CONFIDENTIAL TREATMENT REQUESTED.
CERTAIN PORTIONS HAVE BEEN
OMITTED AND HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
LIMITED LIABILITY COMPANY AGREEMENT
OF
CRYSTECH, LLC
TABLE OF CONTENTS
Page
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I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ORGANIZATIONAL AND MEMBERSHIP MATTERS . . . . . . . . . . . . . . . . . 4
2.1 Office and Agent . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Purposes and Powers. . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Membership Interests . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Initial Capital Contributions of Members . . . . . . . . . . . . 5
3.2 Additional Capital Contributions of Members. . . . . . . . . . . 6
(a) Voluntary Additional Capital Contributions of Members . . . 6
(b) No Required Additional Capital Contributions of Members . . 6
3.3 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Transferee Succeeds to Transferor's Capital Account. . . . . . . 7
3.5 No Right to Return of Contributions. . . . . . . . . . . . . . . 7
3.6 No Interest on Capital Contributions . . . . . . . . . . . . . . 7
3.7 Loans to the Company . . . . . . . . . . . . . . . . . . . . . . 7
IV. ALLOCATIONS AND DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 7
4.1 Allocation of Net Income and Net Losses. . . . . . . . . . . . . 7
4.2 Operating Distributions. . . . . . . . . . . . . . . . . . . . . 7
4.3 Tax Withholding Obligations Constitute a Distribution. . . . . . 8
V. MEETINGS OF MEMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.8 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . 8
5.9 Telephonic Meetings. . . . . . . . . . . . . . . . . . . . . . . 9
VI. BOARD OF MANAGERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Board of Managers. . . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Chairman of the Board; Other Officers. . . . . . . . . . . . . . 9
6.3 Delegation of Rights and Powers to Manage. . . . . . . . . . . .10
6.4 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.5 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.6 Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . .10
6.7 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . .10
6.8 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . .10
6.9 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.10 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . .10
6.11 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.12 Board Actions Requiring Unanimous Approval of Members. . . . . .11
6.13 Absent Managers. . . . . . . . . . . . . . . . . . . . . . . . .11
6.14 Action Without Meeting . . . . . . . . . . . . . . . . . . . . .12
6.15 Telephonic Meetings. . . . . . . . . . . . . . . . . . . . . . .12
6.16 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . .12
VII. REQUIRED RECORDS; ACCOUNTING AND TAX MATTERS. . . . . . . . . . . . . .12
7.1 Required Records . . . . . . . . . . . . . . . . . . . . . . . .12
7.2 Books of Account . . . . . . . . . . . . . . . . . . . . . . . .12
7.3 ACSC as Operator . . . . . . . . . . . . . . . . . . . . . . . .13
7.4 Tax Characterization and Returns . . . . . . . . . . . . . . . .13
7.5 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . .13
VIII. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
8.1 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . .13
8.2 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
IX. TRANSFER OF MEMBERSHIP INTEREST . . . . . . . . . . . . . . . . . . . .14
9.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . .14
(a) General Restriction on Assignment . . . . . . . . . . . .14
(b) Assignment of Governance Rights . . . . . . . . . . . . .14
(c) Assignment of Financial Rights. . . . . . . . . . . . . .14
(d) Conditions Precedent to Assignment of Governance
Rights or Financial Rights to Members . . . . . . . . . .14
(e) Effective Date of Assignment. . . . . . . . . . . . . . .15
(f) Pledge and Assignment . . . . . . . . . . . . . . . . . .15
9.2 Rights to Purchase and Sell Membership Interests . . . . . . . .15
(a) ACSC Right to Buy-Out Other Members . . . . . . . . . . .15
(b) Newcourt Right to Sell Membership Interest to ACSC . . .16
(c) Notice; Timing; Payment . . . . . . . . . . . . . . . . .16
9.3 Acquit Company . . . . . . . . . . . . . . . . . . . . . . . . .16
9.4 Restriction on Transfer. . . . . . . . . . . . . . . . . . . . .16
X. DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.1 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.2 Winding Up of Business . . . . . . . . . . . . . . . . . . . . .17
10.3 Distributions Upon Liquidation . . . . . . . . . . . . . . . . .17
10.4 Statement of Cancellation. . . . . . . . . . . . . . . . . . . .17
10.5 Termination of Membership. . . . . . . . . . . . . . . . . . . .18
(a) Continuation of the Company . . . . . . . . . . . . . . .18
(b) Status of Member Whose Membership is Terminated . . . . .18
(c) No Obligation to Purchase Financial Rights of
Terminated Member . . . . . . . . . . . . . . . . . . . .18
XI. NEW MEMBERS BOUND BY AGREEMENT. . . . . . . . . . . . . . . . . . . . .18
XII. REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
12.1 Representations of ACSC. . . . . . . . . . . . . . . . . . . . .18
12.2 Representations of Newcourt. . . . . . . . . . . . . . . . . . .19
XIII. MOLASSES DESUGARIZATION PROJECT . . . . . . . . . . . . . . . . . . . .20
XIV. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
14.1 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
14.2 Corporate Bank Account . . . . . . . . . . . . . . . . . . . . .20
14.3 Actions or Organizer . . . . . . . . . . . . . . . . . . . . . .21
14.4 Acceptance of Capital Contributions. . . . . . . . . . . . . . .21
14.5 Certificates of Membership Interest. . . . . . . . . . . . . . .21
14.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . .21
14.7 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . .21
14.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . .21
14.9 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
14.10 Consent and Waiver . . . . . . . . . . . . . . . . . . . . . . .22
14.11 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . .22
14.12 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
14.13 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . .22
14.14 Necessary Instruments and Acts . . . . . . . . . . . . . . . . .22
14.15 Number and Gender. . . . . . . . . . . . . . . . . . . . . . . .22
14.16 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . .22
14.17 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . .22
14.18 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . .23
14.19 Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .23
14.20 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . .23
Schedule A
Schedule B
Schedule C
LIMITED LIABILITY COMPANY AGREEMENT OF
CRYSTECH, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT is entered into and made
effective as of this 28th day of May, 1998, by and among AMERICAN CRYSTAL
SUGAR COMPANY ("ACSC") and NEWCOURT CAPITAL USA INC. ("Newcourt").
RECITALS
WHEREAS, CRYSTECH, LLC, a Delaware limited liability company was formed
on November 4, 1997 for the purpose of building and operating a molasses
desugarization plant and any other lawful act, business or activity permitted
under the Delaware Limited Liability Company Act; and
WHEREAS, Section 18.101 of the Act authorizes a "limited liability
company agreement" as defined therein; and
WHEREAS, ACSC and Newcourt desire to enter into this Limited Liability
Company Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
of the parties contained herein, and the mutual benefits to be gained by the
performance hereof, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"Act" means the Delaware Limited Liability Company Act codified at Title
6, Subtitle II, Chapter 18 of the Delaware Statues, as amended, and any
successor thereto.
