EXHIBIT 10.13.4
OPERATING AGREEMENT
OF
FLEXCHECK HOLDINGS LLC
A SOUTH CAROLINA LIMITED LIABILITY COMPANY
EFFECTIVE AS OF JANUARY 18, 2002
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ..................................... 1
ARTICLE II FORMATION OF COMPANY ........................... 3
2.1 Formation ............................... 3
2.2 Name .................................... 3
2.3 Principal Place of Business.............. 3
2.4 Registered Office and Registered Agent .. 4
2.5 Term .................................... 4
ARTICLE III BUSINESS OF COMPANY ........................... 4
3.1 Permitted Businesses .................... 4
ARTICLE IV NAMES AND ADDRESSES OF MEMBERS;
OWNERSHIP INTERESTS ............................ 4
4.1 Name and Address ........................ 4
4.2 Units ................................... 5
4.3 Options Outstanding ..................... 5
ARTICLE V RIGHTS AND DUTIES OF MANAGERS ................... 5
5.1 Management .............................. 5
5.2 Number, Tenure and Qualifications ....... 5
5.3 Certain Limitations on the Authority
of the Manager .......................... 6
5.4 Liability for Certain Acts .............. 6
5.5 Managers and Members Have No Exclusive
Duty to Company ......................... 7
5.6 Bank Accounts ........................... 7
5.7 Indemnity of the Managers, Employees and
Other Agents............................. 7
5.8 Resignation ............................. 7
5.9 Removal ................................. 8
5.10 Vacancies ............................... 8
5.11 Compensation............................. 8
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Page
ARTICLE VI RIGHTS AND OBLIGATIONS OF MEMBERS .............. 8
6.1 Limitation of Liability ................. 8
6.2 Company Debt Liability .................. 8
6.3 List of Members ......................... 8
6.4 Approval of Sale of All Assets .......... 8
6.5 Company Books ........................... 9
6.6 Priority and Return of Capital .......... 9
6.7 Amendment of Operating Agreement ........ 9
6.8 Non-Competition and Confidentiality
Covenants............................... 9
6.9 Waiver of Enforcement ................... 10
ARTICLE VII MEETINGS OF MEMBERS ........................... 10
7.1 Annual Meeting ........................... 10
7.2 Special Meetings ......................... 10
7.3 Place of Meetings ........................ 10
7.4 Notice of Meetings ....................... 11
7.5 Manner of Acting ......................... 11
7.6 Proxies .................................. 11
7.7 Action by Members Without a Meeting ...... 11
7.8 Waiver of Notice ......................... 12
ARTICLE VIII CONTRIBUTIONS TO THE COMPANY AND CAPITAL
ACCOUNTS ...................................... 12
8.1 Members' Capital Contributions ........... 12
8.2 Capital Accounts ......................... 12
8.3 Withdrawal or Reduction of Members'
Contributions to Capital ................. 13
ARTICLE IX ALLOCATIONS, INCOME TAX, DISTRIBUTIONS,
ELECTIONS AND REPORTS ........................... 14
9.1 Allocations .............................. 14
9.2 Distributions ............................ 14
9.3 Accounting Principles .................... 14
9.4 Interest On and Return of Capital
Contributions............................. 14
9.5 Loans to Company ......................... 15
9.6 Accounting Period ........................ 15
9.7 Records, Audits and Reports .............. 15
9.8 Returns and other Elections .............. 15
9.9 Confidentiality .......................... 16
ARTICLE X TRANSFERABILITY .................................. 16
10.1 General. .................................. 16
10.2 Right of First Refusal ..................... 16
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Page
ARTICLE XI DEATH OF A MEMBER ............................... 17
ARTICLE XII DISSOLUTION AND TERMINATION .................... 18
12.1 Dissolution .............................. 18
12.2 Winding Up, Liquidation and Distribution
of Assets ................................ 18
12.3 Articles of Dissolution .................. 19
12.4 Return of Contribution Nonrecourse to
other Members ............................ 19
ARTICLE XIII MISCELLANEOUS PROVISIONS ...................... 20
13.1 Notices .................................. 20
13.2 Books of Account and Records ............. 20
13.3 Application of South Carolina Law ........ 20
13.4 Waiver of Action for Partition ........... 20
13.5 Execution of Additional Instruments ...... 21
13.6 Construction.............................. 21
13.7 Headings and Pronouns..................... 21
13.8 Waivers................................... 21
13.9 Rights and Remedies Cumulative............ 21
13.10 Severability.............................. 21
13.11 Heirs, Successors and Assigns............. 21
13.12 Creditors................................. 22
13.13 Counterparts ............................. 22
CERTIFICATE ................................................ 23
EXHIBIT A .................................................. 24
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THIS Operating Agreement is made and entered into by and between the
Members whose signatures appear on the signature page hereof.
