OPERATING AGREEMENT of TOWER 104 OIL, LLC, a Colorado limited liability company April 6, 2001
Exhibit 3.62
of
TOWER 104 OIL, LLC,
a Colorado limited liability company
April 6, 2001
TABLE OF CONTENTS
| Page | ||||||
| RECITALS |
1 | |||||
| AGREEMENT |
1 | |||||
| ARTICLE 1 |
GENERAL | 1 | ||||
| 1.1 |
Purpose of the Company | 1 | ||||
| 1.2 |
Powers | 1 | ||||
| 1.3 |
Duration | 1 | ||||
| ARTICLE 2 |
OFFICES | 1 | ||||
| 2.1 |
Principal Place of Business | 1 | ||||
| 2.2 |
Registered Office and Agent | 1 | ||||
| ARTICLE 3 |
MEMBER | 2 | ||||
| 3.1 |
Initial Member | 2 | ||||
| 3.2 |
Admission of Additional Members | 2 | ||||
| 3.3 |
Meetings of Members | 2 | ||||
| ARTICLE 4 |
MANAGER | 2 | ||||
| 4.1 |
Powers | 2 | ||||
| 4.2 |
Number | 2 | ||||
| 4.3 |
Appointment | 2 | ||||
| ARTICLE 5 |
FINANCIAL MATTERS | 3 | ||||
| 5.1 |
Initial Capital Contribution | 3 | ||||
| 5.2 |
Additional Capital Contributions | 3 | ||||
| 5.3 |
Interest on Capital Contributions | 3 | ||||
| 5.4 |
Profits and Losses | 3 | ||||
| 5.5 |
Distributions | 3 | ||||
| 5.6 |
Limits on Distributions | 3 | ||||
| 5.7 |
Taxpayer Identification Number | 3 | ||||
| 5.8 |
Checks, Drafts, Etc. | 3 | ||||
| 5.9 |
Fiscal Year | 3 | ||||
| ARTICLE 6 |
DISSOLUTION, WINDING UP AND TERMINATION | 3 | ||||
| 6.1 |
Events of Dissolution | 3 | ||||
| 6.2 |
Winding Up | 3 | ||||
| 6.3 |
Termination | 4 | ||||
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| ARTICLE 7 |
MISCELLANEOUS | 4 | ||||
| 7.1 |
Successor and Assigns | 4 | ||||
| 7.2 |
Governing Law | 4 | ||||
| 7.3 |
Severability | 4 | ||||
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of
TOWER 104 OIL, LLC
This OPERATING AGREEMENT of TOWER 104 OIL, LLC is made as of the 6th day of April, 2001, by TOWER 104 OIL, LLC, a Colorado limited liability company (the “Company”), and XXXX HOMES LIMITED PARTNERSHIP, a California limited partnership d/b/a Xxxx Homes (“Xxxx Homes”), as its sole member and its sole manager.
RECITALS
A. The Company was formed pursuant to the Colorado Limited Liability Company Act, Article 80 of Title 7 of the Colorado Revised Statutes (as from time to time amended, the “Act”), on April 6, 2001, by the filing of Articles of Organization (as amended from time to time, the “Articles”) in the office of the Colorado Secretary of State.
B. The Company and its sole member and its manager desire to enter into this limited liability company agreement pursuant to the Act.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
GENERAL
1.1. Purpose of the Company. The purpose of the Company is to engage in the transaction of any lawful business.
1.2. Powers. The Company shall have all of the powers of a limited liability company under the Act.
1.3. Duration. The Company shall have perpetual existence unless it is dissolved pursuant to Article 9 of this Agreement or pursuant to provisions of the Act not varied by this Agreement.
ARTICLE 2
OFFICES
2.1. Principal Place of Business. The principal place of business of the Company shall be as determined by the manager from time to time. The initial principal place of business shall be as stated in the Articles.