"Affiliated Entity" means any entity that controls, is controlled by, or
under common control of a Member, or any successor thereto.
"Agreement" means this Limited Liability Company Agreement as amended,
modified or supplemented from time to time, including any schedules to the
Agreement.
"Board" or "Board of Managers" means the board of managers of the
Company.
"Called Principal" has the meaning given to that term in the definition
of "Make Whole Amount" contained in the Note Purchase Agreement.
"Capital Account" means the account of each Member which is maintained
in accordance with the provisions of Section 3.3 of this Agreement.
"Capital Contribution" means the value of the initial contributions by
each Member as set forth on Schedule A, plus the value of any additional
capital contributions made by the Member pursuant to Section 3.2 of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto. Any reference herein to specific sections of the Code and
the Treasury Regulations thereunder shall be deemed to include a reference to
any corresponding provisions of future law.
"Company" means Crystech, LLC, a Delaware limited liability company.
"Contribution Agreement" means a written agreement between the Company
and a Person desiring to make a capital contribution which sets forth the
terms of such Person's agreement to make a contribution for the purpose of
becoming a Member of the Company, including without limitation the agreed
value of the contribution that shall be made by such Person to the capital of
the Company and the Financial Interest and Voting Interest to which such
Person shall be entitled.
"Distribution Date" means the last day of August, November, January and
May, commencing with the first such date to occur on or after which
scheduled principal payments on the Notes are made.
"Distributions" means annual distributions of cash to the Members as may
from time to time be authorized by the Board of Managers pursuant to the
terms of this Agreement.
"Financial Interest" as to any Member means the "Financial Interest"
reflected on Schedule A of this Agreement for such Member, and as may be
amended.
"Financial Rights" means a Member's right to share in the Net Income and
Net Losses and Distributions with respect to a Membership Interest in
accordance with the terms of this Agreement.
"Financing Documents" has the meaning given to that term in the Note
Purchase Agreement.
"Governance Rights" means a Member's right to participate in the
management of the Company.
"Make-Whole Amount" has the meaning given to that term in the Note
Purchase Agreement.
"Manager" or "Managers" means a natural person or persons appointed to
the Board of Managers by the Members in accordance with Article VI of this
Agreement.
"MDS Facility" means a molasses desugarization facility with an expected
capacity of at least 600 tons per day to be constructed, owned and operated
by the Company at ACS' sugarbeet processing facility in Hillsboro, North
Dakota.
"Member" or "Members" means a Person reflected in the Required Records
of the Company as the owner of a Membership Interest in the Company, or any
of their permitted successors or assigns.
"Membership Interest" means a Member's interest in the Company
consisting of the Member's Financial Rights, right to assign Financial
Rights, Governance Rights, and the right to assign Governance Rights.
"Molasses Desugarization Project" means that desugarization project for
which the Company was formed, as described in the Tolling Agreement.
"Net Income" and "Net Losses" means the profits and losses of the
Company, as the case may be, as determined for book purposes in accordance
with Generally Accepted Accounting Principles (GAAP) as of the close of each
fiscal year of the Company.
"Note Purchase Agreement" means a Note Purchase Agreement in
substantially the form of that certain draft Note Purchase Agreement dated as
of May 14,1998, to be executed by and between Crystech, LLC and the Crystech
Senior Lender Trust, as amended, modified or supplemented from time to time.
"Notes" shall have the meaning given to that term in the Note Purchase
Agreement.
"Operating Agreement" means that an Operation and Maintenance Agreement
in substantially the form of that certain draft Operation and Maintenance
Agreement dated as of May 18, 1998, to be executed by and between ACSC and
the Company, as amended, modified or supplemented from time to time.
"Person" means any individual, partnership, limited liability company,
corporation, trust or other entity.
"Project Documents" has the meaning given to that term in the Note
Purchase Agreement.
"Remaining Average Life" has the meaning given to that term in the
definition of "Make Whole Amount" contained in the Note Purchase Agreement.
"Required Records" means those records of the Company required to be
maintained under the Act, including (i) a current list of the name and
last-known business, residence or mailing address of each Member, Manager and
officer; (ii) copies of this Limited Liability Company Agreement and
certificate of formation, and any amendments thereto; (iii) copies of the
Company's federal, state and local tax returns and reports for each year;
(iv) true and full information regarding the status of the business and
financial condition of the Company; (v) true and full information regarding
the amount of cash and a description and statement of the agreed value of any
other property or services contributed by each Member and which each Member
has agreed to contribute in the future, and the date on which each became a
Member; (vi) records of all proceedings of the Members and the Board of
Managers; (vii) any written consents obtained from Members under the
provisions of this Agreement or the Act; (viii) a copy of all agreements,
contracts or other arrangements entered into by the Company; and (ix) any
other information regarding the affairs of the Company as is just and
reasonable.
"Tax Withholding Obligation" means an amount equal to the portion of any
amount allocated, credited, or otherwise distributable to a Member which the
Company is required to withhold for income tax purposes pursuant to any
applicable federal, state, local or other governmental agency law or
regulation.
"Tolling Agreement" means that a Tolling Services Agreement in
substantially the form of that certain draft Tolling Services Agreement dated
as of April 20, 1998, to be executed by and between ACSC and the Company, as
amended, modified or supplemented from time to time.
"Voting Interest" as to any Member means the "Voting Interest" reflected
on SCHEDULE A for such Member.
ARTICLE II
ORGANIZATIONAL AND MEMBERSHIP MATTERS
2.1 OFFICE AND AGENT. The principal office of the Company shall be
located at 000 Xxxxx 0xx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000-0000, or at such
other location as may be determined by the Board of Managers. CT Corporation
shall be the registered agent of the Company for purposes of service of
process at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Board of
Managers may change the identity or location of the registered office from
time to time, and, if required by the Act, shall cause an appropriate
amendment to the Company's Certificate of Formation to be filed in the
appropriate offices in the State of Delaware to reflect such change.
2.2 PURPOSES AND POWERS.
(a) GENERALLY. The Company is organized as a special purpose
entity, for the sole purpose of acquisition, construction,
financing, operation and maintenance of the MDS Facility and
for the acquisition, construction, and lease of certain juice
softening equipment, sugar extraction equipment, storage and
receiving and related equipment to be located at both ACSC's
Hillsboro, North Dakota and Moorhead, Minnesota sugar
factories. In furtherance of the foregoing purposes, but
subject to the provisions of this Agreement, the Company
shall have the power to (1) enter into and perform its
obligations under each of the Financing Documents and the
Project Documents to which it is a party, (2) take any and
all actions necessary or desirable in connection with the
consummation of the activities and transactions contemplated
by the Financing Documents and the Project Documents, and (3)
take any action and carry on any activity necessary or
incidental to the accomplishment of the foregoing purposes,
so long as such actions or activities may be lawfully carried
on or performed under the provisions of the Act and any
applicable laws.
