EXHIBIT 10.4
LIMITED LIABILITY COMPANY AGREEMENT
BETWEEN
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
AND
CENEX HARVEST STATES COOPERATIVES
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") is made and
entered into on this 26th day of August 2002 (the "Effective Date") by and
between CENEX HARVEST STATES COOPERATIVES, a corporation organized and existing
under the laws of Minnesota ("CHS") and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, a corporation
organized and existing under the laws of Delaware ("Cargill"), each hereafter
individually referred to as a "Member" and collectively referred to as
"Members".
WHEREAS, CHS and Continental Grain Company ("Continental") formed a
general partnership, namely the Tacoma Export Marketing Company ("TEMCO"), on or
about the 15th day of September, 1992 for the purpose of engaging in the buying,
selling, storing and handling of certain Feedgrains and Oilseeds for export from
the Pacific Northwest, United States primarily through Continental's leased
facility at Tacoma, Washington ("Tacoma Facility") and such other business
activities as were related thereto; and
WHEREAS, Cargill purchased and took assignment of Continental's
interest in TEMCO, the Tacoma Facility and the sublease between Continental and
TEMCO, and Cargill and CHS subsequently entered into an Amended and Restated
Partnership Agreement on the 12th day of July 1999; and
WHEREAS, Cargill and CHS intend to convert TEMCO from a Washington
general partnership to a Delaware limited liability company, to be known as
TEMCO, LLC (the "Company") and to be formed as a limited liability company
organized and existing under the Delaware Limited Liability Company Act, 6 Del.
▇.▇▇. 8-101, et seq., and as required thereunder, do hereby adopt this Agreement
as the operating agreement of the Company;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the Members hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 TERMS DEFINED HEREIN. As used herein, the following terms shall have the
following meanings, unless the context otherwise specifies:
"Accountant" shall have the meaning set forth in Section 5.5(r).
"Act" means the Delaware Limited Liability Company Act, 6 Del. C.
Section 8-101, et seq., as amended from time to time.
"Additional Contribution" shall have the meaning set forth in Section
3.2.1.
"Adjusted Capital Account Deficit" means, with respect to any Member,
the deficit balance, if any, in such Member's Capital Account as of the end of
the relevant Fiscal Year, after giving effect to the following adjustments: (i)
increased for any amounts such Member is unconditionally obligated to restore
under Treasury Regulations 1.704-1(b)(2)(ii.)(c), and the amount of such
Member's share of Company Minimum Gain and Member Minimum Gain after taking into
account any changes during such year in
accordance with Treasury Regulations 1.7042(g)(1) and (i.)(5); and (ii) reduced
by the items described in Treasury Regulation ss.1.704-1(b)(2)(ii)(d) (4), (5)
and (6).
"Affiliate" means, with respect to any Member, any Person that directly
controls, is controlled by or is under common control with that Member. As used
in this definition, the term "control" means the possession of the power to
direct or cause the direction of the management and policies of a Person or
through the direct or indirect ownership of over 50% of the outstanding capital
stock or other equity interest having ordinary voting power.
"Available Cash" means that portion of the aggregate amount of cash on
hand or in bank, money market or similar accounts of the Company at any given
time derived from any source and which the Board of Managers determine is
available for distribution after taking in account amounts required or
appropriate to maintain a reasonable amount of working capital and reserves for
outstanding obligations and anticipated future expenditures of the Company.
"Bankruptcy" with respect to any Person, means the entry of an order
for relief against such Person under the Federal Bankruptcy Code.
"Board of Managers" shall have the meaning set forth in Section 5.1.
"Business" means the Company's business conducted in accordance with
the Business Purpose.
"Business Plan" has the meaning set forth in Section 2.7.
"Business Purpose" means to engage in the business of buying, trading,
selling, handling and transporting for export and exporting Feedgrains and
Oilseeds from the Pacific Northwest, United States through the Tacoma Facility,
and through the Seattle Facility pursuant to a put through agreement with the
operator of the Seattle Facility, to Pacific Basin destinations and engaging in
such other activities and business as may be incidental or related thereto or
necessary or desirable in furtherance of such purpose. The Company shall
establish or cause to be established such business organizations and shall own,
directly or indirectly, such assets as the Company determines are appropriate to
achieve the purpose set forth herein.
"Capital Account" means the separate account established and maintained
for each Member by the Company pursuant to Section 3.3.
"Cash for Distribution" has the meaning set forth in Section 8.8.
"Cash Needs" has the meaning set forth in Section 8.2.1.
"Cobank" has the meaning set forth in Section 10.2.5.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor Internal Revenue Code.
"Collateral" has the meaning set forth in Section 14.1.1.
"Company" means TEMCO, LLC, a Delaware limited liability company.
"Company Minimum Gain" shall have the same meaning as partnership
minimum gain set forth in Treasury Regulations ▇▇.▇▇. 1.704-2(b)(2) and
1.704-2(d).
"Confidential Information" has the meaning set forth in Section 11.1.
"Contributing Member" has the meaning set forth in Section 3.2.4.
"Credits" means all credits allowed by the Code with respect to
activities of the Company or the Property.
"Deadlock" has the meaning set forth in Section 5.6.
"Delinquent Member" has the meaning set forth in Section 3.2.4.
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period; provided,
however, that (a) if the Gross Asset Value of an asset differs from its adjusted
basis for federal income tax purposes and such difference is being eliminated by
use of the "remedial allocation method" defined by Treasury Regulations
ss.1.704-3(d), Depreciation for such Fiscal Year shall be the amount of basis
recovered for such fiscal year under the rules prescribed by Treasury
Regulations ss.1.704-3(d)(2), and (b) in any other case in which the Gross Asset
Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax deduction, amortization or other cost recovery deduction for
such year or other period bears to such beginning adjusted tax basis; provided,
however, that if the adjusted basis of an asset at the beginning of the Fiscal
Year is zero for federal income tax purposes, then Depreciation shall be
determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the Members.
"Disclosing Party" has the meaning set forth in Section 10.1.
"Effective Date" shall mean the date set forth in the preamble of this
Agreement.
"Effective Rate" shall have the meaning set forth in Section 3.5.
"Emergency Needs" has the meaning set forth in Section 8.2.2.
"Fair Value" of an asset means its fair market value.
"Feedgrains" shall mean corn and sorghum.
"Fiscal Year" shall mean the Company's fiscal year which shall begin on
June 1 and end on May 31 of each year.
"Fundamental Issue(s)" has the meaning set forth in Section 5.5.
"GAAP" has the meaning set forth in Section 8.6.2.
"General Manager" has the meaning set forth in Section 6.1.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(1) The initial Gross Asset Value of any asset contributed by
a Member to the
Company shall be the Fair Value of such asset, as determined by the contributing
Member and the Company;
(2) The Gross Asset Value of all Company assets may be
adjusted to equal their respective gross fair market values, as determined by
the Members, as of, among other times, the following: (i) the acquisition of an
additional interest in the Company by any new or existing Member in exchange for
more than a de minimis contribution of money or other property; (ii) the
distribution by the Company of more than a de minimis amount of money or other
property to a Member as a consideration for an interest in the Company; and
(iii) the liquidation of the Company within the meaning of Treasury Regulations
ss.1.704-1(b)(2)(ii)(g) (other than a liquidation pursuant to Code Section
708(b)(1)(B));
(3) The Gross Asset Value of any Company asset distributed to
any Member shall be the Fair Value of such asset on the date of distribution, as
determined by the Members; and
(4) The Gross Asset Value of any Company assets may be
increased (or decreased) by the Members to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Sections 734(b) or 743(b), but
only to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Treasury Regulations ss.1.704-1(b)(2)(iv)(m) and
Section 4.5(h) hereof.
If the Gross Asset Value of an asset has been determined or adjusted hereunder,
such Gross Asset Value shall thereafter be adjusted by the Depreciation taken
into account with respect to such asset for purposes of computing Income and
Losses.
"Income" and "Loss" means, respectively, for each Fiscal Year or other
period, an amount equal to the Company's taxable income or loss for such year or
period, determined in accordance with Code Section 703(a), except that for this
purpose (i) all items of income, gain, deduction or loss required to be
separately stated by Code Section 703(a)(1) shall be included in taxable income
or loss; (ii) tax exempt income shall be added to taxable income or loss; (iii)
any expenditures described in Code Section 705(a)(2)(B) (or otherwise treated in
a similar manner) and not otherwise taken into account in computing taxable
income or loss shall be subtracted; (iv) in the event the Gross Asset Value of
any Company asset is adjusted pursuant to subparagraphs (2) or (3) of the
definition of Gross Asset Value hereunder, the amount of such adjustment shall
be taken into account as gain or loss from the disposition of such asset for
purposes of computing Income or Losses; (v) gain or loss resulting from any
disposition of a Company asset 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 asset disposed of, notwithstanding that the adjusted tax
basis of such asset differs from its Gross Asset Value; (vi) 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 or other period computed in accordance with
the definition of Depreciation contained herein; (vii) to the extent an
adjustment to the adjusted tax basis of any Company asset pursuant to Code
Sections 734(b) or 743(b) is required by Treasure Regulations
ss.1.704-1(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 Member'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 the basis of the asset) from the disposition of the
asset and shall be taken into account for purposes of computing Income or
Losses, and (viii) notwithstanding any other provision of this definition,
taxable income or loss shall be adjusted to eliminate the impact of any item of
income or loss specifically allocated in Article IV.
"Indemnified Parties" has the meaning set forth in Section 7.6.2.
"Indemnified Party" has the meaning set forth in Section 7.6.4.
"Indemnifying Party" has the meaning set forth in Section 7.6.4.
"Interest" refers to all of a Member's right and interest in the
Company in its capacity as a Member.
"Intellectual Property" has the meaning set forth in Section 11.4.
"Law" means any federal, state, or local law, rule, regulation or
ordinance.
"Liquidation Proceeds" shall have the meaning set forth in Section
10.2.
"Losses" has the meaning set forth in Section 7.6.1.
"Managers" means the Person or Persons designated as Managers of the
Company in the Certificate of Formation or those Persons subsequently chosen as
the Managers of the Company from time to time pursuant to Article V.
"Members" means those Persons who are members of the Company from time
to time, including any Substitute Members. The initial Members of the Company
shall be those Persons listed in the preamble of this Agreement.
"Member Minimum Gain" means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such
Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
accordance with Treasury Regulations ss.1.704-2(i)(3).
"Member Nonrecourse Debt" shall have the same meaning as partner
nonrecourse debt set forth in Treasury Regulations ss.1.704-2(b)(4).
"Member Nonrecourse Deductions" shall have the same meaning as partner
nonrecourse deductions set forth in Treasury Regulations ss.1.704-2(i)(2).
Generally, the amount of Member Nonrecourse Deductions with respect to a Member
Nonrecourse Debt for a Fiscal Year equals the excess, if any, of the net
increase, if any, in the amount of the Member Minimum Gain attributable to such
Member Nonrecourse Debt during that Fiscal Year over the aggregate amount of any
distributions during that Fiscal Year to the Member that bears the economic risk
of loss for such Member Nonrecourse Debt to the extent distributions are from
proceeds of such Member Nonrecourse Debt and are allocable to an increase in
Member Minimum Gain determined in accordance with Treasury Regulations
ss.1.704-2(i).
"Nonrecourse Deduction" shall have the same meaning as nonrecourse
deductions set forth in Treasury Regulations ▇▇.▇▇. 1.704-2(b)(1) and
1.704-2(c). Generally, the amount of Nonrecourse Deductions for a Fiscal Year
equals the excess, if any, of any increase, if any, in the amount of Company
Minimum Gain during that Fiscal Year over the aggregate amount of any
distributions during that Fiscal Year of proceeds of a Nonrecourse Liability
that are allocable to an increase in Company Minimum Gain, determined according
to the provisions of Treasury Regulations ss.1.704-2(c) and (h).
"Nonrecourse Liability" means a Company liability with respect to
which no Member bears the economic risk of loss as determined under Treasury
Regulations ▇▇.▇▇. 1.752-1(a)(2) and 1.752-2.
"Offer" has the meaning set forth in Section 9.2.1.
"Oilseeds" shall mean soybeans.
"Other Member" has the meaning set forth in Section 9.2.1.
"PNW" has the meaning set forth in Section 2.9.
"Percentage Interest" means, with respect to any Member, such Member's
Percentage Interest in the Company, including such Member's percentage of the
net income, gain, loss, deduction and credits of the Company. The Percentage
Interest for each Member, prior to any adjustments thereto required by the
provisions of this Agreement, shall be as follows:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ 50%
CENEX HARVEST STATES COOPERATIVES 50%
Unless otherwise expressly set forth in this Agreement, no changes shall be made
to the Members' Percentage Interests set forth above without the unanimous
written consent of the Members.
"Person" means any individual, partnership, corporation, cooperative,
trust or other entity.
"Property" means all properties and assets that the Company may own or
otherwise have an interest in from time to time.
"Receiving Party" has the meaning set forth in Section 11.1
"Related Party Transactions" has the meaning set forth in Section 15.1.
"Revaluation" has the meaning set forth in Section 9.1.3.
"Selling Member" has the meaning set forth in Section 9.2.
"Services Agreements" has the meaning set forth in Section 2.8.1.
"Substitute Member" shall have the meaning set forth in Section 9.1.3.
"Tacoma Facility" shall have the meaning set forth in Section 2.10.
"Tacoma Facility Sublease" shall have the meaning set forth in Section
2.10.
"Tax Matters Member" shall have the meaning set forth in Section 8.11.
"Treasurer" has the meaning set forth in Section 6.3.
"Treasury Regulations" means the regulations promulgated by the
Treasury Department with respect to the Code, as such regulations are amended
from time to time, or corresponding provisions of future regulations.
1.2 INTERPRETATION. Words of the masculine gender shall be deemed to include the
feminine and neuter genders, and vice versa, where applicable. Words of the
singular number shall be deemed to include the plural number, and vice versa,
where applicable.
ARTICLE II
ORGANIZATION
2.1 PRINCIPAL OFFICE. The principal office of the Company shall be located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place(s)
as the Managers may determine from time to time.
2.2 REGISTERED AGENT. The Company shall maintain a registered office at c/o The
Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name and address of the Company's registered
agent is the Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2.3 BUSINESS PURPOSE.
2.3.1 The Company will have all of the powers and authority granted by
the Act, any other Law and this Agreement necessary, appropriate, advisable or
convenient to the conduct, promotion or attainment of the Business Purpose of
the Company. The Company may not conduct, however, any business or activities
outside the scope of the Business Purpose.
2.3.2 The scope of the Business Purpose may be modified only upon the
written agreement of all Members.
2.4 TERM. The Company shall continue in existence from the effective date of the
Certificate of Formation until the 11th day of July, 2004 unless earlier
terminated in accordance with this Agreement or the Act or unless otherwise
extended by the written mutual agreement of the Members.
2.5 NO LIABILITY OF MEMBERS, REPRESENTATIVES AND OFFICERS. No Member or its
representative or officer, solely by reason of such status, shall be liable,
under a judgment, decree or order of a court, or in any other manner, for any
debt, obligation or liability of the Company, whether arising in contract, tort
or otherwise, or for the acts or omissions of any other Member or its
representative or officer. The failure of the Company to observe any formalities
or requirements relating to the exercise of its powers or management of its
business or affairs under this Agreement or the Act shall not be grounds for
imposing liability on the Members, or representatives or officers of a Member,
for liabilities of the Company.
