Exhibit 3.20
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LIMITED LIABILITY COMPANY AGREEMENT
FOR
EMPIRE STATE II, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Limited Liability Company Agreement for EMPIRE STATE II, LLC, a
Delaware limited liability company (the "Agreement") is made as of October 14,
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1998, by and between NORTHEAST RESTORATION COMPANY, LLC, a Delaware limited
liability company (the "Member"), and LANDBANK ENVIRONMENTAL PROPERTIES LLC, a
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Delaware limited liability company (the "Manager").
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NOW, THEREFORE, the Member and the Manager hereby adopt this Limited
Liability Company Agreement for the Company upon the terms and subject to the
conditions set forth herein.
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
1.1 "Act" shall mean the Delaware Limited Liability Company Act as
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set forth in Chapter 18 (commencing with Section 18-101) of the General
Corporation Law of the State of Delaware (or any corresponding provision or
provisions of any succeeding law).
1.2 "Affiliate" or "affiliate" shall mean any individual,
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partnership, corporation, trust or other entity or association, directly or
indirectly, through one or more intermediaries, controlling, controlled by, or
under common control with a person. The term "control," as used in the
immediately preceding sentence, means, with respect to a corporation or limited
liability company, the right to exercise, directly or indirectly, more than
fifty percent (50.0%) of the voting rights attributable to the controlled
corporation or limited liability company, and, with respect to any individual,
partnership, trust, other entity or association, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled individual or entity.
1.3 "AFMC" shall mean AFMC Inc., a Delaware corporation.
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1.4 "AFMC Agreement" shall mean that certain Contract of Sale between
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LandBank and AFMC dated as of August 12, 1998, for the purchase of the Property.
1.5 "Agreement" or "this Agreement" means the limited liability
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company agreement of the Company as adopted herein and as may be further amended
from time to time as permitted hereunder.
1.6 "AI" shall mean Arsenault Investments LLC, a Colorado limited
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liability company, and its successors in interest.
1.7 "Capital Contribution" shall mean the amount of cash or the
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agreed fair market value of other property contributed to the Company by a
Member and credited to the Member's Capital Account as provided in Article 3
hereof.
1.8 "Cash Flow" shall mean the cash flow of the Company that is
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available for distribution to the Member and which, as to any particular Fiscal
Year or portion thereof, consists of the gross revenues of the Company,
including any Capital Contributions made by a Member to the Company, less (i)
the aggregate amount of all costs paid by the Company during such fiscal period
for the operations of the Company, including, without limitation, payments of
any fees or costs to a Member or its Affiliates as permitted herein, all
payments required under the Loan Documents, and all other operating costs of the
Company, and less (ii) all reserves required to complete the Restoration of the
Properties, and other appropriate reserves for the anticipated costs of the
Company.
1.9 "Certificate" shall mean the Certificate of Formation for the
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Company originally filed with the Delaware Secretary of State and as amended
from time to time.
1.10 "Closing" shall mean the closing of the acquisition of the
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Properties by the Company in accordance with the AFMC Agreement.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended
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from time to time, and the provisions of succeeding law.
1.12 "Company" shall mean Empire State II, LLC, a Delaware limited
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liability company.
1.13 "Fiscal Year" shall mean the Company's fiscal year, which shall
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be the calendar year or, at the option of the Manager, a 52/53 week year.
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1.14 "Insurance Underwriting Fee" shall mean the fee payable to LBEP,
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in the amount provided in Section 5.5.1 hereof.
1.15 "LandBank" shall mean LandBank, Inc., a Delaware corporation,
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and its successors in interest.
1.16 "LandBank Services" shall mean the tasks which LBEP agrees to
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undertake with respect to the Project, which shall include the following: (i)
environmental due diligence prior to purchase of the Property; (ii) real estate
due diligence prior to purchase of the Property; (iii) underwriting and
placement of environmental insurance policies; (iv) development of all plans
required to complete remediation; (v) oversight of cleanup activities; (vi)
preparing a cash flow model and critical path for the Project; (vii) designing
and implementing an exit strategy for each Property; (viii) directing and
managing the sale of the Property; (ix) performing all management and
administrative functions of the Company; and (x) engaging attorneys,
accountants, and other professionals on behalf of the Company as may be
necessary to perform the tasks mentioned in (i) - (ix).
1.17 "LBEP" shall mean LandBank Environmental Properties LLC, a
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Delaware limited liability company, and its successors in interest.
