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Home My WebLink About20201504.tiffDEPARTMENT OF PLANNING SERVICES 1555 N 17th Ave, Greeley, CO 80631 Phone (970) 400-6100 Fax (970) 304-6498 USE BY SPECIAL REVIEW (MINING OPERATION) APPLICATION FOR PLANNING DEPARTMENT USE DATE RECEIVED RECEIPT # /AMOUNT # /$ CASE # ASSIGNED APPLICATION RECEIVED BY PLANNER ASSIGNED To be completed by APPLICANT is accordance with procedural guide requirements 1 I (we), the undersigned, hereby request a hearing before the Weld County Planning Commission concerning a proposed topsoil salvage (gravel, coal, borrow pit, etc ) mining operation for the following descnbed unincorporated area of Weld County Legal Description Northwest quarter Flood Plain N/A Zone District A AG , Section 35 , Township 2 North, Range 63 West , Total Acreage 160 , Overlay District Geological Hazard N/A , Airport Overlay District 2 Surface owner(s) of area of land descnbed Name Richard and Patricia Huwa Name N/A Address Address 3 Owner(s) of mineral rights or substance to be mined Name Richard and Patricia Huwa Address Name Address 4 Applicant's name Arnolds Custom Seeding, LLC Address 4626 WCR 65, Keenesburg, CO 80643 N/A 34216 County Road 16 Keenesburg CO 80643 303-732-4808 Phone 34216 County Road 16 Keenesburg CO 80643 Phone Phone 303-732-4808 Phone Email Address thuwa@mietellc corn 5 Identify any prior permits for mining held by applicant or affiliated person 110 Permit M-2016-02 Phone (720) 463-9837 I (We) hereby depose and state under penalties of perjury that all statements, proposals, and/or plans submitted with or contained within the application are true and correct to the best of my (our)knowledge Signatures of all fee owners of property must sign this application If an Authorized Agent signs, a letter of authorization from all fee owners must be included with the application If a corporation is the fee owner, notarized evidence must be included indicating that ther a o s to I a onty to sign for the corporation . I l ((7j (cl D Signature Owner o(Authonzed Agent at G(tic12 I l(ra,llT Signature Owner or Authorized Agent Date 4 September 6, 2019 COLORADO Division of Reclamation, Mining and Safety Department of Natural Resources 1313 Sherman Street, Room 215 Denver, CO 80203 Mr. Rick Gillan Arnolds Custom Seeding, LLC 4626 CR 65 Keenesburg, CO 80643 Re: Arnolds Custom Seeding, LLC; Arnold Pit No. 1; Permit No. M-2016-022; Conversion Approval; Revision No. CN-01 Mr. Gillan: On September 6, 2019, the Division of Reclamation, Mining and Safety (Division/DRMS) approved the 110c to 112c conversion application (CN-01) submitted to the Division on April 25, 2019. The amount of financial warranty set by the Division for this 112c operation is $225,432.00, an increase of $213,757.00. You must submit a financial warranty in this amount and a new performance warranty in order for the Division to issue the conversion permit. The financial and performance warranty forms are available on the Division's website at: https:/Jmining.state.co.us/Forms/Pages/WarrantyForms.aspx PLEASE NOTE THAT MINING OPERATIONS MAY NOT COMMENCE UNTIL THE CONVERSION PERMIT HAS BEEN ISSUED BY THE DIVISION AFTER RECEIPT OF YOUR INCREASED FINANCIAL WARRANTY AND NEW PERFORMANCE WARRANTY. THE CONVERSION PERMIT WILL NOT BE ISSUED UNTIL WE VERIFY THE ADEQUACY OF BOTH YOUR FINANCIAL WARRANTY AND PERFORMANCE WARRANTY. If you have any questions, please contact me at peter.hays@state.co.us or (303) 866-3567 Ext. 8124. Sincer ty, y v v /1, Peter S. Hays Environmental Protection Specialist Ec: Michael Cunningham; DRMS Ron Spears; Duraroot, LLC 1313 Sherman Street, Room 215, Denver, CO 80203 P 303.866.3567 F 303.832.8106 hops://mining:state.Co.us Jared Polis, Governor I Dan Gibbs, Executive Director I Virginia Brannon, Director i NOWSCUSTOM SEEDING Mr. Kim Ogle Department of Planning Services, Planning Division Colorado Division of Reclamation, Mining and Safety 1555 N. 17th Avenue Greeley, CO 80631 RE: Land Owner Letter of Authorization for Arnolds Pit #1 Dear Mr. Ogle, � gAFE�' •p � rig ��BKOW November 12, 2019 We, Richard & Patricia Huwa, hereby authorize Corey Huwa or Tyrun Huwa to sign on our behalf for all documents pertaining to the proposed Arnold Pit No 1 Topsoil Mine USR Application located at North West 'A of Section 35, Township 2 North, Range 63 of the Sixth Principal Meridian, Weld County, CO. This authorization is valid until revoked in writing. 1_,AtiatAeL 421�a Landowner - Richard Huwa STATE OF CO COUNTY OF 4-2baza /104 Landowner — Patricia Huwa On this /alday ofbefore me personally cami�lrdt a�t,r�u a thrir , to me known to be the person who executed the foregoing instrument, and who, being duly sworn b3i me, did depose and say to me that s/he executed the foregoing instrument. MONICA L VICKERS NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20034011009 MY COMMISSION EXPIRES 6110/2023 Arnold's Custom Seeding, LIX • 4626 WCR 65 • Keansburg, CO 80643 • P: 303.732.4021 • F: 303.732.0510 • acsseeding.com ISTOM SEEDING Mr. Kim Ogle Department of Planning Services, Planning Division Colorado Division of Reclamation, Mining and Safety 1555 N. 17th Avenue Greeley, CO 80631 RE: Letter of Authorization for Ron Spears & Alison Gorrell Dear Mr. Ogle, "PLANTING 7� N��gRONJ�r OF En' gp yM� November 18, 2019 I, Tyrun Huwa, as a Managing Member of Arnolds Custom Seeding, LLC, hereby authorize Ron Spears of Duraroot, LLC and Alison Gorrell of Huwa Enterprises, LLC to act on behalf of the Arnold Pit No. 1 Mine USR Application. As a Managing Member of all of the afore mentioned entities, these are my employees and are working under my direction. This authorization is valid until revoked in writing. Managing Member — Tyrun Huwa STATE OF COUNTY OF Q� On thislu day of / yOl V1' � before me personally came 1 U � r , to me known to be the person who executed the foregoing instrument, and who, being duly swc rn by me, did depose and say to me that s/he executed the foregoing instrument. MONICA L VICKERS NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20034011009 MY COMMISSION EXPIRES 6/10/2023 (11 an/mil/Kb& Arnold's Custom Seeding, LLC • 4626 WCR 65 • Keenesburg, CO 80643 • P: 303.732.4021 • F: 303.732.0510 • acsseeding.com November 18, 2019 Mr. Kim Ogle Department of Planning Services, Planning Division Colorado Division of Reclamation, Mining and Safety 1555 N. 17t Avenue Greeley, CO 80631 RE: H-2 Enterprises Representatives Dear Mr. Ogle, Please note the following individuals that represent H-2 Enterprises, LLC and have no relation to the property owners for the Arnold Pit No 1 Topsoil Mine USR Application: • Doug Cook — Director • J.W. Hoffman -- Assistant Director • Darren Dever -- General Superintendent • Monica Vickers — Project Coordinator If you have any questions, please let us know. Managing Member — Tyrun Huwa H2 Enterprises • 4626 WO( 65 • Keeneshurg. CO 80643 • 303.732.402 I STATE OF (10 S... COUNTY OF On this day of E efore me personally came , to me known to be the person who executed the foregoing instrument, and who, being duly s rn by me, did depose and say to me that s/he executed the foregoing instrument. Actujoirch MONICA L VICKERS NOTARY PUBUC 1 STATE OF COLORADO pp34411049 NOTARY ID MY COMMISSION EXPIRES 6/10/2023 May 11, 2016 Rick Gillan Vice President Arnolds Custom Seeding LLC 4626 CR 6S Keenesburg, Colorado 80643 Dear Rick I Rich Huwa am the recorded surface owner of the property located in North West 'A of Section 35, Township 2 North, Range 63 West of the Sixth Principal Meridian, Weld County, Colorado. Pursuant to your recent request, this is to confirm that I, Rich Huwa, have authorized Arnolds Custom Seeding LLC to enter the subject property for the purpose of mining construction materials from an area located on the North West portion of the section, provided, that Arnolds Custom Seeding LLC applies for and obtains all necessary permits and approvals from the State of Colorado and any other agency having jurisdiction over such activity. I also authorize Arnolds Custom Seeding LLC to use the existing access road to West of the permit area. Should you require any additional statement from myself, Rich Huwa regarding Arnolds Custom Seeding LLC legal right to enter this property to mine, please contact me. Thank you. Sincerely yours, Rich Huwa ACKNOWLEDGMENT State of Colorado County of Weld The letter regarding legal right to enter property to mine construction materials was acknowledged before me this day of j. Line , 2016 by Rich Huwa, surface owner of property proposed to be mined 1 .“\m\‘. ( ‘,c Notary Signature 11iS Commission Expiration MONICA POOH -- NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20064049344:i We COMMISSION EXPIRES FEBRUARY 27 20 s Arnolds Custom Seeding, LLC 4626 CR 65 Keenesburg, Colorado 80643 To Whom It May Concern, I, Tyrun Huwa, am legally authorized to act on behalf of the owner of the property located in North West 1/4 of Section 35, Township 2 North, Range 63 West of the Sixth Principal Meridian, Weld County, Colorado Pursuant to the application (M-2016-022) of Arnolds Custom Seeding proposed operation known as Arnold Pit No 1, I acknowledge that any oil and gas activities on the property have been incorporated into the site operational plan I understand that no oil/gas operations or actions will affect potential or future oil and gas operations and development pursuant of Weld County Code Section 23-2-370 (below) The applicant shall submit to the Department of Planning Services a copy of an agreement with the mineral owners associated with the subject property Such agreement shall stipulate that the oil and gas activities on the subject property have been adequately incorporated into the design of the site OR shall provide written evidence that an adequate attempt has been made to mitigate the concerns of the mineral owners on the subject property Should you require any additional statement from myself, Tyrun Huwa, regarding this issue please contact me at thuwa@mietellc corn or by phone at (720) 463-9837 Sincerely, Ty b Huwa ACKNOWLEDGEMENT State of Colorado County of Weld This letter ie arding agreement on oil and gas activities was acknowledge before me this /04 day of LIG , 2019 by Tyrun Huwa, legal authority for surface owner of the property proposed in the application M-2016-022 L-47161Lk.a.t 4,i/iLthut Notary Signature MONICA L VICKERS NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20034011009 My COMMISSION EXPIRES 6/10/2023 Commission Expiration 4)„ \ • rtilt L �� CUSTOM SEEDING saU Articles of Organization Operating Agreement For Arnolds Custom Seeding, LLC "PLANTING IRE OF Erg' gp DA1J8ER NEVER GROW Arnold's Custom Seeding, LLC • 4626 WCR 65 • Beenesburg, CO 80643 • P: 303.732.4021 • F: 303.732.0510 • acsseeding.com Maw 02 03 09:34a Rhodes & Associates (303) 799-6628 ARTICLES OF ORGANIZATION OF ARNOLDS CUSTOM SEEDING, LLC P.3 FILED, DONETTA DAVIDSON ccLORAD9 $N(tETARY O1? STAn 20031141482 C $ 100.00 SECRETARY OF STATE 05-02-2003 11:20:05 Thc undersigned natural person of the age of eighteen yeais or more, acting as the organizer of a limited liability company under Colorado law, adopts the following Articles of Organization' 1. Thc name of the company is Amolds Custom Seeding, LLC 2. Unless earlier terminated under the Operating Agreement, the Company shall be formed effective upon filing of these Articles and its duration shall be perpetual 3. The address of the company's principal place of business is 28667 WCR 20, Keenesburg, Colorado 80643 4 The address of the initial registered office of the company is- 28667 WCR 20, Keenesburg, Colorado 80643, and the name of the initial registered agent at that address is Boyd Arnold, 5 The company's management is vested in a manager rather than members. 6. The name and business address of the company's initial manager is- Boyd Arnold, 28667 WCR 20, Keenesburg, Colorado 80643. 7. The person causing this document to be dehvered for filing is: Thomas H. Shanley, Esq., Rhodes & Associates, LLC His address and phone number are 1812 56th Avenue, Suite 200, Greeley, Colorado 80634, 970-330-6700 The Colorado Secretary of State may contact and/or deliver notice to this person if there are any questions regarding this -filing or if this filing is refused for any reason egistered Agent has executed these Articles of Organization on Received 05-02-2093 09'27 d Arnold, ' - - stered Agent QOM` p . UPDATE COMPLETE SLC From -303 799 6628 To —Colorado Secretary o Page 003 OPERATING AGREEMENT OF ARNOLDS CUSTOM SEEDING, LLC This Operating Agreement (the "Agreement") is made and entered into effective as of the 1'` day of January, 2008, by RICHARD F. HUWA, BRENT It HUWA, COREY HUWA, and TYRUN L. HUWA, the sole members of the Company (sometimes referred to herein collectively as the "Members," or individually as a "Member"). The prior operating agreement of the Company is hereby revoked and is superseded by this Agreement. , ARTICLE I FORMATION OF COMPANY 1.01 ,Formation. On May 5, 2003, the Company was organized as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act. The Members acquired ownership of the Company on January 1, 2008. 1.02 Name. The name of the Company is Amolds Custom Seeding, LLC (the "Company"). 1.03 Principal Place of Business. The principal place of business of the Company within the State of Colorado is 4626 Weld county road 65, Keenesburg, Colorado 80643. The mailing address for the Company is the same. The Company may locate its places of business and registered office at any other place or places as the Managers from time to time deem advisable 1.04 Registered Office and Registered Agent The Company's registered office in Colorado shall be 4626 Weld county road 65, Keenesburg, Colorado 80643, and the name of its initial registered agent at such address shall be Brent Huwa. 1.05 Texan. The term of the Company shall be until dissolution in accordance with the provisions of this Agreement or as otherwise provided by law Any dissolution of the Company in contravention of this Agreement shall be a material breach of this Agreement. ARTICLE II BUSINESS OF COMPANY The principal business of the Company shall be the provision and sale of landscaping/reclamation services and supplies, and such other businesses and activities as may be earned on by a limited liability company under the laws of the State of Colorado. ARTICLE [II NAMES AND ADDRESSES OF MEMBERS The names and addresses of the Members of the Company are. Richard F. Huwa 4202 WCR 65 Keenesburg, CO 80643 Corey Huwa 32511 Hwy 52 Keenesburg, CO 80643 Brent R. Huwa 5415 WCR 89 Roggen, CO 80652 Tyrun L. Huwa 3964 Hwy 79 Keenesburg, CO 80643 ARTICLE IV RIGHTS AND DUTIES OF MANAGERS 4.01 Management. The business and affairs of the Company shall be managed by its designated Manager or Managers. Each Manager shall direct, manage and control the business of the Company to the best of his ability and, subject to the limitations contained in this Agreement, the Manager has the complete authority to do any and all things that the Manager shall deem to be in the best interests of the Company. For purposes of this Agreement, the term "Manage?' shall refer to each person or entity serving as a manager, and shall include the plural as well as the singular number, unless the context otherwise requires. Similarly, pronouns referring to the Manager shall include the masculine, feminine, and neuter genders and the singular and plural numbers, as appropriate, regardless of the gender and number of the pronoun actually used, unless the context otherwise requires. 4.02 Number. Tenure and Qualifications. The initial number of Managers of the Company shall be four; namely, Richard F. Huwa, Brent R. Huwa, Corey Huwa, and Tyrun L. Huwa. Each Manager shall serve until he resigns or otherwise ceases to serve as Manager, or until he is removed by the vote of a majority percentage of the ownership interests in the Company. The provisions of Colorado law regarding the annual election of a manager or managers are hereby superseded, as permitted by Section 7-80-108 thereof. A Manager need not be a resident of Colorado, nor shall a Manager be required to be a present or former Member of the Company. In the event a Manager ceases to serve for any reason, the Members of the Company shall appoint a replacement Manager to serve in accordance with the preceding paragraph. 2 4.03 Comnensation of Manager. The Managers of the Company shall be compensated in such manner and at such rate, if at all, as shall be determined by a majority percentage of the ownership interests in the Company. 4.04 Certain Powers of Managers. The Managers shall have the authority to act on behalf of the Company in connection with the business of the Company, and the decisions of the Managers shall be such decisions as are approved by a majority of the Managers present at a meeting of the Managers at which a quorum is present. Each Manager agrees to comply with the decisions of the Members, but such obligation of compliance shall be internal to the Company and shall not affect the validity of any action taken by the Managers in connection with the business of the Company. Third parties may rely upon the acts of any single Manager as having been properly authorized, and third parties need not inquire as to the authority of such Manager Subject to the nghts and powers vested in the Members by law and subject to the restrictions as are hereinafter set forth, the Managers, upon approval of a majority of the Managers present at a meeting of the Managers at which a quorum is present, shall have the power and authority, for and on behalf of the Company to (i) contract for, execute, and consummate all purchases and sales or exchanges on behalf of the Company, (ii) commit, encumber and obligate the Company for the purchase and sale, lease or exchange of such assets, services, investments, or loans or debts as are deemed advisable by the Managers in their discretion; (iii) enter into and execute on the Company's behalf all contracts and instruments which the Managers deem, in their reasonable discretion, advisable and appropriate for the Company's business or investment; (iv) pay all expenses and make all debt service payments of the Company on a timely basis; (v) determine the exercise or non -exercise of the Company's right of first refusal pursuant to Section 9.03 of this Agreement, and execute such documents and take such actions as the Managers deem necessary or advisable to close the purchase in the event the Managers have determined to exercise such right of first refusal; and (vi) take such other actions as the Managers deem to be advisable in connection with the Company's purposes and activities. The Managers may act by a duly authorized attorney -in -fact designated by them for such purpose. 4.05 Restriction on Powers of Manager. Without the written consent of a majority percentage of the ownership interests in the Company, the Managers shall not be authorized to (a) effect the sale of substantially all of the Company's assets pursuant to a liquidation of the Company, although it is anticipated that any products purchased by the Company for resale will be sold in the ordinary course of business and that such transactions are within the purposes of this Agreement, even though they may entail a sale or exchange of the Company's assets in one transaction or in multiple transactions; or (b) cause the Company to issue an ownership interest in the Company to a new Member, except as otherwise provided in this Agreement. 4.06 Duties of the Managers. Each Manager shall exercise his business judgment in managing the business operations and affairs of the Company. A Manager shall not be responsible to the Members or the Company for losses incurred as a result of the conduct of the Company's 3 business in accordance with the reasonable business judgment of such Manager. A Manager shall fulfill his duties in good faith and in accordance with the Colorado Limited Liability Company Act and other applicable provisions of Colorado law. 4.07 Bank Accounts. The Managers may from time to time open bank accounts in the name of the Company, and each Manager shall be a signatory thereon, and the signature of any Manager shall be sufficient for any and all transactions concerning such account or accounts. 4.08 Resianation. A Manager of the Company may resign at any time by giving written notice to all Members of the Company and to each other Manager, if any. This Section shall not be deemed to permit a Member's resignation, if a Member serves as Manager and if such resignation constitutes a withdrawal under Section 10.01. A Manager who resigns or otherwise ceases to serve as Manager for any reason under the terms of this Agreement shall not directly or indirectly compete with the Company within its sales area for a period from the date of resignation until the end of the calendar year following the calendar year of such resignation, whether as an owner, officer, manager, partner, shareholder, member, employee, or otherwise. The sales area of the Company means the counties in the State of Colorado in which the Company has conducted business during the twelve months prior to the Manager's cessation of service. 4.09 Removal. A manager may be removed from his position as manager of the Company upon the vote of a majority percentage of the ownership interests of the Members hi the Company. 4.10 Vacancies. Any vacancy in the position of Manager occurring for any reason shall be filled by the affirmative vote of majority percentage of the ownership interests in the Company. Any Manager's position to be filled by reason of an increase in the number of Managers shall be filled by the affirmative vote of a majority of the Managers then in office or by the approval of a majority percentage of the ownership interests in the Company at a special meeting of Members called for that purpose. 4.11 Insider Employment. The fact that a person or entity is (a) a Member, (b) related to a Member, or (c) employed by or directly or indirectly interested in or connected with any Member, shall not prohibit the Managers' from employing or dealing with such person or entity; provided, however, that any contract, employment or arrangement with such person or Entity shall be on an arms -length basis, disclosed to the other Members, and shall be fair and reasonable. ARTICLE V RIGHTS AND OBLIGATIONS OF MEMBERS 5.01 Limitation of Liability. Each Member's liability shall be limited as set forth in the Colorado Limited Liability Company Act and other applicable law. 4 5.02 Comuauv Debt Liability. A Member will not personally be liable for any debts or losses of the Company beyond his or her respective capital contributions, except as provided by Colorado law. 5.03 A itional Capital Contributions. No additional capital contributions shall be required from the Members, except upon the approval of a majority percentage of the ownership interests in the Company of a capital call that is made on all of the Members in proportion to each Member's percentage ownership interest in Company. The procedures or penalties applicable with respect to a Member's failure to comply with such capital call shall be as specified in the notice of the capital call, as approved by a majority percentage of the ownership interests in the Company. 5.64 List ®f IVlembers. Upon written request of any Member, the Managers shall provide a list showing the names, addresses and percentage ownership interests of all Members in the Company. Subject to the Colorado Act and upon reasonable request, each Member shall have the right, during ordinary business hours, to inspect and copy such Company documents at the Member's expense. 5.05 No Priority as to Return of Capital. No Member shall have priority over any other Member,, either as to the return of capital contributions or as to net profits, net losses or distributions; provided that this Section shall not apply to payment of compensation for services rendered or repayment of loans (as distinguished from capital contributions) which a Member has made to the Company, and provided further that a majority percentage of the ownership interests in the Company may authorize disproportionate allocations or distributions, as provided in Article VIII of this Agreement. 5.06 New Members. New Members may be added to the ownership of the Company, and a certificate of membership may be issued to such new Members, upon the written consent of a majority percentage of the ownership interests in the Company, provided that the restrictions of this Section 5.06 shall not apply to a transfer that is authorized under Article DC of this Agreement. 5.07 Withdrawal of a Member. A Member shall have no nght to withdraw as a Member, except in the event of (a) the death of such Member, or (b) the written consent of Members comprising a majority percentage of the ownership interests of the Company. The restrictions of this Section 5.07 shall not apply to a transfer that is authorized under Article IX of this Agreement. ARTICLE VI MEETINGS OF MEMBERS 6.01 Annual Meeting. The annual meeting of the Members shall be held on the second Tuesday of December at 12:00 noon, or at such other date or time as shall be determined by 5 resolution of the Members, commencing with the year 2008, for the purpose of the transaction of such business as may come before the meeting. If no written notice of the holding of the annual meeting is given by any of the Members at least twenty (20) days prior to the above -provided date of the annual meeting, such meeting shall be deemed to have been waived by the Members for that year, provided that such meeting shall be deemed to have been reinstated if all of the Members attend such annual meeting.. 6.02 Special Meetings. Special meetings of the Members for any purpose or purposes, unless otherwise prescribed by statute, may be called by any Manager or by the written request of thirty-three percent (33%) of the voting interests in the Company. 6.03 Place of Meetiva,'a. The Managers may designate any place in the State of Colorado, or such other place as a majority of the ownership interests in the Company may agree, as the place of meeting for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the Company in the State of Colorado. 6.04 Notice of Meetings. Except as provided in Sections 6 01 or 6 05 herein, written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than three nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or persons calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 11.01. 6.05 Meeting_of all Members. If all of the Members entitled to vote at any meeting shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken. 6.06 Record Date. For the purpose of determining Members entitled to notice or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section, such determination shall apply to any adjournment thereof 6.07 Quorum. A majority percentage of the ownership interests in the Company, represented in person or by proxy, shall constitute a quorum at any meeting of Members. In the absence of a quorum at any such meeting, the Members who are represented at such meeting may adjourn the meeting from time to time, for a period not to exceed sixty (60) days without further notice. However, if the adjournment is for more than sixty (60) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member of record entitled to vote at the meeting. 6 At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal during such meeting of that percentage of interests whose absence would cause less than a quorum. 6.08 Manner of Acting. Except as otherwise specifically provided in this Agreement, if a quorum is present, the affirmative vote of a majority percentage of the ownership interests in the Company shall be the act of the Members. The same approach shall be used in determining whether an action has been approved by any other percentage that may be relevant. 6.09 Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney -in -fact. Such proxy shall be filed with the Managers of the Company before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. 6.10 Action by Members Without a Meeting. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Member entitled to vote and delivered to the Managers of the Company for inclusion in the minutes or for filing with the Company records Action taken under this Section 6.10 is effective when all Members entitled to vote have ismh signed the consent, unless the consent specifies a different date. The record date for determining Members entitled to take action without a meeting shall be the date the first Member signs a written consent. 6.11 Waiver of Notice. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. 6.12 Votin ►. The Members holding interests shall possess sole voting rights with respect to the Company, unless otherwise provided by the Colorado Limited Liability Company Act. ARTICLE V1I CONTRIBUTIONS TO THE COMPANY AND CAPITAL. ACCOUNTS 7.01 Members' Capital Contributions. The Members capital contributions to the Company shall be credited to their capital accounts in accordance with applicable Treasury Regulation Section 1.704-1(b) and other applicable provisions. The capital account of each Member as of January 1, 2008 is set forth on Exhibit 1 to this Agreement. 7 7.02 Capital Accounts. (a) A separate capital account shall be maintained in the name of each Member. Initially each Member's capital account shall be credited with the fair market value of his or her initial capital contribution, net of liabilities assumed by the Company and liabilities to which the contributed property is subject. (b) The capital account of each Member shall thereafter be increased by. (1) The amount of any cash and the fair market value of any property subsequently contributed to the Company by such Member (net of liabilities assumed by the Company and liabilities to which the contributed property is subject); (2) The amount of any profits or separately stated items of income or gain allocated to such Member pursuant to this Agreement; (3) Such Member's share of the Company's income or gain which is not includable in computing the Company's profits and losses, including separately stated items of income or gain; and (4) The amount of any of the Company's liabilities that are assumed by such Member or that are secured by any of the Company's property distributed to such Member. (c) The capital account of each Member shall be decreased by (1) The amount of any Company losses or any separately stated items of deduction or loss allocated to such Member pursuant to this Agreement. (2) The amount of all cash distributions and the fair market value of property distributions (net of liabilities assumed by such Member and liabilities to which the distributed property is subject) to such Member. (3) Such Member's share of any expenditures of the Company which are not deductible in computing the Company's profits and losses and which are not properly capitalizable, including separately stated items of loss or deductions. (4) The amount of any liabilities of such Member that are assumed by the Company or that are secured by property contributed by such Member to the Company. (d) For purposes of this Section, any unrealized appreciation or decline in value with respect to assets distributed in kind shall be allocated among the Members in accordance with 8 the provisions of Article VIII of this Agreement, as though such assets had been sold for their fair market value on the date of distribution, and the Members' Capital Accounts shall be adjusted to reflect both the deemed realization of such appreciation or decline in value and the distribution of such property. (e) If a Member's interest is sold, exchanged or otherwise transferred, the Capital Account of the transferee shall be the same as the Capital Account of the transferor Member immediately before the transfer, unless the Managers shall determine otherwise. (f) A loan made by a Member to the Company shall not be considered a contribution to be credited to the Capital Account of the Member. (g) The foregoing and other provisions of this Agreement relating to the maintenance of capital accounts are intended to comply with Treasury Regulation Section 1.704- 1(b) and other applicable provisions, and shall be interpreted and applied in a manner consistent with such Regulations. (h) The Company shall not pay any interest to a Member on such Member's Capital Contributions to the Company. Nothing herein provided shall prevent or prohibit the accrual and payment of interest by or to a Member, the Company, or third parties for loans. 7.03 Withdrawals or Reduction of Members' Contributions to Capital. (a) A Member shall not receive out of the Company's property any part of the Company's contributions to capital until all liabilities of the Company, except liabilities to Members on account of their contributions to capital, have been paid or there remains property of the Company sufficient to pay them. (b) No Member shall have the right to withdraw any part of his or her capital contributions except (a) with the consent of the Managers, or (b) except as otherwise specifically permitted pursuant to the terms of this Agreement. Under circumstances requiring a return of a Member's capital contributions, no Member shall have the right to receive property other than cash. In the case of distributions in liquidation of the Company, the Managers may, in their sole discretion, make distributions in kind and may compel any Member to accept a distribution in kind, including the distribution of a percentage of an asset, provided that the Managers shall have a duty of impartiality with respect to such distributions in liquidation. No Member shall have priority over any other Member as to return of his or her capital contribution(s) or as to distributions, except as may be otherwise provided in this Agreement. 9 ARTICLE MI CLASSES OF MEMBERSHIP AND ALLOCATIONS, INCOME TAX, ELECTIONS AND REPORTS &01 Membership Classes. There shall be one (1) class of membership in the Company, and the percentage ownership interest of each Member as of January 1, 2008 shall be as follows: Richard F. Huwa — 25%, Brent R. Huwa — 25%, Corey Huwa — 25%, add Tyrun L. Huwa — 25%. Each Member's voting power shall be equal to his or her percentage ownership interest in the Company. Each Member's interest in the Company may, in the Members' discretion, be represented by a certificate or certificates specifying the number of units of interest attributed to such Member's interest, and the class of membership of such interest. 8.02 Allocations of Profits and Losses. Each Member shall share in Company revenues, profits and losses and separately stated items of income, gain, loss, deduction and credit m the same percentage as his ownership interest in the Company. Provided, however, the Members, by a m4jority percentage of the ownership interests in the Company may amend this Agreement to provide for a different method of allocation, provided that such modified allocations shall affect the respective Members' capital accounts as provided in Article VII of this Agreement and in a manner consistent with Treasury Regulation Section 1.704-1(b) and other applicable provisions 8.03 Oualified Income Offset. Notwithstanding any other provisions of this Agreement to the contrary, if, with respect to any taxable year of the Company, a Member receives an unexpected adjustment, allocation, or distribution of the type described in Section 1.704- 1(bX2)(ii)(d)(4), (5), or (6) of the Regulations under Section 704 of the Internal Revenue Code of ` 1986, as amended, that results in such Member's capital account having a negative balance, gross income and the amount realised on the disposition of Company property for such taxable year and all subsequent taxable years shall be allocated to such Member in an amount necessary to eliminate such negative balance in such Member's capital account as quickly as possible. The provisions of this Section are intended to constitute a "qualified income offset" within the meaning of Section 1.704-1(bX2XiiXdx3) of the Regulations and shall be construed in accordance with such intention. 8.04 Minimum Gain Chargeback. Beginning in the first taxable year in which there are "nonrecourse deductions" or a distribution is made of proceeds of a nonrecourse liability that is allocable to an increase in the minimum gain of the Company, as determined under the rules of Section 1.704-1T(b)(4Xiv)(e) of the Regulations under Section 704 of the Internal Revenue Code of 1986, as amended, and thereafter throughout the full term of the Company's existence, the "minimum gain chargeback" rules of such Regulation shall apply with respect to the allocation of all Company items in such year(s). If there is a net decrease during a taxable year of minimum gain attributable to Member nonrecourse debt within the meaning of Section 1.7041 T(b)(4Xiv)(h), or 10 any successor provision, then the chargeback rules of such Regulation shall apply. 8.05 Allocations Upon Liquidation. For federal income tax purposes, income ('including gain) or loss of the Company resulting from the sale or disposition of all or substantially all of the assets of the Company, or the dissolution of the Company without an election to continue the Company, shall be allocated to the Members in accordance with the provisions of Section 8. 8.06 Distributions. Non -liquidating distributions may be made to the Members from time to time as may be designated by a majority percentage of the ownership interests in the Company. Any such distribution shall be made to all the Members in proportion to their respective ownership mterests in the Company. Notwithstanding the foregoing provisions of this Section, upon the approval of a majority percentage of the ownership interests in the Company, the Managers may make distributions to a Member or Members that are different in value, amount, adjusted basis, tinning, or otherwise as specified, from a distribution to one or more other Members, or any combination thereof. Such a disproportionate distribution may affect the recipient Member's capital account disproportionately from one or more other Members, and may be a factor in causing a qualified income offset special allocation to become applicable at that time or at some point in the future, as provided in this Article. 8.07 Limitation on Distribution. Notwithstanding the foregoing, no distribution shall be paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company, except liabilities to Members on account of their capital contributions or i"''N on account of commissions allocable to a Member . 8.08 Accounting Principles. Profits and losses of the Company shall mean net income or net loss, respectively, of the Company, as determined for federal income tax purposes. Separately stated items include those items of income, gain, loss, deduction or credit which are accounted for separately pursuant to the Internal Revenue Code of 1986, as amended. 8.09 Interest on and Return of Capital Contributions. No Member shall be entitled to interest on his or her capital contribution or to return of his or her capital contribution, except as otherwise specifically provided for herein. 8.10 Records and Reports. At the expense of the Company, the Managers shall maintain records and accounts of all operations and expenditures of the Company. At a minimum the Company shall keep at its principal place of business the following records: (a) A current list of the full name and last known business, residence, or mailing address of each Member and Manager, both past and present; (b) A copy of the Articles of Organization of the Company and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed; N'1 11 (c) Copies of the Company's federal, state, and local income tax returns and reports, if any, for the three (3) most recent years; (d) Copies of the Company's currently effective written Agreement copies of any writings permitted or required with respect to a Member's obligation to contribute cash, property or services, and copies of any financial statements of the Company for the three (3) most recent years; (e) (1) without a meeting. Minutes of every annual, special meeting and court -ordered meeting; Any written consents obtained from Members for actions taken by Members The Company's books shall be kept and its financial statements shall be prepared ender the cash method of accounting. 8.11 ;Returns and Other Elections. The Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. Copies of such returns, or pertinent information therefrom, shall be furnished to the Members within a reasonable time after the end of the Company's fiscal year. For Colorado tax purposes, the Managers shall file with the Colorado Department of Revenue an agreement of each non-resident Member to file a proper Colorado income tax return and to make timely payment of all Colorado taxes imposed with respect to such Member's share of the Company income, as required by applicable laws. All elections permitted to be made by the Company under federal or state laws shall be made by a majority of the Managers, in their sole discretion. ARTICLE IX RESTRICTIONS ON TRANSFER 9.01 Restrictions on Transfer. Except as otherwise provided for in this Agreement, no Member shall have any right to sell, gift, assign, encumber, transfer or otherwise dispose of part or all of his or her Member's interest in the Company, without the express written consent of the Members owning a majority percentage of the ownership mterests in the Company. However, a Member shall not be restricted in assigning, dining such Member's lifetime or pursuant to such Member's estate plan, part or all of his Member's interest to (a) a member of such Member's family, (b) a trust established for the benefit of one or more members of the family of such Member, (c) one or more of the owners of such Member, if the Member is an non -trust entity, (d) 12 one or more beneficiaries of such Member, if the Member is an estate or trust, or (e) to an entity in which the Member, or one or more of its owners, owns more than fifty percent (50%) of the voting power of such entity, and any such permitted transfer by a Member shall cause the assignee to become a substituted Member of the Company upon the execution by such assignee of an instrument signifying the assignee's agreement to be bound by the provisions of this Agreement, as then in effect and as it may be modified in accordance with the provisions of this Agreement. Any transfer of part or all of a Member's ownership interest in the Company that is in compliance with the provisions of this Section shall not be subject to the following provisions of this Article. 9.02 Substitution of Parties. Except as provided in Section 9.01 and Section 9.03, anyone acquiring an ownership interest in the Company from a Member shall not become a substituted Member unless (a) Members comprising a majority percentage of the ownership interests in the Company consent thereto in writing, and (b) the person or entity acquiring such interests agrees in writing to be bound by this Agreement, as then in effect. 9.03 Right of First Refusal. Except as provided m Section 9.01, in the event a Member (the "Transferring Member") desires to transfer, sell, or otherwise dispose of all or part of such Member's interest in the Company, such Member shall present to the other Members a bona fide written offer by a third party to purchase such units of interest, which offer shall (1) clearly and fully identify the name and address and current employment of the person making the offer and of any relationship between such person and the Transferring Member, (2) clearly and fully describe the proposed purchase price and the terms of payment, and (3) state clearly the agreement of the proposed purchaser to be bound by the terms of this Agreement, as it may be amended from time to time. The Company shall have thirty (30) days following the receipt of the offer to notify the Transferring Member whether it will match the purchase price specified in the offer and the terms of payment, provided that the Company shall not be required to agree to the closing date contained in the offer, which closing date may be modified by the Company in accordance with this Section 9.03. For this purpose, the decision of the Company whether or not to match such offer shall be made by the vote of a majority of the Managers, excluding the Transferring Member if such Member also serves as a Manager of the Company. If the Transferring Member is the sole Manager of the Company, then such decision shall be made by a majority percentage of the other ownership interests in the Company. If the Company has notified the Transferring Member that it will match the purchase price specified in the offer and the teens of payment on the basis of a closing date determined as provided in this Section 9.03, the Company shall be deemed to have exercised its right of first refusal. In the event the Company elects to exercise the right of first refusal, the Company, or the Company's assignee or assignees of such right of purchase (as determined in the same manner as the decision whether or not to match the offer), which assignees may include one or more of the other Members, shall purchase from the Member the ownership interest specified in the offer on the terms provided in the offer, and the Transferring Member shall be obligated to sell such offered interest to the Company on such terms. The closing of the Company's, or the Company's assignee's, purchase of such interest shall occur at such time and place in the State of 13 Colorado as the Company shall designate (in the same manner as the decision whether or not to match the offer), which closing shall occur within one hundred twenty (120) days following the receipt by the Company of the offer, or, if later, on or prior to the date of closing specified in the offer. If one or more of the other Members acquires such interest pursuant to this Section, such Members shall be substituted Members with respect to the interest so acquired. If the Company does not exercise such right of first refusal as described above, the Transferring Member shall be free to transfer, sell, or otherwise dispose of the ownership interest subject to the offer to the person identified in the offer; provided that such person shall not be admitted as a substituted Member without the consent of a majonty percentage of the ownership interests in the Company, and further provided that if such closing does not occur within six (6) months following the receipt of the offer by the Company, the Company's right of first refusal shall be reactivated, and the Transferring Member shall not be permitted to sell such units of interest without again complying with the procedures of this Section 9.03. ARTICLE X DISSOLUTION AND TERMINATION 10.01 Dissolution. (a) following events: The Company shall be dissolved only upon the occurrence of any of the Q) The unanimous written agreement of all Members; or (ii) A Member's (1) death, (2) bankruptcy, (3) dissolution, or (4) the occurrence of any other event which terminates the continued membership of a Member in the Company (a "Withdrawal Event"), other than a transfer of the ownership interest of such Member that is permitted under the terms of this Agreement, unless the business of the Company is continued by the consent of a majority percentage of the remaining Members within sixty (60) days after the Withdrawal Event and there is at least one remaining Member. The Withdrawal Events described m clauses (2), (3), and (4) of the first paragraph of clause (ii) shall be considered a breach of this Agreement by the Member to whom such Withdrawal Event applies. Following a Withdrawal Event, each of the remaining Members hereby agrees that, within sixty (60) days after the occurrence of such Withdrawal Event (and provided that there is at least one remaining Member of the Company), he will consent, in writing, to continue the business of the Company. The written consent shall be mailed to the principal place of business of the Company. The sole remedy for breach of a Member's obligation to consent to continue the business of the Company under clause (ii) shall be money damages (and not specific performance). 14 (b) As soon as possible following the occurrence of any of the events specified in this Section, if the discontinuation of the business of the Company results, the appropriate representative of the Company shall execute such forms as shall be prescribed by the Colorado Secretary of State with respect to the dissolution of the Company and file same with the Colorado Secretary of State's office. 10.02 Waiver of Partition and WitbdrawaL The Members acknowledge that this Agreement provides for the fair and just payment and liquidation of the Members' interests in the Company, and that partition of the Company's property prior to any of the occurrences contemplated in this Article would cause irreparable damage to the Company. Accordingly, each member hereby waives and renounces his or her right, if any, to seek appointment, for any reason, by any court of a liquidator of the Company, or to seek the partition of the Company or any Company property. 10.03 A uidatdan and Winding 1Jn of the Company. (a) Upon filing the appropriate forms relating to the termination of the Company's business with the Colorado Secretary of State, the Company shall not terminate but shall be liquidated and shall continue until the winding up of the Company's affairs has been completed. The Managers shall be responsible for winding up, liquidating and dissolving the Company. A reasonable time will be allowed for the orderly liquidation ofthe Company and its discharge of liabilities so as to enable the Company to minimize any losses attendant upon liquidation. (b) Winding up of the Company's affairs shall include completing all pending Company business and thereafter collecting and disposing of Company assets, paying Company creditors, and distributing to the Members the balance of any Company assets. (e) The Members shall continue to share net profits, net losses, and distributable cash of the Company during the winding up of the Company's affairs in the same proportions as if the Company were not winding up its affairs. Any gain or loss realized by the Company on disposition of Company assets in the process of liquidating and winding up its affairs shall be credited or debited to the Members as provided in Article VIII. (d) For purposes of this Agreement, any unrealized appreciation or decline in value with respect to Company assets distributed in kind to a Member shall be allocated among the Members in accordance with the provisions of Article VIII regarding the allocation of the Company's profits and losses as though such assets were sold for their fair market value on the date of distribution. The Members' capital accounts shall be adjusted to reflect both the deemed realization of such appreciation or decline in value and the distribution of such Property. 