LIMITED LIABILITY COMPANY AGREEMENT
OF
WILD HORSE, LLC
This Limited Liability Company Agreement (this 'Agreement') is entered
into by and between K N Energy, Inc. ('KNE'), a Kansas corporation, and Tom
Brown, Inc. ('TBI'), a Delaware corporation, as the sole Members of Wild Horse,
LLC (the 'Company'), a Delaware Limited Liability Company formed pursuant to
the Delaware Limited Liability Company Act. In consideration of the mutual
promises made herein, KNE and TBI agree as follows:
ARTICLE I
DEFINITIONS
Capitalized words and phrases used herein shall have the meanings set
forth below in this Article I unless defined elsewhere herein:
'Act' means the Delaware Limited Liability Company Act, as amended from
time to time.
'Agreed Value' means the fair market value of any contributed or
distributed Property net of any liability assumed or taken subject to, as fair
market value is determined by the Members using any reasonable method of
valuation.
'Assignee' means a Person to whom all or part of a Member's Interest
has been assigned and who has been admitted as a Member as a result of such
assignment..
'AMI' means the geographic area of mutual interest depicted on the
plat attached hereto as Exhibit A (as the same may be amended or supplemented
from time to time) in which the Company proposes to pursue opportunities to
provide the services described in Article VI hereof.
'Available Cash' means all cash funds of the Company from operations,
refinancings, asset sales, Capital Contributions, loans or any other source at
any particular time available for Distribution after reasonable provision has
been made for (i) payment of all operating expenses of the Company as of such
time and (ii) payment of all outstanding and unpaid current obligations of the
Company as of such time.
'Business' is defined in Section 3.1.
'Capital Account' means the account maintained for a Member or
Assignee in accordance with Section 8.2.
'Capital Contribution' means, with respect to a Member, the amount of
cash and the Agreed Value of the property (other than cash) contributed to the
Company with respect to such Member's Interest.
'Certificate of Formation' means the Certificate of Formation of the
Company as amended or restated from time to time in accordance with the terms
of this Agreement and filed with the Delaware Secretary of State in the manner
provided by the Act.
'Code' means the Internal Revenue Code of 1986, as amended from time
to time.
'Company' means Wild Horse, LLC, a Delaware limited liability company
formed under the Act.
'Company Opportunity' is defined in Section 3.5.
'Consent' means, with respect to a Member, (a) as a noun, either the
written consent of such Member or the affirmative vote of that Member at a
meeting, as the case may be, to do that for which the Consent of such Member is
given and (b) as a verb, giving Consent for any such action. To receive the
'Consent of the Members' requires the requisite level of Consent of the Members
provided in this Agreement or as otherwise expressly required by the
Certificate of Formation, the Act or other applicable law.
'Distribution' or 'Distributions' means any cash or other Property
distributed to a Member by the Company on account of that Member's Interest as
provided in Article VIII, and does not include payments to a Member (i)
pursuant to a loan by such Member to the Company or other transactions in which
such Member is acting other than in its capacity as a Member within the meaning
of section 707(a) of the Code or (ii) which are made to reimburse a Member or
an Affiliate of a Member for amounts paid for or on behalf of the Company.
'Distribute' means to make one or more Distributions.
'Effective Date' means January 1, 1996.
'Fiscal Year' means the annual accounting period of the Company, which
shall be the calendar year or such portion of a calendar year during which the
Company is in existence.
'GAAP' means generally accepted accounting principles, conventions,
rules and procedures in the United States set forth in the opinions and
pronouncements of the accounting principles board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or any successor organization) that are applicable
to the circumstances as of the date of determination.
'Interest' of a Member at any time means the entire percentage
ownership interest of such Member in the Company at such time and all benefits
to which such Member is entitled
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under this Agreement and applicable law, together with all obligations of such
Member under this Agreement and applicable law.
'Manager' shall mean KNE, or such other party as may be designated as
the Manager by unanimous Consent of the Members.
'Members' means KNE and TBI and those Persons who subsequently are
admitted as Members. 'Member' means any one of the Members.
'Net Income' means, for any period, the excess, if any, of the
Company's items of income and gain for such period over the Company's items of
loss and deduction for such period, including items described in Section
705(a)(1)(B) and 705(a)(2)(B) of the Code, as computed for book purposes.
'Net Loss' means, for any period, the excess, if any, of the Company's
items or loss and deduction for such period over the Company's items of income
and gain for such period, including items described in Section 705(a)(1)(B) and
705(a)(2)(B) of the Code, as computed for book purposes.
'Operating Team' shall mean a group consisting of two representatives
appointed by the Chief Executive Officer of KNE and two representatives
appointed by the Chief Executive Officer of TBI. Each Operating Team Member
shall have an equal vote on all issues pertaining to the Company. The two
initial representatives of the Operating Team appointed by KNE shall be H.
Rickey Wells and Geoff Solich and the two initial representatives of the
Operating Team appointed by TBI shall be Peter R. Scherer and William H. Munn,
II.
'Organization' means any corporation, partnership, joint venture,
limited liability company, unincorporated association, trust, estate,
governmental entity or other entity.
'Person' means any natural person or Organization.
'Property' means all (or such lesser amount as indicated by the
context used herein) property -- real, personal, tangible or intangible --
owned from time to time by the Company as a result of Capital Contributions,
acquisitions, operations or otherwise.
'Taxable Income' or 'Taxable Loss' for a particular Fiscal Year means
an amount equal to the Company's taxable income or taxable loss for such Fiscal
Year determined in accordance with Code section 703(a).
'Tax Distribution Amount' means, with respect to a Member for any
calendar quarter, the combined amount computed pursuant to Sections 8.7(a)(i)
and 8.7(a)(ii) in reference to such calendar quarter.
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'Transfer' means (a) as a noun, any voluntary or involuntary transfer,
sale, assignment, alienation, gift, donation, grant, conveyance, lease,
exchange, mortgage, pledge, encumbrance, hypothecation or other disposition of
any kind, including dispositions by operation of law or legal process and (b)
as a verb, the act of making any voluntary or involuntary Transfer.
'Treasury Regulations' means the final and temporary regulations of
the U.S. Department of the Treasury promulgated under the Code.
ARTICLE II
MEMBERS
2.1 Initial Members. Upon the formation of this Company, KNE and TBI
shall be its sole Members. After the formation of this Company, a Person may
become a Member (a) in the case of a Person acquiring a membership interest
directly from this Company, only by the written agreement of both Members; and
(b) in the case of an assignment of a Member's interest, only if such
assignment is to another Member or a Member's wholly owned subsidiary or such
assignment has been agreed to in writing by the non-assigning Member.
2.2 Classes of Members. The Company shall have two classes of
Members. KNE and its successors and assigns shall be the Class A Member, and
TBI and its successors and assigns shall be the Class B Member.