1.18 "Loan" shall mean that certain loan in the original principal
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amount of $2,500,000 made by Arsenault Acquisitions Corporation, a Colorado
corporation, to Northeast.
1.19 "Loan Documents" shall mean the promissory note and all other
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documents evidencing or securing the Loan.
1.20 "Manager" shall mean LBEP or its successor pursuant to Section
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5.6 hereof.
1.21 "Member" shall mean Northeast, and any other person from time to
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time who may be admitted to the Company as a Member in accordance with the
Certificate and this Agreement or is a permitted assignee who has become a
Member in accordance with Article 4, and who has not resigned, withdrawn, been
expelled or, if other than an individual, dissolved.
1.22 "Northeast" shall mean Northeast Restoration Company, LLC, a
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Delaware limited liability company, and its successors in interest.
1.23 "Option Agreement" shall mean that certain Option Agreement
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between Northeast and AI dated November 17, 1998, pursuant to which AI may elect
to become a member of Northeast on the terms set forth therein.
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1.24 "Project" shall mean the Properties and the improvements thereon
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and the personal property used in connection therewith, including all
entitlements related thereto, and the Company's planned remediation and sale of
such real property.
1.25 "Project Budget" shall mean the most recently updated and
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approved Project Budget as provided in Section 5.2 hereof.
1.26 "Property" and "Properties" shall mean each and all of the
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parcels of real property to be acquired by the Company pursuant to the AFMC
Agreement, more particularly described in Exhibit A attached hereto.
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1.27 "Remediation Management Fee" shall mean the fee payable to the
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Manager for the LandBank Services in supervising any and all environmental
remediation on the Property, in the amount provided in Section 5.5.2 hereof.
1.28 "Restoration" shall mean the environmental remediation of the
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Properties, including without limitation, moving and handling of contaminated
soil, and obtaining a "no further action" letter (or its equivalent) from the
applicable governmental agency or agencies exercising environmental jurisdiction
over the Properties.
1.29 "Term" shall have the meaning ascribed to it in Section 2.2
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hereof.
1.30 "Treasury Regulations" shall, unless the context clearly
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indicates otherwise, mean the final or temporary regulations in force at any
moment in time that have been issued by the U.S. Department of Treasury pursuant
to its authority under the Code.
ARTICLE II.
ORGANIZATIONAL MATTERS
2.1 Name. The name of the Company shall be "Empire State II, LLC."
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The Company may conduct business under that name or any other name approved by
the Member.
2.2 Term. The Term of the Company shall commence on the date of
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filing the Company's Certificate with the Delaware Secretary of State and shall
end on August 12, 2028, unless extended or unless sooner terminated pursuant to
this Agreement.
2.3 Office and Agent. The Company shall continuously maintain an
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office and registered agent in the State of Delaware as required by the Act.
The registered agent and registered
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office of the Company shall be: The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, DE 19801 or such other agent or location
as the Manager may deem necessary or desirable.
2.4 Business of the Company. The Company is organized and shall
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operate solely to engage in the following business: (i) to acquire, own, hold
for investment, remediate, restore, finance, manage, sell, lease, dispose of and
otherwise deal with, and realize the economic benefit from, the Project; and
(ii) to engage in any other lawful activities directly related to the foregoing
business as may be necessary or advisable in the reasonable opinion of the
Member to further such business. Such activities shall include specifically the
following: managing the required remediation of each of the Properties; placing
the environmental insurance to manage the liabilities and financial risks
resulting from ownership and cleanup of the Properties; developing an exit
strategy for each Property; and negotiating the sale and selling the Properties.
The Company shall not engage in any other business other than the foregoing
without the consent of the Member, which consent may be granted or withheld in
the Member's sole and absolute discretion and is subject to the consent of AI
under the Option Agreement.
ARTICLE III.
CAPITAL CONTRIBUTIONS
3.1 Capital Contributions. As its initial Capital Contribution to
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the Company, the Member shall contribute (or cause to be transferred to the
Company by an Affiliate) its and its Affiliates' entire right, title and
interest in and to the Properties, including without limitation all rights under
the AFMC Agreement and the deposit made thereunder with respect to the
Properties. The fair market value of such contribution is agreed to be equal to
the amount of the deposit that the Member has paid under the AFMC Agreement with
respect to the Properties. The Member in addition may, but shall not be
required to, contribute to the Company any additional funds needed to complete
the purchase of the Property pursuant to the AFMC Agreement, provided that such
AFMC Agreement is not terminated, and additional funds required for the
operation of the Company, all as shown in the Final Proforma or in the approved
Project Budget.
