AMENDED AND RESTATED MEMBER CONTROL AGREEMENT OF AGASSIZ ENERGY, LLC Dated: Effective March 31, 2006
THIS AMENDED AND RESTATED MEMBER CONTROL AGREEMENT (this “Agreement”) is
entered into effective as of the 31st day of March, 2006, by and among Agassiz Energy,
LLC, a Minnesota limited liability company (the “Company”), each of the Persons identified as
Members on attached Exhibit “A”, and any other Persons that may from time to time be subsequently
admitted as Members of the Company in accordance with the terms of this Agreement. Capitalized
terms used but not otherwise defined herein shall have the meaning set forth in Section 1.6. This
Agreement amends and restates the Member Control Agreement between the parties hereto dated
November 4, 2004.
ARTICLE I.
THE COMPANY
THE COMPANY
1.1
Formation and Agreement. The initial Members formed the Company as a Minnesota
limited liability company by filing Articles of Organization with the Minnesota Secretary of State
on October 12, 2004. The Members hereby agree that this Agreement constitutes a “Member Control
Agreement” within the meaning of Section 322B.37 of the Act. To the extent that the rights and
obligations of any Member are different by reason of any provision of this Agreement than they
would be in the absence of such provision, including by reason of the Articles of Organization or
Operating Agreement of the Company, this Agreement, to the extent permitted by the Act, shall
control.
1.2
Purposes; Powers. The nature of the business and purposes of the Company are to: (i)
own, construct, operate, lease, finance, contract with, and/or invest in ethanol production and
co-product production facilities; (ii) process feedstocks into ethanol and related co-products, and
market such ethanol and co-products; and (iii) engage in any other business and investment activity
in which a Minnesota limited liability company may lawfully be engaged, as determined by the Board
of Governors. The Company has the power to do any and all acts necessary, appropriate, proper,
advisable, incidental or convenient to, and in furtherance of, the purposes of the Company as set
forth in this Section 1.2 and has any and all powers that may be exercised on behalf of the Company
by the Board of Governors pursuant to the Operating Agreement of the Company or the Act as limited
by Article V of this Agreement.
1.3
Title to Property. All Property owned by the Company shall be owned by the Company as
an entity and not in the name of any Member, and no Member shall have any ownership interest in
such Property, except as a Member of the Company. Each Member’s interest in the Company shall be
personal property for all purposes.
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1.4
Payment of Individual Obligations. The Company’s credit and assets shall be used
solely for the benefit of the Company, and no asset of the Company shall be Transferred or
encumbered for, or in payment of, any individual obligation of any Member or Governor.
1.5
Independent Activities; Transactions With Affiliates. The Governors shall be required
to devote such time to the business and affairs of the Company as may be necessary to manage and
operate the Company, and shall be free to serve any other Person or enterprise in any capacity that
they deem appropriate in their discretion. Neither this Agreement nor any activity undertaken
pursuant hereto shall: (i) prevent any Member or Governor or their Affiliates from engaging in
whatever activities they choose, whether the same are competitive with the Company or otherwise,
and any such activities may be undertaken without having or incurring any obligation to offer any
interest in such activities to the Company or any other Member; or (ii) require any Member or
Governor to permit the Company or any other Governor or Member or their Affiliates to participate
in any such activities. As a material part of the consideration for the execution of this
Agreement by each Member, each Member hereby waives, relinquishes and renounces any such right or
claim of participation. To the extent permitted by applicable law and subject to the provisions
of this Agreement, the Governors are hereby authorized to cause the Company to purchase Property
from, sell Property to, or otherwise deal with, any Member (including any Member who is also a
Governor), or any Affiliate of any Member; provided that any such purchase, sale or other
transaction shall be made on terms and conditions which are no less favorable to the Company than
if the sale, purchase or other transaction had been entered into with an independent third party.
1.6
Definitions. Capitalized words and phrases used in this Agreement have the following
meanings:
(a) “Act” means the Minnesota Limited Liability Company Act, Chapter 322B, Minnesota
Statutes (2006), as amended from time to time, or any corresponding provisions of any
succeeding laws.
(b) “Adjusted Capital Account Deficit” means, with respect to any Unit Holder, the deficit
balance, if any, in such Unit Holder’s Capital Account as of the end of the relevant Fiscal
Year, after giving effect to the following adjustments: (i) crediting to such Capital
Account any amounts which such Unit Holder is deemed to be obligated to restore pursuant to
the next to the last sentences of Sections 1.704-2(g)( 1) and 1.704-2(i)(5) of the
Regulations; and (ii) debiting to such Capital Account the items described in Sections
1.704-l(b)(2)(ii)(d)(4), 1.704-1 (b)(2)(ii)(d)(5) and 1.704-l(b)(2)(ii)(d)(6) of the
Regulations. The foregoing definition is intended to comply with the provisions of
Section 1.704-l(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
(c) “Affiliate” means, with respect to any Person or entity: (i) any Person directly or
indirectly controlling, controlled by or under common control with such Person or entity;
(ii) any officer, director, general partner, member or trustee of any such Person or entity;
or (iii) any Person or entity who is an officer, director, general partner, member or
trustee of any Person described in clauses (i) or (ii) of this sentence. For purposes of
this definition, the
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terms “controlling”, “controlled by” or “under common control with” shall mean the
possession, direct or indirect, of the power to direct or cause the direction of the management
and policies of a Person or entity, whether through the ownership of voting securities, by
contract or otherwise, or the power to elect a majority of the Governors, members, or persons
exercising similar authority with respect to such Person or entities.
(d) “Agreement” means this Amended and Restated Member Control Agreement, as amended from time to
time.
(e) “Articles” means the Company’s Articles of Organization on file with the Minnesota Secretary of
State’s Office, as amended from time to time.
(f) “Assignee” means a transferee of Units who is not admitted as a Substitute Member pursuant to
Section 9.8 of this Agreement.
(g) “Capital Account” means the separate capital account maintained for each Unit Holder in
accordance with Section 2.3 of this Agreement.
(h) “Capital Contributions” means, with respect to any Member, the amount of money (US Dollars),
and the initial Gross Asset Value of any assets or property other than money, contributed by the
Member or such Member’s predecessors in interest to the Company, (net of liabilities secured by
such contributed property that the Company is considered to assume or take subject to under Code
Section 750) with respect to the Units held or purchased by such Member, including additional
Capital Contributions.
(i) “Code” means the United States Internal Revenue Code of 1986, as amended from time to time.
(j) “Company” means Agassiz Energy, LLC, a Minnesota limited liability company.
(k) “Company Minimum Gain” has the meaning given the term “partnership minimum gain” in Sections
1.704-2(b)(2) and 1.704-2(d) of the Regulations.
(1) “Debt” means: (i) any indebtedness for borrowed money or the deferred purchase price of
property as evidenced by notes, bonds or other instruments; (ii) obligations as lessee under
capital leases; (iii) obligations secured by any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind existing on any asset owned or held by the Company, whether or not the
Company has assumed or become liable for the obligations secured thereby; (iv) any obligation under
any interest rate swap agreement; (v) accounts payable; and (vi) obligations, contingent or
otherwise, under direct or indirect guarantees of indebtedness or obligations of the kinds referred
to in clauses (i), (ii), (iii), (iv) and (v), above. Notwithstanding the foregoing, however, Debt
shall not include obligations in respect
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of any accounts payable that are incurred in the ordinary course of the Company’s business
and are not delinquent or are being contested in good faith by appropriate proceedings.
(m) “Depreciation” means, for each Fiscal Year, an amount equal to the depreciation, amortization,
or other cost recovery deduction allowable with respect to an asset for such Fiscal Year, except
that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the
same ratio to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning
adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes
of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with
reference to such beginning Gross Asset Value using any reasonable method selected by the
Governors.
(n) “Dissolution Event” shall have the meaning set forth in Section 10.1 of this Agreement,
(o) “Effective Date” means March 31, 2006.
(p) “Facilities” means the ethanol and co-product production facilities to be constructed and
operated by the Company.
(q) “Financial Close” shall mean the actual closing (execution and delivery of all required
documents) by the Company with its project lender(s) providing for all debt financing, including
senior and subordinated debt and any other project financing characterized by debt obligations and
repayable as debt which is required by the project lender(s) or which is deemed necessary or
prudent in the sole discretion of the Governors.
(r) “Fiscal Year” means: (i) any twelve-month period commencing on January 1, and ending on
December 31.
(s) “GAAP” means generally accepted accounting principles in effect in the United States of America
from time to time.
(t) “Governor” means any Person who: (i) is elected by the Members as a Governor or who has
otherwise become a Governor pursuant to the Articles of Organization or Operating Agreement of the
Company; and (ii) has not ceased to be a Governor. “Board of Governors” or “Governors” mean all
such Persons.