2.3 Place and Manner of Meeting. All meetings of the Members
shall be held at such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. Members may
participate in such meetings by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting by a Member shall
constitute a waiver of notice of such meeting, except where a Member attends a
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
2.4 Meetings. An annual meeting of the Members for the
transaction of all business which may come before the meeting shall be held on
such day and at such time during the period within six months after the close
of each Fiscal Year of the Company as may be specified by the Manager in the
notice of the meeting. If the annual meeting of Members is not held within the
period above specified either Member may cause a special meeting of the Members
in lieu thereof to be held as soon thereafter as convenient, and any business
transacted or election held at such meeting shall be as valid as if held at the
annual meeting. Failure to hold the annual meeting at the designated time
shall not work a dissolution of the Company. Special meetings of the Members
may be called at any time by either Member.
2.5 Notice. Written or printed notice stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be delivered not less than ten nor more
than sixty days before the date of the meeting either
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personally or by mail, by the Person calling the meeting, to each Member
entitled to vote at the meeting, provided that such notice may be waived as
provided in this Agreement. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the Member at
its address as it appears on the records of the Company, with postage thereon
prepaid.
2.6 Quorum of Members. All Members, represented in person or by
proxy, shall be required for a quorum at a meeting of Members.
2.7 Majority Vote; Withdrawal of Quorum. The vote of the holders
of a majority of the membership interests of each class of Members entitled to
vote at a meeting at which a quorum is present shall be the act of the Members'
meeting, unless the vote of a greater number is required by law, the
Certificate of Formation or this Agreement. The Members present at a duly
organized meeting may not continue to transact business if the other Members
withdraw from the meeting.
2.8 Action Without Meeting. Subject to the requirements of the
first sentence of the fourth paragraph of Section 15.4 of this Agreement, any
action required by the Act, as amended, to be taken at any annual or special
meeting of the Members, or any action which may be taken at any annual or
special meeting of the Members, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall have been signed by each Member.
2.9 Right of Assignee to Become Member.
A. A valid assignment of part or all of a Member's Interest shall
cause the Assignee to become a Member. It is the intent of this Agreement that
the tax status of this Company be the same as for a partnership, and except as
allowed by the Code, and any corresponding rules and regulations, it is
intended that this Company shall not allow free transferability of Interests,
and to the extent possible, this Agreement shall be read and interpreted to
prohibit the free transferability of Interests of any Member.
B. To the extent a Member's Interest has been assigned, the
Assignee shall be subject to the restrictions and liabilities of a Member under
this Agreement and the Act, as amended from time to time.
2.10 Withdrawal, Bankruptcy or Dissolution of a Member. A Member
may not voluntarily withdraw during the first two (2) years of the term of this
Company, without the Consent of the other Members. Thereafter, a Member may
withdraw upon sixty (60) days prior written notice to the Company and the other
Member with such withdrawal to take effect at the time specified in such
notice, or if no time be specified, then at the time of its receipt by the non-
withdrawing Member. This Company shall be dissolved upon the withdrawal,
bankruptcy, liquidation or dissolution of a Member, or upon the occurrence of
any other event that terminates the continued membership of a Member in this
Company under the terms of
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this Agreement or the Act. For purposes of this Section 2.10, the term
'dissolution' does not include a merger, spin-off, consolidation,
reorganization or recapitalization of a Member. It is the intent of this
Agreement that the tax status of this Company be the same as for a partnership,
and except as allowed by the Code, and any corresponding rules and regulations,
it is intended that this Company shall not have continuity of life and shall be
read and interpreted so as to prohibit continuity of life.
ARTICLE III
ORGANIZATION AND TERM
3.1 Company Purpose. The purpose of the Company is to conduct any
and all lawful business, to promote any lawful purpose and to engage in any
lawful act or activities for which a limited liability company may be organized
under the Act, including, but not limited to, the furnishing of services
related to crude oil and natural gas, natural gas liquids ('NGLs'), and other
natural gas products such as gathering services, processing and storage
services, marketing services, field services and all business activities
related thereto (collectively, the 'Business'); provided, however, all of the
foregoing shall be conducted or undertaken in accordance with all the terms and
conditions of, and subject to the limitations set forth in, this Agreement.
3.2 Place of Business. The principal place of business of the
Company shall be located at 370 Van Gordon, Lakewood, Colorado 80228. The
Operating Team at any time may establish and choose other offices and places of
business and change the principal place of business of the Company to any other
place.
3.3 Filings and Fees. The Manager shall execute and file, or
cause to be executed and filed, for recordation in the office of the
appropriate authorities such reports, disclosures, certificates and other
forms, schedules, instruments or documents as are required by applicable law or
regulation or which otherwise may be necessary or appropriate with respect to
the formation of, and conduct of business by, the Company. The Manager also
shall cause the Company to pay all fees, taxes and other charges, including
professional fees, incurred in connection with the preparation and filing of
such reports, certificates, disclosures, forms, schedules, instruments or other
documents.
3.4 Title to Property. The Property shall be owned by the Company
as an entity and no Member shall have any ownership interest in the Property in
that Member's individual name or right, and each Member's Interest shall be
personal property for all purposes. The Company shall hold the Property in the
name of the Company and not in the name of any Member.
3.5 Noncompetition: Conflicts of Interest. Subject to the express
provisions of this Agreement, each Member shall be free to pursue other
opportunities in industries engaged in the same or similar business as the
Company's Business, or otherwise; provided, however, that should any
opportunity arise within the AMI which is related to, or developed from, the
Business, such opportunity shall be accepted or rejected by the Company (a
'Company
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Opportunity'). If the Company (acting through the Operating Team) elects to
reject any Company Opportunity, the Member whose representatives on the
Operating Team have voted for the proposal may pursue it for its own account,
subject only to reimbursing the Company for its out of pocket expenses incurred
in connection with such Company Opportunity.
3.6 Limitation of Liability. Except as otherwise expressly
provided herein or required by applicable law, no Member, as such, shall be
bound by, or be personally liable for, the liabilities or obligations of the
Company or the other Member, or be required to lend any funds to (or provide
any guarantees on behalf of) the Company, without the prior written consent of
such Member. No Member shall have any obligation to make Capital Contributions
to the capital of the Company except those Capital Contributions agreed upon by
the Member or that may be required (a) to return the amount of any Distribution
received by such Member in violation of, and to the extent required by the Act;
or (b) under Section 8.2 with respect to the withholding by the Company of
income taxes.
3.7 Expenses. The Company shall pay all costs and expenses
arising from the organization and operation of the Company. The Company shall
reimburse the Members for their reasonable out-of-pocket expenses incurred by
them on behalf of the Company in accordance with this Agreement.
ARTICLES IV
MANAGER AND OPERATING TEAM
4.1 Manager and Operating Team. The day to day business and
affairs of the Company shall be managed by the Manager pursuant to written
guidelines adopted by the Operating Team. The Manager shall act at the
discretion of the Operating team in discharging all administration, staffing,
accounting, legal representation and day to day operations of the Company. The
Operating Team shall also have the authority to delegate authority to perform
functions for the Company to the Manager and to other parties from time to
time. The Manager and the Operating Team shall call upon the expertise and
resources of personnel from each of the Members to fulfill the business needs
of the Company.
