OPERATING AGREEMENT
OF
COWBOY ASPHALT TERMINAL, L.L.C.
THIS OPERATING AGREEMENT of COWBOY ASPHALT TERMINAL, L.L.C. (this
"Agreement"), is made and entered into effective as of the 12th day of February
1999, by and among CROWN ASPHALT PRODUCTS COMPANY, a Utah corporation ("Capco"),
and FORELAND ASPHALT CORPORATION, a Utah corporation ("Foreco") (collectively
referred to herein as the "Members").
Recitals
A. The parties desire to engage in the business of acquiring, holding,
managing, and operating an asphalt terminal.
B. On or about June 16, 1998, Articles of Organization were filed with
the Division of Corporations and Commercial Code of the Department of Commerce,
state of Utah, to form Cowboy Asphalt Terminal, L.L.C. (the "Company").
C. It is the intent of the parties that additional improvements for the
joint use of the parties will be made by the Company to that portion of the
Property (as defined below) that is designated for the joint use of the parties,
in which case the parties will share in the cost and expense of such
improvements in proportion with their Ownership Percentages (as defined below)
and will receive an increase in each such party's Capital Account in the amount
paid by such party. Further, upon the mutual agreement of the parties, each
party may erect and install equipment and other improvements, as such party's
sole and separate property and at its sole cost and expense, on that portion of
the Property that is designated for such Party's exclusive use, in which case
the cost and expense of such improvements shall not be treated as Capital
Contributions and such improvements will be owned by the party bearing the cost
thereof and not by the Company.
D. The parties hereto desire to provide for the regulation and
management of the affairs of the Company.
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Article I
Defined Terms
When used in this Agreement, the following terms shall have the
meanings set forth below:
1.1 "Act" shall mean the Utah Limited Liability Company Act, as amended
or revised from time to time.
1.2 "Affiliate" of a Person shall mean a Person, directly or
indirectly, through one or more intermediaries, controlling, controlled by, or
under common control with the Person in question. The term "control," as used in
the immediately preceding sentence, means, respecting a Person that is a
corporation, the right to exercise, directly or indirectly, more than 50% of the
voting rights attributable to the shares of the controlled corporation, and,
respecting a Person that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled Person.
1.3 "Agreement" shall mean this Operating Agreement of Cowboy Asphalt
Terminal, L.L.C., as originally executed and as amended from time to time. Words
such as "herein," "hereinafter," "hereof," "hereto," "hereby," and "hereunder,"
when used with reference to this Agreement, refer to this Agreement as a whole,
unless the context otherwise requires.
1.4 "Available Cash" of the Company shall mean all cash funds of the
Company on hand from time to time (including cash funds obtained as
contributions to the capital of the Company by the Members, loans to the
Company, and net proceeds from Capital Transactions, but excluding cash funds
obtained from Terminating Transactions) after (i) payment of all expenses of the
Company as of such time, including all costs, expenses, or charges respecting
the ownership, operation, development, maintenance, and upkeep of the Company
property, including ad valorem taxes, debt amortization (including interest
payments), advertising expenses, professional fees, wages, and utility costs,
(ii) provision for payment of all outstanding and unpaid current obligations of
the Company as of such time, and (iii) provision for an adequate working capital
reserve as determined by the Manager to be reasonably necessary for operations
of the business of the Company.
1.5 "Capital Account" shall have the meaning set forth in Section
3.3(a).
1.6 "Capital Transaction" shall mean a transaction (i) pursuant to
which the Company borrows funds, (ii) pursuant to which part of the assets of
the Company are sold, condemned, exchanged, abandoned or otherwise disposed of,
(iii) pursuant to which insurance proceeds or other damages are recovered by the
Company in respect of a capital asset of the Company (and, not for such items as
business interruption or similar items), or (iv) that, in accordance with
generally accepted accounting principles, is otherwise considered capital in
nature.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended (or
any corresponding provision or provisions of succeeding law).
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1.8 "Company" shall mean the limited liability company operated
pursuant to the terms hereof for the limited purposes and scope set forth
herein.
1.9 "Fiscal Year" of the Company shall mean the calendar year.
1.10 "Liquidation" of a Member's interest shall mean and shall be
deemed to occur upon the earlier of (i) the date upon which the Company is
terminated under section 708(b)(1) of the Code; (ii) the date upon which the
Company ceases to be a going concern (even though it may continue in existence
for the limited purpose of winding up its affairs, paying its debts, and
distributing any remaining Company assets to the Members); or (iii) the date
upon which there is a liquidation of the Member's interest (but the Company is
not terminated) under section 1.761-1(d) of the Regulations.
1.11 "Manager" shall mean the Person designated pursuant to Section 5.3
to manage and operate the business of the Company.
1.12 "Members" shall mean the parties to this Agreement and such other
persons or entities that are admitted to the Company as additional or
substituted Members. Reference to a "Member" shall mean any one of the Members.
1.13 "Net Income or Loss" of the Company for any Fiscal Year (or
portion thereof) shall mean the excess or deficit, as the case may be, of (i)
the gross income of the Company derived from Operations as calculated under
federal income tax accounting principles for such Fiscal Year over (ii) all
items of expense [incurred, in case the Company selects the accrual method of
accounting for tax purposes, or paid, in the case the Company selects the cash
method of accounting for tax purposes,] by the Company respecting Operations
during such Fiscal Year which are allowable as deductions under federal income
tax accounting principles and depreciation, cost recovery or other amortization
deduction allowable to the Company for federal income tax purposes respecting
any Company asset for such Fiscal Year.
1.14 "Operations" shall mean revenue producing activities of the
Company other than (a) activities relating to Capital Transactions; or (b)
activities conducted separately by either Capco or Foreland. It is contemplated
that Operations shall be limited to ownership of the Property and the leasing of
tank capacity as the Members shall agree.
1.15 "Ownership Percentage" means, respecting each Member, the product
of (a) 100%, multiplied by (b) a fraction, the numerator of which shall be the
number of Units held by such Member and the denominator of which shall be the
total number of Units outstanding at that time.
1.16 "Person" shall mean any individual, partnership, corporation,
trust or other entity or association.
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1.17 "Property" shall mean the Cowboy Asphalt Terminal comprising the
real property located in Xxxxx County, Utah, as more particularly described in
Exhibit "A" attached hereto and incorporated herein by this reference, together
with the buildings, fixtures, and improvements and certain items of personal
property from time-to-time located thereon, excluding improvements to the
Property made pursuant to Section 3.2(d).
1.18 "Regulations" shall mean the regulations promulgated by the United
States Department of the Treasury pursuant to and in respect of provisions of
the Code. All references herein to sections of the Regulations shall include any
corresponding provision or provisions of succeeding, similar, substitute
proposed or final Regulations.
1.19 "Terminating Transaction" shall mean a sale, condemnation,
exchange or other disposition, whether by foreclosure, abandonment, or
otherwise, of all or substantially all of the then remaining assets of the
Company which is entered into in connection with the dissolution, termination
and winding up of the Company or that will result in the dissolution of the
Company.
1.20 "Unit" shall mean an interest in the Company consisting of the
rights, covenants, and responsibilities more particularly set forth herein.
Article II
General Provisions
2.1 Formation of the Company. The Members previously formed the Company
as a limited liability company pursuant to the provisions of the Act, by filing
Articles of Organization with the Division of Corporations and Commercial Code
of the Department of Commerce, state of Utah, and hereby adopt this Agreement to
provide for the regulation and management of the affairs of the Company.
2.2 Name. The business of the Company shall be conducted under the name
"Cowboy Asphalt Terminal, L.L.C." or such other name that the Members may
select.
2.3 Purposes and Scope. Subject to the provisions of this Agreement,
the Company is formed to acquire, hold, manage, and operate an asphalt
receiving, processing, storage, and handling terminal, to engage in any activity
necessary or convenient to accomplish its purposes and operate its business as
set forth herein as the Members may from time-to-time determine; and to exercise
all powers permitted thereby. This Agreement does not and shall not be construed
to govern any business relationships between the parties other than those
specified in this Agreement.
2.4 Articles of Organization. The Members further agree and obligate
themselves to execute, acknowledge, file, record and/or publish, as necessary,
such amendments to the Articles of Organization as may be required by the terms
hereof or by law and such other certificates and documents as may be appropriate
to comply with the requirements of law for the continuation, preservation,
and/or operation of the Company as a limited liability company.
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2.5 Fictitious Name. Concurrently with the execution of this Agreement,
the Company shall make any filings or disclosures required by the laws of the
state of Utah respecting its use of a fictitious name, if any.
2.6 Ownership. The interest of each Member in the Company shall be
personal property for all purposes. All property and interests in property, real
or personal, owned by the Company shall be deemed owned by the Company as an
entity, and no Member, individually, shall have any ownership in any property or
interest in property owned by the Company except as a Member in the Company.
Each of the Members irrevocably waives, during the term of the Company and
during any period of its liquidation following any dissolution, any right that
such Member may have to maintain any action for partition respecting any of the
assets of the Company.
2.7 Membership Certificates. Units of membership interest in the
Company shall be represented by certificates which shall state on their face the
name of the Company and that it is organized under the laws of the state of
Utah, the name of the Member to whom the certificate is issued, and the number
and, if applicable, the class or other designation of the series, if any, the
certificate represents. Each share certificate must be signed by the Manager and
may contain such other information as the Manager or the Members consider
necessary or appropriate. The Company shall maintain a membership ledger
indicating the name, address, certificate serial number, and number of units or
other interests held by each Member from time to time, showing the cancellation
of certificates, as appropriate.