RECITALS:
A. Filed articles of organization for Flexcheck Holdings LLC
with the Secretary of State of South Carolina on January 18, 2002 and amended on
March 29, 2002.
B. Initially, it was anticipated that the Company would be owned
80% by HomeGold Financial, Inc. ("HomeGold") and 20% by Xxxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx"). Negotiations between HomeGold and Xxxxxxxxx as to the
ownership of the Company were not finalized until August, 2002, at which time
the parties agreed that Xxxxxxxxx would be the sole owner of the Company from
its inception (with HomeGold holding an option to acquire an 80% interest) and
that HomeGold would loan funds to the Company pursuant to Revolving Line of
Credit referred to hereinafter (which would also relate back to and be effective
as the first funding by HomeGold in January, 2002) and thereafter HomeGold and
Xxxxxxxxx agreed that both this Operating Agreement and the Revolving Line of
Credit would relate back to and be effective as of January 18, 2002.
C. The parties agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Operating Agreement shall have the
following meanings (unless otherwise expressly provided herein);
(a) "Articles of Organization" shall mean the Articles of Organization
of Flexcheck Holdings LLC as filed with the Secretary of State of South Carolina
as the same may be amended from time to time.
(b) "Capital Account" as of any given date shall mean the Capital
Contribution to the Company by a Member as adjusted up to the date in question
pursuant to Article VIII.
(c) "Capital Contribution" shall mean any contribution to the capital
of the Company in cash or property by a Member whenever made. "Initial Capital
Contribution" shall mean a majority in interest of the contribution to the
capital of the Company pursuant to this Operating Agreement.
(d) "Code" shall mean the Internal Revenue Code of 1986 or
corresponding provisions of subsequent superseding federal revenue laws.
(e) "The Act" shall mean the South Carolina Limited Liability Company
Act of 1996.
(f) "Company" shall refer to Flexcheck Holdings LLC.
(g) "Distributable Cash" means all cash, revenues and funds received by
the Company, less the sum of the following to the extent paid or set aside by
the Company: (i) all principal and interest payments on indebtedness of the
Company and all other sums paid to lenders; (ii) all cash expenditures incurred
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incident to the normal operation of the Company's business; (iii) such Reserves
as the Managers deem reasonably necessary to the proper operation of the
Company's business.
(h) "Entity" shall mean any general partnership, limited partnership,
limited liability company, corporation, joint venture, trust, business trust,
cooperative or association or any foreign trust or foreign business
organization.
(i) "Fiscal Year" shall mean the Company's fiscal year, which shall be
the calendar year.
(j) "Majority in Interest of the Members" shall mean those Members
holding a majority of the issued and outstanding Units.
(k) "Manager" shall mean one or more managers. References to the
Manager in the singular or as him, her, it, itself, or other like references
shall also, where the context so requires, be deemed to include the plural or
the masculine or feminine reference, as the case may be.
(l) "Member" shall mean each of the parties who executes a counterpart
of this Operating Agreement as a Member and each of the parties who may
hereafter become Members. To the extent a Manager has purchased Membership
Interests in the Company, he will have all the rights of a Member with respect
to such Membership Interests, and the term "Member" as used herein shall include
a Manager to the extent he has purchased such Membership Interests in the
Company. If a Person is a Member immediately prior to the purchase or other
acquisition by such Person of an Economic Interest, such Person shall have all
the rights of a Member with respect to such purchased or otherwise acquired
Membership Interest or Economic Interest, as the case may be.
(m) "Membership Interest" shall mean a Member's entire interest in the
Company including such Member's Units and such other rights and privileges that
the Member may enjoy by being a Member.
(n) "Operating Agreement" shall mean this Operating Agreement as
originally executed and as amended from time to time.
(o) "Person" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors, and assigns of
such "Person" where the context so permits.