4.2 Election; Term. The Manager shall not be changed, except by
agreement of all Members.
4.3 Removal; Filling of Vacancies. Any member of the Operating
Team appointed by KNE's Chief Executive Officer may be removed by KNE and any
member of the Operating Team appointed by TBI's Chief Executive Officer may be
removed by TBI. Any vacancy (whether as a result of resignation, removal or
death) occurring in the Operating Team with respect to KNE's representatives
may be filled by KNE's Chief Executive Officer, and any vacancy on the
Operating Team with respect to TBI's representatives may be filled by TBI's
Chief Executive Officer. Each Operating Team member shall serve at the
pleasure of the Chief Executive Officer appointing such Operating Team Member.
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4.5 Resignations. Any Operating Team member may resign at any
time.
4.5 Place and Manner of Meetings. Meetings of the Operating Team
shall be held quarterly or more frequently if necessary, to consider matters
concerning the Company, including such matters as budgets and general business
plans. Operating Team members may participate in such meetings by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other.
4.6 Meetings of the Operating Team. A regular meeting of the
Operating Team may be held at such time as shall be determined from time to
time by resolution of the Operating Team members.
Any member of the Operating Team may call a special meeting of the
Operating Team by giving at least five (5) days' written notice stating the
date, place and hour of meeting to each Operating Team member either personally
or by mail. Such special meeting shall be held at the time specified in the
notice of meeting. Except as otherwise expressly provided by statute, by the
Certificate of Formation or by this Agreement, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice. In any case where all of the Operating Team
members execute a waiver of notice of the time and place of meeting, no notice
thereof shall be required, and any such meeting shall be held at the time and
at the place specified in the waiver of notice. Attendance of Operating Team
members at any meeting shall constitute a waiver of notice of such meeting,
except where the Operating Team members attend a meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
4.7 Action Without Meeting. Any action which may be taken at a
meeting of the Operating Team may be taken without a meeting if a Consent,
setting forth the action so taken, shall be signed by at least three of the
four members of the Operating Team. Such Consent shall have the same force and
effect as a vote at a meeting.
4.8 Quorum; Majority Vote. At all meetings of the Operating Team
a majority of the number of members of the Operating Team fixed by this
Agreement shall constitute a quorum for the transaction of business. The act
of three of the four members of the Operating Team shall be the act of the
Operating Team.
4.9 Compensation. The Members may designate the duties of the
Operating Team and the duties of each Operating Team Member engaged in the
conduct of the Company's business. The Members shall also determine the
compensation payable to each Operating Team member for his services. No such
payment shall preclude any member of the Operating Team from serving the
Company in any other capacity and receiving compensation therefor.
4.10 Procedure. The Operating Team shall keep a record of the
actions of the Operating Team.
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4.11 Annual Reports. Within ninety (90) days after the end of each
Fiscal Year, the Operating Team shall cause to be prepared (and furnished to
each Member) financial statements, which shall be prepared in accordance with
GAAP, and which shall include the following:
(a) A copy of the balance sheet of the Company as of the
last day of such Fiscal Year;
(b) A statement of income or loss for the Company for such
Fiscal Year;
(c) A statement of each Member's Capital Account and
changes therein and changes in owner's equity with respect to the
Company's for such Fiscal Year; and
(d) A statement of cash flow of the Company for such
Fiscal Year.
4.12 Monthly Reports. Within forty-five (45) days after the end of
each month, the Operating Team shall cause each Member to be furnished with
financial statements prepared in accordance with the Company's methods of
accounting, of the type described in the preceding Section 4.11, as of the last
day of such month, which financial statements shall include a comparison to (a)
the applicable budget projections for such month and (b) the financial
statements for the corresponding month of the prior Fiscal Year.
4.13 Annual Budget. The Operating Team shall cause to be prepared
and delivered to each Member (a) no later than November 30 of each year (the
'budgeting year') a proposed operating budget for the Company for the following
Fiscal Year, and (b) no later than December 31 of the budgeting year a final
operating budget for the Company for the following Fiscal Year. Both said
proposed and final budgets shall set forth in reasonable detail the Company's
projected operating expenses, capital expenditures, cash flow and income
projections for the following Fiscal Year on projected monthly and year-to-date
bases. The Operating Team also shall cause to be prepared and delivered to
each of the Members, in conjunction with the preparation and delivery of the
Company's monthly and annual financial statements, a comparison of the actual
to budgeted financial results.
4.14 Tax Returns and Information. The Operating Team shall cause
all tax returns that the Company is required to file to be prepared and timely
filed (including extensions) with the appropriate authorities of each Fiscal
Year. On or before July 15 (commencing in 1997) the Operating Team shall also
cause to be delivered to each Member information pertaining to the Company and
its operations for the previous Fiscal Year that is necessary for the Members
to accurately prepare their respective federal and state income tax returns for
said Fiscal Year.
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ARTICLE V
SCOPE
5.1 Geographic/Operated and Non-Operated. Initially, the Company
shall provide the services described in Article VI hereof in connection with
the gas production from TBI operated properties in the AMI. The Company shall
also make such services available to third party properties located within the
AMI. On an ongoing basis, and in any event by December 31 of each year, the
Operating Team will evaluate the success of the Company in providing the
services to the properties in the AMI, and determine whether and to what extent
such services will be modified and/or extended to additional properties
described in the overall scope of business of the Company.
The overall scope of business of the Company is contemplated to
eventually include some or all of TBI's and/or third party current and future
operated and non-operated production from other areas, including, but not
limited to, the Rockies, Mid-Continent, and Permian basins, and any production
which TBI may acquire in its proposed acquisition of properties from Presidio
Oil Company ('the Presidio Properties'). This contemplated scope of business
shall, however, exclude any production which is at the date of this Agreement
already dedicated or subject to third party agreements until such time as any
such production is released from such agreement and is dedicated to the
Company, in the discretion of the Operating Team.
5.2 Area of Mutual Interests. The Company shall be bound by the
AMI. On an ongoing basis, but in any event by December 31 of each year, the
Operating Team will evaluate the success of the Company, and determine, in its
sole discretion, whether the AMI shall be extended to include other areas. The
AMI (as amended or supplemented from time to time) shall specifically exclude
transmission assets, assets previously dedicated under or subject to third
party agreements, assets subject to federal rate regulation or state rate
regulation as an intrastate pipeline, assets subject to contracts which are not
assignable to third parties, assets and property specifically set forth on
Exhibit B hereto and any other assets or opportunities specifically excluded by
the Operating Team. It is contemplated that the Operating Team shall endeavor,
on an ongoing basis, to identify additional opportunities to be available to
the Company
ARTICLE VI
SERVICES
TBI will grant to the Company the right to perform certain
services related to TBI's natural gas, NGL's and other gas byproducts produced
from the properties of TBI located within the AMI. All services shall be
provided at competitive rates, governed by contracts and rate schedules to be
agreed upon and administered by the Operating Team. Such services will include
the following:
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A. Gathering Services.