The Member may make additional Capital Contributions to the Company
from time to time in the Member's sole discretion, but no additional Capital
Contributions are required. Except as otherwise provided herein, all Capital
Contributions shall be paid in cash.
3.2 Withdrawal of Capital Contributions. Subject to any applicable
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limitations in the Act, the Member's Capital Contributions and other sums
advanced on behalf of the Company
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shall be repaid to the Member, in whole or in part, as provided in Article 6
hereof.
ARTICLE IV.
MEMBERS
4.1 Identification. Northeast shall be the sole initial Member of
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the Company. No other person may become a Member except pursuant to a transfer
specifically permitted under and effected in compliance with Section 4.2 of this
Agreement or upon admission of a new Member with the prior written consent of
all of the Members.
4.2 Transfer; Admission of New Members. The Member shall have the
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right at any time and from time to time to transfer all or any part of its
interest in the Company to any person; provided, however, that any new Member
admitted as a Member of the Company and any transferee of a membership interest
shall have the right to become a new or a substitute Member only if: (i) the
instrument creating or transferring such membership interest states that such
person shall be admitted as a Member of the Company; (ii) written consent of the
Member and of AI as required under the Option Agreement is given to the
admission of the new or substitute Member; (iii) such person executes an
instrument satisfactory to the Member accepting and adopting the terms and
provisions of this Agreement; and (iv) such person pays any reasonable expenses
of the Company (including, without limitation, reasonable attorneys' fees and
costs) in connection with its admission as a new Member.
4.3 Member Approval. No annual or regular meetings of the Members
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are required to be held. The approval of any act or other matter by Northeast
shall constitute approval by the Member and by the Company, subject to any
required consent by AI under the Option Agreement.
ARTICLE V.
MANAGER; MANAGEMENT AND CONTROL OF THE COMPANY
5.1 Manager. LBEP shall be the Manager of the Company. As Manager,
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LBEP shall manage the Company on a day-to-day basis and shall provide to the
Company all services not specifically designated in this Agreement to be
provided by another party.
5.2 Management of the Company. The Manager shall prepare such
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budget, financial reports and operating plans for the Company as may be required
for the operation of the Company. The Manager shall, subject to the
availability of operating revenues and other cash flow, carry out the business
plan and the
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Project Budget (hereinafter defined) adopted by the Company and shall supervise
the operations of the Company. The Manager shall have the authority and
responsibility to manage the Company's business. The Manager shall use
reasonable efforts to perform its duties under this Article 5 including, without
limitation, employing necessary personnel, on and off-site, to carry on the
business of the Company. The Manager shall devote itself to the business of the
Company to the extent necessary for the efficient carrying on thereof, without
compensation therefor except as provided herein.
5.2.1 Project Budget. The Manager shall prepare a Project Budget,
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which Project Budget shall provide for revenue and expenses for each phase of
the Company's acquisition, Restoration and disposition of the Project,
containing the items listed in this Section 5.2.1 below. The Manager shall
include in such Project Budget any amounts to be paid to any person (including
without limitation any Member or Affiliate of a Member) in connection with each
phase of the Project. The Project Budget at a minimum shall contain the
following information:
(a) a narrative description of each phase of the acquisition and
Restoration for the Project proposed or expected to be undertaken by the Company
during each Fiscal Year;
(b) a development schedule identifying the projected phases of
Restoration for the Project as well as the times for completion of the various
phases of Restoration of the Project and the expenses attributable to each
phase; and
(c) a schedule of projected Cash Flow and projected uses of funds on
a Fiscal Year-by-Fiscal Year basis, which schedule shall include any required
Capital Contributions needed by the Company and proposed by the Manager.
5.2.2 Budget Updates and Approval. The Manager shall deliver for
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review and approval by the Member and by AI pursuant to the Option Agreement a
master schedule setting forth the most current Project Budget for the current
Fiscal Year and the next Fiscal Year (which shall include a schedule for
completion of the various components of the Project), on or before thirty (30)
days after the Closing. Such Project Budget shall include Cash Flow to the
Company at least equal to the net Cash Flow shown in the Final Proforma.