(p) "Reserves" shall mean, with respect to any fiscal period, funds set
aside or amounts allocated during such period to reserves which shall be
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maintained in amounts deemed sufficient by the Managers for working capital and
to pay taxes, insurance, debt service or other costs or expenses incident to the
ownership or operation of the Company's business.
(q) "Revolving Line of Credit" shall mean that certain loan agreement
dated January 18, 2002 by and between the Company and HomeGold Financial, Inc.
(r) "Treasury Regulations" shall include proposed, temporary and final
regulations promulgated under the Code in effect as of the date of filing the
Articles of Organization and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
(s) "Unit" or "Membership Unit" shall mean an economic interest in the
capital, distributions, profits and losses of the Company as set further in
Article VII and IX.
ARTICLE II
FORMATION OF COMPANY
2.1 Formation. On January 18, 2002 the Company was organized as a South
Carolina Limited Liability Company by executing and delivering articles of
organization to the South Carolina Secretary of State in accordance with and
pursuant to the Act.
2.2 Name. The name of the Company is Flexcheck Holdings LLC.
2.3 Principal Place of Business. The principal place of business of the
company within the State of South Carolina shall be 0000 Xxxxxxxxx Xxxxxx, Xxxxx
X, Xxxxxxxx, X.X. 00000. The Company may locate its places of business and
registered office at any other place or places as the Manager or Managers may
from time to time deem advisable.
2.4 Registered Office and Registered Agent. The Company's initial
registered office shall be at the office of its registered agent at CT
Corporation System, 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 and the name of its
initial registered agent shall be CT Corporation System. The registered office
and registered agent may be changed from time to time by filing the address of
the new registered office and/or the name of the new registered agent with the
South Carolina Secretary of State pursuant to the Act.
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2.5 Term. The term of the Company shall be until December 31, 2050
unless terminated sooner in accordance with the provisions of the Agreement.
ARTICLE III
BUSINESS OF COMPANY
3.1 Permitted Businesses. The business of the Company shall be:
(a) To accomplish any lawful business whatsoever, or which shall at any
time appear conducive to or expedient for the protection or benefit of the
Company and its assets.
(b) To exercise all other powers necessary to or reasonably connected
with the Company's business which may be legally exercised by limited liability
companies under the Act.
(c) To engage in all activities necessary, customary, convenient, or
incident to any of the foregoing.
ARTICLE IV
NAMES AND ADDRESSES OF MEMBERS;
OWNERSHIP INTERESTS
4.1 Name and Address. The name and address of the sole Member is
as follows:
NAME ADDRESS
---- -------
Xxxxxxx X. Xxxxxxxxx 00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
4.2 Units. The Company shall be authorized to issue up to
10,000 shares of ownership interest (referred to herein as "Units").
4.3 Options Outstanding. In consideration of its advances made pursuant
to Revolving Line of Credit, the Company has granted to HomeGold Financial, Inc.
("HGF") the option to purchase Units of ownership interest in the Company, which
shall, after issuance, constitute eighty (80%) percent of the authorized and
issued Units of the Company. The exercise price for such option is $100,000. The
aforesaid option may be exercised by HGF at any time prior to December 31, 2012
by written notice to the Company, accompanied by payment of the exercise price.
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ARTICLE V
RIGHTS AND DUTIES OF MANAGERS
5.1 Management. The business and affairs of the Company shall be
managed by its Manager. The Manager shall direct, manage and control the
business of the Company to the best of his ability. Except for situations in
which the approval of the members is expressly required by this Operating
Agreement or by non-waivable provisions of applicable law, the Manager shall
have full and complete authority, power and discretion to manage and control the
business, affairs and properties 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 subject to the limitations
set forth in 5.3 below.
5.2 Number, Tenure and Qualifications. The Company shall initially have
one Manager, Xxxxxxx X. Xxxxxxxxx. The number of Managers of the Company shall
be fixed from time to time by a majority in interest of the Members but in no
instance shall there be less than one Manager. Each Manager shall hold office
until his successor shall have been elected and qualified. A Manager may be
removed and replaced at any time by a majority in interest of the Members.
Managers shall be elected by a majority in interest of the Members. Managers
need not be residents of the State of South Carolina or Members of the Company.
