AMENDMENT NO. TWO TO MEMBERS OPERATING AGREEMENT OF WEST VALLEY MRF, LLC (SPECIAL ALLOCATION OF DEPRECIATION)
EXHIBIT 10.18.1
AMENDMENT NO. TWO TO MEMBERS OPERATING AGREEMENT
OF WEST VALLEY MRF, LLC
(SPECIAL ALLOCATION OF DEPRECIATION)
This AMENDMENT NO. TWO TO MEMBER OPERATING AGREEMENT (“Amendment”) is made and entered into by and between Xxxxxx Recycling, LLC, a Delaware limited liability company “Kaiser”), and West Valley Recycling & Transfer, Inc., a California corporation (“WVRT”) to be effective as the date specified herein.
RECITALS
X. Xxxxxx and WVRT are the current members of West Valley MRF, LLC, a California limited liability company (the “Company”). In November 2001, Xxxxxx Recycling Corporation, an original member of the Company, converted from a corporation to a limited liability company by a merger with and into Kaiser. Xxxxxx Recycling Corporation’s parent company, Kaiser Ventures Inc. also converted from a corporation to a limited liability company.
B. As result of the above referenced conversions to limited liability companies, the United States Internal Revenue Code of 1986, as amended, required that the Company modify its then current rate of depreciation by effectively treating the assets being depreciated at the time of the conversion as being first placed in service effective as of December 1, 2002. In recognition of the changed depreciation schedule, the parties desire to make a special allocation of the depreciation expense for the assets being depreciated at the time of the conversion. Accordingly, the parties hereto desire to amend Exhibit “G” to the Members Operating Agreement of West Valley MRF, LLC dated effective June 19, 1997, as amended by Amendment No. One dated October 31, 1997 (as amended, the “Operating Agreement”), which exhibit is a part of the Operating Agreement, as provided in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The foregoing “Recitals” are incorporated herein and made a part of this Amendment by this reference.
2. DEFINITION OF EXCESS DEPRECIATION. Exhibit “G” of the Operating Agreement is hereby amended by the addition of a new Section 1.1.1 to Exhibit “G” defining the term “Excess Depreciation” as follows:
“1.1.1 “Excess Depreciation” shall be the amount of depreciation equal to the amount of depreciation that WVRT receives on a cumulative basis pursuant to Section 3.3 that exceeds the amount of depreciation that Kaiser receives under that section.”
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3. AMENDMENT OF EXHIBIT “G.” Exhibit “G” of the Operating Agreement is hereby amended by the addition of the following new Sections 3.3 and 3.4.
“3.3 SPECIAL ALLOCATION OF DEPRECIATION. Notwithstanding anything contained herein to the contrary, commencing effective December 1, 2001, there shall be a special allocation of depreciation between the Members as set forth in Schedule G-1, attached hereto and incorporated herein by this reference. For all assets acquired and placed into service after December 1, 2001, there shall be no special allocation of depreciation and the deprecation expense shall be allocated between the Members as provided in this Exhibit G and the Members Operating Agreement of West Valley MRF, LLC.
3.4 SPECIAL ALLOCATION. In the event of a sale of the business of the Company resulting in a taxable gain, prior to any other allocations of income, gain, loss or deduction; WVRT will receive an allocation of gain equal to the Excess Depreciation it has received up to the date of sale. In the event of a sale of the business resulting in a taxable loss, prior to any other allocations of income, gain, loss or deduction, Kaiser will receive an allocation of loss equal to the Excess Depreciation WVRT has received up to the date of sale. Any remaining income, gain, loss or deduction will be allocated among the Members as provided in this Exhibit G and the Members Operating Agreement of West Valley MRF, LLC.
4. EFFECTIVE DATE OF AMENDMENT. This Amendment shall be effective as of December 1, 2001, notwithstanding the actual date of signature by Kaiser or WVRT.
5. NO OTHER MODIFICATIONS. Except as expressly amended by this Amendment, the provisions of the Operating Agreement are not otherwise modified, altered or amended.
6. GOVERNING LAW. This Agreement is executed and delivered in, and shall be governed by and construed in accordance with, the laws of the State of California and, where applicable, other local, state, and federal rules, regulations, ordinances, statutes, and laws.
IN WITNESS WHEREOF, this Amendment is executed by the members of the Company to be effective as specified in Paragraph 4 of this Amendment.
