Exhibit 3.2
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
NORCROSS SAFETY PRODUCTS L.L.C.
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT,
dated as of October 2, 1998, (this "AGREEMENT"), is adopted, executed and agreed
to, for good and valuable consideration, by the sole Current Member. Certain
terms used herein are defined in SECTION 1.6.
WHEREAS, pursuant to a Unit Exchange Agreement and a Unit Purchase and
Exchange Agreement each dated of even date herewith, the Current Member received
all of the outstanding Class A Units of the LLC (the "CLASS A UNITS") from the
existing members of the LLC in exchange for membership units in the Current
Member;
WHEREAS, the Current Member delivered the certificates representing
the Class A Units to the LLC and the LLC canceled all of the Class A Units;
WHEREAS, the LLC has issued 100 units in the LLC to the Current Member
representing all of the membership interests in the LLC; and
WHEREAS, the Current Member desires to amend and restate the amended
and restated limited liability agreement of the LLC, dated August, 12, 1998, as
set forth herein.
ARTICLE I
GENERAL PROVISIONS; CAPITAL CONTRIBUTIONS; DEFINITIONS
Section 1.1 FORMATION. The LLC has been organized as a Delaware
limited liability company by the filing of a certificate of formation (the
"CERTIFICATE") in accordance with the Delaware Limited Liability Company Act, 6
Del. C. Section 18-101, ET SEQ., as amended from time to time (the "ACT").
Section 1.2 NAME. The name of the LLC will be "Norcross Safety
Products L.L.C.," or such other name or names as the Managers may from time to
time designate.
Section 1.3 PURPOSE. The LLC's purpose shall be to carry on any
activities which may be lawfully be carried on by a limited liability company
organized pursuant to the Act.
Section 1.4 REGISTERED OFFICE; REGISTERED AGENT; PLACE OF BUSINESS.
The registered office of the LLC required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the LLC) as the Managers may designate from time to time in the manner provided
by law. The registered agent of the LLC in the State of Delaware shall be the
initial registered agent named in the Certificate or such other person or
persons as the Managers may designate from time to time in the manner provided
by law. The LLC will maintain an office and
principal place of business at such place or places inside or outside the State
of Delaware as the Managers may designate from time to time.
Section 1.5 CAPITAL CONTRIBUTIONS.
(a) Persons admitted as Members of the LLC shall make such
contributions of cash (or promissory obligations), property or services to
the LLC as shall be determined by the Managers and the Member making the
contribution in their sole discretion at the time of each such admission
and from time to time thereafter.
(b) No Participant shall have any responsibility to restore
any negative balance in his, her or its Capital Account or to contribute to
or in respect of liabilities or obligations of the LLC, whether arising in
tort, contract or otherwise, or return distributions made by the LLC except
as required by the Act or other applicable law. The failure of the LLC to
observe any formalities or requirements relating to the exercise of its
powers or management of its business or affairs under this Agreement or the
Act shall not be grounds for imposing personal liability on the
Participants for liabilities of the LLC.
(c) No interest shall be paid by the LLC on capital
contributions or on balances in Capital Accounts.
(d) A Participant shall not be entitled to withdraw any
part of its Capital Account or to receive any distributions from the LLC
except as provided in ARTICLES III and V; nor shall a Participant be
entitled to make any capital contribution to the LLC other than as
expressly provided herein. Any Participant may, with the approval of the
Managers, make loans to the LLC, and any loan by a Participant to the LLC
shall not be considered to be a capital contribution for any purpose and
shall not result in an increase in the amount of the Capital Account of
such Participant.
Section 1.6 DEFINITIONS. For purposes of this Agreement:
"ASSIGNEE" means person or entity to whom an LLC interest has been
transferred in a Transfer described in SECTION 4.3, unless and until such person
or entity becomes a Member with respect to such LLC interest.