2.6 INTEREST NOT ACQUIRED FOR RESALE. Each Member warrants to the Company and
the other Members that: (a) the Member is duly organized, validly existing, and
in good standing under the laws of its state of organization and that it has the
requisite power and authority to execute this Agreement and to perform its
obligations hereunder; (b) the Member is acquiring an Interest for such Member's
own account as an investment and with no intent to distribute such Interest; and
(c) the Member acknowledges that the Interests have not been registered under
the Securities Act of 1933 or any state securities laws, and such Member's
Interest may not be resold or transferred by it except in accordance with this
Agreement, the Act and all applicable Law.
2.7 ADOPTION OF BUSINESS PLAN. At least sixty (60) days prior to the beginning
of each Fiscal Year, the Board of Managers shall adopt a business plan (the
"Business Plan") for such Fiscal Year, which may be amended from time to time;
provided, however, that the Board of Managers shall adopt an initial Business
Plan within thirty (30) days after the Effective Date. The Business Plan shall
include an annual budget for revenues, expenses, working capital reserves and
capital expenditures; any additional capital contributions anticipated to be
required for the operation of the Company's Business; and such other
information, plans and strategies as the Managers deem advisable. If the Board
of Managers fail to adopt
a Business Plan for any Fiscal Year as required hereunder, the Business Plan
previously in effect shall continue in effect until a new Business Plan has been
adopted.
2.8 PROVISION OF SERVICES BETWEEN THE COMPANY AND THE MEMBERS.
2.8.1 Upon the request of the General Manager or the Board of Managers,
either Member, without charge, shall provide to the Company basic management and
administrative advice and consultation of the kind generally provided by
corporate staff to operating line functions and, including but not limited to
legal services, loss prevention and safety counseling, transportation and human
resources counseling, and insurance counseling (but excluding management
information services), so long as the Member is providing those services to its
other business segments. Upon the request to provide such Services, the Company
and the Members shall each enter into a services agreement ("Services
Agreement"). The Services Agreements shall be substantially similar to the form
attached hereto as Exhibit 2.8.1. The Members may provide other services to the
Company as the Members and the Company mutually agree upon from time to time.
2.8.2 The expenses incurred by Cargill in its Portland, Oregon office
to provide the Company with export administration support shall be provided at
no cost to the Company. Similarly, the expenses incurred by CHS in its St. ▇▇▇▇,
Minnesota office to provide the Company with accounting and trading
administration support shall be provided at no cost to the Company.
2.8.3 The Board of Managers shall oversee the provision of services
under this Section 2.8, and in the event the contribution by the Members is not
generally equal, the Board of Managers shall take such action as it deems
necessary, such as having the Company pay one or both Members for some or all of
such services.
2.9 SCOPE OF COMPANY BUSINESS. The Company business shall be limited to the
Business Purpose. The Company intends to source Feedgrains and Oilseeds
primarily from its Members and its Members intend to supply Feedgrains and
Oilseeds on market terms from their grain originating facilities and, in the
case of CHS, its affiliated cooperatives from which it purchases such Feedgrains
and Oilseeds, customarily tributary to the Pacific Northwest, United States
("PNW") export market.
2.10 SUBLEASE OF TACOMA FACILITY. In order to facilitate the ability of the
Company to transport and handle the Feedgrains and Oilseeds which it intends to
market into export channels, TEMCO has historically utilized the Tacoma Facility
and has entered into the Sublease Agreement between Continental and the TEMCO
dated September 28, 1992 and amended by that certain Amendment No. 1 to Sublease
dated June 1, 1997 and amended and restated in that certain Amended and Restated
Sublease dated July 12, 1999, and the Company desires to utilize the Tacoma
Facility and shall obtain all rights, obligations and liabilities of that
certain Amended and Restated Sublease (the "Tacoma Facility Sublease"),
consistent with the conversion provisions of the Act. The Tacoma Facility
Sublease shall terminate on the termination, expiration or dissolution of the
Company or as otherwise provided for in the Tacoma Facility Sublease.
2.11 EXCLUSIVITY IN THE PACIFIC NORTHWEST.
2.11.1 Each Member agrees to commit all of its Feedgrains and Oilseeds
origination that is tributary to the PNW for export to the Company. Whether
origination is tributary to the PNW for export shall be based upon what is the
best market (i.e., what is the best net value to the Member originating and
selling the grain) for such grain at the time the grain is to be liquidated. If
markets offer equal value, origination shall be split equally between the
markets, unless doing so negatively impacts the net value to
the Member. The Members shall transfer grain to the Company at the Company's bid
price for such grain.
2.11.2 Each Member further agrees that the Company shall be the
exclusive export-marketing vehicle for it and its Affiliates for Feedgrains and
Oilseeds exported through the PNW.
2.11.3 Upon request of either Member, the other Member shall provide
information reasonably requested to the requesting Member to verify compliance
with the terms of this Section 2.12.
2.12 INSURANCE. The Company shall purchase and maintain commercial general
liability and property insurance on the Tacoma Facility and other insurance
coverage, with deductibles and limits, as established and approved by the Board
of Managers. The coverage, limits and deductibles shall not be changed without
the approval of the Board of Managers.
2.13 PROVISION OF THROUGHPUT SERVICES. The Company shall also provide throughput
services for wheat, barley or other commodities at the Tacoma Facility for
either Member from time to time at market rates.
ARTICLE III
FINANCIAL MATTERS, CONTRIBUTIONS AND LOANS
3.1 INITIAL CAPITAL CONTRIBUTIONS. As of the Effective Date of this Agreement,
each Member will have made an initial contribution to the capital of the Company
as set forth on Exhibit 3.1 attached hereto and such initial contribution shall
be made contemporaneous with the execution of this Agreement. Any Additional
Contributions will become due in accordance with Section 3.2. The Members shall
make any Additional Contributions, as contemplated in Section 3.2, in proportion
to each Member's respective Percentage Interest at the time such contribution is
required to be made. For tax purposes, the LLC will be viewed as a continuation
of the partnership and assets will retain the same tax attributes for purposes
of maintaining the capital accounts.
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS.
3.2.1 The Members agree that the Company shall meet its capital needs
through the borrowing of funds as provided in Section 8.3 and that unless
specifically agreed to by the Members and except as set forth in this Section
3.2, the Members shall not be obligated to make any additional capital
contributions to the Company. However, if the Board of Managers determine that
additional capital contributions are appropriate or necessary for the Company,
the General Manager shall, by written notice, call for such additional
contributions to the capital of the Company as the Board of Managers determine
should be made by the Members. Within a period of time determined by the Board
of Managers, not to exceed thirty (30) days following the delivery of such
notice, each Member shall contribute, in cash, to the capital of the Company an
amount ("Additional Contribution") equal to such Member's Percentage Interest
multiplied by the aggregate additional capital contribution as called for by the
Board of Managers.
3.2.2 No interest shall accrue on any Member's Capital Account. A
Member shall not be entitled to withdraw any part of its capital in the Company
or to receive any capital distribution from the Company except as part of a
distribution of capital agreed to by the Board of Managers as hereinafter
defined or as provided in Article VIII.
3.2.3 All capital contributions and other payments required or
permitted to be made by a Member under this Agreement shall be either in cash
or, at the request of any Member and if agreed to by
the Board of Managers, on such conditions and for such fair value as the Board
of Managers as hereinafter defined shall so determine, in kind.
3.2.4 If a Member (a "Delinquent Member") shall fail to make when due a
contribution required pursuant to this Agreement, the other Member (the
"Contributing Member") may, in its sole discretion, advance all or part of that
amount to the Company. Such advance shall be deemed to be a demand loan by the
contributing Member to the Delinquent Member at an interest rate equal to 2% in
excess of the Prime Rate for the period during which the advance is outstanding.
This loan shall be repaid, together with such interest, by the Delinquent Member
promptly upon demand from any funds of the Delinquent Member, including, without
limitation, any distribution from the Company which would otherwise be payable
to the Delinquent Member. Unless and until the Delinquent Member makes such
repayment, the Company shall make no cash distribution to such Member (except
that a cash distribution shall be applied to make such repayment and the balance
then made to the formerly Delinquent Member). The Contributing Member to which
such debt is due (or to which a debt pursuant to Article VIII is due) shall have
a security interest in the Interest of the Delinquent Member to secure such
amounts owed to it, and such security interest is hereby granted by each Member.
To the extent that the principal amount of the delinquency is repaid, the
principal amount of such repayment (excluding any interest) shall be deemed a
contribution to the capital of the Company by the Delinquent Member and shall be
reflected as such in the Capital Account of the Delinquent Member.
3.3 CAPITAL ACCOUNTS. A separate Capital Account shall be maintained for each
Member in accordance with Treasury Regulations ss.1.704-1(b)(2)(iv). Each
Member's Capital Account shall be (a) increased by: (i) the amount of any cash
and the Gross Asset Value of property contributed to the Company by such Member,
including the initial contribution set forth in Section 3.1 (net of liabilities
secured by such contributed property that the Company is considered to assume or
take subject to under Code Section 752), (ii) allocations to such Member,
pursuant to Article IV, of Company income and gain (or items thereof), and (iii)
to the extent not already netted out under clause (b)(ii) below, the amount of
any Company liabilities assumed by the Member or which are secured by any
property distributed to such Member; and (b) decreased by: (i) the amount of
cash distributed to such Member by the Company, (ii) the Gross Asset Value of
property distributed to such Member (net of liabilities secured by such
distributed Property that such Member is considered to assume or take subject to
under Code Section 752), (iii) allocations to such Member, pursuant to Article
IV, of Company loss and deduction (or items thereof), and (iv) to the extent not
already netted out under clause (a)(ii) above, the amount of any liabilities of
the Member assumed by the Company or which are secured by any property
contributed by such Member to the Company.
In the event any Interest in the Company is 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 Interest.
In the event Property is subject to Code ss. 704(c) or is revalued on
the books of the Company in accordance with the first paragraph of this Section
3.3 and pursuant to Treasury Regulations ss.1.704-1(b)(2)(iv)(f), the Capital
Accounts shall be adjusted in accordance with Treasury Regulations
ss.1.704-1(b)(2)(iv)(g) for allocations to the Members of depreciation,
amortization and gain or loss, as computed for "book" purposes (and not tax
purposes) with respect to such Property.
The foregoing provisions of this Section 3.3 and the other provisions
of this Agreement relating to the maintenance of Capital Accounts are intended
to comply with Treasury Regulations ▇▇.▇▇. 1.704-1(b) and 1.704-2, and shall be
interpreted and applied in a manner consistent with such Treasury Regulations.
In the event the Board of Managers determine that it is prudent or advisable to
modify the manner in which the Capital Accounts, or any increases or decreases
thereto, are computed in order to comply with
such Treasury Regulations, the Board of Managers may cause such modification to
be made, provided that it is not likely to have a material effect on the amounts
distributable to any Member upon the dissolution of the Company. In addition,
the Members may amend this Agreement in order to comply withsuch Treasury
Regulations as provided in Section 4.5(k) below.
3.4 CAPITAL WITHDRAWAL RIGHTS, INTEREST AND PRIORITY. Prior to the dissolution
and termination of the Company, no Member shall be entitled to withdraw or
reduce such Member's Capital Account or to receive any distributions from the
Company, except as provided in Articles IV and IX. No Member shall be entitled
to receive or be credited with any interest on the balance in such Member's
Capital Account at any time. Except as may be otherwise expressly provided
herein, no Member shall have any priority over any other Member as to the return
of the balance in such Member's Capital Account.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.1 NON-LIQUIDATION CASH DISTRIBUTIONS. Any Available Cash shall be distributed
as may be agreed to by the Board of Managers, to the Members in accordance with
their respective Percentage Interests as of the end of such Fiscal Year and at
such other times as may be agreed to by the Board of Managers.
4.2 LIQUIDATION DISTRIBUTIONS. Liquidation Proceeds shall be distributed in the
following order of priority:
(a) To the payment of debts and liabilities of the Company (including
to Members to the extent otherwise permitted by law) and the expenses of
liquidation; then
(b) To the setting up of such reserves as the Person required or
authorized by law to wind up the Company's affairs may reasonably deem necessary
or appropriate for any disputed, contingent or unforeseen liabilities or
obligations of the Company, if any, provided that any such reserves shall be
paid over by such Person to an independent escrow agent, to be held by such
agent or its successor for such period as such Person shall deem advisable for
the purpose of applying such reserves to the payment of such liabilities or
obligations and, at the expiration of such period, the balance of such reserves,
if any, shall be distributed as hereinafter provided; then
(c) To the Members in accordance with and to the extent of the
positive balances in their respective Capital Accounts after taking into account
the allocation of all Income or Loss pursuant to this Agreement for the Fiscal
Year(s) in which the Company is liquidated until such Capital Accounts are
reduced to zero; then
(d) Any remainder to the Members in proportion to their Percentage
Interests.
4.3 PROFITS, LOSSES AND DISTRIBUTIVE SHARES OF TAX ITEMS. The Company's Income
or Loss, as the case may be, for each Fiscal Year of the Company, as determined
in accordance with such method of accounting as may be adopted for the Company
pursuant to Article VII, shall be allocated to the Members for both financial
accounting and income tax purposes as set forth in this Article IV, except as
otherwise provided for herein or unless the Members unanimously agree otherwise.
4.4 ALLOCATION OF INCOME, LOSS AND CREDITS.
4.4.1 Income or Loss (other than from liquidation transactions) and
Credits for each Fiscal Year shall be allocated among the Members in accordance
with their respective Percentage Interests. To the extent there is a change in
the respective Percentage Interests of the Members during the year, Income, Loss
and Credits shall be allocated among the pre-adjustment and post-adjustment
periods as provided in Section 4.5(l).
4.4.2 Income from liquidation transactions shall be allocated among
the Members in accordance with their respective Percentage Interests.
4.5 SPECIAL RULES REGARDING ALLOCATION OF TAX ITEMS. Notwithstanding the
foregoing provisions of Article IV, the following special rules shall apply in
allocating the Income or Loss of the Company:
(a) Code Section 704(c) and Revaluation Allocations. In accordance
with Code ss. 704(c) and the Treasury 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 Members so as to
take account of any variation between the adjusted basis of such property to the
Company for federal income tax purposes and its Gross Asset Value at the time of
contribution using such method of allocation as permitted under the applicable
Treasury Regulations as agreed by the Members. In the event of the adjustments
to Members' Capital Account(s) pursuant to Section 3.3 (hereinafter referred to
as a "Revaluation"), subsequent allocations of Income, gain, Loss and deduction
with respect to such property shall take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes
and its Fair Value immediately after the adjustment in the same manner as under
Code ss. 704(c) and the Treasury Regulations thereunder. If as a result of a
Revaluation, Company Minimum Gain is reduced, the reduction of such Company
Minimum Gain shall be added back to the net decrease or increase in Company
Minimum Gain otherwise determined. Any elections or other decisions relating to
such allocations shall be made by the Board of Managers in a manner that
reasonably reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 4.5(a) are solely for income tax purposes and shall not
affect, or in any way be taken into account in computing, any Member's Capital
Account or share of Income or Loss, pursuant to any provision of this Agreement.
