EXHIBIT 3.30
EXECUTION COPY
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LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
COMMERCIAL AGGREGATES TRANSPORTATION AND SALES, LLC
DATED AS OF SEPTEMBER 30, 1999
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LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of
COMMERCIAL AGGREGATES TRANSPORTATION AND SALES, LLC
This Limited Liability Company Operating Agreement (the "Agreement"),
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dated as of September 30, 1999 is entered into solely by Stone Materials
Company, LLC (the "Member").
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WHEREAS, a certificate of formation of Commercial Aggregates
Transportation and Sales, LLC (the "Company") has been filed by an authorized
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person with the Office of the Secretary of State of Delaware, causing the
formation of a limited liability company in accordance with the Delaware Limited
Liability Company Act (6 Del. C. (S)18-101 et seq.) (hereinafter referred to as
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the "Act"), and the Member intends by the execution hereof to become the sole
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Member thereof as of the date of such execution; and
WHEREAS, the Member desires to provide for the operation and
management of the Company for the purposes stated herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the Member hereby agrees as follows:
ARTICLE I
FORMATION OF THE COMPANY
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Section 1.01 Formation. The Member acknowledges that the certificate
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of formation for the Company has been filed, with the Office of the Secretary of
State of Delaware on September 27, 1999. The Member agrees to be bound by and
comply with the provisions thereof and hereof.
Section 1.02 Registered Office. The registered office in the State of
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Delaware shall be: 9 East Loockerman Street, Dover, DE 19901.
Section 1.03 Registered Agent. The registered agent of the Company in
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the State of Delaware shall be National Registered Agents, Inc.
Section 1.04 Purpose and Character of Business. The general purpose
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of the Company is to engage in any lawful act or activity for which limited
liability companies may be organized under the Act.
Section 1.05 Duration.
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The Company shall continue in existence until it is dissolved pursuant
to Section 8.1.
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Section 1.06 Filings, Reports and Formalities. The Member shall cause the
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Company to make all filings and to submit all reports required to be filed or
submitted under the Act with respect to the Company, and shall cause the Company
to make such filings or take such other actions required under the laws of any
jurisdiction where the Company conducts business. Throughout the term of the
Company, the Company shall comply with all requirements necessary to maintain
the limited liability status of the Company and the limited liability of the
Member under the laws of the State of Delaware and of each other jurisdiction in
which the Company does business.
ARTICLE II
CAPITAL CONTRIBUTIONS
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Section 2.01 Initial Capital Contribution. The Member will make an initial
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Capital Contribution of $1,000, payable simultaneously with the execution
hereof. The Member's acquisition of its Membership Units in the Company shall be
effective upon the payment in full in cash of such initial Capital Contribution.
"Membership Units" or "Units" means the Member's aggregate rights in the
Company, including, without limitation, the Member's right to a share of the
profits and losses of the Company, the Member's right to receive distributions
from the Company and the right to vote and participate in the management of the
Company. Membership Units shall be represented by a certificate.
Section 2.02 Article 8 Election. All Membership Units shall be governed by
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and determined to be a security under Article 8 of the Uniform Commercial Code
as adopted in the State of Delaware and in the State of New York.
Section 2.03 Return of Contributions. No interest shall accrue on any
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contributions to the capital of the Company. The Member shall not have the right
to withdraw or to be repaid any Capital Contribution made by the Member except
as otherwise provided herein or in the Act.
Section 2.04 Liability of Member. The Member shall not be personally
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liable for the debts, obligations or liabilities of the Company solely by reason
of being the Member of the Company. Notwithstanding any provision herein to the
contrary, in no event shall the liability of the Member for the debts,
obligations or liabilities of the Company exceed the Member's Capital
Contribution.
(b) The Member's Units in the Company shall be personal property for all
purposes. All property owned by the Company shall be deemed to be owned by the
Company as an entity and the Member shall not be deemed to own any such property
or any portion thereof.
(c) The Company shall defend, indemnify and hold harmless the Member and
its directors, officers, members, managers, employees and representatives and
its successors, assigns and affiliates from and against any and all losses,
claims, expenses or damages suffered or sustained by any of them (including, but
not limited to, any judgment, award, settlement, reasonable
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attorney's fees and other costs or expenses incurred in connection with the
investigation and defense or prosecution of any actual or threatened action,
proceeding or claim) (1) related to, or arising out of, any claim that the
Member is liable for any debt, obligation or liability of the Company or is
directly or indirectly required to make any payments in respect thereof or in
connection therewith, and (2) by reason of any act, omission, or alleged act or
omission, arising out of the Member's activities or alleged activities on behalf
of the Company or in furtherance of the interests of the Company; provided,
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however, that this Section 2.04(c) shall be of no force or effect if the act,
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omission, or alleged act or omission upon which such actual or threatened
action, proceeding or claim is based was performed or omitted as a result of
willful misconduct or a knowing and material breach of this Agreement by the
Member.
(d) The Company shall pay in advance any legal or other expenses
incurred in investigating or defending against any loss, claim, expense or
damage that may be subject to indemnification under Section 2.04(c) hereof, upon
receipt of an undertaking from the person on whose behalf such expenses are paid
to repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Company. The Company may purchase
insurance, to the extent available at reasonable cost, to cover losses, claims,
expenses or damages subject to indemnification under Section 2.04(c) hereof.
ARTICLE III
MANAGEMENT OF THE COMPANY
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Section 3.01 Management by the Member. The Member, exclusively in its
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capacity as such, shall manage the business of the Company.