15 10.04 Articles of Dissolution. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets of the Company have been distributed to the Members, the appropriate forms relating to the dissolution of the Company shall be filed with the Colorado Secretary of State 10.05 Order of Payment. On dissolution, the assets of the Company shall be used and distributed in the following order: (a) to pay or provide for the payment of all Company liabilities and liquidating expenses and obligations, including loans and obligations to the Members, in the order of priority provided by law; (b) to the setting up of any reserves which the Managers deem necessary for the payment of any contingent or unforeseen liabilities or obligations of the Company (such reserves shall be paid over to a bank or person as shall be appointed by the Managers to be held for the purpose of disbursing such reserves in payment of any such contingencies and, at the expiration of such period as the Managers deem advisable, the bank or such other person shall distribute the balance thereafter in payment to the Members in discharge of their Capital Accounts); and (c) after the payment of debts and liabilities according to subparagraph (a) above and after the setting up of reserves according to subparagraph (b) above, to the Members pursuant to the terms of this Agreement. Each Member shall look solely to the assets of the Company for the return of his or her or her Capital Account balance. If a Member has a deficit balance in his or her Capital Account upon dissolution, such Member shall not be obligated to pay to the Company the amount of such deficit. No Member shall have any right to demand or receive property other than cash upon dissolution and termination of the Company. ARTICLE XI MISCELLANEOUS PROVISIONS 11.01 Notices. Any notice, demand, or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes if delivered personally to the party or to an executive officer of the party to whom the same is directed or, if sent by registered or certified mail, postage and charges prepaid, addressed to the Member's and/or Company's address as it appears in the Company's records, as appropriate. Except as otherwise provided herein, any such notice shall be deemed to be given three (3) business days after the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as aforesaid, as evidenced by the postmarked receipt from the United States Postal Service. / 11.02 Books of Account and Records. Proper and complete records and books of account shall be kept or shall be caused to be kept by the Managers, in which shall be entered fully and accurately all transactions and other matters relating to the Company's business, in such detail and completeness as is customary and usual for businesses of the type engaged in by the Company. Such books and records shall be maintained in accordance with the terms and conditions of this Agreement and shall be open for inspection by any of the Members, and any of the Members shall 16 have the right to make a separate audit of the Company's books and records at the Member's own expense. Unaudited monthly financial statements shall be prepared and mailed to each Member on a regular basis, not less than thirty (30) days after the end of the calendar month. 11.03 Application of Colorado Law. This Agreement, and the application of interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of Colorado. 11.04 Amendments. Any amendment to this Agreement may be proposed to the Members by any Member. A vote on an amendment to this Agreement shall be taken within thirty (30) days after notice thereof has been given to the Members unless such period is otherwise extended by applicable laws, regulations, or agreement of the Members. A proposed amendment shall become effective at such time as it has been approved by a majority percentage of the ownership interests in the Company. A proposed amendment shall become effective at such time as it is approved by a majority percentage of the ownership interests in the Company; provided, however, that such amendment may be made retroactive to a prior date during the year in which such amendment was so approved, if -specific provision is made for such a retroactive effective date in connection with such amendment. 11.05 Execution of Additional Instruments. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments (i) necessary to comply with any laws, rules or regulations or (ii) desirable to carry out the terms and conditions of this Agreement. 11.06 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa. 11.07 Headiings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof. 11.08 Waivers. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 11.09 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 11.10 Severability. If any provision of this Agreement or the application thereof to any 17 person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, the remainder of the offending section, paragraph, sentence, or clause, and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. 11.11 :: eirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by the Agreement, their respective heirs, legal representative, successors and assigns. 11.12 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company. 11.13 Gender and Number. For all purposes of this Agreement, a pronoun's gender and number shall be interpreted as being the gender and number appropriate in the context. 11.14 Tax Matters Partner. Brent Huwa shall serve as the "tax matters partner" for the Company m accordance with the provisions of the Internal Revenue Code of 1986, as amended. 11.15 Signatures; Counterparts. This Agreement may be signed in counterparts, each counterpart constituting an original, and all counterparts constituting one and the same document. In addition, this Agreement and any amendment hereto may be signed and the signature page thereof faxed to the other parties and the faxed copies shall be deemed for all purposes to be originals. 11.16 Disputes: Attorneys' Fees: Venue. In the event of the commencement of arbitration or litigation involving the parties to this Agreement or the Company with respect to the Company or the Company's business, or arising out of this Agreement or the relationship of the parties under this Agreement, the prevailing party shall be entitled to payment from the other party or parties of the prevailing party's attorneys' fees, accounting fees, expert fees, and court costs incurred in connection with such arbitration or litigation. The exclusive venue for arbitration or litigation involving parties to this Agreement or the Company with respect to the Company or the Company's business, or arising out of this Agreement or the relationship of the parties under this Agreement, shall be in the County of Weld, Colorado. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and ear n. 18 irTYR L. HUWA, Member I ENVIRONMENTAL CONSULT' 6 Articles of Organization, Articles of Amendment & Operating Agreement For Duraroot, LLC WWW.DURAROOT.COM I OFFICE: 720.772.122e I INFO@DURAROOT.0011 Document must be filed electronically Paper documents will not be accepted Document processing fee Fees & forms/cover sheets are subject to change To access other information or print copies of filed documents, visit www sos state co us and select Business Center Colorado Secretary of State Date and Time 05/09/2012 02 48 PM ID Number 20121262763 $50 00 Document number 20121262763 Amount Paid $50 00 \not h SPACt FOR oft IC E. USL ONI 1 Articles of Organization filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C R S ) 1 The domestic entity name of the limited liability company is Envirde LLC (The name of a /tinned ltandrp campani must contain the term or abhrevtatton limed liability compass ltd habits)) company binned hahrhtl co lid liability co Routed 11 c lk or lid See .+' 90-601 C R S ) (Caution The use of cettatn let ms ar abbreviations ate r esti rcted by law Read insnuciions foi more information I 2 The principal office address of the limited liability company s initial principal office is Street address Marline address (leave blank !Name as Street addrLss) 4626 WCR 65 (Street number and name) Keenesburg (City) (Province - if applicable) CO 80643 (State (ZIP Postal ( ode) United States (( ountr}) (Street number and flint or Post Once Iim information) (Call (Province if applicable) (State) (ZIP Postal ( ode) /( ounlry) 3 The registered agent name and registered agent address of the limited liability company s initial registered agent are Name (if an individual) OR (if an entity ) Huwa Brent Richard (Last) (f irst) (thddlo (Suffry (Caution Do not p ovule both an indn (dual and cm entity name ) Street address Alt 1O(2O_1 I C 4626 WCR 65 (Street numhci curd mane) Keenesburg (Cap Co 80643 (Stare) (ZIP ( ark) I'aet. 1 al 3 Rcs 02/28/2008 Mailing address (leave blank if same as street address) (Street number and name or Post Office Box information) (City) CO (State) Me following statement is adopted by marking the box) Ild The person appointed as registered agent has consented to being so appointed (ZIP Code) 4 The true name and mailing address of the person forming the limited liability company are Name (if an individual) OR (if an entity) (Caution. Do not provide both an individual and an entity name) 4626 WCR 65 Huwa Brent Richard (Last) (First) (Middle) (Suffix) Mailing address (Street number and name or Post Office Box information) Keenesburg CO 80643 (City) (State) (L/P/Postal Code) United States (Province — ((applicable) (Country) (If the following statement applies, adopt the statement by marking the box and include an attachment) n The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment 5 The management of the limited liability company is vested in (Mark the applicable box) n one or more managers OR ri the members 6 (The following statement is adopted by marking the box) n There is at least one member of the limited liability company 7 ((f the following statement applies, adopt the statement by marking the box and include an attachment) n This document contains additional information as provided by law. 8 (Caution. Leave blank if the document does not have a delayed effective date Stating a delayed effective date has significant legal consequences Read instructions before entering a date) ({f the following statement applies, adopt the statement by entering a date and if applicable, time using the required format ) The delayed effective date and, if applicable, time of this document is/are (mm/dd/yy)y hour minute am/pm) ARTORG LLC Page 2 of 3 Rev 02/28/2008 Notice: Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C R S , the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered 9 The true name and mailing address of the individual causing the document to be delivered for filing are Huwa Brent Richard R s) (First) (Middle) (Sus) 4626 WC (Street number and name or Post Office Box information) Keenesburg CO 80643 (City) (Province - Opp ',cable) (State) United States (Country) (ZIP/Postal Code) (If the following statement applies adopt the statement by marking the box and include an attachment) ❑ This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing Disclaimer: This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet Questions should be addressed to the user's legal, business or tax advisor(s) ARTORG LLC Page 3 oil Rev 02/28/2008 Document must be filed electronically. Paper documents will not be accepted Document processing fee Fees & forms/cover sheets are subject to change To access other information or print copies of filed documents, visit www.sos.state co us and select Business .--Fired Colorado Secretary of State Date and Time: 05/30/2012 02.21 PM ID Number: 20121262763 $25 00 Document number: 20121297733 Amount Paid: $25 00 ABOVE SPACE FOR OFFICE USE ONLY Articles of Amendment filed pursuant to §7-90-301, et seq. and §7-80-209 of the Colorado Revised Statutes (C.R S.) ID number 1. Entity name• 2 New Entity name - Of applicable) 3 Use of Restricted Words (If any of these terms are contained in an entity name, true name ofan enttry, trade name or trademark stated to this document, mark the applicable box) 4. Other amendments, if any, are attached 5. If the limited liability company's period of duration as amended is less than perpetual, state the date on which the period of duration expires 20121262763 Envirde LLC (If changing the name of the limited liability company, indicate name BEFORE the name change) Duraroot, LLC ❑ "bank" or "trust" or any derivative thereof O "credit union" ❑ "savings and loan" ❑ "Insurance", "casualty", "mutual", or "surety" (mmielcu yy) OR If the limited liability company's period of duration as amended is perpetual, mark this box - 6. (Optional) Delayed effective date Notice (mn✓dd/riri) a Causing this document to be delivered to the secretary of state for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C R S , the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered AMD LLC Pagc 1 oft Rev 5/01/2010 .r , 7 Name(s) and address(es) of the individual(s) causing the document to be delivered for filing: Huwa Brent (Last) 4626 WCR 65 (First) (Middle) indlr) (Street name and number or Post Office Box Information) Keenesburg CO 80643 (Co) Unl[ rStateS (PoslaalpCode) (Province — if applicable) (Country —1f not US) (The document need not state the true name and address of more than one individual However, If you wish to state the name and address gjany additional individuals causing the document to be delivered for filing, mark this box ❑ and include an attachment stating the name and address of such individuals.) Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney AMD_LLC Page 2 of 2 Rev 5/01/2010 DURAROOT, LLC N"oN OPERATING AGREEMENT This Operating Agreement (this "Agreement") of Duraroot, LLC a Colorado limited liability company (the "Company") is made and entered into effective as of May 30, 2012 by and among the Persons named on the signature pages of this Agreement as the members of the Company and such other Persons as shall become members of the Company from time to time in accordance with the terms of this Agreement (collectively, the "Members"). In consideration of the mutual covenants in this Agreement and other valuable consideration, the receipt and adequacy of which am hereby acknowledged, the Members agree as follows ARTICLE I: ORGANIZATION OF THE COMPANY 1 1 Formation The Members have formed the Company as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act (as amended from time to time and including any successor statute of similar import, the "Act') Each of the Members hereby ratifies and approves the execution and filing in the office of the Secretary of State of the State of Colorado of the Articles of Organization (the "Articles"), and agrees that this Agreement shall constitute the "limited liability company agreement" of the Company within the meaning of the Act Each of the Members shall execute, file and record all such other certificates and documents, including amendments to the Articles, and do such other acts as may be appropriate to comply with all requirements for the formation, continuation and operation of a limited liability company, the ownership of property and the conduct of business under the laws of the State of Colorado and any other jurisdiction in which the Company may own property or conduct business 1.2 The Members of the Company as of the date of this Agreement are Brent R Huwa, Corey M Huwa, Tyrun L Huwa, and Richard F Huwa. The Original Agreement designated ownership is in terms of percentage ownership of what the Original Agreement defined as a "Membership Interest" These Members constitute 100% of the total Membership Interests 1 3 Name. The name of the Company is, and the business of the Company shall be conducted under, "Duraroot, LLC". 1.4 Principal Place of Business The location of the principal place of business of the Company is 4626 Weld County Road 65, Keenesburg, Colorado, or such other place as the Board may from time to time determine 1 5 Term. The Company's existence shall continue until terminated, dissolved or liquidated in accordance with the provisions of this Agreement and the Act 1.6 Agent for Service of Process The name and address of the agent for service of process is (agent) 1.7 Duties of Members The duties of the Members to the Company or to each other in respect of the Company, shall be those established in this Agreement, provided that nothing herein shall be deemed to establish any Member as a partner or the Company as a general partnership In addition, initially the entity will consist of four members ARTICLE II: DEFINITIONS As used in this Agreement, the following terms shall have the following meanings "Acquisition Proposal" means a bona fide written proposal to a Member for the acquisition of Membership Interests by the person or entity making such proposal. "Act" has the meaning given in Section 1 1. "Adjusted Asset Value" means, with respect to any asset of the Company, such asset's adjusted basis for federal income tax purposes, except as follows (i) The Adjusted Asset Value of any asset contributed to the Company by a Member will be the gross fair market value of such asset as determined jointly by the Board and the contributing Member, in their joint and reasonable discretion. (ii) If the Board reasonably determines that an adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company, the Adjusted Asset Values of all Company assets will be adjusted to equal their gross fair market value, as determined by the Board, taking Section 7701(g) of the Code into account, as of the following times (a) a Capital Contribution (other than a de mintmis capital contribution) to the Company by a new or existing Member in exchange for an issuance of Units, including in connection with the exercise of a Company option or warrant; (b) any distribution by the Company to a Member of more than a de minimis amount of Company property or cash in connection with the redemption of all or a portion of a Member's Units; and (c) at such other times as the Board reasonably determines necessary or advisable in order to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2. (iii) The Adjusted Asset Value of any Company property distributed to any Member shall be adjusted to equal the gross fair market value (taking Section 7701(g) of the Code into account) of such property on the date of distribution as determined by the Board. (iv) The Adjusted Asset Values of Company property will be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) or 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations; provided, however, that Adjusted Asset Values will not be adjusted pursuant to this paragraph to the extent that the Board reasonably determines that an adjustment pursuant to paragraph (ii) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (iv). (v) The Adjusted Asset Value of an asset will be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Profits and Losses "Adjusted Capital Account" means, with respect to any Member, such Member's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments. (i) credit to such Capital Account any amounts which such Member is obligated or treated as obligated to restore with respect to any deficit balance in such Capital Account pursuant to Section 1 704-1(b)(2)(ii)(c) of the Treasury Regulations, or is deemed to be obligated to restore with respect to any deficit balance pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations; and (ii) debit to such Capital Account the items described in Treasury Regulations Sections 1.704- 1(b)(2)(u)(d)(4), 1704-1(b)(2)(n)(d)(5) and 1,704-1(b)(2)(u)(d)(6) The foregoing definition of Adjusted 2 Capital Account is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and will be interpreted consistently therewith. "Affiliate" or "Affiliated Person" means, when used with reference to a specified person, (i) any person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with the specified person, (ii) any person that is an officer, manager, member, partner or trustee of, or serves in a similar capacity with respect to, the specified person or of which the specified person is an officer, director, member, partner or trustee, or with respect to which the specified person serves in a similar capacity, (iii) any person that, directly or indirectly, is the beneficial owner of ten percent (10%) or more of any class of equity securities of, or otherwise has a substantial beneficial interest tn, the specified person or of which the specified person has a substantial beneficial interest, and (iv) any relative or spouse of the specified person. "Articles" has the meaning given in Section 1 1. "Board" means the Board of Managers of the Company. "Book Value" of any Interests Subject to the Offer means the per Unit book value of the Company, for each of the Interests Subject to the Offer, determined as of the date the Offer is made by the accounting firm regularly retained by the Company (whose determination shall be final and conclusive in the absence of a showing of gross negligence or willful misconduct on its part), m accordance with generally accepted accounting principles "Capital Account" means the capital account established on behalf of each Member on the books of the Company In general, the Capital Account of each Member shall be initially credited with the amount of such Member's initial Capital Contribution to the Company, as set forth on Schedule A attached hereto. Thereafter, each such Member's Capital Account shall be increased by (a) the amount of money contributed by it to the Company, (b) the Adjusted Asset Value of any property contributed by it to the Company (net of liabilities secured by contributed property that the Company is considered to assume or take subject to under Code Section 752), and (c) allocations to it of Profits and other items of book income and gain, and is decreased by (d) the amount of money distributed to the Member by the Company, (e) the Adjusted Asset Value of property distributed by the Company to the Member (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to under Code Section 752) and (f) allocations to it of Losses and other items of book loss and deduction The Capital Accounts shall also be adjusted (x) as reasonably determined by the Board, to reflect any redemption, forfeiture or transfer of Units, and (y) in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(m) It is the intent of the Members that the Capital Accounts of all Members be determined and maintained in accordance with the principles of Treasury Regulations Section 1.704- 1(b)(2)(iv) at all times throughout the full term of the Company Accordingly, the Board is authorized to make any other adjustments to the Capital Accounts so that the Capital Accounts and allocations thereto comply with such Section of the Treasury Regulations, provided that such adjustments do not have a material adverse effect on any Member For purposes of this Agreement, 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. "Capital Contribution" means the total amount of cash and the initial Adjusted Asset Value of any property (other than cash) contributed to the Company by a Member pursuant to the terms of this Agreement 3 "Code" means the Internal Revenue Code of 1986, as amended. Any reference in this Agreement to a Section of the Code shall be considered also to include any subsequent amendment or replacement of that Section "Company Minimum Gain" means "partnership minimum gain" as set forth in Section 1 704- 2(b)(2) and 1.704-2(d) of the Treasury Regulations "Depreciation" means, with respect to any Company asset for any Fiscal Year or other period, the depreciation, depletion or amortization, as the case may be, allowed or allowable for federal income tax purposes in respect of such asset for such fiscal year or other period, provided, however, that if there is a difference between the Adjusted Asset Value and the adjusted tax basis of such asset, Depreciation will mean "book depreciation, depletion or amortization" as determined under Section 1.704-I(b)(2)(iv)(g)(3) of the Treasury Regulations; and provided, further that if any property has a zero adjusted basis for federal income tax purposes, Depreciation may be determined under any reasonable method selected by the Board. "Designated Manager(s)" has the meaning given in Section 6 3 "Disposition" means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition, of Membership Interests or any interest therein or right thereto or of all or part of the voting power (other than the granting of a revocable proxy) associated with the Membership Interests or any interest therein whatsoever, or any other transfer of beneficial ownership of Membership Interests, whether voluntary or involuntary, including, without limitation (i) as a part of any liquidation of a Member's assets or (ii) as a part of any reorganization of a Member pursuant to the United States or other bankruptcy law or other similar debtor relief laws. "Economic Interest" means a Member's or assignee's share of one or more of the Company's net profits, net losses and distributions of the Company's assets pursuant to this Agreement, but shall not include any right to participate in the management or affairs of the Company, including the right to vote on, consent to or otherwise participate in any decisions of the Members "Eligible Offerees" means (i) in the case of an Offer under Sections 9.2 and 9.5, solely the Company, and (ii) in the case of all other Offers, the Company and all Members other than the Offeror. "Fair Market Value" of any Interests Subject to the Offer means the per Unit fair market value of the outstanding Membership Interests of the Company (without regard to premiums or discounts for majority or minority ownership or controI), for each Unit of Membership Interests included in the Interests Subject to the Offer, as such fair market value was last determined in good faith by the Board prior to the Offer or, if the Board determines in good faith that such fair market value has materially changed from the amounts as last determined by the Board prior to the Offer, the fair market value as determined in good faith by the Board as of the most recent practicable date prior to the Offer The Board shall have no obligation to determine such fair market value more often than once each year. If the Offeror shall disagree with the fair market value as so determined by the Board pursuant to this paragraph, such Offeror may give written notice of such disagreement to the Board (a "Dispute Notice"). Each Dispute Notice shall state in reasonable detail the basis of the disagreement as to the per Unit fair market value of the outstanding Membership Interests determined by the Board and the Offeror's determination of the per Unit fair market value of the outstanding Membership Interests The Board and the Offeror shall attempt to resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests within thirty days after such Dispute Notice is given to the Board (such thirty -day period shall hereafter be referred to as the "Dispute Resolution Period") If the Board and such Offeror are unable to resolve the disagreement as to the per Unit fair market value of the outstanding 4 Membership Interests within the Dispute Resolution Period, such disagreement may at any time thereafter ifiq be submitted by the Board, such Offeror or both to arbitration in Denver, Colorado before a single arbitrator in accordance with the rules of the CPR Institute for Dispute Resolution for non -administered arbitration of business disputes then in effect This submission and agreement to arbitrate shall be specifically enforceable Upon entering into arbitration hereunder, each of the Board, on the one hand, and the Offeror, on the other hand, shall submit to the arbitrator their respective final determinations of the per Unit fair market value of the outstanding Membership Interests prior to entering into arbitration (each a "Final Valuation"), countersigned by a representative of the party rejecting such Final Valuation. In rendering the award, the arbitrator shall resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests by appraising the Membership Interests to determine such fair market value (without regard to premiums or discounts for majority or minority ownership or control) as of the most recent practicable date prior to the Offer All aspects of the arbitration, including without limitation the validity of the arbitration clause, the arbitration proceedings and the enforcement of the arbitration award, shall be governed by the United States Arbitration Act, 9 U S C § 1-16. The arbitration may proceed in the absence of any party if notice has been given to such party The authority of the arbitrator shall be as broad as is necessary to resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests In connection with the arbitration, the arbitrator may consider all information such arbitrator deems appropriate, including but not limited to any pending transaction between the Company and any third party involving a sale of the Company or all of its assets, or issuance of Units of Membership Interests In rendering the award, the arbitrator shall be limited to electing between (i) the Final Valuation tendered to the arbitrator on behalf of the Company by the Board and (ii) the Final Valuation tendered to the arbitrator on behalf of the Offeror. The determination of the arbitrator shall be in writing and shall be conclusive and subject to modification or vacation only on the grounds provided for under the United States Arbitration Act, 9 U.S C § 1-16 and otherwise shall be non -appealable and binding upon the Company and the Offeror for all purposes All costs of the /s.` arbitration (including the reasonable legal expenses of the Company and the Offeror with respect to any disagreement as to the per Unit fair market value of the outstandmg Membership Interests) shall be borne by (A) the Company, in the event the arbitrator determines that the per Unit fair market value for the outstanding Membership Interests is equal to the Final Valuation tendered to the arbitrator on behalf of the Offeror, or (B) by the Offeror, in the event the arbitrator determines that the per Unit fair market value for the outstanding Membership Interests is equal to the Final Valuation tendered to the arbitrator on behalf of the Company by the Board Neither the Company nor any manager, officer, director, employee or agent of the Company shall have any liability with respect to valuation of Interests Subject to the Offer that are bought or sold at the Fair Market Value, as determined pursuant to this paragraph, even though the fair market value, as so determined, may be more or less than actual fair market value, and shall be fully protected in relying in good faith upon the records of the Company and upon information, opinions, reports or statements presented to the Company by any person as to matters which the Company or such director, officer, employee or agent reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company The fair market value of Membership Interests as of the date of the Original Agreement and until the first determination of fair market value thereof by the Board shall, for purposes of this paragraph, be deemed to be Book Value, subject to appropriate adjustment by the Board for Unit splits, Unit dividends, combinations and similar transactions "Fiscal Year" means the Company's fiscal year, and shall be the same as its taxable year The Company's taxable year shall be the calendar year, unless otherwise required by the Code and Treasury Regulations as reasonably determined by the Board "Interests Subject to the Offer" means. (i) with respect to an offer required under Section 9 2 as a result of an Acquisition Proposal, all Units of Membership Interests subject to such Acquisition Proposal, 5 and no others; and (ii) all Units of Membership Interests owned by a Member required to be offered pa\ pursuant to Sections 9.3, 9.4 or 9.5 "Manager" or "Managers" means a member or members, respectively, of the Board "Member Nonrecourse Debt" means "partner nonrecourse debt" within the meaning of Treasury Regulations Section 1.704-2(b)(4) "Member Nonrecourse Deductions" means "partner nonrecourse deductions" within the meaning of Treasury Regulations Section 1.704-2(1)(2). "Members" has the meaning given in the introductory paragraph. "Membership Interest" means the ownership interest of a Member in the Company at any particular time, including, without limitation, the right of such Member to any and all benefits to which a Member may be entitled as provided in this Agreement and under law, together with the obligations of such Member to comply with all of the terms and provisions set forth in this Agreement and under applicable law The quantum of each Member's Membership Interest shall equal and be expressed by the number of Units held by such Member "Minimum Gain Attributable to Member Nonrecourse Debt" means "partner nonrecourse debt minimum gain" as determined in accordance with Treasury Regulations Section 1 704-2(i)(3) "Nonrecourse Deductions" has the meaning set forth under Sections 1.704-2(b)(1) and (c) of the Treasury Regulations "Nonrecourse Liabilities" has the meaning set forth under Section 1 704-2(b)(3) of the Treasury Regulations "Offer" has the meaning given in Section 9 2 "Offeror" has the meaning given in the relevant Section of Article IX "Percentage Interest" means the percentage ownership of the Company owned by each Member, and for each Member shall at all times be equal to the percentage obtained by dividmg the number of Units held by such Member (initially each Member shall hold (00 units) of a total 100 units outstanding by the number of all Units held by all Members. The respective Percentage Interests of the initial Members shall aggregate 100%, such percentages may be amended from time to time by the Board in order to reflect the Members' respective Percentage Interests pursuant to the terms hereof "Person" means any individual, limited liability company, corporation, partnership, trust or other entity "Profits" or "Losses" means, for each Fiscal Year or other period, an amount equal to the Company's taxable income or loss for such year or other period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (i) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (ii) any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) shall be 6 subtracted from such taxable income or loss; (iii) gain or loss resulting from any disposition of a property ttobl with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Adjusted Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Adjusted Asset Value, (iv) in lieu of the depreciation, amortization and other cost recovery deductions taken into account m computing such taxable income or loss, the Company shall compute such deductions based on the Depreciation of a property, (v) if the Adjusted Asset Value of an asset is adjusted pursuant to the definition of Adjusted Asset Value (except with respect to Depreciation), then the amount of such adjustment shall be treated as an item of gain or loss and included in the computation of Profits and Losses, and (vi) all items allocated pursuant to Sections 5.2(a) through (and including) 5.2(i) shall not be included in the computation of Profits and Losses "Purchase Price" means, subject to adjustment pursuant to Section 9 10 below (i) for purposes of the purchase of Interests Subject to the Offer under Section 9.2, the price stated in the Acquisition Proposal; (ii) for purposes of the purchase of Interests Subject to the Offer under Sections 9.3 or 9 4, the Fair Market Value of such Interests Subject to the Offer, and (iii) for purposes of the purchase of Interests Subject to the Offer under Section 9 5, the lower of Fair Market Value and Book Value of such Interests Subject to the Offer "Regulatory Allocations" has the meaning given in Section 5 2 "Restricted Member" has the meaning given in Section 5 2. "Tax Distributions" mean distributions made to the Members pursuant to Section 5 4 "Tax Matters Member" shall mean the "tax matters partner" as provided in Code Section 6231(a)(7), and initially shall be (member) "Treasury Regulations" shall mean the current and temporary regulations promulgated by the U S Treasury Department under the Code. "Unit" means each unit of Membership Interest ARTICLE III: PURPOSE AND CHARACTER OF THE BUSINESS 3 1 General Purposes. The purposes of the Company shall be general business consulting and any other lawful activity for which a limited liability company may be organized under the Act. 3.2 Authority. The Company may make, execute, deliver and perform any and all contracts, commitments, undertakings, consents, restrictions, covenants, warranties, expressions of investment intent and other agreements or arrangements, and may engage in any and all activities and transactions, as may, in the opinion of the Board (as provided for in Article 6 hereof), be necessary or appropriate to carry out the objectives and purposes described in Section 3.1. 3 3 Tax Classification. It is the intent of the Members that the Company shall always be operated in a manner consistent with its treatment as a "pass -through entity" for federal, state and local mcome and franchise tax purposes. As such, in the event that the Company has one Member, including a Membership Interest, which is held in joint tenancy or otherwise, the Company shall elect to be 7 designated as a "disregarded entity" for tax purposes Similarly, in the event that the Company has more Pq than one Member, the Company shall elect to be designated as a "partnership" for tax purposes In accordance therewith, (a) no Member shall file any election with any taxing authority to have the Company treated otherwise, and (b) each Member hereby represents, covenants, and warrants that it has not maintained and shall not maintain a position inconsistent with such treatment The Board agrees that, except as otherwise required by applicable law, it (i) will not cause or permit the Company to elect (A) to be excluded from the provisions of Subchapter K of the Code, or (B) to be treated as a corporation or an association taxable as a corporation for any tax purposes; (ii) will cause the Company to make any election reasonably determined to be necessary or appropriate in order to ensure the treatment of the Company as a pass -through entity for all tax purposes; (iii) will cause the Company to file any required tax returns in a manner consistent with its treatment as a pass -through entity for tax purposes; and (iv) has not taken, and will not take, any action that would be inconsistent with the treatment of the Company as a pass -through entity for such purposes ARTICLE IV: CAPITAL CONTRIBUTIONS; UNITS. 4 1 Capital Contributions of Members (a) Effective as of the date of the Original Agreement, the initial Members have contributed cash in exchange for the issuance of 100% of the entity Contributions by Richard Huwa, Brent Huwa, Tyrun Huwa and Corey Huwa are $100,000, in aggregate Obviously, other amounts maybe needed and agreed hereto (b) Except as provided m Section 4.1(a), no Member shall have any obligation to make any Capital Contributions to the Company (c) Each Member admitted following the date of this Agreement shall contribute the type and amount of capital determined by the Board, in exchange for the number of Units to be issued to such Member, as determined by the Board (d) In the event that the Board determines, by a majority vote, that additional Capital Contributions are necessary for the operations of the Company, the Executive Manager shall deliver a notice to each Member stating the amount of additional Capital Contributions needed and the date upon which it must be made Upon receipt of the notice, each Member shall contribute his, her or its pro rata share of the additional Capital Contributions required In the event that a Member is unable to contribute his, her or its pro rata share of the additional Capital Contributions within the time period specified in the notice ("Non -Contributing Member"), any other Member may contribute the amount that was to be contributed by the Non -Contributing Member ("Contributing Member") and such contribution shall be deemed a loan ("Contribution Loan") from the Contributing Member to the Non -Contributing Member All distributions or amounts to be paid of any kind, including, without limitation, distributions of Profits or payment of Purchase Price as a result of a Disposition, which would have been paid to the Non - Contributing Member shall be paid to the Contributing Member, together with interest on the outstanding principal balance of the Contribution Loan at the then applicable pnme rate plus ten percent as denominated by the Company's primary bank until the Contribution Loan has been repaid in full. In addition, the Contnbutmg Member shall have a lien, without any further action, on the Membership Interests of the Non -Contributing Member, and the Non -Contributing Member shall pledge to the Contributing Member any certificates evidencing any Units owned by the Non -Contributing Member until such time as the Contribution Loan is repaid 4 2 No Right to Return of Contribution; No Interest on Capital. Except as provided in this Agreement, no Member shall have the right to withdraw or receive any return of, or interest on, its Capital 8 Contribution or on any balance in such Member's Capital Account. Under any circumstances requiring a Pr'1\ return of any Capital Contribution, no Member shall have the right to receive property other than cash. 4 3 Units All Membership Interests shall be denominated in percentages or units, which shall be issued by the Company in consideration of Capital Contnbutions in amounts determined by the Board by majority vote The Company shall not issue any Units, grant any percentage ownership or accept any Capital Contributions except with approval of the Board by a majority vote. The Board shall also have the authority to issue warrants, options or other rights to purchase Units in such amounts, designations and classes and at an exercise price as may be determined by a majority vote of the Board 4.4 Loans to Company The Members may, but are not obligated to, make secured or unsecured loans to the Company from time to time, as determined by the Board No such loans shall be treated as Capital Contributions for any purpose under this Agreement, nor entitle any Member to any increase in such Member's share of the Profits and Losses and distributions of the Company. The principal and interest on any loans to the Company made pursuant to this Section 4.4 shall be repaid prior to any distributions to Members pursuant to Articles V or XI 4.5 Creditor's Interest in Company. No creditor who makes a nonrecourse loan to the Company shall have or acquire, at any time as a result of making the loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a secured creditor. Notwithstanding the foregoing, this provision shall not prohibit in any manner whatsoever a secured creditor from participating in the profits of operation or gross or net revenues of the Company or in the gain on sale or refinancing of the Company, all as may be provided in its loan or security agreements. 4.6 Limited Liability of Members The Members shall not be liable for any of the debts, liabilities, contracts or other obligations of the Company. Except as otherwise provided in this Agreement or under applicable law, the Members shall be liable only to make their respective initial Capital Contributions, and the Members shall not be required to lend any funds to the Company or, after their initial Capital Contribution shall have been paid, to make any further Capital Contributions 4 7 Other Business Except as they otherwise may have agreed with the Company, the Members and any Affiliate of any of the Members may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others To the extent that, at law or in equity, a Member or any Affiliate has duties (including fiduciary duties) and liabilities to the Company or to the Members, no such Person shall be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expand or restrict the duties and liabilities of any such Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Person. 