OPERATING AGREEMENT OF TERRA INVESTMENT FUND LLC
Exhibit 3.37
This Operating Agreement is being entered into this 1st day of August, 2008, by and
between Terra Investment Fund LLC, an Oklahoma limited liability company (the “Company”) and its
Member.
ARTICLE I
DEFINITIONS
“Act” — The Oklahoma Limited Liability Company Act, as now in effect or as hereafter amended.
“Agreement” — This Operating Agreement.
“Articles of Organization” — The Articles of Organization of the
Company.
“Code” — The Internal Revenue Code of 1986, as amended.
“Company” — Terra Investment Fund LLC.
“Effective Date” — The date upon which the Articles of Organization of the Company
are filed with the Oklahoma Secretary of State.
“Event of Dissolution” — See Section 10.1.
“Majority
Vote ” — The affirmative vote of Members having in excess of 50% of all
votes entitled to be voted.
“Manager”
— Any Person designated as a Manager pursuant to this Agreement.
“Member” — Any Person who is a “member” of the Company as that term is defined in the Act.
“Net Income” or “Net Loss” — The net income or net loss with respect to any
accounting period of the Company determined in accordance with accounting principles generally and
consistently applied by the Company.
“Percentage Interest” — With respect to any Member as of the time referred to herein,
that Member’s ownership interest in the Company expressed as a percentage, determined by dividing
the total number of issued and outstanding Units in the Company into the number of Units owned by
that Member.
“Permitted Transferee” — See Section
9.2.
“Person” — Any natural person or legal
entity.
“Transfer” — The term “transfer”, or any tense thereof, whether or not capitalized, when used
in connection with the transfer of Units, shall include any transfer by sale, gift, exchange,
grant of a security interest, or other form of conveyance, whether voluntary or involuntary, by
operation of law or otherwise, during lifetime or at death.
“Unit” — An ownership interest in the Company as described in Article III.
“Unit Certificate” — See Section 2.8.
ARTICLE II
THE COMPANY
2.1 Formation. Upon filing the Articles of Organization of the Company in the office
of the Secretary of State of Oklahoma, the initial Member hereby forms the Company. The Company
shall take all other necessary or appropriate action, including the execution and filing of all
articles, amendments, certificates and other instruments as may be required from time to time to
comply with the Act and with all other laws governing the formation, operation, and continuation of
the Company in all jurisdictions where the Company conducts business.
2.2 Rules Governing the Company. The rights and obligations of the Members and the
business and affairs of the Company shall be governed first by the mandatory provisions of the Act
which may not be altered or varied, second by the Company’s Articles of Organization, third by this
Agreement, and fourth by the provisions of the Act which are not mandatory. In the event of any
conflict among the foregoing, the conflict shall be resolved in the order of priority set forth in
the preceding sentence.
2.3 Business. The Company is being formed to engage in the business of the ownership
and management of real and personal property of any kind or description, without Limitation, and
any other lawful investment or business activity permitted by the Act and to do all things
incidental thereto. The Managers may change the business of the Company at any time, and may add
one or more businesses or terminate one or more businesses as the Managers deem appropriate.
2.4 Place of Business. The principal place of business of the Company shall be 000
Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxx 00000, or at such other place as the Members shall designate from
time to time.
2.5
Term. The Company shall commence as of the Effective Date and shall continue until
it is dissolved and terminated as provided for in this Agreement, or as required under the Act.
2
2.6 Registered Agent. The name and address of the registered agent of the Company is
as follows:
| Name: | J. Xxxxxxxxx Xxxxx | |||
| Address: | Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx | |||
| 201 Xxxxxx X. Xxxx Ave. | ||||
| 1600 Bank of Xxxxxxxx Xxxxx | ||||
| Xxxxxxxx Xxxx, XX 00000 |
2.7 Title to Company Property. All property owned by the Company, tangible or
intangible, shall be deemed to be owned by the Company as an entity, and no Member shall have any
ownership of such property individually. The Company may hold any of its assets in its own name or
in the name of its nominee, which nominee may be one or more individuals, partnerships, trusts or
other entities.
2.8 Unit Certificates. The ownership of Units in the Company may be represented by a
certificate (a “Unit Certificate”) in such form as prepared and executed by the Manager. Each Unit
Certificate shall be imprinted in bold with a legend stating that transferability of the Unit
Certificate is subject to restrictions contained in this Agreement. The Manager shall maintain a
ledger showing the ownership of all outstanding Unit Certificates. Unit Certificates may be
transferred only as permitted in Article IX, below.
ARTICLE III
COMPANY CAPITAL
3.1 Capital Contributions, Issuance of Units, and Percentage Interests. The Members shall make
capital contributions to the Company in such amounts and at such times as are required by the
Managers in exchange for Units. The initial Members of the Company, the number of Units owned by
each Member, and their Percentage Interests are set forth on Schedule “A”. The Percentage
Interests may be adjusted upon the issuance of additional Units by the Company, the permissible
transfer of Units by a Member, or the redemption of Units by the Company.