(b) LIMITATION ON POWERS OF COMPANY. The Company shall not do
business in any jurisdiction that would jeopardize the
limitation on liability provided herein.
2.3 MEMBERS. ACSC and Newcourt constitute all the Members of the
Company. There shall be no other Members admitted to the Company except as
provided in Article IX of this Agreement.
2.4 MEMBERSHIP INTERESTS. Membership Interests in the Company are
reflected on SCHEDULE A attached hereto. The Membership Interests are
ordinary membership interests of one class, without series, and shall have
the rights provided by law, subject to any statement in this Agreement of the
specific rights or terms of such Membership Interests.
2.5 VOTING. Each Member shall be entitled to one vote on matters
submitted to the Members regardless of the Member's proportionate share of
capital contribution to the Company.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 INITIAL CAPITAL CONTRIBUTIONS OF MEMBERS. Each Member shall
make an initial capital contribution to the Company in the amount and in the
manner set forth on Schedule A. Such initial Capital Contributions shall be
made by payment to the Company on the date hereof of cash in the amount
specified on Schedule A, subject, however, to satisfaction of each of the
following conditions:
(a) Each of the Project Agreements and Financing Agreements shall
have been executed and delivered by the respective parties
thereto; and
(b) Each Member shall have received an opinion of counsel for the
other Member in form and substance satisfactory to it; and
(c) All consents and approvals required by the terms of the
Financing Agreements and the Project Agreements to be
obtained prior to the effective dates thereof shall have been
obtained; and
(d) Each Member shall have received such certificates, documents
and other showings as it shall reasonably deem necessary to
evidence the due organization and valid existence of the
other Member and the Company and the authorization by the
other Member and the Company of its execution, delivery and
performance of this Agreement and the other Project
Agreements and Financing Agreements to which it is a party.
The Members themselves hereby authorize the Company to
execute and, deliver this Agreement, the Project Agreements
and such other documents and to perform such actions as are
necessary to give effect thereto.
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS OF MEMBERS.
(a) VOLUNTARY ADDITIONAL CAPITAL CONTRIBUTIONS OF MEMBERS. Subject
to Section 3.2 (b) below, additional contributions of capital
to the Company, other than capital obtained by a loan of money
to the Company or funds provided under the Tolling Agreement,
may be made only upon the unanimous consent of the Members.
(b) NO REQUIRED ADDITIONAL CAPITAL CONTRIBUTIONS OF MEMBERS. No
Member shall be obligated to make any additional contributions
of capital to the Company, other than the Member's initial
capital contribution, or to pay any assessment to the Company,
except that (a) the Board of Managers may, in its discretion,
by resolution require that any Member to whom a Tax Withholding
Obligation is attributable make an additional contribution to
the capital of the Company in an amount equal to such Tax
Withholding Obligation less the amount of any loans for such
purpose made to the Company pursuant to Section 3.7; and (b)
ACSC may make additional contributions to the Company in the
form and to the extent set forth in that draft Subscription
Agreement dated as of May 21, 1998, as may be amended, to be
executed by and among ACSC, the Company and First Union Trust
Company National Association as agent.
3.3 CAPITAL ACCOUNTS. A separate Capital Account shall be
maintained for each Member. The initial balances in the Capital Accounts
shall be, for each Member, the Member's initial Capital Contribution. The
Capital Account of each Member shall be increased by the amount of (i) any
additional contribution such Member makes to the capital of the Company
pursuant to Section 3.2 hereof, (ii) Net Income allocated to such Member
pursuant to Section 4.1, and (iii) any Distributions made by the Company
pursuant to the provisions of Article IV hereof. The Capital Account of each
Member shall be decreased by the amount of any Net Losses allocated to such
Member pursuant to Section 4.1.
3.4 TRANSFEREE SUCCEEDS TO TRANSFEROR'S CAPITAL ACCOUNT. Any
transfers permitted by Article IX of this Agreement by a Member to a
transferee of all or a part of such Member's Financial Rights in the Company
shall vest in such permitted transferee (and such permitted transferee shall
become a successor in interest) the interest of the transferor Member's
Capital Account to the extent of the Membership Interest transferred.
3.5 NO RIGHT TO RETURN OF CONTRIBUTIONS. The Members shall have no
right to the withdrawal or the return of their respective Capital
Contributions except to the extent set forth in Article X upon liquidation of
the Company.
3.6 NO INTEREST ON CAPITAL CONTRIBUTIONS. Other than Distributions
authorized pursuant to Article IV or Article X, no Member shall be entitled
to receive any interest or other property on account of the Member's Capital
Contributions to the Company.
3.7 LOANS TO THE COMPANY. A Member may lend money to the Company
if authorized by the Board of Managers and approved unanimously by the
Members as required by Section 6.12. Any such loan shall not be treated as a
contribution to the capital of the Company for any purpose or entitle the
Member to any increase in such Member's share of the Net Income or Net Losses
of the Company or any increase in such Member's Financial Interest or share
of Distributions made by the Company. The Company shall be obligated to such
Member for the amount of any such loan, with interest thereon at such market
rate as may have been agreed upon by such Member and the Board of Managers.
ACS is hereby authorized to make subordinated loans to the Company pursuant
to the Subscription Agreement referred to in Section 3.2(b).
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.1 ALLOCATION OF NET INCOME AND NET LOSSES. Net Income and Net
Losses shall be allocated annually among the Members in proportion to their
Financial Interest.
4.2 OPERATING DISTRIBUTIONS. Unless otherwise prohibited by law,
and other than Distributions upon liquidation pursuant to Article X and Tax
Withholding Obligations which constitute Distributions pursuant to Section
4.3 of this Article, Distributions shall be made to the Members to the extent
revenue is available through the operation of the MDS Facility and revenues
earned from the Leased Assets in an amount equal to ****** per annum on the
average daily amount of each Member's Financial Interest, quarterly on each
Distribution Date; provided, however, that the Board may, in its discretion,
reduce the amount otherwise distributable to any Member by the amount of a
Tax Withholding Obligation attributable to such Member which has not
previously reduced a Distribution to such Member.
[* - Confidential treatment requested.]
4.3 TAX WITHHOLDING OBLIGATIONS CONSTITUTE A DISTRIBUTION. Any Tax
Withholding Obligation which is withheld by the Company shall constitute a
Distribution of such amount by the Company to the Member to whom such Tax
Withholding Obligation is attributable.