4.8 Conflicts of Interest Except for a Member who is also an employee of the Company and who owns less than a majority of the Units outstanding (an "Employee Member"), a Member shall be entitled to enter into transactions that may be considered to be competitive with, or a business opportunity that may be beneficial to, the Company. An Employee Member owes a duty of loyalty to the Company and shall, at all times, refrain from enter into transactions that may compete with the Company or interfere with any of the Company's customer, vendor or supplier relationships ARTICLE V: PROFITS, LOSSES, DISTRIBUTIONS 5 1 Profits and Losses, Generally The Profits and Losses of the Company for each Fiscal Year (or shorter period selected by the Board) will be allocated to the Members as may be determined by the 9 Board. In the event that the Board fails to make a determination, the Profits and Losses of the Company /"1\ for a Fiscal Year will be allocated to the Members pro rata in accordance with their Percentage Interests, unless otherwise provided m this Agreement 5.2 Regulatory Allocations and Other Allocation Rules. Notwithstanding anything herein to the contrary, the following special allocations shall be made as follows, and, as appropriate, in the following order (a) Items of Company loss and deduction otherwise allocable to a Member hereunder that would cause such Member (hereinafter, a "Restricted Member") to have a deficit balance in its Adjusted Capital Account, or would increase the deficit balance in its Adjusted Capital Account, as of the end of the Fiscal Year to which such items relate shall not be allocated to such Restricted Member and instead shall be allocated to other Members with positive balances in their Adjusted Capital Accounts pro rata in proportion to their positive Adjusted Capital Account balances (b) If there is a net decrease in Company Minimum Gain for any Fiscal Year (except as a result of conversion or refinancmg of Company indebtedness, certain capital contributions or revaluation of the Company's property as further outlined in Treasury Regulation Sections 1 704-2(d)(4), (f)(2) or (O(3)), each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Member's share of the net decrease in Company Minimum Gain The items to be so allocated shall be determined in accordance with Treasury Regulations Section 1.704-2(f) This Section 5 2(b) is intended to comply with the minimum gain chargeback requirement in said section of the Treasury Regulations and shall be interpreted consistently therewith Allocations pursuant to this Section 5.2(b) shall be made in proportion to the respective amounts required to be allocated to each Member pursuant hereto. (c) If there is a net decrease in Mmimum Gain Attributable to Member Nonrecourse Debt during any Fiscal Year (other than due to the conversion, refinancing or other change in ,the debt instrument causing it to become partially or wholly nonrecourse, certain capital contributions, or certain reevaluations of the Company's property as further outlined in Treasury Regulations Section 1.704- 2(i)(4)), each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Member's share of the net decrease in the Minimum Gam Attributable to Member Nonrecourse Debt. The items to be so allocated shall be determined in accordance with Treasury Regulations Section 1 704-2(i)(4) and (j)(2) This Section 5.2(c) is intended to comply with the minimum gain chargeback requirement with respect to Member Nonrecourse Debt contained in said section of the Treasury Regulations and shall be interpreted consistently therewith. Allocations pursuant to this Section 5.2(c) shall be made in proportion to the respective amounts required to be allocated to each Member pursuant hereto. (d) In the event a Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and such Member has a deficit balance m its Adjusted Capital Account, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate the deficit balance as quickly as possible. This Section 5.2(d) is intended to constitute a "qualified income offset" under Treasury Regulations Section 1 704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. (e) Nonrecourse Deductions for any Fiscal Year or other applicable period shall be allocated to the Members as deemed appropriate by the Board, but only as permitted by the Treasury Regulations. (0 Member Nonrecourse Deductions for any Fiscal Year or other applicable period shall be specially allocated to the Member that bears the economic risk of loss for the debt (i e , the Member 10 Nonrecourse Debt) in respect of which such Member Nonrecourse Deductions are attributable (as determined under Treasury Regulations Section 1.704-2(b)(4) and (i)(1)). (g) To the extent that Treasury Regulations Section 1 704-1(b)(2)(iv)(m) requires that Capital Accounts be adjusted with respect to an adjustment to the basis of Company property pursuant to a Code Section 754 election, such adjustment shall be treated as an item of income, gain or loss and allocated to the Members as appropriate. (h) In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the amount such Member is obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 5.2(h) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such amount after all other allocations provided for under this Agreement have been made as if Section 5.2(d) and this Section 5 2(h) were not in this Agreement. (i) The allocations set forth in Sections 5 2(a) through (and including) 5.2(h) (the "Regulatory Allocations") are intended to comply with certain requirements of the Treasury Regulations It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 5.2(i). Therefore, notwithstanding any other provision of the Agreement (other than the Regulatory Allocations), the Board shall make such offsetting special allocations of Company income, gain, loss or deduction in current or future periods in whatever manner it determines appropriate such that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Section 5 1 hereof. In exercising its discretion under this Section 5.2(i), the Board shall take into account future Regulatory Allocations under Sections 5.2(b) and 5 2(c) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 5.2(e) and 5.2(f). (j) Allocations to Members whose interests vary during a year by reason of transfer, redemption, admission, capital contributions, or otherwise, shall be made as determined by the Board in accordance with permissible methods under Code Section 706 5.3 Tax Allocations. (a) Subject to Section 5 3(b), items of income, gain, loss, deduction and credit to be allocated for income tax purposes shall be allocated among the Members on the same basis as the corresponding "book items," as provided in Sections 5 1 and 5 2. (b) If any Company property is subject to Code Section 704(c) or is reflected in the Capital Accounts of the Members and on the books of the Company at a value that differs from the adjusted tax basis of such property, then the tax items with respect to such Company property shall, in accordance with the requirements of Code Section 704(c) and applicable Treasury Regulations Section 1 704- 1(b)(4)(i), be shared among the Members in a manner that takes account of the variation between the adjusted tax basis of the applicable property and its value in the same manner as variations between the adjusted tax basis and fair market value of property contributed to the Company are taken into account in determining the Members' share of tax items under Code Section 704(c). The Company shall select any reasonable method for allocations of tax items made in accordance with this Section 5.3(b) permitted by Section 1 704-3(d) of the Treasury Regulations, as determined by the Board 11 (c) Pursuant to Treasury Regulations Section 1.752-3, each Member's interest in Company profits, for purposes of determining such Member's share of excess "nonrecourse liabilities," shall be the Member's Percentage Interest. (d) The Members are aware of the income tax consequences of the allocations made by this Agreement and shall report their shares of Profits and Losses and other items of Company income, gain, loss and deduction for income tax purposes consistently with this Agreement 5 4 Non -Liquidating Distributions. (a) General Subject to applicable law and any limitations elsewhere in this Agreement, the Board may elect from time to time to distribute assets of the Company, including cash, to the Members in proportion to their respective Percentage Interests or in any other proportion as the Board may determine. (b) Tax Distributions (i) The Company shall use commercially reasonable efforts to distribute to each Member with respect to each Fiscal Year an aggregate amount in cash equal to the excess, if any, of (A) the sum of the following amounts (I) the product of the Tax Percentage for such Fiscal Year and such Member's allocable share of the Company's aggregate net long-term capital gain (as defined in Section 1222(7) of the Code) for such Fiscal Year and all previous Fiscal Years as shown on the Company's federal income tax returns, and (II) the product of the Tax Percentage for such Fiscal Year and such Member's allocated share of the Company's aggregate net ordinary income and net short-term capital gain (as defined in Section 1222(5) of the Code) for such Fiscal Year and all previous Fiscal Years as shown on the Company's federal income tax returns, over (B) all previous distributions (including Tax Distributions) made to such Member pursuant to this Section 5 4; provided, however, that the aggregate amount of any such distribution may be reduced or not made with respect to any Fiscal Year if and to the extent determined by the Board in its discretion, and provided further that the Company shall make Tax Distributions, if any, in a manner such that the Members can make estimated tax payments attributable to their respective distributive, aggregate shares of Company net taxable income, if any, under the principles of this Section 5.4(b)(t) In the event that distributions of the Company are subject to any state withholding tax, the amount distributable pursuant to this Section 5.4(b) shall be increased as required so that the after -withholding tax amount actually distributed will be equal to the amount required to be distributed hereunder (ii) For purposes of this Section 5 4(b) (A) the "Tax Percentage" for any Member, with respect to each specific item of net long-term capital gain, shall be twenty-five percent, and (B) the "Tax Percentage" for any Member, with respect to items of net ordinary income and net short-term capital gain, shall be forty-five percent. (iii) In calculating the Company's net income and gain for purposes of this Section 5 4(b), there shall be disregarded any items of loss, expense or deduction the ultimate deductibility of which may, in respect of any Member or equity holder of a Member, be subject to limitation under Section 67 of the Code. (iv) Distributions made to any Member in cash pursuant to Section 5 4(a) during any Fiscal Year shall reduce dollar -for -dollar the amount of distributions that may be considered Tax Distributions to which such Member would have been entitled pursuant to this Section 5 4(b) with respect to such Fiscal Year if the Board had exercised its discretion to make such Tax Distributions. If the Company makes Tax Distributions to the Members pursuant to this Section 5 4(b), the Board shall, as soon as possible, and if practicable prior to making any subsequent Tax Distributions, adjust subsequent 12 distributions among the Members to the extent necessary to preserve the intended economic relationship among the Members as set forth in Section 5 4(a); provided, that in no event shall this sentence be construed as reducing the amount which a Member would otherwise be entitled to receive as a liquidating distribution in respect of his, her or its Capital Account balance pursuant to Section 5.5. (c) Other Rules None of the Company, the Board or any Member will incur any liability under this Agreement for making distributions in accordance with this Section 5.4. No distribution of assets shall be made to the Members if, after giving effect to the distribution, the Company would not be able to pay its debts as they become due in the usual course of business Except for distributions made m violation of applicable law or this Agreement, no Member shall be obligated to return any distribution to the Company or pay the amount of any distribution for the account of the Company to any creditor of the Company. 5 5 Liquidating Distributions. Notwithstanding anything in this Agreement to the contrary, distributions in liquidation of the Company will be made to the Members in accordance with their positive Capital Account balances after all other adjustments to such Capital Accounts with respect to the year of liquidation For purposes of this provision, liquidation will have the meaning assigned to it in Treasury Regulations Section 1.704-1(b)(2)(ii)(g). The timing of such liquidating distributions will comply with Treasury Regulation Sections 1 704-1 or any similar regulation promulgated in the future, or if no such regulation exists, as soon as possible 5 6 Withholding (a) The Company shall withhold taxes from distributions to, and allocations among, the Members to the extent required by law (as determined by the Board in its sole discretion) Except as otherwise provided in this Section 5 6, any amount so withheld by the Company with regard to a Member shall be treated for purposes of this Agreement as an amount actually distributed to such Member pursuant to Article V. An amount shall be considered withheld by the Company if and at the time such amount is remitted to a governmental agency without regard to whether such remittance occurs at the same time as the distribution or allocation to which it relates; provided, however, that an amount actually withheld from a specific distribution or designated by the Board as withheld from a specific allocation shall be treated as if distributed at the time such distribution or allocation occurs (b) Each Member shall indemnify the Company and the other Members for any liability they may incur for any failure to properly withhold taxes in respect of such Member Moreover, each Member hereby agrees that neither the Company nor any other Member shall be liable for any excess taxes withheld in respect of such Member's interest in the Company and that, in the event of over -withholding, a Member's sole recourse shall be to apply for a refund from the appropriate governmental authority. (c) Taxes withheld by third parties from payments to the Company shall be treated as if withheld by the Company for purposes of this Section 5 6 Such withholding shall be deemed to have been made in respect to all the Members, as reasonably determined by the Board In the event that the Company receives a refund of taxes previously withheld by a third party from one or more payments to the Company, the economic benefit of such refund shall be apportioned among the Members in a manner reasonably determined by the Board to offset the prior operation of this Section 5.6(c) in respect of such withheld taxes. (d) If the Company is required to remit cash to a governmental agency in respect of a withholding obligation arising from an in -kind distribution by the Company or the Company's receipt of an in -kind payment, the Board may cause the Company to sell an appropriate portion of such property and, to the extent permitted by applicable law (as determined by the Board in its reasonable discretion) 13 any resulting income or gain shall be allocated solely for income tax purposes entirely to the Members in respect of whom such withholding obligation arises 5.7 Accounting Method The books and records of account of the Company shall be maintained in accordance with the cash method of accounting. However, the Board shall have the option of filing federal income tax returns on an accrual basis, to the extent such reporting is available under the Code and Treasury Regulations, in which event the Company shall maintain such books and records as may be required to prepare such returns based on the accrual method of accounting. 5.8 Records, Audits and Reports. At the expense of the Company, the Board shall maintain records and accounts of all operations and expenditures of the Company The books of the Company (other than books required to maintain Capital Accounts) shall be kept in accordance with principles determined by the Board (consistent with this Agreement), and shall at all times be maintained or made available at the principal office of the Company At a minimum, the Company shall keep at its principal place of business the following records. (a) A current list of the full name and last known business, residence or mailing address of each Member, both past and present, (b) A copy of the Articles and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed, (c) Copies of the Company's federal, state and local income tax returns and reports, if any, for the six most recent years; (d) Copies of this Agreement in, its current form, and all amendments thereto, copies of any prior written operating agreement no longer in effect, copies of any writings permitted or required with respect to a Member's obligation to contribute cash, property or services, and copies of any financial statements of the Company for the three most recent years, (e) Minutes of every annual, special and court -ordered meeting of the Board and the Members, and (f) Any written consents obtained from the Board or the Members for action taken by the Board or the Members, respectively, without a meeting VI: MANAGEMENT AND CONTROL 6 1 Exclusive Management by Board Each Member hereby delegates to the Board the exclusive authority to manage the Company's business except as to those matters as to which (i) the approval of some or all of the Members is expressly required by this Agreement or by the Act, (ii) the Board fails or refuses to act, or (iii) the Board submits the matter for approval to the Members Subject to the provisions of the Articles, the Act and this Agreement relating to actions required to be approved by the Members, the business, property and affairs of the Company shall be managed and all powers of the Company shall be exercised by or under the direction of the Board, which shall have all of the rights and powers which may be possessed by a "manager" under the Act, and such rights and powers as are otherwise conferred by law or by this Agreement 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 or activities customary or incident to the management of the Company's business, property and affairs Without limiting the generality of the foregoing, the functions of the Board shall include, without limitation: (1) authorizing distributions pursuant to Article 5, and (2) performing such other functions as are provided for in this 14 Agreement. The Board shall have the authority to adopt rules and procedures, not inconsistent with this Agreement, relating to the conduct of its affairs, including the power to take action by resolution of all the Managers without a meeting. Decisions of the Board within the scope of its authority shall be binding on the Company and each Member. Any Member who takes any action or binds the Company in violation of this Section 6.1 shall be solely responsible for any loss and expense incurred as a result of the unauthorized action and shall indemnify and hold the Company and the other Members harmless with respect to the loss or expense arising out of or relating thereto. 6 2 Meetings of the Board and of the Members (a) Calling a Meeting No annual or regular meeting of the Members is required Meetings of the Members may be called, for any purpose, by a majority of the Board, the Executive Manager (as hereinafter defined) of the Company or by any Member or Members holding at least a majority of all Percentage Interests Meetings of the Board may be called by any Manager, provided that the Board, as a group, shall have the authority to establish a regular meeting schedule Nothing in this Agreement is intended to require that meetings of the Board be held, it being the intent of the Members that meetings of the Board are not required. (b) Attendance at Meetings: Minutes. Attendance at meetings of either the Members or the Board may be by speaker telephone or other communications device by which all those participating in the meeting may hear each other. The Board shall keep written minutes of all meetings, and the minutes of each meeting shall be signed by the Managers attending or participating by conference call The minutes shall be Included in the records of the Company (c) Notice; Place of Meetings All meetings of the Board or the Members shall be held upon /°"h at least seven days' notice by mail or twenty-four hours' notice delivered personally or by telephone, telegraph or facsimile to each Manager or Member entitled to vote at such meeting Such notice shall specify the place, day and hour of the meeting and the purpose or purposes for which the meeting is being called Notice of a meeting need not be given to any Manager or Member who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior to its commencement, such lack of notice All such waivers, consents and approvals shall be filed with the Company records or made a part of the minutes of the meeting Meetings of the Board or the Members may be held at any place within or without the State of Colorado which has been designated in the notice of the meeting or at such place as may be approved by the Board If all of the Members or Managers shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken. (d) Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the record date for the determination of Members shall be the date on which notice of the meeting is mailed or otherwise given or the date on which the resolution declaring such distribution is adopted, as the case may be When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 6 2, such determination shall apply to any adjournment thereof. (e) Quorum Attendance by Members holding a majority of all Percentage Interests shall constitute a quorum at any meeting of Members. A majority of the number of Managers on the Board constitutes a quorum of the Board for the transaction of business A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of Managers or 15 Members, as applicable The provisions of this Section 6.2 apply also to committees of the Board and actions taken by such committees. (f) Manner of Acting If a quorum is present at a meeting of the Members, the affirmative vote of Members holding a majority of the aggregate Percentage Interests represented in person or by proxy shall be the act of the Members, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles or by this Agreement. If a quorum is present at a meeting of the Board, the affirmative vote of a majority of the Managers on the Board shall be the act of the Board, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles or by this Agreement (g) Votma. Members shall be entitled to vote with respect to, or approve, all matters requiring the vote or approval of the Members in this Agreement or the Articles or under the Act (h) Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney -in -fact Such proxy shall be filed with the Executive Manager of the Company before or at the time of the meeting. (t) Action Without a Meeting. Action required or permitted to be taken at a meeting of Members or Managers may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by all of the Members or Managers, as the case may be, and delivered to the Executive Manager for inclusion in the minutes or for filing with the Company records Action taken under this paragraph is effective when all of the Members or Managers, as the case may be, have signed the consent, unless the consent specifies a different effective date The record date for determining Members entitled to take action without a meeting shall be the date the first Member signs a written consent. (j) Waiver of Notice. When any notice is required to be given to any Member or Manager, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice 6.3 Election of Board. (a) Election of Managers. The Board initially shall initially consist of four members indicated in this document. Each Manager elected pursuant to the previous sentence of this Section 6.3(a) is referred to as a "Designated Manager." Each Member shall vote its Percentage Interest in a manner consistent with the terms and intent of this Section 6.3(a) and, without limiting the generality of the foregoing in favor of (i) the size of the Board not being increased to a number greater than that provided above unless agreed upon by the Designated Managers, and (ii) the election of the Designated Managers in accordance with this Section 6 3(a), and against filling with any individual other than a Designated Manager any vacancy on the Board for which any Member is entitled to designate a Designated Manager but for any reason fails to do so, or elects not to do so. Initially the Managers shall be the Members in aggregate (b) Vacancies on the Board In the event of the death, disability, retirement, resignation or removal of any Designated Manager (i) each Manager shall have the right, but not the obligation at any particular time, to designate another individual to fill such vacancy and to serve as a Designated Manager, and (ii) the Members shall use their best efforts and take all actions necessary to call, or cause the Company and the appropriate Managers of the Company to call (and if the Members or the Company shall fail or refuse to call such a meeting, the Member having the right to designate a replacement Designated Manager may call), a meeting of Members of the Company and shall vote at any such meeting 16 in favor of, or take all actions by written consent in lieu of any such meetings necessary to cause, the election of the individual so designated In the event of the death, disability, retirement, resignation or removal of any other Manager that is not a Designated Manager, the Board shall have the right, but not the obligation at any particular time, to designate another individual to fill such vacancy and to serve as a Manager upon a majority vote of the Managers. (c) Removal. A Designated Manager may be removed at any time by majority vote Any removal shall be without prejudice to the rights, if any, of the Manager under any employment contract and, if the Manager is also a Member, shall not affect the Manager's rights as a Member or constitute a withdrawal of a Member. 6.4 Powers of the Board In addition to all of the powers given to a manager under the Act or other applicable law, but subject to the limitations on the authority of the Board under Section 6 5 or elsewhere in the Agreement, the Board shall have all necessary powers to manage and carry out the purposes, business, and affairs of the Company, including, without limitation, the power to (a) distribute funds to the Members by way of cash flow, income, return of capital, or otherwise, all in accordance with the provisions of this Agreement; (b) employ from time to time, at the expense of the Company, on such terms and for such compensation as the Board may determine, but subject to this Agreement, Persons to render services to the Company, including without limitation, accountants and attorneys (who may also act as such for the Board or any of their Affiliates), and (c) cause to be paid all expenses, fees, charges, taxes, and liabilities incurred or arising in connection with the) Company, or in connection with the management thereof, including without limitation the Managers' fees and compensation provided for in this Agreement and such expenses and charges for the services of the Company's employees, accountants, attorneys, and other agents or independent contractors, and such other expenses and charges as the Board deems necessary or advisable to incur. (d) enter into, make, perform and terminate contracts, agreements and other undertakings (including without limitation, contracts, agreements and other undertakings relating to the hiring, termination or compensation of employees) binding the Company that may be necessary, appropnate, or advisable in furtherance of the purposes of the Company, and making all decisions and waivers thereunder; (e) incur indebtedness for borrowed money; (f) open and maintain bank and investment accounts and arrangements, draw checks and other orders for the payment of money, and designate individuals with authority to sign or give instructions with respect to those accounts and arrangements, (g) invest the funds of the Company as they may deem advisable, (h) collect sums due the Company; (i) to the extent that funds of the Company are available therefor, pay debts and obligations of the Company, 17 (1) acquire, use for Company purposes and sell, lease, trade, exchange or otherwise dispose of all or any portion of the assets or property of the Company; (k) select, remove and change the authority and responsibility of lawyers, accountants and other advisers and consultants in connection with the operation of the Company; (1) purchase, at the expense of the Company, liability, casualty and other Insurance and bonds to protect the Company's properties and the Members; (m) maintain adequate records and accounts of all operations and expenditures; (n) execute and deliver any and all agreements, documents and other instruments necessary or incidental to the conduct of the operations of the Company, (o) enter into or participate in joint ventures, limited partnerships, or limited liability companies, or acquire any interest in any corporation or other entity, (p) make, execute, or deliver any assignment for the benefit of creditors or cause the Company to file for bankruptcy, (q) grant a lien upon or otherwise encumber any of the assets of the Company; (r) commence or settle any litigation, (s) guaranty the obligation of any person or entity 6 5 Certain Limitations. Notwithstanding Section 6.4, the Company shall not, and shall have no authority to, take any of the following actions unless such actions are approved by unanimous approval of the Managers. (a) any amendment to the Articles, (b) any (1) change in the method of determining Fair Market Value and (2) determination of Fair Market Value of any Interests Subject to the Offer, (c) the incurrence of any indebtedness for borrowed money in excess of $1 million principal amount, or any modification of any such indebtedness, (d) the establishment, modification or staffing of any committee or subcommittee of the Board; (e) the issuance of any Units or any options, warrants or other rights to acquire Units, (0 any merger or consolidation of the Company or sale of all or substantially all of the assets of the Company, (g) the admission of any additional or substitute Members, or (h) as provide elsewhere in this Agreement 6.6 Appointment of Executive Manager There shall, at all times, be an Executive Manager of the Company. The Board shall appoint the Executive Manager. The Executive Manager shall exercise such 18 powers and perform such duties as specified in this Agreement and as shall be determined from time to time by the Board The Executive Manager initially shall be Brent Huwa (a) Removal. Resignation and Filling of Vacancy of the Executive Manager The Executive Manager may be removed, either with or without cause, by a majority vote of the Board at any time The Executive Manager may resign at any time by giving written notice to the Board. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice, and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. A vacancy because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in this Agreement (b) Duties and Powers of the Executive Manager. The Executive Manager shall, subject to the control of the Board, have general and active management of the business of the Company and shall see that all orders and resolutions of the Members and Board are carried into effect He or she shall have the general powers and duties of management usually vested in the office of a chief executive officer of a corporation, and shall have such other powers and duties as may be prescribed by the Board or this Agreement The Executive Manager shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Company, except where required or permitted by law to be otherwise signed and executed, and except where the signing and execution thereof shall be expressly delegated by the Board to some other Manager or agent of the Company. Notwithstanding anything to the contrary in this Agreement, neither the Executive Manager nor any other Manager shall have any authority to take any of the actions described in Section 6.4 and 6.5 without first obtaining the consent of the Board as provided in those Sections (c) Acts of the Executive Manager as Conclusive Evidence of Authority. Any note, /°"'1 mortgage, evidence of indebtedness, contract, certificate, statement, conveyance, or other instrument in wnting, and any assignment or endorsement thereof, executed or entered into between the Company and any other Person, when signed by the Executive Manager of the Company, is not invalidated as to the Company by any lack of authority of the Executive Manager in the absence of actual knowledge on the part of the other Person that the Executive Manager had no authority to execute the same (d) Signing Authority of Managers Subject to any restrictions imposed by the Board, any Manager, 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 individuals authorized from time to time by the Board to do so. Any instrument may be executed and delivered on behalf of the Company by the Executive Manager of the Company, or any other Manager of the Company delegated by resolution of the Board to do so, including any deed, deed of trust, note or other evidence of indebtedness, lease agreement, security agreement, financing statements, contract of sale, or other instrument purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, at any time held in its name, or any receipt or compromise or settlement agreement with respect to the accounts receivable and claims of the Company, and no other signature shall be required for any such instrument to be valid, binding, and enforceable against the Company in accordance with its terms All persons may rely thereon and shall be exonerated from any and all liability if they deal with the Executive Manager of the Company on the basis of documents approved and executed on behalf of the Company by the Executive Manager. Any person dealing with the Company or its Board or Members may rely upon the certificate signed by any Manager of the Company as to (i) The identity of the Members or Managers; (ii) Acts by the Members or Managers; and 19 (iii) Any act or failure to act by the Company as to any matter whatsoever involving the Company or any Member. (e) Bank Accounts The Managers may from time to time open bank accounts in the name of the Company 6 7 Conflicts of Interest (a) The Managers shall be required to devote only such time to the affairs of the Company as such Managers determine, in their sole, but reasonable discretion, may be necessary in light of the authority delegated to and responsibilities undertaken by the Board. The Managers shall otherwise remain free to engage in such independent activities, as they may deem appropriate in their discretion. (b) Any Manager or Affiliate thereof may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Company, and the Company and the Members shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits derived there from, and the pursuit of any such venture, even if competitive with the business of the Company, shall not be deemed wrongful or improper (c) Notwithstanding that it may constitute a conflict of interest, but subject to Section 6 5, a Manager may, and may cause his Affiliates to, engage in any transaction (including, without limitation, the purchase, sale, lease, or exchange of any property or the rendering of any service, or the establishment of any salary, other compensation, or other terms of employment) with the Company so long as such transaction is not expressly prohibited by this Agreement and so long as the terms and conditions of such eseo\ transaction, on an overall basis, are fair and reasonable to the Company and are at least as favorable to the Company as those that are generally available from Persons capable of similarly performing them and in similar transactions between parties operating at arm's length. 6.8 Limitation on Liability The Managers of the Company shall not be liable, responsible, or accountable, in damages or otherwise, to the Company or any Member for any action taken or any failure to act on behalf of the Company within the scope of the authority conferred on the Managers by this Agreement or by law, unless the act or omission was performed or omitted fraudulently, in bad faith, or in contravention of this Agreement, or constituted gross negligence 6 9 Indemnification and Liability of Managers (a) None of the Managers of the Company shall be liable, responsible or accountable in damages or otherwise to the Company or any Member for any acts performed, or for any failure to act within the scope of this Agreement. To the fullest extent permitted by law, each Manager of the Company (individually, each an "Indemnitee") shall be indemnified, held harmless and defended by the Company from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred or suffered by such Indemnitee, as a party or otherwise, in connection with any threatened, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal, ansing out of or in connection with the business or the operation of the Company, or by reason of the Indemnitee's status as a Manager of the Company, regardless of whether the Indemnitee retains such status at the time any such loss, claim, damage, liability, or other expense is paid or incurred if (i) the Indemnitee acted within the scope of such Person's authority pursuant to this Agreement with respect to any criminal proceeding, had no reasonable cause to believe that such conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute fraud, gross 20 negligence, willful misconduct or a material breach of the terms of this Agreement The termination of any action, suit or proceeding by judgment, order, settlement or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Indemnitee acted in a manner contrary to the standards specified in clauses (i) or (ii) of this Section 6.9. (b) To the fullest extent permitted by law, expenses incurred by an Indemnitee to defending any claim, demand, action, suit or proceeding subject to this section shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Indemnitee to repay such amount unless it is determined that such Indemnitee is entitled to be indemnified therefore pursuant to this Section 6 9 (c) The indemnification provided by this Section 6 9 shall be in addition to any other rights to which any Indemnitee may be entitled under any other agreement, as a matter of law or otherwise, and shall inure to the benefit of the heirs, legal representatives, successors, assigns and administrators of the Indemnitee (d) Any indemnification under this Section 6 9 shall be satisfied solely out of the assets of the Company and no Indemnitee shall have any recourse against any Member with respect to such indemnification. (e) An Indemnitee shall not be denied indemnification, in whole or in part, under this Section 6.9 merely because the Indemnitee had an interest in the transaction with respect to which the indemnification applies, if the transaction was not otherwise prohibited by the terms of this Agreement and the conduct of the Indemnitee satisfies the conditions set forth in this Agreement (f) The indemnification provided in this Section 6 9 is for the benefit of the specified Persons only and shall not be deemed to create any right to indemnification for any other Person. (g) The Company may, but shall have no obligation to, purchase and maintain insurance covering any potential liability of the Indemnitees for any actions or omissions for which indemntftcation is permitted hereunder including such types of insurance (mcluding extended coverage liability and casualty and workers' compensation) as would be customary for any person engaged in a similar business and may name the Indemnitees as additional insured parties thereunder (h) To the extent that a person entitled to indemnification is successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in this Section 6 9, or in the defense of any claim, issue, or matter therein, the Company shall indemnify them against the expenses, including attorneys' fees, actually and reasonably incurred by them in connection therewith 6.10 Indemnification Procedures, Survival (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action that may result in a claim for indemnification pursuant to Section 6 9, the Indemnitee shall notify the Company in writing within 30 days thereafter; provided, however, that the omission so to notify the Company shall not relieve the Company of any liability for indemnification pursuant to Section 6.9 as to the particular item for which indemnification may then be sought (except to the extent that the failure to give notice shall have been materially prejudicial to the Company) (b) An Indemnitee shall have the right to employ separate counsel in any action as to which indemnification may be sought under any provision of this Agreement and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (t) the 21 Company has agreed in writing to pay such fees and expenses, (ii) the Company has failed to assume the defense thereof without reservation and employ counsel within a reasonable period of time after being given the notice required above, or (iii) the named parties to any such action (including any =pleaded parties) include both such Indemnitee and the Company and the Indemnitee shall have been advised by its counsel that representation of such Indemmtee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them It is understood, however, that the Company shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys at any time for all such Indemnitees having actual or potential differing interests with the Company. (c) The Company shall not be liable for any settlement of any such action effected without its written consent, but if settled with such written consent, or if there ts a final judgment against the Indemnitee in any such action, the Company agrees to indemnify and hold harmless the Indemnitee to the extent provided above from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. (d) The Company may pay the expenses incurred by an Indemnitee in defending a pending or threatened civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by such person or entity to repay such payment if such person shall be determined not to be entitled to indemnification therefore as provided herein; provided, however, that in such instance such person is not defending a civil action, suit or proceeding commenced against such person by the Company itself (e) The indemnification obligation set forth in Section 6 9 shall survive the termination of this Agreement 6 11 Reimbursement of Expenses. The Company shall reimburse its Managers for expenditures made from their own funds for Company purposes, including attendance at Board meetings ARTICLE VII: PROVISIONS APPLICABLE TO MEMBERS 7.1 Liability. Members of the Company are not liable under a judgment, decree or order of a court, or in any other manner, for a debt obligation, or liability of the Company Subject to the proceeding sentence, except as otherwise provided by the Act or any amended or successor section, a Member shall be liable with respect to the Company only to the extent of the amount of the aggregate Capital Contributions made by each such Member under this Agreement, and no Member shall have any obligation to make-up or otherwise make any contribution or payment in connection with a deficit balance in its Capital Account 7.2 No Participation in Control or Management The Members shall have no power to participate in the management of the Company except as expressly authonzed by this Agreement or the Articles and except as expressly required by the Act Unless expressly and duly authorized in writing to do so by the Board, no Member shall have any power or authority to bind or act on behalf of the Company in any way, to pledge its credit, or to render it liable for any purpose 7 3 No Withdrawal or Dissolution. The death of a Member shall not dissolve or terminate the Company. No Member at any time shall have the right to have the Company dissolved or to withdraw, or have its Capital Contribution withdrawn, from the Company, except as provided in this Agreement 22 7.4 Consent. To the fullest extent permitted by law, each of the Members hereby consents to the exercise by the Board of all of the rights and powers conferred on the Board and the Managers by this Agreement 7 5 Admission of Additional Members. No Person may be admitted as an additional Member of the Company without the approval of the Board, by a two-thirds vote Any additional Members shall obtain Membership Interests and will participate in the Profits, Losses, and distributions of the Company, and be issued Units, on such terms as are determined by the Board by a two-thirds vote. Substitute Members may only be admitted in accordance with Article 9. 7.6 Members Are Not Agents The management of the Company is vested in the Board and those Managers of the Company, which the Board decides to appoint pursuant to Section 6 6 No Member, acting solely in the capacity of a Member, is an agent of the Company nor can any Member in such capacity bind nor execute any instrument on behalf of the Company 7 7 Voting Rights (a) Except as expressly provided in this Agreement or the Articles, Members shall have no voting, approval or consent rights When permitted to vote, each Member holding a Membership Interest shall be entitled to vote his, her or its Percentage Interest (b) If any action described in Section 6 5 is approved by the Board in accordance with such Section, and such action requires the vote of the Members in order to be implemented or otherwise is submitted by the Board to the Members for their approval, then each of the Members shall vote his, her or its entire Percentage Interest in favor of such action at any meeting of the Company's Members or by prompt execution of written consents in form approved by the Board provided that, in the case of any merger, reorganization, sale of all or substantially all of the Company's assets, each Member be treated on an equivalent pro rata basis with respect to his, her or its Membership Interests. ARTICLE VIII: BOOKS OF ACCOUNT; REPORTS AND FISCAL MATTERS e"\ 8.1 Books. Place; Access The Managers shall maintain proper and complete books of account on behalf of the Company Such books of account, together with an executed copy of this Agreement and the Articles shall be kept at the principal office of the Company All Members or their legal counsel shall at all reasonable times have access to and the right to inspect and copy the same at any time during ordinary business hours 8.2 Attorneys and Accountants. Financial Reports. The attorneys and certified public accountants for the Company shall be appointed by the Board The Company's annual financial statements shall be prepared by the Company's independent certified public accountants. The Members shall receive (i) the annual financial statements of the Company within ninety days after the close of each Fiscal Year; and (ii) a report indicating such Member's share of all items of income, gain, loss or deduction of the Company for such Fiscal Year for federal income tax purposes, together with any additional tax information reasonably requested by a Member, within ninety days of the close of each Fiscal Year of the Company. The fees for any such reports shall be paid by the Company 8.3 Bank Accounts. The Executive Manager shall select a depository or depositories for the funds of the Company, and all funds of every kind and nature received by the Company shall be deposited in such account or accounts The Board shall from time to time designate the persons authorized to withdraw funds from such account. The Managers shall not commingle the funds of the Company with their own funds or the funds of any other or entity 23 8.4 Tax Matters Member; Tax Matters (a) Except to the extent specifically provided in the Code or Treasury Regulations (or the laws of other relevant taxing jurisdiction) and otherwise provided herein, the Tax Matters Member, in its sole and absolute discretion shall have exclusive authority to act for or on behalf of the Company with regard to tax matters, including the authority to make (or decline to make) any available tax elections, including any election under Section 754 of the Code and the Company's method of depreciation; provided, however, that the Tax Matters Member shall not settle any audit, extend any statute of limitation, or file any protest, petition or pleading without the prior approval of the Board . The Tax Matters Member shall cause to be prepared and filed (with the assistance of the Company's accountants) any U.S. federal, state and local tax returns for the Company on a timely basis (b) Any Member entering into a settlement agreement with the Internal Revenue Service that concerns a Company item shall notify the Tax Matters Member of such settlement agreement and its terms within 15 days after the date thereof. (c) During any Company income tax audit or other income tax controversy with any governmental agency, the Tax Matters Member shall keep the other Members informed of all material facts and developments on a reasonably prompt basis All expenses incurred by the Tax Matters Member with respect to any tax matter that does or may affect the Company, or any Member by reason thereof, including but not limited to expenses incurred by the Tax Matters Member in connection with preparation of Company tax returns and Company level administrative or judicial tax proceedings, shall be paid for out of Company assets; provided that the Company shall not be obligated to pay any such expenses incurred as a result of the Tax Matters Member's breach of fiduciary duty, breach of duty of loyalty, bad faith, gross negligence, intentional misconduct or knowing violation of the law Prompt notice shall be given to the Members upon receipt of advice that the Internal Revenue Service or other taxing authority intends to examine any income tax return, or records or books of the Company. If another Member is permitted by the Tax Matters Member or under the Code to participate in Company -level administrative or judicial tax proceedings, such Member shall be responsible for all expenses incurred by it in connection with any such participation The cost of any tax adjustments to a Member's tax return arising from an audit or other proceeding of the Company shall be solely the responsibility of such Member (d) Each Member shall furnish the Tax Matters Member with such information (including information specified in Section 6230(e) of the Code) as the Tax Matters Member may reasonably request to permit the Tax Matters Member to provide the Internal Revenue Service with sufficient information to allow proper notice to the Members in accordance with Section 6223 of the Code. ARTICLE IX: DISPOSITIONS OF MEMBERSHIP INTERESTS; PURCHASE RIGHTS 9.1 General Rule Regarding Dispositions No Member shall make any Disposition, directly or indirectly, through an Affiliate or otherwise (regardless of the manner in which such Member initially acquired Membership Interests), without complying with the provisions of this Article 9 Any Disposition or attempted Disposition in breach of this Agreement shall be void and of no effect, provided, however, that the Company may determine to treat any attempted Disposition in breach of this Agreement as an Offer pursuant to Section 9 5, and Section 9 9 shall apply to such attempted Disposition; except that the time periods stated in Section 9.9 shall begin to run as of the date the Company receives evidence satisfactory to it of such attempted Disposition. 9 2 Acquisition Proposal. In the event any Member desires, and is permitted under Section 9.9, to make a Disposition (except for Dispositions described in Sections 9 3 through 9 5 or made pursuant to 24 c Sections 9.10), such Disposition may be made only if an Acquisition Proposal is received by such Member with respect thereto, and then only in compliance with this Agreement. Upon receipt of an Acquisition Proposal that a Member desires to accept, such Member (the "Offeror") shall offer (the "Offer"), by written notice to the Company, to sell the Interests Subject to the Offer to the Eligible Offerees pursuant to the terms of this Agreement Offers under this Section 9.2 shall (i) be irrevocable for so long as any Eligible Offeree has the right to purchase any Interests Subject to the Offer, (n) be sent by the Offeror to the Company; (iii) state the consideration for and the number of Interests Subject to the Offer; and (iv) contain a description of and a copy of the Acquisition Proposal. In addition, the Offeror shall provide to the Company all other information with respect to the Acquisition Proposal and the proposed transferee reasonably requested by the Company in order to evaluate the Acquisition Proposal and verify the bona fide nature thereof The date of such Offer shall be deemed to be the date such written notice satisfying the provisions of this Section 9.2 is delivered to the Company. 9.3 Bankruptcy. If any of the following events occur (a) any Member shall voluntarily be adjudicated a bankrupt or insolvent, consent to or not contest the appointment of a receiver or trustee for himself, herself or itself or for all or any part of his, her or its property, file a petition seeking relief under the bankruptcy, rearrangement, reorganization or other debtor relief laws of the United States or any state or any other competent jurisdiction, or make a general assignment for the benefit of his, her or its creditors, or (b) if a petition is filed against a Member seeking relief under the bankruptcy, rearrangement, reorganization or other debtor relief laws of the United States or any state or other competent jurisdiction; or a court of competent junsdiction enters an order, judgment or decree appointing a receiver or trustee for a Member, or for any part of his, her or its property, and such petition, order, judgment or decree shall tali\ not be and remain discharged or stayed within a penod of sixty days after its entry, then any such event shall be deemed an irrevocable "Offer," and such Member shall promptly notify the Company of such event. The date of such Offer shall be deemed to be the date such written notice of the Offer is so delivered to the Company 9.4 Death, Dissolution, Retirement, Divorce or Separation of Employment of Member. The death or dissolution of a Member, the divorce or legal separation of a Member from that Member's spouse, or the retirement or separation of employment of a Member who is also an employee of the Company shall be deemed an irrevocable "Offer" by its, his or her estate, such corporate member, or him or her, as may be the case (the "Offeror"), and the Offeror's executor or personal representative, or such Member, promptly shall notify the Company of that event The date of such Offer shall be deemed to be the date on which such written notice is so delivered to the Company. PlIBN 9 5 Indirect Transaction In the event of a transaction involving a change of ownership interest or voting power of a Member the effect of which would be to avoid the restrictions on Dispositions provided in this Article IX, such transaction shall be deemed a Disposition by such Member and an irrevocable "Offer," and such Member (the "Offeror") promptly shall notify the Company of such event and offer (the "Offer"), by written notice to the Company, to sell all Interests Subject to the Offer to the Company for the Purchase Pnce. Offers under this Section 9 5 shall be in writing, be irrevocable for so long as any Eligible Offeree has the right to purchase any Interests Subject to the Offer, be sent by the Offeror to the Company; and contain a description of the proposed transaction and change of ownership interest or voting power The Company shall, within five business days following receipt thereof (or, if no such written notice is delivered to the Company by the Member, within five business days following the Company's receipt of evidence, satisfactory to it, of such a Disposition by the Offeror), deliver written notice of the Offer to the Eligible Offerees stating that all Membership Interests registered in the name of 25 such Member are Interests Subject to the Offer pursuant to this Section 9 5. The date of such Offer shall be deemed to be the date such written notice of the Offer is so delivered by the Company. 