2.2. Registered Office and Agent. The Company shall at all times have and maintain in the State of Colorado a registered office and a registered agent for service of process whose business office is identical with the registered office. The initial registered agent and the initial registered office are as specified in the Articles. The manager may change the registered office of the Company, the
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registered agent of the Company, or both, upon making the filings with the office of the Colorado Secretary of State as required by the Act. The registered agent may change the address of the registered office of the Company upon notice to the Company and upon making the filings with the office of the Colorado Secretary of State as required by the Act.
ARTICLE 3
MEMBER
3.1. Initial Member. Xxxx Homes shall be the sole member of the Company.
3.2. Admission of Additional Members. A party may be admitted as an additional member of the Company only upon the consent of the member. Upon the admission of any additional member, such member shall execute this Agreement, as amended to take into account the interest of such additional member and otherwise as may be agreed by the member and such additional member.
3.3. Meetings of Members. No annual or other meetings of the Company or its members shall be required. Except as otherwise expressly provided in this Agreement, all action of the member shall be taken by consent of the member, in writing or as otherwise manifested.
ARTICLE 4
MANAGER
4.1. Powers. The management of the Company shall be vested in a manager, who shall exercise all powers except to the extent member consent, approval or other action is required by the Act, this Agreement or the member by written notice to the manager. The manager shall have no right to make contributions to the Company and shall not share in the profits and losses of, or in distributions from, the Company, in its capacity as manager. The manager shall receive no compensation for its services as such except as may otherwise be agreed by the member and the manager.
4.2. Number. There shall be one manager. The number of managers may be increased or decreased (whether or not such decrease shall have the effect of shortening the term of any incumbent manager) at any time by action of the member. The manager need not be a member.
4.3. Appointment. The manager shall be appointed by the member and shall serve until the member is removed or resigns. The manager may be removed, with or without cause, at any time, by written notice to the manager. The manager may resign, at any time, by written notice to the member. The Articles state that X. X. Xxxx Co., Inc., a Nevada corporation (“X. X. Xxxx”) shall be the initial manager of the Company. The Company has determined, however, that Xxxx Homes shall be the manager of the Company and the manager has executed an amendment to the Articles to reflect the same. Xxxx Homes, as the sole Member of the Company, hereby consents to such amendment.
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ARTICLE 5
FINANCIAL MATTERS
5.1. Initial Capital Contribution. As its initial capital contribution, the member has contributed to the Company the assets listed on Schedule A to this Agreement.
5.2. Additional Capital Contributions. The member may, but shall not be required to, make any additional capital contributions to the Company.
5.3. Interest on Capital Contributions. No interest shall be paid on any contribution to the capital of the Company.
5.4. Profits and Losses. For United States federal and applicable state income tax purposes, all profits and losses of the Company shall be allocated to the member.
5.5. Distributions. All distributions of cash or other assets of the Company shall be made to the member, subject to Section 5.6 below, as requested by the member. The member shall have the right to demand to receive distributions from the Company in forms other than cash.
5.6. Limits on Distributions. The Company shall not make a distribution to the member to the extent that at the time of the distribution, after giving effect to the distribution, all liabilities of the Company, other than liabilities to the member on account of its limited liability company interest, exceed the fair value of the assets of the Company, or to the extent otherwise limited by the Act or other applicable law.
5.7. Taxpayer Identification Number. For federal income tax purposes and, to the extent permitted by applicable law, all other purposes, the taxpayer or other identification number of the Company shall be the same as the taxpayer or other identification number of the member.
5.8. Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Company shall be signed or endorsed by the manager.
5.9. Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year of the member.
ARTICLE 6
DISSOLUTION, WINDING UP AND TERMINATION
6.1. Events of Dissolution. The Company shall be dissolved only upon the consent of the member or as provided in the Act.
6.2. Winding Up. Upon the dissolution of the Company, the manager shall file a statement of intent to dissolve in the office of the Colorado Secretary of State in accordance with the Act. Upon the filing of the statement of intent to dissolve, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its business, and the Company shall be wound up by the manager or any one or more other persons appointed by the member for such purpose, as liquidating trustee. Company assets shall be distributed in the following order:
(a) to creditors in the manner required by the Act; and
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(b) the balance to the member.
