TEMTROL, LLC LIMITED LIABILITY COMPANY OPERATING AGREEMENT
Exhibit 3.70
TEMTROL, LLC
This Limited Liability Company Operating Agreement of Temtrol, LLC (the
“Company”) is entered into as of October 3, 2010 by CES Group, LLC (the “Member”).
1. Name. The name of the Company is Temtrol, LLC.
2. Formation,
Qualification, Etc. The Company has been formed
heretofore by the filing of a Certificate of Conversion (the
“Certificate”) on October 3, 2010 with the Secretary of State of the
State of Oklahoma (the “Secretary of State”) pursuant to the provisions of Section 1090.5
of the Oklahoma General Corporations Act (as amended and in effect from time to time, the
“Act”), and the actions of any party taken in order to effect such filing are ratified and
approved. The Member and any Officers (as defined below in Section 14), and each
of them, is authorized to execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary to continue the good standing of the
Company in the State of Oklahoma or for the Company to qualify to do business in any
jurisdiction in which the Company may wish to conduct business.
3. Purpose. The purpose of the Company is to engage in any activity that may
be lawfully carried on by a limited liability company organized under the Act.
4. Term of the Company. The term of existence of the Company commenced on the
date of the filing of the Certificate with the Secretary of State, and shall continue
until the dissolution of the Company has been completed pursuant to Section 18 and the
Certificate has been canceled in the manner required by the Act.
5. Principal Business Office. The principal business office of the Company
shall be located at such location as is determined by the Member from time to time.
6. Registered Office and Agent in Oklahoma. The address of the registered
office of the Company in the State of Oklahoma is c/o Corporation Service Company, 000
X.X. 00xx Xxxxxx, Xxxxxxxx, XX 00000-0000. The name of the registered agent at that
address is Corporation Service Company.
7. Limited Liability. Except as otherwise explicitly provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the Company. No
Indemnified Party (as defined below in Section 16) shall be obligated personally for any
such debt, obligation or liability of the Company solely by reason of having any status
which makes such party an Indemnified Party.
8. Admission of Members. The Member is admitted as a member of the Company
effective upon its execution and delivery of this Agreement. Additional members of the
Company may be admitted with the prior consent of the Member, but until any such
additional members are so admitted at a time when the Member remains a member of the
Company, the Member shall be the sole member of the Company.
9. Management. The management of the Company shall be vested exclusively in
the Member, and the Member may exercise such management authority in its sole discretion.
Without limiting the generality of the foregoing, the Member shall have the power and
authority to bind the Company and to do any and all acts necessary, convenient or
incidental to or for the furtherance of the purpose of the Company described herein,
including all powers and authorities, statutory or otherwise, possessed by members of a
limited liability company under the Act or other applicable law. Any and all agreements,
contracts and other documents or instruments affecting or relating to the business and
affairs of the Company may be executed on the Company’s behalf by the Member alone.
10. Capital Contributions. A member of the Company, including the
Member, shall make contributions to the capital of the Company in such amounts and such
manner as shall be agreed in writing between the Company and such member, and no member
shall have any obligation to contribute capital to the Company except in accordance with
any such agreement.
11. Title to Assets. All assets of the Company, whether real or personal
property, shall be held in the name of the Company.
12. Allocation of Profits and Losses. The Company’s profits and losses shall
be allocated to the Member.
13. Distributions. Distributions shall be made to the Member at the times and
in the aggregate amounts determined by the Member. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution to the
Member on account of its interest in the Company if such distribution would violate
applicable law.
14. Officers. The Member may, from time to time as it deems
advisable, appoint officers of the Company (the “Officers”) and assign in writing titles
(including, without limitation, President, Vice President, Secretary, and Treasurer),
authorities and duties to any such person. Unless the Member decides otherwise, if the
title is one commonly used for officers of a business corporation formed under the
Oklahoma General Corporation Law, the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are normally associated with
that office. Any delegation pursuant to this Section 14 may be revoked at any time by the
Member.
15. Other Business. The Member or its affiliates may, now or in
the future, engage in or possess an interest in other business ventures of every kind and
description, independently or with others and whether similar to or different than the
activities of the Company. The Company shall not have any rights in or to such other
ventures or the income or profits therefrom by virtue of this Agreement, the status of
the Member as a member of the Company, the exclusive rights of the Member to manage the
Company as contemplated by Section 9 hereof or any other rights or
obligations of the Member.
16. Liability and Indemnification.
(a) To the maximum extent permitted by applicable law, each Indemnified Party shall
not be liable to the Company or any other party who has an interest in the Company for
any act
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or omission that was suffered or taken by such Indemnified Party in good faith and that (i) is
not in material breach of this Agreement, (ii) does not constitute fraud, gross negligence,
willful misconduct or willful violation of law, and (iii) with respect to any criminal action or
proceeding, was suffered or taken without reasonable cause to believe that such Indemnified
Party’s conduct was unlawful.