9.6 Procedures; Price. (a) The Company The Company shall have the right for fifteen days following the date of an Offer to accept the Offer as to all or any Interests Subject to the Offer. (b) Other Eligible Offerees If the Company does not accept the Offer with respect to all Interests Subject to the Offer within the fifteen day period specified in Section 9 2, the Company shall promptly give written notice thereof to the other Eligible Offerees, if any, and the other Eligible Offerees shall have the right, for thirty days following the receipt of such notice, to accept the Offer as to any remaining Interests Subject to the Offer in such proportions as they mutually agree, or if they are unable to agree, pro rata in proportion to their respective Percentage Interests (c) Certain Effects of Offers If the Eligible Offerees do not accept an Offer for all of the Interests Subject to the Offer, and such Offer has been made under Section 9.2 pursuant to an Acquisition Proposal, the Offeror desiring to make the Disposition pursuant to such Acquisition Proposal shall be permitted, subject to compliance with Section 9 9, at any time or times within, but not after, sixty days after the expiration of all rights to accept such Offer, to make a Disposition of all (but not less than all) of the Interests Subject to the Offer; provided, however, that no such Disposition shall be made at a lower price or on more favorable terms or to any person other than specified in the Acquisition Proposal All Membership Interests transferred in accordance with the terms of this Agreement to any third party or to any Eligible Offeree (other than the Company), and all Interests Subject to the Offer pursuant to Section 9 2 and remaining unsold after such sixty day period, and all Interests Subject to the Offer under Sections 9 3 through 9 5 (unless acquired by the Company), shall remain subject to the terms of this Agreement (d) Purchase Price In the event that the Company or any Eligible Offerees accept an Offer as to all or any Interest Subject to the Offer, the Company and/or the Eligible Offerees, as the case may be, shall pay the Purchase Price, as defined in Article II, for the Membership Interests 9 7 Acceptance, Closing Unless an Offer is accepted by one or more Eligible Offerees with respect to all of the Interest Subject to the Offer, the Offeror shall have no obligation to (but may at its option) sell any such Interests Subject to the Offer. Eligible Offerees, other than the Company, who accept an Offer as to all or any portion of the Interests Subject to the Offer shall evidence their acceptance by delivering to the Company a written notice of intent to purchase such Interests Subject to the Offer. The Company shall, in turn, promptly notify in writing any Member or any other party required to sell Interests Subject to the Offer of the receipt of such notices ("Receipt Notice") The Company shall accept an Offer as to the Interests Subject to the Offer by promptly notifying the Member or any other party required to sell Interests Subject to the Offer of such acceptance, and such notice by the Company shall be deemed a Receipt Notice The closing of the acquisitions of Interests Subject to the Offer by Eligible Offerees shall be consummated within sixty days following the delivery of the Receipt Notice. In the case of all acquisitions of Interests Subject to the Offer by Eligible Offerees, such acquisitions shall be consummated at a closing held at the principal offices of the Company (unless otherwise mutually agreed), at which time the Purchase Price (if cash, in the form of a cashier's check) shall be delivered to the transferor of the Membership Interests or the transferor's representative, and the transferor or the transferor's representative shall deliver to the Eligible Offerees purchasing the Interests Subject to the Offer instruments of transfer in form acceptable to the Company, duly executed, and evidence of good title to the Interests Subject to the Offer so purchased and the absence of liens, encumbrances and adverse 26 claims with respect thereto and such other matters as are deemed necessary 'by the Company for the proper transfer of the Interests Subject to the Offer so purchased to the acquiring Eligible Offerees. 9 8 Form of Payment. The Purchase Price of any Interests Subject to the Offer purchased by Eligible Offerees pursuant to an Offer made under Section 9.2 shall be on such terms as contemplated by the Acquisition Proposal, provided, however, that if (i) the party which has made the Acquisition Proposal has proposed to acquire Interests Subject to the Offer not wholly in cash and (ii) any Eligible Offeree desires to consummate his, her or its acquisition of Interests Subject to the Offer (pursuant to the terms hereof) wholly in cash, then, upon request by such Eligible Offeree, the Board shall determine the per share cash value of the Acquisition Proposal, and such amount shall be the cash price per share to be paid to the Offeror by any Eligible Offeree who desires to purchase the Interests Subject to the Offer for cash The Purchase Price for all Interests Subject to Offer pursuant to an Offer made under Sections 9 3 through 9.5 shall be paid in cash, provided, however, that at the option of the Board exercisable in its sole discretion, if the Company is the Eligible Offeree, the Purchase Price may be paid by (A) cash at Closing, in the amount of twenty percent of the Purchase Price, and (B) the delivery of a promissory note in the principal amount of eighty percent of the Purchase Price, made by the Company payable to the order of the Offeror, bearing interest at the then applicable prime rate as denominated by the Company's primary bank, and payable over a term of four years in annual installments of equal principal and all accrued and unpaid interest 9.9 Loan and Other Agreements; Certain Restrictions Notwithstanding anything in this Agreement to the contrary, no Member shall make any Disposition (including but not limited to a Disposition pursuant to Sections 9 2 through 9 5 or Section 9 10) which, in the Company's judgment (as evidenced by a resolution of the Board), would cause a breach or default or acceleration of payments under any loan agreement, note, indenture or other agreement or instrument to which the Company and/or its Affiliates are a party (a "Material Agreement"). Accordingly, each Member desiring or required to make a Disposition shall, prior to attempting to effect any such Disposition, (i) give wntten notice ("Notice") to the Company describing the proposed Disposition and the proposed transferee in sufficient detail, setting forth the number of interests of Membership Interests as to which such Member desires to make a Disposition, and (ri) provide such other information concerning the Disposition as the Company reasonably requests. If, in the Company's reasonable judgment (which judgment shall be communicated in wnting within ten days of the Company's receipt of the Notice and all other information it has reasonably requested), the proposed Disposition would cause a breach or default or acceleration of payments under any Material Agreement, then such Disposition may not be made, and any attempted Disposition shall be null and void If the Company approves such Disposition (which approval shall be deemed given if no notification is given by the Company in accordance with the immediately preceding sentence) and any Membership Interests with respect to which approval has been given are not actually transferred within the relevant time period provided in the applicable provisions of this Agreement, then all of the provisions of this Agreement shall apply to any subsequent transaction affecting such Membership Interests or any interest therein (except as expressly excluded by the other terms of this Agreement) Additionally, all Membership Interests transferred (whether to a third party or any Member) pursuant to a Disposition complying with the terms of this Section 9.9 shall remain subject to this Agreement 9.10 Permitted Dispositions The following Dispositions shall be permitted upon the approval of the Board by a two-thirds vote, in its sole discretion, and without compliance with the provisions of Sections 9 2 through 9.5, but Section 9 9 shall apply to each of the following Dispositions. (a) by any Member to the Company or to any other Member, 27 (b) by any individual Member during his lifetime to an inter-vivos trust for the benefit of such Member, or (c) by any Member that is a wholly -owned entity to any Affiliate of such Member, provided, however, that as a condition to any such permitted transfer, at the 'option of the Board any Person so acquiring such Membership Interests may be required to be admitted as a Member in accordance with Section 9 12 9.11 Co -Sale. If Members holding Percentage Interests aggregating at least sixty-seven percent (collectively, "Dragging Members") propose to enter into a bona fide pnvate, arms -length transaction (or series of related transactions) with a third party which is not an Affiliate of any of the Dragging Members for the sale of all of the Membership Interests, then all of the other Members (the "Other Members") shall, at and upon the written request of the Dragging Members, be obligated to sell their entire respective Membership Interests in the proposed transaction at the same time and upon the same terms and conditions on which the Dragging Members is selling their entire Membership Interests, and shall execute and deliver all documents and instruments and take such further action as is necessary or desirable to accomplish the foregoing purpose. Section 9 2 shall not apply to a Disposition affected pursuant to this Section 9 11 9 12 Admission of Transferee as Substitute Member. No transferee of all or part of the Membership Interest of any Member in the Company shall have the right to become a substitute Member unless the Board by two-thirds vote shall have consented to the admission of such transferee as a substitute Member. However, all Membership Interests (i) shall be subject to Sections 9.2 through 9 10 regardless of whether the transferee has been admitted as a Member, and (ii) in addition, for purposes of Sections 9.3, and 9 4, /41""P\ Membership Interests transferred in any Permitted Disposition by an employee of the Company also shall be deemed to continue to be held by such employee, regardless of whether the transferee has been admitted as a Member In the event that the Board does not consent to the admission of a substitute Member, that Member shall be deemed to be a holder of an Economic Interest and shall not have any of the rights or powers attributable to a Membership Interest 9.13 Documents and Expenses. As a condition to admission as a substitute Member, a transferee of all or part of the Membership Interests of any Member, or the legatee or distnbutee of all or any part of the Membership Interests of any Member, shall execute and acknowledge such instruments, in form and substance satisfactory to the Board, as the Board shall deem necessary or advisable to effect such admission and to confirm the agreement of the Person being admitted as such substituted Member to be bound by all the terms and provisions of this Agreement. Such transferee, legatee or distnbutee shall pay all reasonable expenses in connection with such admission as a substituted Member, including, but not limited to, legal fees and costs of the preparation, filing and publishing of any amendment to the Articles of formation of the Company if necessary or desirable in connection therewith. 9.14 Acquit Company In the absence of written notice to the Company of any Disposition of the Membership Interests of any Member, any payment to the assigning Member or its executors, administrators or representatives shall acquit the Company of liability to the extent of such payment to any other person who may have an interest in such payment by reason of an assignment by the Member or by reason of such Member's death or otherwise 9.15 Further Restrictions on Disposition Notwithstanding the foregoing provisions of this Article 9, a Disposition may be made only if the Board, after consulting with the Company's legal and tax advisors, determines that such Disposition shall not result in (i) the Company being subjected to any additional regulatory requirements (including those of the Investment Company Act of 1940 and the Investment 28 Advisers Act of 1940, as amended); (ii) a violation of applicable law or this Agreement, (iii) the Company's being treated as a "publicly -traded partnership" for federal or applicable state income or franchise tax purposes, or (iv) the Company terminating for federal income tax purposes pursuant to Section 708 of the Code, unless the Board determines that neither the Company nor any Member would be adversely affected as a result of any such determination. Without limiting the foregoing, the Board shall not cause or permit any offering of Membership Interests in the Company to be registered under the Securities Act of 1933, as amended 9 16 Mandatory Pledge Each Member shall pledge and grant a first lien on and a security interest in and to its Membership Interests to the Company's senior lender, and take all steps necessary to enable such senior lender to perfect such liens and security interests, as may be requested from time to time by the Board, provided that the Board makes the same request of all Members ARTICLE X: AMENDMENT OF AGREEMENT This Agreement may be amended by written instrument executed by Members holding in the aggregate at least a one hundred percent Percentage Interest; provided, however, that (i) the provisions of Articles V, VI, and IX and this Article X, may be amended only by written instrument executed by all Members, and (ii) this Agreement may be amended by the Company, upon the approval of the Board, to cure any ambiguity or to cure, correct or supplement any defective provisions in this Agreement, or to make any other provisions with respect to matters or questions under this Agreement as the Board may deem necessary or advisable, so long as such amendment does not adversely affect the interest of any Member ARTICLE XI: DISSOLUTION AND LIQUIDATION 11 1 Events Causing Dissolution The Company shall be dissolved only upon the occurrence of any of the following events (a) The unanimous consent of all Members or, following the sale or other disposition of all or substantially all of the assets of the Company, the approval of the Board, or (b) The final decree of a court that such dissolution is required under applicable law 11 2 Liquidation and Winding Up If dissolution of the Company is caused by reason of any of the events set forth in Section 11 1 hereof, the Company shall be liquidated and the Board (or other Person or Persons designated by a decree of court) shall wind up the affairs of the Company. The Board or other Persons winding up the affairs of the Company shall promptly proceed to the liquidation of the Company and, in settling the accounts of the Company, the assets and the property of the Company shall be distributed in the following order of priority (a) To the payment of all debts and liabilities of the Company in the order of priority as provided by law (other than outstanding loans from a Member), (b) To the establishment of any reserves deemed necessary by the Board, or the Person winding up the affairs of the Company, for any contingent liabilities or obligations of the Company (including those of the Person serving as the liquidator), (c) To the repayment of any outstanding loans from a Member to the Company, 29 (d) To the allocation and distribution of all Profits and Losses in accordance with Sections 5 1, 5.2 and 5.3, and (e) The balance, if any, to the Members in accordance with Section 5 5. ARTICLE XII: MISCELLANEOUS PROVISIONS 12 1 Interpretation All references herein to Articles and Sections refer to Articles and Sections of this Agreement. All references herein to Schedules or Exhibits refer to items that are attached hereto and are hereby made a part hereof by reference All Article and Section headings are for reference purposes only and shall not affect the interpretation of this Agreement 12.2 Notice. Any notice, demand, consent, authonzation or other communication that any Member is required or may desire to give to or make upon the other Members or the Company pursuant to this Agreement shall be in writing and shall be effective, valid and duly given and received upon actual receipt if hand delivered, sent by verified facsimile (with a copy by regular mail), or mailed by postage prepaid certified mail, return receipt requested; if to the Company, to the principal office of the Company set forth in Section 1.2 or to such other address as the Company shall notify the Members in writing; and if to the Members, to the addresses set forth on Schedule A or to such other address as such Members may hereafter designate by notice in writing to the Company 12 3 Successors and Assigns Except as herein otherwise provided to the contrary, this Agreement shall be binding and inure to the benefit of the parties hereto and their personal representatives, assigns and successors r 12.4 Governing Law This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Colorado (without regard to the law of conflicts of any jurisdiction) 12.5 Severability. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect the validity of the remainder of this Agreement or the validity or the formation of the Company as a limited liability company under the Act 12 6 Partition. The Members agree that the assets and properties of the Company are not and will not be suitable for partition Accordingly, each Member hereby irrevocably waives any and all rights that such Member may have to maintain any action for partition of such assets and properties 12.7 Counterparts. This Agreement may be executed in any number of original counterparts, all of which evidence only one agreement and only one of which need be produced for any purpose. In addition, this Agreement may be executed in separate counterparts. 12.8 Entire Agreement This Agreement contains the complete and entire agreement between the parties relating to the subject matter hereof, and supersedes all prior negotiations, agreements, representations and understandings, if any, between the parties respecting such matters 12 9 No Third Party Beneficiary Except as otherwise expressly provided for herein, this Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and permitted assigns, and no other Person shall have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise 30 12.10 Specific Performance. Because of the unique character of the Membership Interests, the Members and the Company will be irreparably damaged if this Agreement is not specifically enforced. Should any dispute arise concerning the Disposition of Membership Interests, or any Percentage Interest therein, an injunction may be issued restraining any purported Disposition pending the determination of such controversy. In the event of any controversy concerning the right or obligation to purchase or sell any such Membership Interests, or any portion thereof, such right or obligation shall be enforceable in a court of equity by a decree of specific performance. Such remedy shall, however, he cumulative and not exclusive, and shall be in addition to any other remedy which the Members or the Company may have. 12.11 Cumulative Voting. No Member will have any cumulative voting rights. 12.12 Preemptive Rights. No Member will have any preemptive rights. 12.13 Exhibits. Exhibits and schedules referred to in this Agreement and attached hereto are incorporated herein in full by this reference as if each of such exhibits, schedules or annexes were set forth in the body of this Agreement and duly executed by the parties hereto. 12.14 Survival. It is the express intention and agreement of the Members that all covenants, agreements, statement, representations, warranties and indemnities made in this Agreement shall survive the execution and delivery of this Agreement and, where appropriate to facilitate the intent of this Agreement, the dissolution, liquidation and winding up of the Company. The Members have executed this Agreement as of the date set forth in the first paragraph above. Members Signatures Richard Huwa member) Brent Huaa (n tuber) Tyrunuliilmember) 31 SCHEDULE A MEMBERS, CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS (As of May 30, 2012) Member Richard Huwa Brent Huwa Tyrun Huwa Corey Huwa Percentage Interest Capital Contributions 25% 25% 25% 25% A-1 $ 25,000 amount $ 25,000 amount $ 25,000 amount $ 25,000 amount 1 ASSIGNMENT AND AGREEMENT REGARDING DURAROOT, LLC THIS ASSIGNMENT AND AGREEMENT REGARDING DURAROOT, LLC (the "Agreement") is made and entered into to be effective April 30, 2017 among the undersigned and RICHARD F. HUWA ("Assignor") on the date written below 1. Recitals. LII The Assignor owns a 25% interest (the "Member's interest") in DURAROOT, LLC, a Colorado limited liability company (the "Company") 1_2 Assignor now wishes to transfer, convey and assign his entire interest in the Company pursuant to the provisions of this Agreement. 1.33 NOW, THEREFORE, in consideration of the premises, warranties, and mutual covenants set forth herein, the parties agree as follows 2. Assignment. For value received, the receipt and sufficiency of which are hereby acknowledged, the Assignor hereby transfers, conveys, and assigns to the Assignees designated herein (each of the following Assignees referred to individually as "Assignee" and collectively as "Assignees") the following: 2_1 To BRErrT R. HuwA, an undivided eight and one-third percent Member's interest in and to DURAROOT, LLC. 2.2 To COREY M. HUWA, an undivided eight and one-third percent Member's interest in and to DURAROOT, LLC. 2_3 To TYRUN L. HUWA, an undivided eight and one-third percent Member's interest in and to DURAROOT, LLC. 3. Member Agreement. By signing one or separate copies hereof, each Assignee agrees that the Member's interest transferred herein is accepted subject to all terms and conditions of the certain Member Buy -Sell Agreement among the Members of DURAROOT, LLC entered into effective May 9, 2012 as amended (the "Member Agreement"). 4. Future Cooperation. The Assignor and each Assignee mutually agree to cooperate at all times from and after the date hereof with respect to any of the matters described herein, and to execute such further bills of sale, assignments, releases, assumptions, notifications, or other documents as may be reasonably requested for the purpose of giving effect to this Agreement. 5. Representations. Assignor hereby represents and warrants to each Assignee, the following 7_1 Authorization and Enforceability of the Assignment. Assignor has legal capacity and authority to execute and deliver this Assignment. This Agreement constitutes the legal, valid, and binding obligation of Assignor, enforceable against Assignor in accordance with its terms 7.2 Ownership of Interests. Assignor is the record owner and beneficial owner of the Member's interest in the Company being assigned hereby, free and clear of all liens, charges, claims, and encumbrances Upon execution and delivery of this Agreement, Assignees will receive good and valid title to the Member's interest in the Company assigned hereby, free and clear of all liens, charges, claims, and encumbrances 6. Binding Agreement. This Agreement shall be binding upon and mure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and assigns. 7. Counterparts This Agreement may be executed in several counterparts and, as executed, shall constitute one instrument bindmg on all parties notwithstanding that all of the parties are not signatory to the ongmal or the same counterpart. Executed copies of this Agreement may be delivered by facsimile or by email and, upon receipt. shall be deemed originals and binding upon the parties hereto. 8. Consents Each Assignee, by signing below, hereby consents to each and every one of the Assignments set forth herein IN WITNESS WHEREOF, the undersigned have executed this instrument on the day of September, 2017 to be effective April 30, 2017 ASSIGNOR. /1(444 RrcmARD F. RUWA ACKNOWLEDGED, ACCEPTED AND AGREED TO: BRENT R. UWA, Assignee // / C "ry M, ' A, Assignee I TYRUN L. UWA, Assignee COMPANY: DURAROOT, LLC By: Y/j1a BRENTR. , a Manager 1827046 FIRST AMENDMENT TO OPERATING AGREEMENT OF DURAROOT, LLC This FIRST AMENDMENT TO OPERATING AGREEMENT OF DURAROOT, LLC, a Colorado limited liability company (the "Company"), is made and entered into to be effective as of April 30, 2017, by and among BRENT HuwA, COREY HUWA and TYRUN HUWA (collectively referred to as the "Members" and individually referred to as a "Member") and the Company. 1. Recitals. 1_1 The Company was organized on May 9, 2012 1_2 The operating provisions for the Company and the rights and limitations associated with each Membership Interest in the Company are set forth in the Operating Agreement of the Company dated May 30, 2012 (the "Operating Agreement"). 1.3 Unless otherwise defined herein, any and all capital»Pd terms contained in this document shall have the same meaning as set forth in the said Operatmg Agreement 1 j Effective April 30, 2017, RICHARD HUWA did assign and transfer an undivided eight and one-third percent Membership Interest in the Company to each of the following individuals: BRENT HUWA, COREY HUWA and TYRUN HUWA. As a result of said assignment, RICHARD HUWA is no longer a Member of the Company. 1_5 Following said assignment, the sole Members of the Company are BRENT HUWA, COREY HUWA and TYRUN HUWA. 1_6 The Members now wish to amend the Operating Agreement to reflect the above referenced transfers of the Membership Interests in the Company. 1_7 NOW, THEREFORE, in consideration of mutual covenants and promises contained herein, the parties hereby agree as follows: 2. Amendment. 2_1 Managers Commencing upon execution of this Amendment, the Company shall have three Managers; namely, BRENT HUWA, COREY HUWA and TYRUN HUWA. BRENT HUWA shall continue to serve as the Executive Manager. 1830675 2.2 Membership Effective May 1, 2017, the Members of the Company and their percentage interests shall be as follows - Brent Huwa 33 1/3% Corey Huwa 33 1/3% Tyrun Huwa 33 1/3%" 3. Counterparts. This FIRST AMENDMENT TO OPERATING AGREEMENT OF IDURAROOT, LLC may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4. Approval. In all other respects, the undersigned hereby ratify, approve and affirm the provisions of the Operating Agreement of DURAROOT, LLC dated effective May 30, 2012, as amended herein. IN WITNESS WHEREOF, the undersigned, comprising all of the Members of DURAROOT, LLC have executed this instrument on the /6? day of (,(ibex- , 2017 to be effective as of April 30, 2017 MEMBERS 144.1d----BRENT AAUWA 2 tee, •^"y� r 1 I ENTIIMPRISES Articles of Organization Operating Agreement For H-2 Enterprises, LLC H2 Enterprises • 4626 WCR 65 • Keeneshurg, CO 80643 • 303.732.4021 Document processing fee If document is filed on paper If document is filed electronically Fees & forms/cover sheets are subject to change To file electronically, access instructions for this form/cover sheet and other information or print copies of filed documents, visit www sos state co us and select Business Center. Paper documents must be typewritten or machine printed Filet! $125 00 $ 50.00 Colorado Secretary of State Date and Time: 03/04/2008 01:15 PM Id Number: 20081125156 Document number: 20081125156 ABOVE SPACE FOR OFFICE USE ONLY Articles of Organization filed pursuant to §7-90-301, et seq and §7-80-204 of the Colorado Revised Statutes (C R S) 1. Entity name: 2 Use of Restricted Words (fanyofthese terms are contained in an entity name, true name ofan entity, trade name or trademark stated in this document, mark the applicable box) H-2 Enterprises, LLC (Tile nanie ofa limited habtlny company must contain the term or abbreviation limited liability company , lid liability company", knitted liability co ' lid liability co limited 'tic' '!! c or lid ' §7-90-601 C RS) O "bank" or "trust" or any derivative thereof O "credit union" O "savings and loan" O "insurance", "casualty", "mutual", or "surety" 3. Principal office street address. 28667 Weld County Rd. 20 4 Principal office mailing address (if different from above) (Street name and number) Keenesburg (City) (Province — if applicable) CO 80643 e (Postal/Zip Code) Until teStates (Country — If not US) (Street name and number or Post Office Box information) (City) (Province - if applicable) (State) (Postal/Zip Code) (Country - ifnot US) 5 Registered agent name (if an individual) McDonnell Michael T. (Last) (First) (Middle) (Suffix) OR (if a business organization) 6 The person identified above as registered agent has consented to being so appointed 7. Registered agent street address ARTORG_LLC 5613 DTC Parkway, Suite 1200 -(Strreet name and number) Greenwood Village (City) (State) (Postal/Zip Code) Page I of 3 Rev Ol/0,/2008 8. Registered agent mailing address (if different from above) (Street name and number or Post Office Box information) (City) (State) (Postal/Zip Code) (Province — if -applicable) (Country— fnot US) 9 Name(s) and mailing address(es) of person(s) forming the limited liability company (San individual) Huwa Brent (last) (First) (Middle) (Suffix) OR (if a business organization) 28667 Weld County Rd 20 (Street name and number or Post Office Box Information) Keenesburg CO 80643 (City) unifg8)states (Postal/Zip Code) (Province — if applicable) (Country — if not US) (if an individual) (Last) (First) (Middle) (Suffix) OR (if a business organization) (Street name and number or Post Office Box information) (City) Urag? states (Postab2lpCode) (Province - ((applicable) (Country - ((not US) (if an individual) (Last) (First) (Middle) (Suffix) OR (if a business organization) _ (Street name and number or Post Office Box information) (City) Uf11i6Q States (Postal/ip Code) (Province — hf applicable) (Country — ((not US) (Ifmore than three persons are forming the limited liability company mark this box ❑ and include an attachment stating the true names and mailing addresses of all additional persons forming the limited liability company) 10 The management of the limited liability company is vested in managers ❑J OR is vested in the members ❑ 11 There is at least one member of the limited liability company. ARTORG LLC Page 2 of Rev 01/01/2008 12. (Optional) Delayed effective date: (mm/dd/yyyy) j 13 Additional information may be included pursuant to other organic statutes such as title 12, C R S If applicable, mark this box ❑ and include an attachment stating the additional information. Notice: Causing this document to be delivered to the secretary of state for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C R.S , the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered 14 Name(s) and address(es) of the individual(s) causing the document to be delivered for filing McDonnell Michael T. (Last) (First) - (Middle) (Suffix) 5613 DTC Parkway, Suite 1200 (Street name and number or Post Office Box information) Greenwood Village (rim CO 80111 UAW W States (Postal/Zip Code) (Province - Ifapplicable) (Country - if not US) (The document need not state the true name and address of more than one individual However, if you wish to state the name and address of any additional individuals causing the document to be dehvered for filing mark this box ❑ and include an attachment stating the name and address ofsuch individuals) Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form Questions should be addressed to the user's attorney ARTORG LLC Page 3 of 3 Rev 0I/0I/2008 OPERATING AGREEMENT OF R-2 ENTERPRISES, LLC This Operating Agreement (the "Agreement") is made and entered into effective as of the 4th day of March, 2008, by RICHARD F. HUWA, BRENT R. HUWA, COREY HUWA, and TYRUN L. HUWA, the sole members of the Company (sometimes referred to herein collectively as the "Members," or individually as a "Member"). ARTICLE 1 FORMATION OF COMPANY 1.01 Formation. On March 4, 2008, the Company was organized as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act 1.02 Name. The name of the Company is H-2 Enterprises, LLC (the "Company"). 1.03 Princitial Place of Business. The principal place of business of the Company within the State of Colorado is 4626 Weld County Road 65, Keenesburg, Colorado 80643. The mailing address for the Company is the same. The Company may locate its places of business and registered office at any other place or places as the Managers from time to time deem advisable. 1.04 Registered Office and Registered Agent. The Company's registered office in Colorado shall be 4626 Weld county road 65, Keenesburg, Colorado 80643, and the name of its initial registered agent at such address shall be Brent Huwa 1.05 Tem. The term of the Company shall be until dissolution in accordance with the provisions of this Agreement or as otherwise provided by law. Any dissolution of the Company in contravention of this Agreement shall be a material breach of this Agreement. ARTICLE It BUSINESS OF COMPANY The principal business of the Company shall be the provision and sale of landscaping/reclamation services and supplies, and such other businesses and activities as may be carried on by a limited liability company under the laws of the State of Colorado. ARTICLE HI NAMES AND ADDRESSES OF MEMBERS The names and addresses of the Members of the Company are. Richard F Huwa 4202 WCR 65 Keenesburg, CO 80643 Corey Huwa 32511 Hwy 52 Keenesburg, CO 80643 ARTICLE IV Brent R. Huwa 5415 WCR 89 Roggen, CO 80652 Tyrun L. Huwa 3964 Hwy 79 Keenesburg, CO 80643 RIGHTS AND DUTIES OF MANAGERS 4.01 Management. The business and affairs of the Company shall be managed by its designated Manager or Managers. Each Manager shall direct, manage and control the business of the Company to the best of his ability and, subject to the limitations contained in this Agreement, the Manager has the complete authority to do any and all things that the Manager shall deem to be m the best interests of the Company. For purposes of this Agreement, the term "Manager" shall refer to each person or entity serving as a manager, and shall include the plural as well as the singular number, unless the context otherwise requires. Similarly, pronouns referring to the Manager shall include the masculine, feminine, and neuter genders and the singular and plural numbers, as appropriate, regardless of the gender and number of the pronoun actually used, unless the context otherwise requires. 4.02 Number. Tenure and Oualif cations. The initial number of Managers of the Company shall be four; namely, Richard F. Huwa, Brent R. Huwa, Corey Huwa, and Tyrun L. Huwa. Each Manager shall serve until he resigns or otherwise ceases to serve as Manager, or until he is removed by the vote of a majority percentage of the ownership interests in the Company. The provisions of Colorado law regarding the annual election of a manager or managers are hereby superseded, as permitted by Section 7-80-108 thereof. A Manager need not be a resident of Colorado, nor shall a Manager be required to be a present or former Member of the Company. In the event a Manager ceases to serve for any reason, the Members of the Company shall appoint a replacement Manager to serve in accordance with the preceding paragraph. 4.03 Compensation of Manager. The Managers of the Company shall be compensated in such manner and at such rate, if at all, as shall be determined by a majority percentage of the 2 ownership interests in the Company. 4.04 Certain Powers of Managers. The Managers shall have the authority to act on behalf of the Company in connection with the business of the Company, and the decisions of the Managers shall be such decisions as are approved by a majority of the Managers present at a meeting of the Managers at which a quorum is present Each Manager agrees to comply with the decisions of the Members, but such obligation of compliance shall be internal to the Company and shall not affect the validity of any action taken by the Managers in connection with the business of the Company. Third parties may rely upon the acts of any single Manager as having been properly authorized, and third parties need not inquire as to the authority of such Manager. Subject to the rights and powers vested in the Members by law and subject to the restrictions as are hereinafter set forth, the Managers, upon approval of a majority of the Managers present at a meeting of the Managers at which a quorum is present, shall have the power and authority, for and on behalf of the Company to (i) contract for, execute, and consummate all purchases and sales or exchanges on behalf of the Company; (ii) commit, encumber and obligate the Company for the purchase and sale, lease or exchange of such assets, services, investments, or loans or debts as are deemed advisable by the Managers in their discretion; (iii) enter into and execute on the Company's behalf all contracts and instruments which the Managers deem, in their reasonable discretion, advisable and appropriate for the Company's business or investment; (iv) pay all expenses and make all debt service payments of the Company on a timely basis; (v) determine the exercise or non -exercise of the Company's right of first refusal pursuant to Section 9.03 of this Agreement, and execute such documents and take such actions as the Managers deem necessary or advisable to close the purchase in the event the Managers have determined to exercise such right of first refusal; and (vi) take such other actions as the Managers deem to be advisable in connection with the Company's purposes and activities. The Managers may act by a duly authorized attorney -m -fact designated by them for such purpose. 4.05 Restriction on Powers of Manager. Without the written consent of a majority percentage of the ownership interests in the Company, the Managers shall not be authorized to (a) effect the sale of substantially all of the Company's assets pursuant to a liquidation of the Company, although it is anticipated that any products purchased by the Company for resale will be sold in the ordinary course of business and that such transactions are within the purposes of this Agreement, even though they may entail a sale or exchange of the Company's assets in one transaction or in multiple transactions; or (b) cause the Company to issue an ownership interest in the Company to a new Member, except as otherwise provided in this Agreement. 4.06 Duties of the Managers. Each Manager shall exercise his business judgment in managing the business operations and affairs of the Company. A Manager shall not be responsible to the Members or the Company for losses incurred as a result of the conduct of the Company's business in accordance with the reasonable business judgment of such Manager. A Manager shall fulfill his duties in good faith and in accordance with the Colorado Limited Liability Company Act and other applicable provisions of Colorado law. 3 4.07 Bank Accounts. The Managers may from time to time open bank accounts in the name of the Company, and each Manager shall be a signatory thereon, and the signature of any Manager shall be sufficient for any and all transactions concerning such account or accounts. 4.08 Resit on. A Manager of the Company may resign at any time by giving written notice to all Members of the Company and to each other Manager, if any. This Section shall not be deemed to permit a Member's resignation, if a Member serves as Manager and if such resignation constitutes a withdrawal under Section 10.01. A Manager who resigns or otherwise ceases to serve as Manager for any reason under the terms of this Agreement shall not directly or indirectly compete with the Company within its sales area for a period from the date of resignation until the end of the calendar year following the calendar year of such resignation, whether as an owner, officer, manager, partner, shareholder, member, employee, or otherwise. The sales area of the Company means the counties in the State of Colorado in which the Company has conducted business during the twelve months prior to the Manager's cessation of service. 4.09 Removal. A manager may be removed from his position as manager of the Company upon the vote of a majority percentage of the ownership interests of the Members in the Company. 4.10 Vacancies. Any vacancy in the position of Manager occurring for any reason shall be filled by the affirmative vote of majority percentage of the ownership interests in the Company. Any Manager's position to be filled by reason of an increase in the number of Managers shall be filled by the affirmative vote of a majority of the Managers then in office or by the approval of a majority percentage of the ownership interests in the Company at a special meeting of Members called for that purpose. 4.11 Insider Employment. The fact that a person or entity is (a) a Member, (b) related to a Member, or (c) employed by or directly or indirectly interested in or connected with any Member, shall not prohibit the Managers from employing or dealing with such person or entity; provided, however, that any contract, employment or arrangement with such person or Entity shall be on an arms -length basis, disclosed to the other Members, and shall be fair and reasonable. ARTICLE V RIGHTS AND OBLIGATIONS OF MEMBERS 5.01 Limitation of Liability. Each Member's liability shall be limited as set forth in the Colorado Limited Liability Company Act and other applicable law. 5.02 Company Debt Liability. A Member will not personally be liable for any debts or losses of the Company beyond his or her respective capital contributions, except as provided by 4 Colorado law. 5.03 Additional Capital Contributions. No additional capital contributions shall be required from the Members, except upon the approval of a majority percentage of the ownership interests in the Company of a capital call that is made on all of the Members in proportion to each Member's percentage ownership interest in Company. The procedures or penalties applicable with respect to a Member's failure to comply with such capital call shall be as specified in the notice of the capital call, as approved by a majority percentage of the ownership interests in the Company. 5.04 List of Members. Upon written request of any Member, the Managers shall provide a list showing the names, addresses and percentage ownership interests of all Members in the Company. Subject to the Colorado Act and upon reasonable request, each Member shall have the right, during ordinary business hours, to inspect and copy such Company documents at the Member's expense. 5.05 No Priority as to Return of Capital. No Member shall have priority over any other Member, either as to the return of capital contributions or as to net profits, net losses or distributions; provided that this Section shall not apply to payment of compensation for services rendered or repayment of loans (as distinguished from capital contributions) which a Member has made to the Company, and provided further that a majority percentage of the ownership interests in the Company may authorize disproportionate allocations or distributions, as provided in Article VIII of this Agreement. 5.06 New Members. New Members may be added to the ownership of the Company, and a certificate of membership may be issued to such new Members, upon the written consent of a majority percentage of the ownership interests in the Company, provided that the restrictions of this Section 5.06 shall not apply to a transfer that is authorized under Article DC of this Agreement. 5.07 Withdrawal of a Member. A Member shall have no right to withdraw as a Member, except in the event of (a) the death of such Member, or (b) the written consent of Members comprising a majority percentage of the ownership interests of the Company. The restrictions of thisSection 5.07 shall not apply to a transfer that is authorized under Article IX of this Agreement. ARTICLE VI MEETINGS OF MEMBERS 6.01 Annual Meeting. The annual meeting of the Members shall be held on the second Tuesday of December at 12:00 noon, or at such other date or time as shall be determined by resolution of the Members, commencing with the year 2008, for the purpose of the transaction of such business as may come before the meeting. If no written notice of the holding of the annual meeting is given by any of the Members at least twenty (20) days prior to the above -provided date 5 1 of the annugt meeting, such meeting shall be deemed to have been waived by the Members for that year, provided that such meeting shall be deemed to have been reinstated if all of the Members attend such annual meeting.. 6.02 Special Meetings. Special meetings of the Members for any purpose or purposes, unless otherwise prescribed by statute, may be called by any Manager or by the written request of thirty-three percent (33%) of the voting interests in the Company. 6.03 Place of _Meetings. The Managers may designate any place in the State of Colorado, or such other place as a majority of the ownership interests in the Company may agree, as the place of meeting for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the Company in the State of Colorado. 6.04 Notice of Meetings. Except as provided in Sections 6.01 or 6.05 herein, written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than three nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or persons calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 11.01. 6.05 Meeting of all Members. If all of the Members entitled to vote at any meeting shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken. 6.06 itecord Date. For the purpose of determining Members entitled to notice or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section, such determination shall apply to any adjournment thereof. 6.07 itaornme A majority percentage of the ownership interests in the Company, represented in person or by proxy, shall constitute a quorum at any meeting of Members. In the absence of a quorum at any such meeting, the Members who are represented at such meeting may adjourn the meeting from time to time, for a period not to exceed sixty (60) days without further notice. However, if the adjournment is for more than sixty (60) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, 6 notwithstanding the withdrawal during such meeting of that percentage of interests whose absence would cause less than a quorum. 6.08 Manner of Acting. Except as otherwise specifically provided in this Agreement, ent, if a quorum is present, the affirmative vote of a majority percentage of the ownership interests in the Company shall be the act of the Members. The same approach shall be used in determining whether an action has been approved by any other percentage that may be relevant. 6.09 es. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney -in -fact. Such proxy shall be filed with the Managers of the Company before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy 6.10 Action by Members Without a_Mleeting. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Member entitled to vote and delivered to the Managers of the Company for inclusion in the minutes or for filing with the Company records. Action taken under this Section 6.10 is effective when all Members entitled to vote have signed the consent, unless the consent specifies a different date. The record date for determining Members entitled to take action without a meeting shall be ^ the date the first Member signs a written consent. 6.11 Waiver of Notice. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. 6.12 V� The Members holding interests shall possess sole voting rights with respect to the Company, unless otherwise provided by the Colorado Limited Liability Company Act. ARTICLE VII CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS 7.01 Members' Capital Contributions. The Members capital contributions to the Company shall be credited to their capital accounts in accordance with applicable Treasury Regulation Section 1.704-1(b) and other applicable provisions. The capital account of each Member as of January 1, 2008 is set forth on Exhibit 1 to this Agreement. 