(u) “Gross Asset Value” means with respect to any asset, the asset’s adjusted basis for federal
income tax purposes, except as follows: (i) the initial Gross Asset Value of any asset contributed
by a Member to the Company shall be the gross fair market value of such asset, as determined by
the Governors, provided that the initial Gross Asset Values of the assets contributed to the
Company pursuant to Section 2.1 of this Agreement shall be as set forth in
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such Section; (ii) the Gross Asset Values of all Company assets shall be adjusted to equal their
respective gross fair market values (taking Code Section 770l(g) into account), as determined by
the Governors as of the following times: (A) upon the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a de minimus Capital Contribution;
(B) upon the distribution by the Company to a Member of more than a de minimus amount of Company
Property as consideration for an interest in the Company; and (C) upon the liquidation of the
Company within the meaning of Regulations Section 1.704-l(b)(2)(ii)(g), provided that an adjustment
described in clauses (A) and (B) of this paragraph shall be made only if the Governors reasonably
determine that such adjustment is necessary to reflect the relative economic interests of the
Members in the Company; (iii) the Gross Asset Value of any item of Company assets distributed to
any Member shall be adjusted to equal the gross fair market value (taking Code Section 770l(g) into
account) of such asset on the date of distribution as determined by the Governors; and (iv) the
Gross Asset Values of Company assets shall be increased or decreased, as applicable, to reflect any
adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section
743(b), but only to the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-l(b)(2)(iv)(m) and subparagraph (vi) of the
definition of “Profits” and “Losses” or Section 3.3(c) of this Agreement; provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that an
adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would
otherwise result in an adjustment pursuant to this subparagraph (iv). If the Gross Asset Value of
an asset has been determined or adjusted pursuant to subparagraph (ii) or (iv) of this paragraph,
such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset, for purposes of computing Profits and Losses.
(v)
“Issuance Items” has the meaning set forth in Section 3.3(h) of this Agreement.
(w)
“Liquidation Period” has the meaning set forth in Section 10.6 of this Agreement.
(x) “Liquidator” has the meaning set forth in Section 10.8 of this Agreement.
(y) “Member” means any Person: (i) whose name is set forth as such on Exhibit “A” initially
attached hereto or as it may be amended from time to time, or who has become a Member pursuant to
the terms of this Agreement; and (ii) who is the owner of one or more Units and has not ceased to
be a Member pursuant to the terms of this Agreement. “Members” means all such Persons.
(z) “Membership Financial Rights” means collectively, a Member’s share of “Profits” and “Losses”,
the right to receive distributions of the Company’s assets, and the right to information
concerning the business and affairs of the Company as required by the Act. The Membership
Financial Rights of a Member is quantified by the unit of measurement referred to herein as
“Units”.
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(aa) “Membership Interest” means collectively, the Membership Financial Rights and the Membership
Voting Interest.
(bb) “Membership Voting Interest” means collectively, a Member’s right to vote as set forth in
this Agreement or as required by the Act. The Membership Voting Interest of a Member shall mean as
to any matter to which the Member is entitled to vote hereunder or as may be required under the
Act, the right to one (1) vote for each Unit registered in the name of such Member as shown in the
Unit Holder Register.
(cc) “Net Cash Flow” means the gross cash proceeds of the Company less the portion thereof used to
pay or establish reserves for Company expenses, debt payments, capital improvements, replacements
and contingencies, all as reasonably determined by the Governors. “Net Cash Flow” shall not be
reduced by Depreciation, amortization, cost recovery deductions or similar allowances, but shall be
increased by any reductions of reserves previously established.
(dd) “Nonrecourse Deductions” has the meaning set forth in Section 1.704-2(b)(l) of the
Regulations.
(ee) “Nonrecourse Liability” has the meaning set forth in Section 1.704-2(b)(3) of the
Regulations.
(ff) “Officer” means any Person who: (i) is appointed as an Officer by the Governors; and (ii) has
not creased to be an Officer. “Officers” mean all such Persons.
(gg) “Permitted Transfer” has the meaning set forth in Section 9.2 of this Agreement.
(hh) “Person” means any individual, general or limited partnership, joint venture, limited
liability company, corporation, trust, estate, association, nominee or other entity.
(ii) “Profits and Losses” mean, for each Fiscal Year, an amount equal to the Company’s taxable
income or loss for such Fiscal Year, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant
to Code Section 703(a)(l) shall be included in taxable income or loss), with the following
adjustments (without duplication): (i) any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Profits or Losses pursuant to this
definition of “Profits” and “Losses” shall be added to such taxable income or loss; (ii) any
expenditures of the Company described in Code Section 705(a)(2)(b) or treated as Code Section
705(a)(2)(b) expenditures pursuant to Regulations Section 1.704-l(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses pursuant to this definition of “Profits” and
“Losses” shall be subtracted from such taxable income or loss; (iii) in the event the Gross Asset
Value of any Company asset is adjusted pursuant to subparagraphs (ii) or (iii) of the definition
of Gross Asset Value above, the amount of such
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adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset
Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the
asset) from the disposition of such asset and shall be taken into account for purposes of computing
Profits or Losses; (iv) gain or loss resulting from any disposition of Property with respect to
which gain or loss is recognized for federal income tax purposes shall be computed by reference to
the Gross Asset Value of the Property disposed of, notwithstanding that the adjusted tax basis of
such Property differs from its Gross Asset Value; (v) in lieu of the depreciation, amortization,
and other cost recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year, computed in accordance with
the definition of Depreciation; (vi) to the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Section 734(b) is required, pursuant to Regulations Section
1.7Q4-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Unit Holder’s interest in the Company, the amount of
such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) from the disposition of such asset and
shall be taken into account for purposes of computing Profits or Losses; and (vii) notwithstanding
any other provision of this definition, any items which are specially allocated pursuant to
Sections 3.3 and 3.4 of this Agreement shall not be taken into account in computing Profits or
Losses. The amounts of the items of Company income, gain, loss or deduction available to be
specially allocated pursuant to Sections 3.3 and 3.4 of this Agreement shall be determined by
applying rules analogous to those set forth in subparagraphs (i) through (vi) above.
(jj) “Property” means all real and personal property acquired by the Company (including cash), and
any improvements thereto, and shall include both tangible and intangible property.
(kk) “Regulations” means the Income Tax Regulations, including Temporary Regulations, promulgated
under the Code, as such regulations are amended from time to time.
(ll) “Regulatory Allocations” has the meaning set forth in Section 3.4 of this Agreement.
(mm) “Related Party” means the adopted or birth relatives of any Person and such Person’s spouse
(whether by marriage or common law), if any, including without limitation great-grandparents,
grandparents, parents, children (including stepchildren and adopted children), grandchildren, and
great-grandchildren thereof, and such Person’s (and such Person’s spouse’s) brothers, sisters, and
cousins and their respective lineal ancestors and descendants, and any other ancestors and/or
descendants, and any spouse of any of the foregoing, each trust created for the exclusive benefit
of one or more of the foregoing, and the successors, assigns, heirs, executors, personal
representatives and estates of any of the foregoing.
(nn) “Securities Act” means the Securities Act of 1933, as amended.
(oo) “Tax Matters Member” has the meaning set forth in Section 7.4 of this Agreement.
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(pp) “Transfer” means, as a noun, any voluntary or involuntary transfer, sale,
pledge or hypothecation or other disposition and, as a verb, to voluntarily or
involuntarily transfer, give, sell, exchange, assign, pledge, bequest, hypothecate or
otherwise dispose of.
(qq) “Unit” means an ownership interest in the Company issued in consideration of a Capital
Contribution made as provided in Article II of this Agreement.
(rr) “Unit Holder” means any Person who is the owner of one or more Units. “Unit Holders”
means all such Persons.
(ss) “Unit Holder Nonrecourse Debt” has the same meaning as the term “partner nonrecourse
debt” in Section 1.704-2(b)(4) of the Regulations.
(tt) “Unit Holder Nonrecourse Debt Minimum Gain” means an amount, with respect to each Unit
Holder Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Unit
Holder Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance
with Section 1.704-2(i)(3) of the Regulations.
(uu) “Unit Holder Nonrecourse Deductions” has the same meaning as the term “partner
nonrecourse deductions” in Sections 1.704-2(i)(l) and 1.704-2(i)(2) of the Regulations.
(vv) “Unit Holder Register” means the register maintained by the Company at its principal
office or by the Company’s duly appointed agent, setting forth the name, address and
Capital Contributions of each Unit Holder (or such Unit Holder’s predecessors in interest),
and the number of Units, certificate number(s) and date of issuance of Units issued to each
Unit Holder, which register shall be modified from time to time as additional Units are
issued and as Units are Transferred pursuant to this Agreement.
ARTICLE II.
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
2.1
Initial Capital Contributions. The name, address, initial Capital Contribution and
initial Units quantifying the Membership Interest of each of the initial Members shall be set forth
on Exhibit “A” attached hereto, and shall also be set forth on the Unit Holder Register.
2.2
Additional Capital Contributions; Additional Units. No Unit Holder shall be obligated
to make any additional Capital contributions to the Company or to pay any assessment to the
Company, other than any unpaid amounts on such Unit Holder’s original Capital Contributions, and no
Units shall be subject to any calls, requests or demands for capital. Subject to Section 5.3,
additional Units may be issued in consideration of Capital Contributions as agreed to between the
Governors and the Persons acquiring such Units. The Members shall have no preemptive rights
pursuant to Section 322B.33 of the Act.
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2.3
Maximum Investment. No Member may own more than twenty percent (20%) of the
Membership Interests and Membership Units issued by the Company pursuant to a registered public
offering initiated by the Company in the year 2006.
