EXHIBIT 3.59
GIBCO MOTOR EXPRESS, L.L.C.
OPERATING AGREEMENT
This Operating Agreement (this "Agreement") is executed as of the 14th
day of June, 1999, by Black Beauty Coal Company (the "Member").
EXPLANATORY STATEMENT
The Member agrees to organize and operate Gibco Motor Express, L.L.C.
in accordance with the terms of, and subject to the conditions set forth in,
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the Member,
intending legally to be bound, agrees as follows:
SECTION I
DEFINED TERMS
The following capitalized terms shall have the meanings specified in
this Section I. Other terms are defined in the text of this Agreement; and,
throughout this Agreement, those terms shall have the meanings respectively
ascribed to them.
"Act" means the Indiana Business Flexibility Act, as amended from time
to time.
"Agreement" means this Agreement, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, or any
corresponding provision of any succeeding law.
"Company" means the limited liability company organized in accordance
with this Agreement.
"Interest" means a Person's share of the Profits and Losses of, and the
right to receive distributions from, the Company.
"Interest Holder" means any Person who hold an Interest, whether as a
Member or as an unadmitted assignee of a Member.
"Involuntary Withdrawal" means, with respect to a Member, the
occurrence of any of the following events:
(i) A Member makes an assignment for the benefit of creditors;
(ii) A Member files a voluntary petition of bankruptcy;
(iii) A Member is adjudged bankrupt or insolvent or there is entered
against a Member an
order for relief in any bankruptcy or insolvency proceeding;
(iv) A 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) A Member seeks, consents to, or acquiesces in the appointment of
a trustee for, receiver for, or liquidation of the Member or of all or any
substantial part of the Member's properties;
(vi) A 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) Any proceeding against the Member seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any statute, law, or regulation, continues for one hundred twenty
(120) days after the commencement thereof, or 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 for one hundred twenty (120) days or, if
the appointment is stayed, for one hundred twenty (120) days after the
expiration of the stay during which period the appointment is not vacated; or
(viii) A Member's death or adjudication by a court of competent
jurisdiction as incompetent to manage the Member's person or property.
"Manager" means the Manager of the Company as set forth in Section 5.1.
"Member" means the Person signing this Agreement and any Person who
subsequently is admitted as a member of the Company.
"Membership Rights" means all of the rights of a Member in the Company,
including a Member's: (i) interest; (ii) right to inspect the Company's books
and records; (iii) right to participate in the management of and vote on matters
coming before the Company; and (iv) unless this Agreement or the Articles of
Organization provide to the contrary, right to act as an agent of the Company.
"Secretary of State" means the Office of the Secretary of State of
Indiana.
"Person" means and includes an individual, corporation, partnership,
association, limited liability company, trust, estate, or other entity.
"Positive Capital Account" means a Capital Account with a balance
greater than zero.
"Profit" and "Loss" means, for each taxable year of the Company (or
other period for which Profit or Loss must be computed) the Company's taxable
income or loss determined in accordance
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with the Code.
"Regulation" means the income tax regulations, including any temporary
regulations, from time to time promulgated under the Code.
"Successor" means all Persons to whom all or any part of an interest is
transferred either because of (i) the sale or gift by a Member of all or any
part of his interest, (ii) an assignment of a Member's interest due to the
Member's Involuntary Withdrawal, or (iii) because a Member dies and the Persons
are the Member's personal representatives, heirs, or legatees.
"Transfer" means, when used as a noun, any voluntary sale,
hypothecation, pledge, assignment, attachment, or other transfer, and, when used
as a verb, means voluntarily to sell, hypothecate, pledge, assign, or otherwise
transfer.
"Withdrawal" means a Member's dissociation from the Company by any
means.
SECTION II
FORMATION AND NAME; OFFICE; PURPOSE; TERM
2.1. Organization. The Member hereby organizes a limited liability
company pursuant to the Act and the provisions of this Agreement and, for that
purpose, has caused Articles of Organization to be prepared, executed and filed
with the Secretary of State on June 14, 1999.
2.2. Name of the Company. The name of the Company shall be "Gibco
Motor Express, L.L.C." The Company may do business under that name and under any
other name or names upon which the Member may, in his or her sole discretion,
determine. If the Company does business under a name other than that set forth
in its Articles of Organization, then the Company shall file a trade name
certificate as required by law.
2.3. Purpose. Company is organized to engage in the trucking and
cartage business and to do any and all things necessary, convenient, or
incidental to that purpose, and to conduct any other business permitted by the
Act.
2.4. Term. The term of the Company began upon the acceptance of the
Articles of Organization by the Secretary of State and shall continue in
existence perpetually, unless its existence is sooner terminated pursuant to
Section VII of this Agreement.
2.5. Principal Office. The principal office of the Company in the
State of Indiana shall be located at 000 Xx. Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, or at any other place within the State of Indiana which the Member, in
its sole discretion, determines.
2.6. Resident Agent. The name and address of the Company's resident
agent in the State of Indiana shall be Xxxxxxx X. Xxxxxxx, Ziemer, Stayman,
Xxxxxxx & Shoulders, LLP, 00 X.X. Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx,
Xxxxxxx 00000-0000.
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2.7. Members. The name, present mailing address, taxpayer
identification number and Percentage of each Member are set forth on Exhibit A.
SECTION III
MEMBERS; CAPITAL; CAPITAL ACCOUNTS
3.1. Initial Capital Contributions. Upon the execution of this
Agreement, the Member shall contribute to the Company cash in the amount of One
Hundred Thousand Dollars ($100,000.00).