7.02 Capital Accounts. (a) A separate capital account shall be maintained in the name of each Member. Initially each Member's capital account shall be credited with the fair market value of his or her initial capital contribution, net of liabilities assumed by the Company and liabilities to which the contributed property is subject (b) The capital account of each Member shall thereafter be increased by: (1) The amount of any cash and the fair market value of any property subsequently contributed to the Company by such Member (net of liabilities assumed by the Company and liabilities to which the contributed property is subject); (2) The amount of any profits or separately stated items of income or gain allocated to such Member pursuant to this Agreement, (3) Such Member's share of the Company's income or gain which is not includable in computing the Company's profits and losses, including separately stated items of income or gain, and (4) The amount of any of the Company's liabilities that are assumed by such Member or that are secured by any of the Company's property distributed to such Member. (c) The capital account of each Member shall be decreased by: (1) The amount of any Company losses or any separately stated items of deduction or loss allocated to such Member pursuant to this Agreement (2) The amount of all cash distributions and the fair market value of property distributions (net of liabilities assumed by such Member and liabilities to which the distributed property is subject) to such Member. (3) Such Member's share of any expenditures of the Company which are not deductible in computing the Company's profits and losses and which are not properly capitalizable, including separately stated items of loss or deductions. (4) The amount of any liabilities of such Member that are assumed by the Company or that are secured by property contributed by such Member to the Company. (d) For purposes of this Section, any unrealized appreciation or decline in value with respect to assets distributed in kind shall be allocated among the Members in accordance with the provisions of Article VIII of this Agreement, as though such assets had been sold for their fair market value on the date of distribution, and the Members' Capital Accounts shall be adjusted to reflect both the deemed realization of such appreciation or decline in value and the distribution of 8 such property. (e) If a Member's interest is sold, exchanged or otherwise transferred, the Capital Account of the transferee shall be the same as the Capital Account of the transferor Member immediately before the transfer, unless the Managers shall determine otherwise. (1) A loan made by a Member to the Company shall not be considered a contribution to be credited to the Capital Account of the Member. (g) The foregoing and other provisions of this Agreement relating to the maintenance of capital accounts are intended to comply with Treasury Regulation Section 1.704- 1(b) and other applicable provisions, and shall be interpreted and applied in a manner consistent with such Regulations. (h) The Company shall not pay any interest to a Member on such Member's Capital Contributions to the Company. Nothing herein provided shall prevent or prohibit the accrual and payment of interest by or to a Member, the Company, or third parties for loans 7.03 Withdrawals or Reduction of Members' Contributions to Capital. (a) A Member shall not receive out of the Company's property any part of the Company's contributions to capital until all liabilities of the Company, except liabilities to Members on account of their contributions to capital, have been paid or there remains property of the Company sufficient to pay them. (b) No Member shall have the right to withdraw any part of his or her capital contributions except (a) with the consent of the Managers, or (b) except as otherwise specifically permitted pursuant to the terms of this Agreement. Under circumstances requiring a return of a Member's capital contributions, no Member shall have the right to receive property other than cash. In the case of distributions in liquidation of the Company, the Managers may, in their sole discretion, make distributions in kind and may compel any Member to accept a distribution in kind, including the distribution of a percentage of an asset, provided that the Managers shall have a duty of impartiality with respect to such distributions in liquidation. No Member shall have priority over any other Member as to return of his or her capital contribution(s) or as to distributions, except as may be otherwise provided in this Agreement. ARTICLE VIII CLASSES OF MEMBERSHIP AND ALLOCATIONS. INCOME TAX ELECTIONS AND REPORTS 8.01 Membership Classes. There shall be one (I) class of membership in the Company, and the percentage ownership interest of each Member as of January 1, 2008 shall be as follows: Richard F. Huwa — 25%, Brent R. Huwa — 25%, Corey Huwa — 25%, and Tyrun L. Huwa — 25%. Each Member's voting power shall be equal to his or her percentage ownership interest in the Company. Each Member's interest in the Company may, in the Members' discretion, be represented by a certificate or certificates specifying the number of units of interest attributed to such Member's interest, and the class of membership of such interest. 8.02 Allocations of Profits and Losses. Each Member shall share in Company revenues, profits and losses and separately stated items of income, gain, loss, deduction and credit in the same percentage as his ownership interest in the Company. Provided, however, the Members, by a majority percentage of the ownership interests in the Company may amend this Agreement to provide for a different method of allocation, provided that such modified allocations shall affect the respective Members' capital accounts as provided in Article VII of this Agreement and in a manner consistent with Treasury Regulation Section 1.704-1(b) and other applicable provisions. 8.03 Oualified Income Offset. Notwithstanding any other provisions of this Agreement to the contrary, if, with respect to any taxable year of the Company, a Member receives an unexpected adjustment, allocation, or distribution of the type described in Section 1.704- 1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations under Section 704 of the Internal Revenue Code of 1986, as amended, that results in such Member's capital account having a negative balance, gross income and the amount realized on the disposition of Company property for such taxable year and all subsequent taxable years shall be allocated to such Member in an amount necessary to eliminate such negative balance in such Member's capital account as quickly as possible. The provisions of this Section are intended to constitute a "qualified income offset" within the meaning of Section 1.704-1(bx2XiixdX3) of the Regulations and shall be construed in accordance with such intention. 8.04 Minimum Gain Cha eback. Beginning in the first taxable year in which there are "nonrecourse deductions" or a distribution is made of proceeds of a nonrecourse liability that is allocable to an increase in the minimum gain of the Company, as determined under the rules of Section 1.704-IT(b)(4XivXe) of the Regulations under Section 704 of the Internal Revenue Code of 1986, as amended, and thereafter throughout the frill term of the Company's existence, the "minimum gain chargeback" rules of such Regulation shall apply with respect to the allocation of all Company items in such year(s). If there is a net decrease during a taxable year of minimum gain attributable to Member nonrecourse debt within the meaning of Section 1.704-1 T(bX4Xiv)(h), or 10 any successor provision, then the chargeback rules of such Regulation shall apply. 8.05 Allocations Unon Liquidation. For federal income tax purposes, income (including gain) or loss of the Company resulting from the sale or disposition of all or substantially all of the assets of the Company, or the dissolution of the Company without an election to continue the Company, shall be allocated to the Members in accordance with the provisions of Section 8. 8.06 Distributions. Non -liquidating distributions may be made to the Members from time to time as may be designated by a majority percentage of the ownership interests in the Company. Any such distribution shall be made to all the Members in proportion to their respective ownership interests in the Company. Notwithstanding the foregoing provisions of this Section, upon the approval of a majority percentage of the ownership interests in the Company, the Managers may make distributions to a Member or Members that are different in value, amount, adjusted basis, timing, or otherwise as specified, from a distribution to one or more other Members, or any combination thereof. Such a disproportionate distribution may affect the recipient Member's capital account disproportionately from one or more other Members, and may be a factor in causing a qualified income offset special allocation to become applicable at that time or at some point in the future, as provided in this Article. 8.07 Limitation on Distribution. Notwithstanding the foregoing, no distribution shall be paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company, except liabilities to Members on account of their capital contributions or on account of commissions allocable to a Member . 8.08 Accounting Principles. Profits and losses of the Company shall mean net income or net loss, respectively, of the Company, as determined for federal income tax purposes. Separately stated items include those items of income, gain, loss, deduction or credit which are accounted for separately pursuant to the Internal Revenue Code of 1986, as amended. 8.09 Interest on and Return of Capital Contributions. No Member shall be entitled to interest on his or her capital contribution or to return of his or her capital contribution, except as otherwise specifically provided for herein. 8.10 Records and Reports. At the expense of the Company, the Managers shall maintain records and accounts of all operations and expenditures of the Company. At a minimum the Company shall keep at its principal place of business the following records: (a) A current list of the full name and last known business, residence, or mailing address of each Member and Manager, both past and present; (b) A copy of the Articles of Organization of the Company and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed; 11 (c) Copies of the Company's federal, state, and local income tax returns and reports, if any, for the three (3) most recent years; (d) Copies of the Company's currently effective written Agreement, copies of any writings permitted or required with respect to a Member's obligation to contribute cash, property or services, and copies of any financial statements of the Company for the three (3) most recent years; (e) Minutes of every annual, special meeting and court -ordered meeting; (f) Any written consents obtained from Members for actions taken by Members without a meeting. The Company's books shall be kept and its financial statements shall be prepared under the cash method of accounting. 8.11 Returns and Other Elections. The Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. Copies of such returns, or pertinent information therefrom, shall be furnished to the Members within a reasonable time after the end of the Company's fiscal year. For Colorado tax purposes, the Managers shall file with the Colorado Department of Revenue an agreement of each non-resident Member to file a proper Colorado income tax return and to make timely payment of all Colorado taxes imposed with respect to such Member's share of the Company income, as required by applicable laws. All elections permitted to be made by the Company under federal or state laws shall be made by a majority of the Managers, in their sole discretion. ARTICLE IX RESTRIC'T'IONS ON TRANSFER 9.01 Restrictions on Transfer. Except as otherwise provided for in this Agreement, no Member shall have any right to sell, gift, assign, encumber, transfer or otherwise dispose of part or all of his or her Member's interest in the Company, without the express written consent of the Members owning a majority percentage of the ownership interests in the Company. However, a Member shall not be restricted in assigning, during such Member's lifetime or pursuant to such Member's estate plan, part or all of his Member's interest to (a) a member of such Member's family, (b) a trust established for the benefit of one or more members of the family of such Member, (c) one or more of the owners of such Member, if the Member is an non -mist entity, (d) 12 one or more beneficiaries of such Member, if the Member is an estate or trust, or (e) to an entity in which the Member, or one or more of its owners, owns more than fifty percent (50%) of the voting power of such entity, and any such permitted transfer by a Member shall cause the assignee to become a substituted Member of the Company upon the execution by such assignee of an instrument signifying the assignee's agreement to be bound by the provisions of this Agreement, as then in effect and as it may be modified in accordance with the provisions of this Agreement. Any transfer of part or all of a Member's ownership interest in the Company that is in compliance with the provisions of this Section shall not be subject to the following provisions of this Article 9.02 pubstitutlon of Parties. Except as provided m Section 9.01 and Section 9.03, anyone acquiring an ownership interest in the Company from a Member shall not become a substituted Member unless (a) Members comprising a majority percentage of the ownership interests in the Company consent thereto in writing, and (b) the person or entity acquiring such interests agrees in writing to be bound by this Agreement, as then in effect. 9.03 Right of First ReibrsaL Except as provided in Section 9.01, in the event a Member (the "Transferring Member"') desires to transfer, sell, or otherwise dispose of all or part of such Member's intent in the Company, such Member shall present to the other Members a bona fide written offer by a third party to purchase such units of interest, which offer shall (1) clearly and fully identify the name and address and current employment of the person making the offer and of any relationship between such person and the Transferring Member, (2) clearly and fully describe the proposed purchase price and the terms of payment, and (3) state clearly the agreement of the proposed purchaser to be bound by the terms of this Agreement, as it may be amended from time to time. The Company shall have thirty (30) days following the receipt of the offer to notify the Transferring Member whether it will match the purchase price specified in the offer and the terms of payment, provided that the Company shall not be required to agree to the closing date contained in the offer, which closing date may be modified by the Company in accordance with this Section 9.03. For this purpose, the decision of the Company whether or not to match such offer shall be made by the vote of a majority of the Managers, excluding the Transferring Member if such Member also serves as a Manager of the Company. If the Transferring Member is the sole Manager of the Company, then such decision shall be made by a majority percentage of the other ownership interests in the Company. If the Company has notified the Transferring Member that it will match the purchase price specified in the offer and the terms of payment on the basis of a closing date determined as provided in this Section 9.03, the Company shall be deemed to have exercised its right of first refusal. In the event the Company elects to exercise the right of first refusal, the Company, or the Company's assignee or assignees of such right of purchase (as determined in the same manner as the decision whether or not to match the offer), which assignees may include one or more of the other Members, shall purchase from the Member the ownership interest specified in the offer on the terms provided in the offer, and the Transferring Member shall be obligated to sell such offered interest to the Company on such terms. The closing of the Company's, or the Company's assignee's, purchase of such interest shall occur at such time and place in the State of 13 (a) following events: Colorado as the Company shall designate (in the same manner as the decision whether or not to match the offer), which closing shall occur within one hundred twenty (120) days following the receipt by the Company of the offer, or, if later, on or prior to the date of closing specified in the offer. If one or more of the other Members acquires such interest pursuant to this Section, such Members shall be substituted Members with respect to the interest so acquired. If the Company does not exercise such right of first refusal as described above, the Transferring Member shall be free to transfer, sell, or otherwise dispose of the ownership interest subject to the offer to the person identified in the offer, provided that such person shall not be admitted as a substituted Member without the consent of a majority percentage of the ownership interests in the Company, and further provided that if such closing does not occur within six (6) months following the receipt of the offer by the Company, the Company's right of first refusal shall be reactivated, and the Transferring Member shall not be permitted to sell such units of interest without again complying with the procedures of this Section 9.03. ARTICLE X DISSOLUTION AND TERMINATION 10.01 Dissolution. The Company shall be dissolved only upon the occurrence of any of the (i) The unanimous written agreement of all Members; or (ii) A Member's (1) death, (2) bankruptcy, (3) dissolution, or (4) the occurrence of any other event which terminates the continued membership of a Member in the Company (a "Withdrawal Event"), other than a transfer of the ownership interest of such Member that is permitted under the terms of this Agreement, unless the business of the Company is continued by the consent of a majority percentage of the remaining Members within sixty (60) days after the Withdrawal Event and there is at least one remaining Member. The Withdrawal Events described in clauses (2), (3), and (4) of the first paragraph of clause (ii) shall be considered a breach of this Agreement by the Member to whom such Withdrawal Event applies. Following a Withdrawal Event, each of the remaining Members hereby agrees that, within sixty (60) days after the occurrence of such Withdrawal Event (and provided that there is at least one remaining Member of the Company), he will consent, in writing, to continue the business of the Company. The written consent shall be mailed to the principal place of business of the Company. The sole remedy for breach of a Member's obligation to consent to continue the business of the Company under clause (ii) shall be money damages (and not specific performance). 14 (b) As soon as possible following the occurrence of any of the events specified in this Section, if the discontinuation of the business of the Company results, the appropriate representative of the Company shall execute such forms as shall be prescribed by the Colorado Secretary of State with respect to the dissolution of the Company and file same with the Colorado Secretary of State's office. 10.02 Waiver of Partition and Wi thdi waL The Members acknowledge that this Agreement provides for the fair and just payment and liquidation of the Members' interests in the Company, and that partition of the Company's property prior to any of the occurrences contemplated in this Article would cause irreparable damage to the Company. Accordingly, each member hereby waives and renounces his or her right, if any, to seek appointment, for any reason, by any court of a liquidator of the Company, or to seek the partition of the Company or any Company property. 10.03 Liquidation and Winding Uri of the Comnanv. (a) Upon filing the appropriate forms relating to the termination of the Company's business with the Colorado Secretary of State, the Company shall not terminate but shall be liquidated and shall continue until the winding up of the Company's affairs has been completed. The Managers shall be responsible for winding up, liquidating and dissolving the Company. A reasonable time will be allowed for the orderly liquidation of the Company and its discharge of liabilities so as to enable the Company to minimize any losses attendant upon liquidation. (b) Winding up of the Company's affairs shall include completing all pending Company business and thereafter collecting and disposing of Company assets, paying Company creditors, and distributing to the Members the balance of any Company assets (c) The Members shall continue to share net profits, net losses, and distributable cash of the Company during the winding up of the Company's affairs in the same proportions as if the Company were, not winding up its affairs. Any gain or loss realized by the Company on disposition of Company assets in the process of liquidating and winding up its affairs shall be credited or debited to the Members as provided in Article VIII. (d) For purposes of this Agreement, any unrealized appreciation or decline in value with respect to Company assets distributed in kind to a Member shall be allocated among the Members in accordance with the provisions of Article VIII regarding the allocation of the Company's profits and losses as though such assets were sold for their fair market value on the date of distribution. The Members' capital accounts shall be adjusted to reflect both the deemed realization of such appreciation or decline in value and the distribution of such Property. 15 10.04 Articles of Dissolution. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets of the Company have been distributed to the Members, the appropriate forms relating to the dissolution of the Company shall be filed with the Colorado Secretary of State 10.05 Order of Payment. On dissolution, the assets of the Company shall be used and distributed in the following order. (a) to pay or provide for the payment of all Company liabilities and liquidating expenses and obligations, including loans and obligations to the Members, in the order of priority provided by law; (b) to the setting up of any reserves which the Managers deem necessary for the payment of any contingent or unforeseen liabilities or obligations of the Company (such reserves shall be paid over to a bank or person as shall be appointed by the Managers to be held for the purpose of disbursing such reserves in payment of any such contingencies and, at the expiration of such period as the Managers deem advisable, the bank or such other person shall distribute the balance thereafter in payment to the Members in discharge of their Capital Accounts); and (c) after the payment of debts and liabilities according to subparagraph (a) above and after the setting up of reserves according to subparagraph (b) above, to the Members pursuant to the terms of this Agreement. Each Member shall look solely to the assets of the Company for the return of his or her or her Capital Account balance. If a Member has a deficit balance he his or her Capital the amount Account upon dissolution, such Member shall not be obligated payCompany other erthan cash m of such deficit. No Member shall have any right to demand or receive property upon dissolution and termination of the Company ARTICLE XI MISCELLANEOUS PROVISIONS 11.01 Notices. Any notice, demand, or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes if delivered personally to the party or to an executive officer of the party to whom the same is directed or, if sentby registered or certified mail, postage and charges prepaid, addressed to the Member's and/or Company's address as it appears in the Company's records, as appropriate. Except as otherwise provided herein, any such notice shall be deemed to be given three (3) business days after the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as aforesaid, as evidenced by the postmarked receipt from the United States Postal Service. 11.02 Books of Account and Records. Proper and complete records and books of account shall be kept or shall be caused to be kept by the Managers, in which shall be entered fully and accurately all transactions and other matters relating to the Company's business, in such detailthe Company. completeness as is customary and usual for businesses of the type engaged in by Such books and records shall be maintained in accordance with the teens and conditions of this Agreement and shall be open for inspection by any of the Members, and any of the Members shall 16 have the right to make a separate audit of the Company's books and records at the Member's own expense. Unaudited monthly financial statements shall be prepared and mailed to each Member on a regular basis, not less than thirty (30) days after the end of the calendar month. 11.03 Application of Colorado Law. This Agreement, and the application of interpretation hereof, shall be governed exclusively by its terms and by the laws of the State, of Colorado. 11.04 Amendments. Any amendment to this Agreement may be proposed to the Members by any Member. A vote on an amendment to this Agreement shall be taken within thirty (30) days after notice thereof has been given to the Members unless such period is otherwiseamendment extended by applicable laws, regulations, or agreement of the Members. A proposed shall become effective at such time as it has been approved by a majority percentage of the ownership interests in the Company. Aproposed amendment shall become effective at such time as it is approved by a majority percentage of the ownership interests in the Company; provided, which however, that such amendment may be made retroactive to a prior date during the year in such amendment was so approved, if specific provision is made for such a retroactive effective date in connection with such amendment. )Execution of Additional Instruments. Each Member hereby agrees to execute 11.05 �aec o such other and further statements of interest and holdings, designations, powers of attorney and other instruments (i) necessary to comply with any laws, rules or regulations or (ii) desirable to carry out the terms and conditions of this Agreement. 11.06 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa. this Agreement are inserted for convenience only and 11.07,_._ �t� The inheadingssdefine ro, limit the scope, extent or intent of this are in no way intended to describe, interpret, Agreement or any provision hereof. 11.08 Waivers. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 11.09 Rights and Remedies Cumulative. The rights and remedies provided noby t b preclude or this Agreement are cumulative and the use of any one right or remedy by any party _ waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 11.10 Severability. If any provision of this Agreement or the application thereof to any 17 person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, the remainder of the offending section, paragraph, sentence, or clause, and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. 11.11 Heirs. Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by the Agreement, their respective heirs, legal representative, successors and assigns. 11.12 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company. 1113 Gender and Number. For all purposes of this Agreement, a pronoun's gender and number shall be interpreted as being the gender and number appropriate in the context. 11-14 Tax Matters Partner. Brent Huwa shall serve as the "tax matters partner" for the Company in accordance with the provisions of the Internal Revenue Code of 1986, as amended. 11.15 Signatures: Counterparts. This Agreement may be signed in counterparts, each counterpart constituting an original, and all counterparts constituting one and the same document. In addition, this Agreement and any amendment hereto may be signed and the signature page thereof faxed to the other parties and the faxed copies shall be deemed for all purposes to be originals. 11.16 Disputes: Attorneys' Fees; Venue. In the event of the commencement of arbitration or litigation involving the parties to this Agreement or the Company with respect to the Company or the Company's business, or arising out of this Agreement or the relationship of the parties under this Agreement, the prevailing party shall be entitled to payment from the other party or parties of the prevailing party's attorneys' fees, accounting fees, expert fees, and court costs incurred in connection with such arbitration or litigation. The exclusive venue for arbitration or litigation involving parties to this Agreement or the Company with respect to the Company or the Company's business, or arising out of this Agreement or the relationship of the parties under this Agreement, shall be in the County of Weld, Colorado IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and BRENT R. IRMA, ember 18 L-^ HUUJFI ENTERPRISES Articles of Organization Operating Agreement For Huwa Enterprises, LLC Huwa Enterprises M 4626 WCR 65 Keenesburg, CO 80643 4) 303.732.4021 Document must be filed -electronically. Paper documents are not accepted Fees & forms are subject to change For more information or to print copies of filed documents, visit www.sos.state.co.us. E-FIIed Colorado Secretary of State Date and Time: 10/30/2017 05:45 PM ID Number: 20171819436 Document number 20171819436 Amount Paid: $50.00 ABOVE SPACE FOR OFFICE USE ONLY Articles of Organization filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S ) 1. The domestic entity name of the limited liability company is Huwa Enterprises, LLC (The name ofa limited liability company must contain the term or abbreviation "limited liability company" "ltd liability company", "limited liability co lid ltabllityco "limited". "1lc.",'llc",orlid" See §7-90-601, CR.S) (Caution. The use of certain terms or abbreviations are restricted by law Read instructions for more Information.) 2 The principal office address of the limited liability company's initial principal office is Street address 4626 WCR 65 Mailing address (leave blank if same as street address) (Street number and name or Post Office Box information) (Street number and name) Keenesburg CO 80643-8731 _ (qty) (Province— (f applicable) (State) (ZiP/Postal Code) United States (county') (City) (State) (ZIP/Postal Code) (Province— if applicable) (County) 3. The registered agent name and registered agent address of the limited liability company's initial registered agent are Name (if an individual) or (if an entity) (Caution: Do not provide both an individual and an entity name) Street address 4626 WCR 65 Huwa Brent _ R (Last) (First) (Middle) (Suffix) Mailing address (leave blank if same as street address) (Street number and name or Post Office Box information) (Street number and name) Keenesburg Co 80643-8731 (City) (State) (ZIP Code) ARTORG LLC Page 1 of 3 Rev 12/012012 CO (City) (State) (ZIP Code) .'e followingstatement is adopted by marking the box.) The person appointed as registered agent has consented to being so appointed 4. The true name and mailing address of the person forming the limited liability company are Name (if an individual) Huwa Brent R (Last) oI (if an entity) (First) (Middle) (Sufi) (Caution: Do not provide both an individual and an entity name) Mailing address 4626 WCR 65 (Street number and name or Past Office Bar information) Keenesburg CO 80643-8731 (Province— ifapplleable) (State) (ZIP/Postal Code) United States . (Country) (If the following statement applies, adopt the statement by marking the bar and include an attachment.) Q✓ The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment. 5 The management of the limited liability company is vested in (Mark the applicable box.) El one or more managers or the members. 6 (The following statement is adopted by marking the box) ❑✓ There is at least one member of the limited liability company 7. (If the following statement applies, adopt the statement by making the box and include an attachment.) n This document contains additional information as provided by law 8. (Caution: Leave blank ithe document does not have a delayed effective date Stating a delayed effective date has significant legal consequences Read instructions before entering a date.) (If the following statement applies, adopt the statement by entering a date and, ifapplicab1e time using the required fornmt.) The delayed effective date and, if applicable, time of this document is/are (mm/dd/ylyy hour minute am4im) Notice: Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.RS., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes ARTORG LLC Page 2 of 3 Rev 12/01/2012 This penury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered. 9 The true name and mailing address of the individual causing the document to be delivered for filing are Fuller Ernest F Jr. 4626 WCR t65 (First) (Middle) (Suffix) (Street number and name or Post Office Bar information) Keenesburg CO 80643-8731 (wry) (Province — iifapphcable) (State) (ZIP/Postal Code) United States . (Country) (If the following statement applies, adopt the statement by marling the box and include an attachment) ❑ This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing. Disclaimer This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet Questions should be addressed to the user's legal, business or tax advisor(s). ARTORG LLC Page 3 of 3 Rev 12/012012 Huwa Enterprises, LLC, has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in this attachment They are: 1 ) Corey M. Huwa, 4626 WCR 65, Keenesburg, CO 80643-8731 2) Tyrun L. Huwa, 4626 WCR 65, Keenesburg, CO 80643-8731 HUWA ENTERPRISES, LLC OPERATING AGREEMENT This Operating Agreement (this "Agreement") of HUWA ENTERPRISES, LLC, a Colorado limited liability company (the "Company") is made and entered into effective as of October 25, 2017, by and among the Persons named on the signature pages of this Agreement as the members of the Company and such other Persons as shall become members of the Company from time to time in accordance with the terms of this Agreement (collectively, the "Members") In consideration of the mutual covenants in this Agreement and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Members agree as follows: ARTICLE I: ORGANIZATION OF THE COMPANY 1 1 Formation. The Members have formed the Company as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act (as amended from time to time and including any successor statute of similar import, the "Act"). Each of the Members hereby ratifies and approves the execution and filing in the office of the Secretary of State of the State of Colorado of the Articles of Organization (the "Articles"), and agrees that this Agreement shall constitute the "limited liability company agreement" of the Company within the meaning of the Act. Each of the Members shall execute, file and record all such other certificates and documents, including amendments to the Articles, and do such other acts as may be appropriate to comply with all requirements for the formation, continuation and operation of a limited liability company, the ownership of property and the conduct of business under the laws of the State of Colorado and any other jurisdiction in which the Company may own property or conduct business 1.2 The Members of the Company as of the date of this Agreement are (member) and (members) The Original Agreement designated ownership is in terms of percentage ownership of what the Original Agreement defined as a "Membership Interest " These Members constitute 100% of the total Membership Interests. 1 3 Name. The name of the Company is, and the business of the Company shall be conducted under, "HUWA ENTERPRISES, LLC" 1.4 Principal Place of Business. The location of the principal place of business of the Company is 4626 WCR 65, Keenesburg, Colorado 80643-8731, or such other place as the Board may from time to time determine. 1.5 Term. The Company's existence shall continue until terminated, dissolved or liquidated in accordance with the provisions of this Agreement and the Act 1.6 Agent for Service of Process. The name and address of the agent for service of process is (agent) 1.7 Duties of Members The duties of the Members to the Company or to each other in respect of the Company, shall be those established in this Agreement, provided that nothing herein shall be deemed to establish any Member as a partner or the Company as a general partnership. In addition, initially the entity will consist of two members. ARTICLE II: DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: "Acquisition Proposal" means a bona fide written proposal to a Member for the acquisition of Membership Interests by the person or entity making such proposal. "Act" has the meaning given in Section 1 1. "Adjusted Asset Value" means, with respect to any asset of the Company, such asset's adjusted basis for federal income tax purposes, except as follows: (i) The Adjusted Asset Value of any asset contributed to the Company by a Member will be the gross fair market value of such asset as determined jointly by the Board and the contributing Member, in their joint and reasonable discretion (ii) If the Board reasonably determines that an adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company, the Adjusted Asset Values of all Company assets will be adjusted to equal their gross fair market value, as determined by the Board, taking Section 7701(g) of the Code into account, as of the following times: (a) a Capital Contribution (other than a de mmimis capital contribution) to the Company by a new or existing Member in exchange for an issuance of Units, including in connection with the exercise of a Company option or warrant, (b) any distribution by the Company to a Member of more than a de minimrs amount of Company property or cash in connection with the redemption of all or a portion of a Member's Units; and (c) at such other times as the Board reasonably determines necessary or advisable in order to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2 (iii) The Adjusted Asset Value of any Company property distributed to any Member shall be adjusted to equal the gross fair market value (taking Section 7701(g) of the Code into account) of such property on the date of distribution as determined by the Board. (iv) The Adjusted Asset Values of Company property will be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) or 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1 704-1(b)(2)(iv)(m) of the Treasury Regulations; provided, however, that Adjusted Asset Values will not be adjusted pursuant to this paragraph to the extent that the Board reasonably determines that an adjustment pursuant to paragraph (ii) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (iv) (v) The Adjusted Asset Value of an asset will be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Profits and Losses "Adjusted Capital Account" means, with respect to any Member, such Member's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments (i) credit to such Capital Account any amounts which such Member is obligated or treated as obligated to restore with respect to any deficit balance in such Capital Account pursuant to Section 1.704-1(b)(2)(ii)(c) of the Treasury Regulations, or is deemed to be obligated to restore with respect to any deficit balance pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations; and (ii) debit to such Capital Account the items described in Treasury Regulations Sections 1 704- 1(b)(2)(iiXd)(4), 1 704-1(b)(2)(it)(dX5) and 1.704-1(b)(2Xii)(d)(6) The foregoing definition of Adjusted 2 Capital Account is intended to comply with the provisions of Section 1.704-1(bx2)(ii)(d) of the Treasury Regulations and will be interpreted consistently therewith "Affiliate" or "Affiliated Person" means, when used with reference to a specified person, (i) any person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with the specified person, (ii) any person that is an officer, manager, member, partner or trustee of, or serves in a similar capacity with respect to, the specified person or of which the specified person is an officer, director, member, partner or trustee, or with respect to which the specified person serves in a similar capacity, (in) any person that, directly or indirectly, is the beneficial owner of ten percent (10%) or more of any class of equity securities of, or otherwise has a substantial beneficial Interest in, the specified person or of which the specified person has a substantial beneficial interest, and (iv) any relative or spouse of the specified person. "Articles" has the meaning given in Section 1.1. "Board" means the Board of Managers of the Company "Book Value" of any Interests Subject to the Offer means the per Unit book value of the Company, for each of the Interests Subject to the Offer, determined as of the date the Offer is made by the accounting firm regularly retained by the Company (whose determination shall be final and conclusive in the absence of a showing of gross negligence or willful misconduct on its part), in accordance with generally accepted accounting principles "Capital Account" means the capital account established on behalf of each Member on the books of the Company. In general, the Capital Account of each Member shall be initially credited with the amount of such Member's initial Capital Contribution to the Company, as set forth on Schedule A attached hereto. Thereafter, each such Member's Capital Account shall be increased by (a) the amount of money contributed by it to the Company, (b) the Adjusted Asset Value of any property contributed by it to the Company (net of liabilities secured by contributed property that the Company is considered to assume or take subject to under Code Section 752), and (c) allocations to it of Profits and other items of book income and gain, and is decreased by (d) the amount of money distributed to the Member by the Company, (e) the Adjusted Asset Value of property distributed by the Company to the Member (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to under Code Section 752) and (f) allocations to it of Losses and other items of book loss and deduction The Capital Accounts shall also be adjusted (x) as reasonably determined by the Board, to reflect any redemption, forfeiture or transfer of Units, and (y) in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(m) It is the intent of the Members that the Capital Accounts of all Members be determined and maintained in accordance with the principles of Treasury Regulations Section 1.704- 1(b)(2)(iv) at all times throughout the full term of the Company. Accordingly, the Board is authorized to make any other adjustments to the Capital Accounts so that the Capital Accounts and allocations thereto comply with such Section of the Treasury Regulations, provided that such adjustments do not have a material adverse effect on any Member. For purposes of this Agreement, 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. "Capital Contribution" means the total amount of cash and the initial Adjusted Asset Value of any property (other than cash) contributed to the Company by a Member pursuant to the terms of this Agreement 3 "Code" means the Internal Revenue Code of 1986, as amended. Any reference in this Agreement to a Section of the Code shall be considered also to include any subsequent amendment or replacement of that Section "Company Minimum Gain" means "partnership minimum gain" as set forth in Section 1.704- 2(bX2) and 1.704-2(d) of the Treasury Regulations. "Depreciation" means, with respect to any Company asset for any Fiscal Year or other period, the depreciation, depletion or amortization, as the case may be, allowed or allowable for federal income tax purposes in respect of such asset for such fiscal year or other period, provided, however, that if there is a difference between the Adjusted Asset Value and the adjusted tax basis of such asset, Depreciation will mean "book depreciation, depletion or amortization" as determined under Section 1 704-1(b)(2)(iv)(g)(3) of the Treasury Regulations; and provided, further that if any property has a zero adjusted basis for federal income tax purposes, Depreciation may be determined under any reasonable method selected by the Board "Designated Manager(s)" has the meaning given in Section 6 3 "Disposition" means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition, of Membership Interests or any interest therein or right thereto or of all or part of the voting power (other than the granting of a revocable proxy) associated with the Membership Interests or any interest therein whatsoever, or any other transfer of beneficial ownership of Membership Interests, whether voluntary or involuntary, including, without limitation (i) as a part of any liquidation of a Member's assets or (ii) as a part of any reorganization of a Member pursuant to the United States or other bankruptcy law or other similar debtor relief laws. "Economic Interest" means a Member's or assignee's share of one or more of the Company's net profits, net losses and distributions of the Company's assets pursuant to this Agreement, but shall not include any right to participate in the management or affairs of the Company, including the right to vote on, consent to or otherwise participate in any decisions of the Members "Eligible Offerees" means (i) in the case of an Offer under Sections 9.2 and 9 5, solely the Company, and (ii) in the case of all other Offers, the Company and all Members other than the Offeror "Fair Market Value" of any Interests Subject to the Offer means the per Unit fair market value of the outstanding Membership Interests of the Company (without regard to premiums or discounts for majority or minority ownership or control), for each Unit of Membership Interests included in the Interests Subject to the Offer, as such fair market value was last determined in good faith by the Board prior to the Offer or, if the Board determines in good faith that such fair market value has matenally changed from the amounts as last determined by the Board prior to the Offer, the fair market value as determined in good faith by the Board as of the most recent practicable date prior to the Offer. The Board shall have no obligation to determine such fair market value more often than once each year If the Offeror shall disagree with the fair market value as so determined by the Board pursuant to this paragraph, such Offeror may give written notice of such disagreement to the Board (a "Dispute Notice"). Each Dispute Notice shall state in reasonable detail the basis of the disagreement as to the per Unit fair market value of the outstanding Membership Interests determined by the Board and the Offeror's determination of the per Unit fair market value of the outstanding Membership Interests. The Board and the Offeror shall attempt to resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests within thirty days after such Dispute Notice is given to the Board (such thirty -day period shall hereafter be referred to as the "Dispute Resolution Period") If the Board and such Offeror are unable to resolve the disagreement as to the per Unit fair market value of the outstanding 4 Membership Interests within the Dispute Resolution Period, such disagreement may at any time thereafter be submitted by the Board, such Offeror or both to arbitration in Denver, Colorado before a single arbitrator in accordance with the rules of the CPR Institute for Dispute Resolution for non -administered arbitration of business disputes then in effect This submission and agreement to arbitrate shall be specifically enforceable Upon entering into arbitration hereunder, each of the Board, on the one hand, and the Offeror, on the other hand, shall submit to the arbitrator their respective final determinations of the per Unit fair market value of the outstanding Membership Interests prior to entering into arbitration (each a "Final Valuation"), countersigned by a representative of the party rejecting such Final Valuation. In rendering the award, the arbitrator shall resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests by appraising the Membership Interests to determine such fair market value (without regard to premiums or discounts for majority or minority ownership or control) as of the most recent practicable date prior to the Offer All aspects of the arbitration, including without limitation the validity of the arbitration clause, the arbitration proceedings and the enforcement of the arbitration award, shall be governed by the United States Arbitration Act, 9 US C. § 1-16. The arbitration may proceed in the absence of any party if notice has been given to such party The authority of the arbitrator shall be as broad as is necessary to resolve the disagreement as to the per Unit fair market value of the outstanding Membership Interests In connection with the arbitration, the arbitrator may consider all information such arbitrator deems appropriate, including but not limited to any pending transaction between the Company and any third party involving a sale of the Company or all of its assets, or issuance of Units of Membership Interests In rendering the award, the arbitrator shall be limited to electing between (i) the Final Valuation tendered to the arbitrator on behalf of the Company by the Board and (ii) the Final Valuation tendered to the arbitrator on behalf of the Offeror. The determination of the arbitrator shall be in writing and shall be conclusive and subject to modification or vacation only on the grounds provided for under the United States Arbitration Act, 9 U.S.C. § 1-16 and otherwise shall be non -appealable and binding upon the Company and the Offeror for all purposes. All costs of the arbitration (including the reasonable legal expenses of the Company and the Offeror with respect to any disagreement as to the per Unit fair market value of the outstanding Membership Interests) shall be borne by (A) the Company, in the event the arbitrator determines that the per Unit fair market value for the outstanding Membership Interests is equal to the Final Valuation tendered to the arbitrator on behalf of the Offeror, or (B) by the Offeror, in the event the arbitrator determines that the per Unit fair market value for the outstanding Membership Interests is equal to the Final Valuation tendered to the arbitrator on behalf of the Company by the Board. Neither the Company nor any manager, officer, director, employee or agent of the Company shall have any liability with respect to valuation of Interests Subject to the Offer that are bought or sold at the Fair Market Value, as determined pursuant to this paragraph, even though the fair market value, as so determined, may be more or less than actual fair market value, and shall be fully protected in relying in good faith upon the records of the Company and upon information, opinions, reports or statements presented to the Company by any person as to matters which the Company or such director, officer, employee or agent reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company The fair market value of Membership Interests as of the date of the Original Agreement and until the first determination of fair market value thereof by the Board shall, for purposes of this paragraph, be deemed to be Book Value, subject to appropriate adjustment by the Board for Unit splits, Unit dividends, combinations and similar transactions. "Fiscal Year" means the Company's fiscal year, and shall be the same as its taxable year The Company's taxable year shall be the calendar year, unless otherwise required by the Code and Treasury Regulations as reasonably determined by the Board "Interests Subject to the Offer" means (i) with respect to an offer required under Section 9.2 as a PD'N result of an Acquisition Proposal, all Units of Membership Interests subject to such Acquisition Proposal, 5 and no others; and (ii) all Units of Membership Interests owned by a Member required to be offered pursuant to Sections 9.3, 9.4 or 9.5. "Manager" or "Managers" means a member or members, respectively, of the Board. "Member Nonrecourse Debt" means "partner nonrecourse debt" within the meaning of Treasury Regulations Section 1 704-2(bX4) "Member Nonrecourse Deductions" means "partner nonrecourse deductions" within the meaning of Treasury Regulations Section 1.704-2(i)(2) "Members" has the meaning given in the introductory paragraph. "Membership Interest" means the ownership interest of a Member in the Company at any particular time, including, without limitation, the right of such Member to any and all benefits to which a Member may be entitled as provided in this Agreement and under law, together with the obligations of such Member to comply with all of the terms and provisions set forth in this Agreement and under applicable law. The quantum of each Member's Membership Interest shall equal and be expressed by the number of Units held by such Member. "Minimum Gain Attributable to Member Nonrecourse Debt" means "partner nonrecourse debt minimum gain" as determined in accordance with Treasury Regulations Section 1 704-2(i)(3). "Nonrecourse Deductions" has the meaning set forth under Sections 1.704-2(b)(1) and (c) of the Treasury Regulations. "Nonrecourse Liabilities" has the meaning set forth under Section 1 704-2(b)(3) of the Treasury Regulations "Offer" has the meaning given in Section 9.2 "Offeror" has the meaning given in the relevant Section of Article IX. "Percentage Interest" means the percentage ownership of the Company owned by each Member, and for each Member shall at all times be equal to the percentage obtained by dividing the number of Units held by such Member (initially each Member shall hold 100 units) of a total 100 units outstanding by the number of all Units held by all Members The respective Percentage Interests of the initial Members shall aggregate 100%, such percentages may be amended from time to time by the Board in order to reflect the Members' respective Percentage Interests pursuant to the terms hereof. "Person" means any individual, limited liability company, corporation, partnership, trust or other entity "Profits" or "Losses" means, for each Fiscal Year or other period, an amount equal to the Company's taxable income or loss for such year or other period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (i) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (ii) any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1 704-1(b)(2)(iv)(i) shall be 6 subtracted from such taxable income or loss, (iii) gain or loss resulting from any disposition of a property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Adjusted Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Adjusted Asset Value, (iv) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, the Company shall compute such deductions based on the Depreciation of a property, (v) if the Adjusted Asset Value of an asset is adjusted pursuant to the definition of Adjusted Asset Value (except with respect to Depreciation), then the amount of such adjustment shall be treated as an item of gain or loss and included in the computation of Profits and Losses, and (vi) all items allocated pursuant to Sections 5 2(a) through (and including) 5.2(i) shall not be included in the computation of Profits and Losses "Purchase Price" means, subject to adjustment pursuant to Section 9 10 below (i) for purposes of the purchase of Interests Subject to the Offer under Section 9.2, the price stated in the Acquisition Proposal; (ii) for purposes of the purchase of Interests Subject to the Offer under Sections 9 3 or 9.4, the Fair Market Value of such Interests Subject to the Offer; and (iii) for purposes of the purchase of Interests Subject to the Offer under Section 9.5, the lower of Fair Market Value and Book Value of such Interests Subject to the Offer "Regulatory Allocations" has the meaning given in Section 5.2 "Restricted Member" has the meaning given in Section 5 2 "Tax Distributions" mean distributions made to the Members pursuant to Section 5.4 "Tax Matters Member" shall mean the "tax matters partner" as provided in Code Section 6231(a)(7), and initially shall be (member). "Treasury Regulations" shall mean the current and temporary regulations promulgated by the U.S Treasury Department under the Code. "Unit" means each unit of Membership Interest ARTICLE III: PURPOSE AND CHARACTER OF THE BUSINESS 3.1 General Purposes The purposes of the Company shall be real estate investments and any other lawful activity for which a limited liability company may be organized under the Act 3.2 Authority. The Company may make, execute, deliver and perform any and all contracts, commitments, undertakings, consents, restrictions, covenants, warranties, expressions of investment intent and other agreements or arrangements, and may engage in any and all activities and transactions, as may, in the opinion of the Board (as provided for in Article 6 hereof), be necessary or appropriate to carry out the objectives and purposes described in Section 3.1 3.3 Tax Classification. It is the intent of the Members that the Company shall always be operated in a manner consistent with its treatment as a "pass -through entity" for federal, state and local income and franchise tax purposes As such, in the event that the Company has one Member, including a Membership Interest, which is held in joint tenancy or otherwise, the Company shall elect to be 7 designated as a "disregarded entity" for tax purposes. Similarly, in the event that the Company has more than one Member, the Company shall elect to be designated as a "partnership" for tax purposes. In accordance therewith, (a) no Member shall file any election with any taxing authority to have the Company treated otherwise, and (b) each Member hereby represents, covenants, and warrants that it has not maintained and shall not maintain a position inconsistent with such treatment. The Board agrees that, except as otherwise required by applicable law, it (i) will not cause or permit the Company to elect (A) to be excluded from the provisions of Subchapter K of the Code, or (B) to be treated as a corporation or an association taxable as a corporation for any tax purposes; (ii) will cause the Company to make any election reasonably determined to be necessary or appropriate in order to ensure the treatment of the Company as a pass -through entity for all tax purposes; (iii) will cause the Company to file any required tax returns in a manner consistent with its treatment as a pass -through entity for tax purposes, and (iv) has not taken, and will not take, any action that would be inconsistent with the treatment of the Company as a pass -through entity for such purposes. ARTICLE IV: CAPITAL CONTRIBUTIONS; UNITS. 