Exhibit B-100
Amended and Restated Operating Agreement
of
Apache Canyon Gas, L.L.C.
This Amended and Restated Operating Agreement of Apache
Canyon Gas, L.L.C. (the "Agreement") is entered into and made
effective this 17th day of March, 1999, by and between Apache
Canyon Gas, L.L.C. (the "Company") and KLT Gas Inc. ("KLT"), the
sole member of the Company.
Whereas, KLT and ▇▇▇▇▇▇ Oil Properties, Inc. ("SOP"), as
members of the Company, entered into that certain Operating
Agreement of Apache Canyon Gas, L.L.C., effective December
19, 1995, as amended by that First Amendment to Operating
Agreement of Apache Canyon Gas, L.L.C., dated as of December
31, 1996, (as amended, the "Operating Agreement"), and
Whereas, effective as of the date hereof, KLT has
acquired all of SOP's Interest and Ownership Interest (as
defined in the Operating Agreement) in the Company, and is
now the sole member of the Company, and
Whereas, KLT and the Company wish to amend and restate
the Operating Agreement to reflect this reduction in members.
The Company and KLT agree as follows:
Article I.
Formation Of Company
1.1 Name
The name of the limited liability company (the
"Company") is Apache Canyon Gas, L.L.C.
1.2. Formation
The Company was formed on December 19, 1995, pursuant to
the Delaware Limited Liability Company Act (the "Act") when
its Certificate of Formation ("Certificate") was filed with
the office of the Secretary of State.
1.3. Principal Place of Business
The Company's principal place of business is ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.4. Registered Office and Registered Agent
The Company's registered agent in Delaware is
Corporation Service Company. The Company's registered office
in Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The
registered office and/or registered agent may be changed by
the Member as provided in the Act.
1.5. Defects as to Formalities
A failure to observe any formalities or requirements of
this Agreement, the Certificate or the Act shall not be
grounds for imposing personal liability on the Member for the
liabilities of the Company.
Article 2.
Business of Company
The business of the Company shall be to carry on any
lawful business or activity which may be conducted by a
limited liability company organized under the Act.
Article 3.
Member, Contribution, and Management
3.1. Name and Address of Member
The Member's name and address is KLT Gas Inc., ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
3.2. Contribution
The Member has heretofore made contributions to the
Company as set forth in the Company's books and records. No
interest shall accrue on any contribution and the Member
shall not have the right to withdraw or be repaid any
contribution except as provided in this Agreement. The
Member may, at the Member's sole discretion, make additional
contributions, but, notwithstanding anything to the contrary
in this Agreement, the Member shall have no obligation to do
so.
3.3. Management
The Company shall be managed by the Member, who may
unilaterally act on behalf of the Company with or without a
meeting and regardless of any financial interest the Member
may have in such action. All decisions concerning the
business affairs of the Company shall be made by the Member,
and the affirmative consent (regardless of whether it is
written, oral, or by course of conduct) of the Member shall
constitute the consent of all of the members of the Company
for purposes of the Act, the Articles and this Agreement.
The failure of the Company to observe any formalities or
requirements relating to the exercise of its powers or the
management of its business or affairs under this Agreement or
the Act shall not be grounds for imparting personal
liability on the Member for liabilities of the Company.
3.4. Management Rights
Subject to the Act, the Certificate and this Agreement,
the Member shall have authority to do every act consistent
with the law. Actions by the Member shall bind the Company
regardless of whether such action is for the purpose of
apparently carrying on the usual way the business or affairs
of the Company, including the exercise of the authority
indicated in this Section. No person shall have any duty or
obligation to inquire into the authority or power of the
Member regarding the Member's actions on behalf of the
Company.
3.5. Member Liability and Indemnification
Except as otherwise provided by law, the Certificate or
this Agreement, a member shall have no personal liability,
merely as a member, for any liabilities or losses of the
Company beyond the member's contributions. The Company shall
indemnify the Member for all costs, losses, liabilities, and
damages paid or accrued by such Member in connection with
the business of the Company, or because the Member is a
member, and shall advance expenses incurred by the Member in
connection with the business of the Company, or in any legal
action arising from action taken by the Member in connection
with the business of the Company, all to the fullest extent
provided or allowed by the laws of Delaware.
3.6. Compensation
The Member shall be reimbursed for all reasonable
expenses incurred on behalf of the Company and shall be
entitled to reasonable compensation for time spent managing
the Company, in an amount to be determined from time to time
by the Member.
3.7. Duty of Loyalty
The Member may have and engage in business and
investment interests and activities other than the Company,
and need not account to the Company for profits or
remuneration gained thereby. The Member may enter into
transactions considered to be competitive with or similar to
those of the Company, or a business opportunity beneficial
to the Company, and the Company waives any right or claim to
participate therein. The Member has no duty to account to
the Company or to hold as trustee for the Company any
property, profit or benefit derived by the Member in the
formation, conduct or winding-up of the Company or from the
use or appropriation of any Company property.
3.8. Other Self Interest
The Member does not violate a duty or obligation to the
Company merely because the Member's conduct furthers the
Member's own interests. The Member may lend money to and
transact other business with the Company, and the rights and
obligations of the Member in such transactions shall be the
same as those of a person who is not a member. No
transactions with the Company shall be voidable solely
because the Member has a direct or indirect interest in the
transaction.
