,  and in the contracts relating to such obligations,
all security  interests,  guaranties and property securing or supporting payment
of such obligations, all books and records relating to such obligations, and all
proceeds of the  foregoing,  but shall not include any obligation of any obligor
to pay for merchandise  sold or services  rendered on a wholesale basis by CG&E,
PSI or  ULHP  (collectively,  "Receivables"),  and to  enter  into  any  related
agreements with any Affiliates or any other Person or Persons;

     A "retail  transaction" is one (i) (a) in which the merchandise sold or the
services rendered are sold or rendered to a residential, commercial, industrial,
public  street  and  highway  lighting,  or  public  authority  customer  or any
successor type of customer to the  aforementioned  customer,  or (b) which arose
from a bona fide sale of  merchandise  or insurance or the rendering of services
accepted by the obligor of that  receivable  (including  with respect to CG&E, a
receivable  which arose from the joint  ownership  arrangements  between  and/or
among CG&E, Dayton Power & Light Co. and/or Columbus Southern Power Co. relating
to certain jointly owned generating stations), and (ii) which does not result in
the  customer  being  obliged to pay for such  merchandise  or services  under a
Percentage of Increase Payment Plan.

     (b)  pursuant to the Purchase and Sale  Agreement or the  Receivables  Loan
Agreements  identified in Section 7(d) hereof, to purchase,  acquire, own, hold,
service, process, settle, collect, grant a lien on, assign, pledge and otherwise
deal  with the  Receivables  and any  undivided  interests  in the  Receivables,
collateral   securing  the  Receivables  and  any  proceeds  or  further  rights
associated  with any of the foregoing  and to enter into any related  agreements
with third parties or any other Person or Persons;

     (c) to  manage  and  service  the  Receivables  pursuant  to  one  or  more
agreements to be entered into by and among,  among  others,  the Company and any
Person or Persons acting as servicer or collection agent of the Receivables;

     (d) to enter into the  Amended and  Restated  Purchase  and Sale  Agreement
dated as of March 31, 2002 among the Company and the Originators  ("Purchase and
Sale  Agreement"),  and the Receivables  Loan Agreement dated as of February 14,
2002 among the Company,  The  Cincinnati Gas & Electric  Company,  as Collection
Agent, Windmill Funding Corporation and Jupiter Securitization  Corporation,  as
Lenders,  ABN AMRO Bank N.V., as a Servicing Agent and as Administrative  Agent,
and Bank One, NA, as a Servicing Agent, and the Receivables Loan Agreement dated
as of  February  14,  2002  among The  Cincinnati  Gas &  Electric  Company,  as
Collection Agent, Bank One, NA, as a Committed Lender and ABN AMRO Bank N.V., as
a  Committed  Lender  and as  Administrative  Agent  and each  other  agreement,
instrument,  promissory  note,  certificate,  Uniform  Commercial Code financing
statement or document  contemplated  by such Purchase and Sale Agreement or such
Receivables  Loan  Agreement,  and any amendment,  amendment and  restatement or
other  modification  of such  Purchase  and  Sale  Agreement,  Receivables  Loan
Agreement, other agreement,  instrument,  promissory note, certificate,  Uniform
Commercial Code financing statement or document;

     (e) to borrow funds pursuant to either such Receivables Loan Agreements and
issue  evidences  of  indebtedness  in respect  thereof,  and to grant  security
interests  in  Receivables  to  secure  its  obligations  under  either  of such
Receivables Loan  Agreements,  but only to pay the purchase price of Receivables
purchased  under the  Purchase and Sale  Agreement or to reduce any  outstanding
amounts  owing  under the  Subordinated  Notes  payable  by the  Company  to the
Originator  under the Purchase and Sale Agreement and to secure such  borrowings
and indebtedness,  as well as obligations  incurred by the Company in connection
therewith with (and pledge and grant liens on and security  interests in) assets
acquired  from time to time by the  Company and by other  assets and  properties
which the Company owns from time to time or in which it  otherwise  has a right,
title or interest;

     (f) to carry out all of its  obligations  and  exercise  all of its  rights
under the agreements,  instruments,  promissory notes,  certificates,  financing
statements or documents set forth in Section 7(e);

     (g) to engage in any  lawful act or  activity  and to  exercise  any powers
permitted to limited liability  companies  organized under the laws of the State
of Delaware  that, in either case, are incidental to and necessary or convenient
for the accomplishment of the above-mentioned purposes; and

     (h) the purposes of the Company shall not be significantly  changed without
the prior  written  consent of each  person or entity  that  holds a  beneficial
interest, as that term is defined in FASB 140 ("Beneficial Interests") or, in or
pledged by the Company.

Section 8. Powers.
           -------

     Subject to any limitations  set forth in this Agreement,  including but not
limited  to those set forth in  Section  10(k),  the  Company,  and the Board of
Managers and the  Officers of the Company on behalf of the  Company,  shall have
and exercise all powers  necessary,  convenient or incidental to accomplish  its
purposes as set forth in Section 7.

Section 9. Limitation on Purpose and Powers.
           ---------------------------------

     Notwithstanding  the above enumerated  purposes and powers,  the Company is
intended to qualify and  conduct  business as a QSPE and any  purposes or powers
stated  above that are  contrary to the  following  limited  purposes and powers
shall be null and void and of no effect:

     (a) The Company may hold only:

          (i) financial assets transferred to it that are passive in nature;

          (ii) passive derivative financial instruments pertaining to Beneficial
     Interests as defined in FASB 140, other than another  derivative  financial
     instrument,  that is issued or sold to parties  other than a transferor  of
     assets to the Company or such transferor's affiliates or agents;

          (iii)  financial  assets,  such as guarantees or rights to collateral,
     that are intended to reimburse the Company if financial assets  transferred
     to the Company are not  adequately  serviced  by  third-parties  or if such
     third  parties fail to timely pay  obligations  due to the Company and that
     the  Company  entered  into  when  it was  established,  when  assets  were
     transferred  to it, or when  Beneficial  Interests,  other than  derivative
     financial instruments, were issued by the Company;

          (iv) servicing rights related to the financial assets that it holds;

          (v) temporarily,  nonfinancial  assets obtained in connection with the
     collection of financial assets that the Company holds; and

          (vi) cash that is collected from assets that it holds and  investments
     purchased  with  such  cash  pending  distribution  to the  holders  of the
     Company's  Beneficial Interests so long as such investments are appropriate
     for  such  purpose  such as money  market  or  other  relatively  risk-free
     instruments  without options and with maturities no later than the expected
     distribution date.

     (b) The Company  may only sell or  otherwise  dispose of noncash  financial
assets in automatic response to one of the following conditions:

          (i) the occurrence of an event or  circumstance  that (a) is specified
     in this agreement or the agreements that create the Beneficial Interests in
     the transferred  assets that the Company holds;  (b) is outside the control
     of a transferor of assets to the Company or such transferor's affiliates or
     agents;  and (c)  causes,  or is expected at the date of transfer to cause,
     the fair value of those financial  assets to decline by a specified  degree
     below the fair value of such assets when the Company obtained them;

          (ii) exercise by a holder of the Beneficial  Interests of the Company,
     that is an entity other than a transferor  of assets to the Company or such
     transferor's  affiliates  or  agents,  of its  right to put its  beneficial
     interest back to the Company;

          (iii)  exercise by a transferor  of assets to the Company of a call or
     removal-of-accounts  provision  specified in this  agreement,  an agreement
     transferring assets to the Company, or an agreement creating the Beneficial
     Interests in the transferred assets that the Company holds; and

          (iv)  termination  of  the  Company  or  maturity  of  the  Beneficial
     Interests in the financial assets of the Company on a fixed or determinable
     date that is specified at the inception of the Company.

Section 10. Management.
            -----------

     (a) Board of Managers.  Subject to Section 10(k),  the business and affairs
         ------------------
of the Company shall be managed,  by or under the direction of, a board of three
(3) Managers.  Each Manager  elected,  designated or appointed shall hold office
until a  successor  is elected and  qualified  or until such  Manager's  earlier
death,  resignation,  expulsion,  incapacity or removal.  Managers need not be a
Member.  The Managers  shall be James E. Rogers,  Mary S. Stawikey and Carrie L.
Tillman, of whom two (2) shall be the Independent Managers, as defined below.

     (b)  Independent  Managers.  At all  times,  at  least  two  Managers  (the
          ----------------------
"Independent  Managers"  and  individually,  an  "Independent  Manager")  of the
Company shall be persons who meet the following criteria:

          (i) Has at least  five (5) years of  business,  legal,  financial,  or
     other equivalent experience;

          (ii) Is not, and during the three (3) years prior to being  designated
     as an Independent Manager has not been, any of the following:

               (A) A customer or  supplier of any member of the Parent  Group as
          defined in Section 10(k) below);

               (B) A  shareholder  (whether  direct,  indirect,  or  beneficial)
          holding  more than one percent  (1%) of the  outstanding  stock of any
          member of the Parent Group;

               (C) An officer or employee of any member of the Parent Group;

               (D)  Engaged in any  business  transaction  or series of business
          transactions  for profit  (including  banking,  legal,  or  consulting
          services)  involving more than Ten Thousand Dollars ($10,000) with any
          member of the Parent Group; or

               (E) An Affiliate,  executive officer,  general partner, or member
          of the  immediate  family of any person that had the status or engaged
          in a transaction described in any of the above subparagraphs; and

          (iii) Does not propose to, and will not, while an Independent  Manager
     of the  Company,  enter into a  relationship  or  transaction  described in
     subsection (ii) above.

If an Independent Manager dies, resigns, is expelled,  becomes  incapacitated or
is removed,  or such  position is  otherwise  vacant,  no action  requiring  the
unanimous  vote  of  the  Board  of  Managers  of the  Company  shall  be  taken
(including,  without  limitation,  any action  pursuant  to Section  20) until a
successor  Independent  Manager is elected and  qualified  and  approves of such
action. In the event of the death, resignation, expulsion, incapacity or removal
of an  Independent  Manager,  or a vacancy  for any other  reason,  a  successor
Independent Manager shall be appointed by the remaining Managers. An Independent
Manager,  in voting on matters  subject to the approval of the Board of Managers
of the Company,  shall at all times take into account the interests of creditors
of  the  Company,  in  addition  to the  interests  of the  Company  itself.  No
Independent  Manager may be removed for any reason  unless his or her  successor
has been appointed.

     (c) Powers.  Subject to Section 10(k), the Board of Managers shall have the
         -------
power to do any and all acts  necessary,  convenient or incidental to or for the
furtherance of the purposes  described herein,  except for those powers reserved
to the members by this Agreement or the Act.  Subject to Section 7, the Board of
Managers has the authority to bind the Company.

     (d)  Meeting  of the  Board of  Managers.  The Board of  Managers  may hold
          ------------------------------------
meetings,  both  regular and  special,  within or outside the State of Delaware.
Regular  meetings of the Board of Managers  may be held  without  notice at such
time and at such place as shall from time to time be  determined by the Board of
Managers.  Special  meetings  of the Board of  Managers  may be called only by a
majority of the  Managers or the  President on not less than one day's notice to
each Manager by telephone, facsimile, mail, telegram, courier, personal delivery
or any other means of communication.

     (e) Quorum; Acts of the Board of Managers.  At all meetings of the Board of
         --------------------------------------
Managers,  a  majority  of the  Managers  shall  constitute  a  quorum  for  the
transaction of business and, except as otherwise provided in any other provision
of this Agreement,  the act of a majority of the Managers present at any meeting
at which  there is a quorum  shall  be the act of the  Board of  Managers.  If a
quorum  shall  not be  present  at any  meeting  of the Board of  Managers,  the
Managers  present at such  meeting may  adjourn  the meeting  from time to time,
without notice other than  announcement at the meeting,  until a quorum shall be
present.  Any action  required  or  permitted  to be taken at any meeting of the
Board of Managers or of any committee  thereof may be taken without a meeting if
all members of the Board of Managers or committee,  as the case may be,  consent
thereto in writing,  and the  writing or writings  are filed with the minutes of
proceedings of the Board of Managers or committee, as the case may be.

     (f)  Electronic  Communications.  Members of the Board of Managers,  or any
          ---------------------------
committee  designated by the Board of Managers,  may  participate in meetings of
the Board of Managers,  or any  committee,  by means of telephone  conference or
similar  communications  equipment that allows all persons  participating in the
meeting to hear each other, and such participation in a meeting shall constitute
presence in person at the meeting.  If all the participants are participating by
telephone conference or similar communications  equipment,  the meeting shall be
deemed to be held at the principal place of business of the Company.

     (g) Committees of Managers.
         -----------------------

          (i) The Board of Managers may, by  resolution  passed by a majority of
     the  whole  Board  of  Managers,  designate  one or more  committees,  each
     committee  to consist of one or more of the  Managers of the  Company.  The
     Board of Managers may designate  one or more Managers as alternate  members
     of any committee,  who may replace any absent or disqualified member at any
     meeting of the committee.

          (ii) In the absence or  disqualification  of a member of a  committee,
     the member or members thereof  present at any meeting and not  disqualified
     from  voting,  whether  or  not  such  members  constitute  a  quorum,  may
     unanimously  appoint  another member of the Board of Managers to act at the
     meeting in the place of any such absent or disqualified member.

          (iii) Any such committee,  to the extent provided in the resolution of
     the Board of  Managers,  shall  have and may  exercise  all the  powers and
     authority  of the Board of Managers in the  management  of the business and
     affairs of the Company.  Such committee or committees  shall have such name
     or names as may be determined  from time to time by  resolution  adopted by
     the Board of Managers.  Each  committee  shall keep regular  minutes of its
     meetings and report the same to the Board of Managers when required.

     (h)  Compensation of Managers;  Expenses.  The Board of Managers shall have
          ------------------------------------
the  authority to fix the  compensation  of  Managers.  The Managers may be paid
their  expenses,  if any, of  attendance  at meetings of the Board of  Managers,
which may be a fixed sum for attendance at each meeting of the Board of Managers
or a stated salary as Manager.  No such payment shall  preclude any Manager from
serving the Company in any other capacity and receiving  compensation  therefor.
Members of special or standing  committees may be allowed like  compensation for
attending committee meetings.

     (i) Removal of Managers.  Unless otherwise restricted by law and subject to
         --------------------
Section 10(b) hereof,  any Manager  (including  an  Independent  Manager) or the
entire Board of Managers may be removed or expelled,  with or without cause,  at
any time by the Member,  and any vacancy caused by any such removal or expulsion
may be filled by action of the Member.

     (j)  Managers  as Agents.  To the extent of their  powers set forth in this
          --------------------
Agreement and subject to Section  10(k),  the Managers are agents of the Company
for the  purposes of the  Company's  business,  and the actions of the  Managers
taken in accordance  with such powers set forth in this Agreement shall bind the
Company.

     (k) Separateness Covenants. This Section 10(k) is being adopted in order to
         -----------------------
comply  with  certain  provisions  required in order to qualify the Company as a
QSPE.

     The Company shall:

          (i) ensure  that at all times at least ten  percent  (10%) of the fair
     value  of its  Beneficial  Interests  are  held  by  parties  other  than a
     transferor  of assets to the  Company or such  transferor's  affiliates  or
     agents;

          (ii) not  commingle  its assets with those of any member of the Parent
     Group or any  Affiliate  or  subsidiary  of any member of the Parent  Group
     (except for the temporary  commingling of collections of the Receivables as
     specifically provided in the agreements under which the Company effects the
     transactions  with respect to the  Receivables  contemplated by clauses (a)
     through and including (d) of Section 7);

          (iii)  maintain (A) correct and complete books and records and minutes
     of the  meetings and the other  proceedings  of the Member and the Board of
     Managers and (B) such records, books and minutes separate from those of any
     member of the Parent Group;

          (iv)  have  its own  principal  executive  and  administrative  office
     through which its business is conducted (which,  however, may be within the
     premises of and leased from any member of the Parent  Group)  separate from
     those of any Originator;

          (v) maintain books and records separate from any other Person;

          (vi) conduct its own affairs in its own name;

          (vii) maintain and periodically prepare separate financial statements;

          (viii) pay its own liabilities out of its own funds;

          (ix)  observe  all  organizational   formalities,   including  holding
     appropriate  meetings in  connection  with the  activities of the Member as
     required by the Act, the Certificate of Formation or this Agreement;

          (x) maintain an  "arm's-length  relationship"  with each member of the
     Parent Group;

          (xi) pay the salaries,  if any, of its own Officers and employees,  if
     any;

          (xii) comply at all times with the  limitations  and  requirements  of
     Section 9.

          (xiii) not  guarantee or become  obligated  for the debts of any other
     Person or hold out its credit as being available to satisfy the obligations
     of others;

          (xiv)  maintain   separate   office  space  and  allocate  fairly  and
     reasonably  any  overhead  for office  space  shared with any member of the
     Parent Group;

          (xv) use  stationery,  invoices and checks  through which all business
     correspondence  and communication are conducted  separate from those of any
     member of the Parent Group;

          (xvi) not pledge its assets for the benefit of any other Person except
     pursuant to the purposes and activities contemplated by Section 7;

          (xvii) hold itself out as a separate entity;

          (viii) not engage, directly or indirectly, in any business or purposes
     other than the actions  required or permitted to be performed under Section
     7 and Section 10(k);

          (xix)  not  engage  in  any  merger,   consolidation   or  combination
     transaction with any Person;

          (xx) not take any action inconsistent with Section 20; and

          (xxi) not incur debt except  pursuant to the purposes  and  activities
     contemplated by Section 7.

          (xxii) not  significantly  change the purposes of the Company  without
     the prior  written  consent of each person or entity that holds  Beneficial
     Interests in, or pledged by, the Company.

     This Section  10(k) shall not limit the  obligations  of the Company  under
Section  19(b).  The  Member  shall not  amend,  alter,  change  or  repeal  the
definition of "Independent  Managers" or Sections 7, 8, 10(b),  10(k), 19(c), 20
or 29 or this paragraph of this Agreement  without the unanimous written consent
of the Board of Managers (including both Independent Managers).  Subject to this
Section 10(k), the Member reserves the right to amend,  alter,  change or repeal
any provisions contained in this Agreement in accordance with Section 29.

     For purposes hereof,  "Parent Group" shall mean (A) Cinergy Corp., (B) each
Person that, directly or indirectly, owns or Controls, whether beneficially,  or
as a trustee,  guardian or other  fiduciary,  stock having ten percent  (10%) or
more of the voting power in the election of directors of Cinergy Corp., (C) each
Person that  Controls,  is Controlled by or is under common Control with Cinergy
Corp,  including  specifically  the  Originators  and (D) each of such  Person's
officers, directors, joint venturers and partners.

Section 11. Officers.
            ---------

     (a)  Officers.  The initial  Officers of the Company shall be chosen by the
          ---------
Member and shall  consist of at least a President,  a Secretary and a Treasurer.
The  Officers  of the  Company  may also  include  one or more Vice  Presidents,
Assistant  Secretaries  and Assistant  Treasurers.  Any number of offices may be
held by the same  person.  Upon and  after  the  establishment  of the  Board of
Managers, the Board of Managers may appoint such other Officers and agents as it
shall deem  necessary or advisable  who shall hold their  offices for such terms
and shall  exercise  such powers and perform such duties as shall be  determined
from time to time by the Board of  Managers.  The  salaries of all  Officers and
agents of the Company shall be fixed by or in the manner prescribed by the Board
of  Managers.  The  Officers  of the  Company  shall  hold  office  until  their
successors  are chosen and  qualified.  Any Officer  initially  appointed by the
Member or at any time  elected  or  appointed  by the Board of  Managers  may be
removed  at any  time,  with or  without  cause,  by the  affirmative  vote of a
majority of the Board of  Managers.  Any vacancy  occurring in any office of the
Company shall be filled by the Board of Managers.

     (b) President.  The President shall be the chief  executive  officer of the
         ----------
Company,  shall  preside  at all  meetings  of the Board of  Managers,  shall be
responsible for the general and active management of the business of the Company
and shall see that all  orders  and  resolutions  of the Board of  Managers  are
carried  into  effect.  The  President or any other  Officer  authorized  by the
President or the Board of Managers shall execute all bonds,  mortgages and other
contracts,  except:  (i) where required or permitted by law or this Agreement to
be otherwise signed and executed; (ii) where signing and execution thereof shall
be expressly  delegated by the Board of Managers to some other  Officer or agent
of the Company; and (iii) as otherwise permitted in Section 11(c).

     (c) Vice President.  In the absence of the President or in the event of the
        ----------------
President's inability to act, the Vice President,  if any (or in the event there
be more than one Vice President,  the Vice Presidents in the order designated by
the Managers,  or in the absence of any designation,  then in the order of their
election),  shall perform the duties of the President, and when so acting, shall
have  all  the  powers  of and be  subject  to all  the  restrictions  upon  the
President. The Vice Presidents, if any, shall perform such other duties and have
such other powers as the Board of Managers may from time to time prescribe.

     (d) Secretary and Assistant  Secretary.  The Secretary shall be responsible
         -----------------------------------
for  filing  legal  documents  and  maintaining  records  for the  Company.  The
Secretary  shall attend all meetings of the Board of Managers and record all the
proceedings  of the  meetings  of the  Company and of the Board of Managers 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 shall cause to be given,
notice of all meetings of the Member,  if any, and special meetings of the Board
of Managers,  and shall  perform such other duties as may be  prescribed  by the
Board of Managers or the President,  under whose supervision the Secretary shall
serve.  The  Assistant  Secretary,  or if there be more than one, the  Assistant
Secretaries in the order  determined by the Board of Managers (or if there be no
such determination,  then in order of their election),  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 Board of Managers may from time to time
prescribe.

     (e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody
         ----------------------------------
of the Company funds and securities and shall keep full and accurate accounts of
receipts and  disbursements  in books belonging to the Company and shall deposit
all  moneys  and other  valuable  effects  in the name and to the  credit of the
Company in such depositories as may be designated by the Board of Managers.  The
Treasurer shall disburse the funds of the Company as may be ordered by the Board
of Managers, taking proper vouchers for such disbursements,  and shall render to
the President and to the Board of Managers,  at its regular meetings or when the
Board of Managers so requires, an account of all of the Treasurer's transactions
and of the financial condition of the Company.  The Assistant  Treasurer,  or if
there shall be more than one, the Assistant  Treasurers in the order  determined
by the  Board of  Managers  (or if there be no such  determination,  then in the
order of their election), shall, in the absence of the Treasurer or in the event
of the Treasurer's  inability to act, perform the duties and exercise the powers
of the  Treasurer and shall perform such other duties and have such other powers
as the Board of Managers may from time to time prescribe.

     (f)  Officers as Agent.  The  Officers,  to the extent of their  powers set
          ------------------
forth in this  Agreement or  otherwise  vested in them by action of the Board of
Managers not inconsistent with this Agreement, are agents of the Company for the
purpose of the Company's  business and, subject to Section 10(k), the actions of
the Officers taken in accordance with such powers shall bind the Company.

     (g)  Duties  of  Board of  Managers  and  Officers.  Except  to the  extent
          ----------------------------------------------
otherwise  specifically  provided herein,  each Manager and Officer shall have a
fiduciary  duty of loyalty and care similar to that of directors and officers of
business  corporations  organized under the General Corporation Law of the State
of Delaware.

Section 12. Limited Liability.
            ------------------

     No Member,  Officer,  Manager or employee of the Company shall be obligated
personally or liable for the debts,  obligations  and liabilities of the Company
whether  arising  in  contract,  tort or  otherwise  solely by reason of being a
member or acting as an Officer,  Manager or employee of the Company.  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.

Section 13. Capital Contributions.
            ----------------------

     The Member has contributed or will  contribute,  to the Company property of
an agreed value as listed on Schedule B attached hereto.

Section 14. Additional Contributions.
            -------------------------

     The Member is not required to make any additional  capital  contribution to
the Company.  However,  the Member may make additional capital  contributions to
the  Company at any time upon the written  consent of the Member.  To the extent
that the Member makes an additional  capital  contribution  to the Company,  the
Member  shall  revise  Schedule  B of this  Agreement.  The  provisions  of this
Agreement,  including this Section 14, are intended solely to benefit the Member
and,  to the  fullest  extent  permitted  by  law,  shall  not be  construed  as
conferring any benefit upon any creditor of the Company (and no such creditor of
the Company shall be a third-party beneficiary of this Agreement) and the Member
shall not have any duty or obligation to any creditor of the Company to make any
contribution  to the Company or to issue any call for  capital  pursuant to this
Agreement.

Section 15. Distributions.
            --------------

     Distributions shall be made to the Member at the times and in the aggregate
amounts  determined by the Board of Managers.  Notwithstanding  any provision to
the contrary  contained in this Agreement,  the Company shall not be required to
make a  distribution  to the Member on account of its interest in the Company if
such distribution would violate any provision of the Act or any other applicable
law.

Section 16. Books and Records.
            ------------------

     The Board of Managers  shall keep or cause to be kept complete and accurate
books of account and records with respect to the Company's  business.  The books
of the Company shall at all times be  maintained  by the Board of Managers.  The
Member and its duly authorized  representatives  shall have the right to examine
the Company  books,  records and documents  during normal  business  hours.  The
Company, and the Board of Managers on behalf of the Company,  shall not have the
right to keep  confidential  from the Member any  information  that the Board of
Managers  would  otherwise  be permitted  to keep  confidential  from the Member
pursuant  to the Act.  The  Company's  books of account  shall be kept using the
method  of  accounting  determined  by the  Member.  The  Company's  independent
auditor,  if any, shall be an independent public accounting firm selected by the
Member.

Section 17. Reports.
            --------

     (a) The  Board  of  Managers  shall  use  diligent  efforts  to cause to be
prepared  and  delivered  to the  Member,  within 90 days  after the end of each
fiscal year, an audited or unaudited  report setting forth as of the end of such
fiscal year:

          (i) a balance sheet of the Company;

          (ii) an income statement of the Company for such fiscal year; and

          (iii) a statement of the Member's capital account.

     (b) The Board of Managers  shall,  after the end of each fiscal  year,  use
reasonable efforts to cause the Company's  independent  accountants,  if any, to
prepare  and  transmit  to the  Member  as  promptly  as  possible  any such tax
information  as may be reasonably  necessary to enable the Member to prepare its
federal, state and local income tax returns relating to such fiscal year.

Section 18. Other Business.
            ---------------

     The  Member  and any  Affiliate  of 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.

Section 19. Exculpation and Indemnification.
            --------------------------------

     (a) None of the Member,  any  Officer,  Manager or employee or agent of the
Company and no  employee,  representative,  agent,  member or  Affiliate  of the
Member  (collectively,  the "Covered Persons") shall be liable to the Company or
any other  Person who has an  interest  in or claim  against the Company for any
loss,  damage or claim  incurred by reason of any act or omission  performed  or
omitted by such Covered  Person in connection  with any matter  arising from, or
related to, or in connection  with this  Agreement or the Company's  business or
affairs; provided,  however, that the foregoing shall not eliminate or limit the
liability  of any  Covered  Person if a  judgment  or other  final  adjudication
adverse to the Covered  Person  establishes  that the Covered  Person's  acts or
omissions  were in bad faith or  involved  intentional  misconduct  or a knowing
violation  of law or  that  the  Covered  Person  personally  gained  in  fact a
financial  profit or other advantage to which the Covered Person was not legally
entitled.

     (b)  The  Company  shall,  to the  fullest  extent  permitted  by the  Act,
indemnify  and hold  harmless,  and advance  expenses  to, each  Covered  Person
against any losses,  claims,  damages or liabilities to which the Covered Person
may become subject in connection with any matter arising from, related to, or in
connection with, this Agreement or the Company's business or affairs;  provided,
however,  that no  indemnification  may be made to or on behalf  of any  Covered
Person if a judgment or other final  adjudication  adverse to the Covered Person
establishes  (i) that acts of the Covered  Person were committed in bad faith or
were the result of active and  deliberate  dishonesty  and were  material to the
cause of action so adjudicated or (ii) that the Covered Person personally gained
in fact a financial  profit or other  advantage to which the Covered  Person was
not legally entitled.

     (c)  Notwithstanding   anything  else  contained  in  this  Agreement,  the
indemnity obligations of the Company under paragraph (b) above shall:

          (i) be in addition  to any  liability  that the Company may  otherwise
     have;

          (ii)  inure to the  benefit of the  successors,  assigns,  heirs,  and
     personal representatives of each Covered Person; and

          (iii) be  limited to funds of the  Company  that  would  otherwise  be
     available for distribution to the Member.

Notwithstanding  any other provision of this  Agreement,  the Company shall not,
and shall not be obligated to, pay any amount pursuant to this Section 19 unless
the  Company has  received  funds or has funds on hand which may be used to make
such payment and which funds are not required to repay any other  obligations of
the Company  when due. Any amount which the Company does not pay pursuant to the
operation of the  preceding  sentence  shall not  constitute a claim (as defined
inss.101 of the  Bankruptcy  Code)  against,  or  corporate  obligation  of, the
Company.

     (d)  The  foregoing  provisions  of  this  Section  19  shall  survive  any
termination of this Agreement and the dissolution of the Company.

Section 20. Bankruptcy Proceedings.
            -----------------------

     Notwithstanding  any other provision of this Agreement and any provision of
law that  otherwise so empowers the  Company,  the Company  shall not (i) at any
time while the Company is not Insolvent (as defined in the Bankruptcy Code), and
(ii) at any time while the Company is  Insolvent,  without  the prior  unanimous
consent of all of the members of the Board of Managers of the Company (including
both  Independent  Managers),  voluntarily  commence any  proceeding or file any
petition  under  any  bankruptcy,  insolvency,  reorganization,  liquidation  or
similar law (including  the filing of a voluntary  petition under Section 301 of
the Bankruptcy Code), make an assignment for the benefit of creditors or declare
or effect a moratorium on its debt.  This Section 20 may not be amended  without
the  unanimous  consent of all of the  members of the Board of  Managers  of the
Company.

Section 21. Restrictions on Transferability.
            --------------------------------

     The   membership   interest  in  the   Company  of  the  Member   shall  be
non-assignable  and  non-transferrable  and may not be pledged,  hypothecated or
otherwise encumbered. Any purported assignment,  transfer, pledge, hypothecation
or other  encumbrance  of the  membership  interest of the Member in the Company
shall be void.  The  Member  shall  not be  expelled  as the  Member  under  any
circumstances.  Notwithstanding  anything in this Agreement to the contrary, any
successor to the Member by merger or consolidation  shall,  without further act,
be the

Member  hereunder,  and such merger or  consolidation  shall not  constitute  an
assignment or transfer for purposes of this Agreement.

Section 22. Admission of Additional Members.
            --------------------------------

     One or more  additional  members  of the  Company  may be  admitted  to the
Company with the written consent of the Member.

Section 23. Dissolution.
            ------------

     (a) Pursuant to Section  18-801 of the Act, and subject to Section 7 herein
and this Section 23, the Company shall dissolve,  and its affairs shall be wound
up, only upon the earliest to occur of any of the following  events  (which,  in
the case of the events  described in paragraph (iii) of this Section 23(a),  and
in all others cases unless the Member (or a successor  member or members) agrees
to continue  the  business of the Company  after the  occurrence  of such event,
shall constitute a "Dissolution Event"):

          (i)  one  year  and  one  day  following  the  full  and  indefeasible
     satisfaction  of all the  Company's  indebtedness,  liabilities  and  other
     obligations pursuant to or in connection with any agreements or instruments
     entered into pursuant to Section 7(d) herein;

          (ii) at any time  there are no  members  of the  Company,  unless  the
     business  of the Company is  continued  without  dissolution  in the manner
     described below;

          (iii) the entry of a decree of judicial dissolution under the Act; and

          (iv)  the  sale  of all or  substantially  all  of the  assets  of the
     Company;  other than by the  operation  of the  agreements  or  instruments
     entered into pursuant to Section 7(d) herein.

     (b) Notwithstanding  any other provision in this Agreement,  the bankruptcy
(as defined in section  18-101(1) and 18-304 of the Act) of the Member shall not
cause the Member to cease to be a member of the Company, and upon the occurrence
of such an  event,  the  business  of the  Company  shall be  continued  without
dissolution.  The dissolution of the Member or the occurrence of any other event
that terminates the continued  membership of the Member of the Company shall not
cause the  Company to be  dissolved  or its affairs to be wound up, and upon the
occurrence  of  any  such  event,   the  Company  shall  be  continued   without
dissolution.  To the extent such action would lead to a result inconsistent with
the  provisions  of this  Section  23, the Member  agrees  not to  withdraw  its
interest  as a member in the  Company.  In the event there are no members of the
Company, to the fullest extent permitted by law, the personal  representative of
the  Member  is hereby  authorized  to,  and  shall,  within  90 days  after the
occurrence of the event that  terminated  the  continued  membership of the last
remaining  member in the  Company,  agree in writing (i) to continue the Company
and (ii) to the  admission  of the  personal  representative  or its  nominee or
designee,  as the case may be, as a substitute member of the Company,  effective
as of the occurrence of the event that  terminated  the continued  membership of
the Member in the Company.

     (c) Upon  liquidation,  amounts  in respect  of the  proceeds  of a sale of
Company  assets  shall first be applied to payment of all Company  debts,  fees,
costs and expenses and then shall be distributed to the Member.

     (d) The Company  shall not be dissolved  for any other  reason  without the
prior  written  consent of each person or entity that  provides  financing to or
otherwise holds Beneficial Interests of, in or pledged by the Company.

Section 24. Waiver of Partition; Nature of Interest.
            ----------------------------------------

     Except as otherwise  expressly  provided in this Agreement,  to the fullest
extent permitted by law, the Member hereby irrevocably waives any right or power
that the  Member  might  have to cause the  Company  or any of its  assets to be
partitioned,  to cause the  appointment  of a receiver for all or any portion of
the  assets of the  Company,  to compel  any sale of all or any  portion  of the
assets of the Company  pursuant to any  applicable law or to file a complaint or
to  institute  any  proceeding  at law or in equity  to cause  the  dissolution,
liquidation, winding up or termination of the Company. The Member shall not have
any  interest in any specific  assets of the  Company,  and the Member shall not
have the  status of a creditor  with  respect to any  distribution  pursuant  to
Section 15  hereof.  The  interest  of the  Member in the  Company  is  personal
property.

Section 25. Benefits of Agreement; No Third-Party Rights.
            ---------------------------------------------

     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.
Nothing  in this  Agreement  shall be deemed to create  any right in any  Person
(other than Covered Persons) not a party hereto, and this Agreement shall not be
construed in any respect to be a contract in whole or in part for the benefit of
any third Person.

Section 26. Severability of Provisions.
            ---------------------------

     Each provision of this Agreement  shall be considered  severable 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.

Section 27. Entire Agreement.
            -----------------

     This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof.

Section 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.

Section 29. Amendments.
            -----------

     Subject to Section  10(k),  this  Agreement  may not be modified,  altered,
supplemented or amended, (i) except pursuant to a written agreement executed and
delivered by the Member, and (ii) in any material respect, except with the prior
written consent of each person or entity that provides financing to or otherwise
holds Beneficial Interests of, in or pledged by the Company.

Section 30. Counterparts.
            -------------

     This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this  Agreement and all of which  together  shall
constitute one and the same instrument.

Section 31. Notices.
            --------

     Any notices  required  to be  delivered  hereunder  shall be in writing and
personally  delivered,  mailed or sent by  facsimile,  electronic  mail or other
similar form of rapid transmission,  and shall be deemed to have been duly given
upon  receipt (a) in the case of the  Company,  to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached  hereto,  and (c) in the case of either of the foregoing,
at such other address as may be  designated by written  notice to the Company or
the Member, as the case may be.

Section 32. Effectiveness.
            --------------

     Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective
as of the date first above written.


                                                          [Signature Follows]

IN WITNESS WHEREOF,  the undersigned,  intending to be legally bound hereby, has
duly  executed  this Limited  Liability  Company  Agreement as of the date first
above written.


                                    MEMBER:

                                    CINERGY CORP.

                                    By:__________________________________
                                    Name:  Charles J. Winger
                                    Title:  Vice President








                                   SCHEDULE A

                                   Definitions
                                   -----------

A.   Definitions
     -----------

     When used in this  Agreement,  the following  terms not  otherwise  defined
herein have the following meanings:

     "Act" has the meaning set forth in the preamble to this Agreement.
     -----

     "Affiliate" means, with respect to any Person, any other Person directly or
     -----------
indirectly  Controlling  or  Controlled  by or under  direct or indirect  common
Control with such Person.

     "Agreement"  means this Limited Liability Company Agreement of the Company,
     -----------
together  with  the  schedules   attached  hereto,   as  amended,   restated  or
supplemented or otherwise modified from time to time.

     "Bankruptcy  Code" means the  provisions  of title 11 of the United  States
     ------------------
Code, 11 U.S.C.ss.ss.101 et seq., as amended from time to time.

     "Beneficial  Interests"  has the meaning set forth in section  7(h) of this
     -----------------------
Agreement

     "Board of Managers" means the Board of Managers of the Company  established
     -------------------
pursuant to Section 10.

     "Certificate  of  Formation"  means the  Certificate  of  Formation  of the
     ----------------------------
Company  filed with the  Secretary  of State of the State of Delaware on January
10, 2002, as amended or amended and restated from time to time.

     "Company"  means  Cinergy  Receivables  Company  LLC,  a  Delaware  limited
     ---------
liability company.

     "Control"  means the  possession,  directly or indirectly,  or the power to
     ---------
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting  securities or general  partnership  or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings.  Without limiting the generality of the foregoing,  a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.

     "Covered Persons" has the meaning set forth in Section 19(a).
     -----------------

     "Managers" means the Managers elected to the Board of Managers from time to
     ----------
time by the Member. A Manager is hereby designated as a "manager" of the Company
within the meaning of Section 18-101(10) of the Act.

     "Independent  Managers"  and  "Independent  Managers"  have the meaning set
     -----------------------       -----------------------
forth in Section 10(b).

     "Member"  means Cinergy Corp.,  as the initial  member of the Company,  and
     --------
includes  any  Person  admitted  as an  additional  member of the  Company  or a
substitute member of the Company pursuant to the provisions of this Agreement.

     "Officer" means an officer of the Company described in Section 11.
     ---------

     "Originators" means The Cincinnati Gas & Electric Company, PSI Energy, Inc.
     -------------
and The  Union  Light,  Heat  and  Power  Company,  each a  direct  or  indirect
wholly-owned subsidiary of the Member.

     "Parent Group" has the meaning set forth in Section 10(k).
     --------------

     "Person" means any  individual,  corporation,  partnership,  joint venture,
     --------
limited liability company,  limited liability  partnership,  association,  joint
stock  company,  trust,  unincorporated  organization,  or  other  organization,
whether or not a legal entity, and any governmental authority.

     "Receivable" is defined in Section 7.
     ------------

     "Stock" means all shares, options, warrants, general or limited partnership
     -------
interests,  membership interests,  units or other equivalents (regardless of how
designated) of or in a corporation,  partnership,  limited  liability company or
equivalent entity whether voting or nonvoting, including common stock, preferred
stock, trust certificates,  membership  interests or any other "equity security"
(as such term is defined in Rule  3a11-1 of the  General  Rules and  Regulations
promulgated  by the  Securities  and Exchange  Commission  under the  Securities
Exchange Act of 1934).

     "Stockholder"  means,  with respect to any Person,  each holder of Stock of
     -------------
such Person.

     "Subordinated  Note" has the  meaning  set forth in Section  2.3.(b) of the
     --------------------
Purchase and Sale Agreement.


B.   Rules of Construction
     ---------------------

     Definitions in this Agreement apply equally to both the singular and plural
forms of the defined terms. The words "include" and "including"  shall be deemed
to be followed by the phrase "without  limitation." The terms "herein," "hereof"
and  "hereunder"  and other words of similar import refer to this Agreement as a
whole and not to any particular Section,  paragraph or subdivision.  The Section
titles  appear  as a  matter  of  convenience  only and  shall  not  affect  the
interpretation of this Agreement.  All Section,  paragraph,  clause,  Exhibit or
Schedule  references not attributed to a particular document shall be references
to such parts of this Agreement.



                                   SCHEDULE B

                                     Member
                                     ------

                                                 Agreed Value of     Membership
     Name              Mailing Address         Capital Contribution   Interest
     ----              ---------------         --------------------   --------

  Cinergy Corp.     139 East Fourth Street          $5,000,000          100%
                    Cincinnati, OH 45202
EX-99.2B 38 b-415.htm BY-LAWS OF CINFUEL RESOURCES By Laws CinFuel Resources 
                                     BY-LAWS



                                       OF



                             CinFuel Resources, Inc.





                                January 10, 2002



                                TABLE OF CONTENTS

                                    ARTICLE I
                                     Offices

Section 1.1.    Offices.

                                 ARTICLE II
                           Stockholders' Meetings

Section 2.1.    Annual Meeting.
Section 2.2.    Notice of Annual Meeting.
Section 2.3.    Special Meetings.
Section 2.4.    Notice of Special Meeting.
Section 2.5.    Waiver of Notice.
Section 2.6.    Quorum.
Section 2.7.    Voting.
Section 2.8.    Written Consent of Stockholders in Lieu of Meeting.

                                 ARTICLE III
                                  Directors

Section 3.1.    Duties and Powers.
Section 3.2.    Number and Election of Directors.
Section 3.3.    Vacancies.
Section 3.4.    Meetings.
Section 3.5.    Quorum.
Section 3.6.    Actions of Board.
Section 3.7.    Meetings by Means of Conference Telephone.
Section 3.8.    Committees.
Section 3.9.    Compensation
Section 3.10.   Contracts and Transactions Involving Directors


                                 ARTICLE IV
                                  Officers

Section 4.1.    Officers.
Section 4.2.    Appointment, Terms, and Vacancies.
Section 4.3.    Chairman of the Board.
Section 4.4.    Chief Executive Officer
Section 4.5.    President.
Section 4.6.    Vice Presidents.
Section 4.7(a). Secretary.
Section 4.7(b). Assistant Secretaries.
Section 4.8.    Treasurer.
Section 4.9.    Comptroller.
Section 4.10.   Other Officers.

                                  ARTICLE V
                                Capital Stock

Section 5.1.    Form and Execution of Certificates.
Section 5.2.    Signatures.
Section 5.3.    Lost Certificates.
Section 5.4.    Transfers.
Section 5.5.    Record Date.
Section 5.6.    Beneficial Ownership Rights.

                                 ARTICLE VI
                                   Notices

Section 6.1.    Notices.
Section 6.2.    Waivers of Notice.

                                 ARTICLE VII
                             General Provisions

Section 7.1.    Dividends.
Section 7.2.    Disbursements.
Section 7.3.    Voting Securities Owned by the Corporation.
Section 7.4.    Fiscal Year.
Section 7.5.    Corporate Seal.


                                ARTICLE VIII
                               Indemnification

Section 8.1.    Power to Indemnify in Actions, Suits or Proceedings
                Other than Those By or in the Right of the Corporation.
Section 8.2.    Power to Indemnify in Actions, Suits or Proceedings
                By or in the Right of the Corporation.
Section 8.3.    Authorization of Indemnification.
Section 8.4.    Good Faith Defined.
Section 8.5.    Indemnification by a Court.
Section 8.6.    Expenses Payable in Advance.
Section 8.7.    Nonexclusivity of Indemnification and Advancement of Expenses.
Section 8.8.    Insurance.
Section 8.9.    Certain Definitions.
Section 8.10.   Survival of Indemnification and Advancement of Expenses.
Section 8.11.   Limitation on Indemnification.
Section 8.12.   Indemnification of Employees and Agents.

                                 ARTICLE IX
                                 Amendments

Section 9.1.    Amendments.

                                  ARTICLE X
                              Emergency By-Laws

Section 10.1.   Emergency By-Laws.



                                   By-Laws

                                       Of

                             CinFuel Resources, Inc.

                     (hereinafter called the "Corporation")



                                    ARTICLE I

                                     Offices

     Section  1.1.  Offices.  To  the  extent  not  otherwise  provided  in  the
Certificate of  Incorporation,  the principal office of the Corporation shall be
at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such
other  offices at such other places as the Board of  Directors  may from time to
time determine, or as the business of the Corporation may require.

                                   ARTICLE II

                             Stockholders' Meetings

     Section 2.1. Annual Meeting.  The annual meeting of the stockholders may be
held at such place,  time, and date designated by the Board of Directors for the
election of directors,  the  consideration  of the reports to be laid before the
meeting, and the transaction of such other business as may be brought before the
meeting.

     Section 2.2. Notice of Annual  Meeting.  Notice of the annual meeting shall
be given in  writing  to each  stockholder  entitled  to vote  thereat,  at such
address as appears on the records of the  Corporation at least ten (10) days and
not more than forty-five (45) days prior to the meeting.

     Section 2.3. Special Meetings.  Special meetings of the stockholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer, or
the President,  or by a majority of the members of the Board of Directors acting
with or without a  meeting,  or by the  persons  who hold in the  aggregate  the
express  percentage,  as  provided  by statute,  of all shares  outstanding  and
entitled to vote thereat,  upon notice in writing,  stating the time,  place and
purpose of the meeting.  Business  transacted at all special  meetings  shall be
confined to the objects stated in the call.

     Section 2.4. Notice of Special  Meeting.  Notice of a special  meeting,  in
writing,  stating the time,  place and purpose  thereof,  shall be given to each
stockholder  entitled to vote  thereat,  at least  twenty (20) days and not more
than forty-five (45) days prior to the meeting.



     Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any
meeting of stockholders may be waived by the written assent of every stockholder
entitled  to  notice,  filed with or entered  upon the  records of the  meeting,
either before or after the holding thereof.  It shall not be required to specify
in the waiver of notice either the purpose of such meeting or the business to be
transacted  at such  meeting.  Attendance  of a  stockholder  at a meeting shall
constitute  a waiver of  notice of such  meeting,  except  when the  stockholder
attends a meeting for the express  purpose of objecting at the  beginning of the
meeting,  to the transaction of any business because the meeting is not lawfully
called or convened.

     Section 2.6.  Quorum.  The holders of shares  entitling  them to exercise a
majority of the voting  power,  or, if the vote is to be taken by  classes,  the
holders of shares of each class  entitling  them to  exercise a majority  of the
voting power of that class,  present in person or by proxy at any meeting of the
stockholders, unless otherwise specified by statute, shall constitute a quorum.

     If,  however,  at any meeting of the  stockholders,  a quorum shall fail to
attend in person  or by  proxy,  a  majority  in  interest  of the  stockholders
attending  in  person  or by proxy at the time  and  place of such  meeting  may
adjourn the meeting from time to time without further notice (unless the meeting
has been  adjourned for over thirty  days),  other than by  announcement  at the
meeting at which such  adjournment is taken,  until a quorum is present.  At any
such adjourned  meeting at which a quorum shall be present,  any business may be
transacted which might have been transacted at the meeting originally called.

     Section  2.7.  Voting.  At each  meeting  of the  stockholders,  except  as
otherwise provided by statute or the Certificate of Incorporation,  every holder
of record  of stock of the class or  classes  entitled  to vote at such  meeting
shall be entitled to vote in person or by proxy  appointed by an  instrument  in
writing  subscribed by such  stockholder and bearing a date, not later than such
time as expressly  provided by statute,  prior to said meeting unless some other
definite period of validity shall be expressly provided therein.

     Each  stockholder  shall have one (1) vote for each  share of stock  having
voting power, registered in his or her name on the books of the Corporation,  at
the date fixed for  determination of persons entitled to vote at the meeting or,
if no date has been fixed,  then as  expressly  provided by statute.  Cumulative
voting shall be permitted only as expressly provided by statute.

     At any meeting of  stockholders,  a list of stockholders  entitled to vote,
alphabetically  arranged,  showing the number and classes of shares held by each
on the date fixed for closing  the books  against  transfers  or the record date
fixed as  hereinbefore  provided  (or if no such  date has been  fixed,  then as
hereinbefore  stated as expressly  provided by statute) shall be produced on the
request of any  stockholder,  and such list shall be prima facie evidence of the
ownership of shares and of the right of  stockholders to vote, when certified by
the Secretary or by the agent of the  Corporation  having charge of the transfer
of shares.

     Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action
required or permitted by statute,  the  Certificate of  Incorporation,  or these
By-Laws,  to be taken at any annual or special  meeting of  stockholders  of the
Corporation,  may be taken without a meeting, without prior notice and without a
vote,  if a written  consent in lieu of a meeting,  setting  forth the action so
taken,  shall be signed by all the  stockholders  entitled to vote thereon.  Any
such  written  consent  may be  given  by one or  any  number  of  substantially
concurrent  written  instruments of  substantially  similar tenor signed by such
stockholders,  in person or by attorney or proxy duly appointed in writing,  and
filed with the records of the  Corporation.  Any such written  consent  shall be
effective as of the effective date thereof as specified therein.

                                   ARTICLE III

                                    Directors

     Section 3.1. Duties and Powers. The business and affairs of the Corporation
shall be managed by or under the  direction of the Board of Directors  which may
exercise  all such  powers of the  Corporation  and do all such  lawful acts and
things as are not,  by  statute,  the  Certificate  of  Incorporation,  or these
By-Laws, directed or required to be exercised or done by the stockholders.

     Section 3.2. Number and Election of Directors. The Board of Directors shall
consist of not less than three nor more than fifteen  members,  the exact number
of which shall be fixed by the Board of  Directors.  Directors  shall be elected
annually by stockholders at their annual  meeting,  in a manner  consistent with
statute and as provided in Article II,  Section 2.8 of these  By-Laws,  and each
director so elected  shall hold office until  his/her  successor is duly elected
and qualifies, or until his/her earlier resignation or removal. Any director may
resign at any time upon written notice to the Corporation. Directors need not be
stockholders  and shall  fulfill  residency  requirements  as and if provided by
statute.  Any  director  may be removed  at any time with or without  cause by a
majority vote of the stockholders, unless otherwise provided by statute.

     Section  3.3.  Vacancies.   Vacancies  and  newly  created   directorships,
resulting from any increase in the authorized number of directors, may be filled
by a majority of the directors then in office, and the directors so chosen shall
hold office for the  unexpired  term of the  predecessor  and/or  until the next
annual meeting of stockholders,  and until their successors are duly elected and
qualify, or until their earlier resignation or removal.

     Section 3.4.  Meetings.  Regular  meetings of the Board of Directors may be
held at such time,  place,  and upon such notice as the Board of  Directors  may
from time to time determine.  Special  meetings of the Board of Directors may be
called by the Chairman of the Board, the Chief Executive Officer, the President,
or by members of the board (the  express  percentage  of the latter as minimally
provided for by statute). Notice thereof stating the place, date and hour of the
meeting  shall  be  given  to each  director  either  by  mail  (not  less  than
forty-eight (48) hours before the date of the meeting), by telephone or telegram
(on  twenty-four  (24) hours' notice) or on such shorter notice as the person or
persons   calling  such  meeting  may  deem  necessary  or  appropriate  in  the
circumstances.

     Section 3.5. Quorum.  Except as may be otherwise  specifically provided for
by statute,  the Certificate of Incorporation or these By-Laws,  at all meetings
of the Board of  Directors,  a majority of the entire Board of  Directors  shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of  Directors.  If a quorum  shall not be present at any meeting of
the Board of Directors,  the directors  present  thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,  until
a quorum shall be present.

     Section 3.6. Actions of Board. Unless otherwise provided by the Certificate
of  Incorporation  of the  Corporation or these By-Laws,  any action required or
permitted  to be taken at any  meeting  of the  Board  of  Directors,  or of any
committee(s)  thereof, may be taken without a meeting, if all the members of the
Board of Directors, or of such committee(s), as the case may be, consent thereto
in writing,  and the  writing(s) is filed with the minutes of proceedings of the
Board  of  Directors,  or of such  committee(s),  of the  Corporation.  Any such
written  consent to action of the Board of Directors,  or of such  committee(s),
shall be effectuated by the signature of the member lastly consenting thereto in
writing,  unless the consent otherwise specified a prior or subsequent effective
date.

     Section 3.7.  Meetings by Means of Conference  Telephone.  Unless otherwise
provided  by the  Certificate  of  Incorporation  of the  Corporation  or  these
By-Laws,  members of the Board of Directors,  or any committee(s)  thereof,  may
participate in a meeting of the Board of Directors, or of such committee(s),  as
the case may be, by means of a 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 pursuant to this Section 3.7 shall
constitute presence in person at such meeting.

     Section 3.8.  Committees.  The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors,  designate, from time to time as
they may see fit,  one or more  committees,  each such  committee  to consist of
three or more of the  directors of the  Corporation.  The Board of Directors may
designate one or more  directors as alternate  members of any such committee who
may  replace  any  absent  or  disqualified  member at any  meeting  of any such
committee. In the absence or disqualification of a member of a committee, and in
the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present
at any meeting and not disqualified  from voting,  whether or not he/she or they
constitute a quorum,  may  unanimously  appoint  another  member of the Board of
Directors  to act at the  meeting  in the place of any  absent  or  disqualified
member.  Any  committee,  to the extent  allowed by statute and  provided in the
resolution  establishing  such  committee,  shall have and may  exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the  Corporation.  Each committee  shall keep regular minutes and
report to the Board of Directors when required.

     Section 3.9.  Compensation.  Each director of the  Corporation  (other than
directors who are salaried officers of the Corporation or any of its affiliates)
shall be  entitled  to receive as  compensation  for  services  such  reasonable
compensation,  which may include pension,  disability and death benefits, as may
be  determined  from  time  to  time  by  the  Board  of  Directors.  Reasonable
compensation  may also be paid to any person  other  than a director  officially
called to attend any such meeting.

     Section 3.10. Contracts and Transactions  Involving Directors.  No contract
or  transaction  between the  Corporation  and one or more of its  directors  or
officers,  or between the  Corporation and any other  corporation,  partnership,
association,  or other  organization  in which one or more of its  directors  or
officers are directors or officers, or have a financial interest,  shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction,  or solely because his/her
or their  votes are counted for such  purpose if: (i) the  material  facts as to
his/her or their  relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the  committee,  and the
Board of  Directors  or  committee  in good faith  authorizes  the  contract  or
transaction  by  the  affirmative  votes  of a  majority  of  the  disinterested
directors,  even though the  disinterested  directors be less than a quorum;  or
(ii) the material facts as to his/her or their  relationship  or interest and as
to the contract or  transaction  are disclosed or are known to the  stockholders
entitled to vote  thereon,  and the  contract  or  transaction  is  specifically
approved  in good faith by vote of the  stockholders;  or (iii) the  contract or
transaction  is  fair as to the  Corporation  as of the  time it is  authorized,
approved or  ratified,  by the Board of  Directors,  a committee  thereof or the
stockholders.  Common or interested  directors may be counted in determining the
presence of a quorum at a meeting of the Board of  Directors  or of a committee,
which authorizes the contract or transaction.

                                   ARTICLE IV

                                    Officers

     Section 4.1.  Officers.  The officers of the Corporation shall consist of a
President,  a Secretary,  and a Treasurer,  and may consist of a Chairman of the
Board, a Chief Executive  Officer,  a Comptroller,  one or more Vice Presidents,
one or more  Assistant  Secretaries,  and such other officers as the board shall
from time to time deem necessary.  Any number of offices may be held by the same
person,   unless   otherwise   prohibited  by  statute,   the   Certificate   of
Incorporation, or these By-Laws.

     Section 4.2. Appointment,  Terms, and Vacancies. The Board of Directors, at
its first  meeting  held  after  each  annual  meeting  of  stockholders  of the
Corporation (i.e., the annual  organization  meeting of the Board of Directors),
shall appoint the officers of the  Corporation  who shall hold their offices for
such terms and shall  exercise  such powers and perform  such duties as shall be
determined  from time to time by the board,  and such officers shall hold office
until their  successors  are chosen and shall  qualify,  or until their  earlier
resignation  or removal  from  office.  Any  officer  appointed  by the Board of
Directors  may be removed at any time by the  affirmative  vote of a majority of
the board.  Any  vacancy  occurring  in any office of the  Corporation  shall be
filled by the Board of Directors.

     Section 4.3.  Chairman of the Board. The Chairman of the Board, if there be
one,  shall be a  director  and shall  preside at all  meetings  of the Board of
Directors and, in the absence or incapacity of the Chief  Executive  Officer and
the President,  meetings of the stockholders,  and shall, subject to the board's
direction   and   control,   be  the  board's   representative   and  medium  of
communication,  and shall have the general  powers and duties as are incident to
the  office  of  Chairman  of the Board of a  corporation.  Section  4.4.  Chief
Executive Officer.  The Chief Executive Officer,  if there be one, shall preside
at all meetings of the  stockholders  and, in the absence or  incapacity  of the
Chairman of the Board,  meetings of the Board of Directors.  The Chief Executive
Officer  shall from time to time  report to the Board of  Directors  all matters
within his or her knowledge  which the interests of the  Corporation may require
be brought to their  notice.  Where the offices of Chief  Executive  Officer and
President are held by different individuals,  the President will report directly
to the Chief Executive Officer.

     Section 4.5. President.  The President shall be the chief operating officer
of the Corporation,  and shall have general and active  management and direction
of the affairs of the Corporation, shall have supervision of all departments and
of all officers of the Corporation, shall see that the orders and resolutions of
the Board of Directors,  or of any committee(s)  thereof, are carried fully into
effect,  and  shall  have the  general  powers  and  duties of  supervision  and
management as are incident to the office of President of a  corporation.  In the
absence or incapacity of the Chief Executive  Officer,  the President also shall
be the chief executive officer of the Corporation.

     Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties
as the Board of  Directors  shall from time to time  require.  In the absence or
incapacity  of the  President,  the Vice  President  designated  by the Board of
Directors (including by the Chairman of the Board), the Chief Executive Officer,
or the President shall exercise the powers and duties of the President.

     Section 4.7(a).  Secretary.  The Secretary shall attend all meetings of the
Board of Directors and of the stockholders of the Corporation,  and act as clerk
thereof, and record all votes and the minutes of all proceedings in a book to be
kept for that purpose,  shall record all written  business  transactions,  shall
perform like duties for the standing  committees  when required,  and shall have
the general  powers and duties as are  incident to the office of  Secretary of a
corporation.  The Secretary  shall give, or cause to be given,  proper notice of
all  meetings  of the  stockholders  and of the  Board of  Directors,  and shall
perform  such  other  duties  as may be  prescribed  by the  Board of  Directors
(including by the Chairman of the Board),  the Chief Executive  Officer,  or the
President. The Secretary shall have custody of the seal, if there be one, of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have  authority  to affix the same to any  instrument  requiring  it and when so
affixed,  it may  be  attested  by the  signature  of  the  Secretary  or by the
signature of any such  Assistant  Secretary.  (The Board of  Directors  may give
general  authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his/her  signature).  The Secretary shall see that all
books,  reports,  statements,  certificates  and  other  documents  and  records
required by statute to be kept or filed are properly kept or filed,  as the case
may be.

     Section 4.7(b). Assistant Secretaries.  At the request of the Secretary, or
in his or her absence or incapacity to act, the Assistant Secretary or, if there
be more than one, the Assistant  Secretary  designated by the  Secretary,  shall
perform the duties of the Secretary and when so acting shall have all the powers
of and be  subject  to all the  restrictions  of the  Secretary.  The  Assistant
Secretaries shall perform such other duties as may from time to time be assigned
to them by the Board of Directors  (including by the Chairman of the Board), the
Chief Executive Officer, the President, or the Secretary.

     Section 4.8. Treasurer. The Treasurer shall be the financial officer of the
Corporation, shall keep full and accurate accounts of all collections,  receipts
and  disbursements  in books  belonging to the  Corporation,  shall  deposit all
moneys  and  other  valuable  effects  in the  name  and to  the  credit  of the
Corporation,  in  such  depositories  as  may be  designated  by  the  Board  of
Directors,  shall disburse the funds of the Corporation as may be ordered by the
Board of Directors (including by the Chairman of the Board), the Chief Executive
Officer, or the President,  taking proper vouchers therefor, and shall render to
the President,  the Chief Executive Officer,  the Chairman of the Board,  and/or
directors at any meeting of the board,  or whenever  they may require it, and to
the  annual  meeting  of  the  stockholders,  an  account  of  all  his  or  her
transactions as Treasurer and of the financial condition of the Corporation, and
shall  have the  general  powers  and  duties as are  incident  to the office of
Treasurer of a corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond in a form and in such sum with surety as shall
be satisfactory to the Board of Directors for the faithful performance of his or
her duties as Treasurer and for the restoration to the Corporation,  in the case
of his or her death,  resignation,  retirement  or removal from  office,  of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession,  or under his or her control, and belonging to the Corporation.  The
Treasurer  shall  perform such other duties as may be prescribed by the Board of
Directors (including by the Chairman of the Board), the Chief Executive Officer,
or the President.

     Section  4.9.  Comptroller.  The  Comptroller  shall have  control over all
accounts  and  records of the  Corporation  pertaining  to  moneys,  properties,
materials and supplies,  and shall have executive direction over the bookkeeping
and  accounting  functions  and shall have the general  powers and duties as are
incident to the office of comptroller of a corporation.  The  Comptroller  shall
perform  such  other  duties  as may be  prescribed  by the  Board of  Directors
(including  by the  Chairman of the Board),  the Chief  Executive  Officer,  the
President, or a Vice President.

     Section 4.10. Other Officers. Such other officers of the Corporation as the
Board of Directors may appoint shall perform such duties and have such powers as
from time to time may be assigned to them by the board.  The Board of  Directors
may delegate to any other officer of the  Corporation  the power to appoint such
other officers and to prescribe their respective duties and powers.


                                    ARTICLE V

                                  Capital Stock

     Section 5.1.  Form and  Execution of  Certificates.  The  certificates  for
shares  of the  capital  stock  of the  Corporation  shall  be of such  form and
content, not inconsistent with statute and the Certificate of Incorporation,  as
shall be  approved  by the  Board of  Directors.  Every  holder  of stock in the
Corporation  shall be entitled to have a certificate  signed, in the name of the
Corporation,  by (i)  either the  Chairman  of the  Board,  the Chief  Executive
Officer,  the President or a Vice President and (ii) by any one of the following
officers:  the  Secretary  or an  Assistant  Secretary  or the  Treasurer  or an
Assistant  Treasurer.  All certificates shall be consecutively  numbered in each
class  of  shares.  The  name  and  address  of the  person  owning  the  shares
represented  thereby,  with the number of shares and the date of issue, shall be
entered on the Corporation's books.

     Section 5.2. Signatures.  Any or all of the signatures on a certificate may
be a facsimile thereof. In case any officer, transfer agent or registrar who has
signed or whose  facsimile  signature has been placed upon a  certificate  shall
have  ceased  to be such  officer,  transfer  agent  or  registrar  before  such
certificate is issued,  it may be issued by the Corporation with the same effect
as if he/she  were such  officer,  transfer  agent or  registrar  at the date of
issue.

     Section 5.3.  Lost  Certificates.  The Board of Directors  may direct a new
certificate to be issued in place of any certificate  theretofore  issued by the
Corporation  alleged to have been lost, stolen or destroyed,  upon the making of
an affidavit of that fact by the person  claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its  discretion  and as a condition  precedent to the
issuance  thereof,   require  the  owner  of  such  lost,  stolen  or  destroyed
certificate,  or his/her  legal  representative,  to advertise  the same in such
manner as the Board of Directors  shall require and/or to give the Corporation a
bond in such sum as it may  direct as  indemnity  against  any claim that may be
made against the  Corporation  with respect to the  certificate  alleged to have
been lost, stolen or destroyed.

     Section  5.4.  Transfers.  The capital  stock of the  Corporation  shall be
transferable in the manner  provided by statute and in these By-Laws.  Transfers
of shares shall be made on the books of the Corporation only by the person named
in the certificate or by his/her  attorney  lawfully  constituted in writing and
upon the surrender of the certificate therefor, which shall be canceled before a
new certificate shall be issued.

     Section 5.5.  Record Date. In order that the  Corporation may determine the
stockholders  entitled to notice of or to vote at any meeting of stockholders or
any adjournment  thereof,  or entitled to express consent to corporate action in
writing  without a meeting,  or entitled to receive  payment of any  dividend or
other  distribution  or  allotment  of any rights,  or entitled to exercise  any
rights in respect of any change,  conversion  or  exchange of stock,  or for the
purpose of any other lawful action,  the Board of Directors may fix, in advance,
a record  date,  which  shall not be more than sixty days nor less than ten days
before  the date of such  meeting,  nor more than  sixty days prior to any other
action.  A  determination  of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.

     Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled
to recognize  the  exclusive  right of a person  registered  on its books as the
owner of shares to receive  dividends,  and to vote as such  owner,  and to hold
liable for calls and  assessments a person  registered on its books as the owner
of shares,  and shall not be bound to recognize  any equitable or other claim to
or interest in such share or shares on the part of any other person,  whether or
not it shall have express or other notice thereof,  except as otherwise provided
by statute.


                                   ARTICLE VI

                                     Notices

     Section 6.1. Notices.  Whenever written notice is required by statute,  the
Certificate  of  Incorporation,  or these  By-Laws to be given to any  director,
member  of a  committee,  or  stockholder,  such  notice  may be  given by mail,
addressed to each such person,  at his/her  address as it appears on the records
of the  Corporation,  with  postage  thereon  prepaid,  and such notice shall be
deemed to be given at the time when the same  shall be  deposited  in the United
States mail,  or as otherwise  provided by statute.  Written  notice may also be
given personally or by telegram, telex or cable.

     Section 6.2. Waivers of Notice. Whenever any notice is required by statute,
the Certificate of Incorporation,  or these By-Laws to be given to any director,
member of a committee,  or stockholder,  a waiver thereof in writing,  signed by
the person or persons entitled to said notice,  whether before or after the time
stated therein, shall be deemed equivalent thereto.

                                   ARTICLE VII

                               General Provisions

     Section  7.1.   Dividends.   Dividends   upon  the  capital  stock  of  the
Corporation,   subject  to  any  provision   imposed  by  the   Certificate   of
Incorporation,  may be  declared  by the Board of  Directors  at any  regular or
special  meeting,  or by written consent to the action of the board without such
meeting(s),  and may be paid in cash,  in property,  or in shares of the capital
stock.  Before payment of any dividend,  there may be set aside out of any funds
of the  Corporation  available  for  dividends  such sum or sums as the Board of
Directors  from time to time,  in its  absolute  discretion,  deems  proper as a
reserve or reserves to meet contingencies,  or for equalizing dividends,  or for
repairing  or  maintaining  any property of the  Corporation,  or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.

     Section  7.2.  Disbursements.  All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.

     Section  7.3.  Voting  Securities  Owned  by  the  Corporation.  Powers  of
attorney,  proxies, waivers of notice of meeting, consents and other instruments
relating to securities  owned by the  Corporation may be executed in the name of
and on behalf of the Corporation 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  Corporation,  take all such
action as any such  officer may deem  advisable to vote in person or by proxy at
any meeting of security  holders of any corporation in which the Corporation may
own  securities  and at any such meeting  shall possess and may exercise any and
all rights and power incident to the ownership of such  securities and which, as
the owner  thereof,  the  Corporation  might have  exercised  and  possessed  if
present.  The Board of Directors  may, by  resolution,  from time to time confer
like powers upon any other person or persons.

     Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January and end on the thirty-first day of December each year.

     Section 7.5.  Corporate Seal. The seal of the Corporation (if there be one)
shall  have  inscribed  thereon  the  name of the  Corporation,  the year of its
incorporation,  the words  "Corporate  Seal" and "Delaware",  and any such other
emblem or device as approved by the Board of Directors.  The seal may be used by
causing it or a  facsimile  thereof to be  impressed  or affixed or in any other
manner reproduced.

                                  ARTICLE VIII

                                 Indemnification

     Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than
Those By or in the Right of the  Corporation.  Subject  to  Section  8.3 of this
Article VIII, the  Corporation  shall indemnify any person who was or is a party
to or is threatened to be made a party to any  threatened,  pending or completed
action,  suit  or  proceeding,   whether  civil,  criminal,   administrative  or
investigative  (other than an action by or in the right of the  Corporation)  by
reason  of  the  fact  that  he/she  is or  was a  director  or  officer  of the
Corporation,  or is or was a director or officer of the  Corporation  serving at
the request of the  Corporation  as a director or officer,  employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement  actually and  reasonably  incurred by him/her in
connection with such action, suit or proceeding,  if he/she acted in good faith,
and, in a manner he/she reasonably  believed to be in or not opposed to the best
interests  of the  Corporation,  and,  with  respect to any  criminal  action or
proceeding, had no reasonable cause to believe his/her conduct was unlawful. The
termination of any action,  suit or proceeding by judgment,  order,  settlement,
conviction,  or upon a plea of nolo  contendere or its equivalent  shall not, of
itself,  create a presumption that the person did not act in good faith and in a
manner  which  he/she  reasonably  believed  to be in or not opposed to the best
interests  of the  Corporation  and,  with  respect  to any  criminal  action or
proceeding, had reasonable cause to believe that his/her conduct was unlawful.

     Section 8.2.  Power to Indemnify in Actions,  Suits or Proceedings By or in
the Right of the  Corporation.  Subject to Section 8.3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened,  pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that  he/she is or was a director or officer of the  Corporation,  or is or
was a  director  or  officer of the  Corporation  serving at the  request of the
Corporation as a director,  officer,  employee or agent of another  corporation,
partnership,  joint venture,  trust,  employee  benefit plan or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him/her in  connection  with the defense or settlement of such action or suit if
he/she acted in good faith and in a manner he/she  reasonably  believed to be in
or not  opposed  to the  best  interests  of the  Corporation;  except  that  no
indemnification  shall be made in respect  of any  claim,  issue or matter as to
which such  person  shall have been  adjudged  to be liable  for  negligence  or
misconduct in the  performance  of his/her duty to the  Corporation,  unless and
only to the extent that the court in which such action or suit was brought shall
determine upon  application  that,  despite the adjudication of liability but in
view of all the  circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.

     Section 8.3.  Authorization of Indemnification.  Any indemnification  under
this Article VIII (unless  ordered by a court) shall be made by the  Corporation
only  as   authorized   in  the  specific   case  upon  a   determination   that
indemnification  of the  present or former  director or officer is proper in the
circumstances  because  he/she has met the  applicable  standard  of conduct set
forth in Section 8.1 or Section 8.2 of this  Article  VIII,  as the case may be.
Such  determination  shall be made with respect to a person who is a director or
officer at the time of such  determination,  (i) by the Board of  Directors by a
majority  vote of a quorum  consisting of directors who were not parties to such
action, suit or proceeding,  or (ii) by a committee of such directors designated
by majority vote of such directors,  even though less than a quorum; or (iii) if
such  a  quorum  is  not  obtainable,   or,  even  if  obtainable  a  quorum  of
disinterested  directors so directs,  by independent  legal counsel in a written
opinion, or (iv) by the stockholders. To the extent, however, that a director or
officer of the  Corporation  has been  successful  on the merits or otherwise in
defense of any action, suit or proceeding  described above, or in defense of any
claim,  issue or matter therein,  he/she shall be indemnified  against  expenses
(including  attorneys'  fees)  actually  and  reasonably  incurred by him/her in
connection  therewith,  without the necessity of  authorization  in the specific
case.

     Any  determination  made by the  disinterested  directors or by independent
legal counsel under this section  shall be promptly  communicated  to the person
who  threatened  or  brought  the  action  or  suit  by or in the  right  of the
Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days
after  receipt  of such  notification,  such  persons  shall  have the  right to
petition the court (at the courts'  discretion) in which such action or suit was
brought to review the reasonableness of such determination.

     Section 8.4. Good Faith Defined.  For purposes of any  determination  under
Section 8.3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he/she reasonably  believed to be in or not opposed to the
best interests of the  Corporation,  or, with respect to any criminal  action or
proceeding,  to have had no  reasonable  cause to believe  his/her  conduct  was
unlawful,  if his/her  action is based on the records or books of account of the
Corporation or another enterprise,  or on information supplied to him/her by the
officers of the Corporation or another enterprise in the course of their duties,
or on the advice of legal counsel for the  Corporation or another  enterprise or
on  information  or records given or reports made to the  Corporation or another
enterprise by an independent certified public accountant,  or by an appraiser or
other  expert  selected  with  reasonable  care by the  Corporation  or  another
enterprise. The term "another enterprise" as used in this Section 8.4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other  enterprise  of which such person is or was serving at the request
of the Corporation as a director,  officer, employee or agent. The provisions of
this  Section 8.4 shall not be deemed to be exclusive or to limit in any way the
circumstances  in  which a  person  may be  deemed  to have  met the  applicable
standard of conduct set forth in Sections  8.1 or 8.2 of this Article  VIII,  as
the case may be.

     Section  8.5.  Indemnification  by a Court.  Notwithstanding  any  contrary
determination  in the specific case under Section 8.3 of this Article VIII,  and
notwithstanding  the absence of any  determination  thereunder,  any director or
officer  may  apply  to any  court of  competent  jurisdiction  in the  State of
Delaware for indemnification to the extent otherwise  permissible under Sections
8.1 and 8.2 of this Article VIII. The basis of such  indemnification  by a court
shall be a determination by such court that  indemnification  of the director or
officer is proper in the  circumstances  because  he/she has met the  applicable
standards of conduct set forth in Sections 8.1 or 8.2 of this Article  VIII,  as
the case may be.  Neither a contrary  determination  in the specific  case under
Section 8.3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or  officer  seeking  indemnification  has not met any  applicable  standard  of
conduct. Notice of any application for indemnification  pursuant to this Section
8.5  shall  be  given  to the  Corporation  promptly  upon  the  filing  of such
application. If successful, in whole or in part, the director or officer seeking
indemnification  shall also be entitled  to be paid the  expense of  prosecuting
such application.

     Section 8.6.  Expenses Payable in Advance.  Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final  disposition
of such  action,  suit or  proceeding  upon receipt of an  undertaking  by or on
behalf of such  director or officer to repay such amount if it shall  ultimately
be determined  that he/she is not entitled to be indemnified by the  Corporation
as authorized in this Article VIII.

     Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses.
The  indemnification and advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed  exclusive of any other rights to which
those seeking  indemnification  or advancement of expenses may be entitled under
any other provision of these By-Laws, or similarly entitled under any agreement,
contract,  vote of stockholders or disinterested  directors,  or pursuant to the
direction  (howsoever  embodied)  of any  court  of  competent  jurisdiction  or
otherwise,  both as to action in his/her  official  capacity and as to action in
another  capacity  while  holding  such  office,  it  being  the  policy  of the
Corporation that  indemnification  of the persons  specified in Sections 8.1 and
8.2 of this  Article  VIII  shall be made to the  fullest  extent  permitted  by
statute. The provisions of this Article VIII shall not be deemed to preclude the
indemnification  of any person who is not  specified  in Sections  8.1 or 8.2 of
this Article  VIII,  but whom the  Corporation  has the power or  obligation  to
indemnify  under  the  provisions  of  statute  of the  State  of  Delaware,  or
otherwise.

     Section 8.8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the  Corporation,
or is or was a director or officer of the Corporation  serving at the request of
the  Corporation  as  a  director,   officer,   employee  or  agent  of  another
corporation,  partnership,  joint venture, trust, employee benefit plan or other
enterprise  against any  liability  asserted  against  him/her  and  incurred by
him/her in any such capacity,  or arising out of his/her status as such, whether
or not the  Corporation  would  have the power or the  obligation  to  indemnify
him/her against such liability under the provisions of this Article VIII.

     Section  8.9.  Certain  Definitions.  For  purposes of this  Article  VIII,
references  to "the  Corporation"  shall  include,  in addition to the resulting
corporation,  any  constituent  corporation  (including  any  constituent  of  a
constituent)  absorbed  in a  consolidation  or merger  which,  if its  separate
existence  had  continued,  would have had power and  authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such  constituent  corporation,  or is or was a  director  or  officer  of  such
constituent  corporation serving at the request of such constituent  corporation
as a director,  officer, employee or agent of another corporation,  partnership,
joint venture, trust, employee benefit plan or other enterprise,  shall stand in
the same position  under the provisions of this Article VIII with respect to the
resulting  or  surviving  corporation  as he/she would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the  request of the  Corporation"  shall  include  any service as a director,
officer,  employee  or agent of the  Corporation  which  imposes  duties  on, or
involves  services  by,  such  director or officer  with  respect to an employee
benefit plan, its participants or beneficiaries;  and a person who acted in good
faith and in a manner he/she reasonably  believed to be in the best interests of
the participants  and  beneficiaries of an employee benefit plan shall be deemed
to  have  acted  in  a  manner  "not  opposed  to  the  best  interests  of  the
Corporation", as referred to in this Article VIII.

     Section 8.10. Survival of Indemnification and Advancement of Expenses.  The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VIII shall,  unless otherwise provided when authorized or ratified,
continue  as to a person who has ceased to be a  director  or officer  and shall
inure to the  benefit  of the  heirs,  executors  and  administrators  of such a
person.

     Section  8.11.  Limitation  on  Indemnification.  Notwithstanding  anything
contained  in this  Article  VIII to the  contrary,  except for  proceedings  to
enforce  rights to  indemnification  (which  shall be  governed  by Section  8.5
hereof),  the  Corporation  shall not be obligated to indemnify  any director or
officer in  connection  with a proceeding  (or part  thereof)  initiated by such
person unless such  proceeding  (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.

     The Corporation shall indemnify a present or former director or officer who
was wholly successful, on merits or otherwise, in the defense of any proceedings
as set forth in Section 8.1 or Section 8.2 of this Article VIII, to which he/she
was a party because he/she was a director of the Corporation  against reasonable
expenses incurred by him/her in connection with the proceeding.

     Section 8.12. Indemnification of Employees and Agents. The Corporation may,
to the extent  authorized  from time to time by the Board of Directors,  provide
rights to  indemnification  and to the  advancement of expenses to employees and
agents of the  Corporation,  similar to those  conferred in this Article VIII to
directors and officers of the Corporation.

                                   ARTICLE IX

                                   Amendments

     Section 9.1. Amendments. These By-Laws may be altered, amended or repealed,
in whole or in part, or new By-Laws may be adopted:  (i) by the affirmative vote
of a majority of the  holders of record of the  outstanding  shares  entitled to
vote thereon, or by the written consent of the holders of record of a two-thirds
majority of the  outstanding  shares  entitled to vote  thereon,  except as such
alteration,  amendment  or  repeal  by  any  vote  or  written  consent  of  the
stockholders is otherwise expressly prohibited by statute; or (ii) by a majority
vote of the Board of Directors,  or by unanimous  written  consent of the board,
except  as such  alteration,  amendment  or  repeal by any vote or action of the
board is otherwise expressly prohibited by statute.

                                    ARTICLE X

                                Emergency By-Laws

     Section 10.1.  Emergency By-Laws.  The Emergency By-Laws shall be operative
during any emergency in the conduct of the business of the Corporation resulting
from an attack on the United  States or on a locality  in which the  Corporation
conducts its business or customarily holds meetings of its Board of Directors or
its  stockholders,  or during  any  nuclear  or atomic  disaster,  or during the
existence of any catastrophe,  or similar  emergency  condition,  as a result of
which a quorum of the Board of Directors or a standing  committee thereof cannot
readily be convened for action, notwithstanding any provision to the contrary in
the preceding By-Laws,  in the Certificate of Incorporation,  or in the statute.
To the extent not  inconsistent  with the  provisions of this Section 10.1,  the
By-Laws of the Corporation shall remain in effect during any emergency, and upon
its  termination,  the  Emergency  By-Laws  shall  cease  to be  operative.  Any
amendments  to  these  Emergency  By-Laws  may  make any  further  or  different
provision  that may be  practical  and  necessary  for the  circumstance  of the
emergency.

     During any such  emergency:  (A) a meeting of the Board of  Directors  or a
committee  thereof may be called by any officer or director of the  Corporation.
Notice of the time and place of the meeting or conference call shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any means of communication.  Such notice shall be given at such time in
advance of the  meeting as  circumstances  permit in the  judgment of the person
calling the meeting;  (B) the director or directors in attendance at the meeting
shall  constitute a quorum;  (C) the officers or other  persons  designated on a
list approved by the Board of Directors before the emergency,  all in such order
of  priority  and  subject to such  conditions  and for such period of time (not
longer than reasonably  necessary after the termination of the emergency) as may
be provided in the resolution  approving the list, shall, to the extent required
to  provide a quorum at any  meeting  of the Board of  Directors,  be deemed the
directors for such meeting; (D) the Board of Directors,  either before or during
any  such  emergency,  may  provide,  and  from  time to time  modify,  lines of
succession in the event that during such emergency any or all officers or agents
of the  Corporation  shall for any reason be rendered  incapable of  discharging
their  duties;  (E) the Board of  Directors,  either  before or during  any such
emergency, may, effective in the emergency,  change the head office or designate
several  alternative head offices or regional offices, or authorize the officers
so to do; and (F) to the extent  required to  constitute a quorum at any meeting
of the  Board  of  Directors  during  such an  emergency,  the  officers  of the
Corporation  who are  present  shall be deemed,  in order of rank and within the
same rank in order of seniority, the directors for such meeting.

     No officer, director or employee acting in accordance with any provision of
these Emergency By-Laws shall be liable except for willful misconduct.

     These Emergency By-Laws shall be subject to alteration, amendment or repeal
by the  further  actions  of the  Board  of  Directors  or  stockholders  of the
Corporation.
EX-99 39 b-416.htm LLC AGREE OAK MOUNTAIN PRODUCTS Oak Mountain Products, LLC 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                           Oak Mountain Products, LLC



     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
June 1, 2002, a Delaware limited liability  company (the "Company"),  is entered
into by LH1, LLC, a Delaware limited  liability  company,  as the sole member of
the Company (the "Member");

                                    RECITALS

     WHEREAS,  the Company was formed on July 9, 2001, by an "authorized person"
within the meaning of the  Delaware  Limited  Liability  Company Act (as amended
from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201(d)  of the  Act,  it is the
intention  of the Member that the  Agreement be effective as of June 1, 2002 and
that it replace in its entirety any prior  limited  liability  agreements of the
Company;

     WHEREAS,  the Member holds the sole limited  liability  company interest in
the Company as of June 1, 2002; 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 Oak Mountain Products,
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,  1209  Orange
     Street, Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45202, or such other place as the Member shall designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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,  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 the  Agreement  be effective as of
June 1, 2002.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of  Member(s).  The Member shall hold a 100% initial
ownership Interest in the Company. New member(s) shall be admitted only with the
approval of the Member.  The Member or members shall serve without  compensation
from  the  Company,  and the  Member  or  members  shall  bear  the  cost of its
participation in meetings and other activities of the Company.

     Section 3.2 Interests.

          (a) The  membership  interests of the Company  shall consist of common
     membership  interests  ("Interests").  (b) All  Common  Interests  shall be
     identical with each other in every respect,  except that, should additional
     member(s) be admitted,  Interests of each member shall  reflect its capital
     account relative to the other member(s)

          (c)  Interests  may, but need not be,  evidenced by a  certificate  of
     limited liability company interest issued by the Company.

     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 capital  contribution
     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) An Annual  Meeting of the  member(s)  shall be held once a year on
     such date as the members shall  designate.  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.

          (b)  Meetings  of the  member(s)  may be  called  for any  purpose  or
     purposes, at any time, by any member or by the Board of Managers. 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.

          (c) Except as otherwise  provided by law, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (d) 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.

     Section 3.6 Vote. Except as specifically set forth herein, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     Section 3.7 Notice.  Meetings of the  member(s)  may be held at such places
and at such times as the  member(s)  or Board of Managers  may from time to time
determine. Any member or the Board of Managers may at any time call a meeting of
the member(s).  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(s)  may delegate any of its powers to the Board of Managers
or the officers of the Company or to committees consisting of persons who may or
may not be member(s). Every Manager, 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).

     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 member(s)
shall have no power to transact any business in the Company's  name nor have the
power to sign  documents  for or  otherwise  bind the  Company.  Subject  to the
provisions of the Act, the  Certificate of Formation,  and this  Agreement,  the
member(s) hereby delegate any or all such powers to the Board of Managers of the
Company  (the  "Board of  Managers")  to carry out the  business  affairs of the
Company on the  member(s)'  behalf.  Any power not reserved to the  member(s) or
delegated to the officers shall remain with the Board of Managers.  The Board of
Managers  shall have the power 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.

     Section 4.2 The Board of Managers.

          (a) General. Except as specifically set forth herein, the business and
     affairs of the Company  shall be managed by or under the  direction  of the
     Board of Managers.  Other than rights and powers expressly  reserved to the
     members by this  Agreement  or the Act,  the Board of  Managers  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.

          (b) Duties. The Board of Managers shall be obligated to devote only as
     much of  their  time to the  Company's  business  as  shall  be  reasonably
     required in light of the Company's business and objectives. A Manager shall
     perform his or her duties in good faith,  in a manner he or she believes to
     be in  the  best  interests  of the  Company,  and  with  such  care  as an
     ordinarily  prudent  person in a like  position  would  use  under  similar
     circumstances.

          (c)  Board  Composition;  Removal  and  Vacancies.  The  Member  shall
     initially  appoint  three  (3)  Managers  to  the  Board  of  Managers.  If
     additional member(s) are added, the number of Managers shall be adjusted to
     that  smallest   number   possible   that  will  allow  full   proportional
     representation  of  each  member's  membership  interest  on the  Board  of
     Managers. Each Manager shall serve until the earlier of his or her removal,
     resignation,  death  or  retirement.  Each  member  shall  vote  all of its
     Membership  Interest and shall take all other action necessary or desirable
     within its control,  (including without limitation,  attendance at meetings
     in  person  or by  proxy  and  execution  of  written  consents  in lieu of
     meetings),  so that the  designees of other members are duly elected to the
     Board  of  Managers  in  proportion  to the  member's  Membership  Interest
     percentage.  Upon  the  removal,  resignation,  death  or  retirement  of a
     Manager,  or the vacation of office by a Manager for any reason, his or her
     successor  shall be nominated  and elected by the same member as originally
     proposed the former  Manager.  Any successor so elected shall retain his or
     her office  during such time as the former  Manager was  entitled to retain
     the same.

          (d) Restrictions on the Board. The Board of Managers shall not: (i) do
     any act in  contravention  of any applicable law or regulation or provision
     of this Agreement;  (ii) possess Company  property for other than a Company
     purpose;  or (iii) admit any new member(s) without the unanimous consent of
     existing  members  or  without  compliance  with  the  provisions  of  this
     Agreement.