ARTICLE V
MEETINGS OF MEMBERS
5.1 PLACE OF MEETINGS. Each meeting of the Members shall be held
at the Company's principal office, as specified in Section 2.1, or at such
other place as may be designated by the Board of Managers in writing to the
Members.
5.2 REGULAR MEETINGS. Regular meetings of the Members shall be
held on an annual basis, at such time and place as the Members shall
mutually agree upon; provided however, that if a regular meeting has not been
held within thirteen (13) months after the organization of the Company or the
previous annual meeting, whichever is later, any Member may demand a meeting
of the members by written demand to the Board of Managers.
5.3 SPECIAL MEETINGS. Special meetings of the members may be
called by the Board of Managers or any Member. The business transacted at a
special meeting of the members is limited to the purposes stated in the
notice of the meeting.
5.4 NOTICE OF MEETINGS. Written notice of each meeting of the
Members, stating the date, time and place, and in the case of a special
meeting, the purpose of the meeting, shall be given in writing at least
twenty (20) days and not more than sixty (60) days prior to the meeting to
every Member entitled to vote at such meeting.
5.5 WAIVER OF NOTICE. A Member may waive the notice of meeting
required under this Article. A written notice of waiver signed by the Member
entitled to notice is effective whether given before, during or after the
meeting. Attendance by a Member at a meeting is waiver of notice of that
meeting, unless the Member objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or
convened and thereafter does not participate in the meeting.
5.6 QUORUM. The presence of all Members is required for the
transaction of business at a meeting of the Members.
5.7 PROXIES. Voting by proxy shall not be permitted.
5.8 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at a meeting of the Members of the Company may be taken without a
meeting by written action signed by all of the Members. The written action is
effective when signed by all the Members, unless a different effective time
is provided in the written action.
5.9 TELEPHONIC MEETINGS. Any regular or special meeting of the
Members may be taken by telephonic conference or any other means of
communication through which the Members can simultaneously hear each other
during the conference, if the same notice is given of the conference to each
Member, and if the Members participating in the conference would be
sufficient to constitute a quorum at a meeting. Participation in a telephonic
or other conference of such means constitutes presence at the meeting in
person or by proxy if all the other requirements are met.
ARTICLE VI
BOARD OF MANAGERS
6.1 BOARD OF MANAGERS. The business and affairs of the Company
shall be managed by or under the direction of a Board of Managers. The Board
of Managers shall consist of six (6) managers, of which three (3) shall be
appointed by Newcourt, and three (3) shall be appointed by ACSC. Each Manager
shall be a director, officer or full-time employee of its appointing Member.
The first Board of Managers of this Company is as follows:
ACSC NEWCOURT
---- --------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Xxxxxx X.X. Xxx Xxxxx X. Kinkartz
Xxxxxx X. Xxxxxxxxxx Xxxxxxx Xxxxxxx
6.2 CHAIRMAN OF THE BOARD; OTHER OFFICERS. The Board of Managers
shall have one or more managers exercising the functions of the positions of
Chairman of the Board and Treasurer, each of who shall be authorized as
signatories on the Company's bank account(s) and all documents and
instruments requiring a signature on behalf of the Company. In addition, the
Board of Managers shall appoint one or more persons to exercise the functions
of the position of Assistant Treasurer, each of whom shall be authorized as a
signatory on the Company's bank account(s) and disbursement requests. The
Board shall also have authority to elect, appoint or designate an existing
Manager or other natural person to the offices of President, one or more Vice
Presidents, a Secretary, and such other agents as it deems necessary for the
operation and management of the Company. The following persons are hereby
appointed to serve as the Company's Chairman of the Board, Treasurer and
Assistant Treasurer in accordance with the terms of this Agreement:
Xxxxxx X. Xxxxxxxxxx - Chairman of the Board
Xxxxxx X.X. Xxx - Treasurer
Xxxxx X. Xxxxxxx - Secretary
Xxxxx X. Xxxxxx - Assistant Treasurer
Xxxxxxx Xxxxxxxx - Assistant Treasurer
Xxxx X. Xxxxxx - Assistant Treasurer
Xxxxxx X. Xxxxxxxx - Assistant Treasurer
6.3 DELEGATION OF RIGHTS AND POWERS TO MANAGE. The general
management and operation of the Molasses Desugarization Project shall be
delegated to ACSC pursuant to the terms of the Operating Agreement.
6.4 TERM. Each Manager shall hold office for a term of five (5)
years, or until the earlier death, resignation, removal or disqualification
of the Manager.
6.5 VACANCIES. Vacancies of the Board of Managers shall be filled
by either ACSC or Newcourt, as determined by which of those two Members, as a
result of the vacancy, has appointed fewer than two (2) Managers to the Board
of Managers.
6.6 PLACE OF MEETINGS. Each meeting of the Board of Managers
shall be held at the Company's principal office or at such other place as the
Board may from time to time designate in writing to the Members.
6.7 REGULAR MEETINGS. Regular meetings of the Board of Managers
shall be held periodically and after each regular meeting of the Members.
6.8 SPECIAL MEETINGS. Special meetings of the Board of Managers
may be called at any time by any Manager by fixing the date, time and place
of the meeting and causing notice of the meeting to be given. The notice must
state the purpose of the meeting.
6.9 NOTICE. If the date, time and place of a Board of Managers'
meeting has been announced at the previous meeting of the Board, no notice is
required. In all other cases, written notice of each meeting of the Managers,
stating the date, time and place, and in the case of a special meeting, the
purpose of the meeting, shall be given in writing at least twenty (20) days
and not more than sixty (60) days prior to the meeting to each Manager.
6.10 WAIVER OF NOTICE. A Manager may waive the notice of meeting
required under this Article. A written notice of waiver signed by the Manager
entitled to notice is effective whether given before, during or after the
meeting. Attendance by a Manager at a meeting is waiver of notice of that
meeting, unless the Manager objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or
convened and thereafter does not participate in the meeting.
6.11 QUORUM. A majority of managers currently holding office shall
be necessary to constitute a quorum for the transaction of business. In the
absence of a quorum, a majority of the Managers present may adjourn a meeting
from time to time without further notice until a quorum is present. If a
quorum is present when a duly called or held meeting is convened, the
managers present may continue to transact business until adjournment, even
though the withdrawal of a
number of the managers originally present leaves less than the proportion
number or number otherwise required for a quorum.