5.3 Certain Limitations on the Authority of the Manager.
(a) Notwithstanding anything else in this Agreement, the authority of
the Manager(s) to act on behalf of the Company shall be subject to the following
limitations:
(i) The Manager(s) shall have no authority to sell or dispose
of substantially all of the assets of the Company without the
consent of the Members;
(ii) The Manager(s) shall have no authority to take any action
which would constitute a breach of the obligations of the
Company under the Revolving Credit Agreement;
(iii) The Manager(s) shall have no authority to take any
action which would make it impossible to carry on the ordinary
business of the Company without the consent of the Members.
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(b) Unless authorized to do so by this Operating Agreement or by the
Managers of the Company, no attorney-in-fact, employee or other agent of the
Company shall have any power or authority to bind the Company in any way, to
pledge its credit or to render it liable pecuniarily for any purpose. No Member
shall have any power or authority to bind the Company unless the Member has been
authorized by the Managers to act as an agent of the Company in accordance with
the previous sentence.
5.4 Liability for Certain Acts. Each Manager shall perform his duties
as Manager in good faith, in a manner he reasonably believes to be in the best
interests of the Company, and with such care as an ordinarily prudent person in
a like position would use under similar circumstances. A Manager who so performs
the duties as Manager shall not have any liability by reason of being or having
been a Manager of the Company. The Manager does not, in any way, guarantee the
return of the Members' Capital Contributions or a profit for the Members from
the operations of the Company. The Manager shall not be liable to the Company or
to any Member for any loss or damage sustained by the Company or any Member,
unless the loss or damage shall have been the result of fraud, deceit, gross
negligence, willful misconduct, breach of this Agreement or a wrongful taking by
the Manager.
5.5 Managers and Members Have No Exclusive Duty to Company. Subject to
Section 6.8 below, a Manager shall not be required to manage the Company as his
sole and exclusive function and he (and any Manager and/or Member) may have
other business interests and may engage in other activities in addition to those
relating to the Company; provided that the Operating Manager may not have a
managerial position in another business without the prior written approval of a
majority in interest of the Members and the operation of the Company shall be
the principal business activity of the Operating Manager. Subject to Section
6.8, neither the Company nor any Member shall have any right, by virtue of this
Operating Agreement, to share or participate in such other investments or
activities of the Manager and/or Member or to the income or proceeds derived
therefrom. Neither the Manager nor any Member shall incur any liability to the
Company or to any of the Members as a result of engaging in any other business
or venture.
5.6 Bank Accounts. The Managers may from time to time open bank
accounts in the name of the Company, and the Managers shall be the sole
signatory thereon, unless the Managers determine otherwise.
5.7 Indemnity of the Managers, Employees and Other Agents. The Company
shall indemnify the Managers and make advances for expenses to the maximum
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extent permitted under the Act. The Company shall indemnify its employees and
other agents who are not managers to the fullest extent permitted by law,
provided that such indemnification in any given situation is approved by a
majority in interest of the Members.
5.8 Resignation. Any Manager of the Company may resign at any time by
giving written notice to a majority in interest of the Members of the Company.
The resignation of any Manager shall take effect upon receipt of notice thereof
or at such later time as shall be specified in such notice; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. The resignation of a Manager who is also a
Member shall not affect the Manager's rights as a Member and shall not
constitute a withdrawal of a Member. Notwithstanding the foregoing, the
Operating Manager shall be obligated to continue to serve for the term set forth
in his Employment Agreement.
5.9 Removal. At a meeting called expressly for that purpose, all or any
lesser number of Managers may be removed at any time, with or without cause, by
a majority in interest of the Members. The removal of a Manager who is also a
Member shall not affect the Manager's rights as a Member and shall not
constitute a withdrawal of a Member.
5.10 Vacancies. Any vacancy occurring for any reason in the number of
Managers of the Company may be filled by a majority in interest of the Members.
Any Manager's position to be filled by reason of an increase in the number of
Managers shall be filled by a majority in interest of the Members.
5.11 Compensation. The compensation of the Managers shall be fixed from
time to time by an affirmative vote of a majority in interest of the Members,
and no Manager shall be prevented from receiving such salary by reason of the
fact that he is also a Member of the Company.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
6.1 Limitation of Liability. Each Member's liability shall be limited
as set forth in this Operating Agreement, the Act and other applicable law.
6.2 Company Debt Liability. A Member will not be personally liable
for any debts or losses of the Company beyond any obligation of the Member under
Section 8.1 to make Capital Contributions.
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6.3 List of Members. Upon written request of any Member, the Manager
shall provide a list showing the names, addresses and Membership Interests and
Units of all Members and Unit Holders.