          (e) Meetings; Notice. Meetings of the Board of Managers may be held at
     such places and at such times as the Board of Mangers may from time to time
     determine,  and if so determined  by a quorum of the Board of Managers,  no
     advance  notice  of the  meeting  need be given.  Meetings  of the Board of
     Managers may be called at any time by any two (2) Managers.  Written notice
     of the  time,  place  and  purpose  of such  meeting  shall  be  served  by
     registered or certified, prepaid, first-class mail, or by fax or cable upon
     each  member  of the  Board  of  Managers  and  shall  be  given  at  least
     twenty-four (24) hours prior to the time of the meeting.  No notice need be
     given to any  Manager  if a written  waiver of notice,  executed  before or
     after the meeting by such Manager thereunto duly authorized,  is filed with
     the  records of the  meeting,  or to any  Manager  who  attends the meeting
     without  protesting prior thereto or at its commencement the lack of notice
     to him. A waiver of notice need not specify the purpose of the meeting.

          (f)  Meetings;  Electronic  Communications.  Meetings  of the Board of
     Managers  shall be held on such dates as the Board of Managers shall agree,
     but not less  frequently  than once during each fiscal year of the Company.
     Members of the Board of Managers,  or of any  committee  designated  by the
     Board,  may participate in a meeting of such Board or committee 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.

          (g) Quorum and Voting.  A majority of the Managers shall  constitute a
     quorum  for the  transaction  of  business  at a  meeting  of the  Board of
     Managers.  Action  by the  Board  of  Managers  must be  authorized  by the
     unanimous vote of the Managers present at the meeting.

          (h) Action  Without a Meeting.  Any action which is required to be, or
     which may be, taken at any annual, regular, or special meeting of the Board
     of Managers or  otherwise,  may be taken  without a meeting,  without prior
     notice and without a vote if a consent in writing, setting forth the action
     so taken,  shall be signed by all the  Managers  then in  office.  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.

          (i)  Delegation of Powers.  Subject to any limitation set forth in the
     Act, the Board of Managers may delegate any of its powers to  committees or
     to officers  consisting  of persons who may or may not be  Managers.  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 Board of
     Managers.

     Section 4.3 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the Board of Managers.  Except as provided in paragraphs (b) or (c) of this
     Section  4.3,  each officer  shall hold office  until his or her  successor
     shall have been chosen and qualified.  Any two offices, except those of the
     Chief Executive  Officer and the Secretary and the President and 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 Board of
     Managers.  Unless otherwise specified therein,  such resignation shall take
     effect  upon  delivery.  Any  officer  may be removed  from  office with or
     without cause by the Board of Managers.

          (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 Board of Managers.

          (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
     as  directed  by the Board of Managers  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 and as are authorized by
     the Board of Managers. 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 Board of Managers.

          (e) Chief Executive Officer.  Subject to the further directives of the
     Board of  Managers,  the Chief  Executive  Officer  shall have  general and
     active management of the business of the Company subject to the supervision
     of the Board of Managers,  shall see that all orders and resolutions of the
     Board of Managers and member(s) are carried into effect and shall have such
     additional  powers and authority as are specified by the provisions of this
     Agreement and the Board of Managers.

          (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 purse 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 Board of Managers.
     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 Board of Managers may from
     time to time prescribe.

          (g)  Other  Officers.  The  Board of  Managers  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 Board of Managers may determine in
     its sole  discretion.  The Board of Managers 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
     Board of  Managers,  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 4.4 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely  conclusively  upon the power and  authority of the  member(s),
Board of Managers, and officers herein set forth.

     Section 4.5 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) and Board of Managers;

          (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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" within the meaning of
the Allocation Regulations.

                                   ARTICLE VI

                    Allocations, Distribution and Withholding

     Section  6.1  Allocations.  The Net  Profit  and Net  Loss of the  Company,
including  each item of  income,  gain,  loss,  deduction  and  credit  shall be
allocated  with  respect to each  Fiscal  Year (or  portion  thereof)  among the
members in proportion to their membership interest percentages.

     Section 6.2 Distributions. Distributions may be made to the members at such
times as determined in the sole discretion of the Board of Managers,  or at such
other times as the members by unanimous consent shall determine.

     Section 6.3 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

     Section  6.4  Withholding.  The  Company is  authorized  to  withhold  from
distributions  to a member,  or with respect to allocations to a member,  and to
pay over to a federal,  state or local  government,  any amounts  required to be
withheld  pursuant to the Internal Revenue Service Code or any provisions of any
other  federal,  state or local law. Any amounts so withheld shall be treated as
having been  distributed to such member for all purposes of this Agreement,  and
shall be offset against the current or next amounts  otherwise  distributable to
such member.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto or the transferee and members execute an Amended
and Restated  LLC  Agreement of the  Company,  such  transferee  shall be deemed
admitted as a member of the Company to the extent of such transferred  Interest,
and immediately  thereafter the transferor shall be deemed withdrawn as a member
of the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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.  The Company  shall be treated as a disregarded
entity for federal, state, and local tax purposes until such time as it has more
than one member.

                                    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, any member, or any Manager, officers, 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 the  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.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section 11.4 Filings.  John Averett was an  "authorized  person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the  Company  with the  State of  Delaware  on July 9,  2001.  Following  the
execution  and delivery of this  Agreement,  the Member shall be an  "authorized
person" within the meaning of the Act, and shall prepare 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  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 11.6 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 11.7 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 11.8 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 duly executed this Agreement as of
the date first above written.


                                             LH1, LLC



                                             By:
                                                -------------------------------
                                                        M. Stephen Harkness
                                                      Chief Executive Officer
EX-99 40 b-417.htm CERT OF FORMATION OAK MOUNTAIN PRODUCTS Oak Mountain Products, LLC 
                            CERTIFICATE OF FORMATION

                                       OF

                           OAK MOUNTAIN PRODUCTS, LLC



     This  Certificate  of  Formation  of Oak  Mountain  Products,  LLC is being
executed  by the  undersigned  for the  purpose of  forming a limited  liability
company pursuant to the Delaware Limited Liability Company Act.

1.   The name of the limited liability company is Oak Mountain Products, LLC.

2.   The address of the registered  office of the limited  liability  company in
     Delaware is 1209 Orange Street, Wilmington,  Delaware 19801. The registered
     agent at that address is The Corporation Trust Company.

     IN WITNESS WHEREOF,  the undersigned,  an authorized person with respect to
the limited  liability  company named herein,  has executed this  Certificate of
Formation on this 29th day of June 2001.



                                OAK MOUNTAIN ACQUISITION COMPANY, LLC

                                    By:  SynFuels Holdings, LLC
                                             Its Manager


                                By: /s/ John Averett
                                   ------------------
                                    John Averett
                                    An Authorized Person
EX-99 41 b-414.htm CERTIFICATE OF INCORPORATION CINFUEL RESOURCES Cinfuel Resources 
                          CERTIFICATE OF INCORPORATION

                                       OF

                             CINFUEL RESOURCES, INC.


     The  undersigned,  for the purpose of  organizing a  corporation  under the
General Corporation Law of the State of Delaware, certifies:

          FIRST: The name of the corporation is:

                             CinFuel Resources, Inc.

          SECOND:  The  address of the  corporation's  registered  office in the
     State of Delaware is the  Corporation  Trust  Center,  1209 Orange  Street,
     Wilmington,  Delaware  19801,  County  of  New  Castle.  The  name  of  the
     registered agent at such address is The Corporation Trust Company.

          THIRD:  The purpose of the  corporation is to engage in any lawful act
     or  activity  for which  corporations  may be  organized  under the General
     Corporation Law of the State of Delaware.

          FOURTH:  The total  number of  shares of stock  which the  corporation
     shall have authority to issue is five hundred (500) shares of common stock,
     without par value.

          FIFTH:  The name and mailing  address of the  incorporator  is Cecilia
     Temple, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202.

          SIXTH: A director of the corporation shall not be personally liable to
     the  corporation  or its  stockholders  for monetary  damages for breach of
     fiduciary  duty as a director,  except for  liability (i) for any breach of
     the director's duty of loyalty to the corporation or its stockholders, (ii)
     for  acts or  omissions  not in good  faith or  which  involve  intentional
     misconduct  or a knowing  violation of law,  (iii) under Section 174 of the
     Delaware  General  Corporation  Law, or (iv) for any transaction from which
     the director derived any improper personal benefit. If the Delaware General
     Corporation Law is amended after the date of the filing of this Certificate
     to authorize  corporate action further eliminating or limiting the personal
     liability of directors,  then the liability of director of the  corporation
     shall be  eliminated  or limited to the  fullest  extent  permitted  by the
     Delaware General  Corporation Law, as so amended. No repeal or modification
     of this Article SIXTH shall apply to or have any effect on the liability or
     alleged liability of any director of the corporation for or with respect to
     any acts or omissions of such  director  occurring  prior to such repeal or
     modification.

          SEVENTH:  The  directors  shall  have  power to make,  alter or repeal
     by-laws, except as may otherwise be provided in the by-laws.

          EIGHTH:  Elections of directors need not be by written ballot,  except
     as may otherwise be provided in the by-laws.

          WITNESS my signature this 10th day of January 2002.



                                                         /s/ Cecilia Temple
                                                         ------------------
                                                         Cecilia Temple
                                                         Sole Incorporator
EX-99 42 b-418.htm CERT OF FORMATION LH1 LH1, LLC 
                            CERTIFICATE OF FORMATION

                                       OF

                                    LH1, LLC


     This  Certificate of Formation of LH1, LLC (the  "Company"),  is being duly
executed  and  filed by the  undersigned,  as an  authorized  person,  to form a
limited  liability  company under the Delaware Limited Liability Company Act (as
the same may be amended from time to time, the "Act"), 6 Del. C.ss.ss.18-101, et
seq.

                                    ARTICLE I

                                      NAME

               The name of the limited liability company shall be:
                                    LH1, LLC

                                   ARTICLE II

                       REGISTERED OFFICE, REGISTERED AGENT

     The initial  registered office of the Company shall be: c/o The Corporation
Trust Center,  1209 Orange Street,  Wilmington,  Delaware  19801,  or such other
location as the Company by consent shall determine. The initial registered agent
of the Company shall be: The  Corporation  Trust  Company,  1209 Orange  Street,
Wilmington,  New Castle County,  Delaware,  19801, or such other location as the
Company  by  consent  shall  determine.  Either  the  registered  office  or the
registered agent may be changed in the manner provided by law.

                                   ARTICLE III

                                   AMENDMENTS

     The Company  reserves the right to amend this Certificate of Formation from
time to time in accordance with the Act,  provided,  that the unanimous approval
of the members of the Company to such amendment has been duly obtained.

     In Witness  Whereof,  the  undersigned  has executed  this  Certificate  of
Formation on this 10th day of January, 2002.


                                               /s/ Cecilia Temple
                                               ------------------
                                               Cecilia Temple
                                               Authorized Person
EX-99 43 b-419.htm LLC AGREE LH1 LH1, LLC 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                                    LH1, LLC



     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
January  10,  2002,  of LH1,  LLC, a Delaware  limited  liability  company  (the
"Company"),  is entered  into by Cinergy  Capital &  Trading,  Inc.,  an Indiana
corporation, and CinFuel Resources, Inc., a Delaware corporation, as the Members
of the Company (the "Members");

                                    RECITALS

     WHEREAS,  the  Company was formed on January 10,  2002,  by an  "authorized
person"  within the meaning of the Delaware  Limited  Liability  Company Act (as
amended from time to time, the "Act");

     WHEREAS,  in  accordance  with  Section  18-201(d)  of the  Act,  it is the
intention  of the Members  that the  Agreement  be  effective  as of the date of
formation, January 10, 2002;

     WHEREAS, the Members hold all the limited liability company interest in the
Company as of January 10, 2002; and

     WHEREAS,  the Members  desire to set forth their  understandings  regarding
their  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  Members  hereby  agree 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 LH1, LLC. The business
of the Company may be conducted upon  compliance  with all applicable laws under
any other name designated by the Members.


     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,  1209  Orange
     Street, Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati,  Ohio,  45202,  or  such  other  place  as  the  Members  shall
     designate.

     Section 2.3 Nature of Business Permitted;  Powers. The Company may carry on
any lawful  business,  purpose or activity.  The Company  shall  possess and may
exercise all 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  Members  with  the  Company.  In
accordance  with Section  18-107 of the Act,  the Members may transact  business
with the Company and,  subject to applicable law, 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 Members  that the  Agreement be effective as of
the date of formation, January 10, 2002.

                                   ARTICLE III

                                    Member(s)

     Section 3.1  Admission of Member(s).  The Member(s) are hereby  admitted to
the Company in respect of an Interest (as defined in Section 3.2),  which is the
sole  Interest  outstanding  as of the  effective  time of this  Agreement.  New
member(s) shall be admitted only with the approval of the Members.

     Section 3.2 Interests.

          (a) The  membership  interests of the Company  shall consist of common
     membership interests ("Interests").

          (b) All Interests shall be identical with each other in every respect,
     except that,  should  additional  member(s) be admitted,  Interests of each
     member shall reflect its capital account relative to the other member(s).

          (c)  Interests  may, but need not be,  evidenced by a  certificate  of
     limited liability interest issued by the Company.

     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 capital  contribution
     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) An Annual  Meeting of the  member(s)  shall be held once a year on
     such date as the members shall  designate.  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.

          (b)  Meetings  of the  member(s)  may be  called  for any  purpose  or
     purposes, at any time, by any member or by the Board of Managers. 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.

          (c) Except as otherwise  provided by law, if additional  member(s) are
     admitted,  a majority of the  member(s),  determined in proportion to their
     respective Interests in the Company,  entitled to vote at the meeting shall
     constitute a quorum at all meetings of the member(s).

          (d) 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.

     Section 3.6 Vote. Except as specifically set forth herein, the business and
affairs  of the  Company  shall be  managed  by or under  the  direction  of the
member(s) by majority vote.

     Section 3.7 Notice.  Meetings of the  member(s)  may be held at such places
and at such times as the  member(s)  or Board of Managers  may from time to time
determine. Any member or the Board of Managers may at any time call a meeting of
the member(s).  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(s) may delegate any of their powers to the Board of Managers
or the officers of the Company or to committees consisting of persons who may or
may not be member(s). Every Manager, 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).

     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 member(s)
shall have no power to transact any business in the Company's  name nor have the
power to sign  documents  for or  otherwise  bind the  Company.  Subject  to the
provisions of the Act, the  Certificate of Formation,  and this  Agreement,  the
member(s) hereby delegate any or all such powers to the Board of Managers of the
Company  (the  "Board of  Managers")  to carry out the  business  affairs of the
Company on the  member(s)'  behalf.  Any power not reserved to the  member(s) or
delegated to the officers shall remain with the Board of Managers.  The Board of
Managers  shall have the power 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.

     Section 4.2 The Board of Managers.

          (a) General. Except as specifically set forth herein, the business and
     affairs of the Company  shall be managed by or under the  direction  of the
     Board of Managers.  Other than rights and powers expressly  reserved to the
     members by this  Agreement  or the Act,  the Board of  Managers  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.

          (b) Duties. The Board of Managers shall be obligated to devote only as
     much of  their  time to the  Company's  business  as  shall  be  reasonably
     required in light of the Company's business and objectives. A Manager shall
     perform his or her duties in good faith,  in a manner he or she believes to
     be in  the  best  interests  of the  Company,  and  with  such  care  as an
     ordinarily  prudent  person in a like  position  would  use  under  similar
     circumstances.

          (c) Board  Composition;  Removal  and  Vacancies.  The  Members  shall
     initially  appoint  three  (3)  Managers  to  the  Board  of  Managers.  If
     additional member(s) are added, the number of Managers shall be adjusted to
     that  smallest   number   possible   that  will  allow  full   proportional
     representation  of  each  member's  membership  interest  on the  Board  of
     Managers. Each Manager shall serve until the earlier of his or her removal,
     resignation,  death  or  retirement.  Each  member  shall  vote  all of its
     membership  Interest and shall take all other action necessary or desirable
     within its control,  (including without limitation,  attendance at meetings
     in  person  or by  proxy  and  execution  of  written  consents  in lieu of
     meetings),  so that the  designees of other members are duly elected to the
     Board  of  Managers  in  proportion  to the  member's  membership  Interest
     percentage.  Upon  the  removal,  resignation,  death  or  retirement  of a
     Manager,  or the vacation of office by a Manager for any reason, his or her
     successor  shall be nominated  and elected by the same member as originally
     proposed the former  Manager.  Any successor so elected shall retain his or
     her office  during such time as the former  Manager was  entitled to retain
     the same.

          (d) Restrictions on the Board. The Board of Managers shall not: (i) do
     any act in  contravention  of any applicable law or regulation or provision
     of this  Agreement;  (ii) posses Company  property for other than a Company
     purpose;  or (iii) admit any new member(s) without the unanimous consent of
     existing  members  or  without  compliance  with  the  provisions  of  this
     Agreement.

          (e) Meetings; Notice. Meetings of the Board of Managers may be held at
     such places and at such times as the Board of Mangers may from time to time
     determine,  and if so determined  by a quorum of the Board of Managers,  no
     advance  notice  of the  meeting  need be given.  Meetings  of the Board of
     Managers may be called at any time by any two (2) Managers.  Written notice
     of the  time,  place  and  purpose  of such  meeting  shall  be  served  by
     registered or certified, prepaid, first-class mail, or by fax or cable upon
     each  member  of the  Board  of  Managers  and  shall  be  given  at  least
     twenty-four (24) hours prior to the time of the meeting.  No notice need be
     given to any  Manager  if a written  waiver of notice,  executed  before or
     after the meeting by such Manager thereunto duly authorized,  is filed with
     the  records of the  meeting,  or to any  Manager  who  attends the meeting
     without  protesting prior thereto or at its commencement the lack of notice
     to him. A waiver of notice need not specify the purpose of the meeting.

          (f)  Meetings;  Electronic  Communications.  Meetings  of the Board of
     Managers  shall be held on such dates as the Board of Managers shall agree,
     but not less  frequently  than once during each fiscal year of the Company.
     Members of the Board of Managers,  or of any  committee  designated  by the
     Board,  may participate in a meeting of such Board or committee 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.

          (g) Quorum and Voting.  A majority of the Managers shall  constitute a
     quorum  for the  transaction  of  business  at a  meeting  of the  Board of
     Managers.  Action  by the  Board  of  Managers  must be  authorized  by the
     unanimous vote of the Managers present at the meeting.

          (h) Action  Without a Meeting.  Any action which is required to be, or
     which may be, taken at any annual, regular, or special meeting of the Board
     of Managers or  otherwise,  may be taken  without a meeting,  without prior
     notice and without a vote if a consent in writing, setting forth the action
     so taken,  shall be signed by all the  Managers  then in  office.  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.

          (i)  Delegation of Powers.  Subject to any limitation set forth in the
     Act, the Board of Managers may delegate any of its powers to  committees or
     to officers  consisting  of persons who may or may not be  Managers.  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 Board of
     Managers.

     Section 4.3 Officers.

          (a) Election,  Term of Office.  Officers shall be elected  annually by
     the Board of Managers.  Except as provided in paragraphs (b) or (c) of this
     Section  4.3,  each officer  shall hold office  until his or her  successor
     shall have been chosen and qualified.  Any two offices, except those of the
     Chief Executive  Officer and the Secretary and the President and 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 Board of
     Managers.  Unless otherwise specified therein,  such resignation shall take
     effect  upon  delivery.  Any  officer  may be removed  from  office with or
     without cause by the Board of Managers.

          (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 Board of Managers.

          (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
     as  directed  by the Board of Managers  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 and as are authorized by
     the Board of Managers. 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 Board of Managers.

          (e) Chief Executive Officer.  Subject to the further directives of the
     Board of  Managers,  the Chief  Executive  Officer  shall have  general and
     active management of the business of the Company subject to the supervision
     of the Board of Managers,  shall see that all orders and resolutions of the
     Board of Managers and member(s) are carried into effect and shall have such
     additional  powers and authority as are specified by the provisions of this
     Agreement and the Board of Managers.

          (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 Board of Managers.
     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 Board of Managers may from
     time to time prescribe.

          (g)  Other  Officers.  The  Board of  Managers  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 Board of Managers may determine in
     its sole  discretion.  The Board of Managers 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
     Board of  Managers,  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 4.4 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely  conclusively  upon the power and  authority of the  member(s),
Board of Managers, and officers herein set forth.

     Section 4.5 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) and Board of Managers;

          (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.  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).  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. At any time that there is more than one member, capital
accounts shall be maintained in accordance  with the tax  accounting  principles
prescribed by the Treasury  Regulations  promulgated under Code Section 704 (the
"Allocation  Regulations"),  so  that  the  tax  allocations  provided  in  this
Agreement  shall, to the extent  possible,  have  "substantial  economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have  substantial  economic  effect,  so  that  they  may  be  deemed  to be "in
accordance  with the member(s')  interests in the Company" within the meaning of
the Allocation Regulations.

                                   ARTICLE VI

                    Allocations, Distribution and Withholding

     Section  6.1  Allocations.  The Net  Profit  and Net  Loss of the  Company,
including  each item of  income,  gain,  loss,  deduction  and  credit  shall be
allocated  with  respect to each  Fiscal  Year (or  portion  thereof)  among the
members in proportion to their membership interest percentages.

     Section 6.2 Distributions. Distributions may be made to the members at such
times as determined in the sole discretion of the Board of Managers,  or at such
other times as the members by unanimous consent shall determine.

     Section 6.3 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may  receive  distributions  from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.

     Section  6.4  Withholding.  The  Company is  authorized  to  withhold  from
distributions  to a member,  or with respect to allocations to a member,  and to
pay over to a federal,  state or local  government,  any amounts  required to be
withheld  pursuant to the Internal Revenue Service Code or any provisions of any
other  federal,  state or local law. Any amounts so withheld shall be treated as
having been  distributed to such member for all purposes of this Agreement,  and
shall be offset against the current or next amounts  otherwise  distributable to
such member.

                                   ARTICLE VII

                             Assignment of Interests

     Section 7.1  Assignment of Interests.  A member may assign and transfer all
or any part of its Interest upon the written  consent of all other  members,  if
any.  Provided  that a transfer is permitted in  accordance  with the  preceding
sentence and the transferee agrees to be bound by the terms of this Agreement by
executing a counterpart  hereto or the transferee and members execute an Amended
and Restated  LLC  Agreement of the  Company,  such  transferee  shall be deemed
admitted as a member of the Company to the extent of such transferred  Interest,
and immediately  thereafter the transferor shall be deemed withdrawn as a member
of the Company to the extent of such transferred Interest.

                                  ARTICLE VIII

                                   Dissolution

     Section 8.1 Duration. The duration of the Company shall be perpetual.

     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 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.  The Company  shall  timely make all  necessary
elections  and filings for federal,  state,  and local tax purposes such that it
will be treated as a partnership for federal, state, and local tax purposes.

                                    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, any member, or any Manager, officers, 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 the  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 all the Members.

     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
Members 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.  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 (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to
those set forth in this Agreement as is permissible under applicable law.

     Section 11.4 Filings.  Cecilia Temple was an "authorized person" within the
meaning of the Act for purposes of filing the original  Certificate of Formation
of the Company  with the State of Delaware on January 10,  2002.  Following  the
execution and delivery of this  Agreement,  the Members each with the ability to
act independently  shall be "authorized  persons" within the meaning of the Act,
and shall prepare any documents required to be filed and recorded under the Act,
and the Members 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  Members  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  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 11.6 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 11.7 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 11.8 Books and Records; Accounting. The Members shall keep or cause
to be kept at the  address of the Company (or at such other place as the Members
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 have duly executed this Agreement as of
the date first above written.



CINERGY CAPITAL & TRADING, INC.              CINFUEL RESOURCES, INC.



By:                                          By:
   ------------------------------               ----------------------------
     Michael J. Cyrus                             R. Foster Duncan
     President                                    Executive Vice President
EX-99 44 b-420.htm A&R LLC AGREE RIDGE CREST Ridge Crest Wind Partners LLC 
            Amended and Restated Limited Liability Company Agreement

                                       for

                         Ridge Crest Wind Partners, LLC

                      A Delaware Limited Liability Company



This AMENDED AND RESTATED Limited Liability COMPANY AGREEMENT (this "Agreement")
for Ridge Crest Wind Partners, LLC (the "Company") dated as of January 26, 2001,
is entered  into and made  effective  by Cinergy  Global  Peetz Table I, Inc., a
Delaware corporation ("Member"), as of the Effective Date, with reference to the
following facts:

A. Ridge Crest Wind Partners, LLC is a Delaware limited liability company formed
by enXco,  Inc.  (sometimes  referred  to as  "Initial  Member")  by filing  its
Certificate  of  Formation  with the  Secretary of State of Delaware on June 11,
1998. This Agreement is an amendment to and restatement of the Limited Liability
Company Operating  Agreement of Ridge Crest Wind Partners,  LLC, effective as of
June 11, 1998 (the "Initial Limited Liability Company Agreement");

B. Member now wishes to replace the Initial Limited  Liability Company Agreement
in its entirety by entering into this Agreement to provide for the governance of
the Company and the conduct of its business as a limited liability company. This
Agreement shall be considered the "Limited  Liability Company  Agreement" of the
Company within the meaning of Section 18-101(7) of the Act.

NOW  THEREFORE,  the  Initial  Limited  Liability  Company  Agreement  is wholly
replaced and  superseded  by this  Agreement in its entirety and this  Agreement
shall read as follows:

1.   Definitions

Capitalized  terms used in this Agreement  shall have the meanings  respectively
given  thereto in this Section 1 or elsewhere in this  Agreement and when not so
defined shall have the meanings set forth in the Act.

"Act" means the Delaware Limited  Liability  Company Act, 6 Del.  C.ss.18-101 et
seq., as amended from time to time.

"Affiliate"  means, with respect to any Member,  any person:  (i) that owns more
than 5 % of the voting interests in the Member; or (ii) in which the Member owns
more  than 5% of the  voting  interests;  or (iii) in which  more than 5% of the
voting  interests are owned by a Person who has a  relationship  with the Member
described in clause (i) or (ii) above.

"Agreement"  means this Amended and Restated Limited Liability Company Agreement
for Ridge Crest Wind Partners, LLC as may be amended from time to time.

"Capital  Account"  means the  account to be  maintained  by the  Company on the
Company's books and records for each Member in accordance with Section 3.6.

"Capital  Contribution"  means, with respect to any Member,  the total amount of
cash and the  Gross  Asset  Value of any  other  assets  contributed  or  deemed
contributed  to the  Company  by the Code (net of  liabilities  secured  by such
contributed  property  that the Company is considered to assume or take "subject
to" under Code Section 752) or services  rendered or a promissory  note or other
binding  obligation  to  contribute  cash or  assets or to  render  services  as
permitted under the Act in  consideration  of Membership  Rights held by such. A
Capital Contribution shall not be deemed a loan.

"Capital  Proceeds"  means the gross  receipts  received by the  Company  from a
Capital Transaction.

"Capital Transaction" means any transaction other than in the ordinary course of
business which results in the Company's  receipt of cash or other  consideration
other than Capital  Contributions,  including,  without limitation,  proceeds of
sales or exchanges or other  dispositions of property other than in the ordinary
course of  business,  financings,  refinancings,  condemnations,  recoveries  of
damage awards and insurance proceeds.

"Cash  Flow"  means  all cash  funds  derived  from  operations  of the  Company
(including  interest  received on reserves),  without reduction for any non-cash
charges,  but less cash funds used to pay current operating  expenses and to pay
or establish  reasonable  reserves for future expenses,  debt payments,  capital
improvements,  and  replacements as determined by the Managers.  Cash Flow shall
include net proceeds from all sales,  refinancings,  and other  dispositions  of
Company  property  that the  Managers  deem in excess of the  amount  reasonably
necessary for the  operating  requirements  of the Company.  Cash Flow shall not
include Capital  Proceeds but shall be increased by the reduction of any reserve
previously established.

"Certificate  of Formation"  means the  Certificate  of Formation of the Company
filed with the Secretary of State of Delaware in accordance  with the Act by the
Initial Member on June 11, 1998.

"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.

"Company"  means Ridge Crest Wind Partners,  LLC, a Delaware  limited  liability
company.

"Company  Assets"  means  all the  direct  and  indirect  interests  in real and
personal  property owned by the company from time to time and shall include both
tangible and intangible property (including cash).

"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization,  or other cost  recovery  deduction  allowable  with respect to an
asset for such  Fiscal  Year,  except  that if the Gross Asset Value of an asset
differs from its adjusted basis for federal income tax purposes at the beginning
of such Fiscal Year,  Depreciation shall be an amount which bears the same ratio
to such  beginning  Gross Asset Value as the  federal  income tax  depreciation,
amortization,  or other cost  recovery  deduction  for such Fiscal Year bears to
such beginning adjusted tax basis;  provided however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Members.

"Effective Date" is January 26, 2001.

"EWG" means an exempt wholesale  generator as such term is defined in Section 32
of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.

"Fiscal Year" shall have the meaning given in Section 2.7.

"Gross Asset Value" means with respect to any asset,  the asset's adjusted basis
for federal income tax purposes, except as follows:

          (i)  The initial Gross Asset Value of any item of property contributed
               by Member to the Company  shall be the gross fair market value of
               such asset, as mutually agreed by the contributing Member and the
               Company;

          (ii) The Gross Asset Values of all Company Assets shall be adjusted to
               equal their  respective  gross fair market  values  (taking  Code
               Section  7701(g)  into  account) in  accordance  with  Regulation
               Section  1.704-1(b)(2)(iv)(f) and as determined by the Members as
               of the  following  times:  (a) the  acquisition  of an additional
               interest in the Company by any new or existing Member in exchange
               for  more  than  a  de  minimis  Capital  Contribution;  (b)  the
               distribution by the Company to a Member of more than a de minimis
               amount of Company  property as  consideration  for an interest in
               the Company;  and (c) the  liquidation  of the Company within the
               meaning of Regulation Section 1.704-1(b)(2)(ii)(g), provided that
               an adjustment  described in clauses (a) and (b) of this paragraph
               shall be made only if the Members reasonably  determine that such
               adjustment is necessary to reflect the relative  Interests of the
               Members in the Company;

          (iii)The Gross Asset Value of any item of Company  Assets  distributed
               to any Member  shall be  adjusted  to equal the gross fair market
               value (taking Code Section 7701(g) into account) of such asset on
               the date of  distribution  as  mutually  agreed by the  receiving
               Member and the Company; and

          (iv) The Gross Asset Values of Company  Assets shall be increased  (or
               decreased) to reflect any  adjustments  to the adjusted  basis of
               such assets  pursuant to Code  Section 732 or Code Section 734 or
               Code  Section  743,  subject to the  limitations  imposed by Code
               Section  755 and only to the  extent  that such  adjustments  are
               taken into account in determining  Capital  Accounts  pursuant to
               Regulation Section  1.704-1(b)(2)(iv)(m)  and subparagraph (e) of
               the  definition  of  "Net  Profits"  or "Net  Losses";  provided,
               however,  that Gross Asset Values shall not be adjusted  pursuant
               to this  subparagraph  (iv)  to the  extent  that  an  adjustment
               pursuant to  subparagraph  (ii) is required in connection  with a
               transaction that would otherwise result in an adjustment pursuant
               to this subparagraph (iv).

     If the  Gross  Asset  Value of an asset  has been  determined  or  adjusted
     pursuant  to  subparagraph  (ii) or (iv),  such  Gross  Asset  Value  shall
     thereafter be adjusted by the Depreciation  taken into account with respect
     to such asset, for purposes of computing Profits and Losses.

"Initial Member" means enXco, Inc.

"Interest"  means an Interest  Holder's  share of the Profits and Losses of, and
the right to receive  distributions  from the Company,  but does not include any
other rights of a Member including,  without limitation, the right to vote or to
participate in management,  or any right to information  concerning the business
and affairs of the Company.

"Interest Holder" means any Person who holds an Interest, whether as a Member or
as an assignee of a Member who has not been admitted to the Company as a Member.

"Involuntary  Withdrawal"  means, with respect to any Member,  the occurrence of
any of the following events;

          (i)  the Member makes an assignment for the benefit of creditors;

          (ii) the Member files a voluntary petition of bankruptcy;

          (iii)the Member is adjudged  bankrupt or insolvent or there is entered
               against  the  Member an order for  relief  in any  bankruptcy  or
               insolvency proceeding;

          (iv) the Member files a petition or answer  seeking for the Member any
               reorganization,     arrangement,    composition,    readjustment,
               liquidation,  dissolution,  or similar  relief under any statute,
               law, or regulation;

          (v)  the Member seeks,  consents to, or acquiesces in the  appointment
               of a trustee,  receiver, or liquidator of the Member or of all or
               any substantial part of the Member's properties;

          (vi) the Member files an answer or other pleading admitting or failing
               to contest the material  allegations  of a petition filed against
               the Member in any proceeding described in Subsections (i) through
               (v);

          (vii)within one  hundred  twenty  days  (120)  days of any  proceeding
               against   the   Member   seeking   reorganization,   arrangement,
               composition,  readjustment,  liquidation, dissolution, or similar
               relief under any statute,  law, or regulation  if the  proceeding
               has not been  dismissed,  or within  ninety  (90) days  after the
               appointment of a trustee,  receiver, or liquidator for the Member
               or all or any substantial part of the Member's properties without
               the Member's agreement or acquiescence,  which appointment is not
               vacated or stayed,  or if the  appointment is stayed,  for ninety
               (90) days  after the  expiration  of the stay  which  period  the
               appointment is not vacated;

          (viii)  if  the  Member  is  an  individual,  the  Member's  death  or
               adjudication by a court of competent  jurisdiction as incompetent
               to manage the Member's person or property;

          (ix) if the  Member is acting as a Member by virtue of being a trustee
               of a trust, the termination of the trust;

          (x)  if the  Member is a  partnership  or  another  limited  liability
               company,  the dissolution  and  commencement of winding up of the
               partnership or limited liability company;

          (xi) if  the  Member  is  a  corporation,   the   dissolution  of  the
               corporation or the revocation of its charter; or

          (xii)if the Member is an estate,  the distribution by the fiduciary of
               the estate's entire interest in the limited liability company.

"Manager(s)" is the Person(s)  designated as such in Article 5 of this Agreement
or who is later elected as a Manager pursuant to the terms of this Agreement.

"Member"   means  Cinergy  Global  Peetz  Table  I,  Inc.  and  any  Person  who
subsequently is admitted as a Member of the Company in accordance with the terms
of this Agreement.

"Membership  Interest"  means the entire  ownership  interest of a Member in the
Company at any particular time, including without limitation: (i) interest, (ii)
right to inspect the Company's books and records; and (iii) right to participate
in the management of and vote on matters coming before the Company.

"Minimum  Gain" of the Company,  as provided in Regulation  Section  1.704-2(d),
means the total amount of gain the Company would realize for federal  income tax
purposes if it disposed of all assets  subject to their  respective  nonrecourse
liabilities for no consideration other than the full satisfaction thereof.

"Negative  Capital  Account" means a Capital Account with a balance of less than
zero.

"Nonrecourse  Deduction"  has  the  meaning  set  forth  in  Regulation  Section
1.704-2(b)(1).  The amount of  Nonrecourse  deductions for a Company fiscal year
equals the net increase in the amount of Company Minimum Gain during that fiscal
year,  reduced (but not below zero) by the aggregate amount of any distributions
during  that  fiscal  year of  proceeds  of a  Nonrecourse  Liability  that  are
allocable to an increase in Company Minimum Gain.

"Nonrecourse  Liability"  has  the  meaning  set  forth  in  Regulation  Section
1.752-1(a)(2).

"Percentage"  means, as to a Member, the percentage set forth after the Member's
name on Exhibit A of this Agreement,  as amended from time to time, and as to an
Interest  Holder who is not a Member,  the Percentage of the Member(s)  Interest
that has been  acquired  by such  Interest  Holder,  to the extent the  Interest
Holder has succeeded to that Member's Interest.

"Person" means an individual,  partnership,  limited partnership, trust, estate,
association,  corporation,  limited liability company, or other entity,  whether
domestic or foreign.

"Positive  Capital  Account" means a Capital Account with a balance greater than
zero.

"Profit"  and  "Loss"  means,  for each  Fiscal  Year of the  Company  (or other
period),  an amount equal to the Company's  taxable income or loss determined in
accordance  with Code Section  703(a)(for  this  purposes,  all items of income,
gain,  loss or  deduction  required  to be stated  separately  pursuant  to Code
Section  703(a)(1)  shall be  included  in  taxable  income or  loss),  with the
following adjustments:

          (i)  any tax  exempt  income  of the  Company  shall  be  included  in
               computing Profit and Loss;

          (ii) any  expenditures  of  the  Company  described  in  Code  Section
               705(a)(2)(B)  (or treated as such pursuant to Regulation  Section
               1.704-1(b)(2)(iv)(i))  and not  otherwise  taken into  account in
               computing  Profit or Loss,  shall be  subtracted  from  Profit or
               Loss;

          (iii)gain  or Loss  resulting  from  any  disposition  of any  Company
               Assets where such gain or Loss is recognized  for federal  income
               tax  purposes  shall be computed by  reference to the Gross Asset
               Value of the Company Assets disposed of notwithstanding  that the
               adjusted tax basis of such Company  Assts  differs from its Gross
               Asset Value;

          (iv) in lieu of the depreciation, amortization and other cost recovery
               deductions taken into account in computing such taxable income or
               loss,  there shall be taken into  account  Depreciation  for such
               Fiscal Year;

          (v)  if the Gross  Asset  Value of any  Company  Asset is  adjusted in
               accordance  with  subparagraphs  (ii) or (iii) of the  definition
               thereof,  the  amount  of such  adjustment  shall be  taken  into
               account in the taxable  year of such  adjustment  as gain or loss
               from the  disposition of such asset for the purposes of computing
               Profit of Loss; and

          (vi) notwithstanding any other provision of this definition, any items
               that are specially  allocated pursuant to Section 4.2.2 shall not
               be taken into account in computing Profit and Loss.

"PUHCA" means the Public Utility  Holding  Company Act of 1935 and all rules and
regulations adopted thereunder.

"Regulation"   means  the  income  tax  regulations,   including  any  temporary
regulations, from time to time promulgated under the Code.

"Secretary of State" means the Secretary of State of the State of Delaware.

"Transfer"  means,  with respect to any Interest or  Membership  Interest in the
Company, a sale, conveyance,  exchange,  assignment,  pledge,  encumbrance gift,
bequest,  hypothecation  or other  transfer or  disposition  by any other means,
whether  for  value  or no  value  and  whether  voluntary  or  involuntary.

2.   Organizational Matters

2.1  Organization

     The Initial  Member has filed a  Certificate  of Formation  for Ridge Crest
     Wind Partners, LLC, a Delaware limited liability company, on June 11, 1998,
     and the Company was  registered to do business  under the laws of the State
     of Colorado on January 18, 2001.  Member has acquired all of the Membership
     Interest of the Initial Member by way of Transfer.  Following  execution of
     this Agreement, the Managers shall cause an amendment to the Certificate of
     Formation,  in the form attached to this  Agreement as Exhibit B (which may
     be executed by any one of the Managers),  to be filed with the Secretary of
     State.  The Managers shall also cause to be made, on behalf of the Company,
     such additional  filings and recordings in such other states as the Members
     shall deem necessary or advisable.

2.2  Name

     The name of the Company  shall remain Ridge Crest Wind  Partners,  LLC. The
     Company may do  business  under that name and under any other name or names
     approved by the Members.

2.3  Business

     The Company may engage in any business or projects  relating to wind energy
     generation   including   the   development,   construction,   installation,
     ownership,   operation,   maintenance   and   management  of   wind-powered
     electricity  generating  plant  and to  undertake  any and  all  activities
     related or incident thereto.

2.4  Term

     The  term of the  Company  commenced  as of the date of the  filing  of the
     Certificate  of Formation  and shall  continue on a perpetual  basis unless
     dissolved pursuant to Article 7 of this Agreement.

2.5  Registered Office and Agent

     The  registered  agent of the  Company  is CT  Corporation  Trust  Company,
     Corporation Trust Center, 1209 Orange Street,  Wilmington,  Delaware 19801,
     or such other agent as determined by the Managers.  The principal  business
     office  of the  company  shall  be  located  at  139  East  Fourth  Street,
     Cincinnati,  Ohio  45202,  or  such  other  location  as the  Managers  may
     determine.

2.6  Members

     The name,  present mailing address,  taxpayer  identification  number,  and
     Percentage  of each of the  Members  are set forth on  Exhibit  A  attached
     hereto.  The Managers shall amend Exhibit A each and every time a Member is
     admitted  or ceases to be a Member  or when the  Percentage  of a Member is
     increased or decreased.

2.7  Fiscal Year

     The  Fiscal  Year of the  Company  shall  begin on  January  1st and end on
     December  31st.  The Company shall have the same fiscal year for accounting
     and for income tax purposes. 3. Members; Capital and Capital Accounts

3.1  Capital Contributions

     Initial  Member has made a Capital  Contribution  of $1,000  (One  Thousand
     Dollars). The Member shall not be required to make a Capital Contribution.

3.2  Additional Capital Contributions

     The  Members  shall  not  be  required  to  make  any  additional   Capital
     Contributions.

3.3  No Interest on Capital Contributions

     The Company shall not pay any interest on Capital Contributions.

3.4  Return of Capital Contributions

     Except as otherwise provided in this Agreement, neither the Members nor any
     Interest  Holder  shall have the right to receive the return of any Capital
     Contribution except upon dissolution of the Company.

3.5  [Intentionally Left Blank]

3.6  Capital Accounts

    3.6.1 A separate  Capital  Account shall be  maintained  for each Member and
          each Interest Holder.

    3.6.2 An Interest  Holder's  Capital  Account  shall be  increased  with the
          Interest  Holder's  Capital  Contributions,  the amount of any Company
          liabilities  assumed by the  Interest  Holder (or which are secured by
          Company  property  distributed to the Interest  Holder),  the Interest
          Holder's  distributive  share of Profit  and any item in the nature of
          income or gain specially allocated to such Interest Holder pursuant to
          the provisions of Section 4; and

    3.6.3 An Interest  Holder's  Capital  Account  shall be  decreased  with the
          amount of money  and the Gross  Asset  Value of any  Company  property
          distributed to the Interest  Holder,  the amount of any liabilities of
          the  Interest  Holder  assumed by the Company (or which are secured by
          property  contributed  by the  Interest  Holder to the  Company),  the
          interest  Holder's  distributive  share of  Loss,  and any item in the
          nature of  expenses  or losses  specially  allocated  to the  Interest
          Holder pursuant to the provisions of Section 4.

    3.6.4 If  any  Interest  is  transferred  pursuant  to  the  terms  of  this
          Agreement,  the transferee shall succeed to the Capital Account of the
          transferor to the extent the Capital  Account is  attributable  to the
          transferred Interest.

    3.6.5 If the Gross  Asset Value of Company  Assets is  adjusted  pursuant to
          Section 3.6.6,  the Capital  Account of each Member or Interest Holder
          shall be  adjusted  to reflect the  aggregate  adjustment  in the same
          manner as if the  Company  had  recognized  gain or Loss  equal to the
          amount of such aggregate adjustment.

    3.6.6 It is intended that the Capital Accounts of all Interest Holders shall
          be maintained in compliance with the provisions of Regulation  Section
          1.704-1(b)(2)(iv),  and all provisions of this  Agreement  relating to
          the  maintenance of Capital  Accounts shall be interpreted and applied
          in a manner consistent with that Regulation.

3.7  Loans and Other Business Transactions

     Any Member may, at any time,  make or cause to be made a non-recourse  loan
     to the  Company  in any  amount  and on those  terms  upon which the Member
     making  such  non-recourse  loan and the  Company  may  agree  in  writing.
     Acceptance  by the Company of any such Loan  provided by a Member  requires
     the prior  unanimous  consent of the Members.  Any Member may also transact
     other business,  subject to the requirement provided in Section 5.3.4, with
     the Company and be an employee  or  independent  contractor  of the Company
     and,  in doing so, it shall have the same rights and be subject to the same
     obligations  arising out of any such business  transaction or employment or
     consultant  relationship,  as  would be  enjoyed  by and  imposed  upon any
     Person,  not a Member,  engaged in a similar business  transaction with the
     Company. 4. Allocations of Profit and Loss and Distributions

4.1  Distributions of Cash Flow

     Except as otherwise provided in Section 4.7.1 with respect to distributions
     upon  liquidation  of the  Company,  Cash Flow for each  Fiscal Year of the
     Company shall be distributed to the Interest Holders in proportion to their
     Percentages at such time or times and in such  aggregate  amounts as may be
     determined by the Managers. Cash Flow, other than revenues or proceeds from
     a  Capital  Transaction  or  the  dissolution  of  the  Company,  shall  be
     distributed as soon as practicable following a Manager's determination that
     such cash is available for  distribution.  The Members  acknowledge that no
     assurances  can be given with  respect to when or whether such cash will be
     available for distributions to the Members.

4.2  Allocations of Profits and Losses

    4.2.1 General.  Except as otherwise provided in this Section 4.2, Profit and
          Loss of the Company shall be allocated  among the Interest  Holders as
          follows:

     4.2.1.1 Profit and Loss of the Company  shall be  allocated to the Interest
          Holders in proportion to their respective Percentages.

     4.2.1.2 In accordance with the provisions of Regulation Section 1.704-2(i),
          each  item of an  Interest  Holder's  Nonrecourse  Deduction  shall be
          allocated  among the Interest  Holders in  proportion  to the economic
          risk of loss  that the  Interest  Holder  bears  with  respect  to the
          nonrecourse liability of the Company to which such item of an Interest
          Holder's Nonrecourse Deduction is attributable.

    4.2.2 Allocation  Adjustments  Required to Comply with Section 704(b) of the
          Code

     4.2.2.1 Limitation on Allocation of Loss.  Notwithstanding Section 4.2.1.1,
          there shall be no allocation of Loss to any Interest Holder that would
          create or increase a deficit balance in such Interest Holder's Capital
          Account  unless  such  allocation  would be  treated  as valued  under
          Regulation Section 1.704-1(b)(1)(i). Any Loss that cannot be allocated
          to an Interest  Holder  pursuant to the  preceding  sentence  shall be
          reallocated  to the other  Interest  Holders  in  proportion  to their
          Percentages.

     4.2.2.2 Qualified Income Offset. Notwithstanding Section 4.2.1.1, if in any
          taxable year an Interest Holder receives (or is reasonably expected to
          receive)  a  distribution,  or an  allocation  or  adjustment  to such
          Interest  Holder's  Capital  Account,  in accordance  with  Regulation
          Section   1.704-1(b)(2)(ii)(d)(4),   (5)  and  (6),  that  creates  or
          increases (or is reasonably  expected to create or increase) a deficit
          balance in such  interest  Holder's  Capital  Account,  there shall be
          allocated to the Interest  Holder such items of Company income or gain
          as are necessary to satisfy the  requirements  of a "qualified  income
          offset"     within    the     meaning    of     Regulation     Section
          1.704-1(b)(2)(ii)(d)(3).

     4.2.2.3  Minimum  Gain  Chargeback.  Notwithstanding  Section  4.2.1,  this
          Section  4.2.2.3  hereby  incorporates  by reference the "minimum gain
          chargeback" provisions of Regulation Section 1.704-2(f) and (i)(4). In
          general, upon a reduction of the Company's Minimum Gain, the preceding
          sentence  shall  require  that items of income  and gain be  allocated
          among the Interest Holders in a manner that reverses prior allocations
          of Nonrecourse  Deductions and Interest Holder Nonrecourse  Deductions
          as  well  as  reductions  in the  Interest  Holders'  Capital  Account
          balances resulting from distributions  that,  notwithstanding  Section
          4.6, are allocable to increases in the Company's Minimum Gain. Subject
          to the  provisions  of  Section  704 of the Code  and the  regulations
          thereunder,  if the Managers  determine at any time that  operation of
          such "minimum gain chargeback" provisions likely will not achieve such
          a reversal by the conclusion of the  liquidation  of the company,  the
          Managers shall adjust the allocation  provisions of this Section 4.2.2
          as necessary to accomplish this result.

     4.2.2.4  Allocations  Subsequent  to Certain  Allocation  Adjustments.  Any
          special  allocations  of items of Profit or Loss  pursuant to Sections
          4.2.2.1,  4.2.2.2 or 4.2.2.3  shall be taken into account in computing
          subsequent  allocations  pursuant to Section  4.2.1 so that,  for each
          Interest  Holder,  the net amount of any such special  allocations and
          all  allocations  pursuant  to  Section  4.2.1  shall,  to the  extent
          possible and taking into account prior allocations pursuant to Section
          4.2.7,  be equal to the net amount that would have been  allocated  to
          such Interest Holder pursuant to Section 4.2.1 without  application of
          Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3.

     4.2.3 Book - Tax Accounting Disparities

          If the Company  Assets are  reflected  in the Capital  Accounts of the
          Interest Holders at a Gross Asset Value that differs from the adjusted
          tax  basis  of  such  property  (whether  because  such  property  was
          contributed  to the  Company  by an  Interest  Holder or  because of a
          revaluation of the Interest Holders' Capital Accounts under Regulation
          Section  1.704-1(b)),   allocations  of  depreciation,   amortization,
          income, gain or loss with respect to such property shall be made among
          the  Interest  Holders in a manner  which takes such  difference  into
          account  in  accordance   with  Code  Section  704(c)  and  Regulation
          Section1.704-3(d) using the remedial method.

     4.2.4 Allocation in Event of Transfer

          If an  Interest  is  Transferred,  in  compliance  with  Section  6.1,
          allocations of the Company's Profit and Loss may be made by any method
          that is selected by the Managers and that is permissible under Section
          706 of the Code.

     4.2.5 Adjustments to Capital Accounts for Distributions of Property

          If property  distributed in kind is reflected in the Capital  Accounts
          of the  Interest  Holders at a Gross Asset Value that differs from the
          fair market value of such  property on the date of  distribution,  the
          difference  shall  be  treated  as  Profit  or Loss on the sale of the
          property and shall be  allocated  to the Interest  Holder who received
          such distribution.

     4.2.6 Tax Credits and Similar Items.

          Any tax credits or similar  items not  allocable  pursuant to Sections
          4.2.1  through  4.2.5 shall be allocated  to the  Interest  Holders in
          proportion  to  their  respective  Percentages.   Notwithstanding  the
          preceding sentence, Company expenditures that give rise to tax credits
          attributable  to such  expenditures  shall be allocated in  accordance
          with Regulation Section 1.704-1(b)(4)(ii).

     4.2.7 Reallocation of Losses Related to Excess Distributions

          If, as a result of an Interest Holder receiving a distribution of cash
          or property that it is required to return because the distribution was
          not authorized by this Agreement, Loss which otherwise would have been
          allocated  to the Interest  Holder was  allocated to one or more other
          Interest  Holders (and such allocation has not been reversed  pursuant
          to  Section  4.2.2.4),  then  subsequent  profit  and  Loss  shall  be
          allocated to the Interest Holder and to the other Interest  Holders so
          as, in  connection  with the return of such cash or  property  (to the
          extent of the value thereof), to effect a reallocation of such Loss to
          the Interest Holder.

4.3  Modifications to Preserve Underlying Economic Objectives

     If in the  opinion  of  counsel  to the  Company,  there is a change in the
     Federal  income  tax law  (including  the Code as well as the  regulations,
     rulings, and administrative  practices thereunder) which makes it necessary
     or prudent to modify the  allocation  provisions of this Section 4 in order
     to preserve the underlying  economic objectives of the Members as reflected
     in this  Agreement,  the  Managers  shall  make  the  minimum  modification
     necessary to achieve such purpose.

4.4  Withholding Taxes

     The Company shall  withhold  taxes from  distributions  to and  allocations
     among,  the  Interest  Holders to the  extent  required  by law.  Except as
     otherwise  provided in this Section 4.4, any amount withheld by the Company
     with regard to an  Interest  Holder  shall be treated for  purposes of this
     Agreement as an amount  actually  distributed to such Interest  Holder.  An
     amount  shall be  considered  withheld  by the  Company  if  remitted  to a
     governmental agency without regard to whether such remittance occurs at the
     same time as the  distribution or allocation to which it relates  provided,
     however that an amount  actually  withheld from a specific  distribution or
     designated by the Managers as withheld from a specific  allocation shall be
     treated  as if  distributed  at the time such  distribution  or  allocation
     occurs. To the extent operation of the foregoing provisions of this Section
     4.4 would  create or  increase a deficit  balance in an  Interest  Holder's
     Capital  Account  (excluding  for this  purpose any portion of such deficit
     attributable to the Interest  Holder's share of the Company's  Minimum Gain
     as determined  under Section 1), the amount  withheld shall be treated as a
     loan by the Company to such  Interest  Holder,  which loan shall be payable
     upon demand and shall bear interest at a rate equal to the lowest rate that
     will  not  give  rise  to  the  imputation  of  additional  interest  under
     applicable  federal income tax rules. At the election of the Managers,  the
     Company  shall be  entitled to withhold  from any  distributions  otherwise
     payable to an Interest  Holder amounts owed to the Company by such Interest
     Holder under the terms of the preceding sentence.

4.5  Nonallocation of Distributions to Increases in Minimum Gain

     To the extent permitted under Regulation Section 1.704-2(h),  distributions
     to Interest  Holders  shall not be allocable to increases in the  Company's
     Minimum Gain. In general,  and except as provided in such  Regulation,  the
     preceding  sentence is intended  to ensure that  reductions  in an Interest
     Holder's Capital Account balance  resulting from  distributions of money or
     other property to that Interest Holder are not reversed by the minimum gain
     chargeback provisions of Section 4.2.2.3.

4.6  Allocation of Liabilities

     Solely for purposes of determining the Interest Holders'  respective shares
     of the  nonrecourse  liabilities  of the  Company  within  the  meaning  of
     Regulation  Section  1.752-3(a)(3),  each  Interest  Holder's  interest  in
     Company Profit shall be equal to such Interest Holder's Percentage.

4.7  Liquidation and Dissolution

     4.7.1Distributions. If the Company is liquidated, the assets of the Company
          shall be  distributed to the Interest  Holders in accordance  with the
          positive balances in their respective  Capital Accounts,  after taking
          into account all  distributions  and allocations of Profit or Loss and
          other  items of income,  gain,  loss or  deduction  for the  Company's
          taxable year during which  liquidation  occurs.  Distributions  of the
          Interest  Holders  pursuant  to this  Section  4.7.1  shall be made in
          accordance with Regulation Section 1.704-1(b)(2)(ii)(b)(2).

    4.7.2 Negative  Capital  Accounts.  No Interest Holder shall be obligated to
          restore a negative Capital Account balance.

4.8  General

    4.8.1 Except as  otherwise  provided  in this  Agreement,  the amount of all
          distributions  shall be determined  by the Managers and  distributions
          shall  be  made  as  soon  as   practicable   following   a  Manager's
          determination. The Members acknowledge that no assurances can be given
          with respect to when or whether such  distributions  will be available
          to the Members.

    4.8.2 The  Company  Assets  may be  distributed  in  kind  to  the  Interest
          Holders,  and those  assets shall be valued on the basis of their fair
          market value.  The fair market value of the assets shall be determined
          by the Members.  In the case of  disagreement  among the  Members,  an
          independent  appraiser,  who shall be  selected  by a  Manager,  shall
          determine  the fair market value of the asset.  The Profit or Loss for
          each unsold asset shall be determined as if the asset had been sold at
          its fair market  value,  and the Profit or Loss shall be  allocated to
          the Interest  Holders who  received  such  distributions  and shall be
          properly  credited or charged to the Capital  Accounts of the Interest
          Holders  prior  to the  distribution  of  the  assets  in  liquidation
          pursuant to Section 4.7.

    4.8.3 All Profit and Loss shall be allocated,  and all  distributions  shall
          be made to the  Persons  shown on the  records of the  Company to have
          been Interest Holders as of the last day of the taxable year for which
          the  allocation or  distribution  is to be made.  Notwithstanding  the
          foregoing,  unless  the  Company's  taxable  year  is  separated  into
          segments,  if there is a Transfer or an Involuntary  Withdrawal during
          the taxable year,  the Profit and Loss shall be allocated  between the
          original  Interest Holder and the successor on the basis of the number
          of days each was an Interest Holder during the taxable year; provided,
          however,  the Company's  taxable year shall be segregated  into two or
          more  segments  in order  to  account  for  Profit,  Loss or  proceeds
          attributable  to a Capital  Transaction or to any other  extraordinary
          non-recurring items of the Company.

    4.8.4 The Managers are hereby  authorized,  upon the advice of the Company's
          tax  counsel,  to amend this Article 4 to comply with the Code and the
          Regulations promulgated under Code Section 704(b); provided,  however,
          that no amendment shall materially affect distributions to an Interest
          Holder  without  the  Interest  Holder's  prior  written  consent.  5.
          Manager(s) and Management

5.1  Management

     5.1.1 Manager(s) and Appointment

     The Company shall be managed by the Manager(s), who may, but need not, be a
     Member.  Member hereby  designates  Philip J. Taylor,  David L. Wozny, Gill
     Howard  and  Bradley  C.  Arnett  to  serve  as  the  Managers.  The  above
     individuals  shall serve as Managers until such  individuals  resign or are
     removed by the Member(s);  provided,  however,  that a Manager shall not be
     permitted  to resign if such  Manager  is, at the time,  the sole  Manager,
     unless  and  until a  replacement  Manager  shall  be  elected  to serve as
     Manager.

     5.1.2 General Powers

     Each  Manager  individually  shall  have  full,  exclusive,   and  complete
     discretion,  power,  and  authority,  subject  in all  cases  to the  other
     provisions of this  Agreement and the  requirements  of applicable  law, to
     manage,  control,  administer,  and operate the business and affairs of the
     Company for the Purposes herein stated, and to make all decisions affecting
     such  business  and  affairs,  including  without  limitation,  for Company
     purposes, the power to:

          (a)  acquire by purchase,  lease,  or otherwise,  any real or personal
               property, tangible or intangible;

          (b)  construct,  operate,  maintain,  finance and improve, and to own,
               sell,  convey,  assign,  mortgage,  or lease  any of the  Company
               Assets;

          (c)  enter  into  agreements  and  contracts  in  connection  with the
               Company's business;

          (d)  purchase  liability and other  insurance to protect the Company's
               properties and business;

          (e)  borrow money for and on behalf of the Company,  and,  execute any
               guaranty on behalf of a third party;

          (f)  execute or modify  agreements  or  contracts  with respect to any
               part or all of the Company's Assets;

          (g)  prepay, in whole or in part, refinance,  amend, modify, or extend
               any  mortgages  or deeds of trust  which may affect  any  Company
               Asset and, in connection therewith,  to execute for and on behalf
               of the Company any extensions, renewals, or modifications of such
               mortgages or deeds of trust;

          (h)  execute any and all other  instruments and documents which may be
               necessary or in the opinion of the Manager desirable to carry out
               the intent and purpose of this Agreement;

          (i)  make any and all  expenditures  which  the  Manager,  in its sole
               discretion, deems necessary or appropriate in connection with the
               management  of the affairs of the Company and the carrying out of
               its  obligations  and  responsibilities   under  this  Agreement,
               including,  without limitation,  all legal, accounting, and other
               related  expenses  incurred in connection with the  organization,
               financing, and operation of the Company;

          (j)  enter into any kind of activity necessary to, in connection with,
               or  incidental  to, the  accomplishment  of the  purposes  of the
               Company; and

          (k)  invest and reinvest Company reserves in short term instruments or
               money market funds

     5.1.3 Extraordinary Transactions

          (a)  Notwithstanding  anything to the contrary in this Agreement,  the
               Managers  shall not undertake  any of the  following  without the
               approval of the Members:

               (i)  any Capital Transaction;

               (ii) to lend,  assume or  guaranty  debt in excess of $100,000 in
                    any one Fiscal Year;

               (iii)the admission of  additional  or  substitute  Members to the
                    Company;

               (iv) the Company engaging in business in any  jurisdiction  which
                    does not provide for the  registration of limited  liability
                    companies;

               (v)  to  authorize  any   expenditure   that  causes  the  annual
                    expenditure  budget to be exceeded by fifteen  percent (15%)
                    in any one Fiscal Year; and

               (vi) to provide loans to any Member; assume the debt of a Member;
                    guaranty  debt  of a  Member;  or  acceptance  of  any  loan
                    provided by a Member.

     5.1.4 Limitation on Authority of Members

          (a)  No Member is an agent of the Company  solely by virtue of being a
               Member, and no Member has authority to act for the Company solely
               by virtue of being a Member.  Only the Managers are authorized to
               act for the Company,  and no Member has any  authority to act for
               the Company unless such Member is also a Manager.

          (b)  This Section 5.1.4 supersedes any authority granted to the Member
               pursuant to Section  18-402 of the Act.  Any Member who takes any
               action or binds the Company in violation  of this  Section  5.1.4
               shall be solely  responsible for any loss or expense  incurred by
               the  Company  as a result of the  unauthorized  action  and shall
               indemnify and hold the Company  harmless with respect to the loss
               or expense.

     5.1.5 Removal of Manager

     The  Members,  at any time and from  time to time and for any  reason,  may
     remove any Manager then acting and elect a new Manager. No action to remove
     a Manager may be taken without the approval of  seventy-five  percent (75%)
     of the Members.

5.2  Meetings of and Voting by Members

    5.2.1 A meeting of the Members may be called at any time by the  Managers or
          by those Members holding at least a majority of the  Percentages  then
          held by Members. It shall not be necessary for the Managers to call or
          to hold regular meetings of the Members. Meetings of the Members shall
          be held at the Company's  principal  place of business or at any other
          place  designated  by the Person  calling the  meeting.  Not less than
          seven (7) nor more than sixty (60) days before each meeting, a Manager
          shall give  written  notice of the meeting to each Member  entitled to
          vote at the  meeting.  The notice  shall  state the time,  place,  and
          purpose of the meeting. Notwithstanding the foregoing provisions, each
          Member who is entitled to notice may waive  notice,  either  before or
          after the  meeting,  by  executing  a waiver of such notice or if such
          Member is present at the  meeting in person or by proxy.  At a meeting
          of  Members,  the  presence  in person or by proxy of Members  holding
          Percentages,  which aggregate not less than sixty-seven percent (67%),
          constitutes a quorum. A Member may vote either in person or by written
          proxy signed by the Member or by his duly authorized attorney-in-fact.

    5.2.2 Except  as  otherwise  provided  in  this  Agreement,   wherever  this
          Agreement  requires the approval of the Members,  the affirmative vote
          of those Members  holding a majority or more of the  Percentages  then
          held by Member(s) shall be required to approve the matter.

    5.2.3 In lieu of holding a meeting,  the Members may vote or otherwise  take
          action by a written  instrument  indicating the consent of the Members
          holding a majority of the  Percentages  then held.  Any such  approved
          action shall be effective  immediately.  The Company shall give prompt
          notice to all  Members of any action  approved by Members by less than
          unanimous consent.

    5.2.4 The  provisions of this  Agreement are intended to replace  completely
          the  provisions  of the Act with  respect to all matters  concerning a
          Member's voting rights, procedures for meetings of Members, actions by
          Members without meetings, and the use of proxies.

5.3  Services and Duties of Members

    5.3.1 No Member  serving as a Manager  shall be expected to devote his,  her
          or its full  working  time and efforts to the  business and affairs of
          the Company, and each shall only devote so much time and efforts as is
          reasonably required for such purposes.  The Managers shall devote such
          time to the  business  and affairs of the Company as is  necessary  to
          carry out the Manager's  duties set forth in this Agreement.  Managers
          shall be reimbursed by the Company for  reasonable  business  expenses
          incurred on behalf of the company and within guidelines established by
          the Members.

    5.3.2 No Member other than a Member  serving as a Manager shall be expected,
          or  entitled,  to work for the Company  except with the prior  written
          consent of the Managers.

    5.3.3 Except as otherwise  expressly  provided in Section 5.3.4,  nothing in
          this  Agreement  shall be deemed to  restrict in any way the rights of
          the Managers or any Member,  or to any Affiliate of any Manager or any
          Member, to conduct any other business or activity whatsoever,  and the
          Managers or any Member shall not be  accountable  to the Company or to
          any Member  with  respect to that  business  or  activity  even if the
          business  or  activity  competes  with  the  Company's  business.  The
          organization  of the  Company  shall  be  without  prejudice  to their
          respective  rights (or the rights of their  respective  Affiliates) to
          maintain, expand, or diversify such other interests and activities and
          to receive and enjoy profits or  compensation  therefrom.  Each Member
          waives  any  rights  the  Members  might  otherwise  have to  share or
          participate  in such other  interests or activities of the Managers or
          any other Member or any Manager's or Member's Affiliates.

    5.3.4 Each  Member  understands  and  acknowledges  that the  conduct of the
          Company's business may involve business dealings and undertakings with
          a Member and its Affiliates. In any of those cases, those dealings and
          undertakings  shall be at arm's length and on commercially  reasonable
          terms as determined by the Managers.

5.4  Liability and Indemnification

    5.4.1 The Managers  shall not be liable,  responsible,  or  accountable,  in
          damages  or  otherwise,  to any Member or to the  Company  for any act
          performed by the Managers within the scope of the authority  conferred
          on the Managers by this Agreement, except for fraud, gross negligence,
          willful misconduct, or an intentional breach of this Agreement.

    5.4.2 The Company shall  indemnify the Managers for any act performed by the
          Managers  within the scope of the authority  conferred on the Managers
          by this Agreement,  unless such act is a breach of this Agreement,  or
          constitutes gross negligence,  wilful or intentional misconduct,  or a
          knowing violation of law.

5.5  Power of Attorney

     5.5.1 Grant of Power

     The Members  constitute  and appoint the Managers as the Members'  true and
     lawful  attorney-in-fact  ("Attorney-in-Fact"),  and in the Members'  name,
     place and stead, to make, execute, sign, acknowledge, and file:

          (a)  all  documents  (including   amendments  to  the  Certificate  of
               Formation)  which  the  Attorney-in-Fact   deems  appropriate  to
               reflect any amendment, change, or modification of this Agreement;

          (b)  any and all other  certificates or other instruments  required to
               be filed by the  Company  under the laws of the State of Delaware
               or  of  any  other  state  or  jurisdiction,  including,  without
               limitation,  any  certificate or other  instruments  necessary in
               order  for the  Company  to  continue  to  qualify  as a  limited
               liability company under the laws of the State of Delaware;

          (c)  one or more fictitious or trade name certificates; and

          (d)  all documents which may be required to dissolve and terminate the
               Company and to cancel its Certificate of Formation.

     5.5.2 Irrevocability

     The  foregoing  power of attorney  is  irrevocable  and is coupled  with an
     interest, and, to the extent permitted by applicable law, shall survive the
     death or disability  of a Member.  It also shall survive the Transfer of an
     Interest,  except that if the  transferee  is approved  for  admission as a
     Member, this power of attorney shall survive the delivery of the assignment
     for  the  sole  purpose  of  enabling  the   Attorney-in-Fact  to  execute,
     acknowledge and file any documents  needed to effectuate the  substitution.
     Each   Member   shall  be  bound  by  any   representations   made  by  the
     Attorney-in-Fact  acting in good faith  pursuant to this power of attorney,
     and each Member hereby  waives any and all defenses  which may be available
     to contest, negate or disaffirm the action of the Attorney-in-Fact taken in
     good faith  under this power of  attorney.  6.  Transfer of  Interests  and
     Withdrawals of Members

6.1  Transfers

     6.1.1The  Members  and  Interest  Holders  shall  not  trade or deal in any
          Membership  Interest  and  Interest  on  any  securities  exchange  or
          securities market.

     6.1.2No Person  may  Transfer  all or any  portion  of or any  interest  or
          rights in the  Membership  Interest or Interest  unless the  following
          conditions "Conditions of Transfer") are satisfied:

          (a)  The  Transfer  will not  require  registration  of  Interests  or
               Membership Interests under any federal or state securities laws;

          (b)  The  transferee  delivers  to the  Company a  written  instrument
               agreeing to be bound by the terms of this Agreement.

          (c)  The Transfer  will not result in the  termination  of the Company
               pursuant to Code Section 708;

          (d)  The Transfer  will not result in the Company being subject to the
               Investment Company Act of 1940, as amended;

          (e)  The   transferor  or  the   transferee   delivers  the  following
               information  to  the  Company:  (i)  the  transferee's   taxpayer
               identification number and (ii) the transferee's initial tax basis
               in the Transferred Interest; and

          (f)  The  Transfer  will not result in the  Company  being  taxed as a
               corporation for purposes of federal or state income tax purposes.

    6.1.3 If the Conditions of Transfer are satisfied, then a Member or Interest
          Holder may Transfer all or any portion of that Person's Interest.  The
          Transfer of an Interest pursuant to this Section 6.1 shall not result,
          however,  in the Transfer of any of the transferor's  other Membership
          Interest,  if any, and the  transferee  of the Interest  shall have no
          right to:  (i) become a Member  without  the  consent  of the  Members
          required by this Agreement;  or (ii) exercise any Membership  Interest
          other  than  those  specifically  pertaining  to the  ownership  of an
          Interest.

    6.1.4 The Members hereby  acknowledge the  reasonableness of the prohibition
          contained in this Section 6.1 in view of the structure and purposes of
          the  Company.  The Transfer of any  Membership  Rights or Interests in
          violation  of the  prohibition  contained in this Section 6.1 shall be
          deemed  invalid,  null and void,  and of no force or effect except any
          Transfer  mandated by operation of law that cannot be waived or varied
          by private  agreement  and then only to the extent  necessary  to give
          effect to such  Transfer  by  operation  of law.  Any Person to whom a
          Membership  Interest or Interest is  attempted  to be  transferred  in
          violation  of this  Section  shall not be  entitled to vote on matters
          coming  before  the  Members,  participate  in the  management  of the
          Company, act as an agent of the Company or have any other rights in or
          with respect to the Membership Interest.

     6.1.5 Right of First Offer

          (a)  If an Interest Holder (a "Transferor") desires to Transfer all or
               any  portion of, or any  interest or rights in, the  Transferor's
               Interest (the "Transferor Interest"), the Transferor shall notify
               the Company of that desire (the "Transfer Notice").  The Transfer
               Notice shall describe the Transferor Interest.  Each Member shall
               have the option (the  "Purchase  Option") to purchase  all of the
               Transferor  Interest for a price (the "Purchase  Price") equal to
               the amount the  Transferor  would  receive  if the  Company  were
               liquidated  and an  amount  equal  to  the  Appraised  Value  (as
               determined   pursuant  to  Section   6.4)  were   available   for
               distribution to the Members pursuant to Section 4.4.

          (b)  The Purchase Option shall be and remain  irrevocable for a period
               (the  "Transfer  Period")  ending at 11:59 P.M. local time at the
               Company's  principal office on the thirtieth (30th) day following
               the Transfer Notice is given to the Company.

          (c)  At any time during the Transfer Period,  each Member may elect to
               exercise  the  Purchase  Option by giving  written  notice of its
               election to the Transferor.  The Transferor shall not be deemed a
               Member for the  purpose of voting on whether  the  Company  shall
               elect to exercise the Purchase Option.

          (d)  If any  Member  elects  to  exercise  the  Purchase  Option,  the
               Member's  notice of its  election  shall fix a closing  date (the
               "Transfer  Closing  Date") for the  purchase,  which shall not be
               earlier  than  five (5) days  after  the  date of the  notice  of
               election or more than thirty  (30) days after the  expiration  of
               the Transfer Period.

          (e)  If a Member elects to exercise the Purchase Option,  the Purchase
               Price shall be paid in cash on the Transfer Closing Date.

          (f)  If  all  Members  fail  to  exercise  the  Purchase  Option,  the
               Transferor  shall be  permitted to offer and sell for a period of
               ninety  (90)  days  (the  "Free   Transfer   Period")  after  the
               expiration  of the  Transfer  Period at a price not less than the
               Purchase   Price.   If  the  Transferor  does  not  Transfer  the
               Transferor   Interest  within  the  Free  Transfer  Period,   the
               Transferor's  right to Transfer the Transferor  Interest pursuant
               to this Section shall cease and terminate.

          (g)  Any Transfer of the  Transferor  Interest made after the last day
               of the Free Transfer Period or without strict compliance with the
               terms, provisions and conditions of this Section and other terms,
               provisions,  and  conditions  of this  Agreement,  shall be null,
               void, and of no force or effect.

6.2  Voluntary Withdrawal Prohibited

     No Members  shall have the right or power to effect a voluntary  withdrawal
     from the Company.  Any Member who effectuates a voluntary  withdrawal is in
     violation of this  Agreement  and shall not be entitled to receive the fair
     value of the Member's  Interest as of the date of the voluntary  withdrawal
     as otherwise provided by Section 18-604 of the Act.

6.3  Involuntary Withdrawal

     Immediately upon the occurrence of an Involuntary Withdrawal,  the affected
     Member  shall  cease  to  have  a  Membership  Interest  and  the  Member's
     Membership Interest shall be automatically converted into just an Interest,
     except that any  successor-in-interest  to the Interest of a Member who has
     Involuntarily  Withdrawn shall be entitled to exercise such of the Member's
     rights as a Member as is  required by the  operation  of law that cannot be
     waived or varied by private agreement.

6.4  Appraised Value

    6.4.1 The term "Appraised  Value" means the appraised value of the equity of
          the Company's Assets as hereinafter provided. Within fifteen (15) days
          after  demand  by  either  one or  the  other,  the  Company  and  any
          Withdrawing Member, if applicable,  shall each appoint an appraiser to
          determine the value of the equity of the Company's  Assets. If the two
          appraisers agree upon the equity value of the Company's  Assets,  they
          shall jointly render a single  written  report stating that value.  If
          the two appraisers cannot agree upon the equity value of the Company's
          Assets,  they shall each  render a separate  written  report and shall
          appoint a third appraiser, who shall appraise the Company's Assets and
          determine the value of the equity therein,  and shall render a written
          report of his opinion thereon. Each party shall pay the fees and costs
          of the appraiser appointed by that party, and the fees and other costs
          of the third appraiser shall be shared equally by both parties.

    6.4.2 The equity value  contained in the aforesaid  joint written  report or
          written  report of the third  appraiser,  as the case may be, shall be
          the  Appraised  Value;  provided,  however,  that it the  value of the
          equity  contained in the  appraisal  report of the third  appraiser is
          more than the  higher of the first two  appraisals,  the higher of the
          first two appraisals shall govern; and provided,  further, that if the
          value of the equity  contained  in the  appraisal  report of the third
          appraiser  is less than the lower of the  first  two  appraisals,  the
          lower of the  first  two  appraisals  shall  govern.  7.  Dissolution,
          Liquidation, and Termination of the Company

7.1  Events of Dissolution

     The Company  shall be dissolved  upon the happening of any of the following
     events:

     7.1.1 on the date fixed for its termination in Section 2.4;

    7.1.2 upon the  decision  by the  Company to  dissolve,  as  approved by the
          unanimous  agreement  of  every  Member  without  the  consent  of the
          Managers;

    7.1.3 upon the occurrence of an Involuntary  Withdrawal of a Member,  unless
          the remaining Members, within ninety (90) days after the occurrence of
          the Involuntary Withdrawal, unanimously elect to continue the business
          of the Company pursuant to the terms of this Agreement; or

    7.1.4 by  operation  of law that  cannot be  waived  or  varied  by  private
          agreement.

7.2  Procedure for Winding Up and Dissolution

     If the Company is  dissolved,  the Managers  shall wind up its affairs.  If
     there  shall be no Manager or the  Managers  are unable or  unavailable  to
     perform these duties,  then the Members shall elect a Person to wind up the
     affairs of the  Company.  On winding up of the  Company,  the assets of the
     Company shall be distributed,  first, to creditors of the Company including
     Interest  Holders who are creditors,  in satisfaction of the liabilities of
     the  Company,  and then to the  Interest  Holders in  accordance  with this
     Agreement.

7.3  Filing of Certificate of Cancellation

     Upon  completion  of the  winding  up of the  affairs of the  Company,  the
     Managers  shall  promptly  file a  Certificate  of  Cancellation  with  the
     Secretary  of  State.  If there is no  Manager,  then  the  Certificate  of
     Cancellation  shall be filed by the  Members or by the last  Person to be a
     Member or by the legal or personal  representatives  of the Person who last
     was a Member. 8. Books, Records, Accounting, and Tax Elections

8.1  Bank Accounts

     All funds of the Company  shall be  deposited in a bank account or accounts
     opened and maintained in the Company's  name. The Managers shall  determine
     the  institution or  institutions  at which the accounts will be opened and
     maintained,  the types of accounts, and the Persons who will have authority
     with respect to the accounts and the funds therein.

8.2  Books and Records

    8.2.1 The  Managers  shall keep or cause to be kept  complete  and  accurate
          books and records of the Company and supporting  documentation  of the
          transactions with respect to the conduct of the Company's  business at
          the Company's  principal  executive office. The records shall include,
          but not be limited to, complete and accurate information regarding the
          state of the business and financial  condition of the Company,  a copy
          of  the  Certificate  of  Formation  and  Limited   Liability  Company
          Agreement and all  amendments to the  Certificate of Formation and the
          Limited Liability Company  Agreement;  a current list of the names and
          last known business,  residence,  or mailing addresses of each Member;
          and the Company's federal, state, or local tax returns and reports, if
          any,  for the six(6) most recent  taxable  years;  internal  books and
          records for the current and three(3) most recent years; a true copy of
          relevant  records  indicating  the  amount,  cost,  and  value  of all
          property which the Company owns, claims, possesses, or controls.

    8.2.2 The books and records  shall be  maintained  on the accrual  method of
          accounting  in  accordance  with  the  requirements  of the  Code  and
          Regulation  Section 1.704-1(b) and shall be available at the Company's
          principal  office for  examination  by any Member or the Member's duly
          authorized  representative  at any and  all  reasonable  times  during
          normal  business  hours for any  purpose  reasonably  related  to such
          Member's interest as a Member of the Company.

8.3  A Member has the right upon reasonable request, and for purposes reasonably
     related to the interest of the Member in the Company, to do the following:

    8.3.1 to inspect and copy during  normal  business  hours any of the records
          required to be maintained by the Company under this Agreement;

    8.3.2 to obtain from the Company promptly after becoming  available,  a copy
          of the Company's  federal,  state and local income tax or  information
          returns for each year;

    8.3.3 the Managers  shall promptly  furnish to the  requesting  Member (i) a
          copy  of any  amendment  to  the  Certificate  of  Formation  or  this
          Agreement pursuant to a power of attorney from the Members provided in
          Section 5.5.1,  and (ii) a copy of this  Agreement,  at the expense of
          the Company,  upon the reasonable  request of the Member for a purpose
          reasonably related to the interest of the Member in the Company; and

    8.3.4 unless otherwise provided in this Agreement,  a Member shall reimburse
          the  Company  for all costs and  expenses  incurred  by the Company in
          connection  with the Member's  inspection and copying of the Company's
          books and records.

8.4  Annual Accounting Period

     The annual  accounting period of the Company shall be its taxable year. The
     Company's taxable year shall begin on January 1st and end on December 31st.

8.5  Tax Matters Partner

     Cinergy  Global Peetz Table I, Inc., a Delaware  corporation,  shall be the
     Company's  tax  matters  partner  (the "Tax  Matters  Partner")  under Code
     Section  6231.   The  Tax  Matters   Partner  shall  have  all  powers  and
     responsibilities  provided in Code  Section  6221,  et seq. The Tax Matters
     Partner  shall keep every Member  informed of all notices  from  government
     taxing  authorities  that  may  come to the  attention  of the Tax  Matters
     Partner.  The  Company  shall  pay and be  responsible  for all  reasonable
     third-party  costs and  expenses  incurred  by the Tax  Matters  Partner in
     performing  those  duties.  A Member  shall be  responsible  for any  costs
     incurred  by the  Member  with  respect  to any tax  audit  or  tax-related
     administrative or judicial  proceeding  against any Member,  even though it
     relates to the  Company.  The Tax Matters  Partner may not  compromise  any
     dispute  with the  Internal  Revenue  Service  without the  approval of the
     Member.

8.6  Tax Elections

     The Tax  Matters  Partner  shall  have the  authority  to make all  Company
     elections  permitted  under  the  Code,   including,   without  limitation,
     elections of methods of depreciation  and elections under Code Section 754.
     The  decision to make or not make an  election  shall be at the Tax Matters
     Partner's  sole  and  absolute  discretion,  subject  to  the  Tax  Matters
     Partner's  obligations  to act in the best  interest of the Company and its
     Members.

8.7  Title to Company Assets

     All real and personal  property  acquired by the Company  shall be acquired
     and held by the Company in its name. 9. General Provisions

9.1  Assurances

     The Members shall  execute all such  certificates  and other  documents and
     shall do all such  filing,  recording,  publishing,  and other  acts as the
     Managers deem  appropriate to comply with the  requirements  of law for the
     formation and  operation of the Company and to comply with any laws,  rules
     and regulations  relating to the  acquisition,  operation or holding of the
     property of the Company.

9.2  Notifications

     Any notice, demand, consent,  election, offer, approval,  request, or other
     communication  (collectively  a "notice")  required or permitted under this
     Agreement  must be in writing and either  delivered  personally  or sent by
     certified or registered mail,  postage prepaid,  return receipt  requested.
     Any  notice  to be given  hereunder  by the  Company  shall be given by the
     Managers.  A notice must be addressed to an Interest Holder at the Interest
     Holder's last known  address on the records of the Company.  All notices to
     the Company must be addressed to the Company's principal office with a copy
     to Cinergy Global Power Services Limited, at Cinergy House, Ryon Hill Park,
     Warwick Road, Stratford-upon-Avon,  Warwickshire, United Kingdom, CV37 0UU,
     Tel: 44 1789 200 100, Fax: 44 1789 200 101.

     A notice delivered  personally will be deemed given only when  acknowledged
     in writing by the person to whom it is delivered.  A notice that is sent by
     mail will be deemed given three (3) business  days after it is mailed.  Any
     party may designate,  by notice to all of the others,  substitute addresses
     or addressees for notices;  and, thereafter,  notices are to be directed to
     those substitute addresses or addressees.

9.3  Complete Agreement

     This  Agreement  constitutes  the complete and  exclusive  statement of the
     agreement  by the  Member(s).  It  supersedes  all prior  written  and oral
     statements,  including any prior representation,  statement,  condition, or
     warranty. Except as expressly provided otherwise herein, this Agreement may
     not be amended without the written consent of all of the Member(s).

9.4  Governing Law and Jurisdiction

     All questions  concerning the construction,  validity and interpretation of
     this  Agreement  and the  performance  of the  obligations  imposed by this
     Agreement  shall be governed by the internal law, not the law of conflicts,
     of the State of Delaware.

9.5  Section Titles

     The headings  herein are inserted as a matter of  convenience  only, and do
     not define, limit, or describe the scope of this Agreement or the intent of
     the provisions hereof.

9.6  Binding Provisions

     This  Agreement is binding upon,  and inures to the benefit of, the parties
     hereto and their respective heirs, executors, administrators,  personal and
     legal representatives, successors, and permitted assigns.

9.7  Terms

     Common  nouns  and  pronouns  shall be  deemed  to refer to the  masculine,
     feminine,  neuter,  singular, and plural, as the identity of the Person may
     in the context require.

9.8  Severability of Provisions

     If for any reason,  any provision or provisions herein are determined to be
     invalid and contrary to any existing or future law, such  invalidity  shall
     not impair the  operation  of or affect  those  portions of this  Agreement
     which are valid.

9.9  Counterparts

     This Agreement may be executed  simultaneously in two or more counterparts,
     each of which  shall be deemed an  original,  and all of which,  when taken
     together,  constitute one and the same document. The signature of any party
     to any counterpart  shall be deemed a signature to, and may be appended to,
     any other counterparty.

IN WITNESS  WHEREOF,  the Member has  executed,  or caused this  Agreement to be
executed  as of the date  set  forth  hereinabove  with  the  intent  that it be
effective as of the Effective Date.

MEMBER:

Cinergy Global Peetz Table I, Inc.
a Delaware corporation





By: __________________________
Name: John Bryant
Title:   President











                                   Exhibit - A
                                       to


            Amended and Restated Limited Liability Company Agreement
                                       of
                         Ridge Crest Wind Partners, LLC


Name, Address and Taxpayer I.D. Number                             Percentages
Cinergy Global Peetz Table I, Inc.                                 100 %
139 East Fourth Street
Cincinnati, Ohio 45202

Tax I.D.:





Effective as of the Effective Date:

Approved by Manager:  __________________________________





                                   Exhibit - B
                                       to


            Amended and Restated Limited Liability Company Agreement
                                       of
                         Ridge Crest Wind Partners, LLC



                              AMENDED AND RESTATED

                            CERTIFICATE OF AMENDMENT

                                       OF

                         Ridge Crest Wind Partners, LLC


FIRST: The name of the limited  liability  company is Ridge Crest Wind Partners,
     LLC.

SECOND: The  registered  agent of the  Company  in the State of  Delaware  is CT
     Corporation Trust Company,  Corporation  Trust Center,  1209 Orange Street,
     Wilmington,  County of New Castle,  Delaware  19801, or such other agent as
     determined by the Managers.

THIRD: The limited  liability company shall continue in existence on a perpetual
     basis unless  dissolved  pursuant to company's  limited  liability  company
     agreement.

     IN WITNESS  WHEREOF,  the  undersigned  has executed  this  Certificate  of
Amendment of Ridge Crest Wind Partners, LLC effective as of _____________, 2001.




                         By:  ________________________________
                         Name: ______________________________
                         Title:   Manager for Ridge Crest Wind Partners, LLC
EX-99 45 b-421.htm A&R OPERATING AGREE RIDGE CREST Foote Creek IV, LLC 
                    Amended and Restated Operating Agreement

                                       for

                               Foote Creek IV, LLC

                      A Delaware Limited Liability Company



This AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement") for Foote Creek
IV, LLC  ("Company")  dated as of October  31,  2001,  is entered  into and made
effective  by Cinergy  Global  Foote  Creek IV,  Inc.,  a  Delaware  corporation
("Member") with reference to the following facts:

A. Foote Creek IV, LLC is a Delaware limited liability company formed by SeaWest
WindPower,  Inc.,  a  California  corporation  ("SeaWest  Member,"and  sometimes
referred to as "Initial  Member").  The  Certificate of Formation of the Company
was filed with the  Secretary  of State of Delaware on October  25,  1999.  This
Agreement is an amendment to the Second Amended and Restated Operating Agreement
of Foote Creek IV, LLC,  effective as of October 2, 2000, (the "Prior  Operating
Agreement");

B. Member now wishes to replace the Prior Operating Agreement in its entirety by
entering  into this  Agreement to provide for the  governance of the Company and
the conduct of its business as a limited liability company. This Agreement shall
be considered the "Limited  Liability  Company  Agreement" of the Company within
the meaning of Section 18-101(7) of the Act.