6.3. Termination. Upon the completion of winding up, the Company shall terminate, and the liquidating trustee shall file articles of dissolution in the office of the Colorado Secretary of State in accordance with the Act.
ARTICLE 7
MISCELLANEOUS
7.1. Successor and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and permitted assigns.
7.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to the principles applicable to conflicts of laws.
7.3. Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement, or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been executed as of the 6Ih day of April, 2001.
| COMPANY: | ||||||
| TOWER 104 OIL, LLC, a Colorado limited liability company | ||||||
| By: | XXXX HOMES LIMITED PARTNERSHIP, a California limited partnership d/b/a Xxxx Homes, its manager | |||||
| By: | X. X. XXXX, CO., INC., a Nevada corporation, its general partner | |||||
| By: |
| |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Assistant Secretary | |||||
| By: |
| |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | Assistant Secretary | |||||
| XXXX HOMES: | ||||||
| XXXX HOMES LIMITED PARTNERSHIP, a California limited partnership d/b/a Xxxx Homes | ||||||
| By: | X. X. XXXX, CO., INC., a Nevada corporation, its general partner | |||||
| By: |
| |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Assistant Secretary | |||||
| By: |
| |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | Assistant Secretary | |||||
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SCHEDULE A
TO
Initial Capital Contribution
Schedule A-1
Assets
XXXXX COUNTY, COLORADO
Xxxxx
| 1. | Custy #1 and #3, Xxxxxxx x0, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx |
| 0. | Xxxxx XX 1, 2 and 0, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 66 West |
Leases
| 1. | Lessor: | Xxxxxxx X. Xxxxx, et ux | ||
| Lessee: | Xxxxx X. Xxxxx | |||
| Dated: | December 30, 1981 | |||
| Recorded: | Book 2613, Page 347 | |||
| Lands: | Township 2 South, Range 66 West | |||
| Section 15: W/2 containing 320 acres, more or less | ||||
| 2. | Lessor: | Xxxxxxx X. Xxxxx, et al | ||
| Lessee: | Xxxxx X. Xxxxx | |||
| Dated: | April 20, 1992 | |||
| Recorded: | Book 2657, Page 908 | |||
| Lands: | Township 2 South. Range 66 West | |||
| Section 15: E/2 containing 320 acres, more or less | ||||
| 3. | Lessor: | State of Colorado 70/8160-S | ||
| Lessee: | Pan American Petroleum Corporation | |||
| Dated: | June 2, 1970 | |||
| Recorded: | Book 1974, Page 711 | |||
| Lands: | Township 2 South, Range 66 West | |||
| Section 16: S/2, NE/4 | ||||
The gathering lines and associated easements owned by Seller which service or have serviced the aforesaid xxxxx and leases, including the pipeline that extends to the north of the State AB Lease through Sections 16, 9 and 4 of Township 2 South, Range 66 West as general depicted in Exhibit C.
All equipment and other property rights appurtenant to the xxxxx and leases.