B. Processing Services.
C. Marketing Services.
D. Storage Services.
Further, TBI will grant to the Company the right to perform certain
field services, including such services as pumper services and other related
physical operation services, measurement, etc, on existing properties of TBI
located within the AMI, at TBI's discretion. However, the KNPC Properties
within the AMI which are currently utilizing KNE's field services shall be
included in the group of properties for which the Company shall perform field
services, and shall not be at TBI's discretion, provided that the costs payable
by TBI for such services shall be substantially equivalent to the costs charged
for such services prior to TBI's acquisition of the KNPC Properties.
The Members agree that the Operating Team, on an ongoing basis, but in
any event after one year of operation under any given rate schedule and service
agreement, shall review with TBI the rates for services provided, and the
quality of the services provided, and determine whether the rates and services
are satisfactory to each of the parties. To the extent corrections must be
made, the Operating Team shall determine the appropriate remedies necessary to
resolve the problems, and shall reevaluate the outcome of the remedies
employed within one year of their implementation. TBI shall not be required to
utilize such services if the quality of services being provided is not adequate
(in TBI's opinion) or if such services are not being provided at competitive
rates.
ARTICLE VII
OWNERSHIP INTERESTS
KNE shall have a fifty-five percent (55%) and TBI shall have a
forty-five percent (45%) Interest in the Company. Except as herein
specifically provided, neither KNE or TBI shall be obligated to transfer to the
Company any ownership, or title to their respective assets and properties for
which services under the Company are contemplated to be provided.
ARTICLE VIII
CAPITALIZATION
8.1 Capital Contributions. Initially, TBI will contribute to the
Company (by separate agreement and subject to any existing agreements) the
right to perform the services described in Article VI of this Agreement and
related to the natural gas, NGL's and natural gas byproducts from its owned and
operated production in the AMI. KNE will contribute to the Company the current
marketing opportunities for the sale of gas to specific end use markets located
within the AMI as set forth on Exhibit A attached hereto. In addition, KNE
will grant the Company the right to sell at least 30% of TBI's currently owned
gas, into K N Marketing, Inc.'s ('KNM') specific end use markets located in the
Heartland and Front Range markets described on Exhibit A to the extent such
volumes do not exceed 20% or 9000 MMBtu/D of
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the K N Interstate (KNI) pool, whichever is lesser, and 20% or 6000 MMBtu/D of
the Colorado Interstate Gas (CIG) pool, whichever is lesser. Sales of gas by
the Company to Heartland and Front Range markets will be at the weighted
average market price received by KNM from third party consumers in such
markets. TBI will cause Retex Gathering Company, Inc. (TBI's wholly owned
subsidiary and marketing affiliate) to dedicate to the Company its CIG-firm and
KNI-firm transportation capacity, unless otherwise currently committed, and K N
will cause KNM to dedicate to the Company 6000 MMBtu/D of its KNI-firm
transportation capacity and will cause Northern Gas Company, a wholly owned
subsidiary of KNE to agree to use reasonable efforts to purchase volumes
available from the Company, subject to physical requirements and prudency
requirements established by applicable state commissions. In addition, both
TBI and KNE shall make proportionate working capital contributions as necessary
and appropriate, pursuant to decisions of the Operating Team. The initial
contributions by KNE and TBI to the Company shall consist of those items
described on Exhibit C hereto, and all of which shall be contributed to the
Company within thirty days following the date of this Agreement. The Members
agree that fifty five percent (55%) of the aggregate value of the items listed
on Exhibit C and the items to be contributed as contemplated in Article XIII is
being contributed by KNE or K N Gathering Company and that forty five percent
(45%) of the aggregate value of the items listed on Exhibit C and the items to
be contributed as contemplated in Article XIII is being contributed by TBI or
TBI Production Company. The Operating Team shall determine the agreed values
of such contributions within thirty days following the date of this Agreement.
8.2 Capital Accounts. A Capital Account shall be established and
maintained for each Member. Each Member's Capital Account shall be increased
by (i) the amount of money contributed by that Member to the Company, (ii) the
fair market value of property contributed by that Member to the Company (net of
liabilities secured by such contributed property that the Company is considered
to assume or take subject to under Section 752 of the Code), and (iii)
allocations to that Member of Net Income and Net Loss (or items thereof),
including income and gain exempt from tax and income and gain described in
Treasury Regulation Section 1.704-1(b)(2)(iv)(g), but excluding income and
gain described in Treasury 1.704-1(b)(4)(i), and shall be decreased by (iv) the
amount of money distributed to that Member by the Company, (v) the fair market
value of property distributed property that such Member is considered to assume
or take subject to under Section 752 of the Code), (vi) allocations to that
Member of expenditures of the Company described in Section 1.704-1(b)(2)(iv)(f)
and as required by the other provisions of Treasury Regulation Section
1.704-1(b)(2)(iv)(f) and as required by the other provisions of Treasury
Regulation Section 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments
to reflect the allocations to the Members of depreciation, depletion,
amortization, and gain or loss as computed for book purposes rather than the
allocation of the corresponding items as computed for tax purposes, as required
by Treasury Regulation Section 1.704-1(b)(2)(iv)(g). A Member who has more
than one interest in the Company shall have a single Capital Account that
reflects all such interests, regardless of the class of interests owned by such
Member and regardless of the time or manner in which such interests were
acquired. Upon the transfer of all or part of an interest in the Company, the
Capital Account of the transferor that is attributable to the transferred
interest in the Company
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shall carry over to the transferee Member in accordance with the provisions of
Treasury Regulation Section 1.704-1(b)(2)(iv)(l).
8.3 Allocations of Net Income or Net Loss.
(a) For purposes of maintaining the Members' Capital
Accounts, the Net Income or Net Loss of the Company for each year
shall be allocated among the Members in accordance with their
Interests.
(b) Except as otherwise provided in Section 8.3(c): for
federal and state tax purposes each item of income, gain, loss,
deduction and credit shall be allocated among the Members in the same
manner as each correlative item of Net Income or Net Loss is allocated
to the Members for purposes of maintaining their respective Capital
Accounts.
(c) Income, gain, loss and deduction with respect to
property contributed to the Company by a Member or revalued pursuant
to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) shall be allocated
among the Members in a manner that takes into account the variation
between the adjusted tax basis of such property and its book value, as
required by Section 704(c) of the Code and Treasury Regulation Section
1.704-1(b)(4)(i), using the remedial allocation method permitted by
Treasury Regulation Section 1.704-3(d).