3.2. No Other Capital Contributions Required. No Member shall be
required to contribute any additional capital to the Company, and except as set
forth in the Act, no Member shall have any personal liability for any
obligations of the Company.
3.3. Loans. Any Member may, at any time, make or cause a loan to be
made to the Company in any amount and on those terms upon which the Company and
the Member agree.
SECTION IV
PROFIT, LOSS, AND DISTRIBUTIONS
4.1. Distributions of Cash Flow. Cash Flow for each taxable year of
the Company shall be distributed to the Member as directed by the Member.
4.2. Allocation of Profit or Loss. All Profit or Loss shall be
allocated to the Member.
4.3. Liquidation and Dissolution. If the Company is liquidated, the
assets of the Company shall be distributed to the Member or to a Successor or
Successors.
SECTION V
MANAGEMENT: RIGHTS, POWERS, DUTIES, AND OFFICERS
5.1. Management The Company shall be managed by a Manager, elected
from time to time by the Member. Until replaced by a vote of the Member, Manager
shall be Gibco Motor Express, Inc., an Indiana corporation.
5.2. Personal Services. The Member shall not be required to perform
services for the Company solely by virtue of being a Member.
5.3. Liability and Indemnification.
5.3.1. The Member shall not be liable, responsible, or
accountable, in damages or otherwise, to the Company for any act performed by
him with respect to Company matters, except for fraud.
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5.3.2. The Company shall indemnify the Member with respect
to Company matters, except for fraud.
5.4. Officers. The Company shall have such officers as the Manager
may direct. The initial officers of the Company shall be Xxxxxx X. Xxxxxxxxxx,
Chief Executive Officer; Xxxxx X. Xxxxx, President; Xxxxxx X. Xxxxxxx,
Vice-President and Secretary; Xxxxxxx X. Wing, Treasurer; Xxxxxxx Xxxxxxxxx,
Vice-President; Xxxxxxx X. Xxxxxxx, Assistant Secretary; and R. Xxxxx Xxxxxxx,
Assistant Secretary.
SECTION VI
TRANSFER OF INTERESTS AND WITHDRAWALS OF MEMBERS
6.1. Transfers. The Member may Transfer all, or any portion of, or
its interest or rights in, its Membership Rights to one or more Successors.
6.2. Transfer to a Successor. In the event of any Transfer of all
or any part of the Member's Interest to a Successor, the Successor shall
thereupon become a Member and the Company shall be continued.
SECTION VII
DISSOLUTION, LIQUIDATION, AND TERMINATION OF THE COMPANY
7.1. Events of Dissolution. The Company shall be dissolved if the
Member determines to dissolve the Company.
The Company shall not dissolve merely because of the Member's
Involuntary Withdrawal.
7.2. Procedure for Winding Up and Dissolution. If the Company is
dissolved, the affairs of the Company shall be wound up. On winding up of the
Company, the assets of the Company shall be distributed, first, to creditors of
the Company in satisfaction of the liabilities of the Company, and then to the
Persons who are the Members of the Company in proportion to their interests.
7.3. Filing of Articles of Cancellation. If the Company is
dissolved, Articles of Cancellation shall be promptly filed with the Secretary
of State. If there are no remaining Members, the Articles shall be filed by the
last Person to be a Member; if there are no remaining members, or a Person who
last was a Member, the Articles shall be filed by the legal or personal
representatives of the Person who last was a Member.
SECTION VIII
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 in the Company's name. The Member shall
determine the institution or institutions
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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. The Member 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. The books and records shall be maintained in accordance with sound
accounting principles and practices.
8.3. Annual Accounting Period. The annual accounting period of the
Company shall be its taxable year. The Company's taxable year shall be selected
by the Member, subject to the requirements and limitations of the Code.
SECTION IX
GENERAL PROVISIONS
9.1. Assurances. Each Member shall execute all such certificates
and other documents and shall do all such filing, recording, publishing, and
other acts as the Members 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. A notice must be addressed to an Interest Holder at the
Interest Holder's last known address on the records of the Company. A notice to
the Company must be addressed to the Company's principal office. 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. Specific Performance. The parties recognize that irreparable
injury will result from a breach of any provision of this Agreement and that
money damages will be inadequate to remedy fully the injury. Accordingly, in the
event of a breach or threatened breach of one or more of the provisions of this
Agreement, any party who may be injured (in addition to any other remedies which
may be available to that party) shall be entitled to one or more preliminary or
permanent orders (i) restraining and enjoining any act which would constitute a
breach or (ii) compelling the performance of any obligation which, if not
performed, would constitute a breach.
9.4. Complete Agreement. This Agreement constitutes the complete
and exclusive statement of the agreement among 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.
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9.5. Applicable Law. 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 Indiana.
9.6. 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.
9.7. 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.
9.8. Jurisdiction and Venue. Any suit involving any dispute or
matter arising under this Agreement may only be brought in the United States
District Court for the Southern District of Indiana or any Indiana State Court
having jurisdiction over the subject matter of the dispute or matter. All
Members hereby consent to the exercise of personal jurisdiction by any such
court with respect to any such proceeding.
9.9. 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.
9.10. Separability of Provisions. Each provision of this Agreement
shall be considered separable; and 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.
9.11. 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 parties have executed, or caused this Agreement
to be executed, under seal, as of the date set forth hereinabove.
BLACK BEAUTY COAL COMPANY
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, President
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EXHIBIT A
MEMBER
Black Beauty Coal Company 100%
000 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
ID No.: 00-0000000