(b) Minimum Gain Chargeback. Notwithstanding any other provision of
this Article IV, if there is a net decrease in Company Minimum Gain during a
Fiscal Year or other taxable period, each Member shall be allocated items of
Income and gain for such year (and, if necessary, for subsequent years) in
proportion to, and to the extent of, an amount equal to the greater of: (1) the
portion of such Member's share of the net decrease in Company Minimum Gain
during such year that is allocable to the disposition of Company property
subject to Nonrecourse Liabilities; or (2) if such Person would otherwise have
an Adjusted Capital Account Deficit at the end of such year, an amount
sufficient to eliminate such Member's Adjusted Capital Account Deficit. The
items to be allocated shall be determined in accordance with Treasury
Regulations ss.1.704-2(g). For purposes of this Section 4.5(b) only, each
Member's Adjusted Capital Account Deficit shall be determined prior to any other
allocations pursuant to this Article IV with respect to such Fiscal Year and
without regard to any net decrease in Member Minimum Gain during such Fiscal
Year. The foregoing provisions of this Section 4.5(b) are intended to comply
with Treasury Regulations ss.1704-2(f) and shall be interpreted and applied in a
manner consistent with such regulation.
A Member's share of Company Minimum Gain shall be, as of the relevant
time, the excess of (u) the sum of Nonrecourse Deductions allocated to such
Member and the aggregate distributions to such Member of Nonrecourse Liability
proceeds allocable to an increase in Company Minimum Gain, over (v) the sum of
the Member's aggregate share of the net decreases in Company Minimum Gain,
including
decreases from Revaluations. In computing the above, amounts allocated or
distributed to the Member's predecessor-in-interest shall be taken into account.
(c) Member Minimum Gain Chargeback. Notwithstanding any other
provision of this Article IV other than Section 4.5(b), if there is a net
decrease in Member Minimum Gain during a Fiscal Year or other taxable period,
each Member who has a share of the Member Minimum Gain attributable to such
Member Nonrecourse Debt shall be allocated items of Income and gain for such
year (and, if necessary, for subsequent years) in proportion to, and to the
extent of, an amount equal to the greater of: (1) the portion of such Member's
share of the net decrease in Member Minimum Gain attributable to such Member
Nonrecourse Debt during such year that is allocable to the disposition of
Company property subject to such Member Nonrecourse Debt; or (2) if such Person
would otherwise have an Adjusted Capital Account Deficit at the end of such
year, an amount sufficient to eliminate such Member's Adjusted Capital Account
Deficit. The items to be allocated shall be determined in accordance with
Treasury Regulations ss.1.704-2(i)(4) and (5). For purposes of this Section
4.5(c) only, each Member's Adjusted Capital Account Deficit shall be determined
prior to any other allocations pursuant to this Article IV with respect to such
Fiscal Year, other than allocations of Company Minimum Gain pursuant to Section
4.5(b) hereof. The foregoing provisions of this Section 4.5(c) are intended to
comply with Treasury Regulations ss.1.704-2(i)(4) and shall be interpreted and
applied in a manner consistent with such regulation.
(d) Qualified Income Offset. In the event any Member unexpectedly
receives an adjustment, allocation or distribution described in Treasury
Regulations ss.1.704.1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases
such Member's Adjusted Capital Account Deficit, items of Company Income and gain
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate such Adjusted Capital Account Deficit as quickly as possible,
provided that an allocation under this Section 4.5(d) shall be made if and only
to the extent such Member would have an Adjusted Capital Account Deficit after
all other allocations under this Article IV have been made. It is intended that
this Section 4.5(d) be interpreted to comply with the alternate test for
economic effect set forth in Treasury Regulations ss.1.704-1(b)(2)(ii)(d).
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year
or other period shall be allocated to the Members in proportion to their
Percentage Interests.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deduction
shall be allocated to the Member who bears the risk of loss with respect to the
loan to which such Member Nonrecourse Deductions are attributable in accordance
with Treasury Regulations ss.1.704-2(i)(1).
(g) Curative Allocations. Any special allocations of items of Income,
gain, deduction or Loss pursuant to Sections 4.5(b), (c), (d), (e) and (f) shall
be taken into account in computing subsequent allocations of income and gain
pursuant to this Article IV, so that the net amount of any items so allocated
and all other items allocated to each Member pursuant to this Article IV shall,
to the extent possible, be equal to the net amount that would have been
allocated to each such Member pursuant to the provisions of this Article IV if
such adjustments, allocations or distributions had not occurred. No allocations
pursuant to Sections 4.5(b) and (c) shall be made prior to the Fiscal Year or
other taxable period during which there is a net decrease in Company Minimum
Gain or Member Minimum Gain, respectively, and in any such case then only to the
extent necessary to avoid the potential distortion. In addition, allocations
pursuant to this Section 4.5(g) with respect to Nonrecourse Deductions in
Section 4.5(e) and Member Nonrecourse Deductions in Section 4.5(f) shall be
deferred to the extent the Members reasonably determine that such allocations
are likely to be offset by subsequent allocations of Company Minimum Gain or
Member Minimum Gain, respectively.
(h) Code Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Company asset pursuant to Code ▇▇.▇▇. 734(b) or 743(b)
is required, pursuant to Treasury Regulations ▇▇.▇▇. 1.704-1(b)(2)(iv)(m)(2) or
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as the result of a distribution to a Member in complete liquidation of
its interest in the Company, the amount of such adjustment to the 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 Members in accordance with
their interests in the Company if Treasury Regulations
ss.1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distributions
was made in the event that Treasury Regulations ss.1.704-1(b)(2)(iv)(m)(4)
applies.
(i) Loss Allocation Limitation. Notwithstanding the other provisions
of this Article IV, unless otherwise agreed to by the Managers, no Member shall
be allocated Loss in any Fiscal Year or other taxable period that would cause or
increase an Adjusted Capital Account Deficit as of the end of such Fiscal Year
or other taxable period.
(j) Share of Nonrecourse Liabilities. Solely for purposes of
determining a Member's proportionate share of the "excess nonrecourse
liabilities" of the Company within the meaning of Treasury Regulation
ss.1.752-3(a)(3), each Member's Interest in Company profits is equal to such
Member's respective Percentage Interest.
(k) Compliance with Treasury Regulations. The foregoing provisions of
this Section 4.5 are intended to comply with Treasury Regulations ▇▇.▇▇.
1.704-1(b), 1.704-2 and 1.752-1 through 5, and shall be interpreted and applied
in a manner consistent with such Treasury Regulations.
(l) General Allocation Provisions. Except as otherwise provided in
this Agreement, all items that are components of Income or Loss shall be divided
among the Members in the same proportions as they share such Income or Loss, as
the case may be, for the year. For purposes of determining the Income, Loss or
any other items for any period, Income, Loss or any such other items shall be
determined on a daily, monthly or other basis, on an accrual method of
accounting.
4.6 WITHHOLDING OF DISTRIBUTIONS. Notwithstanding any other provision of this
Agreement, the Board of Managers (or any Person(s) required or authorized by law
to wind up the Company's affairs) may determine in their absolute discretion,
when in their opinion it is in the best interest of the Company, to suspend or
restrict distributions.
4.7 NO PRIORITY. Except as may be otherwise expressly provided herein, no Member
shall have priority over any other Member as to Company Income, gain, Loss,
Credits and deductions or distributions.
4.8 TAX WITHHOLDING. Notwithstanding any other provision of this Agreement, the
Board of Managers are authorized to take any action that they determine to be
necessary or appropriate to cause the Company to comply with any withholding
requirements established under any federal, state or local tax law, including,
without limitation, withholding on any distribution to any Member. For all
purposes of this Article IV, any amount withheld on any distribution and paid
over to the appropriate governmental body shall be treated as if such amount had
in fact been distributed to the Member.
ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 BOARD OF MANAGERS. Except as reserved to the Members in this Agreement, the
business and affairs of the Company shall be managed under the direction of the
Board of Managers ("Board of Managers"), and the Board of Managers shall have
power and authority to manage and direct the business and affairs of the
Company. Approval by or actions taken by the Board of Managers in accordance
with this Agreement shall constitute approval or action by the Company.
5.2 DESIGNATION OF MANAGERS. The Board of Managers shall at all times consist of
six (6) Managers. Two Managers shall be appointed by Cargill and two Managers
shall be appointed by CHS and each Member may appoint such alternate Managers as
such Member deems advisable. Each of the Members may initially appoint or
replace any or all of its Managers or alternate Managers of the Board of
Managers by written notice to the Company and the other Member. Each of the
Members shall at all times maintain in effect the appointment of at least one
(1) Manager. Each Manager shall serve for indefinite terms at the pleasure of
the appointing Member. The initial Managers of the Company, as appointed by each
Member, are set forth on Exhibit 5.2
5.3 POWERS OF THE MANAGERS. In addition to the powers and authorities conferred
upon them by this Agreement, the Certificate of Formation and the Act, the Board
of Managers may exercise all of the powers of the Company, and do all such
lawful acts and things, that are not by statute or by the Certificate of
Formation or by this Agreement directed or required to be exercised or done by
the Members. Notwithstanding the foregoing, except as provided below with
respect to the General Manager, the Managers individually are not agents of the
Company and do not have any authority to take any actions or execute any
instruments on behalf of the Company or otherwise act for or bind the Company.
5.4 MEETINGS.
5.4.1 The Board of Managers shall meet not less than quarterly at such
times and places as it may determine. Meetings of the Board of Managers may be
called by one (1) Manager. Notice of each meeting of the Board of Managers shall
be sent by facsimile (with confirmation receipt) or mail or delivered
personally, or by telephone, to each regular and alternate Manager not later
than ten (10) Business Days before the date on which the meeting is to be held.
The Manager(s) entitled to notice of meetings may waive such notice.
5.4.2 The attendance of two (2) Managers from each Member shall
constitute a quorum for the transaction of business of the Board of Managers.
Each Manager at the meeting shall be entitled to one vote for each matter to be
voted upon by the Board of Managers. Any decision or approval before the Board
of Managers shall be taken by majority vote of those of the Board of Managers
present or participating in a meeting at which a quorum is present; provided,
however, no action shall be authorized unless at least one (1) Manager appointed
by each Member votes affirmatively on such action. The failure of the Board of
Managers to authorize action with respect to any matter pursuant to the
foregoing sentence shall constitute a Deadlock pursuant to Section 5.6.
5.4.3 The regular Managers shall alternately act as chairperson of
meetings of the Board of Managers. Minutes of all meeting shall be prepared by
the Secretary and shall be distributed to all regular Managers (and alternate
Managers if present at a meeting) within thirty (30) days following any meeting.
5.5 FUNDAMENTAL ISSUES. No action may be taken or decision made which binds the
Company by the General Manager, any Member on behalf of the Company, or the
Company, with regard to any of the Fundamental Issues without the vote (or
written consent) of the Board of Managers in accordance with Section 5.4.2.
Fundamental Issues shall include decisions and actions on the following matters,
and such other matters as may be deemed Fundamental Issues, from time to time,
by the Board of Managers:
(a) calls for Additional Contributions or guarantees hereunder;
(b) the issuance of any notes, bonds, debentures or other obligations
by the Company, or the incurrence of or assumption of any indebtedness if, after
giving effect thereto, the aggregate principal amount of all such indebtedness
of the Company, other than indebtedness previously approved by the Board of
Managers (including, without limitation, the utilization by the Company of lines
of credit previously approved by the Board of Managers for the purpose of
financing the business of the Company in the ordinary course), would either (i)
exceed the amounts specifically provided therefor and sufficiently identified in
the Company's current annual budgets referred to in Sections 5.5(p) and 8.1, or
(ii) result in direct or indirect liability on either or both of the Members for
repayment of such indebtedness;
(c) any acquisition, disposition, sale, conveyance, lease, sublease,
exchange or other disposition of any interest in the Tacoma Facility other than
the sublease contemplated by Section 2.10 hereof;
(d) the acquisition, disposition, sale, conveyance, lease, sublease,
exchange or other disposition of real property having a value greater than a
threshold amount to be determined by the Board of Managers;
(e) the acquisition, disposition, sale, conveyance, lease, sublease,
exchange or other disposition of personal property, other than agricultural
commodities traded in the ordinary course of business, with a value greater than
a threshold amount to be determined by the Board of Managers;
(f) investing in any Person;
(g) the establishment of trading position limits for agricultural
commodities traded by the Company;
(h) the making of loans or provision of guaranties, or the extension
or pledge of credit to others, except endorsements and extensions of credit in
the ordinary course of business;
(i) the sale of any equity interests (or operation, warrant,
conversion in similar rights with respect thereto) in the Company;
(j) the selection, appointment, remuneration, removal and
determination of the terms and conditions of employment agreements of officers,
executives and key employees of the Company;
(k) the payment of bonuses and perquisites to officers, executives and
key employees of the Company;
(l) the confession of any judgment against the Company or the
creation, assumption, incurrence, or suffering to be created, assumed or
incurred or to exist of, any encumbrance upon any of the assets or property of
the Company, or the acquisition or holding or agreement to acquire or hold such
property or assets subject to any encumbrance other than (i) liens for taxes not
yet due or which are being contested in good faith by appropriate proceedings,
and (ii) other minor encumbrances incidental to the conduct of the business of
the Company or the ownership of its property and assets which are not incurred
in connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the value of
such property or assets or materially impair the use thereof in the operation of
the business of the Company;
(m) the compromise or submission to arbitration (other than by
contract specifically providing for arbitration) or litigation of any claim due,
or any dispute or controversy involving the Company for any claim, dispute or
controversy in excess of any amount to be determined by the Board of Managers;
(n) the entering into of any contract or commitment (other than those
contracts made in the ordinary course of business) involving aggregate
expenditures in excess of an amount to be determined by the Board of Managers;
(o) the entering into any contract or commitment (other than those
commodity, sales and purchase contracts made in the ordinary course of the
Company's grain merchandising business) involving either Member, or any of their
Affiliates;
(p) the approval of the annual business operating budget, capital
expenditure budget and business plan and the amount of Cash for Distribution and
adoption of other major financial policies of the Company;
(q) the approval of the opening financial statements of the Company as
referred to in Section 8.6;
(r) the appointment and removal of the independent third party
accountants ("Accountants") for the Company;
(s) any material changes in the purposes of the Company beyond that
expressly contemplated by this Agreement as provided in Section 2.3;
(t) the voluntary dissolution and winding-up of the Company, provided,
however, that this provision shall in no way limit the rights of the Members
under Article XI.
(u) any changes in the scope or method of operations or business
policies of the Company which is likely to materially increase the working
capital or cash requirements of the Company.
(v) approval of the credit policy applicable to export sales and any
material deviation therefrom.
5.6 DEADLOCK. If the Board of Managers cannot agree on any Fundamental Issue
within thirty (30) days following the Board of Managers' meeting at which a
decision on such Fundamental Issue was sought, or within thirty (30) days of any
such Fundamental Issue being submitted to the Managers for approval, then such
matter shall be submitted to the Chief Executive Officer of CHS and the
appropriate Business Unit President of Cargill to resolve. If the above
mentioned executives of the Members are unable to resolve such deadlocked
Fundamental Issue within thirty (30) days following submission of the matter to
them for resolution, and such Fundamental Issue has or will have a material
adverse effect on the business of the Company, then the matter shall be
submitted to arbitration in accordance with Section 13.2 of this Agreement.