2.4
Capital Accounts. A Capital Account shall be maintained for each Unit Holder in
accordance with the following provisions:
(a) To each Unit Holder’s Capital Account there shall be credited: (i) such Unit Holder’s
Capital Contributions; (ii) such Unit Holder’s distributive share of Profits and any items
in the nature of income or gain which are specially allocated pursuant to Sections 3.3 and
3.4 of this Agreement; and (iii) the amount of any Company liabilities assumed by such Unit
Holder or which are secured by any Property distributed to such Unit Holder;
(b) To each Unit Holder’s Capital Account there shall be debited: (i) the amount of money
and the Gross Asset Value of any Property distributed to such Unit Holder pursuant to any
provision of this Agreement; (ii) such Unit Holder’s distributive share of Losses and any
items in the nature of expenses or losses which are specially allocated pursuant to Sections
3.3 and 3.4 of this Agreement; and (iii) the amount of any liabilities of such Unit Holder
assumed by the Company or which are secured by any Property contributed by such Unit Holder
to the Company;
(c) In the event Units are Transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the extent it relates
to the Transferred Units; and,
(d) In determining the amount of any liability for purposes of subparagraphs (a) and (b)
above Code Section 752(c) and any other applicable provisions of the Code and Regulations
shall be taken into account.
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations Section 1.704-1 (b), and shall be
interpreted and applied in a manner consistent therewith. In the event the Governors determine that
it is prudent to modify the manner in which Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Company or any Unit Holders), are
computed in order to comply with such Regulations, the Governors may make such modification,
provided that it is not likely to have a material effect on the amounts distributed to any Person
pursuant to Article X of this Agreement upon the dissolution of the Company. The Governors also
shall: (i) make any adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Unit Holders and the amount of capital reflected on the Company’s balance
sheet, as computed for book purposes, in accordance with Regulations Section 1.704-l(b)(2)(iv)(q);
and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause
this Agreement not to comply with Regulations Section 1.704-l(b).
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ARTICLE III.
ALLOCATIONS
ALLOCATIONS
3.1
Profits. After giving effect to the special allocations in Sections 3.3 and 3.4 of this
Agreement, Profits for any Fiscal Year shall be allocated among the Unit Holders in proportion to
Units held.
3.2
Losses. After giving effect to the special allocations in Sections 3.3 and 3.4 of this
Agreement, Losses for any Fiscal Year shall be allocated among the Unit Holders in proportion to
Units held.
3.3
Special Allocations. The following special allocations shall be made in the following
order:
(a) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the
Regulations, notwithstanding any other provision of this Article III, if there is a net
decrease in Company Minimum Gain during any Fiscal Year, each Unit Holder shall be specially
allocated items of Company income and gain for such Fiscal Year (and, if necessary,
subsequent Fiscal Years) in an amount equal to such Unit Holder’s share of the net decrease
in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Unit Holder pursuant thereto. The items to be so
allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of
the Regulations. This Section 3.3(a) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted
consistently therewith.
(b) Unit
Holder Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article III, if there
is a net decrease in Unit Holder Nonrecourse Debt Minimum Gain attributable to a Unit Holder
Nonrecourse Debt during any Fiscal Year, each Unit Holder who has a share of the Unit Holder
Nonrecourse Debt Minimum Gain attributable to such Unit Holder Nonrecourse Debt, determined
in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated
items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal
Years) in an amount equal to such Unit Holder’s share of the net decrease in Unit Holder
Nonrecourse Debt Minimum Gain, determined in accordance with Regulations Section
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Unit Holder pursuant thereto. The
items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and
1.704-2(j)(2) of the Regulations. This Section 3.3(b) is intended to comply with the minimum
gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be
interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Member unexpectedly receives any
adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-
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l(b)(2)(ii)(d)(5), or 1.704-l(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain
shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to
the extent required by the Regulations, the Adjusted Capital Account Deficit as soon as
practicable, provided that an allocation pursuant to this Section 3.3(c) shall be made only if and
to the extent that the Member would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article III have been tentatively made as if this Section 3.3(c)
were not in this Agreement.
(d) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of
any Fiscal Year which is in excess of the sum of: (i) the amount such Member is obligated to
restore pursuant to any provision of this Agreement; and (ii) the amount such Member is deemed to
be obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(l) and
1.704-2(i)(5) of the Regulations, then in such circumstance each such Member shall be specially
allocated items of Company income and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this Section 3.3(d) shall be made only if and to the
extent that such Member would have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Article III have been made as if Sections 3.3(c) and 3.3(d) were
not in this Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or other period shall be
specially allocated among the Members in proportion to Units held.
(f) Unit Holder Nonrecourse Deductions. Any Unit Holder Nonrecourse Deductions for any Fiscal Year
shall be specially allocated to the Unit Holder who bears the economic risk of loss with respect to
the Unit Holder Nonrecourse Debt to which such Unit Holder Nonrecourse Deductions are attributable
in accordance with Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company
asset, pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-l(b)(2)(iv)(m)(2) or 1.704-l(b)(2)(iv)(m)(4), to be taken into account in determining
Capital Accounts as the result of a distribution to a Unit Holder in complete liquidation of such
Unit Holder’s interest in the Company, the amount of such adjustment in Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis) and such gain or loss shall be specially allocated to the Unit
Holders in accordance with their interests in the Company in the event Regulations Section
1.704-l(b)(2)(iv)(m)(2) applies, or to the Unit Holder to whom such distribution was made in the
event Regulations Section 1.704-l(b)(2)(iv)(m)(4) applies.
(h) Allocations Relating to Taxable Issuance of Company Units. Any income, gain, loss or deduction
realized as a direct or indirect result of the issuance of Units by the Company to a Unit Holder
(the “Issuance Items”) shall be allocated among the Unit Holders so that, to the
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extent possible, the net amount of such Issuance Items, together with all other
allocations under this Agreement to each Unit Holder shall be equal to the net amount that
would have been allocated to each such Unit Holder if the Issuance Items had not been
realized.
3.4
Regulatory Allocations. The allocations set forth in Sections 3.3(a), 3.3(b), 3.3(c),
3.3(d), 3.3(e), 3.3(f), 3.3(g) and 3.5 (the “Regulatory Allocations”) are intended to comply with
certain requirements of the Regulations. It is the intent of the Unit Holders that, to the extent
possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or
with special allocations of other items of Company income, gain, loss or deduction pursuant to this
Section 3.4. Therefore, notwithstanding any other provision of
this Article III (other than the
Regulatory Allocations), the Governors shall make such offsetting special allocations of Company
income, gain, loss or deduction in whatever manner they determine appropriate so that, after such
offsetting allocations are made, each Unit Holder’s Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Unit Holder would have had if the Regulatory
Allocations were not part of the Agreement and all Company items were allocated pursuant to
Sections 3.1, 3.2, and 3.3(h).
3.5
Loss Limitation. Losses allocated pursuant to Section 3.2 of this Agreement shall not
exceed the maximum amount of Losses that can be allocated without causing any Unit Holder to have
an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some but not all of
the Unit Holders would have Adjusted Capital Account Deficits as a consequence of an allocation of
Losses pursuant to Section 3.2 of this Agreement, the limitation set forth in this Section 3.5
shall be applied on a Unit Holder by Unit Holder basis and Losses not allocable to any Unit Holder
as a result of such limitation shall be allocated to the other Unit Holders in accordance with the
positive balances in such Unit Holder’s Capital Accounts so as to allocate the maximum permissible
Losses to each Unit Holder under Section 1.704-1 (b)(2)(ii)(d) of the Regulations.
3.6
Other Allocation Rules.
(a) For purposes of determining Profits, Losses and any other items allocable to any period,
Profits, Losses and any such other items shall be determined on a daily, monthly or other
basis, as determined by the Governors using any permissible method under Code Section 706
and the Regulations thereunder.
(b) The Unit Holders are aware of the income tax consequences of the allocations made by
this Article III and hereby agree to be bound by the provisions of
this Article III in reporting
their shares of Company income and loss for income tax purposes.
(c) Solely for purposes of determining a Unit Holder’s proportionate share of the “excess
nonrecourse liabilities” of the Company within the meaning of Regulations Section 1.752-
3(a)(3), the Unit Holders’ aggregate interests in Company Profits shall be deemed to be as
provided in the Capital Accounts. To the extent permitted by Section 1.704-2(h)(3) of the
Regulations, the Governors shall endeavor to treat distributions of Net Cash Flow as having
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been made from the proceeds of a Nonrecourse Liability or a Unit Holder Nonrecourse Debt
only to the extent that such distributions would cause or increase an Adjusted Capital
Account Deficit for any Unit Holder.
(d) Profits and Losses to the Unit Holders shall be allocated among the Unit Holders in the
ratio which each Unit Holder’s Units bears to the total number of Units issued and
outstanding.
3.7
Tax Allocations; Code Section 704(c). In accordance with Code Section 704(c) and the
Regulations thereunder, income, gain, loss, and deduction with respect to any Property contributed
to the capital of the Company shall, solely for tax purposes, be allocated among the Unit Holders
so as to take into account of any variation between the adjusted basis of such Property to the
Company for federal income tax purposes and its initial Gross Asset Value. In the event the Gross
Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of
Gross Asset Value in Section 1.10(u) of this Agreement, subsequent allocations of income, gain,
loss and deduction with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same
manner as under Code Section 704(c) and the Regulations thereunder. Any elections or other
decisions relating to such allocations shall be made by the Governors in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 3.7 are
solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken
into account in computing, any Unit Holder’s Capital Account or share of Profits, Losses, other
items or distributions pursuant to any provision of this Agreement.