(d) All Net Income and Net Loss (and any item of income,
gain, loss, deduction or credit) shall be allocated, and all
distributions shall be made, to the Persons shown on the records of
the Company to have been Members as of the last day of the period for
which the allocation or distribution is to be made. Notwithstanding
the foregoing, if an Interest is transferred during a taxable year,
Net Income and Net Loss (and any item of income, gain, loss, deduction
or credit) for such taxable year allocable to the transferred Interest
shall be prorated between the transferor and the transferee based upon
that portion of such taxable year during which each was recognized as
owning such Interest, without regard to the results of Company
operations during particular portions of such taxable year and without
regard to distributions made to the transferor and the transferee
during such taxable year; provided, that such allocation must be in
accordance with a method permissible under Section 706 of the Code and
the Treasury Regulations thereunder.
8.4 Available Cash. Available Cash shall be Distributed in the
following order and priority:
(a) Tax Distributions. If at the end of a calendar
quarter of a Fiscal Year, the Company estimates that it will allocate,
to one or both Members with respect to such Fiscal Year, (i) Taxable
Income (or items thereof) excluding items allocated pursuant to
Section 8.3(c) and (ii) items of income, gain, loss and deduction
required to be
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separately stated and computed by the Members pursuant to section
613A(c)(7)(D) of the Code (the amounts described in Clauses (i) and
(ii) shall be referred to in this Section 8.4(a) as 'Net Taxable
Income'), then not later than the twentieth (20th) day prior to the
date upon which estimated federal income tax payments are required to
be made by corporations for such calendar quarter, the Company shall
make a Distribution of Available Cash to each Member in an amount
equal to the following:
(i) Prior Income. First, that portion of any Tax
Distribution Amount for the calendar quarter immediately
preceding the calendar quarter to which Section 8.4(a)(ii)
refers for which a Distribution to such Member pursuant to
this Section 8.4(a) had not been made. The amount to be
Distributed pursuant to this Section 8.4(a) (i) shall be
determined by subtracting (A) the aggregate Distributions of
Available Cash made to such Member pursuant to this Section
8.4(a) as of the calendar quarter to which Section 8.4(a) (ii)
refers from (B) the aggregate of the amounts calculated
pursuant to Section 8.4(a) (ii), as adjusted, to be
Distributed to such Member for all such calendar quarters;
(ii) Current Income Tax Distribution. Second, the
product of (A) (I) such Member's distributive share of the
Company's estimated Net Taxable Income for such calendar
quarter, determined in accordance with the allocation
provisions of Article VIII, (II) plus or minus, as the case
may be, any increase or reduction in the estimates of Net
Taxable Income with respect to prior calendar quarters of such
Fiscal Year and (B) 38.25%; and
(b) Remainder. The Company, with the Consent of the Members,
may, thereafter, make Distributions of Available Cash to the Members
in accordance with their Interests.
8.5 Non-Cash Distributions. Except as otherwise provided in this
Agreement, each Member must look solely to the Property of the Company for the
return of such Member's Capital Contribution and shall have no right or power
to demand or receive Property other than cash.
8.6 Maintenance of Adequate Cash Reserves. The Company shall take
all reasonable and appropriate action necessary to ensure that it will have at
all times adequate cash reserves to make the Distributions prescribed by
Section 8.4(a) at the time provided therein, including refraining from making
any further capital or discretionary expenditures to the extent reasonably
necessary for the Company to have adequate Available Cash to do so.
ARTICLE IX
FINANCIAL SERVICES
KNE shall have the right, but not the obligation, to participate in
the bidding process to provide financing for any material capital projects
undertaken by the Company in the future,
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including debt offerings or other borrowings. The Company shall be under no
obligation to select KNE as the financing entity in any such project.
ARTICLE X
WIND RIVER GATHERING COMPANY JOINT VENTURE
AGREEMENT
It is the intent of the parties that all existing terms and conditions
of the Wind River Gathering Company Joint Venture Agreement (the 'Wind River
JV') be incorporated into the Company's business or, in the alternative, that
the Wind River JV be operated or managed by the Company pursuant to an
operating or management agreement. The parties understand that the
incorporation of the Wind River JV into the Company or, in the alternative, the
assumption of operations or management of the Wind River JV by the Company may
not occur immediately, but the parties will endeavor to accomplish such
incorporation or assumption of operations or management no later than July 1,
1996. Terms regarding ownership of, and liability for, the jointly owned
gathering assets in the Wind River JV shall not be changed, and the accounting
for the Wind River JV properties and production shall remain separate from the
accounting of the Company.
ARTICLE XI
LIABILITY
The Company has been formed as a limited liability company, which
shall assume the obligation for all services to be performed pursuant to the
terms of this Agreement. Each Member hereby retains several liability
(including, without limitation, all environmental and tax liability) associated
with its respective ownership and operation of the assets and properties upon
which services are to be performed by the Company; provided, however, the
liability associated with the assets and properties which are currently owned
by KNE and TBI pursuant to the Wind River JV Agreement shall be joint and
several, including, but not be limited to, all environmental and tax
liabilities.
ARTICLE XII
PREFERENTIAL RIGHT TO PURCHASE
TBI hereby grants first to the Company, and if the Company declines,
then to KNE, an exclusive preferential right during the term of this Agreement
to purchase, on a competitive basis, any assets downstream of the wellhead
sales meter now owned by TBI in the AMI (including such assets as gathering,
processing and pipelines) and, to the extent it is legally able to do so, to
assets acquired by TBI in the future (including any such downstream assets to
be assigned to TBI from KNPC) which are located in the AMI, but in each case
only to the extent such assets become available for sale prior to dissolution
of the Company. KNE hereby grants to TBI an exclusive preferential right
during the term of this Agreement to purchase, on a competitive basis, any
upstream assets owned by KNE now or in the future to the extent such assets
become available for sale prior to dissolution of the Company.
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KNE and TBI each hereby grant to the Company an exclusive preferential
right to participate in any gathering, processing, storage, or field services
projects which are made available to either of KNE or TBI by another Person and
which fall within the AMI.
KNE and TBI hereby each grant to the Company an exclusive preferential
right to marketing sales opportunities for sales of gas to specific end use
markets and customers located within the AMI.
The Member proposing to sell any of the assets or to engage in any
other activities subject to a preferential right in favor of the Company or the
other Member shall promptly give written notice to the Company and/or the other
Member, with full information concerning the proposed transaction, which shall
include the name and address of any Party involved in the proposed transaction
(who must be ready, willing and able to proceed with the transaction), a full
explanation of the consideration involved, a full description of the assets to
be sold or activities to be engaged in and all other terms of any such proposed
transaction. The Company or the non-selling Member shall have a period of
fifteen (15) days after the notice is delivered, to exercise its preferential
right granted hereunder on the same terms and conditions as are set forth in
the notice received from the other Member. If the notice does not set forth a
specific price to be paid by a bona fide third party purchaser to the party
proposing the sale and the parties are unable to agree on such a price, each
party shall appoint one appraiser and the two appraisers shall appoint a third
appraiser. The three appraisers shall, by majority vote, determine the
appropriate price. Each party appointing an appraiser shall be responsible for
the appraiser appointed by such party and the cost of the third appraiser shall
be borne equally by the parties appointing the first two appraisers. If the
holder of the preferential right fails to exercise such right, the Member
proposing the transaction subject to the preferential right may proceed with
the transaction on terms and at a price no less favorable than that offered to
the party with the preferential right, provided, if such transaction is not
concluded within Sixty (60) days following the expiration of the first right of
refusal, the Member proposing the transaction must again offer the transaction
to the parties with the preferential right in accordance with the foregoing
before proceeding with the transaction.