(b) To the maximum extent permitted by applicable law and subject to the other limits
set forth in this Section 16, each Indemnified Party shall be fully protected and
indemnified by the Company out of Company assets against all liabilities and losses
(including amounts paid in respect of judgments, fines, penalties or, if approved by the
Member, settlement of litigation, and legal fees and expenses reasonably incurred in
connection with any pending or threatened litigation or proceeding) suffered by virtue of
serving as an Indemnified Party with respect to any action or omission suffered or taken
in good faith that (i) is not in material breach of this Agreement, (ii) does not
constitute fraud, gross negligence, willful misconduct or willful violation of law, and
(iii) with respect to any criminal action or proceeding, was suffered or taken without
reasonable cause to believe that such Indemnified Party’s conduct was unlawful. The
Company may (and in the case of the Member as an Indemnified Party, will) advance
expenses, including legal fees, for which any Indemnified Party would be entitled by this
Agreement to be indemnified upon receipt of an unsecured undertaking by such Indemnified
Party to repay such advances if it is ultimately determined by a court or other tribunal
of proper jurisdiction that indemnification for such expenses is not permitted by law or
authorized by this Agreement.
(c) For all purposes of this Agreement, actions or omissions taken or suffered by the
Member regarding any matter which this Agreement provides is in the discretion or sole
discretion of the Member shall be conclusively deemed not to constitute fraud, gross
negligence, willful misconduct or willful violation of law. Each Indemnified Party may
consult with reputable outside legal counsel selected by the Company, and any action or
omission taken or suffered in good faith in reliance and accordance with the opinion or
advice of such counsel shall be conclusive evidence that such action
or omission (i) did
not materially violate this Agreement, (ii) did not constitute fraud, gross negligence,
willful misconduct or willful violation of law, and (iii) with respect to any criminal
action or proceeding, was suffered or taken without reasonable cause to believe his
conduct was unlawful.
(d) None of the provisions of this Section 16 shall be deemed to create or grant any
rights in favor of Indemnified Parties that cannot be discharged out of the assets of the
Company or in favor of anyone other than Indemnified Parties and the other parties listed
in the first sentence of Section 16(e); this provision excludes, among others, any right
of subrogation in favor of any insurer or surety. The rights granted under this Section 16
shall survive the termination, dissolution and winding up of the Company.
(e) The term “Indemnified Party” means the Member and each Officer. The rights of
each Indemnified Party under this Section 16 shall inure to the benefit of the
successors, assigns, heirs and personal representatives of such Indemnified Party.
However, it is expressly understood and agreed that no party who is an Officer shall have
any right of exculpation, indemnification or otherwise under this Section 16 with respect
to any action or omission taken or suffered by such party at any time after such party
ceases to be an Officer (whether the action resulting in such party ceasing to be an
Officer is voluntary, involuntary or otherwise), or in
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respect of any controversy relating in any respect to such party’s ceasing to be an Officer, or
in respect of any claim or cause of action against the Company (other than in connection with
enforcing such party’s rights against the Company under this Section 16), the Member or any
affiliate of the Member, or any of the members, partners, stockholders, directors, managers,
officers, employees, agents or other representatives of any of the foregoing.
17. Assignments. The Member may assign in whole or in part its membership
interest in the Company. If the Member transfers all of its membership interest in the
Company pursuant to this Section, the transferee shall be admitted to the Company upon
its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective immediately prior
to the transfer, and, immediately following such admission, the transferor Member shall
cease to be a member of the Company.
18. Dissolution.
(a) The Company shall dissolve, and its affairs shall be wound up upon the first to
occur of the following: (i) the written consent of the Member, (ii) the retirement,
resignation or dissolution of the Member or the occurrence of any other event which
terminates the continued membership of the Member in the Company unless the business of
the Company is continued in a manner permitted by the Act, or (iii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy of the Member will not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the Company shall
continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such activities as
are necessary to wind up its affairs (including the sale of the assets of the Company in
an orderly manner), and the assets of the Company shall be applied in the manner, and in
the order of priority, set forth in Section 18-804 of the Act.
19. Tax Status of Company. So long as the Company has only one
member, the Company shall be disregarded as an entity separate from the Member as
provided in Treasury Regulation Section 301.7701 -3(b), as hereafter amended or
supplemented.
20. Separability of Provisions. Each provision of this Agreement shall be
considered separable and if for any reason any provision or provisions herein are
determined to be invalid, unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the operation of or affect
those portions of this Agreement which are valid, enforceable and legal.
21. Construction of Agreement. This Agreement shall inure to the benefit of,
and shall bind, the Member and its respective representatives, successors and assigns. No
creditor of the Company or other party shall be a third-party beneficiary of
this Agreement, except as specifically provided with respect to Indemnified Parties as
contemplated by Section 16.
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22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement.
23. Entire Agreement. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
24. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Oklahoma (without regard to conflict of laws
principles).
25. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and delivered by
the Member.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the date first
written above.
| CES GROUP, LLC Member |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Vice President and Treasurer | ||||
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