Thereafter, the Manager shall provide to the Member and to AI within two (2)
weeks after the end of each month monthly historical financial statements on an
accrual basis which shall include balance sheet, income statement and statement
of cash flows. The Manager shall update the Project Budget annually for each
succeeding Fiscal Year. After the first Project Budget, an updated Project
Budget shall be prepared no later than November 30th of each Fiscal Year for the
next succeeding Fiscal Year, if necessary. The Manager shall
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provide a copy of the Project Budget, and each update thereof, to the Member.
The Company shall spend no amount, and shall incur no obligation, which exceeds
the amounts provided in the approved Project Budget, as updated and approved by
the Member (and by AI as required under the Option Agreement); provided,
however, that the Project Budget shall include a Five Percent (5%) contingency,
and expenditures within such contingency amount shall be permitted.
5.3 LandBank Services. The Manager shall perform the LandBank
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Services for the Company as provided herein. The Manager shall not be entitled
to compensation for the LandBank Services rendered to the Company, except as
provided herein. However, the Company shall pay all costs payable to third
parties in connection with such services.
5.4 Insurance.
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5.4.1 Coverage. The Manager shall cause the Company to be added
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as an additional insured on its general liability and errors and omissions
policy, so that the Company is in compliance with (i) all requirements of the
AFMC Agreement as set forth in Exhibit B attached hereto, and (ii) all
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applicable laws, regulations and requirements. The Company in addition may (but
is not required to) obtain Comprehensive Automobile Liability insurance insuring
Company against liability for claims arising out of the ownership, maintenance
or use of any owned, hired or non-owned vehicles; Property insurance appropriate
to cover loss resulting from destruction of or damage to some, but not all, of
the buildings or structures associated with the Project, with coverage based on
the appropriate level of risk of loss to the Company regarding such selected
buildings or structures; and such additional insurance against other risks of
loss to the Project as, from time to time, may be required by any lender making
a loan to the Company or which may be required by law.
5.4.2 Management. All policies of insurance shall be treated, in
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the appropriate part attributable to the Company, as a cost and expense of the
Company. The Manager shall act on behalf of all named insureds under each of the
insurance policies with respect to all matters pertaining to the insurance
afforded by each of such policies, including the giving and receiving of notice
of cancellation, the payment of premiums and the receiving of returned premiums,
if any, and of such dividends as may be declared by any of the insurance
companies issuing any of such policies.
5.4.3 Subcontractor Insurance. The Manager shall require by
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contract that each and every subcontractor and consultant providing services in
connection with the Project shall obtain and maintain insurance, with the
exception of
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property and stop/loss insurance, that the Manager deems appropriate for the
particular type and amount of contract involved. The Manager may include any or
all subcontractors and consultants under the insurance maintained by the Manager
hereunder with adjustment of coverages and increase in limits as applicable.
5.4.4 Modifications to Insurance Requirements. The Manager shall
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review annually the insurance requirements of this Agreement in conjunction with
the Company's insurance broker and obtain increased coverage limits or
additional forms of insurance as are prudent to protect the interests of the
Company and the Members.
5.5 Managers' Fees. In addition to any fees payable to LBEP or any
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Affiliate as may be approved by the Member and by AI as required under the
Option Agreement, the Manager shall receive the following fees for its services
to the Company.
5.5.1 Insurance Underwriting Fee. As part of its services, the
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Manager shall perform environmental underwriting of the insurance for the
Project. At the Closing, the Manager shall be paid an Insurance Underwriting
Fee in the amount of two percent (2%) of the purchase price of the Property.
5.5.2 Remediation Management Fee. As part of its services, the
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Manager shall provide services to the Company in connection with supervising the
Restoration of the Project. The Manager shall be paid a Remediation Management
Fee for such services in the amount of five percent (5%) of any and all costs of
environmental remediation performed on any or all of the Properties; provided,
however, that such Remediation Management Fee payable hereunder shall not exceed
in the aggregate such Remediation Management Fee contained in the approved
Project Budget. Such fee shall be payable on the fifteenth (15th) day of each
month based on the environmental remediation costs incurred in the immediately
preceding month.
5.6 Removal and Election of Manager; Resignation. The Manager may be
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removed by the Member at any time for failure to carry out its duties hereunder;
and the Member at any time may appoint one or more substitute or additional
managers of the Company, subject to the consent of AI as required under the
Option Agreement. The Manager may resign as a manager at any time.
ARTICLE VI.
