OPERATING AGREEMENT OF SEMMEXICO, L.L.C. AN OKLAHOMA LIMITED LIABILITY COMPANY
Exhibit 3.20
The following Operating Agreement is compiled from the actual Operating Agreement and subsequent amendment.
OF
SEMMEXICO, L.L.C.
AN OKLAHOMA LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS |
1 | |||
Section 1.1 Definitions |
1 | |||
ARTICLE II FORMATION OF COMPANY |
2 | |||
Section 2.1 Formation |
2 | |||
Section 2.2 Name |
2 | |||
Section 2.3 Principal Place of Business |
2 | |||
Section 2.4 Registered Office and Registered Agent |
2 | |||
Section 2.5 Term |
2 | |||
Section 2.6 Single Member, L.L.C |
2 | |||
ARTICLE III BUSINESS OF THE COMPANY |
3 | |||
Section 3.1 Purpose |
3 | |||
ARTICLE IV MANAGEMENT OF THE COMPANY |
3 | |||
Section 4.1 Management of the Company |
3 | |||
Section 4.2 Execution of Documents |
3 | |||
Section 4.3 Action Without Meeting |
3 | |||
Section 4.4 Officers |
3 | |||
Section 4.5 Term of Office |
3 | |||
ARTICLE V RIGHTS AND OBLIGATIONS OF MEMBERS |
3 | |||
Section 5.1 Limitation of Liability |
3 | |||
Section 5.2 Right to Indemnification |
3 | |||
Section 5.3 Survival |
4 | |||
Section 5.4 Advance Payment |
4 | |||
Section 5.5 Nonexclusivity of Rights |
4 | |||
Section 5.6 Savings Clause |
5 | |||
ARTICLE VI CONTRIBUTIONS TO THE COMPANY |
5 | |||
Section 6.1 Member’s Initial Capital Contributions |
5 | |||
Section 6.2 Subsequent Contributions |
5 |
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TABLE OF CONTENTS
(continued)
Page | ||||
ARTICLE VII ALLOCATIONS AND DISTRIBUTIONS |
5 | |||
Section 7.1 Allocations of Profits and Losses |
5 | |||
Section 7.2 Distributions of Cash Flow |
5 | |||
Section 7.3 Limitation upon Distributions |
5 | |||
ARTICLE VIII DISSOLUTION AND TERMINATION |
5 | |||
Section 8.1 Dissolution |
5 | |||
Section 8.2 Winding Up, Liquidation and Distribution of Assets |
6 | |||
Section 8.3 Articles of Dissolution |
6 | |||
Section 8.4 Effect of Filing of Articles of Dissolution |
6 | |||
ARTICLE IX MISCELLANEOUS PROVISIONS |
6 | |||
Section 9.1 Choice of Law |
6 | |||
Section 9.2 Amendments |
6 | |||
Section 9.3 Headings |
7 | |||
Section 9.4 Severability |
7 | |||
Section 9.5 Heirs, Successors and Assigns |
7 | |||
Section 9.6 Creditors |
7 |
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OF
SEMMEXICO, L.L.C.
AN OKLAHOMA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is made and entered into as of the 4th day of September, 2008, by and between SemMaterials, L.P., an Oklahoma limited partnership (the “Member”), and SemMexico, L.L.C. (the “Company”).
ARTICLE I
Section 1.1 Definitions. The following terms used in this Operating Agreement shall have the following meanings:
“Act” shall mean the Oklahoma Limited Liability Company Act, as amended from time to time.
“Articles of Organization” shall mean the Articles of Organization of the Company as filed with the Secretary of State of Oklahoma, as amended from time to time.
“Capital Contribution” shall mean any contribution to the capital of the Company in cash or property by the Member.
“Cash Flow” shall mean the gross cash proceeds from the operation of the Company’s business less the portion thereof used to establish Reserves for or to pay Company expenses, debt payments and capital expenditures. “Cash Flow” shall include any net cash proceeds from the sale or disposition of Company property and from the refinancing of indebtedness of the Company, shall be increased by any reduction of Reserves previously established by the Member, and shall not be reduced by depreciation, cost recovery, amortization or similar noncash deductions.
“Company” shall refer to SemMexico, L.L.C.
“Entity” shall mean any general partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association, foreign trust, foreign business organization or other business entity.
“Fiscal Year” shall mean the period terminating on December 31 of each year during the term hereof or on such earlier date on which the Member’s taxable year ends.
“Initial Capital Contribution” shall mean the initial contribution to the capital of the Company pursuant to Section 6.1 of this Operating Agreement.
“Member” shall mean the Person who executed a counterpart of this Operating Agreement as a Member and any Person who may hereafter become a member of the Company.
“Net Profits” and “Net Losses” shall mean the income, gain, loss, deductions and credits of the Company in the aggregate or separately stated, as appropriate, as of the close of each Fiscal year.
“Operating Agreement” shall mean this Operating Agreement as originally executed and as amended from time to time.
“Person” shall mean any individual or Entity, and the heirs, executors, administrators, legal representatives, successors and assigns of such “Person,” where the context so permits.
“Reserves” shall mean funds set aside or amounts allocated to reserves which shall be maintained in amounts deemed sufficient by the Member for working capital and to pay taxes, insurance, debt service or other costs or expenses incident to the ownership or operation of the Company’s business.