6.12 BOARD ACTIONS REQUIRING UNANIMOUS APPROVAL OF MEMBERS. The
following actions shall require the unanimous approval of the Members:
(a) The acceptance of additional capital contributions from Members
to the capital of the Company or the acceptance by the Company
of any loans from a Member pursuant to Section 3.7;
(b) The admission of any additional Members;
(c) With respect to each fiscal year, Distributions in excess of
15% of a Member's Capital Contribution;
(d) The execution and delivery by the Company of any agreement
with a Member, other than any Project Document or Financing
Document;
(e) Any amendment of this Agreement or the Certificate of
Formation of the Company;
(f) The incurrence by the Company of any indebtedness for
borrowed money except for purchase money indebtedness the
Company is permitted to incur under the provisions of the
Note Purchase Agreement; or
(g) Any transactions:
(i) to dispose of any of the Company's assets, provided,
that, with the approval of the Board of Managers, the
Company may dispose of obsolete or worn out assets as
long as the value of the assets disposed of pursuant to
this proviso does not exceed $500,000 in any fiscal year
of the Company;
(ii) by which the Company merges or consolidates with any
other entity; or
(iii) to dissolve the Company.
6.13 ABSENT MANAGERS. A Manager of the Company may give advance
written consent or opposition to a proposal to be acted upon at a Board
meeting. If the Manager is not present at the meeting, consent or opposition
to a proposal does not constitute presence at the meeting for purposes of
determining existence of a quorum, but consent or opposition shall be counted
as a vote in favor of or against the proposal and shall be entered in the
minutes or other record of action at the meeting, if the proposal acted on at
the meeting is substantially the same or has substantially the same effect as
the proposal to which the Manager has consented or objected.
6.14 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at a meeting of the Managers may be taken without a meeting by written
action signed by all of the Managers. The written action is effective when
signed by all the Managers, unless a different effective time is provided in
the written action.
6.15 TELEPHONIC MEETINGS. Any regular or special meeting of the
Managers may be taken by telephonic conference or any other means of
communication through which the Managers can simultaneously hear each other
during the conference, if the same notice is given of the conference to each
Manager, and if the Managers participating in the conference would be
sufficient to constitute a quorum at a meeting. Participation in a telephonic
or other conference of such means constitutes presence at the meeting in
person if all the other requirements are met.
6.16 COMPENSATION. The Board of Managers shall have authority to
establish reasonable compensation of all Managers, officers and agents of the
Company for services to the Company. The Managers shall be paid their
reasonable expenses, if any, of attending each meeting of the Board of
Managers.
ARTICLE VII
REQUIRED RECORDS; ACCOUNTING AND TAX MATTERS
7.1 REQUIRED RECORDS. The Board of Managers shall maintain the
Required Records of the Company in a complete and accurate manner at the
principal office of the Company specified in Section 2.1, or such other place
within the United States as may be designated by the Board of Managers. The
Board of Managers shall maintain the Required Records on a current basis,
including without limitation the recording of any transfer of all or part of
a Member's Membership Interest pursuant to Article IX in the Required Records
as soon as the Board receives notice of such transfer. The Board of Managers
shall conspicuously note in the Required Records that the Members' interests
are governed by this Agreement and that this Agreement contains a restriction
on the assignment of Governance Rights. The Required Records shall at all
times be kept at the principal office of the Company or such other place or
places within the United States as the Board of Managers may determine. Each
of the Members shall have access to and may inspect and copy the Required
Records as provided in the Act.
7.2 BOOKS OF ACCOUNT. The Board of Managers shall keep complete
and accurate accounts of all transactions of the Company in proper books of
account and shall enter or cause to be entered therein a full and accurate
account of each and every Company transaction in accordance with GAAP. The
books of account of the Company shall be closed and balanced as of the end of
each fiscal year. The books of account and other records of the Company
shall at all times be kept at the principal executive office of the Company
or such other place or places within the United States as the Board of
Managers may determine. Each of the Members shall have access to and may
inspect and copy any of such books and records at all reasonable times
and in accordance with the Act.
7.3 ACSC AS OPERATOR. The parties acknowledge that the duties of
the Board of Managers specified in Sections 7.1 and 7.2 above shall be
performed by ACSC pursuant to the Operating Agreement.
7.4 TAX CHARACTERIZATION AND RETURNS. The Members acknowledge that
this Agreement and the Tolling Agreement together will be characterized for
federal income tax purposes as a loan from Newcourt to ACSC and that ACSC
will be treated as the owner of the Molasses Desugarization Project.
Accordingly, the Company will be disregarded as a business entity for federal
income tax purposes.
7.5 FISCAL YEAR. The fiscal year of the Company shall commence on
the first day of September of each year and shall end on the last day of
August of the following year.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. The Company shall indemnify,
hold harmless and defend the Members, the Managers and their
respective affiliates, agents, officers, directors, partners,
shareholders and employee (each an "Indemnified Person") to
the full extent lawful, from and against any loss, expense,
damage or injury suffered or sustained by an Indemnified
Person by reason of any acts or omissions arising out of
their activities on behalf of the Company or in furtherance
of the interests of the Company, including but not limited to
any judgment, award, settlement, attorney's fees and other
costs and expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim, if the
acts or omissions were not a direct result of the gross
negligence or willful misconduct by the Indemnified Person.
(b) GENERAL INDEMNIFICATION BY MEMBERS. Notwithstanding any
other provisions contained herein, each Member (the
"Indemnifying Party") agrees to indemnify and hold harmless
the other Members, the Company and their respective
affiliates, agents, officers, directors, partners,
shareholders and employees, from and against all losses,
costs, expenses, damages, claims and liabilities (including
reasonable attorney's fees) as a result of or arising out of
any material breach of any obligation under this Agreement.
Recourse for the indemnity obligation of the Members under
this Section 8.1(b) shall be limited to the amount of the
Capital Contribution made by such Indemnifying Party.
8.2 INSURANCE. The Company shall purchase and maintain liability
insurance policies
in such amounts, with such coverages and otherwise as required by the
Financing Documents, and shall cause each of the Members and Managers to be
named as an additional insured under such insurance policies. The Company
may purchase and maintain insurance on behalf of any person in such person's
official capacity against any liability asserted and incurred by such person
in or arising from that capacity, whether or not the Company would otherwise
be required to indemnify the person against the liability.
ARTICLE IX
TRANSFER OF MEMBERSHIP INTEREST
9.1 ASSIGNMENT.
(a) GENERAL RESTRICTION ON ASSIGNMENT. Except as provided in
Section 9.1(c) and 9.1(f), no Member may transfer all or a part
of such Member's Membership Interest to a non-Member. Transfers
of a Member's Membership Interest to another Member shall be
effective only if made in accordance with this Section 9.1.
(b) ASSIGNMENT OF GOVERNANCE RIGHTS. Subject to Section 9.2
herein, a Member's Governance Rights may be assigned to any
other Member or Affiliated Entity of another Member only if
(1) the non-transferring Members unanimously approve the
assignment by written consent, which consent may be granted
or withheld as the non-transferring Members may determine in
their sole discretion, (2) the Member seeking to make the
assignment and the assignee comply with the provisions of
Section 9.1(d), and (3) the assignment is permitted under the
terms of the Tolling Agreement. Consent by the
non-transferring Members to an assignment of Governance
Rights constitutes the consent necessary to avoid dissolution
of the Company which would otherwise occur under the Act on
account of the assignor ceasing to be a Member in the
Company.