3.10. Books and Accounts
The Member shall cause the books and accounts of the
Company to be kept in accordance with generally accepted
accounting principles. The books and supporting records of
the Company will be maintained at the Company's principal
office. All the Company's funds shall be deposited in its
name in an account or accounts at such banks as the Member
may determine from time to time.
Article 4.
Taxes
4.1. Elections
The Member may make any tax elections for the Company
allowed under the Internal Revenue Code of 1986 as amended
from time to time ("Code") or the tax laws of any state or
other jurisdiction having taxing jurisdiction over the
Company. It is the intent of the Member and the Company that
the Company is to be disregarded as an entity separate from
the Member for purposes of the Code. KLT is designated the
tax matters member as defined in Section 6231(a)(7) of the
Code, and is authorized to take such actions and to execute
and file all statements and forms on behalf of the Company
which may be required by regulations issued by the Internal
Revenue Service to indicate such designation.
4.2. Taxes of Taxing Jurisdictions
To the extent that the laws of any taxing jurisdiction
require, the Member will prepare and the Member will execute
and submit an agreement indicating that the Member will make
timely income tax payments to the taxing jurisdiction and
that the Member accepts personal jurisdiction of the taxing
jurisdiction with regard to the collection of income taxes
attributable to the Member's income, and interest, and
penalties assessed on such income, if such agreement is
required by the taxing jurisdiction. If the Member fails to
provide such agreement, the Company may withhold and pay over
to such taxing jurisdiction the amount of tax, penalty and
interest determined under the laws of the taxing jurisdiction
with respect to such income. Any such payments with respect
to the income of the Member shall be treated as a
distribution for purposes of Article 5.
Article 5.
Distributions
The Company may make distributions at such times and in
such amounts as determined by the Member. No distribution
shall be declared and paid unless, after the distribution is
made, the assets of the Company are in excess of all
liabilities of the Company.
Article 6.
Disposition Of Membership Interest and
Admission Of Assignees And Additional Members
6.1. Disposition
The Member's membership interest is transferable either
voluntarily or by operation of law. The Member may dispose
of all or a portion of the Member's membership interest. Upon
the disposition of a portion of the Member's membership
interest, the transferee shall be admitted as a substitute
member as to the transferred interest upon the completion of
the transfer without further action. Upon the transfer of the
Member's entire membership interest (other than a temporary
transfer or transfer as a pledge or security interest), the
Member shall cease to be a Member of the Company and shall
have no further rights or obligations under this Agreement,
except that the Member shall have the right to such
information as may be necessary for the computation of the
Member's tax liability.
6.2. Admission of Additional Members
The Member may, in the Member's sole discretion, admit
additional members and determine the capital contributions
of such additional members.
Article 7.
Dissolution and Winding Up
7.1. Dissolution
The Company shall be dissolved and its affairs wound up
upon the occurrence of any of the following:
(1) upon the will of the Member,
(2) the resignation, expulsion, bankruptcy or dissolution of
the Member,
(3) at any time the Company has no members,
(4) December 31, 2025, or
(5) the entry of a decree of judicial dissolution under the
Act.
7.2. Effect of Dissolution
Upon dissolution, the Company shall cease carrying on as
distinguished from the winding up of the Company business,
but the Company is not terminated, but continues until the
winding up of the affairs of the Company is completed and
the certificate of dissolution has been issued by the
Secretary of State.
7.3. Distribution of Assets on Dissolution
Upon the winding up of the Company, the Company's assets
shall be distributed as follows:
(a) to creditors, including the Member if it is a
creditor, to the extent permitted by law, in satisfaction of
Company liabilities; and
(b) to the Member.
Such distributions shall be in cash, property other than
cash, or partly in both, as determined by the Member.
7.4. Winding Up and Articles of Dissolution
The winding up of the Company shall be completed when
all debts, liabilities, and obligations of the limited
liability company have been paid and discharged or reasonably
adequate provision therefor has been made, and all of the
remaining property and assets of the limited liability
company have been distributed to the Member. Upon the
completion of winding up of the Company, the Member or other
person designated by the Member shall deliver articles of
dissolution to the Secretary of State for filing. The
articles of dissolution shall set forth the information
required by the Act.
Article 8.
Miscellaneous Provisions
8.1. Governing Law
This Agreement shall be construed and enforced in
accordance with the laws of Delaware.
8.2. Amendments
This Agreement may be amended or modified from time to
time only by a written instrument adopted by the Member and
the Company and executed by the Member and the Company.
8.3. Entire Agreement
This Agreement represents the entire agreement between
the Member and the Company.
8.4. Rights of Creditors and Third Parties Under
Operating Agreement
This Agreement is entered into between the Company and
the Member for the exclusive benefit of the Company, its
Member, and their successors and assignees. This Agreement is
expressly not intended for the benefit of any creditor of
the Company or any other person. Except and only to the
extent provided by applicable statute, no such creditor or
third party shall have any rights under this Agreement or any
agreement between the Company and the Member with respect to
any capital contribution or otherwise.
8.5 Preservation of Prior Indemnification
Notwithstanding anything in this Agreement to the
contrary, Section 6.2 of the Operating Agreement shall remain
in full force and effect, in accordance with its terms,
respecting the Operations Manager, each member of the
Management Committee and the Tax Matters Member (as those
terms are defined in the Operating Agreement) of the Company.
In witness whereof, this Agreement is signed as of the date
first above written.
Apache Canyon Gas, L.L.C., by KLT Gas Inc., as sole
member of
KLT Gas Inc., its sole member Apache Canyon Gas, L.L.C.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