DISTRIBUTIONS; ALLOCATIONS
6.1 Periodic Distributions by the Company. Subject to applicable law
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and any limitations contained elsewhere in this
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Agreement and to the allocation of a portion of the Company's cash to an
appropriate reserve for unanticipated expenses, the Manager shall cause the
Company (i) to pay or provide for the payment of all of its expenses,
liabilities and obligations as they become due, including without limitation any
fees that are payable to any Member or any Affiliate thereof for its services
hereunder, and any loan payments that are due under the Loan Documents or to any
other lender, and thereafter (ii) to make cash distributions to the Member from
the Cash Flow of the Company. Such cash distributions shall be made quarterly or
more frequently, beginning December 31, 1998. Except as otherwise provided
herein, distributions of Cash Flow to the Member as provided in (ii) above shall
be made to the Member according to the priorities in this Article 6.
6.2 Order of Distributions. After payment of the amounts described
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in Section 6.1 hereof, all distributions of Cash Flow hereunder shall be made to
the Member first to repay its unreturned Capital Contributions, until such
Member has been repaid all of its Capital Contributions, and thereafter to
Northeast as the sole Member of the Company.
6.3 Allocations of Net Profit and Net Loss. All net profits and net
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losses of the Company and all other items of income, deduction, credit or other
items having effect for tax purposes shall be allocated to Northeast as the sole
Member of the Company.
ARTICLE VII.
DISSOLUTION AND WINDING UP
7.1 Conditions of Dissolution. The Company shall dissolve upon the
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occurrence of any of the following events:
7.1.1 Upon the entry of a decree of judicial dissolution;
7.1.2 Upon the vote of the sole Member (provided, however, that
the Member may not vote to voluntarily dissolve the Company while the Option
Agreement remains in effect);
7.1.3 Upon the sale of all or substantially all of the assets of
the Company (which shall be subject to the approval of AI as provided in the
Option Agreement); or
7.1.4 Upon the expiration of the Term (including any extension
thereto, if applicable).
No other event specified in the Act, or otherwise, shall cause the dissolution
of the Company.
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7.2 Winding Up. Upon the dissolution of the Company, the Company's
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assets shall be disposed of and its affairs wound up. The Company shall give
written notice of the commencement of the dissolution to all of its known
creditors.
7.3 Order of Payment of Liabilities Upon Dissolution. After
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determining that all the known debts and liabilities of the Company have been
paid or adequately provided for, all remaining assets of the Company shall be
distributed to the Member in accordance with the provisions of Article 6 hereof.
7.4 Certificates. The Company shall file with the Delaware Secretary
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of State all certificates or other documents required to complete the
dissolution and winding up of the Company's affairs.
ARTICLE VIII.
MISCELLANEOUS
8.1 Bank Accounts. The Manager shall maintain the funds of the
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Company in one or more separate bank accounts in the name of the Company, and
shall not permit the funds of the Company to be commingled in any fashion with
the funds of any other person. The Manager or any person designated by it,
acting alone, is authorized to endorse checks, drafts, and other evidences of
indebtedness made payable to the order of the Company, but only for the purpose
of deposit into the Company's accounts. All checks, drafts and other instruments
obligating the Company to pay money must be signed on behalf of the Company by
an authorized representative of the Manager. All accounts shall be opened at an
office.
8.2 Complete Agreement. Except as expressly contemplated herein,
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this Agreement and the Certificate constitute the complete and exclusive
statement of the operative documents of the Company. To the extent that any
provision of the Certificate conflicts with any provision of this Agreement,
this Agreement shall control.
8.3 Binding Effect. Subject to the provisions of this Agreement
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relating to transferability, this Agreement will be binding upon and inure to
the benefit of the Member, and its successors and assigns.
8.4 Interpretation. All pronouns shall be deemed to refer to the
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masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the interpretation of any
provision of this Agreement. Numbered or lettered Certificate, sections and
subsections herein contained refer to Certificate,
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sections and subsections of this Agreement unless otherwise expressly stated.
8.5 Severability. If any provision of this Agreement or the
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application of such provision to any person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision to
persons or circumstances other than those to which it is held invalid shall not
be affected thereby.
8.6 Notices. Any notice to be given or to be served upon the Company
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or any party hereto in connection with this Agreement must be in writing (which
may include facsimile) and will be deemed to have been given and received when
delivered to the address specified by the party to receive the notice. Such
notices will be given at the address specified in Exhibit C hereto. Any party
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may, at any time by giving five (5) business days' prior written notice to the
Company, designate any other address in substitution of the foregoing address to
which such notice will be given.