3.8
Tax Credit Allocations. All income tax credits with respect to the Company’s property
or operations shall be allocated among the Members in accordance with their respective Membership
Interests for the Fiscal Year during which the expenditure, production, sale or other event giving
rise to such credits occurs. This Section 3.8 is intended to comply with the applicable tax
credit allocation principles of Regulations Section 1.704-l(b)(4)(ii) and shall be interpreted
consistently therewith.
ARTICLE IV.
DISTRIBUTIONS
DISTRIBUTIONS
4.1
Net Cash Flow. Subject to the terms and conditions of any applicable loan covenants
and restrictions, the Governors, in their sole discretion, shall make distributions of Net Cash
Flow, if any, to the Unit Holders in proportion to Units held. In determining Net Cash Flow, the
Governors shall endeavor to provide for cash distributions at such times and in such amounts as
will permit the Unit Holders to make timely payment of income taxes.
4.2
Amounts Withheld. All amounts withheld pursuant to the Code or any provision of any
state, local or foreign tax law with respect to any payment, distribution or allocation to the
Company or the Unit Holders shall be treated as amounts paid or distributed, as the case may be, to
the Unit Holders
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with respect to which such amount was withheld pursuant to this Section 4.2 for all purposes under
this Agreement. The Company is authorized to withhold from payments and distributions, or with
respect to allocations, to the Unit Holders and to pay over to any federal, state, local or
foreign government, any amounts required to be so withheld, and shall allocate any such amounts to
the Unit Holders with respect to which such amount was withheld.
4.3
Limitations on Distributions. The Company shall make no distributions to the Unit
Holders except as provided in this Article IV and in Article X of this Agreement. Notwithstanding
any other provision, no distribution shall be made if not permitted to be made under the Act.
ARTICLE V.
MANAGEMENT
MANAGEMENT
5.1
Board of Governors. Except as otherwise provided in this Agreement or required
by law, the Governors shall direct the business and affairs and exercise all of the powers of the
Company, and shall adopt such policies, rules, regulations and actions as they deem advisable.
Subject to Section 5.3 of this Agreement or any other express provisions of this Agreement, the
business and affairs of the Company shall be managed by or under the direction of the Governors and
not by the Members. No Member, other than a Member acting in his or her capacity as a Governor or
Officer of the Company, has the power or authority to act for or on behalf of the Company, to bind
the Company by any act, or to incur any expenditures on behalf of the Company. Any Member who
invests at least twelve million dollars ($12,000,000.00) in the registered public offering of
Company, initiated by the company in the year 2006, in exchange for Membership Interests and/or
Membership Units shall be entitled to be or to appoint a Governor of the Company for so long as
such Member continues to be the owner of at least twelve million
dollars ($12,000,000.00) worth of
Membership Interests and/or Membership Units purchased by such Member in such public offering,
provided, however, that such member shall not be entitled to be or to vote for other governors
while such member is entitled to be or to appoint a governor..
5.2
Governor as Agent. Notwithstanding the power and authority of the Governors to manage
the business and affairs of the Company, no Governor shall have authority to act as agent for the
Company for the purposes of its business (including the execution of any instrument on behalf of
the Company) unless the Governors have authorized the Governor to take such action.
5.3
Restrictions on Authority of Governors.
(a) The Governors shall not have authority to, and they covenant and agree that they shall
not, do any of the following acts without the unanimous consent of the Members:
(i) Cause or permit the Company to engage in any activity that is not consistent
with the purposes of the Company as set forth in Section 1.2 of this Agreement;
15
(ii) Knowingly engage in any act in contravention of this Agreement or which would
make it impossible to carry on the ordinary business of the Company, except as
otherwise provided in this Agreement;
(iii) Possess Company Property, or assign rights in specific Company Property, for
other than a Company purpose; or,
(iv) Cause the Company to voluntarily take any action that would cause a bankruptcy
of the Company.
(b) The Governors shall not have authority to, and they covenant and agree that they shall
not cause the Company to, without the consent of a majority of the Membership Voting
Interests:
(i) Merge, consolidate, exchange or otherwise dispose of all or substantially all
of the Property, except for a liquidating sale of the Property in connection with
the dissolution of the Company; or
(ii) Cause the Company to acquire any equity or debt securities of any Governor or
any of its Affiliates, or otherwise make loans to any Governor or any of its
Affiliates.
The actions specified herein as requiring the consent of the Members shall be in addition to any
actions by the Governor that are specified in the Act as requiring the consent or approval of the
Members.
Unless otherwise required by this Agreement or the Act, any such required consent or approval may
be given by a vote of a majority of the Membership Voting Interests.
5.4
Limitation of Liability; Indemnification. To the maximum extent permitted under the Act
and other applicable law, no Member, Governor or Officer shall be personally liable for any debt,
obligation or liability of the Company merely by reason of being a Member, Governor or Officer.
Furthermore, no Governor or Officer shall be personally liable to the Company or its Members for
monetary damages for a breach of fiduciary duty by such Governor or Officer; provided that this
provision shall not eliminate or limit the liability of a Governor or Officer for any of the
following: (i) any breach of the duty of loyalty to the Company or its Members; (ii) acts or
omissions not in good faith or which involve intentional misconduct or knowing violation of law;
(iii) a transaction from which the Governor or Officer derived an improper personal benefit; or,
(iv) a wrongful distribution in violation of the Act. To the maximum extent permitted under the Act
and other applicable law, the Company, its receiver, or its trustee (in the case of its receiver or
trustee, to the extent of Company Property) shall indemnify, save and hold harmless, and pay all
judgments and claims against each Governor or Officer relating to any liability or damage incurred
by reason of any act performed or omitted to be performed by such Governor or Officer, in
connection with the business of the Company, including reasonable attorneys’ fees incurred by such
Governor in connection with the defense of any action based on any such act or omission, which
attorneys’ fees
16
may be paid as incurred, including all such liabilities under federal and state securities laws as
permitted by law. To the maximum extent permitted under the Act and other applicable law, in the
event of any action by a Unit Holder against any Governor or Officer, including a derivative suit,
the Company shall indemnify, save and hold harmless, and pay all costs, liabilities, damages and
expenses of such Governor or Officer, including reasonable attorneys’ fees incurred in the defense
of such action. Notwithstanding the foregoing provisions, no Governor or Officer shall be
indemnified by the Company to the extent prohibited or limited by the Act. The Company may purchase
and maintain insurance on behalf of any Governor or Officer in his or her official capacity against
any liability described in this Section, whether or not the Company would otherwise be required to
indemnify such Governor or Officer against such liability.
ARTICLE VI.
MEMBERSHIP UNITS; MEMBERS
MEMBERSHIP UNITS; MEMBERS
6.1
Membership Units. The Company is initially organized with one (1) class of Membership
Interests, designated in Units, which Units are initially the only class of equity in the Company.
The Units shall have no par value and shall be of a single class with identical rights. The Company
shall have a first lien on the Units of any Member for any debt or liability owed by such Member to
the Company.
Additional and different classes of Membership Interests represented by different Units may be
created and issued to new or existing Members on such terms and conditions as the Governors may
determine. Such additional and different classes may have different rights, powers and preferences
(including, without limitation, voting rights and distribution preferences), which may be superior
to those of existing Members. Members shall have no preemptive rights to acquire additional or
newly created Units.
6.2
Certificates; Surrender for Transfer. Certificates representing Units shall be in such
form as shall be determined by the Governors, in their discretion. If a certificate is lost,
destroyed or mutilated, a new one may be issued upon such terms and indemnity to the Company as the
Governors may prescribe. No new certificate shall be issued until the former certificate for a like
number of Units has been surrendered and canceled.
6.3
Members. Each Person who desires to become a Member must sign this Agreement or
complete and execute a signature page to this Agreement in the form of Exhibit “B” attached hereto
and such other documents as may be required by the Governors. Membership Interests and Units of
the Members shall be set forth on Exhibit “A” to this Agreement, as amended from time to time.
6.4
Additional Members. No Person shall become a Member without the approval of the
Governors. The Governors may refuse to admit any Person as a Member in their sole discretion. Any
such admission must comply with the requirements described in this Agreement and will be effective
only after such Person has executed and delivered to the Company such documentation as determined
by the Governors to be necessary and appropriate to effect such admission.
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6.5
Members’ Voting Rights. Each Member shall be entitled to one (1) vote for each Unit
registered in the name of such Member (as shown in the Unit Holder Register) as to any matter for
which such Member is entitled to vote under this Agreement or the Act. Members do not have
cumulative voting rights as to any matter. Except as otherwise expressly provided for in this
Agreement, Members shall not have any right or power to take part in the management or control of
the Company or its business and affairs or to act for or bind the Company in any way.
6.6
Termination of Membership. If for any reason the membership of a Member is terminated
as provided in this Agreement or the Act, the Member whose membership has terminated loses all
Membership Voting Interests and shall be considered merely an unadmitted Assignee of the Membership
Financial Rights owned before the termination of membership, having only the rights provided for
unadmitted Assignees in Section 9.7 hereof.
6.7
No Member Right of Redemption or Return of Capital. Except as otherwise provided in
this Agreement or the Act, no Member or transferee of any Member shall have any right to demand or
receive a return of his/her/its Capital Contribution or to require the redemption of his/her/its
Units.