NOW THEREFORE,  the Prior Operating  Agreement is wholly replaced and superseded
by this Agreement in its entirety and this Agreement shall read as follows:

1. Definitions

Capitalized  terms used in this Agreement  shall have the meanings  respectively
given  thereto in this Section 1 or elsewhere in this  Agreement and when not so
defined shall have the meanings set forth in the Act.

"Act" means the Delaware Limited  Liability  Company Act, 6 Del.  C.ss.18-101 et
seq., as amended from time to time.

"Affiliate"  means, with respect to any Member,  any person:  (i) that owns more
than 5 % of the voting interests in the Member; or (ii) in which the Member owns
more  than 5% of the  voting  interests;  or (iii) in which  more than 5% of the
voting  interests are owned by a Person who has a  relationship  with the Member
described in clause (i) or (ii) above.

"Agreement" means this Amended and Restated Operating  Agreement for Foote Creek
IV, LLC as may be amended from time to time.

"Capital  Account"  means the  account to be  maintained  by the  Company on the
Company's books and records for each Member in accordance with Section 3.6.

"Capital  Contribution"  means, with respect to any Member,  the total amount of
cash and the  Gross  Asset  Value of any  other  assets  contributed  or  deemed
contributed  to the  Company  by the Code (net of  liabilities  secured  by such
contributed  property  that the Company is considered to assume or take "subject
to" under Code Section 752) or services  rendered or a promissory  note or other
binding  obligation  to  contribute  cash or  assets or to  render  services  as
permitted under the Act in  consideration  of Membership  Rights held by such. A
Capital Contribution shall not be deemed a loan.

"Capital  Proceeds"  means the gross  receipts  received by the  Company  from a
Capital Transaction.

"Capital Transaction" means any transaction other than in the ordinary course of
business which results in the Company's  receipt of cash or other  consideration
other than Capital  Contributions,  including,  without limitation,  proceeds of
sales or exchanges or other  dispositions of property other than in the ordinary
course of  business,  financings,  refinancings,  condemnations,  recoveries  of
damage awards and insurance proceeds.

"Cash  Flow"  means  all cash  funds  derived  from  operations  of the  Company
(including  interest  received on reserves),  without reduction for any non-cash
charges,  but less cash funds used to pay current operating  expenses and to pay
or establish  reasonable  reserves for future expenses,  debt payments,  capital
improvements,  and  replacements as determined by the Managers.  Cash Flow shall
include net proceeds from all sales,  refinancings,  and other  dispositions  of
Company  property  that the  Managers  deem in excess of the  amount  reasonably
necessary for the  operating  requirements  of the Company.  Cash Flow shall not
include Capital  Proceeds but shall be increased by the reduction of any reserve
previously established.

"Certificate  of Formation"  means the  Certificate  of Formation of the Company
filed with the Secretary of State of Delaware in accordance  with the Act by the
Initial Member on October 25, 1999.

"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.

"Company" means Foote Creek IV, LLC, a Delaware limited liability company.

"Company  Assets"  means  all the  direct  and  indirect  interests  in real and
personal  property owned by the company from time to time and shall include both
tangible and intangible property (including cash).

"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization,  or other cost  recovery  deduction  allowable  with respect to an
asset for such  Fiscal  Year,  except  that if the Gross Asset Value of an asset
differs from its adjusted basis for federal income tax purposes at the beginning
of such Fiscal Year,  Depreciation shall be an amount which bears the same ratio
to such  beginning  Gross Asset Value as the  federal  income tax  depreciation,
amortization,  or other cost  recovery  deduction  for such Fiscal Year bears to
such beginning adjusted tax basis;  provided however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Members.

"EWG" means an exempt wholesale  generator as such term is defined in Section 32
of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.

"Fiscal Year" shall have the meaning given in Section 2.7.

"Gross Asset Value" means with respect to any asset,  the asset's adjusted basis
for federal income tax purposes, except as follows:

     (i)  The initial Gross Asset Value of any item of property  contributed  by
          Member to the  Company  shall be the gross fair  market  value of such
          asset, as mutually agreed by the contributing Member and the Company;

     (ii) The Gross  Asset  Values of all  Company  Assets  shall be adjusted to
          equal their  respective  gross fair market values (taking Code Section
          7701(g)  into  account)  in   accordance   with   Regulation   Section
          1.704-1(b)(2)(iv)(f)  and  as  determined  by  the  Members  as of the
          following times: (a) the acquisition of an additional  interest in the
          Company by any new or existing  Member in exchange  for more than a de
          minimis Capital Contribution; (b) the distribution by the Company to a
          Member  of more  than a de  minimis  amount  of  Company  property  as
          consideration for an interest in the Company;  and (c) the liquidation
          of  the   Company   within   the   meaning   of   Regulation   Section
          1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses
          (a) and (b) of  this  paragraph  shall  be  made  only if the  Members
          reasonably  determine that such adjustment is necessary to reflect the
          relative Interests of the Members in the Company;

     (iii)The Gross Asset  Value of any item of Company  Assets  distributed  to
          any Member  shall be  adjusted  to equal the gross fair  market  value
          (taking Code Section  7701(g) into  account) of such asset on the date
          of  distribution  as mutually  agreed by the receiving  Member and the
          Company; and

     (iv) The Gross  Asset  Values of  Company  Assets  shall be  increased  (or
          decreased) to reflect any  adjustments  to the adjusted  basis of such
          assets  pursuant  to  Code  Section  732 or Code  Section  734 or Code
          Section 743,  subject to the  limitations  imposed by Code Section 755
          and only to the extent that such adjustments are taken into account in
          determining   Capital   Accounts   pursuant  to   Regulation   Section
          1.704-1(b)(2)(iv)(m)  and  subparagraph  (e) of the definition of "Net
          Profits" or "Net Losses";  provided,  however, that Gross Asset Values
          shall not be adjusted pursuant to this subparagraph (iv) to the extent
          that an  adjustment  pursuant  to  subparagraph  (ii) is  required  in
          connection  with a  transaction  that  would  otherwise  result  in an
          adjustment pursuant to this subparagraph (iv).

          If the Gross Asset Value of an asset has been  determined  or adjusted
          pursuant to  subparagraph  (ii) or (iv),  such Gross Asset Value shall
          thereafter  be adjusted by the  Depreciation  taken into  account with
          respect to such asset, for purposes of computing Profits and Losses.

"Initial Member" means the SeaWest Member.

"Interest"  means an Interest  Holder's  share of the Profits and Losses of, and
the right to receive  distributions  from the Company,  but does not include any
other rights of a Member including,  without limitation, the right to vote or to
participate in management,  or any right to information  concerning the business
and affairs of the Company.

"Interest Holder" means any Person who holds an Interest, whether as a Member or
as an assignee of a Member who has not been admitted to the Company as a Member.

"Involuntary  Withdrawal"  means, with respect to any Member,  the occurrence of
any of the following events;

     (i)  the Member makes an assignment for the benefit of creditors;

     (ii) the Member files a voluntary petition of bankruptcy;

     (iii)the  Member is  adjudged  bankrupt  or  insolvent  or there is entered
          against the Member an order for relief in any bankruptcy or insolvency
          proceeding;

     (iv) the  Member  files a  petition  or answer  seeking  for the Member any
          reorganization,  arrangement, composition, readjustment,  liquidation,
          dissolution, or similar relief under any statute, law, or regulation;

     (v)  the Member seeks,  consents to, or acquiesces in the  appointment of a
          trustee,  receiver,  or  liquidator  of  the  Member  or of all or any
          substantial part of the Member's properties;

     (vi) the Member files an answer or other  pleading  admitting or failing to
          contest  the  material  allegations  of a petition  filed  against the
          Member in any proceeding described in Subsections (i) through (v);

     (vii)within one hundred  twenty days (120) days of any  proceeding  against
          the   Member   seeking   reorganization,   arrangement,   composition,
          readjustment,  liquidation,  dissolution,  or similar relief under any
          statute,  law, or regulation if the proceeding has not been dismissed,
          or  within  ninety  (90)  days  after the  appointment  of a  trustee,
          receiver,  or liquidator for the Member or all or any substantial part
          of  the  Member's   properties   without  the  Member's  agreement  or
          acquiescence,  which  appointment is not vacated or stayed,  or if the
          appointment  is stayed,  for ninety (90) days after the  expiration of
          the stay which period the appointment is not vacated;

     (viii) if the Member is an individual,  the Member's death or  adjudication
          by a court of  competent  jurisdiction  as  incompetent  to manage the
          Member's person or property;

     (ix) if the  Member is acting as a Member by virtue of being a trustee of a
          trust, the termination of the trust:

     (x)  if the Member is a partnership or another limited  liability  company,
          the dissolution  and  commencement of winding up of the partnership or
          limited liability company;

     (xi) if the Member is a corporation,  the dissolution of the corporation or
          the revocation of its charter; or

     (xii)if the Member is an estate,  the  distribution by the fiduciary of the
          estate's entire interest in the limited liability company.

"Manager(s)" is the Person(s)  designated as such in Article 5 of this Agreement
or who is later elected as a Manager pursuant to the terms of this Agreement.

"Member"  means  Cinergy  Global  Foote  Creek  IV,  Inc.  and  any  Person  who
subsequently is admitted as a Member of the Company in accordance with the terms
of this Agreement.

"Membership  Interest"  means the entire  ownership  interest of a Member in the
Company at any particular time, including without limitation: (i) Interest, (ii)
right to inspect the Company's books and records; and (iii) right to participate
in the management of and vote on matters coming before the Company.

"Minimum  Gain" of the Company,  as provided in Regulation  Section  1.704-2(d),
means the total amount of gain the Company would realize for federal  income tax
purposes if it disposed of all assets  subject to their  respective  nonrecourse
liabilities for no consideration other than the full satisfaction thereof.

"Negative  Capital  Account" means a Capital Account with a balance of less than
zero.

"Nonrecourse  Deduction"  has  the  meaning  set  forth  in  Regulation  Section
1.704-2(b)(1).  The amount of  Nonrecourse  deductions for a Company fiscal year
equals the net increase in the amount of Company Minimum Gain during that fiscal
year,  reduced (but not below zero) by the aggregate amount of any distributions
during  that  fiscal  year of  proceeds  of a  Nonrecourse  Liability  that  are
allocable to an increase in Company Minimum Gain.

"Nonrecourse  Liability"  has  the  meaning  set  forth  in  Regulation  Section
1.752-1(a)(2).

"Percentage"  means, as to a Member, the percentage set forth after the Member's
name on Exhibit A of this Agreement,  as amended from time to time, and as to an
Interest  Holder who is not a Member,  the Percentage of the Member(s)  Interest
that has been  acquired  by such  Interest  Holder,  to the extent the  Interest
Holder has succeeded to that Member's Interest.

"Person" means an individual,  partnership,  limited partnership, trust, estate,
association,  corporation,  limited liability company, or other entity,  whether
domestic or foreign.

"Positive  Capital  Account" means a Capital Account with a balance greater than
zero.

"Profit"  and  "Loss"  means,  for each  Fiscal  Year of the  Company  (or other
period),  an amount equal to the Company's  taxable income or loss determined in
accordance  with Code Section  703(a)(for  this  purposes,  all items of income,
gain,  loss or  deduction  required  to be stated  separately  pursuant  to Code
Section  703(a)(1)  shall be  included  in  taxable  income or  loss),  with the
following adjustments:

     (i)  any tax exempt  income of the Company  shall be included in  computing
          Profit and Loss;

     (ii) any expenditures of the Company described in Code Section 705(a)(2)(B)
          (or    treated    as   such    pursuant    to    Regulation    Section
          1.704-1(b)(2)(iv)(i))   and  not  otherwise   taken  into  account  in
          computing Profit or Loss, shall be subtracted from Profit or Loss;

     (iii)gain or Loss  resulting  from any  disposition  of any Company  Assets
          where such gain or Loss is recognized  for federal income tax purposes
          shall be computed by reference to the Gross Asset Value of the Company
          Assets disposed of notwithstanding that the adjusted tax basis of such
          Company Assts differs from its Gross Asset Value;

     (iv) in lieu of the  depreciation,  amortization  and other  cost  recovery
          deductions  taken into  account in computing  such  taxable  income or
          loss,  there shall be taken into account  Depreciation for such Fiscal
          Year;

     (v)  if the  Gross  Asset  Value  of  any  Company  Asset  is  adjusted  in
          accordance with subparagraphs (ii) or (iii) of the definition thereof,
          the  amount of such  adjustment  shall be taken  into  account  in the
          taxable year of such  adjustment as gain or loss from the  disposition
          of such asset for the purposes of computing Profit of Loss; and

     (vi) notwithstanding any other provision of this definition, any items that
          are specially  allocated  pursuant to Section 4.2.2 shall not be taken
          into account in computing Profit and Loss.

"PUHCA" means the Public Utility  Holding  Company Act of 1935 and all rules and
regulations adopted thereunder.

"Regulation"   means  the  income  tax  regulations,   including  any  temporary
regulations, from time to time promulgated under the Code.

"Secretary of State" means the Secretary of State of the state of Delaware.

"Transfer"  means,  with respect to any Interest or  Membership  Interest in the
Company, a sale, conveyance,  exchange,  assignment,  pledge,  encumbrance gift,
bequest,  hypothecation  or other  transfer or  disposition  by any other means,
whether for value or no value and whether voluntary or involuntary.

2. Organizational Matters

2.1 Organization

     The Initial Member has filed a Certificate of Formation for Foote Creek IV,
     LLC, a Delaware  limited  liability  company,  on October 25, 1999, and the
     Company was  qualified  within the State of Wyoming on February  25,  2000.
     Member has acquired all of the Membership Interest of the Initial Member by
     way of  Transfer.  The  Managers  shall cause to be made,  on behalf of the
     Company, such additional filings and recordings in such other states as the
     Members shall deem necessary or advisable.

2.2 Name

     The name of the Company  shall  remain Foote Creek IV, LLC. The Company may
     do business  under that name and under any other name or names  approved by
     the Members.

2.3 Business

     The Company may engage in any business or projects  relating to wind energy
     generation   including   the   development,   construction,   installation,
     ownership,   operation,   maintenance   and   management  of   wind-powered
     electricity  generating  plant  and to  undertake  any and  all  activities
     related or incident thereto.

2.4 Term

     The  term of the  Company  commenced  as of the date of the  filing  of the
     Certificate  of Formation  and shall  continue on a perpetual  basis unless
     dissolved pursuant to Article 7 of this Agreement.

2.5 Registered Office and Agent

     The  registered  agent of the  Company  is CT  Corporation  Trust  Company,
     Corporation Trust Center, 1209 Orange Street,  Wilmington,  Delaware 19801,
     or such other agent as determined by the Managers.  The principal  business
     office  of the  company  shall  be  located  at  139  East  Fourth  Street,
     Cincinnati,  Ohio  45202,  or  such  other  location  as the  Managers  may
     determine.

2.6 Members

     The name,  present mailing address,  taxpayer  identification  number,  and
     Percentage  of each of the  Members  are set forth on  Exhibit  A  attached
     hereto.  The Managers shall amend Exhibit A each and every time a Member is
     admitted  or ceases to be a Member  or when the  Percentage  of a Member is
     increased or decreased.

2.7 Fiscal Year

     The  Fiscal  Year of the  Company  shall  begin on  January  1st and end on
     December  31st.  The Company shall have the same fiscal year for accounting
     and for income tax purposes.

2.8 Member Interest Certificates

     All membership  interests in the Company shall be  certificated in the form
     attached  hereto as Exhibit C. The Company hereby  irrevocably  elects that
     all  membership  interests in the Company shall be  securities  governed by
     Article  8 of the  Uniform  Commercial  Code as in  effect  in the State of
     Delaware.  Each certificate  evidencing Membership Interests in the Company
     shall bear the following legend: "This certificate evidences an interest in
     Foote  Creek IV, LLC and shall be a security  for  purposes of Article 8 of
     the Uniform  Commercial  Code as in effect in the State of Delaware."  This
     provision  shall not be amended,  and no such  purported  amendment to this
     provision,  shall be effective until all outstanding certificates have been
     surrendered for cancellation.

3. Members; Capital and Capital Accounts

3.1 Capital Contributions

     Member's  predecessor  in interest has made a Capital  Contribution  of $ 0
     (zero  dollars).  The  Member  shall  not be  required  to  make a  Capital
     Contribution.

3.2 Additional Capital Contributions

     The  Members  shall  not  be  required  to  make  any  additional   Capital
     Contributions.

3.3 No Interest on Capital Contributions

     The Company shall not pay any interest on Capital Contributions.

3.4 Return of Capital Contributions

     Except as otherwise provided in this Agreement, neither the Members nor any
     Interest  Holder  shall have the right to receive the return of any Capital
     Contribution except upon dissolution of the Company.

3.5 [Intentionally Left Blank]

3.6 Capital Accounts

     3.6.1 A separate  Capital  Account shall be maintained  for each Member and
     each Interest Holder.

     3.6.2 An Interest  Holder's  Capital  Account  shall be increased  with the
     Interest  Holder's  Capital  Contributions,   the  amount  of  any  Company
     liabilities assumed by the Interest Holder (or which are secured by Company
     property  distributed  to  the  Interest  Holder),  the  Interest  Holder's
     distributive  share of Profit  and any item in the nature of income or gain
     specially  allocated to such Interest  Holder pursuant to the provisions of
     Section 4; and

     3.6.3 An Interest  Holder's  Capital  Account  shall be decreased  with the
     amount  of  money  and  the  Gross  Asset  Value  of any  Company  property
     distributed to the Interest  Holder,  the amount of any  liabilities of the
     Interest  Holder  assumed by the  Company (or which are secured by property
     contributed by the Interest Holder to the Company),  the interest  Holder's
     distributive  share of Loss,  and any item in the  nature  of  expenses  or
     losses  specially   allocated  to  the  Interest  Holder  pursuant  to  the
     provisions of Section 4.

     3.6.4  If any  Interest  is  transferred  pursuant  to the  terms  of  this
     Agreement,  the  transferee  shall  succeed to the  Capital  Account of the
     transferor  to the  extent  the  Capital  Account  is  attributable  to the
     transferred Interest.

     3.6.5 If the Gross  Asset Value of Company  Assets is adjusted  pursuant to
     Section 3.6.6,  the Capital Account of each Member or Interest Holder shall
     be adjusted to reflect the  aggregate  adjustment  in the same manner as if
     the  Company  had  recognized  gain or Loss  equal  to the  amount  of such
     aggregate adjustment.

     3.6.6 It is intended  that the Capital  Accounts  of all  Interest  Holders
     shall be maintained in compliance with the provisions of Regulation Section
     1.704-1(b)(2)(iv),  and all  provisions of this  Agreement  relating to the
     maintenance  of Capital  Accounts  shall be  interpreted  and  applied in a
     manner consistent with that Regulation.

3.7 Loans and Other Business Transactions

     Any Member may, at any time,  make or cause to be made a non-recourse  loan
     to the  Company  in any  amount  and on those  terms  upon which the Member
     making  such  non-recourse  loan and the  Company  may  agree  in  writing.
     Acceptance  by the Company of any such Loan  provided by a Member  requires
     the prior  unanimous  consent of the Members.  Any Member may also transact
     other business,  subject to the requirement provided in Section 5.3.4, with
     the Company and be an employee  or  independent  contractor  of the Company
     and,  in doing so, it shall have the same rights and be subject to the same
     obligations  arising out of any such business  transaction or employment or
     consultant  relationship,  as  would be  enjoyed  by and  imposed  upon any
     Person,  not a Member,  engaged in a similar business  transaction with the
     Company.

4. Allocations of Profit and Loss and Distributions

4.1 Distributions of Cash Flow

     Except as otherwise provided in Section 4.7.1 with respect to distributions
     upon  liquidation  of the  Company,  Cash Flow for each  Fiscal Year of the
     Company shall be distributed to the Interest Holders in proportion to their
     Percentages at such time or times and in such  aggregate  amounts as may be
     determined by the Managers. Cash Flow, other than revenues or proceeds from
     a  Capital  Transaction  or  the  dissolution  of  the  Company,  shall  be
     distributed as soon as practicable following a Manager's determination that
     such cash is available for  distribution.  The Members  acknowledge that no
     assurances  can be given with  respect to when or whether such cash will be
     available for distributions to the Members.

4.2 Allocations of Profits and Losses

     4.2.1 General. Except as otherwise provided in this Section 4.2, Profit and
     Loss of the  Company  shall be  allocated  among the  Interest  Holders  as
     follows:

          4.2.1.1  Profit  and Loss of the  Company  shall be  allocated  to the
          Interest Holders in proportion to their respective Percentages.

          4.2.1.2  In  accordance  with the  provisions  of  Regulation  Section
          1.704-2(i),  each item of an Interest Holder's  Nonrecourse  Deduction
          shall be allocated  among the Interest  Holders in  proportion  to the
          economic  risk of loss that the Interest  Holder bears with respect to
          the  nonrecourse  liability  of the  Company  to which such item of an
          Interest Holder's Nonrecourse Deduction is attributable.

     4.2.2 Allocation  Adjustments Required to Comply with Section 704(b) of the
     Code

          4.2.2.1  Limitation  on Allocation  of Loss.  Notwithstanding  Section
          4.2.1.1,  there shall be no allocation of Loss to any Interest  Holder
          that  would  create or  increase a deficit  balance  in such  Interest
          Holder's  Capital Account unless such  allocation  would be treated as
          valued under Regulation Section 1.704-1(b)(1)(i). Any Loss that cannot
          be allocated to an Interest Holder pursuant to the preceding  sentence
          shall be reallocated  to the other  Interest  Holders in proportion to
          their Percentages.

          4.2.2.2 Qualified Income Offset.  Notwithstanding  Section 4.2.1.1, if
          in any taxable  year an Interest  Holder  receives  (or is  reasonably
          expected to receive) a distribution, or an allocation or adjustment to
          such Interest Holder's Capital Account,  in accordance with Regulation
          Section   1.704-1(b)(2)(ii)(d)(4),   (5)  and  (6),  that  creates  or
          increases (or is reasonably  expected to create or increase) a deficit
          balance in such  interest  Holder's  Capital  Account,  there shall be
          allocated to the Interest  Holder such items of Company income or gain
          as are necessary to satisfy the  requirements  of a "qualified  income
          offset"     within    the     meaning    of     Regulation     Section
          1.704-1(b)(2)(ii)(d)(3).

          4.2.2.3 Minimum Gain Chargeback.  Notwithstanding  Section 4.2.1, this
          Section  4.2.2.3  hereby  incorporates  by reference the "minimum gain
          chargeback" provisions of Regulation Section 1.704-2(f) and (i)(4). In
          general, upon a reduction of the Company's Minimum Gain, the preceding
          sentence  shall  require  that items of income  and gain be  allocated
          among the Interest Holders in a manner that reverses prior allocations
          of Nonrecourse  Deductions and Interest Holder Nonrecourse  Deductions
          as  well  as  reductions  in the  Interest  Holders'  Capital  Account
          balances resulting from distributions  that,  notwithstanding  Section
          4.6, are allocable to increases in the Company's Minimum Gain. Subject
          to the  provisions  of  Section  704 of the Code  and the  regulations
          thereunder,  if the Managers  determine at any time that  operation of
          such "minimum gain chargeback" provisions likely will not achieve such
          a reversal by the conclusion of the  liquidation  of the company,  the
          Managers shall adjust the allocation  provisions of this Section 4.2.2
          as necessary to accomplish this result.

          4.2.2.4 Allocations Subsequent to Certain Allocation Adjustments.  Any
          special  allocations  of items of Profit or Loss  pursuant to Sections
          4.2.2.1,  4.2.2.2 or 4.2.2.3  shall be taken into account in computing
          subsequent  allocations  pursuant to Section  4.2.1 so that,  for each
          Interest  Holder,  the net amount of any such special  allocations and
          all  allocations  pursuant  to  Section  4.2.1  shall,  to the  extent
          possible and taking into account prior allocations pursuant to Section
          4.2.7,  be equal to the net amount that would have been  allocated  to
          such Interest Holder pursuant to Section 4.2.1 without  application of
          Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3.

     4.2.3 Book - Tax Accounting Disparities

     If the Company Assets are reflected in the Capital Accounts of the Interest
     Holders at a Gross Asset Value that  differs from the adjusted tax basis of
     such property (whether because such property was contributed to the Company
     by an Interest Holder or because of a revaluation of the Interest  Holders'
     Capital  Accounts  under  Regulation  Section  1.704-1(b)),  allocations of
     depreciation,  amortization,  income,  gain or loss  with  respect  to such
     property  shall be made among the Interest  Holders in a manner which takes
     such  difference  into account in accordance  with Code Section  704(c) and
     Regulation Section1.704-3(d) using the remedial method.

     4.2.4 Allocation in Event of Transfer

     If an Interest is Transferred,  in compliance with Section 6.1, allocations
     of the Company's Profit and Loss may be made by any method that is selected
     by the Managers and that is permissible under Section 706 of the Code.

     4.2.5 Adjustments to Capital Accounts for Distributions of Property

     If property distributed in kind is reflected in the Capital Accounts of the
     Interest  Holders at a Gross Asset Value that  differs from the fair market
     value of such property on the date of distribution, the difference shall be
     treated  as  Profit  or  Loss on the  sale of the  property  and  shall  be
     allocated to the Interest Holder who received such distribution.

     4.2.6 Tax Credits and Similar Items.

     Any tax credits or similar items not allocable  pursuant to Sections  4.2.1
     through  4.2.5 shall be allocated to the Interest  Holders in proportion to
     their  respective  Percentages.  Notwithstanding  the  preceding  sentence,
     Company  expenditures  that give rise to tax credits  attributable  to such
     expenditures  shall be  allocated in  accordance  with  Regulation  Section
     1.704-1(b)(4)(ii).

     4.2.7 Reallocation of Losses Related to Excess Distributions

     If, as a result of an Interest  Holder  receiving a distribution of cash or
     property  that it is required to return  because the  distribution  was not
     authorized  by  this  Agreement,  Loss  which  otherwise  would  have  been
     allocated  to the  Interest  Holder  was  allocated  to one or  more  other
     Interest  Holders (and such  allocation  has not been reversed  pursuant to
     Section 4.2.2.4), then subsequent profit and Loss shall be allocated to the
     Interest Holder and to the other Interest Holders so as, in connection with
     the return of such cash or property  (to the extent of the value  thereof),
     to effect a reallocation of such Loss to the Interest Holder.

4.3 Modifications to Preserve Underlying Economic Objectives

     If in the  opinion  of  counsel  to the  Company,  there is a change in the
     Federal  income  tax law  (including  the Code as well as the  regulations,
     rulings, and administrative  practices thereunder) which makes it necessary
     or prudent to modify the  allocation  provisions of this Section 4 in order
     to preserve the underlying  economic objectives of the Members as reflected
     in this  Agreement,  the  Managers  shall  make  the  minimum  modification
     necessary to achieve such purpose.

4.4 Withholding Taxes

     The Company shall  withhold  taxes from  distributions  to and  allocations
     among,  the  Interest  Holders to the  extent  required  by law.  Except as
     otherwise  provided in this Section 4.4, any amount withheld by the Company
     with regard to an  Interest  Holder  shall be treated for  purposes of this
     Agreement as an amount  actually  distributed to such Interest  Holder.  An
     amount  shall be  considered  withheld  by the  Company  if  remitted  to a
     governmental agency without regard to whether such remittance occurs at the
     same time as the  distribution or allocation to which it relates  provided,
     however that an amount  actually  withheld from a specific  distribution or
     designated by the Managers as withheld from a specific  allocation shall be
     treated  as if  distributed  at the time such  distribution  or  allocation
     occurs. To the extent operation of the foregoing provisions of this Section
     4.4 would  create or  increase a deficit  balance in an  Interest  Holder's
     Capital  Account  (excluding  for this  purpose any portion of such deficit
     attributable to the Interest  Holder's share of the Company's  Minimum Gain
     as determined  under Section 1), the amount  withheld shall be treated as a
     loan by the Company to such  Interest  Holder,  which loan shall be payable
     upon demand and shall bear interest at a rate equal to the lowest rate that
     will  not  give  rise  to  the  imputation  of  additional  interest  under
     applicable  federal income tax rules. At the election of the Managers,  the
     Company  shall be  entitled to withhold  from any  distributions  otherwise
     payable to an Interest  Holder amounts owed to the Company by such Interest
     Holder under the terms of the preceding sentence.

4.5 Nonallocation of Distributions to Increases in Minimum Gain

     To the extent permitted under Regulation Section 1.704-2(h),  distributions
     to Interest  Holders  shall not be allocable to increases in the  Company's
     Minimum Gain. In general,  and except as provided in such  Regulation,  the
     preceding  sentence is intended  to ensure that  reductions  in an Interest
     Holder's Capital Account balance  resulting from  distributions of money or
     other property to that Interest Holder are not reversed by the minimum gain
     chargeback provisions of Section 4.2.2.3.

4.6 Allocation of Liabilities

     Solely for purposes of determining the Interest Holders'  respective shares
     of the  nonrecourse  liabilities  of the  Company  within  the  meaning  of
     Regulation  Section  1.752-3(a)(3),  each  Interest  Holder's  interest  in
     Company Profit shall be equal to such Interest Holder's Percentage.

4.7 Liquidation and Dissolution

     4.7.1  Distributions.  If the  Company  is  liquidated,  the  assets of the
     Company shall be distributed to the Interest Holders in accordance with the
     positive balances in their respective  Capital Accounts,  after taking into
     account all distributions and allocations of Profit or Loss and other items
     of income,  gain,  loss or deduction for the Company's  taxable year during
     which liquidation occurs. Distributions of the Interest Holders pursuant to
     this Section  4.7.1 shall be made in  accordance  with  Regulation  Section
     1.704-1(b)(2)(ii)(b)(2).

     4.7.2 Negative Capital  Accounts.  No Interest Holder shall be obligated to
     restore a negative Capital Account balance.

4.8 General

     4.8.1 Except as  otherwise  provided in this  Agreement,  the amount of all
     distributions  shall be determined by the Managers and distributions  shall
     be made as soon as  practicable  following a Manager's  determination.  The
     Members acknowledge that no assurances can be given with respect to when or
     whether such distributions will be available to the Members.

     4.8.2  The  Company  Assets  may be  distributed  in kind  to the  Interest
     Holders, and those assets shall be valued on the basis of their fair market
     value.  The fair  market  value of the assets  shall be  determined  by the
     Members.  In the case of  disagreement  among the Members,  an  independent
     appraiser,  who shall be selected by a Manager,  shall  determine  the fair
     market  value of the asset.  The Profit or Loss for each unsold asset shall
     be determined  as if the asset had been sold at its fair market value,  and
     the Profit or Loss shall be allocated to the Interest  Holders who received
     such distributions and shall be properly credited or charged to the Capital
     Accounts of the Interest Holders prior to the distribution of the assets in
     liquidation pursuant to Section 4.7.

     4.8.3 All Profit and Loss shall be allocated,  and all distributions  shall
     be made to the  Persons  shown on the  records of the  Company to have been
     Interest  Holders  as of the last day of the  taxable  year for  which  the
     allocation or  distribution is to be made.  Notwithstanding  the foregoing,
     unless the Company's taxable year is separated into segments, if there is a
     Transfer or an Involuntary  Withdrawal  during the taxable year, the Profit
     and Loss shall be allocated  between the original  Interest  Holder and the
     successor  on the basis of the number of days each was an  Interest  Holder
     during the taxable year;  provided,  however,  the  Company's  taxable year
     shall be  segregated  into two or more  segments  in order to  account  for
     Profit,  Loss or proceeds  attributable to a Capital  Transaction or to any
     other extraordinary non-recurring items of the Company.

     4.8.4 The Managers are hereby authorized,  upon the advice of the Company's
     tax  counsel,  to amend  this  Article  4 to  comply  with the Code and the
     Regulations promulgated under Code Section 704(b); provided,  however, that
     no amendment shall  materially  affect  distributions to an Interest Holder
     without the Interest Holder's prior written consent.

5. Manager(s) and Management

5.1 Management

     5.1.1 Manager(s) and Appointment

     The Company shall be managed by the Manager(s), who may, but need not, be a
     Member.  Member hereby designates  Bradley C. Arnett,  Gill Howard,  Philip
     Taylor and David L. Wozny to serve as the Managers.  The above  individuals
     shall serve as Managers until any of them resign or any of them are removed
     by the Member(s);  provided, however, that a Manager shall not be permitted
     to resign if such  Manager is, at the time,  the sole  Manager,  unless and
     until a replacement Manager shall be elected to serve as Manager.

     5.1.2 General Powers

     Each  Manager  individually  shall  have  full,  exclusive,   and  complete
     discretion,  power,  and  authority,  subject  in all  cases  to the  other
     provisions of this  Agreement and the  requirements  of applicable  law, to
     manage,  control,  administer,  and operate the business and affairs of the
     Company for the Purposes herein stated, and to make all decisions affecting
     such  business  and  affairs,  including  without  limitation,  for Company
     purposes, the power to:

     (a)  acquire  by  purchase,  lease,  or  otherwise,  any  real or  personal
          property, tangible or intangible;

     (b)  construct,  operate,  maintain, finance and improve, and to own, sell,
          convey, assign, mortgage, or lease any of the Company Assets;

     (c)  enter into  agreements and contracts in connection  with the Company's
          business;

     (d)  purchase  liability  and other  insurance  to  protect  the  Company's
          properties and business;

     (e)  borrow  money for and on  behalf  of the  Company,  and,  execute  any
          guaranty on behalf of a third party;

     (f)  execute or modify  agreements or contracts with respect to any part or
          all of the Company's Assets;

     (g)  prepay, in whole or in part,  refinance,  amend, modify, or extend any
          mortgages or deeds of trust which may affect any Company Asset and, in
          connection therewith,  to execute for and on behalf of the Company any
          extensions,  renewals,  or modifications of such mortgages or deeds of
          trust;

     (h)  execute  any and all  other  instruments  and  documents  which may be
          necessary or in the opinion of the Manager  desirable to carry out the
          intent and purpose of this Agreement;

     (i)  make  any  and  all  expenditures  which  the  Manager,  in  its  sole
          discretion,  deems  necessary or  appropriate  in connection  with the
          management  of the affairs of the Company and the  carrying out of its
          obligations  and  responsibilities  under this  Agreement,  including,
          without limitation,  all legal, accounting, and other related expenses
          incurred in connection with the organization, financing, and operation
          of the Company;

     (j)  enter into any kind of activity  necessary to, in connection  with, or
          incidental to, the accomplishment of the purposes of the Company; and

     (k)  invest and  reinvest  Company  reserves in short term  instruments  or
          money market funds

     5.1.3 Extraordinary Transactions

     (a)  Notwithstanding  anything  to the  contrary  in  this  Agreement,  the
          Managers shall not undertake any of the following without the approval
          of the Members:

          (i)  any Capital Transaction;

          (ii) to lend, assume or guaranty debt in excess of $100,000 in any one
               Fiscal Year;

          (iii)the  admission  of  additional  or  substitute   Members  to  the
               Company;

          (iv) the Company engaging in business in any  jurisdiction  which does
               not provide for the registration of limited liability companies;

          (v)  to authorize any expenditure  that causes the annual  expenditure
               budget to be exceeded by fifteen  percent (15%) in any one Fiscal
               Year; and

          (vi) to  provide  loans to any  Member;  assume  the debt of a Member;
               guaranty debt of a Member;  or acceptance of any loan provided by
               a Member.

5.1.4      Limitation on Authority of Members

     (a)  No  Member  is an agent of the  Company  solely  by  virtue of being a
          Member,  and no Member has authority to act for the Company  solely by
          virtue of being a Member.  Only the Managers are authorized to act for
          the  Company,  and no Member has any  authority to act for the Company
          unless such Member is also a Manager.

     (b)  This Section  5.1.4  supersedes  any  authority  granted to the Member
          pursuant to Section 18-402 of the Act. Any Member who takes any action
          or binds the  Company in  violation  of this  Section  5.1.4  shall be
          solely  responsible for any loss or expense incurred by the Company as
          a result of the  unauthorized  action and shall indemnify and hold the
          Company harmless with respect to the loss or expense.

     5.1.5 Removal of Manager

     The  Members,  at any time and from  time to time and for any  reason,  may
     remove any Manager then acting and elect a new Manager. No action to remove
     a Manager may be taken without the approval of  seventy-five  percent (75%)
     of the Members.

5.2 Meetings of and Voting by Members

     5.2.1 A meeting of the Members may be called at any time by the Managers or
     by those Members holding at least a majority of the  Percentages  then held
     by Members.  It shall not be necessary  for the Managers to call or to hold
     regular  meetings of the Members.  Meetings of the Members shall be held at
     the Company's  principal place of business or at any other place designated
     by the Person  calling the  meeting.  Not less than seven (7) nor more than
     sixty (60) days before each meeting, a Manager shall give written notice of
     the meeting to each  Member  entitled  to vote at the  meeting.  The notice
     shall state the time,  place,  and purpose of the meeting.  Notwithstanding
     the foregoing  provisions,  each Member who is entitled to notice may waive
     notice,  either before or after the meeting,  by executing a waiver of such
     notice or if such  Member is present at the  meeting in person or by proxy.
     At a meeting  of  Members,  the  presence  in person or by proxy of Members
     holding  Percentages,  which  aggregate not less than  sixty-seven  percent
     (67%),  constitutes  a  quorum.  A Member  may vote  either in person or by
     written   proxy   signed  by  the   Member   or  by  his  duly   authorized
     attorney-in-fact.

     5.2.2  Except  as  otherwise  provided  in this  Agreement,  wherever  this
     Agreement  requires the approval of the Members,  the  affirmative  vote of
     those Members  holding a majority or more of the  Percentages  then held by
     Member(s) shall be required to approve the matter.

     5.2.3 In lieu of holding a meeting,  the Members may vote or otherwise take
     action  by a written  instrument  indicating  the  consent  of the  Members
     holding a majority of the  Percentages  then held. Any such approved action
     shall be effective immediately. The Company shall give prompt notice to all
     Members of any action approved by Members by less than unanimous consent.

     5.2.4 The provisions of this  Agreement are intended to replace  completely
     the provisions of the Act with respect to all matters concerning a Member's
     voting  rights,  procedures  for  meetings of  Members,  actions by Members
     without meetings, and the use of proxies.

5.3 Services and Duties of Members

     5.3.1 No Member  serving as a Manager  shall be expected to devote his, her
     or its full  working  time and efforts to the  business  and affairs of the
     Company,  and  each  shall  only  devote  so much  time and  efforts  as is
     reasonably required for such purposes.  The Managers shall devote such time
     to the business and affairs of the Company as is necessary to carry out the
     Manager's duties set forth in this Agreement.  Managers shall be reimbursed
     by the Company for reasonable  business  expenses incurred on behalf of the
     company and within guidelines established by the Members.

     5.3.2 No Member other than a Member serving as a Manager shall be expected,
     or entitled,  to work for the Company except with the prior written consent
     of the Managers.

     5.3.3 Except as otherwise  expressly provided in Section 5.3.4,  nothing in
     this  Agreement  shall be deemed to  restrict  in any way the rights of the
     Managers or any Member,  or to any  Affiliate of any Manager or any Member,
     to conduct any other business or activity  whatsoever,  and the Managers or
     any Member  shall not be  accountable  to the Company or to any Member with
     respect to that  business  or  activity  even if the  business  or activity
     competes with the Company's business. The organization of the Company shall
     be without  prejudice  to their  respective  rights (or the rights of their
     respective  Affiliates)  to  maintain,  expand,  or  diversify  such  other
     interests and activities  and to receive and enjoy profits or  compensation
     therefrom.  Each Member waives any rights the Members might  otherwise have
     to share or  participate  in such  other  interests  or  activities  of the
     Managers or any other Member or any Manager's or Member's Affiliates.

     5.3.4 Each  Member  understands  and  acknowledges  that the conduct of the
     Company's  business may involve business  dealings and undertakings  with a
     Member  and its  Affiliates.  In any of those  cases,  those  dealings  and
     undertakings shall be at arm's length and on commercially  reasonable terms
     as determined by the Managers.

5.4 Liability and Indemnification

     5.4.1 The Managers shall not be liable,  responsible,  or  accountable,  in
     damages or otherwise, to any Member or to the Company for any act performed
     by the Managers within the scope of the authority conferred on the Managers
     by this Agreement,  except for fraud, gross negligence,  wilful misconduct,
     or an intentional breach of this Agreement.

     5.4.2 The Company shall indemnify the Managers for any act performed by the
     Managers  within the scope of the  authority  conferred  on the Managers by
     this  Agreement,  unless  such  act  is a  breach  of  this  Agreement,  or
     constitutes  gross  negligence,  wilful  or  intentional  misconduct,  or a
     knowing violation of law.

5.5 Power of Attorney

     5.5.1 Grant of Power

     The Members  constitute  and appoint the Managers as the Members'  true and
     lawful  attorney-in-fact  ("Attorney-in-Fact"),  and in the Members'  name,
     place and stead, to make, execute, sign, acknowledge, and file:

     (a)  all documents  (including  amendments to the Certificate of Formation)
          which the Attorney-in-Fact deems appropriate to reflect any amendment,
          change, or modification of this Agreement;

     (b)  any and all other  certificates  or other  instruments  required to be
          filed by the Company under the laws of the State of Delaware or of any
          other  state  or  jurisdiction,  including,  without  limitation,  any
          certificate or other instruments necessary in order for the Company to
          continue to qualify as a limited  liability  company under the laws of
          the State of Delaware;

     (c)  one or more fictitious or trade name certificates; and

     (d)  all  documents  which may be required to dissolve  and  terminate  the
          Company and to cancel its Certificate of Formation.

     5.5.2 Irrevocability

     The  foregoing  power of attorney  is  irrevocable  and is coupled  with an
     interest, and, to the extent permitted by applicable law, shall survive the
     death or disability  of a Member.  It also shall survive the Transfer of an
     Interest,  except that if the  transferee  is approved  for  admission as a
     Member, this power of attorney shall survive the delivery of the assignment
     for  the  sole  purpose  of  enabling  the   Attorney-in-Fact  to  execute,
     acknowledge and file any documents  needed to effectuate the  substitution.
     Each   Member   shall  be  bound  by  any   representations   made  by  the
     Attorney-in-Fact  acting in good faith  pursuant to this power of attorney,
     and each Member hereby  waives any and all defenses  which may be available
     to contest, negate or disaffirm the action of the Attorney-in-Fact taken in
     good faith under this power of attorney.

6. Transfer of Interests and Withdrawals of Members

6.1 Transfers

     6.1.1  The  Members  and  Interest  Holders  shall not trade or deal in any
     Membership  Interest and Interest on any securities  exchange or securities
     market.

     6.1.2 No Person  may  Transfer  all or any  portion of or any  interest  or
     rights  in  the  Membership  Interest  or  Interest  unless  the  following
     conditions "Conditions of Transfer") are satisfied:

     (a)  The Transfer will not require  registration of Interests or Membership
          Interests under any federal or state securities laws;

     (b)  The transferee  delivers to the Company a written instrument  agreeing
          to be bound by the terms of this Agreement.

     (c)  The  Transfer  will  not  result  in the  termination  of the  Company
          pursuant to Code Section 708;

     (d)  The  Transfer  will not  result in the  Company  being  subject to the
          Investment Company Act of 1940, as amended;

     (e)  The transferor or the transferee delivers the following information to
          the Company: (i) the transferee's  taxpayer  identification number and
          (ii) the transferee's  initial tax basis in the Transferred  Interest;
          and

     (f)  The  Transfer  will  not  result  in  the  Company  being  taxed  as a
          corporation for purposes of federal or state income tax purposes.

     6.1.3 If the  Conditions  of  Transfer  are  satisfied,  then a  Member  or
     Interest Holder may Transfer all or any portion of that Person's  Interest.
     The Transfer of an Interest  pursuant to this Section 6.1 shall not result,
     however,  in the  Transfer  of any of  the  transferor's  other  Membership
     Interest,  if any, and the  transferee of the Interest  shall have no right
     to: (i) become a Member without the consent of the Members required by this
     Agreement;  or (ii)  exercise  any  Membership  Interest  other  than those
     specifically pertaining to the ownership of an Interest.

     6.1.4 The Members hereby  acknowledge the reasonableness of the prohibition
     contained in this Section 6.1 in view of the  structure and purposes of the
     Company. The Transfer of any Membership Rights or Interests in violation of
     the prohibition contained in this Section 6.1 shall be deemed invalid, null
     and  void,  and of no force or  effect  except  any  Transfer  mandated  by
     operation of law that cannot be waived or varied by private  agreement  and
     then  only to the  extent  necessary  to give  effect to such  Transfer  by
     operation of law.  Any Person to whom a Membership  Interest or Interest is
     attempted to be  transferred  in  violation  of this  Section  shall not be
     entitled to vote on matters  coming before the Members,  participate in the
     management of the Company, act as an agent of the Company or have any other
     rights in or with respect to the Membership Interest.

     6.1.5 Right of First Offer

     (a)  If an Interest Holder (a "Transferor")  desires to Transfer all or any
          portion of, or any  interest or rights in, the  Transferor's  Interest
          (the "Transferor  Interest"),  the Transferor shall notify the Company
          of that desire (the  "Transfer  Notice").  The  Transfer  Notice shall
          describe the  Transferor  Interest.  Each Member shall have the option
          (the "Purchase Option") to purchase all of the Transferor Interest for
          a price (the  "Purchase  Price")  equal to the  amount the  Transferor
          would  receive if the Company were  liquidated  and an amount equal to
          the  Appraised  Value (as  determined  pursuant  to Section  6.4) were
          available for distribution to the Members pursuant to Section 4.4.

     (b)  The Purchase Option shall be and remain  irrevocable for a period (the
          "Transfer  Period")  ending at 11:59 P.M.  local time at the Company's
          principal  office on the  thirtieth  (30th) day following the Transfer
          Notice is given to the Company.

     (c)  At any time  during  the  Transfer  Period,  each  Member may elect to
          exercise the Purchase  Option by giving written notice of its election
          to the Transferor. The Transferor shall not be deemed a Member for the
          purpose of voting on whether the Company  shall elect to exercise  the
          Purchase Option.

     (d)  If any Member  elects to exercise  the Purchase  Option,  the Member's
          notice of its election shall fix a closing date (the "Transfer Closing
          Date") for the purchase, which shall not be earlier than five (5) days
          after the date of the notice of election or more than thirty (30) days
          after the expiration of the Transfer Period.

     (e)  If a Member elects to exercise the Purchase Option, the Purchase Price
          shall be paid in cash on the Transfer Closing Date.

     (f)  If all Members fail to exercise the Purchase  Option,  the  Transferor
          shall be  permitted to offer and sell for a period of ninety (90) days
          (the "Free  Transfer  Period")  after the  expiration  of the Transfer
          Period at a price not less than the Purchase  Price. If the Transferor
          does not Transfer the  Transferor  Interest  within the Free  Transfer
          Period,  the  Transferor's  right to Transfer the Transferor  Interest
          pursuant to this Section shall cease and terminate.

     (g)  Any Transfer of the Transferor Interest made after the last day of the
          Free  Transfer  Period or without  strict  compliance  with the terms,
          provisions and conditions of this Section and other terms, provisions,
          and conditions of this Agreement, shall be null, void, and of no force
          or effect.

6.2 Voluntary Withdrawal Prohibited

     No Members  shall have the right or power to effect a voluntary  withdrawal
     from the Company.  Any Member who effectuates a voluntary  withdrawal is in
     violation of this  Agreement  and shall not be entitled to receive the fair
     value of the Member's  Interest as of the date of the voluntary  withdrawal
     as otherwise provided by Section 18-604 of the Act.

6.3 Involuntary Withdrawal

     Immediately upon the occurrence of an Involuntary Withdrawal,  the affected
     Member  shall  cease  to  have  a  Membership  Interest  and  the  Member's
     Membership Interest shall be automatically converted into just an Interest,
     except that any  successor-in-interest  to the Interest of a Member who has
     Involuntarily  Withdrawn shall be entitled to exercise such of the Member's
     rights as a Member as is  required by the  operation  of law that cannot be
     waived or varied by private agreement.

6.4 Appraised Value

     6.4.1 The term "Appraised Value" means the appraised value of the equity of
     the Company's  Assets as  hereinafter  provided.  Within  fifteen (15) days
     after  demand by either one or the other,  the Company and any  Withdrawing
     Member,  if  applicable,  shall each appoint an appraiser to determine  the
     value of the equity of the Company's  Assets.  If the two appraisers  agree
     upon the equity value of the Company's Assets,  they shall jointly render a
     single  written report  stating that value.  If the two  appraisers  cannot
     agree upon the equity value of the Company's Assets, they shall each render
     a separate  written report and shall appoint a third  appraiser,  who shall
     appraise  the  Company's  Assets  and  determine  the  value of the  equity
     therein,  and shall render a written  report of his opinion  thereon.  Each
     party  shall  pay the fees and  costs of the  appraiser  appointed  by that
     party,  and the fees and other costs of the third appraiser shall be shared
     equally by both parties.

     6.4.2 The equity value  contained in the aforesaid  joint written report or
     written  report of the third  appraiser,  as the case may be,  shall be the
     Appraised  Value;  provided,  however,  that  it the  value  of the  equity
     contained in the appraisal  report of the third  appraiser is more than the
     higher of the first two appraisals,  the higher of the first two appraisals
     shall  govern;  and  provided,  further,  that if the  value of the  equity
     contained in the appraisal  report of the third  appraiser is less than the
     lower of the first two  appraisals,  the lower of the first two  appraisals
     shall govern.

7. Dissolution, Liquidation, and Termination of the Company

7.1 Events of Dissolution

     The Company  shall be dissolved  upon the happening of any of the following
     events:

     7.1.1 on the date fixed for its termination in Section 2.4;

     7.1.2 upon the  decision  by the  Company to  dissolve,  as approved by the
     unanimous agreement of every Member without the consent of the Managers;

     7.1.3 upon the occurrence of an Involuntary  Withdrawal of a Member, unless
     the remaining Members,  within ninety (90) days after the occurrence of the
     Involuntary  Withdrawal,  unanimously elect to continue the business of the
     Company pursuant to the terms of this Agreement; or

     7.1.4 by  operation  of law that  cannot be  waived  or  varied by  private
     agreement.

7.2 Procedure for Winding Up and Dissolution

     If the Company is  dissolved,  the Managers  shall wind up its affairs.  If
     there  shall be no Manager or the  Managers  are unable or  unavailable  to
     perform these duties,  then the Members shall elect a Person to wind up the
     affairs of the  Company.  On winding up of the  Company,  the assets of the
     Company shall be distributed,  first, to creditors of the Company including
     Interest  Holders who are creditors,  in satisfaction of the liabilities of
     the  Company,  and then to the  Interest  Holders in  accordance  with this
     Agreement.

7.3 Filing of Certificate of Cancellation

     Upon  completion  of the  winding  up of the  affairs of the  Company,  the
     Managers  shall  promptly  file a  Certificate  of  Cancellation  with  the
     Secretary  of  State.  If there is no  Manager,  then  the  Certificate  of
     Cancellation  shall be filed by the  Members or by the last  Person to be a
     Member or by the legal or personal  representatives  of the Person who last
     was a Member.

8. Books, Records, Accounting, and Tax Elections

8.1 Bank Accounts

     All funds of the Company  shall be  deposited in a bank account or accounts
     opened and maintained in the Company's  name. The Managers shall  determine
     the  institution or  institutions  at which the accounts will be opened and
     maintained,  the types of accounts, and the Persons who will have authority
     with respect to the accounts and the funds therein.

8.2 Books and Records

     8.2.1 The  Managers  shall keep or cause to be kept  complete  and accurate
     books and  records  of the  Company  and  supporting  documentation  of the
     transactions  with respect to the conduct of the Company's  business at the
     Company's principal executive office. The records shall include, but not be
     limited to,  complete and accurate  information  regarding the state of the
     business and financial  condition of the Company, a copy of the Certificate
     of Formation and Limited  Liability Company Agreement and all amendments to
     the Certificate of Formation and the Limited Liability Company Agreement; a
     current list of the names and last known  business,  residence,  or mailing
     addresses of each Member;  and the Company's  federal,  state, or local tax
     returns and  reports,  if any,  for the six(6) most recent  taxable  years;
     internal  books and records for the current and three(3) most recent years;
     a true copy of relevant records  indicating the amount,  cost, and value of
     all property which the Company owns, claims, possesses, or controls.

     8.2.2 The books and records shall be  maintained  on the accrual  method of
     accounting in accordance  with the  requirements of the Code and Regulation
     Section 1.704-1(b) and shall be available at the Company's principal office
     for   examination   by  any  Member  or  the   Member's   duly   authorized
     representative at any and all reasonable times during normal business hours
     for any purpose reasonably related to such Member's interest as a Member of
     the Company.

8.3 A Member has the right upon reasonable request,  and for purposes reasonably
related to the interest of the Member in the Company, to do the following:

     8.3.1 to inspect and copy during normal  business  hours any of the records
     required to be maintained by the Company under this Agreement; and

     8.3.2 to obtain from the Company promptly after becoming available,  a copy
     of the Company's federal, state and local income tax or information returns
     for each year.

     8.3.3 The Managers  shall promptly  furnish to the requesting  Member (i) a
     copy of any  amendment to the  Certificate  of Formation or this  Agreement
     pursuant to a power of attorney from the Members provided in Section 5.5.1,
     and (ii) a copy of this Agreement,  at the expense of the Company, upon the
     reasonable  request of the Member for a purpose  reasonably  related to the
     interest of the Member in the Company.

     8.3.4 Unless otherwise provided in this Agreement, a Member shall reimburse
     the  Company  for  all  costs  and  expenses  incurred  by the  Company  in
     connection with the Member's  inspection and copying of the Company's books
     and records.

8.4 Annual Accounting Period

     The annual  accounting period of the Company shall be its taxable year. The
     Company's taxable year shall begin on January 1st and end on December 31st.

8.5 Tax Matters Partner

     Cinergy Global Foote Creek IV, Inc., a Delaware  corporation,  shall be the
     Company's tax matters  partner ("Tax Matters  Partner")  under Code Section
     6231.  The Tax Matters  Partner shall have all powers and  responsibilities
     provided in Code Section 6221,  et seq. The Tax Matters  Partner shall keep
     every Member  informed of all notices from  government  taxing  authorities
     that may come to the  attention  of the Tax  Matters  Partner.  The Company
     shall  pay and be  responsible  for all  reasonable  third-party  costs and
     expenses  incurred by the Tax Matters Partner in performing those duties. A
     Member  shall be  responsible  for any costs  incurred  by the Member  with
     respect  to  any  tax  audit  or  tax-related  administrative  or  judicial
     proceeding against any Member,  even though it relates to the Company.  The
     Tax  Matters  Partner may not  compromise  any  dispute  with the  Internal
     Revenue Service without the approval of the Member.

8.6 Tax Elections

     The Tax  Matters  Partner  shall  have the  authority  to make all  Company
     elections  permitted  under  the  Code,   including,   without  limitation,
     elections of methods of depreciation  and elections under Code Section 754.
     The  decision to make or not make an  election  shall be at the Tax Matters
     Partner's  sole  and  absolute  discretion,  subject  to  the  Tax  Matters
     Partner's  obligations  to act in the best  interest of the Company and its
     Members.

8.7 Title to Company Assets

     All real and personal  property  acquired by the Company  shall be acquired
     and held by the Company in its name.

9. General Provisions

9.1 Assurances

     The Members shall  execute all such  certificates  and other  documents and
     shall do all such  filing,  recording,  publishing,  and other  acts as the
     Managers deem  appropriate to comply with the  requirements  of law for the
     formation and  operation of the Company and to comply with any laws,  rules
     and regulations  relating to the  acquisition,  operation or holding of the
     property of the Company.

9.2 Notifications

     Any notice, demand, consent,  election, offer, approval,  request, or other
     communication  (collectively  a "notice")  required or permitted under this
     Agreement  must be in writing and either  delivered  personally  or sent by
     certified or registered mail,  postage prepaid,  return receipt  requested.
     Any  notice  to be given  hereunder  by the  Company  shall be given by the
     Managers.  A notice must be addressed to an Interest Holder at the Interest
     Holder's last known  address on the records of the Company.  All notices to
     the Company must be addressed to the Company's principal office with a copy
     to Cinergy Global Power Services Limited, at Cinergy House, Ryon Hill Park,
     Warwick Road, Stratford-upon-Avon,  Warwickshire, United Kingdom, CV37 0UU,
     Tel: 44 1789 200 100, Fax: 44 1789 200 101.

     A notice delivered  personally will be deemed given only when  acknowledged
     in writing by the person to whom it is delivered.  A notice that is sent by
     mail will be deemed given three (3) business  days after it is mailed.  Any
     party may designate,  by notice to all of the others,  substitute addresses
     or addressees for notices;  and, thereafter,  notices are to be directed to
     those substitute addresses or addressees.

9.3 Complete Agreement

     This  Agreement  constitutes  the complete and  exclusive  statement of the
     agreement  by the  Member(s).  It  supersedes  all prior  written  and oral
     statements,  including any prior representation,  statement,  condition, or
     warranty. Except as expressly provided otherwise herein, this Agreement may
     not be amended without the written consent of all of the Member(s).

9.4 Governing Law and Jurisdiction

     All questions  concerning the construction,  validity and interpretation of
     this  Agreement  and the  performance  of the  obligations  imposed by this
     Agreement  shall be governed by the internal law, not the law of conflicts,
     of the State of Delaware.

9.5 Section Titles

     The headings  herein are inserted as a matter of  convenience  only, and do
     not define, limit, or describe the scope of this Agreement or the intent of
     the provisions hereof.

9.6 Binding Provisions

     This  Agreement is binding upon,  and inures to the benefit of, the parties
     hereto and their respective heirs, executors, administrators,  personal and
     legal representatives, successors, and permitted assigns.

9.7 Terms

     Common  nouns  and  pronouns  shall be  deemed  to refer to the  masculine,
     feminine,  neuter,  singular, and plural, as the identity of the Person may
     in the context require.

9.8 Severability of Provisions

     If for any reason,  any provision or provisions herein are determined to be
     invalid and contrary to any existing or future law, such  invalidity  shall
     not impair the  operation  of or affect  those  portions of this  Agreement
     which are valid.



IN WITNESS  WHEREOF,  the Member has  executed,  or caused this  Agreement to be
executed  as of the date  set  forth  hereinabove  with  the  intent  that it be
effective on such date.



MEMBER:

Cinergy Global Foote Creek IV, Inc.
a Delaware corporation




By __________________________
Name: David L. Wozny
Title: Vice President







                                    Exhibit A
                                       to


                    Amended and Restated Operating Agreement
                                       Of
                               Foote Creek IV, LLC


Name, Address and Taxpayer I.D. Number    Capital Contribution     Percentages
Cinergy Global Foote Creek IV, Inc.            $ 0                     100 %
139 East Fourth Street
Cincinnati, Ohio  45202

Tax I.D.: 31-1732375
Total Capital Contribution                     $ 0                      100%




Effective as of October 31, 2001:

Approved by Manager:__________________________________
EX-99 46 b-422.htm CERT OF FORM SOLUTIONS OPER SERV OF LANSING Cinergy Solutions of Lansing 
                            CERTIFICATE OF FORMATION

                                       OF

              Cinergy Solutions Operating Services of Lansing, LLC


     This Certificate of Formation of Cinergy  Solutions  Operating  Services of
Lansing,  LLC  (the  "Company"),  is  being  duly  executed  and  filed  by  the
undersigned,  as an authorized person, to form a limited liability company under
the Delaware Limited Liability Company Act (as the same may be amended from time
to time, the "Act"), 6 Del. C.ss.ss.18-101, et seq.

                                    ARTICLE I

                                      NAME

               The name of the limited liability company shall be:
              Cinergy Solutions Operating Services of Lansing, LLC

                                   ARTICLE II

                       REGISTERED OFFICE, REGISTERED AGENT

     The initial  registered office of the Company shall be: c/o The Corporation
Trust Center,  1209 Orange Street,  Wilmington,  Delaware  19801,  or such other
location as the Company by consent shall determine. The initial registered agent
of the Company shall be: The  Corporation  Trust  Company,  1209 Orange  Street,
Wilmington,  New Castle County,  Delaware,  19801, or such other location as the
Company  by  consent  shall  determine.  Either  the  registered  office  or the
registered agent may be changed in the manner provided by law.

                                   ARTICLE III

                                   AMENDMENTS

     The Company  reserves the right to amend this Certificate of Formation from
time to time in accordance with the Act,  provided,  that the unanimous approval
of the members of the Company to such amendment has been duly obtained.

     In Witness  Whereof,  the  undersigned  has executed  this  Certificate  of
Formation on this 25th day of June, 2002.


                                                           /s/ Cecilia Temple
                                                           Cecilia Temple
                                                           Authorized Person
EX-99 47 b-423.htm LLC AGREE SOLUTIONS OPER SERV LANSING Cinergy Solutions of Lansing 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
              Cinergy Solutions Operating Services of Lansing, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
June 25,  2002,  of Cinergy  Solutions  Operating  Services of  Lansing,  LLC, a
Delaware limited liability  company (the "Company"),  is entered into by Cinergy
Solutions,  Inc. a Delaware 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 Ann. tit.  6ss.ss.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, June 25, 2002; 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  Solutions
Operating  Services  of  Lansing,  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,  1209 Orange Street,  Wilmington,  Delaware
          19801.

               (b) the  business  address  of the  Company  is 139  East  Fourth
          Street,  Cincinnati,  Ohio,  45202,  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, June 25, 2002.

                                   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  Solutions,  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), 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).

               (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 its  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  annually  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 June 25, 2002.

               (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,  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.   Cecilia  Temple,   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  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 11.6 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 11.7 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 11.8 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 Solutions, Inc.



                             By:  ___________________
                                    M. Stephen Harkness
                                    President and Chief Operating Officer
EX-99 48 b-424.htm LLC AGREE SOLUTIONS OPER SERV SHREVEPORT Cinergy Solutions of Shreveport 
                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
             Cinergy Solutions Operating Services of Shreveport, LLC


     This LIMITED LIABILITY COMPANY  AGREEMENT (this  "Agreement"),  dated as of
June 28, 2002, of Cinergy  Solutions  Operating  Services of Shreveport,  LLC, a
Delaware limited liability  company (the "Company"),  is entered into by Cinergy
Solutions,  Inc. a Delaware 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 Ann. tit.  6ss.ss.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, June 28, 2002; 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  Solutions
Operating  Services  of  Shreveport,  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,  1209 Orange Street,  Wilmington,  Delaware
          19801.

               (b) the  business  address  of the  Company  is 139  East  Fourth
          Street,  Cincinnati,  Ohio,  45202,  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, June 28, 2002.

                                   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  Solutions,  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), 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).

               (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 its  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  annually  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 June 28, 2002.

               (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,  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.   Cecilia  Temple,   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  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 11.6 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 11.7 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 11.8 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 Solutions, Inc.



                              By:  ___________________
                                     M. Stephen Harkness
                                     President and Chief Operating Officer
EX-99 49 b-425.htm CERT OF FORMATION SOLUTIONS OPER SERV SHREVEPORT Cinergy Solutions Operating of Shreveport 
                            CERTIFICATE OF FORMATION

                                       OF

             Cinergy Solutions Operating Services of Shreveport, LLC


     This Certificate of Formation of Cinergy  Solutions  Operating  Services of
Shreveport,  LLC  (the  "Company"),  is being  duly  executed  and  filed by the
undersigned,  as an authorized person, to form a limited liability company under
the Delaware Limited Liability Company Act (as the same may be amended from time
to time, the "Act"), 6 Del. C. ss.ss.18-101, et seq.

                                    ARTICLE I

                                      NAME

               The name of the limited liability company shall be:
             Cinergy Solutions Operating Services of Shreveport, LLC

                                   ARTICLE II

                       REGISTERED OFFICE, REGISTERED AGENT

     The initial  registered office of the Company shall be: c/o The Corporation
Trust Center,  1209 Orange Street,  Wilmington,  Delaware  19801,  or such other
location as the Company by consent shall determine. The initial registered agent
of the Company shall be: The  Corporation  Trust  Company,  1209 Orange  Street,
Wilmington,  New Castle County,  Delaware,  19801, or such other location as the
Company  by  consent  shall  determine.  Either  the  registered  office  or the
registered agent may be changed in the manner provided by law.

                                   ARTICLE III

                                   AMENDMENTS

     The Company  reserves the right to amend this Certificate of Formation from
time to time in accordance with the Act,  provided,  that the unanimous approval
of the members of the Company to such amendment has been duly obtained.

     In Witness  Whereof,  the  undersigned  has executed  this  Certificate  of
Formation on this 28th day of June, 2002.


                                                           /s/ Cecilia Temple
                                                           Cecilia Temple
                                                           Authorized Person
EX-99 50 b-426.htm A&R LLC AGREE CINCAP MADISON A and R LLC AGREE CINCAP MADISON 
                              AMENDED AND RESTATED

                       LIMITED LIABILITY COMPANY AGREEMENT
                                       OF
                               CINCAP MADISON, LLC


This AMENDED AND RESTATED LIMITED  LIABILITY COMPANY AGREEMENT ("LLC Agreement")
for CinCap  Madison,  LLC (formerly Duke Energy  Madison,  LLC) (the  "Company")
dated as of  September  13, 2001,  is entered into and made  effective by CinCap
VIII, LLC, a Delaware limited liability company, the sole member of the Company,
(the "Cinergy  Member") as of September 13, 2001 with reference to the following
facts.

A. Duke Energy Madison,  LLC is a Delaware limited  liability  company formed by
Duke  Energy  North  America,  LLC ("Duke  Energy" or  sometimes  referred to as
"Initial  Member")  pursuant  to the  terms  of  that  Single  Member  Operating
Agreement  dated as of  December  2, 1998 (the  "Original  Agreement"),  and the
Second Amended and Restated Single Member Operating Agreement dated as of May 3,
1999 (the "Amended and Restated Agreement");

B. Cinergy  Member has acquired  all of the  Membership  Interest of the Company
pursuant to that certain Assignment and Assumption of membership interests dated
as of September 13, 2001 by and among CinCap VIII,  LLC, as  "Assignee"  and VMC
Generating Company, a Texas General Partnership,  as "Assignor" (the "Assignment
& Assumption  Agreement"),  and Cinergy Member now wishes to replace the Amended
and Restated  Agreement in its entirety by entering  into this LLC  Agreement to
provide for the  governance  of the Company and the conduct of its business as a
limited liability  company.  This LLC Agreement shall be considered the "Limited
Liability  Company  Agreement"  of the  Company  within  the  meaning of Section
18-101(7) of the Act.

NOW  THEREFORE,  the Amended  and  Restated  Agreement  is wholly  replaced  and
superceded by this LLC  Agreement in its entirety and this LLC  Agreement  shall
read 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 "CinCap Madison, 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, 1209 Orange Street, Wilmington, Delaware, 19801.

          (b) The  business  address of the Company is 139 East  Fourth  Street,
     Cincinnati, Ohio, 45201, 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 the  provisions  of this LLC
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 the LLC Agreement be effective as of
September 13, 2001.

                                   ARTICLE III

                                    Member(s)

     Section 3.1 Admission of Member(s).  The Cinergy Member is hereby  admitted
as the sole  member of the  Company  in respect of an  Interest  (as  defined in
Section 3.2), which is the sole Interest outstanding as of the effective time of
this LLC  Agreement.  New member(s)  shall be admitted only with the approval of
the Cinergy Member, or if additional members are admitted,  with the approval of
all of the members (which approval may be evidenced by, among other things,  the
execution  of an  amendment  to, or an  amendment  and  restatement  of this LLC
Agreement.

     Section 3.2 Interests.

          (a) The Company shall be authorized to issue a single class of Limited
     Liability  Company Interest (as defined in the Act, the "Interest"),  which
     shall include any and all benefits to which the holder of such Interest may
     be entitled in this LLC  Agreement,  together with all  obligations of such
     person to  comply  with the terms  and  provisions  of this LLC  Agreement.
     Interests  may,  but need not be,  evidenced  by a  certificate  of limited
     liability company interest issued by the Company.

          (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 is only one
     member,  its  Percentage  Interest  shall be 100% for  purposes of this LLC
     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 LLC  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 of  Percentage  Interest in the
     Company,  entitled to vote at the meeting shall  constitute a quorum at all
     meetings  of the  member(s);  or (ii) if there is only  one  member  of the
     Company, 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).

          (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 in the Act or herein,
any matter  requiring the vote of the member(s)  shall  require  (including  for
purposes  of actions  taken by the  member(s)  in order to manage the Company as
provided in Article IV hereof) a majority of Percentage Interests of the members
in order to constitute an 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 Cinergy  Member,  or if  additional  member(s)  are  admitted,  the
members 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 LLC 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 Cinergy
Member or the members shall serve without compensation from the Company, and the
Cinergy  Member  or the  members  shall  bear the cost of its  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
     Cinergy  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  annually  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 LLC 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  LLC
     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 LLC 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 LLC 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 LLC  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)
and/or officers herein set forth.

     Section 4.4 Expenses.  Except as otherwise  provided in this LLC 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 LLC  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 LLC  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 LLC 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 members must
     consent in writing to  contributions  of  property.  To the extent there is
     more than one member,  each member shall make additional  contributions  in
     the same proportion, except as may be approved by all members. 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  Cinergy  Member  shall  not be  required  to  make a  contribution  in
     connection with its admission pursuant to Section 3.1 hereof.

          (b) At any time that there is more than one member,  a capital account
     shall me 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 LLC Agreement shall, to the extent  possible,  satisfy the
     "alternate  economic  effect  test"  with  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 Cinergy  Member or, if  additional
member(s)  are  admitted,  to the  members  in  proportion  to their  respective
Percentage Interests.

     Section  5.3  Distributions.  The  distributions  of the  Company  shall be
distributed  entirely  to the Cinergy  Member or, if  additional  member(s)  are
admitted, to the members 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 assignment or transfer of a
member's Interest in the Company,  except those to subsidiaries or affiliates of
members,  must receive the consent of all of the members.  Any transferee  shall
not be admitted as a  substituted  member  unless and until the  transferee  has
executed a counterpart of this LLC Agreement.

                                  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 Cinergy Member,
or, if additional  member(s) are admitted,  the unanimous  consent of all 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 Cinergy
Member or, if additional member(s) are admitted,  the members (acting by written
consent of all members) 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 Cinergy  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 Cinergy  Member for
such purposes. In the event 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 LLC 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 members 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  Cinergy  Member,  or if  additional
member(s) are admitted,  the members shall cause to be prepared and timely filed
all tax returns  required  to be filed for the  Company.  The Cinergy  Member or
members, 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 members 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 LLC
Agreement,  whether  express  or  implied,  or  obligation  or duty at law or in
equity,  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 LLC 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 LLC
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 LLC Agreement.  Except as otherwise provided
in this LLC  Agreement,  this LLC  Agreement  may be amended  by, and only by, a
written  instrument  executed by the Cinergy Member or, if additional  member(s)
are admitted, unanimous consent of the members.

     Section 11.2  Successors;  Counterparts.  Subject to Article VIII, this LLC
Agreement  (a) shall be binding as to the  executors,  administrators,  estates,
heirs,  assigns and legal  successors,  or nominees or  representatives,  of the
Cinergy Member or, if additional member(s) are admitted, the members 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  LLC  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 LLC
     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 LLC Agreement shall be invalid or  unenforceable  under the
     Act or other applicable law, such invalidity or unenforceability  shall not
     invalidate  the  entire  LLC  Agreement  and  this LLC  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 LLC  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
     LLC  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  LLC  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 the LLC  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  action in any other
     court.

     Section 11.4  Filings.  Following  the  execution  and delivery of this LLC
Agreement, the Cinergy Member shall be an "authorized person" within the meaning
of the Act, and shall  prepare any  documents  required to be filed and recorded
under the Act, and the Cinergy  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 Cinergy 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  Headings.  Section and other  headings  contained in this LLC
Agreement  are for  reference  purposes  only and are not  intended to describe,
interpret,  define or limit the  scope or  intent of this LLC  Agreement  or any
provision hereof.

     Section 11.6 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 LLC Agreement.

     Section 11.7 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  11.8 Books and  Records;  Accounting.  The  Cinergy  Member or, if
additional member(s) are admitted, the members 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 LLC Agreement to be
executed as of the date first above written.


                                                  CinCap VIII, LLC



                                              By: ____________________________
                                                    Michael J. Cyrus
                                                    President
EX-99 51 b-427.htm A&R OPERATING AGREE FOOTE CREEK II COA Foote Creek II

CERTIFICATE OF AMENDMENT

OF

FOOTE CREEK II, LLC

1.

The name of the limited liability company is Foote Creek II, LLC.


2.

The limited liability company shall continue in existence on a perpetual basis unless dissolved pursuant to company’s limited liability company agreement.


        IN WITNESS WHEREOF, the undersigned have executed this Certificate of Amendment of Foote Creek II, LLC effective as of March 1, 2000.

  By: /s/ Gill Howard
Name: Gill Howard
Title: Manager for Foote Creek II, LLC

Amended and Restated Operating Agreement

for

Foote Creek II, LLC

A Delaware Limited Liability Company

This AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) for Foote Creek II, LLC (“Company”) dated as of March 1, 2000 is entered into and made effective by Cinergy Global Foote Creek II, Inc., a Delaware corporation (“Cinergy Member”) as of the Effective Date with reference to the following facts:

A.     Foote Creek II, LLC is a Delaware limited liability company formed by SeaWest WindPower Inc., a California corporation (“SeaWest Member” and sometimes referred to as “Initial Member”) pursuant to the terms of that Operating Agreement of Foote Creek II, LLC, effective as of March 16, 1999 (“Initial Operating Agreement”);

B.     Cinergy Member has acquired all of the Membership Interest (as defined below) of SeaWest Member of the Company pursuant to that certain Acquisition Agreement dated as of March 1, 2000 by and among Cinergy Global Foote Creek II, Inc., as “Buyer”, SeaWest Member as “Seller”, and the Company (the “Acquisition Agreement”) and Cinergy Member now wishes to replace the Initial Operating Agreement in its entirety by entering into this Agreement to provide for the governance of the Company and the conduct of its business as a limited liability company.

NOW THEREFORE, the Initial Operating Agreement is wholly replaced and superseded by this Agreement in its entirety and this Agreement shall read as follows:

1. Definitions

Capitalized terms used in this Agreement shall have the meanings respectively given thereto in this Section 1 or elsewhere in this Agreement and when not so defined shall have the meanings set forth in the Act.

“Act” means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as amended from time to time.

“Affiliate” means, with respect to any Member, any person: (i) that owns more than 5% of the voting interests in the Member; or (ii) in which the Member owns more than 5% of the voting interests; or (iii) in which more than 5% of the voting interests are owned by a Person who has a relationship with the Member described in clause (i) or (ii) above.

“Agreement” means this Amended and Restated Operating Agreement for Foote Creek II, LLC as may be amended from time to time.

“Capital Account” means the account to be maintained by the Company on the Company’s books and records for each Member in accordance with Section 3.6.

“Capital Contribution” means, with respect to any Member, the total amount of cash and the Gross Asset Value of any other assets contributed or deemed contributed to the Company by the Code (net of liabilities secured by such contributed property that the Company is considered to assume or take “subject to” under Code Section 752) or services rendered or a promissory note or other binding obligation to contribute cash or assets or to render services as permitted under the Act in consideration of Membership Rights held by such. A Capital Contribution shall not be deemed a loan.

“Capital Proceeds” means the gross receipts received by the Company from a Capital Transaction.

“Capital Transaction” means any transaction other than in the ordinary course of business which results in the Company’s receipt of cash or other consideration other than Capital Contributions, including, without limitation, proceeds of sales or exchanges or other dispositions of property other than in the ordinary course of business, financings, refinancings, condemnations, recoveries of damage awards and insurance proceeds.

“Cash Flow” means all cash funds derived from operations of the Company (including interest received on reserves), without reduction for any non-cash charges, but less cash funds used to pay current operating expenses and to pay or establish reasonable reserves for future expenses, debt payments, capital improvements, and replacements as determined by the Managers. Cash Flow shall include net proceeds from all sales, refinancings, and other dispositions of Company property that the Managers deem in excess of the amount reasonably necessary for the operating requirements of the Company. Cash Flow shall not include Capital Proceeds but shall be increased by the reduction of any reserve previously established.

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State in accordance with the Act by the Initial Member on March 16, 1999.

“Code” means the Internal Revenue Code of 1986, as amended, or any corresponding provision of any succeeding law.

“Company” means Foote Creek II, LLC, a Delaware limited liability company.

“Company Assets” means all the direct and indirect interests in real and personal property owned by the company from time to time and shall include both tangible and intangible property (including cash).

“Depreciation” means, for each Fiscal Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Fiscal Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Members.

“Effective Date” means the Closing Date as that term is defined in the Acquisition Agreement.

“EWG” means an exempt wholesale generator as such term is defined in Section 32 of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.

“Fiscal Year” shall have the meaning given in Section 2.7.

“Gross Asset Value” means with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(i)  

The initial Gross Asset Value of any item of property contributed by Member to the Company shall be the gross fair market value of such asset, as mutually agreed by the contributing Member and the Company;


(ii)  

The Gross Asset Values of all Company Assets shall be adjusted to equal their respective gross fair market values (taking Code Section 7701(g) into account) in accordance with Regulation Section 1.704-1(b)(2)(iv)(f) and as determined by the Members as of the following times: (a) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for an interest in the Company; and (c) the liquidation of the Company within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses (a) and (b) of this paragraph shall be made only if the Members reasonably determine that such adjustment is necessary to reflect the relative Interests of the Members in the Company;


(iii)  

The Gross Asset Value of any item of Company Assets distributed to any Member shall be adjusted to equal the gross fair market value (taking Code Section 7701(g) into account) of such asset on the date of distribution as mutually agreed by the receiving Member and the Company; and


(iv)  

The Gross Asset Values of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 732 or Code Section 734 or Code Section 743, subject to the limitations imposed by Code Section 755 and only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulation Section 1.704-1(b)(2)(iv)(m) and subparagraph (e) of the definition of “Net Profits” or “Net Losses”; provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).


  If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Profits and Losses.

“Initial member” means the SeaWest Member.

“Interest” means an Interest Holder’s share of the Profits and Losses of, and the right to receive distributions from the Company, but does not include any other rights of a Member including, without limitation, the right to vote or to participate in management, or any right to information concerning the business and affairs of the Company.

“Interest Holder” means any Person who holds an Interest, whether as a Member or as an assignee of a Member who has not been admitted to the Company as a Member.

“Involuntary Withdrawal” means, with respect to any Member, the occurrence of any of the following events;

(i)  

the Member makes an assignment for the benefit of creditors;


(ii)  

the Member files a voluntary petition of bankruptcy;


(iii)  

the Member is adjudged bankrupt or insolvent or there is entered against the Member an order for relief in any bankruptcy or insolvency proceeding;


(iv)  

the Member files a petition or answer seeking for the Member any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation;


(v)  

the Member seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or any substantial part of the Member’s properties;


(vi)  

the Member files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Member in any proceeding described in Subsections (i) through (v);


(vii)  

within one hundred twenty days (120) days of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation if the proceeding has not been dismissed, or within ninety (90) days after the appointment of a trustee, receiver, or liquidator for the Member or all or any substantial part of the Member’s properties without the Member’s agreement or acquiescence, which appointment is not vacated or stayed, or if the appointment is stayed, for ninety (90) days after the expiration of the stay which period the appointment is not vacated;


(viii)  

if the Member is an individual, the Member’s death or adjudication by a court of competent jurisdiction as incompetent to manage the Member’s person or property;


(ix)  

if the Member is acting as a Member by virtue of being a trustee of a trust, the termination of the trust;


(x)  

if the Member is a partnership or another limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company;


(xi)  

if the Member is a corporation, the dissolution of the corporation or the revocation of its charter; or


(xii)  

if the Member is an estate, the distribution by the fiduciary of the estate’s entire interest in the limited liability company.


“Manager(s)” is the Person(s) designated as such in Article 5 of this Agreement or who is later elected as a Manager pursuant to the terms of this Agreement.

“Member” means Cinergy Global Foote Creek II, Inc. and any Person who subsequently is admitted as a Member of the Company in accordance with the terms of this Agreement.

“Membership Interest” means the entire ownership interest of a Member in the Company at any particular time, including without limitation: (i) Interest, (ii) right to inspect the Company’s books and records; and (iii) right to participate in the management of and vote on matters coming before the Company.

“Minimum Gain” of the Company, as provided in Regulation Section 1.704-2(d), means the total amount of gain the Company would realize for federal income tax purposes if it disposed of all assets subject to their respective nonrecourse liabilities for no consideration other than the full satisfaction thereof.

“Negative Capital Account” means a Capital Account with a balance of less than zero.

“Nonrecourse Deduction” has the meaning set forth in Regulation Section 1.704-2(b)(1). The amount of Nonrecourse deductions for a Company fiscal year equals the net increase in the amount of Company Minimum Gain during that fiscal year, reduced (but not below zero) by the aggregate amount of any distributions during that fiscal year of proceeds of a Nonrecourse Liability that are allocable to an increase in Company Minimum Gain.

“Nonrecourse Liability” has the meaning set forth in Regulation Section 1.752-1(a)(2).

“Percentage” means, as to a Member, the percentage set forth after the Member’s name on Exhibit A of this Agreement, as amended from time to time, and as to an Interest Holder who is not a Member, the Percentage of the Member(s) Interest that has been acquired by such Interest Holder, to the extent the Interest Holder has succeeded to that Member’s Interest.

“Person” means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, whether domestic or foreign.

“Positive Capital Account” means a Capital Account with a balance greater than zero.

“Profit” and “Loss” means, for each Fiscal Year of the Company (or other period), an amount equal to the Company’s taxable income or loss determined in accordance with Code Section 703(a) (for this purposes, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i)  

any tax exempt income of the Company shall be included in computing Profit and Loss;


(ii)  

any expenditures of the Company described in Code Section 705(a)(2)(B) (or treated as such pursuant to Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Profit or Loss, shall be subtracted from Profit or Loss;


(iii)  

gain or Loss resulting from any disposition of any Company Assets where such gain or Loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the Company Assets disposed of notwithstanding that the adjusted tax basis of such Company Assets differs from its Gross Asset Value;


(iv)  

in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year;


(v)  

if the Gross Asset Value of any Company Asset is adjusted in accordance with subparagraphs (ii) or (iii) of the definition thereof, the amount of such adjustment shall be taken into account in the taxable year of such adjustment as gain or loss from the disposition of such asset for the purposes of computing Profit of Loss; and


(vi)  

notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Section 4.2.2 shall not be taken into account in computing Profit and Loss.


“PUHCA” means the Public Utility Holding Company Act of 1935 and all rules and regulations adopted thereunder.

“Regulation” means the income tax regulations, including any temporary regulations, from time to time promulgated under the Code.

“Secretary of State” means the Secretary of State of the state of Delaware.

“Transfer” means, with respect to any Interest or Membership Interest in the Company, a sale, conveyance, exchange, assignment, pledge, encumbrance gift, bequest, hypothecation or other transfer or disposition by any other means, whether for value or no value and whether voluntary or involuntary.

2. Organizational Matters

2.1 Organization

  The Initial Member has filed a Certificate of Formation for Foote Creek II, LLC, a Delaware limited liability company, on March 16, 1999, and the Company was qualified within the State of Wyoming on March 23, 1999. Member has acquired all of the Membership Rights of the Initial Member by way of Transfer. Following execution of this Agreement, the Managers shall cause an amendment to the Certificate of Formation, in the form attached to this Agreement as Exhibit B (which may be executed by either Manager), to be filed with the Secretary of State. The Managers shall also cause to be made, on behalf of the Company, such additional filings and recordings in such other states as the Members shall deem necessary or advisable.

2.2 Name

  The name of the Company shall remain Foote Creek II, LLC. The Company may do business under that name and under any other name or names approved by the Members.

2.3 Business

  The Company may engage in any business or projects relating to wind energy generation including the development, construction, installation, ownership, operation, maintenance and management of wind-powered electricity generating plant and to undertake any and all activities related or incident thereto.

2.4 Term

  The term of the Company commenced as of the date of the filing of the Certificate of Formation and shall continue on a perpetual basis unless dissolved pursuant to Article 7 of this Agreement.

2.5 Registered Office and Agent

  The registered agent of the Company is CT Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, or such other agent as determined by the Managers. The principal business office of the company shall be located at c/o Wiederspahn, Liepas & Reese, The Colony Building, 211 West 19th Street, Suite 300, Cheyenne, Wyoming 82001, or such other location as the Managers may determine.

2.6 Members

  The name, present mailing address, taxpayer identification number, and Percentage of each of the Members are set forth on Exhibit A attached hereto. The Managers shall amend Exhibit A each and every time a Member is admitted or ceases to be a Member or when the Percentage of a Member is increased or decreased.

2.7 Fiscal Year

  The Fiscal Year of the Company shall begin on January 1st and end on December 31st. The Company shall have the same fiscal year for accounting and for income tax purposes.

3. Members; Capital and Capital Accounts

3.1 Capital Contributions

  Member’s predecessor in interest has made a Capital Contribution of $25,000. The Member shall not be required to make a Capital Contribution.

3.2 Additional Capital Contributions

  If the Managers at any time or from time to time determine that the Company requires additional Capital Contributions, then the Manager shall give notice to each Member of (i) the total amount to additional Capital Contributions required, (ii) the reason the additional Capital Contribution is required, (iii) each Member’s proportionate share of the total additional Capital Contribution (determined in accordance with this Section 3.2), and (iv) the date each Member’s additional Capital Contribution is due and payable, which date shall be thirty (30) days after the notice has been given. The total additional Capital Contribution which the Managers may require the Members to contribute during the term of this Agreement shall not exceed $2 million in aggregate. A Member’s share of the total additional Capital Contribution shall be equal to the product obtained by multiplying the Member’s Percentage and the total additional Capital Contribution required. A Member’s share shall be payable in cash, by certified check, or by wire transfer.

3.3 No Interest on Capital Contributions

        The Company shall not pay any interest on Capital Contributions.

3.4 Return of Capital Contributions

  Except as otherwise provided in this Agreement, neither the Members nor any Interest Holder shall have the right to receive the return of any Capital Contribution except upon dissolution of the Company.