2.8 No Individual Authority. Except as otherwise specifically provided
in this Agreement, no Member, acting alone, shall have any authority to act for,
or to undertake or assume any obligation, debt, duty or responsibility on behalf
of, any other Member or the Company.
2.9 Place of Business. The principal place of business of the Company
shall be at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, or at
such other or additional place or places as the Members shall reasonably
determine.
2.10 Term of the Company. The term of the Company shall continue until
terminated pursuant to the provisions of this Agreement or such other date as
the Members shall select in accordance with the provisions of Section 8.1.
2.11 Registered Agent. The registered agent of the Company shall be Xxx
Xxxxxx, whose office address is 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx 00000.
2.12 Registered Office. The registered office of the Company shall be
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000.
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Article III
Capital Contributions
3.1 Initial Capital Contributions; Units. In connection with the
formation of the Company, each Member shall be deemed to have contributed to the
capital (the "Capital Contributions") of the Company the approximate amount of
cash paid to Xxxxxxx-Xxxxxxx R.I.C. through November 30, 1998, respecting the
payments due under that certain amortization schedule regarding the purchase of
the Property, and has been credited with the number of Units, set forth opposite
such Member's name set forth below:
Ownership
Name Contribution Units Held Percentages
------------------------------ ------------ ---------- -----------
Crown Asphalt Products Company $174,533 66.67 66.67%
Foreland Asphalt Corporation $87,267 33.33 33.33%
3.2 Additional Contributions.
(a) Each Member shall be obligated to contribute one-half of
(i) such additional amounts as may be required, not to exceed a total
of $650,000, for the Company to fulfill its obligations under such
corrective action plan that may be acceptable to the Company and the
Utah Department of Environmental Quality for environmental management,
remediation, and containment costs of bringing the Property into
compliance with applicable environmental laws respecting conditions
existing as of the date of this Agreement, which such additional
contribution shall be paid within ten (10) days after demand therefor
by the Manager; and (ii) such additional amounts required to cover
legal costs incurred in obtaining title to the Property from Xxxxxxx
Xxxxxxx X.X.X., or relating to the environmental remediation work
referenced in clause (i).
(b) Each Member shall be obligated to contribute, pro rata in
proportion to its Ownership Percentage, such additional amounts as may
be required for the Company to fulfill its obligations under the
following:
(i) the payment of the balance of the purchase price
for the Property as reflected under that certain Memorandum of
Closing dated January 7, 1999, attached hereto as Exhibit "B"
for by and between Xxxxxxx Xxxxxxx X.X.X., Inc., and the
Company and the special warranty deed, trust deed note, deed
of trust, and other documents to be executed and delivered in
consummation of the transaction contemplated thereby;
(ii) environmental management and containment costs
other than those described in subparagraph (a) of this Section
3.2, which such additional contribution shall be paid within
ten (10) days after demand therefor by the Manager;
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(iii) the Company's expenses for Operations, which
such additional contribution shall be paid within ten (10)
days after demand therefor by the Manager; and
(iv) the construction of capital improvements to the
Property that, in the judgment of the Manager and, if required
in accordance with the provisions of Section 5.7, the approval
of the Members, will be beneficial to the business interests
and for the joint use of both Members.
(c) Any additional Capital Contributions of a Member shall
increase the Member's Capital Account, but as long as such
contributions are made in proportion to their respective obligations as
set forth in subparagraph (a) and (b) above of this Section 3.2, shall
not result in an increase in the number of Units held by the Members.
No Member shall be required to purchase additional Units or make any
additional Capital Contributions beyond those set forth in Section 3.1
and this Section 3.2, respectively.
(d) In addition to the foregoing, the Members anticipate that
each Member may deem it necessary or desirable to make certain capital
improvements to the Property intended to benefit only such Member in
all material respects and not the other Member, all as more
particularly provided in this Section 3.2(d). To the extent that the
improvement sought to be made is located in the area set forth on
Exhibit "C" as being devoted to the exclusive use of the Member making
such improvement, no approval from any other Member shall be required.
If, however, the subject improvement is to be located on an area not
designated on Exhibit "C" for such Member's exclusive use, any such
improvements shall be made only upon the prior written consent of both
Members, which such consent shall not be unreasonably withheld if, in
the exercise of the Members' reasonable commercial judgment, it does
not appear that it will be likely that the proposed improvements will
materially and interfere on a recurring basis with the continued use of
the remainder of the facility in accordance with then contemporaneous
practice. The Member receiving the principal benefits of such capital
improvements shall fund all related costs and expenses of installation,
construction, and operation of such improvements and shall be entitled
to all revenues and profits in connection therewith. The payment of
such costs and expenses of installation and construction shall in no
event be treated as additional Capital Contributions or loans to the
Company but shall be for the sole account of the Member bearing such
payments. All improvements to the Property made pursuant to this
Section 3.2(d) shall be owned solely by the Member funding the
installation, construction and operation thereof, and shall not be
considered Company property..
3.3 Capital Accounts.
(a) A separate "Capital Account" (herein so called) shall be
maintained for each Member in accordance with the capital accounting
rules of section 1.704-1(b)(2)(iv) of the Regulations. Each Member
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shall have only one Capital Account, regardless of the number or
classes of Units in the Company owned by such Member and regardless of
the time or manner in which such Units were acquired by such Member.
Pursuant to the basic rules of section 1.704-1(b)(2)(iv) of the
Regulations, the balance of each Member's Capital Account shall be:
(i) credited with: (1) the amount of money
contributed by such Member to the Company and the fair market
value of any property contributed by such Member to the
Company (net of liabilities secured by such property that the
Company assumes or takes subject to); (2) except as provided
below, the amount of taxable income or gain allocated to such
Member; and (3) such Member's pro rata share of any tax exempt
income or gain of the Company; and
(ii) debited with: (1) the amount of money (excluding
guaranteed payments) and the agreed fair market value of any
property distributed to such Member (net of liabilities
secured by such property that the Member assumes or takes
subject to); (2) except as provided below, the amount of
taxable loss and deductions (or items thereof) allocated to
such Member; and (3) such Member's pro rata share of any
expenditures of the Company described in section 705(a)(2)(B)
of the Code (or expenditures which are so treated under
section 1.704-(b) of the Regulations); and
(iii) otherwise adjusted in accordance with the other
capital account maintenance rules of section 1.704-1(b)(2)(iv)
of the Regulations.
In addition, if property is distributed in kind by the Company, the
Capital Accounts of the Members shall be adjusted to reflect the manner
in which the unrealized income, gain, loss and deduction inherent in
such property (that has not already been reflected in the Members'
Capital Accounts) would be allocated to the Members if there were a
taxable disposition of such property for its agreed fair market value
on the date of distribution.
(b) Notwithstanding the foregoing, if property is contributed
to the Company by a Member, the Company shall thereafter compute gain,
loss and depreciation in respect of the contributed property separately
for book and tax purposes as required by sections 1.704-1(b)(2)(iv),
1.704-1(b)(4)(i) and 1.704-(b)(4)(iii) of the Regulations. Such items
so computed for book purposes shall be allocated among the Members in
the manner provided in Article IV below and shall be reflected in the
Members' Capital Accounts by appropriate increases or decreases thereto
as required by section 1.704-1(b)(2)(iv)(b) of the Regulations. Such
items so allocated for tax purposes shall not be reflected in the
Members' Capital Accounts.
(c) Notwithstanding the foregoing, it is the intention of the
Members that their Capital Accounts in the Company be maintained
strictly in accordance with the capital account maintenance
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requirements of section 1.704-1(b) of the Regulations, and that their
Capital Accounts be adjusted to the extent required by the provisions
of such Regulations or any successor provisions thereto.
(d) A loan by a Member to the Company shall not be considered
a contribution of money to the capital of the Company, and the balance
of such Member's Capital Account shall not be increased by the amount
so loaned, unless such loan is determined by the Internal Revenue
Service in a final administrative proceeding to be a Capital
Contribution by such Member. No repayment of principal or interest on
any such loan, or reimbursement made to a Member respecting advances or
other payments made by such Member on behalf of the Company, or
payments of fees to a Member or its Affiliates which are made by the
Company shall be considered a return of capital or in any manner affect
the balance of such Member's Capital Account.
(e) Notwithstanding any other provision in this Agreement to
the contrary, in the event that a Member has a negative balance in its
Capital Account following the Liquidation of such Member's interest in
the Company or the occurrence of a Terminating Transaction or other
event resulting in the termination of the Company (such Member's
Capital Account balance to be determined after it has been adjusted to
reflect (i) all Company transactions during the Fiscal Year in
question, including gain or loss realized in connection with a
Terminating Transaction and (ii) the gain or loss which would be
recognized by the Company if it were to sell its remaining assets for
the fair market value thereof), such Member shall contribute to the
Company an amount of money equal to such negative balance by the later
of (1) the end of the Fiscal Year during which the Member's interest is
liquidated or the Terminating Transaction occurs or (2) ninety (90)
days after the date on which the Member's interest is liquidated or the
Terminating Transaction occurs. Amounts contributed to the Company
pursuant to this Section 3.3(e) shall be paid to the Company's
creditors or distributed to the other Members in accordance with the
positive balances in their respective Capital Accounts (after such
Capital Accounts have been adjusted in the manner provided herein).