ARTICLE XIII
WOLF CREEK STORAGE FACILITY
Within seven (7) days following the formation of the Company KNE shall
cause K N Gathering Company (a wholly owned subsidiary of KNE) to convey all of
its interest in the Bonanza Gathering Systems to the Company for a Class A
membership Interest in the Company and TBI will cause TBI Production Company
(formerly named K N Production Company) to convey the Wolf Creek Storage
Facility to the Company for a Class B membership Interest in the Company. The
Wolf Creek Storage Facility shall, however, be subject to an operating lease
between KNE and the Company acceptable to KNE and appropriate regulatory
authorities as necessary. Any costs associated with such operating lease shall
be allocated to and be the sole responsibility of KNE. All Net Income and Net
Losses associated with KNE's operation of the
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Wolf Creek Storage Facility shall be shared in the proportion of 55% by the
Class A Members and 45% by the Class B Members.
ARTICLE XIV
INDEMNIFICATION
14.1 Indemnification. The Members, acting by and through the
Operating Team, may adopt such provisions pertaining to indemnification of
Members, Managers, Operating Team members and others as may be permitted under
the Delaware Limited Liability Company Act; provided, however, no Person may be
indemnified under any section of this Article XIV in respect of a proceeding:
(A) in which the Person is found liable on the basis that personal
benefit was improperly received by or it, whether or not the benefit resulted
from an action taken in the Person's official capacity; or
(B) in which the Person is found liable to the Company.
14.2 Liability Insurance. The Company may purchase and maintain
insurance or another arrangement on behalf of any Person who is or was a
Manager, Operating Team member, officer, employee, or agent of the Company or
who is or was serving at the request of the Company as a Manager, Operating
Team member, director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, against any
liability asserted against him or it and incurred by him or it in such a
capacity or arising out of his or its status as such a person, whether or not
the Company would have the power to indemnify him against that liability under
this Article XIV.
ARTICLE XV
CERTIFICATES AND MEMBERS
15.1 Certificates. Each Member shall receive a certificate (in
the form determined by the Operating Team) representing all membership
interests to which such Member is entitled. Such certificates shall be
consecutively numbered and shall be entered in the books of the Company as they
are issued. Each certificate shall state on the face thereof the holder's
name, the class of membership, the membership interest, and such other matters
as may be required by the laws of the State of Delaware. They shall be signed
by a representative of the Company.
15.2 Registered Members. The Company shall be entitled to treat
the holder of record of any certificate of membership interest of the Company
as the owner thereof for all purposes and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such membership
interest or any rights deriving from such membership interest on
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the part of any other Person, including (but without limitation) a purchaser,
assignee or transferee, unless and until such other Person becomes the holder
of record of such membership interest, whether or not the Company shall have
either actual or constructive notice of the interest of such person, except as
otherwise provided by law.
15.3 Liability for Contribution Obligations.
A. A promise by a Member to make a contribution to, or otherwise
pay cash or transfer Property to, the Company shall be in writing and signed by
the Member.
B. If a Member does not make a contribution or payment of cash or
transfer of property required by the enforceable promise, whether as a
contribution or with respect to a contribution previously made, that Member is
obligated, at the option of the Company, to pay to the Company an amount of
cash equal to that portion of the agreed value, as stated in this Agreement or
in the Company's records required to be kept under the Act, of the contribution
represented by the amount of cash that has not been paid or the value of the
property that has not been transferred.
C. Unless otherwise provided by this Agreement, the obligation of
a Member to make a contribution or otherwise pay cash or transfer property to
the Company may be compromised or released only with the written agreement of
the other Member.
D. The Company, by and through the Operating Team, will have the
authority to request (but not require) the Members to contribute additional
capital when additional capital is reasonably needed to pay existing or
anticipated expenses of operation and administration, debt service for any
amounts borrowed by the Company, insurance and tax payments on the cost of
acquiring, maintaining and selling property of the Company.
15.4 Restriction upon Ownership and Transfer of Ownership Interest.
This Company is formed by a closely-held group who know and trust one another,
and who will have surrendered certain management rights (in exchange for
limited liability) based upon their relationship and trust. Capital is also
material to the business and investment objectives of the Company and its
federal tax status. An unauthorized transfer of a Member's Interest could
create a substantial hardship to the Company, jeopardize its capital base, and
adversely affect its tax structure. These restrictions upon ownership and
transfer are not intended as a penalty, but as a method to protect and preserve
existing relationships based upon trust and the Company's capital and its
financial ability to continue.
The ownership and transfer of a membership Interest is subject to the
following disclosure and condition:
THE MEMBERSHIP INTEREST OF THE COMPANY HAS NOT BEEN NOR WILL BE
REGISTERED OR QUALIFIED UNDER FEDERAL OR STATE SECURITIES LAWS. THE
MEMBERSHIP INTEREST OF THE LIMITED LIABILITY COMPANY MAY NOT
18
BE OFFERED FOR SALE, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED UNLESS SO
REGISTERED OR QUALIFIED, OR UNLESS AN EXEMPTION FROM REGISTRATION OR
QUALIFICATION EXISTS AND THEN ONLY WITH THE CONSENT OF ALL MEMBERS. THE
AVAILABILITY OF ANY EXEMPTION FROM REGISTRATION OR QUALIFICATION MUST BE
ESTABLISHED BY AN OPINION OF COUNSEL FOR THE OWNER THEREOF, WHICH OPINION OF
COUNSEL MUST BE REASONABLY SATISFACTORY TO THE COMPANY.
No Member may sell, transfer or otherwise dispose of all or any part
of its Interest without the prior written consent of all other Members, which
consent may be withheld or denied in the sole discretion of each such Member.
Notwithstanding the foregoing, a Member may transfer any part or all of its
Interest to a wholly owned subsidiary of the Member without the consent of the
other Members. If the ownership of an Interest is in doubt, or if there is
reasonable doubt as to who is entitled to a distribution of the income realized
from an Interest, the Company may accumulate the income until such issue is
finally determined and resolved. Accumulated income will be credited to the
capital account of the Member whose Interest is in question.