"BOOK VALUE" means, with respect to any LLC property, the LLC's
adjusted basis for federal income tax purposes, except that the initial Book
Value of any property contributed to the LLC shall be the value of such property
on the date of such contribution, as agreed by the Managers and the Member
contributing the property, and the Book Value of any LLC property shall be
adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in
connection with a distribution of such property) or (f) (in connection with a
revaluation of Capital Accounts).
"CAPITAL ACCOUNT" has the meaning set forth in SECTION 2.1.
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"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated thereunder.
"CURRENT MEMBER" means NSP Holdings L.L.C., a Delaware limited
liability company.
"EVENT OF WITHDRAWAL" means the death or dissolution of a Member.
"LLC" means Norcross Safety Products L.L.C., a Delaware limited
liability company.
"LOSSES" for any period means all items of LLC loss, deduction and
expense for such period determined according to SECTION 2.2.
"MAJORITY IN INTEREST" means the Member(s) holding a majority of
Percentage Interests of all Members.
"MANAGERS" means the individuals who are from time to time the
managers of NSP Holdings L.L.C.
"MANAGING MEMBER" means NSP Holdings L.L.C. or any Member so
designated by a Majority in Interest of the Members.
"MEMBER" means NSP Holdings L.L.C. and any person admitted as a member
after the date of this Agreement in accordance with the terms hereof, in each
case for so long as such person continues to be a member hereunder.
"PARTICIPANT" means a Member, a Terminated Member or an Assignee.
"PERCENTAGE INTEREST" means, in respect of each Participant, such
Participant's interest in the income, gains, losses, deductions and expenses of
the LLC as set forth on SCHEDULE I.
"PROFITS" for any period means all items of LLC income and gain for
such period determined according to SECTION 2.2.
"TERMINATED MEMBER" means a person who has ceased to be a Member
pursuant to SECTION 4.4.
Section 1.7 TERM. The LLC shall continue until dissolved and
terminated in accordance with ARTICLE V of this Agreement.
Section 1.8 NO STATE-LAW PARTNERSHIP. The Participant(s) intend
that the LLC not be a partnership (including, without limitation, a limited
partnership) or joint venture, and that no Participant be a partner or joint
venturer of any other Participant, for any purposes other than federal and, if
applicable, state tax purposes, and neither this Agreement nor any other
document entered into by the LLC or any Participant shall be construed to
suggest otherwise. The Participant(s) intend
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that the LLC shall be treated as a partnership for federal and, if applicable,
state income tax purposes, and that each Participant and the LLC shall file all
tax returns and shall otherwise take all tax and financial reporting positions
in a manner consistent with such treatment.
ARTICLE II
CAPITAL ACCOUNTS
Section 2.1 CAPITAL ACCOUNTS. To the extent required by the Code or
otherwise deemed desirable by the Managers, a "CAPITAL ACCOUNT" will be
established for each Participant on the books of the LLC and will be adjusted as
follows:
(a) Such Participant's contributions to the capital of the
LLC will be credited to his, her or its Capital Account when received by
the LLC.
(b) At the end of each fiscal year of the LLC and upon
dissolution and winding up of the LLC pursuant to ARTICLE V, Profits for
such period allocated to such Participant pursuant to SECTION 3.2 shall be
credited and Losses for such period allocated to such Participant pursuant
to SECTION 3.2 shall be debited, as the case may be, to such Participant's
Capital Account.
(c) Any amounts distributed to such Participant will be
debited against his, her or its Capital Account.
(d) Such Participant's Capital Account will otherwise be
adjusted in accordance with Treas. Reg. Section 1.704-1(b)(2)(iv).