6.4 Approval of Sale of All Assets. A majority in interest of the
Members shall have the right to approve the sale, exchange or other disposition
of all, or substantially all, of the Company's assets (other than in the
ordinary course of the Company's business) which is to occur as part of a single
transaction or plan.
6.5 Company Books. In accordance with Section 9.7 herein, the Managers
shall maintain and preserve, during the term of the Company, and for a
reasonable time thereafter, all accounts, books, and other relevant Company
documents. Upon reasonable request no more than once each calendar quarter, each
Member and Unit Holder shall have the right, during ordinary business hours, to
inspect and copy such Company documents at the requesting Member's and Unit
Holder's expense.
6.6 Priority and Return of Capital. Except as may be expressly provided
in Article IX, no Member or Unit Holder shall have priority over any other
Member or Unit Holder, 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 loans (as distinguished from Capital Contributions) which a Member has
made to the Company.
6.7 Amendment of Operating Agreement. This Operating Agreement may
only be amended by a majority in interest of the Members, provided that no
amendment shall affect adversely a Member's economic rights as an equity owner
or reduce a Member's percentage ownership without such Member's consent.
6.8 Non-Competition and Confidentiality Covenants. Every Member agrees,
and agrees to cause each of its beneficial owners to agree, that so long as it
is a Member of the Company, and for a period of twenty-four months after it
ceases to have an ownership interest in the Company, such Member will not, nor
will any affiliate of such Member, compete with the Company, or solicit the
Company's customers or employees, or disclose or divulge any confidential
information about the Company. For the purposes of this Section:
(i) the term "compete" means engaging in the business of
making "payday loans" in any manner whatsoever (other than as
a passive investor), including, without limitation, as a
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proprietor, partner, investor, member, director, officer,
employee, consultant, independent contractor, or otherwise,
within the United States;
(ii) the term "affiliate" means any legal entity that directly
or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with the Member;
(iii) the term "customers" means all persons to whom the
Company or any of its affiliates has made loans, during the
period such Member was a Member of the Company; and
(iv) the term "confidential information" means flow charts,
file layouts, source code listings, computer programs,
customer information, financial information, product
information and all other know-how and trade secrets developed
by and belonging to the Company or any of its affiliates which
gives the Company a competitive advantage over other
businesses in the same fields of endeavor; and
(v) Upon breach of any of these covenants, the Company and/or
any Member shall have the right to seek monetary damages for
any past breach and equitable relief, including specific
performance by means of an injunction to prevent any further
breach.
6.9 Waiver of Enforcement. The Managers may waive enforcement of or
release a Member from all or any portion of the restrictions contained in this
Article VI.
ARTICLE VII
MEETINGS OF MEMBERS
7.1 Annual Meeting. The annual meeting of the Members shall be held
at the discretion of the Managers for the purpose of the transaction of such
business as may come before the meeting.
7.2 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 Members holding at least 20% of the Units.
7.3 Place of Meetings. A majority in interest of the Members may
designate any place, either within or outside the State of South Carolina as the
place of meeting for any meeting of the Members. If no designation is made, or
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if a special meeting be otherwise called, the place of meeting shall be the
principal executive office of the Company in the State of South Carolina.
7.4 Notice of Meetings. Except as provided in Section 7.5, 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 ten
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 person calling the meeting, to
each Member entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered two calendar days after being deposited in the United
States mail, addressed to the Member at its address as it appears on the books
of the Company, with postage thereon prepaid.
7.5 Manner of Acting. The affirmative vote of Members holding a
majority of Units 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
of Organization, or by this Operating Agreement. Unless otherwise expressly
provided herein or required under applicable law, Members who have an interest
(economic or otherwise) in the outcome of any particular matter upon which the
Members vote or consent may vote or consent upon any such matter and their
Capital Interest, vote or consent, as the case may be, shall be counted in the
determination of whether the requisite matter was approved by the Members.
7.6 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
months from the date of its execution, unless otherwise provided in the proxy.
7.7 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 the necessary Members required to approve such action 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 is effective when the Members
required to approve such action 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.
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7.8 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.
ARTICLE VIII
CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS
8.1 Members' Capital Contributions. Each Member shall contribute
such amount as is set forth in Exhibit A hereto as its Capital Contribution.
No Member shall have any further obligation to contribute capital to the
Company.
