Exhibit 3.38
AMENDED AND RESTATED OPERATING AGREEMENT
OF
GALLUP TRANSPORTATION AND TRANSLOADING COMPANY, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement") to be
effective as of March 11, 2003 is made by and among Gallup Transportation and
Transloading Company, LLC (the "Company") and AMFIRE, LLC ("AMFIRE"). AMFIRE is
referred to as the "Member".
RECITALS
WHEREAS, the Company was formed on January 31, 1997 by executing and
filing Articles of Organization with the New Mexico Office of The State
Corporation Commission; and
WHEREAS, the former members of the Company entered into an Operating
Agreement effective December 31, 2002 (the "Old Operating Agreement");
WHEREAS, on the date hereof, AMFIRE acquired all of the Percentage
Interest of the Company and AMFIRE now desires to amend and restate the Old
Operating Agreement by entering into this Amended and Restated Operating
Agreement (the "New Operating Agreement");
NOW, THEREFORE, in consideration of the mutual promises, agreements and
obligations set forth herein, the Company and the Members agree to be governed
by the provisions set forth herein.
AGREEMENT
Section 1 Rescission of Old Operating Agreement. The Old Operating
Agreement hereby is rescinded and replaced by this New Operating Agreement. Any
matters not addressed in this New Operating Agreement will be governed by the
New Mexico Limited Liability Company Act (the "Act").
Section 2 Purpose. The Company is organized for the purpose of
transporting coal and other products by truck, and to sublease interests in
other assets.
Section 3 Management by Managers. The business and affairs of the Company
shall be managed by a Board of Managers.
Section 4 Officers.
(a) The company shall have the following Officers:
(i) A president, who shall have overall supervision of Company
operations pursuant to an established Program and Budget and
who shall perform such other duties as may be delegated to him
by the Board of Managers. The Company's president shall be
Trent Peterson.
(ii) A vice president, sales and administration, who shall perform
such duties as may be delegated to him by the president or
Board of Managers.
(iii) A secretary, who shall keep minutes of meetings of the Board
of Managers, act as custodian of Company records and perform
such other duties as may be delegated to him by the president
or the Board of Managers. The Secretary shall at the direction
of the Board of Managers have an assistant to serve as
Assistant Secretary.
(iv) A treasurer, who shall maintain the Company's book of account,
perform the other duties specified in this Operation Agreement
and perform such other duties as may be delegated to him by
the president or the Board of Managers.
(b) The Board of Managers may add or eliminate Officer positions at any
time. Persons designated as Officers shall serve for the terms established by
the Board of Managers or unless they sooner resign pursuant to Section 5.
Section 5 Resignation of Officers. Any Officer may resign at any time by
giving notice to the other Officers and to the Board of Managers. The
resignation of any Officer will take effect upon receipt of notice thereof or at
such later time as will be specified in such notice. Unless otherwise provided
herein, the acceptance of such resignation will not be necessary to make it
effective.
Section 6 Indemnification of Members, Managers, Officers, Employees and
Other Agents. The Company will indemnify, defend and hold harmless each Member,
Manager, officer or employee from and against any claim by any third party
seeking monetary damages against such Member, Manager, officer or employee
arising out of such Member's, Manager's, officer's or employee's performance of
his duties in good faith in accordance with Section 53-19-18 of the Act
without prejudice to the claim against such Member, Manager, officer or employee
by the Company in case such monetary damage is caused by the gross negligence or
willful misconduct of such Member, Manager, officer or employee. The Company
will purchase and maintain insurance on behalf of any person who is or was a
Member, Manager or officer of the Company against any liability asserted against
or incurred by such person in any such capacity or arising out of such person's
status as such, whether or not the Company would have the power to indemnify
such person against such liability or each Member would have the power to
indemnify the Company against any claim under this Section. Any indemnification
under this Section 6 shall be recoverable only out of the assets of the Company
and not from the Members.
Section 7 Percentage Interests. The term "Percentage Interests" means 100%
as to AMFIRE.
Section 8 Capital Accounts. An individual capital account shall be
maintained for each Member. The capital account of each Holder shall be
maintained and determined in accordance with the capital account maintenance
rules of Treasury Regulation Section 1.704 1(b)(2)(iv).
Section 9 Allocations. All Company receipts and expenditures, and all
items of income, deduction, credit, gain and loss arising therefrom, shall be
allocated to the Members in accordance with their respective Percentage
Interests. Any and all distributions shall be made to Members in accordance with
their respective Percentage Interests. No person shall be entitled to receive
property or assets other than cash hereunder unless the Company elects to
distribute any Company property in kind.
Section 10 Transfer of Interests. A Member may sell, exchange, encumber,
transfer or otherwise assign its Percentage Interest, either to a third party or
back to the Company as part of its withdrawal; provided, however, that the
selling or withdrawing Member must obtain the consent of all Members to the
proposed action.
Section 11 Dissolution. The Company shall be dissolved only upon the
occurrence of the written agreement of all Members. The withdrawal of any Member
shall not result in dissolution unless all remaining Members agree to dissolve.
Section 12 Execution in Counterparts. This Agreement may be executed in
several counterparts, and as executed shall constitute one original agreement,
binding on all the parties hereto.
Section 13 Governing Law. All questions with respect to the construction
of this Agreement and the rights and liabilities of the parties shall be
determined in accordance with the applicable provisions of the laws of the State
of New Mexico.
Section 14 Binding Effect. This Agreement shall be binding upon, and shall
inure to the benefit of, all of the parties and their assigns, successors in
interest, personal representatives, estates, heirs, legatees or successors. The
parties have executed this Agreement, to be effective to govern the Company, as
of the date first set forth above.
Gallup Transportation and Transloading Company, LLC
by its Board of Managers
MEMBERS:
AMFIRE, LLC
By: /s/ Peter V. Merrits
Name: Peter V. Merritts
Title: President and Manager