Thorofare’s Working and Net Revenue Interests
| Well Name |
Thorofare ‘Working Interest |
Thorofare Net Revenue Interest | ||
| Custy #1 | .26134044 | .21782489 | ||
| Xxxxx #0 | .00000000 | .00000000 | ||
| Xxxxx xx XX XX #1, #2, #4 | .30000000 | .26250000 |
Price = $40,000.00
Map of Gathering System and Oil and Gas Xxxxx
OMNIBUS AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT/OPERATING AGREEMENT
OF EACH OF
215 BAYVIEW APARTMENTS, LLC,
COAST CABLE PARTNERS,
HAWKERBLUE, LLC,
XXXXX XXXXX HOLDINGS, LLC,
SERENADE AT NATOMAS, LLC,
SH CASCADES, LLC,
SH JUBILEE, LLC,
SH JUBILEE MANAGEMENT, LLC,
XXXX XXXXX RANCH, LLC
XXXX XXXX DEVELOPMENT, LLC,
XXXX CAPITAL II, LLC,
XXXX GSW HOLDINGS, LLC,
XXXX GSW INVESTMENTS, LLC,
XXXX OTAY VILLAGE 11, LLC,
XXXX XXXXXXX VALLEY, LLC,
XXXX RIVERMARK VILLAGE, LLC,
XXXX LA QUINTA LLC,
XXXX NINTH AND COLORADO, LLC,
XXXX XXXXXX HILLS, LLC,
XXXX XXXXXXXX GARDENS, LLC,
TRILOGY ANTIOCH, LLC,
TOWER 104 GATHERING, LLC,
TOWER 104 OIL, LLC,
TRW BTS ONE, LLC,
AND
XXXXXX VILLAGE PARTNERS, LLC
November 5, 2010
This Omnibus Amendment (this “Amendment”) to the Operating Agreement of 000 XXXXXXX XXXXXXXXXX, XXX, a California limited liability company; the Agreement of Partnership of COAST CABLE PARTNERS, a California general partnership; the Operating Agreement of HAWKERBLUE, LLC, a California limited liability company; the First Amended and Restated Operating Agreement of XXXXX XXXXX HOLDINGS, LLC, a Delaware limited liability company; the Operating Agreement of SERENADE AT NATOMAS, LLC, a California limited liability company; the Limited Liability Company Agreement of SH CASCADES, LLC, a Florida limited liability company; the Limited Liability Company Agreement of SH JUBILEE, LLC, a Delaware limited liability company; the Limited Liability Company Agreement of SH JUBILEE MANAGEMENT, LLC, a Delaware limited liability company; the Operating Agreement of XXXX XXXXX RANCH, LLC, a California limited liability company; the Limited Liability Company Agreement of XXXX XXXX DEVELOPMENT, LLC, a Delaware limited liability company; the Amended and Restated Limited Liability Company Agreement of XXXX CAPITAL II, LLC, a Delaware limited liability company; the Operating Agreement of XXXX GSW HOLDINGS, LLC, a Colorado limited liability company; the Operating Agreement of XXXX GSW INVESTMENTS, LLC, a Colorado limited liability company; the Operating Agreement of XXXX LA QUINTA LLC, a California limited liability company; the Limited Liability Company Agreement of XXXX NINTH AND COLORADO, LLC, a Colorado limited liability company; the Operating
Agreement of XXXX OTAY VILLAGE 11, LLC, a California limited liability company; the Limited Liability Company Agreement of XXXX XXXXXXX VALLEY, LLC, a California limited liability company; the Amended and Restated Operating Agreement of XXXX RIVERMARK VILLAGE, LLC, a California limited liability company; the Limited Liability Company Agreement of XXXX XXXXXX HILLS, LLC, a Delaware limited liability company; the Limited Liability Company Agreement of XXXX XXXXXXXX GARDENS, LLC a Florida limited liability company; the Operating Agreement of TOWER 104 GATHERING, LLC, a Colorado limited liability company; the Operating Agreement of TOWER 104 OIL, LLC, a Colorado limited liability company; the Amended and Restated Operating Agreement of TRILOGY ANTIOCH, LLC, a California limited liability company; the Operating Agreement of TRW BTS ONE, LLC, a Colorado limited liability company; and the Operating Agreement of XXXXXX VILLAGE PARTNERS, LLC, a California limited liability company (collectively, such limited liability companies, the “Companies”, and such operating agreements and limited liability company agreements, the “Agreements”) is made and entered into the date first written above by the undersigned, constituting all of the members of the Companies (collectively, the “Members”).
RECITALS
A. The Members have previously entered into the respective Agreements.
B. The Members now desire to amend the respective Agreements, in accordance with the terms thereof, to provide for the equity interests in each Company to be certificated.