(c) ASSIGNMENT OF FINANCIAL RIGHTS. Subject to compliance with the
provisions of Section 9.1(d) hereof, a Member's Financial
Rights may be assigned, in whole or in part, to another Person
without the consent of the Board of Managers or any other
Member.
(d) CONDITIONS PRECEDENT TO ASSIGNMENT OF GOVERNANCE RIGHTS OR
FINANCIAL RIGHTS TO MEMBERS. Subject to Section 9.2 herein,
any Member desiring to assign such Member's Governance Rights
or Financial Rights shall notify the Board of Managers of such
desire. Such notice to the Board of Managers shall include (i)
an opinion of counsel (whose fees and expenses shall be borne
by such assigning Member), reasonably satisfactory in form and
substance to the Board, to the effect that either (1) the
assignment constitutes an exempt transaction, and does not
require registration under applicable state and federal
securities laws, or (2) the Governance Rights or Financial
Rights to be assigned are duly and properly registered under
all applicable state and federal securities laws; (ii) evidence
satisfactory to the Board that such assignment of Governance
Rights is permitted under Section 9.1(b) hereof, and of such
assignee's agreement to comply with the terms of this Agreement
and to execute any and all documents that the Board may deem
reasonably necessary in connection with such assignee becoming
a Member; (iii) representations in form and substance
reasonably satisfactory to the Board that assignee is acquiring
the Governance Rights or Financial Rights for such assignee's
own account for investment and not with a view towards the
distribution thereof; provided, however, that the disposition
of the Governance Rights or Financial Rights shall at times be
and remain within the control of such assignee; and (iv) a
written agreement signed by the assignee that the Governance
Rights or Financial Rights being acquired will in no event be
resold unless properly registered under all applicable state
and securities laws or exempt therefrom.
(e) EFFECTIVE DATE OF ASSIGNMENT. Any assignment of all or a
part of a Member's Membership Interest in the Company shall
be deemed effective on the first day of the month next
following the month in which the assignment occurs and the
assignee's name and address and the nature and extent of the
assignment are reflected in the Required Records of the
Company. The appropriate Company records shall be
conspicuously noted to prevent the sale or assignment of
Membership Interests otherwise than in accordance with this
Article IX.
(f) PLEDGE AND ASSIGNMENT. Notwithstanding anything to the
contrary in this Section 9.1, any Member may pledge, assign
or hypothecate its Membership Interest hereunder to secure
the payment of any debt incurred by the Company and/or the
performance of any obligations of the Company.
9.2 RIGHTS TO PURCHASE AND SELL MEMBERSHIP INTERESTS.
(a) ACSC RIGHT TO BUY-OUT OTHER MEMBERS. ACSC shall have the
right to buy-out the Membership Interest of any other Member
at any time by giving written notice of its intention to do
so to the other Member. The buy-out price for each Membership
Interest purchased pursuant to this Section shall be a sum
equal to the aggregate Capital Contributions made to the
Company by the selling Member, plus any unpaid Distributions
required pursuant to Section 4.2 accrued through the date of
purchase, plus, if the purchase occurs prior to final
maturity of the Notes, an amount equal the Make-Whole Amount
determined as if the Called Principal were the amount of such
capital contributions and the Remaining Average Life were the
number of years remaining to the final maturity date of the
Notes.
(b) NEWCOURT RIGHT TO SELL MEMBERSHIP INTEREST TO ACSC. Upon
prior written notice to ACSC, Newcourt shall have the right
to compel ACSC to purchase Newcourt's Membership Interest
(i) at any time after the Notes are paid, (ii) at any time
upon maturity of the Notes, (iii) upon the purchase of all or
substantially all of the assets of the Company by ACSC, prior
to the effective date of such purchase, or (iv) upon the
merger or consolidation of the Company with or into ACSC,
prior to the effective date of such merger or consolidation.
The price for such Membership Interest shall be equal to the
aggregate Capital Contributions made to the Company by
Newcourt plus any unpaid Distributions required pursuant to
Section 4.2 accrued through the date of purchase.
(c) NOTICE; TIMING; PAYMENT. Any purchase by ACSC of a
Membership Interest pursuant to this Section shall be made by
payment of immediately available funds by wire transfer in US
Dollars to the selling Member (to an account specified in
writing by such selling Member to ACSC) on a date which is
thirty (30) days after the date of the notice from ACSC to
the selling Member or from Newcourt to ACSC, as applicable,
or on such earlier date as may be agreeable to both ACSC and
the selling Member. At the time of such payment, the parties
shall deliver to each other such transfer instruments and
other documents as may be reasonably requested by either
party.
9.3 ACQUIT COMPANY. In the absence of written notice to the
Company of any assignment of a Membership Interest, any payment by the
Company to the assigning Member (or the assigning Member's successor in
interest) shall acquit the Company of liability to the extent of such payment
to any other Person who may have any interest in such payment by reason of an
assignment by the Member, whether by actual assignment or operation of law.
9.4 RESTRICTION ON TRANSFER. Notwithstanding the foregoing
provisions of this Article IX, no assignment or other transfer of a
Membership Interest may be made if the Membership Interest sought to be
assigned or transferred, when added to the total of all other Membership
Interests assigned or transferred within the period of twelve (12)
consecutive months prior thereto, would result in the termination of the
Company under Section 708 of the Code; provided, however, that the Board of
Managers may waive such restriction on transfer and such restriction shall
not apply in the case of a transfer pursuant to Section 9.1(f) herein.
ARTICLE X
DISSOLUTION
10.1 DISSOLUTION. The Company shall be dissolved only upon the
written agreement of all the Members. As further provided in Section 10.5 of
this Article, the termination of a
Member's membership in the Company shall not cause the dissolution of the
Company, so long as the Company has the minimum number of members required
under the Act within ninety (90) days of the termination of a former member.
10.2 WINDING UP OF BUSINESS. Upon the occurrence of an event of
dissolution specified in Section 10.1, the Company shall cease to carry on
its business, except insofar as may be necessary for the winding up of its
business, but its separate existence shall continue until a certificate of
cancellation has been filed with the Delaware Secretary of State's Office or
until a decree dissolving the Company has been entered by a court of
competent jurisdiction.