3.5 [Intentionally Left Blank]

3.6 Capital Accounts

        3.6.1 A separate Capital Account shall be maintained for each Member and each Interest Holder.

    3.6.2   An Interest Holder’s Capital Account shall be increased with the Interest Holder’s Capital Contributions, the amount of any Company liabilities assumed by the Interest Holder (or which are secured by Company property distributed to the Interest Holder), the Interest Holder’s distributive share of Profit and any item in the nature of income or gain specially allocated to such Interest Holder pursuant to the provisions of Section 4; and

    3.6.3   An Interest Holder’s Capital Account shall be decreased with the amount of money and the Gross Asset Value of any Company property distributed to the Interest Holder, the amount of any liabilities of the Interest Holder assumed by the Company (or which are secured by property contributed by the Interest Holder to the Company), the interest Holder’s distributive share of Loss, and any item in the nature of expenses or losses specially allocated to the Interest Holder pursuant to the provisions of Section 4.

    3.6.4   If any Interest is transferred pursuant to the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent the Capital Account is attributable to the transferred Interest.

    3.6.5   If the Gross Asset Value of Company Assets is adjusted pursuant to Section 3.6.6, the Capital Account of each Member or Interest Holder shall be adjusted to reflect the aggregate adjustment in the same manner as if the Company had recognized gain or Loss equal to the amount of such aggregate adjustment.

    3.6.6   It is intended that the Capital Accounts of all Interest Holders shall be maintained in compliance with the provisions of Regulation Section 1.704-1(b)(2)(iv), and all provisions of this Agreement relating to the maintenance of Capital Accounts shall be interpreted and applied in a manner consistent with that Regulation.

3.7 Loans and Other Business Transactions

  Any Member may, at any time, make or cause to be made a non-recourse loan to the Company in any amount and on those terms upon which the Member making such non-recourse loan and the Company may agree in writing. Acceptance by the Company of any such Loan provided by a Member requires the prior unanimous consent of the Members. Any Member may also transact other business, subject to the requirement provided in Section 5.3.4, with the Company and be an employee or independent contractor of the Company and, in doing so, it shall have the same rights and be subject to the same obligations arising out of any such business transaction or employment or consultant relationship, as would be enjoyed by and imposed upon any Person, not a Member, engaged in a similar business transaction with the Company.

4. Allocations of Profit and Loss and Distributions

4.1 Distributions of Cash Flow

  Except as otherwise provided in Section 4.7.1 with respect to distributions upon liquidation of the Company, Cash Flow for each Fiscal Year of the Company shall be distributed to the Interest Holders in proportion to their Percentages at such time or times and in such aggregate amounts as may be determined by the Managers. Cash Flow, other than revenues or proceeds from a Capital Transaction or the dissolution of the Company, shall be distributed as soon as practicable following a Manager’s determination that such cash is available for distribution. The Members acknowledge that no assurances can be given with respect to when or whether such cash will be available for distributions to the Members.

4.2 Allocations of Profits and Losses

    4.2.1   General. Except as otherwise provided in this Section 4.2, Profit and Loss of the Company shall be allocated among the Interest Holders as follows:

        4.2.1.1   Profit and Loss of the Company shall be allocated to the Interest Holders in proportion to their respective Percentages.

        4.2.1.2   In accordance with the provisions of Regulation Section 1.704-2(i), each item of an Interest Holder’s Nonrecourse Deduction shall be allocated among the Interest Holders in proportion to the economic risk of loss that the Interest Holder bears with respect to the nonrecourse liability of the Company to which such item of an Interest Holder’s Nonrecourse Deduction is attributable.

4.2.2 Allocation Adjustments Required to Comply with Section 704(b) of the Code
        4.2.2.1   Limitation on Allocation of Loss. Notwithstanding Section 4.2.1.1, there shall be no allocation of Loss to any Interest Holder that would create or increase a deficit balance in such Interest Holder’s Capital Account unless such allocation would be treated as valued under Regulation Section 1.704-1(b)(1)(i). Any Loss that cannot be allocated to an Interest Holder pursuant to the preceding sentence shall be reallocated to the other Interest Holders in proportion to their Percentages.

        4.2.2.2   Qualified Income Offset. Notwithstanding Section 4.2.1.1, if in any taxable year an Interest Holder receives (or is reasonably expected to receive) a distribution, or an allocation or adjustment to such Interest holder’s Capital Account, in accordance with Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), that creates or increases (or is reasonably expected to create or increase) a deficit balance in such interest Holder’s Capital Account, there shall be allocated to the Interest Holder such items of Company income or gain as are necessary to satisfy the requirements of a “qualified income offset” within the meaning of Regulation Section 1.704-1(b)(2)(ii)(d)(3).

        4.2.2.3   Minimum Gain Chargeback. Notwithstanding Section 4.2.1, this Section 4.2.2.3 hereby incorporates by reference the “minimum gain chargeback” provisions of Regulation Section 1.704-2(f) and (i)(4). In general, upon a reduction of the Company’s Minimum Gain, the preceding sentence shall require that items of income and gain be allocated among the Interest Holders in a manner that reverses prior allocations of Nonrecourse Deductions and Interest Holder Nonrecourse Deductions as well as reductions in the Interest Holders’ Capital Account balances resulting from distributions that, notwithstanding Section 4.6, are allocable to increases in the Company’s Minimum Gain. Subject to the provisions of Section 704 of the Code and the regulations thereunder, if the Managers determine at any time that operation of such “minimum gain chargeback” provisions likely will not achieve such a reversal by the conclusion of the liquidation of the company, the Managers shall adjust the allocation provisions of this Section 4.2.2 as necessary to accomplish this result.

        4.2.2.4   Allocations Subsequent to Certain Allocation Adjustments. Any special allocations of items of Profit or Loss pursuant to Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3 shall be taken into account in computing subsequent allocations pursuant to Section 4.2.1 so that, for each Interest Holder, the net amount of any such special allocations and all allocations pursuant to Section 4.2.1 shall, to the extent possible and taking into account prior allocations pursuant to Section 4.2.7, be equal to the net amount that would have been allocated to such Interest Holder pursuant to Section 4.2.1 without application of Sections 4.2.2.1, 4.2.2.2 or 4.2.2.3.

      4.2.3 Book – Tax Accounting Disparities

  If the Company Assets are reflected in the Capital Accounts of the Interest Holders at a Gross Asset Value that differs from the adjusted tax basis of such property (whether because such property was contributed to the Company by an Interest Holder or because of a revaluation of the Interest Holders’ Capital Accounts under Regulation Section 1.704-1(b)), allocations of depreciation, amortization, income, gain or loss with respect to such property shall be made among the Interest Holders in a manner which takes such difference into account in accordance with Code Section 704(c) and Regulation Section 1.704-3(d) using the remedial method.

      4.2.4 Allocation in Event of Transfer

  If an Interest is Transferred, in compliance with Section 6.1, allocations of the Company’s Profit and Loss may be made by any method that is selected by the Managers and that is permissible under Section 706 of the Code.

      4.2.5 Adjustments to Capital Accounts for Distributions of Property

  If property distributed in kind is reflected in the Capital Accounts of the Interest Holders at a Gross Asset Value that differs from the fair market value of such property on the date of distribution, the difference shall be treated as Profit or Loss on the sale of the property and shall be allocated to the Interest Holder who received such distribution.

      4.2.6 Tax Credits and Similar Items

  Any tax credits or similar items not allocable pursuant to Sections 4.2.1 through 4.2.5 shall be allocated to the Interest Holders in proportion to their respective Percentages. Notwithstanding the preceding sentence, Company expenditures that give rise to tax credits attributable to such expenditures shall be allocated in accordance with Regulation Section 1.704-1(b)(4)(ii).

      4.2.7 Reallocation of Losses Related to Excess Distributions

  If, as a result of an Interest Holder receiving a distribution of cash or property that it is required to return because the distribution was not authorized by this Agreement, Loss which otherwise would have been allocated to the Interest Holder was allocated to one or more other Interest Holders (and such allocation has not been reversed pursuant to Section 4.2.2.4), then subsequent profit and Loss shall be allocated to the Interest Holder and to the other Interest Holders so as, in connection with the return of such cash or property (to the extent of the value thereof), to effect a reallocation of such Loss to the Interest Holder.

4.3 Modifications to Preserve Underlying Economic Objectives

  If in the opinion of counsel to the Company, there is a change in the Federal income tax law (including the Code as well as the regulations, rulings, and administrative practices thereunder) which makes it necessary or prudent to modify the allocation provisions of this Section 4 in order to preserve the underlying economic objectives of the Members as reflected in this Agreement, the Managers shall make the minimum modification necessary to achieve such purpose.

4.4 Withholding Taxes

  The Company shall withhold taxes from distributions to and allocations among, the Interest Holders to the extent required by law. Except as otherwise provided in this Section 4.4, any amount withheld by the Company with regard to an Interest Holder shall be treated for purposes of this Agreement as an amount actually distributed to such Interest Holder. An amount shall be considered withheld by the Company if remitted to a governmental agency without regard to whether such remittance occurs at the same time as the distribution or allocation to which it relates provided, however that an amount actually withheld from a specific distribution or designated by the Managers as withheld from a specific allocation shall be treated as if distributed at the time such distribution or allocation occurs. To the extent operation of the foregoing provisions of this Section 4.4 would create or increase a deficit balance in an Interest Holder’s Capital Account (excluding for this purpose any portion of such deficit attributable to the Interest Holder’s share of the Company’s Minimum Gain as determined under Section 1), the amount withheld shall be treated as a loan by the Company to such Interest Holder, which loan shall be payable upon demand and shall bear interest at a rate equal to the lowest rate that will not give rise to the imputation of additional interest under applicable federal income tax rules. At the election of the Managers, the Company shall be entitled to withhold from any distributions otherwise payable to an Interest Holder amounts owed to the Company by such Interest Holder under the terms of the preceding sentence.

4.5 Nonallocation of Distributions to Increases in Minimum Gain

  To the extent permitted under Regulation Section 1.704-2(h), distribution to Interest Holders shall not be allocable to increases in the Company’s Minimum Gain. In general, and except as provided in such Regulation, the preceding sentence is intended to ensure that reductions in an Interest Holder’s Capital Account balance resulting from distributions of money or other property to that Interest Holder are not reversed by the minimum gain chargeback provisions of Section 4.2.2.3.

4.6 Allocation of Liabilities

  Solely for purposes of determining the Interest Holders’ respective shares of the nonrecourse liabilities of the Company within the meaning of Regulation Section 1.752-3(a)(3), each Interest Holder’s interest in Company Profit shall be equal to such Interest Holder’s Percentage.

4.7 Liquidation and Dissolution

    4.7.1   Distributions. If the Company is liquidated, the assets of the Company shall be distributed to the Interest Holders in accordance with the positive balances in their respective Capital Accounts, after taking into account all distributions and allocations of Profit or Loss and other items of income, gain, loss or deduction for the Company’s taxable year during which liquidation occurs. Distributions of the Interest Holders pursuant to this Section 4.7.1 shall be made in accordance with Regulation Section 1.704-1(b)(2)(ii)(b)(2).

        4.7.2 Negative Capital Accounts. No Interest Holder shall be obligated to restore a negative Capital Account balance.

4.8 General

    4.8.1   Except as otherwise provided in this Agreement, the amount of all distributions shall be determined by the Managers and distributions shall be made as soon as practicable following a Manager’s determination. The Members acknowledge that no assurances can be given with respect to when or whether such distributions will be available to the Members.

    4.8.2   The Company Assets may be distributed in kind to the Interest Holders, and those assets shall be valued on the basis of their fair market value. The fair market value of the assets shall be determined by the Members. In the case of disagreement among the Members, an independent appraiser, who shall be selected by a Manager, shall determine the fair market value of the asset. The Profit or Loss for each unsold asset shall be determined as if the asset had been sold at its fair market value, and the Profit or Loss shall be allocated to the Interest Holders who received such distributions and shall be properly credited or charged to the Capital Accounts of the Interest Holders prior to the distribution of the assets in liquidation pursuant to Section 4.7.

    4.8.3   All Profit and Loss shall be allocated, and all distributions shall be made to the Persons shown on the records of the Company to have been Interest Holders as of the last day of the taxable year for which the allocation or distribution is to be made. Notwithstanding the foregoing, unless the Company’s taxable year is separated into segments, if there is a Transfer or an Involuntary Withdrawal during the taxable year, the Profit and Loss shall be allocated between the original Interest Holder and the successor on the basis of the number of days each was an Interest Holder during the taxable year; provided, however, the Company’s taxable year shall be segregated into two or more segments in order to account for Profit, Loss or proceeds attributable to a Capital Transaction or to any other extraordinary nonrecurring items of the Company.

    4.8.4   The Managers are hereby authorized, upon the advice of the Company’s tax counsel, to amend this Article 4 to comply with the Code and the Regulations promulgated under Code Section 704(b); provided, however, that no amendment shall materially affect distributions to an Interest Holder without the Interest Holder’s prior written consent.

5. Manager(s) and Management

5.1 Management

      5.1.1 Manager(s) and Appointment

  The Company shall be managed by the Manager(s), who may, but need not, be a Member. Cinergy Global Foote Creek II, Inc. hereby designates Gill Howard and Philip J. Taylor to serve as the Managers. The above individuals shall serve as Managers until either resigns or either is removed by the Member(s); provided, however, that a Manager shall not be permitted to resign if such Manager is, at the time, the sole Manager, unless and until a replacement Manager shall be elected to serve as Manager.

      5.1.2 General Powers

  Each Manager individually shall have full, exclusive, and complete discretion, power, and authority, subject in all cases to the other provisions of this Agreement and the requirements of applicable law, to manage, control, administer, and operate the business and affairs of the Company for the Purposes herein stated, and to make all decisions affecting such business and affairs, including without limitation, for Company purposes, the power to:

(a)  

acquire by purchase, lease, or otherwise, any real or personal property, tangible or intangible;


(b)  

construct, operate, maintain, finance and improve, and to own, sell, convey, assign, mortgage, or lease any of the Company Assets;


(c)  

enter into agreements and contracts in connection with the Company’s business;


(d)  

purchase liability and other insurance to protect the Company’s properties and business;


(e)  

borrow money for and on behalf of the Company, and, execute any guaranty on behalf of a third party;


(f)  

execute or modify agreements or contracts with respect to any part or all of the Company’s Assets;


(g)  

prepay, in whole or in part, refinance, amend, modify, or extend any mortgages or deeds of trust which may affect any Company Asset and, in connection therewith, to execute for and on behalf of the Company any extensions, renewals, or modifications of such mortgages or deeds of trust;


(h)  

execute any and all other instruments and documents which may be necessary or in the opinion of the Manager desirable to carry out the intent and purpose of this Agreement;


(i)  

make any and all expenditures which the Manager, in its sole discretion, deems necessary or appropriate in connection with the management of the affairs of the Company and the carrying out of its obligations and responsibilities under this Agreement, including, without limitation, all legal, accounting, and other related expenses incurred in connection with the organization, financing, and operation of the Company;


(j)  

enter into any kind of activity necessary to, in connection with, or incidental to, the accomplishment of the purposes of the Company; and


(k)  

invest and reinvest Company reserves in short term instruments or money market funds


      5.1.3 Extraordinary Transactions

(a)  

Notwithstanding anything to the contrary in this Agreement, the Managers shall not undertake any of the following without the approval of the Members:


(i) any Capital Transaction;
(ii)  

to lend, assume or guaranty debt in excess of $100,000 in any one Fiscal Year;


(iii)  

the admission of additional or substitute Members to the Company;


(iv)  

the Company engaging in business in any jurisdiction which does not provide for the registration of limited liability companies;


(v)  

to authorize any expenditure that causes the annual expenditure budget to be exceeded by fifteen percent (15%) in any one Fiscal Year; and


(vi)  

to provide loans to any Member; assume the debt of a Member; guaranty debt of a Member; or acceptance of any loan provided by a Member.


      5.1.4 Limitation on Authority of Members

(a)  

No Member is an agent of the Company solely by virtue of being a Member, and no Member has authority to act for the Company solely by virtue of being a Member. Only the Managers are authorized to act for the Company, and no Member has any authority to act for the Company unless such Member is also a Manager.


(b)  

This Section 5.1.4 supersedes any authority granted to the Member pursuant to Section 18-402 of the Act. Any Member who takes any action or binds the Company in violation of this Section 5.1.4 shall be solely responsible for any loss or expense incurred by the Company as a result of the unauthorized action and shall indemnify and hold the Company harmless with respect to the loss or expense.


      5.1.5 Removal of Manager

  The Members, at any time and from time to time and for any reason, may remove any Manager then acting and elect a new Manager. No action to remove a Manager may be taken without the approval of seventy-five percent (75%) of the Members.

5.2 Meetings of and Voting by Members

    5.2.1   A meeting of the Members may be called at any time by the Managers or by those Members holding at least a majority of the Percentages then held by Members. It shall not be necessary for the Managers to call or to hold regular meetings of the Members. Meetings of the Members shall be held at the Company’s principal place of business or at any other place designated by the Person calling the meeting. Not less than seven (7) nor more than sixty (60) days before each meeting, a Manager shall give written notice of the meeting to each Member entitled to vote at the meeting. The notice shall state the time, place, and purpose of the meeting. Notwithstanding the foregoing provisions, each Member who is entitled to notice may waive notice, either before or after the meeting, by executing a waiver of such notice or if such Member is present at the meeting in person or by proxy. At a meeting of Members, the presence in person or by proxy of Members holding Percentages, which aggregate not less than sixty-seven percent (67%), constitutes a quorum. A Member may vote either in person or by written proxy signed by the Member or by his duly authorized attorney-in-fact.

    5.2.2   Except as otherwise provided in this Agreement, wherever this Agreement requires the approval of the Members, the affirmative vote of those Members holding a majority or more of the Percentages then held by Member(s) shall be required to approve the matter.

    5.2.3   In lieu of holding a meeting, the Members may vote or otherwise take action by a written instrument indicating the consent of the Members holding a majority of the Percentages then held. Any such approved action shall be effective immediately. The Company shall give prompt notice to all Members of any action approved by Members by less than unanimous consent.

    5.2.4   The provisions of this Agreement are intended to replace completely the provisions of the Act with respect to all matters concerning a Member’s voting rights, procedures for meetings of Members, actions by Members without meetings, and the use of proxies.

5.3 Services and Duties of Members

    5.3.1   No Member serving as a Manager shall be expected to devote his, her or its full working time and efforts to the business and affairs of the Company, and each shall only devote so much time and efforts as is reasonably required for such purposes. The Managers shall devote such time to the business and affairs of the Company as is necessary to carry out the Manager’s duties set forth in this Agreement. Managers shall be reimbursed by the Company for reasonable business expenses incurred on behalf of the company and within guidelines established by the Members.

    5.3.2   No Member other than a Member serving as a Manager shall be expected, or entitled, to work for the Company except with the prior written consent of the Managers.

    5.3.3   Except as otherwise expressly provided in Section 5.3.4, nothing in this Agreement shall be deemed to restrict in any way the rights of the Managers or any Member, or to any Affiliate of any Manager or any Member, to conduct any other business or activity whatsoever, and the Managers or any Member shall not be accountable to the Company or to any Member with respect to that business or activity even if the business or activity competes with the Company’s business. The organization of the Company shall be without prejudice to their respective rights (or the rights of their respective Affiliates) to maintain, expand, or diversify such other interests and activities and to receive and enjoy profits or compensation therefrom. Each Member waives any rights the Members might otherwise have to share or participate in such other interests or activities of the Managers or any other Member or any Manager’s or Member’s Affiliates.

    5.3.4   Each Member understands and acknowledges that the conduct of the Company’s business may involve business dealings and undertakings with a Member and its Affiliates. In any of those cases, those dealings and undertakings shall be at arm’s length and on commercially reasonable terms as determined by the Mangers.

5.4 Liability and Indemnification

    5.4.1   The Managers shall not be liable, responsible, or accountable, in damages or otherwise, to any Member or to the Company for any act performed by the Managers within the scope of the authority conferred on the Managers by this Agreement, except for fraud, gross negligence, willful misconduct, or an intentional breach of this Agreement.

    5.4.2   The Company shall indemnify the Managers for any act performed by the Managers within the scope of the authority conferred on the Managers by this Agreement, unless such act is a breach of this Agreement, or constitutes gross negligence, willful or intentional misconduct, or a knowing violation of law.

5.5 Power of Attorney

      5.5.1 Grant of Power

  The Members constitute and appoint the Managers as the Members’ true and lawful attorney-in-fact (“Attorney-in-Fact”), and in the Members’ name, place and stead, to make, execute, sign, acknowledge, and file:

(a)  

all documents (including amendments to the Certificate of Formation) which the Attorney-in-Fact deems appropriate to reflect any amendment, change, or modification of this Agreement;


(b)  

any and all other certificates or other instruments required to be filed by the Company under the laws of the State of Delaware or of any other state or jurisdiction, including, without limitation, any certificate or other instruments necessary in order for the Company to continue to qualify as a limited liability company under the laws of the State of Delaware;


(c)  

one or more fictitious or trade name certificates; and


(d)  

all documents which may be required to dissolve and terminate the Company and to cancel its Certificate of Formation.


      5.5.2 Irrevocability

  The foregoing power of attorney is irrevocable and is coupled with an interest, and, to the extent permitted by applicable law, shall survive the death or disability of a Member. It also shall survive the Transfer of an Interest, except that if the transferee is approved for admission as a Member, this power of attorney shall survive the delivery of the assignment for the sole purpose of enabling the Attorney-in-Fact to execute, acknowledge and file any documents needed to effectuate the substitution. Each Member shall be bound by any representations made by the Attorney-in-Fact acting in good faith pursuant to this power of attorney, and each Member hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the Attorney-in-Fact taken in good faith under this power of attorney.

6. Transfer of Interests and Withdrawals of Members

6.1 Transfers

    6.1.1   The Members and Interest Holders shall not trade or deal in any Membership Interest and Interest on any securities exchange or securities market.

    6.1.2   No Person may Transfer all or any portion of or any interest or rights in the Membership Interest or Interest unless the following conditions “Conditions of Transfer”) are satisfied:

(a)  

The Transfer will not require registration of Interests or Membership Interests under any federal or state securities laws;


(b)  

The transferee delivers to the Company a written instrument agreeing to be bound by the terms of this Agreement.


(c)  

The Transfer will not result in the termination of the Company pursuant to Code Section 708;


(d)  

The Transfer will not result in the Company being subject to the Investment Company Act of 1940, as amended;


(e)  

The transferor or the transferee delivers the following information to the Company: (i) the transferee’s taxpayer identification number, and (ii) the transferee’s initial tax basis in the Transferred Interest; and


(f)  

The Transfer will not result in the Company being taxed as a corporation for purposes of federal or state income tax purposes.


    6.1.3   If the Conditions of Transfer are satisfied, then a Member or Interest Holder may Transfer all or any portion of that Person’s Interest. The Transfer of an Interest pursuant to this Section 6.1 shall not result, however, in the Transfer of any of the transferor’s other Membership Interest, if any, and the transferee of the Interest shall have no right to: (i) become a Member without the consent of the Members required by this Agreement, or (ii) exercise any Membership Interest other than those specifically pertaining to the ownership of an Interest.

    6.1.4   The Members hereby acknowledge the reasonableness of the prohibition contained in this Section 6.1 in view of the structure and purposes of the Company. The Transfer of any Membership Rights or Interests in violation of the prohibition contained in this Section 6.1 shall be deemed invalid, null and void, and of no force or effect except any Transfer mandated by operation of law that cannot be waived or varied by private agreement and then only to the extent necessary to give effect to such Transfer by operation of law. Any Person to whom a Membership Interest or Interest is attempted to be transferred in violation of this Section shall not be entitled to vote on matters coming before the Members, participate in the management of the Company, act as an agent of the Company or have any other rights in or with respect to the Membership Interest.

      6.1.5 Right of First Offer

(a)  

If an Interest Holder (a “Transferor”) desires to Transfer all or any portion of, or any interest or rights in, the Transferor’s Interest (the “Transferor Interest”), the Transferor shall notify the Company of that desire (the “Transfer Notice”). The Transfer Notice shall describe the Transferor Interest. Each Member shall have the option (the “Purchase Option”) to purchase all of the Transferor Interest for a price (the “Purchase Price”) equal to the amount the Transferor would receive if the Company were liquidated and an amount equal to the Appraised Value (as determined pursuant to Section 6.4) were available for distribution to the Members pursuant to Section 4.4.


(b)  

The Purchase Option shall be and remain irrevocable for a period (the “Transfer Period”) ending at 11:59 P.M. local time at the Company’s principal office on the thirtieth (30th) day following the Transfer Notice is given to the Company.


(c)  

At any time during the Transfer Period, each Member may elect to exercise the Purchase Option by giving written notice of its election to the Transferor. The Transferor shall not be deemed a Member for the purpose of voting on whether the Company shall elect to exercise the Purchase Option.


(d)  

If any Member elects to exercise the Purchase Option, the Member’s notice of its election shall fix a closing date (the “Transfer Closing Date”) for the purchase, which shall not be earlier than five (5) days after the date of the notice of election or more than thirty (30) days after the expiration of the Transfer Period.


(e)  

If a Member elects to exercise the Purchase Option, the Purchase Price shall be paid in cash on the Transfer Closing Date.


(f)  

If all Members fail to exercise the Purchase Option, the Transferor shall be permitted to offer and sell for a period of ninety (90) days (the “Free Transfer Period”) after the expiration of the Transfer Period at a price not less than the Purchase Price. If the Transferor does not Transfer the Transferor Interest within the Free Transfer Period, the Transferor’s right to Transfer the Transferor Interest pursuant to this Section shall cease and terminate.


(g)  

Any Transfer of the Transferor Interest made after the last day of the Free Transfer Period or without strict compliance with the terms, provisions, and conditions of this Section and other terms, provisions, and conditions of this Agreement, shall be null, void, and of no force or effect.


6.2 Voluntary Withdrawal Prohibited

  No Members shall have the right or power to effect a voluntary withdrawal from the Company. Any Member who effectuates a voluntary withdrawal is in violation of this Agreement and shall not be entitled to receive the fair value of the Member’s Interest as of the date of the voluntary withdrawal as otherwise provided by Section 18-604 of the Act.

6.3 Involuntary Withdrawal

  Immediately upon the occurrence of an Involuntary Withdrawal, the affected Member shall cease to have a Membership Interest and the Member’s Membership Interest shall be automatically converted into just an Interest, except that any successor-in-interest to the Interest of a Member who has Involuntarily Withdrawn shall be entitled to exercise such of the Member’s rights as a Member as is required by the operation of law that cannot be waived or varied by private agreement.

6.4 Appraised Value

    6.4.1   The term “Appraised Value” means the appraised value of the equity of the Company’s Assets as hereinafter provided. Within fifteen (15) days after demand by either one or the other, the Company and any Withdrawing Member, if applicable, shall each appoint an appraiser to determine the value of the equity of the Company’s Assets. If the two appraisers agree upon the equity value of the Company’s Assets, they shall jointly render a single written report stating that value. If the two appraisers cannot agree upon the equity value of the Company’s Assets, they shall each render a separate written report and shall appoint a third appraiser, who shall appraise the Company’s Assets and determine the value of the equity therein, and shall render a written report of his opinion thereon. Each party shall pay the fees and costs of the appraiser appointed by that party, and the fees and other costs of the third appraiser shall be shared equally by both parties.

    6.4.2   The equity value contained in the aforesaid joint written report or written report of the third appraiser, as the case may be, shall be the Appraised Value; provided, however, that if the value of the equity contained in the appraisal report of the third appraiser is more than the higher of the first two appraisals, the higher of the first two appraisals shall govern; and provided, further, that if the value of the equity contained in the appraisal report of the third appraiser is less than the lower of the first two appraisals, the lower of the first two appraisals shall govern.

7. Dissolution, Liquidation, and Termination of the Company

7.1 Events of Dissolution

        The Company shall be dissolved upon the happening of any of the following events:

7.1.1 on the date fixed for its termination in Section 2.4; 7.1.2 upon the decision by the Company to dissolve, as approved by the unanimous agreement of every Member without the consent of the Managers;
    7.1.3   upon the occurrence of an Involuntary Withdrawal of a Member, unless the remaining Members, within ninety (90) days after the occurrence of the Involuntary Withdrawal, unanimously elect to continue the business of the Company pursuant to the terms of this Agreement; or

7.1.4 by operation of law that cannot be waived or varied by private agreement.

7.2 Procedure for Winding Up and Dissolution

  If the Company is dissolved, the Managers shall wind up its affairs. If there shall be no Manager or the Managers are unable or unavailable to perform these duties, then the Members shall elect a Person to wind up the affairs of the Company. On winding up of the Company, the assets of the Company shall be distributed, first, to creditors of the Company including Interest Holders who are creditors, in satisfaction of the liabilities of the Company, and then to the Interest Holders in accordance with this Agreement.

7.3 Filing of Certificate of Cancellation

  Upon completion of the winding up of the affairs of the Company, the Managers shall promptly file a Certificate of Cancellation with the Secretary of State. If there is no Manager, then the Certificate of Cancellation shall be filed by the Members or by the last Person to be a Member or by the legal or personal representatives of the Person who last was a Member.

8. Books, Records, Accounting, and Tax Elections

8.1 Bank Accounts

  All funds of the Company shall be deposited in a bank account or accounts opened and maintained in the Company’s name. The Managers shall determine the institution or institutions at which the accounts will be opened and maintained, the types of accounts, and the Persons who will have authority with respect to the accounts and the funds therein.

8.2 Books and Records

    8.2.1   The Managers shall keep or cause to be kept complete and accurate books and records of the Company and supporting documentation of the transactions with respect to the conduct of the Company’s business at the Company’s principal executive office. The records shall include, but not be limited to, complete and accurate information regarding the state of the business and financial condition of the Company, a copy of the Certificate of Formation and Limited Liability Company Agreement and all amendments to the Certificate of Formation and the Limited Liability Company Agreement; a current list of the names and last known business, residence, or mailing addresses of each Member; and the Company’s federal, state, or local tax returns and reports, if any, for the six (6) most recent taxable years; internal books and records for the current and three (3) most recent years; a true copy of relevant records indicating the amount, cost, and value of all property which the Company owns, claims, possesses, or controls.

    8.2.2   The books and records shall be maintained on the accrual method of accounting in accordance with the requirements of the Code and Regulation Section 1.704-1(b) and shall be available at the Company’s principal office for examination by any Member or the Member’s duly authorized representative at any and all reasonable times during normal business hours for any purpose reasonably related to such Member’s interest as a Member of the Company.

  8.3   A Member has the right upon reasonable request, and for purposes reasonably related to the interest of the Member in the Company, to do the following:

    8.3.1   to inspect and copy during normal business hours any of the records required to be maintained by the Company under this Agreement; and

    8.3.2   to obtain from the Company promptly after becoming available, a copy of the Company’s federal, state and local income tax or information returns for each year.

    8.3.3   The Managers shall promptly furnish to the requesting Member (i) a copy of any amendment to the Certificate of Formation or this Agreement pursuant to a power of attorney from the Members provided in Section 5.5.1, and (ii) a copy of this Agreement, at the expense of the Company, upon the reasonable request of the Member for a purpose reasonably related to the interest of the Member in the Company.

    8.3.4   Unless otherwise provided in this Agreement, a Member shall reimburse the Company for all costs and expenses incurred by the Company in connection with the Member’s inspection and copying of the Company’s books and records.

8.4 Annual Accounting Period

  The annual accounting period of the Company shall be its taxable year. The Company’s taxable year shall begin on January 1st and end on December 31st.

8.5 Tax Matters Partner

  Cinergy Global Foote Creek II, Inc. shall be the Company’s tax matters partner (“Tax Matters Partner”) under Code Section 6231. The Tax Matters Partner shall have all powers and responsibilities provided in Code Section 6221, et seq. The Tax Matters Partner shall keep every Member informed of all notices from government taxing authorities that may come to the attention of the Tax Matters Partner. The Company shall pay and be responsible for all reasonable third-party costs and expenses incurred by the Tax Matters Partner in performing those duties. A Member shall be responsible for any costs incurred by the Member with respect to any tax audit or tax-related administrative or judicial proceeding against any Member, even though it relates to the Company. The Tax Matters Partner may not compromise any dispute with the Internal Revenue Service without the approval of the Member.

8.6 Tax Elections

  The Tax Matters Partner shall have the authority to make all Company elections permitted under the Code, including, without limitation, elections of methods of depreciation and elections under Code Section 754. The decision to make or not make an election shall be at the Tax Matters Partner’s sole and absolute discretion, subject to the Tax Matters Partner’s obligation to act in the best interest of the Company and its Members.

8.7 Title to Company Assets

        All real and personal property acquired by the Company shall be acquired and held by the Company in its name.

9. General Provisions

9.1 Assurances

  The Members shall execute all such certificates and other documents and shall do all such filing, recording, publishing, and other acts as the Managers deem appropriate to comply with the requirements of law for the formation and operation of the Company and to comply with any laws, rules and regulations relating to the acquisition, operation or holding of the property of the Company.

9.2 Notifications

  Any notice, demand, consent, election, offer, approval, request, or other communication (collectively by a “notice”) required or permitted under this Agreement must be in writing and either delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested. Any notice to be given hereunder by the Company shall be given by the Managers. A notice must be addressed to an Interest Holder at the Interest Holder’s last known address on the records of the Company. All notices to the Company must be addressed to the Company’s principal office as well as to Cinergy Global Power Services Limited, at Cinergy House, Ryon Hill Park, Warwick Road, Stratford-upon-Avon, Warwickshire, United Kingdom, CV37 0UU, Tel: 44 1789 200 100, Fax: 44 1789 200 101, Attention: Project Manager, Foote Creek II.

  A notice delivered personally will be deemed given only when acknowledged in writing by the person to whom it is delivered. A notice that is sent by mail will be deemed given three (3) business days after it is mailed. Any party may designate, by notice to all of the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed to those substitute addresses or addressees.

9.3 Complete Agreement

  This Agreement constitutes the complete and exclusive statement of the agreement by the Members. It supersedes all prior written and oral statements, including any prior representation, statement, condition, or warranty. Except as expressly provided otherwise herein, this Agreement may not be amended without the written consent of all of the Members.

9.4 Governing Law and Jurisdiction

  All questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement shall be governed by the internal law, not the law of conflicts, of the State of Delaware.

9.5 Section Titles

  The headings herein are inserted as a matter of convenience only, and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.

9.6 Binding Provisions

  This Agreement is binding upon, and inures to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal and legal representatives, successors, and permitted assigns.

9.7 Terms

  Common nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the identity of the Person may in the context require.

9.8 Severability of Provisions

  If for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.

9.9 Counterparts

  This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.

IN WITNESS WHEREOF, the Member has executed, or caused this Agreement to be executed as of the date set forth hereinabove with the intent that it be effective as of the Effective Date.

MEMBER:

Cinergy Global Foote Creek II, Inc.,a
Delaware corporation

By: /s/ Gill Howard

Name: Gill Howard

Title: Manager (under Power of Attorney)

Exhibit A

to

Amended and Restated Operating Agreement

Of

Foote Creek II, LLC

Name, Address and Taxpayer I.D. Number Capital Contribution of Predecessor Percentages Cinergy Global Foote Creek II, Inc. $25,000 100%

c/o Wiederspahn, Liepas & ReeseThe
Colony Building211
West 19th Street, Suite 300Cheyenne,
Wyoming 82001

Tax I.D.: 31-1697009

Total Capital Contribution $25,000 100%

Effective as of the Effective Date:

Approved by Manager: /s/ Gill Howard

Exhibit B

to

Amended and Restated Operating Agreement

Of

Foote Creek II, LLC

CERTIFICATE OF AMENDMENT

OF

FOOTE CREEK II, LLC

1.  

The name of the limited liability company is Foote Creek II, LLC.


2.  

The limited liability company shall continue in existence on a perpetual basis unless dissolved pursuant to company’s limited liability company agreement.


        IN WITNESS WHEREOF, the undersigned have executed this Certificate of Amendment of Foote Creek II, LLC effective as of March 1, 2000.

  By: /s/ Gill Howard
Name: Gill Howard
Title: Manager for Foote Creek II, LLC
 EX-99 52 b-428.htm LLC AGREE SOLUTIONS OPER SERV OKLAHOMA Cinergy Solutions Operating Services of Oklahoma, LLC

LIMITED LIABILITY COMPANY AGREEMENT

OF

Cinergy Solutions Operating Services of Oklahoma, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of August 13, 2002, of Cinergy Solutions Operating Services of Oklahoma, LLC, a Delaware limited liability company (the “Company”), is entered into by Cinergy Solutions, Inc. a Delaware 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 Ann. 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, August 13, 2002; 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 Solutions Operating Services of Oklahoma, 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, 1209 Orange Street, Wilmington, Delaware 19801.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, 45202, 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, August 13, 2002.

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 Solutions, 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), 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).

    (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 annually 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 August 13, 2002.

    (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, 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 11.3Governing 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. Cecilia Temple, 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 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 11.6 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 11.7 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 11.8 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 Solutions, Inc.



By: ___________________
       M. Stephen Harkness
       President and Chief Operating Officer
EX-99 53 b-429.htm CERT OF FORMATION SOLUTIONS OPER SERV OKLAHOMA Cinergy Solutions Operating Service of Oklahoma LLC

CERTIFICATE OF FORMATION

OF

Cinergy Solutions Operating Services of Oklahoma, LLC

        This Certificate of Formation of Cinergy Solutions Operating Services of Oklahoma, LLC (the “Company”), is being duly executed and filed by the undersigned, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the “Act”), 6 Del. C. §§ 18-101, et seq.

ARTICLE I

NAME

The name of the limited liability company shall be:

Cinergy Solutions Operating Services of Oklahoma, LLC

ARTICLE II

REGISTERED OFFICE, REGISTERED AGENT

        The initial registered office of the Company shall be: c/o The Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, or such other location as the Company by consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801, or such other location as the Company by consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law.

ARTICLE III

AMENDMENTS

        The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained.

        In Witness Whereof, the undersigned has executed this Certificate of Formation on this 13th day of August, 2002.

/s/ Cecilia Temple
Cecilia Temple
Authorized Person
EX-99 54 b-431.htm ART OF ORGANIZATION FIBER LINK Articles of Organization of Fiber Link, LLC

ARTICLES OF ORGANIZATION

OF

FIBER LINK, LLC

        Pursuant to the provisions of the Indiana Business Flexibility Act, Indiana Code 23-18-1-1
et seq. (the “Act”), the limited liability company named below is hereby formed by the undersigned
individual, acting as the sole organizer thereof, by the adoption and filing of these Articles of
Organization providing as follows:

  1. Name. The name of the limited liability company is Fiber Link, LLC (the“Company”).

  2. Registered Office and Agent. The street address of the Company’s registered office in Indiana is 4902 W. 106th Street, Zionsville, IN 46077, and the name of the Company’s registered agent at that office is Jeffrey A. Moore.

  3. Duration. The duration of the Company is perpetual until dissolved in accordance with the Act.

  4. Management. The Company shall be managed by one or more managers selected pursuant to the applicable provisions of the Company’s operating agreement or, in the absence thereof, in accordance with the Act.

  5. Purpose. The Company shall engage in such lawful and permitted business activities as may from time to time be authorized by the members of the Company in accordance with the Company’s operating agreement or, in the absence thereof, in accordance with the Act.

        Executed as of the 5th day of September, 2000.

  /s/ Jeffrey A. Moore
Jeffrey A. Moore, Organizer
EX-99 55 b-432.htm CERT OF FORMATION LB TOWER LB Tower Company

CERTIFICATE OF FORMATION

OF

LB TOWER COMPANY LLC

FIRST:     The name of the limited liability company is LB Tower Company LLC.

SECOND:     Its registered office in the State of Delaware is to be located at 1013 Centre Road, Wilmington, Delaware, 19805.
The name of the registered agent at such address is the Corporation Service Company.

THIRD:     The limited liability company shall have perpetual existence.

Dated: May 24, 2000

  /s/ Mark C. Bissinger
Mark C. Bissinger
Authorized Representative
EX-99 56 b-434.htm A&R CERT OF INCORP CES INTERNATIONAL CES International

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

CES INTERNATIONAL, INC.

        CES International, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1.     CES International, Inc. (the “Corporation”) was originally incorporated on March 7, 2001, and its original Certificate of Incorporation was filed with the Secretary of the State of Delaware on the same date. Amendments to the Corporation’s Certificate of Incorporation were filed with the Secretary of State of Delaware on June 21, 2001 and August 17, 2001.

2.     The Board of Directors of the Corporation, at a meeting duly called and held in accordance with the Bylaws of the Corporation and Section 141 of the Delaware General Corporation Law, duly adopted resolutions proposing and declaring advisable the adoption of this Amended and Restated Certificate of Incorporation in the form attached hereto.

3.     Holders of (i) a majority of the Corporation’s Common Stock, Series A Convertible Participating Preferred Stock, Series A-1 Convertible Participating Preferred Stock, Series C Convertible Participating Preferred Stock and Series D Convertible Participating Preferred Stock, collectively, voting as a single class on an as-if-converted to Common Stock basis, (ii) a majority of the Corporation’s Common Stock, voting as a single class, (iii) a majority of the Corporation’s Series A Convertible Participating Preferred Stock, voting as a single class, (iv) a majority of the Corporation’s Series A-1 Convertible Participating Preferred Stock, voting as a single class, (v) a majority of the Corporation’s Series C Convertible Participating Preferred Stock, voting as a single class, and (vi) a majority of the Corporation’s Series D Convertible Participating Preferred Stock, voting as a single class, by written consent in accordance with Section 228 of the Delaware General Corporation Law, duly approved the Amended and Restated Certificate of Incorporation in the form attached hereto.

4.     Having been duly adopted pursuant to Sections 242 and 245 of the Delaware General Corporation Law, this Amended and Restated Certificate of Incorporation restates and integrates and further amends the provisions previously filed with the Secretary of State of Delaware on March 7, 2001, June 21, 2001 and August 17, 2001.

5.     The text of the Certificate of Incorporation of CES International, Inc. is hereby amended and restated to read in its entirety as follows:

ARTICLE I

        The name of this corporation is CES International, Inc.

ARTICLE II

        The address of the registered office of CES International, Inc. (the “Corporation”) in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.

ARTICLE III

3.1 Authorized Shares; Designation of Preferred Stock

    (a)           Authorized Shares. The total number of shares of all classes of stock which the Corporation shall have authority to issue is Thirty-Nine Million Five Hundred Sixty-Six Thousand Seven Hundred Fifty-Five (39,566,755) shares consisting of (i) Thirty Million (30,000,000) shares of common stock, par value $.01 per share (“Common Stock”), and (ii) Nine Million Five Hundred Sixty-Six Thousand Seven Hundred Fifty-Five (9,566,755) shares of preferred stock, par value $.01 per share (“Preferred Stock”), of which shares of Preferred Stock (A) Ten Thousand Six Hundred Seventy-Eight (10,678) shares are designated as Series A Convertible Participating Preferred Stock, as set forth in Section 3.3 below, (B) Nine Thousand Seven Hundred Eight-Eight (9,788) shares are designated as Series A-1 Convertible Participating Preferred Stock, as set forth in Section 3.3 below, (C) Two Million Fifty-Four Thousand Eight Hundred Sixty-Four (2,054,864) shares are designated as Series C Convertible Participating Preferred Stock, as set forth in Section 3.5 below, (D) Two Hundred Eighty-Three Thousand Four Hundred Twenty-Five (283,425) shares are designated as Series D Convertible Participating Preferred Stock, as set forth in Section 3.6 below, (E) Two Million Two Hundred Eight Thousand (2,208,000) shares are designated as Series E Convertible Participating Preferred Stock, as set forth in Section 3.7 below, and (F) Five Million (5,000,000) shares that are undesignated as to class or series (the “Undesignated Stock”), and which shall be subject to designation and issuance pursuant to Section 3.1(b) below.

    (b)           Designation of Preferred Stock. The Board of Directors of the Corporation is authorized, subject to limitations prescribed by the Delaware General Corporation Law and this Certificate of Incorporation and without the consent of the stockholders, to provide, by resolution and filing a certificate pursuant to the applicable provisions of the Delaware General Corporation Law, for the issuance of the shares of Preferred Stock in series, to establish from time to time the number of shares to be included in such series, and to fix the designation, powers, preferences and such rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote generally in the election of directors irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law.

3.2 Common Stock

    (a)        Voting Rights. Subject to the provisions of this Article III and the rights of any then outstanding Undesignated Stock, the holders of shares of Common Stock shall be entitled to one vote for each share so held with respect to all matters voted on by the stockholders of the Corporation.

    (b)        Liquidation Rights. Subject to the rights and preferences of any then outstanding Preferred Stock (including any Undesignated Stock), upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, the holders of Common Stock shall be entitled to receive all assets of the Corporation available for distribution to its stockholders.

3.3 Series A Convertible Participating Preferred Stock and Series A-1 Convertible Participating PreferredStock

    (a)           Designation.

        Ten Thousand Six Hundred Seventy-Eight (10,678) shares of the authorized shares of Preferred Stock of the Corporation are hereby designated “Series A Convertible Participating Preferred Stock” (the “Series A Preferred Stock”). Nine Thousand Seven Hundred Eighty-Eight (9,788) shares of the authorized shares of Preferred Stock of the Corporation are hereby designated “Series A-1 Convertible Participating Preferred Stock” (the “Series A-1 Preferred Stock”).

    (b)        Liquidation Rights.

  (i) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (a “Series A Liquidation Event”), the holders of shares of Series A Preferred Stock then outstanding and the holders of shares of Series A-1 Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after payment or provision for payment of all preferential amounts required to be paid to the holders of the Series E Preferred Stock and to the holders of any other class or series of stock ranking on liquidation senior to the Series A and Series A-1 Preferred Stock, but before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Series A and Series A-1 Preferred Stock, (such Common Stock and other stock being collectively referred to as “Series A Junior Stock”), by reason of their ownership thereof, an amount equal to $374.60 per share of Series A Preferred Stock and $561.90 per share of Series A-1 Preferred Stock (in each case, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after May __, 2002 (the “Filing Date”) and after the issuance of shares of Series E Convertible Participating Preferred Stock in connection with the merger of a subsidiary of the Corporation with Enermetrix.com, Inc. (the “Series E Issuance”)) (such amount per share of Series A Preferred Stock, as so adjusted, being herein called the “Series A Liquidation Preference”), plus, in each case, any dividends declared but unpaid on such shares. The Series A and Series A-1 Preferred shall rank in liquidation on a parity with the Series C and Series D Preferred Stock (the “Series A and Series A-1 Parity Stock”) and junior to the Series E Preferred Stock. If upon any such Series A Liquidation Event the remaining assets of the Corporation available for distribution to its stockholders (after payment or provision for payment of all preferential amounts, if any, required to be paid to the holders of any class or series of stock ranking on liquidation senior to the Series A and Series A-1 Preferred Stock) shall be insufficient to pay the holders of Series A Preferred Stock, the holders of shares of Series A-1 Preferred Stock, the holders of shares of Series A and Series A-1 Parity Stock and the holders of any other class or series of stock ranking in liquidation on a parity with the Series A and Series A-1 Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series A Preferred Stock, the holders of shares of Series A-1 Preferred Stock, the holders of shares of Series A and Series A-1 Parity Stock and the holders of any such other class or series shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. All of the preferential amounts to be paid to the holders of the Series A Preferred Stock and the holders of Series A-1 Preferred Stock pursuant to this Section 3.3(b)(i) shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any assets of the Corporation to, the holders of the Series A Junior Stock in connection with such Series A Liquidation Event. Notwithstanding the foregoing, in the event of a Series A Liquidation Event pursuant to which in the absence of this Section 3.3(b)(i) the proceeds distributable to the holders of the Series A Preferred Stock and the holders of the Series A-1 Preferred Stock would exceed five times the Series A Liquidation Preference, then the holders of the Series A Preferred Stock and the holders of the Series A-1 Preferred Stock shall not be entitled to their respective liquidation preferences pursuant to this Section 3.3(b)(i) but shall rather be entitled to receive proceeds solely pursuant to Section 3.3(b)(ii) hereof.

  (ii) After payment or the setting apart of payment of all preferential amounts, if any, required to be paid to the holders of the Series A Preferred Stock, the holders of the Series A-1 Preferred Stock, the holders of the Series A and Series A-1 Parity Stock and the holders of any other class or series of stock ranking on liquidation senior to the Common Stock, all remaining assets of the Corporation available for distribution (after payment or provision for payment of all debts and liabilities of the Corporation) shall be distributed among the holders of shares of Series A Preferred Stock, Series A-1 Preferred Stock, Common Stock and any other class or series of stock entitled to participate in liquidation distributions with the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each (assuming conversion into Common Stock of all such shares).

  (iii) A consolidation or merger of the Corporation (in which consolidation or merger any shareholders of the Corporation receive distributions of cash, property, rights or securities) or a sale of all or substantially all of the assets of the Corporation shall be regarded as a Series A Liquidation Event, within the meaning of this Section 3.3(b), unless the holders of a majority of the then outstanding shares of all series of Preferred Stock (voting together as a single class on an as-if-converted to Common Stock basis) elect not to treat any of the foregoing events as a liquidation event with respect to all series of Preferred Stock, by giving written notice thereof to the Corporation at least fifteen (15) days prior to the effective date of such event. If such notice is given, the provisions of Section 3.3(c)(iv)(G) shall apply. The amount deemed distributed to the holders of Series A Preferred Stock and the holders of Series A-1 Preferred Stock upon any such merger or consolidation shall be the cash or the value of the property, rights or securities distributed to such holders by the acquiring person, firm or other entity. The value of such property, rights or other securities shall be determined in good faith by the Board of Directors of the Corporation.

    (c)        Conversion. The holders of Series A and Series A-1 Preferred Stock shall have conversion rights as follows (the “Series A Conversion Rights”):

  (i) Right to Convert.

  (A) Each share of Series A Preferred Stock shall be convertible at the option of the holder thereof, at any time after the date of issuance and without the payment of any additional consideration therefor, into that number of fully paid and nonassessable shares of Common Stock as is determined by dividing $374.60 by the Series A Conversion Price (determined as hereinafter provided) in effect at the time of conversion. As of the Filing Date and following the Series E Issuance, the Conversion Price at which shares of Common Stock shall be deliverable upon conversion of the Series A Preferred Stock (the “Series A Conversion Price”) shall be $1.24867 per share. Such Series A Conversion Price shall be subject to adjustment (in order to adjust the number of shares of Common Stock into which the Series A Preferred Stock is convertible) as hereinafter provided.

  (B) Each share of Series A-1 Preferred Stock shall be convertible at the option of the holder thereof at any time after the date of the Corporation’s first sale of its Common Stock to the public pursuant to an effective registration statement under the Securities Act of 1933, as amended (other than a registration relating to either the sale of securities to directors, officers or employees of or consultants to the Company pursuant to a stock option, stock purchase or other employee benefit plan or a transaction to which Rule 145 under such act is applied) and without the payment of any additional consideration therefor, into that number of fully paid and nonassessable shares of Common Stock as is determined by dividing $561.90 by the Series A-1 Conversion Price (determined as hereinafter provided) in effect at the time of conversion. As of the Filing Date and following the Series E Issuance, the Conversion Price at which shares of Common Stock shall be deliverable upon conversion of the Series A-1 Preferred Stock (the “Series A-1 Conversion Price”) shall be $1.873 per share. Such Series A-1 Conversion Price shall be subject to adjustment (in order to adjust the number of shares of Common Stock into which the Series A-Preferred Stock is convertible) as hereinafter provided.

  (ii) Automatic Conversion. Each share of Series A and Series A-1 Preferred Stock shall automatically be converted into shares of Common Stock at the then effective Conversion Price of such series upon the closing of the sale of shares of Common Stock for the account of the Corporation, in a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in gross proceeds to the Corporation of not less than $30,000,000.

  (iii) Mechanics of Conversion.

  (A) Before any holder of Series A and Series A-1 Preferred Stock shall be entitled to convert the same into shares of Common Stock, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Series A and Series A-1 Preferred Stock, and shall give written notice to the Corporation at such office that such holder elects to convert the same and shall state therein such holder’s name or the name or names of the nominees of such holder in which he or it wishes the certificate or certificates for shares of Common Stock to be issued, together with the applicable federal taxpayer identification number or numbers thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series A and Series A-1 Preferred Stock, or to his or its nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash (in an amount determined as provided below) in lieu of any fraction of a share. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the certificate or certificates evidencing the shares of Series A and Series A-1 Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. If the number of shares of Series A Preferred Stock or Series A-1 Preferred Stock, respectively, represented by the certificate or certificates surrendered pursuant to this Section 3.3(c)(iii)(A) exceeds the number of shares being converted, the Corporation will, as soon as practicable after such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series A Preferred Stock or Series A-1 Preferred Stock, in each case, represented by the certificate or certificates surrendered that are not being converted. If after aggregating all fractional shares deliverable to a holder surrendering Series A Preferred Stock or Series A-1 Preferred Stock, in each case, for conversion, any fractional share of Common Stock would be delivered upon such conversion, the Corporation, in lieu of delivering such fractional share, will pay to the holder an amount in cash equal to the current fair market value of such fractional share as determined in good faith by the Board of Directors of the Corporation.

  (B) The Corporation shall at all times when the Series A and Series A-1 Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of affecting the conversion of the Series A and Series A-1 Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series A and Series A-1 Preferred Stock. Before taking any action which would cause an adjustment reducing the Series A and Series A-1 Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series A and Series A-1 Preferred Stock, the Corporation will take any corporate action which, in the opinion of its counsel, may be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Series A and Series A-1 Conversion Price.

  (C) All shares of Series A and Series A-1 Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate on the conversion date, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and payment of any dividends declared but unpaid thereon as provided in Section 3.3(c)(viii).

  (D) The Corporation shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series A and Series A-1 Preferred Stock pursuant to this Section 3.3(c). The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series A and Series A-1 Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.

  (iv) Adjustments to Conversion Price for Diluting Issues:

  (A) Special Definitions. For purposes of this Section 3.3(c)(iv), the following definitions shall apply:

  (1) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities.

  (2) “Filing Date” shall mean May__, 2002.

  (3) “Convertible Securities” shall mean any evidences of indebtedness, shares (other than Common Stock and the Series A Preferred Stock, Series A-1 Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock of the Corporation (the “Existing Preferred Stock”)) or other securities directly or indirectly convertible into or exchangeable for Common Stock.

  (4) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 3.3(c)(iv)(C), deemed to be issued) by the Corporation after the Filing Date and following the Series E Issuance, other than:

  (I) shares of Common Stock issued or issuable upon conversion of shares of Preferred Stock;

  (II) the issuance of shares of Common Stock to, or upon the exercise of options granted to, the officers, directors or employees of, or consultants to, the Corporation pursuant to the Corporation’s 1999 Stock Plan (as amended, provided that such amendment has been approved by a majority of the Board of Directors, including at least one of the members of the Board of Directors of the Corporation designated by the holders of the Series A Preferred Stock and the Series D Preferred Stock) or pursuant to any other stock purchase or option plan or other stock incentive or compensation program approved by a majority of the Board of Directors, including at least one of the members of the Board of Directors of the Corporation designated by the holders of Series A Preferred Stock and the Series D Preferred Stock, or the grant of such options; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of options so granted shall not exceed 2,627,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);

  (III) the issuance of shares of Common Stock upon the exercise of options granted prior to October 14, 1998; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such options after the Filing Date shall not exceed 35,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);

  (IV)         the issuance of shares of Common Stock upon the exercise of warrants granted prior to the Filing Date; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such warrants after the Filing Date shall not exceed 15,000 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date); or

  (V)         shares of Common Stock issued (or deemed to be issued) by way of dividend or other distribution on shares of Common Stock excluded from the definition of Additional Shares of Common Stock by the foregoing clauses (I), (II), (III), (IV), (V) or this clause (VI) or on shares of Common Stock so excluded.

  (B)     No Adjustment of Conversion Price.

  (1) No adjustment in the number of shares of Common Stock into which Series A or Series A-1 Preferred Stock is convertible shall be made by adjustment in the Series A or Series A-1 Conversion Price in respect of the issuance or deemed issuance of Additional Shares of Common Stock or otherwise, unless the consideration per share for such Additional Shares of Common Stock issued or deemed to be issued by the Corporation is less than the Series A or Series A-1 Conversion Price in effect on the date of, and immediately prior to, the issue of such Additional Shares.

  (2) No adjustment of the Series A or Series A-1 Conversion Price shall be made in an amount less than one (1) cent per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment. Except as provided in Section 3.3(c)(iv)(F)(2), no adjustment of such Series A or Series A-1 Conversion Price pursuant to this Section 3.3(c)(iv) shall have the effect of increasing such Series A or Series A-1 Conversion Price above the Conversion Price of such series in effect immediately prior to such adjustment.

  (C) Deemed Issue of Additional Shares of Common Stock.

  (1) Options and Convertible Securities. In the event the Corporation following the Filing Date at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued unless the consideration per share (determined pursuant to Section 3.3(c)(iv)(E) of such Additional Shares of Common Stock would be less than the Series A or Series A-1 Conversion Price in effect on the date of and immediately prior to such issue, or such record date, as the case may be, and provided further that in any such case in which Additional Shares of Common Stock are deemed to be issued or were, prior to the Filing Date, deemed to be issued:

  (I) no further adjustment in such Series A or Series A-1 Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such Convertible Securities;

  (II) if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Corporation, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Series A and Series A-1 Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;

  (III) upon the expiration or termination of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised or converted (including upon the acquisition or termination of such securities by the Corporation), the Series A and Series A-1 Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:

  (aa) in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued or remaining issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise, or for the issue of all such Convertible Securities which were actually converted or exchanged or which will remain subject to being converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and

  (bb) in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common Stock deemed to have been then issued was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus the consideration actually received by the Corporation upon such exercise, plus the additional consideration, if any, deemed to have been received by the Corporation (determined pursuant to Section 3.3(c)(iv)(E)) upon the conversion or exchange of the Convertible Securities with respect to which such Options were actually exercised;

  (IV) no readjustment pursuant to clause (II) or (III) above shall have the effect of increasing any Series A or Series A-1 Conversion Price to an amount which exceeds the lower of (i) the Series A or Series A-1 Conversion Price on the original adjustment date, or (ii) the Series A or Series A-1 Conversion Price that would have resulted from any unreadjusted issuance of Additional Shares of Common Stock between the original adjustment date and such readjustment date (except to the extent the same resulted from an adjustment pursuant to Section 3.3(c)(iv)F)(2));

  (V) in the case of any Options which expire by their terms not more than thirty (30) days after the date of issue thereof, no adjustment of such Series A or Series A-1 Conversion Price shall be made until the expiration or exercise of all such Options, whereupon such adjustment shall be made in the same manner provided in clause (III) above; and

  (VI) if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Series A or Series A-1 Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter such Series A or Series A-1 Conversion Price shall be adjusted pursuant to this Section 3.3(c)(iv)(C) as of the actual date of their issuance.

  (2) Stock Dividends, Stock Distributions and Subdivisions. In the event the Corporation following the Filing Date at any time or from time to time shall declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, Additional Shares of Common Stock shall be deemed to have been issued:

  (I) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or

  (II) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective.

  If such record date shall have been fixed and such dividend or distribution shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Series A or Series A-1 Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series A and Series A-1 Conversion Price shall be adjusted pursuant to Section 3.3(c)(iv)(F) as of the time of actual payment of such dividend or distribution.

  (D) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. If the Corporation shall issue (other than in a stock dividend, stock distribution or subdivision, which shall be governed by clause (F) of this Section 3.3(c)(iv)), after the Filing Date and following the Series E Issuance, any Additional Shares of Common Stock without consideration or for a consideration per share less than the Series A or Series A-1 Conversion Price in effect immediately prior to the issuance of such Additional Shares of Common Stock, the Series A or Series A-1 Conversion Price, as the case may be, in effect immediately prior to each such issuance shall forthwith be adjusted to a price equal to a price determined by multiplying such Series A or Series A-1 Conversion Price, as the case may be, by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance (assuming the conversion of all then outstanding shares of Series A or Series A-1 Preferred Stock, as the case may be,) plus the number of shares of Common Stock that the aggregate consideration received by the Corporation for the issuance of the Additional Shares of Common Stock would purchase at such Series A or Series A-1 Conversion Price, as the case may be; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance assuming the conversion of all then outstanding shares of Series A and Series A-1 Preferred Stock, as the case may be, plus the number of such Additional Shares of Common Stock.

  (E) Determination of Consideration. For purposes of this Section 3.3(c)(iv), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:

  (1) Cash and Property: Such consideration shall:

  (I) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest or accrued dividends;

  (II) insofar as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith by the Board of Directors; and

  (III) in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.

  (2) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 3.3(c)(iv)(C)(1), relating to Options and Convertible Securities, shall be determined by dividing (I) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration until such subsequent adjustment occurs) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (II) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number until such subsequent adjustment occurs) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

  (F) Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock.

  (1) Stock Dividends, Distributions, Subdivisions. In the event the Corporation shall issue Additional Shares of Common Stock pursuant to Section 3.3(c)(iv)(C)(2) in a stock dividend, stock distribution or subdivision after the Filing Date, the Conversion Price of each of the Series A Preferred Stock and the Series A-1 Preferred Stock in effect immediately prior to such issuance shall, concurrently with the effectiveness of such issuance, be proportionately decreased.

  (2) Combinations or Consolidations. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock after the Filing Date, the Series A or Series A-1 Conversion Price in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased.

  (G) Adjustment for Merger or Reorganization. Subject to Section 3.3(b)(iii), in the event of any consolidation or merger of the Corporation with or into another corporation or the conveyance of all or substantially all of the assets of the Corporation to another corporation following the Filing Date and the Series E Issuance, each share of Series A Preferred Stock and each share of Series A-1 Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation then deliverable upon conversion of such Series A or Series A-1 Preferred Stock would have been entitled upon such consolidation, merger or conveyance. In any such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 3.3(c) with respect to the rights and interest thereafter of the holders of the Series A Preferred Stock and the holders of Series A-1 Preferred Stock, to the end that the provisions (including provisions with respect to changes in and other adjustments of the applicable Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the conversion of the Series A Preferred Stock and the Series A-1 Preferred Stock.

  (v) No Impairment. The Corporation will not, by amendment of its Certificate of Incorporation (except in accordance with Section 3.3(f)) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3.3(c) and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of the Series A Preferred Stock and the holders of the Series A-1 Preferred Stock against impairment.

  (vi) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series A or Series A-1 Conversion Price pursuant to this Section 3.3(c), the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with these terms and furnish to each holder of Series A and Series A-1 Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series A and Series A-1 Preferred Stock, as the case may be, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustments and readjustments, (B) the Series A or Series A-1 Conversion Price at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion of such Series A and Series A-1 Preferred Stock.

  (vii) Notices of Record Date. In the event (A) that the Corporation fixes a record date for the purpose of determining the holders of any Common Stock who are entitled to receive any dividend (other than a cash dividend which is the same on a per share basis as cash dividends paid in previous quarters) or other distribution, or (B) of any subdivision, combination or other capital reorganization of the Corporation, any reclassification or recapitalization of the capital stock of the Corporation, any merger or consolidation of the Corporation, and any transfer of all or substantially all of the assets of the Corporation to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series A and Series A-1 Preferred Stock at least 20 days prior to the record or other date specified therein, a notice specifying (1) the record date of such dividend or distribution, or, if a record is not to be taken, the date as of which the stockholders of record to be entitled to such dividend or distribution, are to be determined, or (2) the date on which any such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and the time, if any, that is to be fixed, as to when the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up.

  (viii) Termination of Dividends. The conversion of any Series A or Series A-1 Preferred Stock pursuant to the provisions of this Section 3.3(c) shall terminate the right of the holders thereof to receive, and of the Corporation’s obligation to pay, any and all accrued but undeclared and unpaid dividends with respect to such shares of Series A or Series A-1 Preferred Stock then being converted, but shall not extinguish the right to receive any unpaid dividends which have been declared and the record date for which shall have occurred prior to the time such conversion shall be deemed to have been made.

  (ix) Waiver of Benefits. The benefits afforded to the holders of the Series A and Series A-1 Preferred Stock, respectively, pursuant to this Section 3.3(c) may be waived in writing by the holders of at least a majority of the then outstanding shares of the Series A Preferred Stock and Series A-1 Preferred Stock, respectively.

  (d) Voting Rights.

  (i) Subject to the provisions of Section 3.4 of this Article III, the rights of any outstanding Preferred Stock and the rights of any then outstanding Undesignated Stock, each holder of outstanding shares of Series A Preferred Stock shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Series A Preferred Stock held by such holder are convertible (as adjusted from time to time pursuant to Section 3.3(c) hereof), as of the record date for each meeting of stockholders of the Corporation (or as of the date of each written action of stockholders in lieu of a meeting) with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration. Except as provided by law or in Section 3.4 of this Article III, and subject to the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock, holders of Series A Preferred Stock shall vote together with the holders of all other classes and series of voting stock of the Corporation as a single class.

  (ii) The holders of the Series A-1 Preferred Stock shall have no voting rights except as otherwise provided herein or as provided by law.

  (e) Dividend Rights.

  (i) The Corporation shall not declare or pay any distributions (as defined below) on shares of Common Stock until the holders of the Series A Preferred Stock then outstanding and the holders of Series A-1 Preferred Stock then outstanding shall have first received, or simultaneously receive, a distribution on each outstanding share of such Series A and Series A-1 Preferred Stock in an amount at least equal to the product of (i) the per share amount, if any, of the dividends or other distributions to be declared, paid or set aside for the Common Stock, multiplied by (ii) the number of whole shares of Common Stock into which such share of Series A or Series A-1 Preferred Stock is then convertible.

  (ii) For purposes of this Section 3.3(e), unless the context requires otherwise, “distribution” shall mean the transfer of cash or property without consideration, whether by way of dividend or otherwise, in respect of shares of the Corporation payable other than in Common Stock or other securities of the Corporation, or the purchase or redemption of shares of Common Stock of the Corporation (other than (1) repurchases of Common Stock held by employees, officers or directors of, or consultants to, the Corporation upon their death, disability or retirement or upon termination of their employment or services at a price not in excess of the fair market value (as determined in good faith by the Board of Directors of the Corporation) of such shares, (2) repurchases of Common Stock in accordance with the terms of that certain Amended and Restated Investors’ Rights Agreement dated as of May____, 2002 among the Corporation and certain of its shareholders, (3) repurchases or reacquisitions of securities by the Corporation pursuant to that certain Escrow Agreement dated May ____, 2002 entered into by the Corporation in connection with the merger of the Corporation’s subsidiary with Enermetrix.com, Inc., and (4) redemptions in liquidation or dissolution of the Corporation) for cash or property, including any such transfer, purchase or redemption by a subsidiary of this Corporation.

  (f) Protective Provisions.

  (i) So long as any shares of Series A or Series A-1 Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law or this Amended and Restated Certificate of Incorporation) of the holders of at least a majority of the shares of such Series A and Series A-1 Preferred Stock then outstanding:

  (A) alter or change the rights, preferences, or privileges or increase or decrease the authorized number of the shares of such Series A or Series A-1 Preferred Stock; or

  (B) authorize or issue any other equity security, or security convertible into or exercisable for any equity security, having a preference over, or being on a parity with (it being understood that equity securities shall not be deemed to be on a parity with the Series A or Series A-1 Preferred Stock solely because such equity securities (including Common Stock) are entitled to participate in dividends or liquidation distributions with the holders of Common Stock), such Series A or Series A-1 Preferred Stock with respect to dividends, liquidation or redemption; provided, however, that the approval of the Series A and Series A-1 Preferred Stock shall not be required for any sale or issuance of Series E Preferred Stock pursuant to the letter agreement dated May___, 2002 between the Corporation and Cinergy Ventures, LLC (the “Cinergy Letter Agreement”).

  (g) Status of Converted Stock. In the event any shares of Series A or Series A-1 Preferred Stock shall be converted pursuant to Section 3.3(c) hereof, the shares so converted shall be cancelled and shall not be issuable by the Corporation.

3.4 Election of Directors

        So long as any shares of Series A Preferred Stock, Series C Preferred Stock, Series D Preferred Stock are outstanding, and subject to the authority of the directors of the Corporation to fill vacancies on the Board of Directors as provided in the Corporation’s Bylaws, (i) the Board of Directors of the Corporation shall consist of not more than seven members, (ii) the holders of the Series A Preferred Stock and the Series D Preferred Stock, exclusively and voting as a single class, together shall be entitled, by a vote of a majority of the outstanding shares of Series A Preferred Stock and Series D Preferred Stock, collectively present and entitled to vote, to elect two directors of the Corporation and to exercise any right of removal or replacement (with or without cause) of such directors, (iii) the holders of the Series C Preferred Stock, exclusively and voting as a single class, shall be entitled, by a vote of a majority of the outstanding shares of Series C Preferred Stock present and entitled to vote, to elect one director of the Corporation and to exercise any right of removal or replacement (with or without cause) of such director, (iv) the holders of the Common Stock, exclusively and voting as a single class, shall be entitled, by a vote of a majority of the outstanding shares of Common Stock present and entitled to vote, to elect two of the directors of the Corporation and to exercise any right of removal or replacement (with or without cause) of such directors, and (v)  the election of a sixth and seventh director, and the exercise of any right of removal or replacement (with or without cause) of either such director, shall require the vote of the holders of a majority of the outstanding shares of Series A Preferred Stock and Series D Preferred Stock, collectively, present and entitled to vote, voting as a single class and the holders of a majority of the outstanding shares of Common Stock present and entitled to vote, voting as a single class. Any amendment of this Section 3.4 shall require the affirmative vote of the holders of a majority of the outstanding shares of Series A Preferred Stock and Series D Preferred Stock, collectively, voting as a single class, the holders of a majority of the outstanding shares of Series C Preferred Stock, voting as a single class, the holders of a majority of the outstanding shares of Common Stock, voting as a single class.

3.5 Series C Convertible Participating Preferred Stock

(a) Designation.

        Two Million Fifty-Four Thousand Eight Hundred Sixty-Four (2,054,864) shares of the authorized shares of Preferred Stock of the Corporation are hereby designated as shares of Series C Convertible Participating Preferred Stock of the Corporation, $.01 par value per share (the “Series C Preferred Stock”).

(b) Liquidation Rights.

  (i)         In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (a “Series C Liquidation Event”), the holders of shares of Series C Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after payment or provision for payment of all preferential amounts required to be paid to the holders of the Series E Preferred Stock and to the holders of any other class or series of stock ranking on liquidation senior to the Series C Preferred Stock, but before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Series C Preferred Stock (such Common Stock and other stock being collectively referred to as “Series C Junior Stock”) by reason of their ownership thereof, an amount equal to $9.733 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date and after the Series E Issuance) (such amount per share of Series C Preferred Stock, as so adjusted, being herein called the “Series C Liquidation Preference”), plus any dividends declared but unpaid on such shares. The Series C Preferred Stock shall rank in liquidation on a parity with the Series A, Series A-1 and Series D Preferred Stock (the “Series C Parity Stock”) and junior to the Series E Preferred Stock. If upon any Series C Liquidation Event the remaining assets of the Corporation available for distribution to its stockholders (after payment or provision for payment of all preferential amounts, if any, required to be paid to the holders of any class or series of stock ranking on liquidation senior to the Series C Preferred Stock) shall be insufficient to pay the holders of shares of Series C Preferred Stock, the holders of shares of Series C Parity Stock and the holders of shares of any other class or series of stock ranking in liquidation on a parity with the Series C Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series C Preferred Stock, the holders of shares of Series C Parity Stock and the holders of shares of any such other class or series shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. All of the preferential amounts to be paid to the holders of the Series C Preferred Stock pursuant to this Section 3.5(b)(i) shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any assets of the Corporation to, the holders of the Series C Junior Stock in connection with such Series C Liquidation Event. Notwithstanding the foregoing, in the event of a Series C Liquidation Event pursuant to which, in the absence of this Section 3.5(b)(i), the proceeds distributable to the holders of the Series C Preferred Stock would exceed five times the Series C Liquidation Preference, then the holders of the Series C Preferred Stock shall not be entitled to their respective liquidation preferences pursuant to this Section 3.5(b)(i) but shall rather be entitled to receive proceeds solely pursuant to Section 3.5(b)(ii) hereof.

  (ii)         After payment or the setting apart of payment of all preferential amounts, if any, required to be paid to the holders of the Series C Preferred Stock, the holders of the Series C Parity Stock and the holders of any other class or series of stock ranking on liquidation senior to the Common Stock, all remaining assets of the Corporation available for distribution (after payment or provision for payment of all debts and liabilities of the Corporation) shall be distributed among the holders of shares of Series C Preferred Stock, Common Stock and any other class or series of stock entitled to participate in liquidation distributions with the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each (assuming conversion into Common Stock of all such shares).

  (iii)         A consolidation or merger of the Corporation (in which consolidation or merger any shareholders of the Corporation receive distributions of cash, property, rights or securities) or a sale of all or substantially all of the assets of the Corporation shall be regarded as a Series C Liquidation Event, within the meaning of this Section 3.5(b), unless the holders of a majority of the then outstanding shares of all series of Preferred Stock (voting together as a single class on as as-if-converted to Common Stock basis) elect not to treat any of the foregoing events as a liquidation event with respect to all series of Preferred Stock, by giving written notice thereof to the Corporation at least fifteen (15) days prior to the effective date of such event. If such notice is given, the provisions of Section 3.5(c)(iv)(G) shall apply. The amount deemed distributed to the holders of Series C Preferred Stock upon any such merger or consolidation shall be the cash or the value of the property, rights or securities distributed to such holders by the acquiring person, firm or other entity. The value of such property, rights or other securities shall be determined in good faith by the Board of Directors of the Corporation.

(c)        Conversion. The holders of Series C Preferred Stock shall have conversion rights as follows (the “Series C Conversion Rights”):

    (i)        Right to Convert. Each share of Series C Preferred Stock shall be convertible at the option of the holder thereof, at any time after the date of issuance and without the payment of any additional consideration therefor, into that number of fully paid and nonassessable shares of Common Stock as is determined by dividing $9.733 by the Series C Conversion Price (determined as hereinafter provided) in effect at the time of conversion. As of the Filing Date and following the Series E Issuance, the conversion price at which shares of Common Stock shall be deliverable upon conversion of the Series C Preferred Stock (the “Series C Conversion Price”) shall be $6.04241 per share. Such Series C Conversion Price shall be subject to adjustment (in order to adjust the number of shares of Common Stock into which the Series C Preferred Stock is convertible) as hereinafter provided.


    (ii)        Automatic Conversion. Each share of Series C Preferred Stock shall automatically be converted into shares of Common Stock at the then effective Series C Conversion Price upon the closing of the sale of shares of Common Stock for the account of the Corporation, in a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in gross proceeds to the Corporation of not less than $30,000,000.


    (iii)        Mechanics of Conversion.


  (A)         Before any holder of Series C Preferred Stock shall be entitled to convert the same into shares of Common Stock, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Series C Preferred Stock, and shall give written notice to the Corporation at such office that such holder elects to convert the same and shall state therein such holder’s name or the name or names of the nominees of such holder in which he or it wishes the certificate or certificates for shares of Common Stock to be issued, together with the applicable federal taxpayer identification number or numbers thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series C Preferred Stock, or to his or its nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash (in an amount determined as provided below) in lieu of any fraction of a share. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the certificate or certificates evidencing the shares of Series C Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. If the number of shares of Series C Preferred Stock represented by the certificate or certificates surrendered pursuant to this Section 3.5(c)(iii)(A) exceeds the number of shares being converted, the Corporation will, as soon as practicable after such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series C Preferred Stock represented by the certificate or certificates surrendered that are not being converted. If after aggregating all fractional shares deliverable to a holder surrendering Series C Preferred Stock for conversion, any fractional share of Common Stock would be delivered upon such conversion, the Corporation, in lieu of delivering such fractional share, will pay to the holder an amount in cash equal to the current fair market value of such fractional share as determined in good faith by the Board of Directors of the Corporation.

  (B)         The Corporation shall at all times when the Series C Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of affecting the conversion of the Series C Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series C Preferred Stock. Before taking any action which would cause an adjustment reducing the Series C Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series C Preferred Stock, the Corporation will take any corporate action which, in the opinion of its counsel, may be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Series C Conversion Price.

  (C)         All shares of Series C Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate on the conversion date, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and payment of any dividends declared but unpaid thereon as provided in Section 3.5(c)(viii).

  (D)         The Corporation shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series C Preferred Stock pursuant to this Section 3.5(c). The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series C Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.

  (iv)        Adjustments to Conversion Price for Diluting Issues:

  (A)        Special Definitions. For purposes of this Section 3.5(c)(iv), the following definitions shall apply:

  (1) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities.

  (2)      “Filing Date” shall mean May ____, 2002.

  (3)         “Convertible Securities” shall mean any evidences of indebtedness, shares (other than Common Stock and the Existing Preferred Stock of the Corporation) or other securities directly or indirectly convertible into or exchangeable for Common Stock.

  (4)         “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 3.5(c)(iv)(C), deemed to be issued) by the Corporation after the Filing Date and following the Series E Issuance, other than:

  (I)         shares of Common Stock issued or issuable upon conversion of shares of Preferred Stock;

  (II)         the issuance of shares of Common Stock to, or upon the exercise of options granted to, the officers, directors or employees of, or consultants to, the Corporation pursuant to the Corporation’s 1999 Stock Plan (as amended, provided that such amendment has been approved by a majority of the Board of Directors, including the member of the Board of Directors of the Corporation designated by the holders of the Series C Preferred Stock) or pursuant to any other stock purchase or option plan or other stock incentive or compensation program approved by a majority of the Board of Directors, including the member of the Board of Directors of the Corporation designated by the holders of the Series C Preferred Stock, or the grant of such options; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of options so granted shall not exceed 2,627,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);

  (III)         the issuance of shares of Common Stock upon the exercise of options granted prior to October 14, 1998; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such options after such date shall not exceed 35,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);

  (IV)         the issuance of shares of Common Stock upon the exercise of warrants granted prior to the Filing Date; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such warrants after the Filing Date shall not exceed 15,000 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);

  (V)         shares of Common Stock issued (or deemed to be issued) by way of dividend or other distribution on shares of Common Stock excluded from the definition of Additional Shares of Common Stock by the foregoing clauses (I), (II), (III), (IV) or this clause (V) or on shares of Common Stock so excluded.

    (B)        No Adjustment of Conversion Price.

    (1)        No adjustment in the number of shares of Common Stock into which the Series C Preferred Stock is convertible shall be made by adjustment in the Series C Conversion Price in respect of the issuance or deemed issuance of Additional Shares of Common Stock or otherwise, unless the consideration per share for such Additional Shares of Common Stock issued or deemed to be issued by the Corporation is less than the Series C Conversion Price in effect on the date of, and immediately prior to, the issue of such Additional Shares.


    (2)        No adjustment of the Series C Conversion Price shall be made in an amount less than one (1) cent per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment. Except as provided in Section 3.5(c)(iv)(F)(2), no adjustment of the Series C Conversion Price pursuant to this Section 3.5(c)(iv) shall have the effect of increasing the Series C Conversion Price above the Series C Conversion Price in effect immediately prior to such adjustment.


    (C)        Deemed Issue of Additional Shares of Common Stock.

    (1)        Options and Convertible Securities. In the event the Corporation following the Filing Date at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued unless the consideration per share (determined pursuant to Section 3.5(c)(iv)(E)) of such Additional Shares of Common Stock would be less than the Series C Conversion Price in effect on the date of and immediately prior to such issue, or such record date, as the case may be, and provided further that in any such case in which Additional Shares of Common Stock are deemed to be issued or were, prior to the Filing Date, deemed to be issued:


    (I)        no further adjustment in the Series C Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such Convertible Securities;


    (II)        if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Corporation, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Series C Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;


    (III)        upon the expiration or termination of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised or converted (including upon the acquisition or termination of such securities by the Corporation), the Series C Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:


    (aa)        in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued or remaining issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise, or for the issue of all such Convertible Securities which were actually converted or exchanged or which remain subject to being converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and


    (bb)        in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common Stock deemed to have been then issued was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus the consideration actually received by the Corporation upon such exercise, plus the additional consideration, if any, deemed to have been received by the Corporation (determined pursuant to Section 3.5(c)(iv)(E)) upon the conversion or exchange of the Convertible Securities with respect to which such Options were actually exercised;


    (IV)        no readjustment pursuant to clause (II) or (III) above shall have the effect of increasing the Series C Conversion Price to an amount which exceeds the lower of (i) the Series C Conversion Price on the original adjustment date, or (ii) the Series C Conversion Price that would have resulted from any unreadjusted issuance of Additional Shares of Common Stock between the original adjustment date and such readjustment date (except to the extent the same resulted from an adjustment pursuant to Section 3.5(c)(iv)(F)(2));


    (V)        in the case of any Options which expire by their terms not more than thirty (30) days after the date of issue thereof, no adjustment of the Series C Conversion Price shall be made until the expiration or exercise of all such Options, whereupon such adjustment shall be made in the same manner provided in clause (III) above; and


    (VI)        if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Series C Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series C Conversion Price shall be adjusted pursuant to this Section 3.5(c)(iv)(C) as of the actual date of their issuance.


    (2)        Warrants. Upon the expiration or termination of warrants granted prior to the Filing Date, the Series C Conversion Price computed upon the original issue thereof and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued upon the exercise of such warrants and the consideration received therefor was the consideration actually received by the Corporation for the issuance of all such warrants, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise.


    (3)        Escrow Shares. Upon any reacquisition by the Corporation of shares of Series E Preferred Stock pursuant to the Escrow Agreement dated May __, 2002, by and among the Corporation, the representative of certain former stockholders of Enermetrix.com, Inc. and SunTrust Bank, the Series C Conversion Price which, as set forth in this Certificate of Incorporation, has been computed assuming the issuance of 2,124,844 shares of Series E Preferred Stock pursuant to the Agreement and Plan of Merger dated April 26, 2002, by and among the Corporation, CES Enermetrix Merger Sub, Inc. and Enermetrix.com, Inc., and any subsequent adjustments based thereon, shall be recomputed as if the shares of Series E Preferred Stock that are reacquired by the Corporation pursuant to the terms of the Escrow Agreement were never issued by the Corporation; provided, however, that any reissuance of such shares of Series E Preferred Stock by the Corporation pursuant to the Cinergy Letter Agreement shall continue to be subject to this Section 3.5(c)(iv).


    (4)        Stock Dividends, Stock Distributions and Subdivisions. In the event the Corporation following the Filing Date at any time or from time to time shall declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, Additional Shares of Common Stock shall be deemed to have been issued:


    (I)        in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or


    (II)        in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective.


  If such record date shall have been fixed and such dividend or distribution shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Series C Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series C Conversion Price shall be adjusted pursuant to Section 3.5(c)(iv)(F) as of the time of actual payment of such dividend or distribution.

    (D)        Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. If the Corporation shall issue (other than in a stock dividend, stock distribution or subdivision, which shall be governed by clause (F) of this Section 3.5(c)(iv)), after the Filing Date and following the Series E Issuance, any Additional Shares of Common Stock without consideration or for a consideration per share less than the Series C Conversion Price in effect immediately prior to the issuance of such Additional Shares of Common Stock, the Series C Conversion Price in effect immediately prior to each such issuance shall forthwith be adjusted to a price equal to a price determined by multiplying such Series C Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance (assuming the conversion of all then outstanding shares of Series C Preferred Stock) plus the number of shares of Common Stock that the aggregate consideration received by the Corporation for the issuance of the Additional Shares of Common Stock would purchase at such Series C Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance assuming the conversion of all then outstanding shares of Series C Preferred Stock plus the number of such Additional Shares of Common Stock.


    (E)        Determination of Consideration. For purposes of this Section 3.5(c)(iv), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:


    (1)        Cash and Property: Such consideration shall:

    (I)        insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest or accrued dividends;


    (II)        insofar as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith by the Board of Directors; and


    (III)        in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.


    (2)        Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 3.5(c)(iv)(C)(1), relating to Options and Convertible Securities, shall be determined by dividing (I) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration until such subsequent adjustment occurs) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (II) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number until such subsequent adjustment occurs) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.


    (F)        Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock.


    (1)        Stock Dividends, Distributions or Subdivisions. In the event the Corporation shall issue Additional Shares of Common Stock pursuant to Section 3.5(c)(iv)(C)(2) in a stock dividend, stock distribution or subdivision after the Filing Date, the Series C Conversion Price in effect immediately prior to such issuance shall, concurrently with the effectiveness of such issuance, be proportionately decreased.


    (2)        Combinations or Consolidations. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock after the Filing Date, the Series C Conversion Price in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased.


    (G)        Adjustment for Merger or Reorganization. Subject to Section 3.5(b)(iii), in the event of any consolidation or merger of the Corporation with or into another corporation or the conveyance of all or substantially all of the assets of the Corporation to another corporation following the Filing Date and the Series E Issuance, each share of Series C Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation then deliverable upon conversion of such share of Series C Preferred Stock would have been entitled upon such consolidation, merger or conveyance. In any such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 3.5(c) with respect to the rights and interest thereafter of the holders of the Series C Preferred Stock to the end that the provisions (including provisions with respect to changes in and other adjustments of the Series C Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the conversion of the Series C Preferred Stock.


    (v)        No Impairment. The Corporation will not, by amendment of this Certificate of Incorporation (except in accordance with Section 3.5(f)) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3.5(c) and in the taking of all such action as may be necessary or appropriate in order to protect the Series C Conversion Rights of the holders of the Series C Preferred Stock against impairment.


    (vi)        Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series C Conversion Price pursuant to this Section 3.5(c), the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with these terms and furnish to each holder of Series C Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series C Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustments and readjustments, (B) the Series C Conversion Price at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion of the Series C Preferred Stock.


    (vii)        Notices of Record Date. In the event (A) that the Corporation fixes a record date for the purpose of determining the holders of any Common Stock who are entitled to receive any dividend (other than a cash dividend which is the same on a per share basis as cash dividends paid in previous quarters) or other distribution, or (B) of any subdivision, combination or other capital reorganization of the Corporation, any reclassification or recapitalization of the capital stock of the Corporation, any merger or consolidation of the Corporation, and any transfer of all or substantially all of the assets of the Corporation to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series C Preferred Stock at least 20 days prior to the record or other date specified therein, a notice specifying (1) the record date of such dividend or distribution, or, if a record is not to be taken, the date as of which the stockholders of record to be entitled to such dividend or distribution, are to be determined, or (2) the date on which any such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and the time, if any, that is to be fixed, as to when the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up.