3.2 Capital Accounts. Each Member’s capital accounts shall be maintained in accordance
with Treasury Regulation Section 1.704-1(b) and any other laws governing the proper maintenance of
capital accounts for limited liability companies.
ARTICLE IV
SHARING
4.1 Allocation of Net Income and Net Loss. For both capital account maintenance and
income tax purposes, all Net Income and Net Loss will be allocated in accordance with the
Percentage Interests of the Members.
3
4.2 Allocations in Connection with Shifts in Percentage Interests. In the event of a
shift in the Percentage Interests of any Members in the Company for any reason, the allocations
for that taxable year will be made by the Managers in their discretion to take into account the
varying Percentage Interests of the Members for that year in whatever reasonable and consistently
applied method the Managers choose in accordance with applicable Treasury Regulations.
ARTICLE V
DISTRIBUTIONS
5.1 Timing and Amount of Distributions. The Company shall from time to time distribute
to the Members such amounts as the Managers determine are available for distribution. Distributions
will only be made after the Company has set aside a reserve which should be retained for the
Company’s reasonable needs or for contemplated future business activities.
5.2 Sharing of Distribution. All distributions, other than distributions in
liquidation of the Company, shall be made in accordance with the Percentage Interests of the
Members. All liquidating distributions shall be made in proportion to and to the extent of the
capital account balances of the Members. A distribution will be deemed a liquidating distribution
if so classified by the Managers.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MANAGERS
6.1 Management by Managers. Except as otherwise provided in this Agreement, the
Managers shall have the full and exclusive power and authority to manage and control the Company’s
business and affairs and make all decisions on behalf of the Company. If only one Person is serving
as the Manager, then any reference to the “Managers” under this Agreement shall refer to that
Manager.
6.2 Appointment of Managers. As of the Effective Date, the Manager shall be Terra
International, Inc. The Members may remove any Manager or appoint one or more successor,
additional, or replacement Managers on such terms as they from time
to time may agree.
6.3 Compensation and Reimbursements. Managers may receive reasonable compensation for
their services as the Members deem appropriate. In addition, Managers will be reimbursed or
receive advances for all reasonable out-of-pocket expenses, costs, and other liabilities incurred
by the Managers on behalf of the Company in connection with the Company’s business.
6.4 Evidence of Manager’s Authority. Any Person transacting any business with the
Company may transact such business with a Manager, acting on behalf of the Company, without
necessity for inquiring into the authority of that Manager to so act on behalf of the Company,
unless that Manager does not have actual authority to act on behalf of the Company with respect to
that particular business and that Person has knowledge of the fact that the Manager lacks such
authority. The Company may from time to time prepare a certificate or designation of authority or
similar type document which may be used by a Manager when transacting business of the Company. When a
4
Manager executes any document on behalf of the Company, that Manager may do so by signing his/her
name, followed by the word “Manager.” The Managers may delegate certain duties, authority, and
responsibilities among themselves as they may unanimously agree. Any such delegation shall be in
writing and signed by all Managers.
6.5 Resignation. Any Manager of the Company may resign at any time as a Manager by
giving notice of such resignation to the Company. Any such resignation shall take effect at the
time specified therein or, if no time be specified, upon receipt thereof. The acceptance of such
resignation by the Company shall not be necessary to make the resignation effective.
6.6 Limitation of Liability. Each Manager’s liability to the Company and its Members
for monetary damages for breach of a fiduciary duty as a Manager shall be limited to the maximum
extent permitted by the Act and any other applicable law; provided, however, nothing contained
herein shall eliminate or limit the liability of a Manager: (i) for any breach of the Manager’s
duty of loyalty to the Company or its Members; (ii) for acts or omissions not in good faith or
which involve an intentional misconduct or a knowing violation of the law; and (iii) for any
transaction from which the Manager derived an improper personal benefit.
6.7 Officer Titles. In exercising the Manager’s rights, powers and authority as
Manager, the Manager may use the title “Manager”, “President” or any other title that, from time to
time, the Members may direct the Manager to use.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF MEMBERS
7.1 Limitation of Liability. Each Member’s liability shall be limited to the maximum
extent permitted by the Act and any other applicable law, except to the extent that such Member (i)
agrees in writing to any such liability or (ii) may be liable as expressly provided for in this
Agreement.
7.2 Rights of Members Relating to Company Information. Any Member of the Company shall
have the right upon demand and at such Member’s own expense to obtain, inspect, and make copies of
all Company books, files, and records required to be made available to Members under the Act.