3.4 Return of Capital. Except to the extent provided in Article IV
below, no Member shall have the right to demand or receive the return of such
Member's Capital Contributions to the Company.
3.5 No Interest on Capital Contributions. Except as otherwise provided
herein, no Member shall receive any interest on such Member's Capital
Contributions to the Company or such Member's Capital Account, notwithstanding
any disproportion therein as between the Members.
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Article IV
Allocations and Distributions
4.1 Distributions of Available Cash. The Manager, in its sole
discretion, shall determine whether the Company should distribute its Available
Cash; provided, however, that the Manager shall use its best efforts to
distribute sufficient Available Cash to allow the Members to meet their
obligations to federal and state taxing authorities. In the event that the
Manager decides that part or all of the Company's Available Cash should be
distributed to the Members, such Available Cash shall be distributed to the
Members pro rata in accordance with their respective Ownership Percentages.
Notwithstanding the foregoing, the net proceeds of a Terminating Transaction
shall be distributed in accordance with Section 8.2 hereof.
4.2 Allocations of Income and Loss. Subject to the provision of Section
4.3, the Company's items of Net Income and Loss from Operations for each Fiscal
Year and gain and loss realized by the Company in connection with each Capital
Transaction, after giving effect to all Capital Account adjustments attributable
to contributions and distributions of money and property made during such Fiscal
Year (but excluding income and loss, if any, that is required to be separately
determined and allocated to the Members for federal income tax purposes in the
same manner as prescribed under section 704(c) of the Code), shall be allocated
to the Members, pro rata in accordance to their respective Ownership
Percentages.
4.3 Limitations and Qualifications Regarding Allocations.
Notwithstanding the provisions of Section 4.2, Net Income and Loss for each
Fiscal Year and gain and loss realized by the Company (or items of income, gain,
loss, deduction, or credit, as the case may be) shall be allocated in accordance
with the following provisions. If the allocation of Net Loss (or items thereof)
as provided in Section 4.2 hereof would cause or increase a deficit balance in a
Member's Capital Account, there shall be allocated to such Member only that
amount of net loss (or items thereof) as will not cause or increase a deficit
balance in the Member's Capital Account. The net loss (or items thereof) that
would, absent the application of the preceding sentence, otherwise be allocated
to such Member shall be allocated (i) first, to other Members having positive
balances in their Capital Accounts, in proportion to such positive balances; and
(ii) second, to all the Members in accordance with their respective Ownership
Percentages. For purposes hereof, each Member's Capital Account shall be reduced
for the items described in clauses (4), (5), and (6) of Regulation section
1.704-1(b)(2)(ii)(d). If any allocation of net loss (or items thereof) is made
under this Section 4.3, any allocation of Net Income and gain (including income
and gain exempt from tax) of the Company allocated thereafter shall first be
allocated as necessary to offset in reverse order the allocation made pursuant
to this Section 4.3.
4.4 Allocation of Income and Loss and Distributions in Respect of Units
Transferred.
(a) If any Units in the Company are transferred, or are
increased or decreased by reason of the admission of a new Member or
otherwise, during any Fiscal Year of the Company, each item of income,
gain, loss, deduction, or credit of the Company for such Fiscal Year
shall be assigned pro rata to each day in the particular period of such
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Fiscal Year to which such item is attributable (i.e., the day on or
during which it is accrued or otherwise incurred) and the amount of
each such item so assigned to any such day shall be allocated to the
Members based upon their respective Units in the Company at the close
of such day. For purposes of accounting convenience and simplicity, the
Company shall treat a transfer of, or an increase or decrease in, Units
in the Company which occurs at any time during a semi-monthly period
(commencing with the semi-monthly period including the date hereof) as
having been consummated on the first day of such semi-monthly period,
regardless of when during such semi-monthly period such transfer,
increase, or decrease actually occurs (i.e., sales and dispositions
made during the first fifteen (15) days of any month will be deemed to
have been made on the first day of the month and sales and dispositions
thereafter will be deemed to have been made on the 16th day of the
month).
(b) Distributions of assets of the Company in respect of Units
in the Company shall be made only to the persons or entities who,
according to the books and records of the Company, are the holders of
record of Units in respect of which such distributions are made on the
actual date of distribution or, if authorized by the record holder of
such Units as evidenced by written notice to the Manager, such holder's
designee. Neither the Company nor the Manager shall incur any liability
for making distributions in accordance with the provisions of the
preceding sentence, whether or not the Company, the Members, or the
Manager have knowledge or notice of any transfer or purported transfer
of ownership of any Units in the Company.
(c) Notwithstanding any provision above to the contrary, gain
or loss of the Company realized in connection with a sale or other
disposition of any of the assets of the Company shall be allocated
solely to the parties owning Units in the Company as of the date such
sale or other disposition occurs.
Article V
Status of Members and Management of the Company
5.1 Participation in Management. Except as otherwise provided herein,
the Members shall not participate in the management or control of the Company's
business nor shall they transact any business for the Company, nor shall they
have the power to act for or bind the Company, said powers being vested solely
and exclusively in the Manager.
5.2 Limited Liability. Except as otherwise provided herein to the
contrary, the Members shall not be bound by, or personally liable for, the
expenses, liabilities, or obligations of the Company, except as provided in the
Act.
5.3 Management. Unless the Articles of Organization have dispensed with
or limited the authority of the Manager, all power 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 Manager. The Manager shall
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have exclusive power and control over the business of the Company; only the
Manager shall have the power to bind the Company. The initial Manager shall be
Capco. The Manager shall act as such until (a) its resignation, withdrawal,
removal, bankruptcy, or dissolution; or (b) the dissolution of the Company,
whichever occurs first. Manager vacancies shall be filled by the Members.
5.4 Removal of Manager. The Members shall have the right, without
further obligation to the Manager other than for reimbursement of expenses
previously incurred, to remove, with or without cause, the Manager.
5.5 Members, Manner of Acting.
(a) Unless the Articles of Organization provide otherwise, any
or all Members may participate in a meeting by, or conduct the meeting
through the use of, any means of communication by which all Members
participating may simultaneously speak to and be heard by each other
during the meeting. A Member participating in a meeting by this means
is deemed to be present in person at the meeting.
(b) A Member who is present at a meeting of the Members when
an action is taken is deemed to have assented to the action taken
unless: (1) it objects at the beginning of the meeting (or promptly
upon its arrival) to holding it or transacting business at the meeting;
or (2) its dissent or abstention from the action taken is entered in
the minutes of the meeting; or (3) it delivers written notice of its
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 is not available to a
Member who votes in favor of the action taken.
(c) Unless the Articles of Organization provide otherwise, any
action required or permitted to be taken by the Members at a meeting
may be taken without a meeting if the required majority of the Members
as set forth in subparagraph (d) below sign a written consent (unless
the action which is the subject of the consent requires a greater
percentage under the Articles of Organization or this Agreement)
describing the action taken, and the consents are filed with the
records of the Company. Action taken by consents is effective when the
last Member signs the consent, unless the consent specifies a
subsequent effective date. A signed consent has the effect of a meeting
vote and may be described as such in any document.
(d) Unless this Agreement or the Articles of Organization
require a greater percentage, the Members shall determine all matters
based upon the approval or consent of at least 75% in Ownership
Interest in the Company. In the event that, for any reason, at least
75% in Ownership Interest of the Members shall not be able to agree on
a matter under consideration by the Members, within five days after the
matter is submitted to the Members, the resolution thereof shall be
determined by the majority decision of a panel consisting of one
unrelated, independent third party selected by each Member (which
appointment shall have been made within 15 days after the disputed
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matter is submitted to the Members or the Member who shall not have
made such appointment shall have been deemed to have consented to the
disputed matter) and one unrelated, independent third party selected by
the persons so selected. All matters submitted to dispute resolution as
described in this Section 5.5(d) shall have been finally resolved
within 30 days.
5.6 Manager; Specific Powers. Except as otherwise specifically provided
in this Agreement, all matters in connection with the day-to-day conduct of the
Company's business and the use or disposition of its assets shall be decided
solely by the Manager. Without limiting the generality of the foregoing, the
Manager shall have the power and authority on behalf of the Company to:
(a) acquire such tangible and intangible personal property as
may be necessary or desirable to carry on the business of the Company;
(b) negotiate leases for and execute and deliver leases for
office space for the operation of the Company's business;
(c) purchase equipment, supplies, and materials and produce
and market products as, in its sole discretion, it shall deem
advisable;
(d) employ, terminate the employment of, supervise, and
compensate such persons, firms, or corporations as, in its sole
discretion and judgment, it shall deem advisable for the proper
operation and management of the business of the Company;
(e) invest Company funds in interest-bearing accounts,
commercial paper, government securities, certificates of deposit, or
similar investments;
(f) execute promissory notes, deeds of trust, regulatory
agreements, and all other documents, agreements, or certifications;
(g) sell, transfer, exchange (whether or not qualifying as a
tax-free exchange under section 1031 of the Internal Revenue Code),
assign, convey, lease, further encumber, hypothecate or otherwise
dispose of all or any part of the assets of the Company in the ordinary
course of the business of the Company;
(h) execute and file all reports and maintain all records
required by law or by this Agreement; and
(i) coordinate the management and operation of the Company and
perform other normal business functions and otherwise operate and
manage the business and affairs of the Company in accordance with and
as limited by this Agreement.