    (viii)        Termination of Dividends. The conversion of any Series C Preferred Stock pursuant to the provisions of this Section 3.5(c) shall terminate the right of the holders thereof to receive, and of the Corporation’s obligation to pay, any and all accrued but undeclared and unpaid dividends with respect to such shares of Series C Preferred Stock then being converted, but shall not extinguish the right to receive any unpaid dividends which have been declared and the record date for which shall have occurred prior to the time such conversion shall be deemed to have been made.


    (ix)        Waiver of Benefits. The benefits afforded to the holders of Series C Preferred Stock pursuant to this Section 3.5(c) may be waived in writing by the holders of at least a majority of the shares of Series C Preferred Stock then outstanding.


    (d)        Voting Rights. Subject to the provisions of Section 3.4 of Article III of this Certificate of Incorporation, the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, each holder of outstanding shares of Series C Preferred Stock shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Series C Preferred Stock held by such holder are convertible (as adjusted from time to time pursuant to Section 3.5(c) hereof), as of the record date for each meeting of stockholders of the Corporation (or as of the date of each written action of stockholders in lieu of a meeting), with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration. Except as provided by law or in Section 3.4 of Article III of this Certificate of Incorporation, and subject to the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, holders of Series C Preferred Stock shall vote together with the holders of all other classes and series of voting stock of the Corporation as a single class.

      (e) Dividend Rights.

    (i)        The Corporation shall not declare or pay any distributions (as defined below) on shares of Common Stock until the holders of the Series C Preferred Stock then outstanding shall have first received, or simultaneously receive, a distribution on each outstanding share of Series C Preferred Stock in an amount at least equal to the product of (i) the per share amount, if any, of the dividends or other distributions to be declared, paid or set aside for the Common Stock, multiplied by (ii) the number of whole shares of Common Stock into which such share of Series C Preferred Stock is then convertible.


    (ii)        For purposes of this Section 3.5(e), unless the context requires otherwise, “distribution” shall mean the transfer of cash or property without consideration, whether by way of dividend or otherwise, in respect of shares of the Corporation payable other than in Common Stock or other securities of the Corporation, or the purchase or redemption of shares of Common Stock of the Corporation (other than (1) repurchases of Common Stock held by employees, officers or directors of, or consultants to, the Corporation upon their death, disability or retirement or upon termination of their employment or services at a price not in excess of the fair market value (as determined in good faith by the Board of Directors of the Corporation) of such shares, (2) repurchases of Common Stock in accordance with the terms of that certain Amended and Restated Investors’ Rights Agreement dated as of May ___ 2002 among the Corporation and certain of its shareholders, (3) repurchases or reacquisitions of securities by the Corporation pursuant to that certain Escrow Agreement dated May ____, 2002 entered into by the Corporation in connection with the merger of the Corporation’s subsidiary with Enermetrix.com, Inc., and (4) redemptions in liquidation or dissolution of the Corporation) for cash or property, including any such transfer, purchase or redemption by a subsidiary of this Corporation.


    (f)        Protective Provisions. So long as any shares of Series C Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law or this Amended and Restated Certificate of Incorporation) of the holders of at least a majority of the shares of Series C Preferred Stock then outstanding:

    (i)        alter or change the rights, preferences, or privileges or increase or decrease the authorized number of the shares of Series C Preferred Stock; or


    (ii)        authorize or issue any other equity security, or security convertible into or exercisable for any other equity security, having a preference over, or being on a parity with (it being understood that equity securities shall not be deemed to be on a parity with the Series C Preferred Stock solely because such equity securities (including Common Stock) are entitled to participate in dividends or liquidation distributions with the holders of Common Stock), the Series C Preferred Stock with respect to dividends, liquidation or redemption; provided, however, that the approval of the Series C Preferred Stock shall not be required for any sale or issuance of Series E Preferred Stock pursuant to the Cinergy Letter Agreement.


    (g)        Status of Converted or Redeemed Stock. In the event any shares of Series C Preferred Stock shall be converted pursuant to Section 3.5(c) hereof, the shares so converted shall be canceled and shall not be issuable by the Corporation.

3.6 Series D Convertible Participating Preferred Stock

      (a) Designation.

        Two Hundred Eighty-Three Thousand Four Hundred Twenty-Five (283,425) shares of the authorized shares of Preferred Stock of the Corporation are hereby designated as shares of Series D Convertible Participating Preferred Stock of the Corporation, $.01 par value per share (the “Series D Preferred Stock”).

      (b) Liquidation Rights.

    (i)        In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (a “Series D Liquidation Event”), the holders of shares of Series D Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after payment or provisions for payment of all preferential amounts required to be paid to the holders of the Series E Preferred Stock and to the holders of any other class or series of stock ranking on liquidation senior to the Series D Preferred Stock, but before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Series D Preferred Stock (such Common Stock and other stock being collectively referred to as “Series D Junior Stock”) by reason of their ownership thereof, an amount equal to $7.057 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date and after the Series E Issuance) (such amount per share of Series D Preferred Stock, as so adjusted, being herein called the “Series D Liquidation Preference”), plus any dividends declared but unpaid on such shares. The Series D Preferred Stock shall rank in liquidation on a parity with the Series A, Series A-1 and Series C Preferred Stock (the “Series D Parity Stock”) and junior to the Series E Preferred Stock. If upon any Series D Liquidation Event the remaining assets of the Corporation available for distribution to its stockholders (after payment or provision for payment of all preferential amounts, if any, required to be paid to the holders of any class or series of stock ranking on liquidation senior to the Series D Preferred Stock) shall be insufficient to pay the holders of shares of Series D Preferred Stock, the holders of shares of Series D Parity Stock and the holders of shares of any other class or series of stock ranking in liquidation on a parity with the Series D Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series D Preferred Stock, the holders of shares of Series D Parity Stock and the holders of shares of any such other class or series shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. All of the preferential amounts to be paid to the holders of the Series D Preferred Stock pursuant to this Section 3.6(b)(i) shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any assets of the Corporation to, the holders of the Series D Junior Stock in connection with such Series D Liquidation Event. Notwithstanding the foregoing, in the event of a Series D Liquidation Event pursuant to which, in the absence of this Section 3.6(b)(i), the proceeds distributable to the holders of the Series D Preferred Stock would exceed five times the Series D Liquidation Preference, then the holders of the Series D Preferred Stock shall not be entitled to their respective liquidation preferences pursuant to this Section 3.6(b)(i) but shall rather be entitled to receive proceeds solely pursuant to Section 3.6(b)(ii) hereof.


    (ii)        After payment or the setting apart of payment of all preferential amounts, if any, required to be paid to the holders of the Series D Preferred Stock, the holders of the Series D Parity Stock and the holders of any other class or series of stock ranking on liquidation senior to the Common Stock, all remaining assets of the Corporation available for distribution (after payment or provision for payment of all debts and liabilities of the Corporation) shall be distributed among the holders of shares of Series D Preferred Stock, Common Stock and any other class or series of stock entitled to participate in liquidation distributions with the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each (assuming conversion into Common Stock of all such shares).


    (iii)        A consolidation or merger of the Corporation (in which consolidation or merger any shareholders of the Corporation receive distributions of cash, property, rights or securities) or a sale of all or substantially all of the assets of the Corporation shall be regarded as a Series D Liquidation Event, within the meaning of this Section 3.6(b), unless the holders of a majority of the then outstanding shares of all series of Preferred Stock (voting together as a single class on an as-if-converted to Common Stock basis) elect not to treat any of the foregoing events as a liquidation event with respect to all series of Preferred Stock, by giving written notice thereof to the Corporation at least fifteen (15) days prior to the effective date of such event. If such notice is given, the provisions of Section 3.6(c)(iv)(G) shall apply. The amount deemed distributed to the holders of Series D Preferred Stock upon any such merger or consolidation shall be the cash or the value of the property, rights or securities distributed to such holders by the acquiring person, firm or other entity. The value of such property, rights or other securities shall be determined in good faith by the Board of Directors of the Corporation.


    (c)        Conversion. The holders of Series D Preferred Stock shall have conversion rights as follows (the “Series D Conversion Rights”):

    (i)        Right to Convert. Each share of Series D Preferred Stock shall be convertible at the option of the holder thereof, at any time after the date of issuance and without the payment of any additional consideration therefor, into that number of fully paid and nonassessable shares of Common Stock as is determined by dividing $7.057 by the Series D Conversion Price (determined as hereinafter provided) in effect at the time of conversion. As of the Filing Date and following the Series E Issuance, the conversion price at which shares of Common Stock shall be deliverable upon conversion of the Series D Preferred Stock (the “Series D Conversion Price”) shall be $5.4893 per share. Such Series D Conversion Price shall be subject to adjustment (in order to adjust the number of shares of Common Stock into which the Series D Preferred Stock is convertible) as hereinafter provided.


    (ii)        Automatic Conversion. Each share of Series D Preferred Stock shall automatically be converted into shares of Common Stock at the then effective Series D Conversion Price upon the closing of the sale of shares of Common Stock for the account of the Corporation, in a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in gross proceeds to the Corporation of not less than $30,000,000.


    (iii)        Mechanics of Conversion.


    (A)        Before any holder of Series D Preferred Stock shall be entitled to convert the same into shares of Common Stock, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Series D Preferred Stock, and shall give written notice to the Corporation at such office that such holder elects to convert the same and shall state therein such holder’s name or the name or names of the nominees of such holder in which he or it wishes the certificate or certificates for shares of Common Stock to be issued, together with the applicable federal taxpayer identification number or numbers thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series D Preferred Stock, or to his or its nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash (in an amount determined as provided below) in lieu of any fraction of a share. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the certificate or certificates evidencing the shares of Series D Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. If the number of shares of Series D Preferred Stock represented by the certificate or certificates surrendered pursuant to this Section 3.6(c)(iii)(A) exceeds the number of shares being converted, the Corporation will, as soon as practicable after such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series D Preferred Stock represented by the certificate or certificates surrendered that are not being converted. If after aggregating all fractional shares deliverable to a holder surrendering Series D Preferred Stock for conversion, any fractional share of Common Stock would be delivered upon such conversion, the Corporation, in lieu of delivering such fractional share, will pay to the holder an amount in cash equal to the current fair market value of such fractional share as determined in good faith by the Board of Directors of the Corporation.


    (B)        The Corporation shall at all times when the Series D Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of affecting the conversion of the Series D Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series D Preferred Stock. Before taking any action which would cause an adjustment reducing the Series D Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series D Preferred Stock, the Corporation will take any corporate action which, in the opinion of its counsel, may be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Series D Conversion Price.


    (C)        All shares of Series D Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate on the conversion date, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and payment of any dividends declared but unpaid thereon as provided in Section 3.6(c)(viii).


    (D)        The Corporation shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series D Preferred Stock pursuant to this Section 3.6(c). The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series D Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.


    (iv)              Adjustments to Conversion Price for Diluting Issues:


    (A)              Special Definitions. For purposes of this Section 3.6(c)(iv), the following definitions shall apply:


    (1)        “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities.


    (2)            “Filing Date” shall mean May ____, 2002.


    (3)               “Convertible Securities” shall mean any evidences of indebtedness, shares (other than Common Stock and the Existing Preferred Stock of the Corporation) or other securities directly or indirectly convertible into or exchangeable for Common Stock.


    (4)               “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 3.6(c)(iv)(C), deemed to be issued) by the Corporation after the Filing Date and following the Series E Issuance, other than:


    (I)               shares of Common Stock issued or issuable upon conversion of shares of Preferred Stock;


    (II)               the issuance of shares of Common Stock to, or upon the exercise of options granted to, the officers, directors or employees of, or consultants to, the Corporation pursuant to the Corporation’s 1999 Stock Plan (as amended, provided that such amendment has been approved by a majority of the Board of Directors, including at least one of the members of the Board of Directors of the Corporation designated by the holders of the Series A Preferred Stock and Series D Preferred Stock) or pursuant to any other stock purchase or option plan or other stock incentive or compensation program approved by a majority of the Board of Directors, including at least one of the members of the Board of Directors of the Corporation designated by the holders of the Series A Preferred Stock and Series D Preferred Stock, or the grant of such options; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of options so granted shall not exceed 2,627,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);


    (III)               the issuance of shares of Common Stock upon the exercise of options granted prior to October 14, 1998; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such options after such date shall not exceed 35,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);


    (IV)               the issuance of shares of Common Stock upon the exercise of warrants granted prior to the Filing Date; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such warrants after the Filing Date shall not exceed 15,000 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Filing Date);


    (V)               shares of Common Stock issued (or deemed to be issued) by way of dividend or other distribution on shares of Common Stock excluded from the definition of Additional Shares of Common Stock by the foregoing clauses (I), (II), (III), (IV) or this clause (V) or on shares of Common Stock so excluded.


    (B)                     No Adjustment of Conversion Price.


    (1)               No adjustment in the number of shares of Common Stock into which the Series D Preferred Stock is convertible shall be made by adjustment in the Series D Conversion Price inrespect of the issuance or deemed issuance of Additional Shares of Common Stock or otherwise, unless the consideration per share for such Additional Shares of Common Stock issued or deemed to be issued by the Corporation is less than the Series D Conversion Price in effect on the date of, and immediately prior to, the issue of such Additional Shares.


    (2)               No adjustment of the Series D Conversion Price shall be made in an amount less than one (1) cent per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment. Except as provided in Section 3.6(c)(iv)(F)(2), no adjustment of the Series D Conversion Price pursuant to this Section 3.6(c)(iv) shall have the effect of increasing the Series D Conversion Price above the Series D Conversion Price in effect immediately prior to such adjustment.


    (C)                     Deemed Issue of Additional Shares of Common Stock.


    (1)               Options and Convertible Securities. In the event the Corporation following the Filing Date at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued unless the consideration per share (determined pursuant to Section 3.6(c)(iv)(E)) of such Additional Shares of Common Stock would be less than the Series D Conversion Price in effect on the date of and immediately prior to such issue, or such record date, as the case may be, and provided further that in any such case in which Additional Shares of Common Stock are deemed to be issued or were, prior to the Filing Date, deemed to be issued:


    (I)                            no further adjustment in the Series D Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such Convertible Securities;


    (II)                     if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Corporation, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Series D Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;


    (III)               upon the expiration or termination of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised or converted (including upon the acquisition or termination of such securities by the Corporation), the Series D Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:


    (aa)               in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued or remaining issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise, or for the issue of all such Convertible Securities which were actually converted or exchanged or which remain subject to being converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and


    (bb)                             in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common Stock deemed to have been then issued was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus the consideration actually received by the Corporation upon such exercise, plus the additional consideration, if any, deemed to have been received by the Corporation (determined pursuant to Section 3.6(c)(iv)(E)) upon the conversion or exchange of the Convertible Securities with respect to which such Options were actually exercised;


    (IV)                      no readjustment pursuant to clause (II) or (III) above shall have the effect of increasing the Series D Conversion Price to an amount which exceeds the lower of (i) the Series D Conversion Price on the original adjustment date, or (ii) the Series D Conversion Price that would have resulted from any unreadjusted issuance of Additional Shares of Common Stock between the original adjustment date and such readjustment date (except to the extent the same resulted from an adjustment pursuant to Section 3.6(c)(iv)(F)(2));


    (V)                      in the case of any Options which expire by their terms not more than thirty (30) days after the date of issue thereof, no adjustment of the Series D Conversion Price shall be made until the expiration or exercise of all such Options, whereupon such adjustment shall be made in the same manner provided in clause (III) above; and


    (VI)                      if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Series D Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series D Conversion Price shall be adjusted pursuant to this Section 3.6(c)(iv)(C) as of the actual date of their issuance.


    (2)              Warrants. Upon the expiration or termination of warrants granted prior to the Filing Date, the Series D Conversion Price computed upon the original issue thereof and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued upon the exercise of such warrants and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such warrants, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise.


    (3)        Escrow Shares. Upon any reacquisition by the Corporation of shares of Series E Preferred Stock pursuant to the Escrow Agreement dated May ___, 2002, by and among the Corporation, the representative of certain former stockholders of Enermetrix.com, Inc. and SunTrust Bank, the Series D Conversion Price which, as set forth in this Certificate of Incorporation, has been computed assuming the issuance of 2,124,844 shares of Series E Preferred Stock pursuant to the Agreement and Plan of Merger dated April 26, 2002, by and among the Corporation, CES Enermetrix Merger Sub, Inc. and Enermetrix.com, Inc., and any subsequent adjustments based thereon, shall be recomputed as if the shares of Series E Preferred Stock that are reacquired by the Corporation pursuant to the terms of the Escrow Agreement were never issued by the Corporation, provided, however, that any reissuance of Series E Preferred Stock by the Corporation pursuant to the Cinergy Letter Agreement shall continue to be subject to this Section 3.6(c)(iv).


    (4)              Stock Dividends, Stock Distributions and Subdivisions. In the event the Corporation following the Filing Date at any time or from time to time shall declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, Additional Shares of Common Stock shall be deemed to have been issued:


    (I)               in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or


    (II)               in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective.


  If such record date shall have been fixed and such dividend or distribution shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Series D Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series D Conversion Price shall be adjusted pursuant to Section 3.6(c)(iv)(F) as of the time of actual payment of such dividend or distribution.

    (D)              Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. If the Corporation shall issue (other than in a stock dividend, stock distribution or subdivision, which shall be governed by clause (F) of this Section 3.6(c)(iv)), after the Filing Date and following the Series E Issuance, any Additional Shares of Common Stock without consideration or for a consideration per share less than the Series D Conversion Price in effect immediately prior to the issuance of such Additional Shares of Common Stock, the Series D Conversion Price in effect immediately prior to each such issuance shall forthwith be adjusted to a price equal to a price determined by multiplying such Series D Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance (assuming the conversion of all then outstanding shares of Series D Preferred Stock) plus the number of shares of Common Stock that the aggregate consideration received by the Corporation for the issuance of the Additional Shares of Common Stock would purchase at such Series D Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance assuming the conversion of all then outstanding shares of Series D Preferred Stock plus the number of such Additional Shares of Common Stock.


    (E)              Determination of Consideration. For purposes of this Section 3.6(c)(iv), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:


    (1)              Cash and Property: Such consideration shall:


    (I)               insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest or accrued dividends;


    (II)               insofar as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith by the Board of Directors; and


    (III)               in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.


    (2)              Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 3.6(c)(iv)(C)(1), relating to Options and Convertible Securities, shall be determined by dividing (I) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration until such subsequent adjustment occurs) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (II) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number until such subsequent adjustment occurs) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.


    (F)              Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock.


    (1)              Stock Dividends, Distributions or Subdivisions. In the event the Corporation shall issue Additional Shares of Common Stock pursuant to Section 3.6(c)(iv)(C)(2) in a stock dividend, stock distribution or subdivision after the Filing Date, the Series D Conversion Price in effect immediately prior to such issuance shall, concurrently with the effectiveness of such issuance, be proportionately decreased.


    (2)              Combinations or Consolidations. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock after the Filing Date, the Series D Conversion Price in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased.


    (G)              Adjustment for Merger or Reorganization. Subject to Section 3.6(b)(iii), in the event of any consolidation or merger of the Corporation with or into another corporation or the conveyance of all or substantially all of the assets of the Corporation to another corporation following the Filing Date and the Series E Issuance, each share of Series D Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation then deliverable upon conversion of such share of Series D Preferred Stock would have been entitled upon such consolidation, merger or conveyance. In any such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 3.6(c) with respect to the rights and interest thereafter of the holders of the Series D Preferred Stock to the end that the provisions (including provisions with respect to changes in and other adjustments of the Series D Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the conversion of the Series D Preferred Stock.


    (v)              No Impairment. The Corporation will not, by amendment of this Certificate of Incorporation (except in accordance with Section 3.6(f)) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3.6(c) and in the taking of all such action as may be necessary or appropriate in order to protect the Series D Conversion Rights of the holders of the Series D Preferred Stock against impairment.


    (vi)              Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series D Conversion Price pursuant to this Section 3.6(c), the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with these terms and furnish to each holder of Series D Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series D Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustments and readjustments, (B) the Series D Conversion Price at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion of the Series D Preferred Stock.


    (vii)              Notices of Record Date. In the event (A) that the Corporation fixes a record date for the purpose of determining the holders of any Common Stock who are entitled to receive any dividend (other than a cash dividend which is the same on a per share basis as cash dividends paid in previous quarters) or other distribution, or (B) of any subdivision, combination or other capital reorganization of the Corporation, any reclassification or recapitalization of the capital stock of the Corporation, any merger or consolidation of the Corporation, and any transfer of all or substantially all of the assets of the Corporation to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series D Preferred Stock at least 20 days prior to the record or other date specified therein, a notice specifying (1) the record date of such dividend or distribution, or, if a record is not to be taken, the date as of which the stockholders of record to be entitled to such dividend or distribution, are to be determined, or (2) the date on which any such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and the time, if any, that is to be fixed, as to when the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up.


    (viii)              Termination of Dividends. The conversion of any Series D Preferred Stock pursuant to the provisions of this Section 3.6(c) shall terminate the right of the holders thereof to receive, and of the Corporation’s obligation to pay, any and all accrued but undeclared and unpaid dividends with respect to such shares of Series D Preferred Stock then being converted, but shall not extinguish the right to receive any unpaid dividends which have been declared and the record date for which shall have occurred prior to the time such conversion shall be deemed to have been made.


    (ix)              Waiver of Benefits. The benefits afforded to the holders of Series D Preferred Stock pursuant to this Section 3.6(c) may be waived in writing by the holders of at least a majority of the shares of Series D Preferred Stock then outstanding.


    (d)              Voting Rights. Subject to the provisions of Section 3.4 of Article III of this Certificate of Incorporation, the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, each holder of outstanding shares of Series D Preferred Stock shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Series D Preferred Stock held by such holder are convertible (as adjusted from time to time pursuant to Section 3.6(c) hereof), as of the record date for each meeting of stockholders of the Corporation(or as of the date of each written action of stockholders in lieu of a meeting), with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration. Except as provided by law or in Section 3.4 of Article III of this Certificate of Incorporation, and subject to the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, holders of Series D Preferred Stock shall vote together with the holders of all other classes and series of voting stock of the Corporation as a single class.


    (e)        Dividend Rights.


    (i)               The Corporation shall not declare or pay any distributions (as defined below) on shares of Common Stock until the holders of the Series D Preferred Stock then outstanding shall have first received, or simultaneously receive, a distribution on each outstanding share of Series D Preferred Stock in an amount at least equal to the product of (i) the per share amount, if any, of the dividends or other distributions to be declared, paid or set aside for the Common Stock, multiplied by (ii) the number of whole shares of Common Stock into which such share of Series D Preferred Stock is then convertible.


    (ii)               For purposes of this Section 3.6(e), unless the context requires otherwise, “distribution” shall mean the transfer of cash or property without consideration, whether by way of dividend or otherwise, in respect of shares of the Corporation payable other than in Common Stock or other securities of the Corporation, or the purchase or redemption of shares of Common Stock of the Corporation (other than (1) repurchases of Common Stock held by employees, officers or directors of, or consultants to, the Corporation upon their death, disability or retirement or upon termination of their employment or services at a price not in excess of the fair market value (as determined in good faith by the Board of Directors of the Corporation) of such shares, (2) repurchases of Common Stock in accordance with the terms of that certain Amended and Restated Investors’ Rights Agreement dated as of May___, 2002 among the Corporation and certain of its shareholders, (3) repurchases or reacquisitions of securities by the Corporation pursuant to that certain Escrow Agreement dated May ____, 2002 entered into by the Corporation in connection with the merger of the Corporation’s subsidiary with Enermetrix.com, Inc., and (4) redemptions in liquidation or dissolution of the Corporation) for cash or property, including any such transfer, purchase or redemption by a subsidiary of this Corporation.


    (f)              Protective Provisions. So long as any shares of Series D Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law or this Amended and Restated Certificate of Incorporation) of the holders of at least a majority of the shares of Series D Preferred Stock then outstanding:


    (i)               alter or change the rights, preferences, or privileges or increase or decrease the authorized number of the shares of Series D Preferred Stock; or


    (ii)               authorize or issue any other equity security, or security convertible into or exercisable for any other equity security, having a preference over, or being on a parity with (it being understood that equity securities shall not be deemed to be on a parity with the Series D Preferred Stock solely because such equity securities (including Common Stock) are entitled to participate in dividends or liquidation distributions with the holders of Common Stock), the Series D Preferred Stock with respect to dividends, liquidation or redemption; provided, however, that the approval of the Series D Preferred Stock shall not be required for any sale or issuance of Series E Preferred Stock pursuant to the Cinergy Letter Agreement.


    (g)              Status of Converted Stock. In the event any shares of Series D Preferred Stock shall be converted pursuant to Section 3.6(c) hereof, the shares so converted shall be canceled and shall not be issuable by the Corporation.


3.7 Series E Convertible Participating Preferred Stock

      (a) Designation.

        Two Million Two Hundred Eight Thousand (2,208,000) shares of the authorized shares of Preferred Stock are hereby designated as shares of Series E Convertible Participating Preferred Stock of the Corporation, $.01 par value per share (the “Series E Preferred Stock”).

      (b) Liquidation Rights.

    (i)        The Series E Preferred Stock will rank senior in liquidation to the Series A, Series A-1, Series C and Series D Preferred Stock, the Common Stock and any other class or series of stock ranking on liquidation junior to the Series E Preferred Stock (such Common Stock and other stock being collectively referred to as the “Series E Junior Stock”). In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (a “Series E Liquidation Event”), the holders of shares of Series E Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after payment or provision for payment of all preferential amounts, if any, required to be paid to the holders of any class or series of stock ranking on liquidation senior to the Series E Preferred Stock, but before any payment shall be made to the holders of the Series E Junior Stock by reason of their ownership thereof, a per share amount determined in accordance with the following formula (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Series E Issuance) (such amount per share of Series E Preferred Stock, as so adjusted, being herein called the “Series E Liquidation Preference”), plus any dividends declared but unpaid on such shares:


1.5 x Final Net Cash Amount
Final Series E Merger Shares

  where “Final Net Cash Amount” means the amount of Company Net Cash as of the Closing Date (as such terms are defined in that certain Agreement and Plan of Merger (the “Merger Agreement”) by and among CES International, Inc., CES Enermetrix Merger Sub, Inc. and Enermetrix.com, Inc. (“Enermetrix”), that is finally determined to exist pursuant to Section 2.8(d) of the Merger Agreement, and where “Final Series E Merger Shares” means the total number of shares of Series E Preferred Stock (i) initially issued pursuant to the Merger Agreement, minus (ii) the number of Escrow Shares (as defined in the Merger Agreement) distributed to the Corporation pursuant to Section 2.8(d) of the Merger Agreement due to a deficit in Company Net Cash.

          If upon any Series E Liquidation Event the remaining assets of the Corporation available for distribution to its stockholders (after payment or provision for payment of all preferential amounts, if any, required to be paid to the holders of any class or series of stock ranking on liquidation senior to the Series E Preferred Stock) shall be insufficient to pay the holders of shares of Series E Preferred Stock and the holders of shares of any other class or series of stock ranking in liquidation on a parity with the Series E Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series E Preferred Stock and the holders of shares of any such other class or series of stock ranking in liquidation on a parity with the Series E Preferred Stock shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. All of the preferential amounts to be paid to the holders of the Series E Preferred Stock pursuant to this Section 3.7(b)(i) shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any assets of the Corporation to, the holders of the Series E Junior Stock in connection with such Series E Liquidation Event. Notwithstanding the foregoing, in the event of a Series E Liquidation Event pursuant to which, in the absence of this Section 3.7(b)(i), the proceeds distributable to the holders of the Series E Preferred Stock would exceed five times the Series E Liquidation Preference, then the holders of the Series E Preferred Stock shall not be entitled to their respective liquidation preferences pursuant to this Section 3.7(b)(i) but shall rather be entitled to receive proceeds solely pursuant to Section 3.7(b)(ii) hereof.

    (ii)        After payment or the setting apart of payment of all preferential amounts, if any, required to be paid to the holders of the Series E Preferred Stock and the holders of any other class or series of stock ranking on liquidation senior to the Common Stock, all remaining assets of the Corporation available for distribution (after payment or provision for payment of all debts and liabilities of the Corporation) shall be distributed among the holders of shares of Series E Preferred Stock, Common Stock and any other class or series of stock entitled to participate in liquidation distributions with the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each (assuming conversion into Common Stock of all such shares).


    (iii)        A consolidation or merger of the Corporation (in which consolidation or merger any shareholders of the Corporation receive distributions of cash, property, rights or securities) or a sale of all or substantially all of the assets of the Corporation shall be regarded as a Series E Liquidation Event, within the meaning of this Section 3.7(b), unless the holders of a majority of the then outstanding shares of all series of Preferred Stock (voting together as a single class on an as-if-converted to Common Stock basis) elect not to treat any of the foregoing events as a liquidation event with respect to all series of Preferred Stock, by giving written notice thereof to the Corporation at least fifteen (15) days prior to the effective date of such event. If such notice is given, the provisions of Section 3.7(c)(iv)(G) shall apply. The amount deemed distributed to the holders of Series E Preferred Stock upon any such merger or consolidation shall be the cash or the value of the property, rights or securities distributed to such holders by the acquiring person, firm or other entity. The value of such property, rights or other securities shall be determined in good faith by the Board of Directors of the Corporation.


      (c)       Conversion. The holders of Series E Preferred Stock shall have conversion rights as follows (the “Series E Conversion Rights”):

    (i)        Right to Convert. Each share of Series E Preferred Stock shall be convertible at the option of the holder thereof, at any time after the date of issuance and without the payment of any additional consideration therefor, into that number of fully paid and nonassessable shares of Common Stock as is determined by dividing $3.01832 by the Series E Conversion Price (determined as hereinafter provided) in effect at the time of conversion. The conversion price at which shares of Common Stock shall be deliverable upon conversion of the Series E Preferred Stock (the “Series E Conversion Price”) shall initially be $3.01832 per share. Such initial Series E Conversion Price shall be subject to adjustment (in order to adjust the number of shares of Common Stock into which the Series E Preferred Stock is convertible) as hereinafter provided.


    (ii)        Automatic Conversion. Each share of Series E Preferred Stock shall automatically be converted into shares of Common Stock at the then effective Series E Conversion Price upon the closing of the sale of shares of Common Stock for the account of the Corporation, in a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in gross proceeds to the Corporation of not less than $30,000,000.


    (iii)        Mechanics of Conversion.


    (A)        Before any holder of Series E Preferred Stock shall be entitled to convert the same into shares of Common Stock, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Series E Preferred Stock, and shall give written notice to the Corporation at such office that such holder elects to convert the same and shall state therein such holder’s name or the name or names of the nominees of such holder in which he or it wishes the certificate or certificates for shares of Common Stock to be issued, together with the applicable federal taxpayer identification number or numbers thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series E Preferred Stock, or to his or its nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash (in an amount determined as provided below) in lieu of any fraction of a share. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the certificate or certificates evidencing the shares of Series E Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. If the number of shares of Series E Preferred Stock represented by the certificate or certificates surrendered pursuant to this Section 3.7(c)(iii)(A) exceeds the number of shares being converted, the Corporation will, as soon as practicable after such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series E Preferred Stock represented by the certificate or certificates surrendered that are not being converted. If after aggregating all fractional shares deliverable to a holder surrendering Series E Preferred Stock for conversion, any fractional share of Common Stock would be delivered upon such conversion, the Corporation, in lieu of delivering such fractional share, will pay to the holder an amount in cash equal to the current fair market value of such fractional share as determined in good faith by the Board of Directors of the Corporation.


    (B)        The Corporation shall at all times when the Series E Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of affecting the conversion of the Series E Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series E Preferred Stock. Before taking any action which would cause an adjustment reducing the Series E Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series E Preferred Stock, the Corporation will take any corporate action which, in the opinion of its counsel, may be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Series E Conversion Price.


    (C)        All shares of Series E Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate on the conversion date, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and payment of any dividends declared but unpaid thereon as provided in Section 3.7(c)(viii).


    (D)        The Corporation shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series E Preferred Stock pursuant to this Section 3.7(c). The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series E Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.


    (iv)                     Adjustments to Conversion Price for Diluting Issues:


    (A)        Special Definitions. For purposes of this Section 3.7(c)(iv), the following definitions shall apply:


    (1)        “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities.


    (2)            “Filing Date” shall mean May ___, 2002.


    (3)               “Convertible Securities” shall mean any evidences of indebtedness, shares (other than Common Stock and the Existing Preferred Stock of the Corporation) or other securities directly or indirectly convertible into or exchangeable for Common Stock.


    (4)               “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 3.7(c)(iv)(C), deemed to be issued) by the Corporation after the Series E Issuance, other than:


    (I)                shares of Common Stock issued or issuable upon conversion of shares of Preferred Stock;


    (II)                the issuance of shares of Common Stock to, or upon the exercise of options granted to, the officers, directors or employees of, or consultants to, the Corporation pursuant to the Corporation’s 1999 Stock Plan (as amended, provided that such amendment has been approved by a majority of the Board of Directors of the Corporation) or pursuant to any other stock purchase or option plan or other stock incentive or compensation program approved by a majority of the Board of Directors of the Corporation, or the grant of such options; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of options so granted shall not exceed 2,627,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Series E Issuance);


    (III)                the issuance of shares of Common Stock upon the exercise of options granted prior to October 14, 1998; provided, however, that the number of shares of Common Stock so issued or issuable upon the exercise of such options after such date shall not exceed 35,700 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization effected after the Series E Issuance);


    (IV)               the issuance of shares of Common Stock upon the exercise of warrants granted prior to the Series E Issuance and the issuance of warrants to Alliant Energy Integrated Services – Energy Management, LLC, or its affiliates, and the exercise of such warrants, to purchase up to 50,000 shares of Common Stock; or


    (V)               shares of Common Stock issued (or deemed to be issued) by way of dividend or other distribution on shares of Common Stock excluded from thedefinition of Additional Shares of Common Stock by the foregoing clauses (I), (II), (III), (IV) or this clause (V) or on shares of Common Stock so excluded.


    (B)                     No Adjustment of Conversion Price.


    (1)               No adjustment in the number of shares of Common Stock into which the Series E Preferred Stock is convertible shall be made by adjustment in the Series E Conversion Price inrespect of the issuance or deemed issuance of Additional Shares of Common Stock or otherwise, unless the consideration per share for such Additional Shares of Common Stock issued or deemed to be issued by the Corporation is less than the Series E Conversion Price in effect on the date of, and immediately prior to, the issue of such Additional Shares.


    (2)               No adjustment of the Series E Conversion Price shall be made in an amount less than one (1) cent per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment. Except as provided in Section 3.7(c)(iv)(F)(2), no adjustment of the Series E Conversion Price pursuant to this Section 3.7(c)(iv) shall have the effect of increasing the Series E Conversion Price above the Series E Conversion Price in effect immediately prior to such adjustment.


    (C)                     Deemed Issue of Additional Shares of Common Stock.


    (1)              Options and Convertible Securities. In the event the Corporation following the Series E Issuance at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued unless the consideration per share (determined pursuant to Section 3.7(c)(iv)(E)) of such Additional Shares of Common Stock would be less than the Series E Conversion Price in effect on the date of and immediately prior to such issue, or such record date, as the case may be, and provided further that in any such case in which Additional Shares of Common Stock are deemed to be issued or were, prior to the Series E Issuance, deemed to be issued:


    (I)                no further adjustment in the Series E Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such Convertible Securities;


    (II)                if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Corporation, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Series E Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;


    (III)                upon the expiration or termination of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised or converted (including upon the acquisition and termination of such securities by the Corporation), the Series E Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:


(aa)         in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common Stock issued were the shares of Common Stock, if any, actually issued or remaining issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus, the consideration actually received by the Corporation upon such exercise, or for the issue of all such Convertible Securities which were actually converted or exchanged or which remain subject to being converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and

(bb)         in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common Stock deemed to have been then issued was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus the consideration actually received by the Corporation upon such exercise, plus the additional consideration, if any, deemed to have been received by the Corporation (determined pursuant to Section 3.7(c)(iv)(E)) upon the conversion or exchange of the Convertible Securities with respect to which such Options were actually exercised;

    (IV)                no readjustment pursuant to clause (II) or (III) above shall have the effect of increasing the Series E Conversion Price to an amount which exceeds the lower of (i) the Series E Conversion Price on the original adjustment date, or (ii) the Series E Conversion Price that would have resulted from any unreadjusted issuance of Additional Shares of Common Stock between the original adjustment date and such readjustment date (except to the extent the same resulted from an adjustment pursuant to Section 3.7(c)(iv)(F)(2));


    (V)                in the case of any Options which expire by their terms not more than thirty (30) days after the date of issue thereof, no adjustment of the Series E Conversion Price shall be made until the expiration or exercise of all such Options, whereupon such adjustment shall be made in the same manner provided in clause (III) above; and


    (VI)                if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Series E Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series E Conversion Price shall be adjusted pursuant to this Section 3.7(c)(iv)(C) as of the actual date of their issuance.


    (2)              Stock Dividends, Stock Distributions and Subdivisions. In the event the Corporation following the Series E Issuance at any time or from time to time shall declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, Additional Shares of Common Stock shall be deemed to have been issued:


    (I)                in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or


    (II)                in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective.


If such record date shall have been fixed and such dividend or distribution shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Series E Conversion Price which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series E Conversion Price shall be adjusted pursuant to Section 3.7(c)(iv)(F) as of the time of actual payment of such dividend or distribution.


    (D)                                   Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. If the Corporation shall issue (other than in a stock dividend, stock distribution or subdivision, which shall be governed by clause (F) of this Section 3.7(c)(iv)), after the Series E Issuance, any Additional Shares of Common Stock without consideration or for a consideration per share less than the Series E Conversion Price in effect immediately prior to the issuance of such Additional Shares of Common Stock, the Series E Conversion Price in effect immediately prior to each such issuance shall forthwith be adjusted to a price equal to a price determined by multiplying such Series E Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance (assuming the conversion of all then outstanding shares of Series E Preferred Stock) plus the number of shares of Common Stock that the aggregate consideration received by the Corporation for the issuance of the Additional Shares of Common Stock would purchase at such Series E Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance assuming the conversion of all then outstanding shares of Series E Preferred Stock plus the number of such Additional Shares of Common Stock.


    (E)                     Determination of Consideration. For purposes of this Section 3.7(c)(iv), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:


    (1)                     Cash and Property: Such consideration shall:


    (I)                insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest or accrued dividends;


    (II)                insofar as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith by the Board of Directors; and


    (III)                in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.


    (2)                     Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 3.7(c)(iv)(C)(1), relating to Options and Convertible Securities, shall be determined by dividing (I) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration until such subsequent adjustment occurs) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (II) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number until such subsequent adjustment occurs) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.


    (F)                     Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock.


    (1)                     Stock Dividends, Distributions or Subdivisions. In the event the Corporation shall issue Additional Shares of Common Stock pursuant to Section 3.7(c)(iv)(C)(2) in a stock dividend, stock distribution or subdivision after the Series E Issuance, the Series E Conversion Price in effect immediately prior to such issuance shall, concurrently with the effectiveness of such issuance, be proportionately decreased.


    (2)                     Combinations or Consolidations. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock after the Series E Issuance, the Series E Conversion Price in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased.


    (G)                     Adjustment for Merger or Reorganization. Subject to Section 3.7(b)(iii), in the event of any consolidation or merger of the Corporation with or into another corporation or the conveyance of all or substantially all of the assets of the Corporation to another corporation following the Series E Issuance, each share of Series E Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation then deliverable upon conversion of such share of Series E Preferred Stock would have been entitled upon such consolidation, merger or conveyance. In any such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 3.7(c) with respect to the rights and interest thereafter of the holders of the Series E Preferred Stock to the end that the provisions (including provisions with respect to changes in and other adjustments of the Series E Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the conversion of the Series E Preferred Stock.


    (v)                     No Impairment. The Corporation will not, by amendment of its Certificate of Incorporation (except in accordance with Section 3.7(f)) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3.7(c) and in the taking of all such action as may be necessary or appropriate in order to protect the Series E Conversion Rights of the holders of the Series E Preferred Stock against impairment.


    (vi)                     Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series E Conversion Price pursuant to this Section 3.7(c), the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with these terms and furnish to each holder of Series E Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series E Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustments and readjustments, (B) the Series E Conversion Price at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion of the Series E Preferred Stock.


    (vii)              Notices of Record Date. In the event (A) that the Corporation fixes a record date for the purpose of determining the holders of any Common Stock who are entitled to receive any dividend (other than a cash dividend which is the same on a per share basis as cash dividends paid in previous quarters) or other distribution, or (B) of any subdivision, combination or other capital reorganization of the Corporation, any reclassification or recapitalization of the capital stock of the Corporation, any merger or consolidation of the Corporation, and any transfer of all or substantially all of the assets of the Corporation to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series E Preferred Stock at least 20 days prior to the record or other date specified therein, a notice specifying (1) the record date of such dividend or distribution, or, if a record is not to be taken, the date as of which the stockholders of record to be entitled to such dividend or distribution, are to be determined, or (2) the date on which any such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and the time, if any, that is to be fixed, as to when the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such subdivision, combination, reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up.


    (viii)                     Termination of Dividends. The conversion of any Series E Preferred Stock pursuant to the provisions of this Section 3.7(c) shall terminate the right of the holders thereof to receive, and of the Corporation’s obligation to pay, any and all accrued but undeclared and unpaid dividends with respect to such shares of Series E Preferred Stock then being converted, but shall not extinguish the right to receive any unpaid dividends which have been declared and the record date for which shall have occurred prior to the time such conversion shall be deemed to have been made.


    (ix)                     Waiver of Benefits. The benefits afforded to the holders of Series E Preferred Stock pursuant to this Section 3.7(c) may be waived in writing by the holders of at least a majority of the shares of Series E Preferred Stock then outstanding.


    (d)                     Voting Rights. Subject to the provisions of Section 3.4 of Article III hereof, the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, each holder of outstanding shares of Series E Preferred Stock shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Series E Preferred Stock held by such holder are convertible (as adjusted from time to time pursuant to Section 3.7(c) hereof), as of the record date for each meeting of stockholders of the Corporation(or as of the date of each written action of stockholders in lieu of a meeting), with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration. Except as provided by law or in Section 3.4 of Article III hereof, and subject to the rights of any outstanding Preferred Stock or any then outstanding Undesignated Stock of another class or series, holders of Series E Preferred Stock shall vote together with the holders of all other classes and series of voting stock of the Corporation as a single class.

    (e)               Dividend Rights.

    (i)                      The Corporation shall not declare or pay any distributions (as defined below) on shares of Common Stock until the holders of the Series E Preferred Stock then outstanding shall have first received, or simultaneously receive, a distribution on each outstanding share of Series E Preferred Stock in an amount at least equal to the product of (i) the per share amount, if any, of the dividends or other distributions to be declared, paid or set aside for the Common Stock, multiplied by (ii) the number of whole shares of Common Stock into which such share of Series E Preferred Stock is then convertible.


    (ii)                      For purposes of this Section 3.7(e), unless the context requires otherwise, “distribution” shall mean the transfer of cash or property without consideration, whether by way of dividend or otherwise, in respect of shares of the Corporation payable other than in Common Stock or other securities of the Corporation, or the purchase or redemption of shares of Common Stock of the Corporation (other than (1) repurchases of Common Stock held by employees, officers or directors of, or consultants to, the Corporation upon their death, disability or retirement or upon termination of their employment or services at a price not in excess of the fair market value (as determined in good faith by the Board of Directors of the Corporation) of such shares, (2) repurchases of Common Stock in accordance with the terms of that certain Amended and Restated Investors’ Rights Agreement dated as of May____, 2002 among the Corporation and certain of its shareholders, (3) repurchases or reacquisitions of securities by the Corporation pursuant to that certain Escrow Agreement dated May ____, 2002 entered into by the Corporation in connection with the merger of the Corporation’s subsidiary with Enermetrix.com, Inc., and (4) redemptions in liquidation or dissolution of the Corporation) for cash or property, including any such transfer, purchase or redemption by a subsidiary of this Corporation.


    (f)                     Protective Provisions. So long as any shares of Series E Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law or this Amended and Restated Certificate of Incorporation) of the holders of at least 65% of the shares of Series E Preferred Stock then outstanding:

    (i)                      alter or change the rights, preferences, or privileges or increase or decrease the authorized number of the shares of Series E Preferred Stock; or


    (ii)              authorize or issue any other equity security, or security convertible into or exercisable for any other equity security, having a preference over, or being on a parity with (it being understood that equity securities shall not be deemed to be on a parity with the Series E Preferred Stock solely because such equity securities (including Common Stock) are entitled to participate in dividends or liquidation distributions with the holders of Common Stock), the Series E Preferred Stock with respect to dividends, liquidation or redemption; provided, however, that the approval of the Series E Preferred Stock shall not be required for the sale or issuance of additional shares of Series E Preferred Stock pursuant to the Cinergy Letter Agreement.


    (g)                     Status of Converted Stock. In the event any shares of Series E Preferred Stock shall be converted pursuant to Section 3.7(c) hereof, the shares so converted shall be canceled and shall not be issuable by the Corporation.

ARTICLE IV

        The purpose of this Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.

ARTICLE V

        A director of the Corporation shall not be personally liable to the Corporation or to its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this article shall not eliminate or limit the liability of a director (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) for the unlawful payment of dividends or unlawful stock repurchases under Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which the director derived an improper personal benefit. This article shall not eliminate or limit the liability of a director for any act or omission occurring prior to the effective date of this article. If the Delaware General Corporation Law is hereafter amended to authorize any further limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as amended. Any repeal or modification of the foregoing provisions of this article by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VI

        Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

ARTICLE VII

        Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

ARTICLE VIII

        The Corporation reserves the right to amend, alter change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE IX

        In furtherance, and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, amend, alter, change, add to or repeal bylaws of the Corporation, without any action on the part of the stockholders. The bylaws made by the directors may be amended, changed, added to or repealed by the stockholders. Any specific provision in the bylaws regarding amendment thereof shall be controlling.

        The Corporation has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer,
this _____ day of May, 2002.

  By: /s/ Neal Miller
      Neal Miller, Secretary
EX-99 57 b-436.htm ART OF INCORP CHATTANOOGA DATA LINK CHATTANOOGA DATA LINK INC

ARTICLES OF INCORPORATION

OF

CHATTANOOGA DATA LINK, INC.

1. The name of the corporation is: Chattanooga Data Link, Inc.

2. The number of shares of stock the corporation is authorized to issue is: 1,000

3. The name and complete address of the corporation’s initial registered agent and office located in the state of
Tennessee is: National Registered Agents, Inc., 1900 Church Street, Suite 400, Nashville, TN 37203, Davidson County.

4. List the name and complete address of each incorporator:

    Anthony J. Candelano 8829 Bond Street, Overland Park, KS 66214


5. The complete address of the corporation’s principal office is: 8829 Bond Street, Overland Park, KS 66214.

6. The corporation is for profit.



April 12, 2002 /s/ Anthony J. Candelano
Incorporator's Signature

Anthony J. Candelano
Incorporator's Name
EX-99.2B 58 b-437.htm BYLAWS OF CHATTANOOGA DATA LINK Bylaws of Chattanooga Data Link

BYLAWS

OF

CHATTANOOGA DATA LINK, INC.

      ARTICLE I

      OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Tennessee shall be located in Nashville, Tennessee. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Tennessee as the board of directors may from time to time determine or the business of the corporation may require.

      ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Tennessee, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Tennessee at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Tennessee as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

      ARTICLE IV

      OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

      CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

      ARTICLE VIII

      ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

      ARTICLE IX

      BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Tennessee at such place or places as may from time to time be designated by resolution of the board of directors.

      ARTICLE X

      NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

      ARTICLE XI

      AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.2A 59 b-438.htm A&R ART OF INCORP CATALYTIC SOLUTIONS Catalytic Solutions, Inc.

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

CATALYTIC SOLUTIONS, INC.

a California Corporation

        The undersigned certify that:

1.     They are the President and the Secretary, respectively, of Catalytic Solutions, Inc., a California corporation.

2.     This corporation has determined to authorize additional shares of Common Stock and Preferred Stock and to create a new series of Preferred Stock of this corporation to be designated as Series C Preferred Stock to replace the existing Series C Preferred Stock of this corporation and, in connection therewith, the Articles of Incorporation of this corporation are amended and restated to read as follows:

I

        The name of this corporation is Catalytic Solutions, Inc.

II

        The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code.

III

        This corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which this corporation is authorized to issue is Ten Million (10,000,000) shares, Seven Million Five Hundred Thousand (7,500,000) shares of which shall be Common Stock (the “Common Stock”) and Two Million Five Hundred Thousand (2,500,000) shares of which shall be Preferred Stock (the “Preferred Stock”), each having no par value. The first series of Preferred Stock shall be designated Series A Preferred Stock and shall consist of One Hundred Thousand (100,000) shares (such series of Preferred Stock being sometimes referred to herein as “Series A Preferred”). The second series of Preferred Stock shall be designated Series B Preferred Stock and shall consist of One Hundred Thirty-Nine Thousand (139,000) shares (such series of Preferred Stock being sometimes referred to herein as “Series B Preferred”). The third series of Preferred Stock shall be designated Series C Preferred Stock and shall consist of One Million, Nine Hundred and Thirty Five Thousand (1,935,000) shares (such series of Preferred Stock being sometimes referred to herein as “Series C Preferred”). The relative rights, preferences, privileges and restrictions granted to or imposed upon the Series A Preferred, Series B Preferred and Series C Preferred are as follows (any reference herein below to “Preferred Stock” shall include Series A Preferred, Series B Preferred, Series C Preferred and all additional series of Preferred Stock which may be designated in the future):

1.     Dividend Rights of Preferred Stock.

1.1 Series C Preferred. The holders of the outstanding Series C Preferred shall be entitled to receive, when, as and if declared by the Board of Directors, out of any assets at the time legally available therefor, dividends for each share, payable in cash at a rate per annum equal to 8% of $17.75 per share of Series C Preferred (“Accruing Dividends”). To the extent declared, such dividends shall be payable on a monthly basis, to the holders of record as they appear on the register of this corporation for the shares of Series C Preferred five (5) business days prior to such dividend payment date. Accruing Dividends shall be cumulative and shall accrue monthly from the date of issue, without interest, whether or not such dividends have been declared. Accruing Dividends shall be paid upon (a) any Liquidating Event, (b) any conversion of the Series C Preferred into shares of Common Stock in accordance with Section 3 of these Articles, and (c) any redemption of the Series C Preferred in accordance with Section 7 of these Articles.

1.2 Series A Preferred and Series B Preferred. The holders of the outstanding Series A Preferred and Series B Preferred shall be entitled to receive dividends, payable in preference and priority to any payment of any cash dividend on shares of Common Stock or any other class or series of stock ranking junior to the Series A Preferred and Series B Preferred in respect of dividends, when and as declared by the Board of Directors, out of any assets at the time legally available therefor, in an amount not less than any dividends declared on the Common Stock; provided, however, so long as any shares of Series C Preferred are outstanding, no dividend shall be paid on the Series A Preferred, the Series B Preferred or the Common Stock, without the prior consent of the holders of a majority of the Series C Preferred.

2.     Liquidation Preference.

2.1 In the event of any voluntary or involuntary liquidation, dissolution or winding up of this corporation or a Change of Control as defined in Section 2.6 hereof (together, a “Liquidating Event”), the holders of shares of Series C Preferred then outstanding shall be entitled to be paid out of the assets of this corporation available for distribution to its shareholders, prior to and in preference over holders of Series A Preferred, Series B Preferred, Common Stock or any other class or series of stock ranking junior to the Series C Preferred Stock, by reason of their ownership thereof, in respect of each share of Series C Preferred outstanding, an amount equal to $35.50 per share, plus all accrued but unpaid dividends and all other declared but unpaid dividends thereon (the “Series C Liquidation Preference”), subject to equitable adjustment for any stock splits, stock dividends or the like. If, upon any such Liquidating Event, the remaining assets of this corporation available for distribution to its holders of Series C Preferred shall be insufficient to pay the holders of shares of Series C Preferred the full amount to which they shall be entitled, the holders of shares of Series C Preferred shall share ratably in any distribution of the remaining assets and funds of this corporation in proportion to the respective amounts which would otherwise be payable in respect of such shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

2.2 After payment of the Series C Liquidation Preference, the holders of Series A Preferred and the Series B Preferred then outstanding shall be entitled to be paid out of the assets of this corporation available for distribution to its shareholders, prior to and in preference over holders of Common Stock or any other class or series of stock ranking junior to the Series A Preferred and Series B Preferred, by reason of their ownership thereof, the following: (a) to the holders of Series A Preferred, in respect of each share of Series A Preferred outstanding, an amount equal to $15.00 per share, plus all declared but unpaid dividends thereon (the “Series A Liquidation Preference”) and (b) to the holders of Series B Preferred, in respect of each share of Series B Preferred outstanding, an amount equal to $20.00 per share, plus all declared but unpaid dividends thereon (the “Series B Liquidation Preference”), in each case subject to equitable adjustment for any stock splits, stock dividends or the like. If, upon any such Liquidation Event, the remaining assets of this corporation available for distribution to its holders of Series A Preferred and Series B Preferred shall be insufficient to pay the holders of shares of Series A Preferred and Series B Preferred the full amount to which they shall be entitled, the holders of shares of Series A Preferred and Series B Preferred shall share ratably in any distribution of the remaining assets and funds of this corporation in proportion to the respective amounts which would otherwise be payable in respect of such shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

2.3 After payment of the Series A Liquidation Preference and the Series B Liquidation Preference, the holders of the Common Stock and the holders of the Series C Preferred participating on an as-if-converted basis shall be entitled to share ratably in the remaining assets of the Corporation until the holders of the Series C Preferred have received an aggregate amount (including what was received pursuant to Section 2.1) equal to $44.375 per share in respect of all outstanding shares of Series C Preferred Stock (the “Series C and Common Liquidation Preference”).

2.4 After payment of all preferential amounts required to be paid pursuant to Sections 2.1, 2.2 and 2.3 above, upon a Liquidating Event, all of the remaining assets and funds of this corporation available for distribution to its shareholders shall be distributed to the holders of the Common Stock pro rata based on the number of shares of Common Stock held by each.

2.5 This corporation shall give each holder of Series A Preferred, Series B Preferred and Series C Preferred written notice of an impending Liquidating Event not later than ten (10) days prior to the date set for the closing of such transaction, and shall also notify such holders in writing of the final approval of such transaction. The first of such notices shall describe the material terms and conditions of the impending transaction and the provisions of this Section 2 and this corporation shall thereafter give such holders prompt notice of any material changes in the terms of the transaction or the information supplied in the first notice. The transaction shall in no event take place sooner than ten (10) days after the corporation has given notice of any material changes provided for herein; provided, however, that such periods may be shortened upon the written consent of the holders of 66 2/3% of the shares of each class of Series A Preferred, Series B Preferred and Series C Preferred then outstanding.

2.6 For purposes of this Section, a liquidation, dissolution or winding up of this corporation shall be deemed to include (unless the holders of 66 2/3% of the shares of each class of Series A Preferred, Series B Preferred and Series C Preferred then outstanding, vote otherwise), (a) the merger, consolidation, recapitalization or other reorganization of this corporation into or with another corporation which results in this corporation’s shareholders immediately prior to such transaction not holding (by virtue of such shares or securities issued solely with respect thereto) at least 50% of the voting power of the surviving or continuing entity following such transaction and (b) the sale of all or substantially all of the assets of this corporation (each a “Change of Control”).

3.     Conversion. The holders of the Series A Preferred, Series B Preferred and Series C Preferred shall have conversion rights as follows (the “Conversion Rights”):

3.1 Right to Convert and Automatic Conversion.

3.1.1 (a) Each share of Series A Preferred shall be convertible, at the option of the holder thereof, at any time and from time to time, into one (1) fully paid and nonassessable share of Common Stock (the “Series A Conversion Ratio”). Such initial Series A Conversion Ratio shall be subject to adjustment as provided below.

(b)     Each share of Series B Preferred shall be convertible, at the option of the holder thereof, at any time and from time to time, into one (1) fully paid and nonassessable share of Common Stock (the “Series B Conversion Ratio”). Such initial Series B Conversion Ratio shall be subject to adjustment as provided below.

(c)     Each share of Series C Preferred shall be convertible, at the option of the holder thereof, at any time and from time to time, into one fully paid and nonassessable share of Common Stock (the “Series C Conversion Factor”). Such initial Series C Conversion Factor shall be subject to adjustment as provided below. Upon any conversion of the Series C Preferred into shares of Common Stock pursuant to this Section 3, this corporation shall pay in cash an amount equal to all accrued but unpaid dividends and all other dividends declared but unpaid on the Series C Preferred.

(i)              If this corporation fails to enter into the agreement referred to in Section 8.12 of the Investment Agreement dated as of November 15, 2001, among this corporation and the Investors named therein (the “Investment Agreement”) by January 31, 2002, the Series C Conversion Factor then in effect, including any adjustment made pursuant to Section 3.4, 3.5 or 3.6 of these Articles, shall be adjusted such that the number of shares of Common Stock that shall be issued in exchange for each share of Series C Preferred shall be multiplied by 1.3.

(ii)              If this corporation fails to book revenues and generate a gross margin for the year ended December 31, 2002 in the amounts set forth in Section 8.13 of the Investment Agreement, the Series C Conversion Factor as in effect, including any adjustments made pursuant to subsection (i) above or Section 3.4, 3.5 or 3.6 of these Articles, shall be adjusted such that the number of shares of Common Stock that shall be issued in exchange for each share of Series C Preferred shall be multiplied by 1.25. For purposes of this subsection (ii), revenues shall be determined by using Generally Accepted Accounting Principles.

(iii)              If this corporation enters into (a) the agreement referred to in Section 8.12 of the Investment Agreement by December 31, 2002 and (b) the agreements set forth in Section 8.14 of the Investment Agreement by December 31, 2002, the Series C Conversion Factor as in effect, including any adjustments made pursuant to subsections (i) and/or (ii) above or Section 3.4, 3.5 or 3.6 of these Articles, shall be adjusted such that the number of shares of Common Stock that shall be issued in exchange for each share of Series C Preferred shall be multiplied by .909.

        As used herein, “Conversion Ratio” shall mean the Series A Conversion Ratio, the Series B Conversion Ratio or the Series C Conversion Factor, as applicable in context.

3.1.2 Each share of Series A Preferred, Series B Preferred and Series C Preferred shall automatically be converted into shares of Common Stock at the then effective Conversion Ratio, immediately upon the closing of the offering pursuant to the corporation’s registration statement on Form S-1 (or any other form equivalent thereto) pursuant to which Common Stock is sold to the public by this corporation (or selling shareholders, if any) in an underwritten initial public offering registered under the Securities Act of 1933, as amended, and realizes, aggregate proceeds of not less than $25,000,000 and a per share offering price of not less than $44.375 (subject to equitable adjustment for any stock splits, combinations, consolidations, recapitalizations, reorganizations, reclassifications, stock distributions, stock dividends, or other similar events with respect to such shares) (a “Public Offering”).

3.2 Fractional Shares. If any fractional interest of shares of Common Stock would, except for the provisions of this section 3.2, be deliverable upon any conversion of shares of Preferred Stock, this corporation, in lieu of delivering the fractional share thereof, will pay an amount to the holder thereof equal to the Market Price of such fractional interest as of the date of conversion. The term “Market Price” of any security means the average of the closing prices of such security’s sales on all securities exchanges on which such security may at the time be listed, or, if there has been no sale on any such exchange on any day, the average of the highest bid and lowest asked prices on all such exchanges at the end of such day, or, if on any day such security is not so listed, the average of the closing prices quoted on The Nasdaq Stock Market as of 4:00 P.M., averaged over a period of 21 days consisting of the day as of which Market Price is being determined and the 20 consecutive trading days prior to such day. If at any time such security is not listed on any securities exchange or quoted on The Nasdaq Market, the Market Price will be the fair value thereof, reasonably determined in good faith by the Board of Directors of this corporation.

3.3 Mechanics of Conversion.

3.3.1 In order to convert shares of Preferred Stock into shares of Common Stock, the holder shall surrender the certificate or certificates for shares of Series A Preferred, Series B Preferred or Series C Preferred at the office of the transfer agent (or at the principal office of this corporation if this corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares represented by such certificate or certificates. Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. If required by this corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form reasonably satisfactory to this corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The date of a holder’s conversion notice to this corporation pursuant to Section 3.1.1 of this Article III, or the closing of the Public Offering causing automatic conversion pursuant to Section 3.1.2 of this Article III, shall be the conversion date (the “Conversion Date”). This corporation shall, as soon as practicable after the Conversion Date, issue and deliver at such office to such holder, or to its nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled.

3.3.2 This corporation shall at all times during which the Series A Preferred, Series B Preferred or Series C Preferred shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Series A Preferred, Series B Preferred and Series C Preferred, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series A Preferred, Series B Preferred and Series C Preferred.

3.3.3 Any share of Series A Preferred, Series B Preferred or Series C Preferred which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to any such share, including the rights, if any, to receive dividends and notices and to vote, shall immediately cease and terminate on the Conversion Date, except only the right of the holder thereof to receive shares of Common Stock in exchange therefor. Any shares of Series A Preferred, Series B Preferred or Series C Preferred so converted shall be retired and canceled and shall not be reissued, and this corporation may from time to time take such appropriate action as may be necessary to reduce the number of shares of authorized Series A Preferred, Series B Preferred and Series C Preferred accordingly.

3.3.4 If the conversion is pursuant to Subsection 3.1.2 in connection with a Public Offering, the conversion may at the option of any holder tendering Series A Preferred, Series B Preferred or Series C Preferred for conversion be conditioned upon the closing of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common Stock issuable upon such conversion shall not be deemed to have converted such Series A Preferred, Series B Preferred or Series C Preferred until immediately prior to the closing of the sale of securities.

3.4     Adjustments to Series C Conversion Factor for Diluting Issues.

3.4.1         Special Definitions. For purposes of this Section 3.4, the following definitions shall apply:

  (a) “Original Issue Date” shall mean the date on which the first share of Series C Preferred is first issued.

  (b) “Series C Conversion Price” shall mean $17.75 per share of Common Stock, as such price may be adjusted from time to time pursuant to this Section 3.

  (c) “Permitted Issuance” shall mean all shares of Common Stock issued by this corporation after the Original Issue Date issued or issuable:

  (1) in connection with a Public Offering;

  (2) upon conversion of shares of Preferred Stock or other Convertible Securities (as defined below);

  (3) as dividends or distributions on Preferred Stock or Common Stock;

  (4) to banks, equipment financing companies or equipment lessors (not to exceed in the aggregate more than 169,000 shares of Common Stock);

  (5) in connection with strategic alliances, business contracts or similar transactions approved by no less than six-sevenths of this corporation’s Board of Directors to induce such business partner to use, promote or assist this corporation in the development of its products;

  (6) in connection with a business acquisition by this corporation, whether by merger, consolidation, purchase of assets, sale or exchange of stock or otherwise (not to exceed in the aggregate 5% of the then outstanding equity of this corporation without the prior consent of the holders of at least 66 2/3% of the Series C Preferred); or

  (7) to current or prospective officers, directors or employees of or consultants to this corporation or its affiliates, including the issuance or granting of options or rights to purchase Common Stock to such officers, directors, employees or consultants (not to exceed in the aggregate 7% of the then outstanding equity of this corporation without the prior consent of the holders of at least 66 2/3% of the Series C Preferred).

3.4.2 Adjustment of Series C Conversion Factor and Series C Conversion Price. If and whenever, on or after the Original Issue Date, this corporation issues or sells, or in accordance with Section 3.5 is deemed to have issued or sold, other than pursuant to a Permitted Issuance and other than pursuant to an event for which adjustment is made pursuant to Section 3.6, any shares of Common Stock for a consideration per share less than the Series C Conversion Price in effect immediately prior to such issuance or sale, then immediately upon such issuance or sale (i) the Series C Conversion Price shall be reduced to a price equal to the consideration per share of Common Stock in such issuance or sale and (ii) the Series C Conversion Factor shall be increased to equal the amount determined by multiplying the Series C Conversion Factor in effect immediately prior to such issuance or sale by a fraction, the numerator of which is the Series C Conversion Price in effect immediately prior to such issuance or sale and the denominator is the Series C Conversion Price in effect immediately after such issuance or sale (as calculated pursuant to clause (i) above).

3.5 Effect on Series C Conversion Factor and Series C Conversion Price of Certain Events. For purposes of determining the adjusted Series C Conversion Factor and Series C Conversion Price under Section 3.4.2, the following shall be applicable:

(a) Issuance of Rights or Options. If this corporation in any manner grants any rights or options (other than pursuant to a Permitted Issuance and other than pursuant to an event for which adjustment is made pursuant to Section 3.6) to subscribe for or to purchase Common Stock or any stock or other securities convertible into or exchangeable for Common Stock (including without limitation convertible common stock) (such rights or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”) and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities is less than the Series C Conversion Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to be outstanding and to have been issued and sold by this corporation for such price per share. For purposes of this paragraph, the “price per share for which Common Stock is issuable upon exercise of such Options or upon conversion or exchange of such Convertible Securities” is determined by dividing (x) the total amount, if any, received or receivable by this corporation as consideration for the granting of all such Options, plus the minimum aggregate amount of additional consideration payable to this corporation upon the exercise of all such Options, plus in the case of such Options that relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to this corporation upon the issuance or sale of all such Convertible Securities and the conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon exercise of all such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options. No further adjustment of the Series C Conversion Factor and Series C Conversion Price shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities.

(b) Issuance of Convertible Securities. If this corporation in any manner issues or sells any Convertible Securities (other than pursuant to a Permitted Issuance and other than pursuant to an event for which adjustment is made pursuant to Section 3.6) and the price per share for which Common Stock is issuable upon such conversion or exchange is less than the Series C Conversion Price in effect immediately prior to the issuance or sale of such Convertible Securities, then the maximum number of shares of Common Stock issuable upon conversion or exchange of such Convertible Securities shall be deemed to be outstanding and to have been issued and sold by this corporation for such price per share. For the purposes of this paragraph, the “price per share for which Common Stock is issuable upon such conversion or exchange” is determined by dividing (x) the total amount received or receivable by this corporation as consideration for the issuance or sale of all such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to this corporation upon the conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment of the Series C Conversion Factor and Series C Conversion Price shall be made upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities, and, if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustments of the Series C Conversion Factor and Series C Conversion Price have been or are to be made pursuant to other provisions of Section 3.5(a), no further adjustment of the Series C Conversion Factor and Series C Conversion Price shall be made by reason of such issuance or sale.

(c) Change in Option Price or Series C Conversion Factor. If the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion or exchange of any Convertible Securities or the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock changes at any time, the Series C Conversion Factor in effect at the time of such change shall be readjusted to the Series C Conversion Factor which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold and the Series C Conversion Price shall be correspondingly readjusted.

(d) Treatment of Expired Options and Unexercised Convertible Securities. Upon the expiration of any Option or the termination of any right to convert or exchange any Convertible Securities, in either case, without the exercise of such Option or right, the Series C Conversion Factor and Series C Conversion Price then in effect shall be adjusted to the Series C Conversion Factor and Series C Conversion Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Securities, to the extent not exercised in full and outstanding immediately prior to such expiration or termination, never been issued.

(e) Calculation of Consideration Received. If any Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the amount paid therefor. In case any Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of the consideration other than cash received by this corporation shall be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration received by this corporation shall be the fair market value thereof as of the date of receipt. In case any Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which this corporation is the surviving entity, the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or marketable securities shall be determined in good faith by this corporation and approved by either (i) the directors nominated by the holders of Series C Preferred Stock pursuant to Section 4.2 below or (ii) the holders of a majority of the Series C Preferred Stock then outstanding. If such parties are unable to reach agreement within a reasonable period of time, such fair value shall be determined in good faith by an appraiser selected by this corporation and approved by either (i) the directors nominated by the holders of Series C Preferred Stock pursuant to Section 4.2 below or (ii) the holders of a majority of the Series C Preferred Stock then outstanding whose determination shall be final and binding on this corporation and all holders of the Series C Preferred Stock. The fees and expenses of such appraiser shall be paid by this corporation.

(f) Record Date. If this corporation takes a record of the holders of Common Stock for the purpose of entitling them (i) to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or (ii) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

3.6 Adjustment for Stock Splits, Dividends and Combinations. If this corporation shall at any time or from time to time after the Original Issue Date effect a subdivision of the outstanding Common Stock or shall issue a dividend in Common Stock on its outstanding Common Stock, the Conversion Ratio then in effect immediately before that subdivision shall be proportionately increased. If this corporation shall at any time or from time to time after the Original Issue Date combine the outstanding shares of Common Stock into a lesser number of shares of Common Stock, the Conversion Ratio then in effect immediately before the combination shall be proportionately decreased. Any adjustment under this paragraph shall become effective at the close of business on the date the subdivision or combination becomes effective.

3.7 Adjustments for Other Dividends and Distributions. In the event this corporation at any time or from time to time after the Original Issue Date shall make or issue a dividend or other distribution payable in securities of this corporation other than shares of Common Stock, then and in each such event provision shall be made so that the holders of shares of the Series A Preferred, Series B Preferred and Series C Preferred shall receive upon conversion thereof, in addition to the number of shares of Common Stock receivable thereupon, the amount of securities of this corporation that they would have received had their Series A Preferred, Series B Preferred and Series C Preferred been converted into Common Stock on the date of such event and had thereafter, during the period from the date of such event to and including the conversion date, retained such securities receivable by them as aforesaid during such period giving application to all adjustments called for during such period, under this paragraph with respect to the rights of the holders of the Series A Preferred, Series B Preferred and Series C Preferred.

3.8 No Impairment. This corporation will not, by amendment of its Amended and Restated Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by this corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of the Series A Preferred, Series B Preferred and Series C Preferred against impairment.

3.9 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Ratio pursuant to this Section 3, this corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder, if any, of Series A Preferred, Series B Preferred and Series C Preferred a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based and shall file a copy of such certificate with its corporate records. This corporation shall, upon the written request at any time of any holder of Series A Preferred, Series B Preferred or Series C Preferred, furnish or cause to be furnished to such holder a similar certificate setting forth (1) such adjustments and readjustments, (2) the Conversion Ratio then in effect and (3) the number of shares of Common Stock and the amount, if any, of other property which then would be received upon the conversion of such Preferred Stock. Despite such adjustment or readjustment, the form of each certification or all certificates for Series A Preferred, Series B Preferred and Series C Preferred, if the same shall reflect the initial or any subsequent Conversion Ratio, need not be changed in order for the adjustments or readjustments to be valued in accordance with the provisions of these Amended and Restated Articles of Incorporation, which shall control.

3.10 Notice of Record Date. In the event:

  (i) that this corporation declares a dividend (or any other distribution) on its Common Stock payable in Common Stock or other securities of this corporation;

  (ii) that this corporation subdivides or combines its outstanding shares of Common Stock;

  (iii) of any reclassification of the Common Stock of this corporation (other than a subdivision or combination of its outstanding shares of Common Stock or a stock dividend or stock distribution thereon), or of any consolidation or merger of this corporation into or with another corporation, or of the sale of all or substantially all of the assets of this corporation; or

  (iv) of the involuntary or voluntary dissolution, liquidation or winding up of this corporation;

then this corporation shall cause to be filed at its principal office or at the office of the transfer agent for the Series A Preferred, Series B Preferred and Series C Preferred, and shall cause to be mailed to the holders of the Series A Preferred, Series B Preferred and Series C Preferred at their last addresses as shown on the records of this corporation or such transfer agent, at least 10 days prior to the record date specified in (A) below or 20 days before the date specified in (B) below, a notice stating: (A) the record date of such dividend, distribution, subdivision or combination, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, subdivision or combination are to be determined, or (B) the date on which such reclassification, consolidation, merger, sale, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, dissolution, liquidation or winding up.

3.11 Payment of Taxes. The corporation shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of Common Stock on conversion of the Series A Preferred, Series B Preferred or Series C Preferred pursuant hereto. This corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of Common Stock in a name other than that in which the Series A Preferred, Series B Preferred or Series C Preferred so converted was registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to this corporation the amount of any such tax payable by this corporation.

4.     Voting Rights.

4.1 Voting Rights Generally. Except as otherwise provided herein or required by law, each holder of shares of Preferred Stock shall be entitled to the number of votes equal to the whole number of shares of Common Stock into which such holder’s shares of Preferred Stock could be converted on the record date for the vote or consent of shareholders, voting together as a single class. Such holders of Preferred Stock shall have voting rights and powers equal to the voting rights and powers of the Common Stock, and shall be entitled to notice of any shareholders’ meeting in accordance with the Bylaws of this corporation and shall vote with holders of the Common Stock upon any matters submitted to a vote of shareholders, except those matters required by law to be submitted to a class vote and except as otherwise provided in Section 7.

4.2 Election of Directors. The number of directors of this corporation shall be set in accordance with this corporation’s Bylaws. For so long as 680,000 shares of Series C Preferred are outstanding, the holders of the Series C Preferred shall be entitled, voting separately as a class, to elect two directors of this corporation at each annual election of directors. All remaining directors of this corporation shall be elected by the holders of Common Stock and the Preferred Stock, voting together as a class. In the case of any vacancy (other than a vacancy caused by removal by vote of the shareholders in accordance with applicable law) in the office of a director occurring among the directors elected by the holders of a class of stock (if any) pursuant to this Section 4.2, the remaining directors so elected by that class may, by affirmative vote of a majority thereof (or the remaining director so elected if there be but one, or if there are no such directors remaining, by the affirmative vote of the holders of a majority of the shares of that class), elect a successor or successors to hold office for the unexpired term of the director or directors whose place or places shall be vacant. Any director who shall have been elected by the holders of a class of stock (if any) or by any directors so elected as provided in the immediately preceding sentence hereof may be removed during the aforesaid term of office, either with or without cause, by, and only by, the affirmative vote of the holders of the shares of the class of stock entitled to elect such director or directors, given either at a special meeting of such shareholders duly called for that purpose or pursuant to a written consent of shareholders, and any vacancy thereby created may be filled by the holders of that class of stock represented at a meeting or pursuant to written consent.

5.     Series A Pre-Emptive Right.

5.1 Grant. This corporation hereby grants to each holder of shares of Series A Preferred Stock the preemptive right to purchase, on the same terms and conditions and for the same price as the New Securities (as defined below) are issued to other persons by this corporation, that portion of any New Securities which is equal to the product obtained by multiplying (i) the total number of New Securities to be issued by (ii) the quotient obtained by dividing (x) the total number of shares of Series A Preferred Stock held of record by the shareholder by (y) the total number of shares of Common Stock and Preferred Stock of this corporation then outstanding. For purposes of calculating the portion of the New Securities which may be purchased by the holders of shares of Series A Preferred Stock under this Section 5, it shall be assumed that all outstanding shares of Preferred Stock have been converted into Common Stock of this corporation. However, no actual conversion of Series A Preferred Stock to Common Stock shall occur except in accordance with Section 3.

5.2 Notice. This corporation shall give to each holder of shares of Series A Preferred Stock written notice of the proposed sale and issuance of any New Securities, which written notice shall contain the terms of such proposed sale and issuance in reasonable detail. This corporation may deliver such notice to the shareholder either (a) at least 60 days prior to the first date on which such New Securities are proposed to be sold and issued to any third party or (b) not more than thirty (30) days after the date on which this corporation closes the last sale of the New Securities to any third party. If this corporation elects to deliver the notice after its sale of the New Securities to any third party, this corporation shall insure that the agreements with such third parties confirm this corporation’s right to sell the New Securities to the holders of shares of Series A Preferred Stock under this Section 5 and to sell such New Securities to such holders free of any preemptive rights of such parties. Each shareholder shall have the right to exercise the right granted under this Section 5 by giving written notice thereof to this corporation within 20 days after this corporation’s delivery of the notice, specifying the amount of New Securities which the shareholder desires to purchase. In the event the shareholder does not give notice of exercise within such 20-day period, this corporation may sell and issue the New Securities without regard to the shareholder’s rights under this Section 5; provided that the failure of the shareholder to exercise the right to purchase with respect to any particular sale and issuance of New Securities shall not affect the shareholder’s right to purchase New Securities in any subsequent sale and issuance by this corporation.

5.3 New Securities. The term “New Securities” as used in this Section 5 means any shares of Common Stock or any rights, options, warrants or other securities exercisable or exchangeable for or convertible into shares of Common Stock which this corporation intends to offer, sell or issue after the date of first issuance of any shares of Series A Preferred Stock, except for such securities which are:

  (a) exchanged for the securities of another corporation or other business entity as a result of a merger or consolidation whereby this corporation or any wholly-owned subsidiary of this corporation is the surviving corporation;

  (b) issued to another corporation or other business entity in exchange for all or substantially all of the assets of such corporation or entity;

  (c) issued to the shareholders of another corporation or the equity participants in another business entity in exchange for eighty percent (80%) or more of the outstanding equity securities of such corporation or entity;

  (d) securities representing or convertible into or exercisable for shares of Common Stock issued to fulfill any obligation of this corporation under any existing or future stock option, warrant or bonus or other incentive arrangement or plan for the benefit of the employees, consultants or directors of this corporation implemented for the purpose of inducing them to join, remain with or assist this corporation or its Board of Directors or any securities issued in satisfaction of such obligations;

  (e) shares subject to the Corporation’s sale and issuance of any shares of capital stock or other securities in an underwritten initial public offering registered under the Securities Act of 1933, as amended, and realizes aggregate proceeds of not less than $25,000,000;

  (f) warrants and options to purchase shares of Common Stock of this corporation issued in connection with any transaction the principal purposes of which is (i) the borrowing of funds in exchange for its issuance of non-convertible promissory notes or similar instruments, (ii) the leasing of equipment or acquisition of equipment, goods or services, or (iii) any other financing transaction in which this corporation does not issue any securities, other than such warrants and options, which are exchangeable for or convertible into equity securities; or

  (g) issued upon the exercise of any conversion, warrant or option rights whether presently or hereafter outstanding.

        This corporation may impose any conditions on any sale and issuance of New Securities to which the right granted by Section 5.1 above applies which this corporation reasonably believes are necessary to assure compliance with applicable federal and state securities laws, including, without limitation, requiring that all purchasers and offerees of the New Securities be “accredited investors” (as defined in Regulation D promulgated under the Securities Act).

5.4 Limitation. Notwithstanding anything in these Articles of Incorporation to the contrary, no holder of shares of Series A Preferred Stock shall have a preemptive right to participate in any sale and issuance of any New Securities by this corporation if: (a) this corporation’s sale and issuance of the New Securities to the shareholder would not comply with all applicable federal and state securities laws, other than as a result of a voluntary act by this corporation which can be brought into compliance without undue expense to this corporation; or (b) the shareholder fails to comply with any terms and conditions of its participation which are reasonably imposed by this corporation and which apply generally to all persons participating in the sale and issuance of such New Securities.

5.5 Termination. The pre-emptive right granted under this Section 5 shall terminate on the effective date of the first to occur of the following:

  (a) the effective date of any offering by this corporation of its equity securities to the public pursuant to an effective registration statement under the Securities Act in which the aggregate price paid by the public for the shares shall be at least Twenty-Five Million Dollars ($25,000,000); provided that such an offering shall not include an offering of this corporation’s equity securities made in connection with a business acquisition or combination or an employee benefit plan;

  (b) the closing of the sale of all or substantially all of the assets and business of this corporation in substantially a single transaction; provided that the transfer of all or any part of the assets of this corporation to another corporation in which this corporation owns, immediately after such transfer, eighty percent (80%) or more of the outstanding voting securities of such other corporation shall not be considered a transaction described in this clause (b);

  (c) the consummation of the merger or consolidation of this corporation with and into another corporation or another reorganization transaction as a result of which this corporation is not the surviving corporation; provided that the merger or consolidation of this corporation with or into another corporation primarily for purposes of the re-domiciling of this corporation in another state and immediately after which the shareholders of this corporation own eighty percent (80%) or more of the outstanding voting securities of the surviving corporation shall not be considered a transaction described in this clause (c); and

  (d) the acquisition of any voting securities of this corporation by any person (as that term is used for purposes of Section 13(d) or Section 14(d) of the Exchange Act), immediately after which such person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of the combined voting power of this corporation’s then outstanding voting securities.

6. Protective Provisions.

6.1 Except as otherwise required by law, this corporation shall not, without the vote or written consent by the holders of at least a majority of the outstanding shares of any series of Preferred Stock, take any action that alters or changes the rights, preferences or privileges of such series of Preferred Stock or increases the authorized number of shares of such series of Preferred Stock.

6.2 Except as otherwise required by law, so long as 680,000 shares of Series C Preferred are outstanding, subject to equitable adjustment for any stock splits, stock dividends or the like, this corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the outstanding shares of Series C Preferred, do any of the following:

  (a) redeem or repurchase any outstanding shares of Common Stock or Preferred Stock, or securities convertible or exchangeable into, or exercisable for, Common Stock or Preferred Stock, other than (i) pursuant to agreements between this corporation and any of its employees providing this corporation with the right of such repurchase at original cost upon any termination of employment or (ii) the redemption of the Series C Preferred pursuant to Section 7 of this Article III.

  (b) authorize, create or issue any new or existing shares of any class or classes or series of capital stock having any preference or priority as to dividends or amounts distributable upon dissolution, liquidation or winding up of this corporation superior to or on a parity with any such preference or priority of the Series C Preferred, or authorize or issue any shares of stock of any class or any bonds, debentures, notes or other obligations convertible into or exercisable or exchangeable for, or having option rights to purchase, any shares of stock of this corporation having any preference or priority as to dividends or amounts distributable upon dissolution, liquidation or winding up of this corporation superior to or on a parity with any such preference or priority of the Series C Preferred;

  (c) reclassify any Common Stock into shares having any preference or priority as to dividends or amounts distributable upon dissolution, liquidation or winding up of this corporation superior to or on a parity with any such preference or priority of the Preferred Stock;

  (d) amend or repeal any provision of, or add any provision to, this corporation’s Amended and Restated Articles of Incorporation or Bylaws;

  (e) effect any Liquidating Event or Change of Control;

  (f) dissolve or liquidate this corporation pursuant to Section 7 of the Bankruptcy Code;

  (g) increase or decrease the authorized number of directors constituting the Board of Directors or changing the requirements for a director; or

  (h) declare a dividend or extraordinary dividend with regard to any security.

7. Redemption.

7.1 Redemption Rights Generally. On July 31, 2005 (the “First Redemption Date”), upon the consent of the holders of 66 2/3% of the then outstanding Series C Preferred (the “Requesting Investors”), this corporation shall redeem, in the manner and with the effect provided in Sections 7.2 through 7.4, (i) 33 1/3% of the shares of the Series C Preferred which shall then be outstanding; (ii) on July 31, 2006 (the “Second Redemption Date”), 50% of the shares of the Series C Preferred which shall then be outstanding; and (iii) on July 31, 2007 (the “Third Redemption Date”), 100% of the shares of the Series C Preferred which shall then be outstanding. Each of the First Redemption Date, the Second Redemption Date and the Third Redemption Date is hereinafter referred to as the “Redemption Date”.

7.2 Redemption Price. The Series C Preferred to be redeemed on the Redemption Date shall be redeemed by paying for each share (the “Redemption Price”) the sum of (a) $17.75 and (b) an amount equal to all dividends accrued but unpaid thereon up to the Redemption Date and all other dividends declared but unpaid thereon.

7.3 Redemption Procedures. Not less than 60 days before the First Redemption Date, the Requesting Investors shall give written notice to this corporation of their desire for this corporation to redeem the Series C Preferred. Not less than 30 days before the Redemption Date, written notice shall be made to the holders of record of the Series C Preferred Stock to be redeemed, specifying the number of shares to be redeemed, the Redemption Price and the place and date of such redemption, which date shall not be a day on which banks in California are required or authorized to close. If such notice of redemption shall have been duly given and if on or before such Redemption Date the funds necessary for redemption shall have been set aside so as to be and continue to be available therefor, then notwithstanding that any certificate for shares of Series C Preferred to be redeemed shall not have been surrendered for cancellation, after the close of business on such Redemption Date, the shares so called for redemption shall no longer be deemed outstanding, the dividends thereon shall cease to accrue, and all rights with respect to such shares shall forthwith after the close of business on the Redemption Date, cease, except only the right of the holders thereof to receive, upon presentation of the certificate representing shares so called for redemption, the Redemption Price therefor, without interest thereon.

In the case of the redemption, for any reason, of only a part of the outstanding shares of the Series C Preferred Stock on a Redemption Date, all shares of Series C Preferred Stock to be redeemed shall be selected pro rata, and there shall be so redeemed from each registered holder, that proportion of all the shares to be redeemed which the number of shares held of record by such holder bears to the total number of Series C Preferred Stock at the time outstanding.

7.4 Redeemed Shares to be Retired. Any shares of Series C Preferred redeemed pursuant to this Section 6 shall be permanently retired and shall not under any circumstances be reissued; and this corporation may from time to time take such appropriate corporate action as may be necessary to reduce the number of authorized shares of Series C Preferred accordingly.

8.     Notices. Any notice required by the provisions of these Amended and Restated Articles of Incorporation, except as otherwise specifically provided herein, to be given to the holders of shares of Series A Preferred, Series B Preferred or Series C Preferred shall be in writing and may be delivered by personal service or sent by telecopier, e-mail, telegraph or cable or sent by first class mail, return receipt requested, with postage thereon fully prepaid. All such communications shall be addressed to each holder of record at its address appearing on the books of this corporation. If sent by telecopier, e-mail, telegraph or cable, a confirming copy of such notice shall be contemporaneously sent by mail (in the manner provided above) to the holders. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as shown by the addressee’s delivery receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time.

IV

        The liability of the directors of this corporation for monetary damages shall be eliminated to the fullest extent permissible under California law.

V

        This corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code) through bylaw provisions, agreements with agents, vote of shareholders or disinterested directors or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject only to the applicable limits set forth in Section 204 of the California Corporations Code with respect to actions for breach of duty to the corporation and its shareholders.

3.     The foregoing amendment and restatement of these Articles of Incorporation has been duly approved by the Board of Directors.

4.     The foregoing amendment and restatement of these Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the California Corporations Code. The total number of outstanding shares of this corporation is 1,162,487 shares of Common Stock, 100,000 shares of Series A Preferred Stock, 139,000 shares of Series B Preferred Stock and zero shares of Series C Preferred Stock. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was (a) more than 50% of the outstanding shares of Common Stock, Series A Preferred Stock and Series B Preferred Stock voting together, (b) more than 50% of the outstanding shares of Common Stock voting as a class and (c) more than 50% of the outstanding shares of Series A Preferred Stock and Series B Preferred Stock voting together as a class.