Section 2.2 COMPUTATION OF AMOUNTS. For purposes of computing the
amount of any item of income, gain, loss, deduction or expense to be reflected
in Capital Accounts, the determination, recognition and classification of each
such item shall be the same as its determination, recognition and classification
for federal income tax purposes; PROVIDED THAT
(a) any income that is exempt from Federal income tax shall
be added to such taxable income or losses and any expenditures of the LLC
described in Section 705(a)(2)(B) of the Code or treated as Code Section
705(a)(2)(B) expenditures pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(i), shall be subtracted from such taxable income or
losses;
(b) if the Book Value of any LLC property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection
with a distribution of such property) or (f) (in connection with a
revaluation of Capital Accounts), the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such property;
and
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(c) if property that is reflected on the books of the LLC
has a Book Value that differs from the adjusted tax basis of such property,
depreciation, amortization and gain or loss with respect to such property
shall be determined by reference to such Book value.
Section 2.3 DISTRIBUTION IN KIND. To the extent required by the
Code or otherwise deemed desirable by the Managers, if securities are to be
distributed in kind to the Participants pursuant to this Agreement, (i) such
securities shall first be written up or down pursuant to SECTION 2.2(b) to their
value (as determined pursuant to ARTICLE VI as of the date of such
distribution), (ii) the Capital Accounts of the Participant(s) shall be adjusted
immediately prior to the distribution as if such securities were sold at their
value (as so determined) and (iii) the value of such securities (as so
determined) received by each Participant shall be debited against his, her or
its respective Capital Account at the time of distribution.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 DISTRIBUTIONS. Distributions of cash or other assets of
the LLC shall be made at such times and in such amounts as the Managers may
determine. Unless the Managers determine otherwise, distributions shall be made
to Participant's PRO RATA based on the Percentage Interests held by each
Participant. Notwithstanding any provision to the contrary contained in this
Agreement, the LLC shall not make a distribution to any Participant on account
of his, her or its interest in the LLC if such distribution would violate
Section 18-607 of the Act or other applicable law.
Section 3.2 ALLOCATION OF PROFITS AND LOSSES. Except as may be
required by the Code, each item of income, gain, loss, deduction or expense to
the LLC shall be allocated among the Participant(s) in proportion to the
Percentage Interests held by cash Participant.
ARTICLE IV
MANAGEMENT AND MEMBER RIGHTS
Section 4.1 MANAGEMENT AUTHORITY.
(a) The Managers shall have the sole right to manage the business
of the LLC and shall have all powers and rights necessary, appropriate or
advisable to effectuate and carry out the purposes and business of the LLC
in accordance with the procedures and subject to the limitations set forth
in the Limited Liability Company Agreement of NSP Holdings L.L.C., and, no
Member, unless such Member is also a Manager, shall have any authority to
act for or bind the LLC but shall have only the right to vote on or approve
the actions herein specified to be voted on or approved by the Members.
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(b) The Managers may appoint such officers, to such terms and to
perform such functions as the Managers shall determine in their sole
discretion. The Managers may appoint, employ or otherwise contract with
such other persons or entities for the transaction of the business of the
LLC or the performance of services for or on behalf of the LLC as they
shall determine in their sole discretion. The Managers may delegate to any
such officer, person or entity such authority to act on behalf of the LLC
as the Managers may from time to time deem appropriate in their sole
discretion.
(c) When the taking of such action has been authorized by the
Managers, any officer of the LLC or any other person specifically
authorized by the Managers, may execute any contract or other agreement or
document on behalf of the LLC and may execute and file on behalf of the LLC
with the Secretary of State of the State of Delaware any certificates of
amendment to the LLC's Certificate, one or more restated certificates of
formation and certificates of merger or consolidation and, upon the
dissolution and completion of winding up of the LLC, at any time when there
are no Members, or as otherwise provided in the Act, a certificate of
cancellation canceling the LLC's Certificate.
(d) All decisions regarding the management and affairs of the LLC
shall be made by the Managers, acting by majority vote (except to the
extent the Limited Liability Company Agreement of NSP Holdings L.L.C.
requires a greater percentage vote for any of its subsidiaries to make such
decision).