8.7 Amendments. No amendment to this Agreement shall be effective
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unless it is in writing and signed by all of the Members. Any such amendment is
subject to the consent of AI as provided in the Option Agreement.
8.8 Multiple Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
8.9 Remedies Cumulative. The remedies under this Agreement are
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cumulative and shall not exclude any other remedies to which any person may be
lawfully entitled.
8.10 Option Agreement. The term of the Option Agreement expires on
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the later of (i) one hundred eighty (180) days after the Closing, or (ii) ninety
(90) days after the payment in full of the Loan. Upon the expiration of the
option term without the exercise of the option by AI, the Option Agreement shall
terminate, and all references herein to any consent required under the Option
Agreement shall be of no further force or effect.
8.11 Indemnification by Company. The Company shall indemnify the
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Member and its Affiliates and may 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 by reason of the fact that he or she or it is or was a
Member, employee or other agent of the Company and was acting in the course of
carrying out the business of the Company pursuant to the Agreement or that,
being or having been such a Member, employee or agent he or she or it is or was
serving at the request of the Company as a manager, employee or other agent of
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise, to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
hereafter from time to time permit, except to the extent that liability is
caused by the gross negligence, wilful misconduct or intentional breach of this
Agreement by the indemnitee, and except to the extent that any such liability or
damage is otherwise compensated by insurance. The foregoing indemnity shall not
apply to any Member or its Affiliate which is providing services to the Company
as a consultant or contractor pursuant to a separate contract with the Company
and which receives compensation therefor (in addition to the fees which are
payable to the Members hereunder), in which case the terms of that contract
shall control any indemnity rights or obligations (if any) of either party
thereto. The Member specifically acknowledges that LandBank, which is an
Affiliate of LBEP, has undertaken certain indemnity obligations under the AFMC
Agreement for certain environmental matters, which obligations are for the
benefit of the Company, and agree that the Company shall indemnify LandBank for
any liability it may incur pursuant to such environmental indemnity, to the
extent provided in the foregoing provisions of this Section 8.11.
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IN WITNESS WHEREOF, the Member and the Manager of the Company have
executed this Agreement, effective as of the date first written above.
Member: NORTHEAST RESTORATION COMPANY, LLC,
a Delaware limited liability company
By: LANDBANK ENVIRONMENTAL PROPERTIES LLC,
a Delaware limited liability company
Its: Managing Member
By: LANDBANK, INC.,
a Delaware corporation
Its: Managing Member
By: /s/ WP Lynott
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Its: President
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Manager: LANDBANK ENVIRONMENTAL PROPERTIES LLC,
a Delaware limited liability company
By: LANDBANK, INC.,
a Delaware corporation
Its: Managing Member
By: /s/ WP Lynott
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Its: President
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EXHIBIT A
LEGAL DESCRIPTION OF PROJECT REAL PROPERTIES
Schedule A
ALL that part of Mile Square Lots No. 59 and 69 North of New York State Route
No. 11-B in the Town of Potsdam, County of St. Lawrence and State of New York
described as follows:
BEGINNING AT A POINT in the center of N.Y.S. Route 11-B at the southwest corner
of lands of Robert Robar (Liber 916, Page 962) this point distant 166.2 feet
southeasterly of the intersection of the center of N.Y.S. Route 11-B with the
centerline of a 32 inch corrugated metal culvert pipe passing under said road
and running;
1) THENCE on a magnetic bearing North 77 degrees 25 minutes 34 seconds West a
distance of 148.50 feet along the center of N.Y.S. Route 11-B to the southeast
corner of lands formerly owned by Dennis Murphy (Liber 154C, Page 1789).
2) THENCE North 12 degrees 25 minutes 30 seconds East a distance of 675.24 feet
long the East line of lands formerly of Murphy and the East line of lands of
Josef and Olga Dutsieviez (Liber 731, Page 548) to an iron pipe found in a fence
line being the South line of lands of Joesf and Olga Dutsieviez (Liber 691, Page
558). This course passes through an iron pipe found 33.0 feet from the road
center.
3) THENCE South 74 degrees 08 minutes 53 seconds East a distance of 147.96 feet
along Dutsieviez to an iron pipe set over an iron pipe found in the West line of
lands of Josef and Olga Dutsieviez (Liber 656, Page 129).
4) THENCE South 12 degrees 21 minutes 20 seconds West a distance of 666.78 feet
along the West line of Dutsieviez and the West line of lands of aforementioned
Robar to the point of BEGINNING.