(Remainder of Page Intentionally Left Blank)

We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.

DATE: November __, 2001  
   
  Daniel P. McGuire, President
   
  Stephen J. Golden, Secretary
EX-99.2A 60 b-439.htm ART OF INCORP TELECOMM NETWORKS-IN Cinergy Telecommunication Network - Indiana, Inc.

RESTATEMENT OF ARTICLES OF INCORPORATION

OF

Cinergy Telecommunication Networks — Indiana, Inc.

        The undersigned, desiring to form a corporation (hereinafter referred to as “Corporation”) pursuant to the provisions of the Indiana Business Corporation Law as amended, executes the following Articles of Incorporation:

  FIRST: The name of the Corporation and the address of the principal office is:

Cinergy Telecommunication Networks — Indiana, Inc.

139 E. Fourth Street, Cincinnati, OH 45202

        SECOND: The name and street address of the Corporation’s Registered Agent and Registered Office for service of process are:

The Corporation Trust Company

One North Capital Avenue, Indianapolis, Indiana 46204.

        THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Indiana Business Corporation Law.

        FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is five hundred (500) shares of common stock, without par value.

        FIFTH: The name and mailing address of the incorporator is Richard G. Beach, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202.

        SIXTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 23-1-35-4 of the Indiana Business Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Indiana Business Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Indiana Business Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification.

        SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws.

        EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws.

        WITNESS my signature this 5th day of January, 2000.

  /s/Richard G. Beach
Richard G. Beach
Sole Incorporator
EX-99.2B 61 b-440.htm BYLAWS TELECOM NETWORKS-IN By-Laws Cinergy Telecommunication Networks - Indiana

BY-LAWS

OF

Cinergy Telecommunication Networks — Indiana, Inc.

January 7, 2000

TABLE OF CONTENTS
ARTICLE I
Offices
  Section 1.1. Offices. 1

ARTICLE II
Stockholders' Meetings
Section 2.1.
Section 2.2.
Section 2.3.
Section 2.4.
Section 2.5.
Section 2.6.
Section 2.7.
Section 2.8. 		Annual Meeting.
Notice of Annual Meeting.
Special Meetings.
Notice of Special Meeting.
Waiver of Notice.
Quorum.
Voting.
Written Consent of Stockholders in Lieu of Meeting. 		1
1
1
1
2
2
2
2

ARTICLE III
Directors
  Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
Section 3.8.
Section 3.9.
Section 3.10. 		Duties and Powers.
Number and Election of Directors.
Vacancies.
Meetings.
Quorum.
Actions of Board.
Meetings by Means of Conference Telephone.
Committees.
Compensation
Contracts and Transactions Involving Directors 		3
3
3
3
3
4
4
4
4
4

ARTICLE IV
Officers
  Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7(a).
Section 4.7(b).
Section 4.8.
Section 4.9.
Section 4.10. 		Officers.
Appointment, Terms, and Vacancies.
Chairman of the Board.
Chief Executive Officer
President.
Vice Presidents.
Secretary.
Assistant Secretaries.
Treasurer.
Comptroller.
Other Officers. 		5
5
5
5
6
6
6
6
7
7
7

ARTICLE V
Capital Stock
  Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6. 		Form and Execution of Certificates.
Signatures.
Lost Certificates.
Transfers.
Record Date.
Beneficial Ownership Rights. 		7
8
8
8
8
8

ARTICLE VI
Notices
  Section 6.1.
Section 6.2. 		Notices.
Waivers of Notice. 		9
9

ARTICLE VII
General Provisions
  Section 7.1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5. 		Dividends.
Disbursements.
Voting Securities Owned by the Corporation.
Fiscal Year.
Corporate Seal. 		 9
 9
 9
10
10

ARTICLE VIII
Indemnification
  Section 8.1.
             
Section 8.2.
             
Section 8.3.
Section 8.4.
Section 8.5.
Section 8.6.
Section 8.7.
Section 8.8.
Section 8.9.
Section 8.10.
Section 8.11.
Section 8.12. 		Power to Indemnify in Actions, Suits or Proceedings
    Other than Those By or in the Right of the Corporation.
Power to Indemnify in Actions, Suits or Proceedings
By or in the Right of the Corporation.
Authorization of Indemnification.
Good Faith Defined.
Indemnification by a Court.
Expenses Payable in Advance.
Nonexclusivity of Indemnification and Advancement of Expenses.
Insurance.
Certain Definitions.
Survival of Indemnification and Advancement of Expenses.
Limitation on Indemnification.
Indemnification of Employees and Agents. 		10

10
11
11
12
12
12
12
13
13
13
13

ARTICLE IX
Amendments
  Section 9.1. Amendments. 14

ARTICLE X
Emergency By-Laws
  Section 10.1. Emergency By-Laws. 14

By-Laws

Of

Cinergy Telecommunication Networks — Indiana, Inc.

(hereinafter called the “Corporation”)

ARTICLE I

Offices

        Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require.

ARTICLE II

Stockholders’ Meetings

        Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting.

        Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting.

        Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call.

        Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting.

        Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof.

        Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum.

        If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called.

        Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein.

        Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute.

        At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares.

        Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein.

ARTICLE III

Directors

        Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders.

        Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute.

        Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal.

        Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours’ notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

        Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

        Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date.

        Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a 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 pursuant to this Section 3.7 shall constitute presence in person at such meeting.

        Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.

        Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting.

        Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

ARTICLE IV

Officers

        Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By-Laws.

        Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

        Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board’s direction and control, be the board’s representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation.

        Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer.

        Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation.

        Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President.

        Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be.

        Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary.

        Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President.

        Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President.

        Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers.

ARTICLE V

Capital Stock

        Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation’s books.

        Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue.

        Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

        Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued.

        Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

        Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute.

ARTICLE VI

Notices

        Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable.

        Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VII

General Provisions

        Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

        Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

        Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation 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 Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

        Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year.

        Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words “Corporate Seal” and “Indiana”, and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

ARTICLE VIII

Indemnification

        Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful.

        Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

        Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case.

        Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts’ discretion) in which such action or suit was brought to review the reasonableness of such determination.

        Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be.

        Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Indiana for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

        Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII.

        Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Indiana, or otherwise.

        Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII.

        Section 8.9. Certain Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation”, as referred to in this Article VIII.

        Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

        Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.

        The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding.

        Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation.

ARTICLE IX

Amendments

        Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute.

ARTICLE X

Emergency By-Laws

        Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency.

        During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting.

        No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct.

        These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation.

EX-99 62 b-441.htm REGULATIONS TELECOM NETWORKS-OH Cinergy Telecommunication Networks - Ohio

REGULATIONS

OF

Cinergy Telecommunication

Networks — Ohio, Inc.

January 6, 2000

TABLE OF CONTENTS

ARTICLE I
Offices
  Section 1.1. Offices. 1

ARTICLE II
Stockholders' Meetings
  Section 2.1.
Section 2.2.
Section 2.3.
Section 2.4.
Section 2.5.
Section 2.6.
Section 2.7.
Section 2.8. 		Annual Meeting.
Notice of Annual Meeting.
Special Meetings.
Notice of Special Meeting.
Waiver of Notice.
Quorum.
Voting.
Written Consent of Stockholders in Lieu of Meeting. 		1
1
1
1
2
2
2
2

ARTICLE III
Directors
  Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
Section 3.8.
Section 3.9.
Section 3.10. 		Duties and Powers.
Number and Election of Directors.
Vacancies.
Meetings.
Quorum.
Actions of Board.
Meetings by Means of Conference Telephone.
Committees.
Compensation
Contracts and Transactions Involving Directors 		3
3
3
3
3
4
4
4
4
4

ARTICLE IV
Officers
  Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7(a).
Section 4.7(b).
Section 4.8.
Section 4.9.
Section 4.10. 		Officers.
Appointment, Terms, and Vacancies.
Chairman of the Board.
Chief Executive Officer
President.
Vice Presidents.
Secretary.
Assistant Secretaries.
Treasurer.
Comptroller.
Other Officers. 		5
5
5
5
6
6
6
6
7
7
7

ARTICLE V
Capital Stock
  Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6. 		Form and Execution of Certificates.
Signatures.
Lost Certificates.
Transfers.
Record Date.
Beneficial Ownership Rights. 		7
8
8
8
8
8

ARTICLE VI
Notices
  Section 6.1.
Section 6.2. 		Notices.
Waivers of Notice. 		9
9

ARTICLE VII
General Provisions
  Section 7.1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5. 		Dividends.
Disbursements.
Voting Securities Owned by the Corporation.
Fiscal Year.
Corporate Seal. 		 9
 9
 9
10
10

ARTICLE VIII
Indemnification
  Section 8.1.
             
Section 8.2.
             
Section 8.3.
Section 8.4.
Section 8.5.
Section 8.6.
Section 8.7.
Section 8.8.
Section 8.9.
Section 8.10.
Section 8.11.
Section 8.12. 		Power to Indemnify in Actions, Suits or Proceedings
  Other than Those By or in the Right of the Corporation.
Power to Indemnify in Actions, Suits or Proceedings
By or in the Right of the Corporation.
Authorization of Indemnification.
Good Faith Defined.
Indemnification by a Court.
Expenses Payable in Advance.
Nonexclusivity of Indemnification and Advancement of Expenses.
Insurance.
Certain Definitions.
Survival of Indemnification and Advancement of Expenses.
Limitation on Indemnification.
Indemnification of Employees and Agents. 		10

10
11
11
12
12
12
12
13
13
13
13

ARTICLE IX
Amendments
  Section 9.1. Amendments. 14

ARTICLE X
Emergency Regulations
  Section 10.1. Emergency Regulations. 14

Regulations

Of

Cinergy Telecommunication Networks — Ohio, Inc.

(hereinafter called the “Corporation”)

ARTICLE I

Offices

        Section 1.1. Offices. To the extent not otherwise provided in the Articles of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require.

ARTICLE II

Stockholders’ Meetings

        Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting.

        Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting.

        Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call.

        Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting.

        Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof.

        Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum.

        If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called.

        Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Articles of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein.

        Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute.

        At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares.

        Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Articles of Incorporation, or these Regulations, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein.

ARTICLE III

Directors

        Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Articles of Incorporation, or these Regulations, directed or required to be exercised or done by the stockholders.

        Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these Regulations, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute.

        Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal.

        Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours’ notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

        Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Articles of Incorporation or these Regulations, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

        Section 3.6. Actions of Board. Unless otherwise provided by the Articles of Incorporation of the Corporation or these Regulations, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date.

        Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Articles of Incorporation of the Corporation or these Regulations, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a 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 pursuant to this Section 3.7 shall constitute presence in person at such meeting.

        Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.

        Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting.

        Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

ARTICLE IV

Officers

        Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Articles of Incorporation, or these Regulations.

        Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

        Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board’s direction and control, be the board’s representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation.

        Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer.

        Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation.

        Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President.

        Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be.

        Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary.

        Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President.

        Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President.

        Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers.

ARTICLE V

Capital Stock

        Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Articles of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation’s books.

        Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue.

        Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

        Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these Regulations. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued.

        Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

        Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute.

ARTICLE VI

Notices

        Section 6.1. Notices. Whenever written notice is required by statute, the Articles of Incorporation, or these Regulations to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable.

        Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Articles of Incorporation, or these Regulations to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VII

General Provisions

        Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Articles of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

        Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

        Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation 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 Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

        Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year.

        Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words “Corporate Seal” and “Kentucky”, and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

ARTICLE VIII

Indemnification

        Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful.

        Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

        Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case.

Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts’ discretion) in which such action or suit was brought to review the reasonableness of such determination.

        Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be.

        Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the Commonwealth of Kentucky for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

        Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII.

        Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these Regulations, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the Commonwealth of Kentucky, or otherwise.

        Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII.

        Section 8.9. Certain Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation”, as referred to in this Article VIII.

        Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

        Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.

        The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding.

        Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation.

ARTICLE IX

Amendments

        Section 9.1. Amendments. These Regulations may be altered, amended or repealed, in whole or in part, or new Regulations may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute.

ARTICLE X

Emergency Regulations

        Section 10.1. Emergency Regulations. The Emergency Regulations shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding Regulations, in the Articles of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the Regulations of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency Regulations shall cease to be operative. Any amendments to these Emergency Regulations may make any further or different provision that may be practical and necessary for the circumstance of the emergency.

        During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting.

        No officer, director or employee acting in accordance with any provision of these Emergency Regulations shall be liable except for willful misconduct.

        These Emergency Regulations shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation.

EX-99.2A 63 b-442.htm ART OF INCORP TELECOM NETWORKS-OH AoI Cinergy Telecommunication Networks Ohio
ARTICLES OF INCORPORATION

CINERGY TELECOMMUNICATION NETWORKS – OHIO, INC.

The undersigned, desiring to form a corporation, for profit, under Sections 1701.01 et seq.
of the Ohio Revised Code, do hereby state the following:

          FIRST: The name of said corporation shall be: Cinergy Telecommunication Networks - Ohio, Inc.

          SECOND: The principal office of the Corporation in the State of Ohio is to be located the City of Cincinnati, County of Hamilton.

          THIRD: The purpose of this Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under Chapter 1701 of the Ohio Revised Code.

          FOURTH: The number of shares which the Corporation is authorized to have outstanding is Five Hundred (500), all of which shall be common shares without par value.

IN WITNESS WHEREOF, we have hereunto subscribed our names, on January 3, 2000.

  /s/ Richard G. Beach
      Richard G. Beach
      Incorporator
EX-99.2A 64 b-443.htm ART OF INCORP KNOXVILLE DATA LINK AOI Knoxville Data Link
ARTICLES OF INCORPORATION

OF

KNOXVILLE DATA LINK, INC.

1. The name of the corporation is: Knoxville Data Link, Inc.

2. The number of shares of stock the corporation is authorized to issue is: 1,000

3. The name and complete address of the corporation’s initial registered agent and
office located in the state of Tennessee is: National Registered Agents, Inc.,
1900 Church Street, Suite 400, Nashville, TN 37203, Davidson County.

4. List the name and complete address of each incorporator:
      Anthony J. Candelano 8829 Bond Street, Overland Park, KS 66214

5. The complete address of the corporation’s principal office is: 8829 Bond Street,
Overland Park, KS 66214.

6. The corporation is for profit.

April 12, 2002 /s/ Anthony J. Candelano
    Incorporator's Signature

    Anthony J. Candelano
    Incorporator's Name
EX-99.2B 65 b-444.htm BYLAWS KNOXVILLE DATA LINK Bylaws Knoxville Data Link

BYLAWS

OF

KNOXVILLE DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Tennessee shall be located in Knoxville, Tennessee. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Tennessee as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Tennessee, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Tennessee at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Tennessee as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Tennessee at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.2A 66 b-445.htm ART OF INCORP LEXINGTON DATA LINK AOI Lexington Data Link
ARTICLES OF INCORPORATION

             OF

 LEXINGTON DATA LINK, INC.

ARTICLE I:     The name of the corporation is: Lexington Data Link, Inc.

ARTICLE II:     The number of shares of stock the corporation is authorized to issue is: 1,000

ARTICLE III:     The name and complete address of the corporation’s initial registered office in
                            Kentucky is 400 West Market Street, Suite 1800 Louisville, Kentucky 40202
                            and the name of the initial registered agent at that office is National Registered Agents, Inc.

ARTICLE IV:     The mailing address of the corporation's principal office is 8829 Bond Street, Overland Park,
                            Kansas 66214.

ARTICLE V:     The name and complete address of each incorporator is Anthony J. Candelano, 8829 Bond Street,
                           Overland Park, KS 66214

March 28, 2002 /s/ Anthony J. Candelano
Incorporator's Signature
EX-99.2B 67 b-446.htm BYLAWS OF LEXINGTON DATA LINK Bylaws Lexington Data Link

BYLAWS

OF

LEXINGTON DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Kentucky shall be located in Louisville, Kentucky. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Kentucky as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Kentucky, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Kentucky at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Kentucky as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Kentucky at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.A 68 b-447.htm ART OF INCORP LOUISVILLE DATA LINK AOI Louisville Data Link
ARTICLES OF INCORPORATION

OF

LOUISVILLE DATA LINK, INC.


ARTICLE I:

ARTICLE II:

ARTICLE III:
            
            

ARTICLE IV:
            

ARTICLE V:
             		The name of the corporation is: Louisville Data Link, Inc.

The number of shares of stock the corporation is authorized to issue is: 1,000

The name and complete address of the corporation's initial registered office in Kentucky
is 400 West Market Street, Suite 1800 Louisville, Kentucky 40202 and the name of the
initial registered agent at that office is National Registered Agents, Inc.

The mailing address of the corporation's principal office is 8829 Bond Street, Overland
Park, Kansas 66214.

The name and complete address of each incorporator is Anthony J. Candelano, 8829 Bond
Street, Overland Park, KS 66214


March 28, 2002 /s/ Anthony J. Candelano
Incorporator's Signature
EX-99.B 69 b-448.htm BYLAWS OF LOUISVILLE DATA LINK Bylaws Louisville Data Link

BYLAWS

OF

LOUISVILLE DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Kentucky shall be located in Louisville, Kentucky. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Kentucky as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Kentucky, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Kentucky at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Kentucky as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Kentucky at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.A 70 b-449.htm ART OF INCORP MEMPHIS DATA LINK AOI Memphis Data Link
ARTICLES OF INCORPORATION

            OF

 MEMPHIS DATA LINK, INC.


1. The name of the corporation is: Memphis Data Link, Inc.

2. The number of shares of stock the corporation is authorized to issue is: 1,000

3. The name and complete address of the corporation’s initial registered agent and office located in the state of Tennessee is: National Registered Agents, Inc., 1900 Church Street, Suite 400, Nashville, TN 37203, Davidson County.

4. List the name and complete address of each incorporator: Anthony J. Candelano 8829 Bond Street, Overland Park, KS 66214

5. The complete address of the corporation’s principal office is: 8829 Bond Street, Overland Park, KS 66214.

6. The corporation is for profit.

March 28, 2002 /s/ Anthony J. Candelano
Incorporator's Signature

Anthony J. Candelano
Incorporator's Name
EX-99.B 71 b-450.htm BYLAWS OF MEMPHIS DATA LINK Bylaws Memphis Data Link

BYLAWS

OF

MEMPHIS DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Tennessee shall be located in Nashville, Tennessee. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Tennessee as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Tennessee, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Tennessee at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Tennessee as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Tennessee at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.2A 72 b-451.htm ART OF INCORP NASHVILLE DATA LINK AOI Nashville Data Link
ARTICLES OF INCORPORATION

OF

NASHVILLE DATA LINK, INC.


1. The name of the corporation is: Nashville Data Link, Inc.

2. The number of shares of stock the corporation is authorized to issue is: 1,000

3. The name and complete address of the corporation’s initial registered agent and office located in the state of Tennessee is: National Registered Agents, Inc., 1900 Church Street, Suite 400, Nashville, TN 37203, Davidson County.

4. List the name and complete address of each incorporator: Anthony J. Candelano 8829 Bond Street, Overland Park, KS 66214

5. The complete address of the corporation’s principal office is: 8829 Bond Street, Overland Park, KS 66214.

6. The corporation is for profit.


January 9, 2002 /s/ Anthony J. Candelano
Incorporator's Signature

Anthony J. Candelano
Incorporator's Name
EX-99.B 73 b-452.htm BYLAWS OF NASHVILLE DATA LINK Bylaws Nashville Data Link

BYLAWS

OF

NASHVILLE DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Tennessee shall be located in Nashville, Tennessee. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Tennessee as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Tennessee, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Tennessee at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Tennessee as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Tennessee at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99.A 74 b-453.htm ART OF INCORP INDIANAPOLIS DATA LINK AOI Indianapolis Data Link
ARTICLES OF INCORPORATION

OF

INDIANAPOLIS DATA LINK, INC.

The name of the corporation is: Indianapolis Data Link, Inc.

The principal office of the corporation is: 8829 Bond Street, Overland Park KS 66214.

The name and street address of the corporation’s registered agent and registered office
for service of process are: National Registered Agents, Inc., 320 N. Meridian Street,
Indianapolis, IN 46204.

The number of shares the Corporation is authorized to issue: 1,000

April 12, 2002 /s/ Anthony J. Candelano
     Incorporator's Signature

     Anthony J. Candelano
     Incorporator's Name
EX-99.A 75 b-454.htm ART OF INCORP CINCINNATI DATA LINK AOI Cincinnati Data Link
ARTICLES OF INCORPORATION

            OF

CINCINNATI DATA LINK, INC.

Name of corporation: Cincinnati Data Link, Inc.

Location: Cincinnati, Hamilton

Purpose for which corporation is formed: The transaction of any or all lawful purposes
for which corporations may be organized, including, but not limited to, the provision
of telecommunication services.

The number of shares which the corporation is authorized to have outstanding: 1,000 shares
of common stock, $0.01 par value.

Appointment of Statutory Agent: National Registered Agents, Inc., 145 Baker Street,
Marion, Ohio 43302

April 12, 2002 /s/ Anthony J. Candelano
  Authorized Representative
EX-99 76 b-455.htm CERT OF AMEND ART OF INCORP QCC AOI QCC, Inc.

CERTIFICATE OF AMENDMENT

OF

ARTICLES OF INCORPORATION

Name of corporation: QCC, Inc.

We the undersigned John C. Greenbank and Janet M. Cinelli or QCC, Inc. do hereby certify:

        That the board of directors of said corporation at a meeting duly convened and held on the seventh day of October 1995 adopted a resolution to amend the articles as follows:

        Article Third is hereby amended to read as follows:

        THIRD: The total number of shares which the corporation is authorized to issue is fifteen thousand (15,000) of a par value of one United States Cent ($.01) per share.

The number of shares of the corporation outstanding and entitled to vote on an amendment to the Articles of Incorporation are 10,3000; that the said change and amendment has been consented to and approved by a majority vote of the shareholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

  /s/ John C. Greenbank



/s/ Janet M. Cinelli

4/9/1996

CERTIFICATE OF AMENDMENT

OF

ARTICLES OF INCORPORATION

        CSII CORPORATION, a corporation organized under the laws of the State of Nevada, by its President and Secretary does hereby certify:

  1. That the board of directors of said corporation at a meeting duly convened and held on the 21st day of December, 1993, passed a resolution declaring that the following change and amendment in the articles of incorporation is advisable.

  RESOLVED that article I of said articles of incorporation be amended to read as follows: “The name of the corporation is QCC, INC.”

  2. That the number of shares of the corporation outstanding and entitled to vote on an amendment to the articles of incorporation is ten thousand (10,000), that the said change and amendment has been consented to and authorized by the written consent of stockholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

  IN WITNESS WHEREOF, the said President has caused this certificate to be signed by its President and its Secretary and its corporate seal to be hereto affixed this 28th day of December 1993

  CSII CORPORATION



  By: /s/ Albert E. Cinelli
Albert E. Cinelli, President

  /s/ Albert W. L. Moore, Jr.
Albert W. L. Moore, Jr., Secretary

ARTICLES OF INCORPORATION

OF

CSII CORPORATION

FIRST: The name of the corporation is CSII CORPORATION

SECOND: Its registered office in the state of Nevada is located at One East first Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada.

THIRD: The total number of shares which the corporation is authorized to issue is ten thousand (10,000); al of such shares shall be without par value.

FOURTH: The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of this corporation.

        The names and addresses of the first board of directors, which shall be three (3) in number, are as follows:

Names

 Addresses
Albert E. Cinelli 5101 Laguna Boulevard
South Padre Island, TX 78597
   
John P. Cinelli 10813 116th Terrace
Overland Park, KS 66210
   
John C. Greenbank 12308 East 51st
Independence, MO 64055

FIFTH: The names and addresses of each of the incorporators signing the articles of incorporation are as follows:

Names Addresses
   
K. B. Lohnes 906 Olive Street
St. Louis, MO 63101
   
K. M. Rheinecker 906 Olive Street
St. Louis, MO 63101
   
K. L. Buss 906 Olive Street
St. Louis, MO 63101

SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach fo the director’s duty of loyalty to the corporation or its stockholders (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or (iii) for any transaction from which the director derived any improper personal benefit.

        WE THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Nevada, do make and file these articles of incorporation, hereby declaring a certifying that the facts herein stated are true, and accordingly have hereunto set our hands this 15th day of December 1993.

  /s/ K. B. Lohnes
K. B. Lohnes, Incorporator


/s/ K. M. Rheinecker
K. M. Rheinecker, Incorporator


/s/ K. L. Buss
K. L. Buss, Incorporator
EX-99.B 77 b-456.htm BYLAWS OF QCC BYLAWS OF QCC, INC.

BYLAWS

OF

QCC, Inc.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Nevada shall be located in Carson City, Nevada. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on the 22nd date of April each year, at 10:00 a.m., at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the day fixed for the annual meeting shall be a Sunday or a legal holiday, such meeting shall be held on the next secular succeeding business day. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the thereafter or as such meeting may conveniently be assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Nevada, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Quorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number, Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the directors shall have the following powers, to-wit:

  1. If allowed by the articles of incorporation, to alter, amend or repeal the bylaws of the corporation.

  2. To select and remove all the other officers, agents and employees of the corporation, prescribe such powers and duties for them as may not be inconsistent with law, or with the articles of incorporation or the bylaws, fix their compensation, and re quire from them security for faithful service.

  3. To conduct, manage, and control the affairs and business of the corporation, and to make such rules and regulations not inconsistent with the law, or with the articles of incorporation or the bylaws, as they may deem best.

  4. To change the principal office and registered office for the transaction of the business of the corporation from one location to another; to fix and locate from time to time one or more subsidiary offices of the corporation within or without the State of Nevada; to designate any place within or without the State of Nevada for the holding of any shareholders’ meeting or meetings; to prescribe the forms of certificates of stock, and to alter the forms of such certificates from time to time, as in their judgment they may deem best, provided such certificates shall at all times comply with the provision of law.

  5. To authorize the issue of shares of stock of the corporation from time to time, upon such terms as may e lawful, in consideration of money paid, labor done or services actually rendered, debts or securities canceled, or tangible or intangible property actually received, or in the case of shares issued as a dividend, against amounts transferred from surplus to stated capital.

  6. To borrow money and incur indebtedness for purposes delivered therefore, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations or other evidences of debt and securities therefore.

  7. To appoint an executive committee and other committees, and to delegate to such committees and of the powers and authority of the board in the management of the business and affairs of the corporation, unless otherwise omitted by statues any such committee shall be composed of two or more directors.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Nevada at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Nevada as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

Section 3. President. The president shall be the principalexecutive officer of the corporation and shall in general supervise and control all of the business and affairs of the corporation. He shall preside at all meetings of the stockholders and of the board of directors. He may sign, with the secretary or any other proper officers of the corporation thereunto authorized by the board of directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the board of directors shall have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the board of directors or by these bylaws to some other officer or agent of the corporation or shall be required by law to be otherwise signed or executed, and in general shall perform all duties incident to the office of president, and such other duties as may be prescribed by the board of directors from time to time.

        Section 4. Vice President. In the absence of the president or in the event of his inability or refusal to act, the vice president shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. The vice president may sign, with the secretary, certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the president or by the board of directors. If there be more than one vice president, the board of directors may designate the order in which such respective vice presidents shall succeed to the responsibilities of the president in his absence.

        Section 5. Secretary. The secretary shall keep the minutes of stockholders and board of directors meetings in one or more books provided for that purpose; see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; be custodian of the corporate records; be responsible for the maintenance at the registered office of the corporation in the State of Nevada, of the original or duplicate stock ledger containing the names and addresses of the stockholders, and the number of shares held by them respectively; sign with the president certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the board of directors; have general charge of the stock transfer books of the corporation; and in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the board of directors. An assistant secretary or assistant secretaries may be elected at the discretion of the board of directors and shall perform any duties incident to the office of secretary if so directed by the president or by the board of directors.

        Section 6. Treasurer. The treasurer shall have charge and custody of and be responsible for all funds and securities of the corporation, receive and give receipt for moneys due and payable to the corporation from any source whatsoever and deposit all such moneys in the name of the corporation in such banks, trust companies or depositories as shall be selected by the corporation. He shall in general perform all the duties incident to the office of treasurer and such other duties as may be assigned to him from time to time by the president or by the board of directors. An assistant treasurer or assistant treasurers may be elected at the discretion of the board of directors and shall perform any duties incident to the office of treasurer if so directed by the president or by the board of directors.

        Section 7. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 8. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

    CONTRACTS.        LOANS. CHECKS AND DEPOSITS

        Section 1. Contracts, Deeds, etc. The board of directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of or on behalf of the corporation and such authority may be general or confined to specific instances.

        Section 2. Loans. No loans shall be contracted on behalf of the corporation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the board of directors.

        Section 3. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidence of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the board of directors.

        Section 4. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies, or other depositories as the board of directors shall select.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Corporate Lien on Shares. The corporation shall have a first lien on all the shares and on all dividends declared thereon for any indebtedness on the holders thereof to the corporation.

        Section 3. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed by resolution fo the board of directors.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Nevada at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.

EX-99.A 78 b-457.htm ARTICLES OF INCORP KENTUCKY DATA LINK AOI Kentucky Data Link

ARTICLES OF INCORPORATION

OF

KENTUCKY DATA LINK, INC.

    1.        The corporation’s name shall be KENTUCKY DATA

LINK, INC.

    2.        The corporation’s duration shall be perpetual.

    3.        The corporation’s purposes shall be to transact any and all business for which private corporations may be incorporated under KRS Chapter 271 .B, including, but not limited to ownership and sale of data services and equipment of all kinds and all other lawful business which a corporation in this Commonwealth may conduct.

    4.        The corporation shall have authority to issue 2000 shares of stock Without par value.

    5.        The address of the corporation’s initial registered office and its principal office shall be:

    2647 Regency Road
    Lexington, KY 40503


The name and address of the corporation's initial registered agent shall be A.D. WRIGHT, JR., 2647 Regency Road, Lexington, KY 40503.

    6. The number of directors constituting the corporation’s initial board of directors shall be three. Thereafter the number of directors shall be as fixed in the bylaws. The name and residence address of the initial members of the board of directors are as follows:


A.D. WRIGHT, JR.
611 Broadway
P.O. Box 1337
Paducah, KY 42001


MARTHA LAYNE COLLINS
2647 Regency Road
P.O. Box 11890
Lexington, KY 40503


MICHAEL REYNOLDS
2220 Nicholasville Road
Lexington, KY 40503


        The directors of the corporation shall serve at the pleasure of the shareholders, and any director may be removed without cause by an affirmative vote of a majority of the shareholders, or by unanimous written consent of all the shareholders.

        The officers of the corporation shall serve at the pleasure of the board of directors, and any officer may be removed without cause by an affirmative vote of a majority of the directors, or by unanimous written consent of all of the directors.

    7.        The name and address of the incorporator is as follows:

A.D. WRIGHT, JR.
2647 Regency Road
Lexington, KY 40503


This 30th day of March, 1990.


              /s/     A. D. Write, Jr.


      AMENDED AND RESTATED ARTICLES OF INCORPORATION
KENTUCKY DATA LINK, INC.

        Pursuant to KRS 2715.10-070, the undersigned corporation hereby executes the following Amended And Restated Articles Of Incorporation:

    (A)               The name of the corporation is Kentucky Data Link, Inc.


    (B)               The following Amended And Restated Articles Of Incorporation were adopted by the Shareholders of the corporation at a meeting held on October 23, 1995 in the manner prescribed by the Kentucky Business Corporation Act:


    1.               The name of the corporation is Kentucky Data Link, Inc.


    2.               The street address of the registered office of the Corporation is 611 Broadway, Paducah, Kentucky 42001. The name of the registered agent is A. D. Wright, Jr.


    3.               The mailing address of the principal office of the corporation is 611 Broadway, Paducah, Kentucky 42001.


    4.               The total number of shares of common stock which may issued by the corporation is 3,000 no par value.


    5.               The business and affairs of the corporation are to be conducted by a board of directors, the number to be set in the manner provided in the Bylaws.


    6.               No director shall be personally liable to the corporation or its shareholders for monetary damages for breach of his duties as a director except to the extent that the applicable law from time to time in effect shall that such liability may not be eliminated or limited. Neither the amendment nor repeal of this section shall affect the liability of any director of the corporation with respect to any act or failure to act which occurred prior to the amendment or appeal. This section is not intended to eliminate or limit any protection otherwise available to the directors of the corporation.


    (C)               The designation and number of shares entitled to vote on this matter is 1,000 shares of common stock. Present at the meeting were shareholders representing 1,000 shares of the common stock of the Corporation and which constitute all of the shareholders entitled to vote on such Amended And Restated Articles Of Incorporation.


    (D)               The total number of votes cast by each voting group entitled to vote separately thereon for and against such amendment, respectively, was:


    Number of Votes Cast
    For Against
       
  Voting Group    
  Common Shareholders 1,000 0

    (E)               The foregoing Amended And Restated Articles Of Incorporation supersede the original Articles Of Incorporation and all previous amendments thereto.


        IN WITNESS WHEREOF, the undersigned duly authorized officer has executed these Amended And Restated Articles Of Incorporation on this the 24th day of October, 1995.

KENTUCKY DATA LINK, INC.

By: /s/ A. D. Wright

EX-99.B 79 b-458.htm BY-LAWS OF KENTUCKY DATA LINK Bylaws of Kentucky Data Link

BYLAWS

OF

KENTUCKY DATA LINK, INC.

ARTICLE I

OFFICE

        Section 1. Registered Office. The registered office of the corporation in the State of Kentucky shall be located in Louisville, Kentucky. This office may be changed from time to time by resolution of the board of directors.

        Section 2. Additional Offices. The corporation may also have an office or offices at such place or places within or without the State of Kentucky as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        Section 1. Annual Meetings. The annual meeting of stockholders shall be held on a date in September to be determined by the Chairman on an annual basis, at which meeting the stockholders shall elect a board of directors and transact such other business as may come before the meeting. If the election of the directors shall not be held on the day designated herein for any annual meeting or at any adjournment thereof, the board of directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as such meeting may be conveniently assembled.

        Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the president, by the board of directors, or by not less than twenty percent (20%) in amount of the capital stock outstanding and entitled to vote at such meeting.

        Section 3. Place of Meeting. Either the board of directors pursuant to authority hereinafter granted to said board or the shareholders pursuant to a waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, within or without the State of Kentucky, as a place of meeting or any annual or special meeting of stockholders.

        Section 4. Notice of Meeting. Except as otherwise provided by law, a written or printed notice stating the place and hour of the meeting, and in case of a special meeting, the purposes for which the meeting is called, shall be delivered or given not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the president, secretary, or officers or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the records of the corporation.

        Section 5. Voting Shares. Subject to the provisions hereinafter set forth, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to the vote of the stockholders. A stockholder so entitled to vote may vote by proxy executed in writing by the stockholder or his duly authorized attorney in fact. Such proxies shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after three years after the day of its execution, unless otherwise specifically so provided in the proxy. No cumulative voting shall be permitted.

        Section 6. Ouorum. Except as otherwise provided by statute, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders; provided, however, that if less than a majority of the outstanding shares entitled to vote are represented at such meeting, a majority of the shares so represented may adjourn the meeting to a specified date not longer than thirty (30)days after such adjournment and no notice need be given of such adjournment to stockholders not present at the meeting.

        Section 7. Record Date. The board of directors may fix, in advance, a record date prior to (a) any meeting of stockholders, or (b) any payment of any dividends, or (c) any allotment of rights, or (d) any effective date of change or conversion or exchange of capital stock, and such stockholders, and only such stockholders, as shall be stockholders of record at the close of business on the record date shall be entitled to received notice of any such transaction or to participate in any such transactions, notwithstanding any transfer of any stock on the books of the corporation after such record date as fixed by the board of directors; provided, however, that the record date so fixed by the board of directors shall be set not less than ten (10) days nor more than sixty (60) days preceding the effective date of any of the transactions enumerated herein. If the board of directors does not fix in advance a record date prior to any transaction enumerated herein, then the record date for such transaction shall be as provided by statute.

        Section 8. Consent of Absentees. The transactions of any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 9. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by at least a majority of all of the persons who would be entitled to vote upon such action at a meeting, and filed with the secretary of the corporation, unless the provisions of the applicable laws and statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required.

        Section 10. Meetings by Telephone. A shareholder may participate in a meeting of the shareholders by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE III

DIRECTORS

        Section 1. Number. Tenure and Qualifications. The property and business of the corporation shall be managed and controlled by its board of directors. The number of directors shall be neither more than nine (9) nor less than three (3). A director shall hold office until he shall resign or shall be removed or otherwise disqualified to serve or his successor is elected and shall have qualified. Directors need not be stockholders.

        Section 2. General Powers. The board of directors shall have, in addition to such powers as are hereinafter expressly conferred on it, all such powers as may be exercised by the corporation subject to the provisions of the applicable statutes or law, the articles of incorporation and the bylaws.

        Section 3. Regular Meetings. After each annual meeting of stockholders for the election of directors, the newly elected directors may meet for the purposes of qualification, organization, election of officers, and transaction of other business, at the place of and immediately following the annual meeting of stockholders, and if a majority of the directors be present at such place and time, no prior notice of such meeting other than this bylaw shall be required to be given to the directors. Additional regular meetings of the board of directors may be held, either within or without the State of Kentucky at such times and places as shall from time to time be determined by the board.

        Section 4. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the board of directors may fix any place either within or without the State of Kentucky as a place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally, or mailed to each director at his business address. If mailed, such notice shall be deemed delivered when deposited in the United States mail with postage prepaid. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice for such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular meeting or special meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

        Section 5. Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board of directors provided, that if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time, without further notice; and the action of a majority of the directors present at a meeting at which a quorum is present shall be the action of the board of directors, except that no action may be taken without the affirmative vote of one-third of the members.

        Section 6. Vacancies. In the case of the death, resignation or removal of one or more members of the board of directors, a majority of the surviving or remaining directors may fill the vacancy or vacancies until the successor or successors are elected at a stockholders meeting, even though such remaining directors constitute less than a quorum.

        Section 7. Compensation. Each director shall receive such reasonable compensation for his/her service as the board of directors shall by resolution allow.

        Section 8. Indemnification of Directors and Officers. The board of directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, a present or former director, officer, or employee of the corporation in an action brought by a third party against such person, whether or not the corporation is jointly as a party defendant, to impose a liability or penalty on such person for an act alleged to have been committed by such person while a director, officer, or employee, or by the corporation, or by both; provided, the board of directors determines in good faith that such director, officer, or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This section does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation. The provisions of this section shall apply to the estate, executor, administrator, heirs, legatees, or devisees of a director, officer, or employee, and the term “person” where used in the foregoing section shall include the estate, executor, administrator, heirs, legatees or devisees of such person.

        Section 9. Consent of Absentees. The transactions of any meeting of the board of directors of the corporation, or any committee designated by such board, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with corporate records and made a part of the minutes of the meeting.

        Section 10. Action Without Meeting. Any action, which under any provision of the applicable statutes or law, may be taken at a meeting of the board of directors, or any committee designated by such board, either annual or special, however filed and noticed, may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitledto vote upon such action at a meeting, and filed with the secretary of the corporation, or such other procedure followed as may be prescribed by statute.

        Section 11. Meetings by Telephone. Members of the board of directors of the corporation, or any committee designated by such board, may participate in a meeting of the directors by means of a conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE IV

OFFICERS

        Section 1. Number. The officers of the corporation shall be a president, one or more vice presidents as determined by the board of directors, a secretary, a treasurer, and such other officers as may from time to time be chosen by the board of directors. Officers need not be stockholders. The same person may hold any number of offices.

        Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the meeting of the board of directors held after the annual meeting of stockholders. If election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Any officer may be removed either with or without cause at any time by the board of directors. If the office of any officer becomes vacant for any reason, the board of directors shall fill the vacancy. Each officer shall hold office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified.

        Section 3. Duties of Officers. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these bylaws, or may from time to time be specifically conferred or imposed by the board of directors. The President shall be the chief executive officer of the corporation.

        Section 4. Salaries. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of fact that he is also a member of the board of directors of the corporation.

        Section 5. Delegation of Duties. In case of the absence or disability of any officer of the corporation or for any other reason deemed sufficient by the board of directors, the board of directors may delegate the powers or duties of such officer to any other officer or to any director for a period of time to be determined by the board of directors.

ARTICLE V

COMMITTEES

        The board of directors, by resolution adopted by a majority of the entire board, may from time to time designate an executive committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of two or more individuals, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each committee shall serve at the pleasure of the board.

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

        Section 1. Certificates for Shares. The certificates of stock shall be in such form as the board of directors shall prescribe, and shall bear the signature of the president and secretary of the corporation. The board of directors may appoint a transfer agent and a registrar for processing the transfer and issuance of share certificates, and, in such event, the signatures of the president and secretary may be by facsimile, but such certificates shall be signed by an officer of the transfer agent and countersigned by an officer of the registrar. If a certificate of stock be lost or destroyed, another may be issued in its stead upon proof of such loss or destruction and the giving of satisfactory bond of indemnity in an amount sufficient to indemnify the corporation against any claim. A new certificate may be issued without requiring a bond when in the judgment of the board of directors it is proper to do so.

        Section 2. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The corporation shall be entitled to treat the holder of record of any shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any other person whether or not it shall have express or other notice thereof except as expressly provided by the applicable law and statutes.

ARTICLE VII

DIVIDENDS

        Dividends upon the capital stock may be declared by the board of directors at any regular meeting and may be paid in cash, check, bank draft, property, or in the shares of the capital stock of this corporation as permitted by law.

ARTICLE VIII

ACCOUNTING YEAR

        The accounting year of the corporation shall be fixed to October 1 to September 30.

ARTICLE IX

BOOKS AND RECORDS

        The books, accounts, and records of the corporation, except as otherwise required by the applicable laws and statutes may be kept within or without the State of Kentucky at such place or places as may from time to time be designated by resolution of the board of directors.

ARTICLE X

NOTICES

        Notice requirements under these bylaws for any director, officer or stockholder shall not be construed to require personal notice, but all required notices may be given in writing by depositing the same in the United States mail, postage prepaid, addressed to the stockholder, officer or director at such address as appears on the books of the corporation and such notice shall be deemed to be given at the time when the same has been deposited in the mail. Any stockholder, officer or director may waive in writing any notice required to be given under these bylaws, whether before or after the time stated therein.

ARTICLE XI

AMENDMENTS OF BYLAWS

        These bylaws may be amended, altered or repealed at any regular or special meeting of the board of directors by the vote of a majority of the members of the board of directors. The bylaws may be amended to contain any provision, not inconsistent with law, relating to the business of the corporation, the conduct of its affairs and its rights or powers of its stockholders, directors, officers or employees.

EX-99 80 b-459.htm CERT OF FORMATION KDL HOLDINGS COF KDL Holdings LLC

CERTIFICATE OF FORMATION

OF

KDL Holdings, LLC

  1. The name of the limited liability company is KDL Holdings. LLC.

  2. The address of the registered office of the Corporation is 9 East Loockerman Street, Dover, Delaware 19901. The name of the Corporation’s registered agent at such address in the State of Delaware is National Registered Agents, Inc.

        IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of KDL Holdings, LLC this 5th day of September, 2001.

  /s/ Bryan K. Mattingly
Bryan K. Mattingly, Organizer
EX-99 81 b-460.htm OPERATING AGREE KDL HOLDINGS Operating Agreement for KDL Holdings, LLC

OPERATING AGREEMENT
FOR
KDL HOLDINGS, LLC

Units in KDL Holdings, LLC (the “Company”) have not been registered with the Securities and Exchange Commission under the Securities Act of 1933, as amended, or the state securities laws of any state. Without such registration, Units may not be sold, pledged, hypothecated, or otherwise transferred by a Member at any time whatsoever, except upon delivery to the Company of an opinion of counsel satisfactory to the Company that registration is not required for such transfer and/or the submission to the Company of such other evidence as may be satisfactory to the Company to the effect that any such transfer will not violate the Securities Act of 1933, as amended, and/or applicable state securities laws, and/or any rule or regulation promulgated thereunder. In addition, any sale or other transfer of Units is subject to certain restrictions that are set forth in this Agreement.

        This is an Operating Agreement effective as of September 5, 2001, among Kentucky Data Link, Inc. (“KDL”) and any Person who subsequently becomes a member of the Company, as reflected on the Company’s records (each a “Member” and collectively, the “Members”).

ARTICLE 1
FORMATION

        The Members hereby form the Company as a limited liability company pursuant to the Delaware Limited Liability Company Act, effective as of the filing of the Company’s Certificate of Formation with the Delaware Secretary of State. The Members hereby ratify and approve the filing of the Company’s Certificate of Formation, the receipt of the form of which each Member hereby acknowledges. A duly authorized officer of the Company shall from time to time execute or cause to be executed all such certificates or other documents or cause to be done all such filing, recording, publishing or other acts as may be necessary or appropriate to comply with the requirements for the formation and operation of a limited liability company under the Act. The rights and duties of the directors, officers and Members shall be as provided in the Act, except as modified by this Agreement. The Company shall also be qualified to do business in such other states as the Members from time to time deem appropnate.

ARTICLE 2
NAME

        The business of the Company shall be conducted under the name “KDL Holdings, LLC.”

ARTICLE 3
DEFINITIONS

    3.1        Definitions. The following terms and phrases used in this Agreement shall have the following meanings:

        “Act” shall mean the Delaware Limited Liability Company Act.

        “Affiliate” of a Person, or a Person “affiliated with,” a specified Person, shall mean a spouse, parent, sibling or child of the specified Person or a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the specified Person (including, without limitation, a subsidiary of the specified Person).

        “Agreement” shall mean this Operating Agreement, as amended, modified or supplemented from time to time.

        “Bankruptcy” shall be deemed to have occurred with respect to any Member, at the time the Member: (a) makes an assignment for the benefit of creditors; (b) files a voluntary petition in bankruptcy; (c) is adjudicated bankrupt or insolvent; (d) files a petition or answer seeking for the Member any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Law; (e) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Member in any proceeding of this nature; (f) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or any substantial part of the Member’s property; or (g) if within 120 days after the commencement of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Law, the proceeding has not been dismissed, or if within 120 days after the appointment without the Member’s consent or acquiescence of a trustee, receiver, or liquidator of the Member, or of all or any substantial part of the Member’s properties, the appointment is not vacated or stayed or within 120 days after the expiration of any stay, the appointment is not vacated.

        “Board of Directors” shall mean the board of directors of the Company, as set forth in Article 14.

        “Business Day” shall mean a day other than a Saturday, a Sunday, or a holiday on which national banking associations are required or permitted by Law to be closed in Kentucky.

        “Capital Account” shall mean the individual account maintained, during any period in which there is more than one Member, for each Member by the Company, calculated pursuant to Section 8.3.

        “Capital Contribution” shall mean the money and the fair market value of property (net of liabilities assumed by the Company or to which the property is subject) contributed to the Company by a Member, and as maintained in the Company’s records. The Company shall maintain records that set forth the agreed upon fair market value of each of the assets (other than cash) contributed to the capital of the Company as determined by the contributing Member and the Company.

        “Control” (including the terms “controlling,” “con#olled by” and “under common control with”) shall mean the possession, direct or indirect, of the power (a) to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise, or (b) to vote five percent (5%) or more of the securities having ordinary voting power for the election of directors.

        “Covered Person” shall mean any Member, acting in its capacity as a Member under this Agreement, any Affiliate of a Member acting in its capacity as a direct or indirect owner of a Member or any officer, director, shareholder, partner, member, employee, representative, agent or manager of the Company, a Member, or their respective Affiliates, in each case, acting in connection with this Agreement. The term “Covered Person” shall not include any Member or Affiliate of a Member or any officer, director, shareholder, partner, member, employee, representative, agent or manager of the Company, a Member, or their respective Affiliates, in any case acting in connection with any contract or agreement with the Company other than this Agreement.

        “Credit Documents” shall have the meaning given in the Indenture.

        “Disability” shall mean an individual’s inability (as determined by a physician appointed by the Company) due to accident or physical or mental illness, to adequately and fully perform the duties that the individual was performing for the Company when the disability began. If at any time the physician appointed by the Company makes a determination with respect to an individual’s disability, that determination shall be final, conclusive, and binding upon the Company, the individual suffering the Disability and their successors in interest.

        “Dispose,” “Disposing” or “Disposition” shall mean (a) with respect to any asset (including Units or any portion thereof), a sale, assignment, transfer, conveyance, gift, exchange or other disposition of such asset, whether such disposition be voluntary, involuntary or by operation of law, including the following: (i) in the case of an asset owned by an individual, a transfer of such asset upon the death of its owner, whether by will, intestate succession or otherwise; (ii) in the case of an asset owned by a Person (other than an individual), (A) a merger or consolidation of such Person, (B) a conversion of such Person into another type of Person, or (C) a distribution of such asset in connection with the dissolution, liquidation, winding up or termination of such Person (unless, in the case of dissolution, such Person’s business is continued without the commencement of liquidation or winding up); and (iii) a disposition in connection with, or in lieu of, a foreclosure of an Encumbrance on such asset, but such terms shall not include the creation of such an Encumbrance; and (b) with respect to Units only, any Disposition of an equity interest or other ownership interest in a Person that owns, directly or indirectly, as substantially all of its assets, Units; provided, however, that the immediately preceding clause (b) shall not apply to any Disposition for so long as the transferee in such Disposition has no, and does not exercise any, decision-making authority with respect to the Company.

        “Economic Risk of Loss” shall mean “economic risk of loss” as described in Treas. Reg. § 1.752-2.

        “Encumber,” “Encumbering” or “Encumbrance” shall mean the creation or existence of a security interest, lien, pledge, charge, mortgage or other encumbrance, whether such encumbrance be voluntary, involuntary or by operation of law.

        “Governmental Authority” shall mean any federal, state, county, municipal or local government or regulatory department, body, political subdivision, commission, instrumentality, agency, ministry, court, judicial or administrative body, taxing authority or other authority having jurisdiction over the Company or any Member, as the case may be.

        “Gross Negligence” shall mean the gross negligence of a Person pursuant to Delaware Law.

        “Inactive Member” shall mean a Member that has no right to (a) interfere, vote or otherwise participate in the management or administration of the Company’s business or affairs, (b) vote, interfere or otherwise participate in any matter subject to the vote, approval or consent of the Members, (c) inspect the Company’s books of account or records, or (d) request any information or an accounting of the Company’s transactions.

        “Incapacity” or “Incapacitated” shall mean the adjudicated incompetency or death of an individual Member, or dissolution of the entity comprising any Member, and shall also include the death of an individual Member when that Member has transferred all or any part of such Member’s Units to an entity with an extended life # corporation or trust).

        “Independent Director” shall mean an individual who: (a) is not and has not at any time been an officer, director, shareholder, member, employee or Affiliate of the Company, KDL, or any of their respective Affiliates; (b) is not (and is not affiliated with a company or a firm that is) a significant advisor or consultant to KDL or any of its Affiliates; (c) is not affiliated with a significant customer of KDL or any of its Affiliates; (d) is not affiliated with a significant supplier of KDL or any of its Affiliates; (e) is not affiliated with a company of which KDL or any of its Affiliates is a significant customer or a significant supplier; (f) does not have significant personal services contract(s) with KDL or any of its Affiliates; (g) is not affiliated with a tax-exempt entity that receives significant contributions from KDL or any of its Affiliates; (h) is not and has not been at any time the beneficial owner of any interest in the Company, KDL or any of their respective Affiliates; (i) is not a spouse, parent, sibling or child of any Person described by (a) through (h); (j) is not an officer, director or employee of, or a spouse, parent, sibling or child of an officer, director or employee of a major creditor of KDL, or any of its Affiliates; and (k) has not served as a trustee in bankruptcy for KDL or any of its Affiliates. For purposes of this definition and this Agreement, the following terms shall have the following meanings:

    (a)               A Person shall be deemed to be, or to be affiliated with, a company or firm that is a “significant advisor or consultant to KDL or any of its Affiliates” if such Person received or would receive fees or similar compensation from KDL or any of its Affiliates in excess of the lesser of (i) three percent (3%) of the consolidated gross revenues which KDL and its Affiliates received for the sale of their products and services during the last fiscal year of KDL, (ii) five percent (5%) of the gross revenues of the Person during the last calendar year, if such Person is a self-employed individual, and iii) five percent (5%) of the consolidated gross revenues received by such company or firm for the sale of its products and services during its last fiscal year, if the Person is not an individual; provided, however, that director’s fees and expense reimbursements shall not be included in the gross revenues of an individual for purposes of this determination.


    (b)               A “significant customer of KDL or any of its Affiliates” shall mean a customer from which KDL and any of its Affiliates collectively in the last fiscal year of KDL received payments in consideration for the products and services of KDL and its Affiliates which are in excess of three percent (3%) of the consolidated gross revenues of KDL and its Affiliates during such fiscal year.


    (c)               A “significant supplier of KDL or any of its Affiliates” shall mean a supplier to which KDL and any of its Affiliates collectively in the last fiscal year of KDL made payments in consideration for the supplier’s products and services in excess of three percent (3%) of the consolidated gross revenues of KDL and its Affiliates during such fiscal year.


    (d)               KDL or any of its Affiliates shall be deemed a “significant customer” of a company if KDL and any of its Affiliates collectively were the direct source during such company’s last fiscal year of in excess of five percent (5%) of the gross revenues which such company received from the sale of its products and services during such fiscal year.


    (e)               KDL or any of its Affiliates shall be deemed a “significant supplier” of a company if KDL and any of its Affiliates collectively received in such company’s fiscal year payments from such company in excess of five percent (5%) of the gross revenues which suchcompany received during such fiscal year for the sale of its products and services.


    (f)               A Person shall be deemed to have “significant Personal services contract(s) with KDL or any of its Affiliates” if the fees and other compensation received by the Person pursuant to personal services contract(s) with KDL and any of its Affiliates exceeded or would exceed five percent (5%) of such Person’s gross revenues during the last calendar year.


    (g)               A tax-exempt entity shall be deemed to receive significant contributions from KDL or any of its Affiliates” if such tax-exempt entity received during its last fiscal year, or expects to receive during its current fiscal year, contributions from KDL or its Affiliates in excess of the lesser of (i) three percent (3%) of the consolidated gross revenues of KDL and its Affiliates during such fiscal year, and (ii) five percent (5%) of the contributions received by the tax-exempt entity during such fiscal year.


    (h)               A Person shall be deemed to be a “major creditor of KDL or any of its Affiliates” if it is a financial institution to which KiDL, or such Affiliate, owes outstanding indebtedness for borrowed money in a sum sufficiently large as would reasonably be expected to influence the judgment of such Person adversely to the interests of the Company when its interests are adverse to KDL or any of its Affiliates.


    “TRC”shall mean the Internal Revenue Code of 1986, as amended, modified or rescinded from time to time, or any similar provision of succeeding Law.


    “Law”shall mean (a) any law, legislation, statute, act, rule, ordinance, decree, treaty, regulation, order, judgment or other similar legal requirement, or (b) any legally binding announcement, directive or published practice or interpretation thereof enacted, issued or promulgated by any Governmental Authority.


    “Member Nonrecourse Debt” shall mean “partner nonrecourse debt” as defined in Treas. Reg. § 1 .704-2(b)(4).


    “Member Nonrecourse Debt Minimum Gain” shall mean the sum of each Member’s share of the “minimum gain” attributed to a “partner nonrecourse debt” as those terms are used in Treas. Reg. § 1 .704-2(i)(2).


    “Member Nonrecourse Deductions” shall mean “partner nonrecourse deductions” as defined in Treas. Reg. § 1 .704-2(i)(2).


    “Minimum Gain” shall mean “partnership minimum gain” as defined in Treas. Reg. § 1.704-2(b) (2).


    “Net Cash Flow” shall mean for any fiscal year, (a) the sum of (i) all cash receipts of the Company from any sources for such period other than Capital Contributions or loan proceeds, and (ii) any ftmds released by the Board of Directors from previously established reserves (referred to in (b)(ii) below) less (b) the sum of (i) all cash expenditures of the Company for such period not funded by Capital Contributions or loan proceeds and not paid out of previously established reserves (referred to in (b)(ii) below) and (ii) a reasonable reserve for future expenditures as determined by the Board of Directors.


    “Net Profits” shall mean the Company’s Taxable Income minus the Company’s Tax Losses for the applicable period.


    “Person”shall mean any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity, as well as any syndicate or group deemed to be a person pursuant to Section 1 3(d)(3) of the Securities Exchange Act of 1934, as amended.


    “Subsidiary”shall mean, with respect to a specified Person, any Person, a majority of the voting stock or other equity interests of which is owned, directly or indirectly, by the specified person.


    “Taxable Income” and “Tax Losses,” shall mean, for each fiscal year, or portion thereof, of the Company during which there is more than one (1) Member, the Company’s taxable income or loss for such fiscal year, or portion thereof, determined in accordance with IRC § 703(a), with the following adjustments:


    (a)               All items of income, gain, loss, deduction, or credit required to be stated separately pursuant to IIIRC § 7O3(a)(l) shall be included in computing Taxable Income and Tax Losses;


    (b)               Any income of the Company exempt from federal income tax and not otherwise taken into account in computing Taxable Income and Tax Losses shall be included in computing such Taxable Income and Tax Losses;


    (c)               Any expenditures of the Company described in IRC § 7OS(a)(2)(B)(or treated as such pursuant to Treas. Reg. § 1.704-i (b)(2)(iv)(i)) and not otherwise taken intoaccount in computing Taxable Income or Tax Losses, shall be subtracted from Taxable Income or Tax Losses;


    (d)               Gain or loss resulting from any taxable disposition of Company assets shall be computed by reference to the adjusted book value of the assets disposed of, notwithstanding the fact that the adjusted book value differs from the adjusted basis of the assets for federal income tax purposes;


    (e)               In lieu of the depreciation, amortization, or cost recovery deductions allowable in computing Taxable Income or Tax Losses, there shall be taken into account the depreciation for such fiscal year, or portion thereof, computed based upon the adjusted book value of the asset; and


    (f)               Notwithstanding any other provision of this definition, any items which are specially allocated pursuant to the Regulatory Allocations shall not be taken into account in computing Taxable Income and Tax Losses.


    “Units”shall mean the units of ownership in the Company set forth in records maintained by the Company, which shall be amended to reflect any additional or transferee Members and any changes in the Members’ Units. Except as otherwise provided in this Agreement, each Unit shall entitle the owner thereof to one vote on each matter on which Members are entitled to vote pursuant to the terms of this Agreement.


    “Willful Misconduct” shall mean action taken or not taken by a Person or by a director, officer, manager, foreman or other employee or agent of the Person, which action is knowingly or intentionally taken or not taken: (a) with intent that injury or damage would result therefrom, or (b) with actual knowledge at the time of taking or not taking such action that such action taken or not taken is or would be a material default under this Agreement, or with conscious indifference to the consequences thereof, or in knowing violation of any Law. Without limiting the foregoing definition in any way, Willful Misconduct does not include any act or failure to act which is involuntary, accidental, unintentional or negligent, based on any theory of negligence, or which is required in order to comply with any Law.


    3.2        Other Defined Terms. Each of the following terms is defined in the Section of this Agreement set forth opposite such term below:

  Defined Term
Company
Contract Price
Indenture
Member
Offeree Member
Regulatory Allocations 		Location
Preamble
Section 15.8
Article 4
Preamble
Section 15.6
Section 10.5

    3.3        Additional Tenus. Other capitalized terms used in this Agreement but not defined in Sections 3.1 and 3.2 above shall have the meanings ascribed to them wherever such terms first appear in this Agreement; or, if no meamngs are so ascribed, the meanings customarily associated with such terms.

    3.4        Rules of Interpretation.

    (a)               The singular includes the plural and the plural includes the singular.


    (b)               A reference to the masculine gender shall be deemed to be a reference to the feminine gender and vice versa.


    (c)               The word “or” is not exclusive.


    (d)               A reference to a Person includes its permitted successors and permitted assigns.


    (e)               The words “include,” “includes” and “including” are not limiting.


    (f)               A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document. Any matter disclosed on a Schedule to this Agreement shall be deemed to have been disclosed on all Schedules to this Agreement.


    (g)               References to any document, instrument or agreement (i) shall include all exhibits, schedules and other attachments thereto, (ii) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (iii) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time.


    (h)               The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.


    (i)               This Agreement is the result of negotiations among, and has been reviewed by, the Members with the advice of counsel to the extent deemed necessary by any Member. Accordingly, this Agreement shall be deemed to be the product of the Members, and no ambiguity shall be construed in favor of or against any Member.


    (j)               All accounting terms not specifically defined in this Agreement shall be construed in accordance with generally accepted accounting principles in the United States of America, consistently applied.


    (k)               The term “day” shall mean calendar day. Whenever an event or action is to be performed by a particular date or a period ends on a particular date, and the date in questions falls on a day which is not a Business Day, the event or action shall be performed, or the period shall end, on the next succeeding Business Day.


    (1)               All references in this Agreement to any Law shall be to such Law as amended, supplemented, modified and replaced from time to time.


ARTICLE 4
PURPOSES OF THE COMPANY

        The purposes for which the Company is formed are solely: (a) to enter into, perform and comply with certain acquisition agreements between the Company and KDL (collectively, the “Acquisition Agreements”) and to acquire, own, operate, use, transfer, sell, assign and pledge certain assets, contracts and interests (collectively, the “Collateral”) sold to the Company pursuant to the Acquisition Agreements; (b) to sell, dispose, pledge and assign the Collateral to Wells Fargo Bank Northwest, National Association, as Indenture Trustee, pursuant to the Trust Indenture and Security Agreement (the “Indenture”) and the mortgages (the “Mortgages”) between the Company and the Indenture Trustee and to incur the debt evidenced by, and issue, the Notes (as defined in the Indenture); (c) subject to the restrictions set forth in Section 14.1(j) thereof, to invest the proceeds derived from the sale or ownership of the Collateral as determined by the Company’s Board of Directors; and (d) to engage in any activity, enter into any agreement, undertaking, contract, indenture, assignment, security agreement or certificate and exercise any powers permitted to limited liability companies under the Act which are incidental to the foregoing or necessary or appropriate to accomplish the foregoing. The Members agree that, to the extent permissible under applicable Law, (y) for any period during which there is only one Member, the Company shall be treated as a disregarded entity for federal, state and local income tax purposes, and (z) for any period during which there is more than one Member, the Company shall be treated as a partnership for federal, state and local income tax purposes, and, in each such case, the Members agree not to take any position or make any election, in a tax return or otherwise, inconsistent with such treatment; provided, however, the filing of federal, state and local tax returns shall not be construed to create a partnership (other than for tax purposes) among the Members.

ARTICLE 5
MEMBERS AND MEMBERSHIP INTERESTS

    5.1        Initial Members. The names and business addresses of, and the Units held by, the Members are set forth on Annex A.

    5.2        No Liability of Members. No Member shall have Personal liability for the obligations or liabilities of the Company. Except as otherwise specifically provided in this Agreement, no Member, after his admission to the Company, shall be obligated, pursuant to this Agreement, to contribute additional funds or property, or loan money, to the Company. Nothing in this Section 5.2 shall be interpreted or applied to alter the explicit terms of this Agreement or the Act, including without limitation, the limitations set forth in this Agreement and the Act on a Member’s obligation to contribute towards the liabilities of the Company or other Members.

    5.3        Title to Property. All real and Personal property owned by the Company shall be owned by the Company as an entity and no Member shall have any ownership interest in such property in his individual name or right, and each Member’s interest in the Company shall be Personal property for all purposes. Except as otherwise provided in this Agreement, the Company shall hold all of its real and Personal property in the name of the Company and not in the name of any Member.

    5.4        Removal of Members. Except as otherwise provided in this Agreement, no Member shall be removed from membership in the Company without such Member’s consent.

    5.5        Certificates and Preemptive Rights. Units of the Company shall be evidenced by certificates, which certificates may be executed by any officer of the Company. No Member or other Person shall have any preemptive or similar rights with respect to the Units.

ARTICLE 6
PRINCIPAL OFFICE: REGISTERED OFFICE

        The principal office and place of business of the Company shall be located at 1515 Broadway, Paducah, Kentucky 42001. The Company may have such other or additional offices as the Members deem advisable. The address of the registered office of the Company is 9 East Loockerman Street, Dover, Delaware 19901. The name of the Company’s registered agent at such address in the State of Delaware is National Registered Agents, Inc.

ARTICLE 7
TERM

        The term of the Company began on the date the Company’s Certificate of Formation was filed with the Delaware Secretary of State, and shall continue until dissolution in accordance with the terms of this Agreement.

ARTICLE 8
CAPITAL AND CONTRIBUTIONS

    8.1        Initial Contributions. The initial Members shall make or have made the initial Capital Contributions set forth in the Company's records.

    8.2        Interest on Capital. No Member shall be paid interest on any Capital Contribution or Capital Account, if any.

    8.3        Capital Accounts. The Members agree that this Section 8.3 shall apply only in the event that there is more than one Member. A separate Capital Account shall be maintained by the Company for each Member in accordance with Treas. Reg. § 1 .7O4-l(b)(2)(iv). There shall be credited to each Member’s Capital Account: (a) the amount of money contributed by such Member to the Company; (b) the fair market value of property contributed by such Member to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under IRC §752); and (c) allocations to such Member of Taxable Income. Each Member’s Capital Account shall be decreased by: (x) the amount of money distributed to such Member by the Company; (y) the fair market value of property distributed to such Member by the Company (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to IRC § 752); and (z) allocations to such Member of Tax Losses.

    8.4        Withdrawal and Return of Capital. Except as expressly provided in this Agreement, including Section 9.1 with respect to distributions of Net Cash Flow and Section 9.2 with respect to distributions of other property, no Member shall be entitled to withdraw any part of such Member’s Capital Contributions or Capital Account, if any, or to receive any distribution from the Company.

    8.5        Revaluation of Company Property. The Members agree that if there shall occur, during any period in which there shall be more than one Member, (a) an acquisition of Units in the Company for more than a de minimis Capital Contribution, or (b) a distribution (other than a de minimis distribution) to a Member in redemption of all or part of a Member’s Units, then the Company shall revalue the assets of the Company at their then fair market value and adjust the Capital Accounts in the same manner as provided in Section 17.1 in the case of a property distribution. If there is a revaluation pursuant to this Section 8.5, then Capital Accounts shall thereafter be adjusted for allocations of depreciation (cost recovery) and gain or loss in accordance with the provisions of Treas. Reg. §§ l.7O4-l(b)(2)(iv)(f) and (g), and the Members’ distributive shares of depreciation (cost recovery) and gain or loss shall thereafter be computed in accordance with the principles of liRC § 704(c) and the regulations promulgated thereunder using the traditional method with curative allocations within the meaning of Treas. Reg.§1.704-3(c).

ARTICLE 9
DISTRIBUTIONS

    9.1        Distributions to the Members. Unless otherwise determined by the Board of Directors and permitted by the Credit Documents, the Company’s Net Cash Flow shall be retained by the Company. Distributions of Net Cash Flow, if any, shall be made among the Members pro rata in accordance with their ownership of Units.

    9.2        Distribution of Other Property. The Board of Directors shall determine (a) whether any distributions, other than distributions of Net Cash Flow, shall be made; and (b) the timing of such distributions, if any. Distributions of property to the Members, other than distributions in liquidation of all or a portion of a Member’s Units, shall be made, if permitted by the Credit Documents, among the Members pro rata in accordance with their Units. Any property, other than cash, distributed to a Member for any reason whatsoever shall be valued, and Capital Accounts, if any, shall be adjusted, in accordance with Section 17.1.

    9.3        Timing of Net Cash Flow Distributions. Distributions of Net Cash Flow, if any, shall be made quarterly or more often as determined by the Members to the extent possible, on or prior to the date the Members are required to make estimated tax payments for the previous quarter.

ARTICLE 10
ALLOCATION OF PROFITS AND LOSSES FOR TAX PURPOSES

        The Members agree that the provisions of this Article 10 shall apply only in the event thatthere is more than one Member:

    10.1        Allocations to the Members Generally. Taxable Income and Tax Losses shall be allocated among the Members in accordance with their Units.

    10.2        Limitation on Losses. Notwithstanding the general allocation of Taxable Income and Tax Losses described in Section 10.1, no Member shall be allocated Tax Losses in excess of the aggregate of such Member’s positive Capital Account balance and such Member’s share of the Company’s Minimum Gain, and Member Nonrecourse Debt Minimum Gain, until such time as no Member has a positive Capital Account balance, whereupon subsequent allocations of Tax Losses shall again be allocated among the Members pro rata in accordance with their Units. Furthermore, no Member shall be allocated Tax Losses where it is reasonably anticipated that such Member’s Capital Account shall be negative at the end of the Fiscal Year in which the Tax Losses arise or at the end of the subsequent Fiscal Year, as a result of Distributions of Net Cash Flow during such periods, until such time as no Member would have a positive Capital Account balance after such reasonably anticipated Distributions of Net Cash Flow, hereupon subsequent allocations of Tax Losses shall again be allocated among the Members pro rata in accordance with their Units. Tax Losses not allocated to a Member under this Section shall be reallocated among those Members with positive Capital Account balances pro rata in accordance with their Units.

    10.3        Oualified Income Offset. If a Member receives any adjustment, allocation, or distribution described in Treas. Reg. §§ l.7O4-l(b)(2)(ii)(d)(4), (5), or (6), then items of Taxable Income shall be specially allocated to such Member in an amount and manner sufficient to eliminate the deficit balance in such Member’s Capital Account as quickly as possible. It is the intention of the Members that this provision constitute a “qualified income offset” within the meaning of Treas. Reg. § 1.704-1 (b)(2)(ii)(d), and this provision shall be so construed.

    10.4        Minimum Gain Chargeback. If there is a net decrease in the Company’s Minimum Gain or Member Nonrecourse Debt Minimum Gain during any fiscal year of the Company, each Member shall be specially allocated, before any other allocations under this Article 10, items of income and gain for such fiscal year (and subsequent fiscal years, if necessary) in an amount equal to such Member’s share (determined in accordance with Treas. Reg. §§ 1.704-2(g) and l.704-2(i)(S), as applicable) of the net decrease in the Company’s Minimum Gain or Member Nonrecourse Debt Minimum Gain, as applicable, for such fiscal year, provided, however, that no such allocation shall be required if any of the exceptions set forth in Treas. Reg. § 1.704-2(t) apply. It is the intention of the Members that this provision constitute a “minimum gain chargeback” within the meaning of Treas. Reg. §§ 1.704-2(f) and l.704-2(i)(4), and this provision shall be so construed. Notwithstanding anything in this Agreement to the contrary, the Company’s Member Nonrecourse Deductions shall be allocated solely to the Member who has the Economic Risk of Loss with respect to the Member Nonrecourse Debt related thereto in accordance with the provisions of Treas. Reg. § 1.704-2(i)(l).

    10.5        Curative Allocations. The allocations set forth in Sections 10.2 through 10.4 (the “Regulatory Allocations”) are intended to comply with certain requirements of Treas. Reg. § 1.704-1(b) and 1.704-2. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Taxable Income or Tax Losses pursuant to this Section 10.5. Therefore, notwithstanding any other provision of this Article 10 (other than the Regulatory Allocations), the Company’s designated officer shall make such offsetting special allocations of Taxable Income and Tax Losses in whatever manner the Members determine appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Taxable Income and Tax Losses were allocated pursuant to Section 10.1.

    10.6        No Restoration of Deficit Capital Accounts. No Member shall be required under any circumstances (either during the period of the Company’s operation or upon the Company’s dissolution and termination) to restore a deficit in such Member’s Capital Account or, except as explicitly provided in this Agreement, otherwise make any contribution of cash or property to the Company without such Member’s consent, which may be withheld in such Member’s sole and absolute discretion.

    10.7        Contributed Property. In accordance with the rules of JRC § 704(c) and the Treasury Regulations promulgated thereunder, items of income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its fair market value at the time of contribution.

    10.8        Division Among Members. If there is a change in a Member’s ownership of Units during a fiscal year of the Company, any allocations pursuant to this Article 10 shall be made so as to take into account the varying interests of the Members during the period to which the allocation relates, using the interim closing of the books method for determining such allocations, or upon the unanimous agreement of the Members (including any former Member affected by such allocations), using any method for determining such allocations that is provided in IIRC § 706(d) and the Treasury Regulations promulgated thereunder.

ARTICLE 11
BOOKS OF ACCOUNT, RECORDS AND REPORTS

    11.1        Responsibility for Books of Account and Records. Proper and complete books of account and records shall be kept by or at the direction of the Company’s Treasurer, in which shall be entered fully and accurately all transactions and other matters relative to the Company’s business as are usually entered into books of account and records maintained by Persons engaged in businesses of a like character, including, without limitation, a Capital acount for each Member for any period in which there is more than one Member. The Company’s books of account and records shall be prepared in accordance with generally accepted accounting principles, consistently applied, and shall be kept on the accrual basis, except in circumstances in which the Members determine that another basis of accounting will be in the best interests of the company. The books of account and records shall, at all times, be maintained at the principal place of business of the Company, and shall be open to the inspection and examination of the Members or their duly authorized representatives during reasonable business hours, and any Member may, at such Member’s own expense, examine and make copies of the books of account and records of the Company.

    11.2        Reports to the Members. As soon as practicable in the particular case, the Company’s Treasurer shall deliver or cause to be delivered the following reports to each Member:

    (a)        After the end of each fiscal year, such information concerning the Company as shall be necessary for the preparation by a Member of such Member’s income tax or other tax returns; and

    (b)        Other information as shall be reasonably necessary for the Members to be advised of the results of the Company’s operations.

ARTICLE 12
FISCAL YEAR

        The fiscal year of the Company shall end on September 30 of each calendar year.

ARTICLE 13
THE COMPANY'S FUNDS

        The Company’s funds shall be deposited in such bank account(s), or invested in such interest-bearing or non-interest-bearing investments, as shall be designated by the Members. All withdrawals from any such bank account(s) shall be made by an authorized officer. The Company’s funds shall be held in the name of the Company and shall not be commingled with those of any other Person.

ARTICLE 14
MANAGEMENT OF THE COMPANY

    14.1        Rights and Duties of the Board of Directors.

    (a)               The business and affairs of the Company shall be managed by its Board of Directors. The Board of Directors shall constitute the “manager” of the Company as contemplated under the Act. Except for situations in which the approval of the Members is expressly required in this Agreement or by nonwaivable provisions of the Act, all 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 the direction of, the Board of Directors.


    (b)               The initial number of directors shall be four (4). The exact number of the Company’s directors may be fixed, increased or decreased from time to time by a resolution adopted by a majority of the votes held by Members having voting rights. Directors shall be elected at the first annual Members’ meeting and at each annual meeting thereafter. A decrease in the number of directors shall not shorten an incumbent director’s term. The term of a director elected to fill a vacancy shall expire at the next Members’ meeting at which directors are elected. Despite the expiration of a director’s term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. The Board of Directors of the Company shall be elected separately from the board of directors of any Affiliate of the Company and shall at all times include at least one (1) Independent Director. To the fullest extent permitted by applicable Law, including the Act as in effect from time to time, the Independent Director’s fiduciary duties with respect to any decision on any matter referred to in Section 14.1(j) hereof shall be to the Company (including its creditors) rather than solely to the Members. In furtherance of the foregoing, when voting on matters subject to the vote of the Board of Directors, including those matters specified in Section 14.1(j) hereof, notwithstanding that the Company is not then insolvent, the Independent Director shall take into account the interests of the creditors of the Company as well as the interests of the Company.


    (c)               A director may resign at any time by delivering written notice to the Board of Directors, the Chairman, or the Company. A resignation shall be effective when the notice is delivered unless the notice specifies a later effective date. A director shall be deemed to have resigned effective upon the Incapacity or Disability of such director.


    (d)               One or more directors may be removed, with or without cause, by a majority of the votes held by Members having voting rights.


    (e)               If a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, then (i) the Members may fill the vacancy by a majority of the votes held by Members having voting rights, (ii) the Board of Directors may fill the vacancy, or (iii) if the directors remaining in office constitute fewer than a quorum of the Board of Directors, then they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. Cumulative voting shall not be allowed in voting for directors of the Company.


    (f)               Meetings of the Board of Directors may be called by any director. Notice of the time and place of each meeting of the directors shall be either (i) telephoned or Personally delivered to each director at least 48 hours before the time of the meeting, or (ii) mailed to each director at such director’s last known address at least 96 hours before the time of the meeting. In each case, the Person calling a meeting shall be responsible for providing notice. Notice may be waived by a director in writing. A director’s attendance at or participation in a meeting shall waive any required notice to him of the meeting. No action may be taken at a meeting of the Board of Directors where proper notice has not been given or waived. Actions of the Board of Directors may be taken in lieu of a meeting by written action executed by a majority (or such greater percentage as is required by this Agreement or nonwaivable provisions of the Act) of the directors. The Board of Directors may permit any or all directors to participate in a meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means shall be deemed to be present in Person at the meeting.


    (g)               A quorum of the Board of Directors shall consist of a majority of the directors in office immediately before the meeting begins. If a quorum is present when a vote istaken, which shall be a prerequisite to the taking of any action by the Board of Directors at a meeting, then the affirmative vote of a majority (or such greater percentage as is required by the Agreement or nonwaivable provisions of the Act) of directors present shall be the act of the Board of Directors. A director who is present at a meeting of the Board of Directors when action is taken shall be deemed to have assented to the action taken unless (i) the director objects at the beginning of the meeting (or promptly upon the director’s arrival) to holding it or transacting business at the meeting, (ii) the director’s dissent or abstention from the action taken is entered in the minutes of the meeting, or (iii) the director delivers written notice of the director’s dissent or abstention to the presiding officer of the meeting before its adjournment or to the Company immediately after adjournment of the meeting. The right of dissent or abstention shall not be available to a director who votes in favor of the action taken.


    (h)               The Board of Directors may fix the compensation of directors.


    (i)               The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have two or more members, who serve at the pleasure of the Board of Directors. The provisions of this paragraph 14.1, which govern meetings, quorum and voting requirements of the Board of Directors, shall apply to committees and their members as well. To the extent specified by the Board of Directors, each committee may exercise the authority of the Board of Directors under this paragraph 14.1.


    (j)               Notwithstanding any other provision of this Agreement or any provision of Law that otherwise so empowers the Company, the Company shall not and the Members shall not cause the Company to, without the unanimous vote of the entire Board of Directors, including the Independent Director, do any of the following: (i) engage in any business or activity other than as set forth in Article 4 hereof; (ii) create or incur any indebtedness, or assume or guaranty any indebtedness of any other Person, other than indebtedness permitted by the Credit Documents; (iii) dissolve or liquidate, in whole or in part, consolidate or merge with or into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person; (iv) take any action that might cause the Company to become insolvent; (v) institute or participate in proceedings to be adjudicated bankrupt or insolvent, or consent to the Institution of bankruptcy or insolvency proceedings against it or file a petition seeking, or consent to, reorganization, liquidation or relief under any applicable federal or state law relating to bankruptcy, insolvency, reorganization or dissolution, or seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take company action in furtherance of any such action; (vi) commence any case, proceeding or other action on behalf of the Company under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors; (vii) increase or reclassify the Units of the Company or issue any additional Units of the Company; (viii) engage in any other action that bears upon whether the separate identity of the Company will be respected, or the assets of the Company will be consolidated with those of any other Person under applicable federal or state bankruptcy or insolvency Law; or (ix) take any action or cause the Company to take any action in furtherance of any of the foregoing. Notwithstanding any other provision of this Agreement or any provision of Law that otherwise so empowers the Company, the Company shall not take any company action in connection with any merger of the Company into, or consolidation or amalgamation of the Company with, any other Person or any merger of any other Person into the Company unless all the following conditions are satisfied: (A) the Person formed by such consolidation, amalgamation or merger (1) shall be a limited liability company organized and existing under the laws of the United States of America, any state thereof or the District of Columbia; provided that the Law of such jurisdiction expressly permits a director of a limited liability company to owe fiduciary duties to the creditors of such limited liability company, (2) shall have an operating agreement containing provisions substantially similar to the provisions of Article 4 hereof and this Section 14.1 (j) and require the Board of Directors to have an Independent Director, and (3) shall expressly assume the due and punctual payment and performance of all obligations of the Company in connection with all indebtedness of the Company; (B) immediately after giving effect to such transaction, no default or event of default shall have occurred and be continuing under any agreement to which the Company is a party; and (C) such action shall be authorized by (1) the unanimous vote of the Members entitled to vote thereon, and (2) the unanimous vote of the entire Board of Directors, including the Independent Director.


    (k)               The following individuals shall serve as directors on the initial Board of Directors: Albert E. Cinelli, John P. Cinelli, John C. Greenbank and Evelyn Echevarria.


    (1)               The Board of Directors shall appoint from among their members a Chairman, who shall preside at meetings of the Board of Directors. The initial Chairman shall be Albert E. Cinelli.


    14.2        Officers.

    (a)               The Company shall have a President, a Secretary and a Treasurer, all of whom shall be appointed by the Board of Directors, and who shall serve at the pleasure of the Board of Directors. The Company may also have such other officers as the Board of Directors may deem necessary, all of whom shall be appointed by the Board of Directors, the majority vote of the Members or appointed by an officer or officers authorized by the Board of Directors.


    (i)               The President shall have:


    (A)                      General charge and authority over the business of the Company, subject to the direction of the Board of Directors;


    (B)                      Authority to preside at all meetings of the Board of Directors in the absence of the Chairman;


    (C)                      Authority acting alone, except as otherwise directed by the Board of Directors or prohibited by this Agreement, to sign and deliver any document on behalf of the Company, including, without limitation, any deed conveying title to any real estate owned by the Company and any contract for the sale or other disposition of any such real estate;


    (D)                      Authority to appoint all officers of the Company and to delegate all or any of his power and authority to such officers; and


    (E)                      Such other powers and duties as the Board of Directors may assign.


    (ii)               The Secretary shall:


    (A)               Issue notices of all meetings for which notice is required to be given;


    (B)               Have responsibility for preparing minutes of the directors’ and members’ meetings and for authenticating records of the Company;


    (C)               Have charge of the Company’s record books; and


    (D)               Have such other duties and powers as the Board of Directors or the President may assign.


    (iii)               The Treasurer shall:


    (A)               Keep adequate and correct accounts of the Company’s affairs and transactions, and


    (B)               Have such other duties and powers as the Board of Directors or the President may assign.


    (iv)               Other officers and agents of the Company shall have such authority and perform such duties in the management of the Company as the Board of Directors or the President may assign to them.


    (v)               The initial officers of the Company shall be as follows:


  John P. Cinelli
Bob Bye
Lohn Weber 		President
Secretary
Vice President/Chief Financial
Officer/Treasurer

    14.3        Members.

    (a)               No Member shall have the power or authority to bind the Company unless the Member has been authorized in writing by the Board of Directors to act as an agent of the Company.


    (b)               Meetings of the Members shall be held at such times and places as are set by Members holding a majority of the outstanding Units entitled to vote. Meetings of the Members may be called by any Member or Members owning fifty percent (5 0%) of the Units upon at least ten (10) calendar days’ prior written notice to the Members. The notice for a meeting shall state the purpose or purposes of such meeting and shall provide the time and place of such meeting, which shall be at the Company’s principal office unless the Members unanimously consent to a different location. A Member may waive any notice required by this Agreement before or after the date and time stated in the notice. The waiver shall be in writing and be delivered to the Company for inclusion in the minutes or filing with the Company’s records. Attendance at a meeting shall constitute a waiver of any objection as to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. Meetings may be held by any means of communication by which all the Members participating may simultaneously hear each other during the meeting.


    (c)               A quorum of the Members shall consist of Members holding a majority of the Units having voting rights. If a quorum is present when a vote is taken, which shall be a prerequisite to the taking of any action of the Members at a meeting, then the affirmative vote of a majority (or such greater percentage as is required by this Agreement or nonwaivable provision of the Act) of the Units held by Members in attendance at the meeting and having voting rights shall be the act of the Members.


    (d)               Actions of the Members may be taken by written action executed by Members owning Units constituting a majority (or such greater percentage as is required by this Agreement or nonwaivable provision of the Act) of the votes held by Members having voting rights.


    14.4        Additional Restrictions.

    (a)               Until three hundred sixty-seven (367) days have elapsed following payment in full of all Notes (as defined in the Indenture), all interest thereon and all other amounts payable by the Company under the Indenture, the Company and the Members shall not, without the prior written consent of the Independent Director, amend, alter, change, restate, repeal or otherwise modify any provision of this Agreement.


    (b)               The Company and its directors and officers shall at all times, until three hundred sixty-seven (367) days have elapsed following payment in full of all Notes, all interest thereon and all other amounts payable by the Company under the Indenture:


    (i)               Not change its legal structure to anything other than a limited liability company;


    (ii)               Maintain a separate office which shall be physically separate from space occupied by KiDL or any of its Affiliates (but may be separate space occupied solely by the Company at the offices of KDL or any of its Affiliates) and clearly identify the Company’s offices (by signage or otherwise) and to the extent any of the Company’s offices are located in the offices of KDL or any of its Affiliates, pay fair market rent for its office space located in the offices of KDL or any of its Affiliates and a fair share of any overhead costs;


    (iii)               Not appoint KDL or any of its Affiliates as agent of the Company;


    (iv)               Maintain the Company’s books, financial statements, accounting records and other corporate documents and records separate from those of KDL or any other Person (except to the extent that consolidated financial statements are required under generally accepted accounting principles; provided, however, that such consolidated financial statements have detailed notes clearly stating that the Company is a separate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of the Company);


    (v)               Maintain the funds and other assets of the Company separate from, and not commingled with, those of KDL or any other Person and maintain only bank accounts or other depository accounts to which the Company alone is the account party, into which the Company alone makes deposits and from which the Company alone (or its assign) has the power to make withdrawals;


    (vi)               Maintain the Company’s books of account and payroll (if any)separate from those of KDL or any Affiliate of KDL;


    (vii)               Separately manage the Company’s liabilities from those of KDL or any Affiliates of KDL and pay its own liabilities, including all administrative expenses, from its own separate assets, and to the extent any expenses are shared with KDL, allocate such shared expenses (including without limitation telephone, utility and all other overhead expenses) on the basis of actual use to the extent practicable, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use, and the Company shall reimburse KDL for its allocable portion of shared expenses paid by KDL;


    (viii)               Pay from the Company’s assets all obligations and indebtedness of any kind incurred by the Company;


    (ix)               Act solely in its company name and through its own authorized officers and agents and, require that all full-time employees of the Company, if any, identify themselves as such and not as employees of KDL, including, without limitation, by means of providing such employees with business or identification cards which identify such employees as the Company’s employees;


    (x)               Maintain a separate telephone number, which will be answered only in the name of the Company and separate stationery, invoices and checks only in the name of the Company;


    (xi)               Conduct all transactions with KDL and any other Affiliate of the Company strictly on an arm’s length basis and only pursuant to practices and policies adopted by a majority of the Board of Directors, including the Independent Director;


    (xii)               Maintain the Company’s assets such that the assets are readily identifiable as assets of the Company and not those of KDL or any other Person;


    (xiii)               Not permit the Company to be named as an insured on the insurance policy covering the property of KDL or its Affiliates, or enter into an agreement with the holder of such policy whereby in the event of a loss in connection with such property, proceeds are paid to the Company;


    (xiv)               Compensate all employees, consultants and agents directly, from the Company’s bank accounts, for services provided to the Company by such employees, consultants and agents, and to the extent any employee, consultant or agent of the Company is also an employee, consultant or agent of KDL, allocate the compensation of such employee, consultant or agent between the Company and KDL on a basis which reflects the services rendered to the Company and KDL;


    (xv)               Not hold out its credit as being able to satisfy the obligations of others or pay from its assets the obligations of others;


    (xvi)               Maintain adequate capital in light of its contemplated business operations;


    (xvii)               Observe all applicable company formalities and maintain appropriate minutes or other company records, including, without limitation, written consents, of all appropriate actions, including actions required to be approved by the Independent Director, and conduct meetings if deemed necessary to approve any company action;


    (xviii)               Maintain a sufficient number of employees in light of its contemplated business operations;


    (xix)               Not acquire obligations or securities of Affiliates;


    (xx)               Not make loans to, or pledge its assets for the benefit of, any other Person;


    (xxi)               Hold itself out as a separate entity and correct any known misunderstanding regarding its separate identity;


    (xxii)               Not identify itself or any of its Affiliates as a division or part of the other; and


    (xxiii)               Not assume or guarantee the liabilities of RDL or any Affiliate of KDL.