Section 4.2. INDEMNIFICATION. Except as limited by law and subject
to the provisions of this SECTION 4.2., each person and entity shall be entitled
to be indemnified and held harmless on an as incurred basis by the LLC (but only
after first making a claim for indemnification available from any other source
and only to the extent indemnification is not provided by that source) to the
fullest extent permitted under the Act (including indemnification for
negligence, gross negligence and breach of fiduciary duty to the extent so
authorized) as amended from time to time (but, in the case of any such
amendment, only to the extent that such amendment permits the LLC to provide
broader indemnification rights that such law permitted the LLC to provide prior
to such amendment) against all losses, liabilities and expenses, including
attorneys' fees and expenses, arising from claims, actions and proceedings in
which such person or entity may be involved, as a party or otherwise, by reason
of his being or having been a Manager, Participant or officer of the LLC, or by
reason of his serving at the request of the LLC as a director, officer, manager,
member, partner, employee or agent of another limited liability company or of a
corporation, partnership, joint venture, trust or other enterprise, including a
service with respect to an employee benefit plan whether or not such person or
entity continues to be such at the time any such loss, liability or expense is
paid or incurred. The rights of indemnification provided in this SECTION 4.2
will be in addition to any rights to which such person may otherwise be entitled
by contract or as a matter of law and shall extend to his successors and
assigns. In particular, and without limitation of the foregoing, such person or
entity shall be entitled to indemnification by the LLC against expenses (as
incurred), including attorneys' fees and expenses, incurred by such person or
entity upon the delivery by such person or entity to the LLC of a written
undertaking (reasonably acceptable to the Managers). The LLC may, to the extent
authorized from time to time by the Managers, grant rights to indemnification
and to advancement of expenses to any employee or agent of the LLC to the
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fullest extent of the provisions of this SECTION 4.2 with respect to the
indemnification and advancement of expenses of Managers, Participants and
officers of the LLC.
Section 4.3 TRANSFER OF LLC INTEREST.
(a) No Participant shall sell, assign, transfer or
otherwise dispose of, whether voluntarily or involuntarily or by operation
of law (a "TRANSFER"), all or any portion of his, her or its interest in
the LLC without the prior written consent of the Managers, which consent
may be given or withheld in their sole discretion. No Participant shall
pledge or otherwise encumber all or any portion of his, her or its interest
in the LLC, without the prior written consent of the Managers, which
consent may be given or withheld in their sole and absolute discretion.
(b) Notwithstanding any other provision of this Agreement,
any Transfer by the Participants in contravention of any of the provisions
of this SECTION 4.3 shall be void and ineffective, and shall not bind, or
be recognized by, the LLC.
(c) If and to the extent any Transfer of an interest in the
LLC is permitted hereunder, this Agreement (including the Exhibits hereto)
shall be amended by the Managers to reflect the Transfer of the LLC
interest to the transferee, to admit the transferee as a Member and to
reflect the elimination of the transferring Participant (or the reduction
of such Transferring Participant's interest in the LLC) and (if and to the
extent then required by the Act) a certificate of amendment to the
Certificate reflecting such admission and elimination (or reduction) shall
be filed in accordance with the Act. The effectiveness of the Transfer of
an interest in the LLC permitted hereunder and the admission of any
substitute Member pursuant to this SECTION 4.3 shall be deemed effective
immediately prior to the Transfer of an interest in the LLC to such
Participant or if later on the first date that the Managers receive
evidence of such Transfer, including the terms thereof. If the transferring
Participant has transferred all or any of its interest in the LLC pursuant
to this SECTION 4.3, then, immediately following such transfer or if later
on the first date that the Managers receive evidence of such Transfer,
including the terms thereof, the transferring Participant shall cease to be
a Participant with respect to such interest.
(d) Any person or entity who acquires in any manner
whatsoever any interest in the LLC, irrespective of whether such person or
entity has accepted and adopted in writing the terms and provisions of this
Agreement, shall be deemed by the acceptance of the benefits of the
acquisition thereof to have (i) made all of the capital contributions made
by, (ii) received all of the distributions received by, and (iii) agreed to
be subject to and bound by all the terms and conditions of this Agreement
that, any predecessor in such interest in the LLC made, received and was
subject to or bound.