8.2 Capital Accounts.
(a) A separate Capital Account will be maintained for each Member. Each
Member's Capital Account will be increased by (1) the amount of money
contributed by such Member to the Company; (2) the fair market value of property
contributed by such Member to the Company (net of liabilities secured by such
contributed property that the Company is considered to assume or take subject to
under Section 752 of the Code); (3) allocations to such Member of Net Profits;
(4) any items in the nature of income and gain which are specially allocated to
the Member. Each Member's Capital Account will be decreased by (1) the amount of
money distributed to such Member by the Company; (2) the fair market value of
property distributed to such Member by the Company (net of liabilities secured
by such distributed property that such Member is considered to assume or take
subject to under Section 752 of the Code); (3) any items in the nature of
deduction and loss that are specially allocated to the Member; and (4)
allocations to the account of such Member of Net Losses.
(b) In the event of a permitted sale or exchange of a Membership
Interest or Unit in the Company, the Capital Account of the transferor shall
become the Capital Account of the transferee to the extent it relates to the
transferred Membership Interest or Unit in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations.
(c) The manner in which Capital Accounts are to be maintained pursuant
to this Section 8.2 is intended to comply with the requirements of Section
704(b) of the Code and the Treasury Regulations promulgated thereunder. If in
the opinion of the Company's accountants the manner in which Capital Accounts
are to be maintained pursuant to the preceding provisions of this Section 8.3
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should be modified in order to comply with Section 704(b) of the Code and the
Treasury Regulations thereunder, then notwithstanding anything to the contrary
contained in the preceding provisions of this Section 8.2, the method in which
Capital Accounts are maintained shall be so modified; provided, however, that
any change in the manner of maintaining Capital Accounts shall not materially
alter the economic agreement between or among the Members.
(d) Upon liquidation of the Company, liquidating distributions will be
made in accordance with the positive Capital Account balances of the Members and
Unit Holders, as determined after taking into account all Capital Account
adjustments for the Company's taxable year during which the liquidation occurs.
Liquidation proceeds will be paid in accordance with Section 12.3(b). The
Company may offset damages for breach of this Operating Agreement by a Member or
Unit Holder whose interest is liquidated (either upon the withdrawal of the
Member or the liquidation of the Company) against the amount otherwise
distributable to such Member.
(e) Except as otherwise required in the Act (and subject to Section 8.1
and 8.2), no Member or Unit Holder shall have any liability to restore all or
any portion of a deficit balance in such Member's or Unit Holder's Capital
Account.
8.3 Withdrawal or Reduction of Members' Contributions to Capital.
(a) A Member shall not receive out of the Company's property any part
of its Capital Contribution until all liabilities of the Company, except
liabilities to Members on account of their Capital Contributions, have been paid
or there remains property of the Company sufficient to pay them.
(b) A Member, irrespective of the nature of its Capital Contribution,
has only the right to demand and receive cash in return for its Capital
Contribution.
ARTICLE IX
ALLOCATIONS, INCOME TAX, DISTRIBUTIONS, ELECTIONS AND REPORTS
9.1 Allocations. All net profits, net losses, credits, deductions and
other items for income tax purposes shall be allocated among the Members and
Unit Holders in proportion to their ownership of Units, provided that losses
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shall first be allocated in accordance with the positive Capital Account
balances of the Members until those Capital Accounts are reduced to zero.
9.2 Distributions. All distributions of property and money shall be
made to the Members and Unit Holders in proportion to their ownership of Units.
The Members shall be entitled to receive quarterly distributions, out of
Distributable Cash, of such amounts as the Managers may determine are reasonably
sufficient to allow the Members to meet their federal and state income tax
obligations. Within a reasonable period of time after finalization of the
Company's annual financial statements, the Managers may make additional
discretionary distributions to the extent permitted under the Revolving Credit
Agreement. All distributions hereunder shall be made to the Members in
proportion to their ownership of Units.
9.3 Accounting Principles. The profits and losses of the Company shall
be determined in accordance with generally accepted accounting principles
applied on a consistent basis using the accrual method of accounting.
9.4 Interest On and Return of Capital Contributions. No Member or Unit
Holder shall be entitled to interest on its Capital Contribution or to return
of its Capital Contribution, except as otherwise specifically provided for
herein.
9.5 Loans to Company. Nothing in this Operating Agreement shall
prevent any Member from making secured or unsecured loans to the Company by
agreement with the Company.