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5.7 Limitation on Powers and Authority of Manager. Notwithstanding the
provisions of this Article V or any other provisions herein, the Manager shall
not have the right or power to do any of the following without the consent of
Members holding 75% or more of all of the outstanding Units.
(a) Take any action respecting the Company's rights and
obligations as successor in interest to that certain Letter of Intent
dated November 12, 1990, between Xxxxxxx-Xxxxxxx X.X.X., Inc., an Idaho
corporation, which appears therein as "Seller," for the sale of the
Property to Crysen Refining, Inc., which has thereafter assigned its
rights under the Purchase Arrangement to Refinery Technologies, Inc.,
which has in turn assigned certain of its rights to the Company.
(b) Submit any corrective action plan or other remediation
proposal to the Utah Department of Environmental Quality or any other
governmental authority or bind the Company in any way respecting any
such matter;
(c) Perform any act that would make it impossible to carry on
the ordinary business of the Company;
(d) Confess a judgment against the Company;
(e) Use the Company name, credit or assets for other than
Company purposes;
(f) Perform any act in contravention of this Agreement;
(g) Amend this Agreement;
(h) Commingle the funds of the Company with the funds of any
other person or entity;
(i) Submit any dispute involving the Company to binding
arbitration;
(j) Execute or deliver any assignment for the benefit of the
creditors of the Company;
(i) Cause the Company to borrow any sums for which the Members
have recourse liability;
(k) Transact any business on behalf of the Company in any
jurisdiction, unless the Members would not, as a result thereof, become
Manager and have any liability greater than that provided in this
Agreement;
(l) Cause the Company to borrow or incur any indebtedness, in
the aggregate, in excess of $100,000;
14
(m) Obligate the Company to make capital expenditures in
excess of $100,000 in any calendar year;
(n) Dispose of all or any part of the Property described in
Exhibit "A" or the buildings, fixtures, or improvements from time to
time located thereon or dispose of all or substantially all of the
assets or the goodwill of any business of the Company or any of its
businesses, all except for routine sales, leases, other transfers,
replacements, renovations, and repairs in the ordinary course of the
Company's business that do not, singly or in the aggregate, have a
material adverse effect on the business of the Company;
(o) Admit a person or entity as a Member, except as provided
herein, except that Capco shall be entitled to transfer its interest as
a Member in the Company at any time to Crown Asphalt Distribution,
L.L.C., a Utah limited liability company ("CAD") without obtaining the
consent of any Member or Manager of the Company; and
(p) In case of an actual emergency, the Manager may take on
behalf of the Company any reasonable action it deems necessary to
protect life or property, to protect the assets of the Company, or to
comply with applicable law, without the approval of the Members as
required elsewhere within this Section 5.7 if time does not permit
obtaining such approval. The Manager shall promptly notify the Members
of the emergency or unexpected expenditure. Any Member may thereafter
dispute the reasonableness or necessity of an expenditure incurred by
the Manager for any such action by giving written notice of such
dispute to the Manager. Thereafter, the Manager and the Member shall
negotiate in good faith to resolve such dispute. In the event any
dispute is not resolved, the provisions of Section 5.5(d) shall apply.
5.8 Standard of Conduct. The Manager at all times shall operate and
manage the business and affairs of the Company in a reasonable and prudent
manner.
5.9 Compensation of Manager.
(a) Except as agreed to by the Members, the Manager shall not
receive compensation in consideration of the performance of the duties
and responsibilities of the Manager. However, the Manager shall be
reimbursed for all costs and expenses incurred on behalf of the
Company. Except as otherwise provided herein, neither the Manager nor
any other Member shall be entitled to a fee for services to the Company
in its capacity as a Member.
(b) The Company shall be obligated, and the Manager is
authorized, to pay from Company assets all expenses relating to the
organization of the Company. Such expenses may be paid directly by the
Company or paid by the Manager and then reimbursed by the Company.
Without limiting the generality of the foregoing, such organizational
15
expenses include legal, accounting, consulting, duplication and
printing, telephone, telex, postage, air freight, travel and
entertainment, and other expenses and fees (including filing fees) paid
or incurred in organizing the Company. No part of the amount so paid
pursuant to this section shall be deemed to be a management fee payable
to the Manager.
(c) The Manager shall devote such time, effort, and skill to
the affairs of the Company as the Members may deem to be reasonably
required for the welfare and success of the Company, but shall not be
obligated to devote all of its business time to the affairs of the
Company.
5.10 Use of Facilities. The Members shall have the right to use the
facilities comprising the Property without cost or the payment of any
consideration other than the Capital Contributions to the Company. Each Member
shall be entitled to the exclusive use of that portion of the Property more
particularly set forth in Exhibit "C" attached hereto and incorporated herein by
this reference. Each Member shall be entitled to make that portion of the
property marked as Reserved for such Member Exclusive to that Member by written
notice to the Company of its intent to utilize such Property in their respective
businesses ninety (90) days prior to such action. Any revenues generated from
the property marked Exclusive shall be the sole property of that respective
Member. Any revenues generated from the property marked Reserved or Joint will
be allocated according to Sharing Ratio subject to the change of certain
property from Reserved to Exclusive. The portions of the Property not designated
for the exclusive use of either Member shall be available for the use of both
Members, as coordinated from time-to-time by the Members.
5.11 Execution of Documents. Except as limited by Section 5.7, the
Manager is hereby authorized to execute on behalf of the Company any and all
documents in connection with the Company's business including, but not limited
to, deeds, deeds of trust, promissory notes, guaranties, leases, certificates,
affidavits, assignments, security agreements and contracts.
5.12 Tax Matters Member.
(a) The Manager is hereby designated the "tax matters partner"
as that term is defined in section 6231(a)(7) of the Code (referred to
herein as the "Tax Matters Member").
(b) The Tax Matters Member shall take no action in such
capacity without the authorization or consent of the other Members,
other than such action as the Tax Matters Member may be required to
take by law. The Tax Matters Member shall use its best efforts to
comply with the responsibilities outlined in sections 6222 through 6232
of the Code and in doing so shall incur no liability to the other
Members. Notwithstanding the Tax Matters Member's obligation to use its
best efforts in the fulfillment of its responsibilities, the Tax
Matters Member shall not be required to incur any expenses for the
preparation for or pursuance of administrative or judicial proceedings
unless the Members agree on a method for sharing such expenses.
16
(c) The Tax Matters Member shall not enter into any extension
of the period of limitations for making assessments on behalf of the
other Members without first obtaining the written consent of the other
Members.
(d) No Member shall file, pursuant to section 6227 of the
Code, a request for an administrative adjustment of items for any
Company taxable year without first notifying the other Members. If the
other Members agree with the requested adjustment, then the Tax Matters
Member shall file the request for administrative adjustment on behalf
of the Member. If unanimous consent is not obtained within thirty (30)
calendar days from such notice, or within the period required to timely
file the request for administrative adjustment, if shorter, any Member,
including the Tax Matters Member, may file a request for administrative
adjustment on its own behalf.
(e) Any Member intending to file a petition under sections
6226, 6228, or other section of the Code respecting any item or other
matter involving the Company shall notify the other Members of such
intention and the nature of the contemplated proceeding. In the case
where the Tax Matters Member is the Member intending to file such
petition on behalf of the Company, such notice shall be given within a
reasonable period of time to allow the other Members to participate in
the choosing of the forum in which such petition will be filed. If the
Members do not agree on the appropriate forum, then the appropriate
forum shall be decided by vote of a majority in interest of the
Members. Each Member shall have a vote in accordance with its aggregate
percentage right to distributions of Available Cash for the year under
audit. If such a majority cannot agree, then the Tax Matters Member
shall choose the forum. If any Member intends to seek review of any
court decision rendered as a result of a proceeding instituted under
the preceding provisions of this Section 5.12(e), then such Member
shall notify the other Members of such intended action.
(f) The Tax Matters Member shall not bind any Member to a
settlement agreement without obtaining the written concurrence of such
Member. For purposes of this Section 5.12(f), the term "settlement
agreement" shall include a settlement agreement at either an
administrative or judicial level. Any Member who enters into a
settlement agreement respecting any partnership items, as defined in
section 6231(a)(3) of the Code, shall notify the other Members of such
settlement agreement and its terms within ninety (90) calendar days
from the date of settlement.
(g) The provisions of this Section 5.12 shall survive the
termination of the Company or the termination of any Member's interest
in the Company and shall remain binding on the Members for a period of
time necessary to resolve with the Internal Revenue Service or the
United States Department of the Treasury any and all matters regarding
the United States federal income taxation of the Company.
17
5.13 Other Tax Elections. The Manager may, in its sole discretion, make
or revoke the elections referred to in section 754 of the Code or any
corresponding provisions of state tax laws. Each of the Members will upon
request supply the information necessary to properly give effect to such
elections. The Manager shall revalue Company property to its fair market value
(taking into account section 7701(g) of the Code) on the revaluation date in
accordance with section 1.704-1(b)(2)(iv)(f) of the Regulations, and shall
adjust the Capital Accounts of the Members as described herein when any new or
existing Member contributes money or other property (other than a de minimis
amount) to the Company in exchange for an interest in the Company or when the
Company distributes money or other property (other than a de minimis amount) to
a withdrawing or continuing Member in exchange for all or a portion of such
Member's interest in the Company.