Section 4.4 MEMBER RIGHTS; MEETINGS.
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(a) No Member, unless such Member is also a Manager, shall have
any right, power or duty, including the right to approve or vote on any matter,
except as expressly required by the Act or other applicable law or as expressly
provided for hereunder.
(b) Unless a greater vote is required by the Act or as expressly
provided for hereunder, the affirmative vote of a Majority in Interest of the
Member(s) entitled to vote shall be required to approve any proposed action.
(c) Meetings of the Member(s) for the transaction of such business
as may properly come before such Member(s) shall be held at such place, on such
date and at such time as the Managing Member shall determine. Special meetings
of Member(s) for any proper purpose or purposes may be called at any time by the
Managers or the Member(s) holding a Majority in Interest. The LLC shall deliver
oral or written notice (written notice may be delivered by mail) stating the
date, time, place and purposes of any meeting to each Member entitled to vote at
the meeting. Such notice shall be given not less than four (4) and no more than
sixty (60) days before the date of the meeting.
(d) Any action required or permitted to be taken at an annual or
special meeting of the Member(s) may be taken without a meeting, without prior
notice, and without a vote, provided that written consents, setting forth all
proposed actions to be taken at such meeting, are signed by the Member(s)
holding at least the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all Member(s) entitled to
vote on such action were present and voted. Every written consent shall bear the
date and signature of each Member who signs such consent. Prompt notice of the
taking of action without a meeting by less than unanimous written consent shall
be given to all Members who have not consented in writing to such action.
Section 4.5 ADDITIONAL MEMBERS. The Managers shall have the sole
right to admit additional Members upon such terms and conditions, at such time
or times as the Managers shall in their sole discretion determine. In connection
with any such admission, the Managers shall amend SCHEDULE I to reflect the
name, address and number of units allocated to the additional Member and the new
Percentage Interests of, and number of units allocated to, all Participants.
Section 4.6 TERMINATION OF A MEMBER. A person or entity will no
longer be a Member for purposes of this Agreement upon an Event of Withdrawal.
The Terminated Member shall only be entitled to continue to receive allocation
of Profits and Losses and distributions of the LLC, including distributions
pursuant to ARTICLE V hereof, as and when paid by the LLC, to the same extent
such Terminated Member was entitled to such distributions as a Member. Except as
provided in SECTION 8.1, such Terminated Member will not be entitled to
participate in any LLC decision or determination, and his, her or its successors
and assigns will acquire only his, her or its right to receive allocation of
Profits and Losses and to share in LLC distributions.
Section 4.7 OUTSIDE BUSINESSES. Any Participant 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 LLC,
and the LLC, the Participants shall have no rights by virtue of this Agreement
in and to such independent ventures or the income or gains derived therefrom,
and
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the pursuit of any such venture, even if competitive with business of the LLC,
shall not be deemed wrongful or improper. No Participant shall be obligated to
present any particular investment opportunity to the LLC even if such
opportunity is of a character that, if presented to the LLC, could be taken by
the LLC, and any Participant shall have the right to take for his, her or its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment opportunity.
ARTICLE V
DURATION
Section 5.1 DURATION. Subject to the provisions of SECTION 5.2 of
this Agreement, the LLC shall be dissolved and its affairs wound up and
terminated upon the first to occur of the following:
(a) The determination of the Managers to dissolve the LLC;
(b) The occurrence of an Event of Withdrawal with respect to a
Member; or
(c) The entry of a decree of judicial dissolution under Section
18-802 of the Act.
Except as otherwise set forth in the ARTICLE V, the Member(s) intend for the LLC
to have perpetual existence.
Section 5.2 CONTINUATION OF THE LLC. Notwithstanding the provisions
of SECTION 5.1(c) hereof, the occurrence of an Event of Withdrawal shall not
dissolve the LLC if within ninety (90) days after the occurrence of such Event
of Withdrawal, the business of the LLC is continued by the agreement of
remaining Member(s) holding not less than a majority in interest (as defined in
Revenue Procedure 94.46 or any successor thereto) of the remaining Member(s).