This course passes through an iron pipe set 44.53 feet from the road center.
Schedule A
ALL that certain plot, piece, or parcel of land, situate, lying, and being in
the Town of Alexandria, County of Jefferson, and State of New York, bounded and
described as follows:
BEGINNING at a point in the centerline of Taylor Road, so called, said point
being North 53 degrees 15 minutes East 155.00 feet and North 75 degrees 55
minutes East 370.70 feet along said center line, from the intersection with the
center line of New York State Route 26, and said point further being South 14
degrees 00 minutes East 24.75 feet from a chiseled cross in rock;
RUNNING THENCE from the point of beginning North 14 degrees 00 minutes West
passing through said cross 565.24 feet to a chiseled cross in rock;
RUNNING THENCE North 18 degrees 39 minutes East 94.28 feet to a chiseled cross
in a 3 foot boulder;
RUNNING THENCE Northeasterly and Southeasterly along the top of a ledge to an
iron pipe, it being South 72 degrees 58 minutes East 215.02 feet from the last
described cross in rock;
RUNNING THENCE South 14 degrees 00 minutes East 24.75 feet to a point on the
center line of Taylor Road;
RUNNING THENCE South 76 degrees 00 minutes West along said center line 235.10
feet to the point and place of BEGINNING.
Schedule A
ALL that certain plot, piece, or parcel of land, situate, lying, and being in
the City of Plattsburgh, County of Clinton, State of New York, and bounded and
described as follows:
BEGINNING at a 3/4" rebar set in the Easterly line of Delaware and Hudson
Railroad Company lands at the assumed Northerly bounds of Boynton Avenue, said
assumed bounds being 33' from said centerlines;
RUNNING THENCE North 03 degrees 16 minutes 52 seconds West 100.00 feet along the
Easterly bounds of said Delaware and Hudson Railroad Company to a 1-l/2" iron
pipe found;
RUNNING THENCE South 84 degrees 37 minutes 32 seconds East 101.15 feet along
lands of Georgia-Pacific Corporation to a 3/4" rebar set alongside the
Southeasterly rail of "Industry Track" siding;
RUNNING THENCE South 03 degrees 16 minutes 52 seconds East 101.37 feet along
lands of Georgia-Pacific Corporation to a 3/4" rebar set in pavement in the
assumed Northerly bounds of said Boynton Avenue, said 3/4" rebar being 33'
Northerly of centerline of said Boynton Avenue and also being North 82 degrees
01 minutes 14 seconds West 55.47 feet from a 3/4" rebar found in the approximate
Westerly bounds of a 24' wide Weed Street (Volume 187, Page 418);
RUNNING THENCE North 83 degrees 51 minutes 43 seconds West 101.37 feet along the
assumed Northerly bounds of Boynton Avenue and point and place of BEGINNING.
Schedule A
ALL that certain plot, piece, or parcel of land, situate, lying, and being in
the Town of Brownville, County of Jefferson and State of New York, bounded and
described as follows:
BEGINNING at a point in the centerline of New York State Route 12E, where the
same is intersected by the East line of lands conveyed to Eugene J. Parker by
deed recorded in the Jefferson County Clerk's Office in Liber 816 of Deeds at
page 343, and the West line of the second parcel in a deed from Trapp Oil
Company, Inc. to The Augsbury Corporation dated September 28, 1977, and recorded
in Liber 885 of Deeds at page 506, said point of beginning further being South
07 degrees 57 minutes West 24.8 feet from an existing iron pipe;
RUNNING THENCE North 07 degrees 57 minutes East passing through said iron pipe,
to and along a fence line, along the dividing line between Parker, on the west,
and The Augsbury Corporation, on the east, 127.70 feet to a point on the
Southwest margin of the lands of former New York Central Railroad Company (Cape
Vincent Branch), said point formerly having been marked by an iron pipe;
RUNNING THENCE South 78 degrees 19 minutes East along said margin 198.3 feet to
its intersection with the west line of lands of Brownville Cemetery Association
(Liber 352, Page 243);
RUNNING THENCE South 06 degrees 42 minutes West along said West line and along
the East line of the aforementioned second parcel conveyed to The Augsbury
Corporation, 139.8 feet to an iron pipe in the South margin of the
aforementioned New York State Route 12E at the intersection of said margin with
the East line of the first parcel in the aforementioned deed to The Augsbury
Corporation and the West line of lands conveyed to June R. McCartin (Liber 932,
page 20);
RUNNING THENCE South 06 degrees 42 minutes West along the division line between
McCartin, on the east, and The Augsbury Corporation, on the west, 321.41 feet to
a point formerly marked by a cross cut in rock;
RUNNING THENCE and continuing on the same bearing South 06 degrees 42 minutes
West 34 feet, plus or minus, to a point on top of the bank of Black River;
RUNNING THENCE Westerly along the top of said bank, as it winds and turns, to
its intersection with the west line of said lands conveyed to The Augsbury
Corporation and the east line of the first mentioned lands conveyed to Eugene J.