6.8
Waiver of Dissenters Rights. To the fullest extent permitted by the Act, each Member
hereby disclaims, waives and agrees not to assert: (i) any dissenters’ or similar rights under the
Act; (ii) any right to require partition or appraisal of the Company or of any of its assets, or to
cause the sale of any Company Property; or (iii) any right to maintain any action for partition or
to compel any sale with respect to such Member’s Units, or with respect to any Company Property.
6.9
Loans. Any Member or Affiliate may, with the consent of the Governors, lend or advance
money to the Company, in which case the amount of any such loan or advance shall not be treated as
a contribution to the capital of the Company but rather shall be a debt due from the Company,
repayable out of the Company’s cash, and shall bear interest at a rate not in excess of the prime
rate established, from time to time, by any major bank selected by the Governors for loans to its
most creditworthy commercial borrowers, plus four percent (4%) per annum. If a Governor or an
Affiliate of a Governor is the lending Member, the rate of interest and the terms and conditions of
such loan shall be no less favorable to the Company than if the lender had been an independent
third party. None of the Members or their Affiliates shall be obligated to make any loan or advance
to the Company.
6.10
Action Without a Meeting. Any action required or permitted to be taken at a meeting of
the Members may be taken without a meeting by written action signed by the Members owning the
Membership Voting Interests required to take such action at a duly called meeting of the Members.
The written action shall be effective when signed by the required number of Members, unless a
different effective time is provided for in the written action.
ARTICLE VII.
ACCOUNTING, BOOKS AND RECORDS
ACCOUNTING, BOOKS AND RECORDS
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7.1
Accounting. Books and Records. The books and records of the Company shall be kept, and
the financial position and the results of its operations recorded, in accordance with GAAP. The
books and records shall reflect all Company transactions and shall be appropriate and adequate for
the Company’s business. The Company shall maintain at its principal place of business: (i) a
current list of the full name and last known address of each Member and Assignee set forth in
alphabetical order, together with the Capital Contributions, Capital Account and Units of each
Member and Assignee; (ii) the full name and address of each Governor; (iii) a copy of the Articles
and any and all amendments thereto, together with executed copies of any powers of attorney
pursuant to which the Articles or any amendments thereto have been executed; (iv) copies of the
Company’s federal, state and local income tax and information returns and reports, if any, for the
six (6) most recent taxable years; (v) a copy of this Agreement and any and all amendments hereto,
together with executed copies of any powers of attorney pursuant to which this Agreement or any
amendments hereto have been executed; (vi) copies of the financial statements of the Company, if
any, for the six (6) most recent Fiscal Years; and, (vii) a copy of the Company’s Operating
Agreement and any and all amendments thereto. The Company shall use the accrual method of
accounting in the preparation of its financial reports and for tax purposes and shall keep its
books and records accordingly.
7.2
Delivery to Members and Inspection. Any Member or such Member’s designated
representative shall have reasonable access during normal business hours to the information and
documents kept by the Company pursuant to Section 7.1 of this Agreement. The rights granted to a
Member pursuant to this Section 7.2 are expressly subject to compliance by such Member with the
safety, security and confidentiality procedures and guidelines of the Company, as such procedures
and guidelines maybe amended from time to time. Upon the request of any Member for purposes
reasonably related to such Member’s interest as a Member, the Governors shall promptly deliver to
the requesting Member, at the expense of the requesting Member, a copy of the information required
to be maintained under Section 7.1 of this Agreement. Each Member has the right, upon reasonable
request for purposes reasonably related to such Member’s interest as a Member and for proper
purposes, to: (i) inspect and copy during normal business hours any of the Company records
described in Section 7.1 of this Agreement; and (ii) obtain from the Governors, promptly after
their becoming available, copies of the Company’s federal, state and local income tax and
information returns for each Fiscal Year. Each Assignee shall have the right to information
regarding the Company only to the extent required by the Act.
7.3
Reports. The Treasurer of the Company shall be responsible for causing the preparation
of financial reports of the Company and the coordination of financial matters of the Company with
the Company’s accountants. The Company shall cause to be delivered to each Member the financial
statements listed below, prepared, in each case (other than with respect to Member’s Capital
Accounts, which shall be prepared in accordance with this Agreement) in accordance with GAAP
consistently applied. Delivery of the financial statements shall occur as soon as practicable
following the end of each Fiscal Year (and in any event not later than 120 days after the end of
such Fiscal Year), and at such time as distributions are made to the Unit Holders pursuant to
Article X of this Agreement following the occurrence of a Dissolution Event. The financial
statements shall
19
consist of a balance sheet of the Company as of the end of such Fiscal Year and the related
statements of operations, Unit Holders’ Capital Accounts and changes therein, and cash flows for
such Fiscal Year, together with appropriate notes to such financial statements and supporting
schedules, all of which shall be audited and certified by the Company’s accountants, and in each
case setting forth in comparative form the corresponding figures for the immediately preceding
Fiscal Year end (in the case of the balance sheet) and the two (2) immediately preceding Fiscal
Years (in the case of the statements). Public access to the financial statements through either
the Company’s or the Securities and Exchange Commission’s website shall constitute delivery
pursuant to this Section 7.3.
7.4 Tax Matters. The Governors shall, without any further consent of the Unit Holders being
required (except as specifically required herein), make any and all elections for federal, state,
local and foreign tax purposes as the Governors shall determine appropriate and shall have the
right and authority to represent the Company and the Unit Holders before taxing authorities or
courts of competent jurisdiction in tax matters affecting the Company or the Unit Holders in their
capacities as Unit Holders, and to file any tax returns and execute any agreements or other
documents relating to or affecting such tax matters, including agreements or other documents that
bind the Unit Holders with respect to such tax matters or otherwise affect the rights of the
Company and the Unit Holders. The Governors shall designate a Person to be specifically authorized
to act as the “Tax Matters Member” under the Code and in any similar capacity under state or local
law; provided, however, that the Governors shall have the authority to designate, remove and
replace the Tax Matters Member who shall act as the tax matters partner within the meaning of and
pursuant to Regulations Sections 301.6231(a)(7)-l and -2 or any similar provision under state or
local law. Necessary tax information shall be delivered to each Unit Holder as soon as practicable
after the end of each Fiscal Year, but not later than three (3) months after the end of each Fiscal
Year.
ARTICLE VIII.
AMENDMENTS
AMENDMENTS
8.1 Amendments. Amendments to this Agreement may be proposed by the Governors or any
Member. Following any such proposal, the Governors shall submit to the Members a verbatim
statement of any proposed amendment (provided that counsel for the Company shall have approved of
the same in writing as to form), and the Governors shall include therewith a recommendation as to
the proposed amendment. The Governors shall seek the written vote of the Members on the proposed
amendment or shall call a meeting to vote thereon and to transact any other business that it may
deem appropriate. A proposed amendment shall be adopted and be effective as an amendment to this
Agreement only if approved by the affirmative vote of a majority of the Membership Voting
Interests represented at a Member meeting at which a quorum of the Members is present.
Notwithstanding any provision of this Section 8.1 to the contrary, this Agreement shall not be
amended without the consent of each Member adversely affected if such amendment would modify the
limited liability of a Member, or alter the Membership Financial Rights of a Member.
ARTICLE IX.
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TRANSFERS
9.1
Restrictions on Transfers. Except as otherwise permitted by this Agreement, no
Member shall Transfer all or any portion of such Member’s Units. In the event that any Member
pledges or otherwise encumbers all or any part of such Member’s Units as security for the payment
of a Debt, any such pledge or hypothecation shall be made pursuant to a pledge or hypothecation
agreement that requires the pledgee or secured party to be bound by all of the terms and conditions
of this Agreement and all other agreements governing the rights and obligations of Unit Holders in
the event such pledgee or secured party becomes a Unit Holder hereunder.
9.2
Permitted Transfers. Subject to the conditions and restrictions set forth in this
Article IX, a Unit Holder may (a) at any time Transfer all or any portion of such Unit Holder’s
Units (i) to the transferor’s personal representative, administrator or trustee to whom such Units
are Transferred involuntarily by operation of law, or (ii) without consideration to or in trust for
descendants of a Member, or (b) beginning ninety (90) days after Financial Close, Transfer all or
any portion of such Unit Holder’s Units (i) to any Person approved by the Governors, in writing.
Any such Transfer set forth in this Section 9.2 and meeting the conditions set forth in Section 9.3
below is referred to herein as a “Permitted Transfer”.
9.3
Conditions Precedent to Transfers. In addition to the conditions set forth above, no
Transfer of Units shall be effective unless and until all of the following conditions have been
satisfied:
(a) Except in the case of a Transfer involuntarily by operation of law, the transferor and
transferee shall execute and deliver to the Company such documents and instruments of
Transfer as may be necessary or appropriate in the opinion of counsel to the Company to
affect such Transfer. In the case of a Transfer of Units involuntarily by operation of law,
the Transfer shall be confirmed by presentation to the Company of legal evidence of such
Transfer, in form and substance satisfactory to counsel to the Company. In all cases, the
transferor and/or transferee shall pay all reasonable costs and expenses connected with the
Transfer and the admission of the Transferee as a Member and incurred as a result of such
Transfer, including but not limited to, legal fees and costs.