Section 5.3 WINDING UP.
Upon dissolution of the LLC, the LLC shall be liquidated in an orderly
manner. The Managers shall appoint a liquidator pursuant to this Agreement and
such liquidator shall proceed diligently to wind up the affairs of the LLC and
make final distributions as provided herein and in the Act. The costs of
liquidation shall be borne as a LLC expense. The steps to be accomplished by the
liquidator are as follows:
(a) First, the liquidator shall satisfy all of the LLC's
debts and liabilities to creditors other than Participants (whether by
payment or the reasonable provision for payment thereof);
(b) Second, the liquidator shall satisfy all of the LLC's
debts and liabilities to Participants (whether by payment or the reasonable
provision for payment thereof); and
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(c) Third, all remaining assets shall be distributed to the
Participants in accordance with SECTION 3.1.
Section 5.4 TERMINATION. The LLC shall terminate when all of the
assets of the LLC, after payment of or due provision for all debts, liabilities
and obligations of the LLC, shall have been distributed to the Participants in
the manner provided for in this ARTICLE V, and the Certificate of the LLC shall
have been canceled in the manner required by the Act.
ARTICLE VI
VALUATION
Section 6.1 VALUATION. For purposes of this Agreement, the value of
any property contributed by or distributed to any Participant shall be valued as
determined by the Managers.
ARTICLE VII
CERTIFICATION OF MEMBERSHIP INTERESTS
Section 7.1 MEMBERSHIP INTERESTS Every holder of a membership
interest in the LLC shall be entitled to a certificate, signed by, or in the
name of the LLC by the Managers, or any officer of the LLC provided with such
authority pursuant to SECTION 4.1(b) above, certifying such Member's percentage
interest in the LLC (as represented by units allocated to such holder). If such
a certificate is countersigned (1) by a transfer agent or an assistant transfer
agent other than the LLC or its employee or (2) by a registrar, other than the
LLC or its employee, the signature of any such Manager or officer may be
facsimile. In case any Manager or officer who has signed, or whose facsimile
signature has been used, on any such certificate shall cease to be such Manager
or officer of the LLC whether because of death, resignation or otherwise before
such certificate has been delivered by the LLC, such certificate may
nevertheless be issued and delivered as though the person or persons who signed
such certificate or whose facsimile signature has been used thereon had not
ceased to be such Manger or officer of the LLC. All certificates for membership
interests shall be consecutively numbered or otherwise identified. The name of
the person to whom the membership interests thereby are issued, with the
percentage interest (as represented by the number of units allocated to such
holder) and date of issue, shall be entered on the books of the LLC. Membership
interests of the LLC shall only be transferred on the books of the LLC by the
holder of record thereof or by such holder's attorney duly authorized in
writing, upon surrender to the LLC of the certificate for such membership
interests endorsed by the appropriate person or persons, with such evidence of
the authenticity of such endorsement, transfer, authorization, and other matters
at the LLC may reasonably require. In that event, it shall be the duty of the
LLC to issue a new certificate to the person entitle thereto, cancel the old
certificate, and record the transaction on its books. The Managers may appoint a
bank or trust company organized under the laws of the United States or any state
thereof to act as its transfer agent or registrar, or both in connection with
the transfer of any class or series of membership interests of the LLC.
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Section 7.2 LOST CERTIFICATES. The Managers may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the LLC alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen, or destroyed. When authorizing such issue of
a new certificate or certificates, the Managers may, in their sole discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate or certificates, or his legal
representative, to give the LLC a bond sufficient to indemnify the LLC against
any claim that may be made against the LLC on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
ARTICLE VIII
BOOKS OF ACCOUNT; MEETINGS
Section 8.1 BOOKS. The Managers will maintain on behalf of the LLC
complete and accurate books of account of the LLC's affairs at the LLC's
principal office, which books will be open to inspection by any Member (or his
authorized representative) at any time during ordinary business hours and shall
be maintained in accordance with the Act.