5.14 Inconsistent Treatment of Item. If any Member intends to file a
notice of inconsistent treatment under section 6222(b) of the Code, then such
Member shall give reasonable notice under the circumstances to the other Members
of such intent and the manner in which the Member's intended treatment of an
item is (or may be) inconsistent with the treatment of that item by the other
Members.
Article VI
Members' Responsibilities Among Themselves
6.1 Liability of Manager to the Other Members. The Manager, its
directors, officers, shareholders, representatives, employees and agents shall
not be liable to the Company or to the other Members for losses sustained or
liabilities incurred as a result of any good faith error in judgment or mistake
of law or fact, or for any act done or omitted to be done in good faith in
conducting the Company's business, unless such error, mistake, act or omission
was performed or omitted fraudulently, or constituted willful misconduct or a
breach of this Agreement. This provision is not for the benefit of any third
party.
6.2 Company Indemnity to Manager. The Company shall protect, defend,
indemnify and hold harmless the Manager and each of its directors, officers,
shareholders, representatives, employees and agents (collectively, the
"Indemnified Parties"), from and against any loss, expense, damage or injury
suffered or sustained by any of them by reason of any acts, omissions, or
alleged acts or omissions arising out of the activities of any Indemnified Party
on behalf of the Company or in furtherance of the interests of the Company,
including, but not limited to, any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim if the acts,
omissions or alleged acts or omissions upon which such actual or threatened
action, proceeding or claim is based were for a purpose believed in good faith
by any Indemnified Party, to be in the best interest of the Company or were not
performed or omitted fraudulently and did not constitute willful misconduct or a
breach of this Agreement by such Indemnified Party. The Company shall further
indemnify and hold harmless each Indemnified Party for losses or liabilities due
to the negligence, including gross negligence, dishonesty, willful misconduct,
or bad faith of any employee, broker, or other agent of the Company if such
employee, broker, or agent was solicited, engaged, or retained and supervised by
18
the Manager with reasonable care. The Members each acknowledge that the
intention of the preceding provisions is to cause the Company to indemnify the
Manager respecting the Manager's negligence, but in no event shall the Manager
be indemnified respecting its gross negligence or willful misconduct.
6.3 Conflicts of Interest. This Agreement shall not preclude the
Company from dealing with any Member or any Member's Affiliates in connection
with the business of the Company as independent contractors or as agents for
others, and such Affiliates may receive from such others or the Company normal
profits, compensation, commissions or other income incident to such dealings.
The amount payable by the Company to any Member or any Affiliate of any Member
shall not be greater than the amount which the Company would have to pay under
an arms-length contract with a non-related entity.
6.4 Members Look Solely to Company Assets. Each Member shall look
solely to the assets of the Company for all distributions respecting the Company
and return of its Capital Contributions, and no Member shall have any recourse
in connection therewith against any Member except as provided in Section 6.1.
6.5 Dealings Outside the Company. Neither the Manager nor any Member
shall be required to devote full time to Company business, and the Manager and
Members may, at any time and from time to time, engage in and possess an
interest in other business ventures of any and every type and description,
independently or with others. Specifically, the Members anticipate that Capco
will exploit the facilities and services of the Company, in conjunction with
improvements to the Property made by Capco pursuant to Section 3.2(d), solely to
operate an integrated paving asphalt business and that Foreco will exploit the
facilities and services of the Company, in conjunction with improvements to the
Property made by Foreland pursuant to Section 3.2(d), solely to operate an
integrated roofing asphalt business, Neither the Company nor any Member shall by
virtue of this Agreement have any right, title or interest in or to such
independent venture of any Member.
6.6 Respective Responsibilities for Damages. Each Member agrees to
indemnify and hold harmless the Company and the other Member from any injury,
damages, costs, liability, fines, causes of action or fees (including reasonable
attorney's fees) resulting from, or alleged to result from, the business
activities of such Member as described in Section 6.5 which are conducted upon
the Property or in conjunction with improvements to the Property made by such
Member pursuant to Section 3.2(d),.
6.7 Non-Solicitation. No Member shall solicit, divert, hire, or induce,
or attempt to solicit, divert, or hire any of the other's employees who are
providing substantially full-time services to such party while they are Members
of the Company or affiliated with any Member of the Company.
6.8 Confidentiality. Each Member agrees to keep confidential and not
use, reveal, provide, or transfer to any third party any confidential
information ("Confidential Information") it obtains or has obtained concerning
19
any other Member, except (a) disclosure to actual or prospective sources of debt
or equity funding for such Member, including their legal, accounting, and other
advisors, (b) to the extent that disclosure to a third party is required by
applicable law; (c) information that, at the time of disclosure, is generally
available to the public (other than as a result of a breach of this Agreement or
any other confidentiality agreement to which the party is subject or which it
has knowledge), as evidenced by generally available documents or publications;
(d) information that was in its possession prior to disclosure (as evidenced by
appropriate written materials) and was not acquired directly or indirectly from
the other Members; (e) to its employees, consultants, or advisors for the
purposes of carrying out their duty hereunder to the extent disclosure is
necessary or advisable; (f) to third parties to the extent necessary to enforce
this Agreement; provided, however, that in the case of disclosure pursuant to
(e), the party or parties to whom disclosure is made shall agree to be bound by
this confidentiality provision. The obligation of each Member not to disclose
Confidential Information except as provided herein shall not be affected by
either the termination of this Agreement or the resignation or removal of any
Member of the Company.
Article VII
Transfers of Member Interests
7.1 Assignment of Member's Interest. Subject to the provisions of this
Article VII, a Member may assign or transfer that Member's interest in the
Company at any time, either voluntarily by an instrument in writing or
involuntarily by court order or by operation of law. Upon the assignment or
transfer of a Member's interest in the Company, (i) the Company shall not be
required to recognize any such assignment or transfer until the Company has
received written notice of the same; (ii) no such assignment or transfer of an
interest in the Company, whether voluntary or involuntary, shall of itself,
dissolve the Company; (iii) the assignee or transferee of the Member's interest
in the Company shall not thereby become entitled to vote or otherwise
participate in the management of the Company's business and affairs, or to
require any information or accounts of Company transactions, or to inspect the
Company books and records, or to become a Member; (iv) the assignee or
transferee shall only be entitled to receive, in accordance with the contract or
order of assignment or transfer, the share of profits or other compensation by
way of income and the return of contributions to which the assigning Member
would otherwise be entitled under this Agreement and, in case of the winding-up
of the Company, the assignee or transferee shall be entitled to receive such
distributions as would otherwise be made to the assigning Member.
7.2 Admission as Substituted Member. With the exception of permitted
transfers as provided in Section 7.7 of this Agreement, no purchaser, assignee
or other transferee (by conveyance, operation of law or otherwise) of all or any
part of an interest in the Company shall have the right to become a substituted
Member in place of that person's seller, assignor or transferor, and, thereby,
become entitled to vote and participate in the management of the business and
affairs of the Company, unless all of the following conditions are satisfied
20
(all subsequent references in this agreement to "assignor" and "assignee" shall
be construed to include sellers and purchasers, transferors and transferees,
donors and donees, and otherwise, as the case may be):
(a) The fully-exercised and acknowledged written instrument or
order of sale, assignment or transfer, which sets forth the intention
of the assignor that the assignee become a substituted Member in that
Member's place, has been filed with the Company;
(b) The assignor and assignee execute and acknowledge such
other instruments as the Members may from time to time reasonably
require, in order to effect such admission, including the written
acceptance and adoption by the assignee of the provisions of this
Agreement;
(c) The assignee shall bear all reasonable expenses incurred
in effecting the substitution; and
(d) Members (other than the assignor) have consented in
writing to the substitution, which consent shall be exercisable in the
Member's sole discretion.
7.3 Right of First Refusal to Purchase Units.
(a) If any Member desires to assign, transfer or otherwise
dispose of all or any portion of such Member's interest in the Company
for value other than in accordance with the provisions of Section 7.4,
the other Member shall have the option to purchase all or any part of
such interest.
(b) The Member(s) desiring to so dispose of its Transferable
Interest (a "Transferring Member") shall give written notice (a
"Transfer Notice") to the other Member setting forth (i) that the
Transferring Member desires to transfer its Units or other interest in
the Company (the "Transferable Interest"); (ii) the identity and
address of the proposed purchaser or other transferee thereof; (iii)
that the Transferring Member has received a bona fide offer for all or
a portion of the Transferable Interest, if a sale is contemplated; (iv)
the cash and other consideration (per Unit and in the aggregate) to be
received by the Transferring Member in connection with such
disposition; (v) a true copy of the offer or agreement, if any, for
such sale or other disposition and a certification by the Transferring
Member that, to the best of his knowledge and belief, the offer or
agreement is genuine and in all respects what it purports to be; (vi)
an offer to sell to the other Member the Transferable Interest in
accordance with this Section 7.3; and (vii) such other information as
may be necessary or desirable in order to afford to the other Member
the benefits intended to be conferred by this Section 7.3. To the
extent the terms of such sale or other transfer provide for the receipt
by the Transferring Member of consideration other than cash or cash
equivalents, the Transfer Notice shall also include a fair market
appraisal of such consideration prepared by a qualified independent
appraiser.
21
(c) The other Member shall have ten (10) days after the
effective date of the Transfer Notice to elect to purchase all, but not
less than all, of the Transferable Interest, without regard to whether
the Transferring Member proposed initially to sell only a portion of
such Transferring Member's Units or other interest in the Company.