4 1 Capital Contributions of Members. (a) Effective as of the date of the Original Agreement, the initial Members have contributed cash in exchange for the issuance of 100% of the entity. Contributions by (member) and (members) are (amount) in aggregate Obviously, other amounts maybe needed and agreed hereto. (b) Except as provided in Section 4.1(a), no Member shall have any obligation to make any Capital Contributions to the Company. (c) Each Member admitted following the date of this Agreement shall contribute the type and amount of capital determined by the Board, m exchange for the number of Units to be issued to such Member, as determined by the Board (d) In the event that the Board determines, by a majority vote, that additional Capital Contributions are necessary for the operations of the Company, the Executive Manager shall deliver 'a notice to each Member stating the amount of additional Capital Contributions needed and the date upon which it must be made. Upon receipt of the notice, each Member shall contribute his, her or its pro rata share of the additional Capital Contributions required. In the event that a Member is unable to contribute his, her or its pro rata share of the additional Capital Contributions within the time period specified in the notice ("Non -Contributing Member"), any other Member may contribute the amount that was to be contributed by the Non -Contributing Member ("Contributing Member") and such contribution shall be deemed a loan ("Contribution Loan") from the Contributing Member to the Non -Contributing Member All distributions or amounts to be paid of any kind, including, without limitation, distributions of Profits or payment of Purchase Price as a result of a Disposition, which would have been paid to the Non - Contributing Member shall be paid to the Contributing Member, together with interest on the outstanding principal balance of the Contribution Loan at the then applicable prime rate plus ten percent as denominated by the Company's primary bank until the Contribution Loan has been repaid in full. In addition, the Contributing Member shall have a lien, without any further action, on the Membership Interests of the Non -Contributing Member, and the Non -Contributing Member shall pledge to the Contributing Member any certificates evidencing any Units owned by the Non -Contributing Member until such time as the Contribution Loan is repaid 4.2 No Right to Return of Contribution. No Interest on Capital Except as provided in this Agreement, no Member shall have the right to withdraw or receive any return of, or interest on, its Capital 8 Contribution or on any balance in such Member's Capital Account. Under any circumstances requiring a return of any Capital Contribution, no Member shall have the right to receive property other than cash. 4 3 Units. All Membership Interests shall be denominated in percentages or units, which shall be issued by the Company in consideration of Capital Contributions in amounts determined by the Board by majority vote. The Company shall not issue any Units, grant any percentage ownership or accept any Capital Contributions except with approval of the Board by a majority vote. The Board shall also have the authority to issue warrants, options or other rights to purchase Units in such amounts, designations and classes and at an exercise price as may be determined by a majority vote of the Board. 4.4 Loans to Company. The Members may, but are not obligated to, make secured or unsecured loans to the Company from time to time, as determined by the Board. No such loans shall be treated as Capital Contributions for any purpose under this Agreement, nor entitle any Member to any increase in such Member's share of the Profits and Losses and distributions of the Company The principal and interest on any loans to the Company made pursuant to this Section 4 4 shall be repaid prior to any distributions to Members pursuant to Articles V or XI 4 5 Creditor's Interest in Company. No creditor who makes a nonrecourse loan to the Company shall have or acquire, at any time as a result of making the loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a secured creditor Notwithstanding the foregoing, this provision shall not prohibit in any manner whatsoever a secured creditor from participating in the profits of operation or gross or net revenues of the Company or in the gain on sale or refinancing of the Company, all as may be provided in its loan or security agreements. 4.6 Limited Liability of Members The Members shall not be liable for any of the debts, liabilities, contracts or other obligations of the Company Except as otherwise provided in this Agreement or under applicable law, the Members shall be liable only to make their respective initial Capital Contributions, and the Members shall not be required to lend any funds to the Company or, after their initial Capital Contribution shall have been paid, to make any further Capital Contributions 4 7 Other Business Except as they otherwise may have agreed with the Company, the Members and any Affiliate of any of the Members may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others. To the extent that, at law or in equity, a Member or any Affiliate has duties (including fiduciary duties) and liabilities to the Company or to the Members, no such Person shall be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expand or restrict the duties and liabilities of any such Person otherwise existing at law or in equity, are agreed 'by the Members to replace such other duties and liabilities of such Person. 4.8 Conflicts of Interest. Except for a Member who is also an employee of the Company and who owns less than a majority of the Units outstanding (an "Employee Member"), a Member shall be entitled to enter into transactions that may be considered to be competitive with, or a business opportunity that may be beneficial to, the Company An Employee Member owes a duty of loyalty to the Company and shall, at all times, refrain from enter into transactions that may compete with the Company or interfere with any of the Company's customer, vendor or supplier relationships ARTICLE V: PROFITS, LOSSES, DISTRIBUTIONS P"'N 5.1 Profits and Losses. Generally. The Profits and Losses of the Company for each Fiscal Year (or shorter period selected by the Board) will be allocated to the Members as may be determined by the 9 Board. In the event that the Board fails to make a determination, the Profits and Losses of the Company for a Fiscal Year will be allocated to the Members pro rata in accordance with their Percentage Interests, unless otherwise provided in this Agreement 5.2 Regulatory Allocations and Other Allocation Rules. Notwithstanding anything herein to the contrary, the following special allocations shall be made as follows, and, as appropriate, in the following order (a) Items of Company loss and deduction otherwise allocable to a Member hereunder that would cause such Member (hereinafter, a "Restricted Member") to have a deficit balance in its Adjusted Capital Account, or would increase the deficit balance in its Adjusted Capital Account, as of the end of the Fiscal Year to which such items relate shall not be allocated to such Restricted Member and instead shall be allocated to other Members with positive balances in their Adjusted Capital Accounts pro rata in proportion to their positive Adjusted Capital Account balances (b) If there is a net decrease in Company Minimum Gain for any Fiscal Year (except as a result of conversion or refinancing of Company indebtedness, certain capital contributions or revaluation of the Company's property as further outlined in Treasury Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Member's share of the net decrease in Company Minimum Gain The items to be so allocated shall be determined in accordance with Treasury Regulations Section 1.704-2(f). This Section 5.2(b) is intended to comply with the minimum gain chargeback requirement in said section of the Treasury Regulations and shall be interpreted consistently therewith. Allocations pursuant to this Section 5.2(b) shall be made in proportion to the respective amounts required to be allocated to each Member pursuant hereto (c) If there is a net decrease in Minimum Gain Attributable to Member Nonrecourse Debt during any Fiscal Year (other than due to the conversion, refinancing or other change in the debt instrument causing it to become partially or wholly nonrecourse, certain capital contributions, or certain reevaluations of the Company's property as further outlined in Treasury Regulations Section 1.704- 2(i)(4)), each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Member's share of the net decrease in the Minimum Gain Attributable to Member Nonrecourse Debt The items to be so allocated shall be determmed in accordance with Treasury Regulations Section 1.704-2(i)(4) and (j)(2) This Section 5.2(c) is intended to comply with the minimum gain chargeback requirement with respect to Member Nonrecourse Debt contained in said section of the Treasury Regulations and shall be interpreted consistently therewith. Allocations pursuant to this Section 5.2(c) shall be made in proportion to the respective amounts required to be allocated to each Member pursuant hereto (d) In the event a Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Section 1 704-1(b)(2Xii)(d)(4), (5), or (6), and such Member has a deficit balance in its Adjusted Capital Account, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate the deficit balance as quickly as possible. This Section 5.2(d) is intended to constitute a "qualified income offset" under Treasury Regulations Section 1 704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith (e) Nonrecourse Deductions for any Fiscal Year or other applicable period shall be allocated to the Members as deemed appropriate by the Board, but only as permitted by the Treasury Regulations. (0 Member Nonrecourse Deductions for any Fiscal Year or other applicable period shall be specially allocated to the Member that bears the economic risk of loss for the debt (i.e., the Member 10 Nonrecourse Debt) in respect of which such Member Nonrecourse Deductions are attributable (as determined under Treasury Regulations Section 1.704-2(b)(4) and (i)(1)). (g) To the extent that Treasury Regulations Section 1 704-1(b)(2)(iv)(m) requires that Capital Accounts be adjusted with respect to an adjustment to the basis of Company property pursuant to a Code Section 754 election, such adjustment shall be treated as an item of income, gain or loss and allocated to the Members as appropriate (h) In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the amount such Member is obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(ix5), such Member shall be specially allocated items of Company income and gain in the amount of such excess -as quickly as possible, provided that an allocation pursuant to this Section 5.2(h) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such amount after all other allocations provided for under this Agreement have been made as if Section 5 2(d) and this Section 5.2(h) were not in this Agreement. (i) The allocations set forth in Sections 5.2(a) through (and including) 5 2(h) (the "Regulatory Allocations") are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 5 2(i) Therefore, notwithstanding any other provision of the Agreement (other than the Regulatory Allocations), the Board shall make such offsetting special allocations of Company income, gain, loss or deduction in current or future periods in whatever manner it determines appropriate such that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Section 5.1 hereof. In exercising its discretion under this Section 5 2(i), the Board shall take into account future Regulatory Allocations under Sections 5 2(b) and 5.2(c) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 5.2(e) and 5 2(t) (1) Allocations to Members whose interests vary during a year by reason of transfer, redemption, admission, capital contributions, or otherwise, shall be made as determined by the Board in accordance with permissible methods under Code Section 706. 5 3 Tax Allocations (a) Subject to Section 5 3(b), items of income, gain, loss, deduction and credit to be allocated for income tax purposes shall be allocated among the Members on the same basis as the corresponding "book items," as provided in Sections 5 1 and 5 2 (b) If any Company property is subject to Code Section 704(c) or is reflected in the Capital Accounts of the Members and on the books of the Company at a value that differs from the adjusted tax basis of such property, then the tax items with respect to such Company property shall, in accordance with the requirements of Code Section 704(c) and applicable Treasury Regulations Section 1.704- 1(b)(4)(i), be shared among the Members in a manner that takes account of the variation between the , adjusted tax basis of the applicable property and its value in the same manner as variations between the adjusted tax basis and fair market value of property contributed to the Company are taken into account in determining the Members' share of tax items under Code Section 704(c). The Company shall select any reasonable method for allocations of tax items made in accordance with this Section 5.3(b) permitted by Section 1.704-3(d) of the Treasury Regulations, as determined by the Board 11 (c) Pursuant to Treasury Regulations Section 1 752-3, each Member's interest in Company profits, for purposes of determining such Member's share of excess "nonrecourse liabilities," shall be the Member's Percentage Interest. (d) The Members are aware of the income tax consequences of the allocations made by this Agreement and shall report their shares of Profits and Losses and other items of Company income, gain, loss and deduction for income tax purposes consistently with this Agreement. 5 4 Non -Liquidating Distributions. (a) General Subject to applicable law and any limitations elsewhere in this Agreement, the Board may elect from time to time to distribute assets of the Company, including cash, to the Members in proportion to their respective Percentage Interests or in any other proportion as the Board may determine. (b) Tax Distributions. (i) The Company shall use commercially reasonable efforts to distribute to each Member with respect to each Fiscal Year an aggregate amount in cash equal to the excess, if any, of (A) the sum of the following amounts (I) the product of the Tax Percentage for such Fiscal Year and such Member's allocable share of the Company's aggregate net long-term capital gain (as defined in Section 1222(7) of the Code) for such Fiscal Year and all previous Fiscal Years as shown on the Company's federal income tax returns; and (II) the product of the Tax Percentage for such Fiscal Year and such Member's allocated share of the Company's aggregate net ordinary income and net short-term capital gain (as defined in Section 1222(5) of the Code) for such Fiscal Year and all previous Fiscal Years as shown on the Company's federal income tax returns, over (B) all previous distributions (including Tax Distributions) made to such Member pursuant to this Section 5.4; provided, however, that the aggregate amount of any such distribution may be reduced or not made with respect to any Fiscal Year if and to the extent determined by the Board in its discretion; and provided further that the Company shall make Tax Distributions, if any, in a manner such that the Members can make estimated tax payments attributable to their respective distributive, aggregate shares of Company net taxable income, if any, under the principles of this Section 5 4(b)(i) In the event that distributions of the Company are subject to any state withholding tax, the amount distributable pursuant to this Section 5.4(b) shall be increased as required so that the after -withholding tax amount actually distributed will be equal to the amount required to be distributed hereunder (ii) For purposes of this Section 5 4(b). (A) the "Tax Percentage" for any Member, with respect to each specific item of net long-term capital gain, shall be twenty-five percent, and (B) the "Tax Percentage" for any Member, with respect to items of net ordinary income and net short-term capital gain, shall be forty-five percent (iii) In calculating the Company's net income and gain for purposes of this Section 5 4(b), there shall be disregarded any items of loss, expense or deduction the ultimate deductibility of which may, in respect of any Member or equity holder of a Member, be subject to limitation under Section 67 of the Code. (iv) Distributions made to any Member in cash pursuant to Section 5.4(a) during any Fiscal Year shall reduce dollar -for -dollar the amount of distributions that may be considered Tax Distributions to which such Member would have been entitled pursuant to this Section 5.4(b) with respect to such Fiscal Year if the Board had exercised its discretion to make such Tax Distributions If the Company makes Tax Distributions to the Members pursuant to this Section 5.4(b), the Board shall, as soon as possible, and if<practicable prior to making any subsequent Tax Distributions, adjust subsequent 12 distributions among the Members to the extent necessary to preserve the intended economic relationship among the Members as set forth in Section 5 4(a); provided, that in no event shall this sentence be construed as reducing the amount which a Member would otherwise be entitled to receive as a liquidating distribution in respect of his, her or its Capital Account balance pursuant to Section 5 5 (c) Other Rules. None of the Company, the Board or any Member will incur any liability under this Agreement for making distributions in accordance with this Section 5.4. No distribution of assets shall be made to the Members if, after giving effect to the distribution, the Company would not be able to pay its debts as they become due in the usual course of business Except for distributions made in violation of applicable law or this Agreement, no Member shall be obligated to return any distribution to the Company or pay the amount of any distribution for the account of the Company to any creditor of the Company. 5.5 Liquidating Distributions. Notwithstanding anything in this Agreement to the contrary, distributions in liquidation of the Company will be made to the Members in accordance with their positive Capital Account balances after all other adjustments to such Capital Accounts with respect to the year of liquidation For purposes of this provision, liquidation will have the meaning assigned to it in Treasury Regulations Section 1.704-1(b)(2)(ii)(g). The timing of such liquidating distributions will comply with Treasury Regulation Sections 1.704-1 or any similar regulation promulgated in the future, or if no such regulation exists, as soon as possible. 5 6 Withholding (a) The Company shall withhold taxes from distributions to, and allocations among, the Members to the extent required by law (as determined by the Board in its sole discretion) Except as otherwise provided in this Section 5 6, any amount so withheld by the Company with regard to a Member shall be treated for purposes of this Agreement as an amount actually distributed to such Member pursuant to Article V. An amount shall be considered withheld by the Company if and at the time such amount is remitted to a governmental agency without regard to whether such remittance occurs at the same time as the distribution or allocation to which it relates; provided, however, that an amount actually withheld from a specific distribution or designated by the Board as withheld from a specific allocation shall be treated as if distributed at the time such distribution or allocation occurs (b) Each Member shall indemnify the Company and the other Members for any liability they may incur for any failure to properly withhold taxes in respect of such Member. Moreover, each Member hereby agrees that neither the Company nor any other Member shall be liable for any excess taxes withheld in respect of such Member's interest in the Company and that, in the event of over -withholding, a Member's sole recourse shall be to apply for a refund from the appropriate governmental authority. (c) Taxes withheld by third parties from payments to the Company shall be treated as if withheld by the Company for purposes of this Section 5 6. Such withholding shall be deemed to have been made in respect to all the Members, as reasonably determined by the Board. In the event that the Company receives a refund of taxes previously withheld by a third party from one or more payments to the Company, the economic benefit of such refund shall be apportioned among the Members in a manner reasonably determined by the Board to offset the prior operation of this Section 5.6(c) in respect of such withheld taxes. (d) If the Company is required to remit cash to a governmental agency in respect of a withholding obligation arising from an in -kind distribution by the Company or the Company's receipt of /11'1 an in -kind payment, the Board may cause the Company to sell an appropriate portion of such property and, to the extent permitted by applicable law (as determined by the Board in its reasonable discretion) 13 any resulting income or gain shall be allocated solely for income tax purposes entirely to the Members in respect of whom such withholding obligation arises. 5 7 Accounting Method The books and records of account of the Company shall be maintained in accordance with the cash method of accounting However, the Board shall have the option of filing federal income tax returns on an accrual basis, to the extent such reporting is available under the Code and Treasury Regulations, in which event the Company shall maintain such books and records as may be required to prepare such returns based on the accrual method of accounting 5.8 Records. Audits and Reports At the expense of the Company, the Board shall maintain records and accounts of all operations and expenditures of the Company The books of the Company (other than books required to maintain Capital Accounts) shall be kept in accordance with principles determined by the Board (consistent with this Agreement), and shall at all times be maintained or made available at the principal office of the Company. At a minimum, the Company shall keep at its pnncipal place of business the following records. (a) A current list of the full name and last known business, residence or mailing address of each Member, both past and present, (b) A copy of the Articles and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed; (c) Copies of the Company's federal, state and local income tax returns and reports, if any, for the six most recent years; (d) Copies of this Agreement in its current form, and all amendments thereto, copies of any prior written operating agreement no longer in effect, copies of any writings permitted or required with respect to a Member's obligation to contribute cash, property or services, and copies of any financial statements of the Company for the three most recent years, (e) Minutes of every annual, special and court -ordered meeting of the Board and the Members, and (f) Any written consents obtained from the Board or the Members for action taken by the Board or the Members, respectively, without a meeting VI: MANAGEMENT AND CONTROL 6 1 Exclusive Management by Board. Each Member hereby delegates to the Board the exclusive authority to manage the Company's business except as to those matters as to which (i) the approval of some or all of the Members is expressly required by this Agreement or by the Act, (ii) the Board fails or refuses to act, or (iii) the Board submits the matter for approval to the Members Subject to the provisions of the Articles, the Act and this Agreement relating to actions required to be approved by the Members, the business, property and affairs of the Company shall be managed and all powers of the Company shall be exercised by or under the direction of the Board, which shall have all of the rights and powers which may be possessed by a "manager" under the Act, and such rights and powers as are otherwise conferred by law or by this Agreement 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 or activities customary or incident to the management of the Company's business, property and affairs Without limiting the generality of the foregoing, the functions of the Board shall include, without limitation: (1) authorizing distributions pursuant to Article 5; and (2) performing such other functions as are provided for in this 14 Agreement. The Board shall have the authority to adopt rules and procedures, not inconsistent with this Agreement, relating to the conduct of its affairs, including the power to take action by resolution of all the Managers without a meeting. Decisions of the Board within the scope of its authority shall be binding on the Company and each Member. Any Member who takes any action or binds the Company in violation of this Section 6.1 shall be solely responsible for any loss and expense incurred as a result of the unauthorized action and shall indemnify and hold the Company and the other Members harmless with respect to the loss or expense ansmg out of or relating thereto 6.2 Meetings of the Board and of the Members. (a) Calling a Meeting. No annual or regular meeting of the Members is required. Meetings of the Members may be called, for any purpose, by a majority of the Board, the Executive Manager (as hereinafter defined) of the Company or by any Member or Members holding at least a majority of all Percentage Interests Meetings of the Board may be called by any Manager, provided that the Board, as a group, shall have the authority to establish a regular meeting schedule. Nothing in this Agreement is intended to require that meetings of the Board be held, it being the intent of the Members that meetings of the Board are not required. (b) Attendance at Meetings: Minutes Attendance at meetings of either the Members or the Board may be by speaker telephone or other communications device by which all those participating in the meeting may hear each other. The Board shall keep written minutes of all meetings, and the minutes of each meeting shall be signed by the Managers attending or participating by conference call. The minutes shall be included in the records of the Company. (c) Notice: Place of Meetings All meetings of the Board or the Members shall be held upon at least seven days notice by mail or twenty-four hours notice delivered personally or by telephone, telegraph or facsimile to each Manager or Member entitled to vote at such meeting Such notice shall specify the place, day and hour of the meeting and the purpose or purposes for which the meeting is being called Notice of a meeting need not be given to any Manager or Member who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior to its commencement, such lack of notice. All such waivers, consents and approvals shall be filed with the Company records or made a part of the minutes of the meeting. Meetings of the Board or the Members may be held at any place within or without the State of Colorado which has been designated in the notice of the meeting or at such place as may be approved by the Board If all of the Members or Managers shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken (d) Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the record date for the determination of Members shall be the date on which notice of the meeting is mailed or otherwise given or the date on which the resolution declaring such distribution is adopted, as the case may be. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 6.2, such determination shall apply to any adjournment thereof. (e) Quorum. Attendance by Members holding a majority of all Percentage Interests shall constitute a quorum at any meeting of Members A majority of the number of Managers on the Board constitutes a quorum of the Board for the transaction of business. A meeting at which a quorum is ,oq initially present may continue to transact business notwithstanding the withdrawal of Managers or 15 Members, as applicable The provisions of this Section 6 2 apply also to committees of the Board and actions taken by such committees. (f) Manner of Acting. If a quorum is present at a meeting of the Members, the affirmative vote of Members holding a majority of the aggregate Percentage Interests represented in person or by proxy shall be the act of the Members, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles or by this Agreement If a quorum is present at a meeting of the Board, the affirmative vote of a majority of the Managers on the Board shall be the act of the Board, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles or by this Agreement. (g) Voting Members shall be entitled to vote with respect to, or approve, all matters requiring the vote or approval of the Members in this Agreement or the Articles or under the Act (h) Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney -in -fact Such proxy shall be filed with the Executive Manager of the Company before or at the time of the meeting (i) Action Without a Meeting Action required or permitted to be taken at a meeting of Members or Managers may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by all of the Members or Managers, as the case may be, and delivered to the Executive Manager for inclusion in the minutes or for filing with the Company records Action taken under this paragraph is effective when all of the Members or Managers, as the case may be, have signed the consent, unless the consent specifies a different effective date The record date for determining Members entitled to take action without a meeting shall be the date the first Member signs a written consent. (1) Waiver of Notice. When any notice is required to be given to any Member or Manager, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. 6 3 Election of Board (a) Election of Managers. The Board initially shall initially consist of two members indicated in this document. Each Manager elected pursuant to the previous sentence of this Section 6.3(a) is referred to as a "Designated Manager." Each Member shall vote its Percentage Interest in a manner consistent with the terms and intent of this Section 6.3(a) and, without limiting the generality of the foregoing. in favor of (i) the size of the Board not being increased to a number greater than that provided above unless agreed upon by the Designated Managers, and (ii) the election of the Designated Managers in accordance with this Section 6.3(a); and against filling with any individual other than a Designated Manager any vacancy on the Board for which any Member is entitled to designate a Designated Manager but for any reason fails to do so, or elects not to do so. Initially the Managers shall be the Members in aggregate (b) Vacancies on the Board In the event of the death, disability, retirement, resignation or removal of any Designated Manager (i) each Manager shall have the right, but not the obligation at any particular time, to designate another individual to fill such vacancy and to serve as a Designated Manager; and (ii) the Members shall use their best efforts and take all actions necessary to call, or cause the Company and the appropriate Managers of the Company to call (and if the Members or the Company shall fail or refuse to call such a meeting, the Member having the right to designate a replacement Designated Manager may call), a meeting of Members of the Company and shall vote at any such meeting 16 in favor of, or take all actions by written consent in lieu of any such meetings necessary to cause, the election of the individual so designated. In the event of the death, disability, retirement, resignation or removal of any other Manager that is not a Designated Manager, the Board shall have the right, but not the obligation at any particular time, to designate another individual to fill such vacancy and to serve as a Manager upon a majority vote of the Managers. (c) Removal. A Designated Manager may be removed at any time by majority vote. Any removal shall be without prejudice to the rights, if any, of the Manager under any employment contract and, if the Manager is also a Member, shall not affect the Manager's rights as a Member or constitute a withdrawal of a Member. 6 4 Powers of the Board. In addition to all of the powers given to a manager under the Act or other applicable law, but subject to the limitations on the authority of the Board under Section 6.5 or elsewhere in the Agreement, the Board shall have all necessary powers to manage and carry out the purposes, business, and affairs of the Company, including, without limitation, the power to. (a) distribute funds to the Members by way of cash flow, income, return of capital, or otherwise, all in accordance with the provisions of this Agreement; (b) employ from time to time, at the expense of the Company, on such terms and for such compensation as the Board may determine, but subject to this Agreement, Persons to render services to the Company, including without limitation, accountants and attorneys (who may also act as such for the Board or any of their Affiliates); and (c) cause to be paid all expenses, fees, charges, taxes, and liabilities incurred or arising in connection with the Company, or in connection with the management thereof, including without limitation the Managers' fees and compensation provided for in this Agreement and such expenses and charges for the services of the Company's employees, accountants, attorneys, and other agents or independent contractors, and such other expenses and charges as the Board deems necessary or advisable to incur. (d) enter into, make, perform and terminate contracts, agreements and other undertakings (including without limitation, contracts, agreements and other undertakings relating to the hiring, termination or compensation of employees) binding the Company that may be necessary, appropriate, or advisable in furtherance of the purposes of the Company, and making all decisions and waivers thereunder, (e) incur indebtedness for borrowed money; (0 open and maintain bank and investment accounts and arrangements, draw checks and other orders for the payment of money, and designate individuals with authority to sign or give instructions with respect to those accounts and arrangements; (g) invest the funds of the Company as they may deem advisable; (h) collect sums due the Company; (I) to the extent that funds of the Company are available therefor, pay debts and obligations of the Company, 17 (j) acquire, use for Company purposes and sell, lease, trade, exchange or otherwise dispose of all or any portion of the assets or property of the Company; (k) select, remove and change the authority and responsibility of lawyers, accountants and other advisers and consultants in connection with the operation of the Company; (I) purchase, at the expense of the Company, liability, casualty and other insurance and bonds to protect the Company's properties and the Members, (m) maintain adequate records and accounts of all operations and expenditures, (n) execute and deliver any and all agreements, documents and other instruments necessary or incidental to the conduct of the operations of the Company, (o) enter into or participate in joint ventures, limited partnerships, or limited liability companies, or acquire any interest in any corporation or other entity; (p) make, execute, or deliver any assignment for the benefit of creditors or cause the Company to file for bankruptcy, (q) grant a lien upon or otherwise encumber any of the assets of the Company, (r) commence or settle any litigation; (s) guaranty the obligation of any person or entity. 6 5 Certain Limitations. Notwithstanding Section 6 4, the Company shall not, and shall have no authority to, take any of the following actions unless such actions are approved by unanimous approval of the Managers: (a) any amendment to the Articles, (b) any (1) change in the method of determining Fair Market Value and (2) determination of Fair Market Value of any Interests Subject to the Offer; (c) the incurrence of any indebtedness for borrowed money in excess of $ I million principal amount, or any modification of any such indebtedness, (d) the establishment, modification or staffing of any committee or subcommittee of the Board, (e) the issuance of any Units or any options, warrants or other rights to acquire Units; (0 any merger or consolidation of the Company or sale of all or substantially all of the assets of the Company; (g) the admission of any additional or substitute Members, or (h) as provide elsewhere in this Agreement 6 6 Appointment of Executive Manager. There shall, at all times, be an Executive Manager of the Company The Board shall appoint the Executive Manager The Executive Manager shall exercise such 18 powers and perform such duties as specified in this Agreement and as shall be determined from time to time by the Board. The Executive Manager initially shall be BRENT R HUWA. (a) Removal, Resignation and Filling of Vacancy of the Executive Manager. The Executive Manager may be removed, either with or without cause, by a majority vote of the Board at any time. The Executive Manager may resign at any time by giving written notice to the Board Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice, and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. A vacancy because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in this Agreement. (b) Duties and Powers of the Executive Manager The Executive Manager shall, subject to the control of the Board, have general and active management of the business of the Company and shall see that all orders and resolutions of the Members and Board are carried into effect. He or she shall have the general powers and duties of management usually vested in the office of a chief executive officer of a corporation, and shall have such other powers and duties as may be prescribed by the Board or this Agreement The Executive Manager shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Company, except where required or permitted by law to be otherwise signed and executed, and except where the signing and execution thereof shall be expressly delegated by the Board to some other Manager or agent of the Company. Notwithstanding anything to the contrary in this Agreement, neither the Executive Manager nor any other Manager shall have any authority to take any of the actions described in Section 6.4 and 6.5 without first obtaining the consent of the Board as provided in those Sections (c) Acts of the Executive Manager as Conclusive Evidence of Authority Any note, mortgage, evidence of indebtedness, contract, certificate, statement, conveyance, or other instrument in writing, and any assignment or endorsement thereof, executed or entered into between the Company and any other Person, when signed by the Executive Manager of the Company, is not invalidated as to the Company by any lack of authority of the Executive Manager in the absence of actual knowledge on the part of the other Person that the Executive Manager had no authority to execute the same. (d) Signing Authority of Managers Subject to any restrictions imposed by the Board, any Manager, 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 individuals authorized from time to time by the Board to do so. Any instrument may be executed and delivered on behalf of the Company by the Executive Manager of the Company, or any other Manager of the Company delegated by resolution of the Board to do so, including any deed, deed of trust, note or other evidence of indebtedness, lease agreement, security agreement, financing statements, contract of sale, or other instrument purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, at any time held in its name, or any receipt or compromise or settlement agreement with respect to the accounts receivable and claims of the Company, and no other signature shall be required for any such instrument to be valid, binding, and enforceable against the Company in accordance with its terms All persons may rely thereon and shall be exonerated from any and all liability if they deal with the Executive Manager of the Company on the basis of documents approved and executed on behalf of the Company by the Executive Manager. Any person dealing with the Company or its Board or Members may rely upon the certificate signed by any Manager of the Company as to. (i) The identity of the Members or Managers; (ii) Acts by the Members or Managers, and 19 (iii) Any act or failure to act by the Company as to any matter whatsoever involving the Company or any Member. (e) Bank Accounts. The Managers may from time to time open bank accounts in the name of the Company. 6 7 Conflicts of Interest. (a) The Managers shall be required to devote only such time to the affairs of the Company as such Managers determine, in their sole, but reasonable discretion, may be necessary in light of the authority delegated to and responsibilities undertaken by the Board. The Managers shall otherwise remain free to engage in such independent activities, as they may deem appropriate in their discretion (b) Any Manager or Affiliate thereof may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Company, and the Company and the Members shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits denved there from, and the pursuit of any such venture, even if competitive with the business of the Company, shall not be deemed wrongful or improper. (c) Notwithstanding that it may constitute a conflict of interest, but subject to Section 6.5, a Manager may, andkmay cause his Affiliates to, engage in any transaction (including, without limitation, the purchase, sale, lease, or exchange of any property or the rendering of any service, or the establishment of any salary, other compensation, or other terms of employment) with the Company so long as such transaction is not expressly prohibited by this Agreement and so long as the terms and conditions of such transaction, on an overall basis, are fair and reasonable to the Company and are at least as favorable to the Company as those that are generally available from Persons capable of similarly performing them and in similar transactions between parties operating at arm's length. 