7.3 Restrictions on Power to Bind the Company. Except as otherwise provided herein, no
Member shall have the authority or power to act on behalf of or to bind the Company or any other
Member or to take any action which would adversely affect the limited liability of a Member or
affect the status of the Company as a partnership for federal income tax purposes.
5
ARTICLE VIII
MEETINGS OF MEMBERS
8.1
No Requirement for Meetings. The Company shall not be required to hold any annual
or special meetings of the Members.
8.2 Meetings. A meeting of the Members for the purpose of transacting any business as
may come before the meeting shall be held at such place, on such date and at such time as shall be
designated by any Manager or by a Majority Vote of the Members of the Company. All decisions,
approvals or consents permitted or required to be made by Members shall be decided by a vote of the
Members or by written consent. Any matter submitted to a vote of the Members shall be decided by a
Majority Vote of all of the Members, except as otherwise provided herein.
8.3 Consent of Members in Lieu of Meeting. Any action that may be taken at any meeting
of Members may be taken without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the actions so taken, is signed by Members having not less than
the total Percentage Interests in the Company that would be necessary to authorize or take such
action at a meeting at which all Members entitled to vote thereon were present.
8.4 Chairman. A Manager shall act as Chairman of the meeting.
8.5 Voting. Each Unit shall be entitled to one vote. If there is more than one class
of Units, then the different classes of Units shall have such numbers of votes as have been
designated to that class. All decisions, approvals or consents permitted or required to be made by
Members shall be decided by a Majority Vote of the Members at a meeting of the Members or by
written consent in lieu of a meeting as provided for herein.
8.6 Proxies. Member entitled to vote at a meeting of Members or to express consent to
an action in writing without a meeting may authorize another Person or Persons to act for that
Member by proxy. To be valid, any such proxy must be in writing, signed by the Member giving the
proxy, setting forth the name of the Person or Persons to whom the proxy is given, dated, and
presented to the Chairman at the meeting. Any such proxy shall be valid and continue in effect
until the proxy is revoked. A proxy shall be revoked if notice of revocation is given in writing,
dated, executed by the Person who previously gave the proxy, and delivered to the Company. A proxy
shall also be deemed revoked at such time as the Company receives notice of the death, adjudication
of incompetency, or appointment of legal guardian of the Person who gave the proxy.
ARTICLE IX
TRANSFERS OF UNITS
9.1 General Restrictions on Transfers. Except as otherwise permitted in this
Agreement, no Member may make or suffer to be made any transfer (as defined in Article I) of all or
any part of that Member’s Units in the Company to any Person.
6
9.2
Permitted Transfers. The following transfers described in this Section 9.2 shall
be permitted transfers. Any Person to whom a Unit is transferred as permitted hereunder is referred
to as a “Permitted Transferee.” However, any permitted transfer hereunder shall be effective only
upon compliance with the requirements of Section 9.3. Any Permitted Transferee hereunder may become
a Member of the Company only upon compliance with Section 9.3.
9.2.1 To Other Members. Any Member may transfer all or any part of that Member’s
Units to any other Member without restriction.
9.2.2 To Others With Consent of Members. All or any part of a Member’s Units may be
transferred with the consent or ratification of a Majority Vote of the Members, determined by
excluding the Interest of the transferring Member, which consent or ratification may be withheld
for any reason.
9.3 Conditions to Effectiveness of a Transfer of an Interest. Any transfer permitted
under Section 9.2 above shall become effective and shall be recognized by the Company only if the
Permitted Transferee does each of the following to the satisfaction of the Company.
9.3.1 Pays all expenses to be incurred by the Company in connection with such transfer.
9.3.2 Executes such documents as are satisfactory to the Company excepting and adopting this
Agreement.
9.3.3 Satisfies the Company that the transfer is permissible under all applicable securities
laws and will not jeopardize the classification of the Company as a limited liability company for
federal income tax purposes.
9.3.4 Satisfies the Company that the transfer satisfies all of the requirements for transfers
contained herein and required by law.
ARTICLE X
DISSOLUTION
10.1 Dissolution. This Company shall be dissolved and its affairs shall be wound
up upon the occurrence of an “Event of Dissolution.” An Event of Dissolution shall occur upon the
earlier of:
10.1.1 the Majority Vote of all Members to dissolve the Company; or
10.1.2 the entry of a decree of judicial dissolution of the Company under the Act; or
7
10.1.3 the sale or disposition of substantially all of the business and operating
assets of the Company.
10.2 Dissolution of the Company. In the event the Company is to be dissolved, the
Company shall not be terminated and liquidated until the Company has filed Articles of Dissolution
with the Secretary of State of Oklahoma and the assets of the Company shall have been distributed
in liquidation. Notwithstanding the dissolution of the Company, prior to the termination of the
Company, the business and affairs of the Company shall continue to be governed by this Agreement.