(d) If the other Member has timely elected to purchase all of
the Transferable Interest, then the other Member shall purchase all,
but not less than all, of the Transferable Interest, on a date and at a
time designated by the other Member in a written notice to be given at
least two (2) days in advance to the Transferring Member by the other
Member, and at the principal place of business of the Company. At the
closing, the Transferring Member shall deliver certificates or other
evidence of ownership representing the Transferable Interest being
purchased, duly endorsed in blank or accompanied by duly executed
transfer documents acceptable to the other Member.
(e) The purchase by the other Member shall be at the price per
Unit or per percentage interest and upon the same terms and conditions
as contained in the Transfer Notice unless the parties shall agree
otherwise; provided, however, that if the Transfer Notice provides for
payment of all or any portion of the purchase price by delivery of
consideration other than cash or cash equivalents, the other Member may
make payment of such portion of the purchase price in cash or cash
equivalents in the amount of the fair market value of such non-cash
consideration as set forth in the appraisal accompanying the Transfer
Notice. If, however, the other Member electing to purchase the
Transferable Interest shall object to such appraisal of the non-cash
consideration within the period set forth above for electing to
purchase the Transferable Interest, the other Member shall within such
period select an independent appraiser to determine such fair market
value. In the event that the independent appraisers selected by each of
the Transferring Member and the other Member cannot agree on the fair
market value, then the two independent appraisers shall mutually select
a third independent appraiser to determine the fair market value, and
the value selected by such third independent appraiser shall be binding
on all of the parties hereto. Each such independent appraiser may use
any customary method of determining fair market value. Each party shall
bear the cost of the independent appraiser selected by that party, and
the cost of the independent appraiser, if any, mutually selected by the
two independent appraisers shall be paid one-half by the Transferring
Member and one-half by the other Member electing to purchase.
(f) If the other Member does not timely elect to purchase all
of the Transferable Interest pursuant to this Section 7.3, the
Transferring Member, within thirty (30) days after the expiration of
the applicable option exercise period, may transfer the Transferable
Interest to the purchaser or other transferee named in the Transfer
Notice for the consideration and on the other terms set forth in the
Transfer Notice and not otherwise. Upon failure of the Transferring
Member to effect such transfer pursuant to the terms and conditions
contained in the Transfer Notice within such thirty (30)-day period,
22
the right to transfer such interest shall lapse, and any desired
transfer thereafter shall be made only upon compliance again with the
notice and election procedures of this Section 7.3.
(g) Purchasing Members shall become substituted Members
respecting interests purchased under this Section 7.3 as soon as the
purchase has been accomplished according to the terms hereof. Any other
purchaser or transferee of a Transferring Member's interest shall not
be entitled to become a substitute Member except as provided in Section
7.2.
7.4 Encumbrances.
(a) Notwithstanding any other provision in this Article VII
respecting the transfer of a Member's interest in the Company in other
circumstances, in the event that any Member (an "Encumbering Member")
desires hereafter to encumber in any way all or any part of its Units
or the capital improvements of such Encumbering Member on or
appurtenant to the Property as contemplated by Section 3.2(d), it shall
be able to do so only if it gives written notice (an "Encumbrance
Notice") to the other Member at least 30 days prior to granting or
otherwise creating such encumbrance and obtains the written consent of
the other Member to such encumbrance, which consent may be granted or
withheld at the sole discretion of such other Member. The Encumbrance
Notice shall set forth or otherwise include (i) the number or other
amount of Units or the capital improvements of such Encumbering Member
on or appurtenant to the Property as contemplated by Section 3.2(d)
that the Encumbering Member desires to encumber (the "Collateral");
(ii) a description of the proposed encumbrance; (iii) the identity and
address of the person to whom or for whose benefit such encumbrance is
to be granted or created (the "Secured Party"); (iv) the amount of the
indebtedness (the "Secured Indebtedness") to be secured by such
encumbrance and the principal terms thereof to be secured by such
encumbrance; and (v) a true copy of the definitive Secured Party
Undertaking (hereafter defined) duly executed by the Secured Party.
(b) The Secured Party Undertaking (herein so called) shall
evidence the obligation of the Secured Party (or any assignee or
successor thereof), before taking any action to enforce any right which
the Secured Party may have to execute on such encumbrance, including a
conveyance in lieu of foreclosure, against the Collateral, to (i) give
written notice (a "Sale Notice") to the other Member and Refinery
Technologies, Inc. ("RTI") and (ii) afford to the other Member and RTI
successive options to purchase the Collateral and the right to notice
of any execution or foreclosure sale or conveyance in lieu thereof and
as hereinafter provided in this Section 7.4.
(c) The Sale Notice shall set forth (i) the identity and
address of the Encumbering Member or other then current holder of the
Collateral; (ii) the number or other amount of Units or the capital
improvements of such Encumbering Member on or appurtenant to the
Property as contemplated by Section 3.2(d) then comprising the
Collateral; (iii) the fair market value of such Collateral as
23
determined by a qualified independent appraiser engaged by the Secured
Party; and (iv) the identity and address of the Secured Party.
(d) During the period consisting of 30 days after the delivery
of the Sale Notice to the other Member and RTI and the date of the
proposed foreclosure sale or conveyance in lieu thereof as provided in
subparagraph (c) above, first the other Member and, if not exercised by
such other Member, then RTI shall have the right to purchase all, but
not less than all, of the Collateral from the Secured Party at a price
agreed to by them or, in the absence of such agreement, at the fair
market value of such Collateral as set forth in the Sale Notice. If,
however, the other Member or RTI shall object to such appraisal of the
Collateral within five days after receipt of such Sale Notice, the
other Member (but not RTI) shall within such five days appoint an
independent appraiser to determine such fair market value. In the event
that the independent appraisers selected by each of the Secured Party
and the other Member cannot agree on the fair market value, then the
two independent appraisers shall mutually select a third independent
appraiser to determine the fair market value, and the value selected by
such third independent appraiser shall be binding on all of the parties
hereto. Each such independent appraiser may use any customary and
accepted method of determining fair market value. The Secured Party and
the other Member each shall bear the cost of the independent appraiser
selected by it, and the cost of the independent appraiser, if any,
mutually selected by the two independent appraisers shall be paid
one-half by the Secured Party and one-half by the other Member. The
election of the other Member or RTI to purchase the Collateral shall be
evidenced by its timely written notice to the Secured Party at its
address set forth in the Sale Notice. In the event both the other
Member and RTI both elect to purchase the Collateral, the election of
the other Member shall be accepted, and the Collateral shall be sold to
the other Member on the terms and conditions set forth herein. Capco's
and Foreco's rights under this Section 7.4 with respect to any sale of
the Collateral by Secured Party shall be in lieu of, and not in
addition to, Capco's, Foreco's and RTI's respective rights under the
Assignment and Agreement entered into September 11, 1998, a copy of
which is attached hereto as Exhibit "D" (the "Assignment and
Agreement"), which shall otherwise remain in full force and effect.
(e) If the Collateral is not sold to the other Member or RTI
in accordance with subparagraph (d) above, the Secured Party shall have
the right to take a conveyance in lieu of foreclosure or dispose of
such Collateral (w) at either private or public sale, (x) by way of one
or more contracts, (y) as a unit or in parcels, and (z) on any terms,
all as the Secured Party may determine; provided that such disposition,
including the method, manner, time, place and terms of sale are
commercially reasonable. All of the Collateral shall be offered and
sold separate from and not as part of a unit including other collateral
of the Secured Party.
(f) If all or any portion of the Collateral is to be sold to
the other Member or RTI in accordance with this Section 7.4, then such
sale shall be closed not more than 60 days after the determination of
24
the purchase price in accordance with Section 7.4(d) on a date and at a
time designated by the Secured Party in a written notice given by the
Secured Party to the purchasing other Member or RTI, as the case may
be. On such date and at such time, payment of such purchase price in
cash or other immediately available funds shall be made to the Secured
Party at its office, against receipt of documents evidencing and
assigning to the purchasing Company, other Members or RTI, as the case
may be, the Collateral being purchased and all encumbrances securing
the same (or corresponding part thereof proportional to the Secured
Indebtedness so purchased), without restriction.
(g) If the sale to the other Member or RTI, as the case may
be, is not closed within the 60-day period provided for in subparagraph
(f) of this Section 7.4, Secured Party shall be entitled to exercise
its rights under paragraph (e) of this Section 7.4; provided that RTI
shall not have the right to exercise its rights under the Assignment
and Agreement more than once. Any transfer of any or all of the
Collateral upon foreclosure by the Secured Party following compliance
with the preceding provisions of this Section 7.4 shall thereafter
continue to be subject to the provisions of this Agreement, and the
transferee shall assume all obligations hereunder.
(h) Upon compliance by the Secured Party with the provisions
of this Article VII, such Secured Party, or the purchaser on any
foreclosure sale, shall be admitted as a Member of the Company on its
written notice to the Company of its election to become a Member,
without the consent of either the Company or any other Member.