9.6 Accounting Period. The Company's accounting period shall be the
calendar year.
9.7 Records, Audits and Reports. At the expense of the Company, the
Manager 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, Unit Holder 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;
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(c) Copies of the Company's federal, state, and local income tax
returns and reports, if any, for the four most recent years;
(d) Copies of the Company's currently effective written Operating
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 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.
9.8 Returns and other Elections. The Manager 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.
All elections permitted to be made by the Company under federal or
state laws shall be made by the Manager in his sole discretion.
9.9 Confidentiality. Each Member shall treat all information concerning
the Company's finances, customers, Members, property and all other information
concerning the Company's business as confidential and shall not divulge any such
information to any third party without the consent of the Managers.
ARTICLE X
TRANSFERABILITY
10.1 General. Without the prior written consent of a majority in
interest of the Members, no Member or Non-member Unit Holder shall have the
right to:
(a) sell, assign, transfer, exchange or otherwise transfer for
consideration, (collectively, "sell" or "sale"),
(b) gift, bequeath or otherwise transfer for no consideration whether
or not by operation of law, (collectively "gift")all or any part of its Units.
Each Member and Unit Holder hereby acknowledges the reasonableness of the
restrictions on sale and gift of Membership Interests and Units imposed by this
Operating Agreement in view of the Company purposes and the relationship of the
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Members and Unit Holders. Accordingly, the restrictions on sale and gift
contained herein shall be specifically enforceable. No Member or Unit Holder
shall pledge or otherwise encumber any of its Membership Interest or Units as
security for repayment of a liability without the prior written consent of the
Managers.
10.2 Right of First Refusal. In the event that a Member desires to
sell, encumber or transfer any of his Units during such Member's lifetime, such
Member shall give written notice thereof to the Company specifying the identity
of the proposed transferee and the terms and purchase price of such proposed
transfer, and the Company shall have the option to purchase such Units for a
period of 60 days from its receipt of such notice for the purchase price
specified in such notice.
If the Company does not exercise its option to purchase such Units,
then the Member desiring to sell shall offer it on the same price and terms to
the remaining Members, each of whom shall have the option to purchase such Units
for a period of 30 days from their receipt of such notice. (In the event that
more than one of the remaining Members wish to purchase such Units, they shall
participate in such option in proportion to their ownership of Units.)
If neither the Company nor any of the remaining Members exercises their
option to purchase such Units, then the Member who desires to sell his Units may
sell all, but not less than all such Units to a third party on the same terms
and for the same price as were specified in a majority in interest of the notice
of the Company pursuant to this item, provided that if such sale does not take
place within 120 days of such Member's delivery of a majority in interest of the
notice to the Company, as set forth above, then all such Units shall once again
be subject to the requirements of this Section 10.2.
ARTICLE XI
DEATH OF A MEMBER
Upon the death of a Member, the Company shall be obligated to redeem
such Member's Units and the estate of such deceased Member shall be obligated to
sell all of such Member's Units to the Company at a redemption price per Unit
equal to the fair market value of the Units. In the event that the parties do
not reach agreement, within 120 days after the date of the deceased Member's
death, as to the fair market value of the deceased Member's Units then, on or
before the 180th day after such date of death, the Company shall select an
15
appraiser, the Personal Representative of the deceased Member shall select an
appraiser and the two appraisers so selected shall select a third appraiser. The
three appraisers shall determine the fair market value of the deceased Member's
Unit (without any discount for marketability, lack of control or the like) and
the parties shall be bound by such determination. The fees and expenses of the
appraisers shall be borne equally by the Company and the deceased Member's
estate.
ARTICLE XII
DISSOLUTION AND TERMINATION
12.1 Dissolution.
The Company shall be dissolved upon the occurrence of any of the
following events:
(i) when the period fixed for the duration of the Company
shall expire pursuant to Section 2.5 hereof; or
(ii) by the written agreement of a majority in interest of the
Members.
Neither the death, retirement, resignation, expulsion, bankruptcy or
dissolution of a Member nor occurrence of any other event which terminates the
continued membership of a Member in the Company shall cause a dissolution or
termination of the Company.
12.2 Winding Up, Liquidation and Distribution of Assets.
(a) Upon dissolution, an accounting shall be made by the Company's
independent accountants of the accounts of the Company and of the Company's
assets, liabilities and operations, from the date of the last previous
accounting until the date of dissolution. The Manager(s) shall immediately
proceed to wind up the affairs of the Company.