Section 3.02 The Member Has No Exclusive Duty to the Company. This
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Agreement shall not prohibit the Member from having other business interests and
engaging in other activities in addition to those relating to the Company. The
Company shall not have any right, by virtue of this Agreement, to share or
participate in such other activities of the Member or to the income or proceeds
derived therefrom. The Member shall not incur any liability to the Company as a
result of engaging in any other business or venture.
ARTICLE IV
TAX TREATMENT
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Section 4.01 Tax Treatment. The Member intends that, for tax
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purposes, the Company will be treated as a disregarded entity and not as a
partnership.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
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Section 5.01 Allocation of Profits and Losses.
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For each fiscal year (or portion thereof), all items of income, gain,
loss and deduction of the Company shall be allocated to the Member.
Section 5.02 Distributions of Cash Flow. Except as provided in
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Section 8.02 hereof, cash flow, the availability of which shall be determined by
the Member, shall be distributed to the Member, at such times and in such
amounts as the Member shall determine.
Section 5.03 Net Proceeds Upon Liquidation. Upon the liquidation of
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the Company, after payment of, or adequate provision for, the debts and
obligations of the Company, the remaining assets of the Company shall be
distributed to the Member.
ARTICLE VI
INSPECTION, RECORDS, CONFIDENTIALITY
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Section 6.01 Access to Properties. The Member, and each of its duly
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authorized employees and representatives, at the Member's own risk and expense,
and subject to the provisions of any third party management agreement, shall at
all reasonable times have access to all Company assets, activities, operations
and records.
Section 6.02 Books of Account. Books of account shall at all times be
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open to inspection, audit and copying by the Member or its duly authorized
representative.
Section 6.03 Confidentiality. All such records and accounts including
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reports shall be treated as confidential and the Member shall take or cause to
be taken such reasonable precautions as may be necessary to prevent the
disclosure thereof to any unauthorized Person, firm or corporation for a period
ending two (2) years following the termination of the Company.
ARTICLE VII
TRANSFER
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Section 7.01 Transfer. The Member may sell, transfer, pledge, make a gift
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of, or otherwise dispose of or assign all of its Membership Units in the
Company. Upon a sale, transfer, pledge, gift, disposal or assignment, the
transferee thereof shall become a Member of the Company; provided that, if the
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Membership Units are pledged, or otherwise assigned as a security interest, the
transferee shall become a Member of the Company only in the manner and to the
extent expressly provided in the agreement effecting such pledge or assignment
or by operation of law.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION
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Section 8.01 Events of Dissolution. The Company shall be dissolved,
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and its affairs shall be wound up, upon the first to occur of the following:
(a) the date that the Member consents to its dissolution;
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(b) the sale, exchange, involuntary conversion, or other disposition
or transfer of all or substantially all of the assets of the Company;
(c) the dissolution, bankruptcy or withdrawal of the Member; and
(d) the entry of a decree of judicial dissolution under the Act.
Section 8.02 Procedures Upon Dissolution. Upon dissolution of the
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Company, the Member shall wind up the affairs of the Company, sell its assets to
the extent necessary to pay its liabilities, and after payment of all
liabilities of the Company (including liabilities to the Member or Affiliate of
the Member, if it is a creditor), shall distribute the remaining assets of the
Company in accordance with Sections 5.02 and 5.03 hereof. Any distribution made
pursuant to this Section 8.02 shall be made within a reasonable time period.
Section 8.03 Termination. Upon the dissolution and the completion of
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winding up of the Company, the Member shall file a certificate of cancellation
with the Office of the Secretary of State of the State of Delaware in accordance
with the Act.
ARTICLE IX
MISCELLANEOUS
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Section 9.01 Partial Invalidity. In case any one or more of the
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covenants, agreements, or provisions hereof shall be invalid, illegal, or
unenforceable in any respect, the validity of the remaining covenants,
agreements, or provisions hereof shall be in no way affected, prejudiced, or
disturbed thereby.
Section 9.02 Notices. All notices or other communications required or
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permitted to be given hereunder shall be in writing, shall be given by mail,
return receipt requested, postage prepaid, prepaid telegram with confirmation of
delivery obtained, nationally recognized overnight delivery service, telecopy
with evidence of transmission, or personally delivered with confirmation of
delivery obtained, to the address of such Person as set forth in the records of
the Company.
Section 9.03 Amendment. This Agreement may be modified or amended at
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any time only upon the consent of the Member, which shall be evidenced by the
Member executing a writing effecting such amendment.
Section 9.04 No Waiver. The failure of the Member to insist upon
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strict performance of any provision hereof shall not constitute a waiver of, or
estoppel against asserting, the right to require such performance in the future,
nor shall a waiver or estoppel in any one instance constitute a waiver or
estoppel with respect to a later breach of a similar nature or otherwise.
Section 9.05 Binding Effect; Assignment. This Agreement shall be
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binding upon and inure to the benefit of the Company and the Member and the
Member's permitted transferees.
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Section 9.06 Choice of Law. The rights and duties of the Member and
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the Company under this Agreement shall be governed by the law of the State of
Delaware.
Section 9.07 Entire Agreement.
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This Agreement constitutes the entire agreement with respect to the
subject matter contained herein and supersedes all other prior understandings or
agreements, both written and oral, with respect to the matters contained herein.
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IN WITNESS WHEREOF, the Member has executed this Agreement with effect
on the date set forth in the first paragraph hereof.
MEMBER:
STONE MATERIALS COMPANY, LLC
By: Better Minerals & Aggregates Company,
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as Manager
By: /s/ John A. Ulizio
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Name:
Title:
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