7.5 Purchase of Specialized Improvements. If, upon the withdrawal of a
Member from the Company, whether in connection with a transaction described in
Section 7.3 or otherwise but other than as provided in and in accordance with
Section 7.4, the other Member shall have the option to purchase any equipment
and other improvements (the "Specialized Improvements") at the Property that
were funded solely by the withdrawing Member, were treated as owned by such
withdrawing Member and not by the Company, and respecting which the withdrawing
Member was not treated as having made a contribution to the capital of the
Company pursuant to Section 3.2. The price of such purchase shall be determined
by the mutual consent of the withdrawing Member and the other Member. If the
other Member elects not to purchase the Specialized Improvements, the
withdrawing Member shall have the right to (a) if the withdrawal is in
connection with a transaction described in Section 7.3 respecting which the
other Member did not elect to purchase the Transferable Interest, sell the
Specialized Improvements together with the Transferable Interest, (b) remove the
Specialized Improvements from the Property and restore the premises in all
material respects to their condition prior to the construction or installation
of the Specialized Improvements at the sole cost of the withdrawing Member,
without liability for consequential damages, or (c) abandon the Specialized
Improvements to the Company.
25
7.6 Option to Purchase Interest Upon Certain Events.
(a) If all or any portion of a Member's interest is proposed
to be transferred other than as provided in and in accordance with
Section 7.4 pursuant to (i) an adjudication of the Member as a
bankrupt; (ii) an entry of an order, judgment or decree by any court of
competent jurisdiction appointing a trustee, receiver or liquidator of
the assets of the Member; (iii) an assignment or attempted assignment
by the Member for the benefit of creditors; or (iv) the institution or
attempted institution of voluntary bankruptcy proceedings by the
Member, then, in any such event (an "Option Event"), the Company and,
to the extent the Company does not elect to purchase all of such
interest, the other Member shall have the option, but not the
obligation, to purchase from such Member (or from such Member's legal
successor(s)) (the "Subject Member") all or any portion of the Subject
Member's interest in the Company transferred, as the Company or the
other Member may elect, without respect to whether all or only a
portion of such Member's interest was initially subject to the proposed
transfer.
(b) Not later than ninety (90) days after the occurrence of an
Option Event, the Subject Member (or the Subject Member's successor(s))
shall notify the Company of such occurrence, which notice shall set
forth (i) a description of the Option Event; (ii) the Units (the
"Option Units") that the Company and the other Member have the right to
purchase pursuant to this Section 7.6 by reason of such Option Event;
(iii) the identity of the Subject Member; and (iv) such other
information as may be necessary or desirable in order to afford to the
Company and the other Member the benefits intended to be conferred by
this Section 7.6. Following the receipt of such notice, the Company
shall give like notice to the other Member of the occurrence of the
Option Event and of its option to purchase the Subject Member's
interest pursuant to this Agreement.
(c) The Company shall have ten (10) days after the effective
date of the Option Notice to elect to purchase all or any part of the
Option Units. To the extent the Company does not elect to purchase all
of such interest, the other Member shall have twenty (20) days after
the date of the expiration of the Company's option to elect to purchase
all or any part of the Option Units, such election to be made by
delivering written notice of such election to the Subject Member within
such twenty (20)-day period.
(d) If the Company and/or the other Member have timely elected
to purchase Option Units, then the Company and the electing other
Member shall purchase that part of the Option Units that it has elected
to purchase within five (5) days after expiration of the applicable
option exercise period on a date and at a time designated by the
Company and/or other Member in a written notice to be given at least
two (2) days in advance to the Subject Member by the Company and/or
other Member, and at the principal place of business of the Company.
(e) The purchase price for the Option Units purchased by the
Company or other Member shall be the fair market value ("FMV") of the
interest as of the date of the occurrence of the Option Event as
determined herein. The Company shall pay for and obtain an independent
26
appraisal of all real estate. Listed securities shall be valued at the
latest closing price for such securities. All other assets shall be
valued at their book value, net of depreciation and amortization. The
FMV of the interest being purchased shall be based on the relative
percentage of ownership of the Company based on the total number of
Units outstanding as of the valuation date multiplied by the sum of (i)
the fair market value of the real estate as determined by appraisal;
plus (ii) the market price for any listed securities; plus (iii) the
book value, net of depreciation and amortization, of all other assets;
minus (iv) total Company liabilities at the valuation date.
(f) Payment by the Company or the Members of the purchase
price for Option Units shall be made in cash or other immediately
available funds at closing.
(g) If and to the extent that the Company and/or the other
Member do not purchase all of the Option Units pursuant to the
preceding provisions of this Section 7.6, then the remaining Option
Units shall be transferred to the person or persons to whom the same
would have passed in the absence of the provisions of this Agreement.
7.7 Option to Purchase Property.
(a) If the Company desires to assign, transfer or otherwise
dispose of the Property for value, Capco and Foreco shall have the
option, exercisable first by Capco and thereafter by Foreco, to
purchase all of the Property desired to be sold by the Company. If the
Company has not received an offer from a third party for the purchase
of the Property, the price and terms of such sale shall be as agreed to
by Capco or Foreco and the Company.
(b) If the Company has received an offer from a third party
purchaser, the Company shall notify Capco and Foreco setting forth (i)
the identity and address of the proposed purchaser or other transferee
thereof; (ii) that the Company has received a bona fide offer therefor,
if a sale is contemplated; (iii) the cash and other consideration to be
received by the Company in connection with such disposition; (iv) a
true copy of the offer or agreement, if any, for such sale or other
disposition and a certification by the Company that, to the best of its
knowledge and belief, the offer or agreement is genuine and in all
respects what it purports to be; (v) an offer to sell the Property to
Capco and Foreco in accordance with this Section 7.7; and (vi) such
other information as may be necessary or desirable in order to afford
to Capco and Foreco the benefits intended to be conferred by this
Section 7.7. To the extent the terms of such sale or other transfer
provide for the receipt by the Company of consideration other than cash
or cash equivalents, the notice shall also include a fair market
appraisal of such consideration prepared by a qualified independent
appraiser.
(c) Capco shall have ten (10) days after the effective date of
the notice to elect to purchase all of the Property. To the extent
Capco does not elect to purchase all of the Property, Foreco shall have
27
ten (10) days after the date of the expiration of Capco's option to
elect to purchase all of the Property. Any such election to be made by
delivering written notice of such election to the Company within such
applicable ten (10)-day period.
(d) If Capco or Foreco has timely elected to purchase all of
the Property, then such electing party shall purchase the Property
within five (5) days after expiration of the applicable period set
forth herein, on a date and at a time designated by the electing party
in a written notice to be given at least two (2) days in advance to the
Company by the electing party, and at the principal place of business
of the Company. At the closing, the Company shall deliver a special
warranty deed and other transfer documents acceptable to the electing
party duly executed on behalf of the Company.
(e) The purchase by the electing party shall be at the price
and upon the same terms and conditions as contained in the notice
unless the Company and all Members shall agree otherwise; provided,
however, that if the notice provides for payment of all or any portion
of the purchase price by delivery of consideration other than cash or
cash equivalents, the electing party may pay such portion of the
purchase price in cash or cash equivalents in the amount of the fair
market value of such non-cash consideration as set forth in the
appraisal accompanying the notice. If, however, the electing party
shall object to such appraisal of the non-cash consideration within the
period set forth above for electing to purchase the Property, the fair
market value shall be determined as set forth in Section 7.3(f).
(f) If neither Capco nor Foreco timely elects to purchase all
of the Property pursuant to this Section 7.7, the Company, within
thirty (30) days after the expiration of the applicable option exercise
period, may transfer the Property to the purchaser or other transferee
named in the notice for the consideration and on the other terms set
forth in the notice and not otherwise. Upon failure of the Company to
effect such transfer pursuant to the terms and conditions contained in
the notice within such thirty (30)-day period, the right to transfer
such interest shall lapse, and any desired transfer thereafter shall be
made only upon compliance again with the notice and election procedures
of this Section 7.7.
7.8 Permitted Transfers. Nothing in this Agreement shall be deemed to
prohibit or limit the sale, assignment or transfer from a Member of all or any
part of the Member's interest in the Company to
(a) another existing Member of the Company,
(b) either (i) a Member's wholly owned subsidiary corporation
or limited liability company (ii) a limited partnership of which only
entities described in clause (i) hereof are the general partners, (iii)
a limited liability company of which only entities described in clause
(i) hereof are the managers;
28
(c) a general partnership or joint venture consisting only of
entities described in clauses (i) through (iii) of subparagraph (b),
(d) in the case of Capco, the transfer to CAD; or
(e) any other person to which all other Members consent in
writing;
provided, that in each case the interest in the Company so sold, assigned or
transferred continues to be subject to the provisions of this Agreement in all
respects. No such sale, assignment or transfer shall create a right, interest or
power in any other Member, or in the Company, or any other person, to purchase
or acquire such interest in the Company, nor shall the Member who desires to
sell, assign or transfer all or any part of that Member's interest in the
Company to another Member be required to obtain the prior consent of the other
Members or the Company or to offer such interest to the other Members or to the
Company.
Article VIII
Dissolution and Termination
8.1 Events of Dissolution. The Company shall, without further action of
the Members, be dissolved upon the first to occur of the following:
(a) The dissolution of the Company by judicial decree;
(b) The merger or consolidation of the Company with another
limited liability company or other entity where the Company is not the
surviving entity;
(c) The sale of all or substantially all of the assets of the
Company;
(d) December 31, 2048; or
(e) The written consent to dissolve of Members holding in the
aggregate at least 75% of the outstanding Units.
Unless approved by Members holding, in the aggregate, at least 75% of the
outstanding Units, no Member shall have the right, and all Members hereby agree
not, to dissolve, terminate, partition, or liquidate, or to petition a court for
the dissolution, termination, partition, or liquidation of, the Company except
as provided in this Agreement.
