AMENDED AND RESTATED OPERATING AGREEMENT OF ORION ETHANOL, LLC
AMENDED
AND RESTATED
OF
ORION
ETHANOL, LLC
THIS
AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) of Orion
Ethanol, LLC, a Kansas limited liability company (the “Company”), is executed on
August 28, 2006 (the “Effective Date”), is adopted, executed and agreed to, by
RTO Holdings, Inc., a Nevada corporation, as the sole member of the Company
(the
“Member”).
W
I T N E S S E T H :
WHEREAS,
the Company was organized on April 12, 2006;
WHEREAS,
the Operating Agreement of the Company was executed effective on August 15,
2006
(the “Existing Agreement”);
WHEREAS,
the Company and its members (the “Former Members”) entered into a securities
exchange agreement on August 28, 2006 pursuant to which the Member acquired
all
the issued and outstanding membership units of the Company in exchange for
shares of common stock of the Member which were issued to the Former Members;
the consummation of which resulted in the Member becoming the sole member of
the
Company; and
WHEREAS,
the Member is currently the sole Member of the Company, the Member deems it
advisable to amend and restate the Existing Agreement of the Company in its
entirety as set forth herein to reflect the change of the Company from a
multi-member limited liability company to a single member limited liability
company.
AGREEMENTS
For
in
consideration of the premises, the covenants and agreements set forth herein
and
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the Member hereby amends and restates the Existing
Agreement in is entirety as follows:
ARTICLE
I.
Formation,
Name, and Principal Office
1.1 Formation
and Name.
The
Member hereby organizes the Company pursuant to the Act. The business of the
Company may be conducted under such trade or fictitious names as the Member
may
determine. Except as otherwise expressly provided in the Company’s Articles of
Organization or this Agreement, the rights and obligations of the Member with
respect to the Company will be governed by the Act.
1.2 Principal
Office.
The
principal office of the Company is located ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇. The Company may have other offices, inside or outside the State of Kansas
as the Manager may designate.
1.3 Registered
Office; Registered Agent.
The
registered office of the Company in the State of Kansas is located at ▇▇▇▇
▇.
▇▇▇▇▇ ▇▇., ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
The
registered agent of the Company for service of process at that address is ▇▇▇▇▇▇
▇▇▇▇▇.
ARTICLE
II.
Purposes
and Powers
The
Company has been organized to carry on any lawful business, purpose or activity
for which a limited liability company may be organized under the Act. The
Company possesses and may exercise all the powers and privileges granted by
the
Act or any other law or by this Agreement, together with any powers incidental
thereto including such powers and privileges as are necessary or convenient
to
the conduct, promotion or attainment of the businesses, purposes or
activities.
ARTICLE
III.
Term
The
term
(the “Term”)
of the
Company shall begin upon the filing of the Articles of Organization with the
Secretary of State of the State of Kansas and shall be of unlimited duration,
unless earlier terminated as provided in Article X below.
ARTICLE
IV.
Capital
Contributions and Capital Accounts
4.1 Initial
Capital Contribution.
As its
initial capital contribution, the Member shall contribute One Hundred Dollars
($100) dollars (the “Initial
Capital Contribution”).
4.2 Additional
Contributions.
The
Member shall have no obligation to contribute additional capital or make any
loan to the Company in addition to its Initial Capital Contribution. However,
the Member may, from time to time and at its option, make voluntary additional
capital contributions or loans to the Company.
4.3 Capital
Accounts.
(a) The
Company will maintain a capital account (the “Capital
Account”)
for
the Member. The Member’s Capital Account shall reflect its Initial Capital
Contribution and any additional capital contributions and increases for the
Member’s share of any net income or gain of the Company, and decreases for
distributions made to the Member and the Member’s share of any losses and
deductions of the Company.
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(b) The
Member’s Capital Account shall be the Member’s Initial Capital Contribution, and
will be increased by (i) any voluntary additional capital contributions made
by
the Member and (ii) the share of the net income of the Company allocated to
the
Member’s Capital Account.
(c) The
Member’s Capital Account shall be decreased by (i) the amount of all
distributions to the Member and (ii) the share of the net losses of the Company
allocated to the Member’s Capital Account.
(d) The
manner in which the Capital Accounts are to be maintained pursuant to this
Agreement is intended to comply with the requirements of Section 704(b) of
the
Internal Revenue Code of 1986 as amended (the “Code”),
and
the regulations thereunder. It is the specific intent of the Member that all
adjustments as may be required pursuant to said Section 704, and any regulations
thereunder be made, so as to cause the allocations prescribed hereunder to
be
respected for tax purposes.
4.4 Fiscal
Year; Books and Records.
The
fiscal year of the Company shall be a calendar year. The books and records
of
the Company shall be maintained in accordance with generally accepted accounting
principles and Section 704(b) of the Code and the regulations
thereunder.
ARTICLE
V.