(b) The transferor and transferee shall furnish the Company with the transferee’s taxpayer
identification number, sufficient information to determine the transferee’s initial tax
basis in the Units Transferred, and any other information reasonably necessary to permit the
Company to file all required federal and state tax returns and other legally required
information statements or returns. The Company shall not be required to make any
distribution otherwise provided for in this Agreement with respect to any Transferred Units
until it has received such information.
(c) Except in the case of a Transfer of any Units involuntarily by operation of law, either
(i) such Units shall be registered under the Securities Act, and any applicable state
securities laws, or (ii) the transferor shall provide an opinion of counsel, which opinion
and counsel
21
shall be reasonably satisfactory to the Governors, to the effect that such Transfer is
exempt from all applicable registration requirements and that such Transfer will not violate
any applicable laws regulating the Transfer of securities.
(d) Except in the case of a Transfer of Units involuntarily by operation of law, the
transferor shall provide an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to the Governors, to the effect that such Transfer will not cause
the Company to be deemed to be an “investment company” under the Investment Company Act of
1940.
(e) Unless otherwise approved by the Governors and Members representing in the aggregate a
75% majority of the Membership Voting Interests, no Transfer of Units shall be made except
upon terms which would not, in the opinion of counsel chosen by the Governors, result in the
termination of the Company within the meaning of Section 708 of the Code or cause the
application of the rules of Sections 168(g)(l)(B) and 168(h) of the Code or similar rules to
apply to the Company. If the immediate Transfer of such Units would, in the opinion of such
counsel, cause a termination within the meaning of Section 708 of the Code, then if, in the
opinion of such counsel, the following action would not precipitate such termination, the
transferor Member shall be entitled to (or required, as the case may be): (i) immediately
Transfer only that portion of its Units as may, in the opinion of such counsel, be
Transferred without causing such a termination; and (ii) enter into an agreement to Transfer
the remainder of its Units, in one or more Transfers, at the earliest date or dates on which
such Transfer or Transfers may be effected without causing such termination. The purchase
price for the Units shall be allocated between the immediate Transfer and the deferred
Transfer or Transfers pro rata on the basis of the percentage of the aggregate Units being
Transferred, each portion to be payable when the respective Transfer is consummated, unless
otherwise agreed by the parties to the Transfer. In the case of a Transfer by one Member to
another Member, the deferred purchase price shall be deposited in an interest-bearing escrow
account unless another method of securing the payment thereof is agreed upon by the
transferor Member and the transferee Member(s).
(f) No notice or request initiating the procedures contemplated by this Section 9.3 may be
given by any Member after a Dissolution Event has occurred. No Member may sell all or any
portion of its Units after a Dissolution Event has occurred.
(g) No Person shall Transfer any Unit if, in the determination of the Governors, such
Transfer would cause the Company to be treated as a “publicly traded partnership” within the
meaning of Section 7704(b) of the Code.
The Governors shall have the authority to waive any legal opinion or other condition required in
this Section 9.3 other than the Member approval requirement set forth in Section 9.3(e).
9.4
Prohibited Transfers. Any purported Transfer of Units that is not a Permitted Transfer
shall be null and void and of no force or effect whatsoever; provided that, if the Company
is required to
22
recognize a Transfer that is not a Permitted Transfer (or if the Governors, in their sole
discretion, elect to recognize a Transfer that is not a Permitted Transfer): (i) the transferee’s
rights shall be strictly limited to the transferor’s Membership Financial Rights associated with
such Units; and (ii) the Company may offset against such Membership Financial Rights (without
limiting any other legal or equitable rights of the Company) any debts, obligations or liabilities
for damages that the transferor or transferee may have to the Company. In the case of a Transfer or
attempted Transfer of Units that is not a Permitted Transfer, the parties engaging or attempting to
engage in such Transfer shall indemnify and hold harmless the Company and the other Members from
all cost, liability and damage that such parties may incur (including, without limitation,
incremental tax liabilities, attorneys’ fees and expenses) as a result thereof.
9.5
No Dissolution or Termination. The Transfer of Units pursuant to the terms of this
Article IX shall not dissolve or terminate the Company. No Member shall have the right to have the
Company dissolved or to have such Member’s Capital Contribution returned except as provided in this
Agreement.
9.6
Prohibition of Assignment. Notwithstanding the foregoing provisions of this Article
IX, no Transfer of Units may be made if the Units sought to be sold, exchanged or Transferred, when
added to the total of all other Units sold, exchanged 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. In the event of a Transfer of any Units, the Members will determine, in their sole
discretion, whether or not the Company will elect pursuant to Section 754 of the Code (or
corresponding provisions of future law) to adjust the basis of the assets of the Company.
9.7
Rights of Unadmitted Assignees. A Person who acquires Units but who is not admitted as
a Substitute Member pursuant to Section 9.8 of this Agreement shall be entitled only to the
Membership Financial Rights with respect to such Units in accordance with this Agreement, and shall
not be entitled to the Membership Voting Interests with respect to such Units. In addition, such
Person shall have no right to any information or accounting of the affairs of the Company, shall
not be entitled to inspect the books or records of the Company, and shall not have any of the other
rights of a Member under the Act or this Agreement.
9.8
Admission of Substitute Members. As to Permitted Transfers, a transferee of Units shall
be admitted as a substitute Member provided that such transferee has complied with the
following provisions:
(a) The Transferee shall, by written instrument in form and substance reasonably
satisfactory to the Governors, agree to be bound by all of the terms and provisions of this
Agreement, and assume the obligations of the transferor Member hereunder with respect to
the Transferred Units.
23
(b) The transferee shall pay for or reimburse the Company for all reasonable legal, filing
and publication costs incurred in connection with the admission of the transferee as a
Member; and
(c) Except in the case of a Transfer involuntarily by operation of law, if required by the
Governors, the transferee shall deliver to the Company evidence of his/her/its authority to
become a Member.
(d) The transferee and transferor shall each execute and deliver such other instruments as
the Governors reasonably deem necessary or appropriate in connection with such Transfer.
9.9
Representations Regarding Transfers. Each Member hereby covenants and agrees with the
Company for the benefit of the Company and all Members, that: (i) it is not currently making a
market in Units and will not in the future make a market in Units; (ii) it will not Transfer its
Units on an established securities market, a secondary market (or the substantial equivalent
thereof) within the meaning of Code Section 7704(b) (and any Regulations, proposed Regulations,
revenue rulings, or other official pronouncements of the IRS or the Treasury Department that may be
promulgated or published thereunder); and (iii) in the event such Regulations, revenue rulings, or
other pronouncements treat any or all arrangements which facilitate the selling of Units (commonly
referred to as “matching services”) as being a secondary market or the substantial equivalent
thereof, no Member will Transfer any Units through a matching service that is not approved in
advance by the Company. Each Member further agrees that it will not Transfer any Units to any
Person unless such Person first agrees to be bound by this Article IX.
Each Member hereby represents and warrants to the Company and the Members that such Member’s
acquisition of Units hereunder is made as principal for such Member’s own account and not for
resale or distribution of such Units. Each Member further hereby agrees that the following legend,
as the same may be amended by the Governors in their sole discretion, may be placed upon any
counterpart of this Agreement, the Articles, or any other document or instrument evidencing
ownership of Units:
THE TRANSFERABILITY OF THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, OR TRANSFERRED, AND NO ASSIGNEE,
VENDEE, TRANSFEREE OR ENDORSEE THEREOF WILL BE RECOGNIZED AS HAVING ACQUIRED ANY
SUCH UNITS FOR ANY PURPOSES, UNLESS AND TO THE EXTENT SUCH SALE, TRANSFER,
HYPOTHECATION, OR ASSIGNMENT IS PERMITTED BY, AND IS COMPLETED IN STRICT ACCORDANCE
WITH, APPLICABLE FEDERAL AND STATE LAW AND THE TERMS AND CONDITIONS SET FORTH IN THE
MEMBER CONTROL AGREEMENT OF THE COMPANY, AS AMENDED FROM TIME TO TIME.
24
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, OFFERED FOR
SALE OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE
STATE SECURITIES LAWS.
9.10
Distributions and Allocations in Respect of Transferred Units. If any Units are
Transferred during any Fiscal Year in compliance with the provisions of this Article IX, Profits,
Losses, each item thereof, and all other items attributable to the Transferred Units for such
Fiscal Year shall be divided and allocated between the transferor and the transferee by taking into
account their varying interests during the Fiscal Year in accordance with Code Section 706(d),
using any conventions permitted by law and selected by the Governors. All distributions on or
before the date of such Transfer shall be made to the transferor, and all distributions thereafter
shall be made to the transferee. Solely for purposes of making such allocations and distributions,
the Company shall recognize such Transfer to be effective not later than the first day of the month
following the month in which all documents to effectuate the Transfer have been executed and
delivered to the Company, provided that, if the Company does not receive a notice stating the date
such Units were Transferred and such other information as the Governors may reasonably require
within thirty (30) days after the end of the Fiscal Year during which the Transfer occurs, then all
such items shall be allocated, and all distributions shall be made, to the person or entity who,
according to the books and records of the Company, was the owner of the Units on the last day of
such Fiscal Year. Neither the Company nor any Member shall incur any liability for making
allocations and distributions in accordance with the provisions of this Section 9.10, whether or
not the Governors or the Company has knowledge of any Transfer of any Units.