6.8 Limitation on Liability The Managers of the Company shall not be liable, responsible, or accountable, in damages or otherwise, to the Company or any Member for any action taken or any failure to act on behalf of the Company within the scope of the authority conferred on the Managers by this Agreement or by law, unless the act or omission was performed or omitted fraudulently, in bad faith, or in contravention of this Agreement, or constituted gross negligence 6 9 Indemnification and Liability of Managers (a) None of the Managers of the Company shall be liable, responsible or accountable in damages or otherwise to the Company or any Member for any acts performed, or for any failure to act within the scope of this Agreement To the fullest extent permitted by law, each Manager of the Company (individually, each an "Indemnitee") shall be indemnified, held harmless and defended by the Company from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred or suffered by such Indemnitee, as a party or otherwise, in connection with any threatened, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal, arising out of or in connection with the business or the operation of the Company, or by reason of the Indemnitee's status as a Manager of the Company, regardless of whether the Indemnitee retains such status at the time any such loss, claim, damage, liability, or other expense is paid or incurred if (i) the Indemnitee acted within the scope of such Person's authority pursuant to this Agreement with respect to any criminal proceeding, had no reasonable cause to believe that such)conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute fraud, gross 20 negligence, willful misconduct or a material breach of the terms of this Agreement. The termination of any action, suit or proceeding by judgment, order, settlement or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Indemnitee acted in a manner contrary to the standards specified in clauses (i) or (ii) of this Section 6.9. (b) To the fullest extent permitted by law, expenses incurred by an lndemnitee in defending any claim, demand, action, suit or proceeding subject to this section shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Indemnitee to repay such amount unless it is determined that such Indemnitee is entitled to be indemnified therefore pursuant to this Section 6 9 (c) The indemnification provided by this Section 6 9 shall be in addition to any other rights to which any Indemnitee may be entitled under any other agreement, as a matter of law or otherwise, and shall inure to the benefit of the heirs, legal representatives, successors, assigns and administrators of the Indemnitee 1 (d) Any indemnification under this Section 6.9 shall be satisfied solely out of the assets of the Company and no Indemnitee shall have any recourse against any Member with respect to such indemnification. (e) An Indemnitee shall not be denied indemnification, in whole or in part, under this Section 6.9 merely because the Indemnitee had an interest in the transaction with respect to which the indemnification applies, if the transaction was not otherwise prohibited by the terms of this Agreement and the conduct of the Indemnitee satisfies the conditions set forth in this Agreement (f) The indemnification provided in this Section 6.9 is for the benefit of the specified Persons only and shall not be deemed to create any right to indemnification for any other Person (g) The Company may, but shall have no obligation to, purchase and maintain insurance covering any potential liability of the Indemnitees for any actions or omissions for which indemnification is permitted hereunder including such types of insurance (including extended coverage liability and casualty and workers' compensation) as would be customary for any person engaged in a similar business and may name the Indemnitees as additional insured parties thereunder (h) To the extent that a person entitled to indemnification is successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in this Section 6.9, or in the defense of any claim, issue, or matter therein, the Company shall indemnify them againstthe expenses, including attorneys' fees, actually and reasonably incurred by them in connection therewith 6.10 Indemnification Procedures: Survival. . (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action that may result in a claim for indemnification pursuant to Section 6 9, the Indemnitee shall notify the Company in writing within 30 days thereafter; provided, however, that the omission so to notify the Company shall not relieve the Company of any liability for indemnification pursuant to Section 6 9 as to the particular item for which indemnification may then be sought (except to the extent that the failure to give notice shall have been materially prejudicial to the Company). (b) An Indemnitee shall have the nght to employ separate counsel in any action as to which indemnification may be sought under any provision of this Agreement and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemmtee unless (i) the 21 Company has agreed in writing to pay such fees and expenses, (ii) the Company has failed to assume the defense thereof without reservation and employ counsel within a reasonable period of time after being given the notice required above, or (iii) the named parties to any such action (including any impleaded parties) Include both such Indemnitee and the Company and the Indemnitee shall have been advised by its counsel that representation of such lndemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them. It is understood, however, that the Company shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys at any time for all such Indemnitees having actual or potential differing interests with the Company. (c) The Company shall not be liable for any settlement of any such action effected without its written consent, but if settled with such written consent, or if there is a final judgment against the Indemnitee in any such action, the Company agrees to indemnify and hold harmless the Indemnitee to the extent provided above from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment (d) The Company may pay the expenses incurred by an Indemnitee in defending a pending or threatened civil or cnminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by such person or entity to repay such payment if such person shall be determined not to be entitled to indemnification therefore as provided herein, provided, however, that in,such instance such person is not defending a civil action, suit or proceeding commenced against such person by the Company itself. (e) The indemnification obligation set forth in Section 6 9 shall survive the termination of this Agreement 6 11 Reimbursement of Expenses The Company shall reimburse its Managers for expenditures made from their own funds for Company purposes, including attendance at Board meetings ARTICLE VII: PROVISIONS APPLICABLE TO MEMBERS 7 1 Liability Members of the Company are not liable under a judgment, decree or order of a court, or in any other manner, for a debt obligation, or liability of the Company. Subject to the proceeding sentence, except as otherwise provided by the Act or any amended or successor section, a Member shall be liable with respect to the Company only to the extent of the amount of the aggregate Capital Contributions made by each such Member under this Agreement, and no Member shall have any obligation to make-up or otherwise make any contribution or payment in connection with a deficit balance in its Capital Account. 7.2 No Participation in Control or Management. The Members shall have no power to participate in the management of the Company except as expressly authorized by this Agreement or the Articles and except as expressly required by the Act Unless expressly and duly authorized in writing to do so by the Board, no Member shall have any power or authority to bind or act on behalf of the Company in any way, to pledge its credit, or to render it liable for any purpose. 7.3 No Withdrawal or Dissolution. The death of a Member shall not dissolve or terminate the Company. No Member at any time shall have the right to have the Company dissolved or to withdraw, or have its Capital Contribution withdrawn, from the Company, except as provided in this Agreement 22 7.4 Consent. To the fullest extent permitted by law, each of the Members hereby consents to the exercise by the Board of all of the rights and powers conferred on the Board and the Managers by this Agreement 7 5 Admissio of Additional Members. No Person may be admitted as an additional Member of the Company without the approval of the Board, by a two-thirds vote Any additional Members shall obtain Membership Interests and will participate in the Profits, Losses, and distributions of the Company, and be , issued Units, on such terms as are determined by the Board by a two-thirds vote Substitute Members may only be admitted in accordance with Article 9 7.6 Members Are Not Agents. The management of the Company is vested in the Board and those Managers of the Company, which the Board decides to appoint pursuant to Section 6 6 No Member, acting solely in the capacity of a Member, is an agent of the Company nor can any Member in such capacity bind nor execute any instrument on behalf of the Company. 7.7 Voting Rights. (a) Except as expressly provided in this Agreement or the Articles, Members shall have no voting, approval or consent rights When permitted to vote, each Member holding a Membership Interest shall be entitled to vote his, her or its Percentage Interest. (b) If any action described in Section 6.5 is approved by the Board in accordance with such Section, and such action requires the vote of the Members in order to be implemented or otherwise is submitted by the Board to the Members for their approval, then each of the Members shall vote his, her or its entire Percentage Interest in favor of such action at any meeting of the Company's Members or by prompt execution of written consents in form approved by the Board provided that, in the case of any merger, reorganization, sale of all or substantially all of the Company's assets, each Member be treated on an equivalent pro rata basis with respect to his, her or its Membership Interests ARTICLE VIII: BOOKS OF ACCOUNT; REPORTS AND FISCAL MATTERS 8.1 Books; Place; Access The Managers shall maintain proper and complete books of account on behalf of the Company Such books of account, together with an executed copy of this Agreement and the Articles shall be kept at the principal office of the Company. All Members or their legal counsel shall at all reasonable times have access to and the right to inspect and copy the same at any time during ordinary business hours. 8.2 Attorneys and Accountants, Financial Reports The attorneys and certified public accountants for the Company shall be appointed by the Board The Company's annual financial statements shall be prepared by the Company's independent certified public accountants. The Members shall receive (1) the annual financial statements of the Company within ninety days after the close of each Fiscal Year; and (ii) a report indicating such Member's share of all items of income, gain, loss or, deduction of the Company for such Fiscal Year for federal income tax purposes, together with any additional tax information reasonably requested by a Member, within ninety days of the close of each Fiscal Year of the Company The fees for any such reports shall be paid by the Company. 8.3 Bank Accounts The Executive Manager shall select a depository or depositories for the funds of the Company, and all funds of every kind and nature received by the Company shall be deposited in such account or accounts. The Board shall from time to time designate the persons authorized to withdraw funds from such account. The Managers shall not commingle the funds of the Company with their own funds or the funds of any other or entity 23 8.4 Tax Matters Member; Tax Matters. (a) Except to the extent specifically provided in the Code or Treasury Regulations (or the laws of other relevant taxing jurisdiction) and otherwise provided herein, the Tax Matters Member, in its sole and absolute discretion shall have exclusive authority to act for or on behalf of the Company with regard to tax matters, including the authority to make (or decline to make) any available tax elections, including any election under Section 754 of the Code and the Company's method of depreciation; provided, however, that the Tax Matters Member shall not settle any audit, extend any statute of limitation, or file any protest, petition or pleading without the prior approval of the Board The Tax Matters Member shall cause to be prepared and filed (with the assistance of the Company's accountants) any U S. federal, state and local tax returns for the Company on a timely basis. (b) Any Member entering into a settlement agreement with the Internal Revenue Service that concerns a Company item shall notify the Tax Matters Member of such settlement agreement and its terms within 15 days after the date thereof (c) During any Company income tax audit or other income tax controversy with any governmental agency, the Tax Matters Member shall keep the other Members informed of all material facts and developments on a reasonably prompt basis. All expenses incurred by the Tax Matters Member with respect to any tax matter that does or may affect the Company, or any Member by reason thereof, including but not limited to expenses incurred by the Tax Matters Member in connection with preparation of Company tax returns and Company level administrative or judicial tax proceedings, shall be paid for out of Company assets; provided that the Company shall not be obligated to pay any such expenses incurred as a result of the Tax Matters Member's breach of fiduciary duty, breach of duty of loyalty, bad faith, gross negligence, intentional misconduct or knowing violation of the law Prompt notice shall be given to the Members upon receipt of advice that the Internal Revenue Service or other taxing authority intends to examine any income tax return, or records or books of the Company. If another Member is permitted by the Tax Matters Member or under the Code to participate in Company -level administrative or judicial tax proceedings, such Member shall be responsible for all expenses incurred by it in connection with any such participation The cost of any tax adjustments to a Member's tax return arising from an audit or other proceeding of the Company shall be solely the responsibility of such Member (d) Each Member shall furnish the Tax Matters Member with such information (including information specified in Section 6230(e) of the Code) as the Tax Matters Member may reasonably request to permit the Tax Matters Member to provide the Internal Revenue Service with sufficient information to allow proper notice to the Members in accordance with Section 6223 of the Code. ARTICLE IX: DISPOSITIONS OF MEMBERSHIP INTERESTS; PURCHASE RIGHTS 9 1 General Rule Regarding Dispositions. No Member shall make any Disposition, directly or indirectly, through an Affiliate or otherwise (regardless of the manner in which such Member initially acquired Membership Interests), without complying with the provisions of this Article 9. Any Disposition or attempted Disposition in breach of this Agreement shall be void and of no effect, provided, however, that the Company may determine to treat any attempted Disposition in breach of this Agreement as an Offer pursuant to Section 9.5, and Section 9.9 shall apply to such attempted Disposition; except that the time periods stated in Section 9.9 shall begin to run as of the date the Company receives evidence satisfactory to it of such attempted Disposition. 9.2 Acquisition Proposal In the event, any Member desires, and is permitted under Section 9 9, to make a Disposition (except for Dispositions described in Sections 9 3 through 9.5 or made pursuant to 24 esh Sections 9.10), such Disposition may be made only if an Acquisition Proposal is received by such Member with respect thereto, and then only in compliance with this Agreement Upon receipt of an Acquisition Proposal that a Member desires to accept, such Member (the "Offeror") shall offer (the "Offer"), by written notice to the Company, to sell the Interests Subject to the Offer to the Eligible Offerees pursuant to the terms of this Agreement. Offers under this Section 9.2 shall (i) be irrevocable for so long as any Eligible Offeree has the right to purchase any Interests Subject to the Offer; (ii) be sent by the Offeror to the Company, (iii) state the consideration for and the number of Interests Subject to the Offer; and (iv) contain a description of and a copy of the Acquisition Proposal. In addition, the Offeror shall provide to the Company all other information with respect to the Acquisition Proposal and the proposed transferee reasonably requested by the Company in order to evaluate the Acquisition Proposal and verify the bona fide nature thereof. The date of such Offer shall be deemed to be the date such written notice satisfying the provisions of this Section 9.2 is delivered to the Company 9.3 Bankruptcy If any of the following events occur: (a) any Member shall voluntarily be adjudicated a bankrupt or insolvent; consent to or not contest the appointment of a receiver or trustee for himself, herself or itself or for all or any part of his, her or its property; file a petition seeking relief under the bankruptcy, rearrangement, reorganization or other debtor relief laws of the United States or any state or any other competent jurisdiction; or make a general assignment for the benefit of his, her or its creditors; or (b) if a petition is filed against a Member seeking relief under the bankruptcy, rearrangement, reorganization or other debtor relief laws of the United States or any state or other competent jurisdiction, or a court of competent jurisdiction enters an order, judgment or decree appointing a receiver or trustee for a Member, or for any part of his, her or its property, and such' petition, order, judgment or decree shall not be and remain discharged or stayed within a period of sixty days after its entry, then any such event shall be deemed an irrevocable "Offer," and such Member shall promptly notify the Company of such event The date of such Offer shall be deemed to be the date such written notice of the Offer is so delivered to the Company 9.4 peat"). Dissolution. Retirement, Divorce or Separation of Employment of Member. The death or dissolution of a Member, the divorce or legal separation of a Member from that Member's spouse, or the retirement or separation of employment of a Member who is also an employee of the Company shall be deemed an irrevocable "Offer" by its, his or her estate, such corporate member, or him or her, as may be the case (the "Offeror'), and the Offeror's executor or personal representative, or such Member, promptly shall notify the Company of that event The date of such Offer shall be deemed to be the date on which such written notice is so delivered to the Company 9 5 Indirect Transaction In the event of a transaction involving a change of ownership interest or voting power of a Member the effect of which would be to avoid the restrictions on Dispositions provided in this Article IX, such transaction shall be deemed a Disposition by such Member and an irrevocable "Offer," and such Member (the "Offeror") promptly shall notify the Company of such event and offer (the "Offer"), by written notice to the Company, to sell all Interests Subject to the Offer to the Company for the Purchase Price. Offers under this Section 9.5 shall be in writing, be irrevocable for so long as any Eligible Offeree has the right to purchase any Interests Subject to the Offer; be sent by the Offeror to the Company, and contain a description of the proposed transaction and change of ownership interest or voting power The Company shall, within five business days following receipt thereof (or, if no such written notice is delivered to the Company by the Member, within five business days following the P"t Company's receipt of evidence, satisfactory to it, of such a Disposition by the Offeror), deliver written notice of the Offer to the Eligible Offerees stating that all Membership Interests registered in the name of 25 such Member are Interests Subject to the Offer pursuant to this Section 9.5. The date of such Offer shall be deemed to be the date such written notice of the Offer is so delivered by the Company. 9.6 Procedures; Price (a) The Company The Company shall have the right for fifteen days following the date of an Offer to accept the Offer as to all or any Interests Subject to the Offer. (b) Other Eligible Offerees. If the Company does not accept the Offer with respect to all Interests Subject to the Offer within the fifteen day period specified in Section 9.2, the Company shall promptly give written notice thereof to the other Eligible Offerees, if any, and the other Eligible Offerees shall have the right, for thirty days following the receipt of such notice, to accept the Offer as to any remaining Interests Subject to the Offer in such proportions as they mutually agree, or if they are unable to agree, pro rata in proportion to their respective Percentage Interests (c) Certain Effects of Offers If the Eligible Offerees do not accept an Offer for all of the Interests Subject to the Offer, and such Offer has been made under Section 9.2 pursuant to an Acquisition Proposal, the Offeror desiring to make the Disposition pursuant to such Acquisition Proposal shall be permitted, subject to compliance with Section 9 9, at any time or times within, but not after, sixty days after the expiration of all rights to accept such Offer, to make a Disposition of all (but not less than all) of the Interests Subject to the Offer, provided, however, that no such Disposition shall be made at a lower price or on more favorable terms or to any person other than specified in the Acquisition Proposal. All Membership Interests transferred in accordance with the terms of this Agreement to any third party or to any Eligible Offeree (other than the Company), and all Interests Subject to the Offer pursuant to Section 9.2 and remaining unsold after such sixty-day period, and all Interests Subject to the Offer under Sections 9.3 through 9 5 (unless acquired by the Company), shall remain subject to the terms of this Agreement. (d) Purchase Price In the event that the Company or any Eligible Offerees accept an Offer as to all or any Interest Subject to the Offer, the Company and/or the Eligible Offerees, as the case may be, shall pay the Purchase Price, as defined in Article II, for the Membership Interests. 9.7 Acceptance; Closing Unless an Offer is accepted by one or more Eligible Offerees with respect to all of the Interest Subject to the Offer, the Offeror shall have no obligation to (but may at its option) sell any such Interests Subject to the Offer. Eligible Offerees, other than the Company, who accept an Offer as to all or any portion of the Interests Subject to the Offer shall evidence their acceptance by delivering to the Company a written notice of intent to purchase such Interests Subject to the Offer. The Company shall, in turn, promptly notify in writing any Member or any other party required to sell Interests Subject to the Offer of the receipt of such notices (",Receipt Notice"). The Company shall accept an Offer as to the Interests Subject to the Offer by promptly notifying the Member or any other party required to sell Interests Subject to the Offer of such acceptance, and such notice by the Company shall be deemed a Receipt Notice. The closing of the acquisitions of Interests Subject to the Offer by Eligible Offerees shall be consummated within sixty days following the delivery of the Receipt Notice. In the case of all acquisitions of Interests Subject to the Offer by Eligible Offerees, such acquisitions shall be consummated at a closing held at the principal offices of the Company (unless otherwise mutually agreed), at which time the Purchase Price (if cash, in the form of a cashier's check) shall be delivered to the transferor of the Membership Interests or the transferor's representative, and the transferor or the transferor's representative shall deliver to the Eligible Offerees purchasing the Interests Subject to the Offer instruments of transfer in form acceptable to the Company, duly executed, and evidence of good title to the Interests Subject to the Offer so purchased and the absence of liens, encumbrances and adverse 26 claims with respect thereto and such other matters as are deemed necessary by the Company for the proper transfer of the Interests Subject to the Offer so purchased to the acquiring Eligible Offerees 9 8 Form of Payment. The Purchase Price of any Interests Subject to the Offer purchased by Eligible Offerees pursuant to an Offer made under Section 9.2 shall be on such terms as contemplated by the Acquisition Proposal; provided, however, that if (i) the party which has made the Acquisition Proposal has proposed to acquire Interests Subject to the Offer not wholly in cash and (ii) any Eligible Offeree desires to consummate his, her or its acquisition of Interests Subject to the Offer (pursuant to the terms hereof) wholly in cash, then, upon request by such Eligible Offeree, the Board shall determine the per share cash value of the Acquisition Proposal, and such amount shall be the cash price per share to be paid to the Offeror by any Eligible Offeree who desires to purchase the Interests Subject to the Offer for cash The Purchase Price for all Interests Subject to Offer pursuant to an Offer made under Sections 93 through 9 5 shall be paid in cash; provided, however, that at the option of the Board exercisable in its sole discretion, if the Company is the Eligible Offeree, the Purchase Price may be paid by (A) cash at Closing, in the amount of twenty percent of the Purchase Price, and (B) the delivery of a promissory note in the principal amount of eighty percent of the Purchase Price, made by the Company payable to the order of the Offeror, bearing interest at the then applicable prime rate as denominated by the Company's primary bank, and payable over a term of four years in annual installments of equal principal and all accrued and unpaid interest. 9.9 Loan and Other Agreements; Certain Restrictions. Notwithstanding anything in this Agreement to the contrary, no Member shall make any Disposition (including but not limited to a Disposition pursuant to Sections 9 2 through 9 5 or Section 9.10) which, in the Company's judgment (as evidenced by a resolution of the Board), would cause a breach or default or acceleration of payments under any loan agreement, note, indenture or other agreement or instrument to which the Company and/or its Affiliates are a party (a "Material Agreement") Accordmgly, each Member desiring or required to make a Disposition shall, prior to attempting to effect any such Disposition, (i) give written notice ("Notice") to the Company describing the proposed Disposition and the proposed transferee in sufficient detail, setting forth the number of interests of Membership Interests as to which such Member desires to make a Disposition, and (ii) provide such other information concerning the Disposition as the Company reasonably requests If, in the Company's reasonable judgment (which judgment shall be communicated in wnting within ten days of the Company's receipt of the Notice and all other information it has reasonably requested), the proposed Disposition would cause a breach or default or acceleration of payments under any Material Agreement, then such Disposition may not be made, and any attempted Disposition shall be null and void. If the Company approves such Disposition (which approval shall be deemed given if no notification is given by the Company in accordance with the immediately preceding sentence) and any Membership Interests with respect to which approval has been given are not actually transferred within the relevant time period provided in the applicable provisions of this Agreement, then all of the provisions of this Agreement shall apply to any subsequent transaction affecting such Membership Interests or any interest therein (except as expressly excluded by the other terms of this Agreement). Additionally, all Membership Interests transferred (whether to a third party or any Member) pursuant to a Disposition complying with the terms of this Section 9.9 shall remain subject to this Agreement 9.10 Permitted Dispositions. The following Dispositions shall be permitted upon the approval of the Board by a two-thirds vote, in its sole discretion, and without compliance with the provisions of Sections 9 2 through 9.5, but Section 9.9 shall apply to each of the following Dispositions (a) by any Member to the Company or to any other Member; 27 (b) by any individual Member during his lifetime to an inter-vivos trust for the benefit of such Member, or (c) by any Member that is a wholly -owned entity to any Affiliate of such Member, provided, however. that as a condition to any such permitted transfer, at the option of the Board any Person so acquiring such Membership Interests may be required to be admitted as a Member to accordance with Section 9 12 9.11 Co -Sale If Members holding Percentage Interests aggregating at least sixty-seven percent (collectively, "Dragging Members") propose to enter into a bona fide private, arms -length transaction (or senes of related transactions) with a third party which is not an Affiliate of any of the Dragging Members for the sale of all of the Membership Interests, then all of the other Members (the "Other Members") shall, at and upon the written request of the Dragging Members, be obligated to sell their entire respective Membership Interests in the proposed transaction at the same time and upon the same terms and conditions on which the Dragging Members is selling their entire Membership Interests, and shall execute and deliver all documents and instruments and take such further action as is necessary or desirable to accomplish the foregoing purpose Section 9 2 shall not apply to a Disposition affected pursuant to this Section 9 11 9.12 Admission of Transferee as Substitute Member No transferee of all or part of the Membership Interest of any Member in the Company shall have the right to become a substitute Member unless the Board by two-thirds vote shall have consented to the admission of such transferee as a substitute Member. However, all Membership Interests (i) shall be subject to Sections 9.2 through 9.10 regardless of whether the transferee has been admitted as a Member, and (ii) in addition, for purposes of Sections 9.3, and 9.4, Membership Interests transferred in any Permitted Disposition by an employee of the Company also shall be deemed to continue to be held by such employee, regardless of whether the transferee has been admitted as a Member In the event that the Board does not consent to the admission of a substitute Member, that Member shall be deemed to be a holder of an Economic Interest and shall not have any of the rights or powers attributable to a Membership Interest 9 13 Documents and Expenses As a condition to admission as a substitute Member, a transferee of all or part of the Membership Interests of any Member, or the legatee or distributee of all or any part of the Membership Interests of any Member, shall execute and acknowledge such instruments, in form and substance satisfactory to the Board, as the Board shall deem necessary or advisable to effect such admission and to confirm the agreement of the Person being admitted as such substituted Member to be bound by all the terms and provisions of this Agreement Such transferee, legatee or distributee shall pay all reasonable expenses in connection with such admission as a substituted Member, including, but not limited to, legal fees and costs of the preparation, filing and publishing of any amendment to the Articles of formation of the Company if necessary or desirable in connection therewith 9.14 Acquit Company. In the absence of written notice to the Company of any Disposition of the Membership Interests of any Member, any payment to the assigning Member or its executors, administrators or representatives shall acquit the Company of liability to the extent of such payment to any other person who may have an interest in such payment by reason of an assignment by the Member or by reason of such Member's death or otherwise 9 15 'Further Restrictions on Disposition. Notwithstanding the foregoing provisions of this Article 9, a Disposition may be made only if the Board, after consulting with the Company's legal and tax advisors, tlezb1 determines that such Disposition shall not result in (i) the Company being subjected to any additional regulatory requirements (including those of the Investment Company Act of 1940 and the Investment 28 Advisers Act of 1940, as amended); (ii) a violation of applicable law or this Agreement; (iii) the Company's being treated as a "publicly -traded partnership" for federal or applicable state income or franchise tax purposes; or (iv) the Company terminating for federal income tax purposes pursuant to Section 708 of the Code, unless the Board determines that neither the Company nor any Member would be adversely affected as a result of any such determination Without limiting the foregoing, the Board shall not cause or permit any offering of Membership Interests in the Company to be registered under the Securities Act of 1933, as amended. 9 16 Mandatory Pledge Each Member shall pledge and grant a first lien on and a security interest in and to its Membership Interests to the Company's senior lender, and take all steps necessary to enable such senior lender to perfect such liens and security interests, as may be requested from time to time by the Board, provided that the Board makes the same request of all Members. ARTICLE X: AMENDMENT OF AGREEMENT This Agreement may be amended by written instrument executed by Members holding in the aggregate at least a one hundred percent Percentage Interest; provided, however, that (i) the provisions of Articles V, VI, and IX and this Article X, may be amended only by written instrument executed by all Members, and (ii) this Agreement may be amended by the Company, upon the approval of the Board, to cure any ambiguity or to cure, correct or supplement any defective provisions in this Agreement, or to make any other provisions with respect to matters or questions under this Agreement as the Board may deem necessary or advisable, so long as such amendment does not adversely affect the interest of any Member. ARTICLE XI: DISSOLUTION AND LIQUIDATION 11 1 Events Causing Dissolution The Company shall be dissolved only upon the occurrence of any of the following events (a) The unanimous consent of all Members or, following the sale or other disposition of all or substantially all of the assets of the Company, the approval of the Board, or (b) The final decree of a court that such dissolution is required under applicable law 11 2 Liquidation and Winding Up If dissolution of the Company is caused by reason of any of the events set forth in Section 11.1 hereof, the Company shall be liquidated and the Board (or other Person or Persons designated by a decree of court) shall wind up the affairs of the Company The Board or other Persons winding up the affairs of the Company shall promptly proceed to the liquidation of the Company and, in settling the accounts of the Company, the assets and the property of the Company shall be distributed in the following order of priority: (a) To the payment of all debts and liabilities of the Company in the order of priority as provided by law (other than outstanding loans from a Member), (b) To the establishment of any reserves deemed necessary by the Board, or the Person winding up the affairs of the Company, for any contingent liabilities or obligations of the Company (including those of the Person serving as the liquidator), (c) To the repayment of any outstanding loans from a Member to the Company, 29 L (d) To the allocation and distribution of all Profits and Losses in accordance with Sections 5.1, 5 2 and 5.3; and (e) The balance, if any, to the Members in accordance with Section 5 5 ARTICLE XII: MISCELLANEOUS PROVISIONS 12.1 Interpretation All references herein to Articles and Sections refer to Articles and Sections of this Agreement. All references herein to Schedules or Exhibits refer to items that are attached hereto and are hereby made a part hereof by reference All Article and Section headings are for reference purposes only and shall not affect the interpretation of this Agreement. 12.2 Notice. Any notice, demand, consent, authorization or other communication that any Member is required or may desire to give to or make upon the other Members or the Company pursuant to this Agreement shall be in wnting and shall be effective, valid and duly given and received upon actual receipt if hand delivered, sent by verified facsimile (with a copy by regular mail), or mailed by postage prepaid certified mail, return receipt requested; if to the Company, to the principal office of the Company set forth in Section 1.2 or to such other address as the Company shall notify the Members in wnting; and if to the Members, to the addresses set forth on Schedule A or to such other address as such Members may hereafter designate by notice in writing to the Company. 12.3 Successors and Assigns. Except as herein otherwise provided to the contrary, this Agreement shall be binding and inure to the benefit of the parties hereto and their personal representatives, assigns and successors 12.4 Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Colorado (without regard to the law of conflicts of any jurisdiction). 12 5 Severability. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect the validity of the remainder of this Agreement or the validity or the formation of the Company as a limited liability company under the Act. 12.6 Partition The Members agree that the assets and properties of the Company are not and will not be suitable for partition. Accordingly, each Member hereby irrevocably waives any and all rights that such Member may have to maintain any action for partition of such assets and properties. 12.7 Counterparts This Agreement may be executed in any number of original counterparts, all of which evidence only one agreement and only one of which need be produced for any purpose In addition, this Agreement may be executed in separate counterparts. 12.8 Entire Agreement. This Agreement contains the complete and entire agreement between the parties relating to the subject matter hereof, and supersedes all prior negotiations, agreements, representations and understandings, if any, between the parties respecting such matters 12 9 No Third -Party Beneficiary Except as otherwise expressly provided for herein, this Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and permitted assigns, and no other Person shall have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third -party beneficiary or otherwise 30 12.10 Specific Performance. Because of the unique character of the Membership Interests, the Members and the Company will be irreparably damaged if this Agreement is not specifically enforced. Should any dispute arise concerning the Disposition of Membership Interests, or any Percentage Interest therein, an injunction may be issued restraining any purported Disposition pending the determination of such controversy. In the event of any controversy concerning the right or obligation to purchase or sell any such Membership Interests, or any portion thereof, such right or obligation shall be enforceable in a court of equity by a decree of specific performance. Such remedy shall, however, be cumulative and not exclusive, and shall be in addition to any other remedy which the Members or the Company may have. 12.11 Cumulative Voting. No Member will have any cumulative voting rights. 12.12 Preemptive Rights. No Member will have any preemptive rights. 12.13 Exhibits. Exhibits and schedules referred to in this Agreement and attached hereto are incorporated herein in full by this reference as if each of such exhibits, schedules or annexes were set forth in the body of this Agreement and duly executed by the parties hereto. 12.14 Survival. It is the express intention and agreement of the Members that all covenants, agreements, statement, representations, warranties and indemnities made in this Agreement shall survive the execution and delivery of this Agreement and, where appropriate to facilitate the intent of this Agreement, the dissolution, liquidation and winding up of the Company. The Members have executed this Agreement as of the date set forth in the first paragraph above. Members Signatures BRENA (Member) TY A (Member) 31 REY ' UWA (Member) SCHEDULE A MEMBERS, CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS (As of October 24, 2017) Member BRENT R. HUWA COREY M. HUWA TYRUN L HUWA Percentage Interest Capital Contributions 33 1/3% $ 33 1/3% $ 33 1/3% $ A -I USR Questionnaire Planning Questions. Planner on Call 970-400-6100 1. Explain, in detail, the proposed use of the property The property will be used to remove 310,000 tons of topsoil The top four inches of top soil will be stripped and piled for reclamation using a CAT D6 dozer The remaining eight inches of top soil will be stripped and piled using a CAT D6 dozer and frontend loader It will then be loaded into trucks using a frontend loader and hauled offsite The total disturbance depth will not exceed 24 inches Following disturbance, the property will be reclaimed and restored to its current use as cropland 2. Explain how this proposal is consistent with the intent of the Weld County Code, Chapter 22 of the Comprehensive Plan The Weld County Code, Chapter 22, Comprehensive Plan, has been reviewed and the proposed removal of topsoil project is consistent with the outlined intention of the Comprehensive Plan including social, economic, or land use After completion, the project footprint will be returned to cropland 3. Explain how this proposal is consistent with the intent of the Weld County Code, Chapter 23 (Zoning) and the zone district in which it is located. The parcel is located within Division 1— A (Agricultural) Zone District and will be permitted by a Use by Special Review 4. Describe what type of land uses surround the site. Explain how the proposed use is consistent and compatible with surrounding land uses Surrounding land is used for cropland production and storage After project completion the area will be restored to cropland 5. What are the hours and days of operation? (e.g. Monday thru Friday 8:00 a.m. to 5:00 p.m ) Monday through Friday, 7am to 5pm 6 List the number of full time and/or part time employees proposed to work at this site. Two full time employees will be onsite at a given time Seventeen total employees will be utilized for this operation One operator for the scraper, one operator for the loader, and 15 semi -truck drivers for hauling 7 If shift work is proposed include the number of employees per shift. N/A 8. List the number of people who will use this site. Include contractors, truck drivers, customers, volunteers, etc. The site will be used by the following • 1 operator for the scraper, • 1 operator for the loader, and • 15 Semi -truck drivers (at various times throughout the day) 9. If this is a dairy, livestock confinement operation, kennel, etc., list the number and type of animals. N/A 10. Describe the type of lot surface and the square footage of each type (e g asphalt, gravel, landscaping, dirt, grass, buildings) Cropland covering approximately 6,970,000 sq ft (160 acres) 11. How many parking spaces are proposed? How many handicapped (ADA) parking spaces are proposed? N/A 12. Explain the existing and proposed landscaping for the site. Existing site is cropland Following completion of mining, the site will be ripped and seeded and returned to its current use as cropland 13 Describe the type of fence proposed for the site (e g 6 foot chain link with earth tone slats) N/A 14. Describe the proposed screening for all parking and outdoor storage areas. If the site is located in a floodplain outdoor storage is restricted N/A 15 Explain any proposed reclamation procedures when termination of the Use by Special Review activity occurs. The current, pre -disturbed land use of the Arnold Pit No 1 location is agricultural, primarily cropping According to NRCS soil survey data (Exhibit I) the location soils are primarily medium textured loam soils, with grades less than 3 -percent Soils are predominately neutral to moderately alkaline (pH 7 0 to 7 9) Soils are moderately deep to deep (> 24 -inches) and typically moderately -well to well drained Soils are neither saline, nor sodic Following mining activities, the land will be returned to productive cropland Soil and nutrient amendments will be based on surface owner requests at the time of reclamation Upon request of the surface owner, location soils may be sampled and analyzed to establish current soil physicochemical properties for further reclamation planning Soil sample analytical data would be used to develop site -specific amendment recommendations based on the current soil chemistry The following recommended seedbed preparation steps will aid in successful reclamation Steps may be omitted, conducted in different order, or changed to optimize success and efficiency depending on field conditions, sub -soil properties, and local terrain • At the completion of mining activities, the site will be regraded to approximate pre -disturbance contours as shown in Figure F-1 (Exhibit F) • Prior to topsoil re -spreading, the subsurface soil will be deep ripped to a minimum depth of 16- inches to reduce soil compaction and improve drainage Ripping will be conducted using a double pass with a straight -shank agricultural ripper or parabolic ripper The shanks on the back of a grader or dozer should NOT be used to alleviate soil compaction due to outcome inadequacies During ripping operations, the surface will be left rough and irregular to help tie the topsoil and subsoil horizons together Tillage can be used to break soil clods apart prior to topsoil application • Re -apply stockpiled topsoil and incorporate requested soil amendments to improve the soil's physical and chemical characteristics and to supplement any soil nutrient deficiencies • Finally, till the site to a depth of 4 0 to 6 0 -inches to incorporate applied soil amendments and to create a seedbed conducive to seedling establishment using a disk and harrow, field cultivator, vibra-shank, or other alternative suitable for site conditions Planting will be determined by reclamation timing and consists of the following options • Cropping Season The site will be handed directly to the surface owner to be used for cropping production • Non -cropping Season A cover crop should be seeded when establishment of the crop will not occur within 45 -days or less of reclamation activities A cover crop will protect the soil from wind and water erosion, increase soil stabilization, improve soil structure, suppress weed establishment, and improve overall reclamation success The cover crop seed mix (Table E-1) was developed to provide quick cover due to a rapid germination rate and to aid in accelerated soil stabilization by helping to prevent the migration of topsoil during periods of freeze/thaw and rain events Cover crop seeding should be conducted using a drill seeder suitable for the location's soils and capable of direct seed placement Drill seeding should occur on the contour using a drill equipped with a double disc opener, wheel press, and depth bands to ensure proper seeding depth Seed should be planted to the depth specified by the vendor to ensure proper germination and emergence It is recommended that grain seed be placed 0 50 to 10 -inch deep Table E.1 Arnold Pit No I recommended cover crop seed mix Common Name Scientific Name # PLS/acre PLS/sq ft % of Mix Triticale Trit►cosecale 60 18 90% Nitro Radish Raphanus sativus 3 5 2 0 10% Total — 64 20 100% 16 Who will provide fire protection to the site? Fire extinguishers will reside in every vehicle on site 17. List all proposed on -site and off -site improvements associated with the use (e g. landscaping, fencing, buildings, drainage, turn lanes, etc.) and a timeline of when you will have each one of the improvements completed The site will be returned to its current cropland use Engineering questions. 970-400-3750 1. Describe how many roundtrips/day are expected for each vehicle type' Passenger Cars/Pickups, Tandem Trucks, Semi-Truck/Trailer/RV (Roundtrip =1 trip in and 1 trip out of site) One round trip per day will be expected for each of 15 semi trucks 2. Describe the expected travel routes for site traffic. Travel from the site will occur on County Road 16 to the east for approximately 3 1 miles, County Road 63 to the north for approximately 0 3 miles and County Road 16 1/2 for approximately 2 0 miles 3. Describe the travel distribution along the routes (e g 50% of traffic will come from the north, 20% from the south, 30% from the east, etc.) 100% of traffic will come from the East via County Roads 16 Y:, 63, and 16 i 4. Describe the time of day that you expect the highest traffic volumes from above. The highest traffic volume will occur between 7am to 5pm with semi trucks hauling material offsite 5 Describe where the access to the site is planned. Access to the site will be via CR 16 approximately 1,360 feet east of the intersection of CR 69 and CR16 The access road is on the south side of CR 16 located at 40 102110°, -104 409300° 6. Drainage Design: Detention pond summarized in a drainage report is required unless the project falls under an exception to stormwater detention requirements per code section 23-12-30 F.1. A. Does your site qualify for an exception to stormwater detention? No — Construction stormwater permit included with USR submittal B. Does your site require a stormwater detention pond? No Environmental Health questions. 970-304-6415 x2702 1. What is the drinking water source on the property? If utilizing a drinking water well include either the well permit or well permit application that was submitted to the State -Division of Water Resources. If utilizing a public water tap Include a letter from the Water District, a tap or meter number, or a copy of the water bill. No water source, bottled water will be utilized on site for two full time employees as per the following policy Policy Bottled water from a commercial source is allowed in the following circumstances 2 or less full time (40 hour week) employees located on site A bottled water station will be set up on site near the existing structures for ease of access and a trash receptacle will be placed near by for disposal of bottled waste 2. What type of sewage disposal system is on the property? If utilizing an existing septic system provide the septic permit number. If there is no septic permit due to the age of the existing septic system, apply for a septic permit through the Department of Public Health and Environment prior to submitting this application. If a new septic system will be installed please state "a new septic system is proposed". Only propose portable toilets if the use is consistent with the Department of Public Health and Environment's portable toilet policy. Portable toilets will be provided onsite for two full time employees as per the following policy Policy Portable toilets are allowed in the following circumstances 2 or less full time (40 hour week) employees located on site Portable toilets will be placed in a convenient location near the existing structures and will be cleaned on a regular basis 3. If storage or warehousing is proposed, what type of items will be stored? N/A 4 Describe where and how storage and/or stockpile of wastes, chemicals, and/or petroleum will occur on this site. N/A 5. If there will be fuel storage on site indicate the gallons and the secondary containment State the number of tanks and gallons per tank N/A 6 If there will be washing of vehicles or equipment on site indicate how the wash water will be contained. N/A 7. If there will be floor drains indicate how the fluids will be contained. N/A 8 Indicate if there will be any air emissions (e.g. painting, oil storage, etc ) An APEN has been applied for with the state for emissions from semi -trucks and front end loaders 9 Provide a design and operations plan if applicable. (e.g. composting, landfills, etc ) N/A 10. Provide a nuisance management plan if applicable. (e.g. dairies, feedlots, etc ) N/A 11. Additional information may be requested depending on type of land use requested. Budding questions. 