10.3 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation, the
business of the Company shall be wound up, the Board of Managers shall take
full account of the Company's assets and liabilities, and all assets shall be
liquidated as promptly as is consistent with obtaining the fair market value
thereof. If any assets are not sold, any gain or loss shall be allocated to
Members in accordance with Article IV as if such assets had been sold at
their fair market value at the time of the liquidation. If any assets are
distributed to a Member rather than sold, the Distribution shall be treated
as a Distribution equal to the fair market value of the assets at the time of
the liquidation. The assets of the Company shall be applied and distributed
in the following order and priority:
(a) FIRST, to the payment of all debts and liabilities of the
Company, including all sums due the Managers, and including
any loans or advances that may have been made by the Members
to the Company;
(b) SECOND, to the establishment of any reserves deemed necessary
by the Board of Managers or the Person winding up the affairs
of the Company for any contingent liabilities or obligations
of the Company in the order of priority set forth in the Act;
(c) THIRD, to Newcourt a sum equal to the aggregate Capital
Contributions made to the Company by Newcourt, plus any
unpaid Distributions required pursuant to Section 4.2 accrued
through the date of distribution, plus, if the purchase
occurs prior to final maturity of the Notes, an amount equal
the Make-Whole Amount determined as if the Called Principal
were the amount of such capital contributions and the
Remaining Average Life were the number of years remaining to
the final maturity date of the Notes;
(d) FOURTH, the balance, to ACSC.
10.4 STATEMENT OF CANCELLATION. Upon the dissolution and
completion of the winding up of the Company's affairs, the appropriate
representative of the Company shall execute a certificate of cancellation
setting forth the information required under the Act, and shall file same
with the Delaware Secretary of State's office.
10.5 TERMINATION OF MEMBERSHIP.
(a) CONTINUATION OF THE COMPANY. The Company shall not be
dissolved and is not required to be wound up by reason of the
occurrence of an event that terminates the continued
membership of a Member in the Company if there is at least
the minimum number of Members required under the Act.
(b) STATUS OF MEMBER WHOSE MEMBERSHIP IS TERMINATED. The Member
whose membership has terminated shall lose all Governance
Rights and will be considered merely an assignee of the
Financial Rights owned before the termination of such
Member's membership, subject to subsection (c) of this
Section 10.5. In such event, Schedule A shall be deemed to be
appropriately amended to allocate the Voting Interest of the
Member whose membership is terminated to the remaining
Members. If dissolution occurs pursuant to Section 10.1, then
the Member whose continued membership has terminated retains
all the Governance Rights and Financial Rights owned before
the termination of the membership and may exercise those
rights through the winding up and termination of the Company.
(c) NO OBLIGATION TO PURCHASE FINANCIAL RIGHTS OF TERMINATED
MEMBER. Neither the remaining Members nor the Company shall
have any obligation to purchase such terminated Member's
Financial Rights in the Company.
ARTICLE XI
NEW MEMBERS BOUND BY AGREEMENT
Any Person who is admitted to the Company as a Member shall be subject
to and bound by all the provisions of this Agreement as if originally a party
to this Agreement. Such Person shall execute and acknowledge all documents
and instruments, in form and substance reasonably satisfactory to the Board
of Managers, as the Board of Managers shall deem necessary or advisable to
effect such admission and to confirm the agreement of the Person being
admitted to be bound by all the terms and provisions of this Agreement. Such
Person shall pay all reasonable expenses in connection with such admission
of a Member, including without limitation legal fees and costs of preparation
of any amendment to or restatement of this Agreement, if necessary or
desirable in connection therewith.
ARTICLE XII
REPRESENTATIONS
12.1 REPRESENTATIONS OF ACSC. ACSC hereby represents and warrants
to Newcourt
that each of the following statements is true and correct as of the date
hereof:
(a) ORGANIZATION. ACSC is a cooperative association duly
organized, validly existing and in good standing under the
laws of the State of Minnesota with all requisite power and
authority to enter into and perform this Agreement and the
Financing Documents and Project Documents to which it is a
party. ACSC is qualified or licensed to do business in the
State of North Dakota and in all other jurisdictions where
the failure to be so qualified or licensed would have a
material adverse effect on ACSC or the Company.
(b) POWER AND AUTHORITY. ACSC has full power and authority and
has taken all required action necessary to permit it to
execute and deliver this Agreement and the other Financing
Documents and Project Documents to which it is a party and to
perform all of its obligations contained herein or therein.
None of such actions has or will conflict with or violate any
provision of law or of the Articles of Incorporation or
Bylaws of ACSC or violate or constitute a default under or
result in any breach of any agreement, indenture, security
agreement, order or judgment to which ACSC is a party or by
which it or any of its properties is bound.
(c) VALID AND BINDING OBLIGATION. This Agreement and the other
Financing Documents and Project Documents to which it is a
party each constitutes the valid and legally binding
agreement of ACSC, enforceable against ACSC in accordance
with its terms, except to the extent that such enforcement is
subject to applicable bankruptcy, insolvency and other laws
affecting the rights of creditors generally and except that
the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable
defenses and to the discretion of courts before which any
enforcement proceeding is brought.
12.2 REPRESENTATIONS OF NEWCOURT. Newcourt hereby represents and
warrants to Newcourt that each of the following statements is true and
correct as of the date hereof:
(a) ORGANIZATION. Newcourt is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware with all requisite power and authority to
enter into and perform this Agreement and any Financing
Documents or Project Documents to which it is a party.
Newcourt is qualified or licensed to do business in all
jurisdictions where the failure to be so qualified or
licensed would have a material adverse effect on Newcourt or
the Company.
(b) POWER AND AUTHORITY. Newcourt has full power and authority
and has taken all required action necessary to permit it to
execute and deliver this Agreement and the other Financing
Documents and Project Documents (if any) to which it is a
party and to perform all of its obligations contained herein
or therein. None of such actions has or will conflict with
or violate any provision of law or of the
Articles of Incorporation or Bylaws of Newcourt or violate or
constitute a default under or result in any breach of any
agreement, indenture, security agreement, order or judgment to
which Newcourt is a party or by which it or any of its properties
is bound.
(c) VALID AND BINDING OBLIGATION. This Agreement and the other
Financing Documents and Project Documents to which it is a
party each constitutes the valid and legally binding
agreement of Newcourt, enforceable against Newcourt in
accordance with its terms, except to the extent that such
enforcement is subject to applicable bankruptcy, insolvency
and other laws affecting the rights of creditors generally
and except that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of courts before
which any enforcement proceeding is brought.
ARTICLE XIII
MOLASSES DESUGARIZATION PROJECT
The Members hereby approve the Financing Documents and the Project
Documents as submitted to the Members as drafts dated May, 1998, and the
transactions contemplated thereby. The Chairman of the Board and the
Treasurer are hereby authorized and directed to execute the Financing
Documents and the Project Documents in substantially the form of such drafts,
together with all other changes thereto as either such officer shall deem
appropriate, desirable, or necessary and such other documents necessary to
effectuate the transactions contemplated therein, on behalf of the Company.