9.11
Additional Members. Additional Members may be admitted from time to time upon the
approval of the Governors, and in accordance with such terms and conditions, as the Governors may
determine. All Members acknowledge that the admission of additional Members may result in a
dilution of a Member’s Membership Interest. Prior to admission as a Member, a prospective Member
shall agree in writing to be bound by this Agreement and shall execute and deliver to the Company
an Addendum to this Agreement in the form of Exhibit “B” attached hereto. Upon the execution of
such Addendum, such additional Member shall be deemed to be a party to this Agreement as if such
additional Member had executed this Agreement on the original date hereof, and shall be bound by
all of the provisions set forth herein.
ARTICLE X.
DISSOLUTION AND WINDING UP
DISSOLUTION AND WINDING UP
10.1
Dissolution. The Company shall dissolve and shall commence winding up and
liquidating upon the first to occur of any of the following (each a “Dissolution Event”): (i) the
affirmative vote of a
25
75% majority in interest of the Membership Voting Interests to dissolve, wind up and
liquidate the Company; or (ii) the entry of a decree of judicial dissolution pursuant to the Act.
The Members hereby agree that, notwithstanding any provision of the Act, the Company shall not
dissolve prior to the occurrence of a Dissolution Event.
10.2
Winding Up. Upon the occurrence of a Dissolution Event, the Company shall continue
solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets and
satisfying the claims of its creditors and Members; and no Member shall take any action that is
inconsistent with, or not necessary to or appropriate for, winding up of the Company’s business and
affairs. Notwithstanding any provision of this Agreement to the contrary, the Members acknowledge
and agree that all covenants and obligations set forth in this Agreement shall continue to be fully
binding upon the Members until such time as the Property has been distributed pursuant to this
Section 10.2 and Articles of Dissolution have been filed pursuant to the Act. The Liquidator shall
be responsible for overseeing the prompt and orderly winding up and dissolution of the Company. The
Liquidator shall take full account of the Company’s liabilities and Property and shall cause the
Property or the proceeds from the sale thereof (as determined pursuant to Section 10.8 of this
Agreement), to the extent sufficient therefor, to be applied and distributed, to the maximum extent
permitted by law, in the following order: (i) first, to creditors (including Members and Governors
who are creditors, to the extent otherwise permitted by law) in satisfaction of all of the
Company’s Debts and other liabilities (whether by payment or the making of reasonable provision for
payment thereof), other than liabilities for which reasonable provision for payment has been made;
and (ii) second, except as provided in this Agreement, to Members in satisfaction of liabilities
for distributions pursuant to the Act; (iii) third, the balance, if any, to the Unit Holders in
accordance with the positive balance in their Capital Accounts calculated after making the required
adjustment set forth in clause (ii)(C) of the definition of Gross Asset Value in Section 1.6 of
this Agreement, after giving effect to all contributions, distributions and allocations for all
periods.
10.3
Compliance with Certain Requirements of Regulations; Deficit Capital Accounts. In the
event the Company is “liquidated” within the meaning of Regulations Section 1.704-l(b)(2)(ii)(g),
distributions shall be made pursuant to this Article X to the Unit Holders who have positive
Capital Accounts in compliance with Regulations Section 1.704-l(b)(2)(ii)(b)(2). If any Unit Holder
has a deficit balance in such Member’s Capital Account (after giving effect to all contributions,
distributions and allocations for all Fiscal Years, including the Fiscal Year during which such
liquidation occurs), such Unit Holder shall have no obligation to make any contribution to the
capital of the Company with respect to such deficit, and such deficit shall not be considered a
debt owed to the Company or to any other Person for any purpose whatsoever. In the discretion of
the Liquidator, a pro rata portion of the distributions that would otherwise be made to the Unit
Holders pursuant to this Article X may be: (i) distributed to a trust established for the benefit
of the Unit Holders for the purposes of liquidating Company assets, collecting amounts owed to the
Company, and paying any contingent or unforeseen liabilities or obligations of the Company, in
which case the assets of any such trust shall be distributed to the Unit Holders from time to time,
in the reasonable discretion of the Liquidator, in the same proportions as the amount distributed
to such trust by the Company would otherwise have been distributed to the Unit Holders pursuant to
Section 10.2 of this
26
Agreement; or (ii) withheld to provide a reasonable reserve for Company liabilities
(contingent or otherwise) and to reflect the unrealized portion of any installment obligations
owed to the Company, provided that such withheld amounts shall be distributed to the Unit Holders
as soon as practicable.
10.4 Deemed Distribution and Recontribution. Notwithstanding any other provision of this
Article X, in the event the Company is liquidated within the meaning of Regulations Section 1.704-
l(b)(2)(ii)(g) but no Dissolution Event has occurred, the Property shall not be liquidated, the
Company’s Debts and other liabilities shall not be paid or discharged, and the Company’s affairs
shall not be wound up.
10.5 Rights of Unit Holders. Except as otherwise provided in this Agreement, each Unit
Holder shall look solely to the Property of the Company for the return of such Unit Holder’s
Capital Contribution and shall have no right or power to demand or receive Property other than cash
from the Company. If the assets of the Company remaining after payment or discharge of the debts or
liabilities of the Company are insufficient to return such Capital Contribution, the Unit Holders
shall have no recourse against the Company or any other Unit Holder or Governors.
10.6 Allocations During Period of Liquidation. During the period commencing on the first
day of the Fiscal Year during which a Dissolution Event occurs and ending on the date on which all
of the assets of the Company have been distributed to the Unit Holders pursuant to Section 10.2 of
this Agreement (the “Liquidation Period”), the Unit Holders shall continue to share Profits,
Losses, gain, loss and other items of Company income, gain, loss or deduction in the manner
provided in Article III of this Agreement.
10.7 Character of Liquidating Distributions. All payments made in liquidation of the
interest of a Unit Holder shall be made in exchange for the interest of such Unit Holder in
Property pursuant to Section 736(b)(l) of the Code, including the interest of such Unit Holder in
Company goodwill.
10.8 The Liquidator. The “Liquidator” shall mean a Person appointed by the Governors to
oversee the liquidation of the Company. Upon the consent of a majority in interest of the Members,
the Liquidator may be the Governors. The Company is authorized to pay a reasonable fee to the
Liquidator for its services performed pursuant to this Article X and to reimburse the Liquidator
for its reasonable costs and expenses incurred in performing those services. The Company shall
indemnify, save harmless, and pay all judgments and claims against such Liquidator and any
officers, Governors, agents and employees of the Liquidator relating to any liability or damage
incurred by reason of any act performed or omitted to be performed by the Liquidator, or any
officers, Governors, agents or employees of the Liquidator in connection with the liquidation of
the Company, including reasonable attorneys’ fees incurred in connection with the defense of any
action based on any such act or omission, which attorneys’ fees may be paid as incurred, except to
the extent such liability or damage is caused by fraud, intentional misconduct, or a knowing
violation of the laws which was material to the cause of action.
27
10.9 Forms of Liquidated Distributions. For purposes of making distributions
required by Section 10.2 of this Agreement, the Liquidator may determine whether to distribute all
or any portion of the Property in-kind or to sell all or any portion of the Property and
distribute the proceeds therefrom.
ARTICLE XI.
MISCELLANEOUS
MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be deemed to have been
delivered, given, and received for all purposes (i) if delivered personally to the Person or to an
officer of the Person to whom the same is directed, or (ii) when the same is sent, if sent by
regular or certified mail, postage prepaid, or by facsimile, if such facsimile is followed by a
hard copy of the facsimile communication sent promptly thereafter by regular or certified mail,
postage prepaid, addressed as follows, or to such other address as such Person may from time to
time specify by notice to the Company: (a) If to the Company, to its principal address as
determined by the Governors, (b) If to the Governors, to the address set forth on record with the
Company; (c) If to a Unit Holder, either to the address set forth in the Unit Holder Register or to
such other address that has been provided in writing to the Company.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term
and provision of this Agreement shall be binding upon, and shall inure to the benefit of, the
Company and the Members, and their respective heirs, representatives, successors, transferees and
assigns.
11.3 Construction. Every covenant, term, and provision of this Agreement shall be construed
simply according to its fair meaning and not strictly for or against the Company or any Member.
11.4 Headings. Article, Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision of this Agreement.
11.5 Severability. Except as otherwise provided in the succeeding sentence, every provision
of this Agreement is intended to be severable, and if any term or provision of this Agreement is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement. The preceding sentence of this Section
11.5 shall be of no force or effect if the consequence of enforcing the remainder of this Agreement
without such illegal or invalid term or provision would be to cause any Member to lose the material
benefit of its economic bargain.
11.6 Incorporation by Reference. Every recital, exhibit, schedule and appendix attached to
this Agreement and referred to herein is hereby incorporated into this Agreement by reference
unless this Agreement expressly provides otherwise.
28
11.7 Variation of Terms. All terms and variations thereof used in this Agreement shall be
deemed to refer to masculine, feminine, or neuter, singular or plural, as the context may require.
11.8 Governing Law. The laws of the State of Minnesota shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the rights and duties arising
hereunder.
11.9 Waiver of Jury Trial. Each of the Members irrevocably waives, to the fullest extent permitted
by law, all rights to trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Agreement or the business and affairs of the Company.
11.10 Counterpart Execution. This Agreement may be executed in any number of counterparts
with the same effect as if all of the Members had signed the same document. All counterparts shall
be construed together and shall constitute one agreement.