        The officers and directors of the Company (as appropriate) shall make decisions with respect to the business and daily operations of Company independent of and not dictated by KDL or any Affiliate of KLDL.

ARTICLE 15
RESTRICTIONS ON DISPOSITIONS AND ENCUMBRANCES OF UNITS

    15.1        Bankruptcy; Incapacity.

    (a)               In the event there is remaining at least one Member who has not suffered a Bankruptcy or Incapacity, upon the Bankruptcy or Incapacity of any Member, that Member shall be deemed to be an Inactive Member, and all acts, consents and decisions with respect to the Company shall thereafter be made by the other Members. The Inactive Member shall, nonetheless, be entitled to receive such Member’s share of any distributions.


    (b)               For one hundred eighty (180) days from and after the date a Member becomes an Inactive Member pursuant to Section 15.1(a), the other Members shall have an irrevocable option, pro rata in accordance with the relative ownership of Units of Members exercising their option or in such other proportions to which such Members may agree (including through redemption of the Units by the Company) to purchase the Inactive Member’s Units. If any Member elects to purchase all or any of the Inactive Member’s Units, the Member shall notify the Inactive Member of such party’s intention to do so within such 180-day period, and such Units shall be purchased by the other Members exercising their option in proportion to their respective Units at that time or in such other proportion as such Members may mutually agree. The purchase price of an Inactive Member’s Units purchased pursuant to this Section 15.1 shall be the Contract Price as defined by Section 15.8, and shall be payable at the time and in the manner specified in Section 15.9. If the other Members purchase less than all of the Inactive Member’s Units, then the Inactive Member shall remain as such with respect to the Units not purchased.


    15.2               Injunctive Relief. The Members agree that a breach of the provisions of this Article may cause the Company irreparable harm for which monetary damages (or other remedy at law) are inadequate in view of (a) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provisions, and (b) the uniqueness of the Company business and the relationship among the Members. Accordingly, the Members consent in advance to the entry of an order for injunctive relief or directing specific performance as a remedy for any breach of the provisions of this Article.

    15.3        Restrictions on Dispositions.

    (a)               Except for any Encumbrance created pursuant to the Membership Unit Pledge Agreement (as defined in the Indenture) and any Disposition pursuant to the terms thereof, all of which are hereby expressly approved by the Members, no Member shall Dispose of all or any part of such Member’s Units, except in compliance with this Agreement. Except as otherwise provided in this Agreement, a Member may Dispose of all or any portion of its Units only with the approval of the Board of Directors, which consent may be withheld by any member of the Board of Directors in such member’s sole and absolute discretion. The disposition of any Member’s Units, in whole or in part, whether or not in compliance with this Agreement, shall not release the Member making such Disposition from such Member’s obligations under this Agreement unless the transferee of such Units is unanimously approved as a substituted Member by the other Members, which consent may be withheld by any Member in its sole and absolute discretion, and the transferee, in writing, assumes the obligations of the Member making such Disposition and acknowledges and agrees to be bound by this Agreement. Any Member who attempts to Dispose of such Member’s Units in violation of this Agreement, whether by operation of law or otherwise, shall be deemed to have become an Inactive Member and shall further be deemed to have granted the Company and the Members the option to purchase such Member’s Units at seventy-five percent (75%) of the Contract Price, subject to the terms (other than the purchase price) of Section 15.1(b). The approved Disposition pursuant to this Section 15.3 shall confer upon the transferee the right to become a substituted Member, in the following manner and subject to the following conditions (any or all of which may be waived by the unanimous consent of the Members):


    (i)               Each Disposition shall be effective as of the day that the Members approve the Disposition;


    (ii)               No Disposition will be effective if the Disposition would, in the opinion of counsel to the Company (or other counsel acceptable to the Members), contravene the then applicable rules of any Governmental Authority;


    (iii)               No Disposition to a minor or incompetent shall be effective in any respect, except that this limitation shall not apply to a Disposition in trust for the benefit of a minor or in custodianship under the Uniform Transfers to Minors Act or similar legislation;


    (iv)               Each transferee that is not a previously approved Member shall, in writing, ratify and agree to be bound by the terms of this Agreement;


    (v)               The Board of Directors shall have received a copy of the instrument pursuant to which the Disposition is effected;


    (vi)               The Board of Directors shall have received an instrument, executed by the Member making the Disposition and the transferee, containing the following information, commitments and agreements, to the extent they are not contained in the instrument described in Section l5.3(a)(v):


    (A)               The notice address of the transferee;


    (B)               After giving effect to the Disposition, the commitments of the new Member to make Capital Contributions, if any, to the Company in accordance with this Agreement; and


    (C)               Representations and warranties by the Member making the Disposition and the transferee that the Disposition and admission are being made in accordance with all applicable Laws; and


    (vii)               A favorable opinion of legal counsel reasonably acceptable to the Members, to the effect that the Disposition and admission (A) are being made pursuant to a valid exemption from registration under the Securities Act of 1933 and applicable state securities laws and in accordance with those laws, and (B) in the event there is more than one (1) Member, would not result in the Company being considered to have been terminated within the meaning of the Code.


    (b)               The transferee of Units who is not approved as a substituted Member by the remaining Members shall be deemed to be an Inactive Member. Such Disposition merely entitles the transferee to receive the share of any distributions to which the Member making the Disposition would otherwise be entitled, and the transferee shall have only those rights specified in the Act (as limited by this Agreement), and the Member making the Disposition shall remain liable for such Member’s obligations, if any, under this Agreement.


    15.4               Payment of Expenses. The Member effecting a Disposition or Encumbrance shall pay, or reimburse the Company for, all costs and expenses incurred by the Company in connection with the Disposition or Encumbrance, on or before the tenth (10th) day after receipt by that Person of the Company’s invoice for the amount due.

    15.5               Encumbrance of Units. A Member may not Encumber all or any portion of its Units without the unanimous consent of the Members, which consent may be withheld by any Member in its sole and absolute discretion; provided, however, that this Section shall not apply to Encumbrances by a Member in favor of one or more lenders providing financing to the Company. Any attempted Encumbrance by a Member of all or a portion of such Member’s Units, other than in accordance with this Section, shall be, and is hereby declared, null and void ab initio.

    15.6               Right of First Refusal. If a bona fide offer in writing, signed by the offeror, shall have been made to a Member for the purchase of some or all of such Member’s Units (the “Offeree Member”), and such Member desires to accept the offer, then a true copy of such offer shall be forwarded to the other Members. Unless the offeror is an Affiliate, the other Members shall have the option, pro rata in accordance with the relative ownership of Units of Members exercising their option or in such other proportion to which such Members may agree (including through redemption of the Units by the Company) to be exercised by written notice to such effect to the Offeree Member within twenty (20) days after receipt of the offer by the other Members, to purchase the Offeree Member’s Units on the same terms and conditions as are contained in the offer. Such notice of acceptance shall set the closing date for the consummation of the transaction, which shall not be for a date beyond thirty (30) days from the mailing of such acceptance by the Members exercising their options, or beyond the date of closing set forth in the offer, whichever date is later, and shall also set forth the time and place of closing, which shall be at the Company’s principal place of business and shall occur during usual business hours. If the other Members do not send a notice of acceptance to the Offeree Member within the prescribed time, are not ready, willing, and able to consummate the purchase on the closing date or the offeror is an Affiliate, then the Offeree Member shall have the right to sell its Units to the offeror, provided that, if the offeror is not an Affiliate, the Disposition (a) is consummated within 60 days after expiration of the 20-day period, and (b) is made strictly in accordance with the terms of the offer and on no more favorable terms to the offeror. The Disposition of Units pursuant to this Section shall not entitle the transferee to become a ubstituted Member unless the Disposition of the Units is approved pursuant to Section 15.3.

    15.7               AssigneesITransferees Bound by This Agreement. Any assignee or Personadmitted to the Company as a substituted Member shall be subject to and bound by all provisionsof this Agreement as if originally a party to this Agreement.

    15.8               Contract Price.

    (a)               The “Contract Price” shall equal the fair market value of the Units that are the subject of the Disposition as of the date of the event triggering the Disposition. The fair market value shall be determined by agreement of the Members within thirty (30) days after the event triggering the Disposition. If the Members cannot determine the fair market value of the Units that are the subject of the Disposition, then an appraiser that shall be selected in accordance with Section 15.8(b) shall determine the fair market value of such Units, taking into account the terms of this Agreement and restrictions on such Units as set forth in this Agreement and the Act.


    (b)               If the appraisal of Units is required pursuant to Section 15.8(a), then the Members shall unanimously appoint an appraiser, or, if the Members cannot or do not appoint an appraiser, the Company’s regularly employed accounting firm shall select the appraiser. The cost of the appraiser shall be split between the Member making the Disposition of Units being appraised and the Company. The decision of the appraiser shall be final and binding upon the Members and the Company.


    15.9               Time and Manner of Payment.

    (a)               Any Units Disposed of to the Company or the other Members pursuant to this Article 15, other than pursuant to Section 15.6 (provided that the terms of the offer include payment terms), shall be paid for, at the purchaser’s option, either (i) all in cash at the time the Units are Disposed, or (ii) by a down payment computed in accordance with Section 15.9(b) and delivery of a promissory note signed by the purchaser(s) for the balance of the applicable purchase price. The closing on the Disposition of any Units shall occur within thirty (30) days after determination of the Contract Price, unless otherwise specified in this Agreement or in that option or offer.


    (b)               If the purchaser(s) elect(s) the second option in Section 15.9(a), then such purchaser(s) shall pay as a down payment twenty percent (20%) of the applicable purchase price. The remaining unpaid portion of the purchase price shall be represented by a promissory note of such purchaser(s), in such form as shall be reasonably acceptable to the Member making the Disposition, and providing for four equal annual installments of the remaining unpaid portion of the purchase price, with each installment due on the anniversary of the disposition of the Units. That promissory note shall provide for the payment of interest with each payment of principal on the unpaid portion of that promissory note from time to time, at the Prime Rate, as adjusted each January 1 and July 1, compounded semi-annually.


    15.10               Rights of a Disassociated Member. The rights and obligations of a disassociated Member under this Article are in lieu of any rights that such Member might have under the Act. Except as otherwise provided in this Agreement, no occurrence of an event of disassociation of a Member under the Act shall cause a disassociation of such Member from the Company.

    15.11               Dispositions to Affiliates. Notwithstanding any provision of this Agreement to the contrary, any Member shall be entitled to Dispose of all, or any portion, of such Member’s Units to an Affiliate free of any restrictions or requirements in this Article (including, without limitation, the requirement that the Affiliate be approved as a substituted Member by the unanimous consent of the Members), so long as the Affiliate and the Disposition satisfy all the obligations and conditions of a transferee and a Disposition, as applicable, under Section 15 .3(i)-(vii).

ARTICLE 16
DISSOLUTION OF THE COMPANY

    The occurrence of any one of the following events, as provided below, shall cause a dissolution of the Company:


    (a)               Subject to winding up and termination of the Company pursuant to Article 17, the sale or other disposition of all or substantially all of the assets of the Company in compliance with Section 14.1(j) hereof; or


    (b)               Subject to winding up and termination of the Company pursuant to Article 17, the approval by the Members, pursuant to Section 14.3(c), and the Independent Director of the dissolution of the Company.


    Except as provided in this Article 16, no event of disassociation of a Member or a director under the Act or event of dissolution under the Act shall cause a dissolution of the Company.


ARTICLE 17
WINDING UP LIQUIDATING DISTRIBUTIONS TERMINATION

    17.1               Winding Up.

    (a)               In the event of the dissolution of the Company for any reason, then the Members shall commence to wind up the affairs of the Company and to liquidate the Company’s assets. If there is more than one (1) Member at the time the Company is dissolved and liquidated, the Members shall continue to share profits and losses during the period of liquidation in accordance with Article 10. The Members shall determine whether the Company’s assets are to be sold or distributed to the Members in dissolution of the Company. If the Company’s assets are distributed to the Members, then all such assets shall be valued at their then fair market value as determined by the Members and, in the event such dissolution occurs at a time when there is more than one Member, the difference, if any, of such fair market value over (or under) the adjusted basis of such assets to the Company shall be credited (or charged) to the Capital Accounts of the Members in accordance with Article 10. Fair market value shall be used for purposes of determining the amount of any distribution to a Member pursuant to Section 17.2.


    (b)               If the Members are unable to agree on the fair market value of any Company asset, then the fair market value shall be determined by a qualified independent appraiser selected by the Members or, if no appraiser can be agreed upon by the Members, then selected by the Company’s regularly employed accounting firm.


    17.2               Liciuidating Distributions. Subject to the right of the Board of Directors to set up such cash reserves as may be deemed reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company, the proceeds of the liquidation and any other funds of the Company shall be distributed to:

    (a)               Creditors, in the order of priority as provided by Law, including, to the extent permitted by Law, Members who are creditors;


    (b)               The Members as creditors, to the extent they did not receive distributions pursuant to Section 17.2(a), and to Members in satisfaction of the Company’s liability for distributions under § 18-601 and/or § 18-604 of the Act;


    (c)               In the event that there is more than one Member at the time of the liquidation, the Members in proportion to their respective Capital Accounts until they have received an amount equal to their Capital Accounts immediately prior to such disposition, but after adjustment for gain or loss with respect to the disposition of the Company’s assets incident to the dissolution of the Company and the winding up of its affairs, whether or not the distribution occurs prior to the dissolution of the Company; and


    (d)               The Members in accordance with their Units.


    17.3               Rights of the Members. Each Member shall look solely to the Company’s assets for all distributions with respect to the Company, his Capital Contribution (including the return thereof), and share of profits, and shall have no recourse therefore (upon dissolution or otherwise) against any other Member.

    17.4        Termination. Upon complete liquidation of the Company and distribution of all Company funds, the Company shall terminate.


ARTICLE 18
LIABILITY AND INDEMNIFICATION

    18.1               Limited Liability.

    (a)               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 no Covered Person shall be obligated Personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person. No Member shall be liable for the debts or liabilities of any other ember.


    (b)               Except as otherwise expressly required by Law, a Member, in its capacity as Member, shall have no liability in excess of (i) the amount of its Capital Contribution, (ii) its share of any assets and undistributed profits of the Company, (iii) its obligation to make other payments expressly provided for in this Agreement, and (iv) the amount of any distributions wrongfully distributed to it.


    (c)               No Member shall be liable for the return of all or any portion of the Capital Contribution of any other Member.


    (d)               Except as otherwise expressly provided herein, no Member shall have any priority over any other Member as to the return of its Capital Contribution or as to compensation by way of income.


    18.2               Exculpation and Indemnification.

    (a)               The doing of any act or the failure to do any act by any Covered Person, the effect of which may cause or result in loss or damage to the Company, if done or omitted to be done in good faith reliance upon advice of independent legal counsel or accountants employed by or on behalf of the Company, or if done or omitted to be done in good faith and in a manner reasonably believed to be within the scope of the authority granted by this Agreement and in or not opposed to the best interests of the Company, shall not subject any such Person to any liability to the Company or the Members; provided, however, that the foregoing shall not relieve any Person of liability hereunder if it shall have been determined by a court of competent jurisdiction that such Person committed an act of fraud, Gross Negligence or Willful Misconduct.


    (b)               To the fullest extent permitted by Law, the Company shall indemnify any Covered Persons and shall save and hold each harmless from and in respect of all: (i) fees, costs and expenses incurred in connection with or resulting from any claim, action or demand against the Covered Person (including any claim, action or demand arising under common law or statute), including attorneys’ fees, which arises out of or in any way relates to the Company, its properties, business or affairs, or which arises by reason of any of them being a Covered Person; and (ii) such claims, actions and demands and any losses or damages resulting therefrom (including all claims, actions and demands arising under common law or statute), including amounts paid in settlement or compromise of any such claim, action or demand; provided that this indemnity shall not extend to conduct by any Covered Person, if it shall have been determined by a court of competent jurisdiction that such Person committed an act of fraud, Gross Negligence or Willful Misconduct.


    (c)               The foregoing right of indemnification shall be in addition to any rights to which any Member or Covered Person may otherwise be entitled (under the Act or otherwise) and shall inure to the benefit of the executors, administrators, Personal representatives, successors or assigns of each such Person.


    18.3               Expenses.

    (a)               The Company shall pay the expenses incurred by any Covered Persons acting on behalf of the Company in defending a civil or criminal action, suit or proceeding against the Company or any Covered Person, upon receipt of an undertaking by such Person to repay such payment if such Person shall be determined not to be entitled to indemnification therefore as provided herein. Any right of indemnity granted under this Article may be satisfied only out of the assets of the Company, and no Member shall Personally be liable with respect to any such claim for indemnification.


    (b)               The Company shall cause to be paid all expenses of the Company which may include, but shall not be limited to: (i) all costs of borrowed money; (ii) legal, audit, accounting, brokerage, and other fees; (iii) fees and expenses paid to independent contractors; (iv) the cost of any insurance obtained in connection with the business of the Company; (v) expenses of revising, amending, converting, modifying or terminating this Agreement or the existence of the Company; (vi) expenses in connection with distributions made by the Company to, and communications and bookkeeping and clerical work necessary in maintaining relations with, Members; and (vii) costs of any accounting, statistical or bookkeeping services and equipment necessary for the maintenance of the books and records of the Company.


    18.4               Insurance. The Members shall have the power on behalf of the Company to purchase and maintain insurance in reasonable amounts on behalf of the Board of Directors against any liability which it incurs in its capacity as such, whether or not the Company has the power to indemnify it against such liability.

ARTICLE 19
MISCELLANEOUS

    19.1               Notices. All notices, approvals, consents and demands required or permitted under this Agreement shall be in writing and sent by hand delivery, facsimile, overnight mail, certified mail or registered mail, postage prepaid, to the Members at their addresses as shown from time to time on the records of the Company, and shall be deemed given when delivered by hand delivery, transmitted by facsimile or mailed by overnight, certified or registered mail. Any Member may specify a different address by notifying the other Members and the Company in writing of the different address.

    19.2               Governing Law. This Agreement and the rights of the parties to this Agreement shall be governed by and interpreted in accordance with the Laws of the State of Delaware, without regard to or application of its conflict of laws principles.

    19.3               Benefit and Binding Effect. Except as otherwise specifically provided in this Agreement, this Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement, and their legal representatives, heirs, administrators, executors, successors and permitted assigns.

    19.4               Headings: Annexes and Schedules. The headings contained in this Agreement are inserted only as a matter of convenience, and in no way define, limit or extend the scope or intent of this Agreement or any provision of this Agreement.

    19.5               Partial Enforceability. If any provision of this Agreement, or the application of any provision to any Person or circumstance shall be held invalid, illegal or unenforceable, then the remainder of this Agreement, or the application of that provision to Persons or circumstances other than those with respect to which it is held invalid, illegal or unenforceable, shall not be affected thereby.

    19.6               Previous Agreements. This Agreement shall supersede all previous agreements of the parties to this Agreement with respect to the matters to which this Agreement pertains.

    19.7               Enforcement. In the event of a breach or threatened breach by a Member of any of the provisions of this Agreement, the Company shall be entitled to obtain a temporary restraining order and temporary and permanent injunctive relief without the necessity of proving actual damages by reason of such breach or threatened breach, and to the extent permissible under the applicable statutes and rules of procedure, a temporary injunction or restraining order may be granted immediately upon the commencement of any such suit and without notice. Nothing in this Agreement may be construed as prohibiting the Company from pursuing any other remedy or remedies, including without limitation, the recovery of damages. The Company shall have the right to set off any such damages against any amounts otherwise payable by it to the Member under this Agreement or otherwise. Each Member further covenants and agrees to indemnify and hold the Company harmless from and against all costs and expenses, including legal or other professional fees and expenses incurred by the Company in connection with or arising out of any proceeding instituted by the Company against the Member to enforce the terms and provisions of this Agreement if the Company is successful in whole or in part in such proceeding.

    19.8               Scope. If any one or more of the provisions of this Agreement shall for any reason be held to be excessively broad as to time, duration, geographical scope, activity, or subject, each such provision shall be construed, by limiting and reducing it, so as to be enforceable to the extent compatible with applicable Law then in force.

    19.9               No Waiver. No waiver by any party to this Agreement at any time of a breach by any other party of any provision of this Agreement to be performed by such other party shall be deemed a waiver of any similar or dissimilar provisions of this Agreement at the same or any prior or subsequent time.

    19.10               Amendments. Any amendments, modifications, renewals, alterations or replacements of or to this Agreement shall be in writing and signed by Members holding seventy percent (70%) of the Units entitled to vote. Each Member agrees to execute any document altering, amending, modifying, renewing or replacing this Agreement which is approved pursuant to this Section 19.10, and further agrees that such Member shall be bound by any document so approved regardless of whether such Member executes such document.

    19.11               No Third-Party Beneficiary. It is specifically agreed between the parties executing this Agreement that it is not intended by any of the provisions of the Agreement to make the public, or any member thereof, a third-party beneficiary under the Agreement, or to authorize anyone not a party to this Agreement to maintain a suit for damages pursuant to the terms or provisions of this Agreement. The duties, obligations, and responsibilities of the parties to this Agreement with respect to third parties shall remain as imposed by Law. Notwithstanding the foregoing, it is specifically agreed that certain provisions of this Agreement inure to the direct benefit of the holders of Notes (as defined in the Indenture) and such holders are entitled to rely on such provisions.

    19.12               Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

    19.13               Partition. The Members agree that the Company’s assets are not and will not be suitable for partition. Accordingly, each of the Members irrevocably waives any and all right such Member may have to maintain any action for partition of any of the Company’s assets. No Member shall have any right to any specific assets of the Company upon the liquidation of, or any distribution from, the Company.

    19.14               Representations and Warranties of the Members. Each Member warrants, represents, agrees and acknowledges: (a) that it has adequate means of providing for its own current needs and foreseeable future contingencies and anticipates no need now or in the foreseeable future to sell its Units; (b) that it is acquiring its Units for its own account as a long-term investment and without a present view to make any distribution, resale or fractionalization thereof; (c) that it and its independent counselors have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the investment involved in its acquisition of its Units and they have evaluated the same; (d) that it is able to bear the economic risks of such investment; (e) that it and its independent counselors have made such investigations of the Company (including its business prospects and financial condition) and the Members, have had access to all information regarding the Company and the Members, and have had an opportunity to ask all of the questions regarding the Company and the Members, in each case as they deem necessary to fully evaluate its investment therein; (f) that in connection with its acquisition of Units, it has been fully informed by its independent counsel as to the applicability of the requirements of the Securities Act of 1933, as amended (the “Securities Act”) and all applicable state securities or “blue sky” laws to its Units; and (g) that it understands that (i) its Units are not registered under the Securities Act or any state securities law, (ii) there is no market for its Units and it will be unable to transfer its interest unless such is so registered or unless the transfer complies with an exemption from such registration (evidence of which must be satisfactory to counsel for the Company), (iii) such Units cannot be expected to be readily transferred or liquidated; and (iv) its acquisition of Units in the Company involves a high degree of risk.

    IN WITNESS THEREOF, the parties hereto have executed or caused their duly authorized representatives to execute this Agreement effective as of the date first set forth above.


  KENTUCKY DATA LINK, INC.


By: /s/ Albert E. Cinelli

Name: Albert E. Cinelli

Title: Chairman

ANNEX A

TO OPERATING AGREEMENT

OF KDL HOLDiNGS, LLC

          Member Name
           and Address

 Kentucky Data Link, Inc.
 1419 West Lloyd Expressway, Suite 101
 Evansville, Indiana 47710 		  Units of
Membership

   1,000
EX-99 82 b-461.htm LLC AGREE EPCOM COLLEGE PARK LLC Agree Cinergy EPCOM College Park

LIMITED LIABILITY COMPANY AGREEMENT

OF

Cinergy EPCOM College Park, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of August 20, 1999, of Cinergy EPCOM College Park, LLC, a Delaware limited liability company (the “Company”), by Cinergy Solutions, Inc., a Delaware corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on August 20, 1999 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of August 20, 1999;

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 EPCOM College Park, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Solutions, Inc.



By: ___________________
       Donald B. Ingle, Jr.
       President
EX-99 83 b-462.htm LLC AGREE EPCOM LLC Agree Cinergy EPCOM

LIMITED LIABILITY COMPANY AGREEMENT

OF

Cinergy EPCOM, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of August 20, 1999, of Cinergy EPCOM, LLC, a Delaware limited liability company (the “Company”), by Cinergy Solutions, Inc., a Delaware corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on August 20, 1999 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of August 20, 1999;

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 EPCOM, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Solutions, Inc.



By: ___________________
       Donald B. Ingle, Jr.
       President
EX-99 84 b-463.htm LLC AGREE CINCAP VIII LLC Agree CinCap VIII

LIMITED LIABILITY COMPANY AGREEMENT

OF

CinCap VIII, LLC

        This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of December 2, 1998, of CinCap VIII, LLC, a Delaware limited liability company (the “Company”), by Cinergy Capital & Trading, Inc., an Indiana corporation, as the sole member of the Company (the “Member”);

RECITALS

        WHEREAS, the Company was formed on December 2, 1998 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of December 2,

1998; 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 “CinCap VIII, 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, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually 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 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 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 subordinate 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual.

        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 in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith.

        Section 8.3 Distribution of Assets. 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes.

        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 Internal Revenue Code of 1986, as amended (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, 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 the 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 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. 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 validate 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Capital & Trading, Inc.



By: Madeleine W. Ludlow
       Madeleine W. Ludlow
       President
EX-99 85 b-464.htm A&R LLC AGREE SOLUTIONS OF PA LLC Agree Cinergy Solutions of Philadelphia

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

CINERGY SOLUTIONS OF PHILADELPHIA, LLC

        This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of October 1, 2001, of Cinergy Solutions of Philadelphia, LLC, a Delaware limited liability company (the “Company”), by Cinergy Solutions, Inc., a Delaware corporation, as the sole member of the Company (the “Member”) with reference to the following facts:

        The Member now wishes to replace the Initial Limited Liability Company Agreement, dated May 11, 2001, in its entirety by entering into this Agreement to provide for the governance of the Company and the conduct of its business as a limited liability company. This Agreement shall be considered the “Limited Liability Company Agreement” of the Company within the meaning of Section 18-101(7) of the Delaware Limited Liability Company Act (the Act).

        NOW THEREFORE, the Initial Limited Liability Company Agreement is wholly replaced and superceded by this Agreement in its entirety and this Agreement shall read as follows:

RECITALS

        WHEREAS, the Company was formed on May 11, 2001 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the “Act”);

        WHEREAS, the Member holds 100% of the membership interest in the Company as of May 11, 2001; 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 Solutions of Philadelphia, 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, 1209 Orange Street, Wilmington, New Castle County, Delaware.

    (b)        The business address of the Company is 139 East Fourth Street, Cincinnati, Ohio, or such other place as the Member shall designate.

        Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all 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, 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.

ARTICLE III

Member(s)

        Section 3.1 Admission of Member(s). The Member shall hold a 100% initial ownership Interest in the Company. New member(s) shall be admitted only with the approval of the Member.

      Section 3.2 Classes.

    (a)        The membership interests of the Company shall consist of common membership

interests (“Common Interests”).

    (b)        All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s).

      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 capital contribution 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, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s).

    (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).

    (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, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote.

        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. Any member may at any time call a meeting of the member(s). 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(s) may delegate any of its powers to officers of the Company or 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).

        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 who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, 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 shall serve without compensation from the Company, and the Member shall bear the cost of its participation in meetings and other activities of the Company.

      Section 4.2 Officers.

    (a)        Election, Term of Office. Officers shall be elected annually by the member(s).

Except as provided in paragraphs (b) or (c) of this Section 4.2, 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) 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. 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). 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. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the “Allocation Regulations”), so that the tax allocations provided in this Agreement shall, to the extent possible, have “substantial economic effect” within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be “in accordance with the member(s’) interests in the Company” 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 capital accounts.

        Section 5.3 Allocation of Distributions. The distributions 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 capital accounts.

ARTICLE VI

Distribution

        Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company.

ARTICLE VII

      Assignment of Membership and Common Interests

        Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall 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.

        Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company.

ARTICLE VIII

Dissolution

      Section 8.1 Duration. The duration of the Company shall be perpetual.

        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 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; Reports

        Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will be treated as a separate entity for federal, state, and local tax purposes. The Company has elected to Check-the-Box for purposes of federal taxation such that the Company shall be treated as a separate corporation and will not be subject to the default provision, which would disregard the entity, or if there were two or more members hereof, would tax the Company as a partnership.

        Section 9.2 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.

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, none of 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 the 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 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. 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 is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law.

        Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document 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 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 11.6 Additional Documents. 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 11.7 Notices. All notices, requests and other communications to any member shall be in writing (and delivered via first class overnight mail or telecopier or similar method) 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 11.8 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 duly executed this Agreement as of the date first above written.

  Cinergy Solutions, Inc.



By: _____________________________
M. Stephen Harkness
President and Chief Operating Officer
EX-99.A 86 b-465.htm A&R ART OF INCORP CINERGY COMMUNICATIONS Wright Businesses

AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
WRIGHT BUSINESSES, INC.

        Pursuant to KRS 27lB.lO-O7O, the undersigned corporation hereby executes the following Amended And Restated Articles Of Incorporation:

    (A)               The name of the corporation is Wright Businesses, Inc.


    (B)               The following Amended And Restated Articles Of Incorporation were adopted by the Shareholders of the Corporation at a meeting held on October 23, 1995, in the manner prescribed by the Kentucky Business Corporation Act:


    1.               The name of the corporation is Wright Businesses, Inc.


    2.               The street address of the registered office of corporation is 611 Broadway, Paducah, Kentucky 42001. The name of the registered agent is A. D. Wright, Jr.


    3.               The mailing address of the principal office of the corporation is 611 Broadway, Paducah, Kentucky 42001.


    4.               The total number of shares of common stock which may issued by the corporation is 3,000 no par value.


    5.               The business and affairs of the corporation are to ,be conducted by a board of directors, the number to be set in the manner provided in the Bylaws.


    6.               No director shall be personally liable to the corporation or its shareholders for monetary damages for breach of his duties as a director except to the extent that the applicable law from time to time in effect shall provide that such liability may not be eliminated or limited. Neither the amendment nor repeal of this section shall affect the liability of any director of the corporation with respect to any act or failure to act which occurred prior to the amendment or appeal. This section is not intended to eliminate or limit any protection otherwise to the directors of the corporation.


    (C)               The designation and number of shares entitled to vote on this matter is 1,000 shares of common stock. Present at the meeting were shareholders representing 1,000 shares of the common stock of the Corporation and which constitute all of the shareholders entitled to vote on such Amended And Restated Articles of Incorporation.


    (D)               The total number of votes cast by each voting group entitled to vote separately thereon for and against such amendment, respectively, was:


    Number of Votes Cast
  For Against
Voting Group    
     
Common Shareholders 1,000 0

    (E)               The foregoing Amended And Restated Articles Of Incorporation supersede the original Articles Of Incorporation and all previous amendments thereto.


        IN WITNESS WHEREOF, the undersigned duly authorized officer has executed these Amended And Restated Articles Of Incorporation on this the 24th day of October, 1995.

  WRIGHT BUSINESSES, INC.


By: /s/ A. D. Wright

ARTICLES OF AMENDMENT

OF

ARTICLES OF INCORPORATION

        WRIGHT BUSINESSES, INC., a corporation organized under the laws of the state of Kentucky, by its President and Secretary, does hereby certify:

    1.               That the board of directors of said corporation at a meeting duly convened and held on the 24thday September, 1998, passed a resolution declaring that the following change and amendment in the articles of incorporation is advisable.


        RESOLVED that subsection (A) of the first paragraph of said Articles of Incorporation be amended to read as follows: “The name of the corporation is COMMUNITY TELEPHONE CORPORATION.”

    2.               That the above amendment of the said Articles of Incorporation was adopted unanimously by the board of directors and without shareholder action. That pursuant to KRS 27lB.lO-OlO, et al., said adoption by the board of directors does not require the approval or action of the shareholders for said amendment.


        IN WITNESS WHEREOF, the said President has caused this ARTICLE OF AMENDMENT to be signed by its President and its Secretary this 25th day of September, 1998.

  WRIGHT BUSINESSES, INC.


By /s/ A.D. Wright, Jr. President

ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION

        COMMUNITY TELEPHONE CORPORATION, a corporation organized under the laws of the State of Kentucky, by its President and Secretary, does hereby certify:

    1.               That the board of directors of said corporation at a meeting duly convened and held on the 7th day of March, 2001, passed a resolution declaring that the following change and amendment in the articles of incorporation is advisable.


        RESOLVED that subsection (A) of the first paragraph of said Articles of Incorporation be amended to read as follows: “The name of the corporation is CINERGY COMMUNICATIONS COMPANY.”

    2.               That the above amendment of the said Articles of Incorporation was adopted unanimously by the board of directors and without shareholder action. That pursuant to KRS 27lB.lO-OlO, et seq., said adoption by the board of directors does not require the approval or action of the shareholders for said amendment.


        IN WITNESS WhEREOF, the said President has caused this ARTICLES OF AMENDMENT to be signed by its President and its Secretary this 3rd day of April, 2001.

  COMMUNITY TELEPHONE CORPORATION

/s/ John Cinelli, President


/s/ Cole Hawks, Secretary
EX-99.B 87 b-466.htm BYLAWS CINERGY COMMUNICATIONS By-Laws of Wright Businesses Inc.

BY-LAWS

OF

WRIGHT BUSINESSES, INC.

ARTICLE I

Offices

        The principal office of the Corporation in the State of Kentucky shall be located in the City of Paducah. The Corporation may have such other offices, either within or without the State of Kentucky, as the business of the Corporation may require from time to time.

        The registered office of the Corporation may be, but need not be, identical with the principal office in the State of Kentucky, and the address of the registered office may be changed from time to time by the Board of Directors.

ARTICLE II

Shareholders

SECTION 1. ANNUAL MEETING.

        The annual meeting of shareholders shall be held on the 16th day of April, beginning with the year 1989 at the hour of / # for the election of directors and such other business as may come before the meeting. If the day fixed for the annual meeting shall be a Sunday or legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated for any annual meeting, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders to be held as soon thereafter as may be convenient.

SECTION 2. SPECIAL MEETING.

        Special meetings of the shareholders may be called by the President, by a majority of the members of the Board of Directors or by the holders of not less than one-fifth (1/5) of all the outstanding shares of the Corporation.

SECTION 3. PLACE OF MEETING.

        The Board of Directors may designate any place within or without the State of Kentucky as the place of meeting for any annual meeting, or any place either within or without the State of Kentucky as the place of meeting for any special meeting called by the Board of Directors.

        A waiver of notice signed by all shareholders may designate any place, either within or without the State of Kentucky, as the place of the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the office of the Corporation in the State of Kentucky, except as otherwise provided in SECTION 5 of this ARTICLE.

SECTION 4. NOTICE OF MEETINGS.

        Written or printed notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) days nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President or the Secretary, or the officer or persons calling the meeting, to each shareholder of record en-titled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid.

SECTION 5. MEETING OF ALL SHAREHOLDERS.

        If all of the shareholders shall meet at any time and place, either within or without the State of Kentucky, and consent to the holding of a meeting, such meeting shall be valid without call or notice and at such meeting, any corporate action may be taken.

        If a shareholder meeting shall occur without all shareholders in attendance, a prior or subsequent written waiver or consent by the absent shareholders shall be equivalent to the giving of any requisite notice and such meeting shall be valid without call or notice and corporate action may be taken at such meeting.

SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.

        The Board of Directors of the Corporation may close its stock transfer books for a period not exceeding fifty (50) days (but, if closed, for not less than ten [10] days) prior to the date of any meeting of shareholders, or the date for the payment of any dividend or for the allotment of rights, or the date when any exchange or reclassification of shares shall be effective; or in lieu thereof, may fix in advance a date, not exceeding fifty (50) days and not less than ten (10) days prior to the date of any meeting of shareholders, or to the date for the payment of any dividend or for the allotment of rights, or to the date when any exchange or reclassification of shares shall be effective, as the record date for the determination of shareholders entitled to notice of, or to vote at, such meeting, or shareholders entitled to receive payment of any such dividend or to receive any such allotment of rights or to exercise rights in respect of any exchange or reclassification of shares; and the shareholders of record on such date shall be the shareholders entitled to notice of, and to vote at, such meeting, or to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, in the event of an exchange of reclassification of shares, as the case may be. If the transfer books are not closed and no record date is fixed by the Board of Directors, the date on which notice of the meeting is mailed, or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be deemed to be the record date for the determination of shareholders entitled to vote at such meeting. Transferees of shares which are transferred after the record date shall not be entitled to notice of, or to vote at, such meeting.

SECTION 7. VOTING LISTS.

        The officer or agent having charge of the transfer book for shares of the Corporation shall make a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of, and the number of shares held by, each shareholder. Such list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole course of the meeting.

SECTION 8. QUORUM.

        A majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. If a quorum of shareholders is present, the affirmative vote of a majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders, unless the vote of a greater number of voting by class is required by the Kentucky Business Corporation Act or by the Articles of Incorporation or these By-Laws. The shareholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

SECTION 9. PROXIES.

        At all meeting of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy, and such proxy may be revoked in writing at any time. The effective time of such withdrawal shall be the time the Secretary of the Corporation receives the written notice of revocation.

SECTION 10. VOTING OF SHARES.

        Subject to the provisions of SECTION 12, each outstanding share of common stock shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. The rights of classes of shares other than common shall be as set forth in the stock certificate.

SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS.

        Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the By-Laws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such other corporation may determine.

        Shares held by an administrator, executor, guardian or conservator may be voted by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name.

        Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver was appointed.

        Where shares are held jointly by three or more fiduciaries acting under an instrument becoming effective after June 30, 1946, the will of the majority of such fiduciaries shall control the manner of voting or the giving of a proxy unless the instrument or order appointing the fiduciaries otherwise directs. Where, in any case, fiduciaries are equally divided upon the manner of voting shares jointly held by them, any court of competent jurisdiction may, upon petition filed by any of the fiduciaries, or by any beneficiary, appoint an additional person to act with the fiduciaires in determining the manner in which the shares shall be voted upon the particular questions as to which the fiduciaries are divided.

        A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.

        Neither treasury shares of its own stock held by the Corporation, nor shares held by another corporation if a majority of the share entitled to vote for the election of directors of such other corporation are held by the Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting.

SECTION 12. CUMULATIVE VOTING.

        In all elections of directors, every shareholder shall have the right to vote, in person or by proxy, the number of shares owned by him, for as many persons as there are directors to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares shall equal, or to distribute them on the same principal among as many candidates as he shall see fit.

SECTION 13. INFORMAL ACTION BY SHAREHOLDERS.

        Any action required to be taken at a meeting of the share holders may be taken without a meeting if a consent in writing,setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof.

ARTICLE III

Directors

SECTION 1. GENERAL POWERS.

        The business and affairs of the Corporation shall be managed by its Board of Directors.

SECTION 2. NUMBER. TENURE AND QUALIFICATIONS.

        The number of directors of the Corporation, shall be four (4), but may be increased or decreased by amendment of this By- Law by the shareholders. Each director shall hold office for the term for which he is elected or until his successor shall have been elected and accepted the office, whichever period is longer. The directors need not be residents of Kentucky, nor need they be the holder of any shares of the capital stock of the Corporation.

SECTION 3. REGULAR MEETINGS.

        A regular meeting of the Board of Directors shall be held without other notice than this By-law, immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Kentucky, for the holding of additional regular meetings without other notice than such resolution.

SECTION 4. SPECIAL MEETINGS.

        Special meetings of the Board of Directors may be called by or at the request of the President or any two directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Kentucky, as the place for holding any special meeting of the Board of Directors called by them.

SECTION 5. NOTICE.

        Notice of any special meeting shall be given at least two (2) days previously thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.

SECTION 6. QUORUM.

        A majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors provided that, if less than a majority of the directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice.

SECTION 7. MANNER OF ACTING.

        The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

SECTION 8. VACANCIES.

        Any vacancy occurring in the Board of Directors may befilled by the affirmative vote of a majority of the remainingdirectors though less than a quorum of the Board of Directors. Adirector elected to fill a vacancy shall be elected for theunexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors maybe filled by election by the Board of Directors for a term ofoffice continuing only until the next election of directors by the shareholders.

SECTION 9. COMPENSATION.

        By resolution of the Board of Directors, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation there for.

SECTION 10. ACTION BY WRITTEN CONSENT.

        Any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors.

SECTION 11. PRESUMPTION OF ASSENT.

        A director of the Corporation who is present at a meeting ofthe Board of Directors at which action on any corporate matter istaken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting, or unless he shall file his written dissent to such action withthe person acting as the secretary of the meeting before the adjournment thereof, or shall forward such dissent by registered orcertified mail to the Secretary of the Corporation immediatelyafter the adjournment of the meeting. Such right to dissentshall not apply to a director who voted in favor of suchaction.

ARTICLE IV

Officers

SECTION 1. CLASSES.

        The officers of the Corporation shall be a President, one or more Vice Presidents (the number thereof, if any, to be determined by the Board of Directors), a Treasurer, a Secretary, and such other officers, whose duties may be fixed from time to time by the Board of Directors, as may be provided by the Board of Directors and elected in accordance with the provisions of this ARTICLE. The Board of Directors may also create the offices of one or more assistant treasurers and assistant secretaries, all of whom shall be elected by the Board of Directors. Any two or more offices may be held by the same person, except the office of President and Secretary.

SECTION 2. ELECTION AND TERM OF OFFICE.

        The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided.

SECTION 3. REMOVAL.

        Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever, in its judgment, the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

SECTION 4. VACANCIES.

        A vacancy in any office because of death, resignation, removal, disqualification or otherwise may be filled by the Board of Directors for the unexpired portion of the term.

SECTION 5. PRESIDENT.

        The President shall be the principal executive officer of the Corporation and shall, in general, supervise and control all of the business and affairs of the Corporation. He shall preside at all meetings of the shareholders and of the Board of Directors. He may sign, with the Secretary or any other proper officer of the Corporation thereunto authorized by the Board of Directors, certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and, in general, shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.

SECTION 6. VICE PRESIDENT.

        In the absence of the President or in the event of his inability or refusal to act, the Vice President (or, in the event there be more than one Vice President, the Vice Presidents in order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or an assistant Secretary, certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned to him by the President or by the Board of Directors.

SECTION 7. TREASURER.

        If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. He shall: (a) have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for monies due and payable to the Corporation from any source whatsoever, and deposit all such monies in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of ARTICLE V of these By-Laws; (b) in general, perform all duties incident of the office of Treasurer and such other duties as from time to time may be assigned to him by the President or the Board of Directors.

SECTION 8. SECRETARY.

        The Secretary shall: (a) keep the minutes of the shareholders’ meetings and of the Board of Directors’ meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation and see that the seal of the Corporation is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws; (d) keep a register of the post office address of each shareholder; (e) sign with the President or Vice President certificates for shares of the Corporation, the issue of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the Corporation; and (g) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.

SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.

        The assistant treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine.

        The assistant secretaries, as and if authorized by the Board of Directors, may sign with the President or Vice President certificates for shares of the Corporation, the issue of which shall have been authorized by a resolution of the Board of Directors.

        The assistant treasurers and assistant secretaries, in general, shall perform such duties as shall be assigned to them by the Treasurer or the Secretary, respectively, or by the President or the Board of Directors.

SECTION 10. SALARIES.

        The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation.

ARTICLE V

    Contracts.        Loans. Checks and Deposits

SECTION 1. CONTRACTS.

        The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instruments in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.

SECTION 2. LOANS.

        No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.

SECTION 3. CHECKS. DRAFTS. ETC.

        All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents, of the Corporation and in such manner as shall, from time to time, be determined by resolution of the Board of Directors.

SECTION 4. DEPOSITS.

        All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositaries as the Board of Directors may select.

ARTICLE VI

Certificates For Shares and Their Transfer

SECTION 1. CERTIFICATES FOR SHARES.

        Certificates representing shares of the Corporation shall be in such form as may be determined by the Board of Directors and in accordance with the laws of this Commonwealth. Such certificates shall be signed by the President or Vice president and by the Secretary or an assistant secretary, and shall be sealed with the seal of the Corporation or a facsimile thereof. All certificates for shares shall be consecutively numbered. The name of the person owning the shares represented thereby with the number of shares and date of issue shall be entered on the books of the Corporation. All certificates surrendered to the Corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificates for a like number of shares shall have been surrendered and cancelled, excepted that, in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the Corporation as the Board of Directors may prescribe.

SECTION 2. TRANSFERS OF SHARES.

        Transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his legal representative who shall furnish proper evidence of authority to transfer, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation.

ARTICLE VII

Fiscal Year

        The fiscal year of the Corporation shall begin on the 1st day of July and end on the 30th day of June each year, but may be changed by resolution of the Board of Directors.

ARTICLE VIII

Dividends

        The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation.

ARTICLE IX

Seal

        The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and other appropriate wording.

ARTICLE X

Waiver of Notice

        Whenever any notice whatever is required to be given under the provisions of these By-Laws, or under the provisions of the Articles of Incorporation, or under the provisions of the Corporation Laws of the State of Kentucky, waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

ARTICLE XI

Auditors and Annual Reports

SECTION 1. SELECTION OF AUDITORS.

        The Corporation’s books of account may be examined annually by an independent firm of public accountants whose selection may be made by the Board of Directors in the manner herein set forth.

ARTICLE XII

Amendments

        The shareholders may alter, amend or repeal the By-Laws at any annual or special meeting of shareholders at which a quorum is present, by the vote of a majority of the stock represented at such meeting, provided that the notice of such meeting shall have included notice of such proposed amendment. The Board of Directors shall have the power and authority to alter, amend or repeal By-Laws of the Corporation at any regular or special meeting at which a quorum is present by the vote of a majority of the entire Board of Directors, subject always to the power of the shareholders under Kentucky law to change or repeal such By-Law.

ARTICLE XIII

Executive Committee

SECTION 1. APPOINTMENT.

        The Board of Directors, by resolution adopted by a majority of the full Board, may designate two or more of its members to constitute an Executive Committee. The designation of such committee and the designation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.

SECTION 2. AUTHORITY.

        The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all of the authority of the Board of Directors except to the extent, if any, that such authority shall be limited by the resolution appointing the Executive Committee, and except also that the Executive Committee shall not have the authority of the Board of Directors in reference to amending the Articles of Incorporation, adopting a plan of merger or consolidation, recommending to the shareholders the sale, lease or other disposition of all or substantially all of the property and assets of the Corporation otherwise than in the usual and regular course of its business, recommending to the shareholders a voluntary dissolution of the Corporation or a revocation thereof, or amending the By-Laws of the Corporation.

SECTION 3. TENURE AND QUALIFICATIONS.

        Each member of the Executive Committee shall hold office until the next regular annual meeting of the Board of Directors following his designation and until his successor is designated as a member of the Executive Committee and is elected and qualified.

SECTION 4. MEETINGS.

        Regular meetings of the Executive Committee may be held without notice at such times and places as the Executive Committee may fix from time to time by resolution. Special meetings of the Executive Committee may be called by any member thereof upon not less than one day’s notice stating the place, date and hour of the meeting, which notice may be written or oral, and if mailed, shall be deemed to be delivered when deposited in the United States mail addressed to the member of the Executive Committee at his business address. Any member of the Executive Committee may waive notice of any meeting and no notice of any meeting need be given to any member thereof who attends in person. The notice of the Executive Committee need not state the business proposed to be transacted at the meeting.

SECTION 5. QUORUM.

        A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business at any meeting thereof, and action of the Executive Committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present.

SECTION 6. ACTION WITHOUT A MEETING.

        Any action required or permitted to be taken by the Executive Committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members of the Executive Committee.

SECTION 7. VACANCIES.

        Any vacancy in the Executive Committee may be filled by a resolution adopted by a majority of the full Board of Directors.

SECTION 8. RESIGNATIONS AND REMOVAL.

        Any member of the Executive Committee may be removed at any time with or without cause by resolution adopted by a majority of the full Board of Directors. Any member of the Executive Committee may resign from the Executive Committee at any time by giving written notice to the President or Secretary of the Corporation, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

ARTICLE XIV

Emergency By-Laws

        The Emergency By-Laws provided in this ARTICLE XIV shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or any nuclear or atomic disaster, notwithstanding any different provision in the preceding ARTICLES of the By-Laws or in the Articles of Incorporation of the Corporation or in the Kentucky Business Corporation Act. To the extent not inconsistent with the provisions of this ARTICLE, the By-Laws provided in the preceding ARTICLES shall remain in effect during such emergency and upon its termination, the Emergency By-Laws shall cease to be operative.

        During any such emergency:

    (a)        A meeting of the Board of Directors may be called by any officer or director of the Corporation. Notice of the time and place of the meeting shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any available means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting.

    (b)        At any such meeting of the Board of Directors, a quorum shall consist of two (2).

    (c)        The Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that, during such an emergency, any or all officers or agents of the Corporation shall, for any reason, be rendered incapable of discharging their duties.

    (d)        The Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers to do so.

        No officer, director or employee acting in accordance with these Emergency By-Laws shall be liable except for willful misconduct.

        These Emergency By-Laws shall be subject to repeal or change by further action of the Board of Directors or by action of the shareholders but no such repeal or change shall modify the provisions of the next preceding paragraph with regard to action taken prior to the time of such repeal or change. Any amendment of these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstances of the emergency.

        I, Brenda Wright, Secretary of Wright Businesses, Inc., hereby certify that the foregoing By-Laws were presented to the Organization Meeting of Directors of this corporation, and that same were unanimously approved and adopted by the directors as read.

        DATED this the 22nd day of April, 1988.

  /s/ Brenda Wright
SECRETARY

FIRST AMENDMENT TO BYLAWS

Exhibit “1":

        Article II, Section 8 of the Bylaws of the Corporation are amended to read as follows:

SECTION 8. QUORUM

        Sixty Percent (60%) of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. If a quorum of shareholders is present, the affirmative vote of sixty percent (60%) of the total issued and outstanding shares of the Corporation shall be required to constitute the act of the Corporation, unless the vote of a greater number of voting by class is required by the Kentucky Business Corporation Act.

        Article III, Section 6 of the Bylaws of the Corporation are amended to read as follows:

SECTION 6. QUORUM

        Three (3) members of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. If a quorum is present, it shall require the affirmative vote of not less than three (3) members of the Board to constitute the act of the Board and the Corporation. In the event that two or more of the members of the Board are determined to have a conflict of interest on an issue and therefore, are unable to vote, such action shall be taken only if approved by the holders of sixty percent (60%) or more of the common stock of the Corporation.

EX-99.B 88 b-476.htm BYLAWS OF SUFFOLK BIOGAS Bylaws of Suffolk Biogas

BY-LAWS

OF

SUFFOLK BIOGAS, INC.

ARTICLE I

OFFICES

        SECTION 1. REGISTERED OFFICE. -- The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.

        SECTION 2. OTHER OFFICES. — The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

        SECTION 1. ANNUAL MEETINGS. — Annual Meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.

        If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

        SECTION 2. OTHER MEETINGS. — Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

        SECTION 3. VOTING. – Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be elected by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

        A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

        SECTION 4. QUORUM. — Except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

        SECTION 5. SPECIAL MEETINGS. — Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

        SECTION 6. NOTICE OF MEETINGS. — Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

        SECTION 7. ACTION WITHOUT MEETING. — Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

        SECTION 1. NUMBER AND TERM. — The number of directors constituting the whole board of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his or her successor shall be elected and shall qualify. Directors need not be stockholders.

        SECTION 2. RESIGNATIONS. — Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

        SECTION 3. VACANCIES. — If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

        SECTION 4. REMOVAL. — Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

        Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

        If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

        SECTION 5. INCREASE OF NUMBER. — The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

        SECTION 6. POWERS. — The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

        SECTION 7. COMMITTEES. — The Board of Directors may, by resolution or resolutions passed by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

        Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

        SECTION 8. MEETINGS. — The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

        Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

        Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two days’ notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

        Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

        SECTION 9. QUORUM. — A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be adjourned.

        SECTION 10. COMPENSATION. — Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

        SECTION 11. ACTION WITHOUT MEETING. — Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

        SECTION 1. OFFICERS. — The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualify. In addition, the Board of Directors may elect a Chairman, one or more Vice Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two officers may be held by the same person.

        SECTION 2. OTHER OFFICERS AND AGENTS. — The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their officers for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

        SECTION 3. CHAIRMAN. — The Chairman of the Board of Directors, if elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

        SECTION 4. PRESIDENT — The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

        SECTION 5. VICE PRESIDENT. — Each Vice President, if elected, shall have such powers and shall perform such duties as shall be assigned to him by the directors.

        SECTION 6. TREASURER. — The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositaries as may be designated by the Board of Directors.

        The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, of the President, taking proper vouchers for such disbursements. He shall render to the President and Board of Directors as the regular meetings of the Board of Directors, or whenever they may request it, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he shall give the corporation a bond for the faithful discharge of his duties in such amount and with such surety as the board shall prescribe.

        SECTION 7. SECRETARY. — The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

        SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. — Assistant Treasurers, and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

        SECTION 1. CERTIFICATES OF STOCK. — Certificates of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any or all of the signatures may be facsimiles.

        SECTION 2. LOST CERTIFICATES. — A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

        SECTION 3. TRANSFER OF SHARES. — The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made or collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

        SECTION 4. STOCKHOLDERS RECORD DATE. — In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

        SECTION 5. DIVIDENDS. — Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

        SECTION 6. SEAL — The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL DELAWARE.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

        SECTION 7. FISCAL YEAR. — The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

        SECTION 8. CHECKS — All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolution of the Board of Directors.

        SECTION 9. NOTICE AND WAIVER OF NOTICE. — Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

        Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

        These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Laws to be made, be contained in the notice of such special meeting.

EX-99 89 b-560.htm A&R CERT OF FORMATION CHANDLER WIND PARTNERS Cert of Form Chandler Wind Partners 
            Amended and Restated Limited Liability Company Agreement

                                       of
                           Chandler Wind Partners, LLC

                              AMENDED AND RESTATED

                            CERTIFICATE OF FORMATION

                                       OF

                           Chandler Wind Partners, LLC

     This  Amended and  Restated  Certificate  of  Formation  of  Chandler  Wind
Partners,  LLC, a Delaware limited liability company,  formed on March 19, 1998,
was duly  executed and is being filed in accordance  with Section  18-208 of the
Delaware Limited Liability Company Act.

FIRST: The name of the limited liability company is Chandler Wind Partners, LLC.
SECOND: The  registered  agent of the  Company  in the State of  Delaware  is CT
     Corporation Trust Company,  Corporation  Trust Center,  1209 Orange Street,
     Wilmington,  County of New Castle,  Delaware  19801, or such other agent as
     determined by the Managers
THIRD: The limited  liability company shall continue in existence on a perpetual
     basis unless  dissolved  pursuant to company's  limited  liability  company
     agreement.

     IN WITNESS  WHEREOF,  the  undersigned  has executed  this  Certificate  of
Amendment of Chandler Wind Partners, LLC effective as of January 23, 2002.




                                  By:    /s/ Bradley C. Arnett
                                  Name:  Bradley C. Arnett
                                  Title: Manager for Chandler Wind Partners, LLC
EX-99 90 b-561.htm A&R LLC AGREE CHANDLER WIND PARTNERS Chandler Wind Partners 
            Amended and Restated Limited Liability Company Agreement

                                       for

                           Chandler Wind Partners, LLC

                      A Delaware Limited Liability Company



This AMENDED AND RESTATED Limited Liability COMPANY AGREEMENT (this "Agreement")
for Chandler Wind Partners, LLC (the "Company") dated as of January 16, 2001, is
entered into and made effective by Cinergy  Global  Chandler I, Inc., a Delaware
corporation  ("Member"),  as of  the  Effective  Date,  with  reference  to  the
following facts:

A. Chandler Wind Partners, LLC is a Delaware limited liability company formed by
FORAS Energy,  Inc.  (sometimes  referred to as "Initial  Member") by filing its
Certificate  of Formation  with the  Secretary of State of Delaware on March 19,
1998. This Agreement is an amendment to and restatement of the Limited Liability
Company  Operating  Agreement of Chandler Wind  Partners,  LLC,  effective as of
September 25, 1998 (the "Initial Limited Liability Company Agreement");

B. Member now wishes to replace the Initial Limited  Liability Company Agreement
in its entirety by entering into this Agreement to provide for the governance of
the Company and the conduct of its business as a limited liability company. This
Agreement shall be considered the "Limited  Liability Company  Agreement" of the
Company within the meaning of Section 18-101(7) of the Act.

NOW  THEREFORE,  the  Initial  Limited  Liability  Company  Agreement  is wholly
replaced and  superseded  by this  Agreement in its entirety and this  Agreement
shall read as follows:

1. Definitions

Capitalized  terms used in this Agreement  shall have the meanings  respectively
given  thereto in this Section 1 or elsewhere in this  Agreement and when not so
defined shall have the meanings set forth in the Act.

"Act" means the Delaware Limited  Liability  Company Act, 6 Del.  C.ss.18-101 et
seq., as amended from time to time.

"Affiliate"  means, with respect to any Member,  any person:  (i) that owns more
than 5 % of the voting interests in the Member; or (ii) in which the Member owns
more  than 5% of the  voting  interests;  or (iii) in which  more than 5% of the
voting  interests are owned by a Person who has a  relationship  with the Member
described in clause (i) or (ii) above.

"Agreement"  means this Amended and Restated Limited Liability Company Agreement
for Chandler Wind Partners, LLC as may be amended from time to time.

"Capital  Account"  means the  account to be  maintained  by the  Company on the
Company's books and records for each Member in accordance with Section 3.6.

"Capital  Contribution"  means, with respect to any Member,  the total amount of
cash and the  Gross  Asset  Value of any  other  assets  contributed  or  deemed
contributed  to the  Company  by the Code (net of  liabilities  secured  by such
contributed  property  that the Company is considered to assume or take "subject
to" under Code Section 752) or services  rendered or a promissory  note or other
binding  obligation  to  contribute  cash or  assets or to  render  services  as
permitted under the Act in  consideration  of Membership  Rights held by such. A
Capital Contribution shall not be deemed a loan.

"Capital  Proceeds"  means the gross  receipts  received by the  Company  from a
Capital Transaction.

"Capital Transaction" means any transaction other than in the ordinary course of
business which results in the Company's  receipt of cash or other  consideration
other than Capital  Contributions,  including,  without limitation,  proceeds of
sales or exchanges or other  dispositions of property other than in the ordinary
course of  business,  financings,  refinancings,  condemnations,  recoveries  of
damage awards and insurance proceeds.

"Cash  Flow"  means  all cash  funds  derived  from  operations  of the  Company
(including  interest  received on reserves),  without reduction for any non-cash
charges,  but less cash funds used to pay current operating  expenses and to pay
or establish  reasonable  reserves for future expenses,  debt payments,  capital
improvements,  and  replacements as determined by the Managers.  Cash Flow shall
include net proceeds from all sales,  refinancings,  and other  dispositions  of
Company  property  that the  Managers  deem in excess of the  amount  reasonably
necessary for the  operating  requirements  of the Company.  Cash Flow shall not
include Capital  Proceeds but shall be increased by the reduction of any reserve
previously established.

"Certificate  of Formation"  means the  Certificate  of Formation of the Company
filed with the Secretary of State of Delaware in accordance  with the Act by the
Initial Member on March 19, 1998.

"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.

"Company"  means  Chandler  Wind  Partners,  LLC, a Delaware  limited  liability
company.

"Company  Assets"  means  all the  direct  and  indirect  interests  in real and
personal  property owned by the company from time to time and shall include both
tangible and intangible property (including cash).

"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization,  or other cost  recovery  deduction  allowable  with respect to an
asset for such  Fiscal  Year,  except  that if the Gross Asset Value of an asset
differs from its adjusted basis for federal income tax purposes at the beginning
of such Fiscal Year,  Depreciation shall be an amount which bears the same ratio
to such  beginning  Gross Asset Value as the  federal  income tax  depreciation,
amortization,  or other cost  recovery  deduction  for such Fiscal Year bears to
such beginning adjusted tax basis;  provided however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Members.

"Effective Date" is January 16, 2001.

"EWG" means an exempt wholesale  generator as such term is defined in Section 32
of PUHCA, as added by Section 711 of the Energy Policy Act of 1992.

"Fiscal Year" shall have the meaning given in Section 2.7.

"Gross Asset Value" means with respect to any asset,  the asset's adjusted basis
for federal income tax purposes, except as follows:

     (i)  The initial Gross Asset Value of any item of property  contributed  by
          Member to the  Company  shall be the gross fair  market  value of such
          asset, as mutually agreed by the contributing Member and the Company;

     (ii) The Gross  Asset  Values of all  Company  Assets  shall be adjusted to
          equal their  respective  gross fair market values (taking Code Section
          7701(g)  into  account)  in   accordance   with   Regulation   Section
          1.704-1(b)(2)(iv)(f)  and  as  determined  by  the  Members  as of the
          following times: (a) the acquisition of an additional  interest in the
          Company by any new or existing  Member in exchange  for more than a de
          minimis Capital Contribution; (b) the distribution by the Company to a
          Member  of more  than a de  minimis  amount  of  Company  property  as
          consideration for an interest in the Company;  and (c) the liquidation
          of  the   Company   within   the   meaning   of   Regulation   Section
          1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses
          (a) and (b) of  this  paragraph  shall  be  made  only if the  Members
          reasonably  determine that such adjustment is necessary to reflect the
          relative Interests of the Members in the Company;

     (iii)The Gross Asset  Value of any item of Company  Assets  distributed  to
          any Member  shall be  adjusted  to equal the gross fair  market  value
          (taking Code Section  7701(g) into  account) of such asset on the date
          of  distribution  as mutually  agreed by the receiving  Member and the
          Company; and

     (iv) The Gross  Asset  Values of  Company  Assets  shall be  increased  (or
          decreased) to reflect any  adjustments  to the adjusted  basis of such
          assets  pursuant  to  Code  Section  732 or Code  Section  734 or Code
          Section 743,  subject to the  limitations  imposed by Code Section 755
          and only to the extent that such adjustments are taken into account in
          determining   Capital   Accounts   pursuant  to   Regulation   Section
          1.704-1(b)(2)(iv)(m)  and  subparagraph  (e) of the definition of "Net
          Profits" or "Net Losses";  provided,  however, that Gross Asset Values
          shall not be adjusted pursuant to this subparagraph (iv) to the extent
          that an  adjustment  pursuant  to  subparagraph  (ii) is  required  in
          connection  with a  transaction  that  would  otherwise  result  in an
          adjustment pursuant to this subparagraph (iv).

          If the Gross Asset Value of an asset has been  determined  or adjusted
          pursuant to  subparagraph  (ii) or (iv),  such Gross Asset Value shall
          thereafter  be adjusted by the  Depreciation  taken into  account with
          respect to such asset, for purposes of computing Profits and Losses.

"Initial Member" means FORAS Energy, Inc.

"Interest"  means an Interest  Holder's  share of the Profits and Losses of, and
the right to receive  distributions  from the Company,  but does not include any
other rights of a Member including,  without limitation, the right to vote or to
participate in management,  or any right to information  concerning the business
and affairs of the Company.

"Interest Holder" means any Person who holds an Interest, whether as a Member or
as an assignee of a Member who has not been admitted to the Company as a Member.

"Involuntary  Withdrawal"  means, with respect to any Member,  the occurrence of
any of the following events;

     (i)  the Member makes an assignment for the benefit of creditors;

     (ii) the Member files a voluntary petition of bankruptcy;

     (iii)the  Member is  adjudged  bankrupt  or  insolvent  or there is entered
          against the Member an order for relief in any bankruptcy or insolvency
          proceeding;

     (iv) the  Member  files a  petition  or answer  seeking  for the Member any
          reorganization,  arrangement, composition, readjustment,  liquidation,
          dissolution, or similar relief under any statute, law, or regulation;

     (v)  the Member seeks,  consents to, or acquiesces in the  appointment of a
          trustee,  receiver,  or  liquidator  of  the  Member  or of all or any
          substantial part of the Member's properties;

     (vi) the Member files an answer or other  pleading  admitting or failing to
          contest  the  material  allegations  of a petition  filed  against the
          Member in any proceeding described in Subsections (i) through (v);

     (vii)within one hundred  twenty days (120) days of any  proceeding  against
          the   Member   seeking   reorganization,   arrangement,   composition,
          readjustment,  liquidation,  dissolution,  or similar relief under any
          statute,  law, or regulation if the proceeding has not been dismissed,
          or  within  ninety  (90)  days  after the  appointment  of a  trustee,
          receiver,  or liquidator for the Member or all or any substantial part
          of  the  Member's   properties   without  the  Member's  agreement  or
          acquiescence,  which  appointment is not vacated or stayed,  or if the
          appointment  is stayed,  for ninety (90) days after the  expiration of
          the stay which period the appointment is not vacated;

     (viii) if the Member is an individual,  the Member's death or  adjudication
          by a court of  competent  jurisdiction  as  incompetent  to manage the
          Member's person or property;

     (ix) if the  Member is acting as a Member by virtue of being a trustee of a
          trust, the termination of the trust;

     (x)  if the Member is a partnership or another limited  liability  company,
          the dissolution  and  commencement of winding up of the partnership or
          limited liability company;

     (xi) if the Member is a corporation,  the dissolution of the corporation or
          the revocation of its charter; or

     (xii)if the Member is an estate,  the  distribution by the fiduciary of the
          estate's entire interest in the limited liability company.

"Manager(s)" is the Person(s)  designated as such in Article 5 of this Agreement
or who is later elected as a Manager pursuant to the terms of this Agreement.

"Member" means Cinergy Global  Chandler I, Inc. and any Person who  subsequently
is  admitted  as a Member of the  Company in  accordance  with the terms of this
Agreement.

"Membership  Interest"  means the entire  ownership  interest of a Member in the
Company at any particular time, including without limitation: (i) interest, (ii)
right to inspect the Company's books and records; and (iii) right to participate
in the management of and vote on matters coming before the Company.

"Minimum  Gain" of the Company,  as provided in Regulation  Section  1.704-2(d),
means the total amount of gain the Company would realize for federal  income tax
purposes if it disposed of all assets  subject to their  respective  nonrecourse
liabilities for no consideration other than the full satisfaction thereof.

"Negative  Capital  Account" means a Capital Account with a balance of less than
zero.

"Nonrecourse  Deduction"  has  the  meaning  set  forth  in  Regulation  Section
1.704-2(b)(1).  The amount of  Nonrecourse  deductions for a Company fiscal year
equals the net increase in the amount of Company Minimum Gain during that fiscal
year,  reduced (but not below zero) by the aggregate amount of any distributions
during  that  fiscal  year of  proceeds  of a  Nonrecourse  Liability  that  are
allocable to an increase in Company Minimum Gain.

"Nonrecourse  Liability"  has  the  meaning  set  forth  in  Regulation  Section
1.752-1(a)(2).

"Percentage"  means, as to a Member, the percentage set forth after the Member's
name on Exhibit A of this Agreement,  as amended from time to time, and as to an
Interest  Holder who is not a Member,  the Percentage of the Member(s)  Interest
that has been  acquired  by such  Interest  Holder,  to the extent the  Interest
Holder has succeeded to that Member's Interest.

"Person" means an individual,  partnership,  limited partnership, trust, estate,
association,  corporation,  limited liability company, or other entity,  whether
domestic or foreign.

"Positive  Capital  Account" means a Capital Account with a balance greater than
zero.

"Profit"  and  "Loss"  means,  for each  Fiscal  Year of the  Company  (or other
period),  an amount equal to the Company's  taxable income or loss determined in
accordance  with Code Section  703(a)(for  this  purposes,  all items of income,
gain,  loss or  deduction  required  to be stated  separately  pursuant  to Code
Section  703(a)(1)  shall be  included  in  taxable  income or  loss),  with the
following adjustments:

     (i)  any tax exempt  income of the Company  shall be included in  computing
          Profit and Loss;

     (ii) any expenditures of the Company described in Code Section 705(a)(2)(B)
          (or    treated    as   such    pursuant    to    Regulation    Section
          1.704-1(b)(2)(iv)(i))   and  not  otherwise   taken  into  account  in
          computing Profit or Loss, shall be subtracted from Profit or Loss;

     (iii)gain or Loss  resulting  from any  disposition  of any Company  Assets
          where such gain or Loss is recognized  for federal income tax purposes
          shall be computed by reference to the Gross Asset Value of the Company
          Assets disposed of notwithstanding that the adjusted tax basis of such
          Company Assets differs from its Gross Asset Value;

     (iv) in lieu of the  depreciation,  amortization  and other  cost  recovery
          deductions  taken into  account in computing  such  taxable  income or
          loss,  there shall be taken into account  Depreciation for such Fiscal
          Year;

     (v)  if the  Gross  Asset  Value  of  any  Company  Asset  is  adjusted  in
          accordance with subparagraphs (ii) or (iii) of the definition thereof,
          the  amount of such  adjustment  shall be taken  into  account  in the
          taxable year of such  adjustment as gain or loss from the  disposition
          of such asset for the purposes of computing Profit of Loss; and

     (vi) notwithstanding any other provision of this definition, any items that
          are specially  allocated  pursuant to Section 4.2.2 shall not be taken
          into account in computing Profit and Loss.

"PUHCA" means the Public Utility  Holding  Company Act of 1935 and all rules and
regulations adopted thereunder.

"Regulation"   means  the  income  tax  regulations,   including  any  temporary
regulations, from time to time promulgated under the Code.

"Secretary of State" means the Secretary of State of the State of Delaware.

"Transfer"  means,  with respect to any Interest or  Membership  Interest in the
Company, a sale, conveyance,  exchange,  assignment,  pledge,  encumbrance gift,
bequest,  hypothecation  or other  transfer or  disposition  by any other means,
whether  for  value  or no  value  and  whether  voluntary  or  involuntary.  2.
Organizational Matters

2.1 Organization

     The Initial  Member has filed a Certificate  of Formation for Chandler Wind
     Partners, LLC, a Delaware limited liability company, on March 19, 1998, and
     the Company was  registered  to do business  under the laws of the State of
     Minnesota  on March 24, 1998.  Member has  acquired  all of the  Membership
     Interest of the Initial Member by way of Transfer.  Following  execution of
     this Agreement, the Managers shall cause an amendment to the Certificate of
     Formation,  in the form attached to this  Agreement as Exhibit B (which may
     be executed by any one of the Managers),  to be filed with the Secretary of
     State.  The Managers shall also cause to be made, on behalf of the Company,
     such additional  filings and recordings in such other states as the Members
     shall deem necessary or advisable.

2.2 Name

     The name of the Company  shall  remain  Chandler  Wind  Partners,  LLC. The
     Company may do  business  under that name and under any other name or names
     approved by the Members.

2.3 Business

     The Company may engage in any business or projects  relating to wind energy
     generation   including   the   development,   construction,   installation,
     ownership,   operation,   maintenance   and   management  of   wind-powered
     electricity  generating  plant  and to  undertake  any and  all  activities
     related or incident thereto.

2.4 Term

     The  term of the  Company  commenced  as of the date of the  filing  of the
     Certificate  of Formation  and shall  continue on a perpetual  basis unless
     dissolved pursuant to Article 7 of this Agreement.

2.5 Registered Office and Agent

     The  registered  agent of the  Company  is CT  Corporation  Trust  Company,
     Corporation Trust Center, 1209 Orange Street,  Wilmington,  Delaware 19801,
     or such other agent as determined by the Managers.  The principal  business
     office  of the  company  shall  be  located  at  139  East  Fourth  Street,
     Cincinnati,  Ohio  45202,  or  such  other  location  as the  Managers  may
     determine.

2.6 Members

     The name,  present mailing address,  taxpayer  identification  number,  and
     Percentage  of each of the  Members  are set forth on  Exhibit  A  attached
     hereto.  The Managers shall amend Exhibit A each and every time a Member is
     admitted  or ceases to be a Member  or when the  Percentage  of a Member is
     increased or decreased.

2.7 Fiscal Year

     The  Fiscal  Year of the  Company  shall  begin on  January  1st and end on
     December  31st.  The Company shall have the same fiscal year for accounting
     and for income tax purposes.

3. Members; Capital and Capital Accounts

3.1 Capital Contributions

     The Member shall not be required to make a Capital Contribution.

3.2 Additional Capital Contributions

     The  Members  shall  not  be  required  to  make  any  additional   Capital
     Contributions.

3.3 No Interest on Capital Contributions

     The Company shall not pay any interest on Capital Contributions.

3.4 Return of Capital Contributions

     Except as otherwise provided in this Agreement, neither the Members nor any
     Interest  Holder  shall have the right to receive the return of any Capital
     Contribution except upon dissolution of the Company.

3.5 [Intentionally Left Blank]

3.6 Capital Accounts

     3.6.1 A separate  Capital  Account shall be maintained  for each Member and
     each Interest Holder.

     3.6.2 An Interest  Holder's  Capital  Account  shall be increased  with the
     Interest  Holder's  Capital  Contributions,   the  amount  of  any  Company
     liabilities assumed by the Interest Holder (or which are secured by Company
     property  distributed  to  the  Interest  Holder),  the  Interest  Holder's
     distributive  share of Profit  and any item in the nature of income or gain
     specially  allocated to such Interest  Holder pursuant to the provisions of
     Section 4; and

     3.6.3 An Interest  Holder's  Capital  Account  shall be decreased  with the
     amount  of  money  and  the  Gross  Asset  Value  of any  Company  property
     distributed to the Interest  Holder,  the amount of any  liabilities of the
     Interest  Holder  assumed by the  Company (or which are secured by property
     contributed by the Interest Holder to the Company),  the interest  Holder's
     distributive  share of Loss,  and any item in the  nature  of  expenses  or
     losses  specially   allocated  to  the  Interest  Holder  pursuant  to  the
     provisions of Section 4.

     3.6.4  If any  Interest  is  transferred  pursuant  to the  terms  of  this
     Agreement,  the  transferee  shall  succeed to the  Capital  Account of the
     transferor  to the  extent  the  Capital  Account  is  attributable  to the
     transferred Interest.

     3.6.5 If the Gross  Asset Value of Company  Assets is adjusted  pursuant to
     Section 3.6.6,  the Capital Account of each Member or Interest Holder shall
     be adjusted to reflect the  aggregate  adjustment  in the same manner as if
     the  Company  had  recognized  gain or Loss  equal  to the  amount  of such
     aggregate adjustment.

     3.6.6 It is intended  that the Capital  Accounts  of all  Interest  Holders
     shall be maintained in compliance with the provisions of Regulation Section
     1.704-1(b)(2)(iv),  and all  provisions of this  Agreement  relating to the
     maintenance  of Capital  Accounts  shall be  interpreted  and  applied in a
     manner consistent with that Regulation.

3.7 Loans and Other Business Transactions

     Any Member may, at any time,  make or cause to be made a non-recourse  loan
     to the  Company  in any  amount  and on those  terms  upon which the Member
     making  such  non-recourse  loan and the  Company  may  agree  in  writing.
     Acceptance  by the Company of any such Loan  provided by a Member  requires
     the prior  unanimous  consent of the Members.  Any Member may also transact
     other business,  subject to the requirement provided in Section 5.3.4, with
     the Company and be an employee  or  independent  contractor  of the Company
     and,  in doing so, it shall have the same rights and be subject to the same
     obligations  arising out of any such business  transaction or employment or
     consultant  relationship,  as  would be  enjoyed  by and  imposed  upon any
     Person,  not a Member,  engaged in a similar business  transaction with the
     Company. 4. Allocations of Profit and Loss and Distributions

4.1 Distributions of Cash Flow

     Except as otherwise provided in Section 4.7.1 with respect to distributions
     upon  liquidation  of the  Company,  Cash Flow for each  Fiscal Year of the
     Company shall be distributed to the Interest Holders in proportion to their
     Percentages at such time or times and in such  aggregate  amounts as may be
     determined by the Managers. Cash Flow, other than revenues or proceeds from
     a  Capital  Transaction  or  the  dissolution  of  the  Company,  shall  be
     distributed as soon as practicable following a Manager's determination that
     such cash is available for  distribution.  The Members  acknowledge that no
     assurances  can be given with  respect to when or whether such cash will be
     available for distributions to the Members.

4.2 Allocations of Profits and Losses

     4.2.1 General. Except as otherwise provided in this Section 4.2, Profit and
     Loss of the  Company  shall be  allocated  among the  Interest  Holders  as
     follows:

     4.2.1.1  Profit and Loss of the Company  shall be allocated to the Interest
     Holders in proportion to their respective Percentages.

     4.2.1.2 In accordance with the provisions of Regulation Section 1.704-2(i),
     each item of an Interest Holder's Nonrecourse  Deduction shall be allocated
     among the Interest  Holders in proportion to the economic risk of loss that
     the Interest Holder bears with respect to the nonrecourse  liability of the
     Company to which such item of an Interest Holder's Nonrecourse Deduction is
     attributable.

     4.2.2 Allocation  Adjustments Required to Comply with Section 704(b) of the
     Code

     4.2.2.1 Limitation on Allocation of Loss.  Notwithstanding Section 4.2.1.1,
     there  shall be no  allocation  of Loss to any  Interest  Holder that would
     create or  increase a deficit  balance in such  Interest  Holder's  Capital
     Account unless such allocation  would be treated as valued under Regulation
     Section 1.704-1(b)(1)(i).  Any Loss that cannot be allocated to an Interest
     Holder pursuant to the preceding sentence shall be reallocated to the other
     Interest Holders in proportion to their Percentages.

     4.2.2.2 Qualified Income Offset. Notwithstanding Section 4.2.1.1, if in any
     taxable  year an Interest  Holder  receives (or is  reasonably  expected to
     receive) a  distribution,  or an  allocation or adjustment to such Interest
     Holder's   Capital   Account,   in  accordance  with   Regulation   Section
     1.704-1(b)(2)(ii)(d)(4),  (5) and (6),  that  creates or  increases  (or is
     reasonably  expected  to create or  increase)  a  deficit  balance  in such
     interest Holder's Capital Account, there shall be allocated to the Interest
     Holder such items of Company income or gain as are necessary to satisfy the
     requirements  of  a  "qualified   income  offset"  within  the  meaning  of
     Regulation Section 1.704-1(b)(2)(ii)(d)(3).

     4.2.2.3  Minimum  Gain  Chargeback.  Notwithstanding  Section  4.2.1,  this
     Section  4.2.2.3  hereby   incorporates  by  reference  the  "minimum  gain
     chargeback"  provisions of Regulation  Section  1.704-2(f)  and (i)(4).  In
     general,  upon a reduction of the  Company's  Minimum  Gain,  the preceding
     sentence shall require that items of income and gain be allocated among the
     Interest Holders in a manner that reverses prior allocations of Nonrecourse
     Deductions and Interest Holder Nonrecourse Deductions as well as reductions
     in  the  Interest   Holders'  Capital  Account   balances   resulting  from
     distributions that, notwithstanding Section 4.6, are allocable to increases
     in the Company's Minimum Gain.  Subject to the provisions of Section 704 of
     the Code and the regulations  thereunder,  if the Managers determine at any
     time that  operation of such "minimum gain  chargeback"  provisions  likely
     will not achieve such a reversal by the  conclusion of the  liquidation  of
     the company,  the Managers shall adjust the  allocation  provisions of this
     Section 4.2.2 as necessary to accomplish this result.

          4.2.2.4 Allocations Subsequent to Certain Allocation Adjustments.

               Any special  allocations  of items of Profit or Loss  pursuant to
               Sections 4.2.2.1,  4.2.2.2 or 4.2.2.3 shall be taken into account
               in computing subsequent  allocations pursuant to Section 4.2.1 so
               that,  for  each  Interest  Holder,  the net  amount  of any such
               special allocations and all allocations pursuant to Section 4.2.1
               shall,  to the extent  possible  and taking  into  account  prior
               allocations pursuant to Section 4.2.7, be equal to the net amount
               that would have been allocated to such Interest  Holder  pursuant
               to Section 4.2.1 without application of Sections 4.2.2.1, 4.2.2.2
               or 4.2.2.3.

          4.2.3 Book - Tax Accounting Disparities

               If the Company  Assets are  reflected in the Capital  Accounts of
               the Interest Holders at a Gross Asset Value that differs from the
               adjusted  tax  basis  of  such  property  (whether  because  such
               property was  contributed to the Company by an Interest Holder or
               because  of  a  revaluation  of  the  Interest  Holders'  Capital
               Accounts under  Regulation  Section  1.704-1(b)),  allocations of
               depreciation,  amortization, income, gain or loss with respect to
               such  property  shall be made  among the  Interest  Holders  in a
               manner which takes such  difference  into  account in  accordance
               with Code Section 704(c) and Regulation  Section1.704-3(d)  using
               the remedial method.

          4.2.4 Allocation in Event of Transfer

               If an Interest is  Transferred,  in compliance  with Section 6.1,
               allocations  of the Company's  Profit and Loss may be made by any
               method that is selected by the Managers  and that is  permissible
               under Section 706 of the Code.

          4.2.5 Adjustments to Capital Accounts for Distributions of Property

               If  property  distributed  in kind is  reflected  in the  Capital
               Accounts  of the  Interest  Holders at a Gross  Asset  Value that
               differs from the fair market  value of such  property on the date
               of  distribution,  the  difference  shall be treated as Profit or
               Loss on the sale of the  property  and shall be  allocated to the
               Interest Holder who received such distribution.

          4.2.6 Tax Credits and Similar Items.

               Any tax  credits  or  similar  items not  allocable  pursuant  to
               Sections  4.2.1  through 4.2.5 shall be allocated to the Interest
               Holders   in   proportion   to  their   respective   Percentages.
               Notwithstanding the preceding sentence, Company expenditures that
               give rise to tax credits  attributable to such expenditures shall
               be   allocated   in   accordance    with    Regulation    Section
               1.704-1(b)(4)(ii).

          4.2.7 Reallocation of Losses Related to Excess Distributions

               If, as a result of an Interest Holder receiving a distribution of
               cash or  property  that it is  required  to  return  because  the
               distribution  was not  authorized by this  Agreement,  Loss which
               otherwise  would have been  allocated to the Interest  Holder was
               allocated  to  one or  more  other  Interest  Holders  (and  such
               allocation  has not been reversed  pursuant to Section  4.2.2.4),
               then  subsequent  profit  and  Loss  shall  be  allocated  to the
               Interest  Holder  and to the  other  Interest  Holders  so as, in
               connection  with the  return  of such  cash or  property  (to the
               extent of the value  thereof),  to effect a reallocation  of such
               Loss to the Interest Holder.

4.3 Modifications to Preserve Underlying Economic Objectives

          If in the opinion of counsel to the Company,  there is a change in the
          Federal income tax law (including the Code as well as the regulations,
          rulings,  and  administrative  practices  thereunder)  which  makes it
          necessary  or  prudent  to modify the  allocation  provisions  of this
          Section 4 in order to preserve the underlying  economic  objectives of
          the Members as reflected in this  Agreement,  the Managers  shall make
          the minimum modification necessary to achieve such purpose.

4.4 Withholding Taxes

          The Company shall withhold taxes from distributions to and allocations
          among,  the Interest  Holders to the extent required by law. Except as
          otherwise  provided in this Section  4.4,  any amount  withheld by the
          Company  with  regard  to an  Interest  Holder  shall be  treated  for
          purposes of this Agreement as an amount  actually  distributed to such
          Interest Holder. An amount shall be considered withheld by the Company
          if remitted to a  governmental  agency  without regard to whether such
          remittance  occurs at the same time as the  distribution or allocation
          to which it relates provided, however that an amount actually withheld
          from a specific distribution or designated by the Managers as withheld
          from a specific  allocation  shall be treated as if distributed at the
          time such  distribution or allocation  occurs. To the extent operation
          of the  foregoing  provisions  of this  Section  4.4  would  create or
          increase a deficit  balance in an Interest  Holder's  Capital  Account
          (excluding  for this purpose any portion of such deficit  attributable
          to the  Interest  Holder's  share  of the  Company's  Minimum  Gain as
          determined under Section 1), the amount withheld shall be treated as a
          loan by the  Company  to such  Interest  Holder,  which  loan shall be
          payable  upon  demand and shall bear  interest  at a rate equal to the
          lowest rate that will not give rise to the  imputation  of  additional
          interest under applicable federal income tax rules. At the election of
          the  Managers,  the Company  shall be  entitled  to withhold  from any
          distributions  otherwise payable to an Interest Holder amounts owed to
          the Company by such  Interest  Holder under the terms of the preceding
          sentence.

4.5 Nonallocation of Distributions to Increases in Minimum Gain

          To  the  extent   permitted  under  Regulation   Section   1.704-2(h),
          distributions  to Interest Holders shall not be allocable to increases
          in the Company's  Minimum Gain. In general,  and except as provided in
          such  Regulation,  the  preceding  sentence is intended to ensure that
          reductions in an Interest  Holder's Capital Account balance  resulting
          from  distributions of money or other property to that Interest Holder
          are not reversed by the minimum gain chargeback  provisions of Section
          4.2.2.3.