Profits,
Losses, and Distributions
5.1 Allocations.
All
items of Company income, gain, loss, deduction, credit, or the like shall be
allocated to the Member. Net income or net losses shall be allocated to the
Member’s Capital Account as soon as practicable after the close of each fiscal
year of the Company and at such other times as are considered necessary by
the
Manager.
5.2 Distributions.
To the
extent that net cash flow of the Company is available therefor, the Company
may
make distributions of cash or other assets to the Member from time to time
as
determined by the Manager.
5.3 Tax
Status.
At all
times the Company has only one member (who owns 100% of the Company’s limited
liability company interests), it is the intention of the Member that the Company
be disregarded for federal, state, local and foreign income tax purposes.
ARTICLE
VI.
Management
6.1 Manager.
RTO
Holding, the sole Member, shall serve as the sole manager of the Company (the
“Manager”),
and
shall manage the Company in accordance with this Agreement and the Act,
commencing on the date hereof. The Member may appoint a co-Manager to serve
with
all powers of a Manager. The Manager may, but need not, be a member of the
Company.
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6.2 Powers
of the Manager; Attorneys-in-Fact.
Except
for instances in which the vote, consent, or approval of the Member is expressly
required by the Act or this Agreement, the Manager shall have full, complete,
and exclusive authority, power, and discretion to manage and control the
business, property and affairs of the Company, to make all decisions regarding
those matters and to perform any and all other acts and activities customary
or
incident to the management of the Company’s business, properties and affairs.
The Manager shall be the sole person with the power to bind the Company, except
and to the extent that such power is expressly delegated to any other person
or
entity by the Manager, and such delegation shall not cause the Manager to cease
to be the Manager or the Member. Without limitation, the Manager may, at its
discretion, cause the Company to (i) to retain an investment manager or
financial advisor to manage the Company’s funds, (ii) to invest the Company’s
funds in a limited partnership, (iii) to maintain accounts with one or more
banks or other financial institutions, (iv) to open, maintain and close bank
or
trust accounts and to draw checks and other orders for the payment of money
thereon, and (v) to open, maintain and close accounts with brokerage
firms.
Notwithstanding the foregoing, the Manager, in its capacity as Manager, may
not,
without the consent of the Member, (i) do any act in contravention of this
Agreement, (ii) do any act which would make it impossible to carry on the
ordinary business of the Company, (iii) confess a judgment against the Company,
or (iv) possess property of the Company or assign the rights of the Company
in
specific property for other than a Company-related purpose.
6.3 Resignation.
The
Manager may resign at any time by giving written notice to the Company. Upon
the
resignation, of the Manager, the Member shall appoint a successor Manager who
will succeed to all of the rights and obligations of the Manager
hereunder.
6.4 Fees
and Expenses.
The
Manager shall not receive any compensation in its capacity as Manager of the
Company. However, the Manager shall be reimbursed for expenses incurred in
the
ordinary course of the management of the Company.
6.5 Reliance
by Third Parties.
Any
person or entity dealing with the Company or the Manager or the Member may
rely
upon a certificate signed by the Manager as to:
(i) the
identity of the Manager or the Member;
(ii) the
existence or non-existence of any fact or facts that constitute a
condition precedent to acts by the Manager or the Member or are in any other
manner germane to the affairs of the Company.
(iii) the
persons who or entities that are authorized to execute and deliver any
instrument or document of or on behalf of the Company; or
(iv) any
act
or failure to act by the Company or as to any other matter whatsoever involving
the Company or the Member.
6.6 Indemnification.
(a) The
Company shall indemnify, defend and hold harmless the Manager and the Member
from and against any and all loss, liability, damage, cost, or expense,
including reasonable attorneys’ fees, suffered or incurred in defense of any
demands, claims or lawsuits against the Manager or the Member in or as a result
of or relating to its capacity, actions, or omissions as the Manager or Member
of the Company, or concerning the Company or any activities undertaken on behalf
of the Company; provided that the acts or omissions of the Manager or the Member
are not found by a court of competent jurisdiction upon entry of a final
judgment to have been the result of fraud, gross negligence, or willful
misconduct or to have violated such lesser standard of conduct or public policy
as under applicable law prevents indemnification hereunder.
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(b) Each
of
the Manager and the Member shall be entitled to receive, upon request therefor,
to the extent that funds are available to the Company, advances to cover the
costs of defending any claim or action against it; provided, however, that
it
undertakes to repay such advances to the Company, with interest, if it is found
by a court of competent jurisdiction upon entry of a final judgment to have
violated the standards for indemnification set forth in Section 6.5(a)
above.
6.7 Exculpation.
(a) The
Member, whether acting as Member, in its capacity as Manager (if applicable),
or
in any other capacity, shall not be liable to the Company for any loss, damage
or claim incurred by reason of any act or omission (whether or not constituting
negligence or gross negligence) performed or omitted by the Member in good
faith.