11.11 Specific Performance. Each Member acknowledges and agrees that the Company and the
other Members would be irreparably damaged if any of the provisions of this Agreement are not
performed in accordance with their specific terms, and that monetary damages would not provide an
adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to
which the Company and the non-breaching Members may be entitled hereunder, at law or in equity, the
Company and the non-breaching Members shall be entitled to injunctive relief to prevent breaches of
the provisions of this Agreement and to specifically enforce the terms and provisions of this
Agreement.
11.12 No Third Party Rights. None of the provisions contained in this Agreement shall be
deemed to be for the benefit of or enforceable by any third parties, including without limitation,
any creditors of any Member or the Company.
DULY ADOPTED by the Members effective as of March 31, 2006.
Agassiz Energy, LLC | ||||||||
By:
|
/s/ Xxxxxx Xxxxxxxx | |||||||
Xxxxxx Xxxxxxxx Its President |
||||||||
By:
|
/s/ Xxxxx Xxxxxxxx | |||||||
Xxxxx Xxxxxxxx Its Secretary |
||||||||
/s/ Xxxxx Xxxxxxxxx | A & E Partnership | |||||||
Xxxxx Xxxxxxxxx | ||||||||
By: | /s/ Xxxxx Xxxxxxxxx | |||||||
Xxxxx Xxxxxxxx
|
Its: | Partner | ||||||
CM & L, LLP | ||||||||
Xxxx Xxxxx | ||||||||
By: | /s/ Xxxxx Xxxxxx | |||||||
/s/ Xxxx Xxxxxxxxxx | Its: | Partner | ||||||
Xxxx Xxxxxxxxxx | ||||||||
/s/ Xxxxx Xxxxx | Xxxxxxxxx Development Authority | |||||||
Xxxxx Xxxxx | ||||||||
By: | /s/ Xxxxx Xxxxxxxxx | |||||||
/s/ Xxxxx Xxxxxxxx | Its: | |||||||
Xxxxx Xxxxxxxx | ||||||||
Crookston Jobs, Inc. | ||||||||
Xxxxx Xxxxxx Xxxxx
|
By: | /s/ Xxxx Xxxxxxxx | ||||||
Its: | Treasurer | |||||||
Xxxx Xxxxxxx | ||||||||
The Leasing Company | ||||||||
/s/ Xxxxx Xxxxxxxxxx | By: | /s/ Xxxx Xxxxxx ford | ||||||
Xxxxx Xxxxxxxxxx | Its: | President | ||||||
/s/ Xxxxx Xxxxxxxx | ||||||||
Xxxxx Xxxxxxxx | ||||||||
/s/ Xxxxx Xxxxxxxxx | ||||||||
Xxxxx Xxxxxxxxx |
/s/ Xxxxxxx Xxxxxx | Northwestern Minnestoa Foundation | |||||||
Xxxxxxx Xxxxxx | ||||||||
By: | /s/ Xxxx Xxxx | |||||||
Its: | Business Finance Specialist | |||||||
/s/ Xxxxxxx Xxxxxx | ||||||||
Xxxxxxx Xxxxxx | ||||||||
Xxxxx Xxxxxxxxx | ||||||||
Tang Farms | ||||||||
Xxxxxx Xxxxxxxxx | By: | /s/ Xxxxx Xxxx | ||||||
Its: | President | |||||||
/s/ Xxx Xxxxxxx | ||||||||
Xxx Xxxxxxx | ||||||||
/s/ Xxxxx Xxxxx | ||||||||
Xxxxx Xxxxx | ||||||||
/s/ Xxxxxx Xxxxxxx | ||||||||
Xxxxxx Xxxxxxx | ||||||||
/s/ Xxxxx Xxxxxxx | ||||||||
Xxxxx Xxxxxxx | ||||||||
/s/ Xxxxxx Xxxxxxx | ||||||||
Xxxxxx Xxxxxxx | ||||||||
/s/ Xxxxx Xxxxxxx | ||||||||
Xxxxx Xxxxxxx | ||||||||
/s/ Xxxxxx Xxxxxxx | ||||||||
Xxxxxx Xxxxxxx | ||||||||
/s/ Xxxx Xxxx Xxxxxxx | ||||||||
Xxxx Xxxx Xxxxxxx | ||||||||
/s/ Xxxxxx Xxxxxxx | ||||||||
Xxxxxx Xxxxxxx | ||||||||
/s/ Xxxxx Xxxxxxx | ||||||||
Xxxxx Xxxxxxx | ||||||||
/s/ Xxxxxxxx Xxxxxxxxx | ||||||||
Xxxxxxxx Xxxxxxxxx | ||||||||
/s/ Xxxxx Xxxxxxxxx | ||||||||
Xxxxx Xxxxxxxxx |
/s/ Xxxxxx Xxxxxxxx | ||||||||
Xxxxxx Xxxxxxxx | ||||||||
/s/ Xxxxxx Xxxxxx | ||||||||
Xxxxxx Xxxxxx | ||||||||
/s/ Xxxxx Xxxxxx | ||||||||
Xxxxx Xxxxxx |
EXHIBIT “A”
Initial Membership List
Name of | ||||||||||||
Initial Member | Contribution | Units | ||||||||||
A& E Partnership |
$ | 30,000.00 | 90,000 | |||||||||
Xxxxx Xxxxxxxxx |
$ | 50,000.00 | 150,000 | |||||||||
Xxxxx Xxxxxxxx |
$ | 5,000.00 | 15,000 | |||||||||
Xxxx Xxxxx |
$ | 25,000.00 | 75,000 | |||||||||
Xxxx Xxxxxxxxxx |
$ | 15,000.00 | 45,000 | |||||||||
Xxxxx Xxxxx |
$ | 50,000.00 | 150,000 | |||||||||
CM & L, LLP |
$ | 30,000.00 | 90,000 | |||||||||
Crookston Development
Authority |
$ | 20,000.00 | 60,000 | |||||||||
Crookston Jobs, Inc. |
$ | 25,000.00 | 75,000 | |||||||||
Xxxxx Xxxxxxxx |
$ | 5,000.00 | 15,000 | |||||||||
Xxxxx Xxxxxx Drake |
$ | 10,000.00 | 30,000 | |||||||||
Xxxx Xxxxxxx |
$ | 25,000.00 | 75,000 | |||||||||
Xxxxx Xxxxxxxxxx |
$ | 25,000.00 | 75,000 | |||||||||
Xxxxx Xxxxxxxx |
$ | 25,000.00 | 75,000 | |||||||||
Xxxxx Xxxxxxxxx |
$ | 10,000.00 | 30,000 | |||||||||
Xxxxxxx Xxxxxx |
$ | 15,000.00 | 45,000 | |||||||||
Xxxxxxx Xxxxxx |
$ | 25,000.00 | 75,000 |
33
Name of | ||||||||||||
Initial Member | Contribution | Units | ||||||||||
Xxxxxx Xxxxxxxxx |
$ | 50,000.00 | 150,000 | |||||||||
Xxxxx Xxxxxxxxx |
$ | 50,000.00 | 150,000 | |||||||||
Xxxxxx Xxxxxxx |
$ | 5,000.00 | 15,000 | |||||||||
The Leasing Company |
$ | 50,000.00 | 150,000 | |||||||||
Northwest Minnesota
Foundation |
$ | 75,000.00 | 225,000 | |||||||||
Xxxxx Xxxxx |
$ | 10,000.00 | 30,000 | |||||||||
Xxxxxx Xxxxxxx |
$ | 12,500.00 | 2.5 | |||||||||
Xxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxx Xxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxx Xxxxxxx |
$ | 12,500.00 | 37,500 | |||||||||
Xxxxxxxx Xxxxxxxxx |
$ | 100,000.00 | 300,000 | |||||||||
Xxxxx Xxxxxxxxx |
$ | 60,000.00 | 180,000 | |||||||||
Xxxxxx Xxxxxxxx |
$ | 5,000.00 | 15,000 | |||||||||
Tang Farms |
$ | 50,000.00 | 150,000 |
34
Name of | ||||||||||||
Initial Member | Contribution | Units | ||||||||||
Xxxxxx Xxxxxx |
$ | 50,000.00 | 150,000 | |||||||||
Xxxxx Xxxxxx |
$ | 5,000.00 | 15,000 |
35
EXHIBIT “B”
MEMBER SIGNATURE PAGE
The undersigned does hereby warrant, represent, covenant and agree that: (i) the undersigned, as a
condition to becoming a Member in Agassiz Energy, LLC, has received a copy of the Amended and
Restated Member Control Agreement dated effective March 31, 2006, and, if applicable, all
amendments and modifications thereto; (ii) the undersigned shall be subject to and comply with all
terms and conditions of such Amended and Restated Member Control Agreement in all respects, as if
the undersigned had executed said Amended and Restated Member Control Agreement on the original
date thereof; and (iii) the undersigned is and shall be bound by all of the provisions of said
Amended and Restated Member Control Agreement from and after the date of execution of this
Addendum.
Individuals: | Entities: | |||||
Name of Individual (Please Print) | Name of Entity (Please Print) | |||||
Signature of Individual | Print Name and Title of Officer | |||||
Name of Joint Individual Member (Please Print) | Signature of Officer | |||||
Signature of Joint Individual Member | ||||||
Agreed to and Accepted on Behalf of the | ||||||
Company and Its Members: | ||||||
Agassiz Energy, LLC | ||||||
By: |
||||||
Its: | ||||||
339091 |
36