5.7 SUBCOMMITTEES. The Board of Managers may appoint such subcommittees as it
deems advisable, each with an equal number of representatives from each Member.
5.8 WAIVER OF NOTICE. Whenever any notice is required to be given hereunder, a
written waiver thereof, signed by the Person entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance or participation of a Person at a meeting shall constitute a waiver
of notice of such meeting, except when the Person attends or participates in a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular meeting of the Managers need be
specified in any written waiver of notice, but the business to be transacted at,
or the purpose of, any special meeting of the Managers shall be specified in any
written waiver of notice.
5.9 MEETINGS BY CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT.
Notwithstanding Section 5.4.1, any Manager may participate in a meeting by means
of conference telephone or similar communications equipment by means of which
all Persons participating in the meeting can hear each other, and participation
in a meeting pursuant hereto shall constitute presence in Person at such
meeting.
5.10 ACTION WITHOUT MEETING. Any action required, or permitted, to be taken at
any meeting of the Board of Managers may be taken without a meeting if written
consent thereto is signed by all of the Managers and such written consent is
filed with the books and records of the Company.
5.11 POWERS OF MEMBERS. Notwithstanding anything contained in this Article V,
only the Members shall have the power and authority, and unanimous consent of
the Members shall be required, to (a) admit a new Member, except as provided in
Article IX; (b) amend or repeal this Agreement or the Certificate of Formation
or adopt a new limited liability company agreement; and (c) amend or repeal any
resolution of the Members which, by its terms, is not amendable or repealable.
ARTICLE VI
OFFICERS AND EMPLOYEES
6.1 THE GENERAL MANAGER.
6.1.1 Cargill shall appoint the General Manager so long as the
administration and trading functions of the Company are predominantly operated
out of CHS' facilities. If the Company's administration and trading functions
are moved to any Cargill facility, the General Manager shall be appointed by
CHS. The General Manager is hereby vested with such executive and financial
authority as to enable him to direct the business and affairs of the Company,
subject to the directions of the Board of Managers and in accordance with this
Agreement and the annual budget adopted by the Board of Managers. The General
Manager shall be authorized to execute documents within the scope of his
authority on behalf of the Company that will bind the Company without the
necessity of obtaining the signature of either of the Members. The General
Manager shall be responsible for the implementation of the various decisions of
the Board of Managers and for the day-to-day management and operation of the
Company. The General Manager shall regularly inform the Board of Managers of the
Company's ongoing activities. The General Manager shall report to and take
direction from the Board of Managers. The General Manager shall enter into
transactions on behalf of the Company except that the General Manager is not
authorized to take any action on a Fundamental Issue unless the Board of
Managers shall have approved such action pursuant to Section 5.4.2.
6.1.2 The General Manager shall provide the following reports to the
Board of Managers:
(i) daily position reports;
(ii) a weekly management report;
(iii) a monthly report on the financial condition and the
business prospects of the Company;
(iv) a monthly report summarizing all claims made and suits
filed against the Company, all potential claims and suits, and the final
settlement or other resolution of claims and suits; and
(v) other reports requested by the Board of Managers or one
of the Members.
The provision of any such reports shall be subject to any
communication guidelines to be established by the Members and the Company.
6.2 SECRETARY. The Secretary shall be appointed by the Board of Managers and
shall report to the General Manager. The Secretary shall act as Secretary of all
meetings of the Board of Managers, shall keep the minutes thereof in the proper
book or books to be provided for that purpose, shall see that all notices
required to be given by the Company are duly given and served, shall have charge
of the books, records and papers of the Company relating to its organization and
management as a Company, and shall see that the reports, statements and other
documents required by law are properly kept and filed; and shall, in general,
perform all the duties incident to the office of Secretary and such other duties
as from time to time may be assigned to him by the Board of Managers and the
General Manager.
6.3 TREASURER. The Board of Managers shall appoint the Treasurer. The Treasurer
shall report to the Board of Managers. The Treasurer shall perform all the
duties assigned to him by this Agreement including, without limitation, (a)
arranging for the Company to borrow funds pursuant to Section 8.3; (b)
submission to each Member of quarterly comparisons pursuant to Section 8.1.2,
current cash estimates pursuant to Section 8.2, and statements relating to
Emergency Needs pursuant to Section 8.2.2; (c) determination of the amount of
Cash for Distribution and the distribution of such Cash for Distribution
pursuant to Section 8.7; (d) causing to be prepared and given to each Member
un-audited financial statements pursuant to Section 8.6.2; (e) having charge of,
and being responsible for, all funds, securities and notes of the Company; (f)
receiving and giving receipts for moneys due and payable to the Company from any
sources whatsoever; (g) depositing all such moneys in the name of the Company in
such banks, trust companies or other depositaries as shall be selected by the
Board of Managers; (h) against proper vouchers, causing such funds to be
disbursed by checks or drafts on the authorized depositaries of the Company, and
being responsible for accuracy of the amounts of all moneys so disbursed; (i)
regularly entering or causing to be entered into books to be kept by him or
under his discretion full and adequate account of all moneys received or paid by
him for the account of the Company; (j) having the right to require, from time
to time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Company from the officers
or agents transacting the same; and, (k) in general, all the duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him by the Board of Managers or the General Manager.
6.4 OTHER PERSONS. The Board of Managers may appoint such other executive and
management employees, including Persons employed by Cargill or CHS, as it shall
from time to time deem appropriate, and may approve a plan for hiring of other
salaried employees including employees from Cargill and CHS.
6.5 APPOINTMENT AND REMOVAL OF OFFICERS AND EMPLOYEES. The Board of Managers
shall make the appointment and removal of officers and employees of the Company.
Either Member may request the removal of any officer or employee.
6.6 AFFILIATIONS. The officers, executives and other employees of the Company
may also be employees of the Members or their Affiliates, and shall not be
required (except as may be determined by the Board of Managers) to be full-time
employees of the Company. The Board of Managers and the Members will agree on
the designation of employees of the respective Members to be made available by
the respective Members for the purpose of providing marketing, transportation,
logistics, export
administration, grain settlements, accounting and other services, for and on
behalf of the Company. Such designated employees shall at all times remain
employees of the respective Members. The duties performed by such designated
employees for and on behalf of the Company in conducting and performing Company
business shall be Company business activities. In consideration of each of the
Members making such employees available to the Company, the Company shall pay to
each of the Members the charges for services by and other expenses incurred by
such designated employees in performing Company business and agreed by the Board
of Managers as reflected in the operating budget. The Company shall have the
right to direct the action of such designated employees in performance of their
duties for and on behalf of the Company. If the Company does not desire to
maintain the services of any such designated employee, the Company may so advise
the respective Member employing such designated employee and such Member shall
cause the designated employee to cease performing such services for and on
behalf of the Company. Each Member retains the right to fire its employees even
if designated to the Company or to transfer any such employee to other duties
within the business of such Member; provided, however, that such Member will
cooperate with the Company to provide a suitable replacement so that the
services of like kind provided by such dismissed or transferred employee will
continue to be provided to the Company.
ARTICLE VII
COMPENSATION, LIABILITY, INDEMNIFICATION AND NON-COMPETITION
7.1 COMPENSATION. No Manager will receive any compensation from the Company for
serving as Manager, and each Manager will be responsible for its own costs and
expenses in acting in such capacity.
7.2 LIABILITY OF MANAGERS. Except in the case where the Managers are guilty of
fraud, gross negligence, misconduct, reckless disregard of duty or a criminal
act which is a felony, no Manager shall be liable to the Company or any Member
for any loss, damage, liability or expense suffered by the Company or any Member
on account of any action taken or omitted to be taken by him as a Manager.
7.3 INDEMNIFICATION OF MANAGERS.
7.3.1 Subject to Subsection 7.3.4, the Company shall indemnify any
Person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the Company, by reason of the fact that such Person is or was a
Manager, manager, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a Manager, manager, officer, employee
or agent of another limited liability company, corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such Person in
connection with such action, suit or proceeding, including attorneys' fees, if
such Person acted in good faith and in a manner such Person reasonably believed
to be in (or not opposed to) the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such Person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Person did not act in good faith and in a manner which such Person
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had reasonable
cause to believe that such Person's conduct was unlawful.
7.3.2 Subject to Subsection 7.3.4, the Company shall indemnify any
Person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that such
Person is or was a Manager, manager, officer, employee or agent of the Company,
or is or was serving at the request
of the Company as a Manager, manager, officer, employee or agent of another
limited liability company, corporation, partnership, joint venture, trust or
other enterprise against expenses actually and reasonably incurred by such
Person in connection with the defense or settlement of such action or suit,
including attorneys' fees, if such Person acted in good faith and in a manner
such Person reasonably believed to be in (or not opposed to) the best interests
of the Company and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such Person shall have been adjudged to
be liable to the Company unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such Person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
7.3.3 To the extent that a Manager, manager, officer, employee or
agent of the Company has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Subsections 7.3.1 and 7.3.2, or
in defense of any claim, issue or matter therein, such Manager, manager,
officer, employee or agent shall be indemnified against expenses actually and
reasonably incurred by such Person in connection therewith, including attorneys'
fees.
7.3.4 Any indemnification under Subsections 7.3.1 and 7.3.2, unless
ordered by a court, shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the Manager, manager,
officer, employee or agent is proper in the circumstances because such Manager,
officer, employee or agent has met the applicable standard of conduct set forth
in Subsections 7.3.1 and 7.3.2. The Board of Managers shall make such
determination.
7.3.5 Expenses incurred by a Manager or officer in defending a civil
or criminal action, suit or proceeding may be paid by the Company in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the Manager or officer to repay such amount if it
is ultimately determined that the Manager or officer is not entitled to be
indemnified by the Company as authorized in this Section 7.3. Such expenses may
be so paid upon such terms and conditions, if any, as prescribed by the Board of
Managers.
7.3.6 The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section 7.3 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled.
7.3.7 The Company may purchase and maintain insurance on behalf of any
Person who is or was a Manager, manager, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a Manager,
manager, officer, employee or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such Person and incurred by such Person in any such
capacity, or arising out of such Person's status as such, whether or not the
Company would have the power to indemnify such Person against such liability
under the provisions of this Section 6.3.
7.3.8 For purposes of this Section 7.3, references to the "Company"
shall include, in addition to the limited liability company, any constituent
company or corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its Managers, managers, officers and
employees or agents, so that any Person who is or was a Manager, manager,
officer, employee or agent of such constituent entity, or is or was serving at
the request of such constituent entity as a Manager, manager, officer, employee
or agent of another limited liability company, corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under this
Section 7.3 with respect to the resulting or surviving
entity as such Person would have with respect to such constituent entity if its
separate existence had continued.
7.3.9 For purposes of this Section 7.3, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed to a Person with respect to any employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a Manager, manager, officer, employee or agent of the
Company which imposes duties on, or involves services by, such Manager, manager,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a Person who acted in good faith and in a
manner such Person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Section 7.3.
7.3.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 7.3 shall, unless otherwise provided when
authorized or ratified, continue as to a Person who has ceased to be a Manager,
manager, officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
7.4 OTHER BUSINESS VENTURES. Except as otherwise provided herein, any Member may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Company, and the Company and the Members shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper. No Member
shall be obligated to present any particular investment opportunity to the
Company even if such opportunity is of a character that, if presented to the
Company, could be taken by the Company, and either Member shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others, any such particular investment opportunity.
7.5 NON-SOLICITATION CLAUSE. During the duration of this Agreement each Member
represents that it will not initiate employment discussions with personnel
employed by the other Member by direct contact or through executive search
firms, employment agencies, or other indirect means, for so long as such
personnel is employed by the Member and for an additional six (6) months after
such personnel leaves that Member's employ. It being understood that this would
not apply in instances where personnel from either Member are responding to
general advertisements of job
7.6 INDEMNIFICATION OF MEMBERS AND THE COMPANY.
7.6.1 Each Member shall hold harmless and indemnify the other Member,
the other Member's Affiliates and the Company, and their respective officers,
directors, managers, employees, agents and representatives from and against and
in respect of any and all claims, liabilities, losses, damages, fines,
penalties, costs or expenses (including reasonable attorneys' fees, expert and
consultant fees, investigation costs and response, removal and corrective action
and other remediation or clean-up costs) (collectively, the "Losses") suffered
or incurred by the other Member, the other Member's Affiliates or the Company to
the extent that such Losses arise from, by reason of or are in connection with
(i) any negligent act or omission of the indemnifying Member or any of its
officers, directors, employees, agents or representatives, and/or (ii) any
misrepresentation, breach or nonfulfillment of any warranty, representation,
obligation or responsibility owed to the other Member or the Company under the
terms of this Agreement.
7.6.2 The Members agree that the Company shall hold harmless and
indemnify the Members, the Members' Affiliates, and their respective officers,
directors, employees, agents and representatives (collectively, the "Indemnified
Parties") from and against and in respect of any and all Losses suffered or
incurred by the Indemnified Parties to the extent that such losses arise from,
by reason of or are in connection with (i) any negligent act or omission of the
Company or any of its Managers, officers, managers, employees, agents or
representatives, and (ii) the operation or ownership by the Company of the
Facility and the conduct of business therein, thereabout, thereon or with regard
thereto at all times on and after September 19, 1992 of the Company, including
without limitation environmental and Title VII claims, suits, cases or charges.
7.6.3 If and to the extent that either Member becomes liable for or
pays more than its Percentage Interest of any Company obligation or liability,
other than those which arise under the circumstances described in Section 7.6.1,
then (i) the other Member will pay any such excess that is unpaid or reimburse
the other Member which has paid any of that excess for the amount paid by the
other Member, and (ii) will indemnify and hold harmless that Member from and
against any and all liability for that excess.
7.6.4 In the event that either a Member or the Company has a claim of
indemnification pursuant to this Section 7.6, then such Member or the Company
(the "Indemnified Party") shall provide written notice promptly to the party
from which the Indemnified Party seeks indemnification (the "Indemnifying
Party"). Such written notice shall specify in reasonable detail the nature of
the Losses suffered or incurred by the Indemnified Party, and, if known, the
amount or an estimate of the amount of the Losses; provided, however, that
failure to give such notice shall relieve the Indemnifying Party from liability
only to the extent that it has been damaged by such failure to notify. If the
claim for indemnification arises out of a claim or action by a third party, the
Indemnifying Party may assume the defense and prosecution thereof at its own
cost and expense, with counsel reasonably acceptable to the Indemnified Party,
by giving prompt written notice to the Indemnified Party. In such event, the
Indemnified Party shall have the right to employ, at its own expense, counsel
separate from the counsel employed by the Indemnifying Party and to participate
in such defense and prosecution, at its own expense, subject to the management
and control of the claim by the Indemnifying Party. The Indemnifying Party shall
not settle any claim without the prior written consent of the Indemnified Party,
which consent shall not be unreasonably withheld. Each party to this Agreement
shall cooperate fully with the other party in the defense, prosecution,
negotiation of a settlement or any other matter with respect to any claim by a
third party which is subject to the indemnification rights set forth herein. Any
indemnification that is required to be paid by one of the Members or the Company
pursuant to this Section 7.6 shall be paid within thirty (30) days after demand
for the payment has been given by the indemnified Member or Company, in each
case together with interest at the Effective Rate from the date on which the
obligation to pay first arose to the date of payment.