The Company is hereby authorized to issue the sale of Senior Secured Notes to
the Crystech Senior Lender Trust in the aggregate principal amount of
Eighty-Six Million Five Thousand Dollars and No/100 ($86,005,000) and to
borrow the aggregate principal amount of Thirteen Million Nine Hundred Five
Thousand Dollars and No/100 ($13,905,000) from ACSC, as contemplated by the
Financing Documents.
ARTICLE XIV
MISCELLANEOUS
14.1 DURATION. The Company shall have perpetual existence.
14.2 CORPORATE BANK ACCOUNT. First Union Bank of Delaware or First
Union Trust Company, National Association (either one, the "Bank") are hereby
designated as the depository of funds of the Company, and checks, drafts or
other withdrawal orders issued against the funds on deposit with the Bank may
be signed by the Company's Chairman of the Board or Treasurer, or such other
persons as the Board of Managers shall from time to time designate.
14.3 ACTIONS OF ORGANIZER. All actions taken on behalf of the
Company by its
organizer, as an individual, prior to organization of the Company and prior
to the date hereof, are hereby ratified, approved and adopted in all respects.
14.4 ACCEPTANCE OF CAPITAL CONTRIBUTIONS. The Company hereby
accepts Newcourt's Initial Capital Contribution in the amount set forth on
SCHEDULE A attached hereto in exchange for a Membership Interest in the
Company consisting of a fifty percent (50%) Financial Interest and a fifty
percent (50%) Voting Interest in the Company. The Company hereby accepts
ACSC's Initial Capital Contribution in the amount set forth on SCHEDULE A
attached hereto in exchange for a Membership Interest in the Company
consisting of a fifty percent (50%) Financial Interest and a fifty percent
(50%) Voting Interest in the Company.
14.5 CERTIFICATES OF MEMBERSHIP INTEREST. The Certificate of
Membership set forth on SCHEDULE B attached hereto as is hereby approved and
adopted by the Members as the Certificate of Membership Interest for ACSC,
and that the Certificate of Membership set forth on SCHEDULE C attached
hereto is hereby approved and adopted by the Members as the Certificate of
Membership Interest for Newcourt.
14.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof.
14.7 AMENDMENT. This Agreement may not be modified, amended, or
supplemented, except by a writing signed by all of the parties to this
Agreement who are then Members of the Company.
14.8 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under the present or future laws effective
during the term of this Agreement, such provision will be fully severable;
this Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid, or unenforceable provision
or by its severance from this Agreement. Furthermore, in lieu of such
illegal, invalid, or unenforceable provision, there will be added
automatically as a 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.
14.9 REMEDIES. The parties agree that in the event of a breach of
this Agreement, the non-breaching party or parties shall be entitled to the
remedies of specific performance and injunctive relief, except to the extent
prohibited by the Act, and that such remedies shall be in addition to any
other remedies available at law or in equity with the pursuit of any one or
more remedies not being a bar to the pursuit of other remedies which may be
available. The parties further agree that the breaching party or parties
shall pay all reasonable costs, expenses, and attorneys' fees incurred by the
non-breaching party or parties in pursuing their remedies for a breach of
this Agreement.
14.10 CONSENT AND WAIVER. No consent under and no waiver of any
provision of this Agreement on any one occasion shall constitute a consent
under or waiver of any other provision on said occasion or on any other
occasion, nor shall it constitute a consent under or waiver of the consented
to or waived provision on any other occasion. No consent or waiver shall be
enforceable unless it is in writing and signed by the party against whom such
consent or waiver is sought to be enforced.
14.11 NO THIRD PARTY BENEFICIARY. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other Person will have any rights,
interest, or claims hereunder or be entitled to any benefits under or on
account of this Agreement as a third party beneficiary or otherwise, except
that the Company shall have standing to bring an action to recover damages
provided for by the Act or to seek remedies otherwise provided by law in the
event of a breach or threatened breach of this Agreement.
14.12 NOTICES. All notices, offers, demands, or other communications
required or permitted under this Agreement shall be in writing, signed by the
Person giving the same. Notice shall be treated as given when personally
received or (except in the event of a mail strike) when sent by certified or
registered mail, postage prepaid, return receipt requested, to a Member at
the address as shown from time to time on the records of the Company. Any
Member may specify a different address by written notice to the Board of
Managers.
14.13 BINDING EFFECT. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of
the parties and their legal representatives, heirs, administrators,
executors, successors and assigns.
14.14 NECESSARY INSTRUMENTS AND ACTS. The parties covenant and agree
that they shall execute any further instruments and shall perform any acts
which are or may become necessary to effectuate and to carry out the terms
and conditions of this Agreement.
14.15 NUMBER AND GENDER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
14.16 INTERPRETATION. All references herein to Articles, Sections
and subsections refer to Articles, Sections and subsections of this
Agreement. All Article, Section and subsection headings are for reference
purposes only and shall not affect the interpretation of this Agreement.
14.17 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement
binding on all parties. Each party shall become bound by this Agreement
immediately upon signing any counterpart, independently of
the signature of any other party.
14.18 GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the
internal laws of the State of Delaware, without regard to its conflicts or
choice-of-law rules.
14.19 SECURITIES. The Membership Interests shall be evidenced by
certificates of membership interest and shall be deemed to be "securities"
within the meaning of Article 8 of the Uniform Commercial Code in effect in
the State of Delaware.
14.20 JURISDICTION. The parties hereby submit to the non-exclusive
jurisdiction of the courts of the State of New York or the United States
District Court for the Southern District of New York to take any action
pertaining to, arising out of, or relating to, enforcement of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Limited Liability
Company Agreement as of the day and year first above written.
AMERICAN CRYSTAL SUGAR COMPANY NEWCOURT CAPITAL USA INC.
By: By:
---------------------------- -------------------------------
Its: Its:
--------------------------- ------------------------------
SCHEDULE A
The undersigned Members of Crystech, LLC hereby agree and acknowledge
that the following information applies for all purposes to the Limited
Liability Company Agreement of Crystech, LLC dated and effective May 28,
1998; this Schedule A to be effective as of the date thereof.
Member Agreed
and Form of Value of Financial Voting
Address Contribution Contribution Interest Interest
------- ------------ ------------- --------- --------
American Xxxxxxx xxxx $1,545,000.00 50.00% 50.00%
Sugar Company
Newcourt Capital
U.S.A., Inc. cash $1,545,000.00 50.00% 50.00%
------------- --------- -------
TOTAL $3,090,000.00 100.00% 100.00%
AMERICAN CRYSTAL SUGAR COMPANY NEWCOURT CAPITAL U.S.A., INC.
By: By:
---------------------------- -------------------------------
Its: Its:
--------------------------- ------------------------------
SCHEDULE B
SEE ATTACHED CERTIFICATE
SCHEDULE C
SEE ATTACHED CERTIFICATE