Section 8.2 FISCAL YEAR. The fiscal year of the LLC shall end on
December 31 of each year.
Section 8.3 TAX ALLOCATION AND REPORTS.
(a) The income, gains, losses, deductions and credits of
the LLC will be allocated, for federal, state and local income tax
purposes, among the Participants in accordance with the allocation of such
income, gains, losses, deductions and credits among the Participants for
computing their Capital Accounts, except as otherwise provided in the Code
or other applicable law.
(b) In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, deduction and expense with
respect to any property contributed to the capital of the LLC shall, solely
for tax purposes, be allocated among the Participants so as to take account
of any variation between the adjusted basis of such property to the LLC for
federal income tax purposes and its fair market value at the time of
contribution.
(c) Within 75 days after the end of each fiscal year, the
Tax Matters Partner (as defined below) shall cause the LLC to furnish each
Participant with a copy of the LLC's tax return and form K-1 for such
fiscal year.
(d) The LLC hereby designates NSP Holding L.L.C. to act as
the "Tax Matters Partner" (as defined in Section 6231(a)(7) of the Code)
in accordance with Sections 6221 through 6233 of the Code.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 AMENDMENTS. This Agreement may be amended or modified
and any provision hereof may be waived only by the Managers; PROVIDED, HOWEVER,
that any amendment or modification reducing disproportionately a Participant's
LLC interest or other interest in the profits or losses or in distributions or
increasing such person's or entity's capital contribution shall be effective
only with that person's or entity's consent.
Section 9.2 SUCCESSORS. Except as otherwise provided herein, this
Agreement will inure to the benefit of and be binding upon the Participants and
their respective legal representatives, heirs, successors and permitted assigns.
Section 9.3 GOVERNING LAW; SEVERABILITY The Agreement will be
construed in accordance with the laws of the State of Delaware, and, to the
maximum extent possible, in such manner as to comply with an the terms and
conditions of the Act. If it is determined by a court of competent jurisdiction
that any provision of this Agreement is invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section 9.4 NOTICES. All notices, demands and other communications
to be given and delivered under or by reason of provisions under this Agreement
shall be writing and shall be deemed to have been given when personally
delivered, mailed by first class mail (postage prepaid and return receipt
requested), sent by telecopy or sent by reputable overnight courier service
(charges prepaid) to the addresses or telecopy numbers set forth in SCHEDULE I
hereto or to such other addresses or telecopy numbers as have been supplied in
writing to the LLC.
Section 9.5 COMPLETE AGREEMENT; HEADINGS, COUNTERPARTS. This
Agreement terminates and supersedes all other agreements concerning the subject
matter hereof previously entered into among any of the parties. Descriptive
headings are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, feminine or the neuter gender shall include the masculine, the
feminine and the neuter. This Agreement may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts together will constitute one agreement.
Section 9.6 OPT-IN TO ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE. The
Members hereby agree that the units shall be securities governed by Article 8 of
the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial
Code of any other applicable jurisdiction).
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Section 9.7 PARTITION. Each Participant waives, until termination
of the LLC, any and all rights that it may have to maintain an action for
partition of the LLC's property.
Section 9.8 NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be constructed as if drafted jointly by the parties hereto, and
no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any of the provisions of this Agreement.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Limited Liability Company Agreement to be signed as of the date
first above written.
NSP HOLDINGS L.L.C.
By: /s/ XXXXX X. XXXXX, XX.
-----------------------------
Its: EXECUTIVE VICE PRESIDENT
-----------------------------
SCHEDULE 1
PERCENTAGE
MEMBER(S) NUMBER OF UNITS INTEREST
--------- --------------- -----------------
NSP HOLDINGS L.L.C. 100 100%
0000 Xxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
WITH A COPIES TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Attn: Xxxxxxxx X. Xxxxxx, P.C.
Xxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
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