7.6.5 The respective rights and obligations of the Members, Members'
Affiliates, Managers, and the Company under this Article VII shall survive the
termination of this Agreement and the dissolution of the Company.
ARTICLE VIII
ACCOUNTING AND BANK ACCOUNTS
8.1 PROGRAMS AND BUDGETS.
8.1.1 The General Manager shall, not later than one (1) month prior to
the commencement of the next succeeding Fiscal Year of the Company, prepare and
submit to the Board of Managers for its review and approval a business operating
budget and a capital expenditure budget for such Fiscal Year.
8.1.2 Not later than the 25th calendar day after the close of each
fiscal quarter, the Treasurer shall submit to each Member a comparison, for the
immediately preceding quarter and for the year to date, of the results of
operations of the Company with the applicable Fiscal Year budget.
8.2 ESTIMATES ON CASH NEEDS.
8.2.1 Based on the budgets referred to in Section 8.1.1 and the
quarterly comparisons referred to in Section 8.1.2, the Treasurer will, at such
time and for such periods as requested by the Board of Managers, submit to the
Board of Managers a current cash estimate showing: (i) the estimated cash
disbursements which the Company will be required to make during the next
succeeding calendar period for operating costs; (ii) estimated receipts; (iii)
amounts needed for additional working capital; and (iv) the amount of funds
("Cash Needs") that will be required to cover the amount, if any, by which
estimated cash disbursements and amounts needed for additional working capital
exceed estimated receipts available to cover such cash disbursements and
additional working capital. The current cash estimate shall also specify the
dates on which the Company must receive the necessary funds.
8.2.2 If, in the event of an emergency, the Company requires cash
payments ("Emergency Needs") not provided for by such current cash estimates,
the General Manager or the Treasurer, may at any time furnish a statement
thereof to the Board of Managers, giving the maximum period of notice for any
such additional cash payments as is practicable in the circumstances, specifying
in detail the reasons for such emergency cash payment and the amount thereof.
Upon receipt of such emergency cash statement, the Board of Managers shall
promptly decide, taking into account the circumstances, how the Emergency Needs
shall be met.
8.2.3 Unless otherwise agreed by the Board of Managers, the Cash Needs
and the Emergency Needs shall be made through borrowings of the Company in
accordance with Section 8.3.
8.3 LOANS.
8.3.1 In the event that the Board of Managers decides at any time
during the term of this Agreement that it is desirable for the Company to borrow
funds to acquire significant inventories or to meet the Cash Needs, Emergency
Needs or other requirements of the Company, the Treasurer shall, within the
limits of his authority as defined by the Board of Managers, negotiate on behalf
of the Company to borrow such funds from financial institutions. The Board of
Managers may approve, reject, or modify the terms negotiated by the Treasurer
and may negotiate or authorize others to negotiate borrowings on behalf of the
Company in order to find terms more beneficial to the Company.
8.3.2 Any Member or Affiliate may make direct loans to the Company in
such amounts, at such times and on such terms and conditions as may be approved
by the Board of Managers. Loans by any Member to the Company shall not be
considered as contributions to the Capital Account of the Member making such
loan to the Company. Any loans to the Company shall (a) be evidenced by a
promissory note maturing on a date that is agreed to by the Board of Managers at
the time at which the loan is made, and (b) bear interest at a rate that is
agreed to by the Board of Managers at the time at which the loan is made or, if
no rate is agreed to by the Board of Managers, at a floating rate (the
"Effective Rate") that is equal to the lower of (i) the prime rate for corporate
loans at U.S. money center commercial banks as reported in THE WALL STREET
JOURNAL, and (ii) the highest lawful rate. Each of the loans that is referred to
in this Section 3.5 shall be treated as a fixed obligation of the Company, and
advances of
principal of those loans and payments of principal and interest on those loans
shall be treated as transactions between the Company and a Person who is not a
Member in accordance with Section 707(a) of the Code.
8.4 FISCAL YEAR AND ACCOUNTING METHOD. The Fiscal Year and taxable year of the
Company shall be determined in accordance with the provisions of Code ss. 706
and the Treasury Regulations thereunder and unless otherwise required by such
regulations shall annually begin on the 1st of September and end on the 31st of
August and shall permit the minimum tax deferral in accordance with federal
Internal Revenue Code or Treasury Regulations. The Company shall use the accrual
method of accounting.
8.5 BOOKS AND RECORDS.
8.5.1 The Company shall keep at its principal office true and accurate
records of the following:
(i) A current list of the full name and last known business,
residence, or mailing address of each Member and Manager, both past and present;
(ii) A copy of the Certificate of Formation, and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;
(iii) Copies of the Company's federal, state, and local income
tax returns and reports, if any, for the three (3) most recent years;
(iv) Copies of this Agreement and copies of any financial
statements of the Company for the three (3) most recent years;
(v) Minutes of every regular and special meeting of the
Board of Managers; and
(vi) Any written consents obtained from the Members or
Managers pursuant to Section 5.7.
8.5.2 Each Member (or such Member's designated representative) shall
have the right during ordinary business hours to inspect and copy (at such
Member's own expense) all books and records of Company.
8.6 BOOKS OF ACCOUNT
8.6.1 The Board of Managers shall approve the opening financial
statements for the Company as of the date hereof.
8.6.2 Accurate books of account of the Company shall be maintained in
accordance with Generally Accepted Accounting Principles ("GAAP") consistently
applied. In those instances in which more than one GAAP can be applied, the
Board of Managers shall determine, in consultation with the Member's independent
accountants, which principle the Company will adopt. Such books shall at any
reasonable time be available for examination by either Member, or Persons acting
on its behalf, at the sole expense of such Member.
8.7 FINANCIAL STATEMENTS.
8.7.1 Within ninety (90) days after the close of each Fiscal Year of
the Company there shall be prepared and submitted to each Member the following
financial statements, accompanied by the report thereon of the Accountants for
the Company:
(i) a balance sheet of the Company as at the end of such
Fiscal Year;
(ii) a statement of profit and loss for such Fiscal Year;
(iii) a statement of changes in financial position; and
(iv) a statement of the respective Member Accounts and
changes therein for such Fiscal Year.
8.7.2 Within twenty (20) Business Days after the close of each fiscal
month the Treasurer will cause to be prepared and given to each Member
un-audited financial statements comparable to those referred to in Subsections
8.7(i) and 8.7(ii).
8.8 CASH FOR DISTRIBUTION. The Treasurer shall determine, at such times as
requested by the Board of Managers, the amount of cash for distribution ("Cash
for Distribution") and shall distribute such Cash for Distribution, if any, to
the Members, in accordance with each Member's respective Percentage Inventory;
provided, however, that (a) if any Member has advanced loans to a Delinquent
Member, the distributions otherwise payable to the Delinquent Member shall be
made to the other Member up to an amount sufficient to repay such loans in full
with interest, and (b) if any Member is in default or delinquent in respect of
an obligation to the Company, no distribution shall be made to such Member until
such default is cured or such delinquent obligation is paid.
8.9 TAX RETURNS. The Company shall cause to be prepared and timely filed all
federal, state and local income tax returns or other returns or statements
required by applicable law. The Members shall be afforded an opportunity to
review and comment upon each tax return and election of the Company, and for
this purpose a final draft of each such return or election shall be distributed
to the Members at least fifteen (15) days prior to the anticipated date of
filing with the tax authorities concerned. If a Member disagrees with the
proposed treatment of any item on a proposed tax return of the Company, then
such Member shall give prompt written notice to the other Member(s) and the
Company. The parties shall negotiate in good faith to resolve proper treatment
of the item; however, failing such agreement the Company shall treat such item
in the manner determined by a majority of the Managers. No Member shall file, or
file a notice of, an inconsistent position with respect to any Company tax item
pursuant to Code Section 6222(b) or otherwise, or institute proceedings, under
Code Sections 6226(b) or 6228(b) or otherwise, without first notifying the other
Members and the Company of such intention and the nature of the proceeding.
The Company shall ensure that all workpapers related to the preparation
of the Company's federal, state, and local tax returns for any tax year are
retained by the Company for a period of not less than ten (10) years after the
due date for filing (including extensions) the Company's annual or short period
tax return or the period such records remain relevant with respect to open tax
years of the Members, if longer. The Company shall provide each Member with an
opportunity, at the expense of such Member, to obtain a complete set of such
workpapers or true and accurate photocopies of such workpapers prior to their
destruction. Upon the dissolution of the Company, the rights of the Company to
obtain such workpapers (if retained by outside preparers) shall pass to each
former Member.
8.10 CODE SECTION 754 ELECTION. In the event a distribution of Company assets
occurs which satisfies the provisions of ss. 734 of the Code or in the event a
transfer of an Interest occurs which satisfies the
provisions of ss. 743 of the Code, absent an election by the Members to the
contrary, the Company shall elect, pursuant to ss. 754 of the Code, to adjust
the basis of the Company's property to the extent allowed by such ▇▇.▇▇. 734 or
743 and shall cause such adjustments to be made and maintained.
8.11 TAX MATTERS MEMBER. The Company shall not elect, pursuant to ss.
6231(a)(1)(B)(ii) of the Code, to have Section 6231(a)(1)(B)(i) of the Code
apply to the Company until otherwise determined by the Members. If the Members
subsequently determine to elect to have this provision apply to the Company,
then Cargill shall serve as the "Tax Matters Member" of the Company under the
Code. [IF THERE IS GOING TO BE A TAX MATTERS PARTNER, CARGILL WOULD LIKE TO BE
THE TAX MATTERS PARTNER; HOWEVER, SINCE BOTH PARTNERS ARE C-CORPORATIONS, AND
THERE ARE LESS THAN TEN PARTNERS, WE DO NOT NEED TO ELECT INTO THIS PROVISION.
IN OTHER WORDS, WE DO NOT NEED TO SELECT A TAX MATTERS PARTNER PURSUANT TO CODE
SEC. 6031(a).].
The Tax Matters Member shall be entitled to reimbursement for any and
all reasonable expenses incurred with respect to any administrative and/or
judicial proceedings affecting the Company.
The Tax Matters Member shall incur no liability to the other Member(s)
to the extent it acts in good faith in connection with its role as Tax Matters
Member or otherwise in connection with the Tax Matters Member's activities in
representing the Company with respect to tax matters, and the other Member
agrees to cooperate with the Tax Matters Member's efforts to comply with the
applicable provisions of the Code and the Treasury Regulations thereunder. The
Company (and to the extent the Company resources are insufficient therefore, the
other Member(s)) agrees to indemnify the Tax Matters Member with respect to any
liabilities or costs the Tax Matters Member may incur in connection with its
activity as Tax Matters Member of the Company, except in the case of fraud or
willful misconduct of the Tax Matter Member. The Tax Matters Member may resign
upon thirty (30) days notice to the other Member(s).
8.12 DEPOSITS AND INVESTMENTS. The funds of the Company shall be deposited in
the name of the Company in accounts designated by the Board of Managers in banks
or banking institutions to be selected by the Board of Managers or invested in
such manner as shall be authorized by the Board of Managers. The Board of
Managers shall prescribe such procedures as its shall deem necessary with
respect to making such investments.
ARTICLE IX
TRANSFERS OF INTERESTS
9.1 GENERAL.
9.1.1 No Member may sell, transfer, assign, give, mortgage, alienate,
pledge, hypothecate or otherwise encumber or dispose of all or any part of such
Member's Interest, except as provided in this Agreement or except with the
written consent of the other Member. Any purported encumbrance or disposition of
an Interest in violation of the terms of this Agreement shall be null and void
and of no legal effect whatsoever.
9.1.2 Each Member shall have the right to sell, transfer or assign,
for cash (but not to substitute the assignee as a Substitute Member in such
Member's place, except in accordance with Section 9.1.3 below), by a written
instrument, all or part of its Interest, provided that (i) the transfer would
not result in the "termination" of the Company pursuant to Section 708 of the
Code or cause a material adverse tax consequence to the Company or any Member,
and (ii) the transferor has complied with the provisions of Section 9.2.
9.1.3 A "Substitute Member" is a Person admitted to the Company as a
Member and entitled to all the rights and bound by all the obligations of the
Member for which such Person is substituted. No assignee of all or part of a
Member's Interest shall become a Substitute Member in place of the assignor
unless and until all other Members have consented thereto in writing and the
assignor and the assignee execute such documents as the Company may reasonably
deem necessary or desirable to effect such substitution, including the written
acceptance and adoption by the assignee of the provisions of this Agreement;
provided, however, that such consent shall not be unreasonably withheld in the
event that a Member intends to assign such Member's Interest to an Affiliate.
Unless and until such documents have been duly executed and delivered to the
Company, the assignee shall have no rights to vote with respect to such Interest
or to participate in the management of the Company or to require any information
or account of the Company's transactions or to inspect the Company's books but
shall only be entitled to receive distributions of cash or other property from
the Company attributable to the Interest so acquired. Unless and until a
permitted assignee shall become a Substitute Member in accordance with the
provisions of this Section 9.1.3, the assignee shall not be entitled to vote
with respect to any Company matters, such rights to remain with the assigning
Member. Upon the admission of an assignee as a Substitute Member, the assigning
Member shall cease to be a Member and the Substitute Member shall thereafter be
deemed to be a Member and subject to all of the terms and conditions of this
Agreement.
9.2 RIGHT OF FIRST REFUSAL. If at any time a Member ("Selling Member") desires
to transfer any or all of its Interest to a third party pursuant to a bona fide
offer to purchase such Interest for cash, the following shall apply:
9.2.1 The Selling Member shall submit to the other Member (the "Other
Member") a copy of the written offer, the name of the proposed purchaser, the
price and payment terms and other terms and conditions of the third party offer
(the "Offer").
9.2.2 The Other Member shall have thirty (30) days from receipt of the
Offer to accept the terms and conditions set forth in the Offer, by giving
written notice thereof to the Selling Member. Failure to give notice of
acceptance as required shall be deemed to be a rejection of the Offer.
9.2.3 If the Other Member agrees to purchase the Selling Member's
Interest, then the Selling Member and the Other Member shall close the purchase
upon the terms and conditions of the Offer within ninety (90) days after the
Offer is made (or later, if consistent with the closing date set forth in the
Offer or if required by law).
9.2.4 If the Other Member rejects the terms and conditions set forth
in the Offer, the Selling Member shall have the right to consummate the sale or
conveyance of its Interest (but not the substitution of the transferee of such
Interest as a Substitute Member, except in accordance with Section 8.1(c)) so
long as (i) the purchaser is the proposed purchaser named in the Offer, (ii) the
price, payment and other terms are at least as favorable to the Selling Member
as those set forth in the Offer, and (iii) the closing occurs no more than sixty
(60) days from when the Member is first notified of the Offer.
9.2.5 Any transferee of the Selling Member's Interest who does not
become a Substitute Member pursuant to Section 8.1(c) shall agree in writing to
be bound by this Section 8.2 with respect to any further sale or conveyance of
that Interest which such transferee may desire to make.
9.3 REASONABLENESS OF RESTRICTIONS. Each Member acknowledges and agrees that the
restrictions on the transfer of interests herein are reasonable in view of the
purpose and intent of the Members.
9.4 CERTAIN ENCUMBRANCES PERMITTED. Anything in this Agreement to the contrary
notwithstanding, any Member (and the Affiliates of any Member) may encumber all
or part of such
Member's Share to the extent and in the manner which may be required pursuant to
financing agreements contemplated by Section 8.3.
ARTICLE X
DISSOLUTION AND TERMINATION
10.1 EVENTS CAUSING DISSOLUTION. This Agreement shall be terminated and the
Company shall be dissolved upon the first to occur of the following events:
(a) the expiration of the term of the Company;
(b) the unanimous written agreement of the Members to terminate this
Agreement and to dissolve the Company;
(c) the sale, abandonment or disposal by the Company of all or
substantially all of its assets not in the ordinary course of business;
(d) if the Company incurs a net loss for any fiscal year in excess of
$10 million, and either Member requests dissolution in writing within thirty
(30) days of receipt of the financial statements referred to in Section 10.8(a)
of this Agreement;
(e) the Company or either Member shall (i) file a petition in
bankruptcy, (ii) petition or apply to any tribunal for the appointment of a
receiver or any trustee for it or a substantial part of its assets, (iii)
commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or (iv) make an assignment for
the benefit of creditors or take any other similar action for the protection or
benefit of creditors; or if there shall have been filed any such petition or
application, or any such petition shall have been commenced against it, in which
an order for relief is entered or which remains un-dismissed for a period of
forty-five (45) days or more; or the Company or either Member by any act or
omission shall indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment of a
receiver or any trustee for it or any substantial part of any of its properties,
or shall suffer any such receivership or trusteeship to continue un-discharged
for a period of forty-five (45) days or more;
(f) if all or any portion of the Member's Interest is levied upon or
attached (other than by the other Member) in any proceeding, including any suit
in equity, action at law or other judicial, arbitral or administrative
proceeding, and that levy or attachment is not vacated or discharged within
sixty (60) days after the date on which it is made;
(g) if a Member becomes subject to any legal incapacity affecting its
right or power to participate in the Company or if there is an attempted or
purported voluntary or involuntary sale, transfer, conveyance, pledge or
disposal, whether direct or indirect, of the Member's Interest, except in
compliance with Section 9.1;
(h) an entry of a decree of judicial dissolution against the Company;
or
(i) except as otherwise agreed upon in this Agreement, any other event
causing a dissolution of the Company under the provisions of the Act.
10.2 EFFECT OF DISSOLUTION. Except as otherwise provided in this Agreement, upon
the dissolution of the Company, the Board of Managers shall take such actions as
may be required pursuant to the Act and shall proceed to wind up, liquidate and
terminate the business and affairs of the Company. In connection with such
winding up, the Board of Managers shall have the authority to liquidate and
reduce to cash (to the extent necessary or appropriate) the Property of the
Company as promptly as is consistent with obtaining a Fair Value therefor, to
apply and distribute the proceeds of such liquidation and any remaining Property
("Liquidation Proceeds") in accordance with the provisions of Section 4.2, and
to do any and all acts and things authorized by, and in accordance with, the Act
and other applicable laws for the purpose of winding up and liquidation.
10.2.1 All accounting on termination shall be done by the Accountants,
and any determination made by the Accountants as to accounting matters shall be
binding upon the Members.
10.2.2 The Board of Managers shall determine the disposition of any
other matter in connection with the sale and distribution of Property. If the
Board of Managers cannot agree as to those matters, those matters shall be
determined in accordance with Article XIII.
10.2.3 Each Member shall pay to the Company all amounts owing by such
Member to the Company.
10.2.4 In conjunction with dissolution and liquidation of the Company,
Cargill shall pay to the Company the then book value (net of accumulated
depreciation) of all capital improvements and/or repairs made by (i) TEMCO to
the Tacoma Facility during the term of the TEMCO partnership and which have been
authorized to be made by its Board of Managers; and (ii) the Company to the
Tacoma Facility and which have been authorized by the Company's Board of
Managers.
10.2.5 In conjunction with dissolution and liquidation of the Company,
the shares of the Bank of Cooperatives ("COBANK") held by the Company shall be
distributed equally to the Members; provided, however, that in the even that
COBANK will not transfer the Company's shares in COBANK stock to Cargill, then
CHS will purchase all of the COBANK shares owned by the Company from the Company
at the Net Present Value (NPV) of the stated carrying value of such shares as
expressed on the Company's financial statements. It being understood that the
NPV would be computed based upon the cash payout formula for stock redemption in
use by COBANK at the date of the dissolution. The discount factor to be used for
calculating the NPV would be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Treasury Note rate for the cash payout period.
10.3 PUT-THROUGH AGREEMENT. Upon dissolution of the Company pursuant to
Subsection 10.1.1(a), (b), (c), (d) or (e), Cargill and CHS shall enter into a
put-through agreement giving CHS the right to access the Tacoma Facility for
put-through of Feedgrains and Oilseeds for the balance of the term of Cargill's
lease of the Tacoma Facility (including any extensions, renewals or amendments
thereof) at market put-through rates. The put-through agreement shall be
substantially in accordance with the terms of the Put-Through Agreement attached
hereto as Exhibit 10.3.
ARTICLE XI
CONFIDENTIALITY AND INTELLECTUAL PROPERTY OWNERSHIP
11.1 CONFIDENTIALITY. During the term of this Agreement, the Members may
exchange certain Confidential Information with one another; and also, each
Member may exchange certain Confidential Information with the Company.
"Confidential Information" shall mean all information of either Member or the
Company, that is not generally known to the public, whether of a technical,
business or other nature (including, without limitation, inventions, trade
secrets, know-how and information relating to the
customers, business plans, promotional and market activities, finances and other
business affairs of such party) that is disclosed by a Member, or the Company,
(the "Disclosing Party") to a Member, or the Company, (the "Receiving Party") in
furtherance of this Agreement.
11.2 NON-DISCLOSURE AND NON-USE. The Receiving Party agrees to treat as secret
and hold in strict confidence all Confidential Information it receives from a
Disclosing Party under this Agreement. The Receiving Party agrees that it will
not disclose any Confidential Information to any third party without the prior
written permission of the Disclosing Party (or as otherwise specifically
provided in this Agreement). The Receiving Party also agrees that it will only
use the Confidential Information received under this Agreement as specifically
provided herein and in furtherance of this Agreement. In the event a Receiving
Party is required by court order, or by law or legal process, to disclose
Confidential Information of a Disclosing Party, the Receiving Party shall inform
the Disclosing Party in writing prior to making such disclosure to provide
sufficient time to request a protective order or other appropriate measure, and
the Receiving Party will disclose only such information that is legally required
and will use its reasonable best efforts to obtain confidential treatment for
any Confidential Information that is so disclosed.
11.3 EXCLUSIONS TO CONFIDENTIAL INFORMATION. Confidential Information shall not
include information that (a) was in the public domain, in its entirety in a
unified form, at the time of disclosure to the Receiving Party; (b) was known by
the Receiving Party prior to its disclosure by the Disclosing Party; (c) becomes
part of the public domain after the date of disclosure by the Disclosing Party
through no fault of the Receiving Party; or, (d) is disclosed by a third party
to the Receiving Party after the date of disclosure by the Disclosing Party,
where the third party did not require the Receiving Party to hold such
information in confidence and did not acquire such information directly or
indirectly from the Disclosing Party;
11.4 OWNERSHIP. Except as otherwise specifically provided in this Agreement, all
rights to Confidential Information, trade secrets, know-how, inventions,
patents, patents pending, copyrights, trademarks, and tradenames (hereinafter,
"Intellectual Property") owned by a Member shall be fully retained by that
Member and no rights or licenses are provided the other Member or the Company.
In the event that the Company develops any Intellectual Property based upon a
Member's Intellectual Property, the new Intellectual Property shall be owned by
that Member with a non-exclusive, royalty-free, non-transferrable, perpetual,
worldwide license being granted to the Company for use of the new Intellectual
Property consistent with the Business Purpose. In the event that the Company
develops any Intellectual Property that is not based upon the Intellectual
Property of a Member, the new Intellectual Property shall be owned by the
Company with a non-exclusive, royalty-free, non-transferrable, perpetual,
worldwide license being granted to each Member.
11.5 SURVIVAL. The provisions of this Article X shall survive the dissolution
and liquidation of the Company and the termination of this Agreement for a
period of three (3) years.
ARTICLE XII
REPRESENTATIONS, WARRANTIES AND COVENANTS
12.1 REPRESENTATIONS AND WARRANTIES. Each Member represents and warrants to the
other Member that:
(a) it is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation;
(b) it is duly licensed or qualified to do business and in good
standing in each of the jurisdictions in which the failure to be so licensed or
qualified would have a material adverse effect on its financial condition or its
ability to perform its obligations under this Agreement;
(c) it has full power, authority and legal right to enter into and
perform its obligations under this Agreement;
(d) neither the execution, delivery, and performance of this Agreement,
nor the consummation by it of the transactions contemplated by this Agreement,
will:
(i) conflict with, violate, or result in a breach of any of
the terms, conditions, or provisions of any law, regulation, order, writ,
injunction, decree, determination, or award of any court, any governmental
department, board, agency, or instrumentality, domestic or foreign, or any
arbitrator, applicable to it;
(ii) conflict with, violate, result in a breach of, or
constitute a default under any terms, conditions, or provisions of its articles
of incorporation, bylaws, or operating agreement, or of any material agreement
or instrument to which it is a party or by which it is or may be bound or to
which any of its material properties or assets is subject;
(iii) conflict with, violate, result in a breach of,
constitute a default under (whether with notice or lapse of time or both),
accelerate or permit the acceleration of the performance required by, give to
others any material interests or rights, or require any consent, authorization
or approval under any indenture, mortgage, lease agreement, or instrument to
which it is a party or by which it may be bound; or
(iv) result in the creation or imposition of any lien upon any
of its material properties or assets;
(e) any registration, declaration or filing with, or consent, approval,
license, permit or other authorization or order by, any governmental or
regulatory authority, domestic or foreign, that is required in connection with
the valid execution, delivery, acceptance and performance by it of this
Agreement or its consummation of any transaction contemplated by this Agreement
has been completed, made or obtained on or before the effective date of this
Agreement;
(f) except as set forth on Exhibit 12.1(f), there are no actions,
suits, proceedings or investigations pending or, to its knowledge, threatened
against or affecting it or any of its properties, assets, or businesses in any
court or before or by any governmental department, board, agency, or
instrumentality, domestic or foreign, or any arbitrator which could, if
adversely determined (or, in the case of an investigation could lead to any
action, suit, or proceeding, which if adversely determined could) reasonably be
expected to materially impair its ability to perform its obligations under this
Agreement or to have a material adverse effect on its financial condition, and
it has not received any currently effective notice of any default, under any
applicable order, writ, injunction, decree permit, determination, or award of
any court, any governmental department, board, agency or instrumentality,
domestic or foreign, or any arbitrator which could reasonably be expected to
materially impair its ability to perform its obligations under this Agreement or
to have a material adverse effect on its financial condition;
(g) neither it nor any of its Affiliates is, nor will the Company as a
result of it holding an interest in the Company be, an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940;
and
(h) it is acquiring its interest in the Company based upon its own
investigation, and the exercise by it of its rights and the performance of its
obligations under this Agreement will be based upon its own investigation,
analysis and expertise, and its interest in the Company is being made for its
own account for investment, and not with a view to its sale or distribution.
12.2 COVENANTS. Each Member covenants that it shall:
(a) except as otherwise is provided in this Agreement, not (i) sell,
assign, transfer, mortgage, encumber or dispose of any part of its Interest, or
(ii) consent to the imposition or permit to exist any lien or charge upon all or
any portion of its Interest, except for liens in favor of the other Member under
this Agreement and liens for taxes which either are not yet due or are being
contested in good faith by appropriate proceedings;
(b) cause to be executed and delivered such instruments as the other
Member or the Board of Managers reasonably requests in order to carry out the
Company's purposes or to give effect to the terms of this Agreement; and
(c) assist the Company in preparing any tax returns which Company is
responsible for preparing, cooperate fully in preparing for any audits of or
disputes with taxing governmental authorities relating to the transaction set
forth in this Agreement, and make available to the Company and other Member(s)
such reasonably requested information, records and documentation relating to and
necessary to prepare tax returns or respond to audit requests.
ARTICLE XIII
RESOLUTION OF DISPUTES
13.1 RESOLUTION OF CONTROVERSIES. Any dispute, controversy or claim between the
Members arising from this Agreement or the performance thereof shall be settled
solely by arbitration in accordance with the provisions of Section 13.2.
13.2 METHOD OF ARBITRATION. The arbitration shall be effected by arbitrators
selected as hereinafter provided and shall be conducted by the American
Arbitration Association in Minneapolis, Minnesota applying the Commercial
Arbitration Rules then in effect on the date thereof. The dispute shall be
submitted to three arbitrators, each of whom shall have had at least five (5)
years' experience in connection with the Business of the Company, one arbitrator
being selected by the Member submitting the controversy or dispute to
arbitration, the second arbitrator being selected by the other Member and the
third arbitrator being selected by the two arbitrators so selected. Conditions
of any such arbitration shall include (a) that the arbitrators shall not have
the authority to modify, amend or supplement the terms of this Agreement, and
shall interpret this Agreement strictly in accordance with its terms; (b) that
the amount of capital required to be contributed by a Member to the Company
shall not be increased; and (c) that the Member submitting such controversy or
dispute to arbitration shall appoint its arbitrator within fifteen (15) Business
Days after the date of such submission. The failure of the Member requesting
arbitration to timely appoint such arbitrator shall void the effectiveness of
the notice of submission of the matter to arbitration. The second arbitrator to
be selected by the other Member as hereinbefore provided shall be selected
within fifteen (15) Business Days after receipt of notice by such Member of the
selection of the submitting arbitrator and, if the second arbitrator is not so
selected, the determination of the single arbitrator selected by the submitting
Member shall be binding and conclusive. If the non-submitting Member shall have
timely selected the second arbitrator, then the two selected arbitrators shall
select the third arbitrator within five (5) Business Days following the
selection of the second arbitrator. The
meetings of the arbitrators shall be held at such place or places as may be
agreed upon by the arbitrators, and each Member shall bear the cost of the fees
and expenses of the arbitrator selected by or for it, with the fees and expenses
of the third arbitrator to be borne equally. Upon making any order or award,
which order may include an order to dissolve the Company pursuant to the
provisions of Article X, the arbitrators shall retain jurisdiction to determine
any subsequent claim that a defaulting Member has failed to comply with terms of
any such order or award. The arbitrators shall have no authority to impose a
fine or penalty.
ARTICLE XIV
SECURITY INTEREST
14.1 SECURITY FOR INDEMNITY.
14.1.1 To secure their respective indemnity obligations hereunder,
each Member hereby grants to the Company and to the other Member, pursuant to
Article IX of the Uniform Commercial Code, a security interest in its respective
interest in and to the Company, and under this Agreement, including all present
and future rights to any profits, payments, distributions, or other rights to
payment arising under or in connection with this Agreement (the "Collateral");
provided, however, that for so long as a Member is not in default of any of its
indemnity obligations hereunder, that Member may receive all payments or
distributions to which its is entitled as Member of the Company. In the event a
Member is in default under its indemnity obligation, to the extent such default
may be cured by the payment of money, the Company may, at the request of the
non-defaulting Member, make such payment and pay to the non-defaulting Member
the next available funds which would otherwise have been distributed to the
defaulting Member, up to an amount which will make the non-defaulting Member
whole, together with interest thereon from the date paid by the Company until
reimbursed to the other Member at the rate of 2% in excess of the Prime Rate.
14.1.2 Alternatively, if the other Member incurs such loss, such other
Member shall be entitled to receive all subsequent distributions otherwise
payable to the defaulting Member until the non-defaulting Member has recovered
the full amount of its loss together with interest at the rate of 2% in excess
of the Prime Rate.
14.1.3 Neither Member will transfer or assign, grant a security
interest in or otherwise dispose of its respective interests as debtor in and to
the Collateral and will maintain the Collateral free and clear of all other
liens, claims and security interests whatsoever. Provided that a Member has
discharged its respective obligations under and is not otherwise in default of
its obligations hereunder, and is not the subject of any bankruptcy or
insolvency proceeding, this security interest shall terminate only upon the
settlement of all debts and claims outstanding with respect to the dissolution
of the Company. Each Member shall furnish to the Company and the other Member,
upon request, duly executed UCC1 financing statements covering the Collateral
and such other documents, certifications and instruments as requested by the
Company or the other Member, to evidence, grant, perfect and prioritize the
security interest granted in the Collateral.
ARTICLE XV
MISCELLANEOUS
15.1 RELATED PARTY TRANSACTIONS. Any contract, commitment or understanding
between the Company and any Member or an Affiliate ("Related Party
Transactions"), shall be on terms and
conditions that are as competitive as would be found in a similar contract,
commitment or understanding entered into by unrelated third parties on an
arms-length basis.
15.2 ADDITIONAL MEMBERS. Additional Members may be admitted to the Company only
upon the written consent of all Members and upon such terms and conditions as
such consent may specify.
15.3 NATURE OF INTEREST IN THE COMPANY. A Member's Interest shall be personal
property for all purposes.
15.4 ORGANIZATIONAL EXPENSES. The Company shall pay all organization expenses
incurred in connection with the creation and formation of the Company. Such
expenses may be paid directly by the Company or may be reimbursed by the Company
to the Members.
15.5 NOTICES. Except for the Notices required by Sections 5.5 and 6.6 which
shall be governed by those Sections, any notice, demand, request, call, offer or
other communication required or permitted to be given by this Agreement shall be
sufficient if in writing and if hand delivered or sent by overnight mail or
facsimile to the address and representative of the Member as follows:
If to Cargill: With a copy to:
-------------- ---------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Grain & Oilseeds Supply Chain NA Attention: Grain & Oilseeds
Fax: (▇▇▇)▇▇▇-▇▇▇▇ Supply Chain NA
Fax: (▇▇▇)▇▇▇-▇▇▇▇
If to CHS: with a copy to:
--------------------------------------------------------------
Cenex Harvest States Cooperatives Cenex Harvest States Cooperatives
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Inver ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Aligned Grain Attention: Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address(es) or representative(s) as either Member may designate
to the other Member in writing. All mailed notices shall be deemed to be given
when deposited in the United States mail, postage prepaid.
15.6 WAIVER OF DEFAULT. No consent or waiver, express or implied, by the Company
or a Member with respect to any breach or default by another Member hereunder
shall be deemed or construed to be a consent or waiver with respect to any other
breach or default by such Member of the same provision or any other provision of
this Agreement. Failure on the part of the Company or a Member to complain of
any act or failure to act of another Member or to declare such other Member in
default shall not be deemed or constitute a waiver by the Company or the Member
of any rights hereunder.
15.7 NO THIRD PARTY RIGHTS. None of the provisions contained in this Agreement
shall be for the benefit of or enforceable by any third parties, including
creditors of the Company.
15.8 INTEGRATION. This Agreement, together with the Certificate of Formation,
contains the entire Agreement between the Members, in such capacity, relative to
the formation, operation and continuation of the Company, and this Agreement
shall not be altered, modified or changed except by a written document duly
executed by the Members at the time of such alteration, modification or change.
15.9 SEVERABILITY. In the event any provision of this Agreement is held to be
illegal, invalid or unenforceable to any extent, the legality, validity and
enforceability of the remainder of this Agreement shall not be affected thereby
and shall remain in full force and effect and shall be enforced to the greatest
extent permitted by law.
15.10 BINDING AGREEMENT. Subject to the restrictions on the disposition of
Interests herein contained, the provisions of this Agreement shall be binding
upon, and inure to the benefit of, the Members and their respective heirs,
personal representatives, successors and permitted assigns.
15.11 HEADINGS. The headings of the Articles and Sections of this Agreement are
for convenience only and shall not be considered in construing or interpreting
any of the terms or provisions hereof.
15.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one (1) agreement that is binding upon the Members,
notwithstanding that all Members are not signatories to the same counterpart.
15.13 LIMITATION OF DAMAGES. In no event shall either Member be liable for the
punitive, incidental or consequential damages, or loss of profit, suffered by
the other Member except to the extent any such damage or loss arises pursuant to
Section 7.6.
15.14 GOVERNING LAW. Except as otherwise specifically provided herein, this
Agreement shall be governed by and construed in accordance with the laws of
Minnesota without giving effect to the choice of law principles of the State of
Minnesota that would result in the application of the laws of another
jurisdiction.
15.15 COMMERCIAL EFFICACY. The Members shall take all reasonable actions to give
commercial efficacy to the terms and conditions of this Agreement and to promote
the business of the Company, including, but not limited to, taking or causing
the Managers of the Board of Managers appointed by them to take all necessary
actions in a timely fashion, in order for the Company to pursue the business
contemplated by this Agreement, entering into all the agreements contemplated
hereby and any additional agreements or instruments of further assurance, as on
advice from legal counsel, the Members shall reasonably deem necessary, and
seeking all necessary governmental approvals.
15.16 GAAP BASIS. In the event the auditors of the Company are required
hereunder to determine the values, accounts, give opinions or make, any other
valuation of any nature, the auditors shall employ and apply GAAP consistently
unless the context otherwise requires the application of the principles of tax
accounting (or differing regulatory rules).
15.17 FIRST RIGHT ON TACOMA FACILITY. In the event Cargill wishes to sell,
transfer or assign its lease of the Tacoma Facility to a third party during the
term of the Company, Cargill shall provide CHS with thirty (30) days prior
written notice of its desire to do so. During such thirty day period CHS shall
have the first right to acquire the Tacoma Facility, and the Members shall
negotiate in good faith the terms and conditions of such proposed transaction.
In the event the Members cannot reach a mutually acceptable agreement for such
transaction in the thirty day period, Cargill shall be free to pursue and
consummate the sale, transfer or assignment of the Tacoma Facility to and with
any third party, provided that such sale, transfer or assignment is on no less
favorable terms and conditions to Cargill than the last offer of CHS to Cargill
for same and CHS is still willing to agree to such terms and conditions (i.e.,
Cargill cannot sell, transfer or assign the Tacoma Facility to a third party on
terms and conditions less favorable to Cargill than the last offer of CHS to
Cargill for same). This section 15.18 shall not apply in the event Cargill is
also transferring its Percentage Interest in the Company to a third party.
IN WITNESS WHEREOF, CHS and Cargill have caused this Agreement to be
duly executed as of the date first written above.
MEMBERS:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ CENEX HARVEST STATES
COOPERATIVES
By: /s/ Wayne Teddy By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------- --------------------
Name: Wayne Teddy Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: President - Cargill Grai & Oilseed Title: Senior Vice President
------------------------------------
Supply Chain N.A.
EXHIBIT 2.8.1
FORM OF SERVICES AGREEMENT
SERVICES AGREEMENT
This Services Agreement ("Agreement") dated as of ________ between
_________________ ("Provider"), a _____ corporation having an office at
______________ and THE TEMCO, LLC ("Company"), a Delaware limited liability
company. Provider and Company may be referred to individually as a "Party" and
together as the "Parties". All Capitalized terms used and not defined herein
shall have the meaning assigned them in the LLC Agreement.
RECITALS
A. Pursuant to a Limited Liability Company Agreement dated as of
____________. 2002 (the "LLC Agreement"), Cenex Harvest States
Cooperatives ("CHS") and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇")
have formed Company, in which they each have a 50 percent
ownership interest.
B. Company wishes Provider, and Provider is willing, to provide
to Company certain administrative, support and other services
(as further described below, the "Services") in connection
with the operation of Company.
AGREEMENTS
Company and Provider agree as follows:
1. Services.
(a) Subject to the terms of this Agreement, Provider shall
provide the Services set forth on each Schedule of Services, the form of which
is attached as Exhibit A. Each Schedule of Services shall describe the Services
to be provided by Provider and shall make reference to this Agreement. A
Schedule of Services shall be binding upon the Parties only upon having been
executed by both Parties. Each Schedule of Services executed by the Parties
shall be governed by this Agreement. Any conflict between the terms of this
Agreement and the terms set forth in a Schedule of Services shall be resolved in
favor of the terms set forth in the Schedule of Services.
(b) With Company's consent, which may not be unreasonably
withheld, Provider may enter into arrangements with any of Provider's affiliates
for the performance of the Services to be provided by Provider under this
Agreement. The Services shall be provided to Company at such locations as may be
mutually determined by the Parties. Provider shall be responsible for obtaining
(at its own cost) any licenses, permits or other approvals that may be necessary
for Provider or any of its employees or affiliates to provide the Services.
2. Provider's Standard of Conduct. In providing the Services, Provider
shall use commercially reasonable efforts, shall act in good faith, shall act in
accordance with normal business practices and shall act in accordance with
Company's established policies.
3. Compensation for Services. Provider shall be compensated for the
Services provided to Company under this Agreement as set forth in each Schedule
of Services. Provider shall be free to increase or decrease the number of its
employees and otherwise to incur expenses as it deems necessary in providing the
Services and in accordance with the standard set forth in Section 2 of this
Agreement; provided, however, that any such action by Provider shall not
increase the fees for Services unles mutually agreed by the Parties.
4. Payment for Services. Except as may otherwise be provided in each
Schedule of Services, as soon as practicable at the end of each month Provider
shall submit invoices for Services rendered to Company during that month
including, when required, all sales, use, excise or similar taxes which may be
applicable to the Services. All invoices shall describe in reasonable detail the
Services provided during the month and shall be due and payable twenty (20) days
after the date of issue. Company shall pay all undisputed amounts on each
invoice, but shall be entitled to withhold payment of any amount in dispute and
shall promptly notify Provider of the dispute. Company shall promptly provide
Provider with records relating to the disputed amount so as to enable the
Parties to resolve the dispute and, to the extent Provider is entitled to any
amounts withheld by Company as determined by the resolution of any such dispute,
the withheld amount shall be due and payable on the last day of the month in
which the dispute is resolved together with interest calculated from the
original due date. Company shall pay interest on all overdue amounts at a
floating rate that is equal to the lower of (i) two percent above the base rate
on corporate loans at U.S. money center commercial banks as reported in THE WALL
STREET JOURNAL and (ii) the highest lawful rate.
5. Relationship Among the Parties. Provider in rendering Services under
this Agreement is acting as an independent contractor. As such, Provider or, if
applicable, its affiliates, shall, at all times, remain the sole employer of the
employees providing Services and shall be responsible for the overall control
and management of those employees, including evaluation, discipline and
termination of those employees. Nothing contained in this Agreement shall be
construed as granting Provider or any of its employees any rights to future
employment with, or compensation or benefits from, Company, or rights under any
employee benefit plan of Company. Provider shall be responsible for the
compensation, benefits, insurance (including workers' compensation), taxes, FICA
and expenses (business or otherwise) paid to, or on behalf, of the employees
providing Services. Nothing in this Agreement and no actions of the Parties
under this Agreement shall be construed such that (a) Provider or the employees
or affiliates providing Services shall be or be deemed to be an employee,
servant or agent of Company or (b) any partnership, joint venture or agency
relationship shall be created or be deemed to be created and neither Company nor
any of the employees or affiliates providing Services shall represent that it
has or is in any such relationship with Company. Other than as specifically
provided in this Agreement, nothing in this Agreement shall confer on Provider
or any of its employees, affiliates, agents or representatives any authority to
obligate or make any contractual commitments whatsoever on behalf of Company.
6. Non-Exclusivity. Company acknowledges that Provider has other
commercial activities and that Provider will allocate its resources between the
provision of Services under this Agreement and those other commercial activities
according to its best commercial judgment, which in no event shall be less than
commercially reasonable judgment. Nothing in this Agreement shall be construed
as requiring Provider to devote its resources exclusively to performing Services
under this Agreement.
7. Compliance With Laws. Company shall use the Services only in
accordance with all applicable federal, state and local laws and regulations and
the reasonable requirements of Provider. Provider reserves the right to take all
actions, including termination of any particular Services, that Provider
reasonably believes to be necessary to assure compliance with applicable laws,
regulations and tariffs. In performing the Services, Provider shall comply with
all applicable federal, state and local laws, rules and regulations, as well as
the reasonable requirements of Company.
8. Indemnities.
(a) Each of the Parties will hold harmless the other Party and
the other Party's affiliates and its directors, officers, partners, employees,
servants, agents, and consultants and successors and permitted assigns of any of
the foregoing from and against any and all losses, costs, liabilities, claims,
demands, actions, suits and proceedings and expenses (including without
limitation reasonable attorneys' fees and expenses and any and all expenses
incurred in investigating, preparing or defending against any action, claim or
proceeding, commenced, threatened or pending) ("Damages") which result from (i)
any act or omission by the indemnifying Party (or with respect to Provider, any
act or omission of Provider's affiliates) or any director, officer, employee,
agent, consultant or representative of the indemnifying Party (or with respect
to Provider, of its affiliates) that is outside the scope of or in breach of the
terms of this Agreement, and/or (ii) the failure of that indemnifying Party (or
with respect to Provider, the failure by Provider's affiliates) or any director,
officer, employee, agent, consultant or representative of the indemnifying Party
(or with respect ot Provider, of its affiliates) to perform its obligations
under this Agreement, except to the extent that the Damages result from the
other Party's negligence, bad faith or willful misconduct. The amount of any
claim made by one Party against the other under this Section 8 shall be reduced
by the amount of proceeds of any insurance for the benefit of the Party seeking
indemnification that is paid on account of the claim for which indemnification
is required. The rights and obligations of the Parties under this Section 8(a)
will survive the termination of this Agreement.
(b) Each Party ("Indemnifying Party") shall indemnify and hold
harmless the other Party ("Indemnified Party") from and against all liabilities,
costs, expenses and damages (collectively, "Loss") incurred by the Indemnified
Party arising from the death or personal injury of the Indemnified Party's
employees, agents or representatives or damage to the Indemnified Party's
property, to the extent that any such Loss is caused by Indemnifying Party's
negligent act or omission or willful misconduct.
(c) Any indemnification that is required to be paid by one of
the Parties pursuant to Sections 8(a) or 8(b) shall be paid within thirty (30)
days after demand for the payment, accompanied by evidence of the computation of
the amount demanded, has been given by the other Party, except to the extent of
any dispute between the Parties with respect to such indemnification, in which
event such indemnification, if any, will be paid within thirty (30) days of
resolution of such dispute.
9. Representations, Warranties and Covenants. In addition to any other
representations, warranties and covenants in this Agreement, each of the Parties
(a) represents and warrants that it has full power, authority and legal right to
enter into and perform its obligations under this Agreement, and (b) will:
(i) promptly notify the other Party of all matters that come
to its attention that relate to the performance of this Agreement; and
(ii) cause to be executed and delivered such instruments as
the other Party reasonably requests in order to give effect to the terms of this
Agreement.
Further, Provider represents and warrants the following:
(i) Provider has the capability, experience, and means necessary
to perform the Services contemplated by this Agreement. Provider shall perform
the Services using appropriate skill and attention. Services will be performed
using personnel, equipment, and material qualified and suitable to do the work
requested.
(ii) Provider shall provide the Services with properly trained
and informed personnel. Provider shall be solely responsible for the acts and
omissions of its employees, permitted affiliates and agents and for any other
person performing Services under this Agreement at the direct request of
Provider.
10. Right of Supervision and Inspection. In the performance of the
Services required by this Agreement, Provider is an independent contractor with
full authority to direct and control the performance of the details of the
Services. However, the quality of the Services must meet the approval of Company
and are subject to Company's general rights of inspection to ensure satisfactory
completion.
11. Nondisclosure. The Nondisclosure Provisions attached as Exhibit B
are incorporated into this Agreement as if fully set forth herein.
12. Excuse.
If either Party is unable in whole or in part by reason of any
cause not reasonably within its control to perform any of its obligations under
this Agreement when such performance is due (other than the obligation to pay
when due all amounts that are owed to the other, which shall not be excused),
then upon that Party's giving notice describing that cause and if that Party
uses its commercially reasonable best efforts to remedy the cause of the excuse
as promptly as possible (i) that obligation shall be excused, but only to the
extent of such inability and during the continuance of such inability, (ii) the
Party affected shall be excused from any liability for any failure to perform
such obligation to the extent so excused and (iii) the other Party shall be
excused from any corresponding obligation to the appropriate extent.
13. Term and Termination.
(a) This Agreement shall remain in effect for a period which
is coextensive with the term of the LLC Agreement and shall terminate when the
LLC Agreement terminates unless this Agreement is earlier terminated either (i)
by written notice given by the nondefaulting Party to the defaulting Party that
the defaulting Party has failed to perform its obligations under this Agreement
for at least thirty (30) days after notice of that failure to perform was given
to the defaulting Party by the nondefaulting Party, (ii) by Company on sixty
(60) days written notice, or (iii) by Provider on six (6) months written notice.
(b) Upon termination of this Agreement, all of the obligations
of each of the Parties under this Agreement shall terminate except (i) the
Parties shall remain liable for any obligation or provision under this Agreement
which has accrued prior to termination, and/or which expressly or by implication
is intended to survive termination of this Agreement and (ii) each Party shall
remain liable for the obligation to pay when due all amounts owed to the other.
(c) The non-disclosure and non-use provisions of Exhibit B
shall terminate two (2) years following the termination of this Services
Agreement or termination of the Limited Liability Company Agreement between
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ and Cenex Harvest States Cooperatives, which ever
terminates later.
14. Assignment. This Agreement shall inure to the benefit of and be
fully binding upon the Parties and their respective successors and permitted
assigns. Neither Party may assign or delegate any of its rights or obligations
under this Agreement without the prior written consent of the other Party.
15. Claims and Litigation. Each Party shall notify the other Party of
any significant claim,
demand, right or cause of action asserted, threatened or instituted against
either Party which may affect in a material way the performance of this
Agreement. Any negotiations or litigation of any such claim, demand, right or
cause of action shall be conducted by the Party against which such claim,
demand, right or cause of action is asserted, threatened or instituted, with the
other Party having the right to be reasonably advised as to the status of and to
participate in such negotiations or litigation if its interests under this
Agreement are involved. If a Party (the "Indemnitee") desires to settle a claim
that has been made against it and for which it may be entitled to
indemnification by the other party (the "Indemnitor") under Section 8
("Indemnification"), then the Indemnitee shall notify the Indemnitor in writing
(the "Settlement Notice") of the terms on which the Indemnitee desires to settle
the claim (the "Settlement Terms") and that it intends to seek Indemnification.
If the Indemnitee provides the Settlement Notice to the Indemnitor, unless the
Indemnitor notifies the Indemnitee within fifteen (15) business days after the
Indemnitor receives the Settlement Notice that the Indemnitor objects to the
making of the settlement on the Settlement Terms, the Indemnitee may settle the
claim on the Settlement Terms and shall be entitled to Indemnification in
accordance with and subject to the terms of this Agreement. If the Indemnitor
notifies the Indemnitee that the Indemnitor objects to the making of the
settlement on the Settlement Terms, then the Indemnitor shall assume the defense
and pay the entire amount, if any, that is recovered on account of the claim. If
the Indemnitor so assumes the defense and is successful in reducing the amount
of the claim (whether by litigation or settlement) to an amount that is less
than that payable under the Settlement Terms, then the Indemnitee shall
reimburse the Indemnitor for the lesser of (i) all legal fees and expenses that
were incurred by the Indemnitor in reducing the claim and (ii) the amount of the
reduction.
16. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOVEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE SERVICES. In no event shall either Party be
liable to the other Party for any indirect (including without limitation lost
profits or loss of business opportunity), incidental, consequential or punitive
damages resulting from the Services or from any breach of this Agreement.
17. Notices. All notices and other communications required or permitted
to be given under this Agreement or which either Party elects to give, shall be
in writing and, except as otherwise specifically provided, shall be either
delivered personally or sent by independent courier or express delivery service
or by electronic facsimile transmission to the other Party at the address
indicated below (or to such other address as the Party designates for itself by
notice given in accordance with this Section 16). All notices shall be deemed
given (a) upon delivery, if personally delivered or (b) three (3) days after
being dispatched with the independent courier or express delivery service or (c)
upon the effective sending of an electronic facsimile transmission.
IF TO PROVIDER:
_____________________
_____________________
_____________________
Attention:___________
Facsimile No: (___) ________
Telephone No: (___) ________
IF TO COMPANY:
_____________________
_____________________
_____________________
Attention:___________
Facsimile No: (___) ________
Telephone No: (___) ________
18. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance is, to any extent, invalid or
unenforceable, the remainder of this Agreement or the application of that term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected and each term and provision of
this Agreement shall be valid and enforceable to the extent permitted by law.
19. Governing Law. This Agreement shall be governed by and construed,
and performance thereof shall be determined, in accordance with the laws of the
State of Minnesota, without giving effect to the conflicts of law provisions
thereof.
20. Dispute Resolution. All disputes arising under this Lease will be
resolved by the parties through the dispute resolution procedures described on
Exhibit C attached hereto and incorporated herein by this reference.
21. Records and Reports. Provider will maintain the records relating to
the Services separate from the records that it otherwise maintains, and shall
maintain the records relating to Company and the Services in strictest
confidence, and in accordance with the Nondisclosure Provisions attached as
Exhibit B. Provider will provide Company with such reports and information
concerning the Services which Company reasonably requests.
22. Antitrust Compliance. Company and Provider shall fully abide by all
relevant antitrust laws, rules and regulations which may govern the operation of
Company and Company's relationship with Provider under this Agreement. Company
and Provider shall establish an antitrust training program to ensure that their
employees are made aware of relevant antitrust laws. In addition, Company and
Provider will implement operating principles and/or communication guidelines
related to the provision of Services designed to comply with all relevant
antitrust laws, rules and regulations.
23. Further Assurances. Each Party agrees from time to time to do and
perform such other and further acts and execute and deliver any and all such
other instruments as may be required by law or reasonably requested by the other
Party to carry out and effect the intent and purpose of this Agreement.
24. Nonwaiver. The failure or delay of a Party to insist upon strict
performance of any of the provisions of this Agreement, to exercise any rights
or remedies provided under this Agreement or by law, or to notify the other
Party in the event of breach or default under this Agreement, shall not release
or relieve such other Party from any of its obligations under this Agreement and
shall not be deemed a waiver of any right to insist upon strict performance of
this Agreement or any of the rights or remedies under this Agreement, nor shall
any purported modification or rescission of this Agreement operate as a waiver
of any of the provisions of this Agreement.
25. Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the Parties and their
respective permitted successor and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
26. Entire Agreement; Amendment. This Agreement (a) constitutes the
entire agreement between the parties with respect to the the subject matter
hereof and supersedes any prior oral or written
agreement or representation by or between the Parties, and (b) may be amended
only by an instrument in writing executed by both of the Parties.
27. Counterparts. This Agreement may be executed in counterparts, all
of which counterparts taken together shall constitute one original agreement.
IN WITNESS WHEREOF, Company and Provider each has caused this Agreement
to be executed by its duly authorized officer.
-----------------------------
By:
------------------------------
Name:
Title:
TACOMA EXPORT AND MARKETING, LLC
By:
------------------------------
Name:
Title:
EXHIBIT A
FORM OF SCHEDULE OF SERVICES
Date:___________________________
This SCHEDULE OF SERVICES is issued pursuant to the Services Agreement
dated as of _____ between TEMCO, LLC ("Company") and ________________
("Provider") which is hereby incorporated into this Schedule of Services by
reference.
I. Description of Services. Provider shall perform the following Services
for Company:
II. Compensation.
III. Special Provisions.
TACOMA EXPORT MARKETING, LLC _______________________________
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
EXHIBIT B
NONDISCLOSURE AND I.P. OWNERSHIP PROVISIONS
CONFIDENTIALITY. During the term of this Services Agreement, Company
and Provider may exchange certain Confidential Information with one another.
"Confidential Information" shall mean all information owned by or in possession
of either Company or the Provider, that is not generally known to the public,
whether of a technical, business or other nature (including, without limitation,
inventions, trade secrets, know-how and information relating to the customers,
business plans, promotional and market activities, finances and other business
affairs of such party) that is disclosed by a party, (the "Disclosing Party") to
the other party (the "Receiving Party") in furtherance of this Services
Agreement.
NON-DISCLOSURE AND NON-USE. The Receiving Party agrees to treat as
secret and hold in strict confidence all Confidential Information it receives
from the Disclosing Party under this Services Agreement. The Receiving Party
agrees that it will not disclose any Confidential Information to any third party
without the prior written permission of the Disclosing Party (or as otherwise
specifically provided in this Agreement), however, in the case of disclosure by
Company to the Company Member that is not the Provider under this Services
Agreement oral permission is sufficient). The Receiving Party also agrees that
it will only use the Confidential Information received under this Services
Agreement as specifically provided herein and in furtherance of this Agreement.
The Receiving Party agrees that only its employees with a bona fide need to
know, and who have signed the Appendix To Nondisclosure Provisions, shall be
provided access to the Confidential Information of the Disclosing Party. In the
event the Receiving Party is required by court order, or by law or legal
process, to disclose Confidential Information of the Disclosing Party, the
Receiving Party shall inform the Disclosing Party in writing prior to making
such disclosure to provide sufficient time to request a protective order or
other appropriate measure, and the Receiving Party will disclose only such
information that is legally required and will use its reasonable best efforts to
obtain confidential treatment for any Confidential Information that is so
disclosed.
EXCLUSIONS TO CONFIDENTIAL INFORMATION. Confidential Information shall
not include information that (a) was in the public domain, in its entirety in a
unified form, at the time of disclosure to the Receiving Party; (b) was known by
the Receiving Party prior to its disclosure by the Disclosing Party; (c) becomes
part of the public domain after the date of disclosure by the Disclosing Party
through no fault of the Receiving Party; or, (d) is disclosed by a third party
to the Receiving Party after the date of disclosure by the Disclosing Party,
where the third party did not require the Receiving Party to hold such
information in confidence and did not acquire such information directly or
indirectly from the Disclosing Party;
OWNERSHIP. Except as otherwise specifically provided in this Services
Agreement, all rights to Confidential Information, trade secrets, know-how,
inventions, patents, patents pending, copyrights, trademarks, and tradenames
(hereinafter, "Intellectual Property") owned by Provider shall be fully retained
by Provider and no rights or licenses are provided to Company. In the event that
any Intellectual Property based upon Provider's Intellectual Property is created
under this Services Agreement, the new Intellectual Property shall be owned by
Provider with a non-exclusive, royalty-free, non-transferrable, perpetual,
worldwide license being granted to Company for use of the new Intellectual
Property consistent with the Business Purpose.
1.
APPENDIX TO NONDISCLOSURE PROVISIONS
EMPLOYEE AND AFFILIATE
ACKNOWLEDGEMENT AND AGREEMENT
I, the undersigned, hereby acknowledge that I have received and read the
Nondisclosure and I.P. Provisions of the Services Agreement dated _______
between ____________ and Tacoma Export and Marketing Company, LLC ("Company"),
and that I understand all of the provisions thereof. I further acknowledge that
I may receive Confidential Information (as defined in the Nondisclosure
Provisions), and my receipt of that Confidential Information is conditioned upon
my execution of this Acknowledgement and Agreement. By signing below, I agree to
abide by the terms of the Services Agreement.
Date:_________________________ ______________________________
Company
------------------------------
Signature
------------------------------
Print Name
EXHIBIT 3.1
INITIAL CAPITAL CONTRIBUTIONS OF MEMBERS
CARGILL MEMBER: Cargill's 50% partnership interest in Tacoma Export Marketing
Company, a Washington general partnership.
CHS MEMBER: CHS's 50% partnership interest in Tacoma Export Marketing Company, a
Washington general partnership.
EXHIBIT 5.2
DESIGNATION OF INITIAL MANAGERS
CARGILL'S INITIAL MANAGERS:
(1) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(2) ▇▇▇▇▇ ▇. ▇▇▇▇
(3) R. Wayne Teddy
CHS' INITIAL MANAGERS:
(1) ▇▇▇▇ ▇▇▇▇▇▇
(2) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(3) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
EXHIBIT 10.3
Put-through Agreement
EXHIBIT 12.1(f)
PENDING OR THREATENED ACTIONS, SUITS, PROCEEDINGS OR INVESTIGATIONS
1. The Port of Tacoma claims that ContiGroup (formerly known as Continental
Grain Company) ("▇▇▇▇▇") and/or Cargill are responsible for certain additional
rent relating to a lease of aquatic tidelands that the Port of Tacoma executed
with the State of Washington in October 1972. The Port of Tacoma has sought to
pass on such rent to ▇▇▇▇▇/Cargill, which relates to the water lot required for
the placement, maintenance and operation of the wharves, docks, dock walls and
marine gallery and similar water-based structures benefiting the facility. ▇▇▇▇▇
and Cargill have objected to the Port's claim for additional rent.