10.3 Manner of Liquidation. The Managers shall have full and complete authority to
liquidate the Company’s assets and liabilities in whatever manner they deem appropriate.
Liquidating distributions need not be of a pro rata interest in each item of property distributed,
but instead distributions of cash or properties can be made non-pro rata as determined by the
Managers. All expenses of termination and liquidation shall be treated as Company expenses. In the
event there is no Manager then serving, then the Members shall appoint a Person, which may but need
not be a Member, to act as the liquidating agent of the Company.
10.4 Determination of Capital Accounts. Upon liquidation of the Company, all Net
Income and Net Loss from the sale or exchange of Company assets shall be credited and charged to
the Members for federal income tax purposes and capital account purposes as provided for in Article
IV and all required capital account adjustments shall be made. All assets to be distributed in kind
and not actually sold or exchanged shall be deemed sold or exchanged with the Net Income and Net
Loss from such deemed sale or exchange being credited and charged to the Members for federal income
tax purposes and capital account purposes as provided for in Article IV. All withdrawing accounts
shall be closed into the capital accounts.
10.5 Liquidating Distributions. All liquidation proceeds shall be distributed in the
following order of priority:
10.5.1 to the payment of all liabilities owed to creditors of the Company, including
liabilities owed to Members;
10.5.2 then any remainder shall be paid in proportion to and to the extent of the relative
capital account balances of the Members in accordance with Section 5.2.2.
ARTICLE XI
GENERAL
11.1 Counterparts. This Agreement may be executed in any number of counterpart
signature pages, any one of which shall be considered an original. All counterpart signature pages
shall be but one agreement, and shall be binding upon each party who executes any counterpart.
8
11.2 Benefit. This Agreement shall be binding and inure to the benefit of the Members
and their respective personal representatives, heirs, executors, administrators, successors and
assigns, and Successor in Interest.
11.3 Notices. Any notice either contemplated or required hereunder may be given either
by letter or facsimile addressed to the Member at his address as shown on the books of the Company
and deposited postage prepaid, certified or registered mail, in the United States Post Office, or
by personal delivery. Any change of address shall be effective only
if furnished to the Company
either by letter, sent by certified or registered mail, or by personal delivery. Letters shall be
deemed received three (3) business days from date of postmark and facsimile transmission, and
notice by personal delivery shall be deemed received on the first business day following the date
of personal delivery or facsimile transmission, absent proof to the contrary.
11.4 Amendments. Except as otherwise provided herein, this Agreement may be amended by
the vote of all the Members.
11.5 Partition. No Member nor any successor-in-interest to any Member shall have the
right while this Agreement remains in effect to have any portion of the assets of the Company
partitioned or to file a complaint or institute any proceeding at law or in equity to have such
assets partitioned.
11.6 Prior Agreements. This Agreement supersedes all prior agreements covering the
same subject matter.
11.7 Section 754 Election to Adjust Basis. The Company may, upon the affirmative vote
of the Members, elect to adjust the basis of Company property with respect to any Member where and
as permitted under Section 754 of the Code. As a condition to making a Section 754 election, the
Managers shall require the affected Member to pay all expenses associated with making the election,
making the basis adjustment, and accounting for the separate basis adjustments on an ongoing basis.
11.8 Approvals and Consents Must Be in Writing. Whenever this Agreement calls for the
consent or approval of any Member or Members, such consent or approval shall be effective only if
it is in writing and signed by or on behalf of the Member who is granting such consent or approval,
unless the circumstances clearly indicate that such consent or approval is intended to be given by
the Member other than in writing.
11.9 Construction of Terms. References to a term in the singular or as him, her, it,
itself, or other like references shall also, where the context so requires, be deemed to include
the plural or the masculine or feminine reference, as the case may be.
11.10 Headings. The headings and underlined paragraph titles are for guidance only and
shall have no significance in the interpretation of this Agreement.
11.11 Governing Law. This Agreement and the rights of the parties hereunder will be
governed by, interpreted, and enforced in accordance with the laws of the State of Oklahoma.
9
11.12 Severability. The invalidity or unenforceability of any provision herein shall
not affect the validity or enforceability of the remaining provisions herein.
11.13 Other Documents. Each party agrees to execute such other documents as are
reasonably requested by any other party hereto to further effect the transactions contemplated by
this Agreement.
10
IN WITNESS WHEREOF, the parties signed below.
| MEMBER: | TERRA INTERNATIONAL, INC., a | |||||
| Delaware corporation | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
11
SCHEDULE “A”
| CAPITAL | PERCENTAGE | |||||||||||
| MEMBER | CONTRIBUTION | UNITS | INTERESTS | |||||||||
Terra International, Inc. |
$ | 150,000,000 | 100 | % | ||||||||
