EXHIBIT 10.34
OPERATING AGREEMENT
OF
XXXXX NATIONAL LLC
This Operating Agreement is made as of September 5, 2001, by the
undersigned member pursuant to and in accordance with the Delaware Limited
Liability Company Act (the "Act").
1. Formation; Name. The limited liability company (the "Company") was
formed on September 5, 2001 upon the filing of the certificate of limited
liability company in the office of the Secretary of State of the State of
Delaware in accordance with the Act. The name of the Company is "Xxxxx National
LLC" and all business shall be conducted under that name.
2. Purpose. The purpose for which the Company has been formed is to
engage in any lawful act or activity which the member may from time to time
determine.
3. Registered Office. The registered office of the Company in the State
of Delaware is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000.
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 are
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000.
5. Admission. Upon execution and delivery of this Operating Agreement,
XXXXX PETROLEUM COMPANY, A MISSISSIPPI CORPORATION, is admitted as the sole
member of the Company. The member shall not be required to make any capital
contribution to the Company but may make capital contributions from time to
time.
6. Resignation of Member. The member may resign from the Company at any
time.
7. Assignment of Interest. The member may assign all or any portion of
its membership interest in the Company to any person ("Assignee"). Each Assignee
shall become a member of the Company upon the approval of the member.
8. Title to Property. Title to any property (whether real, personal or
mixed) owned by or leased to the Company shall be held in the name of the
Company, or in the name of any nominee the member may in its discretion
designate.
9. Members. There shall be a managing member ("Managing Member") of the
Company, which Managing Member shall have the powers and duties equivalent to
the duties of a corporate board of directors.
10. Profits and Losses. All profits and losses of the Company shall be
allocated to the member. The member shall not be liable for any debts or losses
of the Company beyond the aggregate amount of its capital contribution, except
as otherwise required by law.
11. Distributions. At such times as determined by the member taking
into account, among other things, the member's obligation to the extent same
exists, to make distributions to its members under its operating agreement, the
member shall cause the Company to distribute to the member any cash or property
held by it which is neither reasonably necessary for the operation of the
Company nor in violation of the Act. The member shall be liable to the Company
for distributions made pursuant to this Section 11 only to the extent now or
hereafter provided by the Act.
12. Dissolution. The Company shall dissolve, and its affairs shall be
wound up, upon the occurrence of an event of dissolution of the Company under
the Act.
13. Amendment. This Operating Agreement may be amended only in writing.
14. Application of Delaware Law. This Operating Agreement, and the
application of interpretation hereof, shall be governed exclusively by its terms
and by the laws of the State of Delaware, and specifically the Act.
15. Taxable Year. The taxable year of the Company shall be the calendar
year.
16. No Third Party Beneficiaries. No person, other than the member,
shall have any rights hereunder.
17. Headings. The headings in this Operating Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Operating Agreement or any provision
hereof.
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IN WITNESS WHEREOF, the undersigned has caused the execution of this
Operating Agreement of Xxxxx National LLC, as of September 5, 2001.
XXXXX PETROLEUM COMPANY, Sole Member
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
[Signature Page of Xxxxx National LLC, Operating Agreement
dated as of September 5, 2001]
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
XXXXX NATIONAL LLC
*****
This Amended and Restated Operating Agreement is made as of September
12, 2001, by the undersigned member pursuant to and in accordance with the
Delaware Limited Liability Company Act (the "Act").
1. Formation; Name. The limited liability company (the "Company") was
formed on September 5, 2001 upon the filing of the certificate of
limited liability company in the office of the Secretary of State of
the State of Delaware in accordance with the Act. The name of the
Company is "Xxxxx National LLC" and all business shall be conducted
under that name.
2. Purpose. The purpose for which the Company has been formed is to
engage in any lawful act or activity which the member may from time to
time determine.
3. Registered Office. The registered office of the Company in the State of
Delaware is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000.
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
are Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000.
5. Admission. Upon execution and delivery of this Operating Agreement,
XXXXX PETROLEUM COMPANY, A MISSISSIPPI CORPORATION, was admitted as the
sole member of the Company. Subsequent thereto, Xxxxx Petroleum Company
transferred its entire membership interest to Xxxxxx Partners, which
thereupon became the sole member. Subsequent thereto, Xxxxxx Partners
transferred its entire membership interest to NEG Holding LLC, which
thereupon became the sole member. Subsequent thereto, on September 12,
2001, NEG Holding LLC transferred its entire membership interest to NEG
Operating LLC which thereupon became the sole member. Upon the last of
such transfers, the sole member determined to amend and restate this
Operating Agreement in the manner set forth herein. The member shall
not be required to make any capital contribution to the Company but may
make capital contributions from time to time.
6. Resignation of Member. The member may resign from the Company at any
time.
7. Assignment of Interest. The member may assign all or any portion of its
membership interest in the Company to any person ("Assignee"). Each
Assignee shall become a member of the Company upon the approval of the
member.
8. Title to Property. Title to any property (whether real, personal or
mixed) owned by or leased to the Company shall be held in the name of
the Company, or in the name of any nominee the member may in its
discretion designate.
9. Members. There shall be a managing member ("Managing Member") of the
Company which Managing Member shall have the powers and duties
equivalent to the duties of a corporate board of directors.
10. Profits and Losses. All profits and losses of the Company shall be
allocated to the member. The member shall not be liable for any debts
or losses of the Company beyond the aggregate amount of its capital
contribution, except as otherwise required by law.
11. Distributions. At such times as determined by the member taking into
account, among other things, the member's obligation to the extent same
exists, to make distributions to its members under its operating
agreement, the member shall cause the Company to distribute to the
member any cash or property held by it which is neither reasonably
necessary for the operation of the Company nor in violation of the Act.
The member shall be liable to the Company for distributions made
pursuant to this Section 11 only to the extent now or hereafter
provided by the Act.
12. Dissolution. The Company shall dissolve, and its affairs shall be wound
up, upon the occurrence of an event of dissolution of the Company under
the Act.
13. Amendment. This Operating Agreement may be amended only in writing.
14. Application of Delaware Law. This Operating Agreement, and the
application of interpretation hereof, shall be governed exclusively by
its terms and by the laws of the State of Delaware, and specifically
the Act.
15. Taxable Year. The taxable year of the Company shall be the calendar
year.
16. No Third Party Beneficiaries. No person, other than the member, shall
have any rights hereunder.
17. Headings. The headings in this Operating Agreement are inserted for
convenience only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Operating Agreement
or any provision hereof.
18. Other Matter. Xxxxxx Partners, for itself and not as Managing Member of
NEG Holding LLC, hereby agrees to be personally liable for the debt,
obligations and liabilities of the Company to the extent that same are
attributable to any oil or gas property owned by the Company and were
incurred during the period that all of the following conditions
existed: (i) NEG Operating LLC was the Managing Member of the Company,
(ii) NEG Holding LLC was the Managing Member of NEG Operating LLC, and
(iii) Xxxxxx Partners was the Managing Member of KEG Holding LLC.
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IN WITNESS WHEREOF, the undersigned has caused the execution of this
Operating Agreement of Xxxxx National LLC, as of September 12, 2001.
NEG OPERATING LLC, Sole Member
By: NEG Holding LLC, Sole Member
By: Xxxxxx Partners, Managing Member
By: Astral Gas Corp., General Partner
With respect only to Paragraph 18 hereof,
Xxxxxx Partners
By: Astral Gas Corp. and Cigas Corp.,
General Partners
By: XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
[Signature Page of Xxxxx National LLC, Operating Agreement
dated as of September 12, 2001]
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