| “WVRT” | “KAISER” | |||||
| WEST VALLEY RECYCLING & TRANSFER, INC. | XXXXXX RECYCLING, LLC | |||||
| By: | /s/ Xxxx Xxxx |
By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxx Xxxx, President | Xxxxx X. Xxxxxx | |||||
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REVISED SCHEDULE G-1
WEST VALLEY MRF
TECHNICAL TERMINATION DEPRECIATION CALCULATION
| YEAR |
PRIOR TO TECHNICAL TERM |
AFTER TECH TERM ADJUSTED |
DIFFERENCE |
BWI 50% |
||||||
| 2001 |
1,518,097 | 1,068,625 | (449,472 | ) | (224,736 | ) | ||||
| 2002 |
1,742,634 | 1,647,738 | (94,896 | ) | (47,448 | ) | ||||
| 2003 |
1,571,587 | 1,426,972 | (144,615 | ) | (72,308 | ) | ||||
| 2004 |
1,453,845 | 1,280,942 | (172,903 | ) | (86,452 | ) | ||||
| 2005 |
1,313,083 | 1,198,409 | (114,674 | ) | (57,337 | ) | ||||
| 2006 |
1,227,115 | 1,171,043 | (56,072 | ) | (28,036 | ) | ||||
| 2007 |
1,192,831 | 1,123,405 | (69,426 | ) | (34,713 | ) | ||||
| 2008 |
995,412 | 1,085,077 | 89,665 | 44,832 | ||||||
| 2009 |
818,289 | 940,938 | 122,649 | 61,324 | ||||||
| 2010 |
820,391 | 942,983 | 122,592 | 61,296 | ||||||
| 2011 |
622,393 | 922,081 | 299,688 | 149,844 | ||||||
| 2012 |
438,300 | 394,289 | (44,011 | ) | (22,005 | ) | ||||
| 2013 |
483,300 | 394,278 | (44,022 | ) | (22,011 | ) | ||||
| 2014 |
438,300 | 394,032 | (44,268 | ) | (22,134 | ) | ||||
| 2015 |
438,300 | 394,032 | (44,268 | ) | (22,134 | ) | ||||
| 2016 |
422,621 | 392,148 | (30,473 | ) | (15,236 | ) | ||||
| 2017 |
414,781 | 371,427 | (43,354 | ) | (21,677 | ) | ||||
| 2018 |
249,001 | 371,427 | 122,426 | 61,213 | ||||||
| 2019 |
240,207 | 371,427` | 131,220 | 65,610 | ||||||
| 2020 |
240,207 | 371,427 | 131,220 | 65,610 | ||||||
| 2021 |
201,762 | 362,539 | 160,777 | 80,389 | ||||||
| 2022 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2023 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2024 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2025 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2026 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2027 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2028 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2029 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2030 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2031 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2032 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2033 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2034 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2035 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2036 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2037 |
166,394 | 158,116 | (8,278 | ) | (4,139 | ) | ||||
| 2038 |
97,119 | 158,116 | 60,997 | 30,499 | ||||||
| 2039 |
93,315 | 158,116 | 64,801 | 32,401 | ||||||
| 2040 |
81,130 | 157,314 | 76,184 | 38,092 | ||||||
| 2041 |
34,666 | 137,342 | 102,676 | 51,338 | ||||||
| Total |
19,765,990 | 19,765,990 | (0 | ) | (0 | ) |
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WEST VALLEY MRF
TECHNICAL TERMINATION DEPRECIATION CALCULATION
| YEAR |
UNADJUSTED |
ADJUSTED |
DIFFERENCE |
||||
| 2001 |
1,518,097 | 1,068,625 | (449,472 | ) | |||
| 2002 |
1,742,634 | 1,647,738 | (94,896 | ) | |||
| 2003 |
1,582,223 | 1,439,136 | (143,087 | ) | |||
| 2004 |
1,472,046 | 1,298,027 | (174,019 | ) | |||
| 2005 |
1,327,720 | 1,212,287 | (115,433 | ) | |||
| 2006 |
1,239,206 | 1,182,631 | (56,575 | ) | |||
| 2007 |
1,203,104 | 1,133,356 | (69,748 | ) | |||
| 2008 |
1,005,685 | 1,095,028 | 89,343 | ||||
| 2009 |
828,562 | 950,889 | 122,327 | ||||
| 2010 |
828,391 | 950,889 | 122,498 | ||||
| 2011 |
628,120 | 927,942 | 299,822 | ||||
| 2012 |
444,027 | 400,150 | (43,877 | ) | |||
| 2013 |
444,027 | 400,139 | (43,888 | ) | |||
| 2014 |
444,027 | 399,893 | (44,134 | ) | |||
| 2015 |
444,027 | 399,893 | (44,134 | ) | |||
| 2016 |
428,348 | 398,009 | (30,339 | ) | |||
| 2017 |
420,508 | 377,288 | (43,220 | ) | |||
| 2018 |
254,728 | 377,288 | 122,560 | ||||
| 2019 |
245,934 | 377,288 | 131,354 | ||||
| 2020 |
245,934 | 377,288 | 131,354 | ||||
| 2021 |
207,490 | 368,400 | 160,910 | ||||
| 2022 |
172,121 | 163,977 | (8,144 | ) | |||
| 2023 |
172,121 | 163,977 | (8,144 | ) | |||
| 2024 |
172,121 | 163,977 | (8,144 | ) | |||
| 2025 |
172,121 | 163,977 | (8,144 | ) | |||
| 2026 |
172,121 | 163,977 | (8,144 | ) | |||
| 2027 |
172,121 | 163,977 | (8,144 | ) | |||
| 2028 |
172,121 | 163,977 | (8,144 | ) | |||
| 2029 |
172,121 | 163,977 | (8,144 | ) | |||
| 2030 |
172,121 | 163,977 | (8,144 | ) | |||
| 2031 |
172,121 | 163,977 | (8,144 | ) | |||
| 2032 |
172,121 | 163,977 | (8,144 | ) | |||
| 2033 |
172,121 | 163,977 | (8,144 | ) | |||
| 2034 |
172,121 | 163,977 | (8,144 | ) | |||
| 2035 |
172,121 | 163,977 | (8,144 | ) | |||
| 2036 |
172,121 | 163,977 | (8,144 | ) | |||
| 2037 |
172,121 | 163,977 | (8,144 | ) | |||
| 2038 |
102,846 | 163,977 | 61,131 | ||||
| 2039 |
99,042 | 163,977 | 64,935 | ||||
| 2040 |
86,857 | 163,175 | 76,318 | ||||
| 2041 |
38,115 | 138,689 | 100,574 | ||||
| Total |
20,035,634 | 20,035,634 | (0 | ) | |||
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