8.2 Winding Up and Liquidation. Upon the occurrence of an event of
dissolution as provided in Section 8.1, the Company shall be wound up and
liquidated as rapidly as business circumstances will permit by selling Company
assets and distributing the proceeds from any such sale or sales of the assets
of the Company as follows and in the following order of priority:
29
(a) to pay the expenses of winding up and to pay or provide
for payment of all amounts owing by the Company to creditors other than
Members;
(b) to establish any reserves which the Members may deem
necessary for any anticipated, contingent or unforeseen liabilities or
obligations of the Company arising out of, or in connection with, the
conduct of the Company business;
(c) to pay all amounts owing by the Company to any Member as a
creditor;
(d) thereafter to the Members in accordance with their
Ownership Percentages up to the amount of $2,500,000; and
(e) then in equal portions to Capco and Foreland.
8.3 Authority to Wind Up. The winding up of the Company and liquidation
of its assets shall be conducted by the Manager or, if there is no Manager, as
determined by the remaining Members.
Article IX
Books of Account, Accounting, Reports, and Banking
9.1 Books of Account. The Company books and records of account shall be
maintained at the principal office of the Company or at such other location and
by such person or persons as may be designated by the Manager. The Company shall
pay the direct expense of maintaining its books of account.
9.2 Method of Accounting. The Company books of account shall be
maintained and kept on a basis of accounting determined by the Members and
consistently applied.
9.3 Financial Statements. Upon receipt of a written request from any
Member, within ninety (90) days after the close of each Fiscal Year of the
Company, the Company shall provide to each Member either unaudited or audited
(as determined by the Members in their reasonable discretion) financial
statements which fairly represent the financial condition of the Company as of
the end of such Fiscal Year. Such financial statements shall indicate the share
of each Member in the net income, net loss, depreciation and other relevant
fiscal items of the Company for such Fiscal Year. Each Member shall be entitled
to receive copies of all federal, state and local income tax returns and
information returns, if any, which the Company is required to file.
Additionally, quarterly, to the extent both requested by any Member and
regularly prepared by the Company, the Company shall make available to any
Member copies of the Company's financial documentation respecting the prior
quarter, including, without limitation, balance sheets and income statements.
9.4 Bank Accounts. The funds of, and all monies actually received by
the Company shall be deposited in a separate bank account or accounts in a
30
national or state banking institution in the name of the Company. The Manager or
agent of the Company shall be authorized to draw checks upon such account or
accounts; provided, however, that no funds shall be withdrawn from any such
account or accounts except for Company purposes.
9.5 Tax Returns. The Manager shall, for each Fiscal Year, file or
caused to be filed at the expense of the Company and on behalf of the Company, a
partnership return within the time prescribed by law (including extensions) for
such filing and shall deliver to each Member a copy of such Member's K-1
relating to such return. The Manager shall also file or caused to be filed at
the expense of the Company and on behalf of the Company such state and/or city
income tax returns as may be required by law.
9.6 Audit. Each Member shall have the right at all reasonable times
during usual business hours to audit, examine, and make copies of or extracts
from the books of accounts and other records of the Company. Such right may be
exercised through any agent or employee of such Member designated by such
Member. Each Member shall bear all expenses incurred in any examination made for
such Member's account.
9.7 Meetings. The Company shall hold an annual meeting of the Members
at a time, date and place as determined by the Members. Special meetings of the
Members, for any purpose or purposes described in the meeting notice, may be
called by the Manager or by Members holding in the aggregate at least 33% of the
outstanding Units.
9.8 Records. The Company shall keep at its place of business the
following records: (a) a current list in alphabetical order of the full name and
last known business street address of each Member; (b) a copy of the stamped
Articles of Organization and all certificates of amendment thereto, together
with executed copies of any powers of attorney pursuant to which any certificate
of amendment has been executed; (c) copies of the Company's federal, state, and
local income tax returns and reports, if any, for the three (3) most recent
fiscal years; (d) copies of any financial statements of the Company for the
three (3) most recent fiscal years; (e) a copy of this Agreement plus all
amendments thereto; (f) unless otherwise set forth in the Articles of
Organization or this Agreement, a written statement of (i) the amount of cash
and a description and statement of the agreed value of the other property or
services contributed or agreed to be contributed by each Member, (ii) the times
at which, or events on the happening of which, any additional contributions
agreed to be made by each Member are to be made, (iii) the right of any Member
to receive distributions which include a return of all or any of the Member's
contributions, and (iv) any event upon the happening of which the Company is to
be dissolved and its affairs wound up. These records shall be subject to
inspection and copying at the reasonable request, and at the expense, of any
Member during ordinary business hours.
Article X
Miscellaneous
10.1 Notices. All notices and other communications made or required to
be given pursuant to this Agreement shall be in writing and shall be deemed
given if delivered personally or by facsimile transmission (if receipt is
confirmed by the facsimile operator of the recipient), or delivered by overnight
31
courier service or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice; provided
that notices of a change of address shall be effective only upon receipt
thereof):
If to Capco, to: Crown Asphalt Products Company
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Foreco, to: Foreland Asphalt Corporation
0000 Xxxxx 0000 Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice hereunder delivered in person or by facsimile (if receipt is
confirmed by the facsimile operator of the recipient) shall be deemed given on
the date thereof; any notice by registered or certified mail shall be deemed
given three (3) days after the date of mailing; and any notice by overnight
courier shall be deemed given two (2) days after shipment or the date of
receipt, whichever is earlier.
10.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Members, their successors and assigns.
10.3 Duplicate Originals. For the convenience of the Members, any
number of counterparts hereof may be executed, and each of such counterparts
shall be deemed to be an original instrument, and all of which, taken together,
shall constitute one agreement.
10.4 Construction. The title of articles and sections herein have been
inserted as a matter of convenience for reference only and shall not control or
affect the meaning or construction of any of the terms or provisions herein.
10.5 Governing Law. This Agreement is entered into and shall be
governed by the laws of the state of Utah. To the extent permitted by the Act
and other applicable law, the terms and provisions of this Agreement shall
control in the event of any conflict between such terms or provisions and the
Act.
10.6 Other Instruments. The parties hereto covenant and agree that they
will execute such assumed name certificates and other and further instruments
32
and documents which are or may become necessary or convenient to effectuate and
carry out the purposes of the Company created by this Agreement.
10.7 Legal Construction. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if the invalid, illegal or unenforceable provision had never been
contained herein. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be automatically added as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
10.8 Gender and Number. Wherever the context shall so require all words
herein in any gender shall be deemed to include the masculine, feminine or
neuter gender, all singular words shall include the plural and all plural words
shall include the singular.
10.9 Reliance. No person dealing with any Manager shall be required to
determine his authority to make any commitment or undertaking on behalf of the
Company, nor to determine any fact or circumstances bearing upon the existence
of such authority. In addition, no purchaser of any asset of the Company from a
Manager shall be required to see to the application or distribution of revenues
or proceeds paid or credited in connection therewith, unless such purchaser
shall have received notice affecting same.
10.10 Entirety and Modifications. This Agreement embodies the entire
agreement between the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter of
this Agreement. No term, condition or provision of this Agreement shall be
altered, amended or modified without the prior written consent of Members
holding at least 75% of the issued and outstanding Units, except as provided to
the contrary in this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
as of the date first above written.
Capco:
CROWN ASPHALT PRODUCTS COMPANY
By ______________________________
Xxx Xxxxxx, President
Foreco:
FORELAND ASPHALT CORPORATION
By ______________________________
Xxxxx X. Xxxxxx, President
33
Exhibit A.........Property Description
Exhibit B.........Memorandum of Closing
Exhibit C.........Use of Facilities
Exhibit D.........Assignment and Agreement
34
Exhibit "A"
to
Operating Agreement
of
Cowboy Asphalt Terminal, L.L.C.
Property Description
The following described property situated in Xxxxx County, state of Utah:
BEGINNING AT A POINT SOUTH 89(degree)56'09" EAST 777.48 FEET ALONG THE QUARTER
SECTION LINE FROM THE WEST QUARTER CORNER OF SECTION 35, TOWNSHIP 2 NORTH, RANGE
1 WEST, SALT LAKE MERIDIAN, IN THE CITY OF XXXXX CROSS, AND RUNNING THENCE NORTH
0(degree)23'18" WEST 236.9 FEET; THENCE ALONG THE BOUNDARY OF SKYPARK INDUSTRIAL
PARK SOUTH 89(degree)56'09" EAST 651.08 FEET AND SOUTH 0(degree)23'18" EAST
1056.4 FEET TO THE NORTH LINE OF A STREET; THENCE WEST 648.3 FEET ALONG THE
NORTH LINE OF SAID STREET TO A POINT SOUTH 0(degree)35' WEST OF THE POINT OF
BEGINNING; THENCE NORTH 0(degree)35' WEST 820.1 FEET, MORE OR LESS, TO THE POINT
OF BEGINNING. 00-000-0000
X-0
Xxxxxxx "X"
to
Operating Agreement
of
Cowboy Asphalt Terminal, L.L.C.
Memorandum of Closing
B-1
Exhibit "C"
to
Operating Agreement
of
Cowboy Asphalt Terminal, L.L.C.
Use of Facilities
C-1
Exhibit "D"
to
Operating Agreement
of
Cowboy Asphalt Terminal, L.L.C.
Assignment and Agreement
D-1