(b) If the Company is dissolved and its affairs are to be wound
up, the Manager shall:
(i) Sell or otherwise liquidate all of the Company's assets
as promptly as practicable (except to the extent the
Manager(s) may determine to distribute any assets to the
Members in kind),
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(ii) Allocate any Net Profit or Net Loss resulting from such
sales to the Members' and Unit Holders' Capital Accounts in
accordance with Article IX hereof,
(iii) Discharge all liabilities of the Company, including
liabilities to Members and Unit Holders who are also
creditors, to the extent otherwise permitted by law, other
than liabilities to Members and Unit Holders for distributions
and the return of capital, and establish such Reserves as may
be reasonably necessary to provide for contingent liabilities
of the Company (for purposes of determining the Capital
Accounts of the Members and Unit Holders, the amounts of such
Reserves shall be deemed to be an expense of the Company),
(iv) Distribute the remaining assets in accordance with the
provisions of Article IX.
(c) Notwithstanding anything to the contrary in this Operating
Agreement, upon a liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g)
of the Treasury Regulations, if any Member has a Deficit Capital Account (after
giving effect to all contributions, distributions, allocations and other Capital
Account adjustments for all taxable years, including the year during which such
liquidation occurs), such Member shall have no obligation to make any Capital
Contribution, and the negative balance of such Member's Capital Account shall
not be considered a debt owed by such Member to the Company or to any other
Person for any purpose whatsoever.
(d) Upon completion of the winding up, liquidation and distribution of
the assets, the Company shall be deemed terminated.
(e) The Manager(s) shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Company and
the final distribution of its assets.
12.3 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 have been distributed to
the Members, articles of dissolution shall be executed in duplicate and verified
by the person signing the articles, which articles shall set forth the
information required by the Act.
12.4 Return of Contribution Nonrecourse to other Members. Except as
provided by law or as expressly provided in this Operating Agreement, upon
dissolution, each Member shall look solely to the assets of the Company for the
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return of its Capital Contribution. If the Company property remaining after the
payment or discharge of the debts and liabilities of the Company is insufficient
to return the cash contribution of one or more Members, such Member or Members
shall have no recourse against any other Member.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. Any notice, demand, or communication required or
permitted to be given by any provision of this Operating 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 appropriate,
which is set forth in this Operating Agreement. Except as otherwise provided
herein, any such notice shall be deemed to be given three 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.
13.2 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. The
books and records shall at all times be maintained as determined by the Managers
and shall be open to the reasonable inspection and examination of the Members or
their duly authorized representatives during reasonable business hours.
13.3 Application of South Carolina Law. This operating Agreement, and
the application of interpretation hereof, shall be governed exclusively by its
terms and by the laws of the State of South Carolina, and specifically the Act.
13.4 Waiver of Action for Partition. Each Member and Unit Holder
irrevocably waives during the term of the Company any right that it may have to
maintain any action for partition with respect to the property of the Company.
13.5 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 necessary to comply with
any laws, rules or regulations.
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13.6 Construction. Whenever the singular number is used in this
Operating Agreement and when required by the context, the same shall include the
plural and vice versa, and the masculine gender shall include the feminine and
neuter genders and vice versa.
13.7 Headings and Pronouns. The headings in this Operating 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 Operating
Agreement or any provision hereof. All pronouns and only variations thereof
shall be deemed to refer to masculine, feminine, or neuter, singular or plural
as the identity of the Person or Persons may require.
13.8 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
Operating Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
13.9 Rights and Remedies Cumulative. The rights and remedies provided
by this Operating 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.
13.10 Severability. If any provision of this Operating Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Operating Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
13.11 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 this
Operating Agreement, their respective heirs, legal representatives, successors
and assigns.
13.12 Creditors. None of the provisions of this Operating Agreement
shall be for the benefit of or enforceable by any creditors of the Company.
13.13 Counterparts. This Operating Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
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CERTIFICATE
The undersigned hereby agree, acknowledge and certify that the
foregoing Operating Agreement constitutes the Operating Agreement of the Company
adopted by the Members of the Company on August 14, 2002 to be effective as of
January 18, 2002.
MEMBERS:
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx
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EXHIBIT A
Number of Capital
Members Units Contributions
Xxxxxxx X. Xxxxxxxxx 2,000 $2,000
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