15.5 Option to Purchase. If the Interest of a Member (the
'Transferring Member') is acquired by any Person or agency other than a wholly
owned subsidiary of the Transferring Member, the Interest of the transferee may
then be acquired by the Non-Transferring Member upon the following terms and
conditions:
(a) The Non-Transferring Member will have the option to
acquire the Interest by giving written notice to the transferee of its
intent to purchase within 90 days from the date it receives notice of
such transfer or proposed transfer.
(b) The Non-Transferring Member will have 180 days from
the first day of the month following the month in which it delivers
notice exercising its option to purchase the Interest. The valuation
date for the Interest will be the first day of the month following the
month in which such notice is delivered.
(c) Unless the Non-Transferring Member and the transferee
agree otherwise, the fair market value of a Member's Interest is to be
determined by qualified appraisers appointed by the Members in
accordance with the procedure set out in Article XII above.
(d) Closing of the sale will occur at the registered
office of the Non-Transferring Member at 10 o'clock A.M. on the first
Tuesday of the month following the month in which the value of the
Interest is determined. Until Closing, or if the Non-Transferring
Member does not elect to purchase any part of the Interest in
question, the transferee will be considered a nonvoting owner of such
membership interest, and entitled to all items of income, deduction,
gain or loss from the membership interest,
19
plus any additions or subtractions therefore, but shall not be
considered a Member for any other purposes.
(e) In order to reduce the burden upon the resources of
the Non-Transferring Member, the Non-Transferring Member will have
the option, to be exercised in writing delivered at closing, to pay
its purchase money obligation in not more than three equal annual
installments with interest thereon at then existing market rates.
The first installment of principal will be due and payable on the day
of the closing, and subsequent annual installments, with interest due
thereon, will be due and payable, in order, on the same day of each
subsequent calendar year until the entire amount of the obligation,
principal and interest, is fully paid. The Non-Transferring Member
will have the right to prepay all or any part of the purchase money
obligation at any time without premium or penalty.
(f) Neither the transferee of an unauthorized transfer or
the Member causing the transfer will have the right to vote during the
prescribed option period, or if the option to purchase is timely
exercised, until the sale is actually closed.
15.6 Buy-Sell Rights After Change of Control. Notwithstanding any
preferential rights to purchase or any other provisions in this Agreement, if
at any time during their ownership of an Interest (directly or through a wholly
owned subsidiary) either KNE or TBI should undergo a change of control, defined
as any situation in which a new Person, or group of Persons becomes in control
(as such term is defined in Rule 405 promulgated by the Securities and Exchange
Commission under the Securities Act of 1933) of either KNE or TBI, or a
majority of the board of directors of either of them shall change within any
twelve month period of time, then the party not undergoing the change of
control ('Notifying Party') shall have the right at any time within the ninety
(90) days following receipt by the Notifying Party of written notice of such
change of control to trigger the Buy-Sell Rights After Change of Control
provided for in this Section 15.6. Such rights shall be triggered by the
Notifying Party giving to the other (the 'Receiving Party') notice in writing
that it wishes to exercise its rights under this Section 15.6, which notice
shall specify the value the Notifying Party has assigned to a 1% Interest in
the Company (the 'Specified 1% Value'). For a period of thirty (30) days after
receipt of such notice, the Receiving Party shall have the right to elect to
sell its Interest in the Company to the Notifying Party at the price of the
Specified 1% Value times the number of 1% Interests in the Company held by the
Notifying Party. Such election by the Receiving Party shall be made by written
notice given by the Receiving Party to the Notifying Party during such
thirty-day period. If no such notice shall be given, it shall be deemed that
the Receiving Party elected to sell its Interest in the Company to the
Notifying Party at the price of the Specified 1% Value times the number of 1%
Interests in the Company held by the Receiving Party. After the expiration of
such thirty-day period, the sale and purchase of the Interest in the Company
being bought and sold as aforesaid shall proceed without avoidable delay by
delivery to the selling party of the consideration of its Interest in the
Company in exchange for the assignment to the buying party for the Interest in
the Company being bought, free and clear of all liens and encumbrances, except
those to which the Interest was previously subject. The provisions of this
20
Section 15.6 shall survive for a period of 180 days following any termination
of the Company pursuant to Section 16.1(f) hereof.
ARTICLE XVI
DISSOLUTION
16.1 Dissolution. This Company shall be dissolved on the first of
the following to occur:
(a) when the period fixed for the duration of this
Company expires;
(b) upon the occurrence of events specified in the
Certificate of Formation or this Agreement to cause dissolution;
(c) the written Consent of all members;
(d) except as otherwise provided in this Agreement, upon
the withdrawal, expulsion, bankruptcy, or dissolution of a Member or
the occurrence of any other event which terminates the continued
membership of a Member in this Company;
(e) Entry of a decree of judicial dissolution under the
Act; or
(f) Upon sixty (60) days written notice by one Member to
the other at any time after the first two (2) years from the Effective
Date.
For purposes of this Section 16.1, the term 'dissolution' does not
include a merger, spin-off, consolidation, reorganization or recapitalization
of a Member.
16.2 Judicial Dissolution. On application by or for a Member, a
court of competent jurisdiction may decree dissolution of this Company if it is
not reasonably practicable to carry on the business of this Company in
conformity with its Certificate of Formation and this Agreement.
16.3 Winding Up. On the dissolution of this Company, its affairs
shall be wound up as soon as reasonably practicable. The winding up shall be
accomplished by the Operating Team or by a party or parties appointed by the
Members. In addition, a court of competent jurisdiction, on cause shown, may
wind up the Company's affairs on application of any Member or the Member's
legal representative or assignee and, in connection with the winding up, may
appoint a Person to carry out the liquidation and may make all other orders,
directions, and inquiries that the circumstances require.
16.4 Transfer of Assets. On the winding up of the Company, its
assets shall be paid or transferred as follows:
21
(a) To the extent otherwise permitted by law, to
creditors, including Members who are creditors in satisfaction of liabilities
(other than for Distributions) of the Company, whether by payment or by
establishment of reserves;
(b) To Members and former Members in satisfaction of the
Company's liability for Distributions; and
(c) To Members in the manner provided in this Agreement.
16.5 Distributions Upon Termination and Dissolution of this
Company. Upon termination and dissolution of the Company, the Operating Team
or other Person designated by the Members will proceed to wind up the affairs
of the Company. The liabilities and obligations to creditors and all expenses
incurred in its liquidation and dissolution will be paid and will have first
priority in winding up as otherwise provided in this Agreement. The Operating
Team or other Person appointed by the Members may retain from available cash
and other assets of the Company sufficient reserves for anticipated and
contingent liabilities. Undistributed cash, and other property valued at its
fair market value on the date of Distribution, will be Distributed to the
Members in the following order:
(a) Distributions will first be made to repay any loans
to the Company by a Member, including the amount of any deferred payment
obligation to a Member or a Member's personal representative.