ARTICLE II
Section 2.1 Formation. The Company shall be, or has been, organized as an Oklahoma limited liability company by executing and delivering Articles of Organization to the Oklahoma Secretary of State in accordance with and pursuant to the Act.
Section 2.2 Name. The name of the Company is “SemMexico, L.L.C.”
Section 2.4 Registered Office and Registered Agent. The Company’s registered office shall be at the office of its registered agent at 735 1st National Building, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, and the name of its initial registered agent shall be The Corporation Trust Company. The registered office and registered agent may be changed by the Member by filing the address of the new registered office and/or the name of the new registered agent with the Oklahoma Secretary of State pursuant to the Act.
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ARTICLE III
ARTICLE IV
Section 4.1 Manager and Management of the Company. The Member has the exclusive right to manage the Company’s business. Accordingly, the Member, at times acting through the officers (if any) of the Company, shall: (i) manage the affairs and business of the Company; (ii) exercise the authority and powers granted to the Company; and (iii) otherwise act in all other matters on behalf of the Company.
ARTICLE V
Rights and Obligations of Members
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investigative (“Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that such Person was or is a Member or an officer of the Company or such Person was or is the legal representative of or a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of a Member or of an officer of the Company, shall be indemnified by the Company against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable costs and expenses (including, without limitation, attorneys’ fees) actually incurred by such Indemnified Person in connection with such Proceeding if such Indemnified Person acted in good faith and in a manner such Person reasonably believed to be in, or not opposed to, the best interest of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe such Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which such Person reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, that the Indemnified Person had reasonable cause to believe that such Person’s conduct was unlawful.
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ARTICLE VI
Section 6.1 Member’s Initial Capital Contributions. The Member has contributed in immediately available U.S. funds, or in fair market value of property or services rendered, or a promissory note or other binding obligations to contribute cash or property or to perform services, that amount set forth opposite the Member’s name on Exhibit A hereto, for the number of Units set forth opposite the Member’s name thereon.
ARTICLE VII
Section 7.3 Limitation upon Distributions.
A. No distribution or return of capital contributions may be made and paid if, after the distribution or return of a capital contribution, either:
(i) | the Company would be insolvent; or |
(ii) | the net assets of the Company would be less than zero. |
B. The Member may base a determination that a distribution or return of a capital contribution may be made under Section 7.3.A. in good faith reliance upon a balance sheet and profit and loss statement of the Company represented to be correct by the person having charge of its books of account or certified by an independent public or certified public accountant or firm of accountants to fairly reflect the financial condition of the Company.
ARTICLE VIII
A. The Company shall be dissolved upon the occurrence of any of the following events:
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(i) | the entry of a decree of judicial dissolution under the Act; |
(ii) | pursuant to Section 2.5 hereof; |
(iii) | by the written agreement of the Member; or |
(iv) | upon the death, retirement, resignation, court declaration of incompetence, bankruptcy or dissolution of the Member or the occurrence of any other event which terminates the continued membership of the Member. |
Section 8.2 Winding Up, Liquidation and Distribution of Assets.
A. If the Company is to be dissolved and its affairs are to be wound up, the Member is directed to:
(i) | sell or otherwise liquidate such of the Company’s assets as may be required to discharge all liabilities of the Company, including any liabilities to the Member and establish such Reserves as may be reasonably necessary to provide for contingent liabilities of the Company; and |
(ii) | distribute the remaining assets to the Member, such distribution to be made either in cash or in kind, as determined by the Member (or its Representative). |
B. Upon completion of the winding up, liquidation and distribution of the assets, and the filing of Articles of Dissolution as described in Section 8.3 below, the Company shall be deemed terminated.
Section 8.3 Articles of Dissolution. When all debts, liabilities and obligations of the Company have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets of the Company have been distributed, Articles of Dissolution, as required by the act, shall be executed and filed with the Oklahoma Secretary of State.
Section 8.4 Effect of Filing of Articles of Dissolution. Upon the filing of Articles of Dissolution with the Oklahoma Secretary of State, the existence of the Company shall cease.
ARTICLE IX
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(SIGNATURES ON FOLLOWING PAGE)
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MEMBER: | ||
SemMaterials, L.P. | ||
By: | SemOperating G.P., L.L.C., | |
its general partner | ||
By: | /s/ Xxxxxxxx Xxxxx | |
Xxxxxxxx Xxxxx | ||
President and CEO | ||
COMPANY: | ||
SemMexico, L.L.C. | ||
By: | SemMaterials, L.P., its sole member | |
By: | SemOperating G.P., L.L.C., | |
its general partner | ||
By: | /s/ Xxxxxxxx Xxxxx | |
Xxxxxxxx Xxxxx | ||
President and CEO |
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EXHIBIT A
Name and Address |
Amount of Contribution |
Number of Units |
% of Units Issued |
|||||||||
SemMaterials, L.P. 0000 Xxxxx Xxxx, Xxxxx 000 Xxxxx, Xxxxxxxx 00000 |
$ | 100.00 | 100 | 100 | % | |||||||
Total Issued |
100 | 100 | % | |||||||||
Total Outstanding |
100 |
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