(b) The
Member, whether acting as Member, in its capacity as Manager, shall be fully
protected in relying good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the Company by any
person or entity as to matters the Member reasonably believes are within the
professional or expert competence of such person or entity and who or which
has
been selected with reasonable care by or on behalf of the company, including
information, opinion, reports or statement as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent to the
existence, investment, and amount of assets from which distributions to the
Member might properly be paid.
ARTICLE
VII.
Admission
of New Members
7.1 Admission
of New Members.
No
person may become a member of the Company unless and until he, she, or it has
been approved in writing by the Member and has executed and delivered to the
Company and copy of this Agreement. Upon such admission, this Agreement shall
be
amended to reflect the relationship between the then members to reflect the
fact
that the Company has more than one member and to provide for the relationships
among the Members and the Company.
7.2 Withdrawal.
No
Member has the right or power to withdraw from the Company. Any withdrawal
in
violation of this Section will entitle the Company to damages for
breach.
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ARTICLE
VIII.
Assignment
of Membership Interests
8.1 Assignment.
The
Member may transfer, assign or pledge its interest (the “Membership
Interest”)
in the
Company in whole or in part. A Membership Interest consists of the Member’s
share of the profits and losses of the Company and the Member’s right to receive
distributions of Company assets. The assignment of a Membership Interest does
not in and of itself entitle the assignee to become a Member. The assignee
will
only become an assignee of a Membership Interest and not a substitute
Member.
8.2 Substitute
Members.
An
assignee of a Membership Interest will be admitted as a substitute Member and
will be entitled to all the rights and powers of the assignor only if the Member
consents thereto. If admitted, the substitute Member has, to the extent
assigned, all of the rights and powers, and is subject to all of the
restrictions and liabilities, of a Member, as provided for in Section
7.1.
ARTICLE
IX.
Voting;
Meetings
9.1 Voting.
Except
to the extent provided to the contrary in this Agreement, the Member will be
entitled to all of the voting rights provided in the Act.
9.2 Meetings.
Special
meetings of the Member for any proper purpose or purposes may be called at
any
time by the Manager or by the Member. The Company shall not be required to
hold
regular or annual meetings of the Member.
9.3 Notice
of Meetings.
The
Company will deliver notice stating the date, time, place, and purposes of
any
meeting to the Member entitled to vote at the meeting. Notice will be given
not
less than 10 or more than 90 days before the date of the meeting, provided
that
the notice may be waived.
9.4 Quorum.
Except
as otherwise provided by the Act or the Articles of Organization, the presence
of the Member, will constitute a quorum at all meetings of the Members for
the
transaction of business.
9.5 Action
by Written Consent.
Any
action required or permitted to be taken at a meeting of the Member may be
taken
without a meeting if a consent in writing, setting forth the action so taken,
are signed by the Member.
9.6 Proxies.
The
Member may appoint a proxy to vote or otherwise act for the Member by signing
an
appointment instrument, either personally or by the Member’s attorney-in-fact.
Proxies may be appointed by telephonic or electronic transmission.
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ARTICLE
X.
Dissolution
10.1 Dissolution.
The
Company will be dissolved and have its affairs wound up and terminated upon
the
determination of the Members to dissolve the Company, or upon the occurrence
of
the first to occur of (i) the written consent of the Member, (ii) the death
or
permanent disability of the Member, (iii) the entry of judicial dissolution
under Section 17-76, 117 of the Act or (iv) any other event causing a
dissolution of the Company under Section 17-76, 116 of the Act.
10.2 Winding
Up.
Upon
dissolution, the Company will cease carrying on its business and affairs and
will commence the winding up of the Company’s business and affairs and complete
the winding up as soon as practicable. Upon the winding up of the Company,
the
assets of the Company will be distributed as follows: (i) first, to pay all
expenses of liquidation and winding up; (ii) second, to pay all debts,
obligations, and liabilities of the Company in the order of priority provided
by
law, other than liabilities owing to the Member or its successor in respect
of
distributions pursuant to Section 17-76, 119 of the Act; (iii) third, to pay
all
debts of the Company owing to the Manager or its successor in respect of
distributions pursuant to Section 17-76, 119 of the Act; and (iv) fourth, to
the
Member or its succcessor.
ARTICLE
XI.
Miscellaneous
Provisions
11.1 Entire
Agreement.
This
Agreement contains the entire agreement and understanding of the Member with
respect to the subject matter within. This Agreement supersedes any and all
other agreements, either oral or written, by the Member with respect to the
subject matter within.
11.2 Severability.
Every
provision of this Agreement is intended to be severable. The invalidity or
illegality of any particular provision of this Agreement will not affect the
other provisions, and this Agreement will be construed in all respects as if
such invalid or illegal provisions were omitted.
11.3 Amendment.
This
Agreement may be amended or revoked at any time by a written instrument signed
by the Member.
11.4 Governing
Law.
This
Agreement will be governed by, construed, and enforced in accordance with the
laws of the State of Kansas, without regard to the rules of
conflicts.
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IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the
date
and year first above written.
|
RTO
HOLDINGS, INC.
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
Address of Member:
▇▇▇
▇.
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
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