AGREEMENT
NOW THEREFORE, in consideration of their mutual promises, covenants and agreements, and notwithstanding anything to the contrary in the Agreements, the parties hereto do hereby promise, covenant and agree as follows:
1. Recitals and Capitalized Terms. The Recitals set forth hereinabove are hereby incorporated for reference as though fully rewritten herein. Unless otherwise set forth herein, all capitalized terms shall have the same meaning as set forth in the respective Agreements. All references to “Agreement” in each of the Agreements shall be deemed to refer to such Agreement as modified by this Amendment.
2. Certificate of Limited Liability Company Interests. Each of the Agreements shall be amended by inserting a new article in the appropriate numerical order at the end of each Agreement as follows:
“ARTICLE [ ]
RIGHTS OF SECURED PARTY
“Section [ ] Notwithstanding anything to the contrary contained in this Agreement, if any interests in the Company (the “Membership Interests”) have been pledged or are subject to the granting of a security interest or other encumbrance therein (a “Pledge”) by the holder thereof (the beneficiary of a Pledge being referred to herein as a “Secured Party”), (a) all rights and remedies of such Secured Party (including but not limited to voting rights) with respect to the Membership Interests contained in any document, agreement or instrument giving effect to or governing such Pledge and the rights and remedies associated therewith (a “Security Document”) shall be given effect by the Company and the Members, (b) the Company and the Members shall take all such action and shall execute and deliver all such agreements, documents or instruments
2
as may be required by the terms and conditions of the Security Document and (c) if the Secured Party becomes the holder of such Membership Interests, then, at such time, the Secured Party shall have all of the rights associated with such Membership Interests under this Agreement and applicable law.
“Section [ ] Notwithstanding anything to the contrary contained in this Agreement, all restrictions on transfer and assignability of any Membership Interests shall be inapplicable, and of no force and effect, as to any transfer of any Membership Interest to a Secured Party in connection with any exercise of rights or remedies by the Secured Party in accordance with the Security Document or as may be permitted by applicable law. Contemporaneously with any transfer of any Member’s Membership Interests to the Secured Party, the transferor Member shall cease to be a member of the Company.
“Section [ ] All of the Membership Interests shall be evidenced by a certificate showing the name of the Member and the percentage of Membership Interests held by that Member. Each Membership Interest certificate shall be signed by an officer of the Company or of its manager or managing member, as the case may be, and such certificates may be signed in counterparts.
“Section [ ] Each of the Membership Interest certificates representing the Members’ interest in the Company shall constitute a “security” within the meaning of (A) Article 8 of the Uniform Commercial Code (including Section 8-102(a) thereof) as in effect from time to time in the state of organization of the Company and (B) the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Each Member hereby agrees that its interest in the Company and in its Membership Interests for all purposes shall be personal property. The Members have no interest in specific Company property.
“Section [ ] At all times prior to the termination of any Pledge of the Membership Interests in accordance with the Security Document (the date of such termination, the “Termination Date”), neither the Members nor [Managers/Directors] will, without the prior written consent of the Secured Party, (i) amend this Agreement to provide that any Membership Interests (x) shall not be evidenced by a certificate or (y) shall not be securities governed by Article 8 of the Uniform Commercial Code or (ii) otherwise “opt out” of Article 8 of the Uniform Commercial Code.
“Section [ ] The provisions of this Article [ ] shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and any future Members [or Managers/Directors] and their respective successors and assigns.
“Section [ ] At all times prior the Termination Date, none of the provisions of this Article [ ] or any other provision of this Agreement may be amended in any way which alters, limits, restricts or adversely affects a Secured Party’s ability to exercise its rights with respect to the Membership Interests, without the prior written consent of such Secured Party.”
3. Miscellaneous. All other terms and provisions of each Agreement which are not expressly amended hereby are hereby ratified, affirmed and approved. This Amendment may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute but one and the same instruments. Facsimile signatures shall be valid as if manually signed.
3
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the date first set forth above.
Signature Page to Omnibus Amendment to LLC Agreements
Signature Page to Omnibus Amendment to LLC Agreements