Parker (Liber 816, page 343), said point being South 06 degrees 42 minutes West
18 feet, plus or minus, from a point formerly marked by a cross cut in rock;
RUNNING THENCE North 06 degrees 42 minutes East 18 feet, plus or minus, to said
point, it being North 75 degrees 56 minutes West 128.5 feet from the last
described point formerly marked by a cross cut in rock;
RUNNING THENCE and continuing on the same bearing North 06 degrees 42 minutes
East, continuing along the division line between Parker, on the west, and The
Augsbury Corporation, on the east, 332.7 feet to a point in the centerline of
the aforementioned New York State Route 12E that is North 06 degrees 42 minutes
East 25.6 feet from an iron pipe;
RUNNING THENCE North 82 degrees 03 minutes West along said centerline, 72.9 feet
to the point and place of BEGINNING.
2
EXHIBIT B
AFMC INSURANCE REQUIREMENTS
(c) Insurance. As partial security for the indemnification
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obligations provided for hereunder, Purchaser shall obtain from United National
Insurance Company and produce at Closing, and with all premiums fully paid as of
the Closing, insurance policies providing coverages that are substantively
identical to coverages provided in the Remediation Project Insurance Policy in
the form of Exhibit 5 hereto, and the Real Estate Pollution Policy in the form
of Exhibit 6 hereto. In addition, Purchaser shall maintain in effect for the
benefit of itself and Seller an Errors and Omissions insurance policy in the
form of Exhibit 7 hereto. The Remediation Project Insurance Policy shall cover
all of the Premises. A Real Estate Pollution Policy shall be issued for each of
the Properties except that a single policy shall be issued for Alexandria Bay,
Saranac Lake, Boynton Avenue, Pottsdam, Brownville and Winchester, collectively.
For each of the foregoing Properties, a separate Real Estate Pollution Policy
may later be issued based on future buyer interest. The Remediation Project
Insurance Policy shall remain in effect until all Remedial Action has been
completed. The Real Estate Pollution Policies shall have a one (1) year term,
with nine (9) years of extended reporting coverage. These policies can be
renewed annually by Purchaser or future owners which would provide a continuing
ten (10) year window of coverage. The Errors and Omissions policy shall be
renewed annually to remain in effect for ten (10) years from the Closing Date.
Such policies of insurance shall:
(i) be non-cancelable by the insurer, and shall be freely transferable
by the insured (except that any transferee shall not be permitted to introduce
new or additional Hazardous Materials to the Premises).
(ii) include Seller and its directors, officers, employees, agents and
shareholders as insureds and shall specifically refer to and provide coverage
for, Purchaser's Environmental Obligations set forth in this Section 20.
(iii) provide for minimum policy limits as set forth in Exhibit 8,
annexed hereto.
Environmental Liabilities assumed by Purchaser shall also include
liability for any unknown Environmental Condition.
This Section 20 and Purchaser's obligations hereunder shall survive
Closing, and solely as to the conduct of Purchaser's due diligence activities,
any earlier termination of this Contract.
EXHIBIT C
ADDRESSES FOR NOTICES
Company: EMPIRE STATE II, LLC
12345 W. Alameda Parkway
Suite 208
Lakewood, CO 80225
Attention: William P. Lynott
FAX No.: (303) 763-5700
LBEP: LANDBANK ENVIRONMENTAL PROPERTIES LLC
12345 W. Alameda Parkway
Suite 208
Lakewood, CO 80225
Attention: William P. Lynott
FAX No.: (303) 763-5700
with copies to IT CORPORATION
2790 Mosside Blvd.
Monroeville, PA 15146-2792
Attention: James Redwine, Esq.
FAX No.: (412) 858-3997
and Tuttle & Taylor,
A Law Corporation
40th Floor
355 South Grand Avenue
Los Angeles, CA 90071-3102
Attention: Thomas I. Dupuis, Esq.
FAX No.: (213) 683-0225