970-400-6100 1. List the type, size (square footage), and number of existing and proposed structures. Show and label all existing and proposed structures on the USR drawing Label the use of the building and the square footage. There are three outbuildings currently existing onsite and are 4,000 square feet, 1,000 square feet, and 1,000 square feet There are no additional structures proposed for this site 2. Explain how the existing structures will be used for this USR? Existing structures will not be used for this project 3. List the proposed use(s) of each structure. N/A Noise Report Noise report is not required under the County Code Section 14-9-60 Exceptions H2 Enterprises will ensure that appropriate mufflers are installed on all equipment The operational plan includes excavating topsoil with dozer and loading onto trucks for transport offsite Equipment to be used for the operations includes the single dozer, and front-end loader, and semi -trucks All equipment will have mufflers to reduce the noise from motors H2 Enterprises will adhere to the maximum permissible noise limits allowed as outlined in 25-10-103, C R S for an industrial operation and the Weld County Code - Article IX r Weld County Letter of Completeness Review for Arnold Pit No. 1 Drainage Narrative Drainage Narrative The site is within an urbanizing drainage area and a berm has been constructed around the perimeter to detain the runoff from the 1 -hour, 100 -year storm The following exception to the drainage policy as per Section 21-12-30 of the Weld County Code is being requested for the property 8) Development of sites where the change of use does not increase the imperviousness of the site No water flows onto the property from an offsite source There is a small depression in the southeast corner of the property where water flows off -site The USACE has requested that this area be removed from the permit boundary There have been no known previous drainage issues with the property Currently the subject property is utilized for agricultural row crop The topsoil will be extracted in 10 acre increments and reclaimed immediately Upon reclamation of the topsoil mine area, the land will be returned to row crop production and is not anticipated to increase the imperviousness of the site Drainage Narrative The site is within an urbanizing drainage area and a berm has been constructed around the perimeter to detain the runoff from the 1 -hour, 100 -year storm The following exception to the drainage policy as per Section 21-12-30 of the Weld County Code is being requested for the property 8) Development of sites where the change of use does not increase the imperviousness of the site No water flows onto the property from an offsite source There is a small depression in the southeast corner of the property where water flows off -site The USACE has requested that this area be removed from the permit boundary There have been no known previous drainage issues with the property From: Ron Spears (Duraroot) <rspears(c�duraroot.com> Sent: Wednesday, January 15, 2020 3:01 PM To: Kim Ogle <kogle@weldgov.com> Cc: Alison Gorrell (HE) <agorrell@huwaenterprises.com> Subject: RE• Arnold's Pit No. 1 follow up Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Mr. Ogle — Thank you for your quick response to my earlier email regarding the Arnold's Pit No. 1 completeness review. Matt Wulf and I attended a meeting with Weld County, in which you were present, on June 6, 2019, to start the permitting process for the topsoil mine. As a result of this meeting and completeness review we provided a number of documents, including a drainage narrative and it's requirements. However, we do not believe that a detailed drainage narrative, including topographical information is needed since the project began prior to changes to the Weld County Code. As a representative of this application. I am therefore, requesting exemption to the requirement. Further, addressing Mr. McRoberts concerns regarding the imperviousness of the site. No new entrances or areas will be constructed for "mine" use. A gravel entranceway is already being utilized for farming as is the areas adjacent to the existing structures on the site. A description of the mine plan has been submitted along with a plethora of supporting documentation describing these activities. As part of that reclamation process, decompaction will be utilized on all existing and future crop production areas. Please let me know if we should discuss in person at your earliest convenience. I believe we can resolve this issue rather quickly regardless of Weld County's decision. I look forward to hearing back from you soon. Cheers, Ron Spears From: Mike McRoberts <mmcroberts(cc�weldgov.com> Sent: Wednesday, January 15, 2020 1:45 PM To: Kim Ogle <kogleweldgov.com> Subject: RE: Arnold's Pit No. 1 follow up Hey Kim, If this is a pit and everything drains to the pit the qualifying exception should be: "6. Gravel pits if the stormwater drains into the gravel pit. Releases from the site shall comply with the Weld County Storm Drainage Criteria, including dewatering. Topographical information shall be provided." If the project started prior to the code changes in July the topographical info doesn't have to be provided for completeness review. Please run this by Ron as I would be surprised if they are not increasing the imperviousness of the site (i.e., scales. scale houses, gravel drives. etc.. will increase the imperviousness of the site). Cheers, Mike McRoberts, P.E. Development Review Engineer 1111 H Street. P.O. Box 758 Greeley. CO 80632 (970) 400-3798 From: Ron Spears (Duraroot) <rspears@duraroot.com> Sent: Wednesday, January 15, 2020 10:21 AM To: Kim Ogle <koglegweldgov.com> Cc: Alison Gorrell (HE) <agorrellhuwaenterprises.com>; Monica Vickers (H2) <mvickers@h-2e.com>; Doug Cook (H2) <dcook@h-2e.com> Subject: RE: Arnold's Pit No. 1 follow up Importance: High Caution This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Mr. Ogle — Regarding the Drainage Narrative request. I spoke with Mr. Mike McRoberts back in December and he indicated that the site may be exempt from preparing a full drainage plan and if we thought so. provide a short narrative indicating which Weld County Code per Section 21-12-30 the exemption would fall. In our response package we provided that narrative. It states the following: "The site is within an urbanizing drainage area and a berm has been constructed around the perimeter to detain the runoff from the 1 -hour, 100 -year storm. The following exception to the drainage policy as per Section 21-12-30 of the Weld County Code is being requested for the property: 8) Development of sites where the change of use does not increase the imperviousness of the site No water flows onto the property from an offsite source. No water flows from the property. To note, there is a small depression in the southeast corner of the property where water flow is concentrated but does not leave the site. The USACE has requested that this area be removed from the permit boundary. Currently the subject property is utilized for agricultural row crop. Upon reclamation of the topsoil mine area, the land will be returned to row crop production and is not anticipated to increase the imperviousness of the site. There have been no known previous drainage issues with the property. I am not sure what a full drainage narrative would demonstrate beyond what is described above and we/I still propose that this site is exempt If Weld County believes otherwise can you provide a response that outlines the reason it does not comply with the exception to the drainage policy per Section 21-12-30. Item 8 above? Thank you for your review and current correspondence on this matter. If you would like to discuss this further please feel free to reach out to me at 720.346.4301. Sincerely, Ron Spears Ron Spears, CE, CERP Senior Biological Scientist / Project Manager Duraroot Environmental Consulting 4626 CR 65 • Keenesburg, CO 80643 Mobile: 720.346.4301 • Office: 303.732.9300 Waste Handling Plan H2 Enterprises will be implementing a Waste Handling Plan for our salvage operation of overburden and topsoil Wastes will be generated by the operators and be stored in a standard dumpster located adjacent to the staging area and parking area The expected volume of waste generated will be trash from employees of operation (i e lunch containers, beverage containers, etc ) The volume will be collected in a dumpster and collected bi-weekly by the waste handler This will be handled, stored, and disposed of that limits blowing debris and other nuisance conditions Waste handling will be in accordance of Chapter 14, Article 1 of the Weld County Code No washing of vehicles or equipment will be conducted at the site or maintenance of vehicles No shop will be constructed or necessary air emissions permitting necessity The waste handler and facility where waste will be disposed is as follows Waste Handler Waste Management Facility Name Buffalo Ridge Landfill Address 11655 County Road 59 Keenesburg, CO 80643 Phone Number (866) 909-4458 Dust Abatement Plan H2 Enterprises will provide dust abatement for the salvage operation of overburden and topsoil A water truck will be used to treat the access and established on -site roads, and other dust prone areas in order to suppress dust It is anticipated that limit dust will be produced during operations since the intention of the project is to remove and collect topsoil Vehicle speeds will be reduced on -site and posted at 10 mph on the access road and on established onsite 10 mph within the pit All loaded trucks will be required to tarp/cover loads when entering or exiting the site to aid in dust suppression. The storm management plan will be followed to mitigate soil erosion during extraction phase After removal of topsoil the site will reclaimed and restored to its pre -mining use as cropland At the beginning of each day, all relevant roads, material handling area(s), and stockpile(s) will be inspected to determine if wetting the surfaces are needed If these areas are dry where dust could be generated, they will be wetted using the water truck All areas will be accessible to the water truck The same areas will be inspected again at mid -day to determine if wetting the areas is needed If at any time during the day the mining operations begin to generate dust that is leaving the site H2 Enterprises will have the water truck on stand-by such that an area can be wetted immediately Flood Hazard Development Permit and Geologic Hazards Development Permit The application complies A Flood Hazard Development Permit and Geologic Hazards Development Permits are not require as the property is not within any of the following as per Chapter 23, articles V and XI of the Weld County Code. o A -P (airport) overlay district, • Geological hazard overlay district, • Special flood hazard area, or • MS4 area From: To: Subject: Date: Attachments: Budnik - CDPHE, Debra Ron Spears (Duraroot) Permit 19WE0674F and invoice Thursday, August 22, 2019 9:46:30 AM 19WE0674F.CP1.pdf Arnolds Custom Seeding Inv for 19WE0674F.pdf Dear Applicant, Your permit has been issued by the Air Pollution Control Division. The permit and the invoice for the permit are attached. Payment is to be received within 30 days of invoice issuance (or as stated on the invoice as the due date) or the Division will notify you of the intent to revoke the permit. After the notice has been sent the process to revoke will begin. Please direct any questions or comments to the assigned permit engineer, whose contact information is contained in the permit. Please reply to this email to inform me if you have received the permit or if the attachments have not gone through. If no reply is made, the Division will consider the non reply as permit and invoice have been received. This will be the only copy of the permit and invoice sent. If you have any other questions please let me know. "The Air Pollution Control Division has updated the self -certification guidance and process to create a universal system for all industries including oil and gas. As an outcome of this update. the Division 'k ill no longer send permit -specific self - certification documents with each permit issued. but rather. direct operators to a resource online to obtain self -certification Corms and guidance. This revised process will become effective for all oil and gas permit applications processed after August 1. 2014. If you do not receive a permit specific self certification document with your permit please visit our website online at: http://www.colorado.gov/pacific/cdphe/air-permit-seliccrtitication to obtain one as needed." Thank you, Debra Budnik Fiscal Officer / Fiscal Services Division Air Pollution Control Division 9 P 303.692.3199 F 303.782.5493 4300 Cherry Creek Drive South, Denver, CO 80246 debra.budnik®state.co.us I www.colorado.gov/cdphe/apcd Pay INVOICES online, visit us at: wwww .colurado.goN /cdphe/paN inv oice *APEN and General Permit fees should not be paid online. Normal pay ment methods for these fees should he followed. "Are you curious about ground -level ozone in Colorado? Visit our ozone webpage to learn more." 4 CDPHE COLORADO 'I . • CO Department Health P & Environment of Public CERTIFICATION TO DISCHARGE UNDER CDPS GENERAL PERMIT COR400000 STORMWATER ASSOCIATED WITH CONSTRUCTION ACTIVITIES Certification Number: COR406286 This Certification to Discharge specifically authorizes: Owner Arnold's Custom Seeding Operator Arnold's Custom Seeding to discharge stormwater from the facility identified as Arnold's Pit No. 1 To the waters of the State of Colorado, including, but not limited to: Lowline Canal Facility Activity : Non-structural and other development (i.e. parks, trails, stream realignment, bank stabilization, demolition, etc.) Disturbed Acres: 150 acres Facility Located at: County RD 69 and County Road 16 Keenesburg CO 80643 Weld County Latitude 40.10211 Longitude -104.4093 Specific Information (if applicable): Certification is issued and effective: 9/12/2019 Expiration date of general permit: 3/31 /2024 This certification under the permit requires that specific actions be performed at designated times. The certification holder is legally obligated to comply with all terms and conditions of the permit. This Meg certification Parish, Section was approved Manager by: Permits Section Water Quality Control Division 4300 Cherry Creek Drive South, Denver, CO 80246 303-692-3500 www.colorado.gov/cdphe/wqcd *7167 flMAS VSCSNIULTING P. A. Traffic Impact Assessment Reclamation Project Road 16 Town of Keenesburg Weld County, Colorado Prepared For Duraroot Environmental Consulting 4626 CR 65 Keenesburg, CO 80643 Prepared By Maser Consulting P.A. 7110 West Jefferson Avenue, Suite 100 Lakewood, CO 80235 (303) 731 - 6216 July 15, 2019 ssell Garrett, PE, LEES AP Latanettt S. Maurice Rached, P.E,, PTOE MC Project No. 19OO1972A www.maserconsuiting.com Traffic Impact Assessement Reclamation Project MC Project No 19001972A Table of Contents TABLE OF CONTENTS PAGE No. I. Purpose of this Report 1 II. Introduction ...1 III. Project location 1 IV Existing Conditions 4 V. Trip Generation and Distribution 4 VI. Traffic Impact 6 VII. Findings and Conclusion 6 Figure 1- Project Location . Figure 2 - Reclamation Contours Table 1- Trip Calculations Table 2 - Daily and hourly Trips . . Table 3 - Hourly Thp Distribution (peak hour) .. Traffic Impact Assessement Reclamation Project MC Project No 19001972A Page 1of6 I. PURPOSE OF THIS REPORT Maser Consulting was retained by Duraroot, LLC to assess the traffic impact of a proposed reclamation project (top soil mining operation) for a parcel of land located on the southeasterly corner of County Road 16 and County Road 69, in the Town of Keenesburg, Weld County, Colorado This report presents an evaluation of the anticipated traffic operation for this proposed reclamation project Specific elements included in this study are ® An inventory of the roadway facilities in the vicinity of the project, including the existing physical and traffic operational characteristics, m A qualitative assessment of existing conditions, o Trip generation analysis, ® Trip Distribution and Assignment, and © Summary and Conclusions II. INTRODUCTION The proposed top soil mining operation will consist of reclaiming 8 inches of top soil over an area of 150 acres The entire parcel is 319 acres, and 160 acres (the northern half of the parcel) have been designated for reclamation Ten (10) acres have already been mined The top soil will be loaded on trucks having a 22 -ton capacity or approximately 10 to 12 cubic yards The destination of the trucks varies The total anticipated volume of dirt to be moved is approximately 162,000 cubic yards The operation is planned to occur over a period of 24 months HI. PROJECT LOCATION The proposed soil mining operation will take place on a property known as Parcel 130335000003 having a physical address of 34216 County Road 16, Keenesburg, CO 80643 The parcel is approximately 319 acres, but the mining operation will impact only 150 acres T o . C a' (0 N I ft n .♦ r 0 n a) rt o _4 0• 3 0 -+, 00 a) en n 2 CT CD 2. 3 CCU -• N a IA C 90 5. M s 1 f13 0. E 7 - CT C CD 0 in 4 a) r. s 7' an a) rt cro O K n a' O CD rt Z O lb O O lip v N D 73 rD n_ a 3 a) rt O ev O. fD n -1 1 aJ n 3 Di n rap rD vl vi rD LA CD ,-+ Traffic Impact Assessement Reclamation Project MC Project No. 19001972A Page 3of6 .V.S7a;i Lee )1C ()Kagan, Cr I,: Gnldrr CO Figure 2 - Reclamation Contours Ain ant a*t A �. ,Imo♦.ia Final Reclamation Contours 'roe Arnold& Pit No 1 Weld County, Colorado oro,e 1 No 4C1 95.00 Date 5/24/2019 Figure F-1 Traffic Impact Assessement Reclamation Project MC Project No 19001972A Page 4 of 6 IV. EXISTING CONDITIONS An investigation was conducted to obtain an inventory of existing roadway conditions, posted traffic controls, adjacent land uses, lane configurations, and existing vehicular/pedestrian traffic patterns The following is a brief description of the roadways that will be utilized by the trips generated by this proposed mining activity County Road 16 County Road 16 is a 2 -lane roadway under County jurisdiction Its entire width measures approximately 24 feet Each lane measures approximately 12 feet The roadway has no shoulder, but there are solid white edgelines delineating the edge of the pavement The road is generally straight and flat There are no speed limit signs, but based on Section 42-4-1101, C.R.S , the speed limit is assumed to be 55 mph The land use along this roadway is primarily agricultural County Road 73 County Road 73 is a 2 -lane roadway under County jurisdiction Its entire width measures approximately 24 feet Each lane measures approximately 12 feet The roadway has no shoulder, but there are solid white edgelines delineating the edge of the pavement The road is generally straight and flat It is signed for 55 mph at its northly terminus, in the vicinity of 1-76 The land use along this roadway is primarily agricultural Highway 52 (Main Street) Highway 52 is a 2 -lane roadway under State jurisdiction Its entire width measures approximately 24 feet Each lane measures approximately 12 feet The roadway has shoulder in various parts, and there are solid white edgelines delineating the edge of the pavement The road is generally straight and flat It is signed for 30 mph to the east of the Town of Hudson, and 25 mph within the town The land use along this roadway is primarily agricultural, except for the portion of the roadway within the Town of Hudson where the land use is residential/commercial Access Points The primary access to the site is an existing driveway at the center of the parcel's frontage on CR 16 The secondary access to the site is an existing driveway at the center of the parcel's frontage on CR 69 No new access points are proposed V. TRIP GENERATION AND DISTRIBUTION The Institute of Transportation Engineers (ITE) Trip Generation publication does not include rates for a mining or reclamation operation Other publication such as the "Truck Trip Generation Data - Synthesis 298" published by NHRP and others do not include any data or guidance that is applicable and relevant to this case Therefore, we will rely on actual data and metrics to develop a realistic trip generation based on Traffic Impact Assessement Reclamation Project MC Project No 19001972A Page 5 of 6 actual site information Table 1 below depicts various data and calculations - Total size of Parcel 160 acres Truck capacity 11 yards Mined portion 10 acres Total number of loads 7,400 Portion to be mined 150 acres Duration of operation 24 months Depth of soil removal 8 inches Truck -Loads per day 15 Volume of soil to be mined 162,000 Cu Yd Daily trips (in/out) 30 Table 1- Trip Calculations As depicted in Table 1, the anticipated number of trips per day is 30, which will consist of 15 inbound trips and 15 outbound trips Outbound Inbound Daily site trips 15 15 Hourly Average Site trips 2 2 Peak Hour trips (9 —10 am) 4 4 Table 2 - Daily and hourly Trips Based on the expected trip ends, 50% of the deliveries will be using 1-76 East bound, and the remaining 50% will be using 1-76 westbound Therefore, the average hourly trips along the surrounding roadways are depicted in Table 3 Outbound Inbound CR 16 4 4 CR 73 2 2 Route 52 2 2 Table 3 - Hourly Trip Distribution (peak hour) Traffic Impact Assessement Reclamation Project MC Project No 19001972A Page 6 of 6 VI. TRAFFIC IMPACT The roadway system surrounding this site will be minimally impacted due to the very low anticipated trip generation. The daily trips are estimated to be 30 (in/out), which is very minimal During the peak hours, the trips are estimated to be 8 (irk/out) This low trip generation does not warrant a capacity analysis or any analyses beyond what is included in this report VII. FINDINGS AND CONCLUSION The anticipated trip generation for this project will be 30 trips daily and 8 trips during the peak hour These rips are considered insignificant and should not result in any appreciable degradation in the level of service of the roadways utilized These trips are significantly below the 200 daily trip threshold that require the submission of a comprehensive traffic study Therefore, this traffic assessment should be sufficient to satisfy the requirements of Weld County, in terms of traffic impact Ditch Agreement This letter has been provided to you as the owner of irrigation ditch along the proposed mine site The County of Weld County, State of Colorado, Planning and Building Department Charter and County Code Section 23-2-370 requires that The applicant shall submit to the Department of Planning Services a copy of an agreement with the owner of any ditch located on or adjacent to the site, OR shall provide written evidence that an adequate attempt has been made to mitigate the concerns of the ditch owners The agreement shall stipulate that ditch activities have adequately been incorporated into the design of the site If such agreement cannot be reached, the applicant shall present evidence that an adequate attempt to reach such agreement has been made July 11, 2019 Henry Lynn Irrigation Hudson, Colorado 80642 Subject: Irrigation Ditch Agreement — Mine Permit Application for Arnolds Custom Seeding Duraroot, LLC, on behalf of Arnolds Custom Seeding, is converting the existing 110 Mine Permit M-2106- 022 to a 112 Mine Permit due to the expanded operation The enclosed Notice is being sent to you because it is our understanding you own an adjacent irrigation ditch along Arnolds Custom Seeding's proposed topsoil mining operation known as Arnold Pit No 1 The location of the of subject property is part of the Northwest 14 of Section 35, Township 2 North, Range 63 West in Weld County, Colorado Arnolds Custom Seeding LLC is in the process of filing a 112 Reclamation Permit Application with the Colorado Division of Reclamation, Mining and Safety As we understand, the irrigation ditch runs north -south on the western boundary of the project, adjacent to County Road 69 There will be no reason that the proposed mining operations will impact the ditch Enclosed with this letter is a "Ditch Agreement" whereby Arnolds Custom Seeding LLC agrees to provide compensation for any damages to the referenced irrigation ditch as a result of mining top soil from the subject property If the enclosed Ditch Agreement is acceptable to you please complete the portion of the agreement identified as "Notary for Structure Owner" and return same to Mackenzie Fernald, Duraroot, LLC, 810 Brickyard Circle #4, Golden, Colorado 80401 If you have any questions about Arnolds Custom Seeding LLC Reclamation Permit Application please contact the Colorado Division of Reclamation, Mining and Safety at (303)-866-3567, or you can call me, Mackenzie Fernald at (970) 729-2421 for further information Sincerely, Mackenzie Fernald i Duraroot Environmental, LLC 4626 WCR 65 Keenesburg, CO 80643 303-732-4021 Structure Agreement This letter has been provided to you as the owner of a structure on or within two hundred (200) feet of a proposed mine site The State of Colorado, Division of Reclamation, Mining and Safety ("Division") requires the where a mining operation will adversely affect the stability of any significant, valuable and permanent man-made structure located within two hundred (200) feet of the affected land, the Applicant shall either, a Provide a notarized agreement between the Applicant and the Person(s) having an interest in the structure, that the Applicant is to provide compensation for any damage to the structure, or b Where such an agreement cannot be reached, the Applicant shall provide an appropriate engineering evaluation that demonstrates that such structure shall not be damaged by activities occurring at the mining operation, or c Where such structure is a utility, the Applicant may supply a notarized letter, on utility letterhead, from the owner(s) of the utility that the mining and reclamation activities, as proposed, will have "no negative effect" on their utility (Construction Materials Rule 6312 and Rule 6419 & Hard Rock/Metal Mining Rule 6 312 and Rule 6 4 20) The Colorado Mined Land Reclamation Board ("Board") has determined that this form, if properly executed, represents an agreement that complies with Construction Materials Rule 6 3 12(a), Rule 6 4 19(a), and C R S § 34-32 5-115(4)(e) and with Hard Rock/Metal Mining Rule 6 3 12(a), Rule 6 4 20(a), and C R S § 34-32-115(4)(d) This form is for the sole purpose of ensuring compliance with the Rules and Regulations and shall not make the Board or Division a necessary party to any private civil lawsuit to enforce the terms of the agreement or create any enforcement obligations in the Board or the Division The following structures are located on or within 200 feet of the proposed affected area Irrigation Ditch, Henry Lynn 1 2 3 4 5 (Please list additional structures on a separate page) CERTIFICATION The Applicant, Arnolds Custom Seeding LLC (print applicant/company name), by Tyrun Huwa (print representative's name), as Director (print representative's title), does hereby certify that Irrigation Ditch, Henry Lynn (structure owner) shall be compensated for any damage from the proposed mining operation to the above listed structure(s) located on or within 200 feet of the proposed affected area described within Exhibit A, of the Reclamation Permit Application for Arnold Pit No. 1 (operation name), File Number M- 2016 022 . This form has been approved by the Colorado Mined Land Reclamation Board pursuant to its authority under the Colorado Land Reclamation Act for the extraction of Construction Materials and the Colorado Mined Land Reclamation Act for Hard Rock, Metal, and Designated Mining Operations. Any alteration or modification to this form shall result in voiding this form. NOTARY FOR PERMIT APPLICANT ACKNOWLEDGED BY: Applicant Arnolds Custom Seeding LLC Representative Name Tyrun Huwa Date July 16, 2019 Title Director STATE OF COUNTY OF 1t4fd ) )ss The foregoing was acknowledged before me this //,' h day ofJid , tie/ by 4 14 - jar[ (Ake,-- as �,� r i of 4(n'i'ls (us/nfl J c _1)l�l�l, Notary Public My Commission Expires: MONICA L VICKERS NOTARY PUBUC STATE OF COLORADO NOTARY ID 20034011009 MY COMMISSION EXPIRES 8110[2023 NOTARY FOR STRUCTURE OWNER ACKNOWLEDGED BY. Structure Owner Name Date Title STATE OF COUNTY OF )ss The foregoing was acknowledged before me this day of by as of My Commission Expires Notary Public N ca U.S. Postal Service''' CERTIFIED MAIL!' RECEIPT Domestic Mail OM). For dpliv.1cv information, visit our webslte at ::.:.`;:� s crnr :_ Lr L ti ts.,, . t i 4'Ic i P.--WisclMass ca. m 0 Cl 0 U-, nJ co 0 N 6 x1�rn Ices S Fees Kara Da. aft. CI Return Recelxs OiartloY $ t3- - e oo Getff d titd taaest*id+.d °e�rvery $ tili -' ' L1 ! t c .as Siratt"n Required $ pAous Sigrature Restricted De*sw'y $ (Pottage total Postage srd Fells • .. • \! eh 01)0 L"" O\A3ts(-C\L (snit, th)..414,O1 • PS iorrlt 3800, Aptit 2015 _e...r...._. is ... Set' fleve' se foi tnstrla- .Items Weld County Letter of Completeness Review for Arnold Pit No. 1 Response to Item 5 Reclamation Plan The current, pre -disturbed land use of the Arnold Pit No 1 location is agricultural, primarily cropping According to NRCS soil survey data (Exhibit I) the location soils are primarily medium textured loam soils, with grades less than 3 -percent Soils are predominately neutral to moderately alkaline (pH 7 0 to 7 9) Soils are moderately deep to deep (> 24 -inches) and typically moderately -well to well drained Soils are neither saline, nor sodic Following mining activities, the land will be returned to productive cropland Soil and nutrient amendments will be based on surface owner requests at the time of reclamation Upon request of the surface owner, location soils may be sampled and analyzed to establish current soil physicochemical properties for further reclamation planning Soil sample analytical data would be used to develop site -specific amendment recommendations based on the current soil chemistry The following recommended seedbed preparation steps will aid in successful reclamation Steps may be omitted, conducted in different order, or changed to optimize success and efficiency depending on field conditions, sub -soil properties, and local terrain o At the completion of mining activities, the site will be regraded to approximate pre -disturbance contours as shown in Figure F-1 (Exhibit F) o Prior to topsoil re -spreading, the subsurface soil will be deep ripped to a minimum depth of 16 - inches to reduce soil compaction and improve drainage Ripping will be conducted using a double pass with a straight -shank agricultural ripper or parabolic ripper The shanks on the back of a grader or dozer should NOT be used to alleviate soil compaction due to outcome inadequacies During ripping operations, the surface will be left rough and irregular to help tie the topsoil and subsoil horizons together Tillage can be used to break soil clods apart prior to topsoil application ® Re -apply stockpiled topsoil and incorporate requested soil amendments to improve the soil's physical and chemical characteristics and to supplement any soil nutrient deficiencies • Finally, till the site to a depth of 4 0 to 6 0 -inches to incorporate applied soil amendments and to create a seedbed conducive to seedling establishment using a disk and harrow, field cultivator, vibra- shank, or other alternative suitable for site conditions Planting will be determined by reclamation timing and consists of the following options o Cropping Season The site will be handed directly to the surface owner to be used for cropping production • Non -cropping Season A cover crop should be seeded when establishment of the crop will not occur within 45 -days or less of reclamation activities A cover crop will protect the soil from wind and water erosion, increase soil stabilization, improve soil structure, suppress weed establishment, and improve overall reclamation success The cover crop seed mix (Table E-1) was developed to provide quick cover due to a rapid germination rate and to aid in accelerated soil stabilization by helping to prevent the migration of topsoil during periods of freeze/thaw and rain events Cover crop seeding should be conducted using a drill seeder suitable for the location's soils and capable of direct seed placement Drill seeding should occur on the contour using a drill equipped with a double disc opener, wheel press, and depth bands to ensure proper seeding depth Seed should be planted to the depth specified by the vendor to ensure proper germination and emergence It is recommended that grain seed be placed 0 50 to 1 0 -inch deep Table E-1 Arnold Pit No 1 recommended cover crop seed mix. Common Name, Scientific Name # PLS/acre , PLS/sq ft % of,Mix Triticale Trit►cosecale 60 18 90% Nitro Radish Raphanussativus 8 5 2 0 10% Total -- 64 20 100% Reclamation Plan Map Notes: Final reclamation contours are cased off an assumption that effort will be made to return land to ex.sting grade 220 440 660 880 S:ale n Fr et Duraroot LLC 810 Brickyard Cr #4 Golden, CO 80401 4€0grag Dtfavit� t —c, 0?') in, BlergetiT C•Jt:1t 11f0, g3+ag 'w Vg( is Amore , 1 trig Ito )4, 1154r C1.]I urcitIr, Arnolds Custom Seeding 4626 WCR 65 Keenesburg, CO 80643 Final Reclamation Contours Project: Arnolds Pit No. 1 Location Weld County, Colorado Project No: 40195.00 Cate 5/24/2019 Figure: Figure F-1 Weld County Letter of Completeness Review for Arnold Pit No. 1 Response to Item 6 • Existing Conditions • Extraction Plan • Adjacent Property Owners Existing Site Description The site is located in the Northwest quarter of Section 35, Township 2 North, and Range 63 West, in Southeast Weld County The site is approximately 160 acres, located to the south of County Road 16 and east of County Road 69 The site is currently utilized for crop production Upon completion of mining, reclamation of the disturbed area will be completed with the intent of returning it to cropland Existing manmade structures within 200 ft of the mining area include o Water wells owned by o Mark Arnusch, o Stanley Gingerich, o Elaine and Frederick Hepner, o Keene Storage, and o PV LLC G Buildings owned by, o Elaine and Frederick Hepner, o Stanley Gingerich, o Sarah Petty, and o Turnpike LLC ® An overhead powerline owned by Morgan County REA, o A high pressure gas line owned by Xcel Energy, and ✓ A fiber optic owned by Century Link Letters for notification of disturbance have been sent to all structure owners within the 200 foot buffer zone and are included in Exhibit S of this permit application Pre -mining and Mining Plan Maps of Affected Lands The following figures are presented as Exhibit C Figure C-1 Adjoining Surface Owners of Record Figure C-2 Names and Locations of Structures and Water Wells Figure C-3 Names and Locations of Power and Communication Lines Figure C-4 Topography, Water Bodies, and Vegetation USA Parcel ID: 130334000017 Arnusch Investments, LLC Parcel I D : 130326000002 MEMO ARMS OWES, IMPEND. Turnpike LLC Parcel ID. 130334000016 PV Lone Tree. LLC Parcel ID: 130334000015 Rupple Farms, LLC Parcel I D : 1303 34000013 Legend 110 Permitted Area Affected Land 200 Fool Buffer Adjoining Surface Owners Boundary N A 220 440 680 880 Scale in =cc( • : --- MM. 1 en -e- _so. •-- r•. at Or — w- «-- - -s mot.. A mae S.... .,O- w --- awe Owe .. Se r• 401 •— -.rte Notes Parcel data obta ned from Weld County property portal https 1Iwww CO weld co us Irn a p s/ p r ope rt yport a ll Wet' data obta ned `rom DWR wobSrl© l d tps Nwww wits ado guv/pm O Kr Icdss/d+vnsron-1-scutb-plalte Surface Owners of Affected Land Patricia and Richard Huwa Parcel ID: 130335000003 Duraroot LLC 810 Brickyard Cr #4 Golden. CO 80401 Elaine and Frederick Hepner Parcel ID: 130326000014 Stanley Gingerich Parcel ID: 130335100008 Keene Storage Parcel ID: 130335400009 Source Esrt. DfgltalGlobe, GeoEye Earthstar .G,e1 ,4,Cs. CNE USDA, USGS, AeroGRID, IGN, and the IS Usir.t �' itutti gty PSB Arnolds Custom Seeding 4626 WC R 65 Keenesburg, CO 80643 Title Adjoining Surface Owners of Record Project: Amolds Pit No. 1 Project No: 40195.00 Location: Weld County, Colorado Cate 5/24/2019 Figure Figure 0-1 USA Structures Legend VIl Riser within the Project Buffer Water Wells within Project Buffer 110 Permitted Area 200 Foot Buffer Affected Land Adjoining Surface Owners Boundary Mark Arnusch Building Richard and Patricia Huwa Building i4=ice-- s-anr••••••• -*.s Ch !QV Stanley Ci Eiaine and Frederick Hepner Building Source Esp. DlgitalGlobe. GeoEye, Eart4star Geri . •`1)!oyeaN 3,90Z;31.a. USDA, USGS, AeroGRID. IGN. and the (1S UserCom Notes Ma Tile Structures Names and Locations and Water of Wells N Parcel data obtained from Weld -. •s+. County property portal https //www co weld co us tin8pslpioperIypur!al/ Project: Arnolds Pit No. 1 - Project 40195.00 No: Figure. Figure C-2 Wel data obtained frcrn DWR webstte nups /hwwv colaado yovipacdre Icdss/dnrtsron-lesouth- taste80643 P Duraroot LLC 810 Backyard Cr #4 Golden CO 80401 Arnolds Custom Seeding 4626 WCR 65 Keenesburg, CO Location. Weld County, Colorado Date 8/23/2019 J -- --- o 220 440 eec ''' Scale in Feet Saba — — Minn ass°. ea•*ale ..•.a•.•aal••aa..um..•..a•• II• ea.0e.•5•.••...••..S..•••. •a•••••••••• •• .•os • aria �� • --..• • m• as • • SealeaSS MSS _— — a - .. seaaa•a assal* 5.•.S.. m.. .a.. . .. 1l fr _ r _ — - --a —Sr — — a --1 -- a _ _ — a --T t S ems t T --- _ --. _ --V t — — _ — — r --7 __ a — —Y• r- .t --a n..- I lata L — — - alp —a - t 1— MSS. 4 --~ — _Ta — h _r ars— Sp --T 1 Y-- • OEM ale Sea r:: c .y r 1 1 1 1 / Ileasnlinini a-asaaaa Legend Dry and Abandoned Oland Gas Wel Approximate Location of Noble M+dstreams underground vretertine Approximate Location of Xce! Energy High Pressure Gas Line = Approximate Location of Century Link Fiber Optic Line noon Approximate Location of Morgan County REA Overhead Power _me Affected Land F- q 200 Foot Surer Zone I 1 110 Permitted Area Sources: Esri, HERE, Garmin, Intermap, increment P Corp., GEBCO, USGS, FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, Esri Japan, METI, Esri China (Hong Kong), (c) OpenStreetMap contributors, and the GIS User Community 0 720 440 680 Soak In Feet 880 Notes Parce' data obtained from Weld County property portal https llwww co weld co us hn ap siprope rt yport a u WoU data obtained from DWR websito https /Avotw cotorado govrpar it c icdsstdrv, &son- 1 -s o uth-pl atte Duraroot LLC 810 Brickyard Cr #4 Golden CO 80401 MO, mile" 144hr Arnolds Custom Seeding 4626 WCR 65 Keenesburg, CO 80643 rtie Names and Locations of Power, Communication and Water Lines Project: Amolds Pit No. 1 Project No: 40195.00 Location Weld County, Colorado Date 8/23/2019 Figure Figure C-3 n Legend Lovdlme Canal Existing Site Contours 11C C Permitted Area Mecled Land N A 220 440 660 5ratr• in F€Pt 880 Notes Parcel data obtained from Weld County property portal tittps /(www co weld CO US lmapslpropertyportat/ Well data obtained from DWR website htlps //wvAy coloredo gov/pacific lcdssldty!slon-1-south-platte Duraroot LLC 810 Brickyard Cr #4 Golden CO 80401 It, i r Source• Esri, Digit Globe, GeoEye. Earthstar Geographies,. USDA. USGS. AeroGRID. IGN and the GIS User;Cornrnu-nit itMPITS ;. Arnolds Custom Seeding 4626 WCR 65 Keenesburg, CO 80643 Title Topography, Water Bodies and Vegetation Project' Amolds Pit No. 1 Location Weld County, Colorado Pro}ecl No 40195 00 Date 5/24/2019 rigure Figure C-4 I �, LEGEND COUNTY ROAD 16 VItlnity Mop SEE ENLARGED PLAN EXISTING AND ROAD SCALE ENTRANCE 200 0 100 200 400 ON PAGE -'- ------ 60• - COUNTY ROADS 25' COUNTY ROAD 16 WATER DRAINAGE i I ,-7- I1 �--N-› DIRECTION EXISTING STRUCTURE - PROPOSED PARKING LOT - _- 1 I PROPOSED STRUCTURE I I ARNOLDS PIT N0. - -- L J N0 -ES EXISTING STRUCTURES APPROXIMATE EXTENT LEGAL QESCRIPTION-T-E MINING AREA IS R40' OF AREA NOT TO BE MINED FOR TOPSOIL•+ • •,' + • • + LOCATED AT NE 4 OF NW } OF S35 T2N R63W, PART OF PARCEL 130335000003 60• \ e ry LANDSCAPE EXISTING STRUCTURE AREA AROUND S• PHYSICAL ADDRESS IS 34216 CR 16. WELD, THE NEAREST IYTERSECTIOV IS COUNTY ROAD 69 AND COUNTY ROAD 16 FROM THE �� ` �-+ POINT OF THE INTERSECTION DRIVE EAST CS COUNTY ROAD 16 APPROXIMATELY 1,360 �� FEET TO THE ENTRANCE OF THE ARNOLD PIT PROPOSED STOCKPILE AREAS NO 1 THE ENTRANCE ACCESS IS ON THE "Na-......,�+-- 4810' SOUTH SIDE OF COUNTY ROAD 16 LOCATED R601 --/AT NiK.,„.... / 0p 40102110'.-104 409300' BURIED UTILITIES AND OVERHEAD POWER LINES ARE LOCATED WITHIN THE -FOOT BUFFER OF 2S' � C PRO THE POSED BOUNDARY Z SSa_ PROPOSEPROPOSEDei— ARNOLDS CUSTOM ENLARGED -el CIZE PLAN A) SEEDING IS APPLYING FOR A (112) RECLAMATION PERMIT TO MINE 310.000 TONS SCALE 1" =Yr a D 0 riL OF TOP SOIL FROM 160 ACRES OF LAND a) ON PNASE GINNING OF THE ARNOLD to FIT N0- I WILL BEGIN AS SOON AS DBMS NO CERTIFICATE OF R>rSPONSIBLITY Q' The urdenignec applicants de hereby 4a as the teeponelbls patty fatale Ming Us oy Spodel Rinker DrwWprrlent mandrdn a Olieatbed hereon this day of , A.D. 20__^ 340'-�+ APPROVES .hE ('12) RECLAMATION PERMIT. MINING WILL BE COMPLETED BY DECEMBER 31. 2021 THE ESTIMATED TOP SOIL DEPTH N THE MINING AREA IS 12 INCHES. THE TOP Signature (Type Now a) Sarre a (Type Norm ,. _ _ FOUR INCHES OF TOP SOIL WILL BE SALVAGED FOR RECLAMATION USING A CAT DOZER f 06 AND STOCKPILED ON SITE EROSIONAL BMPS WILL BE I —_, AROUND THE STOCKaILE TO LIMIT RUNOFF.EMPLOYED Ir The M b art* Met t1e 1'W elo county Pining C.omnunoa Iles anted art does hereby arcenranc a -►- __ _ the garb of Carty Carenulenars MANS Corey. Colorado a emir cenern aboer, mows end See Ow Use De Specie Pre es Wan and agitated eaeanVet day of 20,_ 4815' THE REMAINING EIGHT INCHES OF TOP SOIL WILL BE STRIPPED ANC PILED USING A CAT 06 DOZER AND FRONTEND LOADER IT WILL THEN BE LOADED INTO TRUCKS USING A FRONTEND LOADER AND HAULED OFFSITE. NE TOTAL DISTURBANCE DEPTH WILL NOT Chet wad JJ EXCEED 2 'NCHES MINING WLL SE UNDERTAKEN YEAR—ROUND Then to orrrlty red M Boomed r C_____ones. Weld Caw*. Colegodo dose Int, oor IWI end h' Use bySale Review Stan and dilated hereon t*" �- OCCUR — MINE L! FE MEEK, AND WILL ING EXCAI OCCUR 2-3 DAYS PER WEER. AND THE REMAINDER OF THE WEEK. THE MATERIAL adopt rand'abprrmt&ended'as PERMIT 80UNOARY' LINE say of 20 PIT AREA WILL BE ENTIRE WILL BE TRANSPORTED OFF —SITE PROPERTY STRUCTURE EXCLUDING AND LANDSCAPED EXISTING APPROXIMATELY 160 ACRES WELD COUNTY ONCE MINING IS COMPLETE, THE SUB SOIL WILL BE GRADED AS SHOVWN IN FIGURE F-1 Cher, Dowd Of Coto, C esnelorr+rs ATTEST Weld County Clerk b the Board - - AREA PARCEL #130335000003 (EXHIBIT F) AND COVERED WITH SALVAGED TOP SQL THE AREA WILL BE OE -COMPACTED AND PREPARED FOR CROP PRODUCTION BY. Ostay 0.% ate Soto *MIs wet arre: WATER. le `7sia!<— "'e' "d'°' """ CrviAT L. AND ARNOLDS PIT NO. 1 EXTRACTION PLAN MAP ENVIRONMENTALINC. �IsJ1e RAE 2 submittal 2119 NORTH 9TH STREET DURAROOT WELD COUNTY, COLORADO '0" i 1/10119_ PnMr ino y b.ir RAE BOISE. IDAHO 83702 4626 CR 65 FE;CfnarT 319-9744 1 ma sat ecrpree •rry _Wrr_s dinaao (200) I SURD. CO 0064) err avesaoe _ L72Q144U->i7s0 asa%%7v. Weld County Letter of Completeness Review for Arnold Pit No. 1 Response to Item 7 Oil and Gas Agreement(s) Arnolds Custom Seeding, LLC 4626 CR 65 Keenesburg, Colorado 80643 To Whom It May Concern, I, Tyrun Huwa, am legally authorized to act on behalf of the owner of the property located in North West 1/4 of Section 35, Township 2 North, Range 63 West of the Sixth Principal Meridian, Weld County, Colorado Pursuant to the application (M-2016-022) of Arnolds Custom Seeding proposed operation known as Arnold Pit No. 1, I acknowledge that any oil and gas activities on the property have been incorporated into the site operational plan I understand that no oil/gas operations or actions will affect potential or future oil and gas operations and development pursuant of Weld County Code Section 23-2-370 (below) The applicant shall submit to the Department of Planning Services a copy of an agreement with the mineral owners associated with the subject property Such agreement shall stipulate that the oil and gas activities on the subject property have been adequately incorporated into the design of the site OR shall provide written evidence that an adequate attempt has been made to mitigate the concerns of the mineral owners on the subject property Should you require any additional statement from myself, Tyrun Huwa, regarding this issue please contact me at thuwa@mietellc corn or by phone at (720) 463-9837 Sincerely, Ty,,/Huwa ACKNOWLEDGEMENT State of Colorado County of Weld This letter re arding agreement on oil and gas activities was acknowledge before me this 014 day of L 2019 by Tyrun Huwa, legal authority for surface owner of the property propos d in the application M-2016-022 q(Kauusa %1 �i1‘t Notary Signature LW MONICA L VICKERS NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20034011009 COMMISSION EXPIRES 6/10/2023 Commission Expiration I Weld County Letter of Completeness Review for Arnold Pit No. 1 Response to Item 8 Stability Analysis - Permanent Man -Made Structures Within 200 feet of the Operation Structure Agreement This letter has been provided to you as the owner of a structure on or within two hundred (200) feet of a proposed mine site The State of Colorado, Division of Reclamation, Mining and Safety ("Division") requires the where a mining operation will adversely affect the stability of any significant, valuable and permanent man-made structure located within two,hundred (200) feet of the affected land, the Applicant shall either, a Provide a notarized agreement between the Applicant and the Person(s) having an interest in the structure, that the Applicant is to provide compensation for any damage to the structure, or b Where such an agreement cannot be reached, the Applicant shall provide an appropriate engineering evaluation that demonstrates that such structure shall not be damaged by activities occurring at the mining operation, or c Where such structure is a utility, the Applicant may supply a notarized letter, on utility letterhead, from the owner(s) of the utility that the mining and reclamation activities, as proposed, will have "no negative effect" on their utility (Construction Materials Rule 6312 and Rule 6419 & Hard Rock/Metal Mining Rule 6 3 12 and Rule 6 4 20) The Colorado Mined Land Reclamation Board ("Board") has determined that this form, if properly executed, represents an agreement that complies with Construction Materials Rule 6 3 12(a), Rule 6 4 19(a), and C R S § 34-32 5-115(4)(e) and with Hard Rock/Metal Mining Rule 6 3 12(a), Rule 6.4 20(a), and CRS § 34-32-115(4)(d) This form is for the sole purpose of ensuring compliance with the Rules and Regulations and shall not make the Board or Division a necessary party to any private civil lawsuit to enforce the terms of the agreement or create any enforcement obligations in the Board or the Division 1 2 3 4 5 The following structures are located on or within 200 feet of the proposed affected area Irrigation Ditch, Henry Lynn (Please list additional structures on a separate page) CERTIFICATION The Applicant, Arnolds Custom Seeding LLC (print applicant/company name), by Tyrun Huwa (print representative's name), as Director (print representative's title), does hereby certify that Irrigation Ditch, Henry Lynn (structure owner) shall be compensated for any damage from the proposed mining operation to the above listed structure(s) located on or within 200 feet of the proposed affected area described within Exhibit A, of the Reclamation Permit Application for Arnold Pit No. 1 (operation name), File Number M- 2016 022 This form has been approved by the Colorado Mined Land Reclamation Board pursuant to its authority under the Colorado Land Reclamation Act for the extraction of Construction Materials and the Colorado Mined Land Reclamation Act for Hard Rock, Metal, and Designated Mining Operations. Any alteration or modification to this form shall result in voiding this form. NOTARY FOR PERMIT APPLICANT ACKNOWLEDGED BY: Applicant Arnolds Custom Seeding LLC Representative Name Tyrun Huwa —Van Date July 16, 2019 Title Director STATE OF (1D COUNTY OF (,odd )ss ) The foregoing was acknowledged before me this I / Aof cj 01 g 6 g _ day �.� by JAI ULc& as to On V of 4ln'14S i S�ediiy LLC. L -1140 11A Notary Public !ILL My Commission Expires: MONICA L VICKERS NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20034011009 MY COMMISSION EXPIRES 6/1012023 NOTARY FOR STRUCTURE OWNER ACKNOWLEDGED BY. Structure Owner Name Date Title STATE OF )ss COUNTY OF The foregoing was acknowledged before me this day of by as of My Commission Expires• Notary Public U.S. Postal Service" CERTIFIED MAIL' RECEIPT Domestic Mail Only For delivery information. visit our t'iebsite ;Vs Wy.L'spS.Cotft'. .4 hie Ceftiiiod Mail Fos t - 1 Extra Services A Foes ncecA eat add rev • ❑ Return Re.tprt (hsntioopy) $ Return Receipt (electronic) $ Q Cartlttsd Moo Restricted Delivery $ o AAA Signature Requtred a ❑ ASA Stpnatvo Ar ✓+cif oelberY $ Postage Total Postatlo and Fats ` r e. I) it ve) I I tit! YcC' C \p ids ;metric ;a it V� re ft;=ri, h�( ,30 ro;i g., 1°1721%4, 2,00, IRA ast zs 4.1 sent , p� A11:v1 'Sire and dD.. . stthiteil,ilarje)Can j I PS Form 3000, Apt a ≥U 1 5 %5. 2-Yt 4047 See Reverse for Instructions Weld County Letter of Completeness Review for Arnold Pit No. 1 Response to Item 9 December 18, 2019 Mr. Kim Ogle Department of Planning Services, Planning Division Colorado Division of Reclamation, Mining and Safety 1555 N. 17th Avenue Greeley, CO 80631 RE: Structures on Permitted area for Arnolds Pit #1 To Whom It May Concern, To the best of our knowledge, the two structures that are on the permitted area are vacant. Neither of the structures are or will be used for the purposes of this permit or by H-2 Enterprises, LLC. If you have any questions, please let us know. Managing Member -- Tyrun Huwa H2 E:n(LrpriSt h • 4626 `VCR (i5 • Kcc'nc.btir1_. CO 80643 • 303.731.4011 Hello