4.6 Allocation of Liabilities

          Solely for purposes of determining  the Interest  Holders'  respective
          shares  of the  nonrecourse  liabilities  of the  Company  within  the
          meaning of Regulation  Section  1.752-3(a)(3),  each Interest Holder's
          interest in Company  Profit shall be equal to such  Interest  Holder's
          Percentage.

4.7 Liquidation and Dissolution

          4.7.1 Distributions.  If the Company is liquidated,  the assets of the
          Company  shall be  distributed  to the Interest  Holders in accordance
          with the positive balances in their respective Capital Accounts, after
          taking into account all  distributions  and  allocations  of Profit or
          Loss and  other  items of  income,  gain,  loss or  deduction  for the
          Company's taxable year during which liquidation occurs.  Distributions
          of the Interest  Holders  pursuant to this Section 4.7.1 shall be made
          in accordance with Regulation Section 1.704-1(b)(2)(ii)(b)(2).

          4.7.2 Negative Capital Accounts. No Interest Holder shall be obligated
          to restore a negative Capital Account balance.

4.8 General

          4.8.1 Except as otherwise  provided in this  Agreement,  the amount of
          all   distributions   shall  be   determined   by  the   Managers  and
          distributions  shall  be  made  as soon  as  practicable  following  a
          Manager's  determination.  The Members  acknowledge that no assurances
          can be given with respect to when or whether such  distributions  will
          be available to the Members.

          4.8.2 The Company  Assets may be  distributed  in kind to the Interest
          Holders,  and those  assets shall be valued on the basis of their fair
          market value.  The fair market value of the assets shall be determined
          by the Members.  In the case of  disagreement  among the  Members,  an
          independent  appraiser,  who shall be  selected  by a  Manager,  shall
          determine  the fair market value of the asset.  The Profit or Loss for
          each unsold asset shall be determined as if the asset had been sold at
          its fair market  value,  and the Profit or Loss shall be  allocated to
          the Interest  Holders who  received  such  distributions  and shall be
          properly  credited or charged to the Capital  Accounts of the Interest
          Holders  prior  to the  distribution  of  the  assets  in  liquidation
          pursuant to Section 4.7.

          4.8.3 All Profit and Loss shall be  allocated,  and all  distributions
          shall be made to the  Persons  shown on the  records of the Company to
          have been Interest  Holders as of the last day of the taxable year for
          which the allocation or  distribution  is to be made.  Notwithstanding
          the  foregoing,  unless the Company's  taxable year is separated  into
          segments,  if there is a Transfer or an Involuntary  Withdrawal during
          the taxable year,  the Profit and Loss shall be allocated  between the
          original  Interest Holder and the successor on the basis of the number
          of days each was an Interest Holder during the taxable year; provided,
          however,  the Company's  taxable year shall be segregated  into two or
          more  segments  in order  to  account  for  Profit,  Loss or  proceeds
          attributable  to a Capital  Transaction or to any other  extraordinary
          non-recurring items of the Company.

          4.8.4 The  Managers  are  hereby  authorized,  upon the  advice of the
          Company's tax counsel, to amend this Article 4 to comply with the Code
          and the Regulations  promulgated under Code Section 704(b);  provided,
          however, that no amendment shall materially affect distributions to an
          Interest Holder without the Interest Holder's prior written consent.

5. Manager(s) and Management

5.1 Management

          5.1.1 Manager(s) and Appointment

          The Company shall be managed by the Manager(s), who may, but need not,
          be a Member.  Member  hereby  designates  Philip J.  Taylor,  David L.
          Wozny, Gill Howard and Bradley C. Arnett to serve as the Managers. The
          above  individuals  shall  serve as  Managers  until such  individuals
          resign or are  removed by the  Member(s);  provided,  however,  that a
          Manager  shall not be  permitted  to resign if such Manager is, at the
          time, the sole Manager,  unless and until a replacement  Manager shall
          be elected to serve as Manager.

          5.1.2 General Powers

          Each Manager  individually  shall have full,  exclusive,  and complete
          discretion,  power,  and authority,  subject in all cases to the other
          provisions of this Agreement and the  requirements  of applicable law,
          to manage, control,  administer,  and operate the business and affairs
          of the  Company  for the  Purposes  herein  stated,  and to  make  all
          decisions  affecting  such  business  and affairs,  including  without
          limitation, for Company purposes, the power to:

          (a)  acquire by purchase,  lease,  or otherwise,  any real or personal
               property, tangible or intangible;

          (b)  construct,  operate,  maintain,  finance and improve, and to own,
               sell,  convey,  assign,  mortgage,  or lease  any of the  Company
               Assets;

          (c)  enter  into  agreements  and  contracts  in  connection  with the
               Company's business;

          (d)  purchase  liability and other  insurance to protect the Company's
               properties and business;

          (e)  borrow money for and on behalf of the Company,  and,  execute any
               guaranty on behalf of a third party;

          (f)  execute or modify  agreements  or  contracts  with respect to any
               part or all of the Company's Assets;

          (g)  prepay, in whole or in part, refinance,  amend, modify, or extend
               any  mortgages  or deeds of trust  which may affect  any  Company
               Asset and, in connection therewith,  to execute for and on behalf
               of the Company any extensions, renewals, or modifications of such
               mortgages or deeds of trust;

          (h)  execute any and all other  instruments and documents which may be
               necessary or in the opinion of the Manager desirable to carry out
               the intent and purpose of this Agreement;

          (i)  make any and all  expenditures  which  the  Manager,  in its sole
               discretion, deems necessary or appropriate in connection with the
               management  of the affairs of the Company and the carrying out of
               its  obligations  and  responsibilities   under  this  Agreement,
               including,  without limitation,  all legal, accounting, and other
               related  expenses  incurred in connection with the  organization,
               financing, and operation of the Company;

          (j)  enter into any kind of activity necessary to, in connection with,
               or  incidental  to, the  accomplishment  of the  purposes  of the
               Company; and

          (k)  invest and reinvest Company reserves in short term instruments or
               money market funds

          5.1.3 Extraordinary Transactions

          (a)  Notwithstanding  anything to the contrary in this Agreement,  the
               Managers  shall not undertake  any of the  following  without the
               approval of the Members:

               (i)  any Capital Transaction;

               (ii) to lend,  assume or  guaranty  debt in excess of $100,000 in
                    any one Fiscal Year;

               (iii)the admission of  additional  or  substitute  Members to the
                    Company;

               (iv) the Company engaging in business in any  jurisdiction  which
                    does not provide for the  registration of limited  liability
                    companies;

               (v)  to  authorize  any   expenditure   that  causes  the  annual
                    expenditure  budget to be exceeded by fifteen  percent (15%)
                    in any one Fiscal Year; and

               (vi) to provide loans to any Member; assume the debt of a Member;
                    guaranty  debt  of a  Member;  or  acceptance  of  any  loan
                    provided by a Member.

          5.1.4 Limitation on Authority of Members

          (a)  No Member is an agent of the Company  solely by virtue of being a
               Member, and no Member has authority to act for the Company solely
               by virtue of being a Member.  Only the Managers are authorized to
               act for the Company,  and no Member has any  authority to act for
               the Company unless such Member is also a Manager.

          (b)  This Section 5.1.4 supersedes any authority granted to the Member
               pursuant to Section  18-402 of the Act.  Any Member who takes any
               action or binds the Company in violation  of this  Section  5.1.4
               shall be solely  responsible for any loss or expense  incurred by
               the  Company  as a result of the  unauthorized  action  and shall
               indemnify and hold the Company  harmless with respect to the loss
               or expense.

          5.1.5 Removal of Manager

          The Members, at any time and from time to time and for any reason, may
          remove any Manager then acting and elect a new  Manager.  No action to
          remove a Manager  may be taken  without the  approval of  seventy-five
          percent (75%) of the Members.

5.2 Meetings of and Voting by Members

          5.2.1 A  meeting  of the  Members  may be  called  at any  time by the
          Managers  or by  those  Members  holding  at least a  majority  of the
          Percentages  then held by Members.  It shall not be necessary  for the
          Managers to call or to hold regular meetings of the Members.  Meetings
          of the  Members  shall  be held at the  Company's  principal  place of
          business or at any other place  designated  by the Person  calling the
          meeting.  Not less than seven (7) nor more than sixty (60) days before
          each meeting,  a Manager  shall give written  notice of the meeting to
          each Member  entitled to vote at the  meeting.  The notice shall state
          the time,  place,  and  purpose of the  meeting.  Notwithstanding  the
          foregoing provisions,  each Member who is entitled to notice may waive
          notice,  either before or after the meeting,  by executing a waiver of
          such  notice or if such  Member is present at the meeting in person or
          by proxy. At a meeting of Members,  the presence in person or by proxy
          of  Members  holding  Percentages,   which  aggregate  not  less  than
          sixty-seven  percent  (67%),  constitutes a quorum.  A Member may vote
          either in person or by  written  proxy  signed by the Member or by his
          duly authorized attorney-in-fact.

          5.2.2 Except as otherwise  provided in this  Agreement,  wherever this
          Agreement  requires the approval of the Members,  the affirmative vote
          of those Members  holding a majority or more of the  Percentages  then
          held by Member(s) shall be required to approve the matter.

          5.2.3 In lieu of holding a meeting,  the Members may vote or otherwise
          take  action by a written  instrument  indicating  the  consent of the
          Members  holding a majority  of the  Percentages  then held.  Any such
          approved action shall be effective immediately. The Company shall give
          prompt notice to all Members of any action approved by Members by less
          than unanimous consent.

          5.2.4  The  provisions  of this  Agreement  are  intended  to  replace
          completely  the  provisions  of the Act with  respect  to all  matters
          concerning  a Member's  voting  rights,  procedures  for  meetings  of
          Members, actions by Members without meetings, and the use of proxies.

5.3 Services and Duties of Members

          5.3.1 No Member  serving as a Manager shall be expected to devote his,
          her or its full  working  time and efforts to the business and affairs
          of the Company, and each shall only devote so much time and efforts as
          is reasonably  required for such  purposes.  The Managers shall devote
          such time to the  business  and affairs of the Company as is necessary
          to  carry  out the  Manager's  duties  set  forth  in this  Agreement.
          Managers  shall be reimbursed by the Company for  reasonable  business
          expenses  incurred  on behalf of the  company  and  within  guidelines
          established by the Members.

          5.3.2 No Member  other  than a Member  serving  as a Manager  shall be
          expected,  or entitled,  to work for the Company except with the prior
          written consent of the Managers.

          5.3.3 Except as otherwise expressly provided in Section 5.3.4, nothing
          in this Agreement shall be deemed to restrict in any way the rights of
          the Managers or any Member,  or to any Affiliate of any Manager or any
          Member, to conduct any other business or activity whatsoever,  and the
          Managers or any Member shall not be  accountable  to the Company or to
          any Member  with  respect to that  business  or  activity  even if the
          business  or  activity  competes  with  the  Company's  business.  The
          organization  of the  Company  shall  be  without  prejudice  to their
          respective  rights (or the rights of their  respective  Affiliates) to
          maintain, expand, or diversify such other interests and activities and
          to receive and enjoy profits or  compensation  therefrom.  Each Member
          waives  any  rights  the  Members  might  otherwise  have to  share or
          participate  in such other  interests or activities of the Managers or
          any other Member or any Manager's or Member's Affiliates.

          5.3.4 Each Member understands and acknowledges that the conduct of the
          Company's business may involve business dealings and undertakings with
          a Member and its Affiliates. In any of those cases, those dealings and
          undertakings  shall be at arm's length and on commercially  reasonable
          terms as determined by the Managers.

5.4 Liability and Indemnification

          5.4.1 The Managers shall not be liable,  responsible,  or accountable,
          in damages or  otherwise,  to any Member or to the Company for any act
          performed by the Managers within the scope of the authority  conferred
          on the Managers by this Agreement, except for fraud, gross negligence,
          willful misconduct, or an intentional breach of this Agreement.

          5.4.2 The Company  shall  indemnify the Managers for any act performed
          by the  Managers  within the scope of the  authority  conferred on the
          Managers  by this  Agreement,  unless  such  act is a  breach  of this
          Agreement,  or  constitutes  gross  negligence,  wilful or intentional
          misconduct, or a knowing violation of law.

5.5 Power of Attorney

          5.5.1 Grant of Power

          The Members  constitute  and appoint the Managers as the Members' true
          and lawful attorney-in-fact ("Attorney-in-Fact"),  and in the Members'
          name, place and stead, to make, execute, sign, acknowledge, and file:

          (a)  all  documents  (including   amendments  to  the  Certificate  of
               Formation)  which  the  Attorney-in-Fact   deems  appropriate  to
               reflect any amendment, change, or modification of this Agreement;

          (b)  any and all other  certificates or other instruments  required to
               be filed by the  Company  under the laws of the State of Delaware
               or  of  any  other  state  or  jurisdiction,  including,  without
               limitation,  any  certificate or other  instruments  necessary in
               order  for the  Company  to  continue  to  qualify  as a  limited
               liability company under the laws of the State of Delaware;

          (c)  one or more fictitious or trade name certificates; and

          (d)  all documents which may be required to dissolve and terminate the
               Company and to cancel its Certificate of Formation.

          5.5.2 Irrevocability

          The foregoing  power of attorney is irrevocable and is coupled with an
          interest,  and,  to the extent  permitted  by  applicable  law,  shall
          survive the death or disability of a Member. It also shall survive the
          Transfer of an Interest, except that if the transferee is approved for
          admission  as a Member,  this  power of  attorney  shall  survive  the
          delivery  of the  assignment  for the sole  purpose  of  enabling  the
          Attorney-in-Fact to execute, acknowledge and file any documents needed
          to  effectuate  the  substitution.  Each Member  shall be bound by any
          representations  made by the  Attorney-in-Fact  acting  in good  faith
          pursuant to this power of attorney,  and each Member hereby waives any
          and  all  defenses  which  may be  available  to  contest,  negate  or
          disaffirm the action of the Attorney-in-Fact taken in good faith under
          this power of attorney.  6. Transfer of Interests and  Withdrawals  of
          Members

6.1 Transfers

          6.1.1 The Members and Interest  Holders shall not trade or deal in any
          Membership  Interest  and  Interest  on  any  securities  exchange  or
          securities market.

          6.1.2 No Person may  Transfer all or any portion of or any interest or
          rights in the  Membership  Interest or Interest  unless the  following
          conditions "Conditions of Transfer") are satisfied:

          (a)  The  Transfer  will not  require  registration  of  Interests  or
               Membership Interests under any federal or state securities laws;

          (b)  The  transferee  delivers  to the  Company a  written  instrument
               agreeing to be bound by the terms of this Agreement.

          (c)  The Transfer  will not result in the  termination  of the Company
               pursuant to Code Section 708;

          (d)  The Transfer  will not result in the Company being subject to the
               Investment Company Act of 1940, as amended;

          (e)  The   transferor  or  the   transferee   delivers  the  following
               information  to  the  Company:  (i)  the  transferee's   taxpayer
               identification number and (ii) the transferee's initial tax basis
               in the Transferred Interest; and

          (f)  The  Transfer  will not result in the  Company  being  taxed as a
               corporation for purposes of federal or state income tax purposes.

          6.1.3 If the  Conditions of Transfer are  satisfied,  then a Member or
          Interest  Holder may  Transfer  all or any  portion  of that  Person's
          Interest.  The  Transfer of an Interest  pursuant to this  Section 6.1
          shall not result,  however, in the Transfer of any of the transferor's
          other Membership Interest,  if any, and the transferee of the Interest
          shall have no right to: (i) become a Member without the consent of the
          Members  required by this  Agreement;  or (ii) exercise any Membership
          Interest other than those specifically  pertaining to the ownership of
          an Interest.

          6.1.4  The  Members  hereby  acknowledge  the  reasonableness  of  the
          prohibition contained in this Section 6.1 in view of the structure and
          purposes of the  Company.  The  Transfer of any  Membership  Rights or
          Interests in violation  of the  prohibition  contained in this Section
          6.1 shall be deemed invalid,  null and void, and of no force or effect
          except any Transfer mandated by operation of law that cannot be waived
          or varied by private  agreement and then only to the extent  necessary
          to give effect to such  Transfer by  operation  of law.  Any Person to
          whom a Membership  Interest or Interest is attempted to be transferred
          in violation of this Section  shall not be entitled to vote on matters
          coming  before  the  Members,  participate  in the  management  of the
          Company, act as an agent of the Company or have any other rights in or
          with respect to the Membership Interest.

          6.1.5 Right of First Offer

          (a)  If an Interest Holder (a "Transferor") desires to Transfer all or
               any  portion of, or any  interest or rights in, the  Transferor's
               Interest (the "Transferor Interest"), the Transferor shall notify
               the Company of that desire (the "Transfer Notice").  The Transfer
               Notice shall describe the Transferor Interest.  Each Member shall
               have the option (the  "Purchase  Option") to purchase  all of the
               Transferor  Interest for a price (the "Purchase  Price") equal to
               the amount the  Transferor  would  receive  if the  Company  were
               liquidated  and an  amount  equal  to  the  Appraised  Value  (as
               determined   pursuant  to  Section   6.4)  were   available   for
               distribution to the Members pursuant to Section 4.4.

          (b)  The Purchase Option shall be and remain  irrevocable for a period
               (the  "Transfer  Period")  ending at 11:59 P.M. local time at the
               Company's  principal office on the thirtieth (30th) day following
               the Transfer Notice is given to the Company.

          (c)  At any time during the Transfer Period,  each Member may elect to
               exercise  the  Purchase  Option by giving  written  notice of its
               election to the Transferor.  The Transferor shall not be deemed a
               Member for the  purpose of voting on whether  the  Company  shall
               elect to exercise the Purchase Option.

          (d)  If any  Member  elects  to  exercise  the  Purchase  Option,  the
               Member's  notice of its  election  shall fix a closing  date (the
               "Transfer  Closing  Date") for the  purchase,  which shall not be
               earlier  than  five (5) days  after  the  date of the  notice  of
               election or more than thirty  (30) days after the  expiration  of
               the Transfer Period.

          (e)  If a Member elects to exercise the Purchase Option,  the Purchase
               Price shall be paid in cash on the Transfer Closing Date.

          (f)  If  all  Members  fail  to  exercise  the  Purchase  Option,  the
               Transferor  shall be  permitted to offer and sell for a period of
               ninety  (90)  days  (the  "Free   Transfer   Period")  after  the
               expiration  of the  Transfer  Period at a price not less than the
               Purchase   Price.   If  the  Transferor  does  not  Transfer  the
               Transferor   Interest  within  the  Free  Transfer  Period,   the
               Transferor's  right to Transfer the Transferor  Interest pursuant
               to this Section shall cease and terminate.

          (g)  Any Transfer of the  Transferor  Interest made after the last day
               of the Free Transfer Period or without strict compliance with the
               terms, provisions and conditions of this Section and other terms,
               provisions,  and  conditions  of this  Agreement,  shall be null,
               void, and of no force or effect.

6.2 Voluntary Withdrawal Prohibited

          No  Members  shall  have the  right or  power  to  effect a  voluntary
          withdrawal  from the Company.  Any Member who  effectuates a voluntary
          withdrawal is in violation of this Agreement and shall not be entitled
          to receive the fair value of the  Member's  Interest as of the date of
          the voluntary  withdrawal as otherwise  provided by Section  18-604 of
          the Act.

6.3 Involuntary Withdrawal

          Immediately  upon the  occurrence of an  Involuntary  Withdrawal,  the
          affected  Member  shall cease to have a  Membership  Interest  and the
          Member's  Membership  Interest shall be  automatically  converted into
          just  an  Interest,  except  that  any  successor-in-interest  to  the
          Interest of a Member who has Involuntarily Withdrawn shall be entitled
          to exercise such of the Member's  rights as a Member as is required by
          the  operation  of law that  cannot be  waived  or  varied by  private
          agreement.

6.4 Appraised Value

          6.4.1 The term  "Appraised  Value"  means the  appraised  value of the
          equity of the Company's Assets as hereinafter provided. Within fifteen
          (15) days after demand by either one or the other, the Company and any
          Withdrawing Member, if applicable,  shall each appoint an appraiser to
          determine the value of the equity of the Company's  Assets. If the two
          appraisers agree upon the equity value of the Company's  Assets,  they
          shall jointly render a single  written  report stating that value.  If
          the two appraisers cannot agree upon the equity value of the Company's
          Assets,  they shall each  render a separate  written  report and shall
          appoint a third appraiser, who shall appraise the Company's Assets and
          determine the value of the equity therein,  and shall render a written
          report of his opinion thereon. Each party shall pay the fees and costs
          of the appraiser appointed by that party, and the fees and other costs
          of the third appraiser shall be shared equally by both parties.

          6.4.2 The equity value contained in the aforesaid joint written report
          or written report of the third appraiser, as the case may be, shall be
          the  Appraised  Value;  provided,  however,  that it the  value of the
          equity  contained in the  appraisal  report of the third  appraiser is
          more than the  higher of the first two  appraisals,  the higher of the
          first two appraisals shall govern; and provided,  further, that if the
          value of the equity  contained  in the  appraisal  report of the third
          appraiser  is less than the lower of the  first  two  appraisals,  the
          lower of the  first  two  appraisals  shall  govern.  7.  Dissolution,
          Liquidation, and Termination of the Company

7.1 Events of Dissolution

          The  Company  shall  be  dissolved  upon the  happening  of any of the
          following events:

          7.1.1 on the date fixed for its termination in Section 2.4;

          7.1.2 upon the decision by the Company to dissolve, as approved by the
          unanimous  agreement  of  every  Member  without  the  consent  of the
          Managers;

          7.1.3 upon the  occurrence of an  Involuntary  Withdrawal of a Member,
          unless  the  remaining  Members,  within  ninety  (90) days  after the
          occurrence  of  the  Involuntary  Withdrawal,   unanimously  elect  to
          continue  the  business of the  Company  pursuant to the terms of this
          Agreement; or

          7.1.4 by  operation  of law that cannot be waived or varied by private
          agreement.

7.2 Procedure for Winding Up and Dissolution

          If the Company is dissolved,  the Managers  shall wind up its affairs.
          If there shall be no Manager or the Managers are unable or unavailable
          to perform these duties, then the Members shall elect a Person to wind
          up the  affairs of the  Company.  On winding  up of the  Company,  the
          assets of the Company shall be distributed, first, to creditors of the
          Company including Interest Holders who are creditors,  in satisfaction
          of the liabilities of the Company, and then to the Interest Holders in
          accordance with this Agreement.

7.3 Filing of Certificate of Cancellation

          Upon  completion of the winding up of the affairs of the Company,  the
          Managers shall promptly file a Certificate  of  Cancellation  with the
          Secretary of State.  If there is no Manager,  then the  Certificate of
          Cancellation shall be filed by the Members or by the last Person to be
          a Member or by the legal or personal representatives of the Person who
          last was a Member.

8. Books, Records, Accounting, and Tax Elections

8.1 Bank Accounts

          All funds of the  Company  shall be  deposited  in a bank  account  or
          accounts  opened and  maintained in the Company's  name.  The Managers
          shall  determine the institution or institutions at which the accounts
          will be opened and maintained,  the types of accounts, and the Persons
          who will have  authority  with  respect to the  accounts and the funds
          therein.

8.2 Books and Records

          8.2.1  The  Managers  shall  keep or  cause  to be kept  complete  and
          accurate books and records of the Company and supporting documentation
          of the  transactions  with  respect to the  conduct  of the  Company's
          business at the  Company's  principal  executive  office.  The records
          shall  include,   but  not  be  limited  to,   complete  and  accurate
          information   regarding  the  state  of  the  business  and  financial
          condition of the Company,  a copy of the  Certificate of Formation and
          Limited   Liability  Company  Agreement  and  all  amendments  to  the
          Certificate of Formation and the Limited Liability Company  Agreement;
          a current  list of the names and last known  business,  residence,  or
          mailing addresses of each Member; and the Company's federal, state, or
          local tax  returns  and  reports,  if any,  for the six(6) most recent
          taxable years; internal books and records for the current and three(3)
          most recent  years;  a true copy of relevant  records  indicating  the
          amount,  cost,  and  value of all  property  which the  Company  owns,
          claims, possesses, or controls.

          8.2.2 The books and records shall be maintained on the accrual  method
          of  accounting  in accordance  with the  requirements  of the Code and
          Regulation  Section 1.704-1(b) and shall be available at the Company's
          principal  office for  examination  by any Member or the Member's duly
          authorized  representative  at any and  all  reasonable  times  during
          normal  business  hours for any  purpose  reasonably  related  to such
          Member's interest as a Member of the Company.

8.3 A Member has the right upon reasonable request, and for purposes reasonably
     related to the interest of the Member in the Company, to do the following:

          8.3.1 to inspect  and copy  during  normal  business  hours any of the
          records required to be maintained by the Company under this Agreement;

          8.3.2 to obtain from the Company promptly after becoming available,  a
          copy  of  the  Company's  federal,  state  and  local  income  tax  or
          information returns for each year;

          8.3.3 the Managers shall promptly furnish to the requesting Member (i)
          a copy  of any  amendment  to the  Certificate  of  Formation  or this
          Agreement pursuant to a power of attorney from the Members provided in
          Section 5.5.1,  and (ii) a copy of this  Agreement,  at the expense of
          the Company,  upon the reasonable  request of the Member for a purpose
          reasonably related to the interest of the Member in the Company; and

          8.3.4  unless  otherwise  provided in this  Agreement,  a Member shall
          reimburse  the  Company  for all costs and  expenses  incurred  by the
          Company in connection with the Member's  inspection and copying of the
          Company's books and records.

8.4 Annual Accounting Period

          The annual accounting period of the Company shall be its taxable year.
          The  Company's  taxable  year shall  begin on  January  1st and end on
          December 31st.

8.5 Tax Matters Partner

          Cinergy Global Chandler I, Inc., a Delaware corporation,  shall be the
          Company's tax matters  partner (the "Tax Matters  Partner") under Code
          Section  6231.  The Tax  Matters  Partner  shall  have all  powers and
          responsibilities  provided  in Code  Section  6221,  et  seq.  The Tax
          Matters  Partner shall keep every Member  informed of all notices from
          government  taxing  authorities  that may come to the attention of the
          Tax Matters Partner.  The Company shall pay and be responsible for all
          reasonable  third-party costs and expenses incurred by the Tax Matters
          Partner in performing  those duties. A Member shall be responsible for
          any costs  incurred  by the  Member  with  respect to any tax audit or
          tax-related  administrative or judicial proceeding against any Member,
          even though it relates to the Company. The Tax Matters Partner may not
          compromise any dispute with the Internal  Revenue  Service without the
          approval of the Member.

8.6 Tax Elections

          The Tax Matters  Partner  shall have the authority to make all Company
          elections  permitted under the Code,  including,  without  limitation,
          elections of methods of depreciation  and elections under Code Section
          754. The decision to make or not make an election  shall be at the Tax
          Matters  Partner's  sole and absolute  discretion,  subject to the Tax
          Matters  Partner's  obligations  to act in the  best  interest  of the
          Company and its Members.

8.7 Title to Company Assets

          All  real and  personal  property  acquired  by the  Company  shall be
          acquired and held by the Company in its name.

9. General Provisions

          9.1 Assurances

          The Members shall execute all such  certificates  and other  documents
          and shall do all such filing, recording, publishing, and other acts as
          the Managers deem  appropriate to comply with the  requirements of law
          for the  formation and operation of the Company and to comply with any
          laws, rules and regulations relating to the acquisition,  operation or
          holding of the property of the Company.

9.2 Notifications

          Any notice, demand, consent,  election,  offer, approval,  request, or
          other  communication  (collectively a "notice")  required or permitted
          under  this  Agreement  must  be  in  writing  and  either   delivered
          personally or sent by certified or registered  mail,  postage prepaid,
          return  receipt  requested.  Any notice to be given  hereunder  by the
          Company shall be given by the Managers.  A notice must be addressed to
          an Interest Holder at the Interest  Holder's last known address on the
          records of the  Company.  All notices to the Company must be addressed
          to the Company's  principal office with a copy to Cinergy Global Power
          Services  Limited,  at Cinergy  House,  Ryon Hill Park,  Warwick Road,
          Stratford-upon-Avon,  Warwickshire,  United Kingdom, CV37 0UU, Tel: 44
          1789 200 100, Fax: 44 1789 200 101.

          A  notice  delivered   personally  will  be  deemed  given  only  when
          acknowledged  in  writing  by the  person to whom it is  delivered.  A
          notice that is sent by mail will be deemed  given  three (3)  business
          days after it is mailed. Any party may designate,  by notice to all of
          the others,  substitute  addresses or  addressees  for  notices;  and,
          thereafter,  notices are to be directed to those substitute  addresses
          or addressees.

9.3 Complete Agreement

          This Agreement constitutes the complete and exclusive statement of the
          agreement by the  Member(s).  It supersedes all prior written and oral
          statements, including any prior representation,  statement, condition,
          or  warranty.  Except as expressly  provided  otherwise  herein,  this
          Agreement may not be amended without the written consent of all of the
          Member(s).

9.4 Governing Law and Jurisdiction

          All questions concerning the construction, validity and interpretation
          of this Agreement and the  performance of the  obligations  imposed by
          this  Agreement  shall be governed by the internal law, not the law of
          conflicts, of the State of Delaware.

9.5 Section Titles

          The headings herein are inserted as a matter of convenience  only, and
          do not define,  limit,  or describe the scope of this Agreement or the
          intent of the provisions hereof.

9.6 Binding Provisions

          This  Agreement  is binding  upon,  and inures to the  benefit of, the
          parties hereto and their respective heirs, executors,  administrators,
          personal and legal representatives, successors, and permitted assigns.

9.7 Terms

          Common nouns and pronouns  shall be deemed to refer to the  masculine,
          feminine,  neuter, singular, and plural, as the identity of the Person
          may in the context require.

9.8 Severability of Provisions

          If for any reason,  any provision or provisions  herein are determined
          to be  invalid  and  contrary  to any  existing  or future  law,  such
          invalidity  shall not impair the operation of or affect those portions
          of this Agreement which are valid.

9.9 Counterparts

          This  Agreement  may  be  executed   simultaneously  in  two  or  more
          counterparts,  each of which shall be deemed an  original,  and all of
          which, when taken together,  constitute one and the same document. The
          signature of any party to any counterpart  shall be deemed a signature
          to, and may be appended to, any other counterparty.

IN WITNESS  WHEREOF,  the Member has  executed,  or caused this  Agreement to be
executed  as of the date  set  forth  hereinabove  with  the  intent  that it be
effective as of the Effective Date.

MEMBER:

Cinergy Global Chandler I, Inc.
a Delaware corporation


By: __________________________
Name:  John Bryant
Title:    President


                                   Exhibit - A
                                       to


            Amended and Restated Limited Liability Company Agreement
                                       of
                           Chandler Wind Partners, LLC


Name, Address and Taxpayer I.D. Number                               Percentages
Cinergy Global Chandler I, Inc.                                         100 %
139 East Fourth Street
Cincinnati, Ohio 45202

Tax I.D.:





Effective as of the Effective Date:

Approved by Manager:  __________________________________








                                   Exhibit - B

            Amended and Restated Limited Liability Company Agreement

                                       of
                           Chandler Wind Partners, LLC




                              AMENDED AND RESTATED

                            CERTIFICATE OF FORMATION

                                       OF

                           Chandler Wind Partners, LLC

     This  Amended and  Restated  Certificate  of  Formation  of  Chandler  Wind
Partners,  LLC, a Delaware limited liability company,  formed on March 19, 1998,
was duly  executed and is being filed in accordance  with Section  18-208 of the
Delaware Limited Liability Company Act.

FIRST: The name of the limited liability company is Chandler Wind Partners, LLC.

SECOND: The  registered  agent of the  Company  in the State of  Delaware  is CT
     Corporation Trust Company,  Corporation  Trust Center,  1209 Orange Street,
     Wilmington,  County of New Castle,  Delaware  19801, or such other agent as
     determined by the Managers.

THIRD: The limited  liability company shall continue in existence on a perpetual
     basis unless  dissolved  pursuant to company's  limited  liability  company
     agreement.

     IN WITNESS  WHEREOF,  the  undersigned  has executed  this  Certificate  of
Amendment of Chandler Wind Partners, LLC effective as of _____________, 2002.




                  By:  ________________________________
                  Name:   Bradley C. Arnett
                          Title: Manager for Chandler Wind Partners, LLC
EX-99 91 b-562.htm CERT OF INCORP IZOIC INCORP IZOIC INCORPORATED

RESTATED

CERTIFICATE OF INCORPORATION

OF

IZOIC INCORPORATED

_________________

        IZOIC Incorporated, a Delaware corporation (the “Corporation”), does hereby certify that:

        FIRST: The present name of the Corporation is “IZOIC Incorporated”. The Corporation was originally incorporated by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on November 22, 1999, under the name “IZOIC Incorporated.”

        SECOND: A Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 13, 1999.

        THIRD: A Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on October 31, 2000.

        FOURTH: A Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on May 2, 2001.

        FIFTH: This Restated Certificate of Incorporation (the “Certificate”) amends and restates in its entirety the present Restated Certificate of Incorporation of the Corporation, and has been approved in accordance with Sections 141, 228, 242 and 245 of the General Corporation Law of the State of Delaware.

        SIXTH: This Certificate shall become effective immediately upon its filing with the Secretary of State of the State of Delaware.

        SEVENTH: Upon the filing of this Certificate with the Secretary of State of the State of Delaware, the Certificate of Incorporation of the Corporation shall be restated in its entirety to read as set forth on Exhibit A attached hereto.

        IN WITNESS WHEREOF, the undersigned, being the Chief Executive Officer of the Corporation hereinabove named, DOES HEREBY CERTIFY, under penalties of perjury, that the facts hereinabove stated are truly set forth and, accordingly, such officer has hereunto set his hand as of October 31, 2001.

  /s/ William R. Gordon
William R. Gordon
Chief Executive Officer

RESTATED

CERTIFICATE OF INCORPORATION

OF

IZOIC INCORPORATED

ARTICLE I

        The name of the Corporation (herein called the “Corporation”) is IZOIC Incorporated.

ARTICLE II

        The address of the registered office of the Corporation in the State of Delaware is 9 East Loockerman Street, City of Dover, County of Kent. The name of the registered agent of the Corporation at such address is National Registered Agents, Inc.

ARTICLE III

        The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE IV

    1.        Authorized Shares. The Corporation shall be authorized to issue 195,000,000 shares of all classes, consisting of (i) 180,000,000 shares of Common Stock, $.01 par value (the “Common Stock”), and (ii) 15,000,000 shares of Preferred Stock, $.01 par value (the “Preferred Stock”).


    2.        Common Stock. Each share of Common Stock shall be identical in all respects and for all purposes and entitled to: one vote in all proceedings in which action may or is required to be taken by shareholders of the Corporation; participate equally in all dividends payable with respect to the Common Stock, as, if and when declared by the Board of Directors of the Corporation subject to any dividend preference in favor of Preferred Stock; and share ratably in all distributions of assets of the Corporation in the event of any voluntary or involuntary liquidation, or winding up of the affairs of the Corporation, subject to any liquidation rights and preferences in favor of Preferred Stock.


    3.        Preferred Stock


    (a)        Of the 15,000,000 authorized shares of Preferred Stock, 3,055,556 shall be designated “Series A Convertible Participating Preferred Stock” and 7,500,000 shall be designated “Series B Convertible Participating Preferred Stock”. The shares of Series A Convertible Participating Preferred Stock are referred to herein as the “Series A Preferred Shares”, and the shares of Series B Convertible Participating Preferred Stock are referred to herein as the “Series B Preferred Shares”. The Series A Preferred Shares and the Series B Preferred Shares shall collectively be referred to herein as the “Preferred Shares”.


    (b)        With respect to the 4,444,444 shares of undesignated Preferred Stock as of the date hereof, the Board of Directors of the Corporation shall have authority to the fullest extent permitted under the Delaware General Corporation Law (the “DGCL”) to adopt by resolution from time to time one or more Certificates of Designation providing for the designation of one or more series of Preferred Stock and the voting powers, whether full or limited or no voting powers, and such designations, limitations or restrictions thereof, and to fix or alter the number of shares comprising any such series, subject to any requirements of the DGCL and this Restated Certificate of Incorporation, as amended from time to time.


          The authority of the Board of Directors with respect to each such series shall include, without limitation of the foregoing, the right to determine and fix the following preferences and powers, which may vary as between different series of Preferred Stock:

    (i)        the distinctive designation of such series and the number of shares to constitute such series;


    (ii)        the rate at which dividends on the shares of such series shall be declared and paid, or set aside for payment, whether dividends at the rate so determined shall be cumulative or accruing, and whether the shares of such series shall be entitled to any participating or other dividends in addition to dividends at the rate so determined, and if so, on what terms;


    (iii)        the right or obligation, if any, of the Corporation to redeem shares of the particular series of Preferred Stock and, if redeemable, the price, terms and manner of such redemption;


    (iv)        the special and relative rights and preferences, if any, and the amount or amounts per share, which the shares of such series of Preferred Stock shall be entitled to receive upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation;


    (v)        the terms and conditions, if any, upon which shares of such series shall be convertible into, or exchangeable for, shares of capital stock of any other series, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;


    (vi)        the obligation, if any, of the Corporation to retire, redeem or purchase shares of such series pursuant to a sinking fund or fund of a similar nature or otherwise, and the terms and conditions of such obligation;


    (vii)        voting rights, if any, including special voting rights with respect to the election of directors and matters adversely affecting any series of Preferred Stock;


    (viii)        limitations, if any, on the issuance of additional shares of such series or any shares of any other series of Preferred Stock; and


    (ix)        such other preferences, powers, qualifications, special or relative rights and privileges thereof as the Board of Directors of the Corporation, by the vote of the members of the Board of Directors then in office acting in accordance with this Restated Certificate of Incorporation, or the holders of any Preferred Stock, may deem advisable and are not inconsistent with law, the provisions of this Restated Certificate of Incorporation or the provisions of any such Certificate of Designation.


    4.        Dividends

    The holders of the Preferred Shares shall not be entitled to any annual or other dividend, except and to the extent that if cash dividends are declared and paid upon or set aside for the Common Stock, the holders of the Preferred Shares shall be entitled to share in such cash dividends pro rata in accordance with the number of shares of Common Stock into which such Preferred Shares are then convertible pursuant to Section 8 (e).


    5.        Liquidation


    (a)        Upon a Liquidation (as defined below), after payment or provision for payment of the debts and other liabilities of the Corporation (i) the holders of Series A Preferred Shares shall be entitled to receive, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each Series A Preferred Share an amount (the “Series A Preference Amount”) equal to the sum of (A) $1.00 per share (subject to equitable adjustment as a result of any stock dividend, stock split, combination, reverse split, reclassification or similar event after the date of issuance of the first Series A Preferred Share) and (B) all declared but unpaid dividends payable with respect to such share under Section 4 above and (ii) the holders of the Series B Preferred Shares shall be entitled to receive, out of the remaining assets of the Corporation available for distribution to its Stockholders, with respect to each Series B Preferred Share an amount (the “Series B Preference Amount”; the Series B Preference Amount and the Series A Preference Amount referred to herein as the “Preference Amount”, as applicable) equal to the sum of (A) $2.45 per share (the “Series B Purchase Price”) (subject to equitable adjustment as a result of any stock dividend, stock split, combination, reverse split, reclassification or similar event after the date of the issuance of the first Series B Preferred Share) and (B) all declared but unpaid dividends payable with respect to such share under Section 4 above, in the case of each (i) and (ii) above, before any distribution shall be made to the holders of the Common Stock, or any other class of capital stock of the Corporation ranking junior to the Preferred Shares upon a liquidation of the Corporation. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Preferred Shares the full Preference Amount to which they shall be entitled, the holders of Preferred Shares shall share pro rata and pari passu in any distribution of assets, each in accordance with its respective Preference Amounts.


    (b)        Upon any Liquidation, after payment or provision for payment in full of all Preference Amounts, the holders of Common Stock and the Preferred Shares (participating on an as converted basis as determined pursuant to Section 8 (e) hereof) shall be entitled to share pro rata in the distribution of the remaining assets of the Corporation.


    (c)        Notwithstanding any of the other provisions of this Certificate, upon any Liquidation, each holder of the Preferred Shares shall be entitled to receive the greater of (i) the amount such holder would have received under Sections 5(a) and (b) above and (ii) the amount such holder would have received if such holder had converted his or her shares of Preferred Stock into shares of Common Stock in accordance with Section 8.


    (d)        “Liquidation” means (i) any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, other than any dissolution, liquidation or winding up in connection with any reincorporation of the Corporation in another jurisdiction, (ii) any transaction or series of related transactions (including any consolidation or merger of the Corporation) immediately after the occurrence of which the holders of the capital stock of the Corporation entitled to vote for the election of directors immediately prior to such transaction do not hold a majority of the capital stock of the Corporation (or the surviving or resulting entity, as the case may be) entitled to vote for the election of directors, or (iii) any sale or other disposition (in a single transaction or a series of related transactions) by the Corporation of more than 50% of its assets (on a consolidated basis, if applicable).


    (e)        In the event of a Liquidation in which the Corporation does not distribute any proceeds to its stockholders (because, for example, the transaction is structured as a sale of capital stock or a merger), the stockholders of the Corporation shall be entitled to receive with respect to their shares of capital stock of the Corporation the same portion of the aggregate proceeds from such transaction that they would have been entitled to receive if the Corporation had first received such proceeds directly and then distributed them to the stockholders in accordance with the provisions of Sections 5(a) and (b) hereof.


    (f)        In the event of a Liquidation involving the sale of shares by stockholders of the Corporation or a consolidation or merger, the assets available for distribution to the stockholders from the Corporation shall be the aggregate consideration payable to all selling stockholders multiplied by a fraction, the numerator of which is the sum of the total number of shares of Common Stock outstanding and the total number of shares of Common Stock issuable with respect to Common Stock Equivalents (as defined below) immediately prior to such Liquidation and the denominator of which is the total number of shares of Common Stock sold (Preferred Shares being treated on an as converted basis) pursuant to such Liquidation.


    (g)        “Common Stock Equivalents” means all shares of Common Stock outstanding and all shares of Common Stock issuable (without regard to any present restrictions on such issuance) upon the conversion, exchange or exercise of all securities of the Corporation that are convertible into, or exchangeable or exercisable for, shares of Common Stock (including the Preferred Shares).


    (h)        If any or all of the proceeds payable to the stockholders of the Corporation in connection with a Liquidation are in a form other than cash or marketable securities, the fair market value of such consideration shall be determined in good faith by the Board of Directors of the Corporation.


    6.        Mandatory Redemption.

    (a)        At any time after December 13, 2006, the holders of a majority of the Series A Preferred Shares then outstanding may demand that the Corporation redeem (out of funds legally available for that purpose) all or any portion of each such holder’s Series A Preferred Shares then outstanding for a cash amount per share equal to the Series A Preference Amount. Such right may be exercised by delivery to the Corporation of a notice (a “Series A Mandatory Redemption Notice”) requesting such redemption. Any Series A Mandatory Redemption Notice given by the holders of the Series A Preferred Shares pursuant to this Section 6(a) shall also be a Series B Mandatory Redemption Notice given by a majority of the Series B holders for purposes of Section 6(b). The Corporation shall redeem such Series A Preferred Shares on a date (a “Series A Mandatory Redemption Date”) that is not more than 30 days after the date of delivery of a Series A Mandatory Redemption Notice.


    (b)        At any time after December 13, 2006, the holders of a majority of the Series B Preferred Shares then outstanding may demand that the Corporation redeem (out of funds legally available for that purpose) all or any portion of each such holder’s Series B Preferred Shares then outstanding for a cash amount per share equal to the Series B Preference Amount. Such right may be exercised by delivery to the Corporation of a notice (a “Series B Mandatory Redemption Notice”) requesting such redemption. Any Series B Mandatory Redemption Notice given by the holders of the Series B Preferred Shares pursuant to this Section 6(b) shall also be a Series A Mandatory Redemption Notice given by a majority of the Series A holders for purposes of Section 6(a). The Corporation shall redeem such Series B Preferred Shares on a date (a “Series B Mandatory Redemption Date”) that is not more than 30 days after the date of delivery of a Series B Mandatory Redemption Notice (the Series A Mandatory Redemption date and the Series B Mandatory Redemption Date are each referred to herein as a “Mandatory Redemption Date”).


    (c)        If the Corporation has insufficient funds legally available to redeem any Preferred Shares required to be redeemed on any Mandatory Redemption Date, those funds legally available for such purpose shall be used to redeem the number of shares of Preferred Shares which may be legally redeemed. The holders of the series of Preferred Stock requesting a mandatory redemption pursuant to Section 6 of this Article IV shall participate in any such partial redemption pro rata according to their respective Preference Amounts. At any time and from time to time thereafter when additional funds become legally available for the redemption of capital stock of the Corporation, such funds shall be used promptly to redeem the balance of Preferred Shares requested to be redeemed. (d) At any time on or after a Mandatory Redemption Date each holder of record of such series of Preferred Stock to be redeemed on such date shall be entitled to receive its Preference Amount upon actual delivery to the Corporation or its agents of the certificate or certificates representing the shares to be redeemed. On a Mandatory Redemption Date, all rights in respect of such Preferred Shares to be redeemed, except the right to receive the Preference Amount, shall cease and terminate (unless default shall be made by the Corporation in the payment of the Preference Amount, in which event such rights shall be exercisable until such default is cured), and such shares shall no longer be deemed to be outstanding, whether or not the certificate or certificates representing such shares have been received by the Corporation.


    7.        Voting Rights

        In addition to the rights provided by law, the holders of the Preferred Shares shall be entitled to vote on all matters as to which holders of Common Stock shall be entitled to vote, in the same manner and with the same effect as such holders of Common Stock, voting together with the holders of Common Stock as one class. Each Preferred Share shall entitle the holder thereof to such number of votes as shall equal the number of whole shares of Common Stock into which such Preferred Share is then convertible pursuant to Section 8(e).

    8.        Optional Conversion.

    (a)        Upon the terms set forth in this Section 8, each holder of Series A Preferred Shares shall have the right, at such holder’s option, at any time and from time to time, to convert any of such shares into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (i) the product of the Series A Preference Amount and the number of Series A Preferred Shares being converted, by (ii) the Series A Conversion Price (as defined below), as last adjusted and then in effect, by surrender of the certificates representing the shares of Series A Preferred Shares to be converted. The initial conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series A Preferred Shares (the “Series A Conversion Price”) shall be $1.00. The Series A Conversion Price shall be subject to adjustment from time to time in accordance with Section 8(e) below.


    (b)        Upon the terms set forth in this Section 8, each holder of Series B Preferred Shares shall have the right, at such holder’s option, at any time and from time to time, to convert any of such shares into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (i) the product of the Series B Preference Amount and the number of Series B Preferred Shares being converted, by (ii) the Series B Conversion Price (as defined below), as last adjusted and then in effect, by surrender of the certificates representing the shares of Series B Preferred Shares to be converted. The initial conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series B Preferred Shares (the “Series B Conversion Price”) shall be $0.093. The Series B Conversion Price shall be subject to adjustment from time to time in accordance with Section 8(e) below. The term “Conversion Price” as used herein shall mean the Series A Conversion Price or the Series B Conversion Price, as applicable.


    (c)        Any holder of Preferred Shares may exercise the conversion right pursuant to paragraph (a) or (b) above, as applicable, by delivering to the Corporation the certificate or certificates for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the holder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made (the “Conversion Date”). As promptly as practicable thereafter, the Corporation shall issue and deliver to or upon the written order of such holder, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in paragraph (d) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be a stockholder of record of such Common Stock on the applicable Conversion Date unless the transfer books of the Corporation are closed on that date, in which event such person shall be a stockholder of record of such Common Stock on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of the Preferred Shares surrendered for conversion, the Corporation shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of such Preferred Shares representing the unconverted portion of the certificate so surrendered.


    (d)        Upon conversion, the Corporation (unless otherwise requested by the holder of the Preferred Shares subject to conversion) will issue fractional shares of its Common Stock, as applicable, and shall not distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of any Preferred Shares shall be computed on the basis of the aggregate number of shares of Preferred Shares to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such shares of Preferred Stock are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest, and, in such case, the holders of fractional interests shall not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.


    (e)        The Conversion Price shall be subject to adjustment from time to time as follows:


    (i)        If the Corporation shall, at any time or from time to time after the date of original issuance of the first Series B Preferred Share (the “Series B Original Issuance Date”) but prior to May 2, 2002, issue any Equity Securities (as defined below) other than Excluded Stock (as defined below) without consideration or for a consideration per share less than the Series B Conversion Price in effect immediately prior to the issuance of such Equity Securities, then the Series B Conversion Price in effect immediately prior to each such issuance shall be lowered to an amount equal to the lowest amount of per share consideration that was received for such Equity Securities that were issued.


    (ii)        If the Corporation shall, at any time or from time to time after (i) with respect to the Series A Preferred Shares, the date of original issuance of the first Series A Preferred Share (the “Series A Original Issuance Date”, and together with the Series B Original Issue Date, with respect to each such series of Preferred Shares, its “Original Issuance Date”) or (ii) with respect to the Series B Preferred Shares, May 2, 2002, issue any Equity Securities (as defined below) other than Excluded Stock (as defined below) without consideration or for a consideration per share less than the Conversion Price for any series of Preferred Stock in effect immediately prior to the issuance of such Equity Securities, then the Conversion Price for any such series of Preferred Stock in effect immediately prior to each such issuance shall forthwith be lowered to a price equal to the quotient obtained by dividing:


    (A)        an amount equal to the sum of (x) the total number of shares of Common Stock outstanding (including any shares of Common Stock deemed to have been issued pursuant to subdivision (C) of clause (iii) below) immediately prior to such issuance, multiplied by the Conversion Price in effect immediately prior to such issuance, and (y) the consideration received by the Corporation upon such issuance; by


    (B)        the total number of shares of Common Stock outstanding (including any shares of Common Stock deemed to have been issued pursuant to subdivision (C) of clause (iii) below) immediately after the issuance of such Common Stock.


    (iii)        For the purposes of any adjustment of the Conversion Price pursuant to clause (i) and (ii) above, the following provisions shall be applicable:


    (A)        In the case of the issuance of Equity Securities for cash in a QIPO (as herein defined) or private placement, the consideration shall be deemed to be the amount of cash paid therefor after deducting therefrom any discounts, commissions or placement fees payable by the Corporation to any underwriter or placement agent in connection with the issuance and sale thereof.


    (B)        In the case of the issuance of Equity Securities for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors of the Corporation, irrespective of any accounting treatment.


    (C)        In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities:


(1)         the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subdivisions (A) and (B) above), if any, received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby;

(2)         the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities, options, or rights were issued and for a consideration equal to the consideration received by the Corporation for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by the Corporation upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subdivisions (A) and (B) above);

(3)         on any change in the number of shares or exercise price of Common Stock deliverable upon exercise of any such options or rights or conversions of or exchange for such securities, other than a change resulting from the antidilution provisions thereof, the Conversion Price shall forthwith be readjusted to such Conversion Price as would have obtained had the adjustment made upon the issuance of such options, rights or securities not converted prior to such change, or options or rights related to such securities not converted prior to such change, been made upon the basis of such change; and

(4)         on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to such Conversion Price as would have obtained had the adjustment made upon the issuance of such options, rights, securities or options or rights related to such securities been made upon the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities, or upon the exercise of the options or rights related to such securities and subsequent conversion or exchange thereof.

    (iv)                “Excluded Stock” means (1) 2,379,857 shares of Common Stock at any time issuable upon the exercise of options granted to directors, officers, consultants and employees of the Corporation issued pursuant to the Corporation’s 1999 Stock Option Plan, as amended (the “Option Plan”) or such other number of Equity Securities approved by unanimous written consent of the Board of Directors for inclusion in the Option Plan or for any other issuance in connection with executive compensation, (2) shares of Common Stock issuable upon conversion of Preferred Shares, (3) 213,000 shares of Common Stock reserved for issuance to the American Public Works Association, (4) shares of Common Stock issued in connection with any acquisition or debt financing by the Corporation, (5) up to 226,758 shares of Preferred Stock issuable to InSight Capital Partners III, L.P. or any of its controlled Affiliates or to BEn Tech Ventures Holdings, LLC pursuant to the conversion of those Convertible Unsecured Notes issued by the Corporation to such entities on April 17, 2001, and (6) Equity Securities issuable upon exercise of any warrants (the “Warrants”) issued pursuant to the Note and Warrant Purchase Agreement dated as of October 31, 2001, as amended, by and among the Company and such purchasers of Warrants. “Equity Securities” means all shares of capital stock of the Corporation, all securities convertible or exchangeable for shares of capital stock of the Corporation, and all options, warrants, and other rights to purchase or otherwise acquire from the Corporation shares of such capital stock.


    (v)                If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, subdivision or split-up, the Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of each share of the Preferred Shares shall be increased in proportion to such increase in outstanding shares.


    (vi)                If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of each share of the Preferred Shares shall be decreased in proportion to such decrease in outstanding shares.


    (vii)                Except as provided in Section 6, in the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from no par value to par value or from par value to no par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of the Preferred Shares shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of the Preferred Shares would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.


    (viii)                All calculations under this paragraph shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.


    (ix)                In any case in which the provisions of this paragraph (e) shall require that an adjustment shall become effective immediately after a record date of an event, the Corporation may defer until the occurrence of such event (i) issuing to the holder of any share of the Preferred Shares converted after such record date and before the occurrence of such event the shares of capital stock issuable upon such conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (ii) paying to such holder any amount in cash in lieu of a fractional share of capital stock pursuant to paragraph (d) above; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.


    (f)        Whenever the Conversion Price shall be adjusted as provided in paragraph (e), the Corporation shall make available for inspection during regular business hours, at its principal executive offices or at such other place as may be designated by the Corporation, a statement, signed by its chief executive officer, showing in detail the facts requiring such adjustment and the Conversion Price that shall be in effect after such adjustment. The Corporation shall also cause a copy of such statement to be sent by nationally recognized overnight carrier or by first class certified mail, return receipt requested and postage prepaid, to each holder of the Preferred Shares at such holder’s address appearing on the Corporation’s records. Where appropriate, such copy may be given in advance and may be included as part of any notice required to be mailed under the provisions of paragraph (g) below.


    (g)        If the Corporation shall propose to take any action of the types described in clauses (v), (vi) or (vii) of paragraph (e) above, the Corporation shall give notice to each holder of the Preferred Shares, in the manner set forth in paragraph (f) above, which notice shall specify the record date, if any, with respect to any such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of the Preferred Shares. In the case of any action which would require the fixing of a record date, such notice shall be given at least 20 days prior to the date so fixed, and in case of all other action, such notice shall be given at least 30 days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.


    (h)        The Corporation shall reserve, and at all times from and after the date of the Original Issuance Date keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, sufficient shares of Common Stock to provide for the conversion of all outstanding Preferred Shares.


    9.        Mandatory Conversion

    (a)        Upon the consummation of the first underwritten public offering pursuant to an effective registration statement filed on Form S-1 (or its successor form) under the Securities Act covering the offer and sale of not more than thirty percent (30%) of the Corporation’s then (after giving effect to such offering) outstanding shares of Common Stock and resulting in aggregate proceeds (net of underwriting discounts and commissions) to the Corporation of not less than twenty-five million dollars ($25,000,000) and a per share price of not less than $7.50 (a “QIPO”), each Preferred Share then outstanding shall, by virtue of and simultaneously with such occurrence, be automatically converted into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (i) the Preference Amount by (ii) the Conversion Price, as last adjusted pursuant to Section 8 and then in effect.


    (b)        As promptly as practicable after the date of the first of the conditions set forth in Section 9(a) to occur and the delivery to the Corporation of the certificate or certificates for the Preferred Shares which have been converted, duly endorsed or assigned in blank to the Corporation (if required by it), the Corporation shall issue and deliver to or upon the written order of each holder of Preferred Shares, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 8(d) above. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the date of such occurrence and on such date the Preferred Shares shall cease to be outstanding, whether or not the certificates representing such shares have been received by the Corporation.


ARTICLE V

        The number of directors of the Corporation shall be such as from time to time shall be fixed in the manner provided in the By-laws of the Corporation. The election of directors of the Corporation need not be by ballot unless the By-laws so require.

ARTICLE VI

        A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of incorporation of the Corporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

        The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative, or investigative (a “Proceeding”), by reason of the fact that he or she or his or her testator or intestate is or was a director of the Corporation or any subsidiary of the Corporation or any predecessor of the Corporation or any subsidiary of the Corporation, or serves or served at any other enterprise as director at the request of the Corporation of any predecessor to the Corporation, or acted at the direction of any such director against all expense, liability and loss actually and reasonably incurred or suffered by such Indemnitee in connection therewith.

        Any indemnification under this Article VI (unless ordered by a court) shall be made by the Corporation upon a determination that indemnification of the director is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporate Law, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment).

        Expenses (including attorneys’ fees) incurred by a director of the Corporation in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of an undertaking by or on behalf of the director to repay all amounts so advanced in the event that it shall ultimately be determined that such director is not entitled to be indemnified by the Corporation as authorized in this Article VI.

        The indemnification and advancement of expenses provided by this Article VI shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Corporation. All rights to indemnification under this Article VI shall be deemed to be a contract between the Corporation and each director of the Corporation or any of its subsidiaries who serves or served in such capacity at any time while this Article VI is in effect.

        The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director of the Corporation or any of its subsidiaries, or is or was serving at the request of the Corporation as a director of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her or on his or her behalf in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article VI.

        If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify or advance expenses to each person entitled to indemnification or advancement of expenses, as the case may be, as to all expense, liability and loss actually and reasonably incurred or suffered by such person and for which indemnification or advancement of expenses, as the case may be, is available to such person pursuant to this Article VI to the full extent permitted by any applicable portion of this Article VI that shall not have been invalidated and to the full extent permitted by applicable law.

        Neither any amendment nor repeal of this Article VI, nor the adoption of any provision of this Restated Certificate of Incorporation inconsistent with this Article VI, shall eliminate or reduce the effect of this Article VI in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VI would accrue or arise, prior to such amendment, repeal of adoption of an inconsistent provision.

        Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VII

        From time to time any of the provisions of this Restated Certificate of Incorporation may be altered, amended or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Restated Certificate of Incorporation are granted subject to the provisions of this Article VII.

ARTICLE VIII

        Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the Delaware General Corporation Law or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the Delaware General Corporation Law order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree on any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

EXHIBIT A

RESTATED

CERTIFICATE OF INCORPORATION

OF

IZOIC INCORPORATED

EX-99.B 92 b-563.htm BYLAWS OF CINERGY AMEND 5/2/2002 By-laws of Cinergy Corp.

BY-LAWS

OF

CINERGY CORP.















Adopted:
Amended:
Amended:
Amended:
Amended:
Amended:
Amended:
Amended:
Amended: 		October 24, 1994
January 25, 1996
December 18, 1997
April 22, 1998
October 15, 1998
April 21, 1999
April 27, 2000
December 14, 2000
May 2, 2002 
                                          TABLE OF CONTENTS


                                                                                                       Page

                                              ARTICLE I
                                      Offices and Headquarters

   Section 1.1  Offices.................................................................................  1
           1.2  Headquarters............................................................................  1

                                             ARTICLE II
                                            Stockholders

   Section 2.1  Annual Meeting..........................................................................  2
           2.2  Special Meetings........................................................................  4
           2.3  Notice of Meetings......................................................................  4
           2.4  Quorum..................................................................................  6
           2.5  Voting..................................................................................  6
           2.6  Presiding Officer and Secretary.........................................................  7
           2.7  Proxies.................................................................................  8
           2.8  List of Stockholders....................................................................  8

                                             ARTICLE III
                                              Directors

   Section 3.1  Number of Directors.....................................................................  9
           3.2  Election and Term of Directors..........................................................  9
           3.3  Vacancies and Newly Created Directorships................................................11
           3.4  Resignation............................................................................. 12
           3.5  Meetings................................................................................ 12
           3.6  Quorum and Voting....................................................................... 13
           3.7  Written Consent of Directors in Lieu of a Meeting....................................... 13
           3.8  Compensation............................................................................ 14
           3.9  Contracts and Transactions Involving Directors.......................................... 14

                                             ARTICLE IV
                                Committees of the Board of Directors

   Section 4.1  Appointment and Powers.................................................................. 15

                                              ARTICLE V
                                   Officers, Agents and Employees

   Section 5.1  Appointment and Term of Office.......................................................... 16
           5.2  The Chairman of the Board............................................................... 17
   Section 5.3  Vice-Chairman........................................................................... 18
           5.4  Chief Executive Officer................................................................. 18
           5.5  The President........................................................................... 18
           5.6  The Vice-Presidents..................................................................... 19
           5.7  The Secretary........................................................................... 19
           5.8  The Treasurer........................................................................... 20
           5.9  The Comptroller......................................................................... 21
           5.10 Resignation, Compensation and Bond...................................................... 21

                                             ARTICLE VI
                                           Indemnification

   Section 6.1  Indemnification of Directors, Officers, Employees and Agents............................ 22
           6.2  Advances for Litigation Expenses........................................................ 24
           6.3  Indemnification Nonexclusive............................................................ 25
           6.4  Indemnity Insurance..................................................................... 25
           6.5  Definitions............................................................................. 25


                                             ARTICLE VII
                                            Common Stock

   Section 7.1  Certificates............................................................................ 26
           7.2  Transfers of Stock...................................................................... 27
           7.3  Lost, Stolen or Destroyed Certificates.................................................. 27
           7.4  Stockholder Record Date................................................................. 27
           7.5  Beneficial Owners....................................................................... 29

                                            ARTICLE VIII
                                                Seal

   Section 8.1 Seal..................................................................................... 30

                                             ARTICLE IX
                                          Waiver of Notice

   Section 9.1  Waiver of Notice........................................................................ 30

                                              ARTICLE X
                                             Fiscal Year

   Section 10.1  Fiscal Year............................................................................ 31

                                             ARTICLE XI
                                       Contracts, Checks, etc.

   Section 11.1  Contracts, Checks, etc................................................................. 31

                                             ARTICLE XII
                                             Amendments

   Section 12.1  Amendments............................................................................. 31

                                            ARTICLE XIII
                                              Dividends

   Section 13.1  Dividends.............................................................................. 33

BY-LAWS

OF

CINERGY CORP. (THE “CORPORATION”)

ARTICLE I

Offices and Headquarters

        Section 1.1 Offices. The location of the Corporation’s principal office shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The Corporation may, in addition to the aforesaid principal office, establish and maintain an office or offices elsewhere in Delaware, Ohio or Indiana or in such other states and places as the Board of Directors may from time to time find necessary or desirable, at which office or offices the books, documents, and papers of the Corporation may be kept.

        Section 1.2 Headquarters. Subject to the sentence next following, the Corporation’s headquarters and executive offices, shall be located in the City of Cincinnati, County of Hamilton, State of Ohio. The location of the Corporation’s headquarters and executive offices may be changed from the City of Cincinnati, County of Hamilton, State of Ohio only by the affirmative vote of 80% of the full Board of Directors of the Corporation and not by the vote of any committee of the Board of Directors. As used in these By-Laws, the term “the full Board of Directors” shall mean all directors then in office together with any vacancies, however created. For the avoidance of doubt and as an example only, if the Board of Directors consists of 17 members and two vacancies exist, the affirmative vote of 14 of the 15 members of the Corporation’s Board of Directors then in office would be required to authorize a change in location of the Corporation’s headquarters and executive offices. The headquarters and executive offices of the Corporation’s

subsidiary, PSI Energy, Inc., shall be located in the City of Plainfield, Indiana and the headquarters and executive offices of the Corporation’s subsidiary, The Cincinnati Gas & Electric Company, shall be located in the City of Cincinnati, Ohio.

ARTICLE II

Stockholders

        Section 2.1 Annual Meeting. An annual meeting of stockholders of the Corporation for the election of directors and for the transaction of any other proper business shall be held at such time and date in each year as the Board of Directors may from time to time determine. The annual meeting in each year shall be held at such hour on said day and at such place within or without the State of Delaware as may be fixed by the Board of Directors, or if not so fixed, at the principal business office of the Corporation in the City of Cincinnati, County of Hamilton, State of Ohio.

        In lieu of the foregoing and at the sole discretion of the Board of Directors, an annual meeting of stockholders of the Corporation for the election of directors and for the transaction of any other proper business may be held by means of remote communication (e.g., via the Internet) to the fullest extent permitted by Section 211 of the Delaware General Corporation Law.

        No business may be transacted at an annual meeting of stockholders, other than business that is either: (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof); (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof); or (c) otherwise properly brought before the annual meeting by any stockholder of the Corporation: (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.1 and on the record date for the determination of stockholders entitled to vote at such annual meeting; and (ii) who complies with the notice procedures set forth in this Section 2.1.

        In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

        To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) calendar days nor more than one hundred twenty (120) calendar days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) calendar days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) calendar day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs.

        To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (ii) the name and record address of such stockholder; (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder; (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business; and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.

        Notwithstanding anything to the contrary in the By-Laws, no business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.1; provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.1 shall be deemed to preclude discussion by any stockholder of any such business. If the presiding officer of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the presiding officer shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

        Section 2.2 Special Meetings. A special meeting of the stockholders of the Corporation entitled to vote on any business to be considered at any such meeting may be called by the Chairman of the Board or the President or by a majority of the members of the Board of Directors then in office, acting with or without a meeting, or by the persons who hold 50% of all shares outstanding and entitled to vote thereat upon notice in writing, stating the time, place and purpose of the special meeting. The business transacted at the special meeting shall be confined to the purposes and objects stated in the call.

        Section 2.3 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, unless notice is waived in writing by all stockholders entitled to vote at the meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.

        In lieu of and/or in addition to the foregoing, notice of any meeting of the stockholders of the Corporation may be given via electronic transmission, to the fullest extent permitted by Section 232 of the Delaware General Corporation Law. To be valid, such electronic transmission notice must be in a form to which the stockholder has consented. Any stockholder can revoke consent to receive notice by a form of electronic transmission by written notice to the Corporation. Such consent shall be deemed revoked after two consecutive electronic transmissions by the Corporation are returned as undeliverable; provided, however, the inadvertent failure to treat any such undeliverable notices as a revocation shall not invalidate any meeting or other action. “Electronic transmission” shall mean any form of communication, not directly involving the physical transmission of paper, that creates a record and that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

        Unless otherwise provided by law, and except as to any stockholder duly waiving notice, the written notice of any meeting shall be given personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom notice is given, not less than 10 days nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at his or her address as it appears on the records of the Corporation. If by a form of electronic transmission, notice shall be deemed given when transmitted to the stockholder in accordance with the provisions set forth herein; provided, however, that if the electronic transmission notice is posted on an electronic network (e.g., a website or chatroom), notice shall be deemed given upon the later of (A) such posting and (B) the giving of separate notice of the posting to the stockholder.

        When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If, however, the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

        Section 2.4 Quorum. Except as otherwise provided by law or by the Certificate of Incorporation or by these By-Laws in respect of the vote required for a specified action, at any meeting of stockholders the holders of a majority of the outstanding stock entitled to vote thereat, either present, in person or represented by proxy, shall constitute a quorum for the transaction of any business, but the stockholders present, although less than a quorum, may adjourn the meeting to another time or place and, except as provided in the last paragraph of Section 2.3 of these By-Laws, notice need not be given of the adjourned meeting.

        Section 2.5 Voting. Whenever directors are to be elected at a meeting, they shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote thereon. Whenever any corporate action, other than the election of directors, is to be taken by vote of stockholders at a meeting, it shall, except as otherwise required by law or by the Certificate of Incorporation or by these By-Laws, be authorized by the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote thereon.

        Except as otherwise provided by law, or by the Certificate of Incorporation, each holder of record of stock of the Corporation entitled to vote on any matter at any meeting of stockholders shall be entitled to one (1) vote for each share of such stock standing in the name of such holder on the stock ledger of the Corporation on the record date for the determination of the stockholders entitled to vote at the meeting.

        Upon the demand of any stockholder entitled to vote, the vote for directors or the vote on any other matter at a meeting shall be by written ballot, but otherwise the method of voting and the manner in which votes are counted shall be discretionary with the presiding officer at the meeting.

        Section 2.6 Presiding Officer and Secretary. At every meeting of stockholders, and where the offices of the Chairman of the Board and the Chief Executive Officer are held by different individuals, the Chief Executive Officer, or, in his or her absence, the Chairman of the Board, or, in his or her absence, the appointee of the meeting, shall preside. The Secretary, or, in his or her absence, an Assistant Secretary, or if none be present, the appointee of the presiding officer of the meeting, shall act as secretary of the meeting. The presiding officer shall have the authority to make all rules regarding the conduct of any meeting including, but not limited to, setting the agenda and/or determining the proper order of business, making arrangements with respect to matters of safety and security, determining reserved seating arrangements for certain stockholders and/or others in attendance, establishing guidelines or procedures for participation by stockholders and/or others in attendance, and making any determination with respect to possible adjournment and/or postponement.

        Section 2.7 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Every proxy shall be signed by the stockholder or by his duly authorized attorney. A stockholder may authorize another person or persons to act for him as proxy by transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission if such transmission is submitted with information from which it may be determined that the transmission was authorized by the stockholder.

        Section 2.8 List of Stockholders. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

        If any meeting of the Corporation’s stockholders is to be held solely by means of remote communications (e.g., the Internet), the list must be made available to the stockholders during the entire meeting on a reasonably accessible electronic network. The notice of meeting must provide information by which the stockholder can gain access to the electronic list.

        The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

ARTICLE III

Directors

        Section 3.1 Number of Directors. The Board of Directors shall consist of a number of directors not less than seven (7) and not more than twenty-three (23) as determined by a vote of not less than 75% of the full Board of Directors (“Supermajority Vote”). Any such determination made by the Board of Directors shall continue in effect unless and until changed by the Board of Directors by Supermajority Vote, but no such change shall affect the term of any director then in office.

        Section 3.2 Election and Term of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Except as may be required by applicable law, no person who is, at the time of nomination, 70 years of age or older shall be eligible for election as a director. Nominations of persons as candidates for election as directors of the Corporation may be made at a meeting of stockholders (i) by or at the direction of the Board of Directors acting by Supermajority Vote (or by a unanimous vote of the remaining directors if a Supermajority Vote is not obtainable because the number of vacancies on the Board of Directors); or (ii) by any stockholder of the Corporation entitled to vote for the election of directors at such meeting who complies with the notice procedures set forth herein. Any nomination other than those governed by clause (i) of the preceding sentence shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal office of the Corporation in the State of Ohio not less than 50 days prior to the meeting; provided, however, that if less than 60 days’ notice or prior public disclosure of the date of the meeting is given to stockholders or made public, to be timely notice by a stockholder must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such stockholder’s notice to the Secretary shall set forth: (a) as to each person whom the stockholder proposes to nominate for election as director: (i) the name, age, business address, and residence address of such person; (ii) the principal occupation or employment of such person; (iii) the class and number of any shares of capital stock of the Corporation that are beneficially owned by such person; and (iv) any other information relating to such person that is required to be disclosed in solicitations for proxies for the election of directors pursuant to any then existing rules or regulations promulgated under the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder giving notice: (i) the name and record address of such stockholder; (ii) the class and number of shares of capital stock of the Corporation that are beneficially owned by such stockholder, and (iii) the period of time such stockholder has held such shares. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director. No person otherwise eligible for election as a director shall be eligible for election as a director unless nominated as set forth herein.

        Commencing on October 24, 1994 (the “Classification Date”) of the Board of Directors of the Corporation, the terms of office of the Board of Directors shall be divided into three (3) classes, Class I, Class II and Class III, as determined by the Board of Directors. All classes shall be as nearly equal in number as possible.

        The terms of office of directors classified shall be as follows: (1) that of Class I shall expire at the annual meeting of stockholders that occurs within the first year after the Classification Date, (2) that of Class II shall expire at the annual meeting of stockholders that occurs within the second year after the Classification Date, and (3) that of Class III shall expire at the annual meeting of stockholders that occurs within the third year after the Classification Date. At each annual meeting of stockholders after the Classification Date, the successors to directors whose terms shall expire shall be elected to serve from the time of election and qualification until the third annual meeting following election and until a successor shall have been elected and qualified or until his earlier resignation, removal from office or death. As being under 70 years of age constitutes a continuing qualification for service on the Board of Directors, any director who reaches the age of 70 years while in office shall, except as limited by applicable law, promptly resign from the Corporation’s Board of Directors.

        Section 3.3 Vacancies and Newly Created Directorships. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by election at a meeting of stockholders. Except as otherwise provided by law, and notwithstanding the provision of Section 3.6, the remaining directors, whether or not constituting a majority of the whole authorized number of directors, may, by not less than a Supermajority Vote (or by a unanimous vote of the remaining directors if a Supermajority Vote is not obtainable because of the number of vacancies on the Board of Directors) fill any vacancy in the Board, however arising, for the unexpired term thereof. Any person elected to fill a vacancy in the Board shall hold office until the expiration of the term of office for the class to which he or she is elected and until a successor is elected and qualified or until his or her earlier resignation, removal from office or death.

        Section 3.4 Resignation. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof, and the acceptance of such resignation, unless required by the terms thereof, shall not be necessary to make such resignation effective.

        Section 3.5 Meetings. Meetings of the Board of Directors, regular or special, may be held at any place within or without the State of Delaware. Members of the Board of Directors, or of any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or other 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. An annual meeting of the Board of Directors shall be held within 10 days after each annual election of directors. If such election occurs at an annual meeting of stockholders, the annual meeting of the Board of Directors shall be held at such time and place as shall be specified by the Board, and no notice thereof need be given. The Board of Directors may fix times and places for regular meetings of the Board and no notice of such meetings need be given. A special meeting of the Board of Directors shall be held whenever called by the Chairman of the Board, the Chief Executive Officer, the President or by the written request of a majority of the members of the Board of Directors, at such time and place as shall be specified in the notice or waiver thereof. Notice of each special meeting shall be given by the Secretary or by a person calling the meeting to each director in writing, through the mail, or personally served or by telephone, telecopy, telegram, cablegram or radiogram, or via any form of electronic transmission, in each such case within such time frame as the person calling the meeting shall deem appropriate, and such notice shall be deemed to be given at the time when the same shall be transmitted.

        Section 3.6 Quorum and Voting. A majority of the full Board of Directors shall constitute a quorum for the transaction of business, but, if there be less than a quorum at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time, and no further notice thereof need be given other than announcement at the meeting which shall be so adjourned. Except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws (including, without limitation, where any Supermajority Vote or any other vote in excess of a majority is required), the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

        Section 3.7 Written Consent of Directors in Lieu of a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee.

        Section 3.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its subsidiaries) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting.

        Section 3.9 Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

ARTICLE IV

Committees of the Board of Directors

        Section 4.1 Appointment and Powers. The Board of Directors may, by resolution adopted by a majority of the Board, designate from time to time (subject to Article V hereof) no less than three (3) and no more than six (6) of their number to constitute an Executive Committee, and may delegate to such committee power to authorize the seal of the Corporation to be affixed to all papers which may require it and to exercise in the intervals between the meetings of the Board of Directors the powers of the Board in the management of the business and affairs of the Corporation to the fullest extent permitted by Section 141(c)(2) of the Delaware General Corporation Law; provided, however, that the Executive Committee shall not have the power or authority to take any action for which a Supermajority Vote or other vote in excess of a majority of the Board of Directors is required. Each member of the Executive Committee shall continue to be a member thereof only during the pleasure of a majority of the full Board of Directors.

        The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members.

        All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action.

        Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine.

        The Board of Directors may also appoint a Finance Committee, a Corporate Governance Committee, an Audit Committee, a Public Policy Committee and a Compensation Committee and may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers (subject to the provisions of these By-Laws); provided, however, that any compensation or benefits to be paid to an executive officer who is also a director must be approved by the Board of Directors. The members of such committees shall be entitled to receive such fees as the Board may determine.

        The Board of Directors shall not amend, modify, vary or waive any of the terms of the Amended and Restated Agreement and Plan of Reorganization by and among The Cincinnati Gas & Electric Company, PSI Resources, Inc., PSI Energy, Inc., the Corporation, Cinergy Corp., an Ohio corporation, and Cinergy Sub, Inc. dated as of December 11, 1992, as amended and restated as of July 2, 1993 and as of September 10, 1993 and as further amended as of June 20, 1994, as of July 26, 1994 and as of September 30, 1994 (the “Merger Agreement”) other than by a Supermajority Vote of the Board of Directors.

ARTICLE V

Officers, Agents and Employees

        Section 5.1 Appointment and Term of Office. The executive officers of the Corporation, shall consist of a Chairman of the Board, a Vice-Chairman, a Chief Executive Officer, a President, one or more Vice-Presidents, a Secretary, a Treasurer and a Comptroller, all of whom shall be elected by the Board of Directors by a Supermajority Vote, and shall hold office for one (1) year and until their successors are chosen and qualified. Any number of such offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity. Any vacancy occurring in the office of the Chairman, Chief Executive Officer or President shall be filed by Supermajority Vote of the Board of Directors. The Chairman, Chief Executive Officer or President shall be subject to removal without cause only by Supermajority Vote of the Board of Directors at a special meeting of the Board of Directors called for that purpose.

        The Board of Directors may appoint, and may delegate power to appoint, such other non-executive officers, agents and employees as it may deem necessary or proper, who shall hold their offices or positions for such terms, have such authority and perform such duties as may from time to time be determined by or pursuant to authorization of the Board of Directors.

        Section 5.2 The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of stockholders and shall, subject to the Board’s direction and control, be the Board’s representative and medium of communication, and shall perform such other duties as may from time-to-time be assigned to the Chairman of the Board by Supermajority Vote of the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to the President, as may be requested from time-to-time by the President. The Chairman shall be a member of the Executive Committee.

        Section 5.3 Vice-Chairman. The Vice-Chairman of the Board shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of stockholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice-Chairman shall perform such other duties as may from time-to-time be assigned to him or her by Supermajority Vote of the Board of Directors. The Vice-Chairman shall be a member of the Executive Committee and may be a member of such other committees of the Board as it shall from time to time deem appropriate.

        Section 5.4 Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the stockholders, and, in the absence or inability to act of the Chairman of the Board and the Vice-Chairman, meetings of the Board of Directors, and shall submit a report of the operations of the Corporation for the fiscal year to the stockholders at their annual meeting and from time-to-time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Where the offices of President and Chief Executive Officer are held by different individuals, the President will report directly to the Chief Executive Officer.

        Section 5.5 The President. The President shall be the chief operating officer of the Corporation. The President shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. All corporate officers and functions except those reporting to the Chairman of the Board or the Chief Executive Officer shall report directly to the President.

        Section 5.6 The Vice-Presidents. The Vice-Presidents shall perform such duties as the Board of Directors shall, from time to time, require. In the absence or incapacity of the President, the Vice President designated by the President or Board of Directors or Executive Committee shall exercise the powers and duties of the President.

        Section 5.7 The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and any other committee of the Board of Directors and of the stockholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required.

        The Secretary shall keep in safe custody the seal of the Corporation and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same.

        The Secretary shall see that proper notice is given of all the meetings of the stockholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, the Chairman, the Chief Executive Officer, or the President.

        Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the President, the Secretary, or the Board of Directors.

        Section 5.8 The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, the Chairman, the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman, and/or directors at all regular meetings of the Board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation.

        The Treasurer shall also perform such other duties as the Board of Directors, the Chairman, the Chief Executive Officer, or the President may from time to time require.

        If required by the Board of Directors the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation.

        Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the President, the Treasurer, or the Board of Directors.

        Section 5.9 The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, the Chairman, the Chief Executive Officer, the President, or a Vice President.

        Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the President, the Comptroller, or the Board of Directors.

        Section 5.10 Resignation, Compensation and Bond. Any resignation from office by any officer of the Corporation also shall be deemed, to the extent applicable, to be a resignation from any similar office held by such resigning officer at any affiliate or subsidiary of the Corporation, unless otherwise expressly provided for within the resigning officer’s letter of resignation. The compensation of the officers of the Corporation shall be fixed by the Compensation Committee of the Board of Directors or, in lieu of the Compensation Committee, by the Board of Directors, but this power may be delegated to any officer in respect of other officers under his or her control. The Corporation may secure the fidelity of any or all of its officers, agents or employees by bond or otherwise.

ARTICLE VI

Indemnification

  Section 6.1 Indemnification of Directors, Officers, Employees and Agents. (A) Any person who was or is a party or is threatened to be made a party to any threatened,

pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than any action or suit by or in the right of the Corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (specifically including employee benefit plans), shall be indemnified by the Corporation, if, as and to the extent authorized by applicable law, against expenses (specifically including attorney’s fees), judgments, fines (specifically including any excise taxes assessed on a person with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense or settlement of such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he or she reasonably believed to be in and not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.

    (B)        The Corporation shall, to the extent not prohibited by applicable law, indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, non-profit or for-profit, partnership, joint venture, trust or other enterprise (specifically including employee benefit plans), against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Corporation; provided that, no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

    (C)        To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the paragraphs (A) or (B) of this Section, or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses, specifically including attorneys’ fees, actually and reasonably incurred by him or her in connection therewith.

    (D)        Any indemnification under Paragraphs (A) and (B) of this Section, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in such Paragraphs (A) and (B). Such determination shall be made as follows: (1) by a majority vote of the Board of Directors, even if less than a quorum, consisting of directors who were not parties to such action, suit, or proceeding; (2) by a committee of such directors designated by a majority vote of such directors, even if less than a quorum; (3) if the quorum described in (D)(1) of this Section is not obtainable or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (4) by the stockholders.

        Section 6.2 Advances for Litigation Expenses. Expenses (including attorneys’ fees) incurred by a director, officer, employee, or agent of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding, shall be paid by the Corporation as they are incurred in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director, officer, employee, or agent: (1) to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VI; and (2) to cooperate reasonably with the Corporation concerning the action, suit or proceeding.

        Section 6.3 Indemnification Nonexclusive. The indemnification provided by this Article shall not be exclusive of and shall be in addition to any other rights granted to those seeking indemnification under the Certificate of Incorporation, these By-Laws, any agreement, any vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

        Section 6.4 Indemnity Insurance. The Corporation may purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under this Article. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest.

        Section 6.5 Definitions. For purposes of this Article: (1) a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall conclusively be deemed to have acted in a manner “not opposed to the best interests of the Corporation”; (2) a person shall be deemed to have acted in “good faith” and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise; (3) the term “another enterprise” as used in this Article VI shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent; and (4) references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, and agents.

ARTICLE VII

Common Stock

        Section 7.1 Certificates. Certificates for stock of the Corporation shall be in such form as shall be approved by the Board of Directors and shall be signed in the name of the Corporation by the Chairman or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. Such certificates may be sealed with the seal of the Corporation or a facsimile thereof. Any of or all the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

        Section 7.2 Transfers of Stock. Transfers of stock shall be made only upon the books of the Corporation by the holder, in person or by duly authorized attorney, and on the surrender of the certificate or certificates for such stock properly endorsed. The Board of Directors shall have the power to make all such rules and regulations, not inconsistent with the Certificate of Incorporation and these By-Laws and the law, as the Board of Directors may deem appropriate concerning the issue, transfer and registration of certificates for stock of the Corporation. The Board of Directors or the Finance Committee may appoint one (1) or more transfer agents or registrars of transfers, or both, and may require all stock certificates to bear the signature of either or both.

        Section 7.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new stock certificate in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate or his or her legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate. The Board of Directors may require such owner to satisfy other reasonable requirements.

        Section 7.4 Stockholder Record Date. (A) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting.

        If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

        A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; providing, however, that the Board of Directors may fix a new record date for the adjourned meeting.

    (B)        In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolutions taking such prior action.

    (C)        In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

        Section 7.5 Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.

ARTICLE VIII

Seal

        Section 8.1 Seal. The seal of the Corporation shall be circular in form and shall bear, in addition to any other emblem or device approved by the Board of Directors, the name of the Corporation, the year of its incorporation and the words “Corporate Seal” and “Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

ARTICLE IX

Waiver of Notice

        Section 9.1 Waiver of Notice. Whenever notice is required to be given by statute, or under any provision of the Certificate of Incorporation or these By-Laws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. In the case of a stockholder, such waiver of notice may be signed by such stockholder’s attorney or proxy duly appointed in writing. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission.

ARTICLE X

Fiscal Year

        Section 10.1 Fiscal Year. The Fiscal Year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December each year.

ARTICLE XI

Contracts, Checks, etc.

        Section 11.1 Contracts, Checks, etc. The Board of Directors or the Finance Committee may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute contracts, checks, drafts, and orders for the payment of money in its behalf and, in the discretion of the Board of Directors or the Finance Committee, such officers may be so authorized to sign such contracts or checks singly without the necessity of counter-signature.

ARTICLE XII

Amendments

        Section 12.1 Amendments. Except as set forth below, these By-Laws may be amended or repealed by the Board of Directors or by the affirmative vote of the holders of a majority of the issued and outstanding common stock of the Corporation, or by the unanimous written consent of the holders of the issued and outstanding common stock of the Corporation.

        Notwithstanding the foregoing paragraph, the affirmative vote of the holders of at least 80% of the issued and outstanding shares of common stock of the Corporation shall be required to amend, alter or repeal, or adopt any provision inconsistent with, the requirements of Section 2.2, Section 3.1, Section 3.2, Section 3.3 or this paragraph of Section 12.1 of these By-Laws, in addition to any requirements of law and any provisions of the Certificate of Incorporation, any By-law, or any resolution of the Board of Directors adopted pursuant to the Certificate of Incorporation (and notwithstanding that a lesser percentage may be specified by law, the Certificate of Incorporation, these By-Laws, such resolution, or otherwise).

        Notwithstanding any of the foregoing, the affirmative vote of a majority of the holders of the issued and outstanding common stock of the Corporation shall be required to amend, alter or repeal, or adopt any provision inconsistent with (i) any provision of these By-Laws requiring a Supermajority Vote of the Board of Directors (including this provision of Section 12.1) or (ii) the responsibilities of the Chief Executive Officer or President as set forth in Section 5.4 or Section 5.5, and the Board of Directors shall not recommend any such amendment to such provisions to the stockholders unless the proposed amendment is approved by the Board of Directors acting by Supermajority Vote.

ARTICLE XIII

Dividends

        Section 13.1 Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

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