(b) Distributions will then be made to the Members in an
amount equal to the credit balances in their capital accounts so that the
capital account of each Member shall be brought to zero. For the purpose of
determining Distributions in liquidation, a negative capital account balance
will be considered to be a loan from the Company to a Member.
(c) The balance, if any, will be made to the Members in
an amount equal to each Member's percentage interest in the Company as
determined immediately prior to the Distribution of the credit balances of the
Member's capital accounts.
The Operating Team or other Person appointed by the Members,
in making or preparing to make a partial or final distribution will have the
authority to: (1) partition any asset or class of assets and deliver divided
and segregated interests to Members; (2) sell any asset or class of assets
(whether or not susceptible to partition in kind), and deliver to the Members a
divided interest in the proceeds of sale and/or divided or undivided interests
in any note and security arrangement taken as part of the purchase price;
and/or (3) deliver undivided interests in an asset or class of assets to the
Members subject to any indebtedness which may be secured by the property. To
the extent possible, any properties contributed to the Company (except the Wolf
Creek Storage properties) shall be returned to the Member contributing the same
upon any Dissolution of the Company. Ownership of the Wolf Creek Storage
properties and the Bonanza Gas Gathering System properties upon Dissolution of
the Company shall be shared by the Members in the ratio of 55% to KNE and 45%
to TBI.
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The Company may continue beyond its scheduled termination date
for a time reasonably necessary to conclude the administration of the Company,
pay expenses of termination and distribute all of the Property to those
entitled thereto.
ARTICLE XVII
MISCELLANEOUS
17.1 Books and Records.
A. The Company shall maintain such books and records as are
required by statute and as it may deem necessary or desirable. All books and
records of the Company shall be open to inspection and copying by the Members
from time to time The Company shall keep and maintain the following records in
its principal office and make them available in such office within five days
after the date of receipt of a written request:
(1) a current record that includes:
(a) the name and mailing address of each Member;
(b) the percentage interest in the Company owned
by each Member; and
(c) if more than one class of Members is
established under the Certificate of Formation or this Agreement, the
names of the Members who are members of each specified class;
(2) copies of the federal, state, and local information
or income tax returns for the Company's seven most recent tax years.
(3) a copy of the Certificate of Formation and this
Agreement, all amendments or restatements thereof, executed copies of any
powers of attorney, and copies of any document that creates, in the manner
provided by the Certificate of Formation or this Agreement, classes of members;
(4) The minutes of proceedings of the Operating Team or
this Agreement shall set forth:
(a) the amount of the cash contribution and a
description and statement of the Agreed Value of any other
contribution made by each Member, and the amount of the cash
contribution and a description and statement of the Agreed Value of
any other contribution that the Member has agreed to make in the
future as an additional contribution;
23
(b) the times at which additional contributions
are to be made or events requiring additional contributions to be
made;
(c) events requiring the Company to be dissolved
and its affairs wound up;
(d) the date on which each Member in the Company
became a Member;
(5) correct and complete books and records of account of
the Company.
B. The Company shall maintain its records in written form or in
another form capable of conversion into written form within a reasonable time.
C. A Member, on written request stating the purpose, may examine
and copy, in person or by the Member's authorized representative, at any
reasonable time, for any proper purpose, and at the Member's expense, records
required to be kept under this Section 17.1 and other information regarding the
business, affairs, and financial condition of the Company as is just and
reasonable for the person to examine and copy.
D. A Member, upon notice to the Company, shall have the right to
audit the books and records of the Company for any period, at the cost of the
Member conducting such audit unless otherwise agreed by the Members.
E. On the written request by any Member of a membership interest,
the Company shall provide to the requesting Member without charge true copies
of:
(1) the Certificate of Formation and this Agreement and
all amendments or restatements; and
(2) any tax returns of the Company.
17.2 Method. Whenever by statue or the Certificate of Formation or
this Agreement, notice is required to be given to any Member or the Company,
and no provision is made as to how the notice shall be given, it shall not be
construed to mean personal notice, but any such notice may be given in writing
postage prepaid, addressed to the Company, the Operating Team or Member at the
address appearing on the books of the Company, or by any other method permitted
by law. Any notice required or permitted to be given by mail shall be deemed
given at the time when the same is deposited in the United States mails.
17.3 Tax Matters.
(a) Tax Matters Member. KNE is hereby designated as the
'Tax Matters Member' of the Company in accordance with Section
6231(a)(7) of the Code and shall
24
serve in such capacity until the Members determine otherwise. Should
the unified audit rules of subchapter C of Chapter 63 of Subtitle F of
the Code be applicable, the Tax Matters Member shall: (i) take such
action as may be necessary to cause each of the other Members to
become a notice partner within the meaning of Section 6223 of the
Code, (ii) keep each of the other Members fully advised of the
progress of any audit, (iii) promptly notify each of the other Members
of any audit adjustments proposed by the Internal Revenue Service or
other taxing authority and furnish any supporting information
requested by a Member in connection therewith, (iv) prior to
submitting any materials to the Internal Revenue Service, or other
taxing authority, provide a copy of such materials to each of the
other Members, and (v) not enter into a settlement agreement pursuant
to Section 6224 of the Code without obtaining the prior Consent of all
Members. The Tax Matters Member shall be reimbursed by the Company
for any reasonable expenses incurred by the Tax Matters Member, or on
that Member's behalf, in such Member's capacity as the Tax Matters
Member.
(b) Elections. The Member shall make all elections and
other determinations for federal, state, local and foreign tax
purposes, on behalf of the Company.
17.4 Seal. The Company shall have no seal.
17.5 Amendments. This Agreement may be altered or repealed only
by unanimous Consent of the Members.
17.6 Headings. The headings used in this Agreement have been
inserted for convenience only and do not constitute matter to be construed in
interpretation.
17.7 Construction. Whenever the context so requires, the
masculine shall include the feminine and neuter, and the singular shall include
the plural, and conversely. If any portion of this Agreement shall be invalid
or inoperative, then, so far as is reasonable and possible:
(A) the remainder of this Agreement shall be considered valid and
operative; and
(B) effect shall be given to the intent manifested by the portion
held invalid or inoperative.
17.8 Taxable as a Partnership. The Company will constitute a
partnership for federal income tax purposes. The Company shall prepare or
cause to be prepared all necessary tax reports and other information required
by the Internal Revenue Service and a report for income tax purposes to each
member of its distributive share of items of income, gain, Loss, deduction and
credit.
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The undersigned, being all of the Members of the Company, hereby
certify that the foregoing Agreement has been unanimously adopted, this 31st
day of January, 1996.
K N ENERGY, INC.
By: /s/ H. Rickey Wells
------------------------------------
Name: H. Rickey Wells
Title: Vice President - Operations
TOM BROWN, INC.
By: /s/ Peter R. Scherer
------------------------------------
Name: Peter R. Scherer
Title: Executive Vice President
26
Wild Horse Limited Liability Company Agreement - K N Energy